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D LAW LIBRARY
LAW LIBRARY
OHIO
CIRCUIT COURT REPORTS.
NEW SERIES. VOLUME XU.
CASES ADJUDGED
IN
THE CIRCUIT COURTS OF OHIO
,^ VINTON R. SHEPARD. EDITOR.
f
i *
CINCINNATI:
THE OHIO LAW REPORTER COMPANY.
1910.
COPYRIGHT, 1910,
BY THE OHIO LAW REPORTER COMPANY.
OCT o 1 1910
JUDGES OF THE CIRCUIT COURTS OF OHIO
From February 9, 1909, to February 9, 1910.
HON. FRANK TAGGART, Chief Justice, Wooster.
HON. LOUIS H. WINCH, Secretary, Cleveland.
FIRST CIRCUIT.
Counties — Butler, Clermont, Clinton, Hamilton and Warren,
William S. Qiffen Hamtilton
Samuel W. Smith, Jb Cincinnati
Peteb F. Swing Cincinnati
SECOND CIRCUIT.
Counties— Champaign, Clark, Darke, Fayette, Franklin, Oreene,
Madison, Miami, Montgom/ery, Preble and Shelby.
Theodore Sullivan Troy
Charles W. Dustin , Dayton
James I. Allreao Greenville
THIRD CIRCUIT.
Counties — Allen, Auglaize, Crawford, Defiance, Hancock, Hardin,
Henry, Logan, Marion, Mercer, Paulding, Putnam, Seneca,
Union, Van Wert and Wyandot.
Silas E. Hu^in Findlay
Michael Donnelly Napoleon
W. H. Kinder Findlay
FOURTH CIRCUIT.
Counties — Adams, AtJiens, Brown, Chillia, Highland, Hocking, Jackson,
Lawrence, Meigs, Pickaway, Pike, Ross, Scioto^
Vinton and Washington.
Thomas Cherrinoton Ironton
Thomas A. Jones Jackson
Festus Walters Circleville
FIFTH CIRCUIT.
Counties — Ashland, Coshocton: Delaware, Fairfield, Holmes, Knox,
Licking, Morgan, Morrow, Muskingum, Perry, Richland,
Btark, Tuscarawas and Wayne,
Frank Taggabt Wooster
Maurice H. Donahue New Lexington
Richard M. Voorhees Coshocton
SIXTH CIRCUIT.
Counties — Erie, Fulton, Huron, Lucas, Ottawa, Sandusky,
WilHams and Wood.
Robert S, Parker : Bowling Green
Samuel A. Wildman Norwalk
Reynolds R. Kinkade Toledo
SEVENTH CIRCUIT.
Counties — Ashtabula, Belmont, Carroll, Columbiana, Oeauga, Guernsey,
Harrison, JejBferson, Lake, Mahoning, Monroe,
Noble, Portage and Trumbull,
Peter A. Laurie Salem j
John M. Cook Steubenyllle
Willis S. Metcalfe Chardon
EIGHTH CIRCUIT.
Counties — Cuyahoga, Lorain, Medina, and Summit,
Frederick A. Henrt Cleveland
Ulysses L. Marvin Akron
Louis H. Winch Cleveland
TABLE OF CASES.
Aetna Life Ins. Co., Minear v.. 411
Anchor Fire Ins. Co., Morris v. 79
Ann Arbor Railway, Railroad
Commission v 317
Armstrong v. Cincinnati 76
Arnold v. Rudolph Wurlitzer
Co 309
Auburn Private Hotel Co., Mil-
ler v 209
Aurand v. State 311
B. ft O. Railway y. Reed 177
B. A O. Railway v. Simpson . . . 185
B. ft O. Railway, State ex rel v. 321
B. ft O. Railway y. Stewart ... 250
Bader, Harrington y 257
Baker v. Stow 489
Bank, Moore y 529
Bankers Casualty Co. y. Bank-
ing Co 200
Bartlett, Mihaloyitch-FIetcher
Co. y 160
Barton y. C, C, C. ft St I*
Railway 387
Bates, National Bed Co. y. ... 154
Baum, Northern Pacific Ry. y. 271
Baumer, Cincinnati y 240
Beckenbach y. Harlow 570
Beeman, Cleveland ft Buffalo
Transit Co. y 460
Bernard, Tilden y 193
Biddle, Watson y 238
Blerman, Interurban Ry. ft T.
Co. y 551
Bishop y. Rider 72
Black y. Goodman 287
Brotherhood Locomotive Fire-
men and Engineers, Mc-
Govem v 137
Brown, Leverone v 277
Browning, Leflet v 261
Browning v. Westropp 456
Buddeke v. State 454
Burrows v. Hussong 93
C, C, C. ft St. L. Ry., Barton v. 387
C, D. ft M. Traction Co., Mee-
ker v 170
C, D. ft T. Traction Co. v. Hol-
brock 234
C, P. ft B. Ry. v. Sites 73
Cannon, State ex rel v 103
Carroll, Simper v 140
Cavey v. Cincinnati 285
Central Nat'l Bank, Moore v. . 529
Chappell, Dailey v 561
Chris Diehl Brewing Co. v.
Konst 577
Cincinnati, Armstrong v 76
Cincinnati v. Baumer 240
Cincinnati, Cavey v 285
Cincinnati, Marmet Co. v 225
Cincinnati v. McLaughlin 220
Cincinnati Interurban Co. v.
Haines 17
Cincinnati Sand Blast Co., Sla-
line v 208
Cincinnati Traction Co. v. Cra-
mer 315
Cincinnati Traction Co., De-
Garmo v 373
Cincinnati Traction Co. v. Du-
rack , . 337
Cincinnati Traction Co. v. Fes-
ler 565
Cincinnati Traction Co. v. Hul-
vershorn 390
Cincinnati Traction Co. v. Ober-
schmid 262
Cincinnati Traction Co. v. San-
ders 266
Cincinnati Traction Co., Ste-
phens v. 385
Citizens Motor Car Co. v. Ham-
ilton 381
Citizens Nat'I Bank v. Union
Central Life Ins. Co 401
Cleveland, Forrester Plaster
Co. v 123
Cleveland, Selther v 378
Cleveland ft Buffalo Transit
Co. v. Beeman 460
Cleveland Terminal Ry., State
ex rel V 321
Closs, National Cash Register
Co. v 15
Coleman, Toledo ft Ohio Cen-
tral Ry. V 497
Columbia Conserve Co., Weller
Co. V 173
Columbus, Frisbie v 23
Conrad v. Keller Brick Co. ... 126
VI
TABLE OF CASES.
Cooper, Flandermeyer v 369
Copenharer, P., C, C. ft St. L.
Ry. V 69
Cowen V. McGoron 431
Coyner, Wickham v 433
Cramer, Cincinnati Traction
Co. V 315
Dailey v. Chappell 561
Davis V. Davis 29
DeGarmo v. Cincinnati Trac-
tion Co 373
Deiter v. State 97
Delhi V. Storey 273
Droege, Wright v 335
Drucker v. Home City 309
DuLaurence v. State 367
Durack, Cincinnati Traction
Co. V 337
Edgar, Starr Piano Co. v. . . . 37
Ellison, Foster v 399
Embshoff v. Embshoff 236
Estate of Mary F. Freer 340
Evans, Hanauer Automobile
Co. V 512
Felt, Lowe v 545
Fennell, Louis Lipp Co. v 459
Ferguson, Mason v 567
Fergus v. McClure 87
Fesler, Cincinnati Traction
Co. V 565
Flandermeyer v. Cooper 369
Forrester Plaster Co. v. Cleve-
land 123
Foster v. Ellison 399
Frank Unnewehr Co. v. Smith 574
Freeman, Ziegler v 122
Freer, Estate of 340
French Bros. Dairy Co. v. Gia-
cin 134
Friedman v. Mitz 41
Frisbie v. Columbus 23
Gas Co., Springfield v 392
Gas Co. V. Whitaker 505
Gaskins, Wm. Powell Co. v. . . 526
Gawne Co., Armstrong v 76
Gebert, State ex rel v 274
German-American Insurance
Co. V. McBee 228
Giacin, French Bros. Dairy
Co. V 134
Goodman, Black v 287
Goodson V. Goodson 158
Gottschalt, Hirstius v 361
Grannan, Ringhand v 255
Greenhow v. Harrison 128
Gregg V. Klein 264
Groft V. Hertensteln 515
Haines, Cincinnati Interurban
Co. V 17
Hamilton, Citizens Motor Car
Co. V 381
Hanauer Automobile Co. v.
Evans 512
Harlow, Beckenbach v 570
Harrington v. Bader 257
Harrison, Greenhow v 128
Hertensteln, Groff v 515
Hieatt v. Simpson 270
Hirstius v. Gottschalt 361
Hocking Valley Ry., Powers v. . 230
Hocking Valley Ry., State ex
rel V 49 and 145
Hoffman v. Wiedemann Brew-
ing Co 503
Holbrock, C, D. & T. Co. v. . . . 234
HoUister v. Vandergrift 586
Home City, Drucker v 309
Hulvershorn, Cincinnati Trac-
tion Co. V 390
Humphreys v. Schlenk 286
Hussong, Burrows v 93
Hyde Park, In re Jones law
petition 248
Innis, York Ridge Oil Co. v... 223
In re Account of Geo. Ullman 340
In re Jones law petition (Hyde
Park) 248
In re Vacation of Michigan
street 414
Insurance Co., Citizens Bank v. 401
Insurance Co. v. Krumm 364
Insurance Co. v. McBee 228
Insurance Co. v. Morris 79
Interurban Ry. ft T. Co. v.
Bierbaum 551
Interurban Ry. ft T. Co. v.
Treuheit 259
Ireton v. State ex rel 202
Kauther v. Vigransky 48
Kellar, Margeson v. -. 496
Keller Brick Co., Conrad v. . . 126
Kent ft Kaufhold, Loeb v. . . . 362
Kenyon College v. Sbhnebly . . 1
King, Weaver v 129
Klein, Gregg v 264
Knapp, Storey v 241
Kohn V. Stote 197
Konst, Chris Diehl Brewing
Co. V 577
Krumm, Ohio-German Fire In-
surance Co. V 364
Lafollette, Murray v 113
Laidlaw-Dunn-Gordon Co. v.
Miller 246
Laidlaw, Niebling v 463
Leflet V. Browning 261
TABLE OF CASES.
VII
Lemonek, Schelnesohn v. . . . 278
Leverone v. Brown 277
Ling V. Strome 161
Loeb v. Kent A Kaufhold 352
Louis Lipp Co. y. Fennell ... 459
Lowe V. Felt et al 545
Lynch v. State 330
Margeson v. Kellar 496
Markbreit, Thomas v 166
Markley v. State 81
Marmet Co. v. Cincinnati 225
Marshall v. Thomas 353
Martin, Stanley v 457
Mason v. Ferguson 567
Mateer, Ohio Central Traction
Co. V 327
McBee» German-American In-
surance Co. V 228
McCiure, Fergus v 87
McGovem v. Brotherhood Fire-
men and EiUgineers 137
McGoron, Cowen v 431
McLaughlin, Cincinnati v. . . . 220
McNamara, Toledo v 204
Medical Board, State ex rel v. 189
Meeker v. C, D. ft M. Trac-
tion Co 170
Mihalovltch-Fletcher Co. v.
Bartlett 160
Miller v. Auburn Private Hotel
Co 209
Miller, Laidlaw-Dunn-Gordon
Co. V 246
Miller v. Vandergrift 475
Minear v. Aetna Life Ins. Co. 411
Mitz, Friedman v 41
Moore v. Central National
Bank 529
Morris v. Anchor Fire Ins. Co. 79
Murray v. Lafollette 113
National Bed Co. v. Bates 154
National Cash Register Co. v.
Closs 15
New Pittsburg Coal Co. v. N.
Y. Coal Co 465
Niebling v. Laidlaw 463
Noble, State ex rel v 305
Norman v. Plumb 483
Northern Pacific Ry. v. Baum 271
North Western Natural Gas
Co. V. Whitacre 505
Oberschmid, Cincinnati Trac-
tion Co. V 262
Ohio Central Traction Co. v.
Mateer 327
Ohio German Fire Ins. Co. v.
Krumm 364
Ohio Oil Co., Miller v 475
P., C, C. ft St. L. Ry. Co. v.
Copenhaver 69
Peterson, Van Ingen v 253
Piatt V. Toledo 279
Plumb, Norman v 483
Porter, Ricard v 45
Powers V. Hocking Valley Ry.. 230
Purdy, Wadsworth v 8
Railroad Commission v. Ann
Arbor Ry. Co 317
Railway, Barton v 387
Railway, Baum v 271
Railway v. Bierman 551
Railway v. Coleman 497
Railway, Copenhaver v 69
Railway, Powers v 230
Railway, Railroad Commis-
sion V 317
Railway v. Reed 177
Railway v. Simpson 185
Railway v. Sites 73
Railway, State ex rel v. .. 49 and 145
Railway v. Stewart 250
Railway v. Treuheit 259
Reed, B. ft O. Railway v 177
Ricard v. Porter 45
Richland County Banking Co.,
Bankers Casualty Co. v. . . . 200
Rider, Bishop v 72
Ringhand v. Grannan 255
Robinson ft Sons v. Upton 314
Rudolph Wurlitzer Co., Arnold
V 309
Ryan v. Schardt 269
Sanders, Cincinnati Traction
Co. V 266
Sayre, State ex rel v 268
Schardt, Ryan v 269
Schelnesohn v. Lemonek 278
Scheu v. State 118
Schlenk, Humphreys v 286
Schnebly, Kenyon College v. . . 1
Scioto Valley Pool Co., West-
water V 382
Seiter v. Cleveland 378
Shriver v. State 81
Simper v. Carroll 140
Simpson, B. ft O. Railway v. . 185
Simpson. Hieatt v 270
Sites, C, P. ft E. Ry. Co. v. . . . 73
Slaline v. Sand Blast Co 208
Smith, Frank Unnewehr Co. v. 574
Springfield v. Springfield Gas
Co 392
Stahl V. Van Vleck 553
Stanley v. Martin 457
Starr Piano Co. v. Edgar ... 37
State, Aurand v 311
VIII
TABLE OF CASBS.
State, Buddeke v 454
State V. Delter 97
State, Kohn v 197
State, DuLaurence v 367
State, Lynch v 330
State, Markley v 81
State, Scheu y 118
State, Shrlver v 81
State, Taylor v 486
State, Travis v 374
State V. Turney 33
State, Van Immons v 417
State, Vincent v 142
State, WaldeF v 404
State, Whltten v 348
State, Yochelm v 430
State ex rel v. Cannon 103
State ex rel v. Cleveland Ter-
minal Ry 321
State ex rel v. Gebert 274
State ex rel v. Hocking Valley
Ry 49 and 145
State ex rel, Ireton v 202
State ex rel v. Noble 305
State ex rel v. Sayre 268
State ex rel v. State Medical
Board 189
State Medical Board, State
ex rel V 189
Stephens v. Cincinnati Trac-
tion Co 385
Stewart, B. ft O. Railway v. . . 250
Storey v. Knapp 241
Storey, Village of Delhi v. . 273
Stow, Baker v 489
Strasel, Toledo v 212
Strauss v. Strauss 513
Strome, Ling v 161
Sullivan v. Wellston 108
Taphom v. Taphorn 180
Taylor v. State 486
Thomas v. Markbreit 166
Thomas, Marshall v 353
Tilden v. Bernard 193
Toledo V. McNamara 204
Toledo, Piatt v 279
Toledo V. Strasel 212
Toledo ft Ohio Central Ry. v.
Coleman 497
Traction Co. v. Cramer 315
Traction Co., DeGarmo v 373
Traction Co. v. Durack 337
Traction Co. v. Fesler 565
Traction Co. v. Holbrock 234
Traction Co. v. Hulvershorn . . 390
Traction Co. v. Mateer 327
Traction Co., Meeker v. 170
Traction Co. v. Oberschmid . . 262
Traction Co. v. Sanders 266
Traction Co., Stephens v 385
Travis v. State 374
Treuheit, Interurban Ry. ft
T. Co. V 259
Turney, State v 33
Ullman, In re Account of 340
Umbenhour v. Umbenhour . . 289
Union Central Life Ins. Co. v.
Citizens Bank 401
Union Supply Co., Voorhees
Rubber Co. v 243
Upton, Robison ft Sons v 314
Vacation of Michigan street . . 414
Vandergrift, Hollister v 586
Vandergrift, Miller v 475
Van Immons v. State 417
Van Ingen v. Peterson 253
Van Vleck, Stahl v 553
Van Vleck, Wollam v 517
Vigransky, Kauther v 48
Village of Delhi v. Storey 273
Vincent v. State 142
Voorhees Rubber Co. v. Union
Supply Co 243
Wadsworth v. Purdy 8
Walder v. State 404
Watson V. Biddle 238
Weaver v. King 129
Weller Co. v. Columbia Con-
serve Co 173
Wellston, Sullivan v 108
Werner v. Zehler Provision
Co 495
Westropp, Browning v 456
Westwater v. Scioto Valley
Pool Co 382
Whitacre, North Western Nat-
ural Gas Co. V 505
Whltten V. State 348
Wickham v. Coyner 433
Wiedemann Brewing Co., Hoff-
man V 503
Wm. Powell Co. v. Gaskins . . 526
Wollam V. Van Vleck 517
Wright V. Droege 335
Wuerdeman Co., Ziegler v. . . 558
Yocheim v. State 430
York Ridge Oil Co. v. Innis . . 223
Zehler Provision Co., Werner
V 495
Ziegler v. Freeman 122
Ziegler v. Wuerdeman Co 558
OHIO
CIRCUIT COURT REPORTS.
NEW SERIES— VOLUME XII.
CAUSES ARGUED AND DETERMINED IN THE CIRCUIT
COURTS OF OHIO.
TAXATION or COLLEGE PROPERTIES.
Circuit Court of Knox County.
Eenyon College v. John E. Schkebly, as Treasures of
Knox County, Ohio.*
Decided, March, 1909.
Educational Institutions — Taxation of Buildings and Lands .Belong-
ing to — Professors Residences and Vacant Land Exempt — Section
273£.
1. The exemption from taxation of property belonginj; to colleges and
academies, provided by Section 2732, Revised Statutes, extends to
all buildings and lands that are with reasonable certainty used in
furthering or carrying out the necessary objects and purposes of
the institution.
2. Residences occupied by the president and professors and Janitor
are exempt, as also is vacant land from which no revenue is de-
rived, but land used for agricultural purposes or pasturage is not
exempt.
3. Land used for a pumping station, from which water is furnished to
the college community and is also sold to outsiders at a profit, is
taxable so long as the practice of vending water to persons not
connected with it is continued.
♦ Reversing in part Kenyon College v. Schnebly, Treasurer^ 8 N. P. —
N. S., 160.
1
CIRCUIT COURT REPORTS— NEW SERIES.
Kenyon College v. Schnebly. [Vol. XII, N.'S.
Taggabt, J.; Donahue, J., and Voorhees, J., concur.
This cause was heard on appeal from the Court of Common
Pleas.
The plaintiff, Kenyon College, by this action, seeks to re-
strain the collection of a large amount of taxes and penalty
which has been placed on the tax duplicate of Knox county
against certain tracts and parcels of land owned by it, for the
years 1901 to 1907 inclusive, claiming that the same are exempt
from taxation.
The defendant, treasurer of the county, by his answer and
cross-petitit)n, seeks to obtain a judgment for these taxes, and a
sale of the property for their non-pa>Tnent, and denies that said
tracts of land, or any part thereof, is exempt.
From the evidence in the case we learn that the plaintiff is
incorporated under the laws of Ohio as an educational institu-
tion, authorized and empowered to ''confer degrees in the arts
and science^s, and to perform all other acts as pertain unto the
faculty of colleges for the encouragement and reward of learn-
ing and shall have power to establish in connection with said
college a college and halls for preparatory education.'*
The property involved herein may be grouped into the follow-
ing classes:
1. Residences, occupied by the president and professors in
the college, and by the head janitor of the college.
2. Lands, a portion of which are used for agricultural pur-
poses, and from which a revenue is derived, either in crops or
rental for pastures.
3. Vacant lands.
4. Pumping station and standpipe.
5. The academy grounds and buildings.
It appears that the college has a number of residences which
are occupied by the uu^mbers of the faculty of the college. Ft
has been the policy of the college to permit such of its profes-
sors im are married, and also its president, to use these residences,
rent free. It further appears that they are primarily residences,
and no literary exercises or instruction are conducted therein.
One of the houses is occupied by the head janitor, who resides
therein under a similar arransrement. There are also several
CIRCUIT COURT REPORTS— NEW SERIES. 8
1909.] Knox County.
tracts of land which are farmed; or, under the direction of a
superintendent, are rented for pasturage, and from these a
profit is realized.
There are also several tracts that are vacant, not devoted to
agriculture, and from which no profit is derived; unless in the
future the same should be sold at an enhanced value. It does not
appear to what purpose these tracts of land are to be devoted,
or whether the college has fully determined the use to which
they are to be put, or to what they are adapted, or the future
policy in respect thereto.
The pumping station and the standpipe were installed in the
first instance for the purpose of furnishing water for the col-
lege buildings, and afterwards, upon the application of certain
citizens of Gambier, water was supplied to certain residences in
Gambier, so that the college has been receiving from the sale of
water about $200 per year.
The academy buildings and grounds were prior to 1900 occu-
pied by the preparatory depa»tment of the college, and at or
about this time the trustees contracted with Hills & Wyant to
conduct a school which should prepare its students for Kenyon
College. This contract was to continue for three years, with
the privilege of a two years* extension. Among other things
contained in this contract was a stipulation that there should be
a rental of $2,000, together with provisions that thereT should be
close relations established between the school and the college,
and that a i>ortion of the money received for room rent from
students sent from the school to Kenyon College should be re-
turned to Hills & Wyant and devoted to the improvement of
the biiildings and grounds. This arrangement continued until
about the year 1906, when fire destroyed all the buildings or a
greater part of the same, since which time the school has not
been in operation.
The plaintiff claims exemption from taxation on all this prop-
erty under favor of Section 2732, Revifted Statutes, a portion
of which is as follows :
*'The following property shall be exempt from taxation]
* * • all public colleges, public actademies, all buildings con-
nected with the same, and all lands connected with public in-
stitutions of learning, nof used with a view to profit.'^
4 CIROUTT COURT REPORTS— NEW SERIES.
Kenyon Ck>llege v. Schnebly. [Vol. XII, N. S.
It appears from the evidence in this case that there are many
buildings connected with Kenyon College and lands surround-
ing the same which are not taxed, and no claim is made that the
same are taxable. It is apparently conceded that Kenyon Col-
lege, so far as some of its lands and buildings are concerned,
falls within the class of institutions that are exempt from taxa-
tion. So that the question in this case arises on the construc-
tion of this part of the statute just quoted. As to the rule or
construction to be employed, it is contended by the defendant
that, **when an exception or exemption is claimed, the intention
of the Gkneral Assembly to except, must be expressed in clear
and umambiguous terms." 46 O. S., 153-159.
But the Supreme Court, in the case of Watterson v. Hallidayy
77 0. S., 169, has adopted a different rule:
**When religious, charitable or educational institutions seek
exemption, we think such right of exemption should appear in
the language of the Constitution or statutes with reasonable cer-
tainty, and not depend upon their doubtful construction.''
In the case of Little v. Seminary, 72 O. S., 428, the Supreme
Court, in effect, say:
**That the court in its interpretation of statutes is not per-
mitted or required to go beyond the plain meaning of the lan-
guage whic;^ the Legislature has used to express its intention.''
So that we must determine whether or not it was the legisla-
tive intent that the residences of professors, or residences occu-
pied by the president and professors, are exempt from taxation,
judging from the plkin meaning of the language employed.
While the college is a ** corporation," it is also defined as the
*' building" or ** collection of buildings used by the college."
Another meaning is, **A society of scholars, incorporated for
the purpose of study or instruction." So that the plain mean-
ing of this statute is as follows: **A11 public colleges, public
academies, all buildings connected with the same, are exempt
from taxation." All buildings connected with the same refers
to ** public colleges" and ** public academies," and refer to
buildings that are associated with or assist in carrying out the
uses and purposes of the institution known and designated by
the terms, college or academy.
CIRCUIT COURT REPORTS— NEW SERIES.
1909.] Knox Ck)unty.
It is urged upon our attention by the defendant, that these
houses, or residences are not used, ^^ exclusively y'^ for literary pur-
poses, and that unless used excluaively for literary purposes, or
for the purpose of instruction, that they are not exempt.
But there are many buildings connected with colleges and
academies which are necessary for the proper conduct of the
business of the college, in which literary exercises do not take
place, and which are not employed for the purpose of giving in-
struction. Many buildings are employed for the purpose of
storing the necessary equipment and apparatus of the college,
or for the purpose of carrying on the experiments, or for the
purpose of storing the archives and records of the college, and
conducting its financial affairs; yet because these, or any of
these, are carried on in the buildings, or a portion thereof, it
can not be said, that they are not devoted to the uses and pur-
poses of the college.
It appears that the occupation of these residences grew up
from the necessities of the case ; that adequate accommodations
and facilities were not at hand for the president and pro-
fessors. We can see no difference between these members of the
faculty occupying these residences free of rent, than if they
were lodging in the other buildings of the college. But the plain
language of the statute is, **All public colleges, public acad-
emies, all buildings connected with the same, are exempt."
And we think it was the purpose to exempt all buildings that
were with reasonable certainty used in furthering or carrying
out the necessary objects and purposes of the college. We do
not think the term **not used with a view to profit" refers to or
controls the clauses **all public colleges, public academies, all
buildings connected with the same," but refers to simply the
clause preceding it in the statute **all lands connected with
public institutions of learning, not used with a view to profit."
But it is insisted that the case of Kendrick v. Farqiiahr, 8 0.,
189, is a case controlling this question, that being the case in
which the direct question was involved as to whether a house
occupied by the professor was exempt from taxation under the
law, as it then stood. But looking to the law at that time, there
was an expressed exclusion from exemption of buildings, or any
6 CIBCmT COURT REPORTS-NEW SERIES.
- - - - — ^
Kenyon College v. Schnebly. [Vol. XII, N. S.
of them, Hot occupied for literary purposes, and, upon this pro-
vision of the law, it was held that the residences occupied by pro-
fessors were subject to taxation.
So that, with this view of the law and its construction, we
think the residence occupied by the president and professors
and the janitor are exempt from taxation. And that brings us
to the next question, in respect to lands, a portion of which are
now used for agricultural purposes, and from which a revenue
is derived. We think the statute is clear, that all lands con-
nected with public institutions of learning, ''not used with a
view to profit,'' are exempt, but the portions of the land herein,
which are given up to agricultural purposes, and which are
rented for pasturage are subject to taxation. The vacant lands,
which are not emploved in anv wav, and from which no revenue
is derived, we also think are exempt from taxation.
In respect to the pumping station: While the college was
justified in installing a pumping station and maintaining the
same, yet it is not authorized by its act of incorporation to en-
gage in the vending of water to the citizens of the village of
Gambipr, and by so employing this pumping station as to derive a
revenue therefrom renders such portion of its property subj(H»t
to taxation, so long as it continues to supply water to those other
than the college.
In respect to the academy grounds: We are of the opinion,
that while the arrangement was entered into between Hills &
Wyant for the conduct of a school in the buildings, and on said
grounds, that this was within the power and authority of* the
college ; that its primary purpose was not to rent this property
for the purpose of securing a revenue, but its primary object was
to carry out the purposes contained in its charter, viz., the con-
duft and maintenance of the preparatory school; that the same
was a public academy, and that, until the destruction of the
buildings,- the same were directly connected with Kenyon Col-
lege, and directly and necessarily associated therewith and a
part thereof. However, since said date, so much of the grounds
as may have been employed to produce a revenue we think would
ho subject to taxation, so long as they are so used. It does not
seem to us, from the proof, that th(» building or buildings re-
CIRCUIT COURT REt»01lTS— NEW SERIES.
1909.] Knox County.
maining on said grounds have lost their character as being con-
nected with the college, they not having been used or employed
for any purpose inconsistent with the uses and purposes of the
college.
But speaking with reference to these buildings and the resi-
dences hereinbefore mentioned, it is strongly urged upon our
attention that the case of Watterson v. Halliday, Auditor, et al,
77 0. S., 150, is controlling in this case. Counsel urge upon our
attention the following part of the opinion of the court found
on page 180, to- wit, **the use to which the property is devoted
determines its right to exemption under any clause of the sec-
tion," and claim that the uses to which these buildings and
lands are devoted are for the purpose of securing a revenue, and
that being so devoted to this purpose, they are not exempt;
that the residences fall within the same class as the parish houses
or parochial residences of the priests and bishops, which it was
claimed were exempt in the case under consideration.
But an examination of this case discloses that the Legislature
have used entirely different language with respect to parish
houses and residences of priests and bishops of the Roman Catho-
lic Church, or of any other church, than that which is em-
ployed in respect to buildings connected with public colleges and
public academies. The language of the statute which was under
consideration in this case is, **all public school houses and housc^s
used exclusively for public worship/' it being claimed further
that these residences or parish houses were buildings ''belonging
to institutions of purely public charity."
The court, in this case, bases its decision upon two grounds,
**that the houses were not used csclHsivcU/ for public worship;
neither were they buildings belonging to institutions of purehj
public charity; the court finding *'that the Roman Catholic
Church, while it is engaged in charitable works, its chief and pri-
mary object was not charity, but its chief and primary purpose
and object was the teaching and extending of its recognized form
of religious belief and worship into all parts of the world, and
was founded to continue the work of Christ upon earth and to
teach, govern, sanctify and save all men."
So we think that the case at bar is clearly distinguishable from
the case of Watterson v. Halliday, supra.
8 CIRCUIT COURT REPORTS— NEW SERIES.
Wadsworth v. Purdy et al. [Vol. XII, N. S.
A decree may be entered along the lines indicated herein, in
favor of the plaintiff, restraining the collection of all taxes that
have been improperly assessed ; a decree may be entered in favor
of the defendant for the taxes which are found herein to be a
proper charge against the real estate of the plaintiff; and an
order of sale may issue therefor. Motions for new trial over-
ruled; twenty days for filing separate findings of facts; and
the statutory time for bill of . exceptions allowed. Exceptions
may be noted in behalf of both parties herein.
PROCKEDINCS TO SET ASIDE A WBX.
Circuit Court of Cuyahoga County.
Anna D. Wadsworth v. D. W. Purdy et al.
Decided, June 30, 1908.
"Wilts — Effect of Order Adwitting to Probate — Argument to Jury Seised
on Such Order Constitutes Misconduct y When — Review of Pro-
ceedings not Limited to, Urged on Motion for a New Trial — Testa-
mentary Capacity — Proper Definition of — Eccentricities and De-
lusions Affecting Mental Capacity — Charge of Court — Sections 5858
to 5866 and 5926.
1. An order admitting a will to probate is, by force of Section 5926,
Revised Statutes, prima facie evidence only of its validity; from
which it follows that in a proceeding to contest a will under Sec-
tion 5858, Revised Statutes, et seq., a statement by counsel in
argument to the jury to the effect that the probate Judge, ex-
perienced in such matters, had admitted the will to probate on
the same evidence heard in the proceeding to contest, and that \t
would be presumptuous in the jury to hold differently, consti-
tutes misconduct of counsel prejudicial to the rights of contestants,
for which a judgment based on a verdict sustaining the will is
reversible.
2. A trial court is presumed to know what errors occur at the trial of
a cause and, having certified that a bill of execptions, showing the
errors excepted to is true, the fact that the attention of the court
was not called thereto by affidavit or otherwise upon a motion for
new trial can not preclude a reviewing court from the considera-
tion thereof on error.
CIRCUIT COURT REPORTS— NEW SERIES. 9
1909.] Cuyahoga County.
3. Mental capacity to make a will requires a comprehension of the
nature of the act testator is performing, an understanding of the
extent of property of which he is disposing, a realization of the re-
lation which he holds to those who have claim upon him and
ahility to make a rational selection among them; "capacity
enough to attend to ordinary business, and to know and under-
stand the business he was engaged in/' lacks essential requisites
of testamentary capacity to make a will, and to so charge is mis-
leading and prejudicial.
4. A testator's eccentricities, peculiarities or delusions must not affect
either the natural or selected objects of his bounty or interfere
with his testamentary capacity to make a will. Whether or not
such conditions of mind affect testamentary capacity is a question
for the Jury under proper ingtructions, and to charge that they
are of no consequence, if testator has sulBclent mental capacity
to transact ordinary business and of understanding the nature of
the business in hand, is prejudicial.
ff. B. Johnson and E. F. Voris, for plaintiff in error.
Henry & CrousB and W. E. Boyd, contra.
Donahue, J.; Tagoart, J., concurs; Craine, J., concurs in
the reversal (all of the Fifth Circuit, sitting in place of Judges
Winch, Henry and Marvin).
This proceeding in error is brought to reverse the judgment of
the common pleas court of this county in an action in said court,
wherein Anna D. Wadsworth sought to set aside the will of H.
W. Baird, deceased, claiming, first, that said will was not prop-
erly executed ; second, that the testator had not mental capacity
to make a will.
Upon the trial of the cause in common pleas court the jury re-
turned a verdict sustaining the will, and judgment was rendered
accordingly. A motion for new trial was filed and the same
was overruled. The principal errors now urged upon the at-
tention of this court are: First, misconduct of counsel in the
argument of the cause ; second, error in the charge of the court ;
third, that the verdict of the jury was not sustained by sufficient
evidence.
First, as to misconduct of counsel. It appears that in the
argument of this cause one of the counsel for defendants was
permitted to, and did, argue to the jury, in effect, that the same
evidence now before the jury was offered to Judge Iladden of
10 CIRCUIT COURT REPORTS— NEW SERIES.
■ ■ -
Wadsworth v. Purdy et al. [Vol. XII, N. 3.
the probate court, and that he, with all his experience in such
matters, had sustained the will and admitted it to probate, and
that it would be presumptuous in the jury to hold different from
Judge Hadden. This all appears in the bill of exceptions, but
it is also certified that this matter was not called to the attention
of the court by means of affidavit or otherwise upon the motion
for new trial. We think that is not important. There are a
great many other errors complained of in this bill of exceptions
that were not brought to the attention of the court upon the
motion for new trial by affidavit, deposition or oral testimony.
The trial court is presumed to know what occurred at the trial
of this cause, as it now appears by the bill of exceptions. In
fact he certifies this bill of exceptions to be a true bill, and we
think the matter was clearly before him upon the motion for
new trial, as much as was the admission of evidence or errors in
the charge of the court, or any other matters or things excepted
to- by counsel for plaintiff in error upon the trial of said cause,
and it is now before this court for review. We are unanimously
of the opinion that this argument was improper and prejudicial
to the rights of the plaintiff in error.
The method provided by statute (Sections 5858-5866, Revised
Statutes) for contesting a will is extelusive (Hosier v. Harmon,
29 Ohio St., 220), and the statute providing for the probating
of a will does not provide that the contest may be had touching
its admission to probate.
Section 5926, Revised Statutes, provides:
**The said court shall cause the witnesses to such will, and
such other witnesses as any person interested in having the same
admitted to probate, may desire, to come before such court; and
said witnesses shall be examined in open court, and their tes-
timony reduced to writing, and filed.''
From this statute it clearly appears that only witnesses to the
will and such other witnesses as may be offered by parties in-
terested in having the will admitted to probate can be heard.
Parties interested in not having the will admitted to probate
have no right to call witnesses. It is practically to all intents
and purposes a proceeding r.r parfc in its nature.
CIRCUIT COURT REPORTS-NEW SERIES. 11
1909.] Cuyahoga County.
In the case of Bolles v. Harris, 34 Ohio St., 38, at page 41,
Judge White, speaking for the Supreme Court, says :
**The jurisdiction exercised in all such cases by the court and
jury is virtually that of a court of probate, charged with the
duty of finally establishing or rejecting the will. The pro-
ceeding to admit the will to probate in the first instance, is in its
nature ex parte; the proceeding by contest is a suit inter partes.''
Citing in support thereof, Mears v. Mcars, 15 Ohio St., 90;
Converse v. Starr, 23 Ohio St., 498.
So that what Judge Hadden had done with this will was of no
importance, except that by the force of the statute it became
prima facie evidence of the validity of this will, and cast the
burden upon the contestors to show its invalidity. It is true that
in this particular ca^e it so happened that the same evidence is
used in the common pleas court, touching the execution of the
will, that was heard by Judge Iladden, and if there would be
any excuse in any case for this argument, it would be this case,
but we think that because the action is ex parte, and because
the judgment of that court covered all the questions touching the
validity of this will, as well as its proper execution, it is unfair
to say that the jury should have the right to consider what Judge
Hadden had done touching the same. The effect of that judg-
ment was simply to make a prima facie case in favor of the will,
but upon this con<test, the case, except for that, is heard de novo.
and the jury ought not to be influenced by the action of Judge
Hadden in the case, especially when his judgment was rendered
in' an ex parte proceeding, where counsel perhaps were not pres-
ent, and if present had no absolute right to be heard ; and Judge
Hadden 's judgment upon this case made in the common pleas
court where counsel for all parties had full right to be heard,
and were heard, might have been entirely different. Tt was the
duty of the common pleas court to interfere when its attention
was called to this argument, and to instruct that the judgment
' of the probate court had no other or furth(»r effect than to cast
the burden upon contestors. The court, by permitting this ar-
gument, in effect, said to the jury:
**You have a right to consider Judge Hadden 's action as au-
thority in this particular case, and if a man of his experience
12 CIRCUIT COURT REPORTS— NEW SERIES.
Wadaworth v. Purdy et al. [Vol. XII, N. S.
and learning should hold this will upon this same evidence to
have been properly executed and admitted to probate as a last
will and testament, you should consider his action in connection
with the evidence offered in determining what you ought to do
in this case/'
We therefore think the argument of counsel in this respect
was improper and that the court erred to the prejudice of plaint-
iff in overruling the objections of plaintiff in error's counsel to
the same, and in not then and there correcting in the mind of the
jury any false impressions it may have received by reason of
such argument.
The next error seriously urged upon this court is, as to the
charge of the court, and particularly as to this language :
*'If, therefore, you believe from the evidence that when Mr.
Baird executed the papers in dispute he had capacity enough
to attend to his ordinary business, and to know and understand
the biLsiness he was engaged in, then he had the right and the
capacity to make such a will, and you should find that the papers
in dispute are his will."
We do not think this is the correct definition of testamentary
capacity, but whether it is prejudicial or not to plaintiff in error
is a much more serious question. A person may lack in capac-
ity for the transaction of ordinary business and lack in con-
tractual capacity, and yet may have testamentary capacity.
Mental capacity to make a will is said to exist where a testator
has an Understanding of the nature of the business in which he
is engaged, a recollection of the property he means to dispose of,
the persons who have a claim upon his bounty, and the manner
in which it is to be distributed.
In 11 Am. & Eng. Enc. Wills, 151, cited by counsel for plaint-
iff in error, we find this definition :
' * In order to make a valid will, a testator must have sufficient
capacity to comprehend the nature of the act he is performing;
he must understand the extent of the property of which he is
disposing; he must comprehend the relation which he holds to
those who have claim upon him, and be capable of making a
rational selection among them."
We are inclined to the opinion that this is the best definition
that can be given of testamentary capacity and includes all the
CIRCUIT COURT REPORTS— NEW SERIES. 18
1909.] Cuyahoga Ck)uxity.
requisite elements thereof, and any charge which fails to give
this, in substance, is defective. The court in this case did, on
page 390, substantially give this charge, but in other places
throughout the charge the jury is told, in effect, that if he knew
and understood the business he was engaged in and had capacity
enough to attend to ordinary business, then he had sufficient
testamentary capacity to make a will, but in this behalf we think
the charge as a whole was misleading.
Counsel for plaintiff in error further complain of this lan-
guage:
*'But if you should find from the evidence that during some
portions of his life, Mr.Baird bad eccentricities, or peculiarities,
or even an insane delusion, or partial insanity on the subject of
socialism, or any other subject, and should find from the evi-
dence that at the time he made the writing in question he had
sufficient mind and memory to understand his ordinary business,
and that he knew and understood the business he was engaged
in and intended to make such a will, you should then find it to
be his will."
We think this charge is erroneous in that it does not state
that before the jury shall find that these delusions would not
interfere with his testamentary capacity, that they must also
find that the same did not affect either the natural or the se-
lected objects of testator's bounty.
In the case of New Jerusalem Church v. Crocker, 7 C. C, 327,
it is held, in the fifth paragraph of the syllabus, that:
**The existence in the mind of a testatrix of mere delusions
which do not affect either the natural or the selected objects of
her bounty, is not inconsistent with testamentary capacity.''
On page 331, Judge Shauck, in the opinion, says:
*'The existence of delusions which in no way relate to those
who are excluded from or embraced in the provisions of a will,
are not at all inconsistent with testamentary capacity." Citing,
in support of this proposition. Rice v. Rice, 53 Mich., 432; HoU
linger v. Byrnes, 37 N. J. Eq., 221 ; Otto v. Doti/, 61 Iowa, 23,
and Smith, Will of, 52 Wis., 543 (38 Am. Rt^p., 756).
This question is also discussed at some length, and the same
conclusions reached in the case of Edwards v. Davis, 30 Bull.,
283 ; Joslyn v. Sedam, 2 Bull., 147.
14 CIRCUIT COURT REPORTS— NEW SERIES.
Wadsworth v. Purdy et al. [Vol. XII, N. S.
If Mr. Baird had any delusions, peculiarities, eccentricities, or
any foibles of any kind or character ciirried to an unreasonable
extent, it is not important whether it was socialism, politics, re-
ligion, philosophy of energy, perpetual motion, or what not, the
subj(H't of his delusion is of no importance to court or jury.
The only (piestion is, whether or not it was carri(»d to such an
(»xtent as to amount to insanity, or a delusion that did aflPect
his judgment and interfere with him exercising a rational judg-
ment in the making of his will. And if the jury found that he
had such delusions, and that these delusions did affect either the
natural or selected objects of his bounty, then the verdict
should liave been against the will, and not in its favor, for it
can not be said that a m>an has testamentary capacity where in-
sanity or delusions control his judgment in the disposition of
his estate, and the court, instead of saying that these delusions
were of no consequence, provided he had suflRcient mental capac-
ity to transact ordinary business and was capable of understand-
ing the nature of the business in hand, should have added, also,
the further condition, provided that these delusions did not
affect either the natural or selected objects of his bounty, and did
not distort his judgment and prevent him making a rational dis-
position of his property, and the failure of the court so to do
was prejudicial error.
Coming now to the consideration of the question that this ver-
dict is not sustained by sufficient evidence, while this court is
loath to disturb a verdict in a will case, finding either for or
agai!ist the validity of the will, yet we are of the opinion that
Section oHf'o, Revised Statutes, requires the same review of the
evidence in such cases as in all other cases. Kettemann v.
Mftzger. 3 C. C— N. S., 224. '
A majority of this court is of the opinion that in view of the
improper argum.ents in the cause and the error of the court in
its charge, that the jury was misled thereby and that the verdict
is not sustained by sufficient evidence and is aofainst the mrnii-
tVst weight thereof, and the same ought to be submitted to an-
other jury, under proper instruction, and with proper argu-
ment; but in view of the fact that it may be necessary to retry
the case, this court refrains from further discussion of the evi-
CIRCUIT COURT REPORTS— NEW SERIES. 16
1909.] Hamilton Ck)unty.
dence, for the reason that it might in some way prejudice or
affect the judgment of another jury trying this cause ; but for
error in the charge, for error in failing to correct the argument
of counsel, and not explaining to the jury then and there the
only effect which could be given to the judgment of the pro-
bate court admitting this will to probate, and because the ver-
dict is against the manifest weight of the evidence, the judg-
ment of the common pleas court is reversed and the cause re-
manded to the common pleas court for new trial.
Exceptions of defendants in error noted.
Craine, J., dissents from the holding that the verdict is against
the manifest weight of the evidence, but concurs in the reversal
for the other two reasons assigned.
PLAONC VENDOR'S STATEMENT ON A SEPARATE SHEET
RENDERS CONTRACT Or CONDITIONAL
SALE VOID.
Circuit Court of Hamilton County.
National Cash Register Co. v. Fred. Closs, Assignee.
Decided, December 5, 1908.
ConditionoU Bales — Vendor Held to Strict Compliance with Statutory
Provisions — With Reference to Notice of^ His Claim — Section
4155-2.
The rule that statutes which prescribe the manner in which
mortgages or contracts of conditional sale shall be executed and
filed or recordtKi must be strictly complied with, renders a contract of
conditional sale filed with the county recorder inaufiicient, whore the
statement of the vendor as to the amount due and unpaid does not
appear ** thereon,'* but is embcxliod in an aflidavit on a separate .^heet
attached to the contract of sale.
Charles Phares, for plaintiff in error.
Fred. Closs, contra.
Smith, J.; Swing, P. J., and Gipfen, J., concur.
Upon the facts found by the trial court we are of the opinion
that the judgment of the court below should be affirmed. While
!• CIRCUIT COURT REPORTS— NEW SERIES.
National Cash Register CJo. v. Gloss. [Vol. XII, N. 9.
a copy of the contract of conditional sale was deposited with
the Recorder of Hamilton County with an affidavit of the agent
of the National Cash Register Co. that it was a copy, setting
forth the amount due and unpaid on the same, yet the affidavit
was upon a separate paper and attached to the copy of the con-
tract.
We do not think this is in compliance with Section 4155-2,
Section 1, Revised Statutes, which provides for the deposit of
the contract, with a statement ** thereon,*' under oath made by
the person so selling, his agent, or attorney, of the amount of the
claim ; or the deposit of a true copy thereof, evidently meaning
a true copy of the contract, with an original affidavit '* thereon,''
the affidavit being no part of the contract.
This, therefore, would seem to require the affidavit to be upon
the instrument or contract itself or a true copy thereof and not
attached separately to it.
Statutes which prescribe the manner in which mortgages or
contracts of conditional sale shall be executed, filed or recorded
should, in general, be strictly complied with, and unless so com-
plied with they impart no notice; thus the courts have held
parties to a very strict compliance with the statute where the
rights of third parties intervene. Cross, Tnistee, v. Carstem, 49
0. S., 548 ; Jones, Chattel Mortgages, Section 248.
The judgment of the trial court is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 17
1909.] Hamilton County.
COLUSION BETWEEN TROULEY CAR AND BUGGY,
Circuit Court of Hamilton County.
The Cincinnati Interurban Company v. Samuel E.
Haines, Administrator.*
Decided, March, 1909.
Negligence — Resulting in Buggy Being Run Down by Electric Car —
Charge of Court — Pleading — Burden of Proof — Last Chance — <In-
peaching a Former Witness.
1. Instructions to the jury which were approved either expressly or
by implication at a former hearing of the same case on review,
will not be held erroneous at .a second hearing of the same case
unless error clearly appears.
2. A special instruction to the jury is erroneous which does not state
the manner in which the negligence of the defendant caused the
accident, and includes any negligence not charged in the petition.
3. Negligence can not be predicated against a traction company, be-
cause the motorman of the car which was in collision with a buggy
did not stop his car or reduce its speed when he saw the buggy
on the track, regardless of the intervening distance and the op-
portunity which the driver had to get the vehicle off the track
before the car reached him.
4. A question which leads a witness to answer by using the same
words which a former witness has .denied using is Incompetent,
and permitting such a question to be answered constitutes re-
versible error.
Kinkead, Rogers & Ellis, for plaintiff in error.
Peck, Shaffer d' Peck and S. B. HammeU contra.
GiFPEN, P. J.; Swing, J., and Smith, J., concur.
The negligence averred in the petition is the moving of the
car at a great and negligent rate of speed without keeping any
proper lookout for persons or vehicles upon the street. The
amended answer contains substantially a general denial and an
averment that the injury and death of Jennie L. llaines were
directly caused by the negligence and carelessiu'ss of Samuel
♦ For a former review of the same case, see Cincinnati Interurban Co.
V. Haines, 8 C. C— N. S., 77.
18 CIRCUIT COURT REPORTS— NEW SERIES.
Intenirban Co. v. Haines. [Vol. XII, N. S.
E. Haines, which averment is denied in the reply. Verdict and
judgment for plaintiff.
Special instruotions numbered 2, 3, 4. 5 and 6, given at the
request of plaintiff, are identical with those approved either ex-
pressly or impliedly by this court upon the former hearing of
the cause, and unless clearly erroneous will not now be so held.
While the definition of ordinary care and the right of the driver
of a buggy upon a public street may not be in the most ap-
proved form, there was nothing in them calculated to mislead the
jury to the prejudice of the defendant.
Special instruction No. 7 is as follows:
i i rni
This action is prosecuted by the plaintiff for the benefit of
the next of kin of Jennie L. Haines, deceased, consisting of her
husband and daughter. It is in evidence and not disputed that
the husband drove the buggy in which deceased was riding at
the time it was struck by th? car; and it is claimed by the
defendant that he was guilty of negligence which resulted in
the collision between the car and the buggy. If you find that the
collision was caused by the negligence of both the inotorman and
said husband, the plaintiff is nevertheless entitled to recover
such damages as were sustained by the daughter, although in
that event he would not be entitled to recover damages for his
own benefit. ' *
The objection to this instruction is that it does not state the
manner in which the negligence of the defendant caused the
collision, and includes not only a remote cause, but any negli-
gence not charged in the petition. There was error therefore in
giving it to the jury at the request of plaintiff before argument.
The alleged error in not giving the special instruction on the
measure of damages requested by the defendant to be given be-
fore argument will not be considered, because it does not ap-
pear affirmatively that the instruction was in writing, and it does
appear that in the general charge the damages were limited
to the pecuniary loss of the husband and child. The same rule
would not apply to instructions requested to be and actually
given before argument, because in the absence of any showing
to the contrary, the presumption is that the court performed its
duty under the statute by giving them in writing. Railway Co.
V. Gilbert, 2 C. C.—K. S., 482.
CIBCUIT COURT REPORTS— NEW SERIES. 19
1909.] Hamilton County.
Objection is made to the following portion of the general
charge :
** While the question of contributory negligence is not di-
rectly raised by the pleadings, yet it is possible that in the con-
sideration of the evidence you may find that both plaintiflf and
defendant were guilty of negligence, and that the negligence
of each contributed directly to the injury.
* * The same rule as to burden of proof I have stated above ap-
plies in the case of the defense of alleged negligence of the
plaintiflP, except that the burden of proof is upon defendant to
prove the negligence of the plaintiflP and the fact that the
injuries resulted directly therefrom."
The claim is that the defendant pleaded no aflfirmative de-
fense, and therefore assumed no burden. The defendant might
have relied on its general denial, and pleaded no further, or
having so pleaded offered no evidence in support of it, and the
result would have been the same; but if it elected to prove
that the negligence of the husband alone directly caused the
accident, the burden, although unnecessary, was thereby 'As-
sumed. The court did not intend, nor was it understood by the
jury, that the defendant was required to prove the averment, if
content to rest upon its general denial. At all events the defend-
ant was not prejudiced thereby.
The court also charged the jury as follows:
**Even if the car was not running at what would ordinarily '
be an unreasonable rate of speed at that hour and that place,
yet if at whatever rate of speed it was running the motorman
saw this buggy on the track in time to have stopped his car or
slowed up so as to have prevented the accident, it would have
been his duty to do that, and if he carelessly or negligently failed
to stop or slow up said car, and as a result ran the buggy down,
the defendant was guilty of negligence."
This charge assumes that the car may have been running at a
reasonable rate of speed and that the motorman saw the buggy
and was therefore keeping a proper lookout, whereby the two
alleged acts of negligence were eliminated. The vice consists in
imposing upon the defendant the duty of stopping or slowing
th« speed of the ear when the m<it()rraan saw the buggy on the
track, regardless of the 4istance and opportunity the driver had
20 CIRCUIT COURT REPORTS— NEW SERIES.
Intemrban Co. v. Hainea. [Vol. XII, N. S.
to get off the track before the car reached him, or in holding it
liable for negligence not charged in the petition to-wit: the
failure to exercise due care after seeing the peril in which the
occupants of the buggy were placed. The first duty is not re-
quired by law and the se(?ond is not pleaded.
It may be that the statement that the motorman saW the buggy
does not necessarily imply that he was aware of the danger, and
hence the doctrine of '*last chance" would not apply; but if not,
then the duty to stop or slow the speed of the car was too
broadly stated.
The explanation, if such it ]k\ given by the the court con-
cerning special instruction No. 5 requested by defendant was
not prejudicial, and therefore no ground for reversal of the
judgment.
There being no certificate of the trial judge that the bill of
exceptions contains all the evidence, we are not required nor
permitted to weigh the evidence for the purpose of ascertaining
whether the amount of the verdict is excessive.
There was no error in excluding the testimony offered as to
width of space between the west rail and west curb on Lock-
land avenue, south of Cliff street, as it does not appear how
far south or what relevancy it had.
It is claimed the court erred in permitting the plaintiff to
answer the following questions:
it
Q. Now I will ask you, Mr. Haines, if the motorman of the
south bound car, when he passed you, called out to you, 'look
out, boys, for the coming car. '
"Q. Mr. Haines, when the motorman on the north bound
ear. after he had stopped, came to where you were, immediately
after the accident, did he make use of these words 'My God.'
he said, *I never saw you until I hit you,' "
the claim being that there was an abuse of discretion in allowinsr
such leading questions on direct examination.
Counsel for defendant say in their brief:
''When witnesses for the defendant were on the stand they
were asked on cross-examination by plaintiff's counsel whether
they had made the statements referred to in the (|uestions above
quoted, and they denied having made them. The purpose c^f
CIRCUIT COURT REPORTS— NEW SERIES. 21
1909.] Hamilton County.
putting the questions to Mr. Haines was to impeach defendant's
witnesses.''
This is true only as to the second question, because the rec-
ord shows that the statement in the first question was made by
the witness himself in direct examination conducted by counsel
for defendant. The rule in such case is stated in Starkie on
Evidence, 169, as follows:
** Where a witness is called in order to contradict the testi-
nK)ny of a former witness, who has stated that such and su-ch
expressions were used, or such and such things were said, it is
the usual practice to ask whether those particular expressions
were used or those things were said, without putting the ques-
tion in a general form by inquiring what was said. If this were
not to be allowed, it is obvious that much irrelevant and inad-
missible matter would frequently be detailed by the witness."
«
It would seem from this statement of the law that there was
no abuse of discretion in permitting Mr. Haines to answer the
first question, but the second is of an entirely different nature,
because it leads the witness to answer in words which the
former witness has denied. On page 170 of Starkie it is said :
** Where a witness is called to prove affirmatively what a
witness on the other side has denied, as, for instance, to prove
that on some former occasion that witness gave a different ac-
eount of the transaction, a difficulty may frequently arise in
proving affirmatively that the first witness did make such other
statement, without a dire<?t question to that effect • • • anil
it jfeems that the consideration of mere convenience ought not
to operate at all, where the contents of a particular document,
of the details of a particular conversation, are material to the
issue."
In this case there cou'd be no difficulty in proving affirmatively
by Mr. Haines what words the former witness used, if his at-
tention were directed to the particular subject-matter; but the
most serious objection to the question is that the statement made
by the former witness was not only material to the issue, but if
true, determined the case in favor of the plaintiff. See, also,
2 Phillips on Evidence, 893.
The case of King v. Wicks, 20 Ohio, 89; Runyon v. Price,
15 O. S., 1, and Kent v. State, 42 0. S., 426, dex?ide only that
22 cmcUlT COURT REPORTS— NEW SERIES.
Interurban Co. v. Hainea [Vol. XII, N. 3.
such testimony is admissible for the purpose of impeachment,
and not that a leading question may be put.
While it is true as held in the third proposition of the sylla-
bus in Evans v. State, 24 0. S., 458, **the mere fact that leading
questions are improperly allowed on the examination of a wit-
ness, although allowed as of right, is not error for which the
judgment will be reversed," yet on page 463 it is said:
**The allowing or refusing of leading questions in the ex-
amination of a witness must very largely be subject to the con-
trol of the court, in the exercise of a sound discretion. While
we do not say that a case may not arise in which there may be
such an abuse of discretion as to deprive the party of a fair
trial, and thus call for the interference of this court, jt is plain
that the present one is not of that character. ' '
It is difficult to conceive of a more extreme case than the
one before us. The plaintiff had. in the examination in chief
of Mr. Haines attempted to introduce the declaration of the
motorman, but the court properly excluded it because it was
A mere recital of a post transa«tion not binding on the defend-
ant as an admission; and if competent and true was conclusive
of the main issue in the cjise. Besides the statement in the
question laying the foundation for impeachment and the one
put to Mr. Haines are not identical, although the same in sub-
stance, the former being, **My God, I didn't see you until I
hit you,** which in itself furnishes a good illustration of the
\uicertainty and danger of leading a witness upon a matter so
import-ant and of which his own recollection is the best evi-
dence.
The judgment will therefore be reversed and the cause re-
manded for a new trial.
CIRCUIT COURT REPORTS— NEW SERIES. 28
1909.] Franklin County.
MUNICIPAL REGULATION OF MOTOR. VEHICLES.
Circuit Court of Franklin County.
Wm. Frisbie, a Tax-Payer, v. City op Columbus et al.
Decided, March 22, 1909.
Vehicle Licenses — Provisions of 99 O. L., 5S8, do not Inhibit Municipal
Regulation of Motor Vehicles — Effect of Repeal of Unconstitutional
Statute on Ordinance Previously Enacted — Jurisdiction for the
Imposing of Special Licenses on Motor Vehicles — "U^c" of Streets
Means Continuous and Repeated Vse-^98 0. L., S20.
1. The provision of 99 0. L., 688, for the registration, identification,
regulation and licensing of motor vehicles, does not inhibit munici-
pal councils from passing ordinances requiring the licensing of
such vehicles or from enforcing crdlnances of that character which
were in force at the time of the passage of this act.
2. Inasmuch as the provisions of 98 O. L., 320, compelling the owners
of such vehicles to register and forbidding local authorities from
passing and enforcing ordinances for the regulation and licensing
of such vehicles, are clearly unconstitutional, its repealing clause
is not effective to prohibit the imposition of municipal licenses.
3. Police regulation, supervision and control of the operation of motor
vehicles within the limits of municipalities, and the additional
expense involved in the construction and maintenance of streets.
Justify the imposition of special licenses for the purpose of reim-
bursing the municipality, notwithstanding state licenses are also
imposed.
4. The doctrine announced in Pegg v. Columbus (10 C. C. — N. S., 199),
that the "use" contemplated by the vehicle ordinance of the city
of Columbus as the basis for the exaction of an annual license fee
must b^ continuous and repeated, is approved and followed.
Error to Franklin Common Pleas Court.
The opinion of Judge Dillon of the common pleas court
rendered in this case on March 1, 1909, was as follows:
**The question presented in this case is whether or not the
act of May 9, 1908 (99 0. L., 538), providing for the registra-
tion, identification, regulation and licensing of motor vehicles,
inhibits the councils of municipalities from passing ordinances
requiring regulation and license of the same vehicles, or from
enforcing such ordinances already in force at the time of the
passage of such act.
24 CIRCUIT COURT REPORTS— NEW SERIES.
Friable v. Columbus. [Vol. XII, N. S.
**The plaintiff in his petition complains of an ordinance passed
by the council of the city of Columbus, March 20, 1905, being
ordinance No. 21,927, which was passed for the purpose of
licensing and regulating the use of the streets by persons who
use vehicles of all kinds thereon. This ordinance requires, among
other things, a license fee for each automobile of from $5 to
$7.50, depending upon size.
**The plaintiff is a tax-payer, and has made demand upon
the city solicitor in accordance with the statute, and brings
this action to enjoin the city officials from enforcing the said
ordinance. He presents three reasons why the ordinance is in-
valid.
**The first reason is, that the previous Legislature, on June
1, 1906, had passed a somewhat similar state law regulating and
licensing motor vehicles (98 0. L., 320), by Section 19 of which
local authorities were forbidden to pass and enforce or main-
tain any ordinance, rule or regulation requiring the owner or
operator of any motor vehicle to take out any license, or inter-
fering with his free use of the highways, etc.
** Whether this Section 19 of the act merely suspended the
enforcement of any such ordinance, or actually repealed any
such ordinance, need not here be considered, for the reason that
this act of the Legislature has already been declared unconstitu-
tional; and for that reason, therefore, did not repeal or affect
the ordinance in question. Feasal v. State, 6 N. P. — N. S., 321.
**This case was afterwards affirmed by the circuit court (not
reported), and the reasoning of the assocate branch of this court
is so clear that further comment upon that statute is unnecessary.
* **The second reason advanced is. that this ordinance is irt
reality a tax, and its only purpose is to raise revenue. This claim
has so often been made in this court, and has received considera-
tion at the hands of this court so many times, that comment
upon this claim will be very brief.
**The leading case in Ohio upon this subject is Marmet v.
State, 45 Ohio St., 63, where the court, with the same ques-
tions before it, confirmed the power of the municipality within
reasonable bounds to regulate occupations by license and to
compel the payment of a reasonable fee therefor, where such
occupation consists of a special benefit conferred by the public
upon those who follow or practice it, or ivhere such occupation
imposes a special burden upon the public, or where it is in-
jurious or dangerous to the public, and requires regulation.
''That case involved only the ordinary driving of horses and
vehicles on the street, and had no reference to motor vehicles.
Concerning, therefore, the somewhat innocuous occupation of
CIRCUIT COURT REPORTS-NEW SERIES. 26
1909.] Franklin County.
driving a horse and buggy on the street, the court observes that
thousands of property owners use no vehicles of any kind ; that
those who do use vehicles are favored ones, and the court asks
this question : * Why should not these favored ones pay a small
sum toward making good that which they wear out ? '
**The court in that case also recognized that heavier wagons
and heavier loads caused a greater burden upon the streets, and
therefore should pay a larger fee, and that all these burdens up-
on the public should be determined in considering whether or
not an ordinance was really imposing a tax for general purposes.
*'The court further held in that case that the fact that inci-
dentally more money might be received than was absolutely
necessary to pay the expense of repairs of the streets and regu-
lation of the traffic would not be sufficient to invalidate the act.
''This second argument advanced by the plaintiff is further
weakened by consideration of the nature of the vehicle in ques-
tion. In addition to those things which may be charged against
ordinary light vehicles, whose chief burden upon the public con-
sists in wearing out the streets, we have in this ease the ad-
ditional burden of regulation of automobiles for a much higher
purpose, of preventing injury to person as well as property. In
addition, therefore, to the wear and tear upon the streets, what-
ever that may be, it is quite manifest that the entire police force
of our municipalities are scarcely able today to cope with the
violations of law committed by operators of automobiles. It is
common knowledge that hundreds of these violations take place
in the city of Columbus every day, and injuries to person and
property are of common occurrence. If all the revenue, there-
fore, derived from this license were devoted to the employment
of special policemen alone, there ^ould still be a deficit for ordi-
nary wear and tear upon the streets, etc., whether that be
great or small.
"The third reason advanced by the plaintiff is that the ordi-
nance applies equally to non-residents of the state as well as to
persons residing therein, and provides for no exemption of any
kind.
'*If this ordinance does apply to non-residents of the state,
the argument as to its unconstitutionality could be no stronger,
perhaps, than it if had expressly exempted non-residents of the
state; but this court is«of opinion that the question presented in
this third argument is one of construction of the ordinance and
not as to its constitutionality. If it be unconstitutional to tax
a non-resident of the municipality, as it is claimed the ordinance
in question attempts to do, then the ordinance would be void
simply as to such non-residents, and the court, construing an
2tt CIRCUIT COURT REPORTS— NEW SERIES.
Friable v. CJolumbus. [Vol. XII, N. S.
ordinance constitutional if it can be done, would hold that it
applies to the regular and habitual users of the streets.
* * This is the view which this court takes of this ordinance, and
will be found discussed fully in the case of Pegg v. Columbus,
5 N. P. — N. S., 436. The holding of this branch of the court
that such an ordinance as the one in question is constitutional
has already been upheld by the circuit court (Pegg v. Columbus,
10 C. C. — N. S., 199), which court, however, differed from the
court below with reference to the construction of the statute.
**The plaintiff is a resident of the inuaicipality, and therefore
it is unnecessary for the court to reiterate its views with refer-
ence to its application to non-residents or transients passing
through the city.
*'The court being therefore of opinion that a municipality is
not forbidden by the statute named from enforcing or passing
ordinances regulating the use of its streets, the demurrer to the
petition will be sustained; the temporary restraining order
heretofore granted will be dissolved, and the petition is dismissed
at the cost of the plaintiff.'*
C. D, SavierSf for plaintiff in error.
Marshall, Weinlaud & Hoover, contra.
Allread, J.; Sullivan, J., and Dustin, J., concur.
This action was brought to enjoin the enforcement of so much
of the vehicle license ordinance of the city of Columbus as ap-
plies to automobiles and other motor vehicles. The plaintiff
alleges that he is a tax-payer and citizen of Columbus, Ohio, and
has made request of the city solicitor to bring the suit, and that
the city solicitor has refused. The plaintiff shows no interest or
right of his own liable to be affected. He does not show that he
is an owner of an automobile or that he is otherwise affected by
the ordinance. Serious doubt arises whether the plaintiff has
such interest as to justify his bringing the suit (Cincintuiti v.
Dexter, 55 Ohio St., 93, 113). But in view of its importance,
we have concluded to decide the main question as to the validity
of the automobile license clause of the ordinance referred to.
The contention that the municipal license law as to automo-
biles and other motor vehicles was repealed by the act of 1906
(98 0. L., 320) can not be sustained. That act was clearly un-
constitutional, was not even attempted to ho enforced, and th'*
CIRCUIT COURT REPORTS-NEW SERIES. 27
1^ . . II I I I ■ ■ I ■ I ■ I I ' n
1909.] Franklin County.
repealing clause is not intended* to be effective when the act it-
self is void.
It is claimed, however, that the act of 1908 (99 0. L., 538)
repeals by implication the act authorizing municipal licenses as
to automobiles.
Repeals by implication are not favored, and it is only when
the two acts are wholly repugnant and not capable of reconcilia-
tion that a repeal by implication is upheld. Sutherland, Stat.
Constr., Section 52.
The general scheme of state licenses prescribed by the act of
1908 is not wholly ' repugnant to municipal licenses. Upon
many subjects upon which the state has pifescribed geojeral regu-
lations, authority is also given for municipal legislation. And
upon some subjects, the state prescribes a license and also per-
mits an additional license by municipalities.
Many reasons can be urged for co-existing licenses by the state
and municipalities. The streets of municipalities are under the
special care, supervision and control of the city, and are subject
of large expense in construction and supervision as well in police
regulation. This would justify a special license . for the mu-
nicipality to reimburse it for special cost due to automobile use
of the streets.
Three references are made in the act of 1908 to local regula-
tions which may be considered on the subject of repeal by impli-
cation.
In Section 6 it is provided that **any person to whom an an-
nual 1908 license has been issued by any municipality prior to
the time when this act shall take effect shall be exempt'' from
state license until January 1, 1909. This provision reflects in
some degree a legislative intent to substitute the statute for the
municipal license, but is not conclusive as to justify a repeal
by implication. The postponement of the state license may be
explained upon other grounds.
In Section 23, local authorities are prohibited from regulating
speed of motors except when special authority is granted over
specific highways for speed tests or races. This section deals ex-
pressly with local regulations, and having expressed the sub-
jects upon which the local authorities are denied the power of
28 CIRCUIT COURT REPORTS— NEW SERIES.
PrlBble V. Columbus. [Vol. XII, N. 8.
-■- -— - - — - —
legislation, there is an inference that the Legislature did not
intend to. deny any other power conferred by the then existing
statutes. This inference in favor of existing municipal regula-
tions not expressly repealed more than overcomes the contrary
inference arising from the proviso in Section 6.
The reference to local authorities in Section 15 does not aid
in the construction of the act as to the repeal.
It is urged that the assessment of municipal licenses in every
municipal corporation through which an automobile may be run
would practically destroy the effect and purpose of the license
granted by the state. This contention would be very serious, if
the municipal ordinance is to be so construed as to require pay-
ment of a license from every municipality into which an auto-
mobile may be run in traversing the highways of the state.
This court has, however, in the case of Pegg v. Columbus, 10
C. C. — N. S., 199, construed the ordinance in question to apply
only to a use of the streets which is in some measure at least
** continued or repeated." This construction of the Columbus
ordinance is in harmony with a reasonable and fair use of the
state license and at the same time sustains the Columbus ordi-
nance as being a reasonable and fair charge for continued and
repeated use of the streets by an owner or operator of an auto-
mobile. Marmet v. State, 45 Ohio St., 63.
The court is, therefore, of the opinion that the judgment of
the common pleas court, dismissing the petition, should be
affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 29
1909.] Lucas County.
EXPECTANCIES OF HUSBAND IN FIXING ALIMONY.
Cnrcuit Court of Lucas County.
EusEBE Davis v. Jesse E. Davis.
Decided, January 23, 1909.
Alimony — Property of Husband at Time of Oranting the Decree is the
Proper Basis for Fixing — Naked Expectancies Can Not he Regarded.
^'Expectancy" as applied to property which may be considered in de-
termining a husband's ability to pay alimony does not include the
mere possibility of accession by inheritance from his living parents.
W. T. S. O'Hara, for plaintiflf.
L. M. Murphy, contra.
WiLDMAN, J.; KiNKADE, J., concuFS ; Parker, J., not sitting.
Appeal from Lucas Common Pleas Court.
This is an alimony case, appealed from the court of common
pleas, which entered a decree for alimony in favor of the wife
to the amount of $2,000, probably basing the judgment upon
an anticipation of large property some day coming to the de-
fendant, Jesse R. Davis, by inheritance from his father. Coun-
sel, reserving all questions as to competency, agreed during the
progress of the trial that the father of the defendant is at the
present time worth about the sum of $20,000, the son having
substantially no property in his own name. We have supple-
mented the research made by defendant's counsel seeking to
ascertain whether the courts of the various jurisdictions of tht»
country have been called upon to pa.ss upon the admissil)ility of
this class of evidence, or to put it in another form to ascertain
whether they have determined that, in alimony cases, the court
may aid itself in arriving at what would be a just allowance by
recourse to the expectancies of the husband. We have been un-
able to find authorities in which the question is directly raised
and passed upon; but cases are nmnerous to the effect that the
property of the defendant as it existed at the time of the decree
is the proper basis of the allowance, considering, of course, the
80 CIBCUIT COUET BBPORTS— NEW SERIES.
Davis V. Davis. [Vol. XII. N. S.
necessities of the plaintiff and the nature of the case in other
respects. We feel quite clear that the evidenpe of defendant's
expectancy of inheritance ought not to be taken account of by us.
A mere naked expectancy Is one which may never bear fruit;
it may not result in bringing to the party against whom a judg-
ment is rendered any property whatever out of which a judg-
ment might be satisfied, and the result of entering a large de-
cree would be to impose upon him a burden of debt which he
might never have the means of satisfying. Perhaps for this,
among other reasons, courts have retained jurisdiction in many
cases, so as to permit the modification of decrees at subse(|uent
dat(»s according to changed conditions.
1 wish to call attention to some language in Mr. Bishop's
work on Marriage and Divorce with • reference to the power of
maintaining such continuing jurisdiction, but before doing that,
in reference to the question which I have just been considering
relating to the effect of the expectancy of a large property, we
may properly refer to the section of our statute which makes
provision for alimony. It is Section 5699, Revised Statutes,
and provides, substantially, that the court may allow alimony
out of the property of the defendant. While counsel have agreed
that the defendant's father is financially responsible, or has
property to the amount of $20,000 as estimated, there has been
no concession that the father has not made a will and devised
or bequeathed all of this estate in some other direction than to
his son. For aught that appears, the father may have resolved
in his own mind to this effect and he may even have crystalized
that resolution in a valid will and testament disposing of the
property by gift to some other relative, to some charitable insti-
tution, or in some other way to have provided that it shall take a
different course than to pass by descent to the son, and Avithout
any light on this subject it would be hard for us to say that the
son has such an expectancy that ought to be considered here,
oven if it were otherwise permissible.
The case of Cox v. Cox, 20 Ohio St., 439, is thought by coun-
sel for plaintiff to bear somewhat upon the decision of this ques-
tion, and it does so, although it comes in the form of a dictum
of the Supreme Court. It is not necessary to read the case, but it
CIRCUIT COURT REPORTS— NEW SEMES. 81
1909.] Lucas County.
appears that after the allowing of a decree by an Indiana court,
property came to the husband by inheritance. At a later date and
subsequent to this accession to his property, a proceeding was in-
stituted for alimony, in Ohio, and the Supreme Court held that
this new property might properly be taken account of and judg-
ment rendered accordingly; and in coming to that conclusion
the Supreme Court expressed the dictum as follows:
• '*The court has a broad discretion in determining the amount
of alimony. In a proper case there is no good reason why the
court may not, among other things, look to and regard what the
husband has in expectancy, as well as that which he has in pos-
session. Here, however, the court were not called upon to do
so. The expectancy had become realized and become part of the
husband's estate.*'
This language is entitled to the highest respect, but it not au-
thoritative as it would have been if essential to the determination
of the case considered by the Supreme Court.
In 2 Bishop, Mar. & Div. (Ed. 1891), Section 895, the author
uses this language:
**If the husband has a vested estate, of which he is to have
possession only on the death of another person, so that it brings
him no immediate income, yet it is a thing oif value under his
control, some estimate must be made of it among his faculties.
Precisely its effect will depend on shifting complications of cir-
CTimstances, not admitting of being stated in the form of a rule.
*I think,' said Dr. Lushington, *that with regard to permanent
alimony the court would make a different allotment in a ca.se
where the income of the husband was derived from his solo
personal labor or exertions, from what it would do when he had
moreover a large reversionary property in expectancy.' "
Now it is probable that the Supreme Court, in the language to
which I have referred in the case of Cox v. Cox, supra, intended
by the expression *' expectancy " just such an expectancy as Mr.
Bishop mentions in the paragraph a part of which I have read.
The author was not considering a mere naked expectancy. If
we should so interpret the lan-guage of the Supreme Court of
Ohio, it would be altogether consistent with the general current
«»f authority holding that all the powers of the husband, his
82 CIRCUIT COURT REPORTS— NEW SERIES.
Davis V. Davis. [Vol. XII, N. 8.
bodily and mental health, his skill as an -artisan or a professional
man, his power to earn wages or a salary, may be taken into
account. We are inclined to the view that we ought not to take
into account the estimated value of Jesse Davis' expectancy of
inheritance and base upon it a decree of alimony against him.
It may be a matter to consider determining whether or not we
shall decree alimony in gross, or whether we shall retain juris-
diction of the case for such consideration as we might have the
power and right to give it upon any changed circumstances of
the parties.
I will not go over the evidence which has been offered concern-
ing these parties, the conditions of their health, the necessities of
the one or the ability to supply them on the part of the other.
We have concluded to render a decree for alimony to the
amount of two dollars a week, and we will retain jursidiction of
the case for such consideration as may be proper in the future
and as we may have the right to give. The order which we make
does not disturb any order which may have been made as to
temporary alimony, nor does it of course disturb in any way the
order which the court of common pleas has made as to the main-
tenance of the child, the custody of which was given to the wife.
As to that we have no power of interference.
CIRCUIT COURT REPORTS— NEW SERIES. 88
1909.] Franklin Ck)unty.
CONSTRUCTION OF THE COMPULSORY EDUCATION ACT
WITH REFERENCE TO VACCINATION.
Circuit Court of Franklin County.
The State op Ohio v. L. M. Turney.
Decided, January Term, 1909.
Schools — Child Expelled Because not Vaccinated — Parent Prosecuted
Under the Compulsory Education Act — Limitation on the Power
of Boards of Education to Make and Enforce Rules — Section S986.
A parent who sends his child to a public school and Is willing to con-
tinue to do so, but the child is excluded for failure to comply with
a rule of the board of education requiring vaccination, Is not liable
to conviction under the compulsory education act.
Chas. E. Carter, Assistant City Solicitor, for plaintiff in error.
David K, Watson and Dewitt C. Jones, for defendant in error.
Allread, J.; Sullivan, J., and Dustin, J., concur.
The question involved in this case is whether a parent can
rightfully be prosecuted and convicted under the compulsory
education act, when he sends the child to school and is willing
to continue, but the child is excluded for failure to comply with
a rule requiring vaccination.
The compulsory education act provides that ** every parent,
guardian or other person having charge of any child between
the ages of eight and fourteen years, shall send such child to a
public, private or parochial school," etc., and that '*any parent,
^ardian or other person having the earo of a child between
the ag«s of eight and fourteen years who shall, in violation of
the provisions of this section, fail to place such child in school,*'
etc., shall upon conviction, be fined, etc.
It is a fundamental rule, applicable to all penal laws (State
V. Myers, 56 0. S. 350), that *'a statute defining a crime can
not be extended by construction to persons or things not with-
in its descriptive terms, though they may appear to be within
the reason and spirit of the statute. Persons can not be made
subject to such statute by implication. Only those transac-
84 CIRCUIT COURT REPORTS— NEW SERIES.
State V. Tumey. [Vol. XII, N. S.
tions are included in them which are both within the spirit and
letter; and all doubts in the interpretation of such statutes are
to be resolved in favor of the accused."
Section 3986, Revised Statutes, provides:
<(
The board of each district may make and enforce such rules
and regulations to secure the vaccination of and to prevent
the spread of small-pox among pupils attending or eligible to
attend the schools of the district, as in its opinion the safety
and interest of the public require."
Under this authority the board of education of the city of
Columbus adopted a rule that no pupil should attend any public
school, unless the pupil shall have had the small-pox or been
vaccinated.
It may be noted that Section 3986 is found in a chapter en-
titled ** provisions applicable to all boards. '\ It does not pre-
tend to be penal.
The terms **send such child to school" and *Vplace such child
in school," found in the compulsory education act, may be read
together and as synonymous, and may and probably do ex vi
termini include such preparation and conformity to usual rules
as reasonably follow from the use of these terms in popular and
general acceptation.
The compulsory education act was obvious'y intended to meet
the cases where the parent was indifferent to the attendance of
the child, and made no effort to cause the child to attend the
schools. The act was certainlv not intended to be used as a
means of enforcing any rule which the board of education in
the plentitude of its general powers might see fit to adopt.
Such a construction would give the board of education the
power by indirect means of criminal legislation not only against
the pupil but the parents.
To so hold requires clear legislative expressions and the au-
thority can not be sustainetl by inference or implication. The
accused is to have the benefit of the doubt.
It must be observed that after conferring upon boards of
education general power to make rules, special authority is
conferred by the Legislature as to vaccination.
CIECUIT COURT REPORTS— NEW SERIES. 86
1909.] Franklin County.
By the clear weight, if not the universal trend of authority,
it is held that a general order or rule adopted by a board of
education requiring vaccination of pupils, except in the emer-
gency of an actual impending epidemic, can only be sustained
by direct and specific legislation. Potts v. Breen, 167 111., 67 ;
Mathews v. Bd. of Ed., 127 Mich., 530; People v. Bd. of Ed.,
234 111., 422; Adams v. Burdae, 95 Wis., 390; Osborne v. Rus-
sell, 34 Kan., 507 ; In re Smith, 146 N. Y., 75.
Crew, J., in State, ex rel, v. Board of Education, 76 0. S., 297,
holding valid the rule of the board of education excluding a
pupil not vaccinated, expresses as one of the grounds of the
decision that no question of compulsory vaccination was in-
volved, but only the right of exclusion from the public schools.
He quotes with approval from the case of Bissel v. Davidson,
65 Conn., 183, that the statute providing for vaccination **does
not authorize or compel compulsory vaccination. It simply re-
quires vaccination as one of the conditions of the privilege of
attending the public school.''
These cases rest upon the well-recognized principle that acts
derogatory of common right and abridging personal liberty
are, like penal laws, to be strictly construed in favor of the
citizen, and that the Legislature alone as the sovereign power
can declare the necessity, and it must do so expressly; other-
wise the intention will not be inferred.
The power delegated by the legislative act to the board of
eduTiation is to '*make and enforce such rules and regulations,
etc., to secure vaccination,'' etc.
Under the rule of strict construction the delegation of power
to the board to '*make and enforce" rules does not contemplate
any other penalty for a violation of the rule than those which
the board has authority to inflict, viz., suspension or exclusion
from the schools of which they have control.
This conclusion is directly supported by Comtnon wealth v.
Smith, 7 Pa. Dist. Repts., 625, and a dictum in Morris v. (Utij of
(Jolumbus (Ga.), 42 L. R. A., 175. The contra is found in the
opinion of Mathews v. Bd. of Education, supra.
The holding of In re Smith, supra, is that express legislative
authority is required to quarantine a citizen who refuses to be
88 CIRCUIT COUBT BEPORTS— NEW SEBIBS.
state V. Turney. [Vol. XII, N. S.
vaccinated. It does not follow from a law giving general au-
thority to the board of health to adopt rules.
Counsel for the board of education contend that the exclusion
of the child from the public schools does not relieve the parent
from the obligation under the compulsory education of seeking
its admission into a private or parochial school.
While it is true that the parent is required by the act to send
his child to a public, private or parochial school, yet the election
is with the parent. The character of our system of public
schools and the manner in which they are sustained, do not
justify us in hoMing that whare a child is excluded from the
public schools — because in some degree supposed to be an
** undesirable citizen'' — that the parent is compelled to seek
its admission in a private or parochial school.
There is no presumption that the child if rejected by the
public schools would be received in a private or parochial school,
or a school of some other district, and therefore in the last
analysis the question of compulsory vaccination comes up.
If exclusion for failure to comply with the rule of a public
school as to vaccination is no defense to a prosecution under the
compulsory education act, then the exclusion for violation of a'
similar rule as to private or parochial or other district schools
would be no defense, and we would then be face to face with a
compulsory vaccination law.
Besides the father elected to send his child to the public
school, and claims that he did so, and offers to continue to (fo so.
The validity of his convictions must rest upon proof of his
sending or failing to send his child to the public schools.
There is no claim that the violation of the rules was a color-
able pretext to justify a child of truant disposition and screen
an indifferent parent. The evidence shows the child was will-
ing to go to school and tho parent anxious to have it go.
In this state of facts the conviction was unlawful and the
judgment of the court of common pleas reversing the conviction
and discharging the defendant is affirmed.
ClftOUlT COUET REPORTS— NEW SERIES. 87
^909.] Lucas County.
COMPETENCY Or PAROL EVIDENCE TO SHOW THAT NOTES
WERE NOT TO BECOME EPPECTIVE WITH
DEUVERY.
Circuit Court of Lucas County.
Starr Piano Company v. Martha J. Edq.vr.
Decided, January, 1909.
Negotiable Inttruments Late — Delivery of Notes Secured by Chattel
Mortgage— Oral Agreement as to When Notea are to Become Ef-
/ec^iMil— OoiMtmction of Section SlJOo — Burden of Froof-^Evi*
denoe.
It iB clear that under Section 81700 of the negotiable instruments law,
it is admissible to prove by parol evidence that a promissory note
was not intended to become effectual until the happening of a
specified event at some date subsequent to its delivery; and ixi'
asmuch as a chattel mortgage is an incident only of the debt and
can not be made any more than that by its terms, the rule is not
changed by the fact that the note iS secured by such a mortgage.
KiNKADE, J.; Parker, J., and Wildman, J., concur.
This was an action in the court below to recover the price of
a piano alleged to have been sold to the defendant by the Starr
Piano Company. Judgment below was rendered for the de-
fendant and the ease is here on (»rror to reverse this judj?ment.
Counsel stated in opening the case that the main ground of er-
ror is that the veridet was not supported by the evidence and is
jigainst the evidence; also that incompetent evidence, parol evi-
dence, was admitted to vary the terms of a written contract.
I may say that in the matters other than those two points we
find no error, and we may dismiss the balance of this case.
On this point of the evidence not being sufficient to sustain
the verdict and on the incompetency of the evidence we have
given the case and the authorities cited by counsel as close at-
tention as we can give it. It is contended, taking up first the
question of the incompetent evidence said to have been ad-
mitted, that inasmuch as the defendant in the ease, Martha J.
Edgar, went to the store of the Starr Piano Company, and
As Ciftcult (JouttT b£t»oli*S-NteW SfifilES.
Starr Piano Co. v. Edgar. [Vol. XII. N. S.-
there had some form of negotiations or dealing or talk that re-
sulted in the execution of forty-five or forty-six notes and a
chattel mortgage securing the same, that any parol evidence as
to what took place at the time between the representatives of
the Starr Piano Company and the signer of the notes and the
mortgage must be excluded; that the maker of the notes and
mortgage is entirely concluded by the written contract thus
evidenced by the notes and by the mortgage, and that the parol
proof which sought to attach a condition, to-wit, that Mr. Edgar
should be satisfied with the price, if not with the piano, was
wholly incompetent; and I think it may be conceded that with-
out that proof the judgment could not, of course, be main-
tained.
It is coiltended here by the plaintiff in error that there is
clear prejudicial error on the part of the court in admitting
that proof. Our attention is called to 52 0. S., 64. The first
clause of the syllabus is:
** Evidence of a parol agreement made at the execution and
delivery of a note, by which it is not to be operative, unless,
within a given time, the makers are able to realize a given sum
of money from property purchased, and for which the note was
given, is not competent.
»»
i
This is a case in which a note wa.s given for a patent right, and
it was sought to prove in defense of an action brought to re-
cover on the note, that there was a verbal agreement at the time
that if the party were not able to make .$1,750, if I have that
amount correct, out of the patent by the time the note fell due,
the note was to be null and void, and the Supreme Court said
this evidence, relating to a condition subsequent, violated a
written contract, and was at variance with the rule that parol
evidence should not be permitted to disturb the certainty of a
contract reduced to writing. ^\nd counsel cites this case as
authority for the present case.
It is contended by counsel on the other side that this evi-
dence is competent for the reason that it tends to show that no
agreement was ever entered into and that any evidence which
thus tends is competent. If it is evidence that tends to show
that the notes and mortgage were delivered for a specific pur-
CIllCUlT COURT REPORTS— NEW SERIES. 8«
1909.] Lucas County.
pose, but were not to become operative until the happening of
an event, that that must be a condition precedent, and that evi-
dence of that kind is admissible for the reason that it tends to
show that no contract ever existed at all; it does not vary the
contract, but simply shows that no contract ever existed, and we
are cited to a large number of authorities on that point collected
in the Digest, and Sections 578 ft seq, of EUiott on Evidence,
and a large number of authorities, all of which we have ex-
amined, and a good many of which may perhaps justly be
claimed to be at variance with the 52 0. S. Reports. But coun-
sel for the defendant in error contends that no matter what the
rule may be on the law generally, that he is not obliged to rest
the defense on that ground, on account of the peculiar wording
of our negotiable instrument law which took effect the first day
of January, 1903, and particularly as found in Section 3171o.
That section reads: '
'* Every contract on a negotiable instrument is incomplete
and recoverable until delivery of the instrument for the pur-
pase of giving effect thereto. As between imm^iliate parties,
and as regards a remote party, other than a holder in due course,
the delivery, in order to be effectual, must be made either by or
nndei; the authority of the party making, drawing, accepting or
endorsing, as the case may be ; and in such case the delivery may
be shown to have been conditional, or for a special purpose only,
and not for the purpose of transferring the property in the
instrument. But where the instrument is in the hands of a holder
in due course, a valid delivery thereof by all parties prior to
him so as to make them liable to him is conclusively presumed.
And where the instrument is no longer in the possession of a
party whose signature appears thereon, a valid and intentional
delivery by him is presumed until the contrary is proveil."
Under the section the burden, of course, with the notes and
the mortgage found in the hands of the piano company, of prov-
ing they were not delivered and the condition did attach, if ad-
missible at all, is on the defendant in error in this case. We
have read the evidence through as to what the witness said con-
cerning this whole transaction. It is a case that was tried to a
jur>' below and a verdict returned for the defendant.
The question first that we have to determine is as to the eampo-
tency of this evidence, whether you may prove by parol that a
40 Oittdun: COUttT ftEt»0ftT8-NEW SERIES.
■^MtfM
Starr Piano Co. v. Edgar. [Vol. XII, N. S.
?
promissory note was not intended to have effect, was not de-
livered so as to have effect, and that if it took effect at all, it was
to be on the happening of a given event at a later date subse-
quent to the delivery. We are very clear that under this sec-
tion of the statutes that may be done with reference to a promis-
sory note. *
It is said, however, that the chattel mortgage in this case ex-
cludes such proof, because by the terms of the chattel mortgage
which are set forth in plaintiff in error's brief, the parties
have there declared that the notes have been delivered, that they
there declared that which is equivalent to saying that the notes
have been delivered, and that they have been delivered with a
view of taking immediate effect, and that the contract has gone
into effect, and consequently that they have fixed it by the chattel
mortgage as a condition subsequent which takes it out from
under the scope of Section 3170 and places it squarely under the
decision in the 52 0. S., page G4.
There is some force in this contention of counsel, and we hava
considered it and considered It fully, and we think the chattel
hiortgage Is only an incident of the debt, and regardless of it^
terms can be held to be nothing more ; that if the debt fails, the
mortgage fails also, the security being only an incident to the
debt.
Therefore we find that there is no error in the court of com-
mon pleas in admitting the parol proof, for the purpose of es-
tablishing a condition which Mrs. Edgar contends existed with
reference to the execution and delivery of the notes and mort-
gage.
And this loaves but the other question, im to whether the evi-
dence in this case sustains the verdict for the defendant. There
is considerable conflict in the evidence between Mr. Robison and
Mr. Wheeler and Mrs. Edgar as to what took place, and be-
tween Mrs. Bergeron and Mrs. Price and the other ladies at whose
house she called, as to what she said there along the line of im-
peaching her testimony. There is a good deal of conflict in the
evidence and we think it is precisely the kind of a case that a
jury is far better qualified to settle than a court. We have read
it w^ith a view of determining whether the evidence in the case
OIRGUIT eOUSf REPORTS-NEW SERIES. 41
1909.] Richland County.
sustains th€ verdict. Every presumption is in favor of the ver-
dict and we should not disturb it, unless it is manifestly against
the weight of the evidence. We have read thie evidence with
care and some points perhaps in the argument of counsel for
plaintiff in regard to the evidence may be said to be well taken,
but upon the whole we think the evidence in this case justifies
the verdict, and we are very clear that the evidence does not
justify this court in disturbing the verdict, and for that reason
the judgment of the court of common pleaa rendered upon this
verdict will be aflSrmed.
USTORATiON or MONEY TO INSOLVtNT AFTiR
ASSIGNNtNT.
Circuit Court of Richland County.
M. J. Prirdmam et al v. Adam Mitz st al.
Decided, January, 1909.
Debtor and Creditor—Fraudulent Transfer of Money in Contemplation
of Assignment — Money Jtestored to Assignor After Assignment —
Action hy Creditors for an Accounting.
One who with knowledge of the Insolvency of another and his con-
templated general assignment for the benefit of creditors, receives
from the insolvent a large sum of money and gives due bills there-
for, holds the money in trust for the creditors, and can not ab-
solve himself from liability therefor to the creditors by returning
the money to the insolvent personally after the assignment has
been made, especially where there was no disclosure to the as-
signee of such restoration.
CummingSf McBride dt Wolfe, for the plaintiffs.
Douglass & Meiigert, contra.
Taqoart, J.; Donahue, J., and Shields, J., concur.
Appeal from the Common Pleas Court of Richland County.
The plaintiffs, a partnership, brought suit against Adam ^litz
and Michael Saunders, alleging that shortly before August 27,
1904, the said Mitz, in contemplation of in5|olvency, and with the
ii ClftCUlT COUftl" llBPORTS— NEW SEUIES.
r — —
Friedman et al v. Mitz et al. ' [Vol. XII, N. S.
intent to delay, hinder and defraud the plaintiffs and other credi-
tors, secretly and fraudulently transferred to defendant, Mi-
chael Saunders, $3,800 in money; that, at the time of said
transfer and assignment, Saunders had full knowledge of the
insolvency of said Jlitz and full knowledge of the purpose
of said assignment; and that said Saunders, in furtherance
of said fraudulent design, and for the purpose of defrauding
the creditors of said Mitz out of said money and property,
accepted said money. That, shortly thereafter, on August 27,
Mitz executed and delivered to one Mr. Marquis his deed of
assignment conveying all of his property to be administered
by said Marquis for and on behalf of his creditors. Said
deed was duly filed in the probate court and the assignee duly
qualified, but, on account of said fraudulent , transfer, none
of the said money ever came into the hands of the assignee
and was not administered for the benefit of the creditors.
That, in the administration of said trust, there was applied to
the payment of plaintiff's claim $44.95 and no more; and that
they made a demand ia writing on said Marquis, as said assignee,
to recover said property so fraudulently conveyed, and that said
Marquis has failed and neglected so to do. They pray that
the transfer of said money from Mitz to Saunders be declared
void, as against the creditors of Mitz, and that a trustee be ap-
pointed to administer that property to the e(\\ml benefit of all
f'H'ditors and 'for oth(»r relief.
To this petition the defendant, Saunders, filed his answer. In
the second paragraph of his answer he admits that Mitz, some
time before the assignment, placed in his hands $3,800 in money.
The dates of the payments are set out and are between August
10, 1904, and August 27, 1904. He further alleges that, at the
time he received this money, he delivered to Mitz due bills and
sets forth copies of the due bills. In the third paragraph of the
answer he says that on October 24, 1904, Adam Mitz demanded
said money and it was turned over to him on said date, and that
he has not .since had any of said money; that, while he had said
money in his possession, he did use some of it in his business,
but that on demand the whole amount of it was repaid to Mitz
on October 24, 1904.
eiftemT eotJST SEPOBTS-Mfiw series. 48
1909.] Richland County.
It thus appears from the pleadings and the admitted facts in
this ease that Saunders, with the knowledge that Mitz was in-
solvent and contemplated a general assignment for the benefit
of his creditors, received from Mitz, shortly prior to August 27,
1904, $3,800; that, on August 27, Mitz made a general assign-
ment of all his property for the benefit of all his creditors; that
thereafter, about October 24, Saunders claims he returned this
money to Mitz, he then knowing that the assignment had been
made. It is admitted in this case that the plaintiffs are a partner-
ship and that they are creditors of Mitz.
Upon this state of facts, it is contended, although the origi-
nal payments by Mitz to Saunders were made with the knowledge
of insolvency, and that Mitz contemplated an assignment, that
Saunders is absolved, if the proof establishes the fact that he
has paid the money over to Mitz on demand. With this conten-
tion we are not in accord.
When Mitz made an assignment to Marquis, he transferred all
of his property to Marquis, he assigned his personal property and
conveyed his real estate. The property ceased to be the prop-
erty of Mitz; he ceased to l>e the owner thereof. It was then
the property of Marquis, as trustee for the benefit of his credit-
ors. Marquis was the trustee, the creditors were the cestni que
trust. This money became impressed with this same character
as much as any other personal property. Therefore, if this
fraudulent transferee desired to piirge himself from any personal
responsibility or to secure immunity from accounting for the
same, it became his duty to return it to the person or persons en-
titled thereto. lie had no right or authority to transfer it or
return it to Mitz, because Mitz was not entitled to receive it and
the payment or return to him would not absolve Saunders from
liability.
This is the holding in Swift v. Holdridge. 10 Ohio, 280, 231.
Judge Lane, speaking for the court, says:
*'An honest man will not take a fraudulent conveyance. If
a man holds property fraudulently conveyed, as soon as he comes
to a sense of his moral duty,/ie will restore it to those to whom it
belongs; he ought to give it back to him from whom he received
it, that it may be applied to his debts if wanted, or to his benefit
44 ClftCDlT COURT REtOftTS— NEW SERIES.
Friedman et al ▼. Mits et al. [Vol. XII, N. 3.
if not necessary for this purpose. The law, to discourage frauds,
does not compel him to restore it to the fraudulent grantor, yet
no man will retain it for a moment who desires the reputation
of honesty or possesses a sense of justice."
It appears from the testimony in this case that Saunders not
only did return it to the fraudulent grantor or transferrer, but
he remained quiet, made no disclosure to the assignee in trust
for the benefit of his creditors. In our opinion, after the assign-
ment was made, he had no right whatever to turn this money
back to Mitz.
It is objected that proof of repayment ought not to have been
admitted, but we think that that does not absolve Saunders, and
his statement that he gave it back to Mitz only gives color and
force to tbA conclusion that this disposition of the money was a
cunningly devised scheme to cheat and defraud the creditors,
and if that is to meet the approval of a court of justice, then we
have discovered a new and sufficient way to commit a fraud and
receive the Sanction of a court of equity.
Let us suppose that Mitz had died, and Saunders, attempting
to absolve himself from personal responsibility had sought to
restore the property to whom it belonged, the only person to
whom he could have returned the property would have b^en the
administrator of Mitz, in which event it would have been ap-
plied t^ the payment rf Mitz's debts. As we have said, when the
assignment was made, there was a trust imposed upon this prop-
erty, and we think the statement in Robertson v. Desmond, (12
Ohio St., 487, 498, has peculiar application:
**The trust imposed u[>on the property remained unimpaired;
and also the right of any one of them [referring to creditors] to
commence a suit in the proper court, making necessary parties,
to have the character of the transfer ascertained and determined,
and a trustee appointed to administer the trust. Whether Robert-
son retained the property or not in no way impaired this right.
If he had retained the property or disposed of it, other than by
restoring it to Roth, a different case would have arisen. In such
a case he might as well have been required to account for it at
its value. This is fairly deducible from accurate principles as
well as from the following cases : • • • That these cases re-
late to instances where there had been a fraudulent convenyance
CIRCUIT COUBT REPORTS— NEW SERIES. 46
1909.] Lucas County.
does not affect the principle upon which they pi*oceed. So far
as moral turpitude is concerned, there is little or no difference
between one who takes a conveyance in fraud of creditors and
one who takes a conveyance of trust for the benefit of one or more
creditors."
Therefore, we think this transfer of this property should be
declared to be a fraud on the rights of creditors, made with the
intent to hinder, delay and defraud them and, as the proof does
not show that there was a restoration on the part of Saunders to
the parties entitled thereto, he should be held responsible and *x)
account for the same.
The judgment and decree of the court may be entered in ac-
cordance with this opinion.
CORRECT TITLE NECESSARY IN FROCEEMNCS IN ERROR..
Circuit Court of Lucas County.
Samuel S. Ricard v. Oeorge F. Porter.
Decided, January 23, 1909.
Error — Proceeding in Essentially a New Case—Can Not be Instituted
in the Name of a Decedent and Executor Thereafter Substituted —
Jurisdiction — Service of Summons — Waiver,
Waiver of service of summons in a proceeding in error against a de-
ceased person by an attorney for the executor of tlie deceased gives
the circuit court no Jurisdiction, and the plaintiff in error can not
cure the defect by adding or substituting the name of the executor.
W. A, Oilly for plaintiff in error.
Potter & F oiler y contra.
WiiJJMAN, J.; KiNKADE, J., concurs ; Parker, J., not sittiusj.
Motion to dismiss petition in error.
This case was begun in the court below by Samuel S. Ricard
against George P. Porter, but Porter having died pending the
suit it was revived as against his executor, Henry E. Fletcher.
Instead of bringing the proceeding in error in this court against
the executor as defendant in error — the judgment being in his
46 OIBCUIT COURT REPORTS— NEW SERIES.
Ricard v. Porter. [Vol. XII, N. S.
favor in the 6ourt below upon his substitution for the original
party who had died — a proceeding was instituted in this court
bearing the same title as the case had borne in its inception in
the court of comon pleas, to-wit, Samuel S. Ricard against
George F. Porter. Counsel seem, by some inadvertance, to have
overlooked the fact that a proceeding in error is essentially a new
case, re(iuiring a petition and service of summons, or waiver
thereof by the defendant; that it is not like an appealed case
which goes into the appellate court bearing the same title which
it had in the court below, and without the necessity of service
of process of any kind upon the defendant. To cure the trouble,
plaintiff in error asks leave to amend his petition by adding or
substituting the name of the executor for the name of the de-
cedent. We have examined the authorities, which are somewhat
meager, bearing upon the question, to determine whether >ve have
jurisdiction upon which we can base any authority to permit
the amendment of the petition — which we should be glad to do if
we had the power to do it — but we are confronted with the case
of Kennard v. Kennard, 35 Ohio St., 660, where a situation arose
not precisely the same, but so near it as to throw great light upon
our duty. The syllabus is as follows:
** Proceedings in error can not be instituted in the name of a
deceased party ; if the heirs or legal representatives of such partj'
seek to institute such proceedings, they must do so in their own
names."
The p(*tition in error in the cited case which went up from
Uutlcr county to the Supreme Court, was filed on September 22.
1S79, to reverse a judgment rendered by the district court of
Hutler county, April 21, 1877, in favor of George W. Kennard
against George G. Kennard. At the time of the filing of the pe-
tition in error the nominal plaintiff in error was deceased, he
having died on April 8, 1878. Mary Ann Bartlow and others,
his heirs at law, moved the court to revive the proceedings in
error in their names. The decision is pvr curiatn. It is very
short and 1 will read it :
*' George G. Kennard, the alleged plaintiff in error, havinjr
died before the filing of the petition in error, the attempt to in-
stitute a proceeding in error in his name was ineffectual. To
CIRCUIT COURT REPORTS— NEW SERIES. 47
1909.1 Lucas County.
constitute a proceeding in error, there must be a plaintiflP in error.
If there is no plaintiff in error, the court acquires no jurisdic-
tion of the cause. If the heirs or legal representatives of a
deceased party seek to institute proceedings in error they must
do so in their own names, and not in the name of the decea.sed.
"Motion overruled and cause stricken from the docket.''
This was a case where the nominal plaintiff in error was the
person deceased. In the case before us it is the 'nominal de-
fendant in error, but the language of the Supreme Court and th(i
reason for it manifestly are as pertinent to the one case as to the
other. It is as essential that there should be a defendant as that
there should be a plaintiff, and if there is no defendant in error,
then upon parity of reasoning, the court has no jurisdiction of
the case. The court there refused the application of the legal
representatives to revive the proceeding in error in their names,
and that is substantially the same as the attempt which is made
here to amend the pleading by substituting the name of the ex-
ecutor for that of the decedent. We see no escape from this
case, and, indeed, before discovering it, we felt strongly impelled
by our own reasoning to arrive at the same conclusion.
The case of Kennard v. Kennard, supra, was approved, with-
out report, in Waldron v. Fuchs, 62 Ohio St., 633. The case of
Smelters v. Kaimy, 14 Ohio St., 287, is somewhat in point and
it was approved in Burke v. Taylor^ 45 Ohio St., 444, and should
be read in connection with the case to which I have referred.
The case of Ahair v. Bank, 3 C. C 290, decided by the circuit
court of this circuit, the opinion being pronounced by Judg^
Scribnier, is also to some extent in point. I cite it without read-
ing it.
Our judgment is that the motion for leave to amend the pe-
tition should be overruled and that the motion filed by the ex-
ecutor fur a dismissal of the petition in error should be sustained
48 CIRCUIT COUBT REPORTS— NEW SERIES.
Kauther v. Vigransky. [Vol. XII, N. S.
FAILURE OP PROOF AS TO AGENCY.
Circuit Court of Hamilton County.
Kauther v. Vigransky bt al.
Decided, December 19, 1908.
Error— Not Muteriah When — Verdict Sustained by Evidence — Alleged
Agency in the Sale of Real Estate — Claim of Fraud not Supported,
Errors of law, if any occurred during the trial of the case, are not pre-
judicial where the verdict is fully sustained by the evidence.
Walter Schmitt, for plaintiff in error.
Prescott Smith, contra.
The plaintiff was the owner of property on Martin street,
Cincinnati, and alleged that the defendants represented to him
that they had a purchaser for $1,000, and the property was sold
at that figure. Plaintiff alleged that he subsequently learned
that the real price paid to defendants for the property was
$1,200, and he sued for the $200 difference.
Smith, J. ; Swing, P. J., and Gifpen, J., concur.
Upon examination of the record in above case the court is of
the opinion that the verdict is fully sustained by the evidence.
The evidence does not substantiate the claim of plaintiff in error
as set up in the petition, that defendants were his agents and
that fraud was practiced upon him. On the contrary, he em-
phatically denies such relationship and practically admits the
claim of defendants in error.
Any errors of law that may exist, if in fact any such do exist,
are therefore not prejudicial to plaintiff in error and the judg-
ment of the trial court is affirmed.
CmCUIT COURT REPOBTS— NEW SERIES. 49
1909.] Franklin Ck>unty.
CONTROL OP COAL COHPANIES BY OHIO RAILWAY
CORPORATIONS.
Circuit Court of Franklin County.
State, ex rel Attorney-Qeneral, v. The Hocking Valley
Railway Co.
Decided, April 24, 1909.
Monopoly and Restraint of Trade — Illegal Otonership by Railway Com-
pany of Stock of Coal Mining Company — ChMrantee of Coal Mining
Company Bonds by Single Railway or by Competing Railways is
Ultra Vires — Otonership of Majority Stock of Competing Road —
Construction by Coal Mining Company of Railroad as an Outlet —
Does not Constitute such Coal Mining Company a Railway or Kin-
dred Company^-Control and Combination m^iy be Shown by Cir^
cumstances — Quo Warranto— duster as to the Illegal Acts — Sec-
tions S256 and SSOO. ,
1. A railway company, incorporated under the laws of Ohio, has no au-
thority to acquire and hold shares of the capital stock of a com-
pany incorporated to mine and deal in coal; and especially is this
so when the shares of stock so held constitute a majority or con-
trolling interest in such coal mining company.
2. The control and management of a coal mining company by a rail-
way company upon whose road the coal company is a shipper,
through stock ownership, tends to monopoly and restriction of trade
and competition, and is therefore unwarranted and illegal.
3. An incidental purpose in the charter of a coal mining company to
construct a railway from its mines to a railway or other outlet,
does not constitute such coal mining company a railway or kin-
dred company, so as to make applicable Sections 3300 or 3256,
Revised Statutes, authorizing a railway company to subscribe for
and hold stock in another railway or kindred company.
4. The indorsement and guarantee of the bonds of a coal mining com-
pany by a railway company Is ultra vires: and so also is an agree-
ment between railroad companies operating parallel and naturally
competing railroads to indorse and guarantee the bonds of a coal
mining company, in consideration of an equal division between the
railway companies of all freight to and from the mines of the coal
company.
5. The ownership of a majority or 'controlling stock by one railway
company of another railway company owning and operating a line
of railway a substantial part of which is, in its general nature,
BO CmcmT COURT REPORTS— NEW SERIES.
state, ex rel, v. Railway Co. [Vol. XII, N. S.
parallel to, and naturally and actually forming a part of a par-
allel and competing system to that of the stockholding company,
is illegal and unwarranted.
6. The control and management by one railway company of another
operating parallel and competing lines or system of railways,
through combination, may be shown by the circumstances; and a
unity of stockholding interests together with unity of manage-
ment pursuant to an established plan to that effect, is sufficient
proof.
7. In cases where the right is doubtful and has not been adjudicated or
finally settled, and the illegal acts have not been persistent, de-
fiant and flagrant, the appropriate relief to be afforded in an ac-
tion of QUO warranto against an offending cori>oration assuming
to exercise unauthorized powers, is to stop the abuse by ousting the
corporation from the right to do the illegal acts or continue the
unauthorized business.
Wdde H. Ellis, Attorney-Qeneral, Smith W, Bennett and E,
C\ Morton, for plaintiff.
James H. Hoyt, Doyle, Lewi^ & Shauffelberger, and C\ O.
Hunter, coatra.
Allread, J.; SuLUVAN, J., and Dustin, J., concur.
This action was brought to oust the defendant, the Hocking
Valley Railway Company, from the exercise of its charter powers.
The charter among other things authorizes the defendant 1o
' * acquire the real and personal property, road-beds, right-of-way
fixtures and franchises formerly of the Columbus, Hocking Val-
ley & Toledo Railway Company • • • and generally to pos-
sess, exercise and enjoy all the rights, liberties, faculties and fran-
chises formerly of the said the Columbus, Hocking Valley &
Toledo Railway Company and all the consolidated railroad cor-
porations under the laws of Ohio.*'
There are nine offenses charged, relating -to the defendant's
ownership of stock in, control over and agreement with, certain
coal mining and certain other railway corporations and uf dis-
criminations in transportation facilities.
The admissions of the pleadings and the evidence offered show 5
that defendant was incorporated February 25, 1899, under i\u}
laws of this state as a railway company, and about the date of in-
corporation acquired by purchase at judicial sale under fonv
cracinT COURT reports— new series. 61
1909.] Franklin County.
closure proceedings in the United States Circuit Court at Cin-
cinnati, Ohio, the railroad and other properties of the Colum^irs,
Hocking Valley & Toledo Railway Company.
The purchase was made and properties- acquired through a
reorganization committee, and under a plan issued January 4,
1899, by J. P. Morgan & Company, who were the reorganization
managers and afterwards the fiscal and financial agents of the
defendant company.
The plan of reorganization was afterwards referred to, rati-
fied and adopted by the stockholders' meeting.
The statement of property of the old company in the issued
plan of reorganization contains among others the following:
All the stock (15,000 shares, face value $1,500,000) of the
Hocking Coal & Railway Co., holding 10,000 acres of coal land
in the Hocking valley district.
All the stock (2,000 shares, face value $200,000) of the Ohio
Land & Railway Company, controlling about lt),975 acres in the
same district.
The Buckeye Coal & Railway Company was incorporated un-
der Ohio laws Februarj'^ 15, 1899, and succeeded by purchase to
the properties of the Hocking Coal & Railway Company, and
the stock passed into the hands of the reorganization committee
as a substitute for the stock of the latter company, and there-
after all the stock (except five shares to qualify directors) passed
to the defendant company. The Buckeye Company acquired con-
trol (either by lease or through stock ownership) of the lands
and properties of the Ohio Land & Railway Company.
The charter of the Buckeye Company, in addition to coal min-
ing and kindred purposes, contains authority to construct a
railway from any niine, quarry or manufactory to any other
railway, water navigation, or place within or upon the borders
of Ohio.
The- Sunday Creek Coal Company was Incorporated under
Ohio laws in 1899 with a similar charter to the Buckeye Coal
& Railway Company, and acquired and controlled about 12,000
to 13,000 acres of coal lands in Hocking district.
During the progress of the reorganization, or at least before
finally concluded, J. P. ^Morgan & Company at the request of
62 OinCUIT COURT REPORTS— NEW SERIES.
t
State, ex rel, v. Railway Co. [Vol. XII, N. 3.
Mr. Monserrat, president of defendant company, purchased a
majority of the capital stock of ithe Sunday Creek Coal Com-
pany, viz., 7,643 preferred and 11,796 common, out of a total of
15,000 preferred and 22,500 common, paying therefor $342,860.
This transaction was ratified by the board of directors of the de-
fendant company May 4, 1899, and the stock with other proper-
ties acquired by the reorganization committee passed to the de-
fendant. After the completion of the reorganization the de-
fendant increased its holdings in the Sunday Creek Coal Com-
pany up to December 5, 1905, by the purchase of 5,296 preferred
and 7,524 common, making a tctal of 13,939 preferred and 19,370
common.
The Continental Coal Company was incorporated under West
Virginia charter January 24, 1902, and admitted to do business
in Ohio February 1, 1902. On November 7, 1902, the defendant
and the Toledo & Ohio Central Railway Company entered into
an agreement with the Continental Company to receive and in-
dorse and guarantee the bonds of the coal company in the amount
of $2,750,000. This agreement was based upon the considera-
tion on the one hand of the railway company's obtaining the
large Jraffic furnished by the coal company, and on the other
hand to furnish the coal company with ** needed working capital
to enable it to improve and develop its mines and to increase the
capacity thereof and ^to acquire additional equipment and other
property." The contract also provides for an equal division of
the entire traffic of coal and other freight coming from and tx>
the properties of the coal company, and for a surrender of all
the stock of the company (34.995 shares) except l^ye shares to
maintain its existence, to J. P. Morgan & Company, trustees,
who retain the legal title and record ownership with full voting
power, giving certificates of beneficial ownership to actual stock-
holders, the stockholding and voting trust to continue until
the $2,750,000 guaranteed bonds are lifted. On October 7, 1902,
the stockholders of the defendant company affirmed the tri-
partite contract between the two railroad companies and the ooal
companies, and also the authority of J. P. Morgan & Company
as syndicate managers.
CIRCUIT COURT REPORTS— NEW SERIES. 68
1909.] Franklin County.
The Continenital Coal Company acquired 800 acres by pur-
chase and 27^600 acres by lease with 22 mines in operation and
valued at $653,787.62.
The Sunday Creek Company was incorporated in New Jersey
June 29, 1905. The New Jersey charter is very broad, but the
authority in Ohio was limited to coal and other mining, manu-
facturing coke and dealing in coal and coke, and generally to
transact all ithe business conferred on or permitted to be done
by the laws of Ohio by a coal and railway company and a min-
ing and manufacturing company organized under the laws of
Ohio. The Sunday Creek Company took by purchase the prop-
erties of the Sunday Creek Coal Company and by lease those of
the Buckeye Coal & Railway Company. The Continental Coal
Company and the Kanawha & Hocking Coal and Coke Company,
the latter being a West Virginia mining company owning
21,300 acres of coal lands in West Virginia valued at $1,050,000,
and operating under lease on royalty basis also in We^t Virginia
10,900 acres valued at $390,119.91, and coke ovens (381) valued
at $207,803.87, making a total, Ohio and West Virginia, of
100,501 acres of coal lands with 44 mines in operation and coke
ovens valued at $4,464,885. It also became the owner of the
beneficial certificates of stock of the Continental Coal Company.
The Kanawha & Michigan Railway Company is a raihway
company owning and operating a railway extending from Corn-
ing, Perry county, Ohio, southwardly to Hobson near Middle-
port, thence southwest by trackage arrangement over the Hock-
ing Valley branch to a point opposite Point Pleasant, thence
leaving the Hocking Valley tracks crossing the Ohio river into
West Virginia to Qau^ey Bridge, a distance of 100 miles in West
Virginia and 68 miles in Ohio.
Prior to June 4, 1903, a majority of stock of the K. & M. By.
Co. was held by the T. & 0. C. Ry. Co. and was operated by the
same officers and in connection with the latter company, and as
a connecting and continuous line.
On the date mentioned the defendant company acquired from
the T. & 0. C. Company the majority stock of the K. & ^I.
Company in exchange for all the stock and bonds of the Zanes-
ville & Western Railway Company.
64 CIECUTT COURT REPORTS— NEW SERIES.
State, ex rel, y. Railway Co. [Vol. XII, N. S.
Prom and after this, transfer a majority of the directors of
the K. & M. Company have been taken from the directorate of the
defendant, and the president: and managerial oflScers of the de-
fendant have been assigned to similar positions in the K. & M.
Company.
The Toledo & Ohio Central Railway Company is a railway
company owning and operating a railway from Coming, Perry
county, Ohio, north and northwesterly in two divisions -to To-
ledo, Ohio, and the Great Lakes, and has been and is now
operated in connection with the K. & M. as the southern exten-
sion to the Ohio river and into West Virginia.
M the time of the organization of the defendant oompany it
wa« stipulated in the regulations adopted by the stooUiolders
that 60,000 shares preferred and 50,000 shares oommcm stock
of the defendant company (face value $10,000,000) sbcmld be
reserved to be issued upon approval of J. P. Morgan & Oompany,
reorganization managers, under the plan of reorganigatioii dat^d
January 4, 1899, for the purpose of acquiring Inter^dtd Ifl the
T. & O. C. Ry. do. and the C. S. & H. Ry. Co. or successors.
tn February, 1 902, the defendant company purchased the
stock and bonds of the Z. & W. Ry. Co., successors of the C. S. &
H. Ry. Co., giving in exchange out of the reserved stock ^1,*
000,000 preferred and $578,400 common.
It does not appear by any direct evidence that the stock of
the T. & O. C. Co. has been received in exchange for reserved
stock of the defendant, nor that the balance of reserved stock
amounting to $4,000,000 preferred and $4,421,600 common has
been issued. But it is admitted that a syndicate of individuals
or ex)rporations hold a substantial majority of the common stock
of the defendant company, and that the same parties or their
connections or allied interests hold a controlling interest in the
capital stock of the T. & 0. C. The common stock of the defend-
ant is $15,000,000, the preferred stock is the same, with equal
voting power. Nothing appears as to the ownership of defend-
ant 's preferred stock. The president, majority of board of direc-
tors and managerial officers of the T. & 0. C. are the same as the
. defendant 's.
CIRCUIT COURT REPORTS— NEW SERIES. 65
1909.] Franklin County.
The Zanesville & Western Railway Company is an Ohio rail-
way corporation which acquired the railroads and properties
of the C. S. & H. south and east of Columbus extending from
Thurston, a connection on the T. & 0. C. south and east to
Zanesville and the Hocking coal fields extending into these fields
by several branches. All of Us stock and bonds were pur-
chased by the defendant out of its reserved stock and afterwards
transferred to the T. & O. C. Ry. Co.
The plan of reorganization of the Hocking Valley Railway
Co. issued January 4, 1899, and ratified at the stockholders'
meeting of the Hocking Valley Railway Co. February 25, 1899,
reciteB that the transportation of bituminouB ooal from mines
or adjaoent property is the prinaipal business of the Hocking
Valley Company, and that that business was strictly and intensely
oompetitive among the five companies, viz., the Hocking Valley^
T. & 0. C, C. S. & H., the B. & O. and B. & 0. S. W., but par-
ticularly am^ng the first named three, and declai'es that the plaiJ
of reorganization should be flexible enough to admit of their
acquisition.
A reserve of $10,000,000 of preferred and common stock of
the defendant was set apart by the stockholders to acquire these*
properties, and the Z. & W. was so acquired and exchanged for
the majority stock of the K. & M. The controlling stock of
the T. & 0. C. was ac(iuired by the syndicate and allied interests
holding the common stock of the Hocking Valley Co., and the
Hocking Valley officials took charge of the T. & 0. C, the Z. &
W. and the K. & ^I. These railways traversing by main line and
by branches and extensions the Hocking coal fields, formerly in-
tensely competitive, were now placed under one, or at least the
same management.
The old Hocking Valley Railway Co. at the time of its re-
organization held the stock of the Hocking Coal & Railway Co.
and the Ohio Land & Railway Co. The former was taken over
by the Buckeye Coal & Railway Co., which acquired, by lease
or ownership stock, operating control of the Ohio Land & Rail-
way Co., making 20,975 acres of coal lands in the Hocking dis-
trict.
60 CIRCUIT COURT REPORTS— NEW SERIES.
state, ex rel, v. Railway Co. [Vol. XII, N. S.
Before the reorganization was consummated the holdings of the
Hocking Valley Co. in coal companies were^ increased by pur-
chase of a majority of stock in the Sunday Creek Coal Co., hold-
ing 12,000 to 13,000 acres, and then again by the agreement for
the indorsement of the bonds and the surrender of the voting
power of the stock of the Continental Coal Co. 28,400 acres more
passed into Hocking control, so that at the time of the bring-
ing of the suit over 60,000 acres of coal lands, valued at $2,800,-
000, were held by coal companies whose controlling stock was
held by the Hocking Valley Railway Co.
Since the sui<t has been pending the Sunday Creek Company
of New Jersey has entered the field and taken over all the prop-
erties of the former companies under the Hocking Valley Com-
pany's control and acquired the large and valuable properties of
the E. & M. Coal Co. in West Virginia, increasing the acreage
to more than 100,000 in Ohio and West Virginia, valued at about
$4,500,000.
The Sunday Creek Co., a merger, acquired by purchase the
properties of the Sunday Creek Coal Company, 12,000 to 13,000
acres. The balance is held by 'it by lease or operating contract.
This merger, the Sunday Creek Company, mines and furnishes
for transportation 84 per cent, of <the output on the line of the
T. & 0. C. Ry., 58 per cent, on the K. & M., 55 per cent, on the
Z. & W., 39.9 per cent, on the Hocking Valley, and 34.7 per cent,
in the Deavertown district, and distributes this large output not
only to the nearby cities but through connecting railroads and
the Great Lakes reaching the markets of our own state as well
as Indiana, Illinois, Michigan and the northwest.
In respect to ownership of stock in other corporations, it is
a familiar principle in this state that the powers of a corpora-
tion under its charter and the incorporation acts are to be
strictly construed, and upon no subject has this doctrine been
more frequently and rigidly applied than with reference to ac-
quisition and holding of stock in its own and other corporations.
Railway Co. v. Iron Co., 46 0. S., 44; Straus v. Eagle his. Co.,
5 O. S., 59; Railroad v. Hinsdale, 45 0. S., 556; Copin v.
Oreenleaf,SS 0. S., 275; Railway v. Burke, 19 Bull., 27; Frank-
lin Bank v. Commercial Bank, 36 0. S., 350,.
CIRCUIT COURT REPORTS— NEW SERIES. 67
1909.] Franklin County.
In Franklin Bank of Cincinnati v. Bank, supra, Boy ton, J.,
says (page 354) :
** There would seem to be little doubt, either upon principle
or authority, and independently of express statutory prohibi-
tion of the same, rthat one corporation can not become the owner
of any portion of the capital stock of another corporation, unless
authority to become such is clearly conferred by statute. • • •
Were this not so, one corporation, by buying up the majority of
the shares of the stock of ano4;her, could take the entire manage-
ment of its business, however foreign such business might be to
that which the corporation so purchasing said shares was created
to carry on. A banking corporation could become the operator
of a railroad, or carry on the business of manufacturing, and
any other corporation could engage in banking by obtaining the
control of the bank's stock. • • • This would not only be
exercising powers granted to the plaintiff neither expressly nor
by implication, but those which are clearly opposed to the mani-
fest spirit and intent, if not to the language of the statute."
Railway companies are classified by statute, and Section
3300, Revised Statutes, deals with the subject of stock hold-
ing by railway companies in other corporations and per-
mits them to become stockholders in other railway companies
to aid in the construction of a connecting and non-competing
line. This authority is consistent with and in furtherance of the
objects of the charter. Section 3546 authorizes a railroad com-
pany to take and own stock in a bridge company, and Section
3448 in a union depot company. Both are consistent with the
charter. The railroad company may and generally does build
the bridges and depots; but in special cases it may aid by taking
stock in an independent company.
Section 3842 confers power upon a railroad company to sub-
.scribe stock in an elevator company, but limits the amount sub-
scribed to a minority of one-third of the capital stock. This
indicates a legislative intent of giving a railroad company, in the
single case of holding stock in a company with which it deals,
power to aid but not control.
These are the only statutes conferring upon railroad com-
panies power to hold stock in other corporations.
58 ' CIRCUIT COURT REPORTS— NEW SERIES.
state, ex rel, v. Railway Co. [Vol. XII, N. S.
Unless, therefore, express authority is found under general
statutes fairly extending to and including railway companies
giving the additional power to hold stock of other .companies,
the principle laid down by Boyton, J., that the power of hold-
ing stocks unless expressly conferred does not exist, must be ap-
plied.
The corporation act in its general scope confines corporations
to a single main purpose and such collateral purposes as may be
incidental to the main purpose. This is intended by the Legis-
lature to prevent the chartering of n^onopolies and to classify and
regulate corporations according to the stated purpose. State, ex
rel, v. Taylor, 56 0. S., 61,
Counsel for defendant eontend-^oiting caaes supporting the
contention— that the court will not go behind the corporation
entity of the subsidiary company of indentify the responsible
stock ownership. Those, however, are cases of contract or of
(jivil rights depending upon the corporation in its artificial capac-
ity. It has never been held that the state may not call the
corporation to aecount, not only for acts done openly and di-
rectly, but also for acts done indirectly or by a subterfuge.
Williams, J., in Gas iSc Fuel Co. v. Dairtj Co,, 60 0. S., 96-106,
lays down the rule:
**\Vhen the action of a corporation is challenged by the
sovereiginiity which gave it existence, or by whose favor it is per-
mitted to pursue its 1 usiness, it may be re(|uired to show a clear
warrant for the acts so called in question; while in suits be-
tween individuals and corporations, or between corporate bodies
where private rights are involved, the rule is not inflexible, and
yields to considerations of right and justice. '*
In the case of States ex rel, v. Standard Oil Co., 49 O. S., 187,
it was held that the fiction of incorporation may be ignored by
the state in calling into question powers exercised by or through
a corporation ; and that the state is not bound by the mere form
in which a transaction is clothed.
In the case of The Northern Securities Co, v. V. S., 193 U. S.,
197, it was contended that the securities company had a lawful
right to hold the controlling stock of competing railway com-
CIRCUIT COURT REPORTS— NEW SERIES. 69
1909.] Franklin Ck>unty.
panics as aa investment and should not be held accountable for a
resulting course of conduct by the railway companies as to com-
petition ; but the court looked to the substance of the transaction
rather than the form, holding the combination of competing
companies through the medium of a holding company to be un-
lawful.
The following cases also support the view that a holding com-
pany can not escape the responsibility following from owner-
ship of a majority of stock: Burrows v. Metropolitan Co., 156
Fed., 389 ; Distilling Co. v. People, 156 111., 491 ; State, ex rel,
V, Standard Oil Co,, 194 Mo,, 124; People v. Chicago Qas Co,,
130 111., 268; Dunlar v. American Telephone Co,, 224 111., 9;
Bigelow v. Calumet di Heckla Mining Co,, 155 Fed., 869 ; Far-
mers Loan dk Truit Co, v, Ry, Co., 150 N. Y., 410; Pearsall v,
Oreat Korthefn Ry» Co,, 161 V, S., 646.
It is wtgeA that express powi^f to hold the coal eoitiimny Jitoekii
ii found 111 Beetidti !i258, K^vijied Htatiitea, which tttnoiifif other
thifl((fl provided!
**And a private corporation may purchase or otherwise ac-
quire and hold shares of stock in other kindred but not compet-
ing corporations, whether domestic or foreign ; but this shall not
authorize the formation of any trust or combination for the pur-
pose of restricting trade or competition.''
Assuming that this sta«tute applies to railway companies it
must appear, to justify the accjuisition and holding of the* stock,
that the corporations are kindred and non-competing, and -that
no combination restrictive of trade or competition is formed.
A dissension of kindred purposes as applied to corporations
by Spear, J., is found in State, ex rel, v. Taylor, suproy where it
was held -that a corporation formed to manufacture gas and elec-
tricity and furnish light, heat and power ito a municipality and
its citizens can not amend its charter to authorize the construc-
tion and operation of an electric railway.
Under the definition given and applied here a railway com-
pany and a coal mining company can not be deemed kindred.
They are not dn the same statutory classification, and are
governed by different laws. The purposes are essentially dif-
60 CIECUIT COURT REPORTS— NEW SERIES.
SUte, ex rel, v. RaUway Co. [Vol. XII, N. S.
V
ferent. The railway company could not be authorized to trans-
act directly a coal mining business. In this fact is found a
plausible reason for the organization of subsidiary companies.
By this means a formal appearance of regularity is given to en-
able a railroad company to control and carry on the distinct and
separate business of coal mining.
Again it is urged that the Buckeye and Sunday Creek coal
companies have charter power to construct railroads, and that
therefore both Section 3300 and the kindred corporation clause
(Section 3256)' are applicable.
But it will be observed that the railroad purpose in the coal
company's charter is incidental to the main purpose and is
limited to such **as may be deemed necessary to carry cut the
object of its incorporation,'* and the railroad to extend frorii
**any mine, quarry, or manufactory owned or opera4:ed by said
company to any other railroad, or to any canal or water naviga-
tion or navigable water or place within or upon the borders of
the state of Ohio." The railroad contemplated by this authority
is to begin at a mine, etc., and end at a railroad or other outlet.
It is a private road for the benefit of the coal company, and it
is in no sense a public road. Miami Coal Co, v. Wigton, 19 0.
S., 560; Railway v. Burk, 19 Bull., 27; Snow Fork (t Cleveland
Coal Co. V. Hocking Coal & By, Co., 4 N. P.. 115.
Besides there is no evidence to show that the coal companies
ever exercised this charter power by attempting to build or ac-
quire a railroad. No stock can bo is.^iued under Section 3300,
except to aid in the construction of a connecting and non-com-
peting railway. This section does not authorize the railway com-
pany to extend aid to the coal mining purposes of the charter.
Nor can this railroad clause in the charter furnish the connect-
ing link of kinship under Section 3256, because, in the first
place, of the non-exercise of the railroad clause, and in the sec-
ond place, because the main purpose of a corporation fixes its
class. Taggart v. Bepuhlic Iron & Steel Co,, 141 Fed., 910.
A railroad company can not be classed as a hotel company be-
cause it operates one or more eating houses as incidental to its
passenger traffic, nor as a land company because it has acquired
more land than is necessarv for railroad uses.
CmCUIT COURT REPORTS— NEW SERIES. 6)
1909.] Franklin Ck)unty.
The fact that the railroad chapter applies to the railroad if
constructed by the coal company does not change the classifica-
tion. The act only gives to coal companies the power as inci-
dental to its business of constructing a private railroad, and
places the railroad when constructed under the regulations pro-
vided for in ithe railroad charter. TaQgart v. Republic Iron &
Steel Co.^ supra.
It is contended that the power to acquire the coal mining
stocks is found in the clause in the charter authorizing the com-
pany to acquire all the **real and personal property*' of the old
company. But power to be sustained must not only be within
the charter but within the terms of the corporation act. While
the case of Gas & Fuel Company v. Dairy Company, supra, ex-
tends somewhat the strictness of the rule of acquisition of prop-
erty not indispensable to the purpose for which the corporation
was chartered, yet neither this case nor ihe later case of State
V. Ry. Co,, 68 0. S., 40, justify the acquisition of unauthorized
stock, or the carrying out of a purpose not within the spirit and
intent of the corporation act. Nor is the decision of Lurton, J.,
in the case of Central Trust Co. v. Railway Company, 87 Fed.,
815, conclusive either as a precedent or as an adjudication upon
the state seeking an account of aots done under the charter. The
learned judge in that case, between private suitors where con-
siderations of right and justice between the parties are control-
ling, places special emphasis upon the giving of the mortgage
sought to be annulled not alone by the corporation, but rein-
forced by action of all the stockholders, and that the bonds se-
cured by the mortgage had passed into innowmt hands, whilo
the mortgagees seeking the relief took expressly subject to the
mortgage sought to be annulled. The case did not, however, in-
volve the power of the railway company to hold the coal minin.^
stock, but only involved the power of the coal company by ex-
press consent of all its stockholders to mortgage its property to
a railway company. It will be noted, however, in the case at bar
that the stock now held by the defendant in the coal companies
did not come directly from the foreclosure sale. The Buckeye
Company was incorporated and became the owner of the Hock-
ing Coal & Railway Company property by purchase, and its
«2 CIRCUIT COURT REPORTS— NEW SERIES.
State, ex rel, v. Railway CJo. [Vol. XII, N. S.
stock passed by voluntary acquisition to the reorganization com-
mittee, and thence to the present company, while the acquisi-
tion of the Sunday Creek CJoal Company stock was wholly dis-
tinct from the foreclosure sale, although the properties were
grouped together by the reorganization committee.
The claim is made that because coal companies are authorized
by statute to acquire stock in transportation companies, a pub-
lic policy is thereby evideneed which could be extended to rail-
way companies owing stock in coal companies. This claim is not
supported by the doctrine of strict construction, and a material
difference may be found between coal companies acquiring an in-
terest in railroads, and railroad companies acquiring interests
in coal companies. The railway company has advantages of dis-
crimination and trade restrictions which coal companies do not
have.
Counsel for the railway company cite from Wood on Railway Sy
Section 194, to the effect that a railway company may own a coal
mine as incidental to its railroad purposes, and may sell the sur-
plus coal. A clear distinction, however, may be drawn between
the case of a railroad company owning a coal mine for its own
use and engaging in the coal mining business for the general
market. This principle is illustrated in the case of M. & C.
Railway v. Telegraph Company^ 38 O. S., 24, in which it was
laid down by Mcllvaine, J., that while a railway company may
build and operate a telegraph line for its own use, it can not
engage in the general telegraph business.
But, after all, the controlling question to be decided here is
whether through this stock ownership in subsidiary coal com-
panies a combination has been formed restricting trade and com-
petition. For even if the abstract right of holding stock be
conceded, yet such right can not be extended to cases resulting in
or having the legitimate tendency of restrictiohs of trade or
competition. Northern Securities Co. v. U. S., supra; Bigelow v.
Calumet & Hekla Mining Co., supra; Distilling Co. v. People,
supra; Burrows v. Interborough Metropolitan Co., supra; L. &
N. Ry. Co. V. Kentucky, 161 U. S., 677; Dunbar v. American
Telegraph Co., supra.
CIRCUIT COURT REPORTS— NEW SERIES. 68
■
j909.] Franklin Ck>unty.
In considering combinations by stock ownership between rail-
way and shipping corporations, we should not overlook the im-
portant influence of the carrier both as to rates and facilities
upon the business of the shipper.
Rebates and discriminations in shipping facilities are well
known and recognized as most effective aids in building up mo-
nopolies and breaking down competition. The former has been
made the subject of penal laws by Congress and in many of the
states. The latter is none the less effective in restricting trade
and embarrassing competition.
At common law public or common carriers were required to
sLTve all without discrimination, and railway companies by their
incorporation are vested with a portion of the soverei^ty of the
state to carry out the public duties of a common carrier. They
become quasi public agents to administer a public duty with-
out discrimination to all citizens. Scofield v. Railway Co., 43
O. S., 571.
This obligation as stated by Baxter, J., in Difismore v. Rail-
way Co., 2 Fed., 465, is:
**To do exact and even handed justice to everybody offering
to do business with them."
For a railroad company to acquire an interest in the subject-
matter is inconsistent with the trust.
It is a sound principle everywhere acknowledged, that no
man — even if his motive be as correct as those attributed to Sir
Matthew Hale — can be a judge in his own case, or a case in
which he has a private interest; and this principle applies to
all cases of public trust.
How then can a railway company be sustained in exercising a
public function conferred by its charter of equal service to all
shippers when it has acquired a private interest in the business
of one 1
To illustrate: The Buckeye Company desires a rate, a dis-
tribution of cars, or an extension of track facilities, and ap-
plies to the railway company, which practically owns its stock.
The subject is taken up by the president and board of directors
of the railway company, who are also president and directors of
64 CIRCUIT COURT REPORTS— NEW SERIES.
State» ex rel, v. Railway Co. [Vol. XII, N. S.
the ooal company. At the same time a similar request is made
by an inde^pendent company in competition with the Buckeye
Company. The ridlway company is interested in the Buckeye
Company, and yet under the law it is required to deal with ab-
solute impartiality between the company in which it has an in-
terest and its rival. The railway company may be able to do
this, yet the law looks upon the tendency, and has regard to
the frailties of human nature and the temptation of being con-
trolled by self interest.
'*If self the wavering balance shake,
It's rarely right adjusted."
In Piatt V. Longtvorth, 27 0. S., 159, where an administrator
had acquired an interest in the sale made by him as trustee,
Johnson, J., said:
* * In such cases the court will not suffer itself to be drawn aside
from the application of this equitable rule by any attempt on
the part of the purchasers to establish the fairness of the pur-
chase because of the danger of imposition, and the presumption
of fraud inaccessible to the eye of the court. The policy of the
rule is to shut the door againsrt; temptation in cases where the
relationship exists."
In line with this rule it has been held that it is not necessary
to produce proof showing actual* resitriction of trade or stifling
of competition, but it is sufficient to show a legitimate tendency
to that effect. Salt Company v. Guthrie, 35 O. S., 666, 672;
State, ex rel, v. Standard Oil Co., supra.
So here it is not (essential to show that discriminations or
increase of rates actually resulted. But it is clear that the direct
*
tendency of a combination by stock ownership in coal shipping
companies by the railway company is toward discrimination and
trade restrictions, and this proposition is recognized in the dis-
cussion of Mr. Justice White in the case of New Haven R. R. v.
Interstate Commerce Comm'ssion, 200 U. S., 361, in which it is
stated that the effeot of the Chesapeake & Ohio Railway Com-
pany becoming a dealer in coal along its line was to exclude every
other dealer, and that this result was not accidental but fol-
lowed legitimately. Mr. Justice White in this opinion cited with
CIRCUIT COUBT REPORTS— NEW SERIES. 66
1909.] Franklin County.
approval the case of The Attorney-General v. The Oreat North-
ern Ry, Co., 29 L. J. Ch., N. S., 794, wherein it was decided
that a railway company had no power to become a dealer in
coal for 'the public market. In the English case cited it ap-
peared that a railway company from the coal fields in the north
of England had established a coal agent in London and had
engaged indirectly in the buying and selling of coal for the
general market, and in -the course of eight years it had monopo-
lized practically the entire coal business in that section. It was
urged in argument that other railroads entered the London mar-
ket from the Lancashire district and from the Bristol and other
districts in the southwest, but the vice chancellor replied that
nothing would prevent the other roads, if the business was legal,
from acquiring a monopoly in those districts and giving the
monopoly of the entire business of dealing in coal to the three
railroads; and adding:
**If they can do that with respect to coal, what is to prevent
their doing it with every species of agricultural produce all along
the line ? Why should they not become purchasers of com, of all
kinds of beasts, and of sheep, and of every species of agricultural
produce, and become great dealers in the supply of eatables in
the markets of London, and why not every other species of com-
modity that is purchased in every part of the country from which
or to which the railroad runs? I do not know where it is to
stop, if the argument on the part of the company is to prevail.
There is therefore great detriment to the interests of the public,
for this reason, taking merely the article of coal.''
The results feared by the English vice chancellor are modest
compared with the possibilities in this country. If a railway
company can buy and sell, and thereby become the exclusive
dealer in coal along its line, the grain carrying railways may
monopolize the grain business; other railways the carrying of
live stock, others the carrying of manufactured goods, while
others the products of the iron and other mines; and if then it
is possible, that all railway interests of the United States may be
combined under one management, the enormity and extent and
importance of the proposition of controlling by subsidiary com-
panies or otherwise the output of the mines and the farm and the
factory becomes apparent, or at least capable of being imagined.
M CIRCUIT COUBT BEPOBTS— NEW SEBIES.
state, ex rel, t. Rmfiway Go. [YoL XII, N. S.
The ownership by the defendant of the stock in the sabsidiar>'
coal companies and the control resulting therefrom is illegal and
unwarranted.
The contract of the defendant with the Continental' Coal Com-
pany for an equal division of coal shipments between the Hock-
ing Valley and T. & O. C. railways tends to stifle competition
and is also unwarranted. The guaranty of the bonds of the coal
companies, while a valid oblio^ition as affecting the property of
the railway and coal companies in favor of the mortgagees, yet
as against the state is illegal nnd unwarranted.
In respect to the ownership of stock in the Kanawha &
Michigan Railway Company, it is admitted that the defendant
owns the majority of such stock, but claims that the line is not
parallel nor competing. For more than one-third of its line the
K. & M. is parallel to the defendant's line and is more or less
competing, but its competing features are pronounced and made
clearly apparent when it is viewed as a natural as well as actual
connecting road of .the T. & O. C. system. The cases cited bv the
defendant 's counsel where there is an inconseqiiential part of the
lines parallel and competing, but where in the general features
of the two roads they are non-competing and not parallel, do not
apply here, for a substantial part of the K. & M. line is parallel
and competing in the coal mining business, which forms a sub-
stantial part of the carrying business of the railroad companies
involved.
In respect to the Toledo & Ohio Central Railway Company,
it is conceded to be a parallel line with the defendant, but the
defendant denies that it owns or holds the stock of the T. & O.
C. Company. It is agreed, however, that the stock of the T. & O.
C. Company is held by the same stockholders or their allied
interests, to-wit, the J. P. Morgan & Co. syndicate, and is of-
ficered by the same persons as tlie defendant. Unity of stock-
holding interests and unity of management is strong, if not cou-
(•lusive. evidence of combination. This combination of parallel
lines is restrictive of competition, and is contrary to the letter as
well as the spirit of the corporation laws. It is diflBcult to con-
ceive of competition where one person and one agency controls
both corporations. Can a shipper appeal with any hope of sue-
CIRCUIT COURT REPORTS— NEW SEMES. 67
1909.] Franklin County.
cess for competiition to two companies con<trolled by the same man-
agement? A shipper appeals to Mr. Monserrat, as president of
the defendant, for rates or facilities, and is not able to obtain a
satisfactory concession. He then desires to make application to
the parallel line of the T. & 0. C. and is compelled to go before
the same president and the same board of directors. A mere
statement of the question is its own answer.
The state is not bound to show in cases of combination a record
of the agreement resulting in the destruction of competition. It
is not to be anticipated that in every case where a combination
a<;tually exists it is reduced to formal written agreement, or that
all stockholding combinations appear of record upon the stock
books. A verbal or even secret combination is just as obnoxious
to public interests. We may therefore look to the evidence as in
other cases of conspiracy. Unity of stockholding interests and
of management, supplemented by the general plan of reorganiza-
tion of the defendant company, is suflBcient to show a combina-
tion. State, ex reU v. Standard Oil Company, supra.
The combination of the defendant, therefore, with the T. & 0.
C. Railway Co., as shown by the evidence referred to, as well as
its ownership of a majority of stock of the K. & M. Company,
is illegal and unwarranted.
In respect to the Zanesville & Western Railway Company, by
a stock ownership it has befome a part of the Toledo & Ohio
Central System, and so far as this at^tion is concerned, may be
considered as a part of that system. The defendant does not
hold or control this company except through its agreement or
combination with the Toledo & Ohio Central, that of itself will
carry a dissolution of all combination with the Zanesville &
Western.
In respect to the relief to be awarded, it may bo said that th(»
rule is found in the cavse of The State, ex rvl Attorney-Generat,
v. The Cap tot City Dairy Co., 62 Ohio State, :350. By this au-
thority it is held that where the manner of conducting a busi-
ness by a corporation is in excess of its charter and in violation
of law, the court has power to stop the abuse ; and if the illegal .
acts have been persistent, defiant and flagrant, the court may
oust the defendant from its charter and terminate its corporate
68 CIRCUIT COUBT BEPOBTS— NEW SEBIES.
state, ex rel. v. Railway Co. [VoL.XII,N, S.
existence. The drastic remedy of terminating the corporation's
existence is only to be applied where the acts are persistent, de-
fiant and flagrant. In other cases the power of the court is
limited to stopping the abuse, or, in other words, ousting the
company from the right to do the illegal business.
In the case of The State v. Standard Oil Co., supra., the court
merely ousted the company from authority to do the illegal
business. The acts done by tho Standard Oil Co. in the case re-
ferrexl to were quite as continuous and quite as obnoxious to the
public interests as those involved here. The right of the defend-
ant to own and control the stock of the subsidiary companies has
been an open question, as is also the right of the defendant to own
a majority of the stock of tho K. & M. Company. The course
of the defendant, therefore, in asserting its claim to the owner-
ship of these stocks can hardly be said to be flagrant and persist-
ent until the question has been authoritatively adjudicated,
A more serious question is presented by the indirect control
and management of the Toledo & Ohio Central Railway Co.
and the formation of the Sunday Creek Co. since suit began.
But upon a consideration of the whole case the count has ar-
rived at the conclusion that the facts do not warrant a judgment
of ouster from the charter or corporate existence of the defend-
ant ; but do require that the defendant be ousted from its owner-
ship of stock in the Buckeye Coal & Railway Company, the Sun-
day Creek Coal Company, the Sunday Creek Company, and the
Continental Coal Company; that it be ousted from its right to
continue the guaranty of the bonds of these companies; that it
be ousted from its right to hold stocks in the Kanawha & Michi-
gan Railway Company, and from its control and management
of the Toledo & Ohio Central Railway Company, the Zanesville
& Western Railway Company, and the Kanawha & Michigan
Railway Company.
CmCUlT COURT UEPOttTS— NEW SESIES. 69
1909.] Hamilton County.
SERVICE or SUMMONS ON THE WRONG PARTY.
Circuit Court of Hamilton County.
The Pittsburgh, Cincinnati, Chicago & St. Louis Railway
Co. V. Samuel P. Copenhaver, Administrator, et al.
Decided, March 28, 1908.
Summons — Action Filed Against Conia-olling Instead of Subsidiary Com-
pany— Service had on Officer of Subsidiary Company — Service De-
fective and Amendment thereof Ineffectual — Injunction against
Multiplicity of Suits— Section 5041,
1. Service upon the chief clerk of the superintendent of a railway is
not service upon a chief officer, and where such service is had upon
a petition in which the wrong company is named as defendant, the
substitution of the name of the proper company, and the amend*
ment of the return of summons to conform thereto* is Ineffectual
to bring the proper company into court.
2. Where it appears that as many as six actions are being prosecuted
by the same plaintiff as administrator of as many different estates
against the same defendant, which can result only in void Judg-
ments, a court of equity will intervene by injunction to prevent
a multiplicity of suits and vexatious litigation.
The plaintiflf railway company brought an action in the court
below to enjoin the defendant, Copenhaver, administrator, from
prosecuting six different actions against the said company on
-account of the deaths of six different members of the same family,
who were killed by being struck by a train at one of the com-
pany's crossings. These actions were brought against the
Pennsylvania Company for the reason, as was stated in the court
below, that the cars which composed the train which struck the
decedents were marked * ' the Pennsylvania Lines * ' and employes
of the road had declared to the administrator or his counsel that
they were employes of the Pennsylvania Company. The actions
were filed in August, 1903, six weeks after the accident. Sum-
mons was issued upon the Pennsylvania Company, but was
served on W. B. Folger, assistant or chief clerk of the P., C, C.
& St. L. Ry. Company, which was the company operating the
line upon which the accident occurred, under the control of the
70 CIRCUIT COURT REPORTS— NEW SERIES.
p., C, C. ft St. L. Ry. Co. v. Copenhaver. [Vol. XII, N. S.
Pennsylvania Company. The month following the P., C, C. &
St. L. Ry. Co. filed an answer, but did not set up that the Penn-
sylvania Company was not the proper party defendant. Nearly
three years intervened before it w^ discovered by the plaintiff
that the wrong company had been made defendant. A motion
to correct the name of the defendant was thereupon filed, which
was granted over the objection of the P., C, C. & St L. By. Co.,
and entries were made correcting the name and also amending
the summons and also the return thereon.
Five months thereafter the petition in the present case was
filed, the prayer of which was that the administrator be re-
strained from proceeding to trial or from taking judgment in
any of said cases until the company had been properly brought
into court, the allegation being that if judgment and levy were
taken in these cases as they then stood, it would be without due
process of law Qnd contrary to the Fourteenth Amendment of the
Constitution of the United States.
In contesting this action it was claimed on behalf of the ad-
ministrator that notwithstanding the mistake in the name the
right party was served with summons; that one of the first
maxims of equity had been violated by the railway company,
to-wit, that he who seeks equity must do equity, the violation
being in the fact that nothing was said in the answer of the said
company, filed throe years before, which would give the plaintifl^
information that he had not sued the right party ; and further,
that the company had a complete and adequate remedy at law,
and that irreparable injury would result to the administrator by
granting an injunction, for the reason that it would prevent the
prosecution of cases for six wrongful deaths.
As against the right of the railway company to an injunction,
Albert H. Morrill cited: 4 N. P., 331; 8 0., 39; 14 0., 358; 12
0., 389; 4 C. C— N. S., 11; 12 C. C, 177; 18 C. C, 847; 68
Miss., 409 ; 49 Fed. Rep., 517 ; 71 Fed. Rep., 58 ; 76 Fed. Rep., 25;
16 Am. & Eng. Ency. of Law, 359; 9 N. J. Equity, 192; 7 How-
ard, 652; 4 Blatchford, 70; 34 Mo., 92; 56 N. T., 175; High on
Injunctions, par. 51.
* As to the service of summons on the wrong party, it was con-
tended that the weight of authority is to the effect that if a party
OIBCUIT COURT REPORTS— NEW SERIES. 71
1909.1 Hamilton County.
is actually served, though served under a wrong name, the error
will not be fatal, a proposition sustained by the following au-
thorities : Vol. 20, Ency. Pleading & Practice, p. 1131 ; 33 Mo.,
347; 73 Mass., 378; 87 Ind., 181; 23 S. C, 125; 31 Md., 38;
77 Mo., 369 ; 50 N. C, 25.
Maxwell dk Ramsey, for plaintiff in error.
Albert H, Morrill, t. W, Ooss, Cogan & Williama and Uennpr
ff- Rennerf contra.
GiPPEN, J. ; Swing, P. J., and Smith, J., concur*.
The chief clerk of the superintendent of a railroad (JdfpoM'
tion is not a chief officer upon whom service of summons is au-
thorized by Section 5041, Revised Statutes, and service upon such
person as an officer of the Pennsylvania Company is not even an
attempt to serve the Pittsburgh, Cincinnati, Chicago & St. Louis
Railway Co.; hence the substitution of the latter company for
the former as defendant upon motion of the plaintiff and the
amendment of the return of th? sheriff are unauthorized to
effect the appearance of such defendant.
Wbfere it appears that the court has no jurisdiction of th^
person of the defendant in six separate actions growing out of
the same alleged negligent act of the defendant, which are proso-
(Mited by the same plaintiff, as administrator of six estates, a
c»ourt of equity will intervene by injunction to prevent a multi-
plicity of suits and vexatious litigation which can result only in
void judgments. Scofield v. Railway Co., 43 0. S., 571 ; Greene
V. Railivay Co., 62 O. S., 67; T/.V/fc on Injunctions,, Section 12.
The injunction prayed for will therefore be granted.
Cmcmf COUftT Rfit»OftTS-KEW SfifilES.
BiBhopi Bzeoutor, y. Rider et al. [Vol. XII, N. S.
CONSTRUCTION OF THE WORDS •* NEXT OP KIN/*
Circuit Court of Hamilton County.
Geoege H. Bishop, Executor, v. Charles Rider bt al.
Decided, March 6, 1909.
Wills—Words ''Next of Kin" ivill be Construed in Their Technical
Sense, When — Presumption Where it is not Known Whether Cer-
tain Relatives are Living or Dead.
Where it appears that a testator was uncertain as to whether certain
relatives were living or dead, it will be presumed, in the absence
of any reference to the statute of descent, and distribution, that
he intended by the use of the words "next of kin" to designate a
particular class of persons related to him in an equal degree of
consanguinity.
Yeatman & Yeaiman and E, C, Pyle, for the executor.
Frank Dinsmore, for Charles Rider.
Robert Ramsey, for cousins of the testatrix.
GiFPiEN, P. J.; Smith, J., and Swing, J., concur.
The only question involved in this case is the construction of
item eighteen of the last will and testament of Julia C. Giles,
deceased, which is as follows:
**And lastly all the rest, residue and remainder of my estate,
both real and personal of whatsoever kind or nature, I give,
devise and bequeath to my next of kin, their heirs and assigns
forever. ' '
It appears from the pleadings and the evidence that the de-
fendant, Charles Rider, an uncle of the testatrix, is one of the
next of kin, and that it was unknown to her and is even now un-
known to the defendant, Charles Rider, and the executor whether
the two aunts, Harriet Ryder and Isabella Ryder, are living or
dead, the presumption, therefore, in the absence of any refer-
ence in the will to the statute of descent and distribution, is that
the words '*next of kin'* were used in their technical sense to
designate a particular class of persons related to the testatrix in
OlSeWT G6UB¥ REPORTS-NEW SERIES. 78
1909.] Lake County. ,
an equal degree of consanguinity, and do not imply the prin-
ciple of representation. Clayton v. Drake, 17 0. S., 368 ; Mooney
V. Purpus, 70 0. S., 57, at 65.
Decree accordingly.
SPEED OF ELECTRIC CARS CONSTITUTING NEGLIGENCE.
Circuit Court of Lake County.
Cleveland, Painesville & Eastern Rah^way Company v.
Jessie Sites.
Decided, February Term, 1908.
yegligence^In the Operation of Interurhan Oara^^ow Btanding upon
the Track Struck hy Oar and Passenger Iniured^AppHoation of
the MasHfn Res Ipsa Loquitor,
Where an electric railway company operates its road on the public
highway, and runs its cars in the night time upon a straight level
track, although in the open country, at such a rate of speed that a
cow can not be discovered standing upon the track by the light
of the headlight in time to stop the car, and a passenger is injured
by reason of the car striking the animal, such facts will Justify
a Jury in rendering a verdict in favor of the passenger fpr the
injuries sustained.
Harry E, Hammer, for plaintiff in error.
Horner E, Harper and //. 7\ Nolan, contra.
C<K)K, J.; Laubie, J., and Metcalp, J., concur.
Jessie Sites, while a passenger on one of the cars of the
Cleveland, Painesville & Eastern Railway Company, was seri-
ously injured, as she claims, through the negligence of the em-
ployes of the railway company. She obtained a verdict for five
hundred dollars, upon which judgment was rendered by the
court ; and the company now prosecutes error in this court.
A number of errors are assigned but the principal one relied
upon, and the only one which we deem important, is that the
verdict was not supported by sufficient evidence. There is little
74 CIRCUIT COURT REPORTS— NEW SERIES.
Railway Co. v. Sites. [Vol. XII, N. S.
conflict in the evidence. The injury occurred by reason of the
car running into a cow standing on the track. The track of
the company is upon the south side of the public highway and
the driveway for the public is on the north side. The high-
way and track were practically unindosed, there being no fence
on the north side of the highway and very little on the south side
of the track.
The track where the injury occurred was in the open country
and for a long distance east and west thereof, was straight and
nearly level. The time was in the evening, but after dark.
The car went over the cow throwing off the rear truck and ran.
as the evidence tends strongly to show, some two or three hun-
dred feet after striking the cow. The car was equipped with
all the necessary appliances for stopping it, and the headlight
was burning.
The motorman testified he did not see the cow until he was
within two hundred feet of it, and that he immediately put on
the emergency brake, reversed his motor and did all in his
power to stop the car. By the testimony of the employes on
the car and others the car was running from thirty -five to forty
miles an hour. The car was a heavy express car. The company
proved that an object such as a cow standing upon the track
p.onld. not be seen by the light of the headlight more than three
hundred feet, and that it was impossible to stop such a cnr run-
ning at a si)ee(l of from thirty-five to forty miles an hour, by
proper use of all the appliances for that purpose, in a le;<s dis-
tance than four hundred feet.
Counsel for plaintiff in error seem to admit that the fact of
the injury under circumstances of this character raises a pre-
sumption of negligence upon the part of the company, which
presumption must be met by evidence of equal amount and
weight; that the maxim of res ipsa loquitur applies. Leaving
that maxim out of consideration, as there may be some doubt
about its applicability, the question arises: Do the facts show
such negligence upon the part of the employes of the oompanj'
as justified the jury in returning a verdict for the plaintiff?
The question must be largely, if not entirely, determined upon
CIRCUIT COURT REPORTS— NEW SERIES. 76
1909.] Lake County.
the fact as to whether or not the car was being run at such a
high rate of speed as to constitute negligence.
This car was running in the open country, and the claim af
plaintiff in error is, that in analogy to steam railways, the com-
pany had the right to run its car ^t any speed that it might
deem necessary in the operation of its road. We do not think
80. There is little analogy between the running of a train of
cars on a steam railway in the open country and the circum-
stances of this case. In the former the company owns its road-
bed absolutely and has exclusive control over it. It is fenced
on either side, and persons or animals being upon the track,
except at crossings, are trespassers. Here the road-bed was on
the public highway, and the rights of the public and the com-
pany were equal. The highway and track being unfenced, the
company might reasonably have anticipated that animals might
go upon the track ; yet it ran its car at such a rate of speed that
if such obstruction should be upon the track, it could not see it
by the light of the headlight in time to stop its car although
the track was straight and level.
Indeed this is the defense made by the company. We do not
think such defense tenable. There may be some doubt as to
how far the headlight would light up the track, and the dis-
tance at which the ear could have been stopped; but adopting
the claim of the company we are of opinion that it was n(»gli-
gence to run the car at such a rate of speed upon a straight lovol
track that an obstruction could not be seen in time to stop the
car. Of what use would be a headlight, if the car could not he
stopped on a level straight track within the distance lighted
by it ?
In the case of Cincinnati Street Railway Company v. Lewis,
3 C. C— N. S., page 115, it is held :
'*In the absence of a regulative ordinance, the rule as to
speed of electric oars is that of reasonable safety in view of all
the facts and surrounding conditions.''
The case, as shown by the opinion, was determined upon a
case that went to the Supreme Court from the same circuit,
where the same doctrine was held and aflSrmed.
76 d&CUlt COURT IlEtOllTS— NfiW SEftlES.
AnnBtrong t. Cincinnati et al. [Vol. XII, N. S.
Railway Company v. Osbom, 66 0. S., 45, is relied upon by
counsel for plaintiff in error. In that ease it was held :
** Where a passenger on a street railway car was thrown from
the car and injured by the sudden stopping of the car in the
effort to avoid the collision, and by the shock of the collision
which was not brought about by the negligence of the defendant,
it is damnum abseque injuria,''
In that case there could be no claim of negligence upon the
part of the gripman. The collision occurred in a street within
the city ; the bakery wagon was proceeding in the same direction
as the car, which was going at a speed not to exceed ten or
twelve miles an hour, and suddenly the wagon turned across
the track. In this emergency, which unexpectedly occurred, it
was the duty of the gripman to use every effort to avoid the
collision. His duty, not only to the driver of the wagon but
also to his passengers, was to avoid a collision if possible. We
do not think that case governs the case we have under con-
sideration.
The judgment of the court of common pleas will be affirmed.
LIABILITY FOR. INJURY TO SURROUNDING PROPERTY
FROM BLASTING.
Circuit Court of Hamilton County.
Sarah Armstrong v. The City of Cincinnati and The
W. J. Gawne Company.
Decided, April 3, 1909.
Blasting — Injury to Surrounding Property from — Creates no Liability
in the Absence of Negligence — Charge of Court as to the Degree
of Care Necessary in the Use of Explosives in Such Work.
It is not negligence per se to use explosives for blasting, and a charge
to the jury in an action for damages to property from blasting In
the neighborhood Is not erroneous, where the Jury are told that
"the users of such materials, knowing their explosive power and
their destructive tendency, are bound to exercise the highest de-
gree of care in their use."
CIRCmT COURT, REPORTS— NEW SERIES. 77
1909.] Hamilton County.
A. B, Huston and E, H. Williams, for plaintiff in error.
Jonas B, Frenhel, for the City of Cincinnati.
J. TT. Heinizman, for the W. J. Gawne Company.
Smith, J.; Gippen, P. J., and Swing, J., c5oncur.
The negligence complained of by plaintiff is that the defend-
ant in error, W. J. Gawne Company, having contracted with
the City of Cincinnati to construct for it a tunnel for the pur-
pose of supplying water to said city, in the course of the excava-
tion for the same wrongfully and negligently caused the loosen-
ing and removal of earth and rocks by means of blasts and ex-
plosions of dangerous and powerful explosive substanceii, pro-
ducing great concussion and disruption of the earth, thereby
causing her house, cistern, etc., to tremble and become disinte-
grated, cracked and broken, which resulted to her damage.
It is apparent that a proper oomplaint of this kind supported
by relevant and competent evidence would entitle the plaintiff
to recover for damages to her property because of concussions,
and the two questions raised upon this issue are :
First. Whether or not the verdict and judgment are sustained
by sufficient evidence.
Second. Whether or not plaintiff's right to recover depended
upK)n »the work being done negligently and the injury was the re-
sult of negligence, or upon simply showing that her property
was injured.
Upon the first contention we are not prepared to say that the
verdict is against the weight of the evidence.
Prom an examination of the record in this respect, we think
the jury might well find .that the injury, if any, to plaintiff's
property was not caused by the work of the defendants, and
having so found this court would be slow to set aside this verdict
unless the second ground of error complained of is well taken.
The court charged the jury as follows :
**It is difficult to lay down a hard and fast rule regarding the
use of explosives of high power under any and all circumstances.
*' However, the users of such materials, knowing their high
explosive power and their destructive tendency, are bound to
exercise the highest degree of care in their use."
78 CntCUIT COUBT BEPOBTS— NEW SEBEBS.
Armstrons ▼. Cincinnati et aL [Vol. XII, N. S.
Counsel for plaintiff in error contend that this charge is er-
roneous for the reason that the use of explosives by any person
does not depend upon the question of care, and in support of
this question of care, and in support of this contention rely upon
the two cases of Tiffin v. McCormick, 34 O. S., 6'38, and Brad-
ford Glycerine Co, v. 8t, Mary's Manufacturing Co.^ 60 0. S.,
560.
The first case is one where, in blasting in a stone quarry with
powder, fire was thrown upon the property of the injured party
which resulted in its destruction.
The second case is where nitroglycerine, a substance usually
recognized as highly explosive and dangerous, was stored at a
place which was a constant menace to the property in the vicinity
and damage resulted from its explosion.
The first case was decided upon the authority of Hay v. Cahoes
Co,, 2d N. Y., 159, and Tremain v. Cohoes Co., 2d N. Y.. 163.
In such cases the injury sued for was connected with a tres-
pass as when stone or inflammable materials were hurled on adja-
cent property, and the defendants were usually held liable with-
out regard to care or carelessness in doing the work.
In Benner v. Atlant'c Dredging Co., 134 N. Y., 156, it was
held that injuries to a house from blasting caused merely by the
shaking of the earth or pulsation of the air, or both, gave no
right of action, in the absence of negligence in doing the blasting;
and in Holland House v. Baird, 169 N. Y., 136, it was held that
injury to another's hoiLse by a mere concussion without throwing
rock or other material on the premises occasioned by blasting on
one 's own premises in order to adapt them to a lawful use, when
that mode is the only proper one and the work is transacted
with due care and diligence, creates no liability. The language
of the court in this last case is applicnble to the present, in that
this action is not one of a technicrtl trespass upon the property
of another, where proof of negligence in the defendant is lui-
necessary, but one of cousecjuential injury, where proof of neg-
ligence in performance is essential to a cause of action for dam-
ages.
This same rule was adopted in the case of Simon v. Henry, 62
N. J. L., 486, where it was held that a charge to the jury **that
CIRCUIT COUBT REPORTS— NEW SERIES. 79
1909.] Hamilton County.
blasting close by a building necessarily would, require a high de-
gree of care — perhaps the highest degree c f care — ^to protect the
building from injury" was not erroneous, and if the defend-
ants exercised reasonable care and skill in the use of the explo-
sive, they were not responsible for the damage aPeged. See,
also, Booth V. Rome, W, & 0. R. R., 140 N. Y., 267.
In the recent case of Thurmorid v. White Lime Association,
125 Mo. App., 73, this same rule in regard to negligence is up-
held.
We do not think the ruU> in Ohio in suyh cases as th'.» one at
bar is different, as the cases relied upon in this state by couns'^l
for plaintiff in error are such as where the blasting amounted to
a trespass upon the property of the party injured or where a
highly explosive or dangerous substance was stored upon one's
property which was a constant menace to the property in the
vicinity. We think, therefore, that the' charge of the court in
this regard was eminently proper.
We do not think the other objections urged by counsel for
plaintiff in error appear to have been prejudicial as, under the
evidence and the charge of the court, we believe the jury was
justified in the determination of the case as reached by it.
Judgment affinned.
PROCEEDUR.E WHERX CAUSES ARE MISJOINED.
Circuit Court of Hamilton County.
Jane ^Iorris v. Anchor Fire Insurance Co. et al.
Decided, July 27. 1908.
Improper Joinder of' Causes of Action — Proper Procedure by the
Plaintiff — 'Error to Dismiss the Petition — Section rt06.i.
A Uberal construction of the civil code in furtherance of Justice re-
quires that, where separate causes of action against several de-
fendants are improperly joined, the plaintiff be permitted to file
a petition against each defendant as provided by Section 5064,
Revised Statutes.
Moulinier, Bettman & Hunt, for plaintiff in error.
Wade Cushing, contra.
80 CIRCUIT COUBT REPORTS— NEW SERIES.
Morris v. Anchor Fire Ins. Co. [Vol. XII, N. S.
. >
Swing, P. J.; Gippen, J., and Smith, J., concur.
The demurrer to the petition on the ground that separate
causes of action against several defendants are improperly joined
was properly sustained, but we think the court erred in dismiss-
ing the petition. What the court should have done was to per-
mit the plaintiff to have filed several petitions against each de-
fendant by analogy with Section 5064, Revised Statutes. This
section does not in express terms apply to this case. It was
adopted long before the eighth cause of demurrer was made a
ground for demurrer; but there would seem to be no reason why
Section 5064 should apply to the seventh cause for demurrer
and not apply to the eighth cause for demurrer. The code
should be liberally construed in furtherance of justice as is shown
by Section 5114, Revised Statutes, whereby amendments are
provided for, and the general principles applicable to code
pleading, and we think this principle broad enough to cover this
case. To some extent it avoids costs and litigation and does no
substantial harm to the defendants.
OIBOXnT COURT RBPOBTS— NEW SERIES. 81
1909.] Brown Goonty.
PROHIBITION OF BUSINESS NEAR AN ACRICULTUIUUL
FAIR INVALID.
Circuit Court of Brown County.
A. G. Mabkley and Prank Shbiver v. State op Ohio.
Decided, April, 1909.
Constitutional Law — Delegation of Power to Agricultural Societies —
In Derogation of Property Rights, When — Police Power and its
Limitations — Agricultural Societies Bound by the Limitations of
Private Corporations — Tyranny in the Control of Corporations-^
Creation of Monopolies — Business which Disturbs Religious Exer^
cises Distinguished — Section 7006.
1. Section 7006 of Revised Statutes of Ohio which provides that "who-
ever establishes a temporary place of business for the sale of
any article whatsoever or offers for sale any such article * * *
within one-fourth of a mile of the fair ground of any agricultural
society, while the fair of such society is being held therein, unless
he had obtained the written permiBsion of the board of such
society" and imposing a penalty for the violation thereof, is an
unconstitutional exercise of power by the Legislature.
2. Such provision violates Section 1, Article XIV, of the Federal Con-
stitution, because it abridges the privileges and immunities of
citizens, deprives them of their property without due process of
law, and denies to each the equal protection of the law.
3. The delegation of power to the board of such fair, to determine who
shall do the forbidden act, is an unlawful restriction upon a law-
ful business, giving the board the power to destroy competition and
create a monopoly and to deprive a citizen of the right guaranteed
to him by Section 1, Article I, of the Bill of Rights of enjoying
and possessing his property.
E. ff. Kirkpatrick, for plaintiflfs in error.
George C. Barnes^ Prosecuting Attorney, contra.
Walters, J.; Cherrington, J., and Jones, J., concur.
This is a proceeding in error to reverse the judgment of the
lower court.
Plaintiflfs in error were indicted under Section 7006 of the
Revised Statutes for keeping a place of business, and also for
82 CIRCUIT COURT REPORTS— NEW SERIES.
Markley et al t. State of Ohio. [Vol. XII, N. S.
exposing for sale, and selling certain articles, viz., lemonade,
orangeade, ice cream, candy and pop-corn, within one-fourth of
a mile of the agricultural fair then being held in Brown county,
at Georgetown, by what is known as the Brown County Agri-
Kjultural Society, on the 7th, 8th and 9th of October, 1908.
Section 7006 is as follows:
** Whoever exhibits or shows any natural or artificial curiosity
for any price or gain, or sets up to let or use for profit any
swing, revolving swing, flying horses, whirligigs or other de-
vice, or whoever establishes a temporary place of business for
the sale of any article whats:)(»ver, or offers for sale any such
article except as a regularly estabMshed dealer in snich article
at h's usual place of business within one-fourth of a mile of the
fair ground of any agricultural society, while the fair of such
society is being held therein, unless he had obtained the written
permission of the board of such society, shall be fined not more
than one hundred dollars nor less than one dollar.'*
It is admitted in the bill of evidence that Markley, one of
the plaintiffs in error, owned the real estate upon which the
stand or booth was erected.
Tt is admitted also that the plaintiffs in error did, on the
days when the fair was being held, from the stand or booth so
erected, sell lemonade, ice cr?am, candy, orangeade and pop-
corn, without having first obtained the written permission so
to do from the board.
The only question presented for our consideration is whether
or not the provision of Section 7006, which refers to this sub-
ject-matter, is constitutional, or whether or not the Legislature
was prohibited by the fundamental law of the state from pass-
ing so much of this act as is embraced within this indictment.
Its constitutionality is based upon the right of the Legislature in
passing the act, to do so, because it was a valid exercise by it
of what is known as the police power of the state. The police
power has its origin and is confined to and deals with that
class of legislation which has to do with the public health, pub-
lic welfare, public morals and public safety. No general defini-
tion of this power, comprehensive enough to include within it
all ea.ses, has ever yet been wTitten. But w'hen called upon to
CIBCUIT COURT REPOBTS— NEW SERIES. 88
1909.] Brown County.
apply to it the right of the Legislature to enact a particular
law, which for its validity must rest upou the existence of one
or more of the objects embraced within its scope, its definition
does not seem so apparent or important. Especially is this
observation true when applied to this case. In determining
whether this portion of this Section 7006 is justified as being
within the police power, or is in violation of the Constitution,
we must ascertain whether the health, morals, safety and wel-
fare of the public justify its enactment. The solution of this \
depends somewhat upon the question as to whether the Brown
County Agricultural Society is a public or private corporation
or agency.
In Dunn v. Agricultural Society, 46 0. S., 97, the Supreme
Court of Ohio held that this, the Brown County Agricultural
Society, was a private corporation aggregate, being a number
of ** natural persons associated together by their free consent
for the better accomplishment of their purposes, and were
bound to the same care in the use of their property and conduct
of their affairs to avoid injury to others as natural persons, and
a disregard or neglect of that duty involves a like liability."
If this association was a public agency established exclusively
for public purpose by the state, and connected with the admin-
istration of local governments, then it might well be said the
Legislature had authority to regulate even to prohibition of acts
which would interfere with its successful operation. The court,
however, having found that it was a private corporation it
must be .treated the same as a natural person, though it may
serve a public purpose,
Mr. Tiedman, in his work on the Limitations of Police Powers,
at page 290, says:
**If the business is not harmful the prosecution of it can not
lawfully be prohibited to one who will conduct the business in
a proper and circumspect manner. Such an one would be de-
prived of his liberty without due process of law.''
At page 301, the same author says:
**It has also been maintained, and we think satisfactorily es-
tablished, that no trade can be prohibited altogether, unless the
84 CntCUIT COURT BEPOBTS— NEW SEBIBS.
Markley et al ▼. State of Ohio. [Yol. XII, N. S.
evil is inherent in the character of the trade; so that the trade
however conducted and whatever may be the character of the
person engaged in it, must necessarily produce injury upon
public or upon individual third persons."
Mr. Justice Brown, in Lawton v. Steele, 152 U. S., 133, 136
and 137 (14 Sup. Ct. Rep., 499), says:
*'To justify the state in thus interposing its authority in be-
half of the public, it must appear, first, that the interests of the
public generally, as distinguished from those of a particular
class, require such interference; and, second, that the means
are reasonably necessary for the accomplishment of the pur-
pose and not unduly oppressive upon individuals. The Legisla-
ture may not, under the guise of protecting the public interests,
arbitrarily interfere with private business, or impose unusual
and unnecessary restrictions upon lawful occupations."
**It will probably not be disputed that every one has a right
to pursue in a lawful manner, any lawful calling which he may
select. The state can neither compel him to pursue any par-
ticular calling, nor prohibit him from engaging in any lawful
business, providing he does so in a lawful manner." Tiedeman,
Section 85.
**If the police regulation of trades and occupations can not
be instituted and enforced, except so far as a trade or occupa-
tion is harmful or threatens to be harmful in any way to the
public, however slight the restraining may be, so much the more
ne:'(»sHary must it be to confine the exercise of the police power
to the prevention of the injuries with which the public is threat-
ened by the prosecution of a calling, when the law undertakes
to deny altogether the right to pursue the calling or profession.
In proportion to the severity or extent of the police control
must the strict observance of the constitutional limitations upon
police power be required. There is no easier or more tempting
opportunity for the practice of tyranny than in the police con-
trol of occupations. Good and bad motives often combine to
accomplish this kind of tyranny. The zeal of the reformer, as
well as cupidity and self interest, must alike be guarded against.
Both are apt to prompt the employment of means to attain the
end desired, which the Constitution prohibits.
**Tt has been .so often explained and stated, that the police
power must, when exerted in any direction, he confined to the
imposition of those restrictions and biird<»ns which are necessary
to promote the general welfare, in other words to prevent the
. OIBCUIT COURT REPORTS— NEW SERIES. 86
1909.] Brown Ck>unty.
infliction of a public injury, that it seems to be an unpardonable
reiteration to make any further reference to it. But the prin-
ciple thus enunciated is the key to every problem arising out
of the exercise of police power. Applied to the question of
prohibition of trades and occupations, it declares unwarranted
by the Constitution any law which prohibits altogether an occu-
pation, the prosecution of which does not necessarily, and be-
cause of its unenviable character, work an injury to the public."
Tiedeman, Section 102.
**As long as a trade does not injure the public health, and is
the source of no annoyance whatever to the inhabitants of the
locality in which it is conducted, it can not lawfuly be pro-
hibited. Every man has a constitutional right to follow on his
premises any calling, provided it does not in any way interfere
with another's reasonable enjoyment of his premises/' Tiede-
man, Section 104.
We can see no element derived from the police power upon
which this part of this act can be upheld. To sustain it would
be to take another's property without due process of law.
This act in its provisions admits the lawfulness of the things
complained of in the indictment, by providing that the written
permiission of the board of such society is the only requirement.
Power is, therefore, here delegated to one person in his discre-
tion to say whether another, his neighbor, shall be permitted to
do a lawful act on his own premises, viz., sell his own personal
property, which act is not in itself injurious to the public or
any private individual, except he may come in competition in the
sale of it with the person to whom is granted the power to say
whether he shall compet or sell at all.
**The right to pursue any lawful business is more than a mere
right. It is property that c^n not be taken from him without
due process of law.'' aSVa/c v. Scoiigl, 51 N. E., 865.
**It is not the question of how much or how little loss the citi-
zen may sustain, it is a question of the power of the Legislatun*
to deprive a citizen of his property. If the power exists to take
anv, it would be difficult to fix the limit." M Uct v. Penplr,
117 lU., 294.
Section 1, Article XIV of the Constitution of the United
States provides:
86 OntOUIT OOUBT REPORTS— NEW SERIES. .
Markley et al v. State of Ohio. [Vol. XII, N. S.
''No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States.
Nor shall any state deprive any person of life, liberty or prop-
erty without due process of law, nor deny to any person within
its jurisdiction the equal protection of the law.''
Justice Field, in Slaughter-House Cctses, 16 Wallace, 97, says:
''The privilege and immunities designated are those which
of right apply to the citizens of all free governments. Clearly
among these must be placed the right to pursue a lawful em-
ployment in a lawful manner without other restraints than
such as equally affect all persons.
yy
Section 1, Article I, of our Bill of Bights declares :
"All men • • • have certain inalienable rights among
which are those of enjoying and defending life and liberty, and
acquiring, possessing and protecting property."
•
The effect of the act in question is to restrict or abridge the
right of the plaintiffs in error to use and enjoy their property in
a particular manner, so that the fair company may use its prop-
erty in the same manner to greater profit than it could if each
was left to the free use of its or their own as it or they should
see fit. It is inimical to Section 1, Article XIV of the Federal
Constitutibn above quoted, because it therefore abridges the
privileges and immunities of citizen; deprives them of their
prop<Tty without due process of law and deni(»s to each the
ofjual protection of the law.
The a(*,t in question gives to the board of trustees of the fair
company the right to say who shall do the forbidden act; and
restrains a lawful trade and occupation, and gives it the power
to destroy competition, and, therefore, create a monopoly. It
takes away from the plaintiffs in error the right guaranteed
them by Section 1, Article 1, of our Bill of Rights, the privilege
of enjoying and possessing their property. It gives to the fair
association an absolute and arbitrary power over the property
of others.
The only case which has been cited to us directly in point is
reported in 26 Am. Rep., page 189. It is a Kentucky case and
the svUabus of the same is as follows:
OIBOUIT COUBT REPORTS— NEW SERIES. 87
.■■ ■■ I — ^— — I ■■ I ■■.II ■ ■■ iii-.i I I I.I II .
1909.] Franklin County.
**A statute forbidding any person to carry on the stabling
business within a given distance of the grounds of a specified
agricultural society, during the continuance of its fairs, and im-
posing a penalty for any breach of the law, is an unconstitu-
tional interference with the right of enjoyment of private prop-
erty."
The statute under which this decision is made is in all re-
spects like the one at bar.
We were cited in argument a Massachusetts case, where a
somewhat similar statute was held to be constitutional, and as
being a proper exercise of the police power. In that case, how-
ever, the contention arose between a camp meeting association
while engaged in the services usual and incident to those gath-
erings, and a carrying on of other business within the prohibited
distance, which the court found might interfere and distract
the attention of those who might desire to engage in those relig-
ious exercises from their proper performance of the sai^e.
Entertaining these views we are constrained to hold that the
act in question so far as it relates to the subject-matter in the
indictment is unconstitutional, and the judgment of the lower
court will be reversed; and, proceeding to enter such decree as
the lower court should have entered, the plaintiffs will be dis-
charged.
APPEAL BY AN EXECUTOR FROM THE COMMON PLEAS TO
THE CIRCUIT COURT.
Circuit Court of Franklin County.
John M. Fergus, Administrator, v. W. T. McClure,
EXECITTOR, ET AL.
Decided, April, 1909.
Appeal — By an Executor in the Interest of his Trust — As to Filing No-
tice ioith the Olerkr— Effect of Giving Bond— What it is that Ef-
fectuates the Appeal— Sections 6408, 5227, 5228 and 5229.
Where an appeal from a decision or order of the common pleas to the
circuit court is desired to be taken by an executor, etc., in the in-
terest of the trust in pursuance of the provisions of Section 5228,
Revised Statutes, a written notice of an intention to appeal must
88 OmomT COUBT BEPOBTS— NEW SEBtBS.
FerguB, Admr., v. McClure» Excr. [Vol. XII, N. 8.
be filed with the clerk of the common pleas within thirty days af-
ter the entering of the judgment appealed from as provided by
Section 6408, Revised STtatutee.
A. C, Harvey, for plaintiff.
W, T. McClure, for defendants.
Sullivan, J. ; Dustin, J., and Allbead, J., concur.
The defendant, William T. McClure, as executor, desiring to
appeal in the interest of his trust to this court from the decision
of the common pleas court, caused to be incorporated in the
entry of the judgment a notice of his intention to appeal. On
a day subsequent, the court caused the following to be entered
on its records, to-wit:
* * It appearing to the court that written notice has been given
according to law by William T. McClure, trustee, etc., defend-
ant in the above entitled cause, of his intention to appeal from
the decision of this court to the Cjipcuit Court of Franklin County,
Ohio; that the defendant has giVen bond in the Probate Court
of Franklin County, Ohio, as trustee of the estate of Moses
Hanna, deceased, it is therefore ordered that no appeal bond be
required of said defendant.**
No written notice as an original paper in the case was filed,
and the subsequent finding of the court is based entirely upon
thp notice appearing in the entry of judgment.
The plaintiff has filed his motion to dismiss the appeal stating
two fj^rounds. First, the* failure to file a written notice by the
defendant of his intention to appeal in the interest of his trust
as required by Section 6408, Revised Statutes; and second, the
failure of the clerk of the common pleas to file a transcript in
this court at the expiration of thirty days after the entering of
the judgment.
Taking up the last of these grounds first. Section 5228, Re-
vised Statutes, provides that, **the clerk of the common pleas
court at the expiration of thirty days from the entering of such
judgment or order upon the journal of the court, shall, if not
otherwise directed, make a transcript, which, together with the
papers and pleadings filed in the case he shall transmit to the
clerk of the circuit court as in other cases of appeal.*'
The provisions of this section are the same as they were prior
to the amendment of Section 5227, Revised Statutes, omitting
MROUIT COURT REPORTS-NEW SERIES. 80
1909.] Franklin County.
written notice of an intention to appeal. Prior to said amend-
ment, the clerk was notified of an intention to appeal by an ex-
ecutor or an administrator, and hence it was his duty to prepare
the transcript, 'etc., and file in the circuit court unless the ex-
ecutor or administrator after giving such notice directed the
clerk not to do so. After the written notice of an appeal had
been filed with the clerk by the executor or administrator, the
appellant was not required to see that the clerk discharged this
duty, and hence the failure of the clerk in that respect could not
prejudice the rights of the appellant. We think this ground not
well taken. Hubble v. Renick, 1 Ohio St., 171; Hirsh v. Kits-
heimer, 12 C. C, 291.
The appellant here has given bond in this state with sureties
according to law, and hence by favor of Section 5228, Revised
Statutes, he is not required to give the undertaking required of
parties appealing in their own interests by Section 6227.
Prior to the amendment of the latter section in 1904, the
written notice required advised the clerk of an intention of a
party to the action who was an executor or administrator to ap-
peal in the interests of their respective trusts.
As the necessary bond has been given, it is apparent that it
was the written notice that effectuated the appeal in such cases.
As such written notice is no longer required by Section 5227, and
if not required at all, the clerk in all easels where an executor or
administrator was a party, would be required unless otherwise
directed to prepare a transcript, etc., and file it and the original
papers and pleadings in the clerk's office of the circuit court.
Before Section 5227, Revised Statutes, was so amended as to
omit the filing of the written notice, executors and administra-
tors were required like all other parties desiring to appeal from
the common pleas to the circuit court, to file such notice, and a
failure to do so defeated the right of appeal. After filing such
notice if he' or they desired to abandon the purpose to appeal,
notice of that fact was required to be given the clerk; other-
wise he was required to proceed with the transcript, etc., as pro-
vided in Section 5228, Revised Statutes; and now unless such
written notice is required by some other section of the statute,
in all cases where an executor or administrator is a party, an ap-
peal is effectuated within thirty days from the entering of the
90 CnOUIT COUBT KSPOBTS— NBW SBSIBS.
Fergufl, Admr., ▼. MoClnre, Excr. [VoL XII, N. S.
judgment on the journal of the court, unless within that period
the executor or administrator by some act waives the right of
appeal. Such was not certainly intended by the Legislature,
and as the written notice of an intention to appeal was neces-
sary to perfect such right, prior to the amendment of Section
5227, by an executor or administrator, and the apparent im-
perative necessity for such notice that the clerk might be advised
as to his duties, it is reasonable, we think, to conclude that the
Ijegislature contemplated that the giving of such notice would
be required by some other section in the event Section 5227
should be so amended as to omit the giving of such notice where
parties took an appeal in their own interests. If written notice
was provided for in some general act, it would come into force
if Section 5227 should be amended by omitting such requisite.
If a party to an action in the common pleas should die after
judgment and within the period provided by Section 5227, Re-
vised Statutes, for giving the undertaking in appeal, whether
his executor or administrator in such case could take an appeal
may be questionable under Section 5229, Revised Statutes. How-
ever, if such right passed to the personal representative, notice
of an intention to exercise the right would have to be entered
upon the journal of the court. The giving of a bond in the state
(conditioned for the faithful performance of the duties of the
trust would not effectuate an appeal. When such notioe was
(»!itere(l on the journal, the executor or administrator as the ease
might ho, thereby became a party to the judgment and the ap-
peal at once perfected. Where notice of an intention to appeal
is required, the courts, we believe, have uniformly held that
an omission to give it, and also to give it in the manner required
by statute, was fatal.
The clerk of the common pleas is not required to perform the
duties devolved upon him by Section 5335, Revised Statutes,
until the appeal is perfected in which are included those named
in Section 5228, Revised Statutes.
Where parties desiring to appeal in their own interest, an
appeal is effectuated by the giving of the undertaking provided
for by Section 5227, where an appeal is desired to be taken by
an executor or administrator in the interests of his trust, and
has given bond in the state with sureties according to law, un-
CUtOmT COURT reports-new series. • 01
1909.] Franklin County.
less there is some statute providing that the fact of having given
such bond effectuates an appeal, an appeal would not be con-
summated. The right of appeal is a statutory right. The
method by which it may be accomplished must be prescribed by
statute. The provisions of Section 5228, Revised Statutes, were
enacted with reference to those of Section 5227, prior to the
amendment of the latter omitting written notice. Two things
were necessary to perfect an appeal, the notice and bond. If
the several trustees named in Section 5228, Revised Statutes, had
given the bond therein mentioned, the one provided for in Section
5227 should not be required. Section 5228 was not changed
but is the same as it was before Section 5227 was amended. This
alone would seem to be sufficient to indicate that the Legislature
contemplated that the same steps were still required on the part
of an executor, etc., taking an appeal, that were required before
Section 5227 was amended.
It is contended by the appellee that Section 6408, Revised
Statutes, now regulates the manner of taking appeals by execu-
tors and administrators from the common pleas to the circuit
court.
That section is found in the chapter of general provisions and
that part of the section relating to the taking of appeals by such
trustees reads as follows:
**But when the person appealing from any judgment or order
in any court, or before any tribunal^ is a party in a fidneiary
capacity, in which he has given bond within the state, for the
faithful discharge of his duties, and appeals in the interest of
the trust, he shall not be required to give bond, but shall be al-
lowed the appeal, by giving written notice to the court of his
intention to appeal within the time limited for giving bond.''
Is this provision now applicable to appeals from the common
pleas to the circuit court? True, much of it is a duplicate of
the provisions of Section 5228, for which reason it can be said
that it was not intended to apply to such appeals, and that the
latter section was alone applicable.
It is quite apparent before Section 5227 was amended, that
it could not apply, for then a complete method of appeal was
provided by Sections 5227 and 5228.
92 . OmOUIT COURT REPORTS— NEW SERIES.
Fergus, Admr., v. MeClure, Excr. [Vol. XII,N. S.
Furthermore, if Section 6408, Revised Statutes, is applicable,
the first paragraph of Section 5228 is superfluous, and it, seems
inapplicable if the Legislature intended Section 6408 to apply
when amending Section 5227, supra, they did not amend Section
5228 by omitting the first paragraph.
It seems to us that as appeals can be taken by executors and
administrators from the common pleas to this court without
giving the undertaking required by Section 5227, that some no-
tice by such parties of such intention is indispensable.
The language found in Section 6408, Revised Statutes, as fol-
lows, '' appealing, from any judgment or order in any court, or
before any tribunal," is broad and comprehensive enough to in-
clude the case at bar. It says the notice must be given to the
court, from which it may be inferred that the section related to
appeals alone from ths probate court, but in our opinion the fil-
ing of the notice with the clerk of the court from which an ap-
peal is taken would be a substantial compliance with that part
of the section quoted above.
The notice must be given within the time limited for giving
bond. This may well relate, and without doubt does, to the time
limited by Section 5227 for giving the undertaking.
We do not believe this view conflicts with the authority of
Layer, Odn,, v. Schaber, Admr., 57 Ohio St., 234, relied upon by
(M)nnsel for appellant.
There the appeal was taken when notice of an intention to ap-
peal was required to be entered on the record within three days
after the judgment or order appealed from was entered on the
journal. It was then very clear that Section 6408, Revised Stat-
utes, did not apply to such appeals because the latter required
the notice to be given in writing as an original paper and to be
filed with the court within twenty days after the time limited for
the giving of the bond, whilst under Section 5227, Revised Stat-
utes, the notice was required to be given within three days after
entering the judgment or order on the journal, and said notie^^
was required to be entered on the record.
The provisions were so different in these several respects, that
it was easily demonstrated that Section 5227 alone applied to
such appeals.
CIRCUIT COUBT REPORTS— NEW SERIES. 03
1909.1 Cuyahoga County.
The judgment in that case as indicated by the opinion on page
238 was based upon the difference in time required by the two
sections for filing the notice.
We are, therefore, of the opinion that the second ground of
the motion to dismiss the appeal is well taken and the same is
therefore sustained and appeal dismissed at appellant's costs.
ACTION rOR MONEY LOST IN GAMBLING.
Circuit Court of Cuyahoga County.
George H. Burrows, Assignee, v. Lura Hussong.
Decided, June 15, 1906.
Oombling — Action for Recovery of Money Lost at — Must he Brought
Within Six Months of the Loss — Statute not Arrested by Presenta-
tion of Claim to Assignee.
1. Section 4270, Revised Statutes, providing that a loser may within
Biz months thereof sue for the recovery of money lost at gaming,
is a statute of limitations; and where an interval of more than six
months occurs between the loss of the money and the bringing of
suit for recovery thereof, the plaintiff is barred from prosecuting
the action, notwithstanding the defendant had made an assignment
for the benefit of creditors and the plaintiff had presented a claim
for the money so lost to the assignee within six months of the
loss.
2. Presentation of a claim to an assignee for allowance under Section
6352, Revised Statutes, does not prevent a statute of limitations
from running where the claim was not £llowed.
Error to Cuyahoga Common Pleas Court.
Burrows & Mason cited for plaintiff in error:
Estill V. Fox, 23 Ky. (18 Am. Dec.,. 213) ; Woodson v. Gor-
don. 7 Tenn.. 196 (14 Am. Dec. 743) ; Ellmore v. Hoifman, 2
Ashtn. (Pa.), 159; Commonwealth v. Bennett, 16 Serg. & R.
(Pa.), 243; Cooperx. Rowley, 29 Ohio St . 547; Hnss v. Lajjton,
3 Ohio St.. 352.
H. M, Bull and W. (\ Rogers cited for defendant in error:
14 Enc. Law (2 Ed.), 625; Mrcch v. Stoner, 19 N. Y., 26;
McDoiKjall V. Walling, 48 Barb., 364; Vollins v. Ragrew, 15
94 CIBOUIT COUBT BBPOKTS— NEW SERIES.
Burrows, Assignee, v. Hussong. [Vol. XII, N. 3.
Johns., 5; 8 Enc. Law (2 Ed.), 239, 247; Davis' Appeal, 39
Conn., 395; Bump, Fraud. Convey. (3 Ed.), 508; Cannon v.
Cheney, 8 C. C, 143 (affirming Cheney v. Cannon, 35 Bull., 313) ;
Rogers v. Edmund, 21 C. C, 655; 1 Bates' Pleadings, 444; Rice
V. Farnham, 7 N P., 189 ; Cooper v. Rowley, 29 Ohio St., 547 ;
Perry, Trusts, See. 863, 864; Bettman v. Hunt, 12 Bull., 286.
Winch, J.; Henry, J., and Marvin, J., concur.
Lura A. Hussong brought her action in the common pleas
court to compel George H. Burrows, as assignee for the benefit
of the creditors of the firm of Johnson, Walther & Co.. to allow
her alleged claim against said estate.
In her petition she sets forth that the partnership was indebted
to her for money had and received to her use, won of her at
gaming by said partnership and by her paid to them between
October 25, 1904, and April 17, 1905, inclusive, whereby an ac-
tion accrued to her under the statute against gaming.
She further shows that said partnership made an assignment
to plaintiff in error on May 27, 1905; she presented her claim
to the assignee on June — , 1905; he rejected said claim Decem-
ber 13, 1905, and thereupon she filed said petition on January
11„ 1906.
To this petition the defendant filed a general demurrer, which
was overruled, judgment entered against him, and the case is
here on error.
The character of plaintiff's claim is to be determined by an
examination of the statutes against gaming, referred to in her
petition. They are found in the Revised Statutes as Section
42695 to 4276, Revised Statutes, inclusive.
Section 4269 provides that all gaming contracts are void.
Section 4270 provides that if any person, by means of any
bet or wager, loses to any other person any sum of money and
pays the same to the winner, the person who so loses and pays
may, at any time within six months next after such loss and pay-
ment, sue for and recover the money by civil action.
This is a statute of limitations and we hold that the loser, as
such, can. not recover the money lost, after six months.
The plaintiff below having allowed more than six months to
elapse after she lost the money before she began her suit, was
CIRCUIT COURT REPORTS— NEW SERIES. 95
1909.] Cuyahoga County.
barred from prosecuting the remedy provided for her under
Section 4270, and this is so, notwithstanding she presented her
claim to the assignee within six months, as he never allowed said
claim.
Section '6352, Revised Statutes, regulates the presentatioi^ of
claims to an assignee and their allowance or rejection by him,
but it does not specifically provide that any statute of limita-
tions shall be arrested by the mere presentation of a claim to
him. Of course, should he approve the claim, the statute would
cease to run against it. In this case he never approved the
claim, but having considered it for a time, he finally rejected it.
The situation is the same as though the claim had been pre-
sented to the assignee, but suit not brought until after the six
months mentioned in Section 4270. See Wood, Limitations,
Section 6, and cases there cited.
But it is said that plaintiff is entitled to maintain her action
under favor of Section 4273 of the gaming act, which provides
that:
**If the person losing such money or thing of value as provided
in Section 4270 does not, within the time therein specified, with-
out collusion or deceit, sue, and with effect prosecute, for the
money or thing of value so lost and paid or delivered, any per-
son may sue for and recover the same, with costs of suit, against
any winner, as aforesaid, for the use of the person prosecuting
the same."
• In the case of Cooper v. Rowley, 29 Ohio St., 547, the Su-
preme Court held that the remedy provided by this sest'on is for
a penalty or forfeiture, accrues at the expiration of the six
months limited in Section 4270 and is barred in one year therp-
after.
**Nor is its character affected by the circumvStances that the
loser of the money wagered, is the party suing. He is per-
mitted to sue, not from havint? any lega^ claim to the fund in
virtue of once owning it, but because he is included in the com-
prehensive c^ass authorized to nia'ntain the action.''
If this right to sue for a pi'iialty dd not aecnu' until six
months after the money was lost, it did not come into existence
until after the assignee qualified. When it did come into ex-
9« CmCUIT COURT EEPORTS— NEW SERIES.
Burrows, Assignee, v. Hussong. [Vol. XII, N. 8.
istence it belonged to each citizen and the plaintiff's rights were
no better than those of every other citizen and the only way
she could segregate her right was to bring her suit, which she
finally did. That suit she could maintain against the assignors,
for the assignment did not preclude her from suing the firm, but
she never had a claim against the assets in the hands of the as-
signee and we hold that he should not now be compelled to al-
low it.
The case of Estill v. Fox, 23 Ky., 552 (18 Am. Dec, 213), is
interesting in this connection.
Counsel for defendant in error argues that her claim is in the
nature of damages for a tort committed before the assignment
with action brought after the assignment, and that therefore
it is a claim against the estate, but we view the action as one
for the recovery of a fine.
Should a man be guilty of a misdemeanor before his assign-
ment and be arrested, convicted and fined afterward, there would
be no debt in favor of the state until the fine was assessed, and
in such case no one would urge that the debt related back to the
time when the crime was committed. Such is the case also where
the fine is recoverable by an informer, as in this case, but is as-
sessed as a penalty.
This conclusion is not inconsistent with our ruling in Pentz
v. Burrows, 8 C. C. — N. S., 349. That case was brought by the
loser to recover the money lost within six months; this case
was brought for a penalty after the six months.
The demurrer to the petition should have been sustained, and
for error in overruling it the judgment is reversed.
CIECUIT COUBT REPORTS— NEW SERIES. 97
1909.1 Pike County.
ERROIL IN IMPANTttUNG AND MSCHARCING JURIES.
#
Circuit Court of Pike County.
Guy H. Deiter v. The State op Ohio.
■ -
Decided, May 19, 1909.
Jurors Grand and Petit — Should he Drawn from the Wheel as Dis-
tinct Panels— Plea iny Abatement— Sections 5165, 5169, 5170, 5171,
5172 and 5176 — Discretion in the Discharge of Jurors.
9
Assuming to act under Section 5166 of the Revised Statutes, the com-
mon pleas judge ordered thirty-five names to be drawn from the
jury wheel to act as grand or petit jurors, without designation
whether they should be grand or petit, or what number should
constitute either, in his direction to the clerk. Thirty-four hav-
ing appeared at the first day of the term the judge selected fifteen
of said persons and directed the clerk .to call them as grand jur-
ors. This left the remaining nineteen as the regular petit panel.
Later at the term the judge discharged the entire regular petit
panel because it or they were "so interested in causes coming on
further to be heard in this court, so as to disqualify them from
sitting thereon," and ordered the new jury drawn to appear on the
day the accused was tried. Held:
1. A court or judge, under Section 5165, Revised Statutes, has no
authority to so exercise his personal selection of the entire grand
jury panel in the manner stated. The order to the clerk should
stipulate the number of each panel to be drawn; and the clerk
should draw from the wheel the grand and petit juries as dis-
tinct panels.
2. A court has no authority to discharge the entire panel of the petit
jury for the cause above stated; and it is an abuse of discretion
so to do.
3. The irregularity in the selection of the grand jury, thus pursued,
can not be attacked by plea in abatement.
S. L. Patterson and C. H. Uenkel, for plaintiff in error.
James A, Douglass, Prosecuting Attorney, contra.
Guy H. Deiter was indicted for grand larceny. He excepted
to the indictment by filing a verified plea in abatement which,
among other facts, set forth that one of the judges of the Common
Pleas Court of Pike County directed the clerk of said court to
draw from the jury wheel in the presence of the sheriff, thirty-
98 OIBOUIT COXIBT BEP0BT8— NEW SERIES.
Deiter v. State of Ohio. [Vol. XII, N. S.
five names of persons to serve as grand and petit jnrors for the
November term, 1908, of the court in said county, and to appear
at 9 o'clock A. M., on November 16th, 1908, that being the first
day of the term. On November 5th, 1908, the deputy clerk drew
thirty-five names from the wheel as directed and issued a venire
facias to the sheriff commanding him to serve said persons to at-
tend said court as jurors, either grand or petit, at the time named.
On the 7th of November the sheriff served all of the persons
personally, except one who was out of the county. On November
16th, 1908, the thirty-fmir persons so summoned as jurors ap-
peared in court, ''and the judge of said court directed the clerk
of said court to call certain persons of said venire selected by
said judge of said court (w grand jurors for said term and court.
Thereupon the fifteen persons so selected were impanneled and
sworn/* The plea then alleges that the fifteen persons so selected
after hearing a part of the evidence, considered the evidence and
indicted the defendant, but before returning the indictment into
court one of the members was excused for sickness and another
substituted to fill the panel ; that the substituted member did not
hear all of the evidence submitted to the others, and that a part
of the evidence was not re-submitted before the return of the
indictment.
A demurrer was interposed to this plea by the state, on the
ground that the plea did not state facts sufficient, etc. The de-
murrer was sustained and the plea overruled.
The additional errors claimed are predicated upon the motion
and challenge to the array of the petit jury, find upon oral mo-
tions, made in open court prior to its impanneling, which appear
in the bill of exceptions. It appears from the record that .the
regular petit jury impanneled for the term was discharged by
the court for the reason as alleged in the entry, **that the present
petit jury is so interested in causes coming on further to be heard
in this court, so as to disqualify them from sitting thereon, it
is ordered that said jury and the several jurors thereof, be, and
they are hereby discharged from further service in this court.'*
It further appears that the court ordered that "the petit jury
heretofore selected by the court *' having been duly discharged,
the clerk draw new names from the wheel to serve as a new
petit jury for the term and cause them to be summoned to ap-
CmCXnT COUBT reports— new series. 99
1909.] Pike County.
pear at court on December 30th, 1908, the time when defend-
ant's case came on for trial.
Other motions were made to the court ; a demand for the regu-
lar jury originally selected was made and overruled. A motion
to set aside and challenging the array was made, based upon the
action of the court in discharging the regular jury for the cause
stated, and in impanneling the new petit jury. These motions
were also overruled. A trial followed resulting in conviction.
Jones J. ; Cherbinoton, J., and Walters, J., concur.
The record might have stated the crucial facts in this case a
little more succinctly. As admitted by counsel on bcJth sides, the
facts briefly stated are as follows:
The judge ordered thirty-five names to be drawn from the jury
wheel to act as grand or petit jurors, without designation wheth-
er they should be grand or petit, or what number should consti-
tute either, in his direction to the clerk. Thirty-four having ap-
peared at the first day of the term, he selected fifteen of the said
persons, and directed the clerk to call them as grand jurors. This
left the remaining nineteen as the regular petit panel. Later at
the term he discharged the entire regular petit panel because it
or they were **80 interested in causes'* to be heard, and ordered a
new jury drawn to appear on the day the accused was tried.
PlaintiflF in error claims a number of errors were committed,
but, with the exception of two, we consider them irregularities
merely, and not substantial errors. The vital questions in this
case, as we view them, relate to the method employed tn the
impanneling of the grand and petit juries. Broadly speaking, we
recognize the well known legal principle that irregularities in the
impanneling of juries, which do not affect the substantial rights
of the accused, will not be considered on review ; that the method
of their selection concerns the public rather than the parties.
But it does not follow that the power of the court or judge
transcends the law relating to their selection. The method em-
ployed in the case at bar, if adopted in practice, would sap at
the foundations of our jury system. It is autocratic in that it
would invest the trial judge with almost unlimited power in
the construction of petit and grand juries. It is not denied but
100 OIROUIT COUBT REPORTS— NEW SERIES.
Delter ▼. State of Ohio. [Vol. XII, N. S.
that the state may confer such power as it pleases in the method
of selection, having regard only to the constitutional guarantee
of a trial by an impartial jury. The method employed affects not
only the accused who was on trial, but the entire body politic.
And we can not more aptly state our views in that regard than
by adopting the language of the learned judge, in State v. Barlow,
70 0. S., 379, wherein he sayS:
**The right of everyone accused of crime to a fair trial should
be secured to him, and this court, as in the past, will insist
upon this, but we do not incline to search for unsubstantial errors,
or to give undue effect to them when discovered by others."
1. In our judgment Section 5165 requires the court or judge,
in his order to the clerk, to cause any number of persons to be
summoned as grand or petit jurors, to specify in his order the
number of grand and petit jurors, respectively, that is to be
drawn from the wheel. The requirement of the section, **to be
summoned to serve as grand or petit jurors,*' taken in connec-
tion with the cognate sections immediately following, must be
construed to mean that the direction should be, to cause them
to be summoned to serve as grand jurors, or to be summoned as
petit jurors as the case may be. The section further provides
that grand and petit juries shall be impanneled from persons "so
selected and summoned as aforesaid.*^
Sections 5169, 5170 and 5171 recognize the fact of separate
bodies as drawn from the wheel. By the first the summons is
issued for the person drawn as grand or petit juror "as the case
m>ay be"; the second by its provision that ''if any person selected
as grand or petit juror, as aforesaid, be not summoned*' equally
recognizes the distinction between the two bodies. Section 5171
provides, if there be a deficiency in the grand jury, that the court
may issue a venire for talesman to supply the deficiency.
The statute does not even impliedly authorize the court arbi-
trarily to select these two juries any more than it does the clerk.
The care by which the Legislature has attempted to safeguard the
wheel and its contents, and by providing the uniformity of pieces
of paper upon which the names are written and their thorough
admixture before drawing, indicates that, to the wheel and not to
the court or judge, is confined the impartiality of selection of the
grand and petit juries. The order directed to the clerk should
state the number of each desired to be selected, or a separate writ
CIBCUIT COURT REPORTS— NJSW SERIIS. 101
1909.] Pike Ck>unty.
might issue for each panel ; and the clerk should draw each panel
as a distinct panel. So far as we know, this is the universal cus-
tom employed by the common pleas judges in this circuit. And
while this fact does not determine its validity, it serves to show
the construction these judges give the law.
2. Much of what has been said of the method employed in the
selection of the grand jury would apply to the selection of the
petit jury, if those facts were fully incorporated in the bill in
support of the challenge to the array of the petit jury. The action
of the court in selecting certain persons from the whole list to
serve as a grand jury, was tantamount to the selection of the
regular petit jury. The remaining nineteen persons necessarily
became the regular petit jury.
However, there is further reason why the challenge to the array
should have been sustained. Section 7276, Revised Statutes, pro-
vides that the jury, summoned and impanneled according to
the provisions of law relating to the summoning and impannel-
ing of juries in other cases, shall try the accused. The court,
two days before the trial of the accused, discharged the entire
regular panel, for the ostensible reason as shown by its journal,
that it was so interested in causes coming on further to be heard
as to disqualify them from sitting thereon. The action of the
court in this regard is sought to be upheld by Section 5172, which
provides that if, ^'from any cause," it becomes necessary to
have a new petit jury or members to filll up the regular panel,
the court may order the names of the number of jurors re-
quired for the new petit jury, etc. The cause mentioned in that
section not only includes one of the causes of excuse granted by
such Sections as 5179 and 5180, but would no doubt include anv
other personal cause addressed to the wise discretion of the court.
It does not include the interest of the juror or panel in pending
criminal causes coming on to be heard, for the reason that such
are especially provided for by other sections of the code, in the
examinations of the juror on voir dire.
Section 7279 provides that challenges for cause shall be tried
by the court, on the oath of the person challenged, or on other
evidence. Challenge pertaining to interest or partiality of the
juror is made and disposed of by Section 7278. We are not
disposed to deny a wide discretion in the court in the discharge
102 CIECUIT COURT REPORTS— NEW SERIES.
Deiter v. State of Ohio. [Vol. XII, N. S.
of jurors, but to discharge the entire regular jury, consisting
presumably of nineteen persons, and prejudging their qualifica-
tions to sit as shown by the journal entry, appears to us as an
abuse of discretion. If the first panel could be thus discharged,
the succeeding one could also be, and thus orf libitum until a
satisfactory jury oould be obtained.
This would furnish opportunity for dictatorial conduct, if
the practice wer6 indulged in. It would be entirely feasible,
following the methods employed, to construct a grand jury of
the same political complexion, or committed wholly to a **wet"
or **dry" sentiment; and if the culling of the original list ni
jurors left a petit jury unsatisfactory to the court because of
political or other bias, the residuum could be discharged and a
new jury obtained. The Legislature has wisely provided a non-
partizan commission for the selection of ** judicious and dis-
creet persons having the qualifications of electors," whose names
are placed in the wheel for jury duty, and we do not think it
wise, in the construction of these jury statutes, to uphold a con-
struction th«t would furnish opportunity to nullify, in a measure,
the intendment of the Legislature and the action of the jury com-
missioners.
Had the journal entry merely recited that the jury was ex-
cused, without assigning' the cause for their general disqualifica-
tions, it would be presumed that there were proper reasons for
their discharge and that discretion had not been abused. In the
cases cited to us bearing upon this question, in none of them ap-
pears such drastic action in discharging the jury as disclosed here.
3. The other question presented is, whether the method em-
ployed in the selection of the grand jury can be presented by a
plea in abatement. Section 5175 provides that when the grand
or petit jury has not been drawn or summoned as prescribed
by law, that the objection may be made by challenge to the
array. Inasmuch as the plea in abatement did not question the
legal qualifications of any of the individual members of the
grand jury irregularly selected, we are constrained by judicial
authority in this state to hold that the irregularities should have
been attacked by challenge and not by plea in abatement. HuU
ing V. State, 17 0. S., 588; Lindsay v. State, 24 C. C, 1; BUiir
V. State, 5 C. C, 496 ; Stafe v. Easter, 30 0. S., 542 and 549.
CIEOUIT OOUBT REPORTS— NEW SERIES. 108
1909.] Cuyahoga Ck>uiity.
The court below erred in its discharge of the regular petit jury
for the cause stated, and should have sustained the challenge
to the array. The judgment of conviction will be reversed, with
costs, and cause remanded to the court of common pleas for a
new trial.
PROVISION POR. THE 'APPOINTMENT OP LEGAL
COUNSEL UNCONSTITUTIONAL.
Circuit Court of Cuyahoga County.
The State op Ohio, ex rel John A. Cline, County Peosecutob,
V. John L. Cannon bt al.
Decided, January Term, 1909.
Constitutional Law — Legal Counsel — Duties of, are those of Public Offi-
cers— Provision for Appointment of, by County Commissioners,
Void — Quo Warranto to Oust Counsel so Illegally Appointed — Sec-
tions 799. 845. 1277. 1278a, and 3977.
In 80 far as Section 845 attempts to authorize the appointment of legal
counsel by county commissioners, it contravenes the provision of
Section 2 of Article X of the Constitution of the state of Ohio, that
all county officers shall be elected by the electors of their respec-
tive counties.
W alter D. Meals, for relator.
Frederick L. Taft, Homer IL McKeehan and G. M. Dahl,
contra.
Marvin, J. ; Henry, J., and Winch, J., concur.
The relator by his petition seeks to oust the defendant, John
L. Cannon, from the position of legal counsel, and each of the
other two defendants from the positicm of assistant legal counsel
for the county of Cuyahoga, st&te of Ohio.
The facts briefly are, that the defendants, and each of them,
claim to hold the positions named by virtue of a contract en-
tered into between them severally and the board of commissioners
of Cuyahoga county on the 15th day of August, 1908. On that
day there was filed with said board of commissioners a writing
signed by the then prosecuting attorney of the county, which
reads:
104 OmCUIT COURT REPORTS— NEW SERIES.
/ State, ex rel, v. Cannon et al. [VoL XII, N. S.
it
Cleveland, Ohio, August 15th, 1908.
To the Board of County Commissioners:
You are hereby requested to employ legal counsel and the
necessary assistants, upon such terms as you may deem for the
best interests of the county, pursuant to the provisions of Sec-
tion 845 of the Revised Statutes of Ohio.
** (Signed) S. V. McMahon,
'' Prosecuting Attorney/'
After the filing of such writing the board adopted a resolu-
tion, which reads in part:
**Now, Therefore, Be it Resolved, That this board employ
Jno. L. Cannon as such legal counsel, at an annual compensa-
tion of $3,000, and that it further employ Frank S. Day, as as-
sistant legal counsel at an annual compensation of $2,000, and
that it further employ G. L. Warson as assistant legal counsel,
at and for the compensation hereinafter fixed.
**The terms of employment herein made shall be for the term
of three (3) years, beginning on the 15th day of August, 1908,
and fully to be completed and ended on the 14th day of Au-
gust, 1911.
**Said legal counsel, Jno. L. Cannon, or assistant legal counsel,
Prank S. Day, shall be required to be present at all meetings of
this board.
**This board shall provide offices for such legal counsel and
his assistants, together with stenographer, telephone service and
all necessary law books and stationery and supplies for the prop-
er management and conduct of said office.
** Except as to the compensation of assistant legal counsel, G.
L. Warson, the compensation of said legal counsel, his assist-
ants and stenographer, together with office rent and the neces-
sary expenses of said legal counsel Jno. L. Cannon, and as-
sistant legal counsel, Prank S. Day, incurred in performing the
duties of said employment, shall be paid semi-monthly out of the
county treasury upon the allowance of the board."
It is further provided in said resolution, as follows:
**In consideration of the compensation and other considera-
tions herein expressed, such legal counsel and his assistants shall
render the services now required by Section 845 of the Revised
Statutes of Ohio, as amended at the second regular session of the
77th General Assembly of the state of Ohio (98 0. L., page 338),
with the exception that the services ret^uired by Sections 799.
1277, 1278fl and 3977 of the Revised Statutes of Ohio, shall be
rendered by said legal counsel and his assistants without refer-
CIBCmT COUBT BEPOETS— NEW SERIES. 106 .
1909.] Cuyahoga County.
ence to, and exclusive of such compensation and other considera-
tions herein provided, and should said legal counsel and his as-
sistants for any reason not be required or bound to perform the
duties and services performed by the prosecuting attorneys un-
der Sections 799, 1277, 1278a and 3977 of the Revised Statutes
of Ohio, such condition shall be held not to affect the terms of
this employment. ' '
It will be noticed that the action of the commissioners is based
upon Section 845 of the Revised Statutes of Ohio, and on the
part of the relator it is contended that in so far as said statute
undertakes to authorize the appointment by the commissioners
of legal counsel, it is in contravention of Section 2, Article X of
the Constitution of Ohio, which provides that all county officers
shall be elected by the electors of each county.
If the positions which the several defendants occupy and the
duties required of them are such as to constitute them officers,
it is clear that the statute authorizing their appointment by the
board of comity commissioners is in contravention of this consti-
tutional provision. The language of so much of the section as is
applicable to the present case, reads as follows :
** Whenever, upon the written request of the prosecuting at-
torney, the board of county commissioners of any county deem it
advisable, it may employ legal counsel and the necessary assist-
ants upon such terms as it m«y deem for the best interests of the
county, for the performance of the duties herein enumerated.
Such counsel shall be the legal adviser of the board of county
commissioners, and of all other county officers, of the annual
county board of equalization, the decennial county board of re-
vision, and the board of review; and any of said boards and
officers may require of him written opinions, or instructions in
any matters connected with their official duties. He shall prose-
cute and defend all suits and actions, which any of the boards
above named may direct, or to which it or any of said officers may
be a party, and shall also perform such duties and services as are
now required to be performed by prosecuting attorneys under
Sections 799, 1274, 1277, 1278a and 3977 of the Revised Statutes,
and as may at any time be required by said board of county
commissioners.
**Said board of county commissioners shall fix the compensa-
tion of all the persons appointed or employed under the pro-
visions of this act, which compensation together with their rea-
sonable expenses shall be paid out of the county treasury upon
the allowance of said board.
. 106 CIRCUIT COURT REPORTS— NEW SERIES.
state, ex rel, v. Cannon et al. [Vol. XII, N. 8.
**None of the provisions of Section 2834b of the Revised Stat-
utes shall apply to the appointment or employment herein au-
thorized to be made."
It will be seen by the provisions of the above statute that the
legal counsel named shall '' prosecute and defend all suits and ac-
tions, which any of the boards above named may direct" (that
is, board of county commissioners, board of equalization, decen-
nial county board of revision and the board of review), or '*to
which it or any of said oflBcers may be a party, and shall also
perform such duties and services as are now required to be per-
formed by prosecuting attorneys under Sections 799, 1274, 1277,
1278a, and 3977 of the Revised Statute^."
By Section 799, it is provided that the prosecuting attorney
shall, upon examination, determine and certify that contracts
therein named are in accordance with the law.
By Section 1274, it is provided that the prosecuting attorney
shall be the legal adviser of the county commissioners and all
other county oflBcers.
By Section 1277, it is provided that the prosecuting attorney
may, under circumstances named in the section, apply by civil
action, in the name of the state, to a court of competent jurisdic-
tion to restrain the misapplication of funds, the completion of
illegal contracts, and to recover back for the county money il-
legally paid out, etc.
By Section 3977, it is provided that the prosecuting attorney
shall prosecute all actions which may be brought, under title 3
of the statutes, against any member or officer of school boards
and shall act in his oflficial capacity as the legal counsel of such
. boards in all civil actions brought by or against them in their
corporate or oflficial capacity.
That most of these duties, if not all of them, are oflficial duties,
dutio.s which can only be performed by a public oflfieer, would
seem to be beyond question, under any definition of what consti-
tutes an oflfieer with which we are acquainted.
The first section of Mecham's Public Oflfices and Oflficers de-
fines a public oflfiee and a public officer in these words:
**A public oflfiee is the right, authority and duty, created and
conferred by law, by which for a given period, either fixed by law
or enduring at the pleasure of the creating power, an individual
CIBOUIT COURT EBPOBTS— NEW SERIES. 107
1909.] Cuyahoga County.
is invested with some portion of the sovereign functions of the
government, to be exercised by him for the benefit of the pub-
lic. The individual so invested is a public officer.*'
The second section is headed, **How Office Differs Prom Em-
ployment," and quotes the following from the Supreme Court
of Maine:
**We apprehend that the term 'office,' implies a delegation of
a portion of the sovereign power to, and the possession of it by,
the person filling the office; and the exercise of such power
within legal limits constitutes the correct discharge of the duties
of such office. The power thus delegated and possessed may be
a portion belonging sometimes to one of the three great depart-
ments and sometimes to another ; still it is a legal power which
may be rightfully exercised, and in its effects it will bind the
rights of others, and be subject to revision and correction only
according to the standing laws of the state. An employment
merely has none of these distinguished features. A public agent
acts only on behalf of his principal, the public, whose sanction
is generally considered as necessary to give the acts performed
the authority and power of a public act or law. And if the act
be such as not to require such subsequent sanction, still it is
only a species of service performed under the public authority
and for the public good, but not in the exercise of any standing
laws which are considered as rules of action and guardians of
rights. "
Without stopping to quote further definitions we believe that
none can be found that would not bring many of the duties to
be performed by the legal counsel, as expressed in this statute,
within the definition of an office, and therefore the party per-
forming these duties within the definition of an officer. If this
be correct, it follows, since quo warranto is the proper proceed-
ing for removing one from office, that the judgment of ouster
should be entered against these defendants.
It is urged on behalf of the defendant, Warson, that even
though judgment should be entered against Ca/inon and Day,
still that it ought not to be entered against him, and this be-
cause of the provisions in the resolution of the commissioners that
Warson is to perform other duties than those provided for Can-
non and Day, and because his compensation is to be fixed upon
a certain percentage basis of taxes which may be collected by
him, or through his efforts. But a complete answer to this is
108 OIECmT COURT REPORTS— NEW SERIES.
grullivan y. City of Wellston. [Vol. XII, N. S.
that by the resolution itself he is employed under the same stat-
ute, and is to perform all of the duties that each of the others
is to perform, and in addition thereto is to perform certain duties
in reference to the collection of delinquent taxes. He then hav-
ing the same title as the others have and being required to per-
form the same duties, as well as certain other duties, if the ap-
pointment of Cannon and Day was not warranted because of the
unconstitutionality of the statute under which they were ap-
pointed, the appointment of Warson is equally unwarranted, and
we reach the conclusion, therefore, that each of the three defend-
ants should be and is ousted — Cannon from the position of legal
counsel, and Day and Warson from the position of assistant
legal counsel.
REGULATION OF PLACES WHERE SOPT DRINKS ARE SOLD.
Circuit Court of Jackson County.
Charles II. Sullivan v. The City op Wellston.
Decided, May 26, 1909.
Municipal Corporations — Can not Regulate the Sale of Soft Drinks
by Ordinance — Police Power — Inviolability of Pritmte Property
— Illumination of Drinking Places — Screens and Blinds — Sections
ir,.i(i-100 and ^36.^-20.
Municipal corporations have no power to impose restrictions upon or
to regulate places where soft or non-intoxicating drinks only are
sold. The state has not delegated such power. Whether the state
can do so, Qu^aere.
T. S. Hogan, for plaintiff in error.
C. C. McCormick, City Solicitor, contra.
This cause originated in the mayor's court of the city of
Wellston. Sullivan was charged with the violation of a penal
ordinance. He first filed a motion to dismiss the prosecution.
This motion was, in effect, a demurrer to the affidavit. The
motion having been overruled, he interpased a demurrer chal-
lenging the sufficiency of the Affidavit. The demurrer being also
overruled, upon a hearing consisting of an agreed statement of
facts, the defendant was found guilty. The common pleas,
CIRCUIT COURT REPORTS— NEW SERIES. 109
1909.] Jackson County.
court affirmed this judgment^ and a reversal is asked in this
court.
From the bill of exceptions taken before the mayor, it appears
that the city had passed an ordinance making it ** unlawful for
any person or persons keeping a place where malt liquors or
other soft drinks are sold, to permit or allow any screen, blind,
shutter, stained glass or other substance or device in the front
of said room or place which prevents a full view of the interior
of such room or place where such malt liquors or soft drinks are
sold or furnished." The ordinance further provided that
such rooms or places should be illuminated at night time and
provided a penalty for its violation.
The affidavit charged the defendant with ** being the keeper
of a place where malt liquors and other soft drinks, to-wit,
ginger ale, cider, pop and a beverage commonly known as tem-
perance beer were sold," and with unlawfully permitting cloth
blinds to remain on the front windows and allowing a screen to
remain, which blinds and screen prevented a full view of the
interior.
By the agreed statement it appears that defendant was the
** keeper of a place where soft drinks were sold; that such drinks
were ginger ale, sweet cider, pop and the beverage commonly
known as temperance beer;" and that he permitted cloth blinds
to remain on the front windows and a screen in front, which
blinds and screen prevented a full view of the interior, and
that these blinds and screen were in the same situation and con-
dition as they had been for two or three years past.
Jones, J. ; Cherrington, J., and Walters, J., concur.
The sufficiency of the affidavit and validity of the ordinance
are both challenged by the record. Plaintiff in error claims that
the state has no power to regulate or restrict the use of prop-
erty where purely soft drinks are sold, and if the state has such
power, it has not delegated it to municipalities.
The inviolability of private property and its use has been
guaranteed the private individual by the organic law of state
and nation. This guarantee, however, is subject to the limita-
tion that the state has the right to impose certain burdens upon
the property and such restrictions upon its use as may be neces-
110 GIBCmT OOUBT BEPOBTS— NEW SEBIES.
SFuUivan v. City of Wellston. [VoL XII, N, S.
sary to conserve the public health, morals, safety or public wel-
fare. In the reasonable exercise of this police power, the indi-
vidual right must give way to the common weal.
Passing for the moment the contention that the state' has no
right, in the exercise of its police power, to regulate or restrict
the use of establishments where soft drinks are sold, we are
confronted with the second claim that if it has, it has never
delegated this power to municipal corporations; and that there-
fore any penal ordinance attempting to exercise this power of
regulation is null and void.
The scope of power of municipal councils, in this respect, has
been definitely and clearly fixed in this state by judicial author-
ity. They are held to possess such powers only as are expressly
granted by statute and such as may be implied as essential to
carry into effect those which are expressly granted. Doubtful
claims to power are resolved against corporations. Ravenna v.
Penn, Co., 45 0. S., 118.
The case at bar is not one where implied authority, under the
rule, can apply; for it does not present a case where implied
authority is invoked to carry into effect some other power
which has been expressly granted. To sustain the ordinance we
must seek an express grant by the state, empowering the munici-
pality to enact it. We have been unable to find where the state
has expressly, or even impliedly delegated this power.
Some claim was made by the solicitor, but not very insistently,
that Subdivision 5 of Section 1536-100,- Revised Statutes, or Sec-
tion 4364-20, Revised Statutes, might furnish the grant in ques-
tion. But those sections, in clear terms, affect only the sale of
intoxicating liquors and places where such are kept and sold.
The statute was passed when such sale was not unlawful, as
now in this and other counties of this state, and was designed
for the regulation of the liquor traffic. They were not designed,
when enacted, nor can they now be construed as a grant to
regulate places where soft drinks or non-intoxicants are sold.
Neither does the city ordinance in question seek to regulate
places where such intoxicating liquors are kept or sold within
the purview of those sections; nor does the affidavit charge the
defendant with keeping a place where intoxicants are kept or
sold.
CIRCUIT COURT REPORTS— NEW SERIES. Ill
1909.] Jackson County.
The most insistent contention of the city solicitor, however, is
that such delegation of express power may be found in Subdi-
visions 1 and 6 of Section 1536-100. Subdivision 1 provides
that council may pass an ordinance **to preserve the peace and
good order.*' It is diflScult to conceive how the requirements
of the ordinance would conserve the peace and good order of
the city. This provision of the statute means simply what is
says, and falls within the same general character of powers
otherwise defined in that subdivision. There is even less force
in this contention, than in the case of Whitcomh v. Citfj of
Springfield, 3 C. C, 244, where it was attempted to prevent the
sounding of an Octave whistle under the express powers granted
to the city, *'to prevent noise.'' or to ** preserve the peace and
good order," or to abate a nuisance. What the learned judge
says in that case as to statutory construction can well apply here.
Furthermore the language of Judge Spear, in the case of Ra-
venna V. Penn, Co., supra, as to the indirect method in the en-
forcement of the alleged power granted will also apply.
Neither does the power of regulation given by Subdivision 6
of the section (1536-100) authorize the enactment- of the ordi-
nance. That authorizes councils *'to regulate taverns and other
houses of public entertainment." The use of these two terms
in the same connection and in the same subdivision indicates
that they are both of the same generic character. A tavern has
been judicially defined to be a house licensed to sell liquors in
small quantities. In re Schneider, 11 Oregon, 288.
A tavern is a ** house licensed to sell liquors to be drunk on
the spot. In some of the United States, tavern is synonomous
with inn or hotel and denotes a house for the entertainment of
travelers, as well as for the sale of liquors licensed for that
purpose." Rafferty v. Ins, Co., 18 N. J. L., 484.
The city ordinance applies to any ^* place" where soft drinks
are sold, and does not attempt the regulation of either "house*'
or tavern.
The state has no inherent power to impose restrictions upon a
business innocent in itself and lawful per se. If the private*
business, however, is affected with a public interest and if its
use were conducted harmfully or would likely threaten harm
to public morals^ the police power of the state may then be iu-
112 CIBCUIT COURT REPORTS— NEW SERIES.
SPullIvan V. City of Wellston. [Vol. XII, N. S.
voked for the public good. The discretion of the state in its
proper exercise will not be disturbed by the courts, unless the
limitations imposed on the occupation are clearly unreasonable,
arbitrary, evasive, or impased under the guise of regulating a
lawful occupation. li then remains for the state, in the imposi-
tion of burdens upon an occupation lawful and innocent per se,
to frame a law sufficiently explicit to advise the individual of
the nature of the restriction imp«3ed on his calling, and so the
courts may judge of its reasonableness.
Whether the state can require blinds and screens to be placed
upon any place selling soft drinks as required by the ordinance
in question, we are not called upon and we do not decide. It is
enough that no such delegation of power has been granted to
the city.
The claim for the validity of the ordinance rests upon the as-
sumption that intoxicants may be sold in connection with soft
drinks. Thus fastening a suspicion of future conduct upon the
places in question, the ordinance proceeds to regulate the busi-
ness by requiring blinds and screens to be removed and the
place to be illuminated at night. As I have said, if this power
is lodged anywhere, it is in the state. Under the broad terms
of the ordinance, eating houses, lunch rooms, drug stores or any
place where soft drinks are sold would all come under the ban
of the ordinance.
A technical question arises on the record, whether the ordi-
nance has been properly incorporated in the bill. Inasmuch as
the city solicitor makes no complaint of that feature but waives
it, and desires an adjudication on the merits, we do not con-
sider it.
The judgments of the common pleas and mayor's courts are
reversed with costs, and the cause is remanded to the mayor's
court with instructions to dismiss the prosecution at the costs
of the defendant in error.
CIRCUIT COUBT REPORTS— NEW SERIES. 118
1909.] Guernsey Ck>unty.
TRAFFIC IN NON-INTOXICANTS NOT SUBJECT TO
DOW LAW TAX.
Circuit Court of Guernsey County.
John Murray v. J. A. Lapollette, Treasurer. .
Decided, April Term, 1909.
Taxation — Sale of Non-Intoxicating Liquor — Not iiubject to the $1,000
Dow Law Tax — Meaning of the Word **Oth€r"' — Section 4364-9,
1. There are two definitions of the word "other." One applies to and
includes articles which are specifically named; the other has ap-
plication to articles of the same kind as those generally described.
2. Traffic in non-intoxicating liquor is not subject to the Dow tax.
Latbie, J.; C()OK, J., and Metcalfe, J., concur.
The action below was brought by the county treasurer to re-
cover the tax imposed upon parties engaged in the business of
trafScking in intoxicating liquors, claiming that Murray, de-
fendant below and plaintiff here, was engaged in such business
and therefore liable for this tax, and the court below so held.
There is an agreed statement of facts which, with the plead-
ings, constitute the record; and in the agreed statement of facts
it is declared that the traffic in which this man was engaged was
not in intoxicating liquors. He was selling Friedon malt beer,
which it is agreed by the parties was not intoxicating. The
claim of the defendant below, plaintiff in error, is that no tax
under the statute could be levied upon the traffic in non-intoxi-
cating liquor, and that is the cpiestion presented to us; and its
settlement depends upon the construction to be given to the stat-
ute.
That statute is in the 98th volume of annual laws of the state,
commencing upon page 99. It is an amendment of Section 1
of the Dow act ''providing against the evils resulting from the
traffic in intoxicating liquors,'' as amended February 20. 189().
which it changed in two respects in reference to the matter in
tpiestion and reads as follows :
114 CIEOUIT COURT REPORTS— NEW SERIES.
_ ^ ^_____ ^ .
Murray y. Lafollette, Treasurer. [Vol. XII, N. S.
''Upon the business of trafficking in spirituous, vinous, malt
or other intoxicating liquors, there shall be assessed yearly and
shall be paid into the county treasury, as hereinafter provided,
by every person, corporation or co-partnership engaged therein,
and for each place where such business is carried on by or for
such persons, corporations, or co-partnership, the sum of one
thousand dollars.''
One amendment is in regard to the amount of the tax, which
is increased, and the other is in reference to the liquors trafficked
in. Both of the former sections described them as ** spirituous,
vinous, malt, or any intoxicating liquors," with a comma after
the words ''spiritous, vinous, malt," while in the present act
they are described as ''spirituous, vinous, malt or other intoxi-
cating liquors," with no comma after the word ''malt," so that
the Legislature, in thus altering the statute, must have intended
to limit the tax to the traffic in intoxicating liquors only.
The Supreme Court (68 0. S., 635, 644) in construing Section 1,
as amended February 20, 1896, did ho'd that malt liquor was
of two kinds, intoxicating and non-intoxicating, and that the
words in such section, to-wit, "malt, or any intoxicating liquors,"
were so broad as to include both — that the generic term *'malt
liquors" included both. Since that decision was made and
published this amendment was made changing the wording and
punctuation of the statute, and it is fair to assume that the
Legislature thereby intended to change and limit the kind of
liquor trafficked in, when it increased the tax so heavily in
an effort to abolish the evils resulting from the traffic in intoxi-
catUig liquors. Undoubtedly it did mean a change so far as
the amount of the tax is concerned, because it increased it,
and the (question now is whether or not the Legislature in-
tended to change the law in the other respect, in view of the
ru'ing of the Supreme Court upon the original act, by changing
the words "malt, or any intoxicating liquors" to "malt or
otlier intoxicating liquors."
The word "other" has, and is entitled4o and receives a double
meaning in phrases of this character. It will, for example,
include all other articles of the kind named, not theretofore speci-
fied, as where a number of intoxicating liquors are specifically
OmOUIT COURT REPORTS— NEW SERIES. 115
1909.] Ouemsey County.
named followed by the words **or other intoxicating liquors."
Again, the use of the word in the phrase ** spirituous, vinous,
malt or other intoxicating liquors'' illustrates the other use of
the word ** other." Where it is thus connected and coupled with
mere adjectives, then it means that ftll the articles thus pre-
viously referred to, but not specifically named, are of the char-
acter generally described, to-wit, intoxicating liquors.
Section 16 of Article 11 of the Constitution provides that
all acts of a general nature shall have but one subject, and that
such subject shall be expressed in the title of the act. **The titles
are parts of the statutes, and are to be considered in arriving
at the intent of the Legislature" (57 0. S., 94). If therefore,
there were any doubt upon the question here, whether or not
the word **malt" as here used means both characters of liquors,
intoxicating and non-intoxicating, then the court would look to
the title itself in order to enable it to find and ascertain what
meaning the Legislature intended by such word; and here, if
there be any doubt about it, the title of this act removes all such
doubt.
It is entitled **An act providing against the evils resulting
from the traflBc in intoxicating liquors," and the act itself refers
solely to intoxicating liquors, which would seem to indicate
pretty clearly that the Legislature intended to impose the tax
sole\v upon traflSc in intoxicating liquors. The subject-matter of
this, the Dow act, as expressed in the body of the act as well as
in the title, is intoxicating liquors, with the expressed purpose
and design of abolishing '*the evils resulting from the trajfic in
intoxicating liquors;" and how can any one conceive, from the
use of such language, defining expressly the subject and purpose
of the act, that the Legislature intended to, or did, impose the •
tax upon the traffic in «^«-intoxicating liquors, as well as in-
toxicating liquors.
But the words of the section in question, **upon the business of
trafficking in spirituous, vinous, malt or other intoxicating
liquors," need no such help in their construction. There is a
comma after ** spirituous" and after ** vinous" but none after
'*malt." It is connected directly and coupled with the words *'or
other intoxicating liquors."
116 OmCUIT COURT BEPORTS— NEW SERIES.
Murray v. Lafollette, Treasurer. [Vol. XII, N. S.
Where in a statute of this character an article is particularly
specified and named, to which is attached a well understood
meaning, there might be a different .construction put upon it,
and there has been in such a case by the Supreme Court of this
state. But here ''spirituous, vinous, malt," what are they?
Spirituous what? Vinous what? Malt what? We know not
until we reach that which they define, the subject-matter of the
act, ** intoxicating liquors," the traffic in which is to be taxed.
Then we know that the articles are spirituous intoxicating liquor,
vinous intoxicating liquor, malt intoxicating liquor! ** Spirit-
uous," ** vinous," **malt" are adjectives as thus used, and do
not define any article standing alone. Malt is a grain, com-
monly known as barley. Would any one contend the Legisla-
ture intended to tax trafficking in barley? As here used it is
a mere adjective, and it was not intended to name a certain arti-
cle, trafficking in which was to be taxed.
In the 9th Ohio, page 11, Cino:jinati, Lebanon & Springfield
Turnpike Co, v. Neil et al, where the question was as to toll,
this part of the provision was before the court for construction :
**for every coach, chariot or other four-wheeled pleasure car-
riage"; and it was claimed that a stage coach was not a ''pleasure
carriage" and that the act included only pleasure carriages.
Now the word "coach" is a noun'and was thus used as such, and
specified a definite article. Th? court says in this connection:
"It is contended the word 'other* in the clause of the act de-
scribing these vehicles, refers to coach as well as chariot, and the
substantive 'chariot' used in the sentence adjectively, qualifies
* coach,' and carries with it the signification of 'pleasure coach.'
We do not so understand it. * Coach' forms a distinct member
of the sentence; 'chariot' then intervenes; and this, Johnson
defines a 'half coach with four wheels, used for convenience and
pleasure.' Then follow the words other four wheeled pleasure
carriage and * chariot' and 'carriage' are coupled directly by
the disjunctive or, intended to comprehend all pleasure car-
riages, other than chariots, but having no relation to coaches.
We would not oppose the mere grammatical construction of a
sentence, to the obvious meaning of the Legislature; but both
concur here. A mail coach and a stage coach, are nevertheless
coaches. A coach is the description in the act. The defendants'
coaches are run on the road with the mail and with passengersj
and must pay the toll assessed upon coaches."
CmcmT COUBT BEPOBTS— new SEBIES. 117
1909.] Quernsey County.
So that the term ** coach" was held to be a distict member of
the sentence, and not used adjectively, and of itself defined a
certain kind of vehicle. Do the words spirituous, vinous, or
malt, as here used, define a specific article? And here malt and
the words ** other intoxicating liquors'' are coupled directly to-
gether by the disjunctive word **or," intending to comprehend
all intoxicating liquors other than those made from malt, and
thus includes only such liquors made from malt as are intoxi-
cating.
Neither spirituous, vinous nor malt, standing alone defines
any special article, and it can not be told what article is meant
by the Legislature until the words ** intoxicating liquors'* are
reached.
In Myers v. Seaberger, 45 0. S., in the opinion, commencing
upon page 235, the court says :
*'The rule as above stated is qualified as to * money' by Section
2734, Rev. Stats. By this section every person of full age and sound
mind is required to list for taxation *all moneys, invested, loaned
or otherwise controlled by him, as agent or attorney, or on ac-
count of any other person or persons. ' The agent of the defend-
ant had no power to loan or invest money for her in this state.
His duties were confined to the collection of that which had been
loaned and transmitting it to his principal as fast as it was
collected. The phrase 'or otherwise controlled my him' must be
construed to mean, in a manner similar to the loaning and invest-
ing of money ; for it is a settled rule of construction that, in ac-
cordance with the maxim nosciiur a sociis, the meaning of a word
may be ascertaind by reference to the meaning of words assocri-
ated with it ; and again, according to a similar rule, the coupling
of words together shows that they are to be understood in the
same sense."
Both of these maxims — nosciiur a sociis, and ejusdem generis —
apply to the case here.
Here *'malt or other intoxicating liquors" are coupled to-
gether. Neither ** spirituous," ** vinous" nor **malt" is a dis-
tinct part of the sentence, but are coupled with, and their mean-
ing can be ascertained only by reference to, the words **or other
intoxicating liquors," so that, under these rules, where all are
associated together, are combined together, they frame but one
118 OIBCmT COtJBT REPOMS— NEW SERIES.
Scheu V. State of Ohio. [Vol. XII, N. 8.
intent, purpose and meaning, and that is to levy a tax upbn
trafSeking in intoxicating liquors, as specified in the title.
We can see no good reason why this case should not be re-
versed, there being no dispute, but it being agreed, as to the
facts, that the trafficking in malt by defendant below was not in
intoxicating malt, but in non-intoxicating, and the petition of
the plaintiff below will be dismissed at his costs.
SALES OF INTOXICANTS IN ROSE LAW TERRITORY IN
QUANTITIES Or MORE THAN A
GALLON.
Circuit Court of Tuscarawas County.
Walter Sciieu v. The State op Ohiq.
Decided, May 21, 1909.
Criminal Law — Seles of Intoxicating Liquors in Quantities of more than
a Oallon — From Manufactories Located in Dry Territory — Excep-
tions Under the Dow Law and the Rose Law — Manager Liable for
Rales "by a Clerk Made in His Absence but Under His Cfeneral Di-
rections.
1. Inasmuch as the Rose local option law provides its own exceptions,
it is not permissible to read into it the exceptions found in the
Dow law as to sales of intoxicating liquor at the manufactory and
by the manufacturer in quantities of one gallon or more at any one
time; but such sales are prohibited within a county where the
Rose law has become operative.
2. Where, in a county which has been voted "dry" under the Rose law,
beer is sold from a brewery in quantities of one gallon or more in
conformity with general instructions by the manager, he is liable
to prosecution therefor notwithstanding he was absent from the
brewery at the time the sale was made.
A, D. Metz, J. F. Greene and J. D. Bold, for plaintiff in error.
J. F. Wilkin and D. R. Wilkin, contra.
DoNAnrE, J. (orally) ; Taggart, J., and Voorhees, J., eon-
our.
Thr plaintiff in error brings this proceeding in this court to
n»verse the judgment of the ex)niinon pleas comrt rendered in an
CIROUIT COURT RBPOBTS— NEW SERIES. 119
1909.] Tuscarawas County.
action wherein the State of Ohio prosecuted Walter Scheu for
the illegal sale of intoxicating liquors.
There are two questions made in this record, and the one we
shall notice first is the contention that Walter Scheu is not re-
sponsible for the .sale of liquor made by Mr. Murphy, one of the
clerks. The last question aaked Walter Scheu on cross-examina-
tion is as follows:
**I want to ask you Mr. Scheu, whether or not this beer sold
to George Kuemerly, although made in your absence, was made in
conformity to general instructionH given by you to Mr. Mur-
phy?'' Ans. **Yes, sir."
But for the last question and answer, there is nothing in the
record that would show Mr. Scheu is responsible for this sale.
True, the record shows he was the manager of this brewery, but
the policy of the brewery company was determined by its direc-
tors, and up to this time Mr. Scheu had not been connected by
the evidence with the sale, but this answer shows that, if this
sale is illegal, Mr. Scheu is equally responsible with Mr. Murphy.
The important question, however, and the one in which coun-
sel on both sides are particularly interested, is whether or not
this brewing company may sell at its brewei^ beer manufactured
there, in quantities of a gallon or more, notwithstanding th(»
local option election in this county resulted in a majority against
the sale.
This is an important question and one of considerable import-
ance throughout the sftate.
Looking to the law itself we find no exceptions made in favor
of manufacturers or brewing companies any more than any other
individual. Yet it is insisted that Section 8 of the Dow law ap-
plies, and I take it that counsel's idea of ''quantities of a gal-
lon or more" is suggested by the language of Section 8 of the
Dow law, which is as follows:
**TraflBcking in intoxicating liquors, as used in this act, means
the buying or procuring and selling of intoxicating liquors other-
wise than upon prescription issued in good faith by reputable
physicians in active practice, or for exclusively known me-
chanical, pharmaceutical or sacramental purposes, but such
phrase does not include the manufacture of intoxicating liquors
120 CIRCUIT COURT REPORTS— NEW SERIES.
■ ■ ■■^■^—^ — ■ ■II" ■■■■^■« W BW^ 11 ■ . ■-^. ■■■■■■■— ■■■ ■■■--I. 1,1 ,^«i^^— — ^. .. »■■■— ^M^^^^^^— ^»^— ^^^^i^a^i^^ilfc
Scheu V. State of Ohio. [Vol. XII, N. S.
from the raw material, and the sale thereof at the manufactory,
by the manufacturer of the same in quantities of one gallon or
more at any one time.'*
Now if that obtains in this case, of course this sale was not
illegal. And if nothing appeared to the contrary in the Rose
local option law itself, we would be disposed to construe all of
these sections together giving effect to every act and parts of acts
related to the common subject, but the Rose local option law
leaves nothing to construe in this respect, but in plain and un-
equivocal language provides its own exceptions. Section 3 of
that act is as follows:
.**The phrase * intoxicating liquors' as used in this act shall be
construed to mean any distilled, malt, vinous or any intoxicating
liquor whatever. But nothing in this act shall be construed to
prevent the selling of intoxicating liquors at retail by a regular
druggist for exehisively known medicinal, pharmaceutical, scien-
tific, mechanical or sacramental purpost»s; and when sold for
medicinal purposes it sliall bo sold only in good faith upon a
written prescription, signed and dated in good faith by a re-
putable physician in active practice and the prescription used but
once."
This is a re-enactment of the greater part of Section 8 of the
Dow law. If there could hav(* been any implication whatever
that Section 8 of the Dow law was to obtain, then it would be use-
less to reiterate this language in Section 3. It is clearly the in-
tention of the Legislature to limit the exceptions to those found
in Section 3 in the Hose act, and not that the exceptions in the
Dow law should a[)|)]y. That is the language of the law, and it
is the duty of the court to interpret the law as it is written with-
out adding to or taking from and without attempting to decide
upon the practicability or advisability of it.
In the case of Slinffluff v. Weaver, 66 Ohio St., page 621, the
Supreme Court say:
**But the intent of the law-makers is to be sought first of all
in the language employed, and if the words be free from am-
biguity and doubt, and express plainly, clearly and distinctly,
the sense of the law-making bo<ly, there is no occasion to resort
to other means of interpretation. "
CIBCUIT COURT REPORTS— NEW SERIES. 121
1909.] Tuscarawas County.
We think this language is as plain and clear as it is possible
to write the English language; there is no possibility of being
mistaken about it. The law, as it is written, prevents the sale
under any and all other circumstances, except the circumstan-
ces named in Section 3 of the act, and any attempt to enlarge
these exceptions would be nothing short of judicial legislation.
We are not unmindful of the argument of counsel that such a
construction jeopardizes or perhaps even makes worthless, prop-
erty of enormous value used in the manufacture of this product,
but that argument can not affect the correct interpretation of
the law, and is proper only for the purpose of calling our atten-
tion to the seriousness of the question presented, and that a con-
clusion that would work such result ought not lightly to be ar-
rived at, but this question is hardly an open one in Ohio. Co.n-
struing similar legislation, the Supreme Court in the 61st Ohio
St., at page 597, say:
**The sale of beer as a beverage, any quantity, whether by the
manufacturer or not, is prohibited in a township where the people
have availed themselves of the provisions of the local option
law.''
Let us change that language by substituting the word "coun-
ty" for ''township.'' ''The sale of beer as a beverage, in any
quantity, whether by the manufacturer or not, is prohibited in a
county where the people have availed themselves of the pro-
visions of the local option law."" It is clear to us that the Su-
preme Court has passed upon substantially the same statute as
the one in question and has held against the contention of the
plaintiff in error.
This court is of the opinion that the judgment of the common
pleas court must be affirmed. Exceptions will be noted.
122 ontOtnT COURT REPORTS— NEW SERIES.
Ziesler v. Freeman. [Vol. Xlt, N. 8.
ACTION FOR THE LOSS OF A TRAVELINC AAC.
Circuit Court of Hamilton County.
John Ziegleb v. Horace M. Freeman.
Decided, March 23, 1908.
Carriers — Liability of a Parcel Carrier— For Failure to Deliver Travel-
ing Bay at Baggage Room — Burden of Proof — Charge of Court.
In an action to recover for the loss of a traveling bag from a carrier
of parcels for hire, to whom it was entrusted to be delivered at a
designated depot in time for a particular train, a prima facie case
is made out by the testimony of the plaintiff that he inquired at
the baggage room at the proper time and was unable to find his
baggage.
Ben B. NelsoiXy for plaintiff in error.
Renner & Renner, contra.
GiFFEN, J. ; Swing, P. J., and Smith, J., concur.
A carrier of parcels for hire who agrees to deliver a te'osoopo
bag at a railroad passenger station in time for the owner to take
a particular train and gives a claim check therefor is required
to affix a duplicate cheek to the baggage and to deliver the samt^
at the baggage-room or other usual place of deposit of baggage
at the depot ; and in an action to recover for non-delivery, proof
by plaintiff that he inquired at the baggage-room of the persons
in charge thereof, and at a proper time for his baggage, and
was unable to get it, makes a prima facie case which entitles him
to recover, unless met with evidence of equal weight; but the
burden of proof does not shift from the plaintiff to the defendant.
The court therefore erred in charging the jury that the burden
of proving delivery rested upon defendant. Klunk v. 7^;/., 74
(). S., 135.
Judgment reversed and eawse remanded for a new trial.
ClECmT COURT MSPORTS-NBW SBB1E8. 128
1909.] Cuyahoga County.
OWNERS OP THE PEE ONLY HAVE A VOICE AS TO
THE CHARACTER OP STREET
IMPROVEMENTS.
Circuit Court of Cuyahoga County.
The Forrester Plaster Co. v. The City op Cleveland et al.
Decided, May 24, 1909.
Streets — Injunction Ag>ain8t the Improvement of — Will not Lie on the
Petition of a Lessee for Years or a Mortgagee — Assessments — NO'
tice — Irregularities — Benefits — Meaning of the Word **Owner."*
A lessee of land ^butting on a proposed street improvement Is not
entitled to notice of the resolution declaring the necessity of said
improvement; nor is he entitled to an injunction to restrain the
making of said improvement, or the levying of assessments on the
demised lands to pay for the same, because of irregularities in the
proceedings, or because his estate will be damaged by the improve-
ment.
Weed, Miller & Nason, for plaintiff in error.
W. D. Wilkin, Assistant City Solicitor, contra.
Winch, J.; Henry, J., and Marvin, J., concur.
Error to the Court of Common Pleas.
The plaintiff is the lessee foi- a term of years, expiring in 1922,
of certain premises on the westerly side of Kirtland street in
the city of Cleveland, and brought its action in the common
pleas court to enjoin the grading and improvement of said street
in front of said premises and the levying of assessments thereon
to pay for the same. The petition alleges that the improvement
and assessment are illegal, because:
1. No notice of the resolution of the council declaring its in-
tention to make the improvement was ever served upon the
plaintiff, though it is a resident of the county and in possession
of the premises under a recorded lease.
2. The proposed improvement would be of little benefit to
the land and the assessment is excessive.
3. Irregularity in the proceedings in that the council with-
out authority of law referred the apportionment and assess-
124 CIRCUIT COURT REPORTS— NEW SERIES.
Forreeter Plaster Co. ▼. City of Cleveland. [Vol. XII, N. S.
ment of the cost of the improvement to the board of public serv-
ice, to be determined by it.
4. Unfair assessment of the cost as between the abutting
owners.
5. , Unlawful method of making the assessment.
A demurrer to this petition was sustained and, judgment
being entered for the defendant, the case is here on error.
The only question raised by the demurrer is whether a tenant
for years of premises abutting upon a proposed improvement
within a municipal corporation is an ** owner," within the in-
tendment of the statutes regulating such matters. The rights of
an owner are two- fold: To resist an excessive or illegal assess-
ment upon his property and to recover damages, if he suffer any
by reason of the improvement. The claims in the petition fall
into these two classes. The first claim, lack of notice, covers
both classes, and is jurisdictional. The second claim has regard
to the question of damages or the taking of property without
due compensation, and the third, fourth and fifth claims are re-
specting illegality in the assessment.
These latter claims may be dismissed with a word; the assess-
ment is not made against the lessee, but against the landlord.
There is no claim in the petition that plaintiff has in any way
obligated itself to pay special assessments upon the demised
premises. The argument that the landlord might fail to pay the
assessment and so the land be sold to satisfy the lien upon it finds
no support in the petition. There is no allegation that the land-
lord is irresponsible, and indeed, it would seem that the rent
coming to him under the lease might furnish sufficient funds to
pay the assessment, if he has no other funds.
The petition, therefore, shows no irreparable damage likely
to result to plaintiff by reason of the assessment.
Little need be said with regard to the claim for damages.
Plaintiff is not without adequate remedy at law to recover any
damages it may suffer by reason of this improvement. This
proposition is conceded by defendant's counsel and sustained by
the authorities.
It remains to consider whether plaintiff was entitled to no-
ti(*e of the declaratory resolution, for it is well settled that with-
CIBCUIT COUBT BBPORTS— NEW SERIES. 125
1909.) , Cuyahoga County.
out such notice to a resident ** owner/' the entire proceedings are
void as concerns him and an ** owner*' is entitled to an injunc-
tion under such circumstances, for the reasons stated in the case
of Joyce V. Barron, 67 O. S., 264.
We see no reason in favor of extending the meaning commonly
given to the word ** owner'' as being the one having the title in
fee of land so as to include the owner of lesser interests therein
by lease or mortgage. No good purpose' would be subserved, for
we have already seen that the rights of others in the land are
fully protected by the law without the service of notice upon
them. On the other hand delay and expense in the making of
public improvements would be occasioned if the municipality
had to procure abstracts of title for all abutting lands and serve
notice upon every person claiming an interest therein before it
could proceed with its improvements.
It has been held, it is true, that a mortgagee of land damaged
by a street improvement may maintain an action to recovi^r
therefor, notwithstanding the owner has been served with notice
and recovered damages on his own account {Building & Savings
Co. V. Cincinnati, 12 Dec, 218). Also that the interest of a
mortgagee in land appropriated by a municipality can not be
taken from him without due process of law. Harrison v. Sabiria,
1 C. C, 49.
But these decisions are based upon the constitutional provi-
sion that no man's property shall be taken from him without
compensation therefor, and upon the general proposition that he
is entitled to notice of any proceedings which may be instituted
Tor \\\v purpose of divesting him of his rights.
Judge Spear points out in the Joyce ease that the Legislature
has provided for notice of the pendency of street improvement
proceedings to the owner of land for two reasons, first, to give
the abutter a voice in the determination of the kind of improve-
ment to be made, and second, to give him a speedy determina-
tion of any claims for damages which he may make, so that he
may use his damages to pay his assessment.
In our opinion the Legislature has not seen fit to extend to
others than owners in fee any voice as to the character of the
improvement and has not given them the benefit of the speedy de-
126 CIRCUIT COUBT REPORTS— NEW SERIES.
Conrad v. Keller Brick Co. [Vol. XII, N. S.
termination of damages which the owner enjoys. A sound dis-
cretion in this respect has not resulted in depriving mortgagees
or lessees of any rights which, as before stated, they are not en-
titled to maintain at law.
Judgment affirmed.
AVOIDANCE OF RELEAES UNDER CLAIM FOR PERSONAL
INJURIES.
Circuit Court of Summit County.
Harvey Conrad v. The KEUiER Brick Company.*
Decided, October 12, 1907.
Release — Charge of Fraud in Obtaining — Tender Back a Prerequisite to
Suit — Where One Buffering from Personal Injuries has Received
Some Compensation — Contracts Voidable for Fraud Distinguished
from those Absolutely Void — Pleading in Avoidance — Accord and
Satisfaction,
Under a clafm for personal injuries, where a contract of release has
been entered into which is not void, but merely voidable for fraud,
it is incumbent upon the plaintiff, before asserting the cause of
action to which the contract or release is a bar so long as it re-
mains fn force, to rid himself of that obstacle by appropriate meas-
ures of avoidance, and a tender tack of the consideration received is
a prerequisite to such avoidance.
H. M, Smith and J, A. H. Myers, for plaintiff.
Musser, Kimher d' Hoffman and Leon B. Bacon, for defendant.
Henry, J.; Marvin, J., and Winch, J., concur.
This is a personal injury dainacre case wherein jud^^nient nii
thi» j)leadings was entered for defendant. The answer pleads
fi written release, by plaintiff, of his alleged cause of action, for
a money consideration paid to him. The reply admits that
♦Affirming Conrad v. Keller Brick Co., 8 N. P.— N. S., — ; Circuit Court
affirmed by the Supreme Court without report, Conrad v. Keller
Brick Co., 80 Ohio State.
OIBCUIT COURT REPORTS— NEW SERIES. 127
1909.] Summit County.
I - -^ ■ ir -
plaintiff signed said release and received said money; but avers
that the money was paid to him not by defendant but by an in-
surance company and not for a release of the cause of action
asserted in his petition, but by way of insurance benefits to
which he was then informed his injury entitled him. He fur-
ther alleges that he was unable to read said release, but does not
allege that he made any effort to have it read to him. Neither
does hv» tender back the money paid him. On this state of the
pWdings the court below applied the rule of Manhattan Life
Insurance Co. v. Burke, 69 Ohio St., 294, that a reply alleging
a repiiyuient or tender of the amount received is not responsi^'c
to the answer and is insufficient in law. True, that case was
foundi*d on contract whereas this sounds in tort. But we can
not see that this distinction is material. There are undoubtedly
cases where the plaintiff is permitted to ignore in his petition
the fact of a pretended release of the liability on which he
counts, and to withhold repayment of the considerati6n received
therefor. But in Ohio, at least, and with but few exceptions
elsewhere, such cases upon analysis are seen to involve con-
tracts that are not merely voidable for fraud, but contracts
which are absolutely void, for total failure of consideration, as
in Dayton Insurance Co. v. Kelly, 24 Ohio St., 345; illegality
of consideration, as in Insurance Co. v. Hully 51 Ohio St., 270;
or other like infirmity rendering such agreement invalid, ah
initio.
Where, however, as in this case the contract of release is not
void, but merely •voidable for fraud, it is incumbent upon the
plaititiff, before asserting his cause of action, to which the con-
tract of release so long as it remains in force is a bar, to rid
himself of that obstacle by appropriate measures for its avoid-
ance. Tender back of the consideration received is in this cascj
a prerequisite to such avoidance. Until .such tender is made,
the contract of settlement, being voidable merely, can not he
treated as a nullity, nor can its terras be contradicted by parol.
Cassilly v. Cassilly, 51 Ohio St., 582.
Judgment affirmed.
128 CIRCUIT COURT REPORTS— NEW SERIES.
Greenhow v. Harrison. [Vol. XII, N. 8.
ATTACHMENT— ERROR TO JUDGMENT ON APPEAL.
Circuit Court of Hamilton County.
Greenhow v. Harrison.
Decided, December 19, 1908.
Error can not be prosecuted to a Judgment rendered on appeal from
the determination by a justice of the peace on a motion to dis-
charge an attachment.
Harry R. Weber , for plaintiff in error.
Guido Gores, contra.
Swing, P. J. ; Gipfen, J., and Smith, J., concur.
This cause should be stricken from the files. There is no right
given in the statute to prosecute error to the judgment of the
court if in session, or the judgment of a judge in vacation, on an
appeal from the determination by a justice of the peace on a
motion to discharge an attachment. Section 6494, Revised Stat-
utes, provides that the judgment rendered on the appeal is to be
transmitted to the justice of the peace to be by him entered as
his final judgment on the motion, and if error is to be prosecuted,
it is to the judgment of the justice of the pe4ice, and not to the
judgment of the court or judge rend'^ring the judgment on the
appeal. See Williams v. McCartney y 10 C. C. — N. S., 161.
This proceeding is to reverse the judgment of the court .of
coiiinioii pleas on appeal from the determination of the justice
of llie peace of the motion to discliar«'e an attachment.
CIRCUIT COURT REPORTS— NEW SERIES. 129
1909.1 Licking County.
PRESUMPTION AS TO ELECTION BY WIDOW.
Circuit Court of Licking County.
Frank Weaver v. 0. G. King et al. •
Decided, March Term, 1907. •
Widow — Presumption that She Elected to Take the More Valuable
Estate Arises, When — Executory Devise — Title — Competenci^ of
Evidence — Attaching Charge of Court to BUI of Exceptions as an
Exhibit — Error in Submitting to Jury Question as to Widow's
Rights — Errors in Admission of Evidence and Charge of Court
which are not Prejudicial,
1. Where all the records of the probate court were destroyed by fire
subsequent to the probate of a will and the settlement of an estate,
there being no direct evidence that the widow was cited to elect
or made any election to take under the will, a court will presume
that the required citation was issued and that the widow elected
to take the more .valuable estate.
2. A will provided that the testator's real estate should pass to his
wife and child in the same manner as provided by statute, and
then provided: "in the event of the death of my said son without
lawful issue, leaving my said wife surviving him, then in that
case, all my property, real and personal, remaining shall pass and
go to my said wife as her sole and separate property." The son
having died in infancy subsequent to the death of testator, the
widow under the above quoted clause of the will took the estate in
fee simple by way of executory devise.
3. In case the widow had elected not to take under the will, and there-
after the son had died without lawful issue, whether or not the
widow, notwithstanding such election, would have taken the estate
in fee simple by way of executory devise — Quaere.
Jones & Jones, for plaintiff.
Kibler & Montgomery and Robbhis Htmter, contra.
Donahue, J.; Taggart, J., and Craine, J., concur.
This cause comes into this court upon a petition in error,
seeking to reverse the judgment of the common pleas court in an
* Affirmed by the Supreme Court without report, Weaver v. King, 80
Ohio State, .
130 CIRCUIT COURT REPORTS— NEW SERIES.
Weaver ▼. King et al. [Vol. XII, N. S.
action in ejectment brought by Frank Weaver against Oren G.
King et al, in said court. The errors complained of are: As
to the admission of evidence, and errors in the charge of the
court.
It is insisted that the errore in the charge of the court do not
fully appear from the bill of exceptions, because the charge is
attached to the bill of exceptions as an exhibit thereto; and it
is insisted that under the authority of the case of Dunn v. State,
23 Ohio State, 167 and 168, such exhibit can not be looked to to
determine the charge of the court, or to determine whether or
not any prejudicial error occurred therein.
With this contention we do not agree. The exhibit attached
to the bill of exceptions in that case was referred to in the bill
of exceptions as containing the testimony admitted at the trial,
and the court held that it could be looked to for no other pur-
pose; but the inference is that it could be looked to for that
purpose. This bill of exceptions refers to this exhibit as the
charge of the court, and we think the reviewing court has the
right to look to the same to determine whetter the law was prop-
erly given or not.
1st. As to the admission of evidence.
It is contended that the will of Nathan King was improperly
admitted in evidence. With this contention we agree. There
was nothing in that will, nor the acceptance under that will by
the widow of Christopher Weaver, that would indicate an elec-
tion on her part to take under the will.
The objection to the testimony of William Prout we think was
not well taken. It showed the conduct of the widow in rela-
tion to this property, and the effect of it was for the jury. If,
under the circumstances claimed by counsel for plaintiff in er-
ror, she might, with equal propriety, speak of the property <is
her property, whether she had taken under the will or not, then
it would have little or no probative force; but its introduction
can not be, and is not, prejudicial error.
The testimony of Herbert Atherton, land appraiser, as to the
delivery to her of a copy of his appraisement of this real es-
tate, was improperly admitted. It is the same m the will of
CIRCUIT COURT REPORTS— NEW SERIES. 131
1909.1 Licking County.
Nathan King, and could not serve the purposes of Mrs. Weaver
or operate against her.
The introduction of the deed from Catherine Weaver to
George Wallace was also objected to. We think this was prop-
erly admitted, and, under the circumstances of this case, was
the best evidence obtainable to establish an election in pais, or
an actual election under the statute.
We think the charge of the court, submitting to the jury the
right to determine whether or not, under this will, Catherine
Weaver was entitled to the provisions of the will and her statu-
tory rights as widow in said property, was clearly erroneous.
The court should have determined that matter. It is a ques-
tion of law and involves the construction of the will itself, and
ought not to be left to a jury to determine.
The question now arises whether these errors that we find ap-
parent upon the record in this case are prejudicial errors.
This case is peculiar in the fact that the entire records of Lick-
ing county, covering this period of time in which administra-
tion was had of Christopher A. Weaver's estate, were destroyed.
That is to say, if the widow had elected under the statute, the
record evidence of that election is gone. The widow was dead^
Many years had elapsed, and it was impossible to call any one
who had actual knowledge of the fact as to whether she had
or had not elected under the statute. The defendant was not
driven to the defense of proving an election in pais, but could
rely not only upon such an election, but could also rely upon
an election under the statute, and prove that election by the
best evidence now obtainable. True, it would be the same char-
acter of evidence necessary to establish an election in pais, but
we hardly think it would require so much proof, especially if the
terms of the will showed that it was to her interest to have made
such an election. The terms of this will do not show conclusively
upon its face that such an election would have been to her inter-
est. Otherwise, in view of her conduct touching this property, we
would presume such an election to have been made in this par-
ticular case. It is different from a case where the records of
the administration of an estate are intact. But it not clearly
1?2 CIRCUIT COURT REPORTS— NEW SERIES.
Weaver v. King et al. [Vol. XII, N. S.
appearing that it would be for her best interests to elect to- take
under the will, we must next look to the evidence as to her conduct
touching this property, not for a week, a month or a year, but,
as stated in the case of Milliken v. Welliver, 37 Ohio State, 460,
at 467 :
**In an implied election that bars dower, the acts relied upon
are long continued, unequivocal, and inconsistent with the claim
for dower."
We also think that it may become necessary not only to look
to her conduct, but to the conduct of those who held the next
estate in remainder, in case she did not elect to take under the
will. All of the widow's conduct in relation to this property is
perfectly consistent with an election to take under the will. It
does not appear that she ever made any application to have her
dower assigned therein, and she treated the property, at all times,
as her property.
True, it is insisted by counsel for plaintiff in error that the
acts aside from the failure to have dower assigned are just as
consistent with her life estate interest therein as if she were the
owner in fee. That may be true, but the fact that she did not
cause her dower to be assigned therein is not consistent with the
theory that she did not elect to take under the will.
But her deed to George Wallace, made in 1869, containing cove-
nants of seizin and warranty, is the most substantial evidence
offered in this case, and is practically conclusive that she had
elected to take under this will. It was an act on her part that
would have barred her claim of dower in said premises as ef-
fectually as an election to take under the will. It was a solemn
declaration on her part of absolute ownership of the property.
It was notice to these heirs now claiming the remainder in fee
in this property that she claimed a larger estate therein than a
life estate, and that she was holding this property under such
claim and adversely to any interest that they might have ; and
the attempt to make such conveyance by one having a life estate
only, would have given to the remainderman a right of action at
least in reference to the land^ conveyed^ if not to all the lands so
held by her.
CIRCUIT COURT REPORTS— NEW SERIES. 183
1909.] Licking County.
Tllis being true, we think that the evidence properly admitted,
in the absence of proof to the contrary, in view of the fact that
the records have been destroyed, is practically conclusively not
only of an election in pais, but an actual election under the stat-
ute.
Therefore notwithstanding the errors in the admission of evi-
dence and in the charge of the court, the verdict of the jury in
this case was right, and no other judgment could be sustained
under the record in this case.
In the case of Way & Co. v. Langley, 15 0. S., page 393, it is
held :
** Where, in error, it is apparent from the record that the judg-
ment of the court below was right, technical errors intervening
on the trial will not avail to disturb the judgment."
These errors are merely technical errors and ought not to caase
a reversal of this judgment that is manifestly the correct judg-
ment in the case.
Aside from these considerations, it is by no means certain that
this widow would not have taken the remainder in fee in this
land upon the death of her son, even though she had not taken
under the will. This is an executory devise. It has no relatipn
to an estate of immediate enjoyment. If no provision whatever
had been made for the wife in this will other than this one, and
she had been given her dower and distributive share under the
statute, we think that, upon the death of the son, this executory
devise would operate in her behalf, and that she would receive
the fee in the remainder therein. True, the language of the stat-
ute in this behalf is plain and explicit, that the widow must elect
to take under the will; otherwise, she will be remitted to her
statutory interest in her deceased husband's estate. But, the pur-
pose of this election is for the sole and only purpose of barring
her from dower and a distributive share in his property.
When it clearly appears by the terms of a will that any devise
therein is not in lieu of dower and distributive share, but in ad-
dition thereto, then no election is necessary, for it is only an elec-
tion between rights that she is called upon to make. When there
is no conflict of rights, there is no necessity for an election.
134 Circuit court reports— new series.
French Bros. Dairy Co. v. Giacln. [Vol. XII. N. S.
We think the manifest intent and purpose of this item of the
will was to give her this estate by way of executory devise, in ad-
dition to her statutory rights in said estate, and without refer-
ence whatever thereto. If this construction of the will be the
true one, then the evidence oifered in the trial of this case is not
important; no matter how erroneous the admission of evidence
or the charge of the court may be, it could not be prejudicial, if
the judgment was in accord with this construction. But whether
or not this construction should obtain, the only competent evi-
dence in the case shows that there was an election, either under
the statute or in pads, and it i^ a matter of indifference which.
The verdict and judgment is right, and ought not to be set
aside for technical errors.
The judgment of the common pleas court is affirmed, with
costs. Exceptions of plaintiff in error are noted, and cause re-
manded for execution.
IMITATION OF AN ESTABLISHED COMMERCIAL NAME.
Circuit Court of Hamilton County.
French Brothers Dairy Company v. John Giacin. •
Decided, June 19, 1909.
Unfair Competition — In the Use- of the Word ''French'' as Applied to
Ice Cream — Circumstances Suggesting a Pwrpose to Deceive — Trade
'Names.
Where a family named French has carried on a dairy and milk busi-
ness for a great number of years under their own name, and more
recently have built up in connection therewith an extensive busi-
ness in ice cream, injunction will lie against the use of the word
"French" in connection with an ice cream business carried on by
a competitor who is not a Frenchman and whose manifest pur-
pose is to attract trade by creating a false impression as to his
own identity.
Albert Bettinger and Jacob Shroder, for plaintiff.
Scott BoTvham, for defendant.
♦ Affirming French Bros. Dairy Co. v. Oiacin, 8 N. P. — N. S.,
which see for a fuller statement of the facts.
CIRCUIT COURT REPORTS— NEW SERIES. 185
1909.1 Hamilton County.
Swing, J.; Smith, J., concurs; Gifpen, P. J., dissents.
Plaintiff has been in the dairy business in this city for a
great number of years. For more than ten years it has manu-
factured and sold ice cream in this city very extensively, having
a main store in the heart of the city, with numerous branch stores
located throughout the city. It has maintained wagons on the
streets of the city delivering ice cream, on which are painted
'* French Bros. Ice Cream." This ice cream has been extensively
known and has enjoyed and still enjoys a high reputation.
Recently the defendant commenced the manufacture and sale
of ice cream in this city under the name and style of ** French
Ice Cream Co." This sign is in the windows of his main office
on Vine street, and at his store on Walnut Hills he has the same
sign, with the addition ** Branch Store." The form in which
the words are placed is as follows: French Ice Cream Co.
Branch Store.
Plaintiff claims this a fraud upon it and its customers.
The defendant says that he uses the name for the purpose of
distinguishing it from the Vienna Ice Cream Co., with which
company he formally worked, and from other firms engaged in
manufacturing ice cream in the city, and for the further reason
that the word ** French" is a geographical name and much em-
ployed in the businesses which produce things to eat, drink or
wear, and further in manufacturing his ice cream he is using the
French pot process. He further offered evidence to show there
was known to ice cream makers and that numerous cook books
contain recipes for making an ice cream called ** French" ice
cream, which ice cream contains from twenty to twenty-four
eggs to each gallon of cream.
Defendant's evidence fully sustains his claim that he made
his ice cream by the French ice cream pot process, which process
differs from other processes in that it is made in an open vessel
instead of a closed vessel. But the evidence does not sustain him
to the effect that he made his ice cream after the formulas con-
tained in the cook books, the difference being that instead of using
twenty to twenty-four eggs to a gallon he used from six to ten.
But the evidence clearly shows that while to some ice cream
makers there is an ice cream known as ** French" ice cream, it
186 CIRCUIT COURT REPORTS— NEW SERIES.
French Bros. Dairy Co. v. Giacln. [Vol. XII, N. S.
is not known to the general consuming public, and no evidence
was offered which tended to show that in a single instance
any one had inquired for French ice cream, meaning thereby ice
cream made after the formula called French ice cream.
The evidence clearly shows that the name assumed by the de-
fendant was calculated to, and did, deceive the public in believ-
ing that the ice cream sold and offered for sale by him was the
ice cream of the plaintiffs.
It seems equally plain that in using the name French, it was
the purpose of the defendant to deceive the public. '* French's*'
ice cream was favorably and universally known in this city, and
defendant knew this. He was doing business under the name of
the ** French Ice Cream Co." It was not a company, and his
name was not French, and his sign did not convey to the public
information that he was making ice cream under a formula desig-
nated in the cook books French ice cream, nor was such ice cream
known to the public. Nor did his sign inform the public that
the ice cream made by him was made by the French or open pot
process. Nor can it be assumed under all the circumstances that
the defendant was using the name as a name indicating in itself
a superior article of ice cream. The main idea in the minds of the
public in this city, with the use of the word French in reference
to ice cream, is the ice cream made by the plaintiff, and it would
not be reasonable to think that when used as defendant has done,
that to the public it meant a geographical name, or its quality or
the manner in which it was made.
If defendant for good reasons does not want to use his own
name under which to sell his ice cream, he should choose some
name other than that used by some one else who has been long
established in the business, and which name is well and favorably
known to the public. This can work no hardship on the defendant,
but to hold otherwise may work a great injury to the plaintiffs.
A decree will be entered restraining the defendant from using
the word ** French" in the manner used by him.
CIRCUIT COURT REPORTS— NEW SERIES. 187
1909.) . Cuyahoga County.
REGULATION OF AFFAIRS OF FRATERNAL aENEFIOARY
ASSOCIATIONS.
Circuit Court of Cuyahoga County.
Margaret McGovern v. The Brotherhood op Locomotive
Firemen and Engineers.
Decided, June 18, 1909.
Fraternal Insurance and Mutual Benefit Societies — Limitation of Lia-
hility of — Based on Disappearance of Member for Seven Years or
More,
Where a fraternal beneficiary association reserves the right to amend
Its by-laws, a by-law providing that no death losses shall be paid
where the only evidence of death is the presumption arising from
disappearance for seven years, is for the mutual benefit of the
members, not against public policy, and is binding upon the benefi-
cary of a member, notwithstanding its adoption but fifteen days
before the legal presumption of the member's death would be es-
tablished and notwithstanding the receipt of dues and assessments
from the beneficiary up to date of the amendment.. .
Mathews & Orgill, for plaintiff in error.
Carr, Stearns, Chamberlain & Royan, contra.
Winch, J.; Henry, J., and Marvin, J., concur.
Error to the Court of Common Pleas.
In 1891 P. W. McGovern became a member of the defendant
organization. On January 13th, 1900, he disappeared and has
never since been seen or heard of by any of his friends, family
or relatives. For seven years subsequent to his disappearance
his wife, Margaret McGovern, plaintiff in error, paid the pre-
miums and assessments to the defendant as required by the
policy, the defendant having notice of the fact that McGovern
had disappeared.
In September, 1906, the defendant adopted a by-law declaring
•that no liabilities should be incurred because of the disappear-
ance of a member, or because of the presumption arising there-
from.
138 CIRCUIT COURT REPORTS— NEW SERIES.
McGovern v. Brotherhood. [Vol. XII, N. S.
This by-law went into effect January 1st, 1907, or fifteen days
before the expiration of the seven year period relied upon by
plaintiff in error to establish the legal presumption of death.
In the court of common pleas the petition averred the issuance
of the policy, the payment of premiums and assessments, the
performance of conditions precedent, and the facts as to Mc-
Govern's absence for seven years. The defendant's answer con-
ceded the issuance of the policy and the payment of dues as al-
leged therein, and asserted as a defense to the action the enact-
ment of the by-law in question.
The reply admitted the adoption of the by-law and alleged
that it was adopted by the organization with knowledge of Mc-
Govern's disappearance, and notwithstanding the acceptance of
dues from plaintiff.
It is also conceded in the pleadings that McGovern at the
time he became a member agreed to conform to all laws, rules
and regulations of the society then existing or that might there-
after be enacted.
Upon this state of the pleadings the court sustained a motion
by defendant to exclude evidence under the pleadings, and for
judgment in its favor.
A review of this judgment requires an investigation of two
questions: first, had the organization a right to pass any by-law
on January 1st, 1907, which could be binding upon McGovern 's
beneficiary ; second, is the by-law which was passed, a valid one 1
First, if McGovern was dead on January 1, 1907, the rights
of his beneficiary were then vested and could not be divested by
any action of the association. But was he then dead, or was there
any presumption at that time that he was dead?
There is no allegation in the pleadings that he was dead; the
plaintiff relies solely upon the presumption of law, which arises
after a man has been absent and unheard of for seven years.
There is no presumption either of life or death at any particular
time during the seven years. Whitely v. Equitable Life Assur-
ance Society, 72 Wis., 170; Supreme Commaridery, etc., v. Ever-
ding, 20 C. C, 689.
It would seem then that under the power reserved by the
organization it had a right on January 1, 1907, to enact a by-law
CIRCUIT COURT REPORTS— NEW SERIES. ]39
1909.1 Cuyahoga County.
which would be binding upon McGovern and his beneficiary.
Tisch V. The Protected Home Circle, 72 Ohio St., 233.
The payment of dues by the beneficiary has no bearing on the
ease ; it is a concession on her part that the member is still alive.
Second, the reasonableness of such by-laws as the one pleaded
in this case is recognized in the Tisch case, and cases there cited,
but it is urged that this by-law not only limits the right to re-
cover under the certificate, but seeks to control the rules of evi-
dence which shall be applied by the courts; that it attempts to
abrogate the rule of the courts that proof of seven years absence
unheard of, shall be received as proof of death.
The point would be well taken were the defendant an insurance
company where the relation of company and policyholder is an-
tagonistic, but it has been repeatedly held that the mutual inter-
ests of the members of a fraternal beneficiary association warrant
their regulating their own affairs to the entire exclusion of the
courts.
An agreement, such as we have here, that no death losses shall
be paid when the only evidence of death is that the member has
disappeared, is for the mutual benefit of all the members, and
it is not contrary to public policy for parties to agree among
themselves for their mutual benefit. McGovern had the benefit
of this agreement, as well as all other members, and his benefici-
ary must share its burdens. Rood v. Railway P. <& F. C. M, B.
A,, 31 Fed. Rep., 62; Sanderson v. B, of R. R. Trainmen, 204
Pa. St., 182 ; Osceola Tribe No. 11, I. 0. R. M. v. Schmidt, 57
Md., 98; Kelley v. Supreme Council, etc., 46 App. Div. (N.
Y.),79.
It appears, then, that the organization had a right to pass the
by-law in question, and that it is binding upon McGovern and his
beneficiary.
Judgment affirmed.
140 CIRCUIT COURT REPORTS— NEW SERIES.
Simper v. Carroll. [VoI.XII,N.S.
PROSECUTION FOR FALSE ARREST.
Circuit Court of Hamilton County.
Edward Simper v. Lillie Carroll.
Decided, June 5, 1909.
False Imprisonment — Action for Damages on Account of— Competency
of Evidence as to Nervous Effects Resulting from — Motive of Plaint-
iff—Defendant Liable for Natural Consequences of Arrest— Newly
Discovered Evidence as a Ground for New Triah
1. Newly discovered evidence, if cumulative only, or such as might have
been discovered with reasona'ble diUigence, is not available as a
ground for a new trial.
2. One causing an arrest to be made is liable for the natural and prob-
able consequences of such arrest. .
3. It is competent for a plaintifE in an action for false arrest to testify
as to the eftect of the arrest upon her mental and nervous condi-
tion.
4. Where the facts upon which an action for false arrest are based
are sufficient, the motive prompting the bringing of the action is
immaterial.
Jerome Z>. Creed, for plaintiif in error.
Bates & Meyer, contra.
The defendant in error, plaintiff below, examined some rings
at the jewelry store of Edward Simper with the view of pur-
chase, as he was led to believe. Before she left the store it was
discovered that one of the rings was missing. What was said
when this discovery was made led to a demand on the part of
the woman, as Simper claimed, that she be searched. Simper
thereupon called up police headquarters and two detectives re-
sponded, who took the woman to the city hall, where after sat-
isfying themselves that the ring was not in her possession she
was allowed to go without any charge being entered against her.
Thereafter a petition was filed by her against Simper, which con-
tained the following averments:
**0n or about December 12, 1904, defendant caused plaintiff
to be arrested, and taken to a police station and searched, and de-
CIRCUIT COURT REPORTS— NEW SERIES. 141
1909.] Hamilton County.
prived of her liberty for two hours unlawfully and with force on
a pretended accusation of larceny, to her damage in the sum of
$2,500, for which she asks judgment with costs.''
In the court below a verdict was returned for the plaintiff for
$500, upon which judgment was entered. To this judgment
error was prosecuted.
QiPFEN, P. J.; Swing, J., and Smith, J., concur.
Newly-discovered evidence to be available on a motion for a
new trial must be neither cumulative nor such as might with rea-
sonable diligence have been obtained at the trial. All of the
alleged newly-discovered evidence is open to one or both of these
objections.
If the defendant caused the arrest of the plaintiff, then what
the police said and did in her presence while she was detained
in pursuance of such arrest was competent to bind the defendant,
especially when it was the natural and probable consequence of
the arrest as in this case.
There was no error in permitting plaintiff to testify to her
mental and nervous condition as the direct result of the arrest.
The following question was put to the plaintiff on cross-exami-
nation :
"Are you prosecuting this suit to get inoney or to get your
reputation backV
It is immaterial what the motive of a litigant may be in prose-
cuting an action provided the facts upon which it is based are
sufficient in law. The objection to the question was properly sus-
tained.
The question ruled out on page 38 of the bill of exceptions, is
covered substantially by the next question, and hence no preju-
dice resulted. The two questions at page 124 of the bill were
properly ruled out because calling for a conclusion and not a
fact. The testimony at pages 131 to 137 was admissible in re-
buttal.
If the defendant unlawfully detained the plaintiff in his store
until the police came, whether at his or her request, and whether
she was searched at his or her own request, such unlawful de-
142 CIRCUIT COURT REPORTS— NEW SERIES.
Vincent v. State of Ohio. [Vol. XII, N. S.
tention was the eflScient cause and rendered the defendant liable.
Hence that part of the charge of the court excepted to by counsel
for defendant correctly states the law.
We find no prejudicial error in the record, except that the
damages in the absence of malice are excessive, and a remittitur
of $200 will be ordered, and if not consented to the judgment
will be reversed.
SALE OF DRUGS BY PHYSICIANS WHO ARE NOT
PHARMACISTS.
Circuit Court of Cuyahoga County.
John R. Vincent v. State of Ohio.
Decided, June 14, 1909.
Physicians — Sales of Drugs or Pharmaceutical Preparations hy a
Physician ftom his Own Store — Not Within his Business as a
Physician, When — Exceptions to Criminal Statutes — Negative Aver-
ment not Necessary, When — Section 77 of the Act of May 9, 1908
(99 0. L., 507).
A physician who sells from his own drug store, or a store in which he
is a part owner, drugs, chemicals or poisons to one or for the use
of one who is not his own patient, does not in so doing act within
the business of a physician, and if he be not a pharmacist or as-
sistant pharmacist such action subjects him to the pains and
penalties provided by statute where such sales are made by others
than pharmacists or assistant pharmacists.
William Hotvell, for plaintiff in error.
Charles P. Hine, contra.
Marvin, J.; Henry, J., and Winch, J., concur.
Error to the Court of Common Pleas.
The plaintiff in error was prosecuted before a justice of the
peace upon an affidavit which charged :
*'That on or about the 8th day of October, A. D. 1908, at and
in the county of Cuyahoga and state of Ohio, one John R. Vin-
cent not being then and there a pharmacist legally registered
under the laws of the state of Ohio, and not being then and
CIRCUIT COURT REPORTS— NEW SERIES. 143
•
1909.] Cuyahoga County.
there a legally registered pharmacist under the laws of the state
of Ohio, did then and there unlawfully sell a certain poison
to-wit, tincture of iodine, to Prank H. Frost, contrary to the
statute in such case made and provided, and against the peace
and dignity of the state of Ohio.*'
As a result he was found guilty. Error was prosecuted to
the court of common pleas, where the judgment of the justice
was affirmed. It is sought here to obtain a reversal of the judg-
ment of each of said courts.
The prosecution was under Section 77 of the act of May 9,
1908, found in 99 O. L., p. 507. That section reads:
'*No person not a legally registered pharmacist, shall open or
conduct a pharmacy or retail drug or chemical store, either as
proprietor pr manager thereof, unless he has in his employ and
places in charge of such pharmacy or store a pharmacist legally
registered under the laws of this state. No person not a legally
registered pharmacist shall compouild, dispense, or sell any drug,
chemical, poison or pharmaceutical preparation upon the pre-
scription of a physician or otherwise ; but a legally registered as-
sistant pharmacist may compound, dispense or sell any such drug,
chemical, poison or pharmaceutical preparation, when employed
in a pharmacy or drug store under the management and control
of a legally registered pharmacist. ' '
Section 78 of the same act provides for the punishment of him
who violates the provisions of Section 77.
By Section 79 of the same act, it is provided that :
* * The preceding two sections shall not apply to the business of
a physician, or prevent him from supplying his patients with
such medicines as to him seems proper. ' '
It is urged that the affidavit in this case is defective in that it
fails to negative the proposition that the sale charged was not
done in connection with the business of a physician, or fails to
aver that the party charged was not a physician. This conten-
tion is not sound. The provision as to the business of a physi-
cian, and as to such physician supplying his patients with such
medicines as to him seems proper, is in a separate section of the
statutes, and is not used in connection with the definition of the
offense.
114 CIRCUIT COURT REPORTS— NEW SERIES.
Vincent v. State of Ohio. [Vol. XII. N. S.
In the case of Hale v. State, 58 Ohio St., 657, the court in speak-
ing of this matter of negative averment says:
**The test appears to be that when an exception or proviso
in a criminal statute is a part of the description of the offense,
it must be negatived by averment in the indictment in order to
fully state the offense, but where its effect is merely to take
certain persons or acts out of the operation of the general pro-
hibitory words of the statute the negative averment is unneces-
sary. ' '
And in the same case this language is used :
**An indictment which charges a violation of the general
prohibitory provision makes a prima facie case, and if the ac-
cused, or the act with which he is charged, comes within any
clause of the proviso, that is a matter which lies more especially
within his own knowledge and should be brought forward by
him in defense."
The facts in this case show that the plaintiff in error is a
physician; that he is interested in a drug store; that he is not
a pharmacist or assistant pharmacist, legally registered ; that he
made a sale of a drug at this drug store to the party named in
the affidavit at the time named; that the medicine was not fur-
nished to any patient of his, and was not done in his business as
V. physifian. It is urged that because he is a physician and that
the drug business carried on at the store where this sale was made
is partly owned by him, that he comes within the i)roviso, that
Section 77 shall not apply to the business of a physician. This
is clearly unsound. The business of a physician in its ordinary
use means the professional business of a physician, that is, the
practice of the profession of medicine. To hold that this lan-
guage as used in the statute would include any other than th«3
professional business of the physician would lead to absurd
consequences. Physicians are not prohibited from engaging in
banking, merchandizing, manufacturing, or any other lawful
business, but in no proper sense can the business of banking,
merchandizing, manufacturing and the like be called the busi-
ness of a physician.
We reach the conclusion that there was no error in the judg-
ment of the court of common pleas, and the same is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 145
1909.] Franklin County.
RAILWAY RKNDER£D A COMPETITIVE LINE BY VIRTUE
OF ITS CONNECTIONS.
Circuit Court of Franklin County.
State, ex rel Attorney-General, v. The Hocking Valley
Railway Co.*
Decided, July 21, 1909.
Monopoly and Discrimination in Railroad Rates — Arising fr^m a Joint
Cfaaranty by Competing Railway Companies of Coal Company Bonds
— Such a Transaction not in the Nature of a Tonnage Contract,
When — Test as to Whether Railway Lines are Competing — One
Line in Competition with Another by Virtue of Its Connections,
When — Doubts as to the Powers Granted under Corporate Fran-
chises Resolved in Favor of the State — Dedsionp of the United
States Supreme Court not Controlling on the State Courts, When,
1. Where a court Is called upon to construe a corporate franchise at
the suit of the state granting it, all doubt will be resolved in favor
of the state and against the grantee.
2. An Ohio court is bound to follow the decisions of the courts of this
state, as distinguished from those of the United States Supreme
Court, where only state statutes and policies are involved and no
federal question arises.
3. The guaranty of the bonds of a coal company by a railway company
can not be construed as a tonnage contract, but is in the nature of
monopoly and leads to discrimination where under a permissive
clause a competing railway company is brought in to share the
guaranty on condition of an equal division of the traffic arising from
the mines of the company issuing the bonds; and where such a
guaranty exists, it is an unlawful exercise of power, r
4. The state is not bound by the fact that the contracting parties to
an illegal agreement are satisfied therewith, but may inquire
whether others and especially the public at large are prejudiced
thereby.
5. The Kanawha 6 Michigan railway is by virtue of its connections a
competing railway with the Hocking Valley in the broad and prac-
tical sense, and the acquirement by the Hocking Valley Railway
Company of a majority of the stock of the Kanawha ft Michigan
was illegal.
m
* For previous opinion Id the same case, see ante, p. 49.
146 CIRCUIT COURT REPORTS— NEW SERIES.
State, ex rel, v. Railway. [Vol. XII, N. S.
U. G, Denman, Attorney-General; Smith W, Bennett, E, C.
Morton and Freeman T. Eagleson, for plaintiff.
James H, Hoyt, Doyle, Lewis (& Shauffelberger and C. 0.
Hnnter, contra.
Allread, J.; Sullivan, J., and Dustin, J., concur.
Upon application of counsel for the railway company a re-
hearing has been allowed upon two propositions, viz., the dis-
continuance of the guarantee of the coal companies, and the
competing character of the K. & M. Railway Company.
The propositions involved in the rehearing have been argued
with great earnestness and ability by the respective counsel, both
orally and by supplemental briefs.
These questions were somewhat overshadowed in the former
decision, by the main question of the right of the railway com-
pany to hold the stock of the subsidiary coal companies, and the
court has therefore reviewed and considered these propositions
anew, in view of their importance and in the light of the pres-
ent argument.
The ** commodities clause" decision, which was announced by
the Supreme Court of the United States, pending this rehearing,
has been cited for its bearing upon the question of the bond
guaranty, and has been considered by the court upon the main
question of stock ownership in the coal companies.
The court is of opinion that the ** commodities clause'' case in-
volved the application of different principles and may, there-
fore, be distinguished from the case at bar.
The railway companies there, had the charter power, ex-
pressly granted and held valid by the state, to hold the coal com-
pany stocks, and the act of Congress was in derogation of the
power so granted by the state. In view of its conflict with the
rights granted and held valid by the state, and of defeated amend-
ments during the passage of the act expressly forbidding stock
ownership in subsidiary companies, the court applied a strict
construction of the ** commodities clause," so as to avoid grave
eonstitutioaal questions and preserve as far as possible the state
cbarterV '" * '
CIRCUIT COURT REPORTS— NEW SERIES. 147
1909.] Franklin County.
In the case at bar the state denies the power, and the court is
called upon to construe the charter at the suit of the state
panting it. The uniform rule of construction in cases of this
kind is to resolve all doubt in favor of the state and against the
grantee.
This is the uniform trend of the Ohio cases. Taft, J., in Hum-
boldt Mining Co. v. Milling Co., 62 Fed., 356, 361, says:
** There 'is no court in the country which has been stricter in
enforcing the principle that corporations are prohibited from
exercising any powers, which are not expressly conferred upon
them in their charters, or which are not fairly incidental to the
express objects of their creation, than the Supreme Court of
Ohio."
The doctrine is aptly stated by Mr. Justice Brewer, sitting in
circuit in the case of Chicago, etc.. By. Co. v. Union Pac. Ry. Co ,
47 Fed., 22 :
**A11 grants, even grants of corporate franchises,- are con-
strued strongly in favor of the government, and against the
grantee. So when the state challenges the action of one of its
corporate creatures, it may insist on clear warrant for such ac-
tion.''
We think the distinction between the principles applicable
here, and those of the ** commodities" case clearly warranted.
But even if the '* commodities" case be in conflict and incapable
of reconciliation, the court is bound to follow the decisions of
our own state, where as in this case no federal question arises,
and where only state statutes and policies are involved.
In this connection the case of Stockton, Atty.-Genl., v. Central
Railroad Co., 50 N. J. Eq., 52, may be cited as strikingly similar
to the case at bar. The claim was there made, as here, that the
ownership of a majority of the capital stock of the coal com-
panies by a railway company did not vest the railway company
with the ownership or control of the coal companies, and the
claim was characterized by the chancellor as a ** disguise and
evasion. ' ' And as to the monopoly formed by the union of the
coal and railway companies, said:
- **The commodity in which these three companies deal is a neces-
sary of life in this state. It is the principal fuel of its homes
148 CIRCUIT COURT REPORTS— NEW SERIES.
state, ex rel. v. Railway. [Vol. XII. N. S.
and factories. The slightest increase in its price is felt by a
population of hundreds of thousands of persons, for their neces-
sity compels them to pay that increase. If once a complete
monopoly is established by the destruction of competition, wheth-
er that be through lease or by co-operation, the promoters of it
and sharers of it may have whatever prices their cupidity sug-
gests. The disaster which will follow can not be measured. It
will permeate the entire community, furnaces, forges, factories
and homes, leaving in its trail murmurings of. discontent
with a government which will tolerate it and all the evil effects
of oppression."
It is urged by the counsel for the railway company that the
guaranty of the bonds of the coal companies, and the contract
between the railway company and the Continental Coal Com-
pany for the equal division of the shipments, is a proper and
authorized method of obtaining business and therefore within
the charter of the railway company as an implied and incidental
power. .
Tonnage contracts, as such and without other features, have
been generally if not universally upheld. The following cases
to that effect are cited by counsel for the railway company : Ry,
Co. V. Furnace Co., 37 0. S., 321 ; Interstate Commerce Commis-
sion V. Ry. Co., 209 U. S., 108; Rtj. Co. v. Hooper, 160 U. S., 514;
Bald Eagle Valley Railroad Co. v. Nitteny Valley Railroad Co.,
171 Pa. State, 284 ; Lough v. Outerbridge, 143 N. Y., 271 ;
Temple Street Cable Ry. Co. v. Helman, 103 Cal., 634; Old
Colony Railroad Corporation v. Evans, 6 Gray, Francis Mass., 25.
In Railroad Co. v. Furnace Co., supra, the question of dis-
crimination was eliminated by the finding of the jury in the
trial court, and the contract was upheld as a tonnage contract.
The question of public policy and the rights of the public were
not involved in the case as presented in the Supreme Court.
In the case of Interstate Commerce Commission v. Railway
Co., supra, the decision was based upon the finding that the rate
in question had been fixed upon actual genuine competition and
in good faith. The question raised by the Interstate Commission
was whether it was proper to fix a different rate Jor live stock
than upon packed beef. And upon the finding as to competition
it wfis held that a different rate m a different class did not affect
CiftCuit couftT Reports— N£w series. U9
1909.] Franklin County.
the validity of the rate so fixed upon actual competition in the
same class. In none of the other cases cited does the question
of public policy arise.
Now is the contract for the guaranty of the coal company
bonds, and the equal division of the shipments of the Continental
Coal Company merely a tonnage contract ?
In one view it may be said that the guaranty of the bonds was
to enable the coal company to obtain more money, to buy more
mines and ship more coal. But in a broader sense and in the
view evidently adopted by the railway company the underlying
and dominant feature was the control of the coal production and,
transportation and the ultimate restriction of competition. This
was the declared purpose of the promoters of the re-organization
and the evident result.
The written contract of the Continental Coal Company was
first made with the Toledo & Ohio Central Railway Company.
This contract standing alone, might, with some plausibility, be
said to be one of tonnage. But under a permissive clause of that
contract, the Hocking Valley, a competing company, is brought
in by a contract between that company and the Toledo & Ohio
Central Company providing for a joint guaranty of the bonds of
the Continental Company and an e^ual division of the traffic.
We do not see how the conclusion can be escaped that such an
agreement between naturally competing railway companies tends
to monopoly and leads to discrimination. The vice of illegality
taints and vitiates the contract and renders the transaction void
as against the state. The charter of the defendant was granted
and extraordinary powers conferred for the public good and it
should not, therefore, be used to accomplish an unlawful pur-
pose.
It is contended that all public purposes are accomplished by
forbidding the stock holding, and that it is not necesdary nor
competent to terminate the bond guaranty which has been exe-
cuted and is outstanding.
This question has given the court a great deal of trouble. But
our conclusion is, that the guaranty being an unlawful exercise
of power, and that a complete separation of interest and identity
can not be had while the guaranty exists and the railway company
150 CIRCUIT COURT REPORTS— NEW SERIES.
state, ex rel, v. Railway. [Vol. XII, N. 8.
remains interested in the financial operation of the coal company
and while the coal company's stock is pledged with the fiscal
agents of the railway company, the slate has the right to have
the whole relationship severed. It is no defense to the railway
company to plead the rights of third parties, nor that the illegal
act has been executed.
The court agrees with counsel, that it has no jurisdiction to de-
termine in this action the rights of the bondholders. The sug-
gestion in the original opinion as to the validity of the bonds
as against the property of the railway company was employed in
an effort to distinguish the decision by Lurton, J., in the Hock-
ing Valley case, reported in 87 Fed., 815, from the case at bar.
It is clear to the court that the rights of the bondholders can only
be determined when an appropriate suit is brought, wherein they
are made parties. Whether, therefore, the bondholders can
exact of thie railway company the full amount with interest to
maturity, or whether the vice of ultra vires affects the validity of
the bond, is not now for decision. But as against the railway
company, the state has the right to call upon the defendant, as
an alternative to save its charter, that it purge itself of the il-
legal act.
It is also urged that the p6rtion of the contract providing for
an equal division of the tonnage of the Continental Company,
is not set out in the amended petition as a foundation for relief.
But we think the tenth cause of action, as to the agreement for
discrimination between all the railway and coal companies,
reaches this issue.
It is contended that the Continental Company and the railway
companies, being satisfied, the agreement should not be dis-
turbed. The state, however, is not bound by the fact that the
contracting parties are satisfied, but may inquire whether others
and asp^cially the public at large are prejudiced, or whether the
contract tends to prejudice them. The tendency of this eon-
tract is toward discrimination against other operators in which
the railway company is not interested, and through such discrim-
ination to affect the body of consumers.
Taking up the question of the competitive character of K. & M.
Railwav and the Hocking Valley Railway, it may be conceded
CIBCUIT COURT REPORTS— NEW SERIES. 161
1909.] Franklin Ck>unty.
that if Athens be accepted as the terminus of the Hocking Val-
ley, and the K. & M. be considered independently of its connec-
tions, there would be little support for the claim that the two
railways are competing lines. But we think the view may be
somewhat enlarged, and treated upon a more practical basis.
The charter of the Hocking Valley Company describes its line
as ** extending from the city of Toledo, by way of Gallipolis to
the city of Pomeroy, • • • together with all branches or
sidings of said railroad."
From the charter, therefore, as well as the general situation
disclosed by the evidence, it appears that the main line of the
Hocking Valley extends from Toledo to the Ohio river, and that
the extension to Athens is a branch.
The K. & M. charter describes the initial terminus of its rail-
way as the village of Corning, and thence extending by way of
Jacksonville, Athens and Middleport to the Ohio river at Point
Pleasant, and into West Virginia, by way of Charleston to the
Gauley river.
It may fairly be assumed that the chief commercial importance
of the village of Corning as a starting point of a railway was,
its being the terminus and connecting point of the Toledo &
Ohio Central Railroad. The K. & M. Railway is a coal carrying
road, extending from the Hocking Valley district to the Kanawha
district of West Virginia, and reaching the markets through its
connections, largely, the Toledo & Ohio Central. The K. & M.
Railway was, naturally, adopted by the Toledo & Ohio Central
Company as a connecting branch, and the adoption made more
permanent by the Toledo & Ohio Central Company acquiring
and owning a majority of its capital stock.
The Toledo & Ohio Central Railway jCompany was authorized
by the letter and spirit of Section 3300, Revised Statutes, to ac-
quire the stock of the K. & M. Company, as they were not com-
peting but connecting and continuous lines, and extended there-
by the competitive influence of the Toledo & Ohio Central from
Coming through the coal district to Athens and the Ohio river.
This acquisition of stock by the Toledo & Ohio Central Company
and its virtual ownership and control of the K. & M. was not
only legal, but subserved the public interest by extending the
field of competition.
152 CIRCUIT COURT REPORTS— NEW SERIES.
state, ex rel. v. Railway. [Vol. XII. N. S.
It is claimed that the trackage contract between the Hocking
Valley Company and the K. & M. for the joint use of the track
along the Ohio river between Oallipolis and Pomeroy, which
contained a clause forbidding the K. & M. taking any business
off the Hocking Valley lines to or from any point on the Hocking
Valley lines, except Athens, so limited competition along the
Ohio river, as to leave nothing substantial between the two com-
panies. There is some obscurity as to whether the K. & M. had
the right to take business off the Hocking Valley lines for the
Toledo & Ohio Central connection and points beyond. Mr. Con-
ners, superintendent of both railways, states that the K. & M.
with the Toledo & Ohio Central connections was in competition
with the Hocking Valley at Ohio river points and at Athens, for
Columbus, Toledo and intermediate points. And we are of
opinion that it fairly appears from the evidence, especially from
the fact of the K. & M. line touching the Ohio river at Point
Pleasant, and coming near at Hobson, that the K. & M. was in a
petition, independent of the trackage, to compete with the Hock-
ing Valley for the business coming down the Ohio river, and also
at Athens, for the markets of Columbus, Toledo and intermediate
points accessible to both railways.
While the K. & M. and Toledo & Ohio Central were connected
by stock ownership, and operated in alliance, a shipper at Athens
or upon the Ohio river had a choice of routes and the benefit of
competition. By the transfer of the majority of the stock of the
K. & M. from the Toledo & Ohio Central to the Hocking Valley,
all competition from the Ohio river and across Southern Ohio to
the Toledo & Ohio Central connection was swept away, and all
that territory brought under the influence of the Hocking Valley
alone. The purchase by one railway company of the majority
or controlling stock of another is tested as to its validity, bj'
Section 3300, Revised Statutes, which authorizes such ownership
when the lines are conecting and non-competing. The acquisi-
tion of this stock by the Hocking Valley from the Toledo & Ohio
Central is not within the permissive authority of the statute, nor
sanctioned by public policy, because the K. & M. Railway, con-
sidered with reference to its Toledo & Ohio Central connection,
was a competitive road with the Hocking Valley, and the act of
CIRCUIT COURT REPORTS— NEW SERIES. 168
I
1909.] Franklin County.
■
the Hocking Valley in the acquisition of said stock was illegal.
In the Hafer case (4 0. D., 478), the C, J. & M. Railway Com-
pany ^as declared to be a competitor of the Cincinnati, Hamilton
& Dayton Railway Company between Cincinnati and Toledo, al-
though the former depended for its entrance into Cincinnati
upon a trackage arrangement, temporary in its nature.
In East Line & Bed River Railway Co, v. Texas, 75 Tex., 34,
the finding of fact entered by the trial court was, that disregard-
ing connections with other lines, those involved in the purchase
were not competing, but with reference to the connections they
were competitive. Upon this finding the court held the railways
were competitive lines.
Still more nearly in point is the case of State, ex rel Atty.-
GenL., v. Montana Railway Co.y 21 Mont., 22, where the connec-
tions were considered in determining the question of competi-
tion.
The broader and more practical view of competition adhered
to in the cases cited, has been established as the rule of this state
in the VanderbUt case, 37 O. S., 590.
The claim is made that the rule of public policy in this state
has been supplanted by the State Railway Commission Act. On
the other hand, it is claimed that the commission act is supple-
mental to the existing laws. We do not find it necessary to ex-
press an opinion on this subject, as the offenses were committed
and the suit brought before the passage of the act.
We therefore conclude that the K. & M. Railway Company in
its broader and more practical sense is a competing road with
the Hocking Valley. And that the Hocking Valley Company did
not have the right to acquire and hold the majority stock of that
railway company.
The former decision is therefore adhered to.
154 CIRCUIT COURT REPORTS— NEW SERIES.
National Bed Co. v. Bates. [ VoL XII, N. S.
I ,
CONSTRUCTION OP CONTRACT FOR SALE OP GOODS.
Circuit Court of Hamilton County.
National Bed Company v. Charles M. Bates.
Decided, July 17, 1909.
Commissions — Action for Recovery of — Sales — Contracts — ConsUruction
of Agreement in the Light of the Business Engaged in — Intention
of the Parties,
The contract for the sale of goods, involved in this case and on which
it is sought to recover commissions, is held to have been an agree-
ment to purchase during a certain period a certain amount in
moneys' worth of certain kinds of goods, the exact goods to be
agreed upon within the period specified; and until an agreement
was reached as to the exact goods to be purchased, there was no
contract in which the legal relations between the parties was deter-
mined.
Charles McC antic and F. H, Williams , for plaintiff in error.
Charles B. Wilby and Mitchell WUby, for defendant in error.
Swing, J. ; Smith, J., concurs ; Qippen, P. J., dissents.
This cause is in this court on error to the judgment of the
superior court. In that court Bates brought an action to recover
commissions on a contract for the sale of goods made by the bed
company. Bates sold the goods of the bed company in Cincin-
nati and Kentucky.
Bates alleged in his petition that the bed company agreed to
fill all orders for its goods procured by him and accepted or ap-
proved by the bed company. He further alleged that he pro-
cured certain contracts which were accepted and approved by
the bed company, but that the bed company violated its contract
with him, that it discontinued making the goods and that it re-
fused and still refuses to ship and deliver the goods sold by him.
Bates sets out in his petition the several sales made by him
under his contract with the bed company. He alleged "that ac-
cording to the terms of his agreement with the defendant he was
to receive on the invoice price of all goods that were shipped, less
CIRCUIT COURT REPORTS— NEW SERIES. 365
1909.] Hamilton County.
the freight, a commission of five per cent, except where a re-
duction was made in the price and in the commission by special
agreement. ' '
Bates seta out in his petition thirteen sales or contracts of sale
which he had procured for the bed company. At the end of
each he alleges, ' ' wherefore there is due to the plaintiff by the de-
fendant as his commission on said order the sum of $ ." He
alleges that no part thereof has been paid, and prays for judg-
ment for the total sum alleged to be due.
The bed company answered alleging that by the terms of the
contract between it and Bates, Bates was to be paid commissions
on goods that were actually shipped, and that on all goods ac-
tually shipped Bates had been paid his commissions. It further
denied that it made contracts as severally alleged to have been
made in the petition.
It is practically agreed that the contract made between the
parties was that Bates was to be paid his commission **on goods
actually shipped, '^ and that he had been paid his commissions
on all goods that have been actually shipped. The present action
is one for commissions and not for damages for a breach^pf con-
tract.
It wouM, on principle, necessarily seem to follow that Bates
can not recover in this action. He has been paid all the com-
missions he has earned under his contract. If the bed com-
pany had violated its contract, Bates in a proper action and un-
der proper allegations and proper proof would be entitled to re-
cover whatever damages he proved he had sustained, and cer-
tainly what he would receive as commissions would be very strong
evidence to prove the amount of the damage, but by the very
terms of his contract he can only recover commissions on goods
that are actually shipped, and as he sues for commissions and not
damages he can only recover for commissions.
Are the contracts alleged to have been procured enforcible
contracts? The following is the contract of the Queen City Tin
Ware Company:
"Gentlemen — Kindly enter our contract for $20,000. Gray
two coat white lined first quality like samples submitted, we to
have control of this ware in our city, Newport and Covington pri-
156 CIRCUIT COURT REPORTS— NEW SERIES.
National Bed Ck). v. Bates. [VoLXII^N.a
vate label, specificatioDs to follow. Contract expires November
5, 1907. Discount, 80, ly^ per cent, freight allowed to our city.
Dated November 5, 1906. Queen City Tin Ware Co., 0. D.'*
Aa a part of this contract the following is added: ** Goods
to be taken out as wanted.*' All the other contracts are of simi-
lar import. In considering this question the surrounding cir-
cumstances should be taken into consideration in order to under-
*
stand the intention of the parties.
The bed company was a manufacturer of enameled ware, such
as coflfee pots, pans, etc., making over five hundred different
shapes and patterns. The parties with whom the alleged contracts
were made were wholesale and retail dealers, selling their ware
every day. The questions involved as to the nature of this con-
tract were fully and ably argued by learned counsel on either
side, orally, and this has been supplemented by able and elaborate
briefs in which the authorities are cited at length. We may say
that the authorities have not been uniform, but it will not be
our purpose to distinguish them or in fact to cite any of them,
but after a careful consideration of them to state our conclu-
sions.
Judge William Markby, in his concise and profound work,
** Elements of the Law,'* gives this definition of a contract:
** A contract is the concurrence of several persons in a declara-
tion of intention, whereby their legal relations are determined."
It may be said that it is of the highest importance to the busi-
ness interests of our country, that when parties enter into a eon-
tract, the contract should be enforced where the intent of the
parties can be ascertained, but tested by the definition given by
Judge Markby, what is the declared intention of the parties
whereby their legal relation is determined? These contracts
were to run one year. It was an agreement to take so many dol-
lars worth of ware within this time, as wanted, and as specified.
The specifications might include over five hundred different ar-
ticles, or it might be one of the five hundred. The party agree-
ing to purchase might want the articles at any time within the
year. The bed company was a manufacturer of these articles,
and of course it could not know what particular kind of goods
CIRCUIT COURT REPORTS— NEW SERIES. 157
1909.] Hamilton County.
the purchaser would want or when he would want them. The
articles were not in existence at the time the agreements were
made.
This agreement must be read in the light of the business that
each was engaged in. The dealers were engaged in selling their
goods daily and the manufacturer made the goods for daily con-
sumption, and yet by the terms of the agreement the purchasers
were not bound to take any goods until the last day of the year,
and until'that time he was not bound to specify what kind of goods
he would take and the manufacturer could not know what par-
ticular kind of goods should be made so as to fill the order when
it came, if it should on the last day of the contract.
It follows, therefore, that the particular goods to be purchased
was not known to the parties at the time the agreement was made,
and was not a part of the agreement, and as to this the concur-
rent declarations of the intentions of the parties had not been
made ; but it is clear that it was not the intention of the parties
that the agreement contemplated that the provision in the agree-
ment that the goods could be ordered as wanted and as specified,
up until the last day of the year, and yet such is the exact read-
ing of the agreement. It would seem manifestly unjust and con-
trary to the intentions of the parties that the purchaser could on
the last day of the year send in an order for particular goods, and
if the order were not filled, recover damages for a breach of the
contract. That this was not the intention of the parties seems
clear from the way the business was carried on and the corres-
pondence between Bates and the bed company.
As we read this contract it amounts to this, that it was an agree-
' ment to purchase during a certain period a certain amount in
money's worth, of certain kind of goods, the exact goods to be
agreed upon within that time, and that until the agreement was
reached as to the exact goods to be purchased there was no con-
tract in which the legal relations between the parties was deter-
mined.
Judgment reversed.
158 CIRCUIT COURT REPORTS— NEW SERIES.
Goodson, Executor, v. Ooodson. [Vol. XII, N. S.
LOAN CHARGED AGAINST DEVISE.
Circuit Court of Madison County.
J. W. Goodson, Executor, v. Thomas Goodson.
Decided, March 29, 1909.
Parent and Child — Devise of Real Estate — Loan to Son Charged
Against Devise-— Contract Written in Third Persons-Construction
of Receipt,
Where a father, after executing a will containing provision for all his
children, furnishes to one son a sum of money, under the receipt
following: "Received of G nine hundred dollars ($900) to be
taken out of his estate, (signed) T. G."
Held: That after the father's death the amount furnished was prop-
erly chargeable against the devise to the son.
A. r. Cordray and McCloud & Lincoln, for plaintiff.
Oeorge W. Wilson, contra.
By the Court (Dustin, Sullivan and AUread, JJ.).
This action was brought in the court of common pleas by the
plaintiff in error to recover of defendant the amount of an al-
leged loan and to charge the amount against a devise of rcHl
estate.
A demurrer was sustained to the petition and final judgment
rendered. The case is brought here by petition in error.
The petition in the court below sets forth that plaintiff's
decedent, George Goodson, devised certain real estate after the
death of his wife to his son Thomas (the defendant), and cer-
tain other real estate to his son John; that the personalty was
devised to the testator's daughters, and that after the execution
of the will the testator loaned to Thomas, who was then insolv-
ent, $900 under agreement that Thomas was to repay it out of
any portion of the father's estate the son might receive, and that
said loan was evidenced by the following receipt:
** London, Ohio, April 13th, 1900.
** Received of George Goodson nine hundred dollars (900)
to be taken out of his estate.
** Thomas Goodson."
CIRCUIT COURT REPORTS— NEW SERIES. 159
■ ■ ■ ■ w^^a^^M I— I MIIII..I ■ »■ ■ ■■ ■■■■■■ ^^^^^ i» ■■- ^^^^m^ ^^^^m^ ■■■ ■■■■■■■ »i^^
1909.] Madison County.
We think the rights of the parties may be determined by a
construction of this insftrument in the light of surrounding cir-
cumstances.
The signing of the receipt by Thomas, and its preservation
by the father by fair inference sustains the view that he
(Thomas) was in some way to be charged with the amount.
This inference is supported and strengthened by the clause **to
be taken out of his estate.*' The clause alludes to a future
event or occasion. It can not, fairly, be held to refer to the de-
liver}' of the money to Thomas, or the taking of it out of the
father's hands. That had already been done and no obligation
or receipt of Thomas was necessary to accomplish that object.
The terms contemplated a future adjustment or settlement of
the amount receipted for. The term ** estate" is often used with
reference to one's property after death. An order, draft or
check implies that the amount is to be charged against the
drawer, although not expressed.
That Thomas was to be charged with the amount of the re-
ceipt may be impHed and read into the receipt, as is done in
case of bank checks.
There is, we think, a fair inference that Thomas was to be
charged with the amount of this receipt, to be taken out of his
father's estate upon distribution, or at the time he came into
enjoyment of it and it was charged to him (Thomas). The
word **his" before estate might and does refer to Thomas, as
contracts are often written in the third person, and we think
the construction given by us is the most tenable.
While we think the plaintiff is not entitled to a personal judg-
ment, yet it is appropriate that the amount be charged in equity
upon the real estate devised to Thomas.
The petition justifies this relief and to that extent states a
cause of action.
The judgment below is therefore reversed, with instructions
to overrule the demurrer.
16() CIRCUIT COURT REPORTS— NEW SERIES.
Mihalovitch-Fletcher Co. v. Bartlett. [Vol. XII, N. S.
PROOF AS TO QUAUTY OP GOODS SOLD.
Circuit Court of Hamilton County.
The Mihaix)vitch-Pletcher Company v. William II.
Bartlett.
Decided, June 26, 1909.
Sales — Quality of Ooods Sold — Alleged Breach— Evidence that is In-
sufficient to Establish a Contract or Its Breach,
The filing of an affidavit charging that the goods sold did not come up
to the contract does not prove breach of contract, nor does the fact
that the plaintiff pleaded guilty to the charge of adulteration prove
that the goods were adulterated.
Harmon, Colston, Ooldsmith & Uoadly, for plaintiff in error.
Johnson <& Levy, contra.
Swing, J.; Gippen, P. J., and Smith, J., concur.
Plaintiff's right to recover in this action in the court of com-
mon pleas depended on proof of the fact that the goods sold did
not comply with the laws of Pennsylvania.
It seems to us that the proof in the record is not sufficient to
establish this fact. The filing of an affidavit in the courts of
Pennsylvania charging that these goods as not coming up to
the requirements of the law of that state does not prove or tend
to prove that the goods did not comply with the law and the
fact that the plaintiff pleaded guilty to the charge does not
prove the fact of the adulteration.
The petition does not contain a charge that the goods did not
comply with the laws of Pennsylvania, but both parties seemed
to have tried the case on the theory that it did. For these rea-
sons we think the judgment should be reversed and the cause re-
manded to the court of common pleas for further proceedings ac-
cording to law.
Our construction of the contract would wan ant the recovery of
the damages claimed if the breach of the contract had been
proved.
CIRCUIT COURT REPORTS— NEW SERIES. 161
1909.1 Coshocton County.
SUBJECTING REAL ESTATE TO PAYMENT OP DEBTS
OF ANCESTOR.
Circuit Court of Coshocton County.
MiLO S. Ling v. Adam Strome, Administrator, bt al.
Decided, May, 1909.
Quieting Title — Right of Owner of Estate in Remainder to Bring Pro-
ceeding— Liability of Land to Payment of Debts of Ancestor — Ap-
plication of the Statute of Limitations — When the Statute Begins
to Runr^Sections 5779, 61S7, 4981 and i985.
Inasmuch as liability to have title by descent divested by a proceeding
to subject the land to payment of debts of the ancestor is cast upon
the heirs by statute, such a proceeding is not exempt from the
statute of limitations, but must be brought within six years from
the discovery by the administrator of the fact that the personalty is
insufficient to pay the debts; and after the running of the statute
It'is the right of an owner of an estate in remainder, though not
in possession, to bring an action to quiet his title in said estate
against the claims of the administrator.
•/. C. Daugherty and /. C. Adams, for plaintiff.
E. Z. Hay and C. B, Hunt, contra.
Tagoart, J. ; VooRHEES, J., and Metcalf, J. (sitting in place
of Donahue, J.), concur.
This case is in this court by appeal and was heard upon an
agreed statement of facts. The action is for the quieting of the
title to the interest which plaintiff claims in lot No. 11 in the
village of Warsaw, county of Coshocton and state of Ohio.
The defendant, Adam Strome, is the administrator of Charles
Senft, deceased, and the other defendants are the heirs at law
of Christian Strome. A brief summary of the facts will dis-
close the question involved.
Christian Strome obtained two judgments against Charles
Senft in the year 1874. In 1888 Charles Senft died seized of
lot No. 11 in the village of Warsaw, and leaving surviving him
his widow, Barbara Senft, and certain heirs at law. These heirs
at law by their deeds conveyed all their interest in this lot so as
162 CIRCUIT COURT REPORTS— NEW SERIES.
Ling V. Strom, Administrator. [Vol. XII, N. S.
to vest the title in the plaintiflf, subject to the life estate of the
widow, Barbara Senft. There seems to be no question made as
to the title of the plaintiff in the remainder after the termination
of the life estate of the widow.
The defendant, Adam Strome, was appointed administrator of
the estate of Charles Senft in May, 1894. No assets came into
his hands to be administered, and at said date it was known to
him that there was no personal estate to be administered, and
this fact was made to appear in his application at the time of
his appointment.
On July 31, 1894, an action in revivor was brought on these
two judgments against the administrator and heirs of Charles
Senft, deceased, and the judgments w^re revived as against
them. The plaintiff, Milo Ling, having an estate in remainder,
commenced this action, asserting in his amended petition that
the defendant, Adam Strome, as the acting administrator of the
estate of Charles Senft, threatens to subject the estate and in-
terest of the plaintiff in said property to the payment of these
alleged judgment claims. He further avers that none of the de-
fendants have any vaild claims or interest in said premises what-
ever by reason of said alleged judgments or otherwise, and said
pretended claims are unfounded and are a cloud upon his title.
The administrator files an answer and makes this averment:
Defendant says that the title of plaintiff in said lot No. 11 in said
village of Warsaw is subordinate to the rights of this defendant
as administrator of the estate of Charles Senft, deceased, to sell
said lot to pay the debts of said decedent. And defendant fur-
ther says that as the administrator aforesaid it is his official duty
to sell the same, which he intends to do immediately upon the
death of said widow, Barbara Senft, and to apply the proceeds
of such sale to the payment of the debts of said decedent, to-wit,
these judgments.
So that there is the assertion on the part of the plaintiff that
the defendants claim an interest, estate or right in and to the
property of the plaintiff, to-wit, lot 11.
Section 5779 is the section in respect to quieting title :
*' An action may be brought by a person in possession, by him-
.self or tenant, of real property, against any person who claims
CIRCUIT COURT REPORTS— NEW SERIES. 168
1909.] Coshocton County.
an estate or interest therein, adverse to him, for the purpose of
determining such adverse estate or interest ; or such action may be
brought by a person out of possession, having or claimi7tg to have
a7i estate or interest in remainder or reversion in real property,
against a7iy person who claims to have an estate or interest
therein, adverse to him, for the purpose of determining the in-
terests of the parties therein."
And the Supreme Court has said that this interest or claim
may be determined for the purpose of settling all doubtful claims,
and that there may be repose as to the rights of parties in and
to real estate. There is in this case assertion upon the part of
the defendants that they proposed to subject if possible the in-
terest of plaintiff in this lot to the payment of the debts of
Charles Senft, deceased, and that said lot is liable for said debts.
That being so, it falls clearly within the second clause of that
section of the statute.*
Now it became the duty of the administrator under Section
6136 to apply to the courts for power and authority to sell
land of the deceased to pay debts. When did this right accrue
to him? The section provides:
**As soon as the executor or administrator shall ascertain that
the personal estate in his hands w^ill be insufficient to pay all the
debts of the deceased, with the allow^ance to the widow aqd chil-
dren, for their support, twelve months, and the charges of ad-
ministering the estate, he shall apply to the probate court or
the court of common pleas for authority to sell the real estate of
the deceased."
Section 6137:
**In order to obtain such authority, the executor or adminis-
trator shall commence a civil action in the probate court or the
court of common pleas of either the county in which the real
estate of the deceased or any part thereof is situate, or of the
county in w-hich were issued his letters testamentary or of ad-
ministration."
So that in 1894 this administrator had information that the
personal estate was insufficient to pay the debts of the deceased.
It then became his duty and his right to go into either the probate
court or the common pleas court of this county, and by a civil
164 CIRCUIT COURT REPORTS— NEW SERIES.
Ling V. Strom, Administrator. [Vol. XII, N. S.
action obtain authority to sell this land to pay debts. That
being so, this property was east upon the heirs, through whom the
plaintiff in this case obtains title, subject only to be divested by
a court of competent jurisdiction granting authority to the
administrator to sell it for the payment of debts.
Now, it is insisted that he has no right in consequence of the
lapse of time, to sell this land to pay debts, and that is the foun-
dation of the plaintiff's claim.
As to this contention, we think unquestionably the plaintiff is
right. We think the right of the administrator to commence his
proceeding is limited, either to six years or to ten years. It does
not make any difference in this case which statute of limitation
obtains. But the question arises : Does the statute of limitations
obtain in respect to this class of proceedings ? We think the Su-
preme Court has spoken on the subject and authoritatively.
We call attention to the case of Webster et al v. Bible Society,
50 0. S.. at page 9, wherein Williams, J., speaking for the court,
uses this language :
'*It is well settled since the code, and was so before, that only
those cases of technical, continuing, and subsisting trusts, which
are within the proper, peculiar, and exclusive jurisdiction of
courts of equity, are exempt from the operation of statutes of
limitation. Other trusts, which might be the ground of an ac-
tion at law, have always been subject to such statutes.'* Citing
Okey, Judge, Carpenter v. CatwrZ Co., 35 0. S., 317, and cases
above cited.
'If this civil action whereby the administrator could obtain au-
thority to sell land to pay debts is within the operation of the
statute of limitations, the question then obtains. What section
of the statute is it that would be a bar ?
Section 4981 provides the limitation is six years on **an ac-
tion upon a liability created by statute, other than a forfeiture
or penalty." The laws of descent and distribution casting upon
the heirs the real estate, the liability to have the land taken
from them and applied to the payment of the debts of the an-
cestor, is one created by statute. It required the enactment of a
statute to confer upon the administrator a right to proceed to
sell the land, take it frpro the beirs qj)d apply it to the payment
ciiicuiT Court HepohtS— new se&ies. 166
1909.1 Coshocton County.
of debts. No suoh right existed at common law. No such right
existed prior to the enactment of the statute. Therefore, it
may well be said to be a liability created by statute.
But assuming that this section of the statute does not control,
the general statute for limiting the time of actions, Section 4985,
would control, **an action for relief not hereinbefore provided
for, can only be brought within ten years after the cause of ac-
tion accrues." This cause of action accrued in 1894 when the ad-
ministrator had knowledge that there was no personal property
that was applicable to the payment of debts, and it was necessary
to take this property and apply it to the payment of debts.
More than ten years before the commencement of this suit
has elapsed from the time this administrator was appointed, and
he has done nothing, and he is still asserting the right to subject
this lot to the debts of the decedent; either section of the stat-
ute would obtain, and there is no right existing in his favor as
against his property. The attention of counsel is called to the
5 N. P. — N. S., 403, wherein we think the reasoning of Judge
Hunt is very persuasive to our minds that the statute of limita-
tions obtains.
That being the case, then, no right existing in this administra-
tor to proceed to sell this property for the payment of debts,
which he could successfully maintain by a civil action, and he
asserting that he has such right and other defendants contending
that he should proceed in that way, the plaintiff is entitled to the
relief prayed for, and a decree may be entered in favor of the
plaintiff as against these defendants.
Exceptions will be noted and twenty days may be given for
special findings of fact. Motion for a new trial is overruled
and exceptions noted in that regard.
166 CIRCUIT COURT REPORTS— NEW SERIES.
Thomas v. Markbreit, Mayor. fVol. XII, N. S.
PETITIONS UNDER THE JO^ES RESIDENCE LOCAL
OPTION LAW.
Circuit Court of Hamilton County.
J. Elbert Thomas v. Leopold Markbreit, Mayor op the
City op Cincinnati.
Decided, April 3, 1909.
Liquor Laws — Construction of Section 2 of the Jones Local Option Law
— Time for Filing Second Petition and for the Taking Effect of the
Mayor*s Decision.
By the provisions of the Jones residence local option law a petition may
be filed under Section 2 at any time after two years from the filing
of a petition under Section 1, but the decision of the mayor under
Section 2 can not take effect until two years after his decision
under Section 1.
In the matter of the petition against prohibition of the sale of
intoxicating liquors in a residence district (part of Winton
Place) in the city of Cincinnati, Vice-Mayor Galvin rendered
the following opinion :
** Under the provisions of what is commonly called the Jones
law, being the act passed March 2, 1906, it is provided in Sec-
tion 1 that whenever a majority of the qualified electors of a resi-
dence district in a municipal corporation shall sign a petition in
favor of prohibiting the sale of intoxicating liquors as a beverage
in such district and file the petition with the mayor or with a
judge of the court of common pleas of the county in which the
municipal corporation is situated, the mayor or judge shall ex-
amine the petition at a public hearing and decide whether a
majority of the residents of such district have signed the same,
and cause a copy of his decision to be filed with the clerk of the
municipal corporation or council.
*' Under this section, on the 10th day of January, 1907, a peti-
tion for a certain residence district embracing a part of what
was formerly Winton Place was filed in the mayor's office.
Thereafter this petition w^as found to contain the signatures of
a majority of the residents of the district, and thereby under the
provisions of the law, the said district became *dry' or in the
CIRCUIT COURT REPORTS— NEW SERIES. 167
1909.] Hamilton County.
language of the states, 'the sale of intoxicating liquors as a
beverage' in said district became prohibited and unlawful.
'* Section 2 of the same law provides that any time after two
years shall have elapsed after the filing of a petition provided for
in Section 1 of the act, another petition may be filed by a major-
ity of the qualified electors against prohibiting the sale of in-
toxicating liquors as a beverage in such district, and upon a simi-
lar hearing before the mayor, or a judge of the court of com-
mon pleas, and a finding that a majority of the qualified electors
of such district have signed the same, it shall be prima facie
evidence that the sale of intoxicating liquors as a beverage in
such residence district is not then and there prohibited.
** Under the provisions of this section, on the 13th day of Feb-
ruary, 1909, a petition was filed in the office of the mayor against
prohibiting the sale of liquor in the same residence district.
' * This petition is signed by more than half of the residents of
the district and it is conceded by the contestants that more than
a majority of siich residents have signed the same, and that the
signatures are regular and the petition in proper form.
**The contestants however make one objection, and that is
that the petition should not be entertained because it is filed be-
fore the time authorized by law.
**More than a majority of the residents of the district having
signed the petition, the mayor must make the certificate to that
effect, unless as claimed by the contestants, the mayor has no
jurisdiction to entertain the petition because filed before the time
provided.
** Section 2, if taken alone, clearly gives the right to a ma-
jority of persons in a residence district declared *dry' under
Section 1 to file a petition making the territory *wet' again any
time after two years from the filing of the petition under the
first section.
**It is clear, therefore, to my mind that notwithstanding the
provisions of law that the mayor or judge may wait forty days
from the filing of the petition before making an order, and not-
withstanding the provision that the territory shall not then be-
come dry for thirty days thereafter, making seventy days after
the filing of the petition when the territory really becomes *dry,'
nevertheless a second petition may be filed against the territory
continuing *dry' after the lapse of two years from the filing
of the petition, although this may be seventy days less than two
years after the territory really becomes 'dry.'
**It is claimed howeyer that Section 6 of the act means that
when a territory has been declared 'dry,' it shall so continue
for two full years. I do not think that this section affects the
168 CIRCUIT COURT REPORTS— NEW SERIES.
Thomas v. Markbreit, Mayor. [Vol. XII, N. 3.
time within which a petition under Section 2 shall be filed with
the mayor or judge of the common pleas court, and I am not
called upon to construe that section or to determine whether the
territory once declared 'dry' shall remain *dry' for two years
notwithstanding the filing of a petition under Section 2, and the
finding of the mayor that said petition is signed by a majority of
the qualified electors of the district. It may be possible that the
construction put upon Section 6 by the counsel for the contestants,
that it meant *to give the petitioners under Section 1 two full
years of undisturbed privilege under their petition,' may be
upheld, and that the territory shall remain *dry' for two years
notwithstanding the filing of a petition before the expiration of
two years against prohibiting the sale of liquor in the territory.
I am not called upon to determine in any wa^, and I express no
opinion as to the meaning of that section, but it is certain that
under this law and under the provisions of Section 2 a majority
of the qualified electors of the district may sign a petition against
prohibiting the sale of liquor in the district and file the same with
the mayor at any time after two years shall have elapsed from the
filing of the petition upon which territory was declared *dry.*
**It therefore follows that the petition having been filed after
the time allowed by law, and containing decidedly more than a
majority of the qualified electors of the district, that the finding
must be made, certifying to the clerk of council that fact, and
the same will be done."
Following the above decision the case was taken to the circuit
court, where the subjoined decision was rendered :
J. D. Creed, Fred P. Muhlhauser and Yeatman & Yeatman,
for the petitioner.
George W. Crabbe, for the contestants.
GiFPEN, P. J. ; Swing, J., and Smith. J., concur.
The only question involved in this application for leave to file
a petition in error is, whether a petition under Section 2 of the
act of March 22, 1906 (98 O. L., 68), was prematurely filed with
the mayor of Cincinnati.
That part of Section 2 applicable to the question is as follows :
**The petition provided for in this section shall not be filed
until after two years or more shall have elapsed after the filing
of the petition provided for in Section 1 of this act.'*
CIRCUIT COURT REPORTS— NEW SERIES. 169
1909.1 Hamilton County.
While it is plain that the provision permits a filing of a peti-
t'on at any time after two years from the filing of a petition pro-
vided for in Section 1, it does not attempt to limit the operation
and eflPect of the decision of the mayor or judge upon the original
petition. This is provided for in Section 6 as follows:
**And the law shall remain in full force and effect in said
residence district for two years and thereafter until another pet'-
tion is presented under the provisions of Section 2 of this act.''
This provision does not mean that the law, under the decisions
of the mayor or the judge, shall remain in force only until an-
other petition is presented under Section-2; but at least two
years and thereafter also, unless another petition is presented.
It seems to contemplate a filing of the petition at such time as a
decision thereon would not conflict with or annul the decision
rendered under Section 1. The petition under either section
amounts to nothing until approved by the mayor or judge, and
it is his decision that gives effect to the law, which according to
Section 6 shall operate for at least two years from the time the
petition is held sufficient by the mayor or judge. The decision
of the mayor or judge is, in the language of the act, only prima
facie evidence, and a later one can not annul a former one, the
duration of which is determined by the act itself.
It seems clear, therefore, that a petition under Section 2 may
be filed at any time after two years from the filing under Section
1, and it is equally clear that the decision of the mayor under
Section 2 can not take effect until two years after this decision
under Section 1. Leave to file petition in error denied.
170 CIRCUIT COURT REPORTS— NEW SERIES.
Meeker v. Traction Co. [VoLXII.N. S.
PASSCNGKK STRUCK BY CAR HE WAS SIGNALING
TO STOP.
Circuit Court of Franklin County.
Maurice Meeker v. The C, D. & M. Traction Co.
Decided, July 1. 1909.
Negligence — Rule as to Going upon Track of Electric Road in Open
Countrtf — Last Chance — Pleading as to Subsequent or Willful Negli-
gence,
Where an intending passenger signals an interurban car to stop in the
open country, he is presumed to know that the car may be run-
ning at a high rate of speed or that his signal may not be ob-
served in time to stop, and he is therefore bound to observe rea-
sonable care for his own safety; and if while leaning over or
standing upon the track he is blinded by the headlight, and as a
consequence misjudges the distance or speed of the car and is
struck by it, he is guilty of contributory negligence, and in the
absence of any allegation of subsequent or willful negligence as
a ground for recovery the doctrine of last chance does not apply.
J. R, Horst and E. G. Lloyd, for plaintiff.
C C Williams, contra.
Allread, J.; Sullivan, J., and Dustin, J., concur.
The plaintiff sought to recover damages from the defendant
for personal injury. The injuries were received by him in an
effort to signal and stop a car upon which he intended to take
passage. At the time of signalling the car he stood just beyond
the rail outside the track and leaned over the rail so as to be
more readily observed by the motorman and signalled by waiving
a handkerchief. The signal was not answered and the car con-
tinued at the usual rate of speed. The plaintiff claixns that he
was blinded by the glare of the headlight and did not with-
draw his person from the position over the rail until too late to
avoid the car, which struck him, inflicting serious injury.
The court of common pleas at the conclusion of the plaintiff's
evidence instructed the jury to return a verdict for the defend-
ant, which was done. Error is now prosecuted here.
CIRCUIT COURT REPORTS— NEW SERIES. 171
1909.1 Franklin County.
The question here is as to whether the plaintiff's evidence es-
tablishes contributory negligence.
The negligence of the traction company in not observing or
heeding the plaintiff's signal and stopping the car may be con-
ceded. But it was also incumbent upon the plaintiff to use due
care. Terminal Co. v. Hancock^ 75 0. S., 88.
When the plaintiff approached the railway to signal he was
presumed to know that the car might be approaching at a high
rate of speed — as it is authorized in the open country — and that
his signal might not be observed in time to stop. He was there-
fore bound to observe reasonable care for his own safety.
A railway track is always regarded as a place of danger and
calls for a proportionate amount of care, and the rule is not dif-
ferent as to a traction company running in the country, from
that of a steam company. Electric Ry. Co. v. Lohe, 68 0. S.,
101 ; Terminal Co. v. Handock, 75 0. S., 111.
It is contended that the plaintiff was misled by the glare of
the headlight and misjudged the distance as well as the speed.
This danger the plaintiff observed when he first came upon the
tracks, and instead of relieving him *f rom the imputation of con-
tributory negligence added to his duty of care. 5e was bound
to use care in proportion to the added peril. B. & 0. R. R. Co. v.
McClellan, 69 0. S., 142.
The plaintiff concedes that he knew by the custom that a signal
to stop would be recognized, if a stop is to be made, by a signal
by the motorman, and that he had been unable to obtain this sig-
nal of recognition from the motorman. He was therefore
chargeable with knowledge that his signal was unobserved, or
for some other reason not acknowledged, and that the car was
approaching at its usual speed. He knew also, or was fairly
chargeable with knowledge, of his inability to see the car or
judge its speed ; under these circumstances he was not justified
in remaining on the track or dangerously near, until the car
struck him, and his remaining in the way of the car when his
view was blinded by the glare and when he was unable to judge
the distance of the car was at his own peril. Common ordinary
prudence would suggest the safer course, of keeping out of the
pathway of the car and not to take unnecessary risk.
172 CIRCUIT COURT REPORTS— NEW SERIES.
Meeker v. Traction Co. [Vol. VIII, N. S.
Counsel for the plaintiff urge the doctrine of **last chance";
that is, that the traction company knew or ought to have known
of the plaintiff's peril in time to have avoided the injury, and
neglected to do so.
Subsequent or willful negligence must be pleaded and set
forth in the petition as a grounds for recovery, to be available.
Drown v. Traction Co., 76 0. S., 234; Railroad Co, v. Lockwood,
72 0. S., 582 ; Traction Co. v. Johnson, 10 C. C— N. S., 467.
We have carefully analyzed the second amended petition and
are inclined to the opinion that it does not set forth subsequent
or willful negligence as a ground of recovery. But at any rate
the evidence does not make out a case of willful or subsequent neg-
ligence. It did not appear that the motorman, even if he saw
the plaintiff, knew that he was within the pathway of the car or
knew or was presumed to anticipate his failure to step away
from the front of the car. Railroad Co. v. Kistler, 66 0. S., 340 ;
Traction Co. v. Johnson, supra. And it is only when the motor-
man knew or was bound to know from the situation, that the
plaintiff was unable to step aside or get out of the pathway of
the car or did not intend to do so, that his negligence became
willful or subsequent.
The evidence fairly shows concurrent negligence of both the
plaintiff and the defendant contributing to and producing the
injury, and this justified the action of the common pleas court
in instructing the jury to return a verdict for the defendant,
and the judgment should be affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 178
1909.] Hamilton County.
BREACH or CONTRACT FOR THE SALE Or CATSUP.
Circuit Court of Hamilton County.
J. Wellbr Company v. Columbia Conserve Company.
Decided, July 24, 1909.
Sales of Catsup— Action for Breach of Contract for the Sale of — Short-
age in Measurement — Delay in Payment — Waiver—^lharge of Court
— ^rror — Custom and Usage — Pleading,
1. Where no waiver is pleaded as to the most important of the breaches
of a contract, it is error to charge the Jury that the defendant had
no right to rescind the contract if he had waived all the breaches
of its material provisions.
2. If catsup had been sold by the barrel, and the testimony shows that
it was customary and necessary to run the catsup into barrels and
close them up while hot, there is an implied agreement between the
parties that the shrinkage shall be borne by the purchaser.
3. And if there is a provision in the contract that the measurements
shall be made at the place of shipment, it amounts to a condition
precedent, and a refusal by the buyer to be bound by this provision
Justified the seller in repudiating the whole contract.
Phares, Chisweiler & Phares, for plaintiff in error.
Paxton, Warrington & Seasongood, contra.
GiPPEN, P. J. ; Swing, J., and Smith, J., concur.
This action is based upon an alleged breach of a contract of
sale of 600 barrels of catsup at I614 cents per gallon f. o. b.
cars Cincinnati, terms — cash ten days, less one and one-half per
cent. Delivery to be made seventy-five barrels at a time, as fol-
lows : October 1, 8, 15, 22, 29 and November 5, 12 and 19, 1906.
Barrels to be tightly coopered, and to be correctly gauged, and
goods to be billed at net measurement. The failure to deliver
the balance of the installments after delivery of the first two, con-
stitutes the alleged breach of the contract.
The plaintiff, the Columbia Conserve Company, also avers full
performance on its part. The defense is an alleged breach by
the plaintiff in making payment long after the ten days from
shipment, in deducting one and one-half per ^^nt., and in de-
ducting as shortage 199 gallons on the first car.
174 CIRCUIT COURT REPORTS— NEW SERIES.
Weller Co. v. Ck>lumbia Conserve Co. (Vol. VIII. N. S.
ducting as shortage 199 gallons on the first oar and 220 gallons
on the second car.
Plaintiff, by reply, admits delay in payment a few days beyond
the period of ten days and deduction of one and one-half per
cent., but avers that the delays were with the consent of the de-
fendant. It is nowhere averred, however, that the defendant
consented to or waived the alleged breach in deducting 419
gallons from the amount billed. Upon the question of waiver
the court charged the jury as follows:
**If the defendant waived all breaches of the material items
and provisions of this contract committed by the plaintiff, then
the defendant had no right to rescind the contract and refuse to
carry out its part thereof, and by so doing rendered itself liable
to respond in damages to the plaintiff."
No waiver was pleaded to the most important breach by the
defendant, and hence it was error to give this instruction. In-
surance Company v. Baldwin, 62 0. S., 368.
The following special instruction was given to the jury before
argument at the request of plaintiff:
**If you find from the evidence that the plaintiff made certain
deductions from the amount of the defendant's invoice on ac-
count of a claim of deficiency in the amount actually delivere*!
vou are not to take such deductions as a breach of contract sufR-
cient to justify a rescission by the defendant, unless the deductions
so made were made in such a way as to evince a renunciation of
the contract by the plaintiff and a refusal to abide by its terms."
In view of the evidence that the measurement was made and
deficiency ascertained by the plaintiff at Indianapolis where the
cars were unloaded, the w^ords ** actually delivered'' contained
in this instruction would naturally lead the jury to believe that
delivery was to be made at Indianapolis, although the court after
argument instructed the jury in the general charge that the con-
tract required delivery at Cincinnati, the place of shipment, and
they might well find that the measurement thus made was cor-
rect, and therefore the deductions thus made did not evince a re-
nunciation of the contract by the plaintiff.
Assuming that the question was one to be submitted to the
jury, there was left to the jury too much room for speculation
CIRCUIT COURT REPORTS— NEW SERIES. 176
1909.] Hamilton County.
as to what way of making deductions would evince a renuncia-
tion of the contract. If the conduct of the plaintiff in measuring
the catsup at Indianapolis instead of Cincinnati, and deducting
in accordance with measurement regardless of what loss occurred
between such points, showed an intention on the part of plaint-
iff to treat subsequent shipments in the same manner, it evinced
a plain renunciation of the contract in one of its important ele-
ments, which justified a recision by the defendant.
The same objection may be urged to special instruction No. 6
which, after quoting the terms of sale, time of deliveries and man-
ner of gauging and billing goods, reads as follows :
** Before the seller under the contract is entitled to discon-
tinue shipments and claim a cancellation by reason of an alleged
breach on the part of the buyer, there must have been such breach
on the buyer's part as evinced an intention not to be bound by
the contract as a whole. ' '
Just what particular breach or number of breaches would
evince such intention the court does not say, although it does say
in conclusion of this instruction:
*'The mere fact that the discount was deducted after ten days
had elapsed was not such a breach of the contract of sale as would
warrant the defendant in refusing to continue deliveries."
The provision of the contract that the guage or measurement
of the catsup should be made at the place of shipment is a ma-
terial incident amounting to a condition precedent to any ship-
ment, and if the plaintiff refused to be bound by this condition
the defendant was justified in repudiating the whole contract.
This principle is announced in the case of Norrington v.
Wright, 115 U. S., 188:
**In a mercantile contract, a statement descriptive of the sub-
ject-matter or of some material incident, such as the time or
place of shipment, is ordinarily to be regarded as a warranty,
or condition precedent, upon the failure or non-performance of
which the party aggrieved may repudiate the whole contract."
The retention by the plaintiff of the one and one-half per cent,
discount does not come within the rule, although we do not ques-
tion the decision of Supply Co, v. Cement Co., 4 C. C. — N. S.,
176 CIRCUIT COURT REPORTS— NEW SERIES.
Weller Co. v. CJolumbIa Conserve Co. [Vol. VIII, N. S.
225, upon the facts there disclosed. We are of opinion therefore
that these two instructions were misleading and prejudicial. The
question whether the barrels should be filled, measured and
bunged up while the catsup is hot or after cooling was fairly
presented by special instruction No. 5 requested by the defend-
ant, and there being no like instruction in the general charge it
was error to refuse it.
The plaintiff gives no good reason for delaj'ing payment several
days beyond the ten days allowed, and the fact that its own
measurement of the catsup at Indianapolis shows an outage of
precisely two gallons in every barrel of the one hundred and
seventj'-seven shipped except four is convincing proof that the
barrels were full when bunged up, and that the two gallons out-
age represents the shrinkage in cooling.
The testimony fairly shows that it was customary and neces-
sary to run the catsup into the barrels and close the same while
hot. It was impliedly contemplated therefore by the parties
that the shrinkage should be borne by the purchaser. It follows
that the verdict was not sustained by sufficient evidence.
Judgment reversed and cause remanded for a new trial.
••-•
CIRCUIT COURT REPORTS— NEW SERIES. 177
1909.] Richland County.
ASSAULT BY A CONDUCTOR. UPON A PASSENGEIL.
Circuit Court of Richland County.
B. & 0. Ry. Co. v. William Reed.
Decided, 1909.
Torts — Assault upon a Passenger hy a Railway Conductor is Within
the Scope of His Authority, When — Company Liable for Punitive
as Well as Actual Damages — M<ister and Servant — Charge of Court
— Error — Purpose of Sections S^SS and SW.
A different rule applies to assault by a conductor of a railway train upon
a passenger In transit upon his train, than to ordinary cases of
injuries inflicted by servants acting in other capacities; and where
a conductor makes an assault upon a passenger whose conduct is
peaceable and who is not violating any of the rules of the company,
he must be held to have acted within the scope of his authority
and to have rendered the company liable for punitive as well as
actual damages.
Cummings, McBride <fc Wolfe and F, A. Durban, for plaint-
iff in error.
Douglass & Mengert, contra.
Donahue, J. ; Taggart, J., and Vocrhee8, J., concur.
This proceeding in error is brought to reverse the judgment
of the common pleas court in an action brought by William Reed
against the. Baltimore & Ohio Railway Company for damages
inflicted upon his person by the conductor of one of the rail-
way company's trains, while he was en route as passenger on said
train from one station to another, and for delaying him in his
journey and compelling him to leave his car against his will be-
fore the termination of his journey. The trial in the common
pjeas court resulted in a verdict for Reed; the motion for new
trial was overruled and judgment entered upon the verdict.
The plaintiff in error contends that there was error in the ad-
mission of evidence of William Reed as to what occurred at
Chicago Junction, but looking to the petition we find that it not
only charges damages for the injuries received in the assault
which he claims the conductor made upon him, biit also for being
178 CIRCUIT COURT REPORTS— NEW SERIES.
B. & O. Railway Co. v. Reed. [Vol. XII. N. S.
compelled to leave the train at that point. So that we think
that evidence was pertinent to the issue and was properly ad-
mitted.
It is also contended that there was error committed by the
trial court in permitting the plaintiff's wife to testify as to what
plaintiff was going to do with the pocket-book. Turning to page
45 of the record, we find the following:
'^Q. What was he going to do with it? A. Why, give it to
the conductor.*'
To which question defendant objected and moved that, the an-
swer be excluded, which objection and motion the court sus-
tained and instructed the jury not to consider the answer.
'*Q. Do you know where he went to putting the pocket-book
in his pocket? A. He told me he was going —
** Court: You must not testify to anything he may have said
to you. The jury will not consider the answer.'*
It is apparent that this evidence was not admitted and that
this contention of the plaintiff in error is not sustained by the
record.
The next contention, and a more serious one, is that the charge
of the court is erroneous. It is claimed that it violates the doc-
trines announced in the 72d 0. S., 586, but with that contention
we dp not agree. In fact, we think the only serious question
raised upon this charge is in reference to that part of it wherein
the court charges as follows :
"'An obligation rested on the defendant on the 24th day of
^larch, 1906, being then and there a common carrier of pas-
sengers, to carry the plaintiff, if he was then a passenger on said
train, safely and promptly from the city of Mansfield, Ohio, to
his destination on this road, and if the defendant entrusted this
duty to servants, the law holds the defendant responsible for
the manner in which it executes it. A carrier is bound to pro-
tect its passengers from violence from its own servants in charge
of its trains while in transit."
If that portion of the charge is correct, then there was no error
in refusing the special request of the plaintiff in error, nor is tlie
charge open to the other objection raised against it. We are
of the opinion that a diflerejit rule applies to assaults by a con-
CIRCUIT COURT REPORTS— NEW SERIES. 179
1908.] Richland County.
ductor in charge of a train upon passengers in transit upon their
train, than in the ordinary case of injuries inflicted. by servants
in other capacities. That is to say, as a matter of law, it '-18 a
part of the duty of that conductor^ who is a servant of the com-
pany, to carry out the contract made by the company with the pas-
senger to carry the passenger to his destination and to protect
him as far as possible from injuries^ either from accidents or a^
saults from other passengers or from servants upon the train.
In Voorhees on the Measure of Damages and Personal Injuries^
at 13101, this doctrine is announced:
**It is among the implied provisions of the contract between
the passenger and the railroad company that the latter has em-
ployed suitable servants to run its trains, and that pasaenigers
shall receive proper treatment from them, and a violation of this
implied duty and contract is actionable in favor of the person in-
jured by this breach, although the act of the servant was will-
full and malicious, as for malicious assault upon a passenger,
or by any of the train hands, whether in the line of his em-
ployment or not. The duty of a carrier towards a passenger is
contractual, and amojig the implied obligations is that of pro-
tecting the passenger from insults or assaults from other pas-
sengers or by their own servants."
• • •.•*■'
In support of that doctrine the author cites a great many, an-
thorities and in the foot notes copies very largelj^ from, those
authorities and, unless the law in this respect be different in
Ohio than in other states, we think the doctrine is correctly
stated in the text.
The Legislature of this state seems to have recognized this duty
of the railroad company and in aid and furtherance of the com-
pany in performing that duty, have conferred police powers
upon the conductor. Section 3433 of the Revised Statutes of
Ohio invests conductors of steam and interurban railroad com-
panies with powers, duties and responsibilities of police officers
while on duty on their train and authorizes such conductors to
wear the badge of a special policeman. Section 3434 authorizes
them to eject any passenger ^ilty of disorderly conduct or of any
obscene language, etQ.
We think the provision? of these statutes were not solely for
the purpose of enabling the railroad compimies to protect their
180 CIRCUIT COURT REPORTS— NEW SERIES,
Taphorn v. Taphorn et al. [Vol. XII. N. S.
property, but also for the purpose of enabling them to protect
passengers from assaults of fellow passengers or from the serv-
ants of the road, and in other respects to preserve and secure the
peace, safety and convenience of passengers. And if a conduc-
tor, while in charge of his train, makes an assault upon a passen-
ger who is then in the peace of the state and not violating any
rule of the company, as a matter of law, he would be held to be
acting within the scope of his authority and the master would be
liable.
It is also insisted that punitive damages can not be allowed
in this character of cases, and that the charge in that behalf is
erroneous. In the case of Telegraph Company v. Smith, 64 0.
S., page 117, the court quotes with approval the following:
** That a corporation may be subjected to exemplary or punitive
damages for tortuous acts of its agents and servants done within
the scope of their employment in all cases where natural per-
sons acting for themselves, if guilty of like tortuous acts, would
be liable for such tortuous damages." .
We are of the opinion that there is no prejudicial error appar-
ent upon this record and, therefore, the judgment of the com-
mon pleas court is affirmed with costs but without penalty. Ex-
ceptions of plaintiff in error .noted and case remanded for ex-
ecution.
CONVEYANCE OF PROPERTY BY INFIRM PARENT TO SONS.
Circuit Court of Hamilton County.
John H. Taphorn v. Theodore Taphorn et al.
Decided, June 26, 1909.
Deeds — Action to Set Aside — Doubt as to Grantor's Capacity — But the
Purpose Accomplished was Evidently in Accordance with an Inten-
tion Long Entertained — Burden of Proof as to Fairness of Tran-
saction, ,
Notwithstanding some doubt by the court as to the weight of the evi-
dence, deeds will not be set aside on the ground of undue Influence
and lack of mental capacity, where they accomplish substantially
the same result achi^y^d b^ the ^a^tor by the execution of a will
CIRCUIT COURT REPORTS— NEW SERIES. l81
1909.] Hamilton County.
six years before when no doubt existed as to his mental condition
or freedom of action.
John C. Healy, for plaintiflP.
Louis J. Dolle, contra.
GiFPEN, P. J.; Swing, J., and Smith, J., concur.
The original action was commenced to set aside, on the ground
of undue influence and mental incapacity, four deeds conveying
all the real estate of the grantor to his two sons, Theodore and
John. A decree was entered for the defendants which it is now
sought to set aside.
In deeds of gift from parent to child undue influence will not.
because of that relation, be presumed as it sometimes is in deeds
of gift from child to parent, but must be proved like other is-
sues of fact.
The due execution and delivery of the deeds having been estab-
lished, the burden did not rest upon the defendants to show that
the transaction was fair and free from undue influence ; but on
the contrary the burden was cast upon the plaintiff to establish
by clear and convincing proof one of the grounds relied upon to
set aside the deeds. Willis v. Baker, 75 0. S., 291.
The degree of influence that will be undue is relative and de-
pendent upon the circumstances of each case. If the grantor is
old and his mind weakened by disease, slight influence may be
sufficient to overcome his power of resisting the importunities
of those about him, and thereby become undue, although under
other conditions it could not be so regarded. The relation of the
sons to the father in this case prior to January 5th, 1907, was
one of dependence rather than authority over him, and if at
the time the deeds were executed (January 10th, 1907), they
exerted any undue influence, it was possible only because of his
weak mental condition resulting from a stroke of paralysis
suffered on the 5th day of January, 1907.
It is important, therefore, to inquire to what extent, if any,
his mind was affected thereby. The testimony shows that he
suffered a marked and distant hemipligia as the result of a
hemorrhage ^f the brain, from which he has never fully re-
covered, although the improvement has in many respects been re-
182 CIRCUIT COURT REPORTS— NEW SERIES.
Taptaont v. Tapborn et al. (VoL XII, N>. S.
markable. He was, at the time, past eighty years of age but
apparently in good health except a condition of arterio-sc!erosis
thickening and hardening of the arteries.
The only expert testimony in the case was offered by the plaint-
iff, and Dr. G. A. Fackler, a specialist in nervous diseases who
examined the patient on the morning of the day following the
fttroke, testified as foHowa:
*'At the time of my visit he was almost totally unconscious.
With some difficulty and some efforts at arousing him, he would
be aroused. Nothing more than an exclamation. One or two
words. Nothing further. He was to all intents and purposes in
an unconscious state. His entire left side was immovable. No
motion to the arms or legs or the left side of the face.
**Q. What was the condition of his intellect at that time? A.
Absolutely in abeyance. He had no intellect at the time at all.
**Q. And with reference to the will what would you say was
his power? A. He had no will power at all at that time. He
was unconscious practically.
»>
It is manifest from this testimony that the patient, at that
time, was incapable of transacting any business or of knowing
the amount of his property and the natural objects of his bounty.
Dr. LaFayette Neufarth, the attending physician, testified as
follows :
**Q. Do you remember whether or not you saw him with Dr.
Fackler ? A. ' Yes, sir ; I seen him with Fackler. I believe that
.was on Sunday evening.
''Q. What was his condition at that time? A. That left side
was devoid of feeling and motion and I think even the face. Al-
though he could use his tongue, and drink some, he could not use
his lips very well, or drink without spilling a good deal of the
water that he attempted to drink. T don 't remember whether he
could take several swallows of the liquid, but he could drink some ;
but the sense of feeling and motion was completely gone.
**Q. How was he at that time with regard to maintaining a
conversation with any one? A. I guess he was very much in the
morning as the day before. You could get his attention and get
an answer straight, but his mind would not stay, didn't stay long
enough to carry on much of a conversation, or remember very
much of what was going on.
**Q. Fully a week or ten days before there was any marked
change? A. Yes, sir.
CIRCUIT COURT REPORTS— NEW SERIES. 183
1909.1 Hamilton County.
**Q. Do you remember being present when Mr. Hauck was
there with some papers for the purpose of having him sign them ?
Did he ask you any questions with regard to his condition? A.
Yes, sir.
**Q. Was that the day on which the papers were signed or
before, do you remember? A. I don't know that. I was in
there one day to see the old gentleman when Mr. Hauck was there
in the sitting room, and asked me whether Mr. Taphorn was in
a condition to do business. Of course standing right on the
side of the bed with Mr.. Taphorn in it and looking right at me,
I said he was. The old gentleman was in bed right in front of
me lying down.
''Q. I .will ask you what his condition was mentally at that
time? A. When you attracted his attention he would answer
you apparently clearly, but then he would either go to sleep or
talk on some subject not in connection, not answer your ques-
tion. He would talk of something that had no direct connection
with the affairs that were going on.
'*Q. I will ask you, were there any symptoms to your mind
indicated his mental condition on the 10th day of January? A.
As I said before you could not retain his attention. He would
answer your question apparently mechanically, and then would
wander off to something else or on some other subject or just
lay without saying anything.''
This testimony was much shaken in the cross-examination when
the witness's attention was directed to his deposition taken nearly
a year before, in which he testified that the patient recognized
and conversed in an intelligent manner with those about him,
and described his sensations at the time he was stricken, and
that in his opinion Mr. Taphorn on the 9th and 10th day of
January understood both the amount of his property and who
his children and grandchildren were. Yet upon examination
concerning his deposition he stated facts and drew conclusions
in harmony with his testimony in chief. There are, however,
so many contradictions throughout his testimony that it would
be very unsafe to base any judgment upon it. Of one fact he
testifies clearly and that is, having heard in another part of
the house that Mr. Taphorn was about to transfer some prop-
erty, he suggested to him that he protect the old lady, his wife ;
but even this seems to have made no impression on the mind of
Mr. Taphorn, as he gave no instructions to Mr. Hauck, the at-
184 CIRCUIT COURT REPORTS— NEW SERIES.
Taphorn v. Taphorn et al. [Vol. XII, N. 8.
torney, to make provision for his wife; but it was done by the
latter of his own motion, although approved by Mr. Taphorn be-
fore signing the deeds.
Dr. B. P. Beebe examined the patient the day before he testi-
fied, and about a year after the hemorrhage, and while he says
that he found the mental condition much better than he ex-
pected, an unusual mental condition so far as a man of his age is
concerned, yet his testimony throws very little light on the ques-
tion of the grantor's mental condition al the time the deeds were
executed and delivered.
It is undisputed that about six years prior to the execution of
the deeds Mr. Taphorn executed a will in which he devised all his
property to his sons, John and Theodore, and which was then
still in force — that the sons, believing that the will might be more
easily set aside, importuned the father to execute deeds instead,
which he steadfastly refused to do up to the time of his illness.
' He himself testifies that he has no recollection of Mr. Hauck
bringing four deeds to him to be signed or of hearing them read,
although he remembers being requested to and that he did sign
something.
On the other hand the evidence shows that on the 7th or 8th of
January he instructed his housekeeper, Mrs. Buenning, to go to
Hamilton and ascertain whether a note for $5,000 on which he
was endorser, and which had been protested, had been since paid ;
that about the same time he instructed his sons to buy some pigs
but strangely enough, after the purchase was made, he requested
the sons to bring the live pigs in a crate into his bed room that
he might see •them; that he directed his housekeeper to deliver
to his son the keys to certain drawers in his desk for the purpose
of procuring certain deeds and other papers; and that he recog-
nized his friends and members of the family and conversed with
them on different subjects, but more particularly concerning his
physicial condition.
Each and all of these facts indicate that he was conscious and
rational to that degree necessary to perform such acts, although
not necessarily that he comprehended the scope and effect of the
deeds at the time they were executed. The circumstances sur-
rounding the execution of the deeds, including the anxiety of the
CIRCUIT COURT REPORTS— NEW SERIES. 185
1909.] Richlftnd Ck)unt}\
SODS to have title by deeds rather than devise ; the declaration of
one of the sons to the attorney, ** whatever you do make it stick" ;
the effort to secure a particular witness from a distance of a half
a mile, when there were present in the house persons competent
to act; the extreme effort required by the grantor to sign his
name although he had, as one witness testified, a firm grip in his
right hand, and his crying at intervals during the performance,
cause us to doubt his mental capacity and the fairness of the in-
fluence exerted by the sons; but a mere difference of opinion
upon the weight of the evidence will not justify the reversal of a
decree, and as the doubt entertained is not of that convincing
nature required, we are constrained to affirm the judgment, and
do it -with less reluctance because the deeds accomplish sub-
stantially-the same thing that the grantor had, six years prior,
attempted to do by a written will, and had repeatedly reaffirmed
when there was no question of his mental capacity or of undue
influence.
Judgment affirmed.
DAMAGE TO LAND FROM DIVERSION OP WATER BY
NEW BRIDGE.
Circuit Court of Richland County.
The Baltimore & Ohio Railroad Company v. M.
EuzABETH Simpson.
Decided, January Term, 1906.
yegligence — Alleged in Construction of Bridge — Whereby Water toas
Diverted upon PlaintifTs Land — Proximate Cause.
Recovery for damages to land by flood waters can not be had from a
railway company for negligence in the construction of a bridge,
where it appears that the flood was unprecedented, and also that
other causes to produce the Injury Intervened and the building of
the bridge was therefore not the proximate cause.
Cummings, McBride & Wolfe, for plaintiff in error.
Kerr & LaDow, contra.
186 CIRCUIT COURT REPORTS— NEW SERIES.
Railway v. Simpson. [Vol. XII, N". &
Donahue, J. ; McCarthy, J., and Taogart, J., concur.
Mrs. Simpson commenced her action against the Baltimore &
Ohio Railway Co. for alleged negligence in that the company
had, in the year 1899, changed the railroad bridge across a stream,
and substituted therefor a new bridge, lowering the structure so
as to obstruct the flow of water at flood times under the bridge,
and so changing the character of the bridge from an open frame
work to one with solid sides, that it narrowed or contracted the
space through which the water could flow under said bridge, caus-
ing it to back, and turning it to one side of the stream, and
thence across to the other side of the stream, upon the other
side of the bridge, throwing it against plaintiff's land, cut-
ting a channel through her land and causing her great damage.
The situation as shown in the record is substantially as fol-
lows : The railroad right-of-way extends in a northwesterly direc-
tion. The public road runs for a distance parallel with the said
railroad right-of-way, turns abruptly to the south, and crosses
the stream in question. This fork of the Mohican creek runs in
an easterly direction south of the field which was claimed to be
injured, and turns to the east of said field. The railroad bridge,
which was rebuilt in 1899, with the solid sides, the record shows
rests upon the same abutments or piers that the old bridge with
the open work rested upon, except that it is claimed, and the
testimony tends to prove, that the pedestal stones or abutmeats
were lowered about twenty-two inches; and that the solid sides
of the new bridge extended down toward the bottom of the creek
about the same distance that the rods of the old bridge extended.
The proof in this case unquestionably establishes the fact that
this was an extraordinary flood. Plaintiff's own testimony con-
vinces the court that such was the case. The defendant's testi-
mony tends to establish the fact that it was an unprece-
dented flood. The defendant could only be held to the exercise
of such judgment in building its bridge as could reasonably and
fairly anticipate the extent of the flood waters that had before
that time been known along the line of that stream, and could
not be called upon to build its structures so as to anticipate
extraordinary or unprecedented floods. The defendant can not
be called upon to respond for any injury resulting to plaintiff's
CIRCUIT COURT REPORTS— NEW SERIES. 187
1909.1 Richland County.
land which was not occasioned by its acts or failures to pro-
vide against matters which it could not have reasonably antici-
pated. The defendant can only be held liable and responsible
for such injuries as approximately flovr from its acts or omissions.
We have examined this record with exceeding care, and we
are unable to see how the results are necessarily attributable or
in any wise attributable to the acts of the defendant in building
and erecting the bridge with the sold sides as claimed in the
plaintiff's petition or as shown in this record. Assuming that
the plaintiff's case shows that the bridge with its solid sides did
retain the water and hold it back, previ^nted it from passing under
the bridge as freely as the former bridge, yet we fail to see
the casual connection between the dan^.ming of this water and the
rc'tarding of the flow of the water as shown in plaintiff's case, and
the injury that resulted to plaintiff's land in consequence of the
flowing oT the water below the bridge after it had gone through
and under the bridge; nor do we disewer in this record tfeat the
evidence sustains the theory upon which it can be claimed that
the building of this bridge in the manner it was constructed, was
the proximate cause of the damages complained of by the
plaintiff.
We think that a clear and explicit definition of the proximate
cause and the proof essential to be submitted to a jury is found
in the case of Laidlaw v. Sage, 158 N. Y., 173. The proximate
cause of an event is that which in a natural and continued
sequence, unbroken by any new cause, produces that event, and
without which that event would not have occurred; and the act
of one person can not be said to be the proximate cause of an
injury when the act of another person has intervened and di-
rectly inflicted it.
An accident or injury can not be attributed to a cause unless,
without its operation, it would not have happened.
We can not say from the record in this case that this injury
complained of by the plaintiff might not have happened even had
the oM bridge remained, nor can we attribute the accident or in-
jury to the new bridge as built and maintained by the railroad
company; nor do we think the evidence sustains plaintiff's claim
in that behalf, and all such theory in reference thereto must be
188 CIRCUIT COURT REPORTS— NEW SERIES.
Railway ▼. Simpson. [Vol. XII, N. &
but mere conjecture, so far as this record is concerned and this
conjecture, the jury can not be permitted to indulge in.
We also call attention to the fourth paragraph of the syllabus
in the case of Laidlaw v. Sage, supra :
**To justify the submission of any issue to the jury, there
must be sufBcient proof to sustain the claim of the party upon
whom the onus rests; and mere conjecture, surmise, speculation,
bare possibility, or a mere scintilla of evidence, is not enough."
And this is the holding of our own Supreme Court in the 63d
0. S., at 236 :
**To establish negligence there should be either direct proof of
the facts constituting such negligence or proof of facts from
which negligence may be reasonably presumed. There should be
no guessing by either the court or the jury."
It appears in this record, and it is uncontradicted, that the
bridge, over the county road by this flood was washed-out and
lodged against the abutments of the railroad bridge, and that it in
some way interfered or retarded the flow of the water, and di-
verted it, and turned it in the direction claimed by plaintiff.
Here was an intervening cause, and we are unable to see how,
from the evidence in this case, the injury could be attributed en-
tirely to the defendant's negligence, if there was riegligence, and
for this intervening cause, the defendant was in no wise re-
sponsible. Reading again from the 158th N. Y., the eighth para-
graph of the syllabus :
''When damages claimed in an action are occasioned by one
of two causes, for one of which the defendant is responsible, and
for the other of which he is not responsible, the plaintiff must
fail if his evidence does not show the damage produced by the
former cause, and the jury must not be left to mere con-
jecture, and a bare possibility that the damage was caused in
consequence of the act of the defendant is not suflScient."
Finding that the verdict in this case is contrary to the mani-
fest weight of the evidence and contrary to law, we reverse this
judgment at the cost of the defendant in error.
Judgment reversed. Exceptions entered, and Jhe cause re-
manded to the court of common pleas for further proceeding
according to law.
CIRCUIT COURT REPORTS— NEW SERIES. 3S9
1909.] Hamilton County.
EXAMINATIONS OF MEDICAL STUDENTS.
Circuit Court of Hamilton County.
State op Ohio, on the Relation op Benjamin Oaines, v.
State Medical Board op Ohio et al.
Decided, June 5, 1909.
Examinations of Applicants for Certificates to Practice Medicine and
Surgery — Times and Places for Holding Such Examinations — Ofjilr
dal Discretion — Mandamus"— Pleading — 99 O. L., Ji92.
It is the duty of the state board of medical registration and examina-
tion to cause examinations for admission to the practice of medi-
cine and surgery to be made in Cincinnati, Cleveland and Toledo,
as well as in Columbus; but inasmuch as the act creating the board
is silent as to the time when this shall be done and the duty of
determining the dates and places of examinations devolves on the
board in the first instance, a writ of mandamus will not be granted
in the absence of a showing of an abuse of discretion on the part
of the board with reference to the selection of times and places
for the holding of such examinations.
Sanford Brown, for relator.
The relator in this case filed the following petition in this
court praying for a writ of mandamus directed against the de-
fendant board and its individual members:
The relator, Benjamin Oaines, is a resident of the city of
Cincinnati, in the county of Hamilton and state of Ohio, and is
a duly matriculated student of the Ohio Medical College of
the University of Cincinnati, where he has been pursuing his
studies for four years.
The relator has complied with all the rules of said college and
university and with all the requirements of the law of Ohio
relative to students of medicine and surgery, and is now entitled
to enter upon his final examination for graduation from said
college and university and for his professional degree, and to be
examined for his certificate or license to practice medicine in
this state, under the law of Ohio.
19() CIRCUIT COURT REPORTS— NEW SERIES.
State, ex rel, v. Medical Board. [Vol. XII, N. 3.
The defendant, the State Medical Board of Ohio, is an of-
ficial body of this state, ^v'hose duty among other things is to
hold examinations for certificates or licenses to practice medicine
and surgery within this state of all proper applicants for such
examinations; such examinations to be held in the cities of
Cincinnati, Cleveland, Columbus and Toledo.
The individual defendants named herein are the duly con-
stituted members of the board, the defendant August Ravogli, IM.
D., being the president of said board, residing in the city of
Cincinnati, Ohio; the defendant S. M. Sherman, M. D., residing
at Columbus, Ohio ; the defendant E. J. Wilson, M. D., residing
at Columbus, Ohio; the defendant H. H. Baxter, M. D., residing
at Cleveland, Ohio; the defendant Thos. A. McCann, M. D., re-
siding at Dayton, Ohio; the defendant James A. Duncan, ^I.
D., residing at Toledo, Ohio; the defendant, J. M. Stephenson,
M. D., residing at Chillier. the. Ohio; and the defendant, G. II.
Matson, ^I. D., residing at Columbus, Ohio, being the secretary
of said board.
Relator states that the d 'fendant board and the individual de-
fendants have fixed and prescribed, under the laws of Ohio, an
examination to be held in the city of Columbus solely and ex-
clusively on the 8th, 9th and 10th of June, 1909, and have so
notified the relator and other medical students in the said city
of Cincinnati and vicinity thereto, and ha\'e failed and refused
to fix and prescribe such an examination under said law in the
city of Cincinnati on such dates or any other date or dates rea-
sonably near thereto and s'ill fail and refuse so to do, although
requested so to do by the relator and others entitled to such ex-
amination in the city of Cincinnati.
Relator states that said action on the part of the defendants
will entail upon him and many other medicial students in the same
situation with him in the city of Cincinnati and throughout the
state of Ohio great vexation and expense, requiring the re-
lator and them to journey to and from Columbus, Ohio, from
great and unreasonable distances therefronj, and pass there
several days in taking said examinations; that said action on
the part of defendant is arbitrary and discriminating against
the relator and others in the same situation with him under said
CIRCUIT COURT REPORTS— NEW SERIES. 191
1909.] Hamilton Cou^ty.
law; that an examination held at Cincinnati, Ohio, under said
law at any other time or times than on said dates June 8th,. 9th
and 10th, 1909, or other date or dates reasonably near thereto,
would be an unjustifiable discrimination and hardship against
the relator and others in the same situation with him under said
law of Ohio, in that it would require him and them to present
themselves for such examinations long after the close of their
medical college course, and is without legal justification and is
contrary to the law.
Relator further says that he is without any adequate remedy
at law.
Wherefore, your relator prays that a writ of mandamus may
issuie out of this court to the defendant board, and to the indi-
vidual defendants, requiring it and them to hold said medical ex-
aminations as required by the law of Ohio, in the city of Cin-
cinnati, on the 8th, 9th and 10th of June, 1909, or other date or
dates reasonably near thereto, or to show cause to this court at
a date to be fixed for refusing to do so.
GiPPEN, P. J.; Swing, J., and Smith, J., concur.
Section 30 of the act **To revise and consolidate the laws re-
lating to the powers and duties • • • of the state board of
inedioal registration and examination'* (99 O. L., 492) pro-
vides as follows:
**The examinations of applicants for certificates to practice
medicine or surgery shall be conducted in the cities of Cincinnati,
Cleveland, Columbus and Toledo, under rules prescribed by the
state medical board.'*
This provision needs no construction to determine that it is
the duty of such board to cause an examination to be conducted
in the city of Cincinnati as well as in Columbus ; but the act is
entirely silent as to when it shall be done, and hence a reasonable
time will be implied, which must in the first instance be deter-
mined by the board from all the circumstances of the case. State
V. Board of Education, 76 0. S., 297.
It may be assumed that Section 30 of the act was intended to
accommodate students of medicine completing the course of in-
192 CIRCUIT COURT REPORTS— NEW SERIES.
state, ex rel, v. Medical Board. (Vol. XII. N. S.
struction in or about the respective cities named — not a par-
ticular class, but the student body of each city and vicinity.
There is no allegation in the petition when the current school
year ends at the Ohio Medical College of the University of Cin-
cinnati, or at any other college if there be such in or near the
city. Nor is the pleader aided by the averment of the conclusion
that the relator and others in the same institution with him would
be required to present themselves for examination **long after
the close of their medical college course."
The welfare of the majority is superior to that of a minority,
and there is no allegation in the petition that all or a majority of
the Cincinnati students arc demanding or would be benefited by
an examination on June 8th, 9th and 10th or near thereto. How
then can we say that the board has abused the discretion vested
in it and grant relief, when the rule of law justifying interference
by the courts requires that such abuse be clearly shown ! Board
of Education v. State, 80 O. S., .
It may be that a majority of such applicants may prefer to
and will attend the examination at Columbus on the days named,
and while this result would not relieve the board from holding
an examination in Cincinnati, it would have much weight in
determining whether the board had abused its discretion in de-
clining to hold it on or about June 8th, 9th and 10th.
We are constrained to hold therefore that the allegations of
the petition fail to show a clear abuse of discretion and do sus-
tain the motion to quash the alternative writ.
CIRCUIT COURT REPORTS— NEW SERIES. 198
1909.] Tuscarawas County.
ARBITRATION WHICH EXCLUDES JURISDICTION OP THE
COURTS INVALID.
Circuit Court of Tuscarawas County.
Guy Tilden v. Christian Bernard.
Decided, 1909.
Arbitration and Award — Contracts Providing for — Affreement Rendered
Invalid by Depriving the Courts of Jurisdiction,
A clause of a contract providing that "should any dispute arise re-
garding the provisions of this contract * * • the same shall
be submitted to three arbitrators * « • and the decision of
such arbitrators shall be final and binding on all parties/' is ren-
dered illegal is so far as it ousts the courts of Jurisdiction; or at
least it is inoperative in that arbitration is not made a condition
precedent or bar to the bringing of an action upon the contract
itself.
J. M, Blake, for plaintiff in error.
Hostetler & Hostetler and P. 8, Olmstead, for defendant in
error.
Taggart, J.; Donahue, J., and Voorhees, J., concur.
Error to Tuscarawas Common Pleas Court.
The question in this case is as to the sufficiency of the aeQ-
ond amended petition. The court of common pleas sustained a
general demurrer to the second amended petition, dismissed the
action, alad rendered judgment for the defendant. The plaint-
iff below prosecutes error to this court.
The action below was on an architect's contract for services
in preparing plans and specifications for the remodeling of a
hotel. In the contract, which was embodied in the petition, was
the following provision :
** Should any dispute arise regarding the provisions of this
contract, or any question arise thereunder, or the value of the
work done in case of abandonment, the same shall be submitted
to three arbitrators. Each of the disputing parties shall choose
one, and these two the third, and the decision of such arbitrators
shall be final and binding on all parties.
}}
194 CIRCUIT COURT REPORTS— NEW SERIES.
Tllden v. Bernhard. [Vol. XII, N. S.
The contention of the defendant was, that this provision was
a part of the contract, and that the plaintiff could not recover
thereon, until he had first complied with this part or at least
offered to perform, or had a suflScient excuse for non-perform-
ance.
The claim of the plaintiff was two-fold : 1. That this clause
is void, because it is general in its terms, and ousts the courts
of jurisdiction. 2. This clause is not enforcible, because arbitra-
tion is not a condition precedent to the bringing of a suit on the
contract.
From the authorities we may deduce the following rule : That
a condition in a contract that disputes arising out of it shall be
referred to arbitration is good, when the amount of damages sus-
tained by the breach of the contract is to be ascertained, or when
a safe or speedy manner of fixing definitely some fact is to be
determined before any right of action accrues; but that it is
illegal when all matters in dispute, of whatever sort, are to be
referred to arbitrators and to them alone.
The above rule seems to be supported by the opinion of Burket,
J., in the case of Bolt & 0. Ry, v. Stankard, 56 Ohio St., 224, 232.
But, assuming that the provision of the contract is valid, is
it a condition precedent to maintaining an action! Or may an
action be maintained on the contract, leaving the parties to such
relief as they may have for a breach of this part of the condition
of the contract?
The defendant below contends that this part of the contract
must be observed, or an excuse given for failure to comply with
it, before an action can be maintained on the contract. In sup-
port of this contention, we are cited to the cases of Oraham v. In-
surame Co., 75 Ohio St., 374, 405; Fire Assn. of Phil. v. Appel,
76 Ohio St., 1; Phoenix Ins. Co. v. Caniahan, 63 Ohio St.,
259, 268.
There are very essential differences in the terms of the con-
tract of insurance under review in these cases, and the contract
involved herein.
1. The insurance policies contain the express provision, that
no suit shall be brought until the amount of loss shall have been
ascertained by arbitration.
CIRCUIT COURT REPORTS— NEW SERIES. 195
1909.) Tuscarawas County.
2. The arbitration shall be limited to the ascertainment of
the loss only, and does not refer any other matter or thing to
the arbitration.
It will be observed that, in the contract in suit, there is no
provision that suit shall not be brought until there is an award,
or that the award shall be the basis of a judgment.
What, then, is the purpose of the arbitration, if the court in
which suit is brought may ignore the award and render such a
judgment as the facts of the case warrant, independent of the
arbitration and award? We think that this determines that this
clause of the contract is a mere agreement to submit to arbitra-
tion, which may be revoked by either party, at any time, before
final submission or award. That it is merely executory, and, be-
cause executory, does not furnish a bar to an action on the con-
tract.
In the case of State v. Jackson, 36 Ohio St., 281, 283, 284,
Judge Okey uses the following language :
** Arbitration is a method which has long existed at common
law for the settlement of disputes and controversies. No partic-
ular form is required in the proceedings. Neither the arbi-
trator nor the witnesses are required to be sworn, though the
parties may stipulate that such oaths shall be administered. The
submission may be revoked by either party at any time before
the award is actually delivered, and the award itself has no legal
effect whatever except that it furnishes foundation or cause of
action or defense against the party who fails to perform or
abide by the award.
>>
The circuit court of Montgomery county, in Dayton rf: Union
Uy. v. Railway, 6 C. C. — N. S., 537, as a part of the syllabus,
deduces the following rule:
**The agreement to arbitrate does not preclude a resort to a
court of justice to protect rights growing out of the contract,*
neither can it be pleaded in bar to such action. Such agreement
to arbitrate will not be specifically performed, nor the arbitra-
tors compelled to act."
This court quotes with approval from the case of McGunn v.
Hanli7i, 29 Mich., 476, 480 :
**The agreement to submit to arbitration contains no covenant
or agreement not to sue or that the award shall be made the
196 CIRCUIT COURT REPORTS— NEW SERIES.
Tilden v. Bernhard. (VoLXII.N.S.
foundation of a judgment. Without this condition it is a mere
common law arbitration and enforcible only by action in case
either party fails to comply with it. The statute refers to such
agreement as fixed upon some designated court in which judg-
ment shall be entered on the award.
** Whatever force may be given to an award actually made un-
der an agreement and not impeached for fraud or any other
infirmity, there is no authority for holding that parties who have
agreed to arbitrate have by their agreement precluded themselves
from resorting to a court of justice. Such agreements will not
be specifically enforced nor will the arbitrators be compelled to
act. 2 Story, Eq. Jurisp., Sec. 1457, and notes. And it is well
settled that they can not be pleaded in bar. Mitchell v. Harris,
2 Ves. Jr., 131; Nicholas v. Chalie, 14 Ves.,'265; Confer v. Daw-
son, 2 Bland, 264; 2 Daniels Ch. Pr., 768, and note.
**The reason given by Mr. Daniels is that such an agreement
is only executory and an executory agreement can be no more
than a cause of action and can not be pleaded in bar to another
action."
We are of the opinion, that this part of the contract, in terms
providing for the submission to arbitration, is in its terms so
general as to render it invalid; or, if it is not invalid, then in-
. operative, at the election of either party ; or, at least, not con-
stituting a bar to the bringing and maintaining an action upon
the contract itself.
The judgment of the court of common pleas is reversed, for
error in the court in sustaining a demurrer to said second
amended petition, and is remanded, with direction to said court
to overrule the demurrer.
Exceptions will be noted.
CIRCUIT COURT REPORTS— NEW SERIES. 197
1909.] Hamilton Ck>unty.
CONPCSSIONS OBTAINED UNDER DURESS IN CRIMINAL
Circuit Court of Hamilton County.
Harrt Eohn v. State op Ohio.
Decided, August 2. 1909.
Criminal Law — Duress in Ohtaining Confessions — Circumstances under
Ufhich Admissions hy a Suspect are not Voluntary — Prejudicial Er-
ror in the Admission of Testimony.
1. Where a person suspected of crime Is taken to a private office and
questioned for two days and nights regarding circumstances sur-
rounding the crime, and Is kept under restraint until released by
habeas corpus, and Is repeatedly told that If he would tell the
truth he would be allowed to go, his Interrogators assuming to be
the final arbiters of what was the truth. It Is evident that his
statements were influenced by fear of further restraint or the hope
of regaining his liberty, and such statements can not be regarded
as voluntary.
2. The claim that the statements made by an accused person under such
circumstances were not confessions, but were mere admissions, does
not make them competent evidence against him where they consti-
tute conclusive evidence with reference to the crime charged, and
to receive such statements as evidence constitutes prejudicial error.
3. It Is also prejudicial error to admit a statement of a conclusion by a
witness, who has stated no facts from which the conclusion can
be drawn, and as to which the Jury are quite as competent as the
witness to draw a conclusion.
William Littlefard and Harry L, Oordon, for plaintiff in error.
Henry T, Hunt, Denis F, Cash and Coleman Avery, contra.
GiFPBN, P. J. ; Smith, J., and Swing, J., concur.
The plaintiflf in error, Harry Kohn, was indicted, tried and
convicted of unlawfully, willfully and maliciously setting fire to
and burning certain goods with intent to prejudice, damage
and defraud certain insurance companies. One of the errors al-
leged is the admission as evidence of certain testimony given by
Kohn before the State Fire Marshal, who was holding an of-
ficial investigation of the origin and cause of the fire. He was
taken by the fire marshal and two of his deputies under a sub-
IflS CIRCUIT COURT REPORTS— NEW SERIES.
Kohn V. State of Ohio. [Vol. XII, N. 8.
poena to the Andrews Building, in Cincinnati, duly sworn, ex-
amined and re-examined at intervals during two days and nights
and continued under restraint until released upon writ of habeas
corpus. During the examination he was repeatedly told by the
fire marshal that if he would tell the truth about it (the fire)
they would let him go. The evidence is plain that he was sus-
pected of the crime, and he himself so understood it. How then
can testimony given under such circumstances be said to be
voluntary as it must be to make it admissible? Spears v. State,
2 0. S., 584.
In the case of Schoeffler v. State, 3 Wis., 823, one proposition
of the syllabus is as follows:
* * Confessions or statements extorted from a person by duress,
or made under circumstances which are equivalent to arrest or
durass, or any other circumstances, which show that they are not
voluntarv, are inadmissible.'*
The time and manner of detaining Kohn indicated that the
fire marshal was not satisfied that he was telling th^ whole truth,
and when he told him that if he would tell the truth about it
they would let him go there was an implied threat to restrain
him until he did tell the truth, the fire morshal of course being
the final arbiter of w^hat was the truth. The statements were
evidently induced by fear of being deprived of his liberty or
by hope of being released so that he might obtain the advice of his
relatives and counsel.
It Is said, however, that these statements were not confessions
but mere admissions which can not be excluded ; but the admis-
sions embraced the preparation of certain fictitious bills of goods
presented to the insurance companies as proofs of loss, which
fact was conclusive evidence of intent to defraud, the essential
element of the crime charged in the second count of the indict-
ment, and of which he was convicted. The prosecutor admits
that it was a most damaging admission, and we think its effect
was the same as a confession of guilt. The prosecutor says in
brief if all the admissions were eliminated entirely from the rec-
ord, the fact remains that the Stuhlburg bill was forgery. This
does not cure the error, as the accused is entitled to have the
jur>' determine his guilt or innocence upon competent evidence
CIRCUIT COURT REPORTS— NEW SERIES. 19d
1909.] Hamilton County.
alone, and further shows that zeal for conviction should be
subordinate to legal procedure. It was error to admit the
statements as evidence and was prejudicial.
One of the witnesses for the state in describing the condition
of the rooms after the fire testified as' follows :
''Room 3 didn't seem to have any remnants of anything;
everything was quite clean. The shelves were scorched, but there
didn't seem as if there ever had been any stock on those shelves. "
A motion to rule out ** there didn't seem," etc., was over-
ruled and exception taken.
The witness had recited no facts from which the conclusion
could be drawn, and if h6 had the jury were quite as competent
and should have been allowed to draw their own inference. The
question of what stock was in the room and whether consumed
by fire was vital. Hence the error in overruling the motion to
strike out was prejudicial. A like statement and erroneous ruling
appear on page 999 of the bill of exceptions. The same objection
may be urged against the question: ** State whether or not she
come back willingly if you know 1 ' ' put to one witness concerning
another who had gone out of the jurisdiction of the court and
was returning.
On pages 158 and 845 witnesses were permitted to testify that
the fire started in a certain cupboard, although their investiga-
tions were made after the fire, and the facts upon which the
opinion was based could have been and were partly submitted to
the jury.
The answer given at page 845 was objectionable also because not
responsive to any question put to the witness.
Counsel says in his brief that there was no evidence that the
place was set on fire. Of course there is no direct evidence, but
there are circumstances and admissions besides those made be-
fore the fire marshal that fully sustain the verdict, and we there-
fore hesitate in reversing the judgment, but as said by Price, J.,
in Geiger v. State, 70 0. S., 400: ''The law of a fair trial must
be upheld."
Many other errors are assigned in the record, but we find
none requiring special notice or that would justify a reversal.
Judgment reversed and cause remanded for a new trial.
20() CIRCUIT COURT REPORTS— NEW SERIES.
Bankers Casualty Co. v. Banking Co. [Vol. XII, N. 8.
STATUS or POUCOCS ISSUED BY UNUCENS£D INSURANCE
COMPANIES.
Circuit Court of Richland County.
The Bankers Casualty Company v. The Richland County
Banking Co. et al.
Decided, 1JH)8.
In8ur€tnce — Polici€8 Issued by Unlicensed ComjMinies — Payment of
Premiums not <Enforcil)le in Ohio— Policies may be Collected in
State of Issue.
Where an insurance company, which has not complied with the Ohio
law requiring that a license be issued to do business within the
state, evades this requirement by Issuing policies outside of the
state on property located within the state, an action can not be
prosecuted in the courts of the state for the recovery of premiums
on such policies; but payment on a policy so issued may be en-
forced within the Jurisdiction of the state in which it was issued,
and an action for recovery of premiums may be maintained within
such state provided jurisdiction can be obtained over the person
of the policyholder.
Kerr & LaDow, for plaintiff in error.
Ciimmings, McBride & Wolfe, contra.
Donahue, J. ; McCarthy, J., and Taggart, J., concur.
The question in this case is whether the Bankers Mutual
Casualty Company, plaintiff in error, is entitled to prosecute an
action for the recovery of premiums in the courts of this state,
it not having complied with the laws of the state in respect to ob-
taining a license to do business within the state.
This policy of insurance was issued by the casualty company,
in the city of Detroit, insuring property within the state of Ohio.
The premiums on this policy of insurance not having been paid^
an action was brought in the courts of Richland county to re-
cover the same.
Upon the trial in the court of common pleas, on the issues made
up in the pleadings the plaintiff sought to introduce certain
testimony which was objected to on the ground that the plaintiff
CIRCUIT COURT REPORTS— NEW SERIES. 201
1909.] Richland County.
was not entitled to do business in the state and can not properly
bring this suit in court. The court thereupon sustained the ob-
jection and plaintiff excepted; and the court refused to allow
the introduction of any other evidence and directed the jury to
return a verdict for the defendant.
We think that this judgment ought to be affirmed. The gen-
eral law in force at the time, and the statutes subsequently
enacted, prohibited this class of insurance and other classes of
insurance from prosecuting business within the state until they
shall have obtained a license to do so.
As to these requirements, if within the provisions of the
Constitution, the courts can not inquire as to their just-
ness or equity. They have been uniformly upheld and sus-
tained as proper. If companies are not permitted to transact
business within the state, and by the evasion of issuing the policy
outside of the state the courts within the state should enforce
these contracts, it would nullify all legislation on the subject.
The purpose of the courts is to enforce contracts and to en-
force the law's, but not by their rulings and judgments to
nullify the properly enacted laws of the state. This policy was
not void, nor was the liability of the defendant in any way de-
termined by the action of the court. The policy could be enforced
within the jurisdiction of the state where the same was issued,
if issued according to law. The premium could be collected with-
in the jurisdiction of the state in which the policy was issued,
provided jurisdiction of the person was had. The mere fact
that the jurisdiction of the person is difficult to secure is not
material.
Finding no error in this record to the prejudice of the plaintiff
in error, the judgment is affirmed with the costs without penalty
and the cause remanded. Exceptions on behalf of the plaintiff
in error will be noted.
202 CIRCUIT COURT REPORTS— NEW SERIES.
Ireton et al v. State. [Vol. XII, N. S.
AS TO APPOINTMENT OP COUNSEL POR COUNTY
OPPiCERS.
Circuit Court of Hamilton County.
Ireton et al v. State op Ohio, Ex Rel Hunt.*
Decided, May, 1909.
Legal Counsel — Prosecuting Attorney is, in the First Instance — Legality
of Appointment of Assistants — Sections 845 and 1211,
In an action in wliich the l)oard of county commissioners is a party and
in which the prosecuting attorney says he is willing and ahle to pros-
ecute, the board of county commissioners is without autliority to em-
ploy other legal counsel.
Frank F. Dirismore and Stanley Struble, for plaintiff in error.
Hunt, Bettman <£• Merrell, Prosecuting Attorneys, contra.
Swing, J.; Gipfen, P. J., and Smith, J. concur.
Reading Sections 845 and 1274, Revised Statutes, together,
it seems clear that either the prosecuting attorney or legal coun-
sel employed by the commissioners upon the request of the
prosecuting attorney under Section 845, must prosecute and de-
fend all suits and actions to which the commissioners are a
party. No legal counsel having been employed by the commis-
sioners under Section 845, the statute (Section 1274) says
that these duties shall be performed by the prosecuting attor-
ney. He can not refuse to perform the duties imposed by this
section, nor is it in the power of the commissioners to employ
other counsel to supplant him in the performance of these duties
without overruling the clearly expressed intention of the Legis-
lature.
Ireton and Schoenle were employed by the commissioners to
defend the suit of Eberhardt v. the Commissioners, a suit pend-
ing in the court of common pleas.
• Affirming State, ex rel Hunt, v. Struhle et al. County Commissioners^
8 N. P. — N. S., 281, which see for statement of case.
CIRCUIT COURT REPORTS— NEW SERIES. 208
1909.1 Hamilton County.
Beading Section 1271 with Sections 845 and 1274, it is mani-
fest that the Legislature intended in the first instance that the
prosecuting attorney should be the legal counsel of the com-
missioners, and perform the duties required to be performed by
legal counsel under Section 84S, and this is done in all the other
counties of this circuit, and no doubt it is done in almost all the
counties of the state, the prosecuting attorney being able himself
to perform not only the primary duties pertaining to his oflSce,
which duties are of a criminal nature, but also to perform the
duties of legal counsel for the commissioners, which duties are
of a civil nature.
Under the provisions of Section 1271, the prosecuting attorney
may appoint such assistants as he shall deem necessary for the
proper jxerformance of the duties of his oflBce. These duties
primarily are to prosecute all complaints, suits and controversies
on behalf of the state, but this provision does not contemplate
that he is to appoint assistants to perform the duties of legal
counsel for the commissioners. It is clear from Section 845
that, if the prosecutor himself can not perform the duties of
legal counsel required by this section, he shall make this fact
known to the commissioners and request them to employ legal
counsel to act for them.
The reason for this is plain. The commissioners are the ex-
ecutive officers of the county. They make all contracts and rep-
resent the county in all actions, and if the legal counsel, the
prosecuting attorney elected by the people, can not perform the
duties, the expressed intention of the Legislature is that the
commissioners should choose whoever they may think best
fitted to attend to the business pertaining to the ** legal counsel''
contemplated by the statute.
In this case it does not appear from the record but what the
prosecuting attorney is able and willing to perform.the duties of
legal counsel for the commissioners, nor does the record show
that the prosecuting attorney has requested the county commis-
sioners to appoint legal counsel, and as the statute requires that
all suits or actions for or against the commissioners shall be
prosecuted by the prosecuting attorney or legal counsel em-
ployed by the commissioners as such, it follows that the em-
204 CIECUIT COURT REPORTS— NEW SERIES.
Toledo V. McNamara. [VoL XII, N. 3.
ployment of Ireton and Schoenle as counsel to defend the suit
in question was not authorized by law, and the judgment must
therefore be affirmed.
Decision on Rehearing.
A rehearing in this case was granted on account of the Su-
preme Court having decided Section 845, Revised Statutes, un-
constitutional. After a full argument and careful considera-
tion we are of the opinion that the unconstitutionality of this
section does not make invalid the provision of Section 1274 as
to the powers and duties of the prosecuting attorney. We are
further of the opinion that Section 1274 authorizes the commis-
sioners to employ counsel in cases where from any cause the
prosecuting attorney can not or will not act as counsel for the
commissioners. But the intention of the Legislature seems clear
that the prosecuting attorney shall act as legal counsel for the
commissioners in all suits, since Section 845 is no longer valid.
In this case the prosecuting attorney says he is willing and
able to prosecute the case in question, and the necessity for the
employment of other counsel by the commissioners does not
exist. The former judgment will therefore be adhered to.
NOT NECUCENCft PER S£ TO AUGHT RROM A STRSCT
CAR AT A SAFETY STOP.
Circuit Court of Lucas Couaty.
City op Toledo v. Fidell\ McNamara.
Decided, July 2, 1909.
Municipal Corporation — Injury to Woman from Defect in Street — Not
Negligence to Alight from Car at Safety Stop, When^— Charge of
Court— Ordinary Care — Error — Evidence,
1. The accepted definition of ordinary care, that it is that degree of
care which a person of ordinary prudence would use under like
circumstances and conditions, applies to a class rather than to a
particular individual, and a Judgment will not be disturbed on the
ground that the use of this definition of ordinary care in the
CIRCUIT COURT REPORTS— NEW SERIES. 205
1909.] Lucas County.
charge of the court was unfair to the plaintiff in that iMLrticular
case.
2. Inasmuch as an ordinance providing that street cars shall stop on
the further cross-walk is a requirement which applies to the
street car company, and in no way controls passengers in boarding
or alighting from cars, it is not error to exclude such an ordinance
in an action against a municipality for damages on account of in-
juries to the plaintiff from stepping into a hole in the street after
alighting from a car.
3. It is not negligence per ae for a passenger to alight from a street
car which has made a safety stop, but has not yet reached its regu-
lar place for stopping.
KiNKADE, J.; Parker, J., and Wildman, J., concur.
We have examined with care every assignment of error that
is made in this case,, and without attempting to refer to them
in the order in which they were made, I will say that we think
the petition states a cause of action, especially as it is. amended.
We think it sufficiently states that the city had time to know of
this defect, and had time to remedy it after it knew of it. We
think that the petition is sufficient in that regard.
On the questions of error, we find no error in the refusal to
charge requests numbers 1 and 2 before argument, neither do we
find any error in the refusal to give No: 1 and 2 after argument.
No. 3 after argument was given. The point is made that the
court has erroneously stated the definition of ordinary care. The
same point has been made in another case that we have heard
here, and after the fullest consideration of it I want to say to
counsel that we think that the point is not well taken. We find
in almost every decision of the Supreme Court we have examined,
with one exception, that this language is found in defining ordi-
nary care, viz., that it is such care as a person of ordinary care
and prudence uses under the same or similar circumstances, re-
ferring evidently to a class instead of to an individual man, and
we think the argument that this is unfair to the plaintiff in
error for the reason that in the jury room one juror might say :
**Now the court has said that this ordinary care is the care which
a man of ordinary prudence would exercise under the same or
similar circumstances. Now I am a man of ordinary prudence
and care and in this case I would have done precisely as the
206 CIRCUIT COURT REPORTS— NEW SERIES.
Toledo V. McNamara. [Vol. XII, N. S.
plaintiff did here, and therefore under the charge of the court
you should vote with me and return a verdict.'' We think the
other eleven, if not agreeing with him, wouM probably say to
him : * ' The court stated that it was the kind of care that a man of
ordinary care and prudence would use under like circumstances,
and we are likewise also men of ordinary care and prudence,
and we conclude that vou are not a man of ordinary care and
prudence if you say you would do that." I think the other
eleven would point out to him that he didn't fall in the class,
and point it out very quickly. At any rate it seems to us that it
is entirely too close to say that the trial court, who has charged
the jury that ordinary care is the care that a man of ordinary
care and prudence is accustomed to exercise under the same or
similar circumstances, is stating the ru^e erroneously. We think
the rule, is fairly stated and the jury could not have been misled
in that regard.
We have also examined this charge of Judge Kumler with care
as to the notice and the time within which the city could repair
after notice and so forth, and we think if counsel will re-read it
they must agree that this charge fairly states the law upon all
points in this case. We fail to see anything wrong in the charge
of the court in this regard.
It is said that the court was wrong in not permitting ordinances
to be introduced in evidence, or rather permitting them to be
first introduced and then excluding them from the considera-
tion of the jury; the ordinances relating to the stopping of
street cars, that the car must be stopped on the further cross-
walk, and that the defendant was entitled to have that evidence
in and have it considered in connection with the contributory
negligence alleged as to the plaintiff in the case. We think there
would have been no error in excluding the evidence when first
offered, and there was no error in withdrawing it. It is not ma-
terial here. It was a requirement by the city as to where cars
should stop, if it is anything. It certainly had nothing to do
with the plaintiff. It did not pretend to control the conduct of
parties in getting on and off a car. We call attention also to
the fact that there is nothing in this bill of exceptions to show
that these ordinances were in effect at the time thev were offered
CIRCUIT COURT REPORTS— NEW SERIES. 207
1909.] Lucas County.
in evidence. The title of the two ordinances is given, and a reso-
lution to codify is given, and the date of the ordinance is given,
the date when it was read in evidence; but when it was passed
or whether it is in effect at this particular time does not appear.
We think it is a matter of no moment anyway. We would hold
that the court was justified in excluding it.
It is said that the plaintiff having left the car at a safety stop
instead of the regular stop, and stepped off in the street, must
take the consequences, or, as one of the requests says, '*she as-
sumed the risk of whatever that happened to her, * ' whatever that
mav be. We think this can not be the law.
The Supreme Court has said in one case, 67 O. S., 153, Rapid
Transit Co. v. Holmes, that if a car stops any place, comes to a
full stop, and a party is attempting to alight, that it would be
negligence on the part of the street car company to start the car
before the party had an opportunity to alight. Of course that is
not decisive of this question, but we call attention to the language
used by the court in the opinion in that case. We think if a
^ car comes to a full stop, any place, standing still long enough so
that a party is without any danger to himself in the act of get-
ting off he may get off the car, if it is more convenient for the
purposes he has in mind for him to alight at that point than to
ride to a cross street and alight there and walk back. A car
might stop in a very long block in the middle, might stop by rea-
son of a loaded wagon going in front of it, or the power giving
out, or for any one of a number of causes which might be men-
tioned, immediately in front of a man's house, and it does not
seem reasonable to hold that unless he stays on the car and rides
down to the cross-walk and gets off there and walks back, that
he must assume all defects that he finds in the street and if he
is injured he can not recover. We think that is not the law.
We think the party here had right, if this car came to a full stop
long enough to allow her to alight from the car, and she saw fit
to do so, to alight from the car wherever that car may have been.
The question arises as to the sufficiency of the evidence in the
case. We have read that and read it with a good deal of care.
The verdict is not so clearly against the evidence in this case as
to justify a reversal on that ground. We find no prejudicial er-
208 CIRCUIT COURT REPORTS— NEW SERIES.
Slaline v. Sand Blast Ck>. [Vol. XII, N. S.
ror in the case, and the judgment of the court of common pleas
will be affirmed.
NKCUCSNCS^UNCUAIUMCD BELT— PROXIMATE CAUSE.
Circuit Court of Hamilton County.
Edwin Si^jvune v. Cincinnati Sand Blast Company.
Decided, March 22, 1909.
Where an employe while standing upon a stool is thrown by the toppling
over of the stool upon an unguarded ,belt and injured, the fact that
the belt was unguarded was not the proximate cause of the injury,
and recovery can not be had against the master because of the un-
guarded belt.
W. H, Schweikert, George J. Slaline and Stanley Matthews^
for plaintiff in error.
Guido Gores, contra.
GiPFEN, P. J.; Smith, J., and Swing, J., conur.
It appears from the evidence as well as the amended petition
that the proximate cause of the injury complained of was the
toppling over of the stool upon which the plaintiff was standing,
and there is no averment that the defendant negligently failed
to provide a ladder instead. The averment is that the stool
threw him upon said unguarded belt and by reason of said
fall upon said unguarded belt (not by reason of said belt being
unguarded) he received a fracture of his right leg.
It is equally clear from the evidence that the unguarded belt
or shafting was not the proximate cause of the injury. The
negligence, if any, was that of plaintiff.
Judgment affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 2IW)
1909.1 . Hamilton Ck)unty.
LIABILITY POR DAMAGE TO THE APPAREL OF A
GUEST AT AN INN.
Circuit Court of Hamilton County.
Sherman R. Miller, Jr., v. The Auburn Private Hotel Co.
Decided, May, 1908, and July, 1909.
Inns and I nn-J^epers— Negligence and Presumption of Negligence—
Whereby the Apparel of a Guest was Damaged — Pleading — Charge
of Court — Misconduct of Counsel.
1. Negligence on the part of an inn-keeper can not be presumed or in-
ferred from the mere fact that water flowed from a tank or pipe
upon the apparel of a guest and damaged it.
2. Controversial remarks between counsel within hearing of the jury,
in regard to an alleged offer by the defendant to compromise the
claim sued on, do not constitute such misconduct as would war-
rant a reversal of the judgment which followed in favor of the
plaintiff, where it appears that the statement regarding an offer
to compromise was withdrawn and no ruling of the court or ad-
monition of the jury by the court was asked then or thereafter by
counsel for the defendant.
Roeitinger & Kinney and Dempsey <fe Nieberding, for the
plaintiff in error.
Charles B. Wilby, for the Hotel Company.
»
The plaintiff filed a petition in the common pleas court, al-
leging that the defendant is an Ohio corporation, organized for
the purpose of conducting the business of an inn-keeper, and
was on March 12, 1905, and still is operating the Auburn Private
Hotel, in Cincinnati, for the entertainment and accommodation
of the general traveling public ; that on said date the plaintiff
was a guest at the defendant's hotel, and placed his wearing ap-
parel in the care and custody of the said defendant, and that a
part of said wearing apparel consisted of a broadcloth overcoat
lined throughout with seal fur lining and having a Persian lamb
fur collar and cuffs, the said coat being of the value of $1 ,000 ;
that in the closet of the room to which plaintiff was a.ssigned, and
which he occupied on the day in question, there was placed by the
210 CIRCUIT COUBT REPORTS— NEW SERIES.
Miller T. Hotel Co. [Vol. XII, N. 8.
defendant a hot water tank connected with the heating apparatus
of said building, and that by reason of the defective and im-
proper construction of said heating apparatus and tank, the said
tank became out of repair, and leaked and discharged hot water
upon plaintiff's coat, spoiling and destroying the fur thereof, to
plaintiff's damage in the sum of $400 ; that the said defective and
improper construction was due to the negligence of the defend-
ant company, and was unknown to the plaintiff, and the damage
aforesaid was entirely without fault on his part, but due to the
negligence of the defendant. Wherefore he prayed judgment in
the sum of $400 with interest and costs.
At the trial the court refused to give the following special
charges:
**1. I charge you that if you find from the evidence that the
plaintiff before the accident had seen the tank in his closet in his
room, and knew that the tank was connected with the heating
apparatus or system, and with that knowledge of the use of the
tank put his valuable overcoat in that closet in preference to the
other closet, there being another closet in the room, then the
plaintiff was guilty of contributory negligence and can not re-
cover in this action, and your verdict should be for the defend-
ant."
* * 9. I charge you that the mere fact that the hot water flowed
from this tank, or from a pipe connected with it, upon plaint-
iff's coat and damaged it, is not any presumption of negligence by
the defendant, nor can negligence be inferred from that fact."
The jury returned a verdict for the plaintiff for $206.91, upon
which judgment was rendered and the present error proceedings
prosecuted thereto.
Smith, J. ; Swing, P. J., and Gippen, J., concur.
We are of the opinion that special charge No. 1 was properly
refused by the trial court.
Special charge No. 9 ought to have given and being refused
the court should have covered it in the general charge. This upon
examination we find the court failed to do.
In regard to that portion of the general charge relating to an
explosion of the tank and the want of repair of the heating ap-
CIRCUIT COURT REPORTS— NEW SERIES. 211
1909.) Hamilton County.
paratus, we can not say that the same were prejudicial as the
evidence is not before us. These matters are not set up in the
pleadings, the ground of negligence complained of being a de-
fective and improper construction of the apparatus in question.
Judgment reversed and new trial granted.
After a second trial, resulting in a verdict against the hotel
company, the case was again taken to the circuit court, where
the following opinion was rendered :
Smith, J. ; Gifpen, P. J., and Swing, J., concur.
The only error complained of is that, in the course of the ch)s-
ing argument of attorney for defendant in error, he referred to
an offer of compromise having been made by the defendant to
the plaintiff before suit was brought, and in that connection the
sum of fifty dollars was mentioned by him as the amount which
had been offered. Whereupon the attorney for plaintiff in error
objected and before the court could make any ruling, some con-
troversal remarks passed between the attorneys in the hearing
of the jury, whereupon counsel for plaintiff said that he would
withdraw what he had said as to compromise. No ruling of the
court or admonition of the court to the jury was asked then or
thereafter by either of the attorneys.
It is urged that this was such misconduct on the part of coun-
sel for plaintiff as of itself would necessitate a new trial of the
cause.
We have examined the evidence in the record, and are of opin-
ion that the judgment is fully sustained thereby, and the jury
in answer to special interrogatory submitted, found that the
plaintiff in error *'was negligent, in.asmuch as it allowed a
faultily constructed and badly connected old tank to be placed in
the building.'' This being so, is misconduct of counsel as
claimed and disclosed by the record such as would justify the
setting aside of the judgment?
We are of the opinion that it is not. We do not think the case
comes within the ruling of Gas cf- Electric Company v. Cbffelder,
lie. C. — X. S., 289, or Dayton Folding Box Co, v. Ruhlman, 11
C. C— N. S., 493.
2J2 CIRCUIT COURT REPORTS— NEW SERIES.
Toledo V. Strasel. [Vol. VIII, N. S.
Under the general and speckl verdicts we may assume that
when counsel withdrew his remarks and did not further persist
in making similar statements, that no prejudice resulted to
plaintiff in error, and particularly so when as the record shows
such withdrawal was made before the court could make any
ruling upon the matter, and no exception was taken and no rul-
ing or admonition of the court to the jury was asked by either
of the attorneys, from which it would appear from the record
that neither the court nor counsel regarded the remark as in any
way serious or prejudicial to the rights of plaintiff in error.
This is the second trial of the casa, both trials resulting in a
verdict for defendant in error, and as it appears from the record
that the jury was not influenced in arriving at its verdict by
mis-statements of counsel made in its presence, we think the
judgment of the court below should be affirmed.
INJURIES ALLEGED TO HAVE BEEN SUSTAINED ON
A DEFECTIVE SIDEWALK.
Circuit Court of Lucas County.
City op Toledo v. John Strasel.
Decided, June 26, 1909.
Sidewalk — Allegation that a Defect in had Existed **for a Long Time"
— Objection on the Ground of Indeflniteneas too Late when First
Made on Review — Charge of Court — Definition of Ordinary Care —
Qualifications of a Juror Who had Himself Recovered a Verdict in
a Similar Case — Weight of Testimony, '
1. In an action for damages for injuries resulting from a defective
sidewalk, the objection that because of the indefinite allegation
that the defect had existed "for a long time" the petition does not
state a cause of action, comes too late when deferred until the case
reaches the reviewing court.
2. The ^act that one of the Jurors in a similar action for damages
against a municipality had recovered a verdict, does not consti-
tute ground for a reversal of the Judgment in the present case,
where it appears that counsel for the municipality made no exami-
nation of the Juror before going into the trial.
CIRCUIT COURT REPORTS— NEW SERIES. 2]S
1909.] Lucas Ck)unty.
3. Where there is an allegation in the answer of the city that the
plaintiff having full knowledge of the condition of the walk vol-
untarily went upon and used it and thereby contributed to his al-
leged injury, the city is entitled to a more definite charge as to
the plaintilTs negligence in so doing that is found In the statement
that if he was negligent in going upon the walk he could not re-
cover.
4. The evidence being evenly balanced as to whether there was a walk
at the point where the plaintiff claimed to have been injured, afli-
davits to the effect that on the night of the accident and while he
was being helped home he had stated that the place where he had
fallen was more than a block distant from the point alleged in the
petition are a sufficient warrant for granting a new trial, and the
overruling of the motion was error of a character that makes it
necessary to reverse the Judgment.
C. A. Northup, City Solicitor, C. H, Masters and Ralph Emery,
for plaintiff in error.
Harold W, Frazer and John A. Price, for defendant in error.
KiNKADE, J.; WiLDMAN, J., COnCUrs.
The errors presented and relied upon in this case were:
First, that the petition did not state a cause of action ; second,
excluding evidence on cross-examination of the plaintiff as to
where he got acquainted with Mr. Burt, etc. ; third,' the charge
of the court with reference to notice, and the charge of the court
in its definition of ordinary care; fourth, misconduct of Juror
Duden; fifth, matters relating to the juror Logee; sixth, that
the verdict is against the weight of the evidence; and seventh,
overruling a motion for a new trial, and particularly on the
ground of newly-discovered evidence.
Taking up these alleged erroAs in their order, the first being
that the petition did not state a cause of action, we think it is
reasonably apparent that this is a recent discovery. It would be
doing violence to the intelligence of counsel who tried the case
on behalf of the city, to assume that they discovered it during
the trial or before the trial and failed to fortify the situation in
the manner in which they could easily have fortified it by a
motion to exclude all evidence, on the ground that the petition
did not state a cause of action, and further by a motion to direct
a verdict at the close of the plaintiff's testimony on the same
^214. CIRCUIT COURT REPORTS— NEW SERIES.
Toledo V. Strasel. [Vol. XII. N. a
grovind, neither of which was filed. And it would be doing vio-
lence to their integrity to assume that they knew it all through
the trial, and when they were presenting the motion for a new
trial and never called the court's attention to it in any other
way than to state that the verdict was contrary to law. which,
of course, does state it, but does not state it as openly as counsel
would formally state it if they had then apprehended it.
It is said that this petition does not state a cause of action for
the reason that it only states that the defect alleged in the side-
walk had existed for *'a long time/' and it is claimed that the
term **long time" does not mean anything and that it is not
helped out because the petition also states that it was negli-
gently and carelessly permitted to exist for a long time. This
might be a question of great importance in this situation had a
motion been made to exclude all evidence and the court's atten-
tion been directed to the fact that the petition did not state a
cause of action other than merely stating it in the motion for a
new trial in the form it is. We call attention in this regard to
the case of Pepper v. Sidwell in 36 0. S., page 454, which cites
the 12 0. S., 252, which is a similar case, and in the 12 0. S. it is
held that a petition against an administrator which does not al-
lege that the proper statutory time has elapsed before the bring-
ing of an action is demurrable in that form, that it does not
state a cause of action, biit it is also held that this defect may be
waived by going to trial. We think in this case that although
the language that the defect had existed for a long time is very
indefinite, and some decisions are to the effect that it is without
very much meaning, that the city, having gone to trial on this
petition without any motion to make it more definite and certain,
without any objection to the petition or evidence under this peti-
tion, without calling the court's attention to it in any way,
should not now be permitted to take advantage of the fact that
the petition did not state w-ith more care the cause of action.
As Judge Wildman says, the language used in the petition that
it had been negligently permitted to remain in this condition for
a long period of time we think was sufficient, not being attacked
bv motion as we have indicated.
CIRCUIT COURT REPORTS— NEW SERIES. 216
1909.1 . Lucas County.
The second error complained of was the excluding of evidence
in cross-examination of the plaintiff himself. It was said in ar-
gniment that this evidence was sought to be put in without disclos-
ing to the plaintiff just what counsel was leading up to, in order
that they might test his habits and his whereabouts and thereby
bring out what he knew about this case and what his own condi-
tion was on this evening of the accident, without apprising the
witness directly of what they were at, and that the court should
have admitted the evidence in that regard. We have examined
this part of the record referred to with care and without com-
menting on it further we think, in the form that it is, there was
no prejudicial errors in the rulings of the court in that regard.
It is now said that there was error in the charge of the court
as to the notice, that the court did not tell the jury in plain
terms that the city must not only have notice, but that after it
received notice, either actual or constructive, such time must
elapse as in the exercise of ordinary care the city would have an
opportunity to repair the walk. There is no doubt about that
being a correct proposition of the law as stated by our circuit
court sitting in Cincinnati, to which our attention has been
called. But we think when the charge is read as a whole that no
jury could misunderstand the language of the trial court in that
regard. We think that the jury must have understood the lan-
guage of the trial court, taking the charge as a whole, that the
city was to have notice, and was to have an opportunity after
notice to make the repair within a reasonable time, and we find
no error in the charge considering it as a whole in that regard.
It is now said that the charge is erroneous in this: that it
stated the definition of ordinary care entirely wrong. We are
cited to the 8 0. S. in this regard, where the language is found
oh page 581 :
'* Ordinary care is not defined in the charge copied in the bill
of exceptions, but it is well known to mean that degree of care
which persons of ordinary care and prudence are accustomed
to use and employ under the same or similar circumstances in
order to conduct the enterprise in which they are engaged to a
safe and successful determination, having due regard to the
rights of others and the objects to be accomplished."
^21C) CIRCUIT COURT REPORTS— NEW SERIES.
Toledo v. Strasel. TVol. XII. N. S.
It is said that in this case the charge of the court is wrong
because the court did not define ordinary care as the care used by
any class of persons, but defined it as the care used by a prudent
person, putting it in the singular, and that that is clearly
erroneous. There are some circuit court decisions tending to
sustain this proposition. But we call counsel's attention to the
50 0. S., which is a later decision than any of the circuit court
decisions cited, and of course considerably later than 8 0. S..
being the case of Railway Co, v. Murphy^ the case beginning on
page 135, and the language to which I now call attention begin-
ning on page 144, the opinion being by Judge Spear:
** Fault is found also that what the court said as to ordinary
care, and especially with the statement that *no general rule can
be given as to what in law constitutes ordinary care.* A gen-
eral definition of ordinary care is such care and vigilance as a
person of ordinary prudence and foresight would usually exer-
cise under the same or similar circumstances. Taken as a whole
we see no valid objection to this part of the charge. Had the
company desired a more definite instruction it Was its privilege
to ask it."
We think that under this authority of the 50 O. S. we would
not be justified in this case in holding that the language used by
the trial court was prejudicial error in this case, there being no
request from the city for any more specific instruction in this
regard.
It may be a question, as Judge Wildman suggests, whether any
change should have been made by the court in its charge in this
regard had the attention of the court been called to it. It is
evident that the expressions of the Supreme Court are not alto-
gether uniform in this definition of ordinary care; neither are
the expressions used in the text books uniform in this regard.
We would not feel justified, as I have said, in reversing the case
in that regard.
I call attention to another matter at this point in the general
charge, not because we find it prejudicial error, but because we
think attention sh<iu^d be directed to it in its present form. The
answer in this case, which seems to be considerably out of its
place in this record, but it is here, says:
CIRCUIT COURT REPORTS— NEW SERIES. 217
1909.] Lucas Ck)unty.
*'For its second defense to the petition defendant says that at
and prior to the date of the alleged injury complained of said
plaintiff had full knowledge of the condition of said sidewalk, and
with this knowledge voluntarily went upon and made use of the
same, thereby directly contributing to his alleged injury."
The court in its general charge seems to have said nothing to
the jury as to this particular defense set up in the answer in
the form that it is here. True, the court charged the jury if
plaintiff was negligent while going over the walk he could not
recover, but there is nothing in the charge that he might be
defeated of a recovery for the reason that he elected to take this
walk if there was another safe way. convenient, that he could
have used. We direct attention again to the case of Smith v.
City of Toledo, 30 Circuit Court, from which Judge Wildman
has quoted in deciding another case. We think it would be well
in cases of this kind for the court to keep this in mind.
Another thing about the charge that we find needs attention,
and that is, it is said in the charge that the plaintiff could not re-
cover if he knew of the dangerous condition of the walk, and so
forth, but nothing is said as to his inability to recover if he by
the exercise of ordinary care would have known of its condition.
We think this should be in the charge, as has been mentioned by
Judge Wildman in another case decided this morning, citing the
case of Smith v. Toledo, But in these matters, there being no
request for any more definite instruction than was given, we do
not find any of the omissions which I have mentioned as preju-
dicial error in this case.
This brings us to the charge of misconduct of juror Duden.
We have examined the record fully in all that it presents in this
regard, and while it may be that the juror would have been more
in accord with correct proceedings in court had he not made the
statements at the time that he did make them, we fail to see any-
thing in this that would justify disturbing the decision below-.
The next matter complained of is the fact that there was upon
this jury a juror by the name of Logee who had himself prior
to this time recovered a judgment for a personal injury some-
what of a like nature to the injury of plaintiff in this case, but
that is not disclosed during his examination as to his fitness as a
218 CIRCUIT COURT REPORTS— NEW SERIES.
«
Toledo V. Strasel. [VoL XII. N. 8.
juror. In addition to this it is said that a member of the firm
of Eohn & Northup, Mr. Boey, had prosecuted a case against Mr.
Logee, and that that was not made known by. Logee when he was
examined as to his qualifications. We have read all that has been
said in this record, and we think there is nothing in this transac-
tion that should disturb this verdict. No examination seems to
have been made by counsel for the city of Mr. Logee as to wheth-
er he ever had a personal injury case, or failed in it if he had, or
recovered. There is nothing of this kind in his examination.
Of course it was entirely competent for counsel to make that ex-
amination, and whether it furnished a ground of challenge for
cause or not is a matter of no moment, because counsel might
make it the basis of a motion to disqualify the juror for cause and
if not allowed they might have dismissed him on a peremptory
challenge. We think the omission to examine the juror as he
might have been examined disposes of the contention with refer-
ence to Mr. Logee.
. The sixth matter to which our attention is directed is that the
verdict is against the evidence. We have examined the evidence
in this case with very great care. It is very greatly and posi-
tively in conflict. The city in this case contends that no walk
existed at this point and asked the instruction of the court and
secured it to the jury that if no walk existed the plaintiff could
not recover. The city offered its Evidence tending to prove that
in the year 1907, long before this accident, that the walk had been
taken up preparatory to putting down a cement walk, and that
at the time of this accident there was no board walk on the north
side of Starr avenue between Plymouth and Willard streets where
the man claimed to have been hurt, and particularly immediately
adjacent to the the corner property. The plaintiff on the other
hand offered his evidence on the subject, and we have examined
the evidence in this record on both sides. We think it is fairly
evenly balanced, but the evidence in behalf of the city that no
walk was there we regard as very strong. However, we do not
think it is so clearly against the weight of the evidence as to
justify reversing the judgment of the court of common pleas on
that ground.
CIRCUIT COURT REPORTS^NEW SERIES. 219
1909.) Lucas County.
This brings us then to the only other matter that was urged
upon our attention seriously for the reversal of this judgment,
and that is the overruling of the motion for a new trial on the
ground of newly-discovered evidence. Much that was put in on
the hearing of the motion for a new trial might well be said to
be purely cumulative, but in the evidence presented in support
of this motion is found the afiSdavits of parties to the effect that
the plaintiff in this case immediately after the accident on the
same night and while he was being helped to his home, at the
solicitation of a friend of his, stated positively that he fell upon
the walk more than a block from the point where it is^ alleged in
the petition and where plaintiff testifies in the case he fell. In
response to this, afiSdavits are offered by other parties to the
effect that they were present at those times, that they did not
hear this conversation, and that they would* have heard it had
it taken place. We have read these afiSdavits, each of them, with
care and compared their statements, and in view of the fact that
the evidence upon the question as to whether a walk was there
or not at this time is as strong as it is in behalf of the city's
claim, and is so evenly balanced as a whole, we are of opinion
that this evidence as to plaintiff's own statements as to where he
fell would have justified the court in sustaining the motion for a
new trial on this ground. We think the overruling of the mo-
tion is such error in this case as makes it necessary to reverse the
judgment of the court of common pleas, and that will be the de-
cision.
220 CIRCUIT COURT REPORTS— NEW SERIES.
Cincinnati v. McLaughlin. [VoLXII,N. &
CHANCE IN THE FLOW OF SURFACE WATEIL
Circuit Court of Hamilton County.
The City of Cincinnati v. Patrick McLaughlin et al.
Decided, Fetjruary 3, 1909.
Municipal Corporationa — Liatnlity of, for Injury to Property— By In-
creased Flow upon it of Surface Water — Measure of Damages —
Negligence not Necessary as a Basis of Action — Discretion as to
the Order of Admitting Testimony— Charge of Court.
1. Where damages are claimed on account of an increased flow of
surface water upon the premises of the plaintiff, it fs immaterial
whether or not the wrong was due to negligence or otherwise.
2. The measure of damages to property due to Increasing the flow upon
it of surface water is the cost of restoration to its former condition,
and where cost of restoration and necessary repairs are both al-
lowed the latter should be eliminated from the verdict.
3. It is not an abuse of discretion to permit the admission of evidence
out of order, when the court at the time states to opposing counsel
that they may offer evidence to meet it.
4. Where in the charge to the Jury the court speaks of damages result-
ing from or by reason of the acts complained of, other acts are
necessarily excluded.
Dudley V. Sutphin, Assistant City Solicitor, for plaintiff in
error.
Peck, Shaffer & Peck, contra.
GiPPEN, J. ; Swing, P. J., and Smith, J., concur.
The consequences of the acts of the defendant in causing an
increased flow of water upon plaintiff's property, and not the
manner of performing such acts, constitute the wrong inflicted,
and it is immaterial whether the acts were done negligently or
otherwise.
The admission of evidence out of order is not reversible error,
unless abuse is shown, and none appears in allowing the depo-
sition of Mr. Critchell to be read. The court at the time stated
to counsel for defendant that he might offer such evidence as he
had to meet anything contained in the deposition.
CIRCUIT COURT REPORTS— NEW SERIES. 221
1909.] Hamilton County. .
The refusal to give special instruction No. 1 requested by de-
fendant, if erroneous, was cured by giving special instruction
No. 3 requested by defendant, and by the general charge of the
court upon the subject of extraordinary and unprecedented
storms.
Special instructions Nos. 2 and 4 requested by the plaintiffs
correctly state the law of the case. The evidence discloses no
necessity for emptying the eight-inch pipe on the hillside back of
plaintiffs' premises; but on the contrary at least two of defend-
ant's witnesses testify that with little expense such pipe could
have been connected with an existing sewer.
These two charges restrict the liability of the city to damage
directly caused by its own wrongful acts. As said in the case of
the City of Hamilton v. Ashhrook, 62 0. S., 511, at 518 :
**A city may be held in damages for failure to perform its
contracts, for wrongs which it prepetrates and for omissions of
duties imposed upon it by law."
The wrong in this case consists in unnecessarily collecting and
casting upon plaintiffs' premises more surface water than would
naturally flow thereon.
The objection to that part of the general charge beginning in
the middle of page 374 of the bill of exceptions was afterwards
answered and satisfied by the court at the request of counsel for
plaintiffs, as appears on page 377.
It is further claimed that the court did not limit the right to
recover for injury resulting from the acts complained of in the
petition, but included all acts within twenty-one years that
tended to increase the flow of water upon plaintiff's premises;
but it does not so appear in the charge, as the court expressly
refers to damages *' resulting from" or **by reason of" the
acts complained of, which excludes necessarily all other acts.
The plaintiffs were entitled to use and enjoy their property in
its natural state, unless changed by contract or prescription, and
if the acts set forth in the petition increased the flow of water
over the natural flow, and damage resulted thereby, they were
entitled to recover.
222 CIRCUIT COURT REPORTS— NEW SERIES.
t
Cineinnati v. McLaughlin. [Vol. XII, N. S.
Of course if other acts of the city or of a third party caused
the increased flow of water, and the acts complained of were not
the direct cause, there could be no recovery, and we do not
understand the charge to be open to any other construction.
The charge of the court, on the measure of damages, that
plaintiffs could recover cost of necessary repairs between Febru-
ary 19, 1906, and April 11, 1907, and the cost of restoring the
property to the condition it was in at the time the injuries they
complain of began, would seem to permit a recovery of the cost of
restoration in double measure, first, under the head of repairs;
second, under the general head of restoration. If the court had
told the jury to allow all repairs necessary during the period
named to preserve the property and also the further cost of
restoring the property to its condition before the injuries were
sustained, not exceeding the difference in value of the property,
there could be no objection; but the charge reads as follows:
**You have a right to take into consideration the age of the
building and repairs necessary to place it in the condition the
house was at the time before the acts from which it suffered
occurred. The sound rule to guide you as to damages is, he is
entitled to the cost of restoring the property to the condition it
was in at the time that the injuries he complains of began."
The cost of repairs necessary to place the house in its former
condition, and the cost of restoration to that condition are one
and the same thing. If both are allowed, then a recovery is twice
had for the same injury.
The special findings of the jury indicate that they were misled
by this charge, as they found the cost of restoration to be $525,
while the difference in the market value of the property on Feb-
ruary 19, 1906, and on April 11, 1907, was only $400, and ren-
dered a general verdict for $925. They probably included in the
cost of restoration repairs necessary to preserve the property
from further injury; and we think the amount of the verdict
should be reduced to $525, the cost of restoration found by the
jury, and unless such reduction be consented to by defendants
in error the judgment will be reversed. The evidence as to the
proximate cause of the injuries sustained is conflicting, but not
. CIRCUIT COURT HEPORTS— NEW SERIES. 228
1909.] Van Wert County.
to that extent that would justify us in holding that the verdiet
in favor of plaintiffs is not sustained by suflSeient evidence.
The remarks of counsel for plaintiffs in his argument to the
jury charging the suppression of a deposition and deception in
reading only half of an answer in a deposition are not justified
by the evidence, and therefore reprehensible ; but we think that
justice in this case does not require a reversal of the judgment
on that ground.
IDENTIFICATION OF AGREED STATEMENT OF FACTS AS
PART OF RECORD*
Circuit Court of Van Wert Counfir.
YoRK-RiDGE Oil* Co. v. W. O. Innis et al.
Decided, November Term, 1904.
Bill of Exceptions — Filing Agreed Btatement of Facts Does not Make
it Part of the Record — Proper Identification — Error — Evidence,
The mere filing of an agreed statement of facts in the trial court does
not make it a part of the record; nor does a reference in the biU
of exceptions to an agreed statement of facts as having been
offered in evidence and as bearing the file-marks of the trial court
without further identification or being attached to the bill of ex-
ceptions.
E, 0, Outkery, H, G. Richie and C, 0. Richie, for plaintiff in
error.
0. 8, Brumhack and Saltzgaber, Hoke rf- Osborn, contra.
Error to the Common Pleas Court of Van -Wert County.
Counsel for defendants in error cited in support of the prop-
osition that an agreed statement of facts, although filed in a
case, is not an '*originar' paper: Garner v. White, 23 0. S..
192; Young v. State, 23 0. S., 577; Montgomery v. State, 12
C. C, 679; Brock v. State, 22 C. C, 364; Cleve. & E. Elec. Ry.
Co. v. Hunter, 10 C. C— N. S., 564; State v. Speigel, 4 C. C— N.
S., 255.
224 CIRCUIT COURT REPORTS— NEW SERIES..
York-Rldge Oil Co. v. Innis et al. [VoLXII.N. S.
Not even when copied in the record by the clerk : Sleet v. WP-
liam^, 21 0. S., 82; Goldsmith v. State, 30 0. S., 208; Schultz w
State, 32 0. S., 276.
A deposition on file, but not attached to the bill of exceptions,
is not a part of the record. Ilicks v. Person, 19 Ohio, 426.
An agreed statement of facts must be made a part of the record
by bill of exceptions. Bavk of Virginia v. Bank, 16 Ohio, 170;
Clark V. La7ie Seminary, 8 Am. L. Rec, 488.
Per Curiam,
The document which purports to contain and to be an agreed
statement of facts in this case, does not become part of the record
by being filed in the trial court. The reference to it in the bill of
exceptions, as having been offered in evidence and declaring that
it is a part of th€ record, and that it bears the file-marks of the
common pleas court with the date of the fiMng, without further
identification and without being physically attached to the bill
of exceptions, does not make it a part of the bill, or a part of
the record. The bill of exceptions showing that such an agreed
statement of facts was received in evidence, but the same not
being a part of the record, and not being made a part of the bill
of exceptions, it conclusively appears that the bill of exceptions
does not contain all the evidence, and this court is precluded
from reviewing the case upon the weight of the evidence.
The assignments of error in the petition in eri'or are all depend-
ent upon the facts as found from consideration of the evidence.
This being the situation, this court is without power to review,
and so must of necessity affirm the judgment.
The judgment is affirmed at the cost of plaintiff in error with-
out penalty. Judgment for costs, execution awarded, and case
remanded for execution.
CIRCUIT COURT REPORTS— NEW SERIES. 225
1909.] Hamilton County.
MISTAKE IN DESCRIPTION OF LEASED PROPERTY.
Circuit Court of Hamilton County.
Marmet Company v. City of Cincinnati et al.
Decided, July 10, 1909.
Ijease — Rescission of, for Mistake in Description — Lessee not Entitled
to Recover Rents Paid, When — Circumstances Warranting Rescis-
sion of Lease — Description by Metes and Bounds and hy Occupa-
tion— Intended Use of Property not Material, When,
1. Where a mistake has occurred in the description of land held under
lease, it is immaterial that in the advertisement offering the land
for lease it was described by both metes and bounds and by occu-
pation, while in the lease as afterward executed it was described
by metes and bounds only, since the description by metes and
bounds would control that by occupation.
2. A mistake in the description of leased premises may be material
notwithstanding the lessee has not used the property for the pur-
pose intended at the time the lease was executed, and where it ap-
pears that the mistake was mutual and that the lessee acted im-
mediately upon discovering it, he is entitled to a rescission of the
lease; but there can be no recovery of rents paid while the lessee
was in possession and enjoyment of the premises previous to the
discovery of the mistake.
Kramer cfe Kramer, for plaintiff.
John R, Schhidel, for the city.
QiPFEN, P. J.; Smith, J'., and Swing, J., concur.
The plaintiff seeks to recover rents paid under a lease from
the city and to cancel the lease, upon the ground of a mutual
mistake in including in the description a piece of land not owned
by the city, and which was material and essential to the use
intended hy the plaintiff.
The four tracts of land conveyed being each described by
metes and bounds in the advertisement for proposals as well as
in the lease, it is immaterial that the lease failed to show as did
the advertisement that the property is **now occupied by the
Winifrede Coal Co.," because the particular description by metes
and bounds would control that in general terras by occupation.
226 CIRCUIT COURT REPORTS— NEW SERIES.
Marmet Co. v. Cincinnati. [Vol. VIII, N. S.
In the case of Smith v. Oalloway, 5 B. & Ad., 43, the syllabus
is as follows :
** Under a lease of all that part of the park called B situate
and being in the county of O and now in the occupation of S,
lying within certain specified abuttals, with all houses and
etceteras belonging thereto, and which now are in the occupa-
tion of S, a house on a part which is within the abuttals, but
not in the occupation of S, will pass.'*
The description by metes and bounds of each tract was definite
and certain, and the recital that the premises thus described
were in the occupancy of the Winifrede Coal Co., was insufiicient
of itself to put the plaintiif on inquiry. It must be determined
therefore from all the evidence whether there was a mutual mis-
take, whether material, and whether the plaintiff acted promptly
on discovery.
If, as claimed by counsel for defendants in his brief, **the
plaintiff knew what property the Winifrede Coal Co. occupied,
and supposed that the property described in the advertisement
by metes and bounds was the property w^hich said company occu-
pied,*' then it would be entitled to no relief, as it would be
claiming property under the lease that it never expected to get
and the defendants never intended to lease.
The officers of the plaintiff company who negotiated the lease
deny all this, and say that they relied on the description by
metes and bounds and that the premises were not available for
the use intended without the particular piece in dispute, and we
think this testimony is corroborated by the circumstances; but
whether the company afterwards acquiesced is not so clear.
The testimony of Mr. Jones, manager of the Winifrede Coal Co.,
shows that there was a high board fence dividing the property
occupied by the company from that in dispute occupied by the
B. & 0. S. W. Ry. Co., and that he knew that it substantially
represented the boundary line; but it does not appear that ho
communicated this knowledge to Mr. Marmet and Mr. Kiev-
bolte, president and vice-president of the plaintiff company,
when they together viewed the premises a few days after the bids
for the leasehold were opened. He also pointed out to them at
that time adjacent property leased to his company by parties
CIRCUIT COURT REPORTS— NEW SERIES. 227
1909.] Hamilton County.
other than the city, but he did not attempt to describe that which
was acquired from the city.
Mr. Baird, president of the Winifrede Coal Company, was
also present at this meeting and it appears from his deposition
that he **made a mistake that the railroad track did not belong
to the Winifrede Coal Co., it was owned by the Baltimore &
Ohio Railway and had been put in for our convenience." This
is not a denial of ownership of the land upon which the track
was laid, and Marmet and Kleybolte might well assume that if
the track was laid for the convenience of the Winifrede Co., the
latter owned the land.
The admission of C. G. Roth, Jr., as auditor of the Marmet
Co., in the letter of December 9, 1903, is not binding on the cor-
poration in the absence of express authority to make the same
or a course of dealing from which it may be implied. Belting
Co, V. Gibson, 68 0. S., 442.
If, as claimed by counsel for the defendants, it was the duty
of the plaintiff to examine the records or otherwise verify the
description, then the company was negligent and not entitled to
the relief asked; but we do not understand that under a lease
containing a pertinent description of the land and a covenant
for quiet enjoyment, the lessee is bound at his peril to search the
records or examine the property. The mistake of the defend-
ants, w'ho are presumed to know the boundaries and extent of
the city's property, is apparent, yet they did not discover it
until this controversy arose. W^ith greater reason therefore the
sincerity of the plaintiff in claiming to be misled by the mistake
should not be doubted, unless the circumstances require it; and
this we find to be not the case, although there are facts seemingly
leading to a different conclusion.
The evidence shows the mistake to be material although the
plaintiff did not, for business reasons, use the property in the
manner originally inte^ided, and that it w-as not actually discov-
ered until a short time before suit was brought. It follows
therefore that the plaintiff is entitled to a rescission of the con-
tract (Hayes v. tikidmore et at, 27 0. S., 331). The plaintiff is
not entitled, however, to recover the rents already paid, as it was
in the possession of and enjoyed the entire premises until dis-
228 CIRCUIT COURT REPORTS— NEW SERIES.
Insurance Co. t. McBee. {VoLXII, N. 8.
covery of the mistake, and the rents were paid by reason thereof
and not under a mistake of fact. Clark v. Potter, 32 0. S., 49.
Decree accordingly.
EXCLUSION or FOUNDATION IN S£TTUNC FIR£ LOSS.
Circuit CovLTt of Hamilton County.
Qerman-American Insurance Company v. John McBee et al.
Decided, July 17, 1909.
Insurance — Construction of Section 3691 — Providing that Cellar and
Foundation Bhall Not he Considered as Part of Structure in Set-
tling Loss— Charge of Cowrt with Reference tq Total Loss — Ap-
praisement— Section S64S,
1. Notwithstanding the insurable interest which the owner of a build-
ing has in the foundation upon which it rests, he can not recover
for the foundation where the policy includes It as a part of the
building.
2. Where it is undisputed that the loss was total, a failure on the part
of the court to qualify the definition of "total loss" in the charge
to the jury does not constitute error; and where the building ex-
clusive of the foundation is a total loss, a disagreement as to the
amount of the loss is unimportant and the necessity for an ap-
praisement does not exist.
3. A charge that the jury need not consider whether or not the prop-
erty was vacant at the time the policy was applied for and issued
is not erroneous under the provisions of Section 3643, particularly
when the evidence is undisputed that the agent of the company
had knowledge of such vacancy.
Robert L. Black and J. W. Mooney, for plaintiff in error.
J. T. Ilarison, contra.
GiFFEN, P. J. ; Swing, J., and Smith, J., concur.
It may be conceded that the owner of a building has an insur-
able interest in the foundation upon which it rests ; but if as in
this case the description in the policy of insurance includes it
as a part of the building, it can not be so considered in settling
losses. The purpose of Section 3691, Revised Statutes, was to
prevent the confusion and uncertainty arising by treating the
foundation as a part of the building and to give full effect to
CIRCUIT COURT REPORTS— NEW SERIES. 229
1909.] Hamilton Ck)unty.
Section 3643, Revised Statutes, in case of total loss of the build-
ing.
The illustration suggested by counsel for plaintiff in error of
a policy of insurance upon dwelling-house and furniture therein
contained is not in point, as the furniture is not included as a
part of the building, nor is there any statutory regulation of
such a case except Section 3643, Revised Statutes, which would
still require the insurer's agent to fix the insurable value of the
building at the time the policy is applied for.
The construction of this section contended for would permit
the insurer to defeat its operation in all cases by simply using
the form of policy here sued on.
It is practically undisputed that the loss of the buildings was
total, and the error of the court in not qualifying the definition
of ''total loss" as requested by counsel at the conclusion of
the general charge was not prejudicial. So, likewise, if the
foundation be considered not a part of the buildings, the exclu-
sion and admission of certain evidence set forth in the brief were
without prejudice. It follows also that there was no error in
refusing to submit to the jury interrogatories Nos. 1, 3 and 4.
The charge of the court that the jury need not consider
whether the property was vacant at the time the policy was ap-
plied for and issued was proper under Section 3643, Revised
Statutes, as well as the undisputed evidence that the agent of
the company had actual knowledge of such vacancy. The de-
murrer to the amendment to the second defense alleging a pro-
portionate liability for the cash value of the dwelling-house at
the time of the fire was properly sustained, although a motion to
strike out would have been more appropriate. Insurance Co, v.
Leslie, 47 0. S., 400.
The special instructions refused by the court were requested
upon the theory that the foundation was specially insured, and
thereby a disagreement as to the amount of loss, and necessity
for an appraisement arose; but if the buildings, exclusive of
foundation, were a total loss, the disagreement was unimportant
and a necessity for appraisement did not exist Ohage y. Union
Insurance Co., 85 N. W., 212.
We find no prejudicial error and the judgment will be affirmed.
28:) CIRCUIT COURT REPORTS— x\EW SERIES.
Powers V. Railways. [Vol. XII, N. S.
PROXIMATE CAUSE OF INJURY TO A LOCOMOTIVE
FIREMAN.
Circuit Court of Lucas County.
Carl E. Powers v. HockinA Valley Railway Co. and Lake
Shore & Michigan Soi'therx Railway Co.
Decided, June 26, 1909.
•
Neglig€nc&— Fireman Suffered Injuries in Carelessly Stepping from his
Engine — Proximate Cause — Placing Ouard R€iils and Lights on
Bridges not a Duty of Railway Company — Section 3305, Providing
Joint Liability for Lessor and Lessee of Railway Tracks,
1. Where a fireman is injured in stepping off' his engine backwards and
in the dark, and without making any effort to discover where he
was stepping, the fact that his reason for getting off was that the
engine was out of repair and needed attentidn does not constitute
the proximate cause of his injury or render the railway company'
liable therefor.
2. Nor does the fact that the engine happened to be standing at the time
on a bridge which was un lighted and not provided with guard-
rails add to the responsibility of the <:ompany or eliminate the
element of plaintiff's own negligence as to his safety.
KiNKADE, J.; Parker, J., and Wildman, J., concur.
The court of common pleas directed a verdict in favor of both
defendants at the close of the plaintiff's evidence. Referring to
the negligence charged against the Lake Shore, we think it very
doubtful whether the amended petition stated a cause of action,
and if the trial court had sustained the demurrer which was
filed by the Lake Shore we probably would have affirmed its
action in this regard. There is no evidence of any lease of the
Lake Shore tracks to the Hocking Company. True, there is an
admission in the record that the Hocking Company at the time of
the injury to plaintiff was using that part of the Lake Shore
property with the knowledge and consent of the Lake Shoro.
We do not think the section of the statute (8805) cited, has any
application to the c^se at bar. Even if a lease were shown, the
provision of this section are to cover obligations of the company
CIRCUIT COURT REPORTS— NEW SERIES. 231
1909.] Lucas County.
to the public, as was said by Judge Taft in the 72d Fed. Rep.,
745 and 753, and do not apply to a case 'such as is here pre-
sented. The plaintiff was in no sense an employe of the Lake
Shore Company and that company did not owe to him the duty
of exercising ordinary care in furnishing him a safe place to
work. Upon careful consideration of the record we fail to find
any evidence tending to show that the Lake Shore Company
omitted any duty owing by it to the plaintiff, and our conclusion
is that the trial court was correct in directing a verdict in favor
of that company.
As to the Hocking Valley Company, the negligence charged
was a defective engine, failure to light the bridge and failure to
I)lace guard-rails on the bridge. It is entirely clear that the de-
fective grate bars can not in any way be regarded as the proxi-
mate cause of the plaintiff's injury. At most they mere\v ex-
plain why the plaintiff left his engine when he did. He might
have left the engine for any one of many purposes, and if he had
alighted as he did in this case the result would have been pre-
cisely the same. If a man jumps off an engine in the dark and
in so doing goes over the side of a high trestle or bridge, it is
not very material just what particular duty he was intending- to
perform. The plaintiff had a right to get off his engine whenever
he so desired in the performance of any act connected with his
work which might be proper for him to perform. Had he left
the cab to oil some part of the engine or for any other purpose
the same thing which happened here must have befallen him.
As to the lighting and the guard-rail : It is too clear to need com-
ment that had the bridge been lighted as plaintiff claims it should
have been, then the absence of guard-rails would have been
known to the plaintiff and in that event he would have assumed
the risk of using the bridge in that condition. Hence the only
complaint is the failure to light the bridge. Taking plaintiff's
own story as to how fie was hurt, and w^e have read the evidence
with care, it is certainly difficult to comprehend how he could
have possibly been more reckless of his own safety. No one can
read his evidence and reach any other conclusion than that he
stepped down out of the cab in the dark backwards without the
slightest concern for his own safety. The company is not charged
S^S CIRCUIT COURT REPORTS— NEW SERIES.
Powers V. Railways. [Vol. XII, N. 8.
with negligence in not furnishing lanterns for the use of its men
when in dark places, but the charge and claim is that places of
this kind should be lighted so that the railroad men may go with-
out the aid of lanterns, and if the company does not light all
places along its track, and especially places near a railroad yard,
then trainmen may assume that whenever and wherever the train
or engine chances to stop, that is a safe place to step off back-
wards in the dark, without taking any precaution to learn what
the real surroundings are. It scarcely seems necessary to do
more than to state such a proposition in order to make manifest
the unreasonableness of it. Railroading is hazardous work, and
it is common knowledge that railroad property is not generally
lighted. Switch and signal lights are not intended to light up the
yards, but are intended to indicate the position of switches and
targets. They are no more intended to illuminate railroad prop-
erty generally than the signal lights oji vessels are intended to
light up the lake or the ocean. The railroad business in this
country is not in its infancy and the manner of moving trains
and cars is thoroughly known. The fact that railroad tracks and
trestles are not commonly lighted is well known, and it is also
common knowledge that the bridges and trestles are not provided
with guard-rails to keep the men from falling off. Neither are
there guard-rails on the tops of freight cars to keep brakemen
from falling off while running along the top of the train in the
dark. As has been said railroading is dangerous work at best,
and no one engaged in it is warranted in going heedlessly about
the discharge of duties requiring great care.
No system of fixed lights along a railroad property could afford
the protection to the men, with the constant changing of positions
of both men and cars, that is furnished by the individual lanterns
in the hands of the men. The universal custom on all well-man-
aged railroads is sufficient proof that the way the work is being
done is the practical way to do. The Legislature of Ohio has
enacted a great many laws for the protection of railroad employes
and the safety of persons and property being transported over
railroads, embracing the lighting and heating of cars, air brakes,
safety appliances, blocking of frogs, and a great many other
things which might be enumerated, and it is certainly worthy of
CIRCUIT COURT REPORTS— NEW SERIES. 288
1909.] Lucas County.
note that with all the attention this important subject of rail-
roading has been given by the Legislature, no one has ever
thought it necessary to require that railroad bridges and trestles
must be lighted and equipped with guard rails so that train men
who thoughtlessly step off the train in the dark at such points
will not get hurt. ,
The Hocking Valley Company had no right to light this
bridge or to place guard rails upon it, as it was the property of
the Lake Shore Company. It will be said that this being true,
then the Hocking Company had no right to use it in that condi-
tion. Had the bridge and the tracks been upon the property of
the Hocking Valley Company, we do not think any obligation
would have rested upon that company to light the bridge and
erect the guard-rails as contended for by plaintiff.
That plaintiff alighted from the engine entirely of his own mo-
tion is evidenced from what he says he did and said at the time.
He told the engineer what he was going to do and proceeded to
do it. The record does not show what the engineer said. If the
plaintiff had been allowed to leave in the bill of exceptions what
was first printed there and afterwards erased (but still is in such
form as it can be read), we think it would fall very far short of
the effect claimed for it in argument concerning this conversation.
At any rate, it is not now a part of the record, and we see no
prejudicial error in the rulings of the court in this regard. Our
conclusion is that the record discloses no omission of duty on the
part of the Hocking Valley Company, hence the action of the
court of common pleas in directing a verdict for that company
was correct and the judgment entered thereon will be affirmed.
284 CIRCUIT COURT REPORTS— NEW SERIES.
Traction Co. v. Holbrock. [Vol. XII, N. S.
INJURY AT A CROSSING OF ELECTRIC AND STEAM
RAILWAY TRACKS.
Circuit Court of Hamilton County.
The Cincinnati, Dayton & Toledo Traction Co. v. William
G. Holbrock.
Decided, May, 1909.
Negligence — Special Instructions to Juru — Denial of a Right — Error —
Evidence — Settlement with One Joint Tort Feasor — Section 3443-6.
1. A covenant by a plaintiff that he will not sue one joint tort feasor
is not a bar to an action brought by him against another Joint tort
feasor.
2. It is erroneous to refuse to give a special instruction asked for by
the defendant to the effect that if the jury found that the injury
was due to the negligence of the tort feasor who was not a party
to the action, and the defendant was not negligent, the verdict
should be for the defendant.
W. C, Shepherd and Murray Seasongood, for plaintiff in error.
C M, and E, W. Cist, contra.
The plaintiff, a passenger on a traction car, was injured at a
crossing of traction and steam railway tracks, the injury con-
sisting chiefly of disfigurement of his face. A judgment was en-
tered below in his favor for $3,000 against the traction com-
pany. A settlement had previously been made with the steam
railway company.
GiFPEN, P. J.; Swing, J., and Smith, J., concur.
The admission of evidence of the defective brake and the con-
dition of the track was proper as tending to prove the negligent
act complained of, which, although charged in broad and compre-
hensive terms, comes within the rule stated in the case of Bav's
V. Ouarnieri, 45 O. S., 470.
We think the court erred in sustaining the objection to the
following question put to the attending physician:
** Wasn't it possible at the time to have removed the oil and
other substance that is now shown there?*'
CIRCUIT tJOURT REPORTS— NEW SERIES. 285
1909.1 Hamilton County.
But by subsequent questions and answers the error is shown
to be not prejudicial.
There was no error in permitting the plaintiff to describe the
effect of the sear on his face in his business relations.
Special instruction number ten given at the request of plaintiff
is as follows:
**It was the duty of the motorman on approaching each of
the separate tracks of the railway company to look and listen
before proceeding with his street car upon said track, and if you
find h^s failure to perform this duty directly contributed to cause
the collision between the street car and the locomotive and the
injury to the plaintiff, then the defendant, the traction company,
is liable in this case, and it will be your (Juty to find a verdict
for the plaintiff."
The provisions of Section 3443-6, Revised Statutes, do not re-
lieve the motorman from the duty of exercising care for tlje
safety of the passengers, and unless he did look or listen he
could not hear or see the signal from the person sent forward
to ascertain if the way is clear. There was therefore no error
in giving the instruction.
The first special instruction requested by the defendant to be
given in writing before argument was as follows:
*'The fact that the railroad company was negligent will not
excuse the traction company if it also was negligent; but if you
find that the railroad company was negligent and that the
plaintiff was injured by reason of its negligence and that the
traction company was not negligent, your verdict will be for the
defendant. '' ^
This instruction required the jury to first find that the de-
fendant traction company was not negligent, and is so plain and
simple that it is difficult to conceive upon what theory the court
refused to give it.
Special instruction number three excludes all negligence other
than that of the motorman and was properly refused. The er-
ror, if any, in refusing to give instructions four and five was
cured by giving number nine. So likewise the subject-matter
of number eight is fully covered by numbers six and seven.
Exhibit number three offered in evidence by the defendant is
only a covenant on the part of plaintiff not to sue the Pittsburg,
286 CIRCUIT COURT REPORTS— NEW SERIES.
Embshoff v. Embshoff. [Vol. XII, N. 8.
Cincinnati, Chicago & St. Louis Railway Company, and as such
is not a bar to an action against the defendant, an alleged joint
tort-feasor. Cooley on Torts, Section 161; City of Chicago v.
Babcock, 143 111., 358.
The apparently harsh rule of the common law as expressed in
the case of Ellis v. Bitzer, 2 Ohio, 89, should not be extended
beyond its terms. In that case the court found that Williams
and Adkins were by the compromise to be wholly discharged
from liability on account of the trespass, and hence all the other
trespassers were discharged.
The defendant was clearly negligent and the verdict is fully sus-
tained by the evidence. In the absence of any opportunity to
observe the plaintiff — the scars on his face and his general condi-
tion as the result of the collision — we are not warranted in hold-
ing the amount of damages excessive.
The refusal to give special instruction number one in writing
before argument as requested by defendant was certainly pre-
judicial, because it was important for the jury to know that the
negligence of the railway company would in no way bind the
defendant unless by its own negligence it contributed and be-
sides, as said in the case of MqnroeviUe v. Root, 54 0. S., 523, at
527: ''the coiirts can not say that there is no substantial error
in a denial of the right."
Judgment reversed and cause remanded for a new trial.
BNFORCEMKNT OP BOND ON APPEAL IN DIVORCB AND
ALIMONY CASK.
Circuit Court of Hamilton County.
George II. Embshoff v. Lillie Embshoff.
Decided, June 5, 1909.
Divorce and Alimony — Adequacy of Alimony can not be Collaterally
Attacked — But the Installments m^y be Collected by Execution —
Action on Appeal Bond — Jurisdiction under Section 587 tohere an
Equitable Issue is Tendered,
Overdue installments of alimony are in legal effect a judgment, which
may be enforced by an action on the bond given on appeal from the
order fixing the amount of alimony without first obtaining consent
of the court rendering the decree.
CIRCUIT COURT REPORTS— NEW SERIES. 287
1909.] Hamilton County.
Eugene C, Pociey, for plaintiff in error.
Chas. H. Jones, for the wife.
In the court below the wife in this case was decreed $4.50 per
week alimony. The husband appealed to the circuit court,
which granted the same judgment as the common pleas, and re-
manded the case to the common pleas for execution. There-
after the common pleas court conunitted the husband to jail
for contempt in failing and refusing to pay the judgment, and
the wife brought an action before a justice of the peace on the
bond for appeal to the circuit court for $40 unpaid alimony.
Judgment having been granted by the justice, the case was ap-
pealed to the common pleas by the surety on the bond, where judg-
ment was again obtained on the bond by the wife. Prom that judg-
ment the present proceedings in error were prosecuted, the surety •
claiming that the jurisdiction of justices on appeal bonds is
limited by Section 587; that the bond (sued on in this case)
to secure execution of the judgment in the circuit court was re-
leased by that court when it remanded the case to the conunon
pleas for execution; and that suit could not be brought upon
the bond without the consent of the court, citing Ghienther y.
Jacobs, 44 Wis,, 354, which holds:
*'No other court, without leave 6f the court in which the di-
vorce has been granted, can take jurisdiction of an action on the
bond given by order of the divorce court to secure payment of ali-
mony; and upon application for such leave the divorce court
may order or withhold payment of arrears in whole or in part,
and may grant or refuse leave to enforce such payment by action
at law or on the bond, and the action when brought with its
leave is as subject to its discretionary control as the judgment
itself.''
QiPFEN, P. J., ; Swing, J., and Smith, J., concur.
While the case of Ghienther v. Jacobs, 44 Wis., 354, sustains the
contention of counsel that the demurrer to the petition should
have been sustained, yet the decisions in this state lead to a
different conclusion.
Alimony decreed in installments may be enforced by execution.
Piatt V. Piatt, 9 Ohio, 37.
288 CIRCUIT COURT REPORTS— NEW SERIES.
Watson V. Biddle, Treasurer. [Vol. XII, N. 8.
The adequacy of alimony decreed can not be collaterally drawn
in question especially by a stranger to the suit. Ilare v. Gibson,
32 0. S., 33.
The husband is not complaining, and the installments due are
in legal effect a judgment, the collection of which may be en-
forced by an action upon' the appeal bond, without first obtaining
the consent of the court rendering the decree.
Judgment affirmed.
Same judgment in case No. 4715.
UABILITY FOR LIQUOR TAX WHERE SALES
ARE SMALL. -
Circuit Court of Lucas County.
Katherine Watson v. Thomas Biddle, Treasurer.
Decided, July 2, 1909.
Tax on Liquor Business — TraJBfie Cc/nried on in Small Quantities — Seller
Liable for the Tax — Notwithstanding the Sales are Made in Con-
nection iDith an Illegal Business — Section .^36.^-9.
1. The purchase of a few pints of beer at a time and the sale of it at a
profit constitutes trafficking in intoxicating liquors' as defined by
the statute, and renders the seller liable to payment of the tax on
trafficking in spirituous, vinous, malt or other intoxicating liquors.
2. The fact that the sales are made in connection with an illegal busi-
ness does not»bar the state from enforcing collection of this tax.
KiNKADE, J. ; Parker. J., and Wildman. J., concur.
We have examined the briefs submitted by counsel, and we
have read with a great deal of care the evidence in this case, the
whole of it. It seems to us that the evidence here clearly shows
that it w^as the habit at this hou.se, which was presided over by
Katherine Watson, to procure beer for people who came there,
selling it to them, or, as she says, delivering it to them, and
making forty cents a pint profit. We can see no diflPerence be-
tween purchasing a few pints of beer and selling it to a party
at an increased price of forty cents a pint, and purchasing a
CIRCUIT COURT REPORTS— NEW SERIES. 239
1909.] Lucas County.
very much larger quantity of beer and selling it at any other
profit. It seems to me on reviewfng this evidence in detail, that
the attempt here on the part of the keeper of this resort is a mere
subterfuge, nothing short of it ; it is a mere method by which
the law is avoided, and if this could be countenanced, we see no
reason why a saloon might not be in the immediate vicinity, for
that matter, either upstairs or down stairs, in connection with
this kind of a resort and might have a dummy waiter, and if
the dummy refused to work a waiter that was not quite so dumb
could be substituted, so the place could be carried on with the
same result that has been carried on here, a profit to every sale.
It has not been urged here as it was in one case that we have
examined, that the tax could not be insisted on here because the
parties were engaged in an illegal business, and in violation of
the statutes of Ohio, and that they could be punished in that
wav. But that is not the law. And it is well that it is not, be-
cause, as said in that case, if that were so then the parties who
were violating the law might escape paying the tax while those
who were not violating it would have to pay.
We have read the evidence of all the inspectors and con-
sidered the report, which is somewhat brief, most of it getting
into the examination and going in without objection, but we think
under the form that the examination took, the report, brief as it
is, and for what it is worth, is competent evidence in the case.
The evidence in the case as a whole shows that this constitutes
a trafficking in intoxicating liquors as defined by the statute. Of
course the tax being upon the duplicate makes a prima facie case
under the statute, not only of the amount and its non-payment,
but of the validity of the tax. We have considered the record
without special regard to that. We think the showing is ample
here to make the finding that the petition should be dismissed
and the injunction prayed for denied, and that will be the ruling
of the court.
240 CIRCUIT COURT REPORTS— NEW SERIES.
■ - ^ ■ - r ■ I ■ -I
Cincinnati v. Baumer et al. (Vol. XII, N. S.
DETERMINATION OF UAVUTY UNDER A BOND.
Circuit Court of Hamilton County.
The City op Cincinnati v. J. H. Baum£r et al.
Decided, June 13, 1908.
Bond — For Performance of Public Work — Default of Contractor —
Methods of Ascertaining Liability of Sureties — Discretion in Re-
letting Contract — Section 1536-553.
In the absence of a showing of abuse of discretion, the sureties of a
defaulting contractor for public work will not be heard to com-
plain, because the contract was relet to the next lowest and best
bidder and the loss thereby sustained was taken as the measure of
their liability.
Jona^ B. Frenkely for the Water Works Trustees.
City Solicitors, for the City.
Z>. F. Cash, for the defendants.
GiPPEN, J.; Swing, P. J., and Smith, J. concur.
The bond in suit is statutory (Sec. 1536-553 R. S.), and in de-
termining its eifect reference should be had to the statute which
authorizes its execution and prescribes its objects. Secrist et
al V. Barbee & Royston, 17 0. S., 426.
The damages could be easily ascertained in two ways, either
by reletting the contract to the next lowest and best bidder, or
by readvertising and reletting to the lowest and best bidder.
The commissioners of water works in the exercise of the discre-
tion conferred by statute relet the contract to the next lowest
and best bidder at a loss of more than twice the amount of the
bond, and there is nothing in the record showing any abuse of
discretion, or that a readvertisement would have resulted iu
loss to the city.
Judgment reversed and judgment for plaintiff in error.
CIRCUIT COURT REPORTS— NEW SERIES. 241
1909.] Hamilton County.
EQ\JfTY AND ACCOUNTINC.
Circuit Court of Hamilton County.
James Story v. Mrs. M. W. Knapp et al.
Decided, May, 1908.
Conversion — Claim for Recovery on Account of — Not Equitable and
not Appealable, When — Creation of Trust in a Publication — Action
for Profits Resulting — Jurisdiction as to Copyrighted Book Plates
and in Actions for Recovery of Specific Personal Property — Plead-
ing.
1. A claim for wrongful conversion does not become an equitable ac-
tion by reason of a mere averment that the amount due is unknown,
coupled with a prayer for an accounting, when the allegations of
the petition do not otherwise require a decree granting equitable
relief; this being true, such an action is not appealable.
2. Where a publication is given by its founder in trust to a society,
and in reliance on the trust thus created large sums were con-
tributed by members of the society which were used in extending
the circulation and value of the publication, equity will not require
the trustees of the society to account to the estate. of the donor of
the publication for profits derived herefrom.
3. There can be no recovery of profits arising from the publication of
the books of an author unless the books were copyrighted, and in
that event the state courts would be without jurisdiction.
A, An action for recovery of book-plates and electrotypes is an action
for recovery of specific personal property and can not be determined
by the circuit court on appeal.
Roettinger & Gorman and Province Pogue, for the ancillary
trustees and creditors.
J. W. Sparrow, C. A. J. Walker, C\ W. Baker and David
Davis, for the Knapp estate.
Peck, Shaffer & Peck and W. A. Hicks, for the Bible School.
QiFFEN, J. ; Swing, P. J., and Smith, J., concur.
The claim of Jackson W. Sparrow, as administrator de bonis
non of the estate of Martin W. Knapp, deceased, to the money
* For opinion in another branch of the same case, see Story v. Knapp et
al, 5 O. L. R., 55.
242 CIRCUIT COURT REPORTS— NEW SERIES.
story V. Knapp et al. [VoLXII.N. 8.
on deposit in the Second National Bank and the Cincinnati Sav-
ings Society in the name of Martin W. Knapp at his death is
based upon the wrongful conversion of the same by the defend-
ant trustees, and does not arise from the same transaction, nor
transactions connected with the same subjects of action as the
equitable claims stated in his petition. The averment that he
does not know the exact amounts and therefore asks an account-
ing does not make it an equitable cause of action. There is no
averment that the accounts are complicated or involved, or that
the banks refuse to disclose the amounts, nor is there any other
averment in his petition or in the answer of the trustees requir-
ing a decree granting equitable relief in relation to such deposits.
The causes of action thus stated are fo? the recovery of money
only and therefore not appealable (City of WeUston v. Morgan,
59 0. S., 147; Lange v. La7ige et al, 69 0. S., 346).
Although the publication known as the Revivalist was origi-
nally the property of Martin W. Knapp, we find that by the
declaration of June 21, 1900, he gave the same in trust to the
society known as *' God's Bible School," and by subsequent
declarations ratified such gift. Large sums of money were con-
tributed evidently upon the faith of such declarations and the
trust thereby created, and materially aided in establishing the
paper and increasing its circulation. It would therefore be con-
trary to every principle of equity to now require the trustees of
the society to account to the administrator for the profits and to
deliver to him the publication and the rights incident thereto.
The conclusion applies as well to the publication known as
Sparkling Waters, The demand for an account of the profits
arising from the publication and sale of certain books written by
Martin W. Knapp has no foundation unless the books were copy-
righted by the author, and in that event, the validity of the copy-
right being involved, the state courts are without jurisdiction.
The cause of action stated in the petition of the administrator
for the recovery of the book-plates and electrotypes existing at
the death of Martin W. Knapp is one for the recovery of specific
personal property and can not be heard and determined by this
court on appeal, and the judgment of the common pleas court
as to the right of possessi<)n an4 the title to such property a^
CIRCUIT COURT REPORTS— NEW SERIES. 248
1909.1 Lucas County.
well as the money in bank is final. The appeal of such causes of
action should therefore be dismissed for the want of jurisdiction,
and petition of the administrator as to all other causes of action
be dismissed. We are of opinion that $2,000 is a reasonable com-
pensation for services rendered by counsel who represented the
trustees in the common pleas court and that $200 is a reason-
able compensation for the services rendered by the master.
There being no dispute a» to claims of creditors such finding and
decree as counsel shall agree upon may be entered, and the cause
will be remanded to the common pleas for execution.
ACTION rOR BREACH OF WARRANTY Or GOODS.
Circuit Court of Lucas County.
VooRHEES Rubber Company v. Union* Supply Company.
Decided, June 26, 1909.
Evidence— Objections to Questions Should be Made before Answered —
Traveling Salesman — Services by. Outside of Regular Line of
Work — Warranty of Ooods — Custom — Contracts.
1. It is not correct practice to postpone an Qt)jection to a question until
it develops what the answer will be, and then move to strike the
answer out; and where it becomes necessary to move to strike out
part of an answer, the motion should clearly state what part of the
answer is embraced therein, or it will be the duty of the court
to overrule the motion.
2. While it is true that a traveling salesman, charged only with the
duty of selling goods, has no power to modify a contract made
for his employer, it is possible that he has rendered services for
his employer in the way of adjusting differences which may have
arisen or in completing the contractual relation, which are not
within his ordinary line of duty.
3. The same rule which permits a buyer to sue on a breach of warranty
without first returning the goods, also relieves him from the neces-
sity of shipping out the goods which he still has remaining on
hand with the accompanying risk of injury to his trade, after a
reasonable test has made it apparent that the goods are of inferior
quality.
4. While custom may aid in construing a contract, and parties will be
considered as having entered into a contract^ with reference to an
244 CIRCUIT COURT REPORTS— NEW SERIES
■ - - - - ■ ■ - - _
Rubber Co. v. Supply Co. [Vol. XII, N. &
established custom, yet custom can not be substituted for the
plain provisions of the contract.
E. J, Chittenden and C. W, Kirkley, for plaintiff in error.
£. E. Davis, contra.
KiNKADE, J.; Parker, J., and WiLDMAN, J., concur.
Jury waived and tried to the court. The errors relied on
are, first, admitting incompetent evidence; second, excluding
competent evidence ; and third, verdict contrary to the evidence.
We have examined the record with care, and if counsel will read
the record with equal care we think they will see that the claims
urged in argument as to the errors of the trial court on mp.tters
of evidence are not sustained by the record in this, that the ob-
jections and motions to strike out are not timely or properly
made. We do not regard it as correct practice to defer object-
ing to a question or answer until after counsel sees what the an-
swer is to be, and then object and move to strike it out. Where
a question calls for conversation which is regarded as incompe-
tent evidence, cQunsel may not delay objecting until the con-
versation is given, and then if found to be undesirable object
and move to strike out. When a motion is made to strike out
evidence the motion should state clearly what part is asked to be
stricken out; otherwise the motion should be denied. Counsel
would have some difficulty in this case in designating just what
was embraced in certain motions of this kind that were made.
The contention of counsel for plaintiff in error that a travel-
ing salesman whose duty is only to sell goods has no power to
modify a contract made for his employer is correct as a general
proposition. But it is not necessary to hold that Mr. English
had power to modify the contract between the parties in order
to sustain the decision of the trial court. That he performed serv-
ices for his employer in connection with completing the contract-
ual relations between the parties and later on, in adjusting
differences that arose, somewhat out of the ordinary duties of a
traveling salesman, is clearly manifest. As general sales man-
ager he seems to be about the only one speaking for his "corpo-
ration employer, except one Mr. Covalt, occupying a like position
and performing similar services.
CIRCUIT COURT REPORTS— NEW SERIES. 245
1909.] Lucas County.
With the element of express warranty as to the quality of
these goods, the defendant in error needed no modification on
which to base an action for breach of warranty. Counsel are
familiar with the case in 39 O. S., 671, and other decisions of
our Supreme Court, that where there is an express warranty the
buyer does not need to return the goods in order to recover for
breach of warranty. That there was an express warranty in this
case we think was clearly shown, and that there was a breach of
that warranty was established by the evidence presented by the
defendant in error. The tests made by the defendant in error
were' sufficient to shoMr that the goods were of inferior quality.
It was not the duty of the defendant to further demoralize its
own business by shipping out to its customers for trial the re-
mainder of the goods, as the only method of demonstrating their
unfitness for use. Such a course could not benefit either party
to the contract.
Much of the evidence offered on the trial for the purpose of es-
tablishing a custom which was claimed would have defeated the
counter-claim was properly excluded by the trial court. We
think even more of it might have been excluded. We do not see
how the custom contended for could in any. way be permitted
to contradict the contract between the parties. Custom often
aids in construing a contract, but it can not be substituted for
the plain provisions of a contract at variance with the terms of
the custom. In order to maintain that one party to a contract
has empowered the other party to the contract to decide any and
all questions which might arise between them touching the sub-
ject-matter of the contract, we are inclined to think the party
making such claim would need something stronger than a cus-
tom of the trade. We are not unmindful of the wonderful scope
sometimes given to this doctrine that parties must have entered
into a contract with reference to the well known and fullv es-
tablished custom, but we are not aware of any well considered
case extending the doctrine to the length contended for here.
We find no prejudicial error in the record, and the judgment
of the court of common pleas will be affirmed.
246 Cl&CUit COURT REPOlltS— NEW SERIES.
Laidlaw-Dunn-Gordon Co. v. Miller. [Vol. XII, N. 8.
INJURY TO EMPLOYE FROM EXPOSED COG WHEELS.
Circuit Court of Hamilton County.
Laidlaw-Dunn-Gordon Company v. George J. Miller.
Decided, July 10, 1^09.
Negligence — Doctrine of Assumed Risk without Application — Where
there hcLS been a Failure to Afford Protection Against Injury by
Machinery — Unsafe Place to Work by Reason of Slippery Condition
of Floor — Charge of Court — Evidence — Section .iSG^SOc,
1. The doctrine of assumed risk has no application where the risk
which it is alleged was assumed arose out of a violation of the
statutory obligation of the master to protect his employes against
injury by machinery and appliances.
2. It is not error to exclude the opinion of an expert witness as to
whether certain cog-wheels were "exposed/* where the jury viewed
the premises and had before them the evidence with reference to
said gearing.
3. A charge of negligence in permitting oil and grease to accumulate
on the floor where plaintiff was obliged to stand while at work. Is
eliminated from the case by a finding by the Jury that the acci-
dent was due to .exposed gearing; and the Judgment will not be re-
versed because of refusal to give special charges relating to either
assumption of risk or the slippery condition of the floor.
Rohertson & Buchwalter, for plaintiff in error.
Strieker & Johnson, contra.
Smith, J.; Gippen, P. J., and Swing, J., concur.
The acts of negligence complained of in the amended petition
are:
1st. **That the defendant carelessly and negligently failed
to enclose said cog-wheels in a casing, box, or in any other man-
ner to properly guard or protect him against danger while en-
gaged in the operation of said lathe. ' '
2d. **That the defendant further negligently and carelessly
caused and permitted oil and grease to accumulate upon the
floor on which the plaintiff was obliged to stand to operate said
lathe, thereby causing the floor to become slippery, unsafe and
likely to cause the plaintiff to fall while operating said lathe."
>>
CIRCUIT COURT REPORTS— NEW SERIES. 24?
■ «
- - -- ■■■_■- ^ ,
1909.] Hamilton County.
It will be seen from the above that this action is brought under
Section 4364-89c, Revised Statutes, relating to protection against
injury by machinery.
The jury in addition to its general verdict in favor of de-
fendant in error, also in answer to an interrogatory propounded
by plaintiff in error, found that the approximate cause of the
injury was, "in that the defendant knowingly allowed the cog-
wheels to be exposed in a manner that was dangerous to the
man operating the machine.''
Prom the evidence in the record and the finding of the jury,
we are satisfied that plaintiff in error was negligent in respect
to a duty imposed upon it by this statute. This law has hereto-
fore been before the courts and construed. Ziehr v. Maumee
Paper Co,, 7 C. C— N. S., 144; Bresewski v. Royal Brush <&
Broom Co., 8 C. C. — N. S., 457; Republic Iron & Steel Co, v.
Yanuszka, 166 Fed. R., 684.
Under the statute and these decisions the doctrine of assumed
risk has no application where the alleged risk assumed is in vio-
lation of a master's statutory obligation to protect machinery
and appliances.
We do not think there was error in the trial court refusing to
admit the testimony of the witness MuUer as to his judgment
as an expert as to whether gearing on the lathe in question was
an exposed gearing or whether the cog-wheels were exposed or
not. This was the issue of fact which the jury were called upon
to determine. They had viewed the premises and had the evi-
dence, and the judgment or opinion of a witness in this regard
could not have availed them anything.
**A question to a witness which calls for his opinion on the
precise issue which the jury is sworn to determine from the evi-
dence is incompetent." Fowler v. Delaplain, 79 0. S., 279.
We find no error in the court refusing the special charges asked
by plaintiff in error. Some contain the question of assumption
of risk on the part of the plaintiff by reason of the exposed cog-
wheels, while others relate to the oily condition of the floor.
In the view we take of the case, the assumption of risk on the
part of the defendant in error not being in the case, and the
^48 CIRCUIT COURT REPORTS— NEW SERIES.
ai » ■ - - ^ wi " r ■ ■ I m^t^^
In re Jones Law Petition. [Vol. XII, N. 8.
jury having specifically found in answer to the interrogatory
propounded that the accident was due to the cog-wheels being
exposed) the second act of negligence complained of is also out
of the case.
We do not think the verdict [$3,000] is excessive. The stat-
ute provides **That for injury not resulting in death, plaintiff
may recover a sum not exceeding $3,000 as the jury may find
proportioned to the pecuniary damages resulting from the in-
jury. ' '
This, therefore, being strictly within the province- of the jury
to determine from all the evidence, such finding will not be dis-
turbed. There being no errors in the record the judgment will
be affirmed.
PROCCDUlUt UNDER THE JONES LOCAL OPTION LAW.
Circuit Court of Hamilton County.
Ex PARTE Petition to Prohibit the Saljs op Intoxicating
Liquors as a Beverage in the Residence Dis-
trict OF Hyde Park.
Decided, March 22, 1909.
Liquor Laws — Jurisdiction of the Circuit Court — Discretion in Betting
a Case for Trial — Time for Filing Findings of the Judge and for
a New Trial,
*
1. The circuit court has Jurisdiction to reverse the Judgment In a
Jones law local option case and remand the case for a new trial,
notwithstanding no express provision therefor is contained In the
act.
2. The setting of cases for hearing and the granting of continuances are
largely matters of Judicial discretion, and error wlH not lie to the
action of a court with reference to these matters unless an abuse
of discretion is shown.
3. A reasonable time should be allowed for a new trial after the filing
with the clerk of the municipality of the findings of the Judge on
the original hearing.
Herron, Oatch d: James, for the petitioner.
Jerome D, Creed, for the contestants.
CIRCUIT COURT REPORTS— NEW SERIES. 249
1909.] Hamilton County.
QiFPEN, P. J.; Smith, J., and Swino, J., concur.
The act **to further provide against the evils resulting from
the traffic in intoxicating liquors by providing for local option in
residence districts of municipal corporations" (98 0. L., 68)
having been held constitutional, this court is authorized, when a
petition in error is filed in accordance therewith, to reverse the
judgment and remand the case for a new trial, although no ex-
press provision therefor is contained in the act Lessee of Coch-
ran's Heirs v. Loring, 17 Ohio, 409; Missionary Society v. Ely
et al, 56 0. S., 405.
The provision of the act conferring final jurisdiction upon this
court means simply, as shown by the latter part of the sentence,
that ** there shall be no appeal or error proceeding allowed
from such a decision."
The setting of a case for hearing, especially when involving
questions of public interest, and the action of a court in refusing
a continuance are largely matters of judicial discretion to which
error will not lie unless such discretion be abused; and we find
no such abuse as was prejudicial to the rights of plaintiflp in
error.
While the act requires the findings of the judge upon the origi-
nal hearing to be filed with the clerk of the municipality or
council not more than forty days from the filing of the petition,
there is no provision fixing a time within which the new trial shall
be had and the findings filed with the clerk — hence a reasonable
time, under all the circumstances, will govern.
The questions put to the witnesSj Kramer, at page 105 of the
bill of exceptions, involved what he himself recognized as con-
clusions of law and drew out no facts from which to determine
whether the district described in the petition was residential;
but his testimony at page 102 shows it to be such.
Finding no prejudicial error in the record the judgment will
be affirmed.
250 CIRCUIT COURT REPORTS— NEW SERIES.
Railway v. Stewart [VoL XII, N. 8.
CARE AT A RAS.WAY CROSSING.
Circuit Court of Fayette County.
B. & 0. R. R. Co. V. Hugh K. Stewart.*
Negligence — Buggy SUruck hy Train at Railtoay Crossing — Evidence
Establishing Negligence in Failing to Look and Listen — Error in
Refusing to Direct Verdict for the Railway Company.
It is error to overrule a motion to direct a verdict for the defendant
railway company in a crossing injury case, where the testimony
offered on behAlf of the plaintiff shows that she was familiar with
the crossing and its surroundings and the schedule of the trains,
and that others similarly situated as herself with reference to the
crossing heard the warning whistle and saw the approaching train
in ample time for her, had she been proceeding with due care, to
have become aware of the approach of the train and avoided the
collision.
Cummings, McBride <& Wolfe and F. A. Durban, for plaintiff
in error.
Humphrey Jones, contra.
DusTiN, J. ; Wilson, J., and Sullivan, J., concur.
Heard on error.
We do not deem it necessary to state here the issues between
the parties and upon which the judgment; sought to be re-
versed by the plaintiff in error, was entered in the court below,
since they fully appear on the face of the record. A number of
grounds of error are set forth in the petition in error, and yet but
two were seriously urged and relied upon by counsel, viz.:
That the court below erred in overruling the motion of plaintiff
in error to direct the jury to return a verdict in its favor at the
conclusion of the testimony of plaintiff below; and, that the
whole testimony produced to the jury shows the verdict is mani-
festly against its weight. If the record shows upon its face
either of these errors to be manifest, then the other grounds set
forth in the petition in error are no importance.
* Affirmed by the Supreme Court without report, Steivart v. B. d 0.
Railroad Co,, 77 Ohio State, 603.
CIRCUIT COURT REPORTS— NEW SERIES. 261
1909.] Fayette County.
Upon the first ground, counsel for plaintiff in error claims
that the testimony of plaintiff below shows that Mrs. Stewart was
negligent in aproaching the crossing where the accident occurred,
and that her negligence was the proximate cause of her injuries.
The care required of her depended upon the suroundings of the
crossing, her knowledge of the same, and of the time trains were
scheduled and expected to pass at this point. The testimony of
plaintiff below shows that Mrs. Stewart knew the crossing well,
and its surroundings, from having frequently used it coming
from and going to her home ; also that she knew that it was near
or about the time that the train with which she collided was ex-
pected to pass. As she was passing along in front of the ceme-
tery, named and located in the record as a point from which
a train coming from the east could be seen, after passing the
elevator located at the station to the east, many of the witnesses
called by the plaintiff below, who were in and about this ceme-
tery, heard the whistle sounded on the approaching train. Some
of those who heard it watched Mrs. Stewart, because notwith-
standing the signal she continued on toward the crossing, ap-
parently not heeding the signal and unconscious of the train's
approach.
These witnesses were located at the time the signal was given
precisely as Mrs. Stewart was in relation to the crossing, and the
buildings claimed to have been obstructions. The wind was
from the same direction as to them as it was to her. She claims
to have been listening for signals and the noise of an approach-
ing train, and heard neither. There was no occasion for these
other witnesses listening for either, and yet they heard the
signal distinctly. The care devolving upon her was to look and
listen — to look for the purpose and with the intent of seeing, and
to listen for the purpose and with the intent of hearing the ap-
proach of a train. Neither the wind nor the obstructions near
the station interfered with the plaintiff's other witnesses below
from hearing the signal; hence the query naturally follows, if
she was listening, with the purpose and intent of hearing, why
did she not hear the whistle? If it was the noise of her buggy,
it was her duty to have stopped it. Penna, Co. v. Morel, 40th
Ohio State, 338.
262 CIRCUIT COURT REPORTS— NEW SERIES.
Railway v. Stewart. [VoL XII, N. 8.
A railroad crossing is a known place of danger. Where the
surroundings increase the danger, greater care must be observed
by the traveler upon the highway in approaching for the pur-
pose of crossing. As Mrs. Stewart approached the crossing,
the care devolving upon her increased as she neared it; and
after she passed into the cut, where she could not see, her duty to
listen continued, and if prevented from hearirig by the noise of
her buggy, it was her duty to have stopped the noise and listened
with the purpose and intent of hearing. As she could not see
up and down the track just before going upon the crossing, it
was her duty to have stopped and listened before attempting to
cross. According to her own testimony and that of other wit-
nesses called by plaintiff below, she did not do this at any point
before going upon the crossing. This was all shown by the tes-
timony of the witness called by the plaintiff below, and in our
opinion was negligence upon the part of Mrs. Stewart, but for
which the accident would not have occurred. The negligence
charged against the railroad company may be conceded, but not-
withstanding its negligence, had Mrs. Stewart not been negli-
gent, she would not have been injured. The testimony of de-
fendant below did not support the averments of the petition of
. plaintiff below that Mrs. Stewart was not negligent.
Therefore the motion of plaintiff in error for a verdict in
its favor, at the conclusion of the testimony of plaintiff below,
should have been sustained and the petition of plaintiff below
dismissed. There are no other errors apparent upon the record
prejudicial to plaintiff in error. The judgment of the court be-
low will be reversed and the judgment which should have been
rendered upon the motion in the court below will be rendered
here, and the petition of defendant in error dismissed at his
costs. Exceptions for defendant in error may be noted.
CIRCUIT COURT REPORTS— NEW SERIES. 258
1909.] Hamilton Ck>unt7.
OWNERSHIP OF PROPERTY AS BETWEEN HUSBAND
AND WIFE.
Circuit Court of Hamilton County.
Edward H. Van Ingen v. Gus J. Peterson et al.
Decide4, May 1, 1909.
Presumption — As to HuBhand's Means being Used in the Purchase of
Property Standing in the Name of His Wife — Action to Subject to
Husband's Debts — Burden of Proof — Circumstantial Evidence,
The rule that the burden of proof rests upon the plaintiff, and does not
shift to the defendant by reason of presumptions In his favor, ap-
plies to an action to subject to a husband's debts property conveyed
to his wife; but on account of the relation of husband and wife
less evidence is required to raise a presumption in favor of the
plaintiff in such an action, and where circumstances do raise a pre-
sumption that the property was paid for from the husband's means,
the fact that the wife remained silent during the trial when proof
that her money was used in the purchase might easily have been
produced if in existence, together with inconsistent statements
previously made by her, is a sufficient basis for a decree against
her.
C, B. Waby, for plaintiff.
C. W. Baker and Thome Baker, contra.
Gippen, p. J. ; Smith, J., and Swing, J., concur.
The plaintiff avers that the real estate described in the petition
was purchased by the defendant, Gus J. Peterson, and the title
taken in the name of his wife with intent to hinder, delay and
defraud his creditors.
The burden of proof rested upon the plaintiff and did not at
any time by reason of presumptions in his favor, or by a prima
facie case made, shift upon the defendants.
In Klunk v. Railway, 74 O. S., 125, the third proposition of
the syllabus is as follows:
**The rule is that he who affirms must prove, and when the
whole of the evidence upon the issue involved leaves the case
in equipoise, tie party afSrming must fail.*'
254 CIRCUIT COURT REPORTS— NEW SERIES.
Van Ingen v. Peterson et al. [Vol. XII, N. S.
There is no good reason why the rule thus stated should not
apply to a case of this kind, although the relation of husband
and wife jnay with less evidence raise a presumption or es-
tablish a prima facie case in favor of plaintiff.
It is seldom possible to prove a conveyance to be fraudulent
by other than circumstantial evidence, and yet the defense is
susceptible of direct and positive proof, peculiarily within the
knowledge of the defendants.
While some of the cases seem to hold that the burden of proof
is cast upon the defendant wife, yet they really go no further
than the above stated rule, and only require her to meet the case
made by plaintiff's evidence.
The insolvency of the husband, his relation to the purchase
and subsequent management of the property, called for an ex-
planation by the wife which she attempted to give in her ex-
amination before a notary public, at another time before a referee
in bankruptcy, and at the trial of this case in th* court of com-
mon pleas.
The plaintiff offered at the trial in the court her declarations
thus made for the purpose of showing the improbability of her
claim, that at the time of the first purchase she had one thousand
dollars in currency which she had earned and saved before her
marriage and carried on her person or kept in bureau drawer for
several years. Neither the husband nor the wife testified in this
court; but his declarations were offered by the plaintiff.
It is claimed by counsel for the defendants that plaintiff is
bound by the declarations thus offered whether for or against
him.
The true rule, however, would seem to be as stated in the case
of Bears v. Copley, 10 N. Y., 93 :
** Where the declarations of a party are proved against him,
what he says in his own behalf at the same time is competent,
but not conclusive evidence in his favor.''
In this case Mrs. Peterson's testimony that she had one thou-
sand dollars in currency, and where and how long she kept it, was
offered for the very purpose of showing by her own declarations
its improbability and inconsistency.
CIRCUIT COURT REPORTS— NEW SERIES. 255
1909.] Hamilton County.
Her failure to testify in this hearing, although present, gave
additional force to her former contradictory and inconsistent
statements, to-wit:
First. That the cash payment was $300, and subsequently when
the receipt was found that it was $100.
Second. That her. husband did not know that she had the
$1,000 until the purchase was made, and yet before that time
her husband had scolded her for leaving the money in her room.
Third. That although she had $1,000 in currency, which was
earning nothing, she made a cash payment of only $100 and gave
interest bearing obligations for the rest of the purchase money.
It is true as claimed by counsel for defendants that there is no
direct testimony that the husband paid the purchase money out
of his own means, but the circumstances are such as have in like
cases been held to raise a presumption that it was so paid.
It works no hardship to the defendant wife to require her to
rebut this presumption, and we are constrained to hold that she
has failed to do so, although the evidence for that purpose, if
available at all, was within easy reach.
Decree accordingly.
DAMAGES AGAINST A POUC£MAN FOR ASSAULT.
Circuit Court of Hamilton County.
GUSTAVB A. RiNGHAND V. EdWARD F. QUANNAN.
Decided, AprU 17, 1909.
Police — May Arrest y^iihout Warrant and Without Explaining Reason,
When — Interference of Bystander — Assault of Officer on Bystander
— Verdict Awarding Damages Sustained— Charge of Court.
In an action against a policeman for damages for assault and battery,
where the officer answers that the plaintiff interfered when he
was attempting to arrest a third party and that he used no more
force toward plaintiff than was necessary to prevent such inter-
ference, the law is correctly stated to the jury when they are told
that the defendant as a peace officer was Justified in arresting with-
out warrant one found violating a valid city ordinance, and that
the officer might use such force as was necessary to defend him-
256 CIRCUIT COURT REPORTS— NEW SERIES.
Ringhand v. Grannan. [Vol. XII, N. S.
Belf from attack by the offender, and this he might do without
notifying him of the cause of his arrest.
Tho8. L, Michie and A. C, Fricke, for plaintiff in error.
Cogan <fe Williams, contra.
Smith, J. ; Gippen, P. J., and Swing, J., ooncur.
This was an action for damages for assault and battery, in-
stituted in the superior court of Cincinnati by Grannan, de-
fendant in error, against Ringhand, plaintiff in error, a police-
man of the city of Cincinnati.
Ringhand pleaded justification of his conduct on the ground
that Grannan interfered with him in the discharge of his duties
while he was attempting to arrest third parties who were dis^
orderly; and sets up in his answer that if he laid hands upon
the plaintiff, he used no more force than was necessary to prevent
such interference.
The trial of the case resulted in a verdict and judgment of
three hundred dollars in favor of the plaintiff. Error has been
prosecuted to this court to set the judgment aside.
An examination of the evidence satisfies the court that the
verdict and judgment are fully sustained thereby. The jury
found upon the facts for the plaintiff, and unless there is other
prejudicial error in the record the judgment must be affirmed.
In this regard the court is of the opinion that the law was
correctly stated to the jury by the trial court, both in the gen-
eral and special charges; the burden throughout being to the
effect that the defendant as a peace officer was justified in arrest-
ing one without a warrant, found violating a valid ordinance of
the city, and that the officer might use such force as was necessary
to make the arrest in order to defend himself from the attack of
the offender, and this he might do without notifying him of the
cause of the arrest.
This left it for the jury to determine the one fact in the case
as to whether or not there was an assault and battery as claimed,
and the jury found in favor of plaintiff.
We do not think the verdict is excessive, and finding no errors
in the record the judgment is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 257
1909.] Hamilton County.
TRANSFER OF I^RISONER FROM WORK HOUSE TO
PENITENTIARY.
Circuit Court of Hamilton County.
William Harrington v. Ferdinand Bader, SuPERiNTENDENt.
Decided, March 20, 1909.
Sentence — Interruption in the Running of — Transfer of Prisoner from
Work House to Penitentiary — Then Back to the Work House —
Habeas Corpus — Sections J7.J8 and 7^0 J.
Where it is discovered that one of the prisoners in a work house is
an escaped convict from the penitentiary, it is better practice to
await the expiration of his work house sentence and then re-arrest
and re-commit him to the penitentiary under the provisions of
Section 7404; but the transfer of the prisoner from the work house
to the custody of the chief of police, as the first step in his re-
turn to the penitentiary, will be presumed to have been accom-
plished by legal process, and upon his return to the work house
after completing his term in the penitentiary habeas corpus will
not lie for his release, at least until the time his work house sen-
tence would have Expired had there been no interruption by trans-
ferring him to the penitentiary.
Thomas H. Darhy, for petitioner.
John M. Thomas, contra.
Harrington, the plaintiff in error, a prisoner in the Cincinnati
work house, filed a petition in the court of common pleas, for a
writ of habeas corpus, which having been denied, error was
prosecuted thereto.
Harrington was committed to the work house by the police
court under sentences which aggregated more than five years.
On the day following his commitment he was surrendered by the
superintendent of the work house to the chief of police, who
turned him over to authorities from the Ohio penitentiary, who
elaimed he was an escaped convict. He was returned to the
penitentiary and three years later, having served out his term
in the penitentiary, he was brought back to Cincinnati and again
incarcerated in the work house to serve out the interrupted sen-
tence pronounced by the police court.
258 CIRCUIT COURT REPORTS— NEW SERIES.
Harrington v. Bader, Superintendent [ VoL XII. N. 8
At the hearing on habeas corpus, it was claimed in Harring-
ton 's behalf that the order of release from the work house, under
which he was returned to the penitentiary, was equivalent to a
discharge from further imprisonment under the said work houde
commitment, and that the said commitment was ineffectual to
justify his recomitment to the work house after said release and
discharge therefrom.
GiPPEN, P. J. ; Smith, J., and Swing, J., concur.
On July 31, 1905, the plaintiff in error was sentenced to the
work house of the city of Cincinnati to serve three successive
sentences each of six months' imprisonment and fine of $300
with costs for housebreaking. On August 1, 1905, he was de-
livered to the chief of police of the city of Cincinnati under the
following order:
** State op Ohio, Hamilton County, ss. Police Court of the
City of Cincinnati.
**To the Superintendent of the Work House:
** Deliver to Paul M. Millikin, Chief of Police of the City of
Cincinnati, the body of Wm. Harrington, now in your custody,
charged with housebreaking, committed July 31, 1905, for new
trial.
**By order of court.
''Attest: Aug. Kirbbrt,
'' (Seal). Clerk of the Police Court,
''By P. G. Good, Deputy,
** Cincinnati, 8-1, 1905.
»x »'
Counsel assume that the effect of this order was an uncondi-
tional suspension of the sentences which amounted to a final
discharge of the prisoner ; but there is nothing upon the face of
it to indicate that any suspension or modification of the sen-
tences was intended.
The presumption is that the removal of the prisoner from the
workhouse into the custody of the chief of police was by legal
process, as contemplated by Section 5748, Revised Statutes, and
if not, the sentences continued in full force without loss of time
by the prisoner.
It appears, however, from other evidence, not the best, that he
was delivered to the ^'hief of police for the purpose of being re-
CIRCUIT COURT REPORTS— NEW SERIES. 259
1909.] Hamilton County.
turned to the Ohio penitentiary, whence he had escaped. It
is unnecessary to determine whether this delivery was authorized
by law on demand of the warden of the penitentiary, because
under the several commitments his time would not in any event
expire till December 21, 1910.
The better practice no doubt would be to await the expiration
of his term in the work house when the warden could, under
Section 7404, Revised Statutes, arrest and recommit him to the
penitentiary.
The prisoner is not now, at least, entitled to a discharge, and
the judgment of the common pleas court dismissing his petition
and remanding him to the custody of the superintendent of the
work house will be affirmed.
LACK OF VIGILANCE ON THE PART Or A MOTORMAN.
Circuit Court of Hamilton County.
The Interurban Railway & Terminal Company v. Frederick
J. Treuheit.
Decided, July 24, 1909.
Negligence — Moiorman Injured in Collision — Lack of Caution on His
Ovm Part — Verdict in His Favor not Sustained by the Evidence.
A motorman is lacking vigilance and caution who leaves a meeting
point on the assumption that, because he saw there the regular
crew of the car he was to meet, therefore the car must have ar-
rived, when as a matter of fact the approaching car was not in
charge of its regular crew on that day; and he can not recover
from the company for injuries sustained in the resulting collision.
Frank F. Dimmore, for plaintiff in error.
C. S, Schiieider and James E. Robinson, for Treuheit.
The defendant in error, plaintiff below, while employed as a
motorman by the railway company, was severely injured in a
collision, due to the fact that he left the car barn under the im-
pression that the car which he was scheduled to meet at that
point had arrived, whereas the regular crew on the approaching
260 CIRCUIT COURT REPORTS— NEW SERIES.
II I — " m—~~ ■ ■ — - - - -j-^ m^^
Interurban Railway Co. y. Treuhelt. [Vol. XII, N. S.
car, whom he saw at the car barn, were not on that run on that
day. The jury gave him a verdict of $3,500.
I -
Smith, J. ; Giffen, P. J., and Swing, J., concur.
The main ground of error urged and relied upon in the above
case is that the verdict and judgment of the trial court is not
sustained by sufficient evidence.
We are of the opinion that his objection is well taken and that
the judgment should be set aside.
Treuheit was due at Coney Island barn at 7 :20 a. m. on the
morning of the accident where he was to w^it, meet and pass
run No. 1, the car from Bethel, which reached the barn at 7 :22.
It therefore made no difference to him, as was testified,
whether the car upon which Thornton and Baker were motor-
man and conductor, was an extra car or not. The schedule in
this regard had not been changed, and while the evidence is con-
flicting as to the matter of orders between the dispatcher and
the conductor, yet under rule 27 issued by the company it was
the duty of the motorman to be vigilant and cautious and not
depend entirely upon the signals, brakes, or rules of the company
for safety, and therefore we do not think that he could or should
have relied upon the fact that he saw Purcell and Newton, who
usually had this run, at the barn, to absolve himself from his
own neglect, if in leaving the barn before the car from Bethel
arrived, he afterwards collided with it. The evidence shows
that crews are often changed and new men placed upon runs,
and it would seem that the schedule as adopted by the company
should control.
Further, we are of the opinion that after leaving the Coney
Island barn the testimony shows that by the exercise of ordinary
care and prudence he could and ought to have discovered the
presence of the car from Bethel in time to have avoided the col-
lision. He was going on an up grade at about six miles an hour
and saw the roof of the approaching car some distance ahead of
him but failed as we think the evidence discloses to have exer-
cised the ordinary care and prudence he should, for while he
testifies he reversed the motor, yet there is strong evidence that
he was not giving the attention he should to the movement of the
CIRCUIT COURT REPORTS— NEW SERIES. 261
1909.] Lrttcas County.
car, and that after the accident an examination of the controller
showed the reverse handle was in the position of going ahead,
running east.
It is unnecessary in this view of the case to consider other
errors assigned, and as the judgment of the court below is not
sustained by sufficient evidence the same is reversed.
AS TO AGRBEMENTS TO rORBEAR SUIT.
Circuit Court of Lucas County.
William A. Leflet v. 0. A. Browning.
Decided, June 12, 1909.
lAmitation of Actions — Effect of an Agreement to Forbear Suit on a
Condition Named — Positive Evidence Required as to Existence of
Such an Agreement — Failure of Consideration.
Evidence of some conversation between the parties to the effect that If
they could not settle their differences they would arbitrate, does not
constitute evidence of a positive agreement to forbear suit on a
condition named, and does not preserve the claim against the run-
ning of the statute of limitations.
J. r. Todd, for plaintiff in error.
Mulholland & Hartman, contra.
KiNKADE^ J.; Parker, J., and Wildman, J., concur.
The common pleas court withdrew from the consideration of
the jury all claims in the answer and cross-petition except the
failure of a part of the consideration of one of the notes sued on,
for the reason that the claims were shown by the evidence to be
barred by the statute of limitations. Leflet claimed in his
cross-petition that there was an agreement between him and
Browning that he should not bring suit, and that Browning
would waive the statute of limitations, and hence the running
of the statute was thereby suspended. The allegations of the
cross-petition are carefully drawn and present this issue, but a
careful reading of the record fails to disclose any evidence to
sustain the allegations in this regard.
262 CIRCUIT COURT REPORTS— NEW SERIES.
Traction Co. v. Oberschmld. [Vol. XII, N. S.
A positive agreement to forbear suit on a condition named
made before the statute has barred the claim, would no doubt
preserve the claim against the statute, but nothing short of such
an agreement will do so. Mere negotiating or general talk be-
tween the parties to the effect that if they can not themselves
settle their differences, then they will arbitrate, is not sufficient.
In some states it has been held that where the statute requires a
new promise or acknowledgment to be in writing in order to sus-
tain an action on a barred claim, a promise to forbear suit if
the statute is waived, will not be sufficient to suspend the running
of the statute unless the latter promise be in writing. The Su-
preme Court of Maine has so held, and insists that to hold other-
wise is to furnish an easy method of avoiding the provisions of
law as to the new promise or acknowledgment being in writing.
But we do not find it necessary to pass on this point in the
case. We have read this record with care, and in our opinion
there is no evidence in the record tending to show that any agree-
ment to forbear suit by Leflet in case Browning would waive
the statute of limitations was ever made. We think the evi-
dence clearly showed that the running of the statute was never
suspended, and that the trial judge was correct in his ruling
in this respect. Pie is fully sustained by the authorities in the
conclusion reached. We find no prejudicial error in the record
and the judgment of the court of common pleas will be affirmed.
INSTRUCTIONS TO JURY IN ACTION FOR PERSONAL
INJURIES.
Circuit Court of Hamilton County.
Cincinnati Traction Company v. John OBERScrrMio.
Decided, March 30, 1908.
yegligence — Preponderance of Evidence — Charge of Court — Error —
Proximate Cause.
•A charge of court is erroneous which permits the plaintiff to recover
on a preponderance of the evidence, regardless of his own possi-
ble negligence, and without the negligence of the defendant being
the direct or proximate cause.
CIRCUIT COURT REPORTS— NEW SERIES. 268
1909.] Hamilton County.
Kinkead, Rogers & Ellis, for plaintiff in error.
F, H. Freericks, contra.
Smith, J.; Swing, P. J., and Giffen, J., concur.
The first ground of error urged is that the verdict below is
against the weight of the evidence, but upon an examination of
the record we do not think this is well taken.
The second ground is that the court erred in giving special
charges Nos. 1 and 2.
According 'to charge No. 1, the sole evidence required to de-
feat plaintiff's claim was such as was shown by a *' preponder-
ance" of the evidence offered either by the plaintiff or by the
defendant, while as a matter of law, if plaintiff's evidence raised
a presumption of negligence that contributed directly to the in-
jury, and this was not removed, then plaintiff would not be
entitled to recover. We think without this element being pres-
ent in the charge, that it was error to give the charge as appears
in the record.
Special charge No. 2 is, we think, also erroneous, in that it
does not correctly state the rule under which plaintiff could re-
cover; for while the injury to plaintiff might have been due to
negligence on the part of defendant, yet the plaintiff himself
must be free from negligence, and this is omitted from the
charge.
As given in the record, the charge permits the plaintiff to
recover damages even though he was at fault himself, and with-
out the defendant's negligence being the direct or proximate
cause of the injury.
We do not think the objections raised to the portions of the
general charge on pages 6 and 8, even if erroneous, are prejudi-
cial to plaintiff in error.
It would have been better perhaps to have stated the matter
of the ** sudden jerk" of the car differently, but as the charge as
a whole fairly sets forth the law of negligence, we find no pre-
judicial error therein.
Judgment reversed.
!^4 ClftCUlf COUftT IlEPOftTS— NEW SERIES.
Gregg, Guardian, v. Klein et al. [Vol. XII, N. 8.
SETTLEMENT OF GUARDIAN'S ACCOUNT.
Circuit Court of Hamilton County.
Ellis B. Gregg, Guardian, v. Ralph and Edith Klein,
^IiNORS, ET al.
Decided, 1908.
Final Order — In the Matter of a €hiardian*8 Account — Jurisdiction of
the Probate Court in the Matter of Settlement of Accounts and
of the 'Common Pleas on Appeal — Sections 52.^ and 6.^07,
Inasmuch as the probate court has exclusive jurisdiction to settle ac-
counts of guardians, the common pleas can acquire no Juris-
diction on appeal so long as any item of such an account remains
undetermined.
Elllis B. Gregg and Wm. F, Fox, for plaintiff in error.
Harry R. Weher^ guardian ad litem, for minor defendants in
error.
Pkintiff in error, Ellis B. Gregg, guardian of the estates of
the minor defendants in error, filed an application in the pro-
bate court for allowance of compensation as attorney for him-
self as guardian in defending litigation concerning real estate
in which his wards had an interest, which litigation was not then
and is not yet at an end. The probate court allowed him com-
pensation for ordinary services, but expressly continued so
much of said application as related to attorney's fees in the real
estate litigation until the final result thereof. Appeal was
taken to the common ple&s court, which court, of its own motion,
appointed a guardian ad IHcm, who filed a motion attacking the
jurisdiction of said court to entertain said appeal, the chief rea-
sons being that the order appealed from w^as not a finality, and if
it were it was not the settlement of the guardian 's account." The
motion was granted in part and overruled in part and the
court retained for hearing so much of the appeal as related to
the allowance for ordinary compensation.
Thereupon error was prosecuted to the circuit court, and at
the hearing in this court, which was more than four months after
CIRCUIT COURT REPORTS— NEW SERIES. 265
1909.] Hamilton County.
the final order on said motion in the common pleas court, the
guardian ad litem on behalf of his wards asked leave to file a
cross-petition in error assailing the jurisdiction of the common
pleas court on the same grounds set forth in his motion to dis-
miss the appeal. Objection was made by the plaintiff in error
to the filing of this motion on the ground that the four months
had elapsed.
GiFPEN, J.; Swing, P. J., and Smith, J., concur.
Upon application to the probate court by the plaintiff in error
as guardian for an allowance for extraordinary services includ-
ing those as attorney at law, the same was granted in part, and
continued in part until the litigation in which the services were
rendered was fully determined.
On appeal by the guardian to the common pleas court, a motion
by the guardian ad Intern to dismiss the appeal was sustained
as to so much of the application as was not finally determined
by the probate court, and overruled as to the residue. To the
judgment granting the motion in part the guardian prosecutes
error, and the guardian ad litem asks leave to file a cross-peti-
tion in error assailing the jurisdiction of the common pleas court.
There are two reasons for holding that the common pleas
court acquired no jurisdiction :
1st. There was no final determination of the application by
the probate court.
2d. When finally determined the allowance or disallowance
would not be a settlement of the guardian's account within the
meaning of Section 6407, Revised Statutes.
Under Section 524, Revised Statutes, the probate court has
exclusive jurisdiction to settle accounts of guardians, and so long
as any item of such account remains undetermined- or for good
cause should be continued, the account itself is not settled, and
the common pleas court acquires no jurisdiction by appeal. The
record discloses no abuse of discretion by the court, and if it did
the remedy would be by mandamus compelling the court to act.
Again even had the court finally passed upon each item of
extraordinary services set forth in the application, and made an
allowance to the guardian, it would not have been a settlement
266 CIRCUIT COURT REPORTS— NEW SERIES.
Traction Co. v. Sanders. [VoLXU, N. a.
of the guardian's account within the meaning of the statute, but
only a determination of certain items which could properly be
stated in the account when filed, and subject to exceptions by
others interested in the settlement of the estate. McMahon,
Admr.y v. Ambach <fe Co. et al, 79 Ohio State.
The cross-petition in error of the guardian ad litem may be
filed, the judgment of the common pleas court reversed, and the
cause remanded to that court with instructions to dismiss the ap-
peal for want of jurisdiction.
NECUGEN€£ AT INTERSBCTION OF STREETS.
Circuit Court of Hamilton County.
The Cincinnati Traction Company v. Marib Sanders.
Decided, July 3, 1909.
Collision hetioeen Car and Wagon — Degree of Care Required of Motor-
man — Negligence of One Riding in Wagon in not Warning Driver
— Charge of Court — Pleading — Proximate Cause,
1. In an action for damages on account of injuries sustained in a col-
lision between an electric car and a wagon at the intersection of
two streets, the admission of the plaintiff who was seated with the
driver that she saw the car coming nearly half a square away, but
made no attempt to warn the driver, raises a presumption of neg-
ligence on her part which would entitle the street railway com-
pany to an instructed verdict in its favor, in the absence of testi-
mony that the motorman saw the peril of the plaintiff and failed
to exercise proper care to avoid a collision.
2. Proper care on the part of a motorman under such circumstances is
not "to do all he can to avoid a collision," but merely to exer-
cise ordinary care.
3. Where the defense is a general denial, an allegation that the acci-
dent was due solely to the negligence of the plaintiff serves no good
purpose and is misleading.
Kinkeady Rogers <fe Ellis, for plaintiff in error.
OrvUle K. Jones and J. W. O'Hara, contra.
The defendant in error was riding in a one horse wagon with a
driver, and in crossing Broadway at Eighth street a car coming
CIRCUIT COURT REPORTS— NEW SERIES. ii61
1901^.] Hamilton County.
from the north on Broadway collided with the wagon and she
was thrown from the wagon and injured. At the trial below she
was given judgment for $550.
GiPPEN, P. J. ; Swing, J., and Smith, J., concur.
The admission of plaintiff that while sitting on the seat with
the driver she. saw the approaching car nearly half a square
away, in the absence of any attempt to warn the driver, raises
a presumption of negligence on the part of plaintiff which was
not removed and entitled the defendant to an instructed ver-
dict, unless there was testimony tending to prove that the motor-
man as alleged in the petition saw plaintiff's peril and failed to
exercise ordinary care to avoid a collision. There was some
such testimony and the motion was properly overruled. Upon
that issue the negligence of the motorman was the more proxi-
mate cause.
It was not his duty, however, as stated in the general charge
*'to do all he could to avoid such collision.'* He was required
to exercise a proper degree of care under the circumstances,
to-wit, ordinary care.
The charge of the court on the subject of burden of proof was
misleading as the jury may well have inferred that the defend-
ant was required to prove that the accident was due solely to
the negligence of the plaintiff or the driver as averred in its an-
swer, although it denied all negligence on its part. Such an
answer is itself misleading and serves no good purpose when
the defense relied upon is a general denial.
In view of negligence of plaintiff and the want of sufficient
evidence of negligence of the motorman after he became aware
of the plaintiff's peril, the motion for a new trial should have
been granted; also on the ground that the verdict was not sus-
tained by sufficient evidence.
Judgment reversed and cause remanded for a new trial.
268 CIBCUIT COURT REPORTS— NEW SERIES.
SUte, ex rel, vb Sayre. [Vol. XII, N. S.
AUTHORITY TO APPOINT CONSTABLES FOR THE
PROBATE COURT.
Circuit Court of Franklin County.
State op Ohio, ex rel Thomas A. Curran, v. F. M. Sayre.
County Auditor.
Decided, February 8, 1909.
Court Constable — Act Relating to. Unconstitutional — But has been Re-
pealed by County Salary Law — Construction of the Words ^^Other
Employes*' as Used in This Act,
Section 553, Reviged Statutes, is not in contravention of Section 26.
Article II of the Constitution of Ohio; but has been repealed by
the county officers' salary law, Vol. 98 O. L., p. 89, which provides
that the county shall allow the probate Judge a certain sum out of
the county treasury to pay the salary of all his "deputies, assist-
ants, clerks, bookeepers, and other employes as may be necessary,"
etc. The phrase "other employes" includes court constables.
George B, Okey, for the plaintiff.
Karl T. Wehher, contra.
DusTiN, J. ; Wilson, J., and Sullivan, J., concur.
In mandamus.
We are of the opinion that Section 553, Revised Statutes, pro-
viding for the appointment of court constables in the probate
courts of counties having more than 70,000 population, is not
in contravention of Section 26, Article II, Constitution of Ohio.
It is an act of a general nature and of uniform operation
throughout the state in all counties containing more than 70,000
inhabitants, and was enacted for the purpose of meeting condi-
tions liable to occur only in large counties. It is on a par with
the election law, held to be constitutional, which provides that
the polk in cities of more than 300,000 inhabitants shall open
at 5:30 a. m. and close at 4 p. m., instead of at the hours pro-
vided for opening and closing in smaller towns and cities.
Gentsch v. State, ex rel McGorrxj, 71 0. S., 151.
But w^e are also of the opinion that the foregoing act has been
repealed by the more recently enacted county officers' salary
CIRCUIT COURT REPORTS— NEW SERIES. 269
1909.] Hamilton County.
law, Volume 98, page 89, which provides that the county shall
allow the probate judge a certain sum out of the county treasury
to pay the salary of all his ** deputies, assistants, clerks, book-
keepers, and other employes as may be necessary,'' etc. We
think the phrase, ** other employes" covers court constables.
Section 23 of the act provides for the repeal of all acts inconsist-
ent with the foregoing. The inconsistency is, to us, apparent.
The rule that a general act does not repeal by implication a
former special one does not apply, for the repeal in this instance
is not by implication but by express language. Although the
act in question is not specifically named, the legislative intent
seems to be clear.
The writ, therefore, will be denied and the petition dismissed
at the costs of the relator.
RECOVERY ON A CONTRACT NOT RIGIDLY PERFORMED.
Circuit Court of Hamilton County.
Mathew Ryan v. August Schardt.
Decided, January 11, 1909.
ContracU — Failure to lAterally Perform — Preponderance of Evidence —
Burden of Proof— Charge of Court,
1. A contractor may recover notwithstanding his contract has not
been rigidly performed.
2. There are no degrees of preponderance; if the evidence preponder-
ates at all, however slightly, it is sufficient
Charles F. Williams and Horace A. Reeve, for plaintiff in
error.
Closs & Luebberi, contra.
Smith, J. ; Swing, P. J., and Gipfen, J., concur.
We do not think the judgment of the trial court should be re-
versed on the ground that the verdict is not sustained by suffi-
cient proof nor do we find error in the trial court refusing the
special charges asked for by plaintiflf in error. The rigid rule
contended for in these charges ha.s been relaxed and where for-
270 CIRCUIT COURT REPORTS— NEW SERIES.
Hieatt V. Simpson et al. [Vol. XII, N. S.
merly no recovery could be had on a contract like the one in suit
unless the agreement was strictly performed, yet now where the
contractor acts in good faith there may be such a recovery al-
though the contract may not have been literally performed.
Kane v. Ston^ cfe Company, 39 0. S., 1.
There is error, however, iii the general charge of the court in
this: The court does not definitely or clearly define to the jury
the meaning of the burden of proof or the preponderance of the
evidence. Also in those portions of the charge where the court
speaks of the drain as one w-hich an ordinarily reasonable and
prudent man would have had constructed through his property.
This was not the question for the jury but the action was upon a
written contract, the performance of which was disputed. Also
in charging the jury that the defendant must show that the sewer
or drain as built by the plaintiff does not comply with the terms
of the agreement. This burden was upon the plaintiff to show,
that it did so comply, and it was also. error to charge that the
burden of proof should be established by a fair preponderance of
the evidence. There are no degrees in preponderance; if the
evidence preponderates at all, however slightly, this is sufficient.
Russell V. Russell, 6th C.- C, 294.
No other errors appearing in fhe record, for the above reasons
the judgment of the trial court is reversed.
AMENDMENT AFTER REVERSAL.
Circuit Court of Hamilton County.
EsTELLA B. Hieatt v, Susan W. Simpson et al. •
Decided, April 10, 1909.
Pleading'— Authority to Amend after Reversal by the Supreme Court —
Payment of Taxes under a Mistake of Law but with Knowledge of
the Facts.
Where the Supreme Court sustains a demurrer and remands the case
for further proceedings, the circuit court has authority to allow
an amendment to (he pleading to which the demurrer was directed.
* For the common pleas and circuit court opinions in this case prior
to its heing taken to the Supreme Court, see 5 N. P. — N. S., 513, and
4 O. L. R., 136.
CIRCUIT COURT REPORTS— NEW SERIES. 27J
1909.] Hamilton County.
W. T. Porter, for plaintiff.
Wm, Worthington and Outcalt cfe Hickenlooper, contra.
GiPFEN, P. J. ; Smith, J., and Swing, J., concur.
The Supreme Court having rendered the judgment that this
court should have rendered, to-^'it, sustained the demurrer
to the answer, and remanded the cause to this court for further
proceedings according to law, the authority to allow an amend-
ment to the answer, under Section 5116, Revised Statutes, is
the same as if this court had, instead of overruling the demurrer,
sustained the same. The case of Covington & Cincinimti Bridge
Company v. Sargent and other like cases apply only where final
judgment has been rendered.
The amendment to the answer presented contains facts suffi-
cient to show a forfeiture under Section 2852, Revised Statutes,
of at least the ten and one-half acres of land sold to Van Tress.
The payment of taxes under a mistake of law with full knowl-
edge of the facts, can not, when made voluntarily, be recovered.
It is unnecessary to now determine how much, if any, was so
paid, or whether the other real estate was forfeited to the per-
sons next entitled thereto in remainder, so long as the proposed
amendment states a good though partial defense. If counsel
for defendants elect to accept the oifer of plaintiff to allow a
lien for taxes paid by them there will be no difficulty in entering
a decree to that effect after proper pleadings are filed.
Leave to file amendment granted.
ACTION AGAINST FOREIGN RAILWAY CORPORAtlON.
Circuit Court of Hamilton County.
The Northern Pacific Rah. way Company v. Jacob Baum.
Decided, January 11, 1909.
Attachment — Action before Justice of the Peace — Foreign Railroad
Corporations — Jurisdiction over Personally and over the Property
of— Sections 6,)78, 6Jf80 and 6^96.
1. Sections of the code of civil procedure relating only to Jurisdiction
over the person are not applicable under the section relating to at-
tachments where Jurisdiction is sought over the property at-
tached.
272 CIRCUIT COURT REPORTS— NEW SERIES.
Railway Co. v. Baum. [Vol. XII. N. S.
2. The right of attachment against personal property of a foreign rail-
road company, having no place of business or officer upon whom
summons can be served within the county, is given under Section
6489, and such a company is not exempted from attachment by the
provisions of Section 6478.
■
George Hoadly, for plaintiff in error.
Jacob Shroder and Joseph B, Dcrbes, contra.
Smith, J.; Swing, P. J., and Gifpen, J., concur.
In this ease we think the judgment of the court below should
be affirmed. The proceeding as instituted in the magistrate s
court was in attachment against the plaintiff in error within
the provisions of Section 6489, and personal property of the
railway company was attached.
The plaintiff in error contends that under Section 6478 it is
exempt from such proceeding. We think, however, that this
action relates only to the service of process against a railroad
company under certain restrictions whereby jurisdiction of the
corporation is personally sought and is not in conflict with Sec-
tion 6489, where jurisdiction over property of a foreign railway
company is secured by an attachment; whereupon Section 6496
and following sections provide how the matter or thing attached
shall be disposed of and upon its sale the manner in which the
proceeds shall be applied to the payment of the indebtedness.
It is not sought to bring the corporation personally into court,
but the plaintiff in error being a foreign corporation with no
officer upon whom a summons can be served or place of doing
business in the county and the claim being a debt or demand
arising upon contract, the right of attachment against the prop-
erty of such a corporation is given by this section. It is evident
that the sections of the code of civil procedure relating only to
the jurisdiction over the person are not applicable under the
section relating to attachments where jurisdiction is sought to
be obtained over the property attached. We are of the opinion
therefore there is no error in the judgment of the court below and
the same is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 278
1909.] Hamilton County.
mSCRMINATION IN TH£ MATTER OF VEHICLE LICENSES.
Circuit Court of Hamilton County.
The Village op Delhi v. Adam Story et al.
Decided, April 10, 1909.
License Fees far Vehicles — Ordinance Rendered Invalid by Providing
Unequal Fees for Vehicles of the Same Class — Recovery of Excess
Collected.
An ordinance which provides that a license fee of $25 shall be paid
by each wagon hauling sand, flre-clay, safes, enginies, boilers or
logs, and other wagons of the same class pay only $10, is unreason-
able and can not be enforced.
F, M. Coppock and J. L. Logan, for the Village of Delhi.
John R, Holmes and John V. Campbell, contra.
Smith, J. ; Gippen, P. J., and Swing, J., concur.
The only question raised in the above case is whether or not
the ordinance, adopted on February 20. 1907, by the village of
Delhi, whereby said village exacted a license fee of $25 for each
wagon hauling sand, fire-clay, safes, engines, boilers or logs,
and for other wagons of a similar character, a fee of $10, is
reasonable.
The object of a license fee is to reimburse a municipality for
the cost of issuing the same and the expense of police supervision,
and the right to license and regulate confers no taxing power.
Cincinnati v. Bryson, 15th Ohio, 625.
Any discrimination in an ordinance like the one in question
against other people of the same class is illegal. It would seem
in the case at bar that such discrimination exists, and as was
brought out in argument at the hearing of the case the excess
over and above the $10 charged was a tax upon the sand business
in the village of Delhi.
We can not but hold, therefore, that where the council exacts a
license fee of $10 for two-horse wagons without springs hauling
lumber, ice, coal, and other heavy articles, and a fee of $25
for the owners of wagons exactly the same, but used in hauling
274 CIRCUIT COURT REPORTS— NEW SERIES.
SUte. ex rel, v. Gebert. [Vol. XII, N. S.
sand, such a difference in the amount of the fee shows a discrimi-
nation that is unequal and unfair.
The defendants in error having paid the entire amount ex-
acted, and the court below having overruled the demurrer to the
amended and supplemental petition, and having entered judg-
ment in favor of the defendants in error for the excess over and
above the license fee of $10, as provided in said ordinance, the
same is hereby affirmed.
MULTIFARIOUS OFFICE HOLDING.
Circuit Court of Franklin County.
The State of Ohio, ex rel Attorney-General.
V. Frank Gebert.
Decided, October, 1909.
Oijflce and Officer — Dual Office Holding Not Incompatible, When — Cor
pacity of an Ohio Man to Fill with Honor at One and the Same
Tim/e Legislative, Judicial and Executive Offices.
•
The offices of mayor and of member of Congress are not incompatible
and may be held by one person.
DusTiN, J.; Sullivan, J., and Allrb^vd, J., concur.
Quo warranto.
In November, 1907, Carl C. Anderson was elected and quali-
fied as mayor of the city of Fostoria. Frank Gebert, defendant.
was- at the same time elected president of the city council of
said city.
In November, 1908, said Anderson was also elected a member
of Congress of the United States. He cx)ntinued to serve as
mayor of Fostoria, however; but on the 20th day of Februar>\
1909, he left Fostoria for Washington, D. C, where he remained
until the filing of the petition herein. March 16, 1909, he
(]ualified as a member of Congress, and entered at once upon the
arduous work of tariff revision. Directly he had qualified as a
jnember of Congn^ss, the city council of Fostoria, by resolution,
CIRCUIT COURT REPORTS— NEW SERIES. 275
1909*1 Franklin County.
declared his office as mayor vacant, and that defendant, Gebert,
had succeeded to it by virtue of Section 132 of the municipal
cx)de. Gebert forthwith took oath to faithfully discharge his
duties, gave bond, which was approved, and has since been as-
suming to act as mayor.
It is agreed **that Carl C. Anderson has not failed, neglected
and refused to perform any of the duties of the office of mayor
of the city of Postoriii. excepting in so far as his absence in the
city of Washington, • • • may be regarded as an implied
failure, neglect and refusal ; and that he has not removed from
the city of Postoria, excepting in so far as his absence in the
city of Washington, as aforesaid, may be regarded as a removal."
The statutes do not cover the case, and it is left to the court to
.say, under a quo warranto proceeding against Gebert, whether
the common law holds the offices of mayor and of member of
Congress to be incompatible.
Offices are considered incompatible when one is subordinate
to, or in any way a check upon, the other; or when it is physi-
cally impossible for one person to discharge the duties of both.
The latter element is eliminated from this case, for although
Mr. Anderson can not discharge the duties of mayor while absent
in Washington, listening to or engaging in the debates of the
national Congress, the statutes have made provision for tempo-
rary absences and furnished a substitute mayor in the president
of the city council (see Section 132, municipal code). And this
court will take judicial notice that a member of Congress is not
always engaged in the work of legislation. Most of his time is
spent at home, engaged in correspondence with his ambitious
constituents, or **on the stump.'' His absences, therefore, on
congressional duty, are always temporary.
On the other point, however, it is urged by counsel for defend-
ant that the offices of mayor and member of Congress are in-
compatible, because one is legislative and the other is executive
and judicial; and that it is contrary to the spirit of our govern-
ment to unite the three co-ordinate powers in one person.
This would be quite forcible if the powers were exercised
in the same jurisdiction. If, for instance, the mayor should 4x?
elected a member of the city council of Fostoria and attempt to
27(5 CIRCUIT COURT REPORTS-NEW SERIES.
State, ex rel, v. Gebert. [Vol. XII, N. 8.
discharge the duties of both offices; for, in that case, he would
find himself as mayor in a state of incompatibility with him-
self as a member of council; for he would have a veto power
over the legislative acts of a body of which he was a member.
So, if he were a member of the state Legislature as well as
mayor, he would, as legislator, have the pqwer to vote upon acts
regulating his own duties and emoluments as mayor.
These instances come within the common law definition above
stated, and the only remedy is a divorce on the old and familiar
ground of incompatibility.
But what connection can there be between federal legislation
and the oflScial duties of a mayor ? None, that we perceive. For,
whether as a member of Congress he revises the tariff up or
down, he is powerless, as mayor of Postoria, to enforce it, nullify
it or construe it. Neither is he beholden to Congress in any
way for his honors or emoluments as mayor.
It has never been doubted in Ohio that the mayors of small
cities and villages could legally exercise their statutory powers
in criminal hearings. A mayor is an executive of the city in the
enforcement of its ordinances; and a representative of the state,
with the judicial powers of a justice of the peace, in respect to
crimes and misdemeanors. These duties have not been regarded
as incompatible. Nor, in our view, are the duties of mayor
and member of Congress. •
Indeed, it may almost be said to be a part of the common law,
that an Ohio man may occupy as many offices as he can be elected
or appointed to. It is left to his own sense of fitness and
propriety as to whether he should ever decline any.
A judgment of ouster may be entered against the defendant
CIRCUIT COURT REPORTS— NEW SERIES. 277
1909.] Hamilton County.
UABflJTY FOIL INSURANCE ASSESSMENT.
■
Circuit Court of Hamilton County.
John Leverone v. Sanpobd Brown, Receiver.
Decided, May 8. 1909.
Mutual Benefit In9urance — Liability of Membera of an Insolvent Com-
pany to Assessment — Defenses.
The holding in the case of Swing v. Crane, as to defenses a member of
a mutual insurance company may set up against an assessment*
does not militate against the findings of a trial court or the con-
clusions that may be reached in an action to enforce payment of
such an assessment.
M. F. Oalvin, for plaintiff in error.
W. T, Porter, for Sanford Brown, receiver, defendant in
error.
Smith, J. ; Gifpen, P. J., and Swing, J., concur.
We are of the opinion that the judgment as rendered by the
court below should be affirmed and the petition and cross-petition
in error should both be dismissed.
Under the evidence and by virtue of By-law 16 of the Chamber
of Commerce Mutual Insurance Company, plaintiff in error was
a member of the company up to thirty days after September 1 ,
1904; this being so, he would be liable for assessments made up
to that period.
It had theretofore been decided by the Superior Court of Cin-
cinnati in General Term and affirmed by the Supreme Court,
that the company was insolvent and that certain death claims
had accumulated for which those who were members during said
interval were liable.
We do not think the holding of this court in String, Trustee, v.
Crane et al, 11 C. C— N. S., 297, that a decree by the Supreme
Court in a suit for ouster of a mutual insurance company would
not conclude any stockholder or member from questioning his
liability for an assessment, or from setting up any other defense
he might have in a suit to collect any such assessment, militates
278 ClllCUlT COURT ftEPOUTS— NEW SiERIES.
Scheinesohn v. Lemonek. [Vol. XII, N. S.
against the findings of the trial court or the conclusion reached
herein.
In the suit at bar, plaintiff in error set up such defenses as he
had, and the court held that as against the amount claimed de-
fendant in error was entitled to recover only a part thereof.
In the Crane case one of the defenses was the statute of
limitations.
In view of the entire evidence showing plaintiff in error to
have been a member of the company as hereinbefore set forth,
we think the judgment of the court below is correct and the same
will be affirmed.
PROSECUTION or ERROR TO CHARGE OF COURT.
I Circuit Court of Hamilton County.
I Abraham Scheinesohn v. Simon Lemonek.
' Decided, July 3, 1909.
I
Where error is prosecuted to the charge of the court, the record should
show that the charge as embodied therein embodies all that the
court said to the Jury on the subject complained of.
Hoffman, Bode & LeBlond, for plaintiff in error.
Frank Seinsheimet', contra.
Smith, J.; Giffen, P. J., and Sw^ing, J., concur.
The record does not show that the charge complained of was all
that was said to the jury by the court upon the subject in litiga-
tion. For aught that appears the errors claimed to exist may
have been corrected.
However, the. court is of the opinion that in the charge, in its
entirety, there is nothing prejudicial to plaintiff in error and
the judgment is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 270
1909.] Lucas County.
CONSTRUCTION OF THE ONE PER CENT. LIMITATION ON
MUNICIPAL BOND ISSUES.
Circuit Court of Lucas County.
Harvey P. Pl.\tt, a T.vx-Payer, on Behalf of the City of
Toledo, v. The City of Toledo et al.*
Decided, November 18. 1908.
Municipal CorporaticiM — Limitations of Bond Issues — WTiat Bonds May
l>e Excluded in Determining Whether Limitation has been Reached
— Bridges — Validity of Ordinance Providing for Less than a Com-
pleted Structure — Intention to Complete the Structure — Sections
2835 and 283oD.
1. A municipal council has power and discretion to authorize contracts
to be entered into and to issue bonds for the completion of parts
of a bridge over a navigable river within the municipal limits
without making provision for the construction of a draw or other
method of spanning the river. The fact that an expressed inten-
tion to complete the bridge is revokable will not defeat the exer-
cise of such power.
2. An issue of bonds amounting to $525,000 by a city having an aggre-
gate of 1370,000 of bonds authorized and a tax valuation of |79,-
000.000, will not be deemed as in excess of the 1 per cent, aggre-
gate limitation prescribed by Section 2835. Revised Statutes, if in
view of the modification of Section 2835{>, eliminating all bonds is-
sued prior to April 29. 1902. whether they be original bonds to
provide for payment for construction of water works or bonds to
refund indebtedness created by such original issues, the proposed
issue added to that already authorized not within the excepted
bonds, does not exceed the prescribed limitation.
B. A. Hayes, for the plaintiff.
C 8. Northup and J. P. Manton, contra.
Wildman, J.; Parker, J., and Kinkade, J., concur.
This ease is one of so much importance to the litigants and to
the community as to invite a larger discussion of the issues in-
volved than I feel justified in entering into; indeed I shall re-
^Afflrmed by the Supreme Court, without report. Piatt v. Toledo, SO
Ohio State, — .
2go ciftcuiT COURT Reports— NEW series.
Piatt V. Toledo. [Vol. XII, N. S.
frain from any elaborate review of the very able arguments of
counsel and the computations and estimates made, because of
what seems i^lmost certain, that whatever decision may be ren-
dered by this court will not be a finality — in other words, the
case will almost inevitably go to the Supreme Court of tho
state for final review. I assume that, because of the large in-
terests involved and the importance of the questions presented.
The case is in this court upon appeal, it having been instituted
in the court of common pleas by Harvey P. Piatt to enjoin the
issue of city bonds to the amount of $525,000 for the construc-
tion of a bridge — or what is claimed upon one side, to be a part
of a bridge — across the Maumee river in this city.
It is said that there are two substantial reasons why this issue
should be enjoined : first, that by the issue of such bonds.
(H)upled with other bonds authorized by the city during the cur-
rent year of 1908, the limit of one per cent, of the taxable value
of property of the city will be exceeded; and also that there i.s
no authority given by law for the issue of bonds to construct
anything but a completed bridge.
As to the second of these propositions just recited, this court
has already expressed its view in a previous' suit instituted by
this same plaintiff against the city to enjoin the issue of other
bonds for this same structure. In that case, the opinion in which
was announced by Judge Kinkade, it was said, in substance, that
the court saw no reason to hold that the contention of the plaint-
iff in that regard was correct. The matter has, however, been
ver>'^ ably re-argued, and in courtesy to counsel, the arguments
might receive some additional attention notwithstanding the
opinion which has already been expressed and the decision which
ha,s been rendered by this court. But the question was just as
completely involved in the former case, of course, as in the pres-
ent one, and we are disposed to adhere to the views therein ex-
pressed.
It is true that it may not be within the purview of the statute
to authorize a municipality, under the guise of constructing
a bridge, to issue bonds for the construction of something which
is not a bridge, and we do not quarrel very much with the defi-
nitions offered by counsel for plaintiff of the term *' bridge."
CmCUlT COURT REPORTS— NEW SERIES. 281
1909.] Lucas County.
There is, however, in the ordinance passed by the city council in
evidence before us, a very clear expression of an intention that
a complete bridge, including a draw, or some other means of
spanning the stream, shall be constructed; and it is apparent
that the present issue of bonds was limited to the sum of $525.>
000, an amount insufficient for the construction of an entire
bridge, including a draw or other means of completing the
structure, because of the requirements of the statute that
the limitation of one per cent, shall not be exceeded, or
perhaps because of the desire of the council to protect the
city against any unnecessary payment of interest upon its
bonds until the time shall arrive when it is necessary to
make payments for a completed structure. It is said that the in-
tention, so expressed in this ordinance, is in no wise binding upon
either the present council or future councils — that it is re-
vokable, and that there should be something in addition to it
in the way of authorization of the board of service to construct
an entire bridge; but we are inclined to think that the ex-
pression of the intent of the legislative body of the city in the
present case is no more revokable than was the apparent au-
thorization to the board of service given for the construction and
extension of a filtration plant, the facts concerning which are
recited in Yaryan v. Toledo, 8 C. C. — N. S., 1. In that case, it
is true, there was not only a section expressing the intention of
the council that an entire filtration plant should be constructed,
but also an expressed authorization to the board of service to
construct; but this authorization was more apparent than real,
because the board of service was powerless to act until the means
were provided for the carrying out of the contracts into which
it might enter. The contracts themselves would be of no
validity until the funds were provided for carr>'ing out the obli-
gations thereby incurred. On page 26 of the opinion announced
by my associate, Judge Parker, in the Yarj^an case, supra, after
quoting the expressions in the ordinance of claimed authoriza-
tion to construct the entire plant, this language is used :
'*This, we think, is within the power and the discretion of the
oounciL Of course, such plans might be defeated by the subse-
quent action of the council or by another council, because one
282 ClRCtJlT COURT REPORTS— NEW SERIES.
Piatt V. Toledo. [Vol. XII, N. S.
council can not bind its successors, and the whole plan might be
overturned in so far as its overturning would not interfere with
contracts lawfully entered into or other vested rights."
It does not appear that the expression of an intention to build
an entire bridge is any more revokable at the instance of the
present council, or any subsequent one, than was the expression
of intention and apparent authority in the Yaryan case, and we
are disposed to apply the principle of that case to the present
one, and to hold that the council in exercising the power con-
ferred upon it by law and in the protection of the best in-
terests of the city of Toledo, may authorize contracts to be en-
tered into and provide the means for their fulfillment, for the
completion of parts of such structures as the statute says they
may provide means to pay for, by the issue of bonds or other-
wise. We think that this contention that the council was power-
less to issue bonds for the construction of a bridge without mak-
ing provision for the construction of a draw or other method
of completely spanning the stream, should not be sustained, and
we adhere to the decision made in this respect upon the other trial
between the same parties.
As to the other issue — whether the attempted issue of $525,000
of bonds, added to the amount of other bonds authorized to be
issued during the year 1908, exceeded the limit established by
the statute — the question is to be determined by the considera-
tion of the various estimates of values, the figures given us as to
the issues of other bonds in connection with certain qualifications
of the statutory limitation found in Section 28356 of the Re-
vised Statutes, There are several sections which touch more or
less directly upon the questions under consideration. Without
reading them, I may cite Revised Statutes, 2835, 28356, 1536-
523, and an act for the issue of refunding bonds, 1536-282.
I have before me notes of the agreed amounts of bonds is-
sued in the several years prior to 1908, together with those au-
thorized to be issued during the present year. There is an aggre-
gate of $370,000 of bonds authorized to be issued in 1908 besides
the issue now sought to be enjoined, making a total of $895,000.
It is agreed that the valuation of the city property does not
exceed $79,000,000, one per cent, of which would be $790,000,
ClRCmT COURT REPORTS— NEW SERIES. 288
1909.1 Lucas County.
so that if the qualifications in the section to which I have re-
ferred— 28356— do not decrease the amount of the bonds below
the present amount authorized, there is no question that the is-
sue would be in excess of the limitation allowed, and the de-
crease would have to be to a total amount of not to exceed $790,-
000. I will not tarry long upon a discussion of the construction
of Section 2835b, but will simply express ray own opinion — and
probably that of the other members of the court — that sufficient
emphasis has not been placed, in argument, upon the last clause
or two of Section 28356, and especially the expression of what
is to be considered in arriving at the limitation therein provided.
To make intelligible the view at which we have arrived, it is
necessary to read this section :
*' Provided, further, that the limitations of one per cent, and
four per cent, prescribed in Section 2835, R. S., shall not be
construed as affecting bonds issued under authority of said Sec-
tion 2835 upon the approval of the electors of the corporation ;
nor shall bonds which are to be paid for by assessments specially
levied upon abutting property ; nor bonds issued for the purpose
of constructing, improving and extending water works when the
income from such water works is sufficient to cover the cost of all
operating expenses, interest charges and to pass a sufficient
amount to a sinking fund to retire such bonds when they become
due, nor any bonds issued prior to the passage of Section 2835,
R. S., a.s amended April 29, 1902, be deemed as subject to the
]>rovisions and limitations of said section, or be considered in
arriving at the limitations therein provided.''
Without going over the mass of figures submitted to us, I in-
vite especial attention to the language which I have now read,
in the closing part of this section: *'Nor [shall] any bonds is-
sued prior to the pas.sage of Section 2835, R. S., as amended
April 29, 1902, be deemed as subject to the provisions and limita-
tions of said section, or be considered in arriving at the limita-
tions therein provided.*'
It seems to us that there is no escape from the conclusion that
in determining the one per cent, of the tax valuation of prop-
erty in the city, or rather in determining the amount of bonds
which may be issued under the limitation, all bonds issued prior
to the amendment of Section 2835, on April 29, 1902, should be
284 CIRCUIT COURT REPORTS— NEW SERIES.
Piatt V. Toledo. [VoL 3CII, N. 8
excluded, whether they be original bonds to provide payment for
the construction of water works, or bonds to refund indebted-
ness created by such original issues, and under that view, if we
understand aright the contention of counsel for plaintiff, they
substantially concede that the limit of one per cent, is not ex-
ceeded by the issue of $525,000 of bonds added to the bonds al-
ready authorized for 1908, when the amount of the bonds for
water works purposes is taken with the qualification that such
bonds shall not be considered when the revenue from the water
works rentals is sufficient to provide for the Expenditures, main-
tenance and repairs and to pay the interest on the bonds and pro-
vide a sinking fund for their payment at maturity. I do not
care to go into the figures which led to the agreement and con-
cession which have been made in the case. The amount of the
bonds issued prior to the date of the amendment of Section 2835
referred to in the statute, should be, as I have said, eliminated
from our enquiry, and taking the bonds issued subsequent to
that date — i. e., to the amending of that section — the income de-
rived from the water works in 1907, to-wit, $204,000, would be
sufficient for the purposes expressed in the statute so as to pre-
vent the application of the amount of issue of water works bonds
in 1908 — $230,000 — upon the aggregate amount permissible un-
der the statute.
The conclusion at which we arrive is, that the plaintiff's con-
tention that the council is exceeding the issue permitted by Sec-
tion 2835 and Section 28356, is not maintained ; and, entertain-
ing these views as to both of the questions presented, we can
arrive at no other conclusion than that the plaintiff's petition
should be dismissed, and such will be the judgment.
CIHCUIT COURT REPORTS— NEW SERIES. 285
1909.1 Hamilton County.
NKCUCENCE ON PART OP MUNICIPAUTY.
Circuit Court of Hamilton County.
Ceceua Cavey v. City op Cincinnati.
Decided, June 19, 1909,
Dangerous 8idetDalk — Bord^ing on Unguarded Wall Over fohich a
Pedestrian Might Fall— Liability of the Municipaliti^— Pleading--
Variance — Interrogatories.
Where a street and sidewalk run so near an unguarded retaining wall
as to create the impression that the wall is within the line of the
sidewalk, the municipality is liable for injuries sustained by a
pedestrian who fell over the wall; and a variance between the
allegations of the petition and the proof as to the location of the
wall is not material.
Charles F. Williams and Outcalt dt Hickenlooper, for plaint-
iff in error.
Albert H, Morrill, for the city.
GiFPEN, P. J. ;• Swing, J., and Smith, J., concur.
Interrogatory No. 1 when strictly construed is not relevant
to the issues and is misleading. It is as follows :
•**Was the sidewalk within the limits of the lines of Oregon
street, at the place where the plaintiff was injured, in a reason-
ably safe condition for travel in the ordinary modes f Answer:
•'Yes.*'
This was equivalent to asking the jurj- whether a traveler or
footman who kept within the limits of the lines of the street
would be safe. No such issue was presented by the pleadings.
The danger lay not within the lines of the street, but adjacent,
and consisted of a precipitous retaining wall, over which a
footman using the sidewalk in the ordinary way might fall,- not
because within the lines of the street, but because so near them
that such result might and would be reasonably anticipated,
Interrogatory No. 13 is as follows:
'*Was the street and sidewalk within the limits of Oregon
.street, at the point where and at the time when plaintiff was
286 CIRCUIT COURT REPORTS— NEW SERIES.
Humphreys v. Schlenck. [Vol. XII. N. S.
injured, dangerous under ordinary circumstances to persons
using ordinary care to keep upon the proper path?" Answer:
**No.'^
Strictly speaking neither the street or sidewalk was in itself
dangerous, but the nearness of the sidewalk to a steep unguarded
wall made it dangerous for use in the ordinary mode.
The answer to inter rogatory- No. 14 that the city had no no-
tice of the dangerous condition is not material, as it existed so
long that the law presumes notice.
The answers to interrogatories 2, 5, 6, 11 and 12 are consistent
with the general verdict in favor of the plaintiff, and determine
the essential facts in issue. It follows therefore that the court
erred in rendering judgment for the defendant.
The variance between the allegation of the petition and the
proof of the location of the wall is not material, because to the
ordinary observer it was a part of the sidewalk and within the
limits of the street, although in fact without. The liability of a
municipal corporation for not guarding against a danger so near
the sidewalk is recognized in the case of Kelley v. City of Colum-
hus, 41 0. S.. 263.
Judgment reversed and judgment for plaintiff in error on the
authority of Cincinruiti Gas & Electric Co. v. Archdeacon^ Ad-
ministrator, 80 O. S., .
JUDGMENTS-EXECUTION— LIEN-PRIORITY— SECTION 5415.
Circuit Court of Hamilton County.
Humphreys v. Schlenk et al.
Decided, June 26, 1909.
WhQre the levying of execution on a judgment is delayed for more than
one year, the judgment creditor while retaining his lien loses his
priority to a subsequent judgment under which execution was levied
upon the land of the debtor within one year.
Morison R. Waite, for plaintiff in error.
Owen N. Kinney^ for defendant in error.
CIRCUIT COURT REPORTS— NEW SERIES. 287
1909.] Hamilton County.
Swing, J. ; Gipfen, P. J., and Smith, J., concur.
This is a question as to priority of liens. Schlenk's judgment
is prior in time and is -a lien on the lands in controversy, but not
having been levied on the lands of the debtor within one year
from the time of the rendition of the judgment under the pro-
visions of Section 5415, it lost its priority to the judgment of
Humphrey's, which was rendered subsequent and which was
levied on the lands in question. 3 O.. 135-6; 2 0. S., 36; 7
OFFICE OF CCItTAlN MOTIONS AND DEFENSES.
Circuit Court of Hamilton County.
SiD Black et al v, Wm. A. Goodman, Jr., trustee, et al.
Decided, June 19, 1909.
PJeadinQ — Motion for Judgment and to Make more Definite and Certain
— Cfood Faith in the Filing of Answer or Cross-Petition not Ma-
terial, Whenr^Error.
1. While the overruling of a motion to make definite and certain may
constitute reversible error, the question whether or not the overrul-
ing was proper can not be determined on a motion for judgment,
but only on a petition in error.
2. The object of a motion to strike from the flies is to test the correct-
ness of its form or the regularity of its filing; and if an answer
contains a good defense or a cross-petition a good cause of action, it
is immaterial whether or not it was filed in good faith, or for pur-
poses of delay only.
Murray M. Shoemaker, for plaintiff in error.
Healy, Ferris & McAvoy, contra.
Gipfen, P. J. ; Smith, J., and Swing, J., concur.
The bill of exceptions having been stricken from the files, the
defendants in error move the court for a judgment in their
favor **upoii the pleadings and record herein."
The first ground of error alleged is in overruling the motion of
plaintiff in error for defendants in error to make their petition
288 CIRCUIT COURT REPORTS— NEW SERIES.
State, ex rel, vs Sayre. f Vol. XII, N. S.
definite and certain. This is held to be reversible error in the
case of Railroad Co, v. Kistler, 66 0. S., 326, but whether the mo-
tion was in fact well founded must be determined when the
case comes on to be heard upon the petition in error and can
not be summarily disposed of on motion for judgment.
Another error alleged is in granting the motion of defendants
in error to strike the answer of plaintiffs in error from the files.
The office of a motion to strike a pleading from the files is to
test the regularity connected with the filing, as when filed after
the time allowed by statute, or the form of such pleadings as
when not verified, its office is not to inquire into the merits of
the case either in law or in fact. Finch v. Finch, 10 O. S., 501,
505.
If the answer and cross-petition is frivolous and was filed for
the purpose of delay merely, as stated in the motion, and all this
appears from the pleading itself, the motion was properly sus-
tained; but if the answer contains a good defense, or the cross-
petition a good cause of action, it is immaterial whether filed in
good faith or for purposes of delay only, and the motion should
have been overruled. Tractioii Co, v. Parish,, 67 0. S., 181.
In either event this is not the mode provided by statute for
reviewing a case on error, and the motion for judgment will be
overruled.
CIRCUIT COURT REPORTS— NEW SERIES. 289
1909.] Stark County.
EVIDENCE ESTABUSHINC A COMMON LAW MARRIAGE.
Circuit Court of Stark County.
Lee Umbenhour v. Hazel Umbenhour et al.
Decided, September, 1909.
Husband and Wife — Marriage per Verba de PraeaentU Valid, When —
Agreement not Made in the Presence of Witnesses — Competency of
Testimony of the Parties thereto — Death of One does not Preclude
Receiving Testimony of the Other — Question of the Validity of the
Marriage One of Fact for Jury or Court, When — Sections 52^0,
. 5241 and 52^2,
1. A mutual agreement entered into in good faith between competent
parties to contract the relation of husband and wife, followed by
cohabitation as such, constitutes a valid marriage, even if the
agreement was not made in the presence Of witnesses.
2. When it appears that the relation between the parties was in its
inceptfon meretricious and not accompanied by any evidence of
marriage, but subsequently their relations to each other assume
a matrimonial character by being surrounded by evidence of a
valid marriage, a question of fact is presented for the determina-
tion of the Jury or court trying the issue of marriage or no mar-
riage between the parties.
3. In such case either party is a competent witness to prove the agree-
ment. After the matrimonial status is fixed by cohabitation, the
parties thereafter come under the rule of exclusion as is pro-
vided in Subdivision 3 of Section 5241, Revised Statutes.
4. In this case, notwithstanding the husband is dead, not being a party
the wife is not rendered incompetent as a witness by Section 5242,
Revised Statutes.
McCaughcy, L\jivch & Day, for plaintiff.
Shields & Pomerene, contra.
Voorhees, J.; Donahue, J., concurs in a separate opinion;
Taggart, J., dissents.
This cause of action comes into this court on appeal, and is
submitted to the court on the pleadings and evidence.
The main dispute or contention is over the question whether
one Willard P. Umbenhour and Margaret Labus, otherwise known
as Margaret Umbenhour, ever entered into ft legal contract of
290 CIRCUIT COURT REPORTS— NEW SERIES.
Umbenbour v. Utnbenbour. [Vol. XII, N. S-
marriage. There was no ceremony or public solemnization of
the contract between them, or marriage according to the stat-
utes of Ohio regulating marriages; but it is contended by the
defendant, John J. Weffler, as guardian of Grace Helen Umben-
hour, a minor, that on or about the 12th day of May, 1901. at
the city of ^lassillon, in Stark county and in the state of Ohio,
the said Willard P. Umbenhour and said Margaret Labus en-
tered into a contract of marriage, and thereafter cohabited to-
gether as man and wife, until the death of said Willard P. XJm-
benhour. which occurred on or about the 14th day of February,
1907. "lie died intestate, leaving as the only issue of his body
the plaintiff, Lee Umbenhour, the defendant. Hazel Umbenhour,
and the said Grace Helen Umbenhour. Said Margaret is not
a party to this action.
At the the time of making said alleged contract of marriage
said Willard P. Umbenhour was a single man, and said Margaret
Labus was a single woman, both being of marriageable age, and
no legal impediment existing to prevent their entering into a
valid contract of marriage. The said Willard P. Umbenhour
had been previously married, but prior to said 12th day of
^lay, 1901, an absolute decree of divorce had been granted to
his former wife. The direct proof of the making of the con-
tract of marriage consisted of the testimony of Margaret Labus
of the fact. She admitted in her testimony that she and Wil-
lard P. Umbenhour had sustained meretricious or illicit relations
with each other prior to the 12th day of ^lay, 1901. They lived
in the city of Massillon. He was. a bartender at the Hotel Con-
rad; she was laundress at said hotel. There is no evidence, nor
is it even claimed that they there cohabited together, prior to
May 12, 1901 ; he had a room in a tenement house on Park Row
in said city. The evidence does not disclose whether she roomed
at the hotel, or had a room in said tenement house on Park
Row. It was not shown or admitted by her that they had co-
habited together prior to May 12, 1901, the admission only go-
ing to the extent that prior to the date named they had illicit
relations with each other. On the day named, she was at the
room in said tenement house on Park Row where said Willard P.
1 Umbenhour roomed, at which time and pl^ce she testified the
CIRCUIT COURT REPORTS— NEW SERIES. 291
1909.1 Stark County.
agreement was made. As to what occurred at that time she
testifies in chief, as follows: that ''Billy (meaning said Willard
P. Umbenhour) said to me, *The court won't give us no license,'
and he took my hand and he said, * I pledge myself as a true and
lawful husbaiid to you the longest day I live'; and I said to
Billy, *I pledge myself as a true and lawful wife to you the
longest day I live'; he slipped his mother's wedding ring on
my finger, and he kissed me, and he said, *If we ever have any
children they will hold us together.' " And on cross-examina-
tion she testifies as follows: ** Willard said to me *The court
wouldn't give no license,' and he took my hand and he said,
'I pledge myself as a true and lawful husband to you the
longest day I live ' ; and I said to him, * I plede myself as a true
and lawful wife to you the longest day I live ' ; then he kissed me
and slipped a ring on my finger.
Prom this time, to-wit. May 12, 1901, until the death of said
Willard P. Umbenhour, they cohabited as husband and wife — so
treated each other, and held themselves out as such to the com-
munity. They established themselves in a home in said tenement
house in Park Row in the city of Massillon, where they lived
for a time, and were recognized as husband and wife by those
who had occasion to come in contact with them. True, for
about two weeks she continued to work at the hotel as laundress,
until they could fill her place. At the time the alleged agree-
ment was made Willard P. Umbenhour was working at Sim
WeflBer's, a brother of Squire Weffler, the guardian of said Grace
Helen Umbenhour, and defendant in this suit. They prepared
their meals in said room and established themselves in it as a
home. After living in Massillon for about a year, they moved
to the city of Alliance in said county of Stark, and took up
their residence there, living in Mrs. Rastetter's house for a
while, and later moved upon another street. They kept house
in said last named city in the usual way that married people do.
True, their acquaintance in this latter city was limited, they
were strangers there, but so far as people became acquainted
with them, they were recognized as man and wife, and were in-
troduced as such to callers and neighbors who had occasion to
meet them. Before moving to Alliance^ Willard 's uncle died.
292 CIRCUIT COURT REPORTS— NEW SERIES.
Umbenhour v. Umbenhour. [Vol. XII, N. 8.
and he attended the funeral, taking with him said Margaret, and
there introduced her to his relatives as his wife. While living
in Alliance a child was born, which child had been conceived
after the making of said agreement or contract. The husband —
or we will still designate him by his name of Willard P.
Umbenhour — secured the services of a physician to attend his
wife in confinement. He said to the doctor, he ** wished to en-
gage his services to attend his wife in confinement." The doc-
tor did so, was introduced by Willard to this woman as ''his
wife," the child was born on the 3d day of October, 1902, and is
still living, and through its guardian, the defendant, John J.
Weffler, is contending for its rights as a child and heir of the
body of Willard P. Umbenhour. Willard put its name, giving
the name as Grace Helen, in the Bible belonging to them, among
the names of other children and members of his familv. When
speaking to or concerning this child, he always referred to it as
his, and when referring to this woman, either as his wife, or
**mama" when • desiring the child to go to her. Other facts,
circumstances, and acts in recognition of their relation to each
other as that of husband and wife might be mentioned, but
this is the trend of the testimony bearing on the question of the
agreement and of their cohabitation. These circumstances and
facts tend to corroborate the wife in her claim that the contract
of marriage was made before these acts and relations were done
and assumed.
It is true that the relation between these parties was at one
time, in its inception, and prior to May 12, 1901, meretricious
and not matrimonial. We concede that a relation so commenced
will be presumed to continue of the same character in the ab-
sence of proof of a change in its nature; but the parties might
assume legitimate and proper relations, and it is admissable to
show that such change took place, if it did.
In this case there was a change after the contract was made
as we have shown. The only thing to militate against the
validity of this marriage, as a common law marriage, is the
claim that Willard P. l,^mbenhour at one time and after the mak-
ing of the alleged contract said he was married over at Woost^r,
Wayne county, this state, by a minister. He did not deny or
CIRCUIT COURT REPORTS— NEW SERIES. 29S
1909.] Stark County.
say he had not married this woman, but gave a false statement
as to where and how he was married. On another occasion, re-
ferring to this child, Grace, he expressed a hope or desire that
she should share in his property as his child, and on one occa-
sion, and shortly before his death, or last sickness, in speaking
about a ceremonial marriage, he said that * * we ought to get mar-
ried" or **we ought to get married now."
It is further contended that she, Margaret, gave a false state-
ment concerning the marriage, stating that she was married on
some big water. This statement like his, as to where they were
married, or that they ought now to have a ceremonial marriage,
«
did not deny the making of the agreement, or that there was a
marriage relation existing between them, but the statements
were untrue as to the place and manner of their marriage.
These statements we think can have no other effect or force
than as they tend to discredit her contention that a contract of
marriage had been made between them at the time, place and
manner now claimed by her on this trial.
Whatever was said by Willard, or by her, as to when and
where they were married inconsistent with the present claim, we
think, in the light of all the circumstances and conduct of these
parties as disclosed in the evidence, from and after the date of
the making of the contract, could not and do not destroy the
effect of such a contract so made, followed by cohabitation, to
establish a legal marriage between these parties.
It is necessary to consider some questions urged at the trial
as to the competency of this woman as a witness in this case. It
is contended by plaintiff that she is an incompetent witness to
testify to the making of the contract. The objection is not laid
upon any special ground, but of general incompetency.
Under Section 5240, Revised Statutes, she is a competent
witness unless some ground of exclusion is shown. She is not
excluded by Section 5241, unless it would be under the third
subdivision of this act. If she is or ever was the wife of Wil-
lard P. Umbenhour, her competency as a witness would he
limited by this section. If this contention is sound, would it
not be the end of this case? We think the contention that she
294 ClbCUW COURT feEPOfttS— NEW SeWES.
Umbenhour v. Umbenhour. [Vol. XII, N. S.
is not a competent witness to prove the making of the agreement
is not tenable.
Marriage, strictly speaking, is not a mere civil contract, but is
a status created by contract. It is true it is founded on consent of
the parties, but the consent is the contract, because of which the
status is created. The contract being made by words in praesentiy
followed by cohabitation, fixes the status. Until the status is
fixed by cohabitation, either party to the making of the agree-
ment for a present marriage is a competent witness to estab-
lish the fact of the agreement, but after the agreement is made,
followed by cohabitation, the status is fixed, and then the parties
would thereafter come under the exclusion as to communications
and acts done between them, unless in the known presence or
hearing of a third party competent to be a witness, as is provided
in Subdivision 3 of Section 5241, Revised Statutes. There is
some of the testimony of this witness which we think will come
under this rule of exclusion, and the objection to all such testi-
mony is sustained, and, so limited, the testimony coming under
this rule is excluded, namely : acts done and conversations had
between these parties occurring after they had made the eon-
tract and commenced to cohabit under the agreement as man
and wife, unless in the known presence of a third party, would
be incompetent and is excluded. But she is a competent witness
to prove the making of the contract, and to all acts and con-
versations between them until the marriage was consummated by
cohabitation after the agreement w^as made. She is a competent
witness under Section 5240, and not affected or rendered in-
competent under Section 5241 until the marriage status is fixed
by cohabitation.
** Cohabiting together as husband and wife means living to-
gether publicly in the face of society, as if the conjugal relation
existed; living in the same house, in like manner, as marks
the intercourse between husband and wife.'' Bush v. State, 87
Ark., p. 215.
** Cohabitation does not mean sexual gratification only, but
it means to live or dwell together, to have the same habitation,
so that where one lives and dwells there does the other live and
dwell also.'' People v. Leahmesser, 38 Pac, p. 422; 104 Cal..
p. 631.
CIRCUIT COURT Reports— Nfi\v series. 2^)0
1909.] Stark County.
This leads lis to the consideration of the legal question in-
volved, namely: Is a common law marriage recognized as a
valid marriage in Ohio? We state the proposition thus broadly
for the reason that if np marriages other than such as are solem-
nized under and by virtue of the statutes of Ohio regulating
marriages are valid, such a conclusion would be the end of this
case so far as the rights of this child, Grace Helen Umbenhour,
are concerned. We think the common law marriage is recog-
nized in Ohio as a valid marriage, but we think conditions must
attend to make^it valid. We adopt as a correct exposition of
the law on this subject the clear and succinct statement of Judge
Phillips in his charge to the jury in the case of Mieritz v. Insnr-
ance Company y 8 X. P. — N. S., pp. 422-424, when he says :
** Marriage in Ohio may be ceremonial, as I will call it for
convenience, or it may be by mere agreement and cohabitation,
and without ceremony, and without license, and without the
publication of banns. So that in Ohio, a man and a woman that
are marriageable may become husband and wife by the official
solemnization of a marriage, by virtue of a license or after the
publication of banns and without a license, or by what is called
a common law marriage. If a man and a woman that are mar-
riageable agree between themselves to become husband and wife
and they agree to become such at once, and they thereafter con-
tinuously cohabit as husband and wife, sustain the relation to-
ward each other that is proper only for husband and wife, then
the law says they are husband and wife. By such agreement to
become husband and wife and by such cohabitation and carry-
ing out of that agreement they become as legally and validly
married as though they were married by official ceremony and
by virtue of a license or by publication of banns. Cohabitation
aione would not make them husband and wife, nor would the
agreement if not consummated in the waj'^ I have stated make
them husband and wife ; but it is the agreement entered into at
once, and the continued cohabitation in that relation, and the
treatment of each other not only between themselvas, but in the
community, as husband and wife, that makes them such.*'
We believe this is the rule of law recognized by the great
weight of authority in this country, and there is no conflict with
the principle announced by Judge Phillips, unless it may be
found in the reasoning of the judge announcing the opinion of
29tt CIRCUIT COURT REPORTS— NIlW SERIES.
Umbenhour v. Umbenhour. [Vol. XII, N. S.
the Circuit Court in the ease of Bates v. The State of Ohio, 9 C.
C— N. S., p. 273,
The record in that case as shown in the opinion of the court
reversing the court below, fails to show any contract of mar-
riage in that case, and the Supreme Court in affirming the cir-
cuit court and reversing the common pleas say in its memorandum
of affirmance (77 0. S., pp. 622-623) : ** Judgment affirmed on
the ground that evidence did not establish a common law mar-
riage." This by no means sustains the contention that common
law marriages are not recognized in Ohio. Without undertaking
to cite generally the authorities outside of this state in sustaining
such a marriage as we have in the case at bar, we will call atten-
tion to a few.
In the case of Elizas v. Elizas, 171 111., p. 632, s. e. 49 N. E.,
p. 717, affirming the 72 111. App., p. 94, the court held:
** Although the relation between the parties was in its incep-
tion meretricious, a marriage is sufficiently proven by the
woman 's testimony that they made a contract of marriage, the
fact that they immediately moved from disreputable into re-
spectable quarters and continued to live as man and wife, he in-
troducing her as such, and on the birth of their child sent her
congratulations," etc.
Where it appears, as in this case, that the intercourse between
the parties was illicit at first, but subsequently is assumed a
matrimonial character and was surrounded by evidence of co-
habitation apparently decent and orderly, a presumption of more
or less strength is raised that the parties have been duly married.
While such cohabitation does not of itself constitute marriage,
it tends to prove that a marriage contract has been entered into
between the parties. Such conduct and cohabitation are in
corroboration or tend at least to corroborate the testimony of
the wife in her claim that a contract was entered into as testified
by her. The principle as here stated is supported by many au-
thorities and especially in the case of Gall v. Gall, 114 X. Y.,
p. 109.
One of the latest cases bearing upon a common law marriage
is the case of Travers et al v. Maria L. Reinhurdt, bv the Su-
preme Court of the United States, reported in the May number.
CIRCUIT COURT REPORTS— NEW SERIES. 297
1909.1 Stark County.
May 15, 1907, of ''AH Opinions of the United States Supreme
Court. Advance Sheets/' page 563, where the court say in its
second paragraph of the syllabus:
** Marriage — Per verba de praesenti. Persons whose alleged
marriage in Virginia might have been invalid for want of a
license had they remained there, might also for want of a
religious ceremony have been invalid in Maryland, must be
deemed married in New Jersey when as husband and wife they
took up their permanent residence there and lived together in
that relation continuously in good faith and openly, up to the
time of the man's death, being regarded by themselves and in-
the community as husband and wife, since their conduct towards
each other in the eye of the public while in New Jersey taken in
connection with their previous association, was equivalent in law
to a declaration by ^ach that they did, and during their joint
lives were to occupy the relation of husband and wife, which
was as effective to establish the status of marriage in New Jersey
as if it had been made in words of the present tense after they
become domiciled in that state."
**A contract can not be implied as a matter of law, yet there
may be an inference from facts proved, which fairly lead to the
conclusion that there was a contract. When the conduct of
parties are susceptible of two opposite explanations, the law
a-ssumes it to be moral rather than immoral; and credit is to be
given to their own assertions whether expressed or implied, of
a fact within their own knowledge. " Fort v. Port, 70 111., p. 484.
In Hays v. People, 25 N. Y., p. 390, the principle is stated thus:
**It is a settled rule in this state, and in many other states that
a marriage in fact may be shown by proof of an agreement be-
tween two persons of opposite sex to take each other presently
as husband and wife, consummated by cohabitation."
Without pursuing the discussion further on authority or
otherwise, we are of the opinion, and so find, that these parties
were legally married ; that Grace Helen Umbenhour is the legiti-
mate child of such marriage, and is an heir of the said Willard
P. Umbenhour, and is entitled to one-third interest in the prem-
ises described in the petition, and is entitled to the relief prayed
for in the answer and cross-petition of the defendant, John J.
Weffler, guardian of said Grace Helen Umbenhour. And an
order of partition is ordered in accordance with this finding and
298 CIRCUIT COURT REPORTS— NEW SERIES.
Umbenhour v. Umbenhour. [Vol. XII, N. S.
decree. To which finding and decree the plaintiff excepts. Mo-
tion for new trial filed and overruled; exceptions; statutory
time for bill of exceptions ; twenty days for separate finding of
facts and conclusions of law.
Donahue, J.
The opinion already written by my associate so fully covers
every question in this case that I do not care to discuss any of
them at length, but simply to give my reasons for concurring in
the majority opinion.
I agree with both of my associates upon the question that there
may be a valid common law marriage in Ohio, and the essential
elements necessary to constitute such a marriage. It may be a
matter of regret that such is the law, but it is not the province
of the court to legislate upon such subjects ; we have discharged
our full duty when we declare the existing law and apply it to
the facts and circumstances of the case at issue. I do not agree
with our dissenting associate that the correct solution of this
case depends entirely upon the evidence of the witness calling
herself Margaret Umbenhour. True, we must have recourse to
her evidence, for any oral evidence touching the contract in
praesenti, and if her evidence in that behalf were not corrobor-
ated by other facts proven in this case I would very readily
agree with the contention of counsel for plaintiff and defendant.
Hazel Umbenhour, not that the witness so unfavorably impresses
me as to discredit her own evidence in that behalf, but the lan-
guage that she stated was used in the making and entering into
this contract is hardly the language that you would expect per-
sons in their situation and condition of life to use; but, not-
withstanding that fact, it is just as certain that some change came
into their lives about that time. It is undisputed in this evidence
that about that time, or within two weeks thereafter, and just
as soon as the hotel could secure another laundress, this woman
gave up her position there and went to live with Willard P.
Umbenhour, and their relations thereafter were to all intents
and purposes the same as the relations of husband and wife.
Willard P. Umbenhour shortly thereafter told. a friend of his
that he had been married at Wooster, and to whatever persons
CIRCUIT COURT REPORTS— NEW SERIES. 299
1909.] * Stark County.
they came in contact with in Massillon during the remainder of
the time they lived there, they introduced each other as husband
and wife, and after they removed to Alliance their relations
were such and conduct was such, and their treatment of each
other and the child was such" as it would have been had they
in truth and fact been married. So that every thing that
follows up until the death of Willard P. Umbenhour from and
after this claimed contract or pledge was made is perfectly con-
sistent with the claim, and especially the fact that he took Mar-
garet to the funeral of his uncle and there introduced her to
his relatives as his wife. It is true that prior to his death and
after the birth of the child, he said to ^Margaret, **now, we
ought to be married,*' but this does not necessarily preclude the
possibility, or even the probability, of a common law marriage
having taken place between them; for I am inclined to the
belief that even though all transpired that has been testified to
by Margaret, yet these people were, perhaps, of the opinion that
they were legally married, but their opinion upon the subject is
not important. If this were a criminal prosecution of Margaret
or "Willard for bigamy, or a prosecution against Willard for
failure to provide, his mere opinion as to whether he had or
had not been legally married to Margaret would be of no avail,
but the case would be determined upon the facti? proven, and not
otherwise.
I am also thoroughly in accord with what is stated in the dis-
senting opinion, as to what these people should have done had
they had any decent regard for society or for the welfare of
their offspring; but I am not in accord with the statement that
a court ought not, at the expense of two innocent children, di-
vide their patrimony and give it to their unfortunate child. This
child is just as innocent of wrong as the two children who are
conceded to be legitimate. Its rights are just as sacred to this
court, and ought not to be sacrificed upon the mere suspicion or
mere possibility that Margaret Labus or Margaret Umbenhour
is telling an untruth. This child has much more at stake in this
litigation than the dollars and cents it will acquire in this par-
tition suit, and if it is in fact legitimate these other children, Lee
and Hazel Umbenhour, are interested and ought to be concerned
800 CIRCUIT COURT REPORTS— NEW SERIES.
Umbenliour v. Umbenhour. * [Vol. XII, N. S.
in having its legitimacy determined, even if by doing bo their
share of the patrimony should be less, yet it is certainly to
their advantage, and ought to be a source of great gratification
to them, and certainly will be when they reach more mature
years, to know that their half-sister is legitimate, and that the
last hours of their father's life was not spent in criminal re-
lations with the mother of this child. But these considerations
by no means determine the questions at issue. The evidence
must control, no matter who it helps or hurts.
These matters are referred to only as showing the gravity of
the case and the care and consideration that courts should exer-
cise in determining the rights of the respective parties, and after
careful and mature consideration of all this evidence I have
reached the conclusion that there was such a contract in praesenii
as the law requires, and that such contract was followed by a
change in the relations of the parties, and was followed by
cohabitation and the holding each other out to the world as hus-
band and wife, and that by reason thereof there* was a valid
common law marriage between Willard P. Umbenhour and Mar-
garet Labus, and that the defendant, Grace Helen Umbenhour,
was and is the legitimate child and heir of Willard P. Umben-
hour, and as such comes within the provisions of the deed of
Jacob Umbenhour t/O Willard P. Umbenhour for "his natural
life, and to the heirs of his body,, if any he haVe."
Taggart, J.
I can not concur with the judgment of the majority of the
court for the following reasons:
On December 1, 1887, Jacob Umbenhour by deed conveyed to
Willard P. Umbenhour the undivided one-fourth part of certain
premises in Stark county, Ohio, during the natural life and *'to
the heirs of his body, if any he have.'* There are other pro-
visions in this deed, but they are unnecessary to note in the
determination of this case.
Willard P. died February 14, 1907. Lee and Hazel Umben-
hour claim to be the only heirs of his body, and if found to be
such are entitled to the property involved in this ease.
CIRCUIT COURT REPORTS— NEW SERIES. 801
1909.] Stark County.
It is not disputed that these two are the children of Willard
P. and Lucy Umbenhour, born in lawful wedlock. Willard P.
and Lucy were divorced some time in February, 1901.
On October 3, 1902, Grace Helen, a daughter of Willard P.
and Margaret Labus, was born, and through her guardian, claims
the undivided one-third of this property. On her behalf the
claim is made that, after the divorce of Willard P. and Lucy,
that Willard P. and Margaret Labus on May 12, 1901, entered
into a consensual marriage, and that this relation existed until
the death of Willard in 1907.
The evidence fully establishes the fact that, prior to the di-
vorce of Willard and Lucy, the relations between Willard and
Margaret Labus were illicit, and continued so until, as she claims
on May 12, 1901, they agreed to become husband and wife. The
only evidence of the contract of marriage is found in the testi-
mony of the witness, Margaret Labus. She says, in speaking of
their relations, that ** Before the divorce the same were illicit."
** After he was divorced he said to me, *Mag, you get the blame
and we might as well have the game.' So he said, we will be
married, and it went on till May.'' Then in May, down in his
room, she says the following took place: **Well, in May — it
went on till May, and Billy said to me, the court won't give
us no license, and he took my hand and he said, * I pledge myself
as a true and lawful husband to you the longest day I live. ' And
I said to Billy, I pledge myself as a true and lawful wife to you
the longest day I live.' He slipped his mother's wedding ring on
my finger, and he kissed me, and he said, *if we have any chil-
dren, they will hold us together.' " These are the words of the
contract or agreement in praesenti, which, it is claimed, fixed
the stfiftus of these partias, as there is proof of cohabitation con-
tinuing from about this time until the death of Willard in 1907.
This agreement was the only contract claimed to have been made
between these parties, and there is no claim of any other, or
different, contract or marriage ceremony. This case rests on the
(ruth or falsity of this testimony.
If this story, taken in connection with all the circumstances
of the case, is unworthy of belief, then the claim of Grace Helen
to part of this property must fail.
302 CIRCUIT COURT REPORTS— NEW SERIES.
UmbenhouT v. Umbenhour. [Vol. XII, N. S.
A witness is entitled to be believed unless impeached by other
witnesses on his own story, or discredited bv the circumstances
of the case.
This witness is impeached by her own story. She gave an al-
together different account of her relations with Willard shortly
after his death. She then claimed that she had been married bv
a minister on a large body of water, a distance from the shore.
She explains that she gave this account of her marriage be-
cause she was ashamed to tell the truth. She tells this story
shortly after Willard *s death, when she did not have the time to
fully make up or invent the story that she now tells. This con-
tract or pledge was kept a profound secret; never brought to
light until testified to in court. Both of these parties knew that
the usual and ordinary way to enter into the marital relation
was in public, and by employing the offices of priest, minister or
magistrate. It is not shown that either knew that the marriage
relation might be entered into without a solemnization by a
magistrate or minister. It does not appear from the proof that
either knew that this so called pledge had any binding force or
effect. On the contrary, there is proof that they did not deem it
binding or valid. *
Recurring to the testimony of Margaret: ** Willard said, be-
fore his death, ' we ought to be — tve ought to get married now, '
'^And what did you sayf Did you agree to that?** ''Why,
sure I did,** **Did Billy speak about getting a license and get-
ting married after May 12, 1901, and up to the time of his
death r' **Not until up until a little while before his death."
There is not a single declaration or admission of either of
these parties as to the fact that a marriage ceremony, or a mar-
riage contract, as testified to by Margaret, had taken place.
While Willard P. entered the name and date of birth of Grace
Helen in the fly leaf of the Bible, with that of his other children,
he does not enter the fact of this marriage, or the date of it in
the Bible, or, in connection with the date of the birth of Grace
Helen. He, in fact, knew that his marriage with Lucy was a mat-
ter of record and its proof easy. He does nothing to bring to
light the secret and unusual transaction, as testified to by Mar-
garet Labus. The witness herself says that she never told any
CIRCUIT COURT REPORTS— NEW SERIES. 308
1909.] Stark County.
one how or when they were married or told the story she now
tells.
I'he story of the pledge is not credible. The language em-
ployed is not such as persons situated as these persons were, Would
employ. Nor would they employ this manner of getting married.
The proof does not show that either ever knew of such a formula
being employed, or of such a marriage ever having taken place.
It is consent or agreement, and not cohabitation, that fixes the
status of marriage, and this consent, or agreement, is not estab-
lished by the proof. The circumstances of the case are against
the claim that there wa^ a marriage and iwt a mere continua-
tion of the illicit relation.
The following rules are well established, understood and
supported by abundant authorities: Relations illicit at the in-
ception, when there is no impediment to marriage, the presump-
tion is, that their continuance is of the same character. The fact
that a woman assumes a certain name is not any evidence that
she is married to the man of that name.
Acknowledgement of marriage. Marriage will not be pre-
sumed from mere acknowledgement, when the acknowledgement
is as referable to improper relations as to matrimonial ; or when
it appears that the acknowledgement is made to conceal the un-
lawful relation. Mere reputation that parties are husband and
wife is not enough to warrant a presumption of marriage. This
reputation must be general and uniform.
Proof of change in relations. The evidence must establish
that the change was referable to the contract of marriage, or to
a valid marriage, or the presumption will obtain that the illicit
relations continue.
That there was any change in the relation of these parties
can not fairly be claimed. Their association before this so-
called pledge was meretricious, and they made no change, ex-
cept to continue the relations "more openly; carefully concealing
the fact that anything like the semblance of a marriage had taken
place. Had either of these parties desired to make public the
fact that they were not continuing their former relations, but
that they had in fact been married as claimed, it could easily
and surely have been done by stating the fact to relatives or
804 CIRCUIT COURT REPORTS— NEW SERIES.
Umbenhour v. Umbenhour. [VoL XII. N. S.
acquaintances, in the presence of the other, and silence or the
admission of the fact would have been proof that it had taken
place. The very fact that during these years no such admission
or public declaration was made by either, negatives the idea
that the pledging ever took place, and the holding out was, in
fact, to cover a relationship that was improper. The writing of
the name ** Grace Helen'* in the Bible, and the acknowledar-
ment of her as their child, does not establish a marriage. She was
their child, but the acknowledgement does not prove that she
was born in wedlock. Many a natural father has acknowledged
his child, and acknowledged the mother of the child as its mother,
but that does not establish the fact that she was his wife. lie
said in his last days, '*IIe wished that Grace might share with
the other heirs. '* Had there been a contract between these par-
ties, dating from May, 1901, and it was believed or known that
it was binding, why thus wish that the child might share with his
other children?
Finally, there is no reason given for their taking up with
each other, and living as they did, if they desired to change
their meretricious relation to one matrimonial. They knei\' that
people in these days, in a respectable community, publicly unite
in marriage, so that their stahis, and that of their children, will
not be left to any uncertainty. They knew that a public mar-
riage is deemed and held respectable, and that a secret one is
looked on with suspicion. Did they desire to make amends for
their past conduct, they would have been married publicly by a
magistrate or a minister. Even after the birth of their child, if
they had any regard for it« future, they would have made some
permanent provision, so that its rights would not have been left
to very uncertain testimony of a single witness and its legiti-
macy left in doubt. Their conduct is only explained by the be-
lief that they were never married, or that they never had any re-
gard for their child, or hoped that some court, at the expense of
two innocent children, would divide their patrimony, and give
it to their unfortunate child, thus giving it a status and legitimacy
which they, without a decent respect for the usages and customs
of respectable society, had denied it.
CIRCUIT COURT REPORTS— NEW SERIES. 805
1909.] Franklin County.
AS TO THE APPOINTMENT OF DIRECTORS OF PUBLIC
SAFETY.
Circuit Court of Franklin County.
The State of Ohio, ex rel Samuel C. Sio^vybaugh et al, v.
Sylvester C. Noble, as Auditor op the City
OP Columbus.
Decided. October 12, 1909.
Municipal Corporations — Quo Wa/rranto — Involving Yalidity of Appoint-
ment of Director of Public Safety, where Made August i, i909 —
Section 1^6 and Other Sections of the Municipal Code as Amended
ApHl 29, 1908.
Under the sections of the municipal code as amended, departments
of public safety went out of existence on August 1, 1909, and the
appointment of directors of public safety on that date was au-
thorized by law.
WUliams, Williams & Taylor, Simeon Nash and H. M, Myers,
for plaintiff.
George S. Marshall and Edgar L, Weiitla^id, contra.
Sullivan, J. ; Dustin, J., and ^llrbad, J., concur.
Mandamus.
The petition of relators shows that they furnished for use of
the fire department of the city of Columbus a quantity of oats,
which was accepted by the city, and that a voucher therefor was
approved by Poster 6. Burdell, as director of the department of
public safety of said city; that they presented said approved
voucher to the respondent and demanded that he issue his war-
rant as city auditor on the treasury of said city for the amount
of said approved voucher, which was refused by said respondent,
and that he still refuses to issue the same. They, therefore,
pray that they may have the order of this court requiring him to
do so.
To this petition the respondent has demurred, and for his
ground of demurrer states that the petition does not state
facts sufficient to constitute a cause of action, and to entitle the
relators to the relief prayed for. Counsel for respondent in
fUm CIRCUIT COURT REPORTS— NEW SERIES.
state, ex rel, v. Noble. Auditor. [Vol. XII. N. S.
support of the demurrer contends that Foster G. Burdell was
not at the time he approved said voucher, or at any time there-
tofore, or now is the director of the department of public safety
of said city, and therefore was without authority to approve it,
for the reason that his appointment to said position by the mayor
of said city was without authority of law; that Section 146 of
the municipal code as amended April 29, 1908, by favor of
which said appointment is claimed to have been made, does not
take effect until the 1st day of January, 1910. Therefore, said
appointment was premature and of no effect. Though Sec-
tion 3 of said act, in language of plain import, provides that the
several sections relating to the department of public safety,
including Section 146, shall take effect and be in full fore^?
on and after August 1st, 1909, yet when the several sections
of the act, including Section 146, are construed as a whole, ob-
serving the well established rules of statutory construction,
it is claimed that the Legislature did not intend what it said
in plain language, but did intend that said section should not
take effect until January 1st, 1910.
It is claimed first by respondent's counsel that this is ap-
parent from the provisions of Section 154o. This section pro-
vides for a board of control, to be composed of the mayor, the
director of public safety, and the director of public service, and
as there can not be an appointment made to the last department
until eJanuary 1st, 1910, the board of public service, by favor
of Section 3 of the act, remains in office and in charge of that
department until said date, consequently there can be no board
of control until then.
The duty of this board is simply to determine whether the
director of public safety and of the public service shall award
contracts involving an expenditure of the public money in ex-
cess of $500. The mayor is ex officio president. A record of
the board's proceedings is to be kept; all vot^s shall be by yeas
and nays and entered of record, and a majority of all the mem-
bers shall be necessary to adopt any question.
By Section 154 the director of public safety is positively for-
bidden from creating an obligation in his department against
the city in excess of $500, without being first fiuthorized and di-
CIRCUIT COURT REPORTS— NEW SERIES. 3()7
1909.1 Franklin County.
f
reeled by ordinance of council ; and in making contracts for such
an expenditure, he is to be governed by the provisions of Sec-
tion 143. By the provisions of this section, the director
of public safety must first advertise for bids. When the ex-
penditure has been authorized and directed by council, the di-
rector shaU make a written contract with the lowest and best
bidder. The contract shall be between the corporation and the
bidder. It would seem from these sections that when the coun-
cil authorized and directed the expenditure, that the duty en-
joined upon the director of public safety was imperative, and
the contract would have to be entered into in accordance with
the provisions of Sections 143 and 154. These sections are for
the purpose of restraint upon the respective directors. When
an expenditure exceeding $500 is suggested or said to be needed
by either of the directors, the council has the authority to pass
upon the wisdom and necessity of the same.
The matter proposed to be safeguarded by Section 154a, wq
think finds ample and better protection in Sections 143 and 154,
and that the interests of the municipality would not suffer ma-
terially if the taking effect of 154o was not only delayed until
January 1st, 1910, but indefinitely postponed. We think it
more reasonable to assume that the Legislature did not intend
154o to go into effect until January 1st, 1910, than to say it did
not intend by the plain language of Section 3 that 146 should
take effect August 1st, 1909.
The second ground of respondent's contention is that if proper
force is given Sections 162 and 166, it is clear that the Legisla-
ture intended to continue the present system of civil service in
force until January 1st, 1910; that Section 162 lends strong
color to this conclusion and Section 166 puts it absolutely beyond
doubt, and therefore clear, that the contention of respondent Is
correct as to the legislative intent.
Section 162 provides in effect that chiefs and members of tht*
police and fire departments shall be dismissed for the causes
designated in Section 152, and the proceedings in such cases shall
be as provided in the latter section, except the appeal shall be
to the civil service commission. Dismissals under Section 162
can not be had until it goes into effect, which is January 1st, 1910.
5)08 CIRCUIT COURT REPORTS— NEW SERIES.
state, ex rel, t. Noble, Auditor. {YoL XII, N. 8
When it does take effect the provision of 152, providing for ap-
peals, would not apply to appeals under Section 162, and yet
152, if counsers contention was correct, would still be in force
by virtue of 166, which provides that no officer, secretary, patrol-
man, fireman, etc., shall be dismissed at the time it took effect,
except in accordance with the provisions of 152. Hence, there
would be two tribunals to which appeals could be taken. We
think this was not intended. The apparent inconsistency be-
tween these sections furnishes no reason why effect should not
be given other sections where the intent of the Legislature is
expressed in plain terms capable of literal interpretation.
The several amended sections creating the department of pub-
lic safety, the appointment of a director to administer the de-
partment, defining his powers and duties, are sufficient within
themselves to be capable of execution without reference to other
sections of the act. The sections of the act repealing the old
sections and fixing the date when the same shall take effect arc
in plain and unambiguous language and easy of interpretation,
and if literally construed, the sections creating the board of
public safety, ft seq, were repealed, and the repeal took effect
and was in force on and after August 1st, 1909. As the single
director is a substitute for the board if the merit jjystem is to
cohtinue during the interim, no violence will be done the language
of Section 152, to hold that the appeal therein provided for can
as well be taken to the director as theretofore to the board.
*'Tf the language of the statute is plain and free from am-
biguity, and expresses a single, definite and sensible meaning,
that meaning is conclusively presumed to be the meaning which
the Legislature intended to convey. In other words, the stat-
ute must be interpreted literally." Black on Interpretation of
Lairs, pp. 85 and 36, and cases cited.
Apply this rule in the interpretation of Sections 2 and 3 of
the act under consideration, and the conclusion is forced that the
amended sections relative to the department of public safety
went into force on August 1st, 1909; that the board of public
safety went out of existence at that date ; and therefore the ap-
I>ointment of a director to that position on the date named was
authorized ; therefore the demurrer to the petitioh is overruled
at defendant's costs.
CIRCUIT COURT REPORTS— NEW SERIES. 809
1909.] Hamilton County.
PROOF AS TO DAMAGES FOIL WRONGFUL DETENTION.
Circuit Court of Hamilton County.
Sadie Arnold v. Rudolph Wurlitzer Co.
* Decided, March 6, 1909.
Replevin — Competency of Evidence — As to Damages for Wrongful De-
tention of Musical Instruments — Probable Earnings of 8uch In-
struments.
M. C. Lykins, for plaintiff in error.
Wm, S. Little, contra.
The jury fixed the damages for the wrongful retention of one
piano and one harp at $150. It was claimed that the testimony,
offered by the plaintiff below, Wurlitzer Company, as to the
probable earnings of these instruments during the period of
wrongful detention, was improperly admitted.
Smith, J. ; Gipfen, P. J., and Swing, J., concur.
We do not think the evidence objected to by the plaintiff in
error was erroneously admitted on the question of damages, and
the judgment of the court below will be affirmed.
QUIETING TITLE TO PROPERTY CLAIMED AS A STREET.
Circuit Court of Hamilton County.
Sophia Drucker v. Village of Home City. •
Decided, November 23, 1907.
Title — To Property Ineffectually Dedicated for Street Purposes — Rights
of a Subsequent Grantee — Adverse Possession.
1. The dedication of a street of a village can not take place before the
creation of the village, and where an attempt is made to dedicate
property for a street, but before the creation of the village the
dedicator conveys the property to another by deed in the usual
form, such conveyance amounts to a revocation of the dedication.
* Affirmed by the Supreme Court without report. Village of Home City
V. Drucker, 81 Ohio State.
810 CI16CUIT COURT REPORTS— NEW SERIES.
Drucker v. Home City. [Vol. XII, N. S.
2. Title is obtained by adverse possession as against a corporation,
where th« probabilities as to the situation bear out the positive
testimony of the plaintiff asserting such possession.
Albet^t Beitingerf for plaintiff.
James B, Matson and Sayler & Sayler, contra.
The plaintiff in this case sued to quiet title to a strip of ground
claimed by the defendant village as a street. The contention
of the village was that certain streets within the territory which
now forms a part of the village were dedicated by the owner
of the lands in 1849, thirty years before the incorporation of
the village. The plaintiff built a fence across one of these
streets and for many years used the space as a garden.
Swing, J. ; Gippen, J., and Smith, J., concur.
We are of the opinion that the plaintiff is entitled to the re-
lief sought on two grounds :
1st. She has title to the premises through deeds from the
Cincinnati Building Association. The dedication of the building
association could not have taken effect before the creation of
the village of Home City in 1879. There was no grantee in ex-
istence to take, and of course there could have been no acceptance
until after the creation of the village. Long before this, to-wit,
in 1860, the building association deeded away this property, and
therefore under the decision in the case of Lackland v. SmUey,
26 0. S., 94, the conveyance operated as a revocation as to the
property conveyed.
2d. She is entitled to recover as owner by reason of adverse
possession i<Sr more than twenty-one years under a claim of right.
Title by adverse possession in Ohio is as good against a corpora-
tion as against an individual, the only difference being in the
character of the proof required. 17 C. C, 472, affirmed by the
Supreme Court
The evidence here was conflicting, as it generally is when
witnesses are testifying to facts which existed twenty years be-
fore. All the witnesses seemed to be honest and fair and dis-
interested, but we feel bound t^ think that the witnesses for the
plaintiff had the best opportunity to observe the conditions that
existed there, especiall^^ the Crosses, and not only this but it
CIRCUIT COUkT feEPO&TS— NEW SERIES. 8]1
1909.] Huron County.
would seem very unreasonable that Drucker should have main-
tained a fence around only a portion of her garden at the point
where she did. It would seem that a fence was necessary to pro-
tect her garden, which she planted yearly on the ground in ques-
tion. Without a fence she could not hope to raise a crop, and
all the witnesses agree that she raised crops yearly on this prop-
erty, and there was no evidence that any of her crops were ever
injured by animals or otherwise.
We feel therefore that the probabilities as to the situation ])ear
out the positive evidence of the plaintiff.
Decree accordingly.
ASSAULT AND BATT£RY— SBLF-MFSNSK.
Circuit Court of Huron County.
H. C. AuRAND V. State of Ohio.
Decided, 1909.
Criminal Law — Defense of Self-Defenae Affainst a Charge of Assault
and Batterv — Reasonableness of Belief of Accused that he was in
Danger — Burden of Proof.
A charge to the jury In a prosecution for assault and battery In which
self-defense is asserted is erroneous where It Instructs the jury that
the burden is on the defendant to show that he was in actual dan-
ger, that the exigency demanded self-defense, and that he used no
more force than was actually necessary, ignoring any question as
to a reasonable belief that he was in danger and that the force
used was necessary to his defense.
McKnight & Thom(is, for plaintiff in error, cited and com-
mented upon the following authorities:
State V. Johnson, 58 Ohio St., 417; People v. Rodrigo, 69 Cal..
601 ; State* v. Shea, 104 Iowa, 724 ; Commonwealth v. McKie, 67
Mass. (1 Gray), 61; United States v. Lunt, 1 Sprague, 311 j
People V. Shanley, 62 N. Y. Supp., 389; State v. Schmidt, 19 s!
Dak., 585 ; State v. Fowler, 52 Iowa, 103 ; People v. Lynch, 101
Cal., 229; Marts v. State, 26 Ohio St., 162; Goins v. State, 46
Ohio St., 457; Darling v. Williams, 35 Ohio St, 62; Jordan v.
812 CiRCUlt COURT REPORTS— NEW SERIES.
Aurand v. State of Ohio. [Vol. XII, N. S.
State, 13 C. C, 471; Stewart v. State, 1 Ohio St., 66; Bennett
V. State, 10 C. C, 84.
Don J. Young, for defendant in error.
WiLDMAN, J. ; Parker, J., and Kinkade, J., concur.
Error to Huron Common Pleas Court.
In this case Dr. H. C. Aurand was indicted for an assault upon
one Harry Tuck with malicious intent to disfigure him and was
convicted in common pleas court of assault only. To reverse
the judgment of the court of common pleas, this proceeding is in-
stituted here.
A number of errors are presented, but specific attention need
be given to but one which seems to us of sufficient importance to
justify very careful consideration.
The charge of the court given to the jury after argument is
brief and in but one part of it touches the question of asserted
justification of self-defense. The language of the court is found
on page 132 of the bill of exceptions and is as follows:
**In behalf of the defendant, it is claimed that if he injured
Tuck, he was acting in so doing in defense of his own person.
**A person unlawfully assaulted by another may use all the
force necessary to repel the assault, but no more. Self-defense
under such circumstances is in law a justification.
* * The burden is on the defendant to prove by a preponderance
of the evidence that he acted in self-defense. It is not enough
for him to show that he was so acting, but it must further ap-
pear that no more force was used by him than the exigency neces-
sarily demanded. If he were guilty of an unreasonable and dis-
proportionate degree of violence toward the person of. another,
he is liable for the excess of force used by him beyond what was
reasonably necessary under the circumstances.*'
And on page 133. the court is reported to have said:
** While the burden is on the defendant to show by a pre-
ponderance of the evidence that if he assaulted Tuck, he was
justified by the necessity of self-defense in so doing, in all other
respects, as to every material question in the case, the burden is
on the state."
In the case of Marts v. State, 26 Ohio St., 163, in the second
paragraph of the syllabus, the Supreme Court laid down this
CIRCUIT COURT REPORTS— NEW SERIES. 81S
1909.] Huron County.
rule applicable to this class of cases and indeed applicable and
applied to a case of homicide. The paragraph referred to is as
follows :
** Homicide is justifiable on the ground, of self-defense, where
a slayer, in the careful and proper use of his faculties, bofia fide
believes and has reasonable ground to believe, that he is in im-
minent danger of death or great bodily harm, and that his only
means of escape from such danger will be by taking the life of
his assailant, though in fact he is mistaken as to the existence
or imminence of the danger.'*
The rule so expressed has been repeatedly followed in later
adjudications of the Supreme Court and other courts of the
state.
I would cite, without reading, the case of Darling v. Williams^
35 Ohio St., 58, and especially the language of Judge Boynton
on page 62; also the case of Ooins v. State, 46 Ohio St., 469.
I might cite others, but it is suflBeient to say that there has been
no departufe from the rule, and it becomes important, for this
reason, to determine whether the trial court in the case at bar
has given the jury an opportunity to apply it in behalf of the
defendant. There is no reference in the charge from beginning to
end, to the belief of the defendant that any action was neces-
sary on his part to defend himself, either in striking Tuck in
the first instance, or in continuing to strike him afterwards in
the assumed defense of his own person. Indeed, hardly any in-
ference could be drawn by the jury from the language of the
court other than that he would have no right to use more force
than was actually necessary to defend his person, or, he would
have no right to strike the other except in such an exigency as
actually demanded defense; and although it might be a case
where there was no danger, yet the surrounding circumstances,
taking the appearance of the other party to the affair, might be
such that the accused fully believed that he was in danger and
had reasonable ground for such belief.
We have been unable to find any language in the charge any-
where, or in any instruction given before or after argument at
the request of counsel, that relieves this instruction in the gen-
eral charge from the infirmity to which I have invited attention.
814 CIRCUIT COURT REPORTS— NEW SERIES.
Robison ft Sons v. Upton. [VoL XII, N. 8.
Our judgment is that the court's language constituted preju-
dicial error, and for this reason the case should be reversed.
We have examined criticaDy the testimony of the witnesses
and such other evidence as appears in the way of exhibits, and
we have discovered no other prejudicial error in the case, but
for the instruction to which I have referred, in the general charge,
the judgment of the court below will be reversed and the cause
remanded for a new trial.
AS TO PAYMENT BY BANK OP SAVINGS ACCOUNT.
Circuit Court of Lucas County.
David Robison, Jr., & Sons v. Thomas A. Upton.
Decided, June 12, 1909.
Banks and Banking— Burden of Proving Payment of a ^Savings Ac-
count— Charge of Cowrt — Error.
A bank, in an action by a depositor to recover the balance of a savings
account, has the burden of proving an alleged pasrment or with-
drawal by the depositor. The burden is not on the depositor to
show the balance claimed and that payment has not been made.
Hamilton c6 Kirby, for plaintiff in error.
C r. Johnson, for defendant in error.
WiLDMAN, J.; Parker, J., and Kinkade, J., concur.
Error to Lucas Common Pleas Court.
Upton sued plaintiffs in error, a banking firm, for an alleged
balance of savings account amounting to $178.66. The contro-
versy between the parties is as to whether a certain payment of
that amount was made by the bank to Upton upon one occasion,
October 16, 1907. The bank admits that Upton had an account
with it, but claims that on the date named he withdrew or
checked out from the bank the amount claimed. A question is
raised as to the burden of proof in the case. The court below
instructed the jury that the burden was upon the plaintiff
to show this alleged payment upon the account. It was urged
upon the other side that as he was suing upon an alleged balance
CIRCUIT COURT REPORTS— NEW SERIES. 816
1909.] Hamilton County.
of account, the burden was upon him to show that the balance
was as claimed and that the payment had not been made. Wo
think, however, that the contention of the depositor that the
burden is upon the bank to show that he had withdrawn it, that
he had received the payment, is correct. We think that the
court did not err in this regard. The only other claim made is
that the verdict rendered in the court below in favor of Upton
was not justified by the evidence. The evidence is decidedly con-
flicting, and we have gone over it with care in an endeavor to
a,scertain the exact facts, and we can not conclude that the ver-
dict of the jury is manifestly against the evidence. There are
no other errors, I believe, claimed in the case.
INJURY FROM SUPPING ON A GREASED STRSET
RAR^WAYRAIL.
Circuit Court of Hamilton County.
The Cincinnati Traction Co. v. Anqie S. Cramer.
Decided, July 3, 1909.
Orease and Oil on Street Railway Tracks at Much Used Crossing —
Negligence of Company in so Smearing Its Rails — Verdict CHving
Damages to an Injured Pedestrian Upheld,
1. Where a street railway company admits placing grease and oil upon
its rails at an intersection of two streets where great numbers
of people are constantly crossing, and the testimony is to the
effect that the grease was negligently applied and the rails
smeared with it, the question of negligence on the part of the com-
pany ceases to be one of fact for the jury and becomes one of law
for the court.
2. A verdict of $3,500 is not excessive, where the plaintifP is a woman
who slipped on a rail so greased and suffered a miscarriage as a
consequence of her falL
Outcalt & Hickenlooper, for plaintiff in error.
W. J. Davidson, contra.
» Diwnisst^d in Suprtano Court by consent of partioM at coHtH of plaintiff in
error.
816 CIRCUIT COURT REPORTS— NEW SERIES.
. Traction Co. v. Cramer. [VoLXII.N.S.
The defendant in error, while crossing the street at Sixth and
Vine, fell and was so severely injured as to cause a miscarriage.
In her petition for damages she alleged that the traction company
had greased the rails on the curves in its tracks at that point, and
that this had been done in a careless and negligent manner, and
grease had been smeared over the rails in such a way as to make
it dangerous for pedestrians to step upon them, and that it was
the grease so placed that caused her to slip and fall. The jury
gave her a verdict of $3,500.
QiPFEN, P. J.; Swing, J., and Smith, J., concur.
The admission in the answer of the defendant **that it is neces-
sary to oil and grease said rails at curves,'* and the testimony
of the plaintiff and the police oflScer as to the location, quantity
and character of the grease warranted the inference that the
defendant not only put it there, but did it in a negligent manner.
These facts being once found no two persons of ordinary intelli-
gence could disagree as to whether a reasonably prudent man, not
in the ordinary course of events, but under the surrounding cir-
cumstances, would foresee that the acts done would be liable to
cause damage or injury. It ceased to be a question of fact for
the jury, and became one of law for the court. There was no
intervening cause alleged or proved that required or rendered per-
tinent the instruction requested by the defendant after the gen-
eral charge to the jury.
Judgment affirmed.
CIRCUIT COURT REPORTS— iNEW SERIES. 817
1909.] Franklin Ck>unty.
DEMURRAGE AND CAK SERVICE CHARGES.
Circuit Court of Franklin County.
The Railroad Commission of Ohio v. The Ann Arbor
Railroad Company et al. •
Decided, October 12, 1909.
State Railroad Commission — Potcera of, with Reference to Car Service
and Demurrage Charges — State Commerce and Interstate Com-
merce— AftpUoation of the State Act to Transportation and Terminal
Facilities— Coni.merce Clause of t?ie Federal Constitution — Discrimi-
nation.
The power to regulate car service and demurrage charges as to cars
employed in interstate commerce is not conferred upon the state
railroad commission by the act of April 2, 1906 (98 O. L., 342)
creating and prescribing the duties of the State Railroad Commis-
sion of Ohio.
U. G. Denman, Attorney-General, Freeman T, Eagleson, 0.
E. Harrison and John R. Horst, for plaintiff in error.
Wilson, Wilson & West, C 0. Hunter, Edward Colston,
Theodore W. Reath, F, A, Durhin and Squire, Sanders & Demp-
sey, contra.
Allread, J.; DusTiN, J., and Sullivan, J., concur.
Heard on error.
The action in the court below was brought by a number of
railroad companies located in this state and engaged in state and
interstate transportation, against the railroad commission of
the state, to enjoin it from enforcing certain rules and regula-
tions affecting car service and demurrage.
The case was submitted to the court below upon demurrer to
the second cause of action. The first cause of action, which
challenged the reasonableness of the rules, was withdrawn or at
least not involved here and no question is made so far as the
second cause of action is concerned as to the reasonableness of
* Affirming Ann Arbor Railroad Co, et al v. Railroad Commission of
Ohio, 8 N. P.— N. S., 233.
818 CIRCUIT COURT REPORTS— NEW SERIES.
-- - -
Railroad Commission v. Railroad et al. [Vol. XII, N. S.
the rules, but only as to the power of the state commission to
promulgate and enforce them.
The court of common pleas held the rules valid except as
affecting cars employed in interstate commerce. And a perma-
nent injunction was only allowed to prevent their enforcement
to that extent.
The railroad commission prosecute error to this court to n»-
verse so much of the judgment as enjoins the enforcement of
its rules to the extent above stated.
The principal argument of counsel is directed to the effect of
the ** commerce clause'* of the national Constitution, delegating
to Congress the power to regulate commerce among the states.
In this connection it may be remarked that this clause has been
the subject of repeated adjudications by the Supreme Court of
the United States. But, notwithstanding all that has been ex-
pressed, the line of demarcation between federal and state juris-
diction is not clearly established, and the power to regulate termi-
nal facilities and car service lies within the area of doubt and
dispute. But aside from the constitutional question is one raised
by counsel in the case as to the construction of the state railroad
commission act. It is apparent that the state railroad commis-
sion has only such powers as the act creating it confers. It can
not prescribe rides or assume powTrs not conferred by the act.
We may, therefore, properly inquire what power is conferred
or assumed to be conferred by the state act in relation to car
service rules and charges as affecting interstate shipments.
In the construction of the act it may be assumed that the state
Legislature sought to avoid any constitutional infirmity in the
provisions of the act and intended to keep safely within the
limits of state jurisdiction.
The act itself carries this legislative construction in Section 2a:
**That the provisions of this act shall apply to the transporta-
tion of passengers and property between points within this state,
and to the receiving, switching, delivery, storing and handling
of such property, and to all charges connected therewith, includ-
ing icing charges and mileage charges. *'
It is contended by the Attorney-General that the limitation of
the application of the act to state commerce refers only to the
CIRCUIT COURT REPORTS— NEW SERIES. md
1909.] Franklin County.
transportation and not to local or terminal facilities. But it
will be observed that the limitation of the scope of the act to
property involved in state commerce applies not only to transpor-
tation of property but to the terminal service of such property
as well. The character of the property to be moved is made the
test in both classes of service. If the property moves in state com-
merce, the act applies both ajs to actual transportation and as to
receiving, switching, delivering, storing, handling, and all charges
connected therewith. But the act does not assume to apply as to
either transportation or terminal facilities, if the property which
is the subject of shipment moves in interstate commerce.
It is also contended by the Attorney-General that Section 3 of *
the act, relating to discrimination in rates, is general in terms
and applies to all railroads, regardless of the nature and char-
acter of the property transported. We are of the opinion, how-
ever, that the legislative construction in Section 2a underlies the
whole act and is the limitation of its scope. The subject-matter
of Section 3 is the charge for transportation of passengers and
property as well as the terminal facilities. Now, the terms em-
ployed in Section 3 have been construed and applied in Section
2a to intrastate shipments, and it necessarily follows that the use
of these terms in Section 3 or any other section in the act, unless
a contrary intention appears, must follow the definition and ap-
plicating of the preceding section. This is confirmed by the
language employed in Section 24, prescribing the penalties.
It is not necessary to express an opinion as to whether the re-
quirements of Section 4, 10a, and 12 of the act fall within the
legislative construction prescribed in Section 2a relating to trans-
portation and terminal facilities.
The act under consideration in Section 21 gives the state com-
mission power to investigate freight rates on interstate traffic,
and if found to be unjust or discriminatory, to request the rail-
roads affected to revise the tariffs, and in case of failure, to pe-
tition the Interstate Commerce Commission for relief. This is
the only section in the act which refers expressly to interstate
commerce ; and in view of the legislative construction in Section
2a of the act, and the doubt and conflict that exists as to the
limit of state jurisdiction, we may fairly assume that the power
820 CIRCUIT COURT REPORTS— NEW SERIES.
Railroad Commission v. Railroad et al. [Vol. XII, N. S.
conferred in Section 21 is the only authority intended to be con-
ferred upon the state railroad commission as to interstate com-
merce or the facilities and instrumentalities employed therein ;
and that all other grants of power contained in the act are to
be confined to sta/te commerce.
The Attorney-General argues that cars may often be ordered
or furnished without definite knowledge or intention as to con-
signee or place of destination, and that ah important field for
regulation might thus be left open and free from control by
either state or federal commission. This question, however, is
not before us in the present record. The injunction allowed by
the court below restrains the commission only as to car servico
so far as it affects interstate shipments. Until interstate com-
merce is in some way impressed upon the instrumentality sought
to be controlled or regulated, the injunction does not apply. The
only question here is as to whether the state railroad oommission
can enforce its rules as to cars which have been impressed as in-
strumentalities of interstate commerce.
It, therefore, follows that in the opinion of this court, the sdate
railroad commission had no power under the act creating it to
enforce car service or demurrage rules as to cars employed in
interstate commerce.
In this view, it is not necessary to discuss or express an opin-
ion as to the constitutionality of an act conferring such power
upon a state railroad commission.
The injunction in the court below was, therefore, properly
awarded, re,straining the commission from the enforcement of
its rules as to car service and demurrage so far as affecting inter-
state commerce; and the judgment is, therefore, affirmed-
CIRCUIT COURT REPORTS— NEW SERIES. 3-2J
1909.) Franklin County.
TITLE TO CANAL LANDS LEASED TO A RAILWAY COIiPANY
BY A MUNICIPALITY.
Circuit Court of Franklin County.
The State of Ohio, ex rei^ Wade H. Ellis. Attorney-General,
V. The Cleveland Terminal & Valley Railroad
Company and The Baltimore & Ohio
Railroad Company.
Decided, October 12, 1909.
Qito Waa-ranto — Attacking Authority of a Itailioay Company to Occupy
Canal Lands Leased from a City — Title — Parties — Abandonment —
Limitation of Grant— Words and Phrases — 69 O. L., /8.?.
1. The act entitled "an act to authorize the city of Cleveland to enter
upon and occupy a part of the Ohio canal/' passed April 29, 1872
(69 O. L., 182), does not authorize the conveyance of a fee simple
estate by the Governor of Ohio to said city of Cleveland; but only
the right to occupy the lands therein described for the purposes
specified, or similar purposes. State, ex rel AtVy.-Oen^l v. P., C. C.
d 8t. L. Ry., 53 O. S., 189, followed.
2. In an action in quo warranto, brought by the Attorney-General
against said railway lessee and its successors and assigns, to oust
the same from said premises, the city of Cleveland is not a neces-
sary party.
r. 6r. Denman, Attorney-General, John A. Alburn and David
K, ^Vatson, for plaintiff.
KUnCy Tolles cfc Ooff, F. A. Durban and Robert J, King, for
defendants.
Quo warranto.
The Attorney-General, for the purpose of testing the ripht
of the defendants to oc<nipy a strip of land abont three iniNs
long included in that part of the Ohio canal which the city of
Cleveland was authorized by the act of April 29, 1872 (69 0.
L., 182) to occupy and use for certain purposes hereinafter s?t
forth, filed his petition in quo warranto.
After alleging the corporate existence of defendants, the pe-
tition stated that, on and prior to the 29th day of April. 1872.
the state of Ohio was the owner in fee simple of that part of
1122 CIRCUIT COURT REPORTS— NEW SERIES.
state, ex rel, v. Railway Company. [Vol. XII, N. S.
the Ohio canal in the city of Cleveland which is the subject of
controversy; that on the 29th day of April, 1872, the General
Assembly passed an aot providing 'Hhat authority and permis-
sion shall be granted, in the manner hereafter stated, to the city
of Cleveland to take, enter upon, improve and occupy, as a public
highway, or for other purposes, and for laying therein gas and
water pipes, and for sewerage purposes, as the city council of
said city may determine," such portion of the Ohio canal as is
described in said act, which act provided, among other things,
that upon the fulfillment of certain conditions ''thereupon the
Governor on behalf of the state • * * shall execute and de-
liver to the city of Cleveland, a grant of all the interest of the
state in that part of said Ohio canal herein described, to be for-
ever used and occupied by said <;ity, as its council shall deter-
mine, for any or all of the purposes before mentioned"; that,
pursuant to the provisions of such act, the Governor on the 31st
day of October, 1879, executed and delivered to the city of
Cleveland his deed for su<*h lands; that, at a regular meeting of
the city council of the city of Cleveland, held on the 3d day of
November, 1879, such deed of the Governor was accepted by
such city council in behalf of the city of Cleveland; that, prior
to the acceptance of such deed, to-wit, on the 26th day of Oc-
tober, 1875, the city of Cleveland entered into a contract by which
said city agreed with the Valley Railway Company ''that it
would execute to said company a lease of all the lands granted
to said city by said act of April 29, 1872, as soon as title to said
lands should be conveyed to said city by the state of Ohio"; that
the city of Cleveland, by its city council, on the 24th day of
March, 1879, by resolution recounting said contract between
said city and the Valley Railway Company, instructed its mayor
and city solicitor to obtain the title to said lauds conveyed by
said act of April 29, 1872, and to arrange for the lease of said
lands to the Valley Railway Company; that said city, through
its council, at the same meeting of said -council at which the
city through said council accepted said grant from the st^te of
Ohio, to-wit, the meeting held by said city council on the 3d
day of November, 1879, by ordinance instructed the mayor of
said city '*to execute in due form of law a written lease to the
CIRCUIT COURT REPORTS— NEW SERIES. 828
1909.] Franklin County.
Valley Railway Company of the lands and premises set forth and
described, for the period and upon the terms and conditions ex-
pressed in the copy of such lease submitted by the mayor to the
council October 20th, 1879, as amended and approved by the
council at that date"; that, in pursuance of such ordinance and
on the day following its passage, to-wit, on the 4th day of Novem-
ber, 1879. the mayor of said city for and in behalf of said city,
duly executed and delivered to the said the Valley Railway Com-
pany, in consideration of the sum of $265,000 in the first mort-
gage gold bearing bonds of said the Valley Railway Company,
payable twenty-seven years from the 15th day of June, 1879, a
lease for ninety-nine years, for railroad purposes, of all lands
granted to said city of Cleveland by said act of April 29th,
1872, with the exception of certain small portions of said lands
described in said lease, with the proviso that **it is hereby ex-
pressly understood and agreed that, in case there is hereafter any
failure in said title to the lands hereby leased, or in the au-
thority of said city to lease the same for the purposes herein
stated, the said city shall not be liable to said company for any
damage caused by said failure"; that said lease was approved
by said council on the 10th day of November, 1879; that im-
mediately after the execution of said lease said the Valley Rail-
way Company took possession of all said lands so leased, and that
all said lands have ever since been used by said company and its
successors for railroad purposes; that, by reason of the sale of
the property of the Valley Railway Company on the 27th day
of Sept^nber, 1895, and subsequent sales, agreements and tran-
sactions, the defendant companies are now occupying and using,
for railroad purposes, all of said lands conveyed to .said the Val-
ley Railway Company in said lease of said city; that the city
of Cleveland has never occupied nor used any portion of said
lands conveyed by said lease for any purposes except for the
laying therein of gas and water pipes or for sewerage purposes ;
and that said city has abandoned and forfeited the use of all
said lands so leased except for laying therein gas and water
pipes and for sewerage purposes ; that the state of Ohio has been
before, on and since the 29th day of April, 1872, and now is the
owner in fee of such lands and entitled to the full use and posses-
:J2[ CIRCUIT COURT REPORTS— NEW SERIES.
state, ex rel, v. Railway Company. [Vol. XII, N. 8
sioii of the siiiTie; **that tho state of Ohio has never, directly nor
indirectly, in any way given or granted, or permitted to be given
or to be granted, to either of said defendants, any right, title or
interest whatever in or to any of said lands"; that the city of
Cleveland had no right, power or authority to grant said lease,
or to i>erniit the nse for railroad purposes of any of said lands
so leased and so occupied by defendants; that said use of said
lands by defendants ** was and is inconsistent with the use granted
to the city of Cleveland by the state of Ohio, and in violation of
the rights of the state and in contravention of law; and that
defendant companies have been and are now, in occupying and
using said lands for railroad purposes, usurping and unlawfidly
exercising and using rights, privileges and franchises in viola-
tion of the rights of the state of Ohio and in contravention of law.
Plaintiff therefore prayed that defendant companies be ousted
from exercising such rights, privileges and franchises and that
they be compelled to remove all their tracks, side-tracks, switches,
depots, buildings and all other property of whatsoever kind be-
longing to them, from all lands described in the said act of April
29, 1872, and for other relief.
•The act of April 29, 1872, the deed of the Governor, the lease
of the city of Cleveland to the Valley Railway* Company and the
ordinances of the citv council above mentioned were .set forth
in full in plaintiff's petition.
DrsTiN, J.; Sullivan, P. J., and Allread, J., concur.
The facts in this case are strikingly similar to those involved
in the case of State, es ret, v. P., C. V. & St. L. Ry„ 53 0. S., 189 ;
and the remedy sought is the same. Hence, the demurrer to the
petition must be overruled on all points, except as to want of
})arties, upon the authority of that case, unless it shall appear
that the differences between it and the one at bar are such as
to call for the application of other principles.
In that case the city of Cincinnati, by legislative enactment
(GO 0. L., 44), and by gubernatorial deed executed and delivered
pursuant thereto, had been granted the right to ** enter upon,
use and occupy as a i)ublic highway and for sewerage purposes"
a ct'rtain portion of the canal lands of the state. After accept-
CIRCUIT COURT REPORTS— NEW SERIES. :5:>r,
1909.] Franklin County.
ing the same, the city, without permission of the state, granted
the P., C. C. & St. L. R. R. Co. the right to wholly occupy a part
of said lands for tracks and stations, and such occupancy con-
tinued for more than twenty years. In 1895, the then Attorney-
General brought an action in quo warranto against the railway,
alleging an unlawful use of rights and privileges in the occupancy
of said premises ; also, that to that extent, there was an abandon-
ment by the city of the rights granted to it by the state. The
court entered a decree for the relator, holding that the defend-
ant had no rights in the premises, its pretended grant from the
city being invalid fOr want of necessary power to make the same.
In the case at bar the same kind of an action is brought by
the Attorney-General against the defendants, alleging that they
wholly occupy certain canal lands in the city of Cleveland,
granted to said city by the state for **a public highway, or for
other purposes, and for laying therein gas and water pipes, and
for sewerage purposes, as the city council of said city may de-
termine. ' '
Pursuant to the legislative act (69 0. L., 182) authorizing
the grant, the Governor made a deed to the city for the land de-
scribed. On the very day that the deed was accepted the city
of Cleveland leased the premises to defendant, the Cleveland
Terminal & Valley Railroad Company, for ninety-nine years,
renewable forever, and received therefor the sum of $265,000 in
bonds. The railroads built tracks and made other improvements
thereon, and have ever since wholly occupied said lands for rail-
way purposes.
It is claimed on behalf of the state that the city of Cleveland
forfeited the lands by abandonment of the uses for which they
had been granted, and that defendants, the railways, have no
rights whatever thereon. On the part of the railways it is
claimed that *'all the interests" of the state were granted to the
city which thereby became the owner in fee of the premises, and
could lawfully lease the same.
In the legislative act pertaining to the transfer of the canal
lands at Cleveland, certain words and phrases in addition to
those in the Cincinnati case, are relied upon to create a fee simple
estate. In the Cleveland legislative act the word **take" is
m6 CIRCUIT COURT REPORTS— NEW SERIES.
state, ex rel, v. Railway Company. [Vol. XII, N. S.
added to a similar clause found in the Cincinnati act; pro-
viding that the city of Cleveland may '*take, enter upon and oc-
cupy," etc.
We think that word applies no more to a fee simple than to
a qualified fee. The grantee, in either case, is authorized to
take possession, which is the right referred to.
The words *'or other purposes'' are introduced after the
words ''public highway," so that it reads, **that authority and
permission shall be granted • • • the city of Cleveland to
take, enter upon, improve and occupy as a public highway, or for
other purposes, and for laying therein gas and water pipes, and
for sewerage purposes, as the city council of said city may deter-
mine, all that part • * • in so far as the same is owned
and held by the state."
We think it is clear, under the authorities (cited by plaintiff)
that the words, **or other purposes," mean simply other similar
purposes, and that the title is not enlarged into a fee simple by
such language, but includes only other uses (if any there be)
by the city, some of which are named in the next clause, viz.,
* * laying gas and water pipes. ' '
If a fee simple had been intended by the use of the phrase *'or
other purposes," there was no need to add the provision as to
gas and water pipes, which seems to have been done either for
illustration or further specification.
Nor does the phrase **in so far as the same is owTied and he^d
by the state," enlarge the grant. It is rather a limitation, as
not including the rights of canal lessees.
Nor does the clause, **as the city council of said city may
determine"; for that in our opinion, only gives the council the
right to sele<»t from the purposes mentioned, or similar ones.
As for the deed, of course it could not rise higher than its
source, the legislative act. What general words it may contain
must be limited by the phraseology' of the act, of which the di*-
fendants must be held to have had due notice at the time of ac-
ceptance.
But, it is claimed that the Cleveland transaction was a pur-
chase, and thereby differed essentially from the Cincinnati citso.
CIRCUIT COURT REPORTS— xVBW SERIES. ft27
1909.1 Richland County.
It is true that the city of Cleveland obligated itself to make
certain expenditures to connect the canal with the Cuyahoga
river and to keep the river dredged to the lake. But that is
presumed to have been a proper compensation for the title it was
receiving.
All other questions raised by the demurrer are, we think,
covered and settled by the Cincinnati case referred to, except the
one as to want of proper parties. As to that it may be said that
the court does not think the city of Cleveland, under the allega-
tion of abandonment, is a necessary party to the controversy;
but if defendants desire to have it bound by the judgment, what-
ever it may be, for their ultimate protection, it may be made a
party on their application, and served with process.
Demurrer to petition overruled.
BOARDINC A CAR IN MOTION.
Circuit Court of Richland County.
The Ohio Central Traction Co. v. H. Walter Mateer. •
Decided, September 8, 1908.
Negligence — In Attempting to Board a Car which was Still in Motion
Judgment not Sustained by the Evidence,
A Judgment for damages in favor of an intending passenger, wtio was
injured in an attempt to board a car, is not supported by the evi-
dence, where it appears that the attempt to board the car was made
and the injury occurred before the car had been brought to a stand-
stilL
Cummhigs, McBride & Wolfe, for plaintiff in error.
Brucker & Cummins, contra.
Taggart, J. ; Donahue, J., and Craine, J., concur.
The plaintiff filed his petition in the court of common pleas,
alleging in substance that on the 13th day of October, 1903, the
♦ Affirmed by the Supreme Court without report, Mateer v. Ohio Central
Traction Co., 81 Ohio State.
«28 CIRCUIT COURT REPORTS— NEW SERIES.
Traction Co. v. Mateer. [Vol. XII. N. 8.
defendant operated and controlled an electric railroad, running
from the city of Bucyru.s to the city of Mansfield ; that along its
way and a few miles from Mansfield, there was a platform used
by the defendant for passengers desiring to get off and on the
defendant's cars; that on the 13th day of October. 1903, at
about 7 A. M., the plaintiff went to this platform for the pur-
pose of boarding one of defendant's cars on its way to Mans-
field ; that when the plaintiff saw the car coming, he signaled the
motorman to stop ; that the motorman saw the plaintiff standing
upon the platform and slackened the speed of his car, and that
when the rear end of the car reached the platform the brake was
on and the car moving slowly and apparently about to stop,
and that the plaintiff, believing that the car would stop, took
hold of the handles on the rear of the car and was about to step
on, when the motorman so negligently and carelessly operated
said car that it gave h sudden jerk and started ahead rapidly,
thereby throwing the plaintiff off of the platform and on to the
ground, and injured him to his damage in the sum of $10,000.
To this petition an answer was filed, practically admitting all
the averments in the petition, excepting that it denied any
negligence or carelessness on the part of the defendant or the
motorman operating the car, or that the car was suddenly
started forward or jerked, and denying that the plaintiff was
injured to the extent claimed in the petition. The answer also
alleges contributory negligence on the part of the plaintiff.
A reply was filed in which each and every allegation in the
answer was denied. A verdict was returned in favor of the
plaintiff. A motion for a new trial was overruled and judg-
ment rendered on the verdict.
A petition in error was filed in this court, and on a former
hearing the judgment of the court of common pleas was reversed,
for the reason that the court of common pleas erreil in over-
ruling the defendant's motion made at the close of plaintiff's
evidence to direct the jury to return a verdict for the defend-
ant. Thereupon error was prosecuted to the Supreme Court,
w^hich reversed the circuit court and remanded the case, for the
reason that this ex)urt erred in reversing the common pleas for
refusing to direct a verdict, the holding of the Supreme Court
CIRCUIT COURT REPORTS— NEW SERIES. 8:>J)
liOH.I Richland County.
being to the effect that where a motion is overruled at the end
of plaintiff's evidence, and the defendant thereafter introduces
evidence in the case, the court must look to all the evidence in
the case for the purpose of determining whether or not a case
had been made, which wou'd justify the court below in submit-
ting it to the jury.
This case is now back to this court for the purpose of de-
termining whether or not, taking all of the evidence, there was
a case made against the defendant. We have examined all of
the evidence presented in the bill of exceptions, and find no
testimony offered in defendant's behalf which supported or
tended to support the allegations of plaintiff's petition.
On the question of liability, practically the only difference be-
tween the plaintiff and the defendant was as to whether or not
the motorman was careless and negligent in jerking the car or
starting it suddenly forward whilst the plaintiff was getting on.
The testimony in behalf of the plaintiff wais to the effect that
the motorman was trying to stop the car and had not succeeded
in doing so, and that the car was running very slowly and that
just as he was about to step on the car and after he had taken
hold of the handles of the car, the car started suddenly forward
with a jerk. The testimony of defendant's witnesses is to the
effect that the car was running at probably four or five miles an
hour when the plaintiff attempted to get on it; that the rails
were slippery and the motorman was doing all he could to stop
the car.
If the contention of the defendant is correct, there certainly
could be no liability, and if the contention of the plaintiff is
correct, then likewise there can be no recovery. It was the duty
of the defendant to stop its car to allow passengers to get on and
off, and no passenger is required to get on or off a car whilst it
is in motion and if a passenger attempts to get off or on a car
whilst in motion, he does so at his peril.
If the plaintiff can recover, it must be by reason of the viola-
tion of some duty owing by the defendant to the plaintiff. The
motorman had a right to run that car and jerk it as he pleased
so far as the plaintiff was concerned, so long as the plaintiff w^as
not a passenger on that ear. Of course if the motorman knew
Sa> CIRCUIT COURT REPORTS— NEW SERIES.
Lynch v. State. [Vol. XII. N. S.
that the plaintiff was attempting to get on the car whilst in mo-
tion, or by the exercise of ordinary care could have known the
same, or if it had been the custom of the plaintiff to board the
car whilst in motion and the motorman knew that, then the de-
fendant would owe the plaintiff a duty and would have to exer-
cise such care in the operation of his car as not to injure the
plaintiff.
We think that in this case where the plaintiff having under-
taken to get on the car whilst in motion, and whilst the motor-
man was attempting to stop the car, the plaintiff did so at his
peril and can not recover from the company for any injury sus-
tained to him.
We think that from the pleadings and evidence in this case
the verdict is not sustained by any evidence and is contrary to
law, and the judgment of the court of common pleas should
be reversed and the petition of the plaintiff dismissed. The
journal entry may be prepared in accordance with this holding
and exceptions will be noted for the plaintiff.
PROSECUTION UNDER THE ROSE LAW.
Circuit Court of Delaware County.
Daniel Lynch v. The State op Ohio. *
Decided, January, 1909.
Keeping a Pl<ice where Intoxicating Liquors were Bold — ProBecution
for, Under the Rose Lata— Evidence as to Result of Local Option
Election-^99 0. L., So,
1. An affidavit charging the keeping of a place where intoxicatini;
liquors were sold, furnished or given away on a designated day, is
sufficient to sustain a prosecution under the Rose county local
option law.
2. Proof of one unlawful sale is sufficient to sustain a conviction under
such a charge; and the affidavit need go no further than to aver
an unlawful sale, leaving it to be developed by the evidence Sn
what respect the sale was unlawful.
^Affirmed by the Supreme Court without report. Lynch v. StMiCt 81
Ohio SUte.
ClftCtJlT COURT REPORTS-NEW SfiRIES. fSl
1909.1 Delaware County.
3. The provision of Section 1 of the Rose law, making a certified copy
of the result of a county local option election sufficient proof of
the holding of such an election, is not exclusive; but any evidence
from which the fact may be deduced that such an election has been
held is sufficient to sustain a prosecution for violation of the act.
4. It is not error to admit the statement of a witness that *'a police
officer told him when he obtained liquor in dry territory" if no
disclosure is made by the witness as to the place where the liquor
was obtained or the person who sold or furnished it.
Marriott cfr Freshwater, for plaintiff in error.
Eugene S, Owen, contra.
The plaintiff in error was arrested and tried before the mayor
of the city of Delaware, Ohio, on an affidavit charging the un-
lawful keeping of a place where intoxicating liquors are sold in
violation of Section 6942, Revised Statutes.
It is contended by counsel for plaintiff in error that the affi-
davit is not sufficient in law to charge an offense under any
of the statutes providing against the sale of intoxicating liquors,
the claim being that in order to constitute a person a keeper of
a place where intoxicating liquors are sold in violation of law,
the affidavit or indictment must allege that the party accused
was a keeper of such a place from a date stated in the affidavit
or indictment to the date of filing the affidavit, or to some other
date subsequent to the date charged ; that a single sale does not
make the place a nuisance, or the seller a keeper within the mean-
ing of the «ct, but that a series of sales is necessary. And fur-
ther i% was contended that, in order to bring the prosecution
within the Rase county local option law, it is necessary for the
affidavit or indictment to show that an election had been held
under the provisions of the statute, and that a majority of the
voters voted in favor of prohibiting the sale of intoxicating
liquors within said county, and that the affidavit in this case
was insufficient because it did not contain such an allegation.
Counsel for the state on the other hand contended that it does
not require a series of unlawful sales of intoxicating liquor in a
particular place by the accused to constitute him a keeper of a
place where intoxicating liquors are sold in violation of law,
citing Village of Belle Center v. Walsh, 24 W. L. B., 176, and
Volk Vv Village of Wosterville, 3 N. P.— R S*, 241.
m2 CIRCUIT COURT REPORTS— NEW SERIES.
Lynch v. SUte. [Vol. XII, N. S.
In support of the claim that it is not necessary to allege in the
aflRdavit and prove at the trial that an election had been held, re-
sulting in a prohibition of the sale of intoxicating liquors within
the county, it was argued that the court should take judicial no-
tice of things which are public in their effects and relations and
ought to be known within its jurisdiction, citing Black on In-
toxicating Liquors, Sec. 102, p. 136, where reference is made to
Ranch v. Comm., 78 Pa. State, 490; Combs v. State, 81 Ga., 780;
8 S. E. Rep., 318.
Donahue, J.; Taggart, J., and Shields, J., concur.
This proceeding in error is prosecuted to reverse the judgment
of the mayor of the city of Delaware, finding the plaintiff in
error guilty of a misdemeanor, and adjudging him to pay a fine.
The first contention is, that the affidavit filed with the mayor in
this case is defective and does not state a crime under the laws
of Ohio.
It is contended that if the prosecution is under Section 6942
of the Revised Statutes of Ohio, that the affidavit should state
the dates from which and to which the defendant was keeping
a place where intoxicating liquors were then and there sold in
violation of law.
We Are of the opinion that this prosecution is under Section
6942 of the Revised Statutes of Ohio, as amended, 99 Ohio Laws,
1908, and as that section now reads the gravamen of the offense
is keeping such a place. And if on or about the 12th day of
December, A. D. 1908, the defendant was then and there the
keeper of a place where intoxicating liquors were sold, furnished
or given away in violation of law, he was guilty of the offense
under this section of the statute, and the affidavit is sufficient.
It is further contended that the mere showing of one unlawful
sale is not sufficient evidence to warrant the mayor in finding
the defendant guilty. We think that question has been disposed
of corrrectly in the case of Volk v. Village of Westerville, 3 N. P.
— N. S., 241, and particularly at 244.
It appears that the Circuit Court of Franklin County, in an-
other case of the same title, held that the proof of a single sale
was sufficient, without proving a series of sales.
CIRCUIT COURT REPORTS— NEW SERIES. Wn
1909.] Delaware County.
In the case of Village of Belle Center v, Levi Welsh, it was
also held by the court, to which an application was made for
leave to file a petition in error (24th Bulletin, page 176). that
under the section as it then read, that a single sale was sufficient
to warrant a conviction.
It is also contended by plaintiff in error that an attempt is
made here to prosecute for a violation of the Rose local option
law, and for that reason neither the affidavit nor the proof is
sufficient.
It is not important what law is violated in. the sale of intoxi-
cating liquors under a charge of this character. It is sufficient
for the affidavit to state the sale was unlawful, and then in the
hearing of the case proof can be offered that the sales were made
on Sunday, to a minor, or person in the habit of becoming in-
toxicated, or in territory where the sale of intoxicating liquor is
prohibited, or any other reason that renders the sale unlawful.
So that, when the state came to offer this evidence in this prose-
cution it could show that under the provision of the Rose local
option law the sale of intoxicating liquors was prohibited in Debi-
ware county.
It is conceded, however, that the proofs failed to show that the
sale of intoxicating liquors were prohibited in that co.unty by rea-
son of an election held under the provisions of the Rose local
option law. And looking to the evidence offered by the state it
would seem as if there were a defect in that behalf. True, it
is provided in the Rose local option law that a copy certified by
the clerk of the court of common pleas showing the result of such
election, provided such a result shows a majority of votes against
the sale of intoxicating liquor as a beverage, shall be sufficient
evidence to make a prima facie case ; but we take it that this is
not exclusive, and that any other competent evidence may be
offered.
In this whole record, the f|uestion of whether the sale of
intoxicating liquors were prohibited in Delaware county un-
der the provisions of this act does not seem to be mooted. True,
the plea of not guilty puts in issue every material allegation of
the affidavit, but in the trial of this case questions were asked
by counsel for the state, as well as by counsel for the defend-
884 CIRCUIT COURT REPORTS— NEW SERIES.
Lynch v. State. fVoL XII. N. 5?.
ant, indicating that the sale of intoxicating liquor as a beverage
was at the time of the alleged offense prohibited and unlawful,
and, in fact, some of the answers fixed the exact date when the
provisions of that law came into operation in that county.
It is true that Fome of this evidence would have been in-
competent had objections been made thereto; but no such ob-
jection was made, and, therefore, the admission was not preju-
dicial error. And particularly is this true in the evidence of the
defendant himself. lie testifies that he has sold no whisky to
anybody since the local option law went into effect in Delaware
and on page 14 of the bill of exceptions it appears from his
evidence that local option went into effect in that county the
"last of October or the first of November of that year. So
that, we think the evidence was sufficient for the mayor to find
that the sale of intoxicating liquors in Delaware county was at
the time charged in this affidavit prohibited and unlawful, and
that this sale, if he found such a sale had been made, was an un-
lawful sale, and that the defendant by reason thereof was guilty
as charged in the affidavit.
Some objection is made to the testimony of the chief of police,
and particularly to that portion where he undertakes to tell
what officer Vining told him; but it appears that what the offi-
cer said t4) him was not repeated by the chief of police, but that
he merely says that the officer told him where he got it, but he
does not sav what the officer told him, or from whom the officer
said he received the half pint of whisky that was offered in evi-
dence. We think there was no error in the admission of that
evidence, or in the refusal of the court to strike it out.
Fnding no error apparent in the record of this case prejudicial
to plaintiff in error, the judgment of the mayor is affirmed, with
costs. The cause is remanded for execution. Exceptions of
plaintiff in error are noted.
CIRCUIT COURT REPORTS— NEW SERIES. 885
1909.] Cuyahoga County.
APPOINTMBNT OF DEPUTY CORON£lL FOIL CUYAHOGA
COUNTY INVALID.
Circuit Court of Cuyahoga County.
R. C WwGfiT, AS Auditor, etc., v. Robert Droeoe.
Decided, November 15, 1909.
Constitutional Law — Local Conditions^-Not a Ground for General En-
actments without Uniform Operation — Office and Officers — Section
1209a.
That part of Section 1209a, Revised Statutes, providing for the appoint-
ment of a deputy coroner in all counties containing a city of the
first class of the second grade, is unconstitutional in that it is an
enactment of a general nature without uniform operation through-
out the state.
J. A. Cline, County Prosecutor, W. D. Meals and Fielder San^
(lers, for plaintiff in error.
Moomy & Mahon, contra.
Marvin, J. ; Henry, J., and Winch, J., concur.
Error to the Court of Common Pleas.
The only question in this case is the constitutionality of so
much of Section 1209a of the Revised Statutes as reads:
•*And the coroner in all counties having a city of the first
class of the second grade may appoint a deputy coroner, who
shall have power to do and perform all duties imposed by law
upon the coroner of said county in his absence, at a salary not
to exceed $1 ,500 per annum. ' ' • • •
This statute was enacted prior to the enactment of the pres-
ent municipal code, and at a time when by the statutes of Ohio
there was a classification of cities. The only city of the grade
and class named in this statute is the city of Cleveland, and
therefore the only coxmty affected by it is Cuyahoga county.
It is urged on behalf of the plaintiff in error that this enact-
ment contravenes Article II of Section 26 of the Constitution
of the state of Ohio, which reads:
"All laws of a general nature shall have a uniform opera-
tion throughout the state." ♦ • •
:«6 CIRCUIT COURT REPORTS— NEW SERIES.
Wright V. Droege. [Vol. XI I. N. .'*.
The petition in this case sets out that the city of Cleveland has
a population composed largely of foreign born people; that it is
a large city; that crimes of violence are frequent therein; that
deaths from violence are greater in number in said city than in
other parts of the state, and various other facts, which it is
claimed on the part of the defendant in error, render legisla-
tion in regard to the coroner's office and assistants to the coroner
proper for Cuyahoga county that would not be proper for any
other part of the state.
We do not understand that thes(» facts affect the question of
whether the provisions of the statute under consideration are ."f
a general nature. We havt examined the carefully prepared
brief of the defendant in error, but w(» are not in accord with the
conclusion reached in such brief.
Especial attention is called to the langiuige of the first clausv?
of the syllabus in the case of State, ex rel, v. Spellmire ct al, 67
Ohio St., 77. which reads:
** Whenever a law of a general nature having a uniform opera-
tion throughout the state, can be made fully to cover and pro-
vide for any given subject-matter, the legislation, as to such sub-
ject-matter, must be by general laws, and local or special laws
can not be constitutionally enacted as to such subject-matter.*'
Applying this doctrine to the case at bar, it seems clear that
the enactment under consideration is in contravention of this
provision of the Constitution. The subject-matter of conduct-
ing public offices is surely of a general nature, and an enact-
ment might very easily be made providing that in all counties
having such characteristics, as it is said in the petition herein
Cuyahoga county has, there should b(» a deputy coroner.
The result is that we reach the conclusion that there was er-
ror in the judgment of the court of common pleas, and the judg-
ment is reversed, and proceeding to enter the judgment here
which the court of common pleas should have* entered, the peti-
tion of the plaintiff below is dismissed.
CIRCUIT COURT REPORTS— NEW SERIES. 337
1909.} Hamilton County.
PROXIMATK CAUSE OF A CAR RUNNINC AWAY DOWN
A GRADE.
Circuit Court of Hamilton County.
Cincinnati Tilvction Company v. Maogie Durack, Admin-
istratrix.
Decided, July, 1909.
yegUffence — Death of a Traction Car Conductor in a Collision-r-Proxi-
mate Cause — Charge of Court — Error^Burden of Proof,
1. Where the question of negligence on the part of fellow-servants in
charge of a runaway car has heen eliminated, and no other rea-
sonable inference as to why the car started down the grade can be
drawn from the testimony, it may be. assumed that the brake shoe
shown to have been loose was the proximate cause, and a judg-
ment for damages recovered by the administratrix of the con-
ductor of the car in front who was killed in the resulting collision
will not be set aside for insufficient evidence.
2. But an instruction to the Jury, which excluded all consideration of
contributory negligence although pleaded as a defense and sup-
ported by some evidence, constitutes prejudicial error requiring a
reversal of the Judgment
Kinkcad, Kogers d' Ellis, for plaintiff in error.
D. y. Sutphin and W. A. DeCamp, contra.
The intestate, a traction car conductor, was killed while ad-
justing his trolleys by a run-a-way car whi(*h came down the
grade behind him. At the first trial the administratrix recov-
ered a judgment of $6,000, which was set aside by the circuit
court. The traction company was not satisfied, however, with a
reversal, but asked for judgment in its favor, and prosecuted
error to the refusal of the court to grant such a judgment, with
the result shown by the opinion in 78 Ohio State, p. 248. At
the second trial in the common ploas the administratrix recov-
ered a judgment for $10,000, to which error was prosecuted in
the present case,
GiFFEN, P. J. ; Smith, J., and Swing, J., concur.
Although the plaintiff in her amended petition sets forth sev-
eral acts of negligence, the only one relied upon at the last trial
is stated as follows:
»« CIRCUIT COURT REPORTS— NEW SERIES.
Traction Co. v. Durack. (Vol. XII. N. S.
** Through the negligence of the defendant company or of
some of its employes whose duty it was to inspect, repair and
see that the machinery and appliances of such car were in proper
condition, the brake, brake-shoe or shoes of said car No. 9 had
become out of repair and worn so as not to be fit for the purpose
for which such brake or brake-shoes are applied ; that by reason
of said defect in said brake, brake-shoe or shoes, said car No. 9
broke away and caused injury to plaintiflF's intestate in the man-
ner above described.''
In support of the alleged error in o\nerruling defendant's mo-
tion at the conclusion of the evidence for an instructed verdict,
counsel for plaintiflP in error say in their brief:
'•There was a failure on the part of plaintiff below to provt*
that the loose brake shoe was the proximate cause of the injury."
The charge of negligence was not thus limited to a loose brake-
shoe, but embraced any and all defects of the brake itself; and
the experts called by the defendant were careful to assume that
the other essential parts of the brake were in good order before
stating that one defective brake-shoe would not lessen the
efficiency of the brake on a so-called McGuire truck. No one
will deny that the natural laws upon which they based their con-
clusions are invariable, or that a brake designed and constructed
in accordance with such laws will work in olwjdience thereto; but
it must be admitted that the practical application of these laws
in the construction of a machine is as variable and erring as
human judgment itiself. Hence the principle uinm which a cer-
tain type of trucks is constructed may insure efficiency in brak-
ing apparatus, and yet a particular truck may, because of the
human factor in its construction, be faulty and variable in its
operation. When therefore the motorman of car No. 9 reported
to his superintendent that the car was a little hard to stop and
that the brake was bad, it does not necessarily follow that his
tc»stimony is of no value, because the only apparent defect is one
loose shoe, and because the laws of physics prove that this defect
in a type, not in the particular brake, is immaterial. The super-
intendent himself apparently approved the judgment of the
motorman that the brake was bad, when after three warnings
at intervals of a half hour or mor^, consented to give him an-
CIRCUIT COURT REPORTS— NEW SERIES. 889
1909.1 Hamilton County
other car ; but whether this be so or not, it was his duty to inspeet
or cause to be inspected the defective brake and ascertain whether
it was safe for further use.
The question of negligence of a fellow-servant being eliminated
by the testimony of the motorman and conductor of car No. 9,
the probability that the defective brake caused the car to start
down the grade on which it was standing is stronger than any
other that has or can be suggested from the evidence. It is not
a mere conjecture, but a reasonable inference from all the evi-
dence, tichocpper v. Hancock Chemical Co., 113 Mich., 582;
Cincinnati Traction Co, v. Holzenkamp, 74 O. S., 379.
This view of the case was probably entertained by the Supreme
Court when they said (78 O. S., 243) :
''From this statement of the ease we are inclined to think that
the plaintiff in error obtained from the circuit court more than
its dues."
Whether this be true or not the law and evidence of the case
as now presented convinces us that the court below did not err
in overruling the motion or in refusing a new trial for insuffi-
cient evidence. The court did err, however, in giving special
instruction No. 1 requested by plaintiff, because it excludes all
consideration of contributory negligen(*c, although pleaded as a
defense and supported by some evidence. The very place where
the decedent was standing, while adjusting the trolley wheel,
was necessarily one of danger, and re(|uired of him proportionate
care to avoid injury. Whether his failure, if any, to exercise*
ordinary care contributed directly to his injury was an issue that
should have been submitted to the jury. The same error occurs
in the general charge.
The special instruction was faulty also in assuming that the
company was negligent in failing to take the car out of service
when it was discovered that the brake-shoe was defective. Th»'
same error appears in special instruction No. 4 and in the general
charge. The general charge contiiins the following instruction :
i i t:*.
Every employer must give his employes reasonably safe ap-
pliances with which to work and a reasonably safe place wherein
to work. The company however is not an insurer of the lives of
its employes. "
:\4».) CIRCUIT COURT REPORTS— NEW SERIES.
In re Account of Ullman, Executor. (Vol. XII, N. S.
This instruction violates the rule stated in Railway v. Fnjt,
80 O. S.. — . notwithstanding the qualification that the company
is not an insurer. The court erred also in defining *' burden of
])roof/' The first special interrogatory which the court refused
to submit to the jury is indefinite as to the time, and the re-
fusal was u(»t prejudicial.
We are not unmindful of the gravity and importance of the
case bspeciaMy to the widow and orphans; but the errors pointed
out are of that substantial nature which prevents a fair trial,
and we are constrained therefore U) again reverse^ the judgment
and remand the ca.se for a new trial.
ilUESTIONS ARISING ON SETTLEMENT OP AN EXECUTOR'S
ACCOUNT.
Circuit Court of Ashland County.
Ik the Matter of the Exceptions to* the Account op George
A. Ullman, Execttor of the Estate op Mary
F. Freer, Deceased. •
Decided, October, 1909.
Estates of Decedents — Exceptions to Account of Executor — Certifica'
tion of, to the Common Pleas Court — Repairs Made by Executor
to Property Devised — Additional Compensation — Counsel Fees for
Defending Will — Liberal Alloicance for Successful Defense noherv
the Contract teas for a Contingent Fee — Authority of Executor to
Employ Counsel for Other Matters — Division of Expense — Form of
Order to Distribute — Jurisdiction — Section ,13').
1. Where .i probate judge has any interest whatever in a controversy.
whether financial or otherwise, he is authorized under Section BZ't,
Revised Statutes, to certify the case to the common pleas, either
on motion of the party interested or acting sua sponte.
2. An executor has authority to make needed repairs on a building
specifically devised with the direction to turn the property over
to the devisee at any time after one year from the death of the
testator, but such repairs should only go to the extent of keeping
the property in as good condition as the executor found it.
' Slightly modifying and affirniing Jn re Estate of Mary F, Freer, 9
^. P. — N. S., 12,
CIRCUIT COURT REPORTS— NEW SERIES. 841
1909.1 Ashland County.
X If an executor defends in an action to set the will aside, and the
action results in sustaining the will» he may be allowed a reason-
able amount for counsel fees in that behalf, and where his con-
tract with counsel was on the basis of a contingent fee the allow-
ance will be made more liberal because of that fact.
4. The fact that an executor is a man of affairs with business exper-
ience and ability does not afford ground for denying to him the
aid of counsel in the settlement of the estate.
5. An order to an executor with reference to the distribution of the
• fund in his hands should merely direct him to pay it out in ac-
cordance with law and the provisions of the will; any further
direction as to whom the fund Is to be paid is inoperative and
void.
(\ If. Workman, W. S. Kerr and George J. Fry, for exceptors.
J. V. Seward and C. P. Winhiglcr, contra.
V'ooRHEES. J. : Taggart. p. J., and Donahue, J., concur.
This action had its origin in the probate court of this county,
where exceptions were filed to the account of George A. Ulhnan,
executor of the estate of ^[ary F. Freer, deceased, and on mo-
tions of the parties excepting to said account the probate court
certified the account and exceptions thereto to the common pleas
court of this county. Error is prosecuted from common pleas to
thi^ court.
The first question presented by counsel for plaintiff in error
is that the probate court had no authority upon the motion pre-
sented to certify the same to the common pleas court, and that
by reason thereof the common pleas court acquired no jurisdic-
tion thereof, and that any finding and judgment of the common
pleas court in relation thereto is erroneous and void for want of
jurisdiction.
We are of the opinion that this objection to the jurisdiction
of the common pleas court is not well taken, and that the probate
court under the provisions of Section 535 of the Revised Stat-
utes of Ohio had authority to certify the same to the common
pleas court. A part of the section above referred to is as fol-
lows :
•*In all other matters and proceedings, pending in any pro-
bata court, which would properly be disposed of or decided there-
in, but in which the probate court thereof is interested in any
manner whatever, as an attornev or otherwise, or in which he is
»42 CIRCUIT COUll'r REPORTS— NEW SERIES.
In re Account of UUman, Executor. (Vol. XII, N. 3.
required to be a witness to a will, such probate jud^e shall, upon
a motion of n party interested in such proceedings, or upon
his own motion, certify the matters and proceedings to the court
of common pleas."
Counsel for the executor contends that the probate judge must
be interested as an heir, or at least have some financial interest
in the result of the matter pending in his court, and that mere
prejudice and bias on his part would not be sufficient reason, or
that any other interest, except a financial interst or as an at-
torney, would not be a sufficient reason for certifying the cause
to the common pleas court. We think it clearly appears here that
whenever he has any interest whatever, whether it be financial
or otherwise, that the statute authorizes him upon the motion of
the party interested to certify the cause to the common pleas
court, or even without such motion if the judge of that court
knows he is interested in the cause, then it is his duty to so certify
it siia sponte.
The next contention of counsel for the executor is, that the
common pleas court erred in refusing to credit him with the ex-
pense of certain repairs that were put upon what is known as the
Freer Block. The common pleas court in its finding, held that
the executor was entitled to credit for all necessary repair^ to
keep and maintain the building in as good condition as it was at
the time of the death of his testator, but that he was not war-
ranted in making any permanent improvements upon the prop-
erty. The Freer Block was specifically devised, and the testa-
tor had the right to turn it over to the devisee any time after
a year from the death of the testatrix, and compelled to turn it
over within five years, so that it could not be to the interest of
thi^ estate he represented to make any permanent improvements.
The rule of law adopted by the court in the disposition of
this exception to the account is, we think, the correct one, but
from the evidence in this case we are not authorized in saying
that the court erred in the application of this rule to any one
item. It is clearly evident that there were a large number of
repairs made upon this building that were in the natiu*e of
betterments, or what might be termed ** permanent improve-
ments,'' and not merely the necessary repairs to keep the build-
CIRCUIT COURT REPORTS— NEW SERIES. 848
1909.] Ashland County.
ing in as good condition as he received it. In other words, the re-
pairs are largely in excess even of what a tenant for a term,
or for life would be required to place upon the property in
order to protect the remainderman. From the evidence pre-
sented, the common pleas court fairly and reasonably separated
and distinguished the repairs for which the executor ought to be
allowed credit, from those that he was not authorized to make,
and the judgment of the common pleas court in that behalf is
affirmed.
The n6xt objection urged upon our attention is the claim for
additional compensation allowed to the executor. Under the
terms of the will the executor was entitled first to ten per cent,
of the appraised value of the estate, and for services after one
year it was provided by the will that he should have reasonable
compensation. The evidence in this case does not fully disclose
what would be reasonable compensation. The executor himself
did not testify. His reasons for not testifying are not important
in the review of this case, but the fact remains that the court
below was wholly without the aid of his testimony in determining
the full value of the services he rendered. True, there is some
evidence showing the extent of the estate, the different parcels
of real estate operated and managed by him, rents collected, etc.,
but the common pleas court was not otherwise advised as to the
time required by the executor in doing and performing these
services, so that its estimate of th? value of such services was and
is as fair as any court could make in view of the evidence of-
fered, and perhaps more than this court would allow without
specific evidence directed to the extent and value thereof. The
judgment of the court in that behalf is affirmed.
The next contention of counsel for the executor is, that the
common pleas court erred in the allowance of credit to this ex-
ecutor for fees paid to attorneys who were employed by him in
the settlement of this estate and in the contest of the will. It
is insisted that the executor had no authority to employ counsel
or to expend money of the estate in defense of the will, and that
therefore the court ought not to have allowed him credit for any
fees paid counsel for such services, but with that contention this
court does not agree. It is clearly the law in this state that iin-
844 CIRCUIT COURT REPOftTS— NEW SERIES.
In re Account of UUman, Executor. (Vol. XII,N. S.
der ordinary eirciinistances an executor is not called upon to make
such defense, whether he was required to do so in this case is not
important; the fact remains that he did defend the will when it
was attacked, and as a result thereof the will was sustained, and
it is clearly the law of Ohio that if an executor does defend
against a contest of a will and such suit results in the sustaining
of the will, that he may be allowed a credit of a reasonable
amount for counsel fees expended by him in the payment of
counsel employed to defend such will, and we think in this
particular case, where this executor was practically a trustee, and
clothed with some extraordinary powers in addition to ordinary
duties'of executor, it was perfectly proper and right for him to
intervene, and that the benefitted parties should have been com-
pelled to contribute to the payment of the expense thereof, either
out of the estate generally, or in any other equitable way that
the court may direct. True, if the will had been set aside, then
the executor would have no funds of the estate in his hands for
the payment of such expense and he must lose the amount, unless
he contract with his counsel that nothing is to be paid unless the
will is sustained, and that would be true in this case, notwith-
standing it appeared by the terms of the will that he had some
powers in the nature of an additional trust, beyond the ordinary
powers and trust of an executor, for if the will had not been
sustained then all such provisions wou'.d have fallen with it.
In this particular ease, however, the allowance to the executor
generally out of the estate for money paid by him as attorney
fees in the contest of this wuU results in placing the entire bur-
den upon the residuary legatees. True, it appears that the re-
siduary legatee is the one most vitally interested in the sustain-
ing of this will, and it does also appear that that residuary lega-
t^^e, tx)-wit, Ashland county, through its commissioners, failed and
neglected to aid the e,st«te or encourage the executor in making
this defense, and their conduct in that behalf does not commend
them very favorably to the consideration of this court. Yet,
notwithstanding that we do not think it equitable that the en-
tire costs of this contest should be paid by them, but all the in-
terested parties should have been compelled to contribute there-
to in equitable proportions, and the executor ought to have inter-
ClitCUIt COURT REPORTS~-NEl«r 3E11IBS. SW5
]tj09.] Ashland County.
vened with a motion to that effect in the probate court, before
distribution. True, the expense of attorneys in the settlement
of an estate must be paid out of the residuary fund. It is only
to the extraordinary expenses in the contest of a will that the
devisees and legatees under the will should have been compelled
to contribute, and we take it from the state of this record that
the executor himself was interested in the sustaining of this
will financially, as well as otherwise, and that being true, the pro-
bate court or the common pleas court settling this account would
not be required to aMow him as a credit the full amount of the
attorney fees, but might Allow him such part and parcel thereof
as w-ould seem to be just and equitable.
This court is of the opinion that the fees charged by counsel
and paid by the executor w^ere not exhorbitant or unreasonable,
but, on the contrary, were fair, just and equitable ; and particu-
larly is that true in relation to the fees paid for the contest of
the will, for as we have already stated counsel might not have re-
ceived anything at all for their services in case the will had not
been sustained. Therefore, in view of such contingency, it is not
unreasonable that the amount for which counsel would be willing
to contract would necessarily be larger than if the fee were to be
paid in all event.s. This record shows that the contract of one of
the counsel at least employed in the contest of the will was made
with the understanding that if he wa« unsuccessful in sustaining
the will that nothing was to be paid, if he was successful then the
full amount was to be paid.
It is further contended by counsel for the exceptors that this
executor being a man of affairs, poss<\ssing good business ability
and experience, ought not to have employed counsel in the settle-
ment of the estate, but that he should have attended to these
matters himself and that he was perfectly competent to do so.
We think that contention can not be sustained. Pew business
men are qualified to settle an estate without legal advice, for the
settlement of an estate is outside of ordinary business transac-
tions and many questions arise that are difficult for lawyers to
determine. So that it is only a wise and necessary protection to
employ counsel to assist in the settlement of an estate, especially
such an one as this. Not only is that true, but the will directs
«46 CIRCUIT COURT REPORTS— NEW SERIES.
In re Account of Ullman, Executor. (Vol. XII, N. 8.
the executor to employ counsel and directs who he shall employ,
but it was no longer possible to employ the person designated,
and therefore the executor was authorized to use his own best
judgment in determining who should take the place of counsel
designated in the will.
Coming now to the consideration of the amount allowed by
the common pleas court as a credit to this executor for the at-
torneys fees paid by him in the settlement of this estate and in
the suit to contest this will, we are of the opinion, from the
evidence contained in the record, that the common pleas court
erred in fixing the amount thereof, * and that the amount so
fixed by such common pleas court is against the manifest weight
of the evidence. We are not unmindful of the fact that whatever
is allowed comes out of the residuar^-^ fund, and therefore we are
not disposed to allow the full amount of these counsel fees, al-
though, as we have heretofore stated, we are of the opinion that
they were just and reasonable, and we think the executor ought
to have credit for a larger sum than that given him by the com-
mon pleas court. This residuary legatee will receive from the
estate perhaps over fifteen thousand dollars in money and a farm
of nearly a hundred acres, almost within the city of Ashland,
and while it is suggested that the appraisement of this farm was
about eight thousand dollars, and the common pleas court speaks
of it as about that, yet we think it clearly evident that the farm
is easily worth an amount equal to the amount that will be paid
in money, so that it receives something like thirty thousand dol-
lars out of the estate, or nearly one-third of the whole. Notwith-
standing the commissioners absolutely refused to assist in the de-
fense of the will, they are now willing to take the full benefits
derived from such contest. The fact that the attorney fees for
contesting this will can not now be distributed and assessed
against all of the interested parties, as well as this residuary lega-
tee, and that the executor did not attempt to protect himself in
that behalf, and the further fact that a portion of these fees
should be borne by the executor himself in view of his financial
interest in sustaining the will, we have reached the conclusion
that the executor should be allowed credit for the further sum
of two thousand dollars to the amount allowed by the common
CmcUlT COURT ftfiPORTS— NEW SERIES. Mt
1909.1 Ashland County.
p'eas court. That is to say, he will be allowed a further credit
of one thousand dollars additional on the amount p«aid to Judge
McCray, making a total of $2,000 credit to the executor for
counsel fees paid to him, and $1,000 credit for attorney
fees paid to Senator Patterson, making a total credit of
$2,500 on account of attorney fees paid by the executor to him,
and the judgment of the common pleas court upon these excep-
tions will be modified, so as to allow such further credits and as
Fo modified will be affirmed.
We also note that the common pleas court ordered and directed
the executor to pay the residue of the fund in his hands to the
commissioners of Ashland county. We think such an. order is
not authorized by law, but that it should be an order directing
him to pay the balance of the fund in his hands according to
law and the will of Mary F. Freer.
The Supreme Court of Ohio, in the 62 0. S., page 41, announces
this rule of law:
*'The probate court has not jurisdiction, in making an order
of distribution under Section 524, Revised Statutes, to determine
the. person to whom distribution is to be made, and the amount
going to each, but its power is exhausted in that particular
when, upon final settlement of the account of the executor or ad-
ministrator, it enters a general ordeo* of distribution."
This, we think, was all the order that the common pleas court
should have made in that behalf and any other or further order
would be misleading, inoperative and void, and the judgment in
that behalf is modified so as to require the executor to pay the
funds in his hands, according to law. In view, however, of the
directions of the will of Mary F. Freer, deceased, and with this
modification above mentioned, the judgment of the conmion pleas
court is affirmed and cause remanded for execution. Exceptions
of all parties are noted.
848 CIRCUIT COURT REPORTS— NEW SERIES.
Whitten v. State of Ohio. [Vol. XII, N. S.
POCKET PICKING AND ITS INCLUDED OFFENSE.
Circuit Court of Franklin County.
E. M. WniTTEN V. The State of Ohio.
Decided, November 4, 1909.
Criminal Law — Prosecution for Pocket Picking — W?iat the Offence
Includes and Does not Include — Charge of Court.
1. An Indictment ctiarging the crime of pocket picking, where the
property stolen is valued at $20, includes the offense of petit
larceny; and a refusal of the court, upon request of the accused,
to so instruct the jury is prejudicial error.
2. But an indictment for pocket picking does not include either as-
sault and battery or assault.
iV. B. Earnhart, for plaintiff in error.
Kiug ct Game, contra.
Allread, J.; SiTLLiVAN, J., aud DusTiN% J., concur.
Whitten, the plaintiff in error, wa.s indicted and convicted of
the crime of pocket picking. The property stolen was valued in
the indictment and also in the verdict at $20.
Upon the trial, a special request was made bj' counsel for the
accused that the court charjjre the jury that they might find tht*
accused not guilty of the charge of pocket picking, but guilty of
petit larceny. A simi'ar reciuest as to a verdict of assault and
assault and battery was made. A motion for a new trial was over-
ruled and sentence pronounced. A bill of exceptions was taken
and error is now prosecuted here.
The only serious questions involved in the record here is
whether petit larceny and assault and battery and assault art'
included offenses in an indictment for pocket picking.
It is settled in this state that where lesser offenses are em-
braced in the indictment, a failure of the court upon request of
the accused to charge upon the subject of the lesser and included
offenses is prejudicial error. Hanson v. State, 43 O. S., 378;
Howard v. State, 25 0. S., 401.
The indictment contains a complete charge of larceny, and
in addition a charge that the larceny was from the person of the
CIRCUIT COURT REPORTS— NEW SERIES. 34^
1909.] Franklin County.
owner. The larceny is the foundation of the charge, and the tak-
ing from the j)erson th? aggravation of the offense.
Numerous authorities are eited holding that burglary and
lareeny may be charged in one indictment, and if so charged the
conviction may be had of either or both.
(*ases are also cited by counsel holding that an indictment for
robbery includes larceny, and a conviction may be had for either.
No cases to the contrary have been cited by counsel upon these
propositions.
There is no distinction, in our opinion, in principle between
the charge* of pocket picking and that of robbery and burglary
and" larceny in this respect.
The state must first prove the larceny, and then the aggravation
that it was taken from the person or building. If the state fail
in prr.of of the aggravation it may still have conviction of the
included offense of larceny.
Blackstone in his Commentaries (Vol. 4, p. 240) styles larceny
from the person or house as ** mixed or compound larceny/'
and says that it **has all the properties of the former (simple
larceny), but is accompanied with either one or both of aggrava-
tion of t-aking from one's house or person." And (p. 242) adds:
''Larceny from the person is either by privately stealing, or by
open and violent assault.''
In State v. Tofte, 59 Ks., 755, it was directly held that larcenj'^
is included in a charge of pocket picking. In the opinion, after
quoting from Blackstone 's Commentaries, it is said:
**It would, therefore, seem that compound larceny is not in
character or general definition in any wise different from simple
larceny. It is different only in the aggravated circumstance of
being committed in a house or from a person. ' '
\n Fanning v. State, 12 Lea (Tenn.), 651, it was decided
that a verdict of simple larceny was proper under an indictment
for stealing from the person, which is the equivalent of pocket
l)icking under our statute. In the opinion, it is said:
**But larceny is necessarily included in the offense of stealing
from the person. Without this offense of larceny there could
be no offense charged in the statute against stealing from the
person. It is the larceny which makes it an offense, and the
aiO CIRCUIT COURT REPORTS— NEW SERIES.
Whitten v. State of Ohio. [Vol. XII, N. S.
circumstance of its being committed by taking from the per-
son aggravated it into a higher grade of offense."
In State v. Eno, 8 Minn., 190, it is laid down in the syllabus:
** Where the specifications in an indictment alleges a larceny
from the person, the defendant may be convicted of a simple
larceny.
>i
In the discussion of this question in the opinion, it is said :
**It is contended that in an indictment for larceny from the
person, the defendant must be acquitted if that particular of-
fense is not made out. To this we can not assent. Each of the
several descriptions of larceny involve a simple larceny. The
fact of its having been committed in a dwelling house or from
the person merely goes in aggravation and increases the severity
of the punishment. If the prosecution fails in establishing these
circumstances, but proves the larceny substantially as charged, a
conviction of the minor degree of the offence may be had."
Upon this proposition no cases have been cited by counsel or
found by the court to the contrary.
In the case of Brown v. State, 2 C. C. — N. S., 409, it was de-
cided tliat pocket picking is included in a charge of robbers,
l)asing l)oth offenw^ upon larceny as the foundation. This case
does not militate against but supports the conclusion that larceny
is an included offense in both robbery and pocket picking.
It is urged that larceny shouM not be held an included offense
because the maximum penalty is greater than in pocket pickin??.
It may however, be noted that in most eases of pocket pickinj^
the amount taken is small, falling . within the grade of petit
larceny. The offense of pocket picking was, therefore, pns
scribed as a higher grade to meet the cases .ordinarily arisin<2r
where small amounts are taken from the person. No other plausi-
ble reason i'ixn be given for its enactment.
We are not convinced, however, that the maximum penalty
is the exclusive test as to included offenses. A more accurate
test-, and the one usually applied, is found in the e^ential in-
gredients or elements, of the respective crimes. An indictment
for murder contains as essential ingredients malice and delibera-
tion in addition to the unlawful killing. The elimination by
failure of proof or otherwise of the distinctive e^entials of th«^
CIRCUIT COURT REPORTS— NEW SERIES. 351
1909.] Franklin County.
higher oflfenses reduces the grade until the appropriate included
offense is reached.
The case of Harris v. State, WJ 0. S., 92, does not conflict with
the inew that larceny is an included offense in a charge of pocket
picking. The opinion concedes that larceny is involved in pocket
])icking. and this is equivalent to saying that it is an included
offense. The matter decided was that a finding of the value
of the property taken need not be made to sustain a conviction of
pocket picking. Pocket picking is not graded by the amount of
property as in cases of larceny. The finding as to value is, there-
fore, not material as to the former offense, although it is as to
the latter.
The court, therefore, held that the statute providing that in
cas«3 of ** offenses against property by larceny'' the verdict
shall state the value, etc., applies only to larceny and kindred
offenses, classified *'as offenses against property." This interpre-
tation of the statutory phrase, ** offenses against property by
larceny," harmonizes the statutes and carries out the evident
legislative intent of meeting all cases where value determines the
grade or affects the punishment. In our opinion, it does not fol-
low from the mere classification of pocket picking as a crime
against the person, that the rule of the common law as to the
terms employed, as well as the plain scope of the statute defin-
ing the offenses, are overthrown.
We are of opinion, however, that neither assault and battery
nor assault, as criminal offenses, are included in an indictment
for pocket picking. Assault and battery and assault as criminal
charges imply an intent to employ some degree of force to the
person or inflict some physical injury, and must be accompanied
by menaces or threats of personal injury. These elements are
wanting in a charge of pocket picking. If force is used the
charged would be robbery. In pocket picking the taking from
the person does not necessarily imply that the property be sepa-
rated from the person by force, nor that the actual person be
invaded. The property may have been in the personal control
and presence of the owner and taken by stealth, without injury
to the person.
It is contended that in the indictment under consideration an
assault is charged, and that although not necessary to the crime
352 CIRCUIT COURT REPORTS— NEW SERIES.
Ijoeb V. Kent A Kaufhold. [Vol. XII» N. S.
of pocket picking, yet having made the charge, it became there-
by an included offense.
It is true that an assault is averred in the indictment, but
one essential element to constitute the offense is lacking, to-wit:
that the assault be accompanied by threats or menaces; and
this necessary feature is negatived by the averment that the act
characterized as an assault was Cvommrtted without force and
violence and without menaces or putting the party in fear.
The only error in the record, prejudicial to the accused, is.
therefore, the refusal of the court, to instruct as to the included
offense of petit larceny.
The judgment and conviction is, therefore, reversed upon the
ground stated and the cause remanded for a new trial.
PISMISSAL ON ElUtOIL rOR FAILURE TO FILft TRANSCRIPT.
Circuit Court of Hamilton County.
IjOuis Loeb v. Kent & Kaufhold.
Decided, June, 1909.
Error Proceedings — Effect of Failure to File Transcript WUhin Four
Months from Uendition of Judgment — Jurisdiction.
Bates d" Mcytr, for phiintiff in error.
Klein d' Staffman and James IL Jordmx, contra.
SwiNO, J. ; GiKPEN, P. J., and Smith, J., concur.
No transcript of the final record or transcript of the docket or
journal entries in this case wa,s filed in this court until long aft€>r
the four months from the rendition of the judgment complained
of, and not for more than four months after the petition in error
had been filed. This court therefore has acquired no jurisdic-
tion to hear and determine whether the judgment is correct or
not. 58 0. S., 221 ; 66 O. S., 356.
The action in this court should be dismissed.
CIRCUIT COURT REPORTS— NEW SERIES. 358
1909.1 Muskingum Ck>unty.
AS TO GENUININ£SS 6r PROMISSORY NOTES POUND AMONG
A DECEDENrS PAPERS.
Circuit Court of Muskingum County.
Carrington T. Marsh.vjx, Administrator, v. John J. Thomas.
Decided, October, 1909.
Promissory Notes — Presumption as to Delivery and Consideration —
Genuineness of Signature — l^estimony of Expert Witness as to'
Handufviting — May Oive Reasons for his Opinion on Examination
in Chief, as Well as the Opinion Itself.
1. Where a number of standards of handwriting have been admitted
in evidence for the purpose of proving the genuineness of a signa-
ture, it is an abuse of discretion on the part of the trial judge
amounting to prejudicial error to refuse to permit the Jury to take
to their room all the standards so introduced as exhibits.
2. An expert witness on handwriting should be confined to matters
apparent on the face of the writing. He can not be permitted by
argument or inference to draw conclusions as to matters not ap-
pearing on the face of the writing, and the value of his opinion
will depend upon the clearness with which he demonstrates its
correctness.
3. Where promissory notes are found among the papers of a decedent
delivery will be presumed; and nothing else appearing, the form
of such notes, stipulating that they were for value received, is
prima facie evidence of consideration.
Carrington T. Marshall, for plaintiff in error.
Winn it Bassett, contra.
VooRHEES, J.; DoNAHTTE, J., and Taggart, p." J., concur. .
This action is brought by the plaintiff in error as administra-
tor of the estate of Sarah E. Holden. deceased, upon two promis-
sory noteSf with warrants of attorney attached, both, l)earinij:
date September 21, 1898, due one year after date, copies of which
with warrant of attorney are attached to the original petition.
The defendant in error answers, setting up two defeusesv
The first defense, after making certain admissions, denies each
and every allegation contained in the first cause of action, and
further denies that he ever executed and delivered to said Sarah
3a* CIRCUIT COURT BBPORTS— NEW SERIES.
Marshall* Admiri, y, Thomas. [Vol. XII, N. 8.
E. Ilolden or to any one for her the alleged promissory notes set
forth in the petition; and as a second defense to each of said
notes ^pleads want of coni^i deration.
The files or transcript do not show there was any reply to this
answer of the defendant, but the Case was tried to a jury, and
the evidence was received bearing npon the issues made iA. the
case as if a reply were filed, so we assume that there was a reply,
and the issues properly joined Iwtween these parties.
The eause was submitted to a jury and resulted in a verdict
for the defendant. Motion for a new trial was filed and over-
ruled, and error is prosecuted to this court to reverse the judg-
ment of the court below, and various grounds of error are as-
signed in the petition in error for a reversal of the judgment:
\Vithout setting forth the numerous errors complained of m
the. petition in error, the principal ones which we will consider
are, errors in the admission of evidence on behalf of the defend-
ant;^ error in the court's refusing to allow all the exhibits that
had been admiteed by the court below as standards of the
genuine signature of the defendant in error to be taken by the
jury to their room for deliberation; that the verdict of the
jury is against the weight of the evidence and is not supported
by the evidence, and is contrary to law. The main -cont^itioii
in the case centers upon the question as to whfether Or not the
court err^d in its order refusing to allow all the exhibits that
had been admitted by the court below as standards of the genuine
signature of the defendant to be taken by the jury to their room
when they retired to deliberate upon their verdict. We will
consider this question first :
A large number, fifty or more of signatures and writings, ad-
mitted to be the genuine handwriting and signature of the de-
fendant, were introduced in evidence and used as standards of
comparison with the alleged signatures to the notes set forth ir*
the petition.
At the trial, the court did not limit in any Vi%y the number of
standard signatures that could or should be used for the pur-
pose of comparison. These standards were all used on the trial
in the examination of expert witnesses as standards of <H)m-
parijjon Atith the two notes in suit On the conclusion of the
CIRCUIT COURT REPORTS— NEW SERIES. 355
1909.1 MuskiDgum Coiknty.
charge, the eourt ordered that only two of the standards should
go with the jury in its deliberation. Afterwards, the court per-
mitted two other standards to be selected for that purpose, and
such s(*lections were made, and these exhibits with the notes m
suit were taken by the jur>' to its room during its deliberation.
The plaintiff in error took exceptions to the order of the
court, limiting the number of exhibits or standards that should
thus be taken by the jury.
The general rule as to what papers may be taken by the jury
ri«ts in the descretion of the court; and it is only when there
haar been an abuse of this discretion, the judgment will be re-
versed.
In considering this question, the nature of the issue involved
is important, namely: Where the genuineness of the handwrit-
ing of a party is challenged, the jury have the right to make com-
parisons between the standards and the writing in dispute. We
have no doubt that the court may limit in a reasonable degree
the number of genuine signatures or writings to be used as
standards of comparison; and if the court had so limited the
number in this case it would come within the sound discretion
of the court; but after the court admits such standards or ex-
hibits in evidence, it has no right to withdraw any portion \>f
them from the jury or to refuse to permit it to have all the
standards so admitted to l>e nsed in comparison with the dis-
puted signature.
When standards are thus admitted, if the jury takes any part
of them it should take all, and when the court orders that onlv
a part can be taken it is an abuse of discretion prejudicial to
the parties concerned. It may be illustrated in this way: The
court on the trial of any issue may reasonably limit the number
of witnesses to be used upon any one issue involved in the suit,
but after the court has permitted evidence to go to the jury
on any such issue either by the testimony of witnesses or by other
evidence, it would have no right to say to the jury or direct that
certain testimony or a certain number of witnesses only are to
be used in its consideration of such issue. It is not necessarv
to cite authorities as to the right of the jury upon a question of
handwriting, to make comparisons between the disputed band-
.%(i CIRCUIT COURT REPORTS— x\EW SERIES.
Marshall, Admr., v. Thomas. [Vol. XII, N; S.
writing and that which is admitted to be the genuine handwrit-
ing of the alleged maker of the disputed signatures; and the jurj'
may decide; by comparison the issue between the parties.
Returning to the question of the court refusing to permit the
jury to have all the exhibits that had been received in evidence
as standards of comparison with the signatiire in controversy,
it was held in the case of liainford v. People, 61 III., p. 365. to be
error for the court to allow the jury to take out a part of the
evidence without taking all. Applying this principle here, the
court was in error when he directed that only a certain number
of exhibits that had been introduced in evidence as the genuine
handwriting or signature of the defendant in error should be
taken by the jury to its room. The jury examining and com-
paring the signatures of only a part of the standards with the
disputed signatures would reason with one another as to why
they should have a part of the admitted signatures and the
others were excluded from their consideration. Their minds
would naturally be impressed by the rejection, and unconsciously
form conclusions from the refusal to permit them to have all of
the exhibits. Little do we know the secret and insiduous man-
ner by which impressions are produced on the mind, or how
slight the operating cause may be.
We think a sound discriminating discretion was not exercised
in permitting only a part of the admitted standards to be taken
by the jury when they retired to consider, weigh and detennine
upon the testimony and evidence in the case.
In refusing to allow the jury to have all the admitted standards
th(*re was prejudicial error in this case, imless the other conten-
tion of the defendant in error was established, namely, that
the notes were without consideration and were never in fact de-
livered to the payee named therein.
1st. Were the notes without consideration?
2d. Were the notes delivered to the payee?
The form of the notes, stipulating that they were given for
value received, nothing else appearing, if the notes were genuincs
would be prima faicie evidence of consideration.
Delivery is in general presumed from possession of a bill or
not(\ So, where a note was found among the papers of a de-
CIRCUIT COURT REPORTS— NEW SERIES. &")7
1909. J Muskingum County.
ceased payee, its proper delivery is to be presumed (Holiday v.
Lew is, A Hun., p. 478). But if a note were found among papers
of a deceased person who is a stranger to the note, and the repre-
sentative of the deceased person makes no claim to it, no delivery
to the payee will be presumed, and delivery actual or constructive
must be shown. Blanchard v. Sheldon, 43 Vt., p. 512.
The evidence in this case shows that these notes were found
among the papers of the deceased, Sarah E. Holden. Being so
found their proper delivery is to be presumed until the con-
trary is shown.
It is also urged in argument by the plaintiff in error, that
there was error in permitting the expert witness, George W.
Wood, to give his reasons for opinion he had formed as to the
signatures in question on his examination in chief, the contention
being, that his reasons for his opinion or judgment should be
tested bv cross-examination.
We do not agree with this contention; yet, we think it is
proper and perhaps necessary in this case for the court to say
something as to the examination in chief of an expert witness
oh handwriting, before he can be permitted to give an opinion,
where his only knowledge is gained from a comparison of ad-
mitted genuine writing with the writing of the disputed instru-
ment ; or, in other words, where the knowledge of the expert is
gained from a comparison of admitted genuine writing with the
writing in dispute.
In the case of Koons v. The State, 36 Ohio St., p. 195, the court
laid down this formula, as being requisite for the qualification
of an expert witness to give an opinion: **It must appear be-
fore such opinion is called for, that the witness has formed, or
is then able to form an opinion upon the matter in question.''
With the contention of the plaintiff in error, that the court
erred in permitting the expert Wood in his examination in chief
to give his reasons for the opinion or judgment he had formed
we do not agree. In Kieth and wife v. Lothrop, 10 Cushing, p.
453, the court say at page 457 that * ' the witness Smith who was
called as an expert was rightly allowed to give his reasons for
the opinion that he expressed.'' This point was adjudged in
Commomvealth v. "Welster, 5 Gush., p. 301 ; and in Collier v.
858 CIRCUIT COURT REPORTS— iNEW SERIES.
Marshall, Admr., v. Thomas. [ VoL XII, N. 8.
Simpson, 5 Car. & P., p. 73, Tindel, C. J., ruled, '*that counsel
might ask a witness who was called to testify as an expert, 'his
judgment and the grounds of it.' The value of an opinion may
be increased or diminished in the estimate of the jury by reasons
given for it*'
**It is proper on the examination of an expert, even on his ex-
amination in chief, to require him to state the reasons for his
opinion, so that the jury wiU be enabled to estimate the value of
his testimony.'* People v. ShatUick, 109 Cal., p. 673.
In examining the testimony of the expert Wood, we think
some parts of his testimony are objectionable, on the ground that
his opinion is formed or based upon argumentative statements,
more inferences and speculation. When an opinion is specula-
tive and theoretical only it should not be received; such state-
ments are not within the domain of expert testimony.
An expert can not testify that a forger in imitating and dis-
guising handwriting is more particular at the beginning than
at the close of the effort; he should be confined to matters ap-
parent on the face of the writing, he may testify to the diflfer-
cnce in the le'tters or words of the writing or signature in dis-
pute, similar characteristics or other matters as they may ap-
pear to him on the face of the writing, as for example, simula-
tion, naturalness and the like, and may in a proper case give
his opinion whether a given writing is a genuine or a feigned or
forged signature. By comparison is meant the collation of writ-
ings in juxtaposition for the purpose of ascertaining by inspec-
tion if they were written by the same person. Persons of ex-
perience and skill though previously unacquainted with the
handwriting in question may be allowed to depose as to appear-
ances perceived by them, as to the resemblance or difference in
the formation and appearance of the different letters or words,
or even in the general appearance of different portions of the
writing. Handwriting is an art concerning M'hich the value of
an opinion is susceptible of demonstration. The value of an
opinion of a handwriting expert must depend upon the clear-
ness with which the expert demonstrates its correctness. That
demonstration would naturally consist in the indication of simi-
CIRCUIT COURT REPORTS— NEW SERIES. 8r>0
1909 J Muskingum County.
lar characteristics or lack of similar characteristics between the
disputed' writing and the standards, and the value of the opinion
will largely depend upon the number 6t those characteristics
which appear or are wanting. Thus, comparison is rated after
the fashion of circumstantial evidence, depending for strength
upon the number, prominence and consistency of the links in
the chain. But the rule, as to circumstantial evidence, will not
permit one inference to depend upon another inference in es-
tablishing the question in issue. Therefore, the expert, should
be confined to matters apparent on the face of the writing, and
not by argument or inference draw conclusions upon matters
not appearing upon the face of the writing.
As an example of the violation of these principles in the ex-
amination of the witness Wood, we will give a single example,
reading from the bill of exceptions, at the bottom of page 84 :
**Now, as a matter of comparing the handwriting in the two
questioned signatures with the handwriting in the standards,
the two exhibits numbered 49 and 50, as well as all of the other
standards in evidence, there is just one logical conclusion to be
arrived at, and that is, that whoever wrote these two questioned
signatures held the pen in an entirely different way from the
manner in which the pen was held in writing any of the stand-
ards in evidence. Now, as I have stated before, these two ques-
tioned signatures were unquestionably written with the pen
held sidewise, pretty much after the fashion in which a stub pen
is ordinarily held by writers who employ stub pens. Now that
is not the case, nor was it the case in writing any of the stand-
ards. John J. Thomas, in writing his signatures as portrayed
distinctly in all of his signature writing in evidence as standards,
held his peii as writers ordinarily hold their pen, with the pen
facing the writer. Now that is distinctly portrayed by the
shading in the downward strokes; the heavy strokes of John J.
Thomas* signature writing are made with the downward move-
ment of the pen. In some of his signatures, in some of the
standard signatures in evidence, the heavy strokes are much
heavier in some instances than the others. In many instances,
they are quite as heavy as some of the heavy strokes in these ques-
tioned signatures, but they are made in a different direction;
they are made with a downward motion of the pen, or at any
event they are not with the side motion of the pen, and therein
is portirayed, in comparing the questioned signatures with the
tm CIRCUIT COURT REPORTS— NEW SERIES.
Marshall, Admr., v. Thomas. | Vol. XII, N. 8.
admitted signatures of John J. Thomas, an entirely different
habit of holding the pen, and it portrays two extremes. There
are just two ways in which a pen can be held, to extreme ways —
two extremes — one with the pen facing sidewise, and the other
with the pen facing the writer. Of course, there are different
modifications, from one extreme to the other, but here we have,
in a comparison of the questioned signatures with the standard
signatures of John J. Thomas, those two extremes,''
This is only one illustration of the method of the witness argu-
ing in support of his opinion without stating facts that are ap-
parent from an examination of the writings themselves. It
presents no question of science and involves no rule not sub-
ject to as many variations as there might be efforts at simulating
writing. The care of one man is not evidence of the care which
may be exercised by another in an effort to commit a forgery,
any more than is the skill of one man in executing the imitation
or disguise, evidence of the skill of another. An expert can not
testify that a forger in imitating and disguising handwriting is
more particular at the beginning than at the close of the effort.
These principles are well recognized by authority. Encyclopedia
of Evidence, Volume 6, page 384, subdivision 3, and authorities
there cited, and the Gordon case, found in 50 X. J. Equity, p.
397 ; s. c. 26 Atl., p. 264-268.
We appreciate the difficulty of establishing a definite rule for
the examination of an expert witness, to separate that which :s
argumentative, theoretical and speculative from that which is
proper illustration, in pointing out the difference in the letter
or words of the writings in the way of demonstration. We real-
ize that the examination must be left largely to the discrimina-
ting discretion of the trial judge when the testimony is bein^
given.
Eliminating from the testimony of the expert witness Wood,
that which would come under this rule of exclusion, we think
the verdict of the jury is manifestly against the weight of tho
evidence, in finding that the signatures of John J. Thomas to
Exhibits *'A'' and ''W are not genuine; on the contrary, the
weight of the testimony is manifestly in favor of their bein^
genuine. The witnesses who testified to the genuineness of
CIRCUIT COURT REPORTS— NEW SERIES. S61
1909.] Cuyahoga County.
these signatures were bank officials, men of long experienc in
examination by comparison of handwritings, and the decided
weight of the testimony is in favor of the genuineness of the.sc
two disputed signatures, and the jury has so disregarded the
weight of the evidence in their verdict that the court is forced
to the conclusion that their judgment must have been influenced
largely by the incompetent evidence given by this expert Wood
in his argumentative and speculative way of supporting his
opinion that the signatures of **A'' and **B*' were not genuine.
We have examined the charge of the court and find no error in
the charge, or in the refusal to charge as requested by the
plaintiff in error, but for the reasons stated, the judgment is
reversed with casts, and remanded to the common pleas for
further trial and proceedings according to law.
Exceptions noted.
FROSftCUTION rOR ABANDONMENT OP CHU>.
Circuit Court of Cuyahoga County.
A. J. IIiRSTius, Sheriff, v. Adolph Gottschalt.
Decided, November 1, 1909.
Parent and Child — Construction of Section 3H0-2 — Making Abandon-
ment of Minor Child by Parent a Felony — Order as to Provision for
Child may he Modified — Habeas Corpus,
1. An order made pursuant to Section 3140-2 requiring the father of
an abandoned minor child to pay a certain sum periodically for
the home, food, care and clothing of said child, and give bond
therefor, may be modified at any time thereafter when changed
conditions of the child require it, as well as when the father be>
comes unable to comply with the original order.
2. It is unlawful, however, to arrest and confine such father, if not
in default under the original order, until he has had opportunity
to comply with any modified order that may be made.
Estep & Oott, for plaintiff in error.
Clifford Neff, contra.
S62 CIBCUIT COURT REPORTS— NEW SERIES.
Hirstlus V. Gottschalt. [Vol. XII. N. S.
Winch, J. ; Henby, P. J., and Marvin, J., concur.
Error to the Court of Common Pleas.
This is a proceeding to review the judgment of the common
pleas court granting an application in habeas corpus for the re-
lease from custody of the defendant in error.
The record shows that on June 4th, 1906, Gottschalt was con-
victed in said court of the oflfense of abandoning his minor child,
and thereupon and before sentence was ordered to pay to the
clerk of the court for the home, food, care and clothing of said
child the sum of $20 quarterly, beginning July 1, 1906, until the
further order of the court, and gave bond to comply with said
order, as provided by law.
Although Gottschalt fully complied with said order, without
default, on the second day of June, 1909, upon motion, an order
was made in said court modifying the original order and rciquir-
ing Gottschalt to pay $3 per week, until the further order of
the court, for the support, care, food, home and clothing of said
minor. This order recites that it was made upon due notice to
Gottschalt and that upon the evidence adduced the court for
good cause finds that the allowance theretofore made is now in-
sufficient. The defendant was ordered to give a new bond con-
ditioned that he furnish his child with necessary and proper
home, food, care and clothing and abide the further order of
the court and a capias for the defendant was ordered.
Thereupon a capias was issued to the sheriff, plaintiff in error,
who arrested Gottschalt and imprisoned him in the county jail,
where he was held until released on his application here under
review.
No breach of the modified order was charged, nor had the de-
fendant had time to become in default under it, at the time the
capias was issued.
The statute under which Gottschalt was originally prosecuted
is Section 3140-2, Revised Statutes, and that part of it here
involved reads as follows:
"Provided, however, if after conviction and before sentence,
he shall appear before the court in which said conviction shall
have taken place, and enter into bond, to the state of Ohio, in
CIRCUIT COURT REPORTS— NEW SERIES. 863
1909.] Cuyahoga County.
the penal sum of one thoui»and dollars, to the approval of the
court as to surety, eonditioned that he will furnish said child or
children with necessary and proper home, food, care and cloth-
ing, or, if said child or children be in a county or district
children's home, that he will pay to the trustees of said home
the reasonable cost of keeping said child or children while re-
maining in the same, to be fixed by the court as to the amount
and times of payment, then said court may suspend sentence
therein ;
*'And provided further, that upon a failure of said parent to
comply with said order and undertaking, he or she may be ar-
rested by the sheriff or other officer on a warrant issued on the
precipe of the prosecuting attorney, and brought before the
court for sentence, whereupon the court may pass sentence, or
for good cause shown, may modify the order and take a new
undertaking and further suspend sentence as may be just and
proper."
It is claimed that because the statute provides for a modifica-
tion of the original order only in event the defendant fails io
comply with it, it can not be modified under any other circum-
stances. We can not give. assent to any such narrow construc-
tion. Manifestly the intention of the Legislature in authorizing
a modification of the order, when the defendant is in default,
was to give the trial judge an alternative, so that he would not
have to impose sentence if the defendant failed to comply with
the order, but could hear evidence as to his ability to comply with
the order, and, if satisfied that the defendant was unable to make
the payments, reduce the amount to be paid, instead of sending
him to serve his sentence, where he would be unable to make any
contributions to his child's support.
. We do not believe the Legislature intended to restrict that
broad and continuing jurisdiction over the rights of children
which the courts exercise with regard to their custody, in an
enactment evidently intended to provide against their abandon-
ment, and for their nourishment. See Hoffman v. Hoffman, 15
0. S., 427.
The prime object in this enactment is the good of the child.
As it grows, its wants multiply, and as they multiply and con-
ditions change, the courts have always given heed to the situa-
tion and modified their orders to suit the changed conditions.
fm CIRCUIT COURT REPORTS— NEW SERIES.
Insurance Co. v. Krumm. [Vol. XII, N. 8.
This necessary right to modify their orders affecting children
has not been taken from the courts by this legislation.
Further, the original order was before sentence, and ''until
the further order of the court.'* The case is still pending for
sentence and the court expressly reserved the right to modify
its order. The doctrine of res judicata does not apply. The
court does not appear to have abused its discretion in the modi-
fication which was made on June 2, 1909. We therefore hold that
said order is a valid order, and upon failure to comply with it,
the defendant may be brought in for sentence.
The record showing that the defendant was not in default as
to the latter order, when the capias was issued for him, his ar-
rest and imprisonment were illegal, without warrant of law, and
he was properly discharged upon his application.
Judgment affirmed.
RIGHTS OF A MORTGACEC WHO FAILED TO FILE FROOFS
WITHIN SIXTY DAYS OF A FIRE LOSS.
Circuit Court of Franklin County.
The Ohio-German Fire Insurance Company v. Emma Krumm.
Decided, September 27, 1909.
Fire Insurance — Construction of the ** Union Mortgage Clause** — Inten^
tion Toward the Mortgagee as Shown by the Mortgage Clause —
Meaning of the Words **the Insured*" — Conditions which Comply
with the Promissory Clause.
A mortgagee may recover upon a fire insurance policy, containing what
is known as the union. mortgage clause of the standard policy of
New York, New Jersey and Connecticut, for a loss of the property
by Are, when neither he nor the mortgagor present proof of loss
within sixty days after loss as required of "the insured" by a
condition in the policy.
Sheets ct West, for plaintiff in error.
G, E, Bib bee, contra.
Allread, J.; Sullivan, J., and Dustin, J., concur.
The question arising in this case is whether the mortgagee
may recover upon a fire insurance policy containing what is
CIRCUIT COURT REPORTS— NEW SERIES. 3«o
1909.] Franklin County.
known as the union mortgage clause of the standard policy of
New York, New Jersey and Connecticut, for a loss of property
where neither he nor the mortgagor presented proofs of loss
within sixty days as required of **the insured" by a condition in
the policy. It is conceded that the mortgagee presented proofs
of loss to the company before the suit was brought, but not within
sixty days after the loss occurred.
It is contended by the insurance company that the mortgage
clause which contains a stipulation that the insurance of the
mortgagee shall not be invalidated by any act or neglect of the
mortgagor does not relieve the mortgagee from compliance with
the conditions of the mortgage precedent to the bringing of the
suit, namely, the giving of notice and proofs of loss.
The courts of other states are divided upon this question and
no decision of our own courts has been cited.
The cases of Building cf* Loan Company v. The Home Imtir-
ance Conipan^f, 90 6a., 167, and Loan & Building Co. v. Dwelling
lloxi^e Insura'nce Co,, 62 Mo. App., — , support directly the con-
tention of the insurance company. The text in Joyce on Insur-
ance lays down the rule as contended for by the insurance com-
pany, citing the Georgia case as authority. There are other
eases cited by counsel for the insurance company in line with
these cases, but not directly upon the question of proofs of loss,
or where the policy is not similar to the one at bar.
On the other hand, the latter case of Adams v. Farmers Mutual
Insurance Co., 115 Mo. App., 21, is directly opposed to the former
case in the same court, and holds that the mortgagee under a
mortgage clause similar to the one involved here is not required
to present proofs of loss within sixty days as required of **the
insured" by other conditions in the policy. This view is also
supported by the cases of Glenn's Falls Insurance Co. v. Porte r^
44 Fla,, 568, and Northern Assurance Co. v. Chicago B. cO L.
Association, 98 111. App., 152.
Clement on Insurance in the text supports the proposition that
the mortgagee is not required to furnish proofs of loss within
sixty days, citing the cases above referred to as supporting that
proposition. The author, evidently from an examination of all
mU\ CIRCUIT COURT REPORTS— NEW SERIES.
Insurance Co. v. Krumm. [Vol. XII. N. S.
the cases, concluded to support the doctrine of the Florida and
other cases supporting it, rather than that of Georgia.
We are also of the opinion that the cases supporting the View
that the mortgagee is not required to furnish proofs of loss Avithin
sixty days as a condition of recovery are founded upon the better
reason.
It is clearly the intention.by the mortgage clause here to afford
a higher degree of insurance to the mortgagee and to relieve him
from many of those conditions which are imposed upon the
mortgagor. The reason for this may be found in the fact that
the mortgagor is ordinarily in possession and responsible for the
care of the property, and is more liable to have opportunity for
the imposition of fraud. This view was evidently in the mind
of the insurance company when it prescribed this form of policy,
and no reason is apparent why the court should construe this
clause as against its express terms in favor of the insurance com-
pany, but in case of doubt the mortgagee is entitled to a liber.al
construction in his favor.
It is, however, contended that the mortgage clause is not in-
consistent with the conditions of the policy requiring notice and
proofs of loss; that the term, *'the insured,'* as used in the con-
ditions requiring i)roofs of loss, inchides the mortgagee as well
as the mortgagor; and that, therefore, the mortgagee must see
that these proofs are furnished within the period stipulated in
the policy. Upon reading the petition however, which shows that
the owner of the property took the insurance and paid the pre-
mium, and also looking to the nature and character of the in-
formation to be given by *'the insured'* at the time of the fire,
and the nature and character of the proofs of loss, it is fairly
indicated that the term **the insured" relates to the owner and
not to the mortgagee. This view is well stated and illustrated
in the c^ise of Union Insiituiion for Savings, etc., v. Phoenix
Insurance Co., 196 Slass., 230.
We think, therefore, that a reasonable construction of this
policy is that the mortgagor is the insured and required to fur-
nish proofs of loss within sixty days after the fire as a condition
of his recovery, and that that clause does not apply to the mort-
CIRCUIT COURT REPORTS— NEW SERIES. 867
1909. ] ^ :< ■ . . Cuyahoga County.
gagee, and that he may recover notwithstanding the failure of
either to furnish proofs of loss within sixty days.
It is also urged that the promissory clause of this policy only
provides for payment of the loss within sixty days after proofs •
of loss according to the terms and provisions of the policy, and
that unless such proofs of loss are furnished by some one, the
j}romis8ory clause does not obligate the company to pay. It will
be observed from the record in this case that the mortgagee did
file proofs of loss at least sixty days before the suit was brought,
and inasmuch as the terms and conditions of the i)olicy do not
require the mortgagee to file proofs of loss within sixty days, we
think the promissory clause has been complied with by the filing
of these proofs of loss after the sixty days from loss and at least
sixty days before the filing of the petition.
The judgment of the court below, therefore, sustaining the de-
murrer to the answer and rendering the judgment in favor of the
mortgagee upon the policy, is consistent with our view of the
law of the case, and is affirmed.
AS TO MSCHARCE OF SURETY BY DELIVERINC THE
ACCUSED.
Circuit Court of Cuyahoga County.
IIenry DuLaurence v. The State of Ohio.
Decided, November 15, 1909.
Bail Bonds — Release of Surety upon Delivery of Accused not Effective to
Discharge Bond, Unless — Section 1111.
A surety on a bail bond who desires to surrender the defendant and
delivers him in open court, is not discharged from further responsi-
bility on his bond until the court accepts said delivery, and the
only evidence of the delivery is the record of the court.
AViNCH, J.; Henry, J., concurs; IIarvin, J., dissents.
Error to the Court of Common Pleas.
This was an action on a bail bond. DuLaurence admitted the
due execution of the bond but pleaded surrender of his princi-
368 CIRCUIT COURT REPORTS— NEW SERIES.
DuLaurence v. State of Ohio. fVol. XII. N. B.
pal. No record evidence of the surrender was offered, but parol
evidence on the subject was produced by both sides. Such
serious errors were committed in the introduction of this evi-
dence that the judgment must be reversed, unless the record is
the only competent evidence of the surrender. If such is the
law, the judgment is manifestly right and the rulings com-
plained of are immaterial and without prejudice.
The statute, Section 7177, reads *is follows:
"When a person who is surety in a recognizance for the ap-
pearance of a defendant before any court, desires to surrender
the defendant, he shall, by delivering the defendant in open
court, be discharged from any further responsibility on said
recognizance," etc.
We are agreed that if the delivery is complete without any
acceptance by the court, parol evidence is sufficient to prove it.
If the delivery is not complete until the court takes some official
action upon it, it would seem that such official action can only
be shown by the court's records. A majority of the court is of
the opinion that delivery is not complete until acceptance by the
court and that the record is the only evidence thereof.
A similar division of opinion is shown in the interesting case
erf Fitch v. Ilall, KWhy'^ Report, page 18, a case decided 125
years ago, and the. argument is there stated on both sides with
the brevity and clearness found in the old reports.
As sustaining the conclusion here reached, reference is made
to the following cases: State, ex rel, v. Este et al, 7 Ohio, 1st
part, 134; Whitton v. JIareling, 15 Mas,s., 504; Roiiniree v. Wad-
dill, 52 N. C, 309.
Judgment affirmed.
CIRCUIT COURT REPORTS— NEW SERIES 869
1909.] Cuyahoga County.
RECOVERY BY WIFE BECAUSE Or SALE OF OPIUM
TO HUSBAND.
Circuit Court of Cuyahoga County.
Henry H. Flandermbyer v. Lilue M. Cooper.
Decided, November 1, 1909.
Action for Injury to Consortium — Proximate Cause of Injury — Implied
Malice — Intervening Agency — Intention — Sale of Opium to Hushan<t
— Damages Awarded to Wife,
A wife may maintain an action for the loss of the society and com-
panionship of her husband occasioned by the wrongful acts of a
druggist who, against her protest, wantonly or maliciously fur-
nishes her husband, an opium habitue, with morphine in such
quantities as to incapacitate him.
A. H. Martin, for plaintiflf in error.
Ewing, Nteding dk Kramer and A. Frank Counts, contra.
Winch, J.; Marvin, J., concurs; Henry, P. J., dissents.
Error to the Court of Common Pleas.
The amended petition in this case claims damages for ma-
liciously, willfully and unlawfully depriving the plaintiff, Lillie
M. Cooper, of the society, companionship and consortium of her
husband, Charles A. Cooper.
She says that in the month of June, 1905, the defendant, II.
H. Plandermeyer, a pharmacist, conducting a drug store in the
city of Cleveland, sold morphine to her husband in such quanti-
ties that he became a slave to the drug. She further says :
*'That from and after June, .1905, and until June, 1906, at
divers dates which the plaintiff can not specifically set forth, al-
though the defendant, well knowing that the plaintiff was using
every available means to cure and counteract the habit thus
formed, and although she frequently protested to the said de-
fendant against his further selling or administering said mor-
phine, and expressly warned and prohibited said defendant
from continuing said sales or administration of morphine to the
said Charles A. Cooper, yet the said defendant, having thus
created an appetite in the said Charles A. Cooper for the said
drug, morphine, and well knowing that the drug was being used
370 CIRCUIT COURT REPORTS— NEW SERIES.
Flandermeyer v. Cooper. [Vol. XII, N. S.
not for medicinal purposes, but through a craving that had
fastened itself upon him, whereby he was becoming and had be-
come what is known as a morphine fiend, and was thereby wreck-
ing his mind and body, the said defendant did willfully, wrong-
fully, maliciously and unlawfully continue to sell and admin-
ister quantities of morphine to said Charles A. Cooper, said
sales becoming constantly more frequent, until they occurred
almost every day, and being in bulk quantities less than the
minimum original package of one eighth ounce, as provided
by law, so that the said Charles A. Cooper became a slave
to the baneful habit. of taking morphine into his system,
thereby wrecking his mind and body, and depriving him
of moral sensibility, by reason whereof he became and was
unfitted and incapable of giving the affection, society, com-
panionship, and consortium which he had formerly given and
which were due to his wife, the plaintiff, and that by the means
aforesaid so furnished by the defendant knowingly, willfully
and imlawfully, the plaintiff has been deprived of the affection,
society, companionship and consortium of her husband.
'*The plaintiff further says that finally, in consequence of the
defendant's unlawful and willful acts, on the 16th day of June,
1906, it became necessary for the said Charles A. Cooper to be
confined in an asylum, and to be detained therein for a long
period of time, namely, about one year, whereby the plaintiff
was further deprived of the consortium of her husband."
Issues were made up on this cause of action; the case was
tried to a jury, resulting in a verdict for the plaintiff in the
sum of $500 ; judgment was rendered upon the verdict, and the
cause is now here for review.
The grave objection to this judgment, raised by demurrer to
the petition, motion for judgment both before verdict and on
special findings of the jury, exceptions to the charge, and in other
ways, is that not the selling of the drug, but the husband's
voluntary and independent act in taking it into his system was
the proximate cause of the injury complained of. There wjis no
evidence that the druggist administered the drug, further than
selling it to the husband.
This objection is very well stated by counsel for plaintiff in
error in the following language:
*'To sustain an action for injury to one's consortium, if such
an action can be sustained in this state, in any case other than
CIRCUIT COURT REPORTS— NEW SERIES! 871
1909.1 Cuyahoga County.
a case for alienation of affections, the alleged injury must be
the result of a force exerted directly upon the marriage relation,
with the purpose of injuring plaintiff's consortium, and the
act of the consort responding to that form must not be volun-
tary/*
An analysis of this objection requires a consideration of the
nature of this action.
Tiffany on Persons and Domestic Relations (Hornbrook
Series), page 80, speaking of the action by the husband for
alienation of his wife's affections, savs:
** Whatever may have been the principle, originally, upon
which this class of actions was maintained, it is certain that
the weight of modern authority bases the action on the loss of
consortium, that is, the society, companionship, conjugal affec-
tions, fellowship and assistance. The suit is not regarded in the
nature of an action by a master for the loss of the services of
his servant, and it is not necessary that there should be anv
pecuniary loss whatever.
>>
Passing next to a consideration of the wife's rights, he says,
on page 83 :
**In most, but not all, jurisdictions, a wife has a right of ac-
tion against one who entices away, or alienates the affections
of her husband; at least where her disability to sue alone has
been removed by statute. According to the weight of opinion,
the right exists even at common law."
So we find it has been held in this state :
**A wife may maintain an action for the loss of the society
and companionship of her husband, against one who wrongfully
induces and procures her husband to abandon or send her away.
**The acts of the defendant that caused the alleged injury
must have been malicious." Westlalxe v. Westlake, 34 Ohio St.,
621.
In discussing the question of malice, the court, on page 634
say :
"The term malice, as applied to torts, does not necessarily mean
that which must proceed from a spiteful, malignant or revenge-
ful disposition, but a conduct injurious to another, though pro-
ceeding from an ill-regulated mind, not sufficiently cautious
before it occasions an injury to another. 11 Serg. & R., 39, 40.
872 CIRCUIT COURT REPORTS— NEW SERIES.
Flandermeyer v. Cooper. [Vol. XII, N. 3.
**If the conductvof the defendant was unjustifiable and actu-
ally caused the injury complained of by the plaintiff, which was
a question for the jury, malice in law would be implied from
such conduct, and the court should have so charged."
In 5 Words and Phrases Judicially Defined, 4298, we find
the following definition:
** Mai ice, in common acceptation, means ill-will against a per-
son; but in its legal sense it means a wrongful act done inten-
tionally, without just cause or excuse."
The learned trial judge followed the doctrine of the Westlake
case and properly charged as to the element of malice and de-
clined to charge as to the doctrine of intervening agency, saying
that he thought there was no place for that doctrine in the case.
Remembering that the wrong here complained of is charged
as the intentional and not the unintentional act of the defendant,
was not the trial judge right?
The intentional wrong here involved was the selling of the
morphine to a morphine fiend, knowing and intending that he
should take it, and fully realizing the results that would flow
to the wife, for she had stated them to the druggist and ordered
him to sell her husband no more morphine. The intervening
act of the husband, so-called, was in no sense intervening, but
contemplated, understood and expected at the time of the sale.
It was part of the process by which the druggist would accom-
plish his purpose if he was actuated by express malice, and why
should the rule be different if his malice is merely implied by
law from his reckless conduct? Indeed, some of the evidence in
this case would almost warrant the jury in finding that the
druggist was actuated by express malice. The wife testifies:
'*! followed Mr. Cooper to watch where he was going, and I
went in and Mr. Smith (a clerk in the store) was just about to
hand him something over the counter. I said: *Mr. Smith,
are you selling him morphine or any drug, or anything of that
kind? If you are, I will make trouble for you.' He said: *Yon
can't stop me.' And this all happened after she had warned
Flandermeyer not to sell to her husband, his only answer being ;
You can't forbid us, because we are selling it by the quantity."
The final results to Cooper from taking the morphine were
that he tried to commit suicide and lauded in the insane asylum,
CIRCUIT COURT REPORTS— NEW SERIES. 378
1909.] Hamilton Ck>unty.
where he remained a year; the re£nilt to the wife was that she
was deprived of the consortium of her husband. If a wife can
be wronged in her conjugal rights by one who wrongfully in-
duces and procures her husband to abandon her, as in the West-
lake ease, why not by one who deliberately feeds the husband a
poisonous drug instead of poisonous words which produce the
same result?
At least two courts have found the principles upon which suits
for alienation of affection are based, applicable in actions such
as we have here. They were both cases where the druggist sold
laudanum to the wife. Hoard v. Pecky 56 Barb., 202; Eolle-
man v. Harward, 119 N. C, 150.
We hold, then, that the wrong here committed was not merely
a moral wrong, but an actionable one, and the record of the
case supports the verdict of the jury.
Complaint is made as to certain rulings on evidence, which
we have examined, but find no prejudicial error in them.
Judgment affirmed.
AS TO SETTLEMENT OF DAMAGES POR A TORT.
Circuit Court of Hamilton County.
Emma DeQarmo v. Cincinnati Traction Company.
Decided, July 3, 1909.
Failure to Read Paper before Signing — Not Negligence^ When — Re-
lease— Evidence — Error in Arresting Case from Jury,
Horace A. Reeve, for plaintiff in error.
Kittredge, Wilby d' Stimson, contra.
GiFFBN, P. J. ; Swing, J., and Smith, J., concur.
At the time plaintiff signed the release pleaded as a defense,
it was not known that she had sustained any serious bodily in-
jury, although she was extremely nervous.
She testifies as follows:
' * I said what am I signing this for ? He said it is to show that
I paid you the money for dress damages."
874 CIRCUIT COURT REPORTS— NEW SERIES.
Lewis Travis v. State of Ohio. (Vol. XII, N. S.
The conversation was confined wholly to the damages to her
dress, for which she received fifteen dollars. Under such circum-
stances it was not negligence on the part of plaintiff to omit read-
ing the paper before signing, and the court erred in arresting
the case from the jury. Perry v. O^Neil & Co,, 78 0. S., 200.
It was error also to sustain the objection to: **Q. Did you
rely upon what Mr. McCarthy told yout'*
Judgment reversed and cause remanded for a new trial.
AUTHORITY OF JUVENILE COURT SUPERIOR TO
THAT OF PARENTS.
Circuit Court of Franklin County.
Lewis Travis v, The State op Ohio,
Decided, October, 1909.
Juvenile Court — Constitutionality of the Act Establishing — Designa-
tion of a Judge to Act — Authority to Distribute Business among
Judges having Like Original Jurisdiction — Is not a Conferring of
Jurisdiction — Validity of Provisions for the Care of Delinquent and
Dependent Children — Police Power.
1. Ttie act of April 16, 1906, establishing Juvenile courts and establiah-
ing procedure therein, does not contravene any of the provisiona
of the state Constitution.
2. In counties where three or more common pleas Judges regularly
hold court concurrently, it is competent under Section 548-36/ that
the probate Judge should be designated to perform all the duties
pertaining to the office of Judge of the Juvenile court.
Sullivan, J. ; Dustin, J., and Allread, J., concur.
Heard on error.
The judges of courts having like original jursidiction may
arrange for a proper distribution of the business coming bo-
fore said courts.
As an illustration, the Court of Common Pleas of Franklin
County is presided over by several judges. They are author-
i/iCd to establish rules to facilitate the disposition of the business
coming before the court. One of these provides for a division
of the business among the several judges.
CIRCUIT COURT REPORTS— NEW SERIES. *m
1909.] Franklin County.
The act in question (Juvenile Court Act) authorizes the judges
of the several courts of equal jurisdiction to designate one who
.shall hear and dispose of the business in which each is given
equal original authority. Jurisdiction consists of the power to
hear and determine. The source of this power resides in the
Legislature. In this act it is conferred upon the several courts
named by that authority, and the mere selection by the several
judges of one to dispose of the business is not conferring jurisdic-
tion. For, without such designation, either of the courts named
could entertain jurisdiction of the matter specified in the act;
whilst if the authority was conferred upon the judges, neither
of said courts could exercise the power to hear and determine
unless authorized by the judges beforehand. The court first
acquiring jurisdiction would hold it until the action was finally
disposed of.
The constitutionality of the act was challenged in the case of
Giltman v. State, before this court in Clark county. We were
then of the opinion that the act did not contravene any of the
provisions of that instrument. A re-examination of the act does
not convince us that our opinion in the Giltman case was wrong;
and it is, therefore, adhered to here. This would dispose of all
the points presented by plaintifl* in error, and rendered it un-
necessary for further discussion and comment.
But it is perhaps well to give a more extended consideration
of the points made by plaintiff in error. It is claimed that the
act is void for lack of definiteness; that, under the provision
of the Bill of Rights, an accused is entitled to have the matter
charged against him stated with such definiteness that he may
be advised as to what he must meet. No one can dispute this
claim, but this requisite could not have been intended to apply
to statutes declaring certain acts to be criminal. Such statutes
must be general in terms, for the reason that a violation of the
statute would depend in many cases on a different state of facts.
The requisite of the Bill of Rights respecting definiteness would
be complied with if the affidavit or indictment set forth the
facts claimed to constitute the offense.
As an illustration, take the crime of perjury; the statute de-
fining this offense is familiar. A prosecution could not be based
876 CIRCUIT COURT REPORTS— NEW SERIES.
Lewis Travis v. State of Ohio. [Vol. XII, N. 8.
on an affidavit which simply asserted that John Doe, in a cer-
tain action, naming it, testified falsely in a matter material to
the issue in the action. The statements claimed to have been
false would have to be stated. This illustration might be carried
to other statutes defining criminal offenses. In the act before us,
the several acts and conduct constituting a delinquency in a child
have a common, accepted meaning. In each instance, whether an
act of delinquency has been committed depends upon the par-
ticular facts of the case. These facts must be stated with such
definiteness that the claimed delinquent, and those having charge
and control of the child, may be advised as to what they must
meet. We think the sections of the statutes naming acts of de-
linquency and what shall constitute a neglected and dependent
child are expressed with sufficient definiten^s.
It is contended by counsel for plaintiff in error that the acts
constituting delinquencies and a dependent child are so inter-
mingled with the provisions for the education of the delinquent
or dependent, when either becomes a ward of the court, that
they can not be distinguished.
We think a careful reading of the entire act successfully re-
futes this claim. There are two classes of minors under the age
of seventeen years to which the act applies: first, delinquent
children; second, dependent children.
After it has been judicially determined by the proc<^ings
in the act that a child under the above age is either a delinquent
or dependent, then the court is authorized to commit the custody
to one of the persons or institutions of the state, named for its
education, moral training, etc. This seems clear enough, and the
claim of confusion seems to have no foundation, at least in this
statute. It is not the purpose of the act to punish the child,
but to take it out of environments, which if continued would
result disastrously to it as well as to society, and thereby create
a standing menace to the state; and to supply it with opportuni-
ties for good moral training and physicial comforts and support.
The parent, guardian, or anyone having the custody and control,
who in any way contributes to the delinquency, or in any re-
spect is responsible for the neglect of any such child, may at the
same time be brought into court under arrest. If the charges
1
CIRCUIT COURT REPORTS— NEW SERIES. 377
1909.) Franklin (bounty.
against such person are sustained, he may be punished, but not
the child.
Counsel for plaintiff in error, with more than usual feeling,
pathos and oratory, and with some force, urged that the Legis-
lature exceeded the limits of its constitutional power in author-
izing minors to be taken from their homes in spite of the protest
and objection of the parents, though it was for the purpose of
removing the minor from evil influences and further in-
dulgence in vicious habits and practices tending to the ulti-
mate degradation of the child ; that the natural right of parental
dominion over the child during minority can not be made sub-
ordinate to the state ; that during this period f he conduct of the
child, however injurious it may be, however vicious it may be,
does not make him amenable to the police power of the state at
common law.
But when the custody, education and moral training of the
child is claimed by contending parents, the courts, in determining
the question, keep in view solely the interests of the child; and
when the interests of the child require it, commits its custody to
strangers in face of parental appeal. If the interests of society
and good government require the removal of children up to a
certain age from evil influences, the state in doing so is in the
exercise of its police power.
At common law, when the custody, education and moral train-
ing of children became a question between the parents, the courts
disregarded the appeals of either or both, and looked simply to
the interests of the child.
The right to the custody and society of children in the parent
is a natural one and one which the state claims no right to take
away except when the interests of society require it.
Two interests require such intervention on the part of the
state — ^that of the child, and that of society. The interest of the
latter is the interest of all of its members. It is the latter in-
terest which authorizes the state to invoke its police power to
the end that the children of the state shall not be permitted to
engage or indulge in practices and habits that in adults are
criminal, until they are graduated as hardened and unredeem-
able criminals.
878 CIRCUIT COURT REPORTS— NEW SERIES.
Seither v. City of Cleveland. [VoL XII, N. S.
We find no error of record prejudicial to plaintiff in error
and the judgment is, therefore, affirmed at costs of plaintiff,
and cause remanded to probate court to carry into execution said
judgment.
APPEAL IN APPROPRIATION PROCE£DINCS BEGUN IN THE
COURT OF INSOLVENCY.
Circuit Court of Cuyahoga County.
Prank Seither v. The City op Cleveland,
Decided, November 22. 1909.
Jw^diction on Appeal — Appropriation Proceedings by a Municipality —
Proceeding *'Begun'' by Passage of Declaratory Resolution by Coun-
cil— Right of Appeal and to Prosecute Error Indistinguishable —
Construction of Section 1536-114 as Amended, 100 O. L., 100.
The effect of the act of March 22, 1909, amending Section 1536-114,
Revised Statutes, was to deprive the common pleas court of juris-
diction on appeal to retry appropriation proceedings b^un by a
municipal corporation before that date in the insolvency court,
but not carried to Judgment until after the passage of said act.
Smith, Taft & Arter, for plaintiflf in error.
Newton D. Baker, City Solicitor, and W, D. Wilkin, Assistant
City Solicitor, contra.
Winch, J.; Henry, J., and Marvin, J., concur.
Error to the court of common pleas.
This is a proceeding to review the judgment of the common
pleas court dismissing, for want of jurisdiction, an appeal to
said court from the judgment of the Insolvency Court of Cuya-
hoga county, in an action to assess compensation for lands
sought to be appropriated by the city of Cleveland for park
and boulevard purposes.
Previous to March 22, 1909, such appeals were provided for
by Section 1536-114 of the Revised Statutes. On said date an
act of the General Assembly (100 0. L., 100), became eflfective,
which abolishes such appeals and provides in lieu thereof a re-
view of the judgments of the insolvency court in such proceed*
CIRCUIT COURT REPORTS— NEW SERIES. 370
1909.] Cuyahoga (bounty.
ings by petition in error to the circuit court. This act contains
no provision with regard to its application to pending actions
or proceedings or causes thereof, as mentioned in Section 79
Revised Statutes.
The important dates to be considered in this case are the
following :
October 12, 1908, resolution passed by the city council declar-
ing its intention to appropriate the lands of plaintiff in error
and others.
March 22, 1909 (the very day the law referred to took effect),
ordinance passed by city council directing said appropriation
to proceed.
March 30, 1909. Application to assess compensation filed in
insolvency court.
May 20, 1909. Verdict and judgment in insolvency court
as to compensation awarded plaintiflf in error.
June 4, 1909. Appeal to common pleas court perfected by
filing transcript in said court.
It will be noticed that the proceedings in the insolvency court
were not commenced until after the law was amended, but on the
theory that said proceedings were but a part of the original
proceedings to appropriate, begun by the city council by the pas-
sage of its declaratory resolution on October 12, 1908, we shall
treat this matter as if the proceedings instituted in the insolvency
court antedated the change in the law.
This change in the law affected only the remedy in such mat-
ters— the right to have a judgment of the insolvency court re-
viewed, either by appeal to the common pleas court under the
former law, or by petition in error to the circuit court, under the
later law.
This question is determined by the date of the judgment sought
to be reviewed, for, under the decision of the Supreme Court
in the case of Gompf et at v. Wolfinger et al, 67 Ohio St., 144,
the review of judgments rendered before the amendment is
governed by the former law, but the review of judgments ren-
dered after the amendment in cases pending at the time the law-
was changed, is governed by the amendment.
Before reading the syllabus of that case, let us consider what
380 CIRCUIT COURT REPORTS— NEW SERIES.
Seither v. City of Cleveland. [Vol. XII, N. S.
the court says on page 147 as to the nature of the right to re-
view a judgment:
**That a resort by petition in error to a court of superior juris-
diction for the reversal of the judgment of a court of inferior
jurisdiction is a proceeding in contemplation of the general sec-
tion (Section 79, Revised Statutes) was determined in hisuratxce
Co, V. Myers et al, 59 Ohio St., 333. • • • That decision
may be cited as full authority for the conclusion that the judg-
ment • • * whose reversal is sought * * * is a cause
of proceeding within the meaning of Section 79."
The syllabus of the Gompf case is as follows:
''1. The act of May 12, 1902, to amend Section 6710, Re-
vised Statutes, not being by its terms applicable to causes of pro«
eeeding then existing, did not take from this court jurisdiction
to review such judgments which the circuit court had previously
rendered as w^ere subject to review at the time of their rendition.
**2. The effect of that act was to deprive this court of juris-
diction to review a judgment of the circuit court rendered after
its passage and not coming within its term. Slingluff et al v.
Weaver et al, 66 Ohio St., 621, approved and followed."
The second paragraph of the syllabus is decisive of this case,
for here the law was amended on March 22, 1909, and the
judgment sought to be reviewed was not rendered until May
20, 1909.
If it be suggested that there is some difference between the
right to appeal from a judgment and the right to review it on
error, we find that matter also disposed of on page 151 of the case
last cited, where Judge Shauck says :
*'It is necessary to observe that, with respect to the present
question, it is not practicable to distinguish between an appeal
with a view to a trial de novo and a proceeding in error to re-
view a judgment of an inferior court for error appearing upon
its record. They are alike resorts to a jurisdiction which Sec-
tions 2 and 6 of Article IV of our Constitution denominate ap-
pellate, and they are equally effective to destroy the final char-
acter of the judgment rendered, by requiring the parties to bear
the burden of a retrial upon questions of fact or of law% or both."
Judgment affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 881
1909.] Hamilton County.
CHOICE or WRONG COURSE IN MOMENT OF PERIL.
Circuit Court of Hamilton County.
Citizens' Motor Cab Co. v. Joseph Hamilton.
Decided, November 13, 1909.
I^egligence — Damages for Injuries from Being Struck hy an Auto-
mobile — Degree of Care Required of One in Peril — Charge of
Court.
1. It is not negligence per $e to cross in front of a street car with-
out first ascertaining whether an automobile or other vehicle,
proceeding in the same direction as the car and concealed by it,
is running at a great and unlawful rate of speed.
2. One who, after having passed safely in front of a car, is con-
fronted by an automobile running at great speed and but a few
feet distant, is not to be held to the exercise of the same care in
the choice of a way of escape that prudent persons would exercise
were there no danger present; and an instruction to the jury that
a plaintiff thus situated could be charged with ordinary care
only is relevant and free from error.
Robert Ramsey, for plaintiff in error.
Theodore Horsiman, contra.
The plaintiff below was struck by an automobile belonging to
the motor car company, and recovered judgment below for $4,-
000 on account of the injuries sustained.
GiPFEN, P. J. ; Swing, J., and Smith, J., concur.
Error to the Superior Court.
The plaintiff, Hamilton, could and did pass in safety
over the street railway in front of a moving car, and he was
not negligent per se in thus crossing without first ascertaining
whether an automobile or other vehicle was moving in the same
direction with and on the other side of the street car at a danger-
ous and unlawful rate of speed. He had a right to assume that .
any such vehicle was running, if at all, at a lawful rat« of speed.
When he reached the other side of the street railway he saw
the automobile approaching at a dangerous and excessive rate of
382 CIRCUIT COURT REPORTS— NEW SERIES.
Westwater v. Scioto Valley Pool Co. [Vol. XII, M. 8.
speed. Three alternatives were presented to him: either to
stand still, retreat in front of the moving street car or attem))t
to pass beyond the automobile, any one and all of which were
apparently dangerous, although had he remained standing he
would probably have avoided injury.
In such a situation of peril the rule stated in the third propasi-
tion of the syllabus of the case of Penn, Railroad Co. v. Snydery
55 0. S., 342, applies and the court so charged the jury ; but it
is claimed that the charge was not relevant to any issue tendered.
The plaintiff was required to exercise* ordinary care, and the
instruction given was merely a definition of ordinary care on the
part of a plaintiff, who, without his fault, was in a situation of
unusual peril. He had reasonable grounds for believing that the
course pursued would be the safest, and should not be charged
with the consequences of error of judgment resulting from the
excitement and confusion of the moment. Railroad Co. v. Mmv-
ery, 36 0. S., 418;- Pennsylvania Co, v. Langendorf, 48 0. S.,
316.
The judgment should be affirmed.
AS TO RECOVERY UNDER A CONTRACT FOR
CONCRETE WORK.
Circuit Court of Franklin County.
James Westwater v. Scioto Valley PooIj Co.
Decided, October 19, 1909.
Contracts — Action for Recovery on — Subsequent Proposals not 'Admis-
sible in Evidence — Increased Cost Due to Owner Stopping the
Work — Weight of the Evidence.
1. Where the sole issue is as to price, the fact that some witness was
permitted to testify as to quantity is not prejudicial.
2. Inasmuch as a written contract is presumed to contain all the
stipulations, complaint can not be made of a refusal to admit in
evidence a proposal made by one of the parties.
3. The same rule applies in determining whether a Judgment is against
the weight of the evidence that would apply were a verdict being
considered.
CIRCUIT COURT REPORTS— NEW SERIES. 888
1909.] Franklin County.
4. Where work is stopped by the owner and is not allowed to proceed
until a change of season has made it more expensive to carry it
forward, it is the duty of the contractor, if he intends to make a
claim for additional compensation, to make it immediately; other-
wise, if presentation of the claim is delayed until trouble has arisen
in settlement, it is open to the suspicion that it is an afterthought
3. A Judgment can be reversed on the weight of the evidence only when
it is so manifestly against the weight of the evidence as to indicate
mistake, bias or prejudice.
SuLUVAN, J.; DusTiN, J., Allread, J., CODCUr.
Heard on error^
The number of yards of concrete being agreed upon, and the
sole dispute between the parties in this cause of action being the
price to be paid therefor, the testimony of the witness Griggs as
to the number of yards could not prejudice the claim of plaint-
iff in error.
Furthermore, no motion was interposed by plaintiff in error
to strike out this part of the witness's testimony, and therefore
the point was not saved, even if the evidence had been preju-
dicial.
The court below properly excluded the proposal of plaintiff in
error. Where a written contract is entered into, it is presumed
to contain all stipulations agreed upon between the parties ; that
the written instrument is the result of all negotiations between the
parties prior to its execution, and the very purpose of reducing it
to writing is to preclude the claim being made for any stipulations
not contained in it. If plaintiff in error desired to have incorpo-
rated in the contract the provision proposed to be proven by the
proposal and it was agreed upon, it should have been made
a part of the instrument. The fact that in no one of the accounts
rendered by plaintiff in error is there any claim made for dam-
ages for delay is of itself strong evidence that the provision of
the proposal desired to be shown was purposely omitted.
The judgment of the court is the same as a verdict of a jurj\
A reviewing court, in the consideration of the record, to de-
termine whether the judgment is against the weight of the evi-
dence, must observe the same rules established to determine
whether a verdict is wrong for the same reason.
884 CIRCUIT COURT REPORTS— NEW SERIES.
Westwater v. Scioto Valley Pool Co. [Vol. XII, N. 8.
When plaintiff in error was stopped in the progress of the
work, and not permitted to resume until the change in the season
was such as to demonstrate that it would cost more to do the
work, he should have then declined to proceed, unless the defend-
ant in error would agree to pay the difference in cost, if he then
intended to prefer a claim for such increase. If he then had
such claim in mind, it was his duty at that time to decline to
proceed unless the defendant agreed to pay the increased cost
occasioned by its delay and made claim for the work and ma-
terial furnished and done up to that time. The fact that he did
not do this is evidence that such claim was an afterthought, when
considered in connection with the fact that he made no such claim
until he brought suit. The first account including a charge for
concrete in the coal pit fixed the price at $5.85; the next at
$7.50. It is reasonable to assume that he was better able to de-
termine its price just at the completion of the work than months
thereafter. The price fixed at the first time supports the claim
made that its reasonable value was $6.
The reviewing court is without opportunity in an error pro-
ceeding to judge of the credit that should be given to the wit-
nesses. In this respect the trial judge has the better opportunity.
Therefore, it is only when a judgment rendered by a court or
a verdict by a jury is so manifestly against the weight of the
evidence as to indicate a mistake in weighing the evidence, or
bias or prejudice. A review of the evidence contained in the
record in this case does not, in our judgment, show either.
The judgment will, therefore, be affirmed at plaintiff's costs.
CIRCUIT COURT REPORTS -NEW SERIES. 38i)
1910.] Hamilton County.
CHLD STRUCK AT CROSSING BY TRACTION CAIL.
Circuit Court of Hamilton County.
Darwin Stephens. Administrator, v. CiNriNNATi Traction
COMPAN"^*.
Decided, May 1. 1909.
Negligence — In Operation of Traction Car Approaching a Crossing-
Child Struck and Killedr—Speed of Car Proximate Cause — Whether
Speed was Reasonable a Question for the Jurj^ — Error in Charg*^
of Court.
1. A traction company is not Justified in running a car at full speed
when approaching a public crossing, although it is not a street in-
tersection, particularly when several children were walking on the
sidewalk toward the crossing with their backs to the car and In
full view of the motorman.
2. Where It appears that had the car been running at a maximum rea-
sonable rate of speed, the child who was struck at the crossing
would have passed over in safety and the collision would have been
avoided, then the greater rate of peed at which the car was run-
ning was the proximate cause of the injury.
3. The question what was a reasonable or unreasonable rate of speed
at that particular place and under all the circumstances was one
for determination by the jury.
4. An instruction to the jury in such a case, which requires that a ver-
dict be returned for the defendant without regard to any act of
negligence on the part of the company in the running' of its car
prior to the Instant the child attempted to cross the track. Is er-
roneous.
E. S. Aston and Thos. L. Michie, for plain tiflF in error.
Outcalt dr Hickenlooper, contra.
GiPFEN, P. J.; Smith, J., and Swing, J., concur.
The negligence charged in the petition is running one of de-
fendant's ears at a dangerous rate of speed, omitting to keep
a proper lookout, omitting to give proper signal, and omitting
to apply brakes and check the speed of the car while the deceased
was crossing the highway at a public crossing. The jury re-
turned a verdict for the defendant, and the only error relied on
is the giving of the following instruction in writing before argu-
ment :
886 CIRCUIT COURT REPORTS— NEW SERIES.
Stephens v. Traction Company. [Vol. XII, N. S.
' * If the jur>' find from the testimony in this case that the de-
ceased, Emily Stephens, so suddenly left the sidewalk on the
north side of Liston avenue and ran into the street diagonally
toward the car tracks, that the motorman of said car could not,
in the exercise of ordinary care, have anticipated the action of
the fehild, in so leaving the sidewalk and running into the street,
in time to avoid a collision, and that a collision did occur be-
tween said car and said child, resulting in injuries to the child
from which she subsequently died, then I charge you that such
collision was an accident for which the defendant traction com-
pt^ny would not be liable, and your verdict must be for the de-
fendant.''
It is claimed by couns(»l for plaintiif in error that this instruc-
tion takes from the consideration of the jury all questions of
negligence of the defendant in operating its car prior to the time
that the little girl left the sidewalk. While on the other hand,
counsel for the defendant in error claim that it is immaterial at
what rate of speed the car waK running, as the collision would
have oc(iurred although the car was running at a reasonable rate
of speed, and that therefore the speed of the car was not the
proximate cause of the collision.
The evidence does not warrant the latter assumption, as plaint-
iff's testimony tended to prove that the car was running at the
rate of twenty miles an hour, and the motorman called by de-
fendant testified that the speed was the highest at which the car
could be operated.
Plaintiff's evidence tended to prove further that while the
child ran from the curb to the point of collision, a distance of
about seven feet, the car moved 180 feet, and that if the car had
been running at the rate of ten miles an hour the child could
have run seven feet further to a place of safety before the car
reached the point of collision.
The distinct qualification of the special instruction is con-
tained in the clause *Mn time to avoid a collision."
The faster the speed the less time the motorman had to avoid
a collision ; and if by running the car at a maximum reasonable
rate of speed the child could and would have passed over the
track in safety, then the greater rate of speed was undoubtedly
the proximate cause of the collision. The question of what was
CIRCUIT COURT REPORTS -NEW SERIES. 887
1910.] Hamilton County.
a reasonable or unreasonable rate of speed at this place and un-
der the circnmstanees was properly for the jury. We ean not
say as matter of law that any speed greater than ten and leKs
than twenty miles an hour would be unreasonable and danger-
ous; but it is clear that the defendant was not justiiSed in run-
ning its ear at full speed, without warning, when approaching >\
public crossing although the same was not a street intersection.
The very fact that several children with their backs to the ear
were walking on the sidewalk toward the crossing, although
not indicating an intention to cross, chilled for a warning from
the motorman.
■
The jury were bound, under this instruction, to return a ver-
dict for the defendant, regardless of any alleged act of negli-
gence except not keeping a proper lookout prior to the time when
the motorman. in the exercise of ordinary care, could anticipate
the action of the child in leaving the sidewalk.
While it is tru«* that the child was not on the tlag-stones form-
ing the crossing, yet she w^is so near to the same that the ordi-
nary precautions required at street crossings would probably
have protected her. At all events the jury were not permitted
to determine such questions. We think the court erred to the
prejudice of the plaintiff.
Judgment reversed and cause remanded.
NEGLIGENCE IN FAILING TO SEE AN APPROACHING TRAIN.
Circuit Court of Crawford Coimty.
Thomas Barton v. The (\, C C. & St. L. K. R. Co,*
4
Decided. September 30, 1904.
Injury to a Section Hand — Who Failed to Hee an Approaching Train-
Circumstances when Failure to Give Warning of Train's Approach
is not Negligence,
When a section hand, at work beside a railway track in the full light
of day, failed to see or hear a train approaching on a track which
was straight for more than a mile and was struck and injured by
It, though a movement of a few inches only would have prevented
♦Affirmed by the Supreme Court without report, 74 Ohio State. 479.
388 CIRCUIT COURT REPORTS— NEW SERIES.
_ *
Barton v. Railway. [VoL XII, N. 8.
the accident, he can not recover damages therefor, notwithstand-
ing he was given no warning of the train's approach by either the
engineer or the section boss.
Finley & Gallinger and Charles Schafer, for plaintiff in error.
Dan Bahst, Jr., and Cummhigs, McBride rf" Wolfe, contra.
XoRRis, J,; Day, J., lind Mooney, J., concur.
This is an action in error. The suit below was for recovery
for damages for personal injury. The plaintiff below was a
section hand working for defendant on its railroad at Crestline.
When injured he was engaged in removing fish plates from rails
which were lying outside the ties of defendant's tracks. While
so engaged, he was struck by one of defendant's trains moving
along said track and by this sustained the injury for which he
seeks to recover. He was under the control of defendant's sec-
tion boss, who stood near when the accident occurred.
The negligent acts laid to defendant which are claimed to
sustain plaintiff's action and fixes defendant's liability, are that
the section boss stood close and saw the approaching train, knew
of plaintiff's dangerous position and gave him no warning of
his danger, though he might have warned him in time to have
saved him from injury; that the accident was on a portion of
plaintiff's road where the view from the approaching train was
unobstructed and plain for a long distance, and with plaintiff
in full view of the engineer in charge of said train for nearly
a mile, the engineer ran the train against plaintiff, and sounded
no whistle and rang no bell, and gave no warning signal to
plaintiff, which might have apprised him of the train's approach
and of his danger, and did not make any effort to stop the train
and save plaintiff from injury; that the section boss and the
engineer knew all this, and knowing plaintiff's danger and
knowing that he did not see and did not hear the approaching
train failed to do the things they ought to have done to save
plaintiff from injury, and that their failure amounted to wan-
ton negligence, and by reason thereof defendant is liable as one
guilty of wreckless disregard of plaintiff's rights w^hich amounts
to bad faith.
CIRCUIT COURT REPORTS— NEW SERIES. 889
1910.1 Crawford Ctounty.
The answer denies and says that if plaintiff was injured, his
injury was caused by his failure to care for his own safety and
not by negligence of the defendant.
This reply is a denial. Upon the issues joined by the plead-
ing and the evidence, the case came on for a trial to a jury in
the common pleas court, and after the plaintiff had introduced
his evidence and rested his case, the court upon motion on the
behalf of the defendant arrested the further trial of the issues
and directed the jury to return its verdict for the defendant,
which was done accordingly. The plaintiff filed his motion for
judgment notwithstanding the verdict, which was overruled.
Plaintiff's motion for a new trial was interposed and overruled,
and jury rendered a verdict for the defendant.
To reverse this judgment and proceeding of the trial court,
plaintiff filed his petition in error here and assigned for causes
of error:
1st. Error in sustaining the motion to direct a verdict for
defendant.
2d. Error in directing the verdict, and in overruling plaint-
iff's motion for judgment notwithstanding the verdict, and in
overruling plaintiff's motion for a new trial.
3d. That the judgment is for the defendant when it should
have been for the plaintiff.
We find no error in the proceeding of the trial court which
warrants reversal. There is no evidence in the record tending to
show that the defendant was negligent as alleged in the petition,
or was negligent at all. This accident occured about 11 o'clock
in the forenoon. The plaintiff was removing fish plates from
rails which had been moved from the track outside of the ties to
a distance of about 21^ feet from the track rail. He was far
enough away from the track, and only placed his head in such po-
sition as that it might be struck by a passing train by assuming
a stooping position ; if he had stood straight he would not have
been injured. He had been in the employ of the railroad com-
pany for several years ; he says that while he was ordered to do
the work by the section boss, he had no instruction except to
*'take the wrench and remove the plates." He had been warned
to look for approaching trains. The view was unobstructed for
im OIKOUIT COURT ttEPORTS-^-NEW SERIES.
Cincinnati Traction Co. v. Hulvershorn. rVol. XII. N, 8.
nearly a mile; it was the middle of the day; others working
with him heard the train approach, yet he says he did not hear
and did not see and did not try to hear or see and did not think-
about the train. The engineer could see him, and no doubt did
see him. and saw others working with him arise and assume a
position of safety though he rang no bell and sounded no whistle.
The engineer had good right to believe that plaintiff would do
the same, and so did the section bos.s — that plaintiff would
straighten up and save contact with the train.
All these facts refute the hypothesis that defendant through
its servants, the engineer and section boss, or either of them
were guilty of such negligence as amounted to wantonness and
bad faith toward the plaintiff.
rjmn the other hand, the evidence does show that the plaintiff
refused to exercise every effort, either phj'sical or mental, to can*
for his own safety, when by the exercise of the least care what-
ever, he might have saved himself from injury.
We arc of the opinion that the trial court was warranted in
arresting the testimony and directing the verdict for the de-
fendant and so do affirm the judgment.
ACTION BY A PARTNERSHIP FOR A TORT.
Circuit Court of Hamilton County.
Thk Cincinnati Traction Co. v. William Hulvershorn.
Doing BrsiNEfsS as the Ingels Forwarding
& Transfer Co.
Decided, November 6, 1909.
\eulwence — Evidence of — yot All Acta Alleged Must be Proved—
Partnership — Action 6y — Requirement as to the Filinu a Certifi-
cate with County Clerk— Section 3170-6.
1. Evidence that a motorman saw that the space between the track
and curb of the street was so narrow that the wagon In front
of him could not get out of his way is sufficient to sustain a ver
diet for damages resulting from his permitting the oar to strike
the wagon.
Where an action for damages on account of a tort is brought by a
partnership, doing business under a fictitious name, within the
o
CIRCUIT COURT REPORTS—NEW SERIES. S9J
1910.] Hamilton County.
time prescribed by the statute, the fact that the certificate of
partnership was not filed with the county clerk for more than four
years does not bar the action under the provisions of Section
3170-6.
Kittredge, Wilby & Stimson, for plaintiff in error.
Scott Bonhamf contra.
The petition alleged that in September, 19U2, while one of
plaintiff's teams, attached to a coal wagon, was being driven
along Spring Grove avenue, Cincinnati, at a point where the
space between the street car track and the curb was narrow^ a
traction car came rapidly up from behind and without warning
to the driver of the coal wagon and in attempting to pass struck
the hub of one of the wheels of the wagon with such force as to
break the wagon and harness and kill one of the horses. A ver-
dict was recovered below of $275.50, which was in full of the
claim, with interest.
GiPPEN, P. J.; Swing, J., and Smith, J., concur.
The plaintiff below was not required to prove each and every
act of negligence charged in the petition, and it was sufficient
that although the motorman saw that the space between the track
and the curb was narrow, and that the wagon was too close to the
track to pass in safety, he did not have his car under control, but
allowed it to move forward with great force against the hub of
the front wheel of plaintiff's wagon. This much is clearly shown
bv the evidence and is sufficient to sustain the verdict.
That part of the general charge complained of required the
jury to find substantially every act of negligence charged be-
fore returning a verdict for the plaintiff, and was more favor-
able to the defendant than the pleadings and evidence required.
There was no prejudicial error in admitting testimony in re-
butal.
Although the certificate of partnership was not filed with the
clerk of the court until more than four years after the right
of action accrued, yet the action was commenced before expira-
tion of that period, and under the proviso of Section 3170-6, Re-
vised Statutes, the plaintiff could lawfully maintain the action.
Judgment affirmed.
892 CIRCUIT COURT REPORTS- NEW SERIES.
City of Springfield v. Gas Co. [Vol. XII, N. 8.
LIMITATION ON TH£ USE OP NATURAL CAS.
Circuit Court of Clark County.
The City op Springfield v. The Springfield Gas Company*
Decided, May 17. 1907.
Corporations, Municipal and Comviercial — Control of, where Opera-
ting Public Utilities — Void Provision in Grant to Natural Oas
Company — Permitting the Supplying of Oas for Heat and Power,
but not for Illuminating Purposes — Transfer *of Rights to Artifi-
cial Oas Company — Ordinance — Injunction — Construction of Sec-
tion nn — Authorizing City Solicitor to Apply for Restrainimj
Order.
1. .A. city solicitor is clearly authorized under Section 1777, Revised
Statutes, to bring suit in the name of the municipality to enjoin
a public utility company from violating its obligations to the
city and its inhabitants.
2. Such an action will lie, notwithstanding the coriK}ration is ac-
ting under color of an ordinance, if the provision of the ordi-
nance complained of is in excess of the power of council to grant.
:•,. A municipality is without authority to prescribe by ordinance
that a commodity acquired by its inhabitants shall not be used
for any purpose that is not dangerous or injurious; and a pro
vision in the ordinance embodying a grant to a natural gas com
pany, that g9.s shall not be furnished for illuminating pur|)oseH
but only for heating and power, is void, and the company may
be compelled to either furnish gas for illuminating purposes or
abandon its rights in the streets.
Stewart L. Taium, City Solicitor, tor plwintitT.
Martin d* Martiu, for defendant.
Si'LLiVAN, J.; DusTiN, J., and T\'iLsoN. J., concur.
This case comes into this court on appeal. It is pending on a
general demurrer to the petition, and also on a motion to dissolve
the temporary restraining ord(»r. They present the same ques
tions. Kach acimits the averments of the petition.
The demurrer was sustained by the court below, and the city
not desiring to amend, its petition was dismissed, and a judgment
* Affirmed by the Supreme Court, without report. December 21. 1909.
CIRCUIT COURT REPORTS— NEW SERIES. SiH
1910.1 Clark Ck>unty.
filtered against it for costs, from which judgment the city took
an appeal.
The thorough and extensive briefs prepared and presented by
the respective counsel show great and well directed industry, and
have relieved the court, in its consideration of the case, from a
great deal of labor. How far the authorities of other states
<Mted are dependent upon the statutes of those states, where
they are in apparent conflict with those of the courts of our own
state, not having access to those statutes, we are not able to
determine. However we are of the opinion that those of our own
state fully support the conclusion we have reached upon this
demurrer.
Counsel for defendant contend, first, that the city solicitoi*
has not the authority to institute this action in the name of the
city.
We will not read the petition, but simply state the substance
of it. It sets forth that the plaintiff is a municipal corporation,
elassed as a city; that the defendant is a corporation organized
under the laws of Ohio; that it was incorporated under the
name of the Springfield Gas Light & Coke Company. A copy
of its charter is attached to the petition. That in pursuance of the
powers granted by said charter, it erected gas works, laid its
mains and other pipes in the streets and alleys of the city, and
upon the completion of the same began to deliver to the city and
its inhabitants artificial gas manufactured by it, and ever since
siiid date and now is manufacturing and selling artificial gas to
the city and its inhabitants; that on the 21st day of January,
11)06, its charter was amended; a copy of the amendment is also
attached to the petition.
The charter before this amendment authorized the defend-
ant to manufacture and sell artificial gas only. By the amend-
ment it is authorized to sell and deliver gas to the city and the
inhabitants thereof, no matter how produced.
On the 4th day of June, 1889, the council of the city, by ordi-
nance, granted to the Springfield Natural Gas Company, a cor-
poration organized under the laws of Ohio, the right to lay and
maintain, in the streets and alleys of the city, pipes for the pur-
pose of conveying through the same and supplying the city and
HM CIRCUIT COURT REPORTS— NEW SERIES.
City of Springfield v. Gas Co. [Vol. XII. N. 8.
its inhabitant.s with natural or produced gas for heating, fuel
and power purposes only. A eopy of the ordinance is attached
to the petition.
Some time in the vear 1896 or 1897, the exact date the citv is
unable to state, the defendant acquired by purchase or other-
wise all the property of the Springfield Natural Gas Company,
including its pipes, appliances and franchi.ses, and ever since,
and is now, the owner of and in the exercise and enjoyment of
the privileges and franchises granted said natural gas company
bv the citv.
At the time of granting said franchise to the said natural
gas company, the city, by ordinance, fixed the price of natural
gas to be paid by the consumer at ten cents per thoiLsand cubic
feet, and the price of artificial gas was one dollar and a half per
thousand cubic feet.
The city claims, and so avers, that its council had no author-
ity to limit the use of natural gas to that of heat, fuel and power,
when the use of it for illumination was one of its legitimate and
recognized uses, supplying as safe, as good, and cheaper light
than artificial gas. That the limitation was in contravention of
the rights and interests of the people of the city, and in deroga-
tion of the right to use one's ])roperty for such purposes as one
chooses.
The city then avers that the natural gas company did not
regard the limitation, and in every instance, where a purchaser of
natural gas used it for illuminating purposes, the company of-
fered no obje(*tion, but furnished it for such purpose and ac-
cepted pay therefor; and that now natural gas is being fur-
nished to a numlk^r of inhabitants of said city, and used by
them for illuminating purposes. And this was done, and is be-
ing done, under the charter of the natural gas company, and
with the knowledge of th(» city and its officers, and was done
with the knowledge of the natural gas company, and also of
the defendant; that with the knowledge that natural gas was
being supplied to customers for illuminating purposes, and iii
good faith relying upon the supply for such purposes being
continued, many inhabitants of said city, at great expense,
have equipped their residences with appliances for the use of
CIBCUIT COURT REPORTS— NEW SERIES. 390
1910.] Clark Ck>unty.
natural gas for such purposes; that on the 14th day of ^lay.
1906, council of said city passed an ordinance fixing the pric<*
of natural gas at twenty-five (25) cents per thousand cubic feet,
for the period of three years after that date ; that by virtue of
all the foregoing facts, a contract has resulted between the citj*
and the defendant, whereby the defendant is legally bound to
supply the city and its inhabitants with natural gas for illumi-
nating purposes, as well as those of heating, fuel and power;
that the city is the owner of a certain piece of property, de-
s<»ribed in its petition, fully equipped for the use of natural gas
for lighting purposes; that a number of the city's inhabitants
have e<iuipped their respective properties for the like use of
natural gas, and are now using the same for such purpose,
and that the defendant threatens to and will, unless restrained,
in every one of said properties disconnect the appliances nec-
essary and in use for the utilization of natural gas for lighting
purposes — and the defendant threatens and, unless restrained,
if the city and its inhabitants persist in the use of natural gas
for illuminating. purposes, will not supply either with natural
gas for any purpose — and the city therefore prays that it may
have a temporary restraining order preventing the defendant
from executing any or all of said threatened wrongs, and that it
may have a perpetual injunction against the defendant, and for
all other and further relief in equity, to which it may be en-
titled upon proof of the facts set forth in its petition.
The question as to whether, under Section 1777, the citv so-
licitor is authorized to institute this action, is one we think of
not much difficulty. The claim here is that the defendant is
violating its obligations to the city and its inhabitants, and its
duty to the public, arising out of the facts averred herein, as to
the respective easements granted to it and the natural gas com-
pany by the city, and that the defendant should either l)e com-
pelled to discharge its obligation and its duty to the public, or
or its rights and privileges granted by said easements should
be forfeited.
The third paragraph of said section authorizes the city solici-
tor to bring suit in the name of the city for such purposes. By
89« CIRCUIT COURT REPORTS— NEW SERIES.
City of Springfield v. Gas CJo. (Vol. XII, N. 8.
said section, the city solicitor is also authorized to bring suit in
the name of the municipality, challenging any act of its council
where it is in excess or an abuse of its corporate power.
It is claimed that Section 1 of the ordinance, passed June 4,
1889, is void; that the limitation fixed by that section of the
ordinance upon the use of natural gas was an act in excess of
the city's corporate power.
In either or both cases we think the city solicitor is clearly
authorized by Section 1777, Revised Statutes, to bring suit in
the name of the corporation.
The facts set forth in the petition, being admitted by the de-
nuirrer, do they make it legally incumbent upon the defendant
to supply the city, and such of its inhabitants as may desire it,
natural gas for illuminating purposes?
The Legislature has expressly provided that corporations or-
ganized for the purpose of lighting municipalities, etc., may
supply natural gas for such purposes; that such corporations
shall have the power of eminent domain. They belong to the
class known as public service corporations. Their property is
'* devoted to a use in which the public have an interest and to
the extent of that interest must submit to be controlled by the
public for the common good so long as siich use is maintained.'*
Muim V. Illinois, 94 U. S,. 113.
Although authorized by the Legislature to occupy the streets
and alleys of a city or village, yet the terms and conditions upon
which a corporation may do this are to be fixed by the latter
The municipality fixes the price to be charged for the gas, etc..
furnished. The city could not grant to the Springfield Gas
Light & Coke Company the exclusive use of its streets and
alleys to lay its pipes to furnish artificial gas for lighting pur-
poses ; neither could it grant to the natural gas company the ex-
(»lusive use of the strc^ets and alleys to supply natural gas for
heat, fuel and power. This latter company could have had
included in its charter express corporate authority to supply
the city of Springfield and its inhabitants with natural gas for
illuminating purposes. It is not apparent how the state could
have had any interest in omitting or withholding such power.
OIRCtnT COURT REPORTS— NEW SERIES. 897
1910.] Clark County.
We think it could not have been suggested by state authority.
The effect of the omission or the withholding of such corpor-
ate authority was the creation of a monopoly in the Springfield
(las Light & Coke Company to furnish gas to the city and its
inhabitants for lighting purposes. The petition avers that the
use of natural gas for light was just as safe, gives just as good
light as the artificial g&s, and was and is much cheaper. The
eflfect therefore was to destroy competition and prevent the
public from availing iteelf of the cheaper commodity ; and not-
withstanding the charter of the natural gas company did not in-
clude authority to furnish natural gas for illuminating pur-
poses, it could still do so. The Circleville Light dr Power Co. v.
Buckeye Gas Conipavy, 69 O, S., 259: same case, 1 C. C. — N.
S., 526.
The company could, we think, contract with the city and its
inhabitants to supply both with natural gas for such purpose.
It seems to have understood this to be its right, and hence at
the time it sold and transferred all of its property, including
its franchises in the streets and alleys of the city, it was and
had theretofore been furnishing natural gas for such purpose.
This was generally known by those in control of both companies.
The defendant, acquiring by purchase all the rights, privi-
leges and franchises of the natural gas company in the city's
streets and alleys, for the conveyance and sale of natural gas
to the city and its inhabitants, and continuing in the use of
said streets and alleys for such purpose, its obligation to the
city and its inhabitants is the same as that of the natural gas
company. The latter became legally bound to continue to sup-
ply those with whom it had contracted to furnish the gas for
light, so long as it exercised its easement in the streets and
alleys. It could not discriminate between any of the inhabi-
tants, by furnishing to some and refusing others, and there-
fore would be bound to furnish it for light to all who desired it,
complying with the requisites of the company and paying for
the gas. In our opinion, the same obligation rests upon the de-
fendant.
Under the rule that one has the right to make such use of his
property as one may choose, such use not beinff unlawful nor
398 CIRCUIT COURT REPORTS— NEW SERIES.
City of Springfield v. Gas Co. [Vol. XII. N. 3.
injurious to the person or property of others, the purchaser of
natural gas, after the commodity became his property, may usf*
it for lighting: his premises upon a ex)mpliance with the ermi-
pany 's method for its deliverance.
A municipality has not the authority to prescribe by ordi-
nance that its inhabitants shall not use property acquired for
any purpose, neither dangerous nor injurious.
This court held, in the case of The State v. Thi: Dayton
Traction Company and others, 18 Ohio Circuit Court ReportK.
490. that where a city grants permission to a street railway
company to construct its road in its streets, it may not do w»
upon the condition that the company does not exercise one of
its corporate powers, and therefore a condition or regulation
that the company shall not carry freight, is void. This judg-
ment was afterwards affirmed by the Supreme Court.
If a city ordinance containing such regulation is void, for
the want of power in the city to exact such a condition, it
follows, we think, that an ordinance limiting the use of a com-
modity, such a.s natural gas, conceded to be safe and availabU-
for illuminating purposes, to that of fuel, heat and power, is
void also for the same reason. If the city can not in the one
case, for the lack of i)ow(»r, recjuire the corporation to contract
away thi» right to exercise one of its corporate powers, it would
certainly be without power in the other casQ to deprive the city
and its inhabitants, by ordinance, of a common right.
We i\rv therefore of the opinion that Section ] of the ordi-
nance.* passed on the 4th of June, 1889, in so far jus it limits the
use of natural gas to that of fuel, heat and power, is void.
It is contended by counsel for the defendant that the remedy
here sought, being that of specific performance, that upon the
facts stated in the petition, such a decree could not bt» executed.
The prayer of the petition is in the alternative, and if the facts
stated should be fully sustained by eompetent testimony, a
court of equity would have no difficulty in discovering a remedy
to correct the evil.
We are. therefore, of the opinion that neither the demurrer
nor motion are well taken, and the same are therefore overruled,
at the cost of the defendant.
CIRCUIT COURT REPORTS— NEW SERIES. 899
1910.] Hamilton County.
INJUNCTION AGAINST EXECUTION ON JUDGMENT POR
RESTITUTION OF DEMISED PREMISES.
Circuit Court of Hamilton County.
Seth C. Foster et ai^ v. Edward Ellison.*
Decided. December 4, 1909.
Forcible Entry and Detainer — Limitation of Effect of Judgment — En-
forcement of J May he Enjoined^ When — Qmstiona as to Title — Lessee
Holds Over — Right to Declare Forfeiture for Failure to Pay Bent
Waiv^ by Failure to Make Deviand — Title to Permanent Lease-
hold Quieted.
1. The provision of Section 6601, that a judgment in an action for
forcible entry and detainer shall not be a bar to a second action,
constitutes an exception to the general rule that equity will not
enjoin the enforcement of a judgment where a defense at law was
available^ and if the facts alleged by one praying for an injunc-
tion against the enforcement of such a judgment entitle him to a
decree quieting his title or fixing the extent of his title, injunction
which is merely ancillary to the main issue of title, will lie until
the question of title has been determined.
2. Where a lessee under a lease for three and one-half years renewable
forever, holds over for twenty days before notice is served upon
him to quit the premises, he thereby elects to renew the lease, and
the provision not having been complied with that a forfeiture
could only be declared after demand for unpaid rent duly made
according to law, the lessee upon offering to pay his arrearages Is
entitled to a decree quieting his title to a permanent leasehold.
♦ Affirming Ellison v. Foster et ah 6 O. L. R.. 666. which see for state-
ment of the facts.
,]ohn L. Stettinns, for plaintiff in error.
Galvin rf* BaucVy contra.
Giffen, p. J.; Smith, J., and SvviNCi, J., concur.
Tpon a rehearing of this case, Section 6601, Revised Statutes,
was urged as authority for affirming the judgment under review,
rt provides that a judgment in forcible entry and detainer shall
not be a bar to any after action brought by (Mther party. The
judgment is thereby limited in its effect, and seems to furnish an
exception to the general rule that equity will not enjoin the en-
forcement of a judgment where a defense at law was available,
in this case the defense before the Justic.e. if anv had been made.
400 CIRCUIT COURT REPORTS— NEW SERIES.
Foster et al v. Ellison. [Vol. XII. N. S.
would have been that a controverted question of title existed as
shown by the lease under which Ellison was in possession, and
while the Justice could not determine the ultimate question of
title, he could adjudge that such disputed question existed and
that it was a good defense in an action of forcible detainer.
It seems to be conceded thiit Ellison could maintain an action
wherein the title could be determined, but it is claimed that he
seeks only to enjoin the enforcement of the judgment, and has
misconceived his remedy. The prayer of the petition is for an
injunction and gneral relief, and if the facts alleged entitle him
to a decree quieting his title or fixing the extent of his title, it
is difficult to see why he may not, under Section 6601, Revised
Statutes, have a temporary restraining order until the question
of title is determined.
The fact that the judgment is not a bar to any after action b»*-
tween the same parties and concerning the same subject-matter
is a strong reason why the execution of the writ should be stayed
until the higher court, competent to determine all questions in-
volved, has decided the case. The injunction is ancillary to the
main issue of title, and must be dissolved if that issue is deter-
mined against the plaintiff.
Is such main issue well pleaded?
The term under the lease is for three and a half years, renew-
able forever, without any express notice required of the inten-
tion of lessee to renew. He held over the term of three and
one-half years for a period of twenty days before notice to quit
the premises was served upon him, and thereby elected to re-
new. He was at the time in arrears for rent due, but under
the terms of the lease a forfeiture could be declared only after
demand made according to law, and no demand other than the
notice to quit was ever made. lie offers to pay all arrearages,
and further avers that he has made lasting and valuable improve-
ments upon the premises, in the belief that he had a perpetual
lease with a privilege of purchase.
We are of opinion that the facts stated entitle him, upon
payment of rent due, to a decree quieting his title to a perma-
nent leasehold, and that the court did not err in overruling the
motion to dissolve the restraining order.
Judgment affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 401
1910.] Hamilton County.
ACTION IN ATTACHMENT ON A JUDGMENT.
Circuit Court of Hamilton County.
The Citizens National Bank op Washington, Pa., v. The
Union Central Life Insurance Co. and W. F. Wright.
Decided, November 27, 1909.
Promissory Note Signed with Initials and Surname only — Note Re-
duced to Judgment — Action in Attachment on the Judgment — When
an Action in Attachment is Begun — Defects in Service by Publica-
tion not Available, When — Failure to Plead a Meritorious Defense
—Sections 5010 and 5S58,
1. Where a note which was signed by the maker with his initials and
surname only, has been merged into a Judgment in which he is
designated in the same manner as upon the note, the judgment be-
comes an evidence of debt owing by him under that name, and such
judgment is not void in the sense that in a subsequent suit In at-
tachment on the judgment the judgment debtor is not required to
show a meritorious defense to the action.
2. Where the defendant in such a case fails to set forth his defense to
the action in his petition to vacate the judgment, objection to the
service had upon him by publication will not lie for defects therein.
3. An action has been begun under the attachment law when the peti-
tion has been filed and summons issued thereon, and the order of
attachment will not be set aside because issued before the service
by publication was begun.
Jones & James, for plaintiff in error.
Jos, W. O'Hara, for W. F. Wright.
GiPFEN, P. J. ; Swing, J., and Smith, J., concur.
The plaintiff bank in its amended petition sets up a judgment
obtained in the state of Pennsylvania against the defendant, W.
P. Wright, for $1,343.17, and proceedings in attachment com-
menced in this county wherein judgment by default was taken
against W. F. Wright, and the defendant insurance company
was, as garnishee, ordered to pay the amount of the judgment
and interest into court, which it failed to do.
The defendant, W. F. Wright, by answer and cross-petition
with amendment thereto, aver? that the court in the attachment
402 CIRCUIT COURT REPORTS— NEW SERIES.
Citizens Bank v. Insurance Ck>. [Vol. XII, N. 8.
suit acquired no jurisdiction of his person nor of the subject-
matter, and that the judgment and order therein are null and
void because —
1st. He was described in the petition by his initials, viz., W.
F. Wright.
2d. That no affidavit was filed, that the residence of defend-
ant was unknown and could not with reasonable diligence be as-
certained. That in fact the residence of defendant was at all
times well known to plaintiff.
3d. That the order of attachment was issued before service
by publication was begun or attempted.
The court dismissed the petition and enjoined further pro-
ceedings undor the attachment and set aside all orders and judg-
ment thereunder as null and void.
The findings of fact show that the promissory note upon which
judgment was rendered in the state of Pennsylvania was signed
by the defendant as **W. F. Wright'* and the judgment was so
entered.
Section 5010, Revised Statutes, provides:
"Parties to a written instrument by initial letter, or a con-
traction of the name may be so designated in an action thereon."
The purpose of this section would seem to be to allow the des-
ignation of a party by initial letter in an action upon any writ-
ten instrument which is evidence of the debt or obligation, and
in which he is so designated.
The word 'Vinstrumenf has been defined in law as **the for-
mal expression in writing of some agreement or obligation, or of
some act upon which the rights of parties are dependent."
It is true that the note was merged in the judgment, but be-
ing sued by name as signed in the note, the judgment was so
entered and became evidence of a debt owing by him under that
name. Furthermore, it does not appear from the record that he
has any other name, and he himself uses it in his answer and
cross-petition.
If the statute was not broad enough to cover such a case, still
the judgment was not void in the sense that defendant was not
required to show a meretorious defense to the action.
CIRCUIT COURT REPORTS— NEW SERIES. ion
1910.] Hamilton County.
The second objection is aimed at the service or attempted serv-
ice by publication.
In the case of Lessee of Paine v. Mooreland, 15 Ohio, 435, at
444 it is said :
** Notice by publication is not process, but, in certain cases in
contemplation of law, is equivalent to service of process. The
process in attachment is the writ authorizing and directing a
seizure of the property. No process is issued against the per-
son, because the proceeding is in rem. The statute, however,
regards it but just that notice should be given to the debtor, not
for the purpose of giving the court jurisdiction over the sub-
ject-matter, but to permit the debtor to have an opportunity to
protect his rights and directs that the writ shall be quashed if
it be not given."
As held in that case fo in this case the judgment was only
voidable.
The most serious objection under this head is the statement of
plaintiff that the residence of defendant *'is unknown," when it
well knew that he resided in Buffalo, N. Y. ; but even in such
case the defendant must in his petition to vacate the judgment
set forth his defense to the action. Section 5358, Revised Stat-
utes.
The third objection is that the attachment was not issued **at
or after" the commencement of the action but before (Section
5521, Revised Statutes). The petition had been filed and a sum-
mons issued thereon, whereby the action was commenced within
the meaning of the attachment law. Section 5032, Revised Stat-
utes.
The defendant was entitled to have the judgment vacated only
after showing a good defense. This he probably can not do, as
the court substantially found that he had no defense to the ac-
tion in Pennsylvania nor the judgment therein.
The judgment will be reversed and the cause remanded for
further proceedings according to law.
404 CIRCUIT COURT REPORTS— NEW SERIES.
Walder v. State. [Vol. XII, N. 8.
ROSE LAW NOT PROHIBITIVE OP THE SALE OP NON-
INTOXICATING MALT LIQUORS.
Circuit Court of Fulton County.
August Walder v. State op Ohio.*
Decided, October 30, 1909.
Liquor Laws — Prosecution for Sale of Near Beer Containing a Very
Small Proportion of Alcohol — Non-Intoxicating Liquors, not Pro-
scribed by the Rose Law — Evasions of the Rose Law — Discretion
in the Matter of Sentence — Constitutional Law.
Non-intoxicating malt liquors are not within the proscriptions of the
act (99 O. L., 35) for the sale or furnishing of which in Rose
county local option territory one may be prosecuted and convicted;
intoxicating liquors only come within the inhibitions of this act.
J, P. Ragan, for plaintiff in error.
F. 11. Wolf, Prosecuting Attorney, and W. B. Wheeler^ contra.
WiLOMAN, J.; Parker, J., and Kinkead, J., concur.
Error to Fulton Common Pleas Court.
We have four cases, proceedings in error, presented to us, each
entitled Walder v. SiatCy numbered respectively 132, 138. 139,
140. The last three mentioned stand upon practically the same
contentions, but the first one, No. 132, involves a different and
very important question. These prosecutions are under the so-
called Rose law (99 O. L., 35), the statute enacted providing for
county local option in the state. Under its provisions a vote
was taken in this county, and by a majority of the electors it was
made unlawful to sell intoxicating liquors within the boundaries
of Fulton county.
The consideration of the first case mentioned, No. 132, relates
to the character of a certain beverage conceded to have been sold
by the defendant below, the present plaintiff in error. He sold
what was called near beer ; was convicted for its selling and sen-
tenced accordingly by the court of common pleas of this county.
* For a similar holding in a common pleas court, see Oraham v. State,
9 N. P.— N. S., 174.
CIRCUIT COURT REPORTS— NEW SERIES. 406
1910.] Fulton County.
He insists that this so-called near beer was a non-intoxicating
beverage. That if it contained any alcohol, it was in a very
slight quantity, not to exceed two-tenths of one per cent. There
is perhaps some evidence indicating that it may have contained
more alcohol, but there is nothing very definite with regard to
that. The affidavit or information upon which he was tried as-
serts that it contained forty-nine hundredths per cent, alcohol
and no more. The affidavit does, however, allege that it was an
intoxicating liquor, to-wit, a malt liquor, containing the percent-
age of alcohol, mentioned.
The defendant in error contends that it is not necessary under
the county option law, in seeking a conviction of an alleged viola-
tion of its provisions, to show that the malt liquor sold as a bev-
erage was in fact intoxicating. '
This is the issue presented which has been deemed of sufficient
importance to warrant at our hands' very careful study of the
arguments made orally and by brief of counsel both for plaintiff
and defendant.
A very elaborate written argument is presented by counsel for
defendant in error citing adjudications in several jurisdictions,
holding therein not only that the legislative bodies of the diflFer-
ent states have the power to prohibit the sale of non-intoxicants
in furtherance of an effort to provide against the evils resulting
from the traffic in intoxicants and also that the legislatures have
attempted to exercise such power. It is contended, so far as our
statute is concerned, that the Legislature in the Dow tax law as
originally enacted provided for a tax upon malt liquor whether
intoxicating or not, and that the case of State v. Kauffman, 6S
Ohio St., 635, sustains that contention; the decision being that
Section 4364-9, Revised Statutes, applies to the business of sell-
ing a malt liquor as a beverage which contains less than two
per cent, of alcohol and is not intoxicating. The language of
the statute as then in force was not very dissimilar to the lan-
guage of the statute defining the liquors prohibited to be sold un-
der the local option law, but the language is not precisely the same.
The original act which has been since amended is found in 92
0. L., 34. Section 1 of that act provides that upon the business
of trafficking in "spirituous, vinous, malt or any intoxicating
406 CntCUIT COURT ftEPOKTS— iNEW SERIES.
Walder v. State. [Vol. XII. N. S.
liquors*' there shall be a.ssessed a certain tax. The Supreme
Court held that the Legislature had thereby provided for a tax
not only upon intoxicating liquors, but also upon spirituous, vin-
ous and malt liquors even if they were not intoxicating. And
the contention of the defendant in error here is, that the lan-
guage of the present enactment as to county option is so nearly
identical with the language found in the Dow law as originally
enacted, the language of which I have just read, that our pres-
ent act as to prohibition in counties upon vote of the people is
to be construed in the same way as an enactment that after a
vote of the people to prohibit in the counties it is made unlawful
to sell malt liquors even if they are not intoxicating.
This contention might be based upon one or two or three
grounds. It might be treated as a claim that the Legislature
had made by law a conclusive presumption that all malt liquors
are intoxicating or, second, that the Legislature, in the effort to
provide against the evils resulting from the traffic in intoxica-
ting liquors, in order to prevent shifts, devices, subterfuges,
enabling guilty persons to escape from the consequences of the
law, had provided against sales of all malt liquors because of tho
usual fact that malt liquors do contain alcohol in sufficient quan-
tities to 'produce intoxication. In some jurisdictions the prin-
ciple upon which it has been held that laws can prohibit the sales
of non-intoxicants is that they so nearly resemble some of the in-
toxicating liquors that the buyers are liable to be deceived; or
in other cases that they may be led into the habit of indulgence
in intoxicating liquor even when there is not sufficient percent-
age of alcohol in the liquor to cause intoxication, but some alco-
hol which might induce the habit of drinking. It is perhaps not
necessary to review the various reasons upon which this claim
has been in some jurisdiction sustained, because a careful exami-
nation of our county option law, the Rose law, as it seems to us,
disposes of the question without dependence upon the adjudica-
tions in other states. We may arrive, we think, at an under-
standing of the intent of the Legislature by a critical examina-
tion of the statute which that Legislature has enacted. We do
not deem it necessary and will not attempt to pass upon the
question whether the Legislature of Ohio may, either iinder its
CIRCUIT COURT REPORTS— NEW SERIES. 407
1910.1 Fulton County.
broad general power to pass laws not prohibited under the Con-
stitution of the state or under that provision of the state Con-
stitution that the Legislature may enact laws to provide against
the evils resulting from the liquor traffic, prohibit the sale of
liquors bearing some resemblance to alcoholic and intoxicating
, liquors which are not such in fact ; but we will address ourselves
to the query as to whether under this Rose law the Legislature
has attempted to do anything of the kind.
This act is entitled, * * Further to provide against the evils re-
sulting from the traffic in intoxicating liquors by providing for
local option in counties."
Upon the theory of counsel for defendant in error that the
Legislature may provide against the evils resulting from the
traffic in intoxicating liquors by prohibiting the traffic in similar
liquors not intoxicating under some circumstances, the matter in
question is not determined by the title of the act because the title
of the act would have application to any other kind of sales, either
to sales of intoxicants or sales of other things deemed by the
Legislature necessary to be prohibited in order to make effectual
the provision against the evils resulting from the traffic. But
there is other language in the law, which, it seems to us, points
more clearly to the specific intent of the Legislature.
In Section 1 of the act it is provided, that whenever a certain
percentage of the qualified electors of a county shall petition for
the privilege to determine by ballot whether the sale of intoxica-
ting liquor as a beverage shall be prohibited within the limits
of such county, that then certain proceedings shall be followed,
and it is provided that if the record of the election which is taken
shows that a majority of the votes cast at said election was against
the sale of intoxicating liquors as a beverage it shall be prima
facie evidence that selling, furnishing or giving away of intoxica-
ting liquors as a beverage or the keeping of a place where such
liquors are sold, etc., was then and there prohibited and unlawful.
Section 2 of the act provides for the form of ballot submitted
to the voter upon which they are to exercise their choice in the
issue which is to be submitted to them at the election. On the
one side they are furnished with ballots providing in terms that
the sale of ''Intoxicating liquors as a beverage shall be pro-
408 CIRCUIT COURT REPORTS— NEW SERIES.
Walder v. State. [VoLXU,N.a
hibited''; on the other that the sale of ^* Intoxicating liquors as
a beverage shall not be prohibited.'* Then it is said in the same
section that if the majority of the votes east at such election shall
be in favor of prohibiting the sale of intoxicating liquors as a bev-
erage that after a certain time it shall be unlawful for any per-
son, personally, or by agent, within the limits of such county,
to sell, furnish or give away intoxicating liquors to be used as
a beverage or to keep a place where such liquor is kept for sale,
given away or sold. It is provided further, that whoever from
and after the date mentioned, the lapse of time mentioned from
the election, sells, furnishes, or gives away, or otherwise deals in
intoxicating liquors as a beverage or does certain other things,
shall be punished in the way prescribed by statute; then comes
the section that throws the doubt or has thrown doubt in the
minds of contending parties as to the real meaning of the Legis-
lature. It is Section 3:
*'The phrase intoxicating liquors as used in this act shall be
construed to mean any distilled, malt, vinous or any intoxicating
liquor whatever.'*
And the question is: Does the term "any intoxicating liquor"
apply to something of a different kind from that which has been
included in the previous expression, or is it a generic term
meant to enlarge what has been said l>efore, so as to make the
section, properly understood, read; The phrase intoxicating
liquor, as used in this act shall be construed to mean any distilled,
malt, vinous or any other kind of intoxicating liquor? In the
Dow law, as it reads at present, the word ** other" has been in-
serted by the Legislature, that is to say, the act, 92 0. L., 34,
which I have already read, has received subsequent amendment,
evidently to meet the construction which had been put upon \t
by the Supreme Court in State v. Kauffman, supra, so as to re-
lieve the traffic in non-intoxicating malt, vinous and spirituous
liquors from the burden of taxation.
In Section 4 of the Rose law, the county option act, we have
this provision, that **when any person, company or corporation
has discontinued such traffic in accordance w4th the provisions of
this act, within the time specified by Section 2 of this act, and
has paid or is charged upon the tax duplicate with an assessment
CIRCUIT COURT REPORTS— NEW SERIES. 409
1910.] Fulton County.
upon such trafiSc, the county auditor, upon being satisfied of such
fact, shall issue to such person, company or corporation a re-
funding order of an amount proportionate with the unexpired
time for which said assessment has been paid.
Now in reading Section 4 of this local option law which pro-
vides for the refunding order of a proportionate amount of the
tax which has been paid when the person discontinues the traffic,
it seems impossible to avoid the conclusion that the Legislature
deemed that they were dealing with the same kind of traffic in
the local option law that had been dealt with in the tax law. The
Rose law was passed after the amendment of the tax law which
had been changed, as I have said, so as to place its burden upon
intoxicating malt liquors, spirituous, vinous, and other liquors
only, relieving traffic from any burden upon non-intoxicants.
We greatly appreciate the force of the argument that to per-
mit the Rale of liquor bearing close resemblance to intoxicating
liquors in a county which has voted to prohibit under the pro-
visions of this law, may oftentimes make convictions difficult;
may sometimes afford loopholes for escape by tricky aind cunning
device; but notwithstanding that fact, it is our duty under the
law to do justice, not forgetting rules of construction of penal
enactments. Whatever the consequences may be, without regard
to the power of the Legislature, without regard to the policy of
the Legislature, whether the law has been wisely enacted or
whether it has not, it is the duty of the courts to construe the
laws as they find them. And construing the law as well as we
have been able to do it, from an examination of its terms in the
light of the authorities and the other enactments on the liquor
question in the state of Ohio, we have been forced to the con-
clusion that this local option law does not permit the conviction
of a person for selling a liquor which is not intoxicating.
There is no claim that the evidence in this first case at bar
which I have been considering discloses any sale of liquor which is
intoxicating. The affidavit, the complaint, does charge, to be
sure, the sale of intoxicating malt liquor; but the evidence, as
conceded by counsel for the state, does not show the malt liquor
called near beer to have been intoxicating at the time when it
was sold as charged in the complaint. Indeed, the trial court,
410 CIRCUIT COURT REPORTS— NEW SERIES.
Walder v. State. [VoLXII^N.B.
the judge to whom the ease was submitted without the interven-
tion of a jury, substantially held that the evidence did not dis-
close that the liquor was intoxicating. Perhaps he expressed
himself a little more strongly in the other direction, but he took
the position evidently that it was not essential to a conviction
that the intoxicating character of the liquor should be shown.
Our judgment is that the conclusion was not justified, and upon
this ground it will be reversed.
Another point was raised in the argument of counsel for
plaintiff in error and that is that the law itself is unconstitu-
tional, for certain reasons, especially that it deprives or may
deprive a person accused of a crime of a trial by jury. This
question we think has been fully settled in favor of the validity
of the law in the case of Carey v. State, 70 Ohio St., 121, as
show by the reading of the syllabus on page 121 and the lan-
guage of the court on page 124. The entire opinion is per
curiam.
The other three cases against Mr. Walder, below, were also based
upon claimed violation of the Rose law. He is charged with sell-
ing and furnishing beer, lager beer, in this county, and the evi-
dence clearly discloses that the liquor which was sold or furnished
was of that character. We think that the evidence in this case
sustains the conviction. His claim is, that when the Rose law
went into effect, he was in a sense left stranded here in Fulton
county with a stock of liquor on hand of which it was necessary
he should in some way rid himself, and that in order to do so he
attempted to sell them in another county, and that the sales
of which the complaint was made were really not sales in this
county at all. But it seems that after the transporting of the beer
from his establishment in this county to the sister county it
was retransported to Fulton county and there distributed or
delivered to buyers. We think that the sales were completed
in this county by the delivery, that the procedure was but an
evasion of the law, and that he was rightly prosecuted and con-
victed in Fulton county.
It is urged that the sentences are excessive, but we have re-
peatedly held that no, power is given under our statutes for set-
ting aside sentences upon the motion that they are excessive where
CIRCUIT COURT REPORTS— NEW SERIES. 411
1910.] Hamilton €k>anty.
the trial court has confined itself within the limits provided by
law and has exercised only that discretion which the law has given
it. It perhaps is not necessary in this case to decide whether or not
there might be an extraordinary sentence imposed such as to be
an abuse of discretion, but at any rate we are not disposed in this
case to set aside this sentence as excessive.
The judgment will be aflBrmed in these three cases, Nos. 138,
139, 140, or rather motion for leave to file petition in error will
be overruled in these three cases.
lUtaUOLEMENT UNDER. A LITE INSURANCE POLICY THAT
PROOF or DEATH RE MADE IN WRITING.
Circuit Court of Hamilton County.
Sarah C. Menear, by E. B. Rogers, Her Guardian,
V. The Aetna Life Insurance Company
OP Hartford, Connecticut.
Decided, October, 1909.
lAfe Insurance — Averment thai all Conditions were Performed — In-
consistent vAth Averment of Waiver — Proof of Death — Notice of
Defect is not "Necessary, When — Requirement as to Identification
of Deceased — Pleading — Evidence.
1. Averments in a petition in a suit on a life insurance policy, that
the condition as to proof of death was definitely performed on a
certain date and that every condition required by the policy was
performed, are wholly inconsistent with a subsequent averment
that the condition of the policy with reference to proof of death
had been waived; and in the absence of any averment of an ex-
cuse for non-performance, or any Inference to be drawn from the
petition that there was such an excuse, evidence could not be
offered on the question of waiver.
2. The requirement that a proof of death be made in writing is a rea-
sonable requirement, as is also a requirement as to the identifica-
tica of the deceased.
3. Notice of a defect in a proof of death is not necessary, where re-
peated notices have been given by the company that no proof of
death has been filed.
Andrews, Harlan & Andrews, for plaintiff in error.
TTm. K. Maxwell and Shotts <t Millikin, contra.
412 CIRCUIT COURT REPORTS— NEW SERIES.
Menear v. Aetna Life Insurance Co. [VoL XII, N. 3.
GiPPEN, P. J. ; Swing, J., and Smith, J., concur.
It is averred in the petition that proofs of death were fur-
nished on March 8, 1906, and that the plaintiff performed every
condition required to be performed by the policy; then it is
averred that the defendant waived the furnishing of proofs of
death. The whole question, therefore, hinges upon whether the
proofs of death were furnished on March 8, 1906, or whether
they were waived.
The averment in the petition, that the conditions were per-
formed, first definitely performed on March 8, 1906, and then
the general averment that all conditions precedent were per-
formed, and the averment that this condition was waived, are
wholly inconsistent.
The Supreme Court has decided, in a very late case. The List dt
Son Co. V. Chase, 80 Ohio State, — :
'* Waiver of the performance of conditions in a contract by
the party in whose favor the conditions are to be performed, is
not performance, but must be alleged as an excuse for non-per-
formance, before proof of such waiver can be received; and in
the absence of such an allegation it is error to charge the jury
that certain facts appearing in evidence constitute such a
waiver.''
There is no averment here, and there is no inference to be
drawn from the petition, that there was an excuse for non-per-
formance, because there is a positive averment that there was
a performance.
It is, therefore, manifest that no evidence could be offered
ou the waiver, because the petition avers there was a perfor-
mance of this condition, and any error that is complained of
with reference to the waiver is of no consequence — ^the petition
averring, or requiring rather, proof of performance of condi-
tion precedent — that proofs of death had been furnished.
Many other errors are urged in the petition in error, and some
of them perhaps are well taken — especially that one which re-
quired the plaintiff to offer proof that she was living, before she
could recover. But if from the pleadings and the undisputed
facts the court can draw a legal conclusion in accordance with
the verdict — ^the judgment of the court — it is immaterial what
errors the court committed in its charge to the jury.
CIRCUIT COURT REPORTS— NEW SERIES. 413
1910.] Hamilton County.
Counsel, however, insist that if not permitted to prove waiver,
that there was actual performance of that condition, that the
proofs of death were actualV made on March 8, 1906; therefore,
the policy would have been payable on June 8, 1906.
But in form 2 of the proof of death, question 5 required the
identification of the deceased to be the person mentioned in the
policy.
Proof of death would be of little avail if it did not show the
death of the particular party insured. This was not an unrea-
sonable requirement.
Mr. Rogers, who signed this form of the proof of death, was
mentioned in the application, which was made a part of the
policy, as an intimate friend of the insured; he had paid the
premium from time to time, and was therefore particularly
qualified to answer this question ; yet it was not answered, was
not even filled out, the number of the policy given or otherwise.
However, it is claimed that Mr. Rogers did answer this ques-
tion but by failure of the ag(*nt of the company, or of the notary
employed by him, that it was not filled out as he had answered it.
Proofs of death were to be made in writing; that was not an
unreasonable requirement. Proofs of death were made for the
purpose of being forwarded to the home office of the company,
and it was in compliance with a reasonable requirement on part
of the company to furnish that in writing.
Besides, to hold that to be sufficient would be to hold that
the agent representing the company had waived this right, and
we have already said the pleadings do not warrant proof of
waiver of the condition.
The proofs of death were finally furnished in May, 1907, as
required by the company. ^Ir. Rogers voluntarily did this, and
thereby tacitly acknowledged that the proofs of death pretended
10 be furnished on March 8, 1906, were not sufficient.
Within thirty days after proofs of death were furnished in
May, 1907, the company t(^ndered a check for $2,000, which was
refused solely upon the ground of not being sufficient, and upon
no other ground. The Supreme Court has held that such a ten-
der, although in the form of a check, is sufficient.
The whole difficulty arose from the fact that on April 20, Mr.
Rogers informed the company that the beneficiary was iti-
411 CIRCUIT COURT REPORTS— NEW SERIES.
Vacation of Michigan Street. [Vol. XII, N. S.
competent to receive the money and it would be necessary to ap-
point a guardian.
Counsel in their brief admit that any defect in proofs of
death could be taken advantage of by the company, but that
they should have reasonable notice.
Well, of course, they were never notified as to the defect in
the proofs of death attempted to be made out in March, 1906, but
they were notified repeatedly that no proofs of death had been
furnished, and still delay continued for fourteen months —
until May, 1907.
If they have been deprived of the use of the money, it was
wholly on account of their neglect, and not that of the company,
who constantly expressed a readiness and willingness to pay the
face of the policy — two thousand dollars.
It is, therefore, the opinion of the court that upon the plead-
ings and undisputed facts, the verdict of the jury was right,
and that the judgment of the court of common pleas should be
affirmed.
WHEN A STREET MAY BE VACATED.
Circuit Court of Lucas County.
In re Vacation op Part of Michigan Street, Toledo.
Decided, January 16, 1909.
Streets — Necessary Prerequisite to Vacation of — Satisfactory Proof
of Necessity Required — Public Interest — Municipal Corporations —
Section 2655.
Under the statute of Ohio a court should not vacate a public street
unless satisfied that such vacation will conduce to the general in-
terests of the municipality. The court is not in error in refusing
such vacation upon a mere showing that the street is not demanded
by the present needs of travel. Section 2655. Revised Statutes,
construed and applied.
WiLDMAN, J.; KiNKADE, J., concurs; Parker, J., not sitting.
Error to Lucas Common Pleas Court.
Case No. 2212 is entitled, hi the Matter of the Vacation of
Michigan Street. It is a somewhat peculiar title for a proceed-
ing in error, which this is. An application was made in the court
CIRCUIT COURT REPORTS— NEW SERIES. 415
1910.] Lucas County.
of common pleas under Section 2655 of the Revised Statutes to
vacate that part of Michigan street extending from Cleveland
street to Troy street in the northern part of the city of
Toledo. The application was refused by the court below, and
to reverse the judgment of dismissal of the petitioner's ap-
plication, this proceeding was instituted here.
We have in the statute alternative proceedings for the vaca-
tion of streets. Section 2655 provides for the seeking of the vaca-
tion of the street by a proceeding in the court of common pleas,
the remedy being by the section of the statute made cumulative
to like procedure before the municipal body, the city council, as
provided in Section 2652, Revised Statutes. The present pro-
ceeding in the court below was based upon Section 2655, which
reads as follows:
**0n petition filed in the court of common pleas by any person
owning a lot in any city or in an incorporated or unincorporated
hamlet or village, for the establishment or vacation of a street
or alley in the immediate vicinity of such lot, the court, upon
hearing, and being satisfied that it will conduce to the general
interests of such city, hamlet, or village, may declare such street
or alley established or vacated; but the remedy shall be in ad-
dition to those prescribed in this title. ' '
The present proceeding was started by what is known as the
Toledo Boiler Works Company, which owned property on both
sides of the part of the street sought to be vacated. The claim
is made that the evidence disclosed in the court below was suflS-
cient to require the court, proceeding under this statute, to vacate
this part of the street.
The statute requires as a prerequisite to the vacation of a street
that the court shall be satisfied that such vacation will conduce
to the general interests of the municipality. Until so satisfied
the court should refuse its judgment in favor of the petitioner.
It appears that this part of the street named has received no im-
provement at the hands of the city ; that it is in a marshy region,
the part of the street referred to being not directly upon marshy
land or across it, but closely adjacent to it ; and perhaps it suffi-
ciently appears that at the present time there is no very practical
demand for the use of this street by the public. The court, how-
ever, is not altogether apprised of the general purposes and plans
416 CIRCUIT COURT REPORTS— NEW SERIES.
Vacation of Michigan Street. f Vol. XII. N. S.
of the city in the extension of its avenues, its thoroughfares, its
streets and alleys. It is something like a condition which may
arise where a city under the authority given by law establishes
a general system of sewerage, and works towards it, making
sewers from time to time according to the necessities of the public
and the means available. To say that such a plan should be
abandoned because there are no present means for the carrying
out of some of its details, might be an interference with wise
action of the municipal body.
The claim is made here in behalf of this applicatiop that it
will be conducive to the general interests of the city to vacate this
street because it is in a locality where it is of no special use to
the traveling public or to adjacent property ; that it is an ideal
spot for the establishment of such factories as the one owned by
this applicant, the Toledo Boiler Works Company, and that it
is to the interest of the city to encourage manufacturers. It may
be altogether true that it is to the general interest of the city to
encourage them. It is not made to appear to us, however, by
the record before us, nor was it, apparently, to the court below,
that any general interest of the city of Toledo would be sub-
served by maintaining this particular spot of ground as a place
for the putting up of factory buildings or the maintenance of a
manufacturing plant, nor does it appear that if the street is not
vacated the factory will be lost to the city in any way. There
seems to be an abundance of territory owned and controlled by
the Toledo Boiler Works Company for the maintenance of their
plant without their intruding upon the territory comprised with-
in the street boundaries. There was much plausibility in the
arguments made to us by counsel for the applicant, the present
plaintiff in error, but we have not been able to arrive at the
conclusion that the evidence adduced upon the hearing in the
court below is of such character as to make it manifest and clear
that the court should have been satisfied that the public in-
terests would be subserved by the vacation of the street.
Our judgment, therefore, is that the order dismissing the
plaintiff's application be affirmed at the costs of the plaintiff
in error.
CIRCUIT COURT REPORTS-NEW SERIES. 417
1910.] Williams County.
PROSECUTION FOR BURNING UNFINISHED BUILI>ING.
Circuit Court of Williams County.
Eli Van Immons v. State op Ohio.*
Decided, 1905.
Arson — Indictment Not Rendered Bad for DupUcitu — By Self Evident
Mistake in Date — Acquittal of Burning Unfinished Dwelling — Not
a Bar to Prosecution for Burning Building Other than a Dwelling —
Criminal Law— Sections 6831 and 1215.
1. An indictment, the first count of which charges the accused as prin-
cipal with burning a building in 1804, and the second with aiding
and abetting another in the same crime in 1894, s not bad for du-
plicity and indefiniteness, inasmuch as the date in the first count
' was clearly a mistake; and no substantial right of accused being
ttrejudiced, under Revised Statutes 7215, a motion to quash was
properly overruled.
2. To constitute the crime of arson under Revised Statutes 6831, it is
not necessary that the building burned be entirely completed. It
is suificient if it be a structure in the course of erection and in-
tended for a dwelling, and although unfit for the purposes for
which it is ultimately intended is so far completed that it could be
used temporarily for shelter or occupation or for the storage of
personal property.
3. Acquittal of the charge of burning a dwelling-house is not a bar to
a subsequent prosecution for the same offense, under ah indict-
ment charging the burning of a structure other than a dwelling-
house.
C, L. Newcomer, for plaintiff in error.
Edward Gaudern, contra.
HuUj, J.; Haynes, J., and Parker, J., concur.
The defendant in this case was indicted by the ^and jury of
this county for the crime of arson. It is charged that he burned
a certain building, the property of Martha Page, of the value of
$50 or more, and he was convicted, judgment was entered upon
the verdict and he was vsentenced to imprisonment in the peni-
tentiary. A motion for a new trial was overruled by the court
and a petition in error filed in this court to reverse the judgment.
•Affirmed by the Supreme Court, without report, 72 O. S., 678.
418 CIRCUIT COURT REPORTS— NEW SERIES.
Van Immons v. State. [Vol. XII, N. S.
There are numerous errors complained of :
First, it is claimed that the court erred in overruling the mo-
tion to quash this indictment.
The offense was set up in different forms in two counts in the
indictment.
The first count charged that the defendant then and there un-
lawfully, maliciously and willfully did attempt to burn a certain
building, to-wit, a certain building then and there being, and then
and there in the course of construction, then and there not com-
pleted, then and there designed to be used thereafter as a dwell-
ing-house, then and there unoccupied, then and there being of the
value of $50, and more, etc., charging the time of the commission
of this offense as set forth in the first count of the indictment as
in the year 1804.
In the second count it is charged that the defendant willfully
and maliciously did attempt to burn, and then and there unlaw-
fully, willfully and maliciously did burn a certain building; to-
wit, a certain building then and there being in the course of con-
struction, then and there not completed, and then and there de-
signed thereafter to be used as a dwelling-house, then and there
unoccupied, then and there being the property of one Martha
Page, of the value of $50 or more. And the grand jurors afore-
said, upon their oaths aforesaid, do further find and present that
one Eli Van Immons before said arson was committed as afore-
said by the said Homer Morrison, the said arson being the same
unlawful, willful and malicious burning mentioned in the first
count of this indictment and before said unlawful, willful and
malicious burning was committed as aforesaid by the said Homer
Morrison aforesaid; to-wit, on October 8, A. D. 1894, at the
county and state aforesaid unlawfully, willfully and maliciously
did, aid, abet, procure, counsel and incite him, the said Homer
Morrison, to said arson in manner and form aforesaid to do and
commit. This count charged the defendant with aiding and abet-
ting Homer Morrison in the commission of the crime of arson and
the offense in this count is referred to as the same offense set forth
in the first count in the indictment, but the date mentioned here is
October 8, .1894, while the date in this first count is mentioned as
the eighth day of October, 1804. It is claimed that this shows
CIRCUIT COURT REPORTS— NEW SERIES. 419
1910.] Williams County.
that two offenses are contained in this indictment and further
that it makes the indictment bad for duplicity and indefinite-
ness, inasmuch as these two dates are used — in the one count
1804 and the other 1894. The first count in the indictment, which
made the crime in 18()4, was quashed by the court and the defend-
ant was tried upon the second count. We are of the opinion that
the court did not err in overruling the motion to quash the sec-
ond count of the indictment upon the motion of the defendant.
It is clear upon the face of the indictment on record that the
date in the first count of the indictment, 1804, was a mistake.
The defendant himself, according to the record, was about thirty
years of age at the time of the trial and it is very evident that
there was no intention of charging him with committing a crime
fifty years or more before he was bom. It is clear that this date
in the first count of the indictment charging him with the com-
mission of this offense as principal was a mistake and under the
statute in this state was not to be regarded as prejudicial to the
defendant. Revised Statutes, 7215, besides providing a large
number of things which shall not be regarded, uses these words :
'*No indictment shall be deemed invalid • • • for any
• • * defect which does not tend to the prejudice of the sub-
stantial rights of the defendant upon the merits."
Although the second count refers to the first, still it is chained
clearly in the second count as October 8, 1894, and there can be
no doubt that the defendant understood that that was the date
upon which the crime was laid that he was to answer for, and
clearly he could not have been misled in preparing his defense.
After this motion was overruled, the defendant demurred to the
indictment and this demurrer was overruled by the court of
common pleas and this, it is claimed, was error.
It is claimed by plaintiff in error that the indictment does not
charge any offense, under the law of this state, against the de-
fendant, and by defendant I mean the defendant below, in that
it does not charge the defendant with burning a completed and
finished building, but does charge that, he burned a certain build-
ing; to-wit, a certain building, then and there being in the course
of construction^ and then and there designed to be thereafter used
420 CIRCUIT COURT REPORTS— NEW SERIES.
Van Immons v. State. [Vol. XII, N. 3.
as a dwelling-house, then and there not completed, then and
there being the property of one Martha Page, of the value of
$50 and more.
It is said that under the statute of this state, to constitute
arson, the building destroyed must be a completed and finished
building; that this indictment showing upon its face that the
building was not completed or finished, did not constitute a viola-
tion and did not contain sufficient allegations to constitute a
violation of the arson statute against the defendant. It is very
clear to us, however, that the indictment was sufficient upon de-
murrer, at least. It does not state what the building lacked;
it does not state wherein it was unfinished. It states that it was
a building then and there intended thereafter to be used as a
dwelling-house, then unoccupied, unfinished and incompleted.
For aught that appears upon the face of the indictment, it might
simply have lacked one window,, or the glass in one window or
more, or the steps, or the paint, or one chimney, or many and
many other things that might be mentioned. It is, of course,
clear, if the building only lacked one of these small things to
make it absolutely complete, that it would still be called a build-
ing, and properly so, in an indictment.
After the evidence for the state was in, and during the entire
trial, the defendant claimed that the structure, as shown upon
the trial of the case, was not a building within the meaning of
the statute, and a motion was made to bring a verdict in favor
of the defendant, and, in connection with the ruling upon the de-
murrer, that may as well also be discussed.
As I say the defendant claimed that the evidence did not show
that the building destroyed was a building within the meaning of
the statute. The arson statute. Revised Statutes, 6831, pro-
vides that whoever shall maliciously burn or attempt to burn
any dwelling-house, kitchen — and then follows a large num-
ber of other buildings — etc., of the value of $50 or more,
shall be imprisoned in the penitentiary, etc., and the ques-
tion is whether the structure shown in this case comes within the
definition of *'any other building.*' It is claimed by plaintiff
in error that this means a completed building. There is no pro-
vision in the statute for an unfinished building, and until it is
CIRCUIT COURT REPORTS— NEW SERIES. 421
1910.] Williams County.
complete, ready for occupancy, or substantially so, it can not
be regarded as a building ; that up to that time it is claimed that
whatever of material there is in the structure can only be re-
garded as personal property, or as property which will come
within the statute against the malicious destruction of property,
which is another and distinct statute.
The evidence in the case shows that the structure was owned
by Martha Page; that she was constructing a dwelling-
house 5 that it had proceeded so far that the foundation was laid,
the house was inclosed. It was constructed of building block as
it was called. The house was inclosed ; the roof was on ; it was
lathed; the floors were laid; the steps leading up to the house
had not been constructed ; the stairway on the inside of the house
had been partially constructed; the doors were not in; the
windows were not in; the house had not been plastered, the
chimneys had been built and the furnace set up, and the door
frames and window frames put in. This was the condition of
the structure at the time it was burned, for there is no question
made in the record but that the house was burned by someone.
Many authorities are cited for plaintiff in error to sustain his
contention that the building or structure in this condition could
not be regarded as a building. I shall not undertake to review
any of the authorities that were cited. In some states it appears
there are statutes providing for the burning of unfinished build-
ings— separate statutes, distinct from statutes making it a crime
to burn a finished building. We have no such statute or statutes
in this state and this indictment must stand, if it stands at all,
upon Revised Statutes, Section 6831, from which I have read, and
if this structure comes within any part of the statute, it comes
within the words ** other buildings.'' As I have said in speaking
of the demurrer, if the house only lacks some small and insignifi-
cant thing from absolute completion, it would seem to be clear
that it would still be called a building, and we would not sav
that a structure intended for a house w'as not a building be-
cause it lacked one chimney, or a part of the doors, or a part of
the windows, as I have suggested. The question is, if there
can be any question : When does a structure, if at all, cease to
be mere building material, and become under the law a build-
422 CIRCUIT COURT REPORTS— NEW SERIES.
Van Immons v. State. [Vol. XII, N. S.
ingT Counsel for plaintiff in error claims that this does not
occur at any time until the building has been substantially com-
pleted. Some of the cases cited seem to sustain this contention.
Arson, at common law, included only the burning of a dwelling-
house, but to this has been added, from time to time, the other
classes of buildings and structures until now, in our state, it is
plain that the statute is intended to cover every kind of a build-
ing, and after describing a great number of buildings it adds
these general words **any other building." The question is one
not entirely free from difficulty and there are no decisions in this
state directly in point, but it seems to us that when a building is
in the condition that this buiMing was in, and when it has as-
sumed the character and proportions that this building had as-
sumed at the time of the fire, that it may be, and should be, with-
in the purview of this statute, called a building. It is true, as
urged by counsel for plaintiff in error, that the mere pile of
material lying upon Jthe ground does not constitute a building
and so not within any statute, but where a structure has been
erected, designed and intended for a dwelling-house, and has
reached the stage that this one had with its foundation, with its
inclosure, its side walls all up and the roof upon it, the lathing
upon the inside, the stairway up, although it still lacks the doors
and windows, the plastering and the outside steps, it seems to us
that structure, within the meaning of the statute, is a building.
It may be added further that the partitions had all been con-
structed in this house, and lathed, and the rooms inclosed, and
it was in such condition as to offer shelter there for human be-
ings, for beasts, for animals or for property. It was not a dwell-
ing-hoiLse, as it had never been occupied by a human being, but,
in common language, it would seem to us as though any one
speaking of such a structure wou\l speak of it as a building; that
it could not well be described in any other way. It was not en-
tirely finished, it was not completed, but the object of the arson
statute is to protect buildings, if they may be properly called
buildings, from being destroyed by fire. The burning of a build-
ing which has once been occupied by human beings, has always
been regarded as a crime of a very strong character. The burn-
ing of a dwelling-house in former times in England was a
CmCUir COURT reports— NE.W series. 428
1910.] Williams County.
capital offense, and to bum any kind of a building has always
been regarded as a crime of a very serious nature and punished
by very heavy penalties, and we think that this statute should be
so construed as to protect a structure of this kind, and we are
of the opinion that this structure had reached that stage where it
could be called a building.
There is a case cited by defendant in error for the state, which
sustains us in this view, and is clearly, it seems to us, in point
with this case. In Clark v. State, 69 Wis., 203, the court say in
the first paragraph of the syllabus :
** A structure in course of erection, and intended for a dwelling,
which, though unfit for the purpose for which it is ultimately
designed, and not occupied as a dwelling, is yet so far com-
pleted as to be used temporarily for the shelter or occupation of
man or beast, or for the storage of tools or other personal prop-
erty for safekeeping, is a 'building,' within the meaning of Sec-
tion 4409, Revised Statutes, and the felonious breaking and enter-
ing the same in the night time is burglary. ' '
In this case the building intended for a dwelling-house was in
the course of construction and a room in it had been partitioned
off and designed for the purpose of storing tools in that room,
and it was held by the Supreme Court that this constituted
burglary. The court say, on page 205 :
**It appears that the building broken into in this case was
erected upon a stone foundation, was intended for a dwelling-
house, and was in the process of construction. The walls or sides
were up, and the roof was on. The windows and doors had not
been put in, though some of the windows were boarded up. A
temporary room had been partitioned off in the basement; the
basement walls forming two sides, the other sides being closed
up with boards, with a door which was locked with a padlock.
This room was intended for storing the tools of the workmen
while at work on the building. The outside ^\^ndow of the base-
ment was covered with boards. A temporary floor had been laid,
from which the basement was reached by means of a ladder.
There was a chest of tools on this temporary floor. ' '
And further on, on page 206 the court say :
**Now, the contention of the learned counsel for the plaintiff
in error is, that breaking and entering a structure in the pro-
424 CIRCUIT COURT REPORTS— NEW SERIES.
Van Immons v. State. [Vol. XII, N. S.
cess of construction, as the building in question was described to
be, is not included within the statute. It will be observed the
provision quoted makes the breaking and entry in tJie night time
of *any office, shop, warehouse, or other building not adjoining
or occupied with any dwelling-hoase, ' with intent, etc., one grade
of burglary. But it is said a structure which is unfinished, unfit
for occupation for the purpose for which it was designed, is not a
building, within the meaning of the statute. But, on considering
the objects of the statute, we are fully satisfied that the word
* building,' as used therein, does not necessarily mean a structure
so far completed as to be in all respects fit for the purpose for
which it was intended. It doubtless does mean an edifice or
structure erected upon land, and so far completed that it may be
used temporarily or permanently- for the occupation or shelter
of man or beast, or for the storage of tools or other personal
property for safekeeping. Webster defines the word * building'
as *a fabric or edifice constructed; a thing built.' Worcester
defines it, *a structure or edifice'; the Imperial Dictionary, *a
fabric or edifice constructed for use or convenience, as a house,
church, shop.' In La Crosse & M. Ry, v. Vanderpool, 11 Wis.,
121, Mr. Justice Paine says: *The well understood meaning of
the word is a structure which has a capacity to contain, and is
designed for the habitation of man or animals, or the sheltering
of property.' In this case the structure was intended for use
and occupation as a residence when completed. Now, to hold
that it was not a building does not satisfy the definition of the
statute, because it is unfinished, not perfect for the purpose for
which it was designed eventually to be used, would be giving the
statute a stricter construction than we were disposed to place
upon it. We are rather inclined to hold that the Legislature
intended to include in the term * building ' a dwelling-house not
completed, but in the condition in which the one in question was,
and in which tools and other articles of personal property were
or might be temporarily stored or left for safekeeping^ The
language is broad enough to include such an edifice, and we
think does include it."
The court then review and discuss some of the authorities cited
by counsel for plaintiff in error, and say, page 208;
** These cases furnish but little aid in the construction of our
own statutes, for it is obvious, as Mr. Bishop remarks, that the
word * building' in a statute will almost always depend for its
meaning, in some degree, on *the particular subject and its con-
nection with other words (Statutory Crimes, Section 292). And
CIRCUIT COURT REPORTS— NEW SERIES. 425
1910.] Williams County.
while, as the assistant attorney-general suggests, it may be diffi-
cult to say at what time a structure in process of construction
presents such a degree or state of completion as that it may be
described as a building in the sense of the statute, still we think
the edifice in question may be properly denominated a building,
within the meaning of Section 4409. In the connection in which
the word is used it can not import a finished structure ready for
use, as a residence, for the words are, *any other building not
adjoining or occupied with a dwelling-house.' The other build-
ing was a structure different from a dwelling-house, as those
words were used in this and the two preceding sections. We
think the provision was intended to include any building not
within the curtilage, in which property might be stored, or men
or animals sheltered. There are oases which show that the word
is often used in statutes in that case. In Rex v. Worall, 7 Car. &
P., 516, an unfinished building, intended as a cart shed, which
was boarded up on all its sides, had a door with a lock to it, and
the frame of a roof, with loose gorse thrown upon it, but not
thatched, was held a building. In Queen v. Manning, L. R., 1 Or.
Cas., 338, an unfinished house of which the walls were built and
finished, and the roof on and finished, considerable part of the
flooring laid and the internal walls and ceilings prepared ready
for plastering, was held to be a building. This shows that a
building, as the word is often used, does not necessarily imply
a completed structure.''
The house cited by the Wisconsin court was very much like
the house in question in this case as to its condition. It seems to
us that it would be putting too strict a construction upon this
statute to hold that the structure, in the condition that this house
was, was not within the provisions against arson in this statute.
There being no case directly in point in this ease, we are at
liberty to follow the rulings in other states or lay down such
a rule as seems to us proper, and we think that the reasoning of
the court in this Wisconsin case is sound. Whether the structure
had reached that stage where it might be called a building or
not was a question of fact, and in this case it w^as left with the
jury to decide whether it was a building or not. And it is com-
plained that the court erred in its charge to the jury in saying
that if the house was inclosed and the roof on it might be regarded
as a building and should be so held by them. It is possible that
this definition of the court was a little too narrow. That may
426 CIRCUIT COURT REPORTS— NEW SERIES.
-■— ■''■■"— ■■--^' — ■■■■^■■■■■■■1 I yr ■■' - ■ - - -■ ■ ^^^^^^^1^— ■ . .
Van Immons v. State. [Vol. XII, N. S.
have been, but we would not reverse the judgment in this case
if we were of the opinion that that was possibly a definition too
narrow, and what the court said to the jury, it seems to us, should
be read in the light of the undisputed evidence in the ease, and
we, therefore, hold that there w-as no error prejudicial to the
defendant in what the court said to the jury.
A plea of former acquittal was filed by the defendant and de-
murrer was filed, and that demurrer was sustained, and this is
claimed to have been erroneous. It appears that the defendant
had been indicted at a former term of the court of common pleas
of this county for arson, and in that indictment he was charged
with burning a dwelling-house the property of one Martha Page,
the SBQue structure as this structure here covered by this in-
dictment. The record shows that a verdict of ''not guilty" was
returned in that case, it is said upon the instructions of the court,
and the defendant was discharged. It is said that the former
acquittal is a bar to this prosecution. We are of the opinion that
the ruling of the court was correct. A former acquittal is not a
bar unless he was acquitted of the same offense with which he is
charged here. He was charged in the former indictment with
burning a dwelling-house, it never having been inhabited by
human beings, and for that reason he was not guilty of that
offense.
He is charged here not with burning a dwelling-house but with
burning a building, designed thereafter to be used as a dwelling-
house, which constitutes another and different offense. I will
cite a few authorities: 3 Cyc, 987; 2 Am. & Eng. Enc. Law
(2d Ed.), 928; Commonwealth v. Hayden, 150 Mass., 332; Peo-
ple V. Ilandley, 93 M.ich., 46.
The court in the last case say in the syllabus:
''The acquittal of the charge of burning a dwelling-house is
not a bar for a trial for the same offense providing for the pun-
ishment of one who shall willfully and maliciously burn any
building other than a dwelling-house.''
ThBi case seems to determine the question here. I might add
to what I have already said that if this indictment, upon which
he was convicted, had simply described the structure as a build-
CIRCUIT COURT REPORTS— NEW SERIES. 427
1910.] Williams County.
ing, and had not described it as an unfinished and incomplete
building, that probably would have been sufficient to decide the
question whether it had reached such a stage of construction that
it could be called a building. A man can not be convicted of
arson unless he burns one of the structures named in the stat-
ute or some kind of a building.
It is urged that the conviction of the defendant was against
the weight of the evidence and that the court erred in its charge
to the jury. The record shows that the defendant was charged
with aiding and abetting Morrison in the crime, and he was
convicted largely upon the testimony of Morrison. The record
shows that this structure had been built at the village of West
Unity, this county, and on the evening of October 8, about 9 or
10 o'clock, it was burned. The defendant was not arrested for
some years afterward. ^lorrison was the principal offender,
He was a witness in the case, and, according to his testimony, he
suggested the burning of this house.
The defendant at that time was a young man about twenty
years old. He and ^lorrison were and had been friends, quite
intimate friends for quite a long time, and according to the tes-
timony, Moi*rison, it seems, was not on friendly terms for some
reason with Mrs. Page, the owner of this property, or her hus-
band. He testified that on the evening that the fire occurred the
defendant was at his place of business in West Unity, and that
when they locked up this place he suggested to the defendant
that it wou'd be a good night to burn this building, and the de-
fendant agreed. He testified that after going to his own house,
going in and getting a bottle of coal oil and a candle, they went
to this house, going upstairs, setting the candle on the floor, and
sprinkling coal oil on the floor and shavings, then both went
to Morrison's house and went to bed. Soon after the house took
fire, the alarm was given and the house practically consumed.
The defendant testified that he was at Morrison's place of busi-
ness with ^lorrison and after leaving there Morrison went away
for about half an hour, leaving him, the defendant, outside of
Morrison's house; that he waited there until Morrison returned.
lie claimed that he had no knowledge of what Morrison was
doing or what he intended to do, denies that he had ever talked
428 CIRCUIT COURT REPORTS— NEW SERIES.
Van Immoiis v. State. [YoLXII^N. S.
with Morrison about this matter, and say that he had >nothing
whatever to do with it. !Mrs. Morrison testifies that Morrison
and the defendant came to their house about 10 o'clock that
night, took off their shoes, and went upstairs to bed. She says
that she detected a strong odor of coal oil soon after they came
into the house, and she spoke to them that night, and Morrison
said that they had been in an alley where there were some barrels
and perhaps they contained coal oil. After they had both gone
to bed, the alarm of fire was given and the defendant went to the
fire; after the fire was over, they came back and he remained
there that night and part of the next morning. He testified
that nothing was said about the fire between him and Morrison
the next morning.
It went to the jury upon the testimony which I have just given
and they found the defendant guilty.
The Supreme Court of this state has held that a man may be
convicted upon the uncorroborated evidence of an accomplice.
The court charged the jury, we think, correctly under this deci-
sion of the Supreme Court, that if the jury believe the testimony
of an accomplice, although it was uncorroborated, it was their
duty to convict. That merely means to say to the jury, that if
they believe the testimony of an accomplice, when he says and
swears that the defendant took part with him in the commission
of the crime, it is their duty to find him guilty. It follows, of
course, that it would be their duty to so find him, so we see no
objection to the charge of the court.
There are states where it is provided by statute that a man
shall not be convicted on the uncorroborated testimony of an
accomplice. That is not true of this state. It was for the jury
to say under the circumstances whether the testimony of Morri-
son was true. He described in detail the commission of this
crime.
It appears from the undisputed evidence in the case that Mor-
rison and this young man were quite intimate friends — we think
had often ridden about the country together in the daytime and
I think sometimes in the evening, and that they were together
a great deal. There is a hint in the testimony that Morrison was
visiting a young person in the neighborhood some three miles
CIRCUIT COURT REPORTS— NEW SERIES. 429
1910.] wnilamB County.
away, a fact which he wished to conceal perhaps from his wife,
and this young man would aid him in that he would wait around
and then go into the house with Morrison, after he had returned
from the visits, making it appear that he and Morrison had been
away together. I only speak of this as showing the intimacy
which existed between them. He was with Morrison the after-
noon of the day the fire occurred. He was with him in the even-
ing at his place of business. He went from there with him to
his house. He testifies that Morrison went into his house, as
Morrison himself testifies, when he got the bottle of coal oil and
the candle. He says Morrison asked him to wait for him, but
Morrison went away remaining about half an hour. Where
Morrison went after going away and leaving him there does not
appear from the testimony of the defendant.
There is no denial of the testimony of Mrs. Morrison, who was
a witness in the case, as to the shoes of Morrison, and she thinks
of the defendants smelling of coal oil when they came in that
night.
The fact that nothing was said between Morrison and the de-
fendant about this fire the next morning at breakfast, as the
defendant testifies, is a significant fact. If the defendant was
innocent of any connection with this crime, it is strange that he
should sleep in the house that night, eat breakfast there and per-
haps dinner, and nothing transpire between him and Morrison in
regard to it. It seems to us that, under this testimony, the court
would not be warranted in finding that the verdict was not sus-
tained by the evidence.
Arson is one of those crimes where there are usually but few,
if any, eye-witnesses, committed usually in the darkness of night,
and testimony which leads to conviction is usually circumstantial.
While we have in this case these circumstances, we have also the
testimony of Morrison, who swears positively to the defendant's
connection with the commission of the crime. Nothing appears
in the record to show any feeling of hostility or enmity on the
part of Morrison toward the defendant. No reason appears why
he should swear this yoimg man into the penitentiary unless what
he tells is true. It is true that he had been indicted for this
same offense, but he was also indicted and convicted for other
430 CIRCUIT COURT REPORTS— NEW SERIES.
Yochelm v. State of Ohio. [Vol. XII. N. S.
offenses, and was serving a term of imprisonment in the peni-
tentiary at the time he testified in this case. It may have been,
it is urged by counsel for plaintiff in error, that to testify in this
case against the defendant would aid him to secure a i)ardon or
relief in some manner. But the circumstances in this ease stands
out strongly that the defendant in this case, against whom he
testified, was his friend, against whom he had no enmity and with
whom he had been on the most intimate and friendly terms.
This whole question was submitted to the jury. They Were
better able than we are to hear the testimony and determine where
the truth lay as between the defendant and Morrison, who gave
his testimony against him. It is one of these cases that, under
the law of the state, was submitted to the jury, and they have
determined, after hearing the evidence, that the defendant is
guilty as he stood charged in the indictment. We have reviewed
the record with care, and find no errors in it to his prejudice.
The judgment of the court of common pleas will therefore be
affirmed.
AUTHORITY OF MAGISTRATE TO RE-SENTENCE
AFTER TIME.
Circuit Court of Cuyahoga County.
George Yocheim v. The State of Ohio, and Thirty-five
Other Cases.
Decided, June 7, 1909.
Criminal Law — Magistrate's Judgment Reversed for Error in Sentence
— Authority to Re-Sentence after Time.
Upon reversal by the common pleas court of the judgment of a justice
of the peace In a criminal case for error In the sentence alone, and
remand for re-sentence, the justice has authority to re-sentence,
notwithstanding the time has elapsed, after the trial, within which
judgment must be rendered. Derby v. State, 6 C. C. — N. S., 91,
overruled In part
E, J. Albl, E. Sutherland and Joseph Bloch, for plaintiff in
error.
V. G. Denman, Attorney-General, and G, P. Hine, contra.
CIRCUIT COURT REPORTS— NEW SERIES. 481
1910.] Hamilton County.
Winch, J. ; Henry, J., and Marvin, J., concur.
Error to the Court of Common Pleas.
The only question in these cases is whether in a criminal case
tried before a justice of the peace, upon reversal by the common
j)leas court for error in the sentence alone and remand for re-
sentence, the magistrate has authority to so re-sentence, the
time having elapsed after the trial within which judgment must
be rendered.
We consider discussion of this question foreclosed by the prece-
dent set by the Supreme Court in the case of Carey v. State, 70
Ohio St., 121, 127, where the judgment entered reads :
** Judgments of the circuit court and the court of common
pleas, and of the mayor's court reversed and cause remanded to
the latter court for sentence.''
The common pleas court in these cases did exactly what the
Supreme Court did in the Carey case, and in following the prac-
tice thus established we can not say that it was wrong.
So far as the case of Derby v. State, 6 C C— N. S., 91, is in
conflict with this conclusion, it is overruled.
Judgments affirmed.
POSSESSION UNDER CONTRACT OP PURCHASE.
Circuit Court of Hamilton County.
Sabah Cowen v. John R. McGoron.
Decided, November 6, 1909.
Forcible Detainer — Evidence as to Title — Extent to which the Question
off may he Drawn into the Case — Contract of Purchase — Ejectment,
1. In an action in forcible detainer before a Justice of the peace, it is
competent for the defendant to ofFer in evidence a contract of pur-
chase for the purpose of showing the nature of his possession.
2. A showing of possession under a contract of purchase is a com-
plete defense to. an action in forcible detainer; and for failure
to perform some of the conditions of the contract the plaintiff
must have resort to a suit in ejectment.
Wm. A, Stark, for plaintiff in error.
A. W. Brack, contra.
482 CIRCUIT COURT REPORTS— NEW SERIES.
Cowen V. McGoron. [Vol. XII, N. S.
GiPPEN, P. J. ; Swing, J., and Smith, J., concur.
The original action of forcible detainer was commenced by
John R. McGoron against Sarah Cowen, who, prior to October
4th, 1905, had been his tenant; but on that date they entered into
a written contract of sale of the premises, under which she paid
large sums of money to the plaintiff and made some improve-
ments upon the premises. She thereby cea,sed to be a tenant, and
her possession thereafter was referable to the contract of pur-
chase.
This contract was offered in evidence, not for the purpose of
trying the title to the premises, but for the purpose of showing
the nature of defendant's possession. To some extent the title
was thereby drawn in question ; but this is permissible under the
cases of Brown v. Burdick, 25 0. S., 260, at 270; Trustees of
Burten Township v. Tuttle, 30 0. S., 62, at 66.
If, as claimed by the plaintiff, some of the conditions of the
contract had not been performed by the defendant, an action in
ejectment should have been commenced in the court of common
pleas^ where the equities, if any, of the defendant could be de-
termined. Her possession as purchaser was a complete defense
to the action of forcible detainer, and the justice erred in render-
ing judgment for plaintiff instead of defendant.
The judgment of the court of common pleas affirming the judg-
ment of the justice of the peace will be reversed and the cause
remanded to that court with instructions to reverse the judgment
of the justice. A like judgment will be entered in the case of
Green v. McGoron, No. 4803.
CIRCUIT COURT REPORTS— NEW SERIES. 488
1910.] Delaware County.
APPEAL FROM THE DECISION OF A CANVASSING BOARD.
Circuit Court of Delaware County.
Emmet Wickham v. George Coyner.
Decided, 1902.
Elections — Temporary Change of Residence — Right of Voter to Have
Vote Counted — Affiliation with Political Party not Evidence that
the Vote of an Elector was Cast for that Party — Natur<ilization —
Rule Determining th^ Residence of Students— rPresumption as to
the Legality of a Ballot — Time Necessary to Oain Residence After
Majority — Legislature Without Power to Impose an Educational
Test— Section 2966-37.
1. Presence for a temporary purpose does not secure the right to vote,
and absence for a temporary purpose does not forfeit the right.
2. The right to have a legal ballot counted is the right of the voter
who casts it; and after it has been deposited in the box, the act
or omission to act of no officer can deprive the voter of this right,
so long as it is reasonably certain that the ballot remains un-
changed.
3. The fact that a voter affiiliates with a particular party can not be
considered as sufficient evidence of how he cast his ballot for any
particular office, when the matter is in issue in an election con-
test.
4. A contestant having proved that a certain voter who was an alien
could not have been naturalized, on account of minority under the
general provisions of the naturalization laws within one year be-
fore the contested election, is not bound to negative the excep-
tional circumstances under which the naturlization of such voter
might have been effected at an earlier time.
5. There is no special rule for determining the residence of students
for election purposes; the same rules that determine the domcile
of other persons apply to them.
6. The fact that a student voted raises a presumption of the legality
of his ballot and of his innocence in casting the ballot, which
presumption overcomes the presumption that the domicile given
on the matriculation card of such student continues until affirma-
tive evidence of a change is given.
7. A person during minority has not the capacity to change his domi-
cile, and a student domiciled outside the state must remain in
Ohio one year after attaining his majority in addition to the
434 CIRCUIT COURT REPORTS— NEW SERIES.
Wickham v. Coyner. [Vol. XII. N. S.
necessary intent to change his domicile to acquire a residence
for voting purposes.
8. Under the Constitution the Legislature has no right to require
voters to possess an educational qualification, and any act of the
Legislature which has such effect, or which would prevent the judges
of election from assisting other than those afflicted with blind-
ness, paralysis, the feebleness of extreme old age, or other physi-
cal infirmity, is a limitation upon the constitutional right of the
voter. Semhle.
MooNEY, J.; Sullivan, J., concurs; Dx\y, J., dissents.
This is a proceeding to contest an election of a common pleas
judge, brought under act 89 O. L., 363 (Section 3014-1, Re-
vised Statutes). Emmet M. Wickham, the contestor, in his peti-
tion states that the first subdivision of the sixth common pleas
judicial district of Ohio is composed of the counties of Delaware,
Knox and Licking; that the said county of Licking at the last
federal census had the largest population of all the counties of
said subdivision ; that at the general election held on November
5th, 1901, there were four candidates in said subdivision for
the office of judge of the court of common pleas rn said judicial
district, two of whom were to be elected; that one Charles W.
Seward and the said George Coyner, who is a resident of said
county of Delaware, were such candidates on the Republican
ticket, and one John Davis Jones and said Emmet M. Wickham
were such candidates on the Democratic ticket; that on Novem-
ber 12, 1901, the canvassing board of said Licking county found
and certified that the said Charles W. Seward had received for
said oflSce 12,527 votes; .that the said George Coyner had re-
ceived for said office 12,274 votes; that the said Emmet M. Wick-
ham had received for said office 12,206 votes ; and that the said
John Davis Jones had received for said office 12,129 votes; and
said canvassing board then found and declared as the result of
said election that the said Charles W. Seward and the said George
Coyner were elected such judges as aforesaid.
Emmet M. Wickham appeals from the finding and decision of
said canvassing board and contests the election of said George
Coyner to said office and avers that the said George Coyner did
not receive the number of legal votes, so found by said can-
CIECUIT COURT REPORTS— NEW SERIES. 485
1910.] Delaware County.
vassing board, but a much less number; that said Emmet M.
Wickham received a much larger number of legal votes than the
number so found by said canvassing board and a much larger
number of legal votes than was received by the contestee, the
said George Coyner, and that, therefore, the contestor was and is
duly and legally elected to said office of judge of the court of
common pleas instead of the said George Coyner; and for
grounds of such contest the contestor alleges the following facts :
First. In Scioto township and in Berlin township, Dela-
ware county, there were cast for said contestor and not for said
contestee, twenty-five legal votes, which votes the judges of
election of said township failed and refused to count for said
contestor.
Second. In each and every of the following precincts, town-
ships, and wards there were cast and counted for said George
Coyner, none of which were counted for said Emmet M. Wick-
ham, fifty illegal votes by persons who then and there did not
possess the qualifications of legal voters of said election, viz. : in
the townships of Brown, Orange, Radnor, Delaware county ; in the
first, second, third, fourth, fifth and sixth wards of the city of
Delaware, Delaware county ; in the township of Granville and in
the village of Granville, Licking county ; in the townships of Col-
lege, Hilliar and Liberty, in Knox county.
Third. In Galena precinct, in Berkshire townshf^, Dela-
county, there was counted for contestee and not for contestor
one mutilated and fraudulent ballot.
Fourth. In the township of Brown, Delaware county, the
judges of election conspired together to assist the inmates of
the county infirmary to cast their ballots ; that said inmates were
not, under the law, entitled to be so assisted; that notwith-
standing said fact, assistance in the marking of ballots was ren-
dexed by said judges, pursuant to their said conspiracy, and that
all said inmates had their ballots marked and counted by said
judges for said contestee and not for said contestor; that in
said township said contestee had counted for bim 172 votes;
that said action of said judges rendered the election in said
township illegal and void^ and that that number of votes should
486 CIRCUIT COURT REPORTS— NEW' SERIES.
WIckham v. Coyner. [Vol. XII, N. S.
be deducted from the votes cast for the contestee, or that, if
said election in said township was not rendered wholly ille-
gal and void, each ballot marked by the judges for said infirmary
inmates was fraudulent and illegal, and that forty votes shouM
be deducted from the total vote cast for said oontestee.
Fifth. That there was a large number of disputed ballots re-
turned in each of the three counties to the deputy state super-
visors of elections, which should be counted for said contestor
and not for said contestee, and were not so counted for con-
testor.
To this petition the contestee answers and denies all grounds
of contest set out in the petition and further answering says:
First. That the legal qualifications of all persons voting at
said election in the several precincts named in the petition were
passed upon by the judges of election and that the right of said
persons to vote is, therefore, res adjudicaia.
Second. That in Orange township, Delaware county, there
were cast and counted for said contestor twenty illegal votes.
Third. That in the first, second, third, fourth and sixth wards
in the city of Delaware, Delaware county; in the township of
Granville, and in the village of Granville, Liberty Union, Jer-
sey, Newark, Licking and Hopewell townships; in the first, sec-
ond, fourth and seventh wards of the city of Newark, Licking
county; in the townships of College and Liberty, in Knox
county, each, there were cast and counted for said contestor
twenty illegal votes.
The contestor, by reply, denies all the affirmative allegations
contained in the answer of the contestee.
The rights of the parties to this proceeding require an ex-
amination of the law of the state as to the qualifications of elec-
tors; the preparation, reception and counting of ballots; the
proceedings incident to the preservation of disputed or doubtful
ballots; and the rules of procedure in contests of elections. First,
as to the qualifications of electors. Section 1, Article V of the
Constitution of the state provides:
CIRCUIT COURT REPORTS— NEW SERIES. 487
1910.] Delaware County.
** Every white male citizen of the United States, of the age
of twenty-one years, who shall have been a resident of the state
one year next preceding the election, and of the county, town-
ship or ward, in which he resides, such time as may be pro-
vided by law, shall have the qualifications of an elector and be
entitled to vote at all elections."
And by Section 6 of the same article —
'*No idiot, or insane person, shall be entitled to the privileges
of an elector."
The color qualification is now abrogated by the fourteenth and
fifteenth amendments to the Federal Constitution.
The qualification of residence is the one most frequently ques-
tioned in the case at bar. From the constitutional provisions
quoted, it appears that while the term of residence within the
state is fixed by fundamental law, and the term within the coun-
ties, wards or townships is left for legislative regulation, yet
the character of the residence within the state is in no manner
distinguished from the residence wnthin the several subdivisions
of the state.
The Legislature is not authorized to require anothur or dif-
ferent character of residence within the subdivisions than is re-
quired by the Constitution within the state.
In Sturgepn v. Korte, 34 O. S., 525, this article of the Consti-
tution was under consideration by our Supreme Court. Boyn-
ton, J., at page 534, says :
i I
The word 'residence' as used in the Constitution, has sub-
stantially the meaning of habitation, domicile or place of abode.
The law ascribes a domicile to every person, and no person can
be without one.
**In Bell V. Kennedy, L. R. 1, H. L. 320, it was said by Lord
Westbury, that domicile is the relation which the law creates
between an individual and a particular locality or country. And
by Judge Story, in* his Commentary on the Conflict of Laws, that
it is of three sorts: domocile of birth, domicile of choice, and
that which results from the operation of law. Section 46.
** Domocile of birth remains until another is chosen, or where
a person is incapable of choosing, until one results by operation
of law. To acquire a new residence or domicile, where one is
under no disability to choose, two things must concur, the fact
488 CIRCUIT COURT REPORTS— NEW SERIES.
Wickham v. Coyner. [Vol. XII, N. S.
of removal and an intention to remain. The old domicile is not
lost nor gone until the new one is acquired, facto et animo. It
is not, however, necessary that the purpose to acquire a new resi-
dence should exist at the time of removal. It may be formed
afterward. A residence may be acquired by one who has re-
moved to a place for temporary purposes only, by a change of
purpose, and an ejection of the new habitation or place of abode
as his place of future domicile or home. • • •
** ^In a strict legal sense, that is properly the domicile of a
person where he has his true, fixed, permanent home and princi-
pal establishment, and to which, whenever he is absent, he has
the intention of returning.' '' Story, Conflict of Laws, Section
41.
**It is not, however, necessary that he should intend to remain
there for all time. If he lives in a place with the intention of
remaining for an indefinite period of time, as a place of fixed
present domicile, and not as a place of temporary establishment,
or for mere transient objects, it is to all intents, and for all
purposes, his residence. Story, Conflict of Laws, Section 46;
Bruce v. Bruce, 2 Bos. & Pul., N. R., 228; Sears v. Boston, 42
Mass. (1 Mete.), 250.
* * These are well settled rules relating to the selection or change
of residence, existing w^hen the Constitution was adopted, and
consequently apply in all cases where a change of residence re-
sults from, or depends upon choice. • • • Residence result-
ing from the operation of law supervenes upon a disability to
make choice. Minors being incapable of acquiring a domicile,
retain that of their parents. * • • A person under the
power and authority of another • • • is incapacitated to
choose a residence."
To a majority of the court. Judge Sullivan dissenting, it seems
that the rules here laid down are so clear in their statements and
so well supported by both reason and authority outside the state,
that any investigation of cases in other states, however in-
teresting it may be as a matter of legal study, is quite unneces-
sary to determine what the rules on Ohio are, determining wheth-
er a particular person has or has not a right to vote at a par-
ticular poll. Th^re is no special rule as to students. Their
residence is to be determined by the same rule as other persons.
It would be an endless task to state here at length the particu-
lar facts which we concluded to be of controlling effect in the
CIRCUIT COURT REPORTS— NEW SERIES. 4S9
1910.] Delaware County.
case of each person whose right to vote has heen called to the
attention of the court.
We need only say that from all the evidence bearing upon
the right of each person to vote, his right has been separately
considered and determined. The statement of a few typical
cases will sufficiently indicate the application of the rules of
law to the cases in general:
Stanley C. Roettinger came from his parents' home in Ham-
ilton county to pursue his studies at the Ohio Wesleyan Uni-
versity. At the date of his matriculation he was a minor. He
spends his vacations not at Delaware, but in the main at his
parents' home. When he leaves Delaware at the close of each
school year, he intends to return at the beginning of the next
school year to continue his studies. He has no business or oc-
cupation other than student and limits his stay in Delaware each
year to the time school is in session.
He has formed no plans for the future. We are not informed
as to the source from which his support is derived. When he
arrived at his. majority, his residence was at the home of his
parents. To change this residence required an active intent upon
his part. This intent is not shown by the facts in evidence. His
attendance at school since attaining his majority is not different
in any respect from what it was within his minority at Delaware.
We are of opinion that his residence on November 5, 1901, was at
Wyoming, Hamilton county, Ohio, and not at Delaware, and that
his vote at Delaware was illegal.
John Eddy Austin attained his majority in July, 1901. More
than one year prior to that time he came to Delaware from his
father's home at Chattanooga, Tennessee. The father main-
tained his residence in Tennessee continuously until the time of
this trial. During the minority of the son, his residence con-
tinued in Tennessee by operation of law. He had not legal ca-
pacity to change from this residence to a new one of his choice.
He did not become vested with a capacity to choose a residence
until July, 1901.
If he then selected Delaware, Ohio, as his home, less than one
year intervened before the election at which he voted. Hence
440 CIRCUIT COURT REPORTS— NEW SERIES.
Wickham v. Coyner. [Vol. XII, N. S.
he did not possess the qualifications of residence required by the
terms of the Constitution and his vote was illegal.
Frank Whitehouse states in his matriculation card, that his
native country is p]ngland. He was born in September, 1879.
On or before November 5, 1901, he could not have been natural-
ized under either Section 2165 or 2167, United States Revised
Statutes, for defect of age.
Upon this showing unexplained by him or by someone testify-
ing to an exceptional state of facts, Mr. Whitehouse was neither
an American citizen nor a legal voter when he cast his ballot.
There are exceptional circumstances recognized by the statutes
of the United States under which he could have been natural-
ized, but these exceptional circumstances are in the nature of
provisos to the general section of the naturalization act; and it
is not necessary that the contestor here should negative the ex-
istence of facts which would bring i\Ir. Whitehouse within any
proviso outside the ordinary provisions of the law.
C. M. ShafF came -to Delaware from Napoleon, Ohio, for the
so'e purpose of completing the business course. This, he believes
will require about seven months' attendance at the university.
Ilis stay at Delaware is without intent as to change of residence.
Ilis domicile thus clearly appears to have been at Napoleon in
November, and his vote was illegal.
Richard Roe came to Delaware from Illinois and voted at
Delaware in November. By action of the faculty in December
he was requested to sever his connection with the school. He re-
turned to Illinois to his parents' home and in correspondence
claims that place his home and spoke of his returning to Illinois
as an unexpected homecoming. We find on these facts that his
vote at Delaware was illegal.
E. A. Ilotchkiss is self -supporting. He came to Delaware in-
tending to complete a course and work there mainly to increase
his resources. He has an arrangement to stay in Delaware after
completing his college course. He has an intention not to re-
turn to the place of his former residence. His vote was legal.
Henry Graphius came to Delaware in September, 1901, from
his parents' home in Cincinnati. While at Cincinnati and liv-
CIRCUIT COURT REPORTS— NEW SERIES. 441
1910.] Delaware Ck)unty.
ing with his parents he paid them board. He is self-supporting
and came to Delaware to work his way through and testifies
that since September, 1901, he has regarded Delaware as his
only home. In September he formed an intention, after coming
to Delaware, not to return to Cincinnati. He had attained his
majority long before September, 1901. His vote was legal.
John Poland is married, not separated from his wife, and prior
to September, 1901, resided in Franklin county, Ohio. Intend-
ing to move his family to Delaware county, he broke up house-
keeping in Franklin county in September; went to Delaware
county in that month, worked there, procured a dwelling for
his family, and on October* 11, 1901, he moved his family from
Franklin county to Delaware county. His family was in tran-
sit until October, 1901, and until that date the change of his
residence to Delaware county was not complete. His vote was
illegal.
Banny Stull resided with his family in Knox county more
than eight months prior to November, 1901. He surrendered
the farm upon which he was living in the spring of 1901 with
no intent to return to the farm. He took a cropper's lease on
a farm in Licking county and moved there with the then in-
tention to remain only until the fall of 1901, and then to
return to Centerburg, Knox county. He did return to Center-
burg, Knox county, on October 15, 1901, and voted in Knox
county. His going to Licking county was for temporary pur-
poses only. His surrender of the house in which he resided in
Knox county did not forfeit his residence in that county. He
was a legal, qualified voter in Knox county. Under the facts
as disclosed he would have been qualified to vote in Knox county,
even though his family had not returned there before election.
Presence for a temporary purpose does not secure the right to
vote, and absence for a temporary purpose does not forfeit the
right.
For the same reasons Lam A. Brandebury is legally qualified
to vote on his *'old ward" in Delaware.
The persons who were employed in the construction of the elec-
tric railway in Orange township, Delaware county, w^ere pres-
ent in that township only for the purpose of railway construe-
442 CIRCUIT COURT REPORTS— NEW SERIES.
Wickham v. Coyner. [VoLXII,N. 8.
tion. The tents in which they were housed were of a character
to indicate conclusively the temporary purpose of their stay in
Delaware county.
None of these persons, so far as shown by the evidence in this
case, were legal voters in Delaware county.
We find no defect in residence of any inmate of the Delaware
county infirmary, and we are of opinion that Jacob Lumbert
was domiciled in Brown township and properly voted there.
From the evidence we find affirmatively that the following
students were legal, qualified electors: In Delaware f forty-two
were named] • • •; Granville [eleven] • • •; Oambier
[six]. • • •
The following named students voted for neither or for both
of the parties litigant here, and for that rea3on their several
qualifications were not considered by the court:
In Delaware [six were named] • • •; Granville [two],
• • •
Many persons whose residence is in question claimed their
privilege as witnesses not to answer questions with reference to
that fact. As to these persons, we have the evidence of their
matriculation cards, which contain a statement of the former
home of each matriculant, and the fact appearing, from the
evidence, that these persons are all students at the place at which
they voted.
For the contestor it is claimed that from the fact that these
voters are students and from the presumption that the place of
domicile shown continues imtil affirmative evidence of a change
is given, that this evidence is sufficient to show that these voters
are not residents of the wards and precincts in which they voted.
We are of the opinion that the fact that a person voted raises
a presumption of the legality of his ballot and of his innocence
in casting the ballot. It thus appears that the presumption of
the continuance of domicile is in conflict with the presumption
of the innocence of the voter.
In such cases, the presumption of innocence overcomes the
presumption of continuance {Lawson, Presumptive Evidence, 665,
Rule 122, Sub-sec. D). And on such state of proof we must
find in accordance with the presumption of innocence that such
CIRCUIT COURT REPORTS— NEW SERIES. 448
1910.] Delaware County.
persons are legal residents of the precincts in which their sev-
eral ballots were cast.
The fact that these students claimed their privilege is, for a
reason hereinafter stated, not a matter of evidence tending to
prove that the witness claiming the privilege was a non-resident ;
nor is the fact that the occupation of the voter is that of a stu-
dent sufficient to overcome this presumption of innocence, for a
student may have a domicile at the seat of the university.
The students who, in accordance with this ru'e, are held to be
legal residents of the precincts in which they voted are the fol-
' lowing :
In Delaware [twenty-eight were named] • * *; GranVille
[eleven] • • •; Gambier [eight]. • • •
The students who voted and whose right was questioned by
either party, other than those above named, we find to have
voted without legal qualification so to do. But, by reason of
defect of evidence to the point, we are not able in many cases
to find for whom many of them voted. There is some evidence
as to the politics of nearly all of these voters and near'y all of
them claimed their privilege when asked to testify as to their po-
litical affiliations in general or as to the candidates for whom they
voted for common pleas judge.
The privilege not to answer is the privilege of the witness.
With the exercise of this privilege neither of the parties litigant
have, in legal contemplation, anything to do. When a voter is
called as a witness by the contestor and claims his privilege not
to answer concerning his politics, it can not be inferred from
that fact alone that such witness is a Republican; nor can the
refusal of the witness to answer the same question put by the
contestee give rise to the presumption or to an inference that
such witness is a Democrat.
**If a witness declines to answer a question on the ground
that his answer might criminate him, no inference of the truth
of the matter inquired of may be drawn from that circumstance. * '
1 Oreerdeaff Evidence, Section 451 ; Rose v. Blackmore, R. & M.,
383; Ohelin v. Kendcrdine, 20 Pa. St., 354; Rex v. Watson, 3
E. C. L., 357.
444 CIRCUIT COURT REPORTS— NEW SERIES.
Wickham v. Cojner. [VoLXII.N.S.
And these witnesses not being parties, no inference can arise
from their failure or refusal to explain.
Nor, it seems to a majority of the court. Judge Day dissenting,
can the fact that a voter affiliates with a particular party be
considered as sufficient evidence of how the voter cast his ballot
for any i>articular office, when the matter is in issue in an elec-
tion contest.
It seems to a majority of us, that something more than political
affiliation is necessary to be shown in such case. Political activ-
ity, enthusiasm for a political party at a particular election, decla-
rations of the voter attending the act of voting, or other circum-'
stances are necessary' to be shown before a court can hold, as a
matter of fact, that a voter supported a particular candidate;
and this shouM be more particularly the case when, as in the
case at bar, it seems that there was quite a degree of independ-
ence manifested by the voters in their.support of the candidates
for common pleas judge.
We do find from the evidence that the following disqualified
voters cast their ballots for George Coyner and not for Emmet
M. Wickham:
In 'Delaware [fourteen were named] • • •j Qranville
[seven] • • ♦j Qambier [fifteen] * • •; three employes
on the electric railway.
We find, too, that William Palmer, an inmate of the Dela-
ware county infirmary, was insane, and was not qualified to
vote, and that he voted for George Coyner and not for Emmet
M. Wickham.
The following students voted for Emmet M. Wickham and not
for George Coyner, and each of said voters were without legal
qualifications :
In Delaware [seven were named] • • •; Granville
[two]. • • •
We further find that the following persons, other than stu-
dents, voted for George Coyner and not for Emmet M. Wickham,
and that the said voters were each of them non-residents of the
precincts in which they voted [four]. • • •
We find that C. W. Shotboldt was insane when he voted, but
from the evidence we are not able to find to whom his vote was
CIRCUIT COURT REPORTS— NEW SERIES. 446
1910.] Delaware County.
cast for common pleas judge. This disposes of all cases of im-
portance in this contest so far as the legal qualifications of the
persons voting are concerned.
As to doubtful ballots certified to the board of deputy super-
visors of elections: The purpose of the Australian ballot is to
promote the purity of elections by securing absolute secrecy of
the ballot, and such uniformity in the marking of tickets as will
render it impossible for corrupt persons to discover, from an in-
spection of a ballot during the count, that any deal made has
been carried out.
It is held practically by all the courts that when the statute
prescribes a method for marking a ballot, the observance of such
method is mandatory upon the voter, and that any ballot not
complying with the law must be rejected. In Ohio, it is pro-
vided that where a ballot is marked so that the intention of the
voter may be ascertained, technical irregularities in marking it
shall not vitiate the ballot ; but it is believed that the ticket must
be so marked and the intention of the voter be so manifested, that
the ticket upon inspection will not be so different in marking
from tickets properly voted that one, by prearrangement with
voters, could ascertain that an understanding with reference to
the matter of voting had been carried out.
Of the ** doubtful ballots'' in Delaware county, the one ballot
in Delaware precinct, Delaware township, should not be counted;
the one ballot in Oxford precinct, Delaw-are county, should not
be counted ; the one ballot in Radnor precinct should be counted
for George Coyner; the two ballots in Sunbury precinct, Berk-
shire township, should not be counted; the one ballot in Trenton
precinct, Trenton township, should not be counted ; ballot No. 1, in
Marlbrough precinet, Delaware county, should not be counted ; No.
2 is so marked as to be readily recognized by any one as differ-
ent in marking from that required by the statute. The ballot
should not be counted. It was, how^ever, counted for Coyner,
and should be deducted from his vote. The Genoa ballots are
all unmarked and can not, therefore, be counted. The Scioto
ballot was counted for Wickham, but by reason of a mark after
the name of Overturf, was in our opinion mutilated, and should
dot be coimted.
446 CIRCUIT COURT REPORTS— NEW SERIES.
Wickham v. Coyner. [Vol. XII, N. 3.
Ballot No. 2 does not vote for any candidate for common pleas
judge, and can not be counted.
Harlan ballot, No. 1, both tickets marked, should not be
counted.
The nine Liberty township ballots, whi<;h were not counted
for any one, should be disposed of as follows : No. 1 should not
be counted for any candidate for judge; No. 2 should be counted
for Wickham and not for Coyner ; No. 3 should not be counted ;
No. 4 should be counted for Wickham and not for Coyner; No.
5 should not be counted ; No. 6 should be counted for Wickham
and not for Coyner; No. 7 should not be counted; No. 8 should
be counted for Wickham and not for Coyner; No. 9 should be
counted for Wickham and not for Coyner.
As to Knox county : The doubtful ballots in this county, after
reaching the hands of the board of deputy state supervisors of
elections properly sealed up, were, through the desire of the board
to add to their information, improperly opened. It is in evidence
that the ballots, as attached to the depositions in this case, are in
the same condition that they were when thus improperly opened.
While the case is not free from doubt, we are of opinion in
such state of proof that the ballots should be counted. The
right, after all, to have the ballots counted, is the right of the
voters who cast the ballots, and after a legal ballot has been de-
posited in the box the act of no officer, or his omission to act,
should deprive the voter of the right to have the ballot counted,
so long as it is reasonably certain that the ballot remains un-
changed and so can be counted for the candidates for whom it
was cast. We think the evidence here fairly shows that these
ballots have not been tampered with.
Exhibit A, ballot No. 1, should not be counted; the ballot is
mutilated.
No. 2 should not be counted; it bears a distinguishing mark,
a double X.
No. 3 is not voted for any candidate for common pleas judge.
No. 4 bears a distinguishing mark in that an X is marked be-
fore a blank space on one of the third party tickets. This ballot
was counted for Coyner and should be deducted.
Ballot No. 5 is mutilated and should not be counted.
CIRCUIT COURT REPORTS-NEW SERIES. 447
1910.] Delaware County.
Ballot No. 6 should not be counted; the ballot bears a dis-
tinguishing mark the same as No. 4.
Ballot No. 7 is mutilated ; the name of the Democratic candi-
date for respresentative is written in the space devoted to that
oflSce on the Republican ticket and the name of the Republican
candidate for representative is erased, and the ballot is other-
wise mutilated. This baP.ot was counted for Coyner and should
be deducted from his vote.
Ballot No. 8 bears a distinguishing mark, the same as No. 4,
and should not be counted. It was counted for Coyner and
should be deducted from his vote.
Ballots Nos. 9 and 10 should not be, and were not counted.
Ballot No. 11 bears a distinguishing mark, the same as No. 4.
It was counted for Coyner and should be deducted from his
vote.
It is not certain to us whether ballot No. 12 was counted or
not. In such state of the proof it must be presumed that the
election officers did their duty and, because the ballot is muti-
lated, rejected it.
We find upon the evidence that the Galena ticket referred to in
the evidence bears a distinguishing mark ; that it was counted for
Coyner and should be deducted from his vote.
In Berlin township the claim is made by the contestor that
certain tickets were marked for Seward and Wickham, and had
an X mark in the circle at the head of the Republican ticket ; that
these ballots were counted for Coyner alone.
This is disputed by the contestee and evidence is adduced by
each party in support of his contention. The question is one to
be determined upon the weight of the evidence, and inasmuch
as Judge Sullivan was not present when this testimony was re-
ceived, the conclusion reached with reference to this matter is
not participated in by him. Owing largely to the fact that the
qualified denial of the witness called to impeach the testimony of
Delbert Mooney — and the general conduct of this witness upon
the stand does not tend to the impeachment of Mr. Mooney — to
the fact that an equal number of witnesses testified in behalf of
the contestor and that the credit of none of these witnesses is
called in question, and to the fact that the correctness of the count
448 CIRCUIT COURT REPORTS— NEW SERIES.
Wickham v. Coyner. [Vol. XII, N. S.
in Berlin township seems to have been since the election under
discussion, for which, it would seem, there was no reason unless
the contestor's claim has some existence in point of fact, we ar-
rive at the conclusion that in this township certain ballots were
improperly counted for George Coyner when they should have
been counted for Emmet ^F. Wickham, and upon the evidence
adduced to the point bearing upon the niunber, we conclude that
eight ballots were so counted.
Those eight ballots should be added to the total vote of Emmet
M. Wickham, and should be deducted from the total vote of
George Coyner.
As to the conduct of the election in Brown township : We are
satisfied from the evidence that the judges of election in Brown
township assisted certain inmates of the infirmary in marking
their ballots. One of these inmates testified on the trial in this
case. It seems that he was upward of eighty years of age. He
was not able to read, and while he was able, unassisted, to mark
his ballot to vote a straight ticket, would require some assist-
ance in marking a scratched ticket.
It is also in evidence that a blind man was assisted, and that
one suffering from paralysis was assisted by the judges, and in
general that no one asked for assistance in marking his ballot in
Brown township who was not given such assistance.
It seems that the judges, one from each political party, as-
sisted in marking, but all the judges in this township wer«.»
friendly to the election of George Coyner as common pleas judge.
It is not in evidence that all the persons who asked assistance
were persons who in accordance with the provisions of the stat-
ute, would be entitled to demand it. Nor does it appear that
any one who was actually assisted was a person who, under the
statute, was not entitled to receive such assistance.
We are not unmindful of the provisions of Section 22, 98 O.
L.. 223 (Section 2966-87, Revised Statutes) :
**Any elector who declares to the presiding judge of election
that he is unable to mark his ballot by reason of blindness, paraly-
sis, extreme old age or other physical infirmity, and such physical
infirmity is apparent to the judges to be sufficient to incapacitate
CIRCUIT COURT REPORTS— NEW SERIES. 449
1910.] Delaware CJounty.
the voter from marking his ballot properly, may, upon request,
receive the assistance, in the marking thereof, of two of the
judges of election belonging to different political parties, and
they shall thereafter give no information in regard to the mat-
ter ; but such assistance shall not be rendered for any other cause
which the voter may specify and a presiding judge may require
such declaratioti of disability to be made by the elector under
oath before him."
Under the Constitution of the state, electors are not required
to possess an educational qualification, and the Legislature has
no power to require qualifications in addition to those named
in the Constitution.
It is the right of the elector to vote a straight party ticket,
and any legislation which has the necessary effect to require an
elector to satisfy himself by casting a straight party ticket, and
prevent or greatly hinder the casting a scratched ticket, would
be stlch an invasion of his rights as an elector as would render
the^nactment invalid.
Under the Australian ballot law an elector is handed a ticket
with the names of all duly nominated candidates printed upon
it. To select and vote for the different candidates without as-
sistance requires at least the ability to read the names of
the candidates ; and to vote for any person for any office unless
such person is a duly nominated candidate for such office, re-
quires the added ability to write.
To place such a ticket in the hands of an elector, to compel
him to retire to a booth and prepare his ballot, without assist-
ance, can not be considered in any light other than a direction
to him to read party emblems, to vote a straight ticket, and to
deprive him of all opportunity to vote for any candidate not
upon the one ticket or the other.
In harmony with these views, we are of the opinion that if the
case required it, we would hold that the direction that the judges
should not render assistance to voters other than those afflicted
with blindness, paralysis, the feebleness of extreme old age, or
other physical infirmity, is a limitation upon the right of an
elector to cast his ballot not warranted by the Constitution of
the state,
450 CIRCUIT COURT REPORTS— NEW SERIES.
Wickham v. Coyner. [VohXII,N.S.
But while the number of voters assisted in Brown township
seems to have been large — the precise number from the evidence
we are not able to determine — yet there is no proof that any
elector not within the terms of the statute was assisted, or that
any elector was in any way impeded or controlled in the casting
of his ballot; but that all ballots were marked and counted for
the candidate for common pleas judge for whom the several elec-
tors desired to vote.
Under these circumstances we find that there was no fraud or
irregularity in the conduct of the election in this township that
should cause the rejection either of the entire poll of the town-
ship or of any of the votes cast for George Coyner.
It will appear from the foregoing that there should be deducted
from the vote of George Coyner, student votes, fourteen in Dela-
ware, seven in Granville, fifteen in Gambier, three emploj^es
on the electric railway, the votes of William Palmer, John Poland,
T. X. Dickson^ and Frank and Able Wilson; total, forty-four
votes.
There should also be deducted from ticket No. 2, returned as
doubtful from Marlborough precinct, and ballots Nos. 4, 7, 8 and
11 in Knox county, and the Galena ticket, and eight votes im-
properly counted for Coyner in Berlin township; total deduc-
tions, fifty-eight; and that there should be added to Coyner 's
vote the Radnor township ballot, one vote, making the net de-
duction from the Coyner vote, fifty-seven.
The total vote as declared by the canvassing board is 12,274;
deduct fifty-seven votes, equals 12,217, the true legal vote cast
for George Coyner so far as the votes adduced on this hearing
shows.
There should be deducted from the vote cast for Emmet M.
Wickham, student votes, as follows: Delaware, seven votes;
Granville, two votes; and the Scioto township ticket. Total de-
ductions, ten votes.
There should be added to the vote for Emmet M. Wickham,
ballots Nos. 2, 4, 6, 8 and 9, Liberty township, and the eight
votes in Berlin township cast for Wickham and improperly
counted for Coyner. Total additions thirteen, and the net addi-
CIRCUIT COURT REPORTS— NEW SERIES. 451
1910.] Delaware County.
tians three. The total vote for Wickham as found by the can-
vassing board is 12,206 ; add three, equals 12,209 ; the true num-
ber of legal votes cast for Emmet ^L Wickham, as far as the evi-
dence shows. Thus, the net majority for George Coyner over
Emmet M. Wickham, for the office of common pleas judge, was
eight votes, and so we find.
If the eleven votes referred to in the dissenting opinion be
charged to the contestee, then, by a parity of reasoning, the vote
of Long, the railroad employe, should also be so charged. This
would make twelve illegal votes to be deducted from Coyner 's
vote. In all fairness the seven employes of the railway should
then be charged to contestor, and should be deducted from Wick-
ham's vote. This would change Coyner 's majority but would
not change the result.
The five votes referred to in the dissenting opinion were not
charged to Coyner for the reason that as to these for want of
evidence it could not be determined that these persons were ille-
gal voters.
As to the entire sixteen votes referred to, the majority of the
court sinuply hold, as we believe, in accordance with all the au-
thorities, that the claim of privilege and the consequent refusal
of a witness, not a party, to testify, is not in any manner or for
any purpose to be taken as proof for or against either party to
any litigation.
It is manifest that very many Republicans, on account of the
known fitness and enviable record of Judge Wickham, voted for
him for conunon pleas judge, and so, in the case at bar, mere proof
of politics is more than ordinarily unsatisfactory as proof that
the Republicans of the subdivision, and particularly of Dela-
ware, voted for the Republican candidate, who was then without
judicial experience.
Coming now to adjudge the costs in this proceeding, we are
of the opinion that the questions here raised and now decided are
of such public imiportance that the state should pay a large part
of the costs incurred.
To us it seems just and equitable, under all the circumstances
in this case, that the costs of the clerk and sheriff of Delaware
452 CIRCUIT COURT REPORTS— NEW SERIES.
Wickham v. Coyner. [VoLXII.N.S,
county should be paid by the contestor in Ihis proceeding, and
that all other costs incurred should be paid from the state treas-
ury, and it is so ordered.
Day, J., dissenting.
I do not concur in the general finding of the court in favor of
the contestee. I am entirely satisfied, from careful consideration
of such evidence and data, as the obstructive and suppressive
methods pursued by many of the witnesses allowed the court to
obtain, that the contestor received a clear majority of the votes
cast by voters having a legal domicile in the common pleas sub-
division, composed of the counties of Delaware, Knox and Lick-
ing.
In addition to the illegal votes eliminated from the count, the
court found eleven other persons who had cast illegal ballots,
they not being legally domiciled in the township, precinct or
ward where the ballot was cast, each one of whom, on being
afforded an opportunity, refused to enlighten the court or to give
any testimony concerning the material facts, if he voted at the
November election, for whom he voted, or even to advise the
court of the fact to which, if either, of the two political parties,
presenting candidates for the office of common pleas judge, he
was a member of, or affiliated with.
The refusal was based upon the ground — the alleged ground —
that a truthful answer would have a tendency to incriminate.
It was clearly shown that each of them voted in the subdivi-
sion, at the election of November 5, 1901. It was also made to
appear, by undisputed and competent evidence, that all of them
were affiliated with and were classed and regarded by their fellows
and persons interested in politics and keeping watch over the
political field, as undoubted members of the party whose candi-
date the contestee was.
This fact standing alone, possibly, was insufficient, and did not
to an absolute certainty, point to the candidate for whom the votes
were cast ; but in view of the fact that each of these persons, who
alone knew the exact truth, and who, contrary to the good and
CIRCUIT COURT REPORTS— NEW SERIES. 458
1910.] Delaware County.
wholesome advice given them by the chief officials of the univer-
sity, to tell the truth and the whole truth, without fear, as there
was no danger of prosecution, deliberately and persistently re-
fused to aid the court to a right decision, in view of the presump-
tions arising from certain established facts, and of other facts
appearing, including the conduct and demeanor of each of them
in the presence of the court, and of their manifest desire to say
only that which would benefit the contestee ; I am of the opinion
the evidence was of such consistence, significance and weight, as
to justify and make imperative a finding that each and all of
them voted for the contestee.
Five other persons voted, it was clearly made to appear, for
the contestee; and I am of opinion that the evidence adduced
concerning their former domiciles and the temporary character
of their presence in the judicial subdivision, warranted and re-
quired the finding that neither of them were legally domiciled in
the township or ward where the votes were cast.
These sixteen votes, all of them, I think, should have been de-
ducted from the total vote of the contestee.
In each case, however, the court was of opinion the evidence
was not sufficient to establish the fact claimed, and the vote as
canvassed and returned by the supervisors of the election, was,
so far as these votes are concerned, not disturbed, but allowed
to stand ; and upon these grounds I base a dissent to the general
finding in favor of the contestee.
In all other respects, I fully concur in the rulings and judg-
ments announced.
454 CIRCUIT COURT REPORTS— NEW SERIES.
Buddeke v. State. [Vol. XII. N. S.
CONVERSION OP COLLATERAL BY A BROKER.
Circuit Court of Hamilton County.
Charles J. Buddeke v. State of Ohio.
Decided, January 8, 1910.
CrimiTial Law — Stock Broker Chcerged with Embezzlement — Relation
to his Client not that of Agent — Section 6842.
Where a broker holds as collateral shares of stock belonging to a client,
the relation between them is not that of principal and agent, but
of debtor and creditor, and the conversion of the stock by the
broker to his own use does not constitute embezzlement.
Louis J. Dolle, Ulric Sloaiie and J. B. O^Donnell, for plaintiff
in error.
Coleman Avery, contra.
GiPFEN, P. J. ; Smith, J., and Swing, J., concur.
Charles J. Buddeke was indicted and convicted under Section
6842, Revised Statutes, of unlawfully and fraudulently embez-
zling and converting to his own use twenty-three shares of the
capital stock of the Cincinnati Gas & Electric Co., which came
into his possession and care by virtue of his employment as agent
of one George Schulte.
The record discloses that Charlas J. Buddeke was a stock bro-
ker doing business as such under the name of Charles J. Buddeke
& Company. On the 4th day of May, 1907, he purchased for
and on request of George Schulte eight shares New York Central
Railroad stock at 1.17— $938. On the 9th day of May, 1907,
Schulte transferred and delivered to Buddeke twenty-five share.s
Cincinnati Gas & Electric stock and obtained the followint^ re-
ceipt :
' ' Cincinnati, May 9th, 1907.
''Received of Geo. Schulte Ctf. No. 26968 for 23 sh. Cin. Gas
& Elec. stock as collateral on account.
''Chakles J. Buddeke & Co.,
**Per T. J. CooNEY/'
On the 15th day of ^Fay, 1907, Buddeke purchased for Schulte
ten shares New York Central Railroad stock at 1.14^-$1,142.50.
On June 5th, 1907, Buddeke purchased for Schulte twenty shares
CIRCUIT COURT REPORTS— NEW SERIES. 455
1910.] Hamilton County.
Toledo Railway & Light Co. stock. On June 6th, 1907, Schulte
paid $132.50 on account. He never had possession of the stock
but paid interest on the account and was credited with dividends
on the N. Y. C. stock. On the 16th day of June, 1908, Buddekc
converted the twenty-three shares gas and electric stock to his
own use.
The question to be decided is whether by so doing he was
guilty of embezzlement, and the answer depends on whether
or not he was acting as agent of Schulte with reference to the
gas stock.
In purchasing stocks for Schulte, the broker, Buddeke, was un-
doubtedly acting as his agent; but that did not prevent him from
assuming any other legal relation to the stocks purchased or th:?
stock transferred as collateral, as, for example, purchaser or
pledgee. If the broker has been instructed by his customer to
sell the twenty-three shares of Cincinnati Gas & Electric stock
and invest the proceeds in New York Central stock, but failed to
do so and converted the gas stock to his own use, he would be
guilty of embezzlement because he received and held the stock,
until misappropriated, as the agent of his customer. So, likewise,
ha3 he received the money from the customer for a like purpose
and converted it to his own use. The stock was actually re-
ceived however **as collateral on account.'' and for no other pur-
pose. At that time the account stood George Schulte, debtor,
to eight shares New York Central stock, $938, and Charles J.
Buddeke, doing business as Charles J. Buddeke & Co., was a credi-
tor of Schulte in that amount. It was no doubt intended that the
collateral stock should and it did cover not only the indebtedness
existing at the time of the transfer but also any indebtedness
subsequently incurred in the purchase of stock on Schulte 's ac-
count; but aside from that the relation of debtor and creditor
already existing and the gas stock being transferred to protect
him in that relation, the transaction was a pledge, and the stock
never was received by Buddeke as agent. The legal effect of
the act and the legal relation of the parties thereto determines
the capacity in which they act. When a broker advances monev
in purchasing stocks for and on the order of a customer, there
is a promise, express or implied, to repay the same, the effect of
which is to create a debt and the relation of debtor and creditor ;
466 CIRCUIT COURT REPORTS— NEW SERIES.
Browning v. Westropp. [Vol. XII, N. S.
and when the debtor delivers other stock as collateral security
for the fulfillment of that promise, the creditor receives it, not by
virtue of his employment as agent to purchase stocks, but by
virtue of the debt created bv contract, and to secure which it was
given. Markam v. Jandon, 41 X. Y., 235; Hennequin v. Clews,
HI U. S., 676.
So was the duty of Buddeke to return the collateral stock to
the owner, Schulte, when it had served the purpose for which
it was pledged, and in no event to convert it fraudulently to his
own use ; but he can not be held to answer for a crime when there
is a failure of proof of the essential element of the offense charged.
Barber v. State, 39 0. S., 660.
We think that the court erred in overruling the motion made
at the conclusion of all the evidence to direct the jury to return
a verdict for the defendant.
The judgment will be reversed and the prisoner discharged.
AUTONOMY or A RESIDENCE DISTRICT.
Circuit Court of Cuyahoga County.
W. D. Browning et al v. P. S. Westropp, as Mayor.''
Decided, November 15, 1909.
Liquor Laws — Boundaries of Residence District — Remain as Consti-
tuted For Two Years — 98 0. L., 69.
Smith, Taft & Arter and T. K. Dissette, for plaintiffs in error.
Mathews & Argill and George W. Shaw, contra.
Winch, J.; Henry, J., and Marvin, J., concur.
Motion for leave to file a petition in error.
In this case we hold that a residence district, so-called, created
under the Jones law, retains its boundaries for all purposes un-
der the laws relating to the regulation of the liquor traflfic until
two years after a petition against the prohibition of the sale
of liquor therein has been granted. A division of the territory
of such residence district for municipal governmental purposes
has no effect upon said district as to the force and effect of the
liquor laws therein.
So holding, leave to file a petition in error is refused.
CIRCUIT COURT REPORTS— NEW SERIES. 457
1910.] Hamilton Ck)unty.
AS TO INTERROGATORIES FOR DISCOVERY OF
ADDITIONAL PARTIES.
Circuit Court of Hamilton County.
Charles i\I. Stanley v. I. M. Mabtin.*
Decided, December 24, 1909.
Final Order — Sustaining of Demurrer to Interrogatories is not. When —
Proceedings for Disclosure of Unknown Parties — Breach of Con-
tract—Error—Sections 5099 and 6707,
Where a petition declares against a single defendant, but alleges that
the plaintiff was given to understand that the defendant was acting
as agent or manager for others who were interested in the profits
of the enterprise, the sustaining of a demurrer to interrrogatories
attached to the petition wherein a disclosure was sought of the
names of such unknown parties, does not constitute a final order,
and error proceedings based on the sustaining of the demurrer will
be stricken from the files.
Hosea iSt Knight, for plaintiff in error.
Pogue & Pogue, contra.
Smith, J. ; Gipfen, P. J., and Swing, J., concur.
Plaintiff in error filed his petition in the court of common
pleas, alleging that he entered into a contract with the defend-
ant in error, as general manager of Chester Park, Winton Place,
in this county, to furnish, maintain and exhibit daily a sub-
marine boat for a period of seventeen weeks, commencing May
9, 1908, or longer at the option of the defendant in error, for
which defendant in error agreed to pay him the sum of forty
dollars weekly, and that the contract was in writing, signed by
the parties. A copy was attached to his petition. He further
alleged that on the 13th day of June, 1908, defendant in error
ordered him to cease further performances, and compelled him
to remove his apparatus, and that there is due him on such con-
tract the sum of $480, for which he asks judgment.
The petition also alleges that plaintiff in error was given to
understand that the defendant in error was acting not only in
• For decision below, see Stanley v. Martin, i) O. L. R., (V2H.
458 CIRCUIT COURT REPORTS— NEW SERIES.
Stanley v. Martin. [Vol. XII, N. S.
his own behalf but as agent and manager of others interested as
owners of said park or in the profits arising therefrom, whose
identity was not disclosed to plaintiff but whose names plaintiff
asks leave to add to the petition as defendants when ascertained.
Plaintiff in error also annexed interrogatories to his petition
which he asked to have answered by defendant in error under
oath.
To these interrogatories plaintiff in error demurred, which de-
murrer was sustained by the trial court. No further proceedings
were had in the court below, and error is prosecuted to this
court to the sustaining of said demurrer.
Section 6707 defines a final order as "an order affecting a
substantial right in an action when said order in effect deter-
mines the action and prevents a judgment, and an order affecting
a substantial right made in a special proceeding or upon a sum-
mary application in an action after judgment."
The interrogatories are attached under Section 5099, Revised
Statutes, which permits a party to annex to his pleadings, other
than a demurrer, interrogatories pertinent to the issue made in
the pleadings, which interrogatories if not demurred to shall be
plainly and fully answered under oath by the party to whom
they are propounded.
It is evident, therefore, in determining this question, that we
must look to the petition, together with the interrogatories, to
ascertain whether or not the order sustaining the demurrer is
such an order as is contemplated under Section 6707. The pe-
tition declares upon an amount due under a written contract
entered into between plaintiff in error and defendant in error,
as general manager of Chester Park, and alleges that defendant
in error agreed to pay him a certain sum weekly during the life
of the contract. It further alleged a breach on the part of the
defendant in error, and claims there is due him on the contract a
certain sum of money. It nowhere -alleges that others than de-
fendant in error were interested in said contract, or that persons
other than defendant in error agreed to pay plaintiff in error,
or that others than the defendant in error committed a breach
of the contract. It nowhere alleges or sets up an action jointly
' against two or more defendants, which it is the duty of the plaint-
/'
CIRCUIT COURT REPORTS— NEW SERIES. 459
1910.] Hamilton County.
iff to allege and prove if lie wishes to maintain such an action.
French v. Construction Co., 76 0. S., 509.
In this state of the record we think the order of the court below
i.s not such a final order as affects a substantial right which deter-
mines the action and prevents a judgment, or is an order affect-
ing a substantial right made in a special proceeding.
In our opinion, the petition as it stands is one against the de-
fendant in error alone, and therefore, the order sustaining the
demurrer to the interrogatories on the ground that they are not
pertinent to the issue is merely an interlocutory one to which
error will not lie at this stage of the case. Armstrong, Receiver,
V. Eerancourt Breicing Company, 53 0. S., 467; Krause v. Stich-
tenoth, 15 C. C, 199;- Newhurg Petroleum v. Weare, 44 0. S.,
604; Longstreth v. Halsey, 4 C. C, 307.
The case at bar upon the record still stands in the court of
common pleas and plaintiff in error's action may be proceeded
with there against defendant in error.
An order may be taken striking the error proceedings from the
files.
DUKATION OF CONTRACT OF EMPLOYMENT.
Circuit Court of Hamilton County.
The Louis Lipp Company v. Wm. H. Pennell.
Decided, December 4, 1909.
Employment — Breach of Contract for — Construction of Agreement —
Words and Phrases.
The contract of employment relied upon In this case was for a term
of at least one year.
Cobb, Howard & Bailey, for plaintiff in error.
Pogue & Pogue, contra.
GiFPEN, P. J. ; Smith, J., and SwiKg, J., concur.
The defendant in error, a traveling salesman, was employed by
the plaintiff in error by written proposal and acceptance as fol-
lows :
4&) CIRCUIT COURT REPORTS— NEW SERIES.
Transit Co. ▼. Beeman. * [VoL XII, N. S.
*'I am willing to start in with you at $2,200 for the first year,
and I will guarantee you will not lose by it.V
Answer: ''We are willing to try the proposition you make
u>s and would ask you to make arrangements to start July 1st. ' '
The salesman evidently expected the employment to continue
for a longer period than one year; biit the proposal is limited
to one year ''at $2,200." The word "at" is suitable to express
"value" as well as "rate," and was so used, we think, in this
case. If any emphasis is to be given the verb "to try" it must
be applied to the period mentioned in the proposal, to-wit, the
first year.
Both parties evidently regarded the trial period as one year,
the salesman offering to start in for one year at $2,200 and the
employer agreeing to try him for that period.
Our conclusion is that the contract was for at least a year's
service. Of course this did not prevent his discharge for good
cause ; but the jury has found against the plaintiff in error upon
that issue.
The court did not err in refusing the third special instruction
requested by defendant.
Finding no error of record the judgment is affirmed.
CONTROL OP INTANCIBLE PROPERTY BY INJUNCTION
AGAINST ITS CUSTODIAN.
Circuit Court of Cuyahoga County.
■
The Cleveland and Buffaix) Transit Company v. Kathryn
L. Beeman, and Five Other Cases. *
Decided, May 10, 1909.
Alimony — Service on Defendant by Publication — Order th<U Corporate
Stocks be Transferred to Plaintiffs-Corporation the Custodian of
Its Stock — Situs of the Corporation is Situs of Its Stock,
1. An injunction against a custodian of intangible property gives to
the court such control of the property as authorizes a decree trans-
ferring the title from the owner of the property before the injunc-
* Affirmed by the Supreme Court without report (on the authority of
Benner v. Benner, 63 Ohio St., 220), 81 Ohio St., - — .
r- ,
CIRCUIT COURT REPORTS— NEW SERIES. 461
1910.] Cuyahoga County.
tion issued to another party to the suit who has been duly served
with summons.
2. In an action by a wife for alimony, the fact that the husband was
served by publication only does not render invalid an order award-
ing to the wife stocks in corporations for profit which have been
brought into the action as defendants and enjoined against a trans-
fer of the stock.
Goidder, Holding (t Mast en, for plaintiffs in error.
C L. Shaw, contra.
^Marvin, J.; Henry, J., and Winch, J., concur.
Error to the Court of Common Pleas.
This case (No. 4258), together with the cases following up to
and including number 4263, all raise the same questions and the
determination of one is the determination of all.
Suit was brought in the court of common pleas by Kathryn L.
Beeman against her husband, Lester A. Beeman, for a divorce
and alimony. Later, the prayer for divorce was abandoned and
the case prosecuted for alimony alone. The defendant in that
action, Lester A. Beeman, was a * non-resident of the state of
Ohio at the time the action Was begun, and the only service had
upon him was the constructive service by publication as pro-
vided for in the statute.
Each of the several plaintiffs in error in these cases is a corpo-
ration for profit. When the suit was begun in the court of com-
mon pleas, Lester A. Beeman was a stockholder in each of these
corporations, and each of the corporations was made a defend-
ant in that action, and each was served with summons.
On the motion of the plaintiff in that action a restraining or-
der was allowed against each of these corporations, forbidding
the transfer of any of the stock standing in the name of Lester
A. Beeman, on their books, to any person. Upon final hearing
the court awarded all of the stock standing in the name of
Lester A. Beeman in these several corporations to Kathryn L.
Beeman, as alimony, and ordered each of said corporations to
deliver to the said Kathryn L. Beeman the original certificates
for such stock, and in case of the inability of said corporations, or
any one of them, or the refusal of any one of them to deliver
such certificates, that the decree of the court should operate as
4«2 CIRCUIT COURT REPORTS— NEW SERIES.
Transit Co. ▼. Beeman. IVoLXII.K. S.
a conveyance of the several shares of stock in each of the corpo-
rations to the said Kathryn L. Beeman. To this judgment and
order of the court error is prosecuted here, and a carefully pre-
pared brief is furnished in behalf of the several plaintiifs in
error, contending that the judgment was erroneous, and giving
many plausible reasons for such contention. But whatever
doubt migbt exist in our minds (were it not for the ease of
Benner v. Benner, 63 Ohio St., 220) is resolved by the judg-
ment in that case in favor of the defendant in error.
The argument in brief on behalf of Ihe piaintilf in error is
that as no personal service was made upon the defendant, Lester
A. Beeman, no personal judgment could be rendered against him
for alimony, and that the only way in which, in such case, his
property could be reached is by such proceedings as puts the
property in the custody of the court, and makes the case to that
extent a proceeding in rem only, and that an injunction allowed
against the custodian of such property (for the several corpora-
tions are the custodians of the stock of the several stockholders,
see Ba7ik v. Towle Mfg. Co., 67 Ohio St., 306), is not such taking
of the property by th'e court as will authorize a decree that the
ownership of the property be transferred from the owner of said
stock before the injunction, to another party in the suit.
In the case of Benner v. Benner, supra, nothing was done to
take the property of the defendant in that action into the custody
of the court except the allowance of an injunction against the
defendant prohibiting him from disposing of his property. The
defendant in that action was a non-resident and there was no
service other than constructive service by publication upoH him.
No injunction was allowed against anybody but him. True, the
property there was real estate situated within the jurisdiction
of the court. Here the property is intangible, but it has a
situs and that situs is where the custodian of the property is,
to-wit, the corporation. See the opinion in Bank v. Mfg, Co., 67
Ohio St., 314, supra.
The distinction between the case of Benner v. Benner, supra,
and the present case, sought to be shown in the brief of plaint-
iflPs in error, fails to convince us that the principle in that case
must not apply to this. Indeed, the reason for its application
here seems stronger than its application in that case, for each of
CIRCUIT COURT REPORTS— NEW SERIES. 468
1910.1 Hamilton County.
the parties here enjoined by the order of the court was actually
served with summons in the action, while the property was in
the possession and under the control of the corporations, and we
reach the conclusion, therefore, that the judgment of the court
of common pleas was right and in each of the several cases the
judgment is aflSrmed.
AS TO CORRECTION OP VERDICTS.
Circuit Court of Hamilton County.
Frederick W. Xiebung v. Walter Laidlaw et al.
Decided, November 27, 1909.
Interest — Trial Court Without Authority to Add to Verdict — Where no
Allowance of has been Made by the Jury — Authority to Correct
Verdicts— Sections 5198, 5199 and 5203.
1. Where a Jury in returning a verdict fails to include interest as
prayed for in the petition, it is error for the court in entering judg-
ment to include interest upon the verdict.
2. Where no other error appears, a reviewing court will in such a
case modify the Judgment as entered by deducting the interest
added thereto.
Paxton, Warrington & Seasongood, for plaintiff in error.
Moulinier, Bettman <fe Hunt, contra.
The plaintiflE sued for a balance of $639.45, due for services
and expenses in connection with an arbitration. The jury re-
turned a verdict for the amount claimed, but failed to compute
interest thereon. In entering judgment on the verdict the court
below added interest.
Smith, J. ; Gifpen, P. J., and Swing, J., concur.
In view of our statutes relative to the correction of verdicts,
we are inclined to the opinion that it was error of the trial court
in rendering judgment for defendants in error to include in the
judgment interest upon the verdict when the same was not re-
turned by the jury in its verdict.
Section 5198 provides that if the verdict is defective in matter
of substance the jury must be sent out again for further delibera-
tion.
464 CIRCUIT COURT REPORTS— NEW SERIES.
Niebling v. Laidlaw. [Vol. XII. N. S.
Section 5199 provides that if the verdict be defective in form
only, it may, with assent of the jurors, before thej' are discharged,
be corrected bv the court.
Section 5203 provides that when, by the verdict, either party
is entitled to recover money of the adverse party, the jury, in its
verdict, must assess the amount of recovery.
While it is true the petition asks for interest from a certain
date, yet under the last section it was the duty of the jury to as-
sess the amount of recovery if it found that the defendants in
error were entitled to recover money from the plaintiff in error.
Besides if there was a mistake in the amount assessed by the
jury, and thereby the verdict was defective in matter of sub-
stance, then the jury should have been sent out again for fur-
ther deliberation.
The verdict is not defective in form and on its face neither is
it defective in substance, for the jury being the only one to as-
sess the amount of recovery it might weU find that the party
should not be allowed interest.
In the case of Fries v. Mack, 37 0. S., 52, it is held that,
** Where an issue of fact is submitted to a jury and by their ver-
dict they find for the plaintiff or defendant such verdict is to be
regarded as a finding upon the issue joined between the parties."
In the case at bar the jury did so find assessing the amount due
from plaintiff in error and it w^as the duty of the court in ren-
dering judgment thereon to look alone to the verdict.
As it is stated in the case of Claiborne v. Tanner, 18 Tex., 68 :
** There can be no clearer principle than that: 'Where a jury
has intervened, and all the issues have been submitted to their
decision, their verdict must constitute the basis of the judg-
ment. The court can not look to the evidence on which the ver-
dict is found, in order to determine what judgment to render,
but must look alone to the verdict. ' ' '
In view of the foregoing, therefore, the case having been fully
heard and considered and the only error or mistake arising is in
the entering of the judgment, the same is hereby modified to the
extent of reducing said judgment to the amount found due in
the verdict of the jury.
CIRCUIT COURT REPORTS— NEW SERIES. 465
1910.] Franklin County.
CONSTRUCTION OF A COAL MINING CONTRACT.
Circuit Court of Franklin County.
The New Pittsburg Coal Co. v. The New York Coal Co.
Decided, February 1, 1910.
Mines and Mining — Lease of Coal Mining Rights — Action for Recovery
of Minimum Royalties — Construction of Contract as to Minimum
Tonnage and Royalties — Causes Interfering with Mining Opera-
tions— Meaning of the Word **Impos8ihle" and **Causes Beyond
Control" as Used in Contract — Retention of Possession — Burden
of Proof — Evidence as to Practical Construction Placed on Con-
tract by the Parties Themselves,
1. A coal mining contract, after providing that the lessee should
remove a specified annual minimum quantity of lump coal and
pay a royalty thereon to the first party at the rate of ten
cents per ton, also provided that in case the lessee shall neg-
lect or fail from any cause, except as thereinafter provided, to
mine and remove the specified minimum he should, at the end of
each year, account for and pay to the lessor such portion of the
royalty per ton that would then be due had the specified mini-
mum tonnage been actually mined and removed. These provisions
of the contract were followed by the exception: "In case and so
long as it shall be impossible to mine and remove said amount by
reason of strikes, lockouts, fires, floods or any other cause beyond
the control of the second party (lessee), lack of transportation
facilities excepted, the said minimum shall not apply." Held:
(a) The covenants to mine and remove a minimum tonnage and
to pay a minimum royalty, were not absolute.
(6) The clause, "or any other cause beyond the control of the sec-
ond party," should not be limited by the rules nosdtur a sociis
or ejusdum generis to either temporary causes and disturbances
interfering with the mining and removal of the coal, or to
causes kindred to or of the same class as those specifically enum-
erated, but should be construed in its popular acceptation so as
to embrace any other cause beyond the control of the lessee
not attributable to its fault,
(c) The word "impossible," as used in said contract, does not mean
absolute physical impossibility, but should be construed in a
business sense; and the mining and removing of the minimum
tonnage is "impossible" when it appears that, on account of
causes and natural disturbances not attributable to the fault of
466 CIRCUIT COURT REPORTS— NEW SERIES.
Coal Co. V. Coal Co. [VoL XII, N. S.
the lessee, it can not be mined and removed without resort-
ing to unreasonable or extraordinary expense or the employ-
ment of unusual and extraordinary means.
id) In determining the question whether or not the second party
was prevented by "causes beyond its control" from mining and
removing the minimum tonnage, evidence is competent which
tends to show the tonnage capacity of the different mines, the
physical condition of the property, the refusal of the miners to
work in any of the mines and the cause thereof, the ability of
the lessee to mine the minimum tonnage, the condition of
the unmined area, any strike in any of the mines affected by
the contract, and the expense incurred or means employed in an
effort to produce the minimum; and the question of impossibility
of mining and removing the minimum tonnage under the saving
clause of the lease in case of doubt or conflict In the evidence
is one of fact to be submitted to the jury.
(e) Retention of possession by the lessee without mining and re-
moving the minimum tonnage, if possible from causes beyond
it control, is not suflicient to render it liable for the minimum
royalty.
(/) The burden of proof is upon the lessee to show that It was
prevented from mining and removing the minimum tonnage
on account of causes beyond its control.
2. Evidence showing the practical construction which either party has
placed upon a coal mining contract and the acquiescence therein
by the other party, may be considered for the purpose of aiding in
its proper construction.
Arnold, Morton & Irviiie, Q. B, Lane and jR. J. Odell, for
plaintiff in error.
Add, son, Sinks & Babcock, Booth, Keating, Peters & Pomer-
cue and F. K. Pendleton, contra.
Allread, J.; Sullivan, J., and Dustin, J., concur.
This action in the court below was brought by the New York
Coal Company against the New Pittsburg Coal Company to re-
cover the balance of the minimum royalty, after deducting the
amount of coal actually mined for the years ending June 30th,
1908, 1904, 1905, and for the months of July, August and Sep-
tember of the year 1905, under a lease executed by the New
York Coal Company in the year 1894 to Robert Stalter, and
assigned successively with the consent of the New York Coal
Company to the Stalter Coal Company and the New Pittsburg
CIRCUIT COURT REPORTS— NEW SERIES. 467
1910.] Franklin County.
Coal Company, the latter being the lessee during the period of
liability. The plaintiff below recovered a verdict and judg-
ment for the full amount claimed, to-wit, $14,396.14. This judg-
ment is sought to be reviewed by proceedings in error in this
court.
It is admitted by the answer that the lessee was operating
the mines covered by the lease during the period for which
recovery is sought, and in a previous answer it was admitted
that the lessee was in possession during the period named. It
is not very material whether we accept the qualified admission
of the last answer or that of the former answer. The liability
must be determined by the written contract. The rental con-
tract, by its terms, continues "until all the coal has been removed
from the said aforementioned property as herein provided,"
and stipulates that the minimum royaHy shall be in force '* until
all the coal in, upon or under said land has been fully and en-
tirely removed therefrom, including all pillars, supports and
stumps, which shall be withdrawn and taken out."
The lessee being in possession and operating the mines dur-
ing the period of alleged liability, it may be taken as conceded
for the purposes of the present case that the lease was still in
operation and effect. Whether the lessee might not have aban-
doned the premises when the coal was so far exhausted as to be
incapable of practical operation is not involved in the present
case. The whole contract must, therefore, be read and con-
strued to determine the rental or royalty liability, as applied to
the state of facts presented here in connection with the defense
offered in the court below.
It may be noted incidentally that the lease was of the right
and privilege to prospect for and mine coal and to remove
timber for mining purposes; otherwise the possession remained
in the lessor. Clauses and covenants are found providing for
economical operation of the coal mine so as to yield the greatest
possible amount of coal, and a royalty for all coal removed, to-
gether with a minimum liability. There is a further proviso
for an increase in the royalty according to the current rate
ia the Hocking valley. The clause which is specially involved is
468 CIRCUIT COURT REPORTS— NEW SERIES.
Coal Co. V. Coal Co. [Vol. XII, N. S.
that relating to the agreement of the lessee to pay the minimum,
and the exception, which is as follows:
**And if said second party (lessee) shall neglect or fail from
any cause except as hereinafter provided to so mine and re-
move the said minimum of thirty thousand tons between July
1st, 1894, and July 1st, 1895, or said minimum of sixty thou-
sand tons during each and every year thereafter, or said mini-
mum of thirty-five hundred tons during any month thereafter,
he shall at the end of such year or month account for and pay
to the first party such portion of the royalty per ton aforesaid
that would then be due if said number of tons had been actually
80 mined and removed.
**It is hereby understood and agreed by and between the
parties hereto that in case and so long as it shall be impossible to
mine and remove said amount by reason of strikes, lockout, fires,
floods or any other cause beyond the control of the second
party, lack of transportation facilities excepted, the said mini-
mum shall not apply.
>>
We think that this lease, so far as the royalty or rental is
concerned, may be held to be a royalty contract, with a reserva-
tion of dead rent as a spur to diligence and to secure to the
lessor the largest possible returns. The royalty feature of the
contract is predominant. The extreme care in providing for
the economical operation of the mine, the supervision and con-
trol of the lessor's engineer in mining operations, and the provi-
sion for the increase of the royalty from time to time up to the
general current rate in the Hocking Valley, indicate that the
central idea of the contracting parties was the payment of the'
tonnage royalty and the provision for dead rent was to secure
the lessor against neglect or lack of diligence on the part of the
lessee.
Counsel have been diligent in the citation of cases involving
mining leases. These cases are by no means in harmony, but
from them may be deduced a principle of construction sup-
ported at least by the weight of authorities that where a mini-
mum royalty or dead rent is reserved without exception, the
lessee is bound, except in cases where there is no minable coal
or where it has become exhausted. Where merely the* quantity
of minable coal or the expense of mining is involved, the courts
CIRCUIT COURT REPORTS— NEW SERIES. 469
1910.] Franklin County.
do not as a general rule relieve the lessee from his agreement
as to the minimum, so that we think it may be taken here as an
established proposition that if there had not been inserted an
exception in favor of the lessee in the leasing contract, its lia-
bility for the minimum could not be successfully assailed.
We are, therefore, brought to a reading and construction of
the exception or saving clause in favor of the lessee. The de-
fense set forth in the answer and offered upon the trial consists
of a showing that by reason of the exhaustion of the coal in the
main mine upon what is known as the West Hill and of the small
mine upon the east part of the East Hill, and by reason of the
dangerous natural formation of »the roof of the coal mine in the
main part of the East Hill, and of the refusal of the workmen
to operate the East Hill, the lessee was prevented from mining
the minimum or a greater quantity of coal during the period
of liability than was actually mined and paid for. The ques-
tion, therefore, is whether this defense so stated in substance is
within the saving clause of the rental contract.
The learned judge of the trial court limited the clause **0r
any other cause beyond the control of the second party" by the
well known principle ot noscitur a sociis and ejusdem generis,
and was of the opinion that the specific causes related to tem-
porary disturbances, and that, therefore, **any other causes"
must be one similar to those specifically named. The view so
taken is not without plausibility, and support, but upon careful
examination of the authorities in connection with the scope of
this lease, we are inclined to a more liberal and broader inter-
pretation. The doctrine of ejusdem generis is never an abso-
solute rule of construction, but a mere suggestion in connection
with the scope of the instrument to be interpreted. We may as
fairly invoke the doctrine of expressio unius est exclusio alterius,
and hold that the one exception excluded all others, but the
central idea of the construction of a written contract is to apply
all the aids and suggestions of the rules of construction toward
the ascertainment of the intent of the parties which is to con-
trol. Now, having in view the main scope of this contract as
heretofore expressed, the saving clause, we think should be liber-
470 CIRCUIT COURT REPORTS— NEW SERIES.
Coal Co. V. Coal Co. [VoL XII, N. S.
ally construed to effectuate the apparent intention of the par-
ties so as to hold the lessee to a high degree of diligence, but
not absolutely. The exception, therefore, "any other cause
beyond the control of the second party" should be constructed in
its popular acceptation, and held to save the lessee as against
the failure to mine the minimum for any other cause beyond his
control or not arising in or attributable to his fault. Such con-
struction accomplished the manifest intention of the parties;
secures a high degree of diligence ; further the economical opera-
tion of the mines until the coal is finally exhausted; and re-
lieves the lessee from consequences beyond his control. The
view of the court is not without authority.
In the recent case of Wilson v. The Big Joe Block Coal Com-
pajiy, 134 la., 594, and finally decided in 119 N. W. Rep., 604,
where the mining lease in controversy provided for a minimum
liability, with a saving clause in case the lessees ''are prevented
from taking out said coal on account of any matters that they
can not avoid, then they shall not be required to take out any
certain amount of ooal or pay for any amount not taken out,"
it was held that the lessees were relieved from the minimum
where, by reason of faults in the coal deposits, the mine could
not be profitably operated.
Weaver, C. J. in the opinion holds:
' * The saving clause of the lease by which the lessee was to be
relieved from the payment of royalty when prevented from tak-
ing out coal on account of matters which it could not avoid
must be given a reasonable construction."
It is true in this case there was no specific causes named, and
therefore, the doctrine of ejusdem generis may not be said to be
involved, but the decision sustains the view that the saving
clause in the lease is to be reasonably construed and applied to
any condition that prevents the profitable mining of the coal.
In the case of Givens v. The Coal Company, 60 S. W., 304
(Ky.), a mining lease was under consideration in which a mini-
mum was stipulated for, with the provision excusing the mini-
mum when the lessee was prevented therefrom "'by any acci-
CIRCUIT COURT REPORTS— NEW SERIES/ 471
1910.] Franklin County.
dent or casualities without fault on his part or by accident or
circumstances not under his control.*' And the saving clause
was applied in favor of the lessee where the coal mined was so
inferior as to make it unsalable in the market.
The case of Robinson v. Kistler, 62 W. Va., 489, involved a
mining lease providing for a minimum royalty with an excep-
tion in favor of the lessee '*in case of strikes, accidents or any
cause of stoppage of transportation over which the second party
(lessee) has no control, and he is disabled or prohibited thereby
from mining or shipping coal from the said mine, then the
minimum royalty as above specified is to be suspended for the
period of such disability;*' and this exception was construed to
include lack of cars.
The opinion, however, sheds light upon the construction of
the general words **any cause beyond control," etc., in which is
found the following:
''The words of a contract will be given a reasonable construc-
tion if possible rather than an unreasonable one. These words
'over which the second party has no control' are simply another
way we have of saying almost every day in making contracts,
'for which the second party is not to blame,' or 'without the
fault of the party of the second part.' The word 'control' has
no legal or technical meaning distinct from that given in its
popular acceptation."
In the case of Bannon v. Graeff, 186 Pa. St., 648, where the
mining lease provided for a minimum to be mined and paid for
by the lessee, "unless prevented from doing so by an unavoidable
accident or occurrence beyond their control," it was held that
the exhaustion of the coal or other physical conditions so that
the available or workable coal was exhausted, relieved the lessee.
A number of cases are cited by counsel for defendant in error,
but in all the cases cited, save one, there was an absolute stipu-
lation for the minimum, and no saving clause in favor of the
lessee, the only exception being the case of Berwind-White Coal
Mining Co. v. Martin, 124 Fed. Rep., 313, decided by the Cir-
cuit Court of Appeals, and in which a writ of review was denied
by the Supreme Court of the United States, 191 U. S., 569.
472 CIRCUIT COURT REPORTS— NEW SERIES.
Coal Co. V. Coal Co. [Vol. XII, N. S.
The only report of the case is, therefore, found in the Circuit
Court of Appeals.
The majority opinion in this case refers to the minimum clause
in the contract in connection with the statement that the mining
operation had been abandoned during the first year, and holds
the lessee liable for the minimiim during the years stipulated
for in the lease. No grounds of abandonment are stated in the
prevailing opinion. So far as that opinion is concerned, the
lessees appeared to have abandoned the lease without any cause
and expected to defeat the royalty upon the ground that all the
ooal was still in place in the mine. This defense was not sus-
tained, and the minimum liability was enforced.
In the dissenting opinion, however, the saving clause is set
out and relied upon to support the dissent. In the statement of
facts found in the dissenting opinion, it appears that the lessees,
after mining some coal the first year and prospecting in the
vein and finding troubles and faults which indicated to them
that the mine was not profitable, abandoned the lease. The
lessors thereupon took possession, and about the end of the first
year, after exploring the veins, found the existence of profitable
coal, and so notified the lessees, insisting upon their complying
with their lease. The statement of facts even in the dissenting
opinion does not bring the case within the exception for the rea-
son that ample minable coal existed in the lease, but the lessees
had not gone to the trouble of sufficiently exploring the vein so
as to discover it. The failure, therefore, to mine was due in
some measure to the fault of the lessees.
While the authority of a decision of the Supreme Court of the
United States would be sufficient to override the cases hereto-
fore cited, still it does not sufficiently appear that the Supreme
Court of the United States or even the Circuit Court of Appeals
passed upon a case where the controlling facts are similar to the
case at bar.
Another feature of this case which adds to the preponderance
in favor of the construction given is that it accords with that of
the parties during the period for which the action is brought.
The operation of the mines was under the direction in a meas-
CIRCUIT COURT REPORTS-NEW SERIES. 478
1910.] Franklin County.
ure of the engineer of the lessor and it does not appear that he
ever objected to the manner in which the mines were worked
or that the company ever made any claim during that period
to the enforcement of the minimum clause. While the course
of the lessor can not be said to be an estoppel, yet it operates
favorably to the lessee in the construction of the lease.
It is urged that the lessee, being in possession and relieved
from the minimum, might hold possession for an indefinite time,
and use the property in connection with other mining properties
and prevent the lessor from operating it. This argument would
be most persuasive if the court were making a new contract, but
it is a sufficient reply to say that we are only construing reason-
ably and in harmony with the intention of the parties a con-
tract already made.
We are, therefore, of the opinion that the defendant below
should have been permitted to show the tonnage capacity of the
mines in the West Hill and in the east part of the East Hill, if
any were still being operated, during the period named, when
operated by the most efficient machinery in general use or that
approved by the engineer in charge and when operated up to the
full capacity, both as to machinery and available men, and to
show the physical condition of the mines in the East Hill, the
objection of the workmen to operating therein, and the ability
of the lessees to mine coal therefrom, as well as the prospect in
the unmined area, as affecting the possibility of putting out the
minimum provided for in the lease. Also it was proper to show,
as reflecting to that extent, any general strike, in all the mines
affected by this contract. Assuming that the defendant could
produce the testimony proposed in its defense, we think it is a
question for the jury to decide as to the impossibility of mining
the minimum amount arising from any cause beyond the con-
trol of the lessee.
The word ''impossible*' as used in the contract must be con-
strued in a business sense, and would relieve the lessee from the
minimum where by reason of causes beyond his control the
minimum could not be mined without resorting to unreasonable
or extraordinary expenses or the employment of unusual and
extraordinary means.
474 CIRCUIT COURT REPORTS— NEW SERIES. '
Coal Co. V. Coal Co. [Vol. XII, N. 3.
For the refusal of the trial oourt to admit the evidence of the
character stated proposed by the defendant below in its defense,
the judgment is reversed.
The defendant in the court below objected to the ruling of
the trial court upon the burden of proof as to the exception or
saving clause. In the amended petition the plaintiflE negatived
the <5onditions required by the exception or saving clause. This
was put in issue by the general denial. The form of the plead-
ing, however, is not controlling. In the case of The Brick Co. v.
Pond, 38 0. S., 65, and Cooke v. A7idrews, 36 0. S., 178, it was
held that the burden was upon the defendant to prove the ex-
ception. It is contended, however, that the facts here are dif-
ferent, inasmuch as the lessor had inspectors and engiileers in
charge of the work. We think, however, that the provisions of
this lease in that respect do not call for a contrary decision.
While the lessor had engineers supervising the work, yet the
lessee was bound under the contract to explore for coal in the
unmined area. He, therefore, had the means of knowing
whether minable coal could be found, and to shift the burden
of proof to the plaintiff would require it not only to be familiar
with the workings of the coal mine where in operation, but to
explore in the unmined sections. Williams, J., in the case of
Moody V. Insurance Co., 52 0. S., 12, amply sustains the ruling
of the trial court as to burden of proof. And as to this principle
is not affected by Insurance Co. v. Werner, 76 0. S., 543, as we
read the latter case. There was, therefore, no error prejudicial
to the defendant below in the rulings of the court up to the open-
ing of the defendant's case.
The judgment will, therefore, be reversed for the reasons
stated in the opinion, and the cause remanded for a new trial.
CIRCUIT COURT REPORTS— NEW SERIES. 475
1910.] Wood County.
CONTRACT rOR SALE OF PETROLEUM PRODUCTS.
Circuit Court of Wood County.
Ruth M. MiLiiER v. T. J. Vandergript and the Ohio Oil
Co. ET AL.
Decided, 1892.
Ons and Oil Lease Construed — Held to Have Been in Effect a Sale of
Petroleum Products — Effect of Temporary Provision for Gas for
Lessor^s Use, and of Extension of Time for Opening a Well,
1. The acceptance and use of gas by a lessor for lighting and heating
purposes, supplied by a gas company and paid for by lessees, in
consideration for which the lessees are granted an extension of
time to open a well producing oil and gas, which, by reason of
the intermingling of the oil and for want of marketable facilities
for the oil, was unprofitable to operate for either oil or gas, neither
extends the terms of the lease nor waives conditions of forfeiture
for noncompliance therewith, especially after the expiration of the
term contracted for and in the absence of a well profitably pro-
ducing either gas or oil; and the lessor is not required to directly
notify lessees to shut off the gas from the house after giving gen-
eral notice of the expiration of the lease.
2. A contract to drill and operate oil and gas wells for a royalty or
fixed compensation for the gas or oil produced, with time limit
within which wells are to be completed and extentions of the term
granted in case profitable wells are developed, and upon failure to
complete wells within stipulated periods subject to rental at a
stipulated sum per acre or forfeiture of lease of lands for the term,
is not a lease within the Ordinary acceptation of the term but U
a sale of petrolium products.
SCRIBNER, BeNTLEY AND HaYNES, JJ.
Per Curiam.
This is an action regarding a so-called oil lease, or gas con-
tract. The petition recites that . Mrs. Miller is the owner of
certain lands in this county, and July 29, 1886, entered into a
contract with one T. J. Vandergrift regarding the production
and disposition of the oil and gas under the lands.
The general nature of the oil and gas leases, as they are gen-
erally called, has been indicated by this court so many times.
476 CIRCUIT COURT REPORTS— NEW SERIES.
Miller t. Vandergrift et al. [VoL XII, N. S.
that we will not now repeat our views on that subject. It is
suflScient to say that we regard them as not leases in the ordi-
nary acceptation of the term, but as a sale of the oil and gas un-
der certain stipulations and provisions embodied under a con-
tract.
This contract provides in the forepart of it as follows:
**That the said party of the first part for the consideration
of the covenants and agreements hereinafter mentioned, has
granted, demised and let unto the party of the second part, his
heirs or assigns, for the purpose and with the exclusive right
of drilling and operating for petroleum and gas, all that certain
tract of land. (Here follows a description of lands.) The fol-
lowing clause also gives the party of the second part the right
of using sufficient water for their operations upon said land;
the right to lay pipes and convey oil and gas, and the right t^
remove any machinery or fixtures, on said premises for, and
during the term of three years from the date hereof and as much
longer as oil or gas is found in paying quantities thereon."
The next clause provides for the payment of, and delivery to
the party of the first part, a certain share of the oil which shall
be found on the premises, which is to be delivered to her free
of expense into tanks or pipe lines to the credit of the first
party, and should gas be found in sufficient quantities to justify
marketing the same, the consideration in full to the party of the
first part, shall l>e $300 per annum for the gas from each well
so long as it shall be sold therefrom.
It is further agreed that the party of the second part shall
complete a well on the above described premises within six
months from the date hereof, and in case of failure to complete
such well within such time, the party of the second part agrees
to pay to the party of the first part for such delay, a yearly
rental of one dollar per acre on the premises herein leased from
the expiration of said six months until such well shall be com-
pleted; the said yearly rental amounting to $80 shall be depos-
ited to the credit of the party of the first part in the Farmer's
National Bank in Findlay, or be paid direct to the first party.
And a failure to complete such well or to make such deposit or
payment as above mentioned, shall render this lease null and
void and to remain without effect between the parties hereto. *
CIRCUIT COURT REPORTS— NEW SERIES. 47T
1910.] Wood County.
The next clause provides for the damages to growing crops or
timber, and the next clause is as follows :
**The party of the first part shall locate the first well. After
the completion of the first well, no further operation to sink a
second well for six months thereafter, shall render this lease null
and void."
The petition avers that the Ohio Oil Company claims the
title which was originally granted to Vandergrift by a certain
assignment, but for certain reasons, the assignment is of no
effect and the Ohio Oil Company really has no such right as it
claims.
The petition alleges that a well was completed on the premises
within one year from the date of the contract — not within six
months as provided, but within one year. The petition also
states that the term of three years has fully expired, and neither
gas nor oil is now being produced or found in paying quanti-
ties or in any quantity whatever on said lands, and neither has
oil or gas been found' or produced in any quantity whatever on
said premises by the defendants or either of them, at any time
since the completion of said first well. The said first well was
completed within one year after the date of said lease, yet
neither said lessee nor any of said defendants have commenced
operations to sink a second well on said premises and that by
reason of this failure the lease and contract have become null
and void. The petition further avers that the Ohio Oil Company
by its employes has entered upon said premises and placed
thereon certain timbers and machinery without any authority
or right whatever, and unless enjoined by this court will pro-
ceed to possess and occupy said lands to the great and irrepara-
ble damage and injury of said plaintiff, '*and the plaintiff prays
an injunction restraining the defendants and each of them from
asserting any further right, title or interest in said lands under
said contract, or from molesting or disturbing the plaintiff in the
free and uninterrupted use and possession of said lands them-
selves or by their employes, to erect derricks, plant machinery,
lay pipes or drill oil or gas wells, or commencing so to do under
said contract, and that on the final hearing of this cause, the
478 CIRCUIT COURT REPORTS— NEW SERIES.
Miller v. Vandergrift et al. [Vol. XII, N. S.
said written contract may be found, held and adjudicated to be
of no binding force or efficacy and that the same be declared to
be forfeited, annulled, canceled and held for naught and for all
proper relief."
The Ohio Oil Company filed an answer alleging the proper
transfer by T. J. Vandergrift to it of his rights under the said
contract and alleging that this company drilled a well upon the
premises at an expense to them of about $1,500. That at the
time this lease was completed and delivered and when the we'l
was being drilled, although it provides for both oil and gas,
neither party had any idea that any oil would be produced on
these premises; that really as the parties understood, gas and
gas alone, was expected, when to the surprise of all parties the
well proved to be an oil well. The answer does not allege
whether or not the well produced oil in paying quantities, but
alleges certain reasons to show that the marketing of the oil was
not convenient or practical at the time, that no pipe lines were
then within any reasonable distance, and that the parties could
not have operated the well with profit to either party; and then
follows this averment:
**That thereupon, by mutual agreement of the parties, the
lessees undertook for themselves and their assigns to supply,
and did supply, gas from the gas line of the North Western Ohio
Natural Gas Company io heat the dwelling-house of said plaint-
iff on said lands; that said lessees and their assigns have ever
since so furnished and are still furnishing gas at their own ex-
pense to her, in lieu of operating said well and of drilling a sec-
ond well on said lands within the time prescribed in the lease;
and that defendants at an expense to themselves of $116.10, and
without expense to plaintiff piped such gas from the gas line
aforesaid t-o plaintiff's dwelling-house and made the connec-
tions with her stoves therein; all of which she received as full
compensati(m for rental and delay in drilling said second well.
That until defendants began to furnish gas as aforesaid the cash
rental provided for in said lease was fully and promptly paid,"
And then proceeds to make certain allegations to show that the
failure to operate this well or to drill other wells, did not result
in actual harm to plaintiff as her lands are not drained; that
the price of oil has advanced since that time, and the plaintiff has
CIRCUIT COURT REPORTS— NEW SERIES. 479
1910.] Wood County.
lost nothing, but on the contrary has been the gainer by the
fact of said lands not being operated.
The answer also alleges:
'*That at the commencement of this action it was the pur-
pose and intention of defendants to operate said well and drill
and operate other wells on said lands, pursuant to and under
said lease, and that but for this injunction, additional wells
would now be completed and in operation on said lands, and the
plaintiff would be receiving her royalty on the production there-
of provided for in the said lease."
Now at the time this action was begun, July 14th, 1890, it will
be seen that the original three-year term of the lease had long
since expired; that if the lease were continued under this con-
tract, it would result from that clause in the lease which was to
extend it in case oil or gas is produced or found in paying quan-
tities thereon. Evidence was introduced by the defendant in
support of these allegations of its answer. Quite an amount of
evidence was introduced to indicate that, considering the wa\^
the parties were situated, the oil which this well would produce
could not be marketed so as to make it a paying thing either to
the company or to the plaintiff, and while the well did produce oil
and some gas, the amount was not more than about five to one
hundred and fifty barrels per day, and that the gas was so inter-
mingled with the oil, that as a gas well it would amount to noth-
ing, and that the pipe lines were so distant, that to market this
oil would not pay in the quantities produced by the well. It
was conceded by the plaintiff that in a general way, where there
were the usual facilities, a well producing this amount of oil
would be regarded as producing in paying quantities. It is con-
ceded by all that no second well was drilled or begun. When
this well came in, it was shut off and remained in that condition,
and in fact is in that condition now.
The main reliance of the defendant to sustain its position and
its rights to continue operations upon this land seems to arise
upon this alleged contract that was made regarding the use of
gas, and its true interpretation. The evidence shows this to have
been the arrangement : this well having been completed in April
480 CIRCUIT COURT REPORTS— NEW SERIES.
MUler V. Vandergrift et aL [VoL XII, N. S.
or May, 1887, in the fall of that year, the plaintiff getting no ad-
vantage from the well or the defendant either, and being anxious
to get gas to use in her house, made application, once by letter
and once after verbally, to the representative of the company
regarding the supplying her with gas, and told them that if they
would procure gas from the gas company's line that ran through
the neighborhood, and furnish her with gas for the house, she
would not hurry them in opening up that well. The testimony
upon the making of this arrangenment is not specially conflict-
ing. Arrangements were made with the gas line company
whereby that line was attached, at the expense of something over
$100, pipes laid to the plaintiff's house, and the gas turned on,
and she began using it. No bills for the use of that gas were
sent by any person to her and she paid nothing. She continued
to use it, and the defendant continued to pay the bills which
were rendered to it by the gas company for the gas, amounting
to something over $100 a year.
It is proof, however, that some time prior to the beginning of
this action, she caused the defendant company to be notified
that she regarded the lease as terminated and that they should
proceed to take their ''stuff" off the premises. There is a con-
flict in the testimony as to when this notice was given. It was
given, it seems to a Mr. Donnell, a representative of the defend-
ant company. He admits it was given, but the conflict is as to
the time. He says in his testimony it was only about sixty days
before the beginning of this action; on the other hand, the
plaintiff testifies that she instructed her Son, a young man about
twenty-eight years of age, to give this notice of her claim that
the lease was forfeited more than a year before the bginning
of this action, and her attention being called to some circum-
stances upon the day of these instructions to her son and her son 's
testimony as to the time, she gets at it in two or three different
ways all of which point to this item, so far as her testimony
goes. The young man to whom the instructions were given died
before the trial of the case in this court, and after the trial in
the common pleas court, and his evidence was read .before us.
In that testimony he says he received these instructions from his
mother a year before this suit was begun and that he notified Mr.
CIRCUIT COURT REPORTS— NEW SERIES. 481
1910.] Wood County.
Donnell a year before this action was begun; he repeated that
statement several times in his examination in chief. His cross-
examination is quite brief, but after making this statement it eon-
tains this, **The talk I had with Donnell was a little over a year
before they went on with their machinery; it was three years
and six months after the date of the lease." This last statement
would seem to apply to that notification, would seem to make the
notification somewhat less than a year before the beginning of
the action — six months perhaps — ^but from the testimony we
have to balance these probabilities, we think that this notice was
given about six months before the beginning of this action, and
the question remains, what was the consequence of this notice
under these circumstances?
It is to be remarked that the plaintiff never gave the defend-
ant any direct notice to shut off this gas, or that she would no
longer receive the gas; neither did she turn the gas off herself,
but simply gave this general notice that she regarded the lease
as having expired, and the defendants were ordered to take
their property off the premises. The defendant argues that as
long as she continued to use this gas and did not turn it off, and
did not notify them to turn it off, that she must be held notwith-
standing her general notice, as receiving the fruits of this con-
tract, and extension of the time provided for in the verbal
contract must be held as continuing as long as she is using the
gas. Well while the testimony does not indicate that she gave
any direct notice to the defendant to shut off this gas, yet her
general notice has, we think, covered this and was sufficient for
that purpose. When she notified them that the lease — ^the whole
contract under which they were operating — she considered as at
an end, and that they were required to take their property off
her premises, and did all those things, we think it was suffi-
cient notice to them to terminate everything under the contract.
Now there is no proof that she had any arrangement herself
with this gas company. She did not make the contract with
the gas company to have her house supplied with gas from it.
She did not order it turned on. The whole arrangement was
brought through the defendant's agents. It would not be ex-
482 CIRCUIT COURT REPORTS— NEW SERIES.
Miller v. Vandergrift et al. [Vol. XII, N. S.
pected that she would go to this gas company itself; but it would
be expected that she would apply to the defendant, its agent.
There is no proof that she, herself, could have turned this gas
off. We know something of the general nature of this gas, and
it does not appear, from the testimony at least, that she had any
facilities herself for turning it off, or that she could have done
so, and it would seem fairly to be implied, that as long as it was
delivered at her house to her stoves, she could not very well
make other arrangements for heat in place of the use of the gas,
and that as long as the defendant, with notice, allowed that gas
to be run into the house, she did not alter her position to them by
using it ; that unless they had made some contract by which she
was held bound to use this gas, this general notice of hers was
sufficient to terminate that arrangement.
It is conceded by the defendant that this arrangement re-
garding the use of the gas was in lieu of the rental and the
further operations under the !ea,se and drilling of another well,
etc. The testimony does not indicate that this was a fair in-
terpretation of this arrangement. If it was made in lieu of
rental, it would not be expected that the defendant would after-
wards pay rental in money, and yet it is substantially uncontra-
dicted that this arrangement was made in the fall, and that fol-
lowing that, a month or so, a rental of $80 was paid by the de-
fendant which would extend the matter a year, perhaps from
January, 1888, to 1889. The first rental seems to have been paid
according to the testimony, late in the fall of 1886, or probably
January, 1887, and the next rental in January, 1888. Now we
regard this arrangement as to furnishing gas as a sort of tem-
porary make-shift between the parties to extend the time for
the opening up of the well and the further proceedings under the
lease. That it was not in its nature terminated, or not to be ex-
tt»nded over a long period of time; that it was such an arrange-
ment that might be terminated by the parties at the end of any
•reasonable time. The c(mtract in this case was for gas and oil,
and it was understood that gas alone was expected. In case gas
had been found, then plaintiff would have received $300 per
year for each gas well drilled on the land. She had provided
CIRCUIT COURT REPORTS— NEW SERIES. 488
1910.] Hamilton County.
for two wells and she was getting no gas, and was getting no
revenue at all except the furnishing of gas to her house in this
way.
Now we think, to hold that, after she saw fit to terminate the
verbal arrangement by notice, these parties might omit to open
up that well or to drill another, would be doing violence to the
fair interpretation of that contract, and wouM result in unfair-
ness to her considering the contract she had made. We think
that when this notice came to these parties, it was incumbent
upon them to proceed, at least within a reasonable time, to go on
with this work — to finish the well and to drill the other well.
We think they wholly failed and omitted to do that for an unrea-
sonable length of time, and thsrt the plaintiff availed herself of
the right which she had to comence this action to terminate the
whole arrangement.
In that view of the case of course the plaintiff's petition must
be sustained, and the injunction which is prayed for by her
granted, and that will be the decree of this court ; and costs will
be awarded against the defendant as usually follows in such
cases.
AS TO AUTHORITY TO MAK£ CONTRACT FOR SALE
OP APPLES.
Circuit Court of Hamilton County.
Andrew G. Norman v. William H. Plumb.
Decided, January 29, 1910.
Agency — Contracts — Book Accounts — Determination by Jury wiil not
be 8et Aside, When— Section 5086,
1. The objection that cash items alone can not, without special au-
thority, be the subject of a book account is not well taken, where
the action is on a contract and there is an averment in the peti-
tion that the indebtedness arose "for money laid out and expended
and commissions in the purchase and sale of goods by the plaint-
iff for the defendant at his request."
484 CIRCUIT COURT REPORTS— NEW SERIES.
Norman v. Plumb. £VoL XII. N. S.
2. Where neither party to an action on an account has kept his books
in such a way as to strenghten his oral testimony, but the plaintiff
seems to have been a fair and candid witness, the finding of the
jury in his favor will not be disturbed.
Burch & Johnson, for plaintiff in error.
Kelley & Hauck, contra.
GiPPEN, P. J. ; Smith, J., and Swing, J., concur.
The petition in this case was not intended as a short form of
pleading under Section 5086, Revised Statutes, but contains an
averment of the contract upon which the indebtedness arose, to-
wit, '^for money laid out and expended and commissions in the
purchase and sale of goods by plaintiff"; and the objection that
cash items alone can not, without special authority, be the sub-
ject of a book account is not well taken.
The chief question in the case is whether one Eckenroth was
authorized, as agent of defendant, to make the contract with
plaintiff. The defendant admits that he was authorized to em-
ploy plaintiff at $2.50 per day to buy apples for the defendant.
This limitation upon the authority of the agent was not dis-
closed to the plaintiff, and his apparent authority was general
so far as it related to terms of employment in buying apples
through plaintiff in the state of New York and shipping them to
defendant in Cincinnati. The evidence shows that by the terms
of the contract made with the agent plaintiff was to receive ten
cents per barrel, not ftierely for handling the apples, but as a
factor, because the apples were purchased from a large number
of farmers by the plaintiff on his own account, although the
money was from time to time furnished by the defendant.
The defendant claims that he paid for about 1,000 barrels of
apples more than he received ; but he offered no book account or
other evidence to support the claim. Neither party kept his books
or accounts in such a way as would add to and strenghten his oral
statement, but the jury having found in favor of the plaintiff we
are not disposed to set the verdict aside upon the ground that it
is not sustained by suflBcient evidence, especially as the plaintiff
seems to have been a fair and candid witness.
CIRCUIT COURT REPORTS— NEW SERIES. 485
1910.] Hamilton County.
The letter marked ** Exhibit 12*' related to the condition of
the apples, the number of barrels sold and the price, all at Cin-
cinnati, and had no relation to the terms of the contract made in
New York. Even if incompetent, there was no' prejudice.
The letter marked ''Exhibit 22,'' offered as a standard of com-
parison with the signature of Eckenroth to the letter ** Exhibit
12," was neither admitted nor clearly proved to be a genuine
letter and signature, and hence the pourt did not err in excluding
it.
Special instruction No. 14 was properly refused because one
of the letters written by defendant to plaintiff contained the
following :
''We judge by your message that we can do business with you
either on joint account or buy from you or rather through you.
We will send man on the train tomorrow noon — any way you ar-
range with him will be satisfactory to us.''
This shows not only that Eckenroth, the "man" referred to,
was authorized to make the contract ; but that the defendant ex-
pected to buy not directly from but through the plaintiff from
any New York farmers having suitable apples.
That part of the general charge objected to is not as clear as
it should be, but we think the jury was not thereby misled to the
prejudice of the defendant.
The judgment will be affirmed.
488 CIRCUIT COURT REPORTS— NEW SERIES.
Taylor v. State. [Vol. XII, N. S.
THE DEPENSE OF SELP-DEFENSE IN A TRIAL FOR
HOMICIDE.
Circuit Court of Hamilton County.
Stephen Taylor v. The State op Ohio.
Decided, December i, 1909.
Criminal Law — Reopening of a Case in Chief — Discretion of the Court
— Rights of the Defendant — Self-Defense — Burden of Proof — Charge
of Court — Use of the Word ''Honestly'' in Connection with Belief.
1. While it is within the discretion of a trial judge to reopen a case
at any time before it is finally closed and let in testimony in
chief, it is error to thereafter refuse to allow the defendant at
least a reasonable time to recall his witnesses and make answer
to the new evidence.
2. Before a defendant in a homicide case can be required to establish
self-defense by a preponderance of the evidence, the state must
establish that the killing by him was an unlawful killing within
the degree of the crime charged.
A. Lee Beaty, for plaintiff in error.
•
Arthur C. Fricke, Assistant Prosecuting Attorney, contra.
Smith, J. ; Gifpen, P. J., and Swing, J., concur.
The plaintiff in error was indicted, tried and convicted of
murder in the second degree in the court of common pleas of
this county and now seeks a reversal of the judgment of the
court committing him to the penitentiary for life for the follow-
ing errors:
First. The act of the court in admitting certain evidence in re-
buttal which should have been introduced in chief by the state
and the refusal to allow plaintiff in error the right to rejoin
thereto.
Second. For errors of law in the general charge of the court.
The state in rebuttal called as a witness Isaac J. Cassidy,
who testified substantially that the plaintiff- in error had asked
him to go into a certain place and ascertain if Tom Taylor, the
deceased, was in there and tell him to come out. That he did so,
and after coming out the plaintiff in error asked him if Tom
CIKCUIT COURT REPORTS— NEW SERIES. 487
1910.] Hamilton County.
Taylor was in there and he said no ; that he may be over at the
bakery; and that about twenty minutes or a half hour there-
after a shot was fired, and that the witness then ran up the street
and found the deceased lying on the ground, dead.
It is apparent that this evidence was introduced for the pur-
pose of showing that the plaintiff in error was seeking the de-
ceased for the purpose, it could be argued, of shooting him. This
being so, the evidence was clearly such as should have been oflFered
in chief by the state. It was, however, within the discretion of
the trial judge to permit this evidence to be given, but if this
was done then the plaintiff in error should have been allowed
at least a reasonable time to recall his witnesses to make answer
to this new evidence. The rule seems to be :
* * By the law of evidence, testimony competent in chief, by that
fact is rendered incompetent in reply. The rule, however, is
subject to the discretional authority of a trial court to reopen
a case in chief at any time before it is finally closed and let
such evidence in. But this should not be done when, without
fault on his part, by reason of the discharge of witnesses or other-
wise, a party would be cut off from an answer to the new testi-
mony, which he might have made if it had been regularly given."
Donald v. State, 11 0. C. Dec, 483.
As to the errors in the charge of the court, we are of the opin-
ion that where the accused has attempted to justify the homicide
on the ground of self-defense, it is error for the court to charge
the jury:
**That if the killing by the defendant is established by the
stat^, then the burden of proof is upon the defendant to establish
by a preponderance of the evidence that what he did was neces-
sary to be done in order to save his own life or to protect himself
from great bodily harm.''
While it is true that the burden of self-defense is upon the de-
fendant, and he must establish this by a preponderance of the evi-
dence, yet the killing by the defendant that must be first es-
tablished by the state is an unlawful killing, such an unlawful
killing as would be embraced in murder of the second degree, or
manslaughter, or the degree of crime charged.
488 CIRCUIT COURT REPORTS— NEW SERIES.
Taylor v. SUte. [VoL XII, N. 8.
It is further urged that in charging the jury upon the sub-
ject of self-defense as to the belief that should exist in the mind
of the accused, the court charged that the defendant would be
justified in taking the life of the deceased if he, acting reason-
ably and prudently under the circumstances, believed that he
was in danger of loss of life or great bodily harm, or that the
defendant would not be responsible, unless the circumstances
were such as to have afforded a reasonable ground to believe that
there was not any danger imminent to him acting reasonably
and prudently under the circumstances. We think this was
error. ** Homicide is justifiable on the ground of self-defense,
where the slayer in the careful and proper use of his faculties,
bona fide believes and has reasonable ground to believe that he
is in imminent danger of death or great bodily harm, and that his
only means of escape from such danger will be by' taking the life
of his assailant, although in fact he is mistaken as to the exis-
tence or imminence of the danger. The fact of the existence of
such danger is not an indispensable requisite. Marts v. State, 26
0. S., 162 ; Mart:n v. State, 9 0. C. Dec., 621.
The defendant in such a case is not to be judged as to whether
he was acting prudently under the circumstances, and thereby
allow the jury to determine whether under the circumstances
they as prudent persons would have acted as he acted or whether
he acted as some other prudent person would act. His plea of
self-defense must be determined upon the question whether or
not, in the careful and proper use of his faculties, he bona fide
believed and had reasonable ground to believe that he was in
imminent danger of death or great bodily harm, and that his
only means of escape from this danger would be by taking the
life of his assailant, and this must be judged from his stand-
point under all the circumstances at the time.
We see no objection to the use of the word ''honestly" in
connection with the word belief. This did not put in issue the
question as to the honesty or dishonesty of the defendant, but
rather was used by the court in the sense of a bona fide belief or
sincere belief. We do not think the other claims of error in the
charge, if indeed there are such, are prejudicial to plaintiff in
CIRCUIT COURT REPORTS— NEW SERIES. 489
1910.] Wood County.
error, and while we would not disturb this verdict upon the
weight of the testimony alone, yet we feel for the reasons above
stated the judgment should be reversed and a new trial granted.
GAS AND OH^
Circuit- CJourt of Wood County.
John Baker v. Hamilton H. Stow et al.
Decided, October 24, 1892.
Construction of Oil Lease — Requirement as to When Lessee shall begin
Work — Effect of Payment of Rental toithout Commencing Opera-
tions— Extension of Lease Thereby.
1. An oU lease providing that "operations * * « shall be com-
menced and one well be completed within six months from the
date thereof, and in case of failure to complete one well within
such time/' the lessees promise to pay "ten dollars per annum with-
in three months after the time for completing such wells, « • •
until one well shall be completed, and a failure to complete one
well, or to make such payment ^ * * renders this lease null
and void," requires the lessee to commence worlc upon the prem-
ises within such six months period. Paying the stipulated sum
per annum, without commencing operations to sink a well, does
not give lessees the option to sink a well or not as they choose.
2. The provision of a gas and oil lease, that the annual rental shall be
payable within three months after the six months during which
a well was to be completed, extends the lease one year from the
termination of the six months' period, and not from the additional
three months' period.
Haynbs, J.; ScRiBNBR, J., and Bentley, J., concur.
The petition in this case was filed June 9, 1890, for the cancel-
lation of a certain instrument known as an oil lease ; afterwards
on November 8, 1890, an amended petition was filed, setting
up in detail the facts relied upon by plaintiff for its cancellation ;
it appears by this petition that there was really three papers
that the plaintiff was seeking to have canceled. The first was
a memorandum of agreement made on July 17, 1886, by one
John Baker and E. A. James and J. Henline, and purports to be
4»0 CIRCUIT COURT REPORTS— NEW SERIES.
Baker y. Stow et al. (YoL XII, N. 8.
a lease on the John Baker premises for oil purposes, or more
properly speaking, an agreement rather than a lease. That
paper had been assigned so as to come into the hands of some of
the defendants as lessees.
The petition further states that on October 26, 1889, Baker
made another agreement to one Aaron Therwecter of Toledo,
which is an agreement for oil purposes of the same premises;
that on said date there was an agreement made between said
plaintiff and Hamilton H. Stow, which agreement relates to
the sinking of wells and obtaining oil and gas on the same
premises. These papers it seems were held at the time of the
filing of the suit by Van Vleck and Stow, the real parties de-
fendant.
The petition avers that the parties have wholly failed to
perform on their part the things by them to be done, and the
time within which the agreement was to be performed had ex-
pired; that the rights of the parties had terminated, and asks
for the cancellation of the instrument and an injunction against
the lessees from further entering upon the premises and sinking
wells, claiming they were making threats to do so.
All three of the leases are upon the same form, and contain
the same covenants, the difference being in the date, and per-
haps in the time which they were to run; one being for three
years and one for five years on certain conditions. The defend-
ants claim that they tendered the amounts that are stated in
the petition by way of rent, and that they had the right to go
on and sink wells.
Without going into a discussion of the material conditions of
the covenants of the contract, I will say that they provide, in
substance, that in consideration of the covenants and agreements
hereinafter named, the parties have granted, demised and let
unto the parties of the second part, their heirs and assigns, for
the purpose and with the exclusive right of drilling and operating
for petroleum, oil and gas, all that certain tract or parts of land
situate in Montgomery township. Wood county, and the state
of Ohio, giving boundaries and description of the premises;
the parties of the second part, their heirs and assigns, to have
CIRCUIT COURT REPORTS— NEW SERIES. 491
1910.] Wood County.
and to hold the said premises, for the said purposes only, for
and during the t«rm of five years from date thereof, and as much
longer as oil and gas is found in paying quantities.
The said parties of the second part in consideration of the
said grant and demise, agree to give to the said party of the
first -part the full equal one-eighth of all the petroleum oil ob-
tained or produced on the premises herein leased, and to deliver
the same in tanks or pipe lines to the credit of the party of the
first part; and further on —
** Operations on the above described premises shall be com-
menced and one well completed within six months from the
date thereof, and, in case of failure to complete one well within
such time, the parties of the second part agree to pay annually
to the party of the first part for such delay the sum of $10 per
annum within three months after the time for completing such
wells as above specified, payable directly to the party of the first
part; and the party of the first part agrees to accept such sum
as full consideration and payment for such yearly delay, until
one well shall be completed, and a failure to complete one well or
to make such payments within such time as above mentioned,
renders this lease null and void and to remain without effect be-
tween the parties thereto."
Now as to all these leases, it is admitted by the pleadings that
no well was ever sunk upon the premises, and the simple question
is, whether those leases are still in force and were at the time the
suit was commenced, which calls upon the court for a construc-
tion of those clauses which I have already read. We are very
clearly satisfied that the true construction of this contract is:
that the parties are to commence a will within six months from
the date of the contract. It is apparent from the reading of
the contract that the parties were about to proceed to do that,
which is to a certain extent uncertain as to results. It may be
that no oil and gas will be found on the property.
The testimony shows that the cost of sinking one of these wells
•is $1,000 to $1,500, or perhaps even more. If oil or gas is not
found, of course that amount is lost to the party who sinks the
well. There is a hazard in the business with reference to which
the contract is undoubtedly made. The party who owns the
492 CIRCUIT COURT REPORTS—NEW SERIES.
Baker y. Stow et al. [VoL XII, N. S.
land makes no expenditures, and lie receives but a small portion
of the oil that is found. Prom a reading of the contract it is evi-
dent that the intention of the parties was that the work should
commence in a short time — the period being six months.
It will be noted that the terms of the contract are, that he
shall pay the sum of $10 per annum within three months after
the time for completing the well as above specified; and the
party of the first part agrees to accept such sum as full con-
sideration and payment for such yearly delay, until one well
shall be completed, and a failure to complete one well or make
such payments within such time as above mentioned renders
this lease null and void. At the time they complete one well
the rent, of course, terminates. That is the understanding of
the parties, and he stands then the same as if he had completed
the well within six months, and his rights under the lease from
that time depended upon the results of his investigations.
It will be seen that it is further provided that a failure to
complete one well, or to make such payment, renders this lease
null and void. The construction claimed for this lease, as we
understand it to be on the part of the lessees, is that if they
fail to sink a well within six months, by paying the sum stipu-
lated in the instrument, they have the right — the option during
the whole of the five years — to conmience work, or sink a well as
they may choose; in other words, that down payment of $10 a
year for the use of these premises gives the lessees the option
to sink a well or not as they choose.
We have held heretofore, and reiterate it in the present case,
that the party must, in order to avail himself of his rights under
the contract, commence work within the period of six months.
If having done so, he shall fail to complete the well, then
upon payment of the sum stipulated, he shall have the right
to complete his well thereafter. That he shall proceed with
reasonable diligence to finish his well — ^to carry out what is
the intention of the parties. The intention of the lessor is to
have his property investigated; to ascertain whether or not
there is any oil on the premises so that he may have the benefit
of it, and if there is not, that he may know it.
CIRCUIT COURT REPORTS— NEW SERIES. 498
1910.] Wood County.
Now with that view of the ease briefly stated : under the facts
in this case, the two leases dated in 1888, are in our opinion, in
our judgment null and void ; that the rights of the parties have
terminated under them, and the plaintiff has the right to have
the lease canceled, and the parties enjoined from attempting to
enter upon the premises under these leases.
The further question is made here upon the first lease, that is,
the lease dated July 19, 1886, and was made originally between
the plaintiff and £. A. James and J. Ilenline, which has been
transferred from party to party, until, I believe, it is now
claimed to be held by Van Vleck, the defendant in this case.
In that case there was no work commenced within the period
of six months. The question in the case arises upon the actions
of the parties after the expiration of the six months.
This lease appears to have been on May 14, 1889, assigned by
Henline to a man by the name of Evans, and on December 30,
1889, to have been assigned to a man by the name of Huffman ;
there are other assignments which are said to have been made,
but they are not in the lease itself.
It appears, however, that on April 12, 1887, that $10 was paid
on the within lease as annual rental, and the receipt is signed by
John Baker. Afterwards, the defendant, Van Vleck, had ne-
gotiations with some parties for the purchase of this lease and
their right under it. It not appearing that this annual rent had
been paid, he said he would not purchase it until the rent was
paid, and thereupon the parties went to Baker and received from
him a receipt, which reads as follows:
''January 4, 1890. I hereby receive $20, the rental in full to
April, 1890, on the within lease. Signed, John Baker, and
witnessed by John Edmonds and Almon Baker.'*
It is said, however, that in fact no money was paid. Baker
understood that this instrument was being assigned in order to
enable the parties to negotiate the lease. They had then entered
into negotiations to transfer the lease to Mr. Van Vleck, and
he testified that he paid them, and paid them without any knowl-
edge that this money had not been paid, and with full belief that
the money had been paid Baker, and we think he stands as a
494 CIRCUIT COURT REPORTS— NEW SERIES.
Baker v. Stow et al. [VoL XII. N. a
bona fide purchaser of the lease, relying upon this paper as be-
ing a genuine receipt. Since that time no rents have been re-
ceived by Baker. The rents have been tendered but he has de-
clined to receive them.
This original suit was commenced June 9, 1890, for the pur-
pose of cancelling this lease ; now the question is, what are the
rights of the parties under this state of facts?
The lease was dated July 17, 1886. The six months within
which the work was to be done would have expired on January
17, 1887, At that time the plaintiff had the right, if he chose,
to declare the agreement null and void, and to enforce its cancel-
lation.
The parties if they had commenced work would have had the
right within three months to have made a tender of the yearly
rental, and it appears that April 12, being six days prior to the
expiration of the three months expiration of the six months.
Baker received the $10 annual rental on the lease, and we think he
must be held by so doing to hav6 waived to a certain extent the
non-performance of the agreement and the commencement of the
work within six months. It appears that no rents were paid on
the next year, and none were tendered, but on January 14, 1890,
the further sum of $20 was receipted for, and that the rental was
to be to April 12, 1890.
Now, right here, it appears that the parties were of the opin-
ion that by the payment of the rent, instead of being extended
from the expiration of the six months, would be extended for a
year from the time of the ending of the three months, or nine
months from the expiration of the lease, and hence they have said
that this lease was conditioned until April 12, 1891, but we think
a fair construction of the lease is, that by payment of the $10,
that it extended it only for a year from the expiration of the
six months; that the real fact is that the lease was extended
simply and purely until April 12, 1890, and no longer. The
effect of that is to give them the right within a year to sink a
well the same as if they had a right to sink within six months.
If the parties did not do it within the expiration of the year,
the lessor would have the right to declare the lease null and
CIRCmT COURT REPORTS— NEW SERIES. 495
1910.] Hamilton County.
void; if he received rent for another year, he would have the
right to extend it another year.
The lease was in fact kept alive until April 12, 1890, and no
longer, and inasmuch as no work was commenced prior to April
12, 1890, the party had his option at that date to either receive
another years rent, or declare the lease null and void. He de-
termined to declare the lease terminated and commenced suit to
have the lease canceled, and, under this state of facts, we are of
the opinion that he is entitled to a decree caneelling the lease,
and may therefore be entered accordingly, and the plaintiff re-
cover his "Costs.
NO LIEN AGAINST TORT FEASOR FOR ATTORNEY'S
SERVICES.
Circuit Court of Hamilton County.
GusTAv R. Werner v. George Zehler Provision Company.
Decided, January 8, 1910.
An action does not lie by an attorney against a tort feasor for the at-
torney's share of the amount paid to his client by the tort feasor
by way of compromise and in full settlement for injuries re-
ceived by the said client.
G, R. Werner, for plaintiff.
Robertson & Buchwalter, contra.
The plaintiff was employed by Frank Husz to prosecute a
claim against the George Zehler Provision Co. for personal in-
juries, and alleged that knowing of his employment and of the
lien he had for services on whatever amount might be recovered,
the defendant company through their counsel, settled with Husz
for $500 and paid the entire amount direct to him. The plaintiff
claimed that under his contract with Husz he was to receive one-
half, and sued for $250. Judgment was given below for the de-
fendant.
GiPPEN, P. J.; Smith, J., and Swing, J., concur.
The judgment will be affirmed upon the authority of Weakley
V. Hall, 13 Ohio, 167, and Pennsylvania Co, v. Thatcher, 78 0.
S., 175.
49« CIECUIT COURT REPORTS— NEW SERIES.
Margeson v. Kellar. [VoL XII, N. S.
AS TO PAYMENT OF A NOTE BY USURJOUS INTEREST.
Circuit Ck)urt of Hamilton County.
W. F. Margeson v. Eckabt Kellar.
Decided, January 26, 1910.
Pleading — Want of Consideration and Payment of a Note Distinct De-
fenses— Variance Between Allegations of Petition and the Evi-
dence Submitted.
Where payment is relied upon as a defense from liability upon a
note, it is necessary that it should be pleaded; and it is error
to admit evidence with reference to payment, or to charge the
jury with respect thereto, where the only defense set up is want
of consideration.
Bates & Meyer, for plaintiflf in error.
Spencer M. Jones, contra.
Smith, J. ; Gippen, P. J., and Swing, J., concur.
Plaintiff in error's action below declared upon a promissory
note. Defendant's answer sets up a want of consideration for the
same.
The case was tried upon the theory that the note was paid by
defendant in error by way of usurious interest paid thereon, and
the court in its charge to the jury stated that payment in this
matter could be proven by defendant in error.
Want of consideration for a note and payment of the same are
two separate, distinct defenses, and if defendant in error relied
upon payment to discharge his liability it was necessary that
it should be pleaded {Lord v. Graveson, 4 C. C. — N. S., 268).
As this was not done, the court therefore erred in admitting evi-
dence relative thereto, and in charging the jury in that respect.
Upon the whole record we do not feel that this court would be
justified in entering judgment for plaintiff in error. The judg-
ment of the court will therefore be reversed and a new trial
granted,' so that upon proper pleadings the matter in controversy
can be determined as the justice of the case would seem to de-
mand.
CIRCUIT COURT REPORTS— NEW SERIES. 497
1910.] Lucas County.
PROCBKDINCS WH£RE A VOIDABDE RELEASE HAS BEEN
GIVEN FOR PERSONAL INJURIES.
Circuit Court of Lucas County.
The Toledo & Ohio Central Railway Company v.
Harry M. Coleman. •
Decided, July 3, 1908.
Claims for Personal Injuries — Releases which are Void and which are
Voidable — Consideration for Release — Pleading Release in Reply by
Way of Avoidance — Procedure for Cancellation of Release.
1. Where, in an action for damages resulting from injuries alleged to
have been sustained through the negligence of the defendant, the
answer sets forth as a defense that the plaintiff in writing re-
leased the defendant from all claims resulting from such alleged
negligence, and the reply sets forth facts which, if established,
would render such release voidable, and further fact which, if
established, would render such release void, and there is evidence
tending to establish the facts which might render the release void-
able only, but no evidence tending to establish the facts necessary
to be established to render the release void, it is the duty of the
court, on motion of the defendant, to instruct the Jury to re-
turn a verdict for the defendant.
2. One dollar is sufficient consideration, in law, to sustain such release.
3. Facts that, if established, would render the release void, may be
pleaded in the reply by way of avoidance of the defense of re-
lease; but if the facts would render the release voidable only,
and not void, the plaintiff can not avail himself thereof by way
of reply.
4. If the release is voidable only and not void, the plaintiff can not
maintain his action while it stands uncanceled, and he can not
seek its cancellation in a reply but must do so by petition in a
suit in equity for that purpose only, or as a cause of action in the
same suit in which he seeks to recover damages for the injury
(following Perry v. The M. O^Neil d Co., 78 Ohio St., 200).
Parker, J. ; Wildman, J., and Kinkade, J., concur.
Harry Coleman recovered a judgment in the court of com-
mon pleas against the plaintiff in error on account of injuries
* Affirmed by the Supreme Court without opinion, Coleman v. T. d 0.
C. Ity. Co., 81 Ohio St., .
498 CIRCUIT COURT REPORTS— NEW SERIES.
Railway v. Coleman. [Vol. XII, N. S.
received to his eye, through the bursting of a water glass, part
of a steam gauge of an engine, while he was in the employ of
and was in the line of his duty as locomotive fireman; many
interesting questions have been presented and argued; but I
shall discuss but one.
By way of defense to the action the railway company pleaded
a release given by Coleman to the company, signed by him and
dated the 9th of August, 1902. This release seems to have
reference to this particular injury, but subsequently on three
other occasions Mr. Coleman received other injuries which ap-
pear to have been slight, and he executed like releases with re-
spect to those injuries. Each of these releases contained a general
clause releasing the company from all claims for damages up to
date, and then each mentions specifically the injuries that had
immediately preceded the release.
This release of August 9th reads as follows:
*' Whereas, on the 7th day of August, 1902, the undersigned,
Harry M. Coleman, while in the employ of the Toledo & Ohio
Central Railway Company as fireman received certain injuries
as follows, to-wit: hit in right eye by piece broken water glass
while in said employment at or near Horton station in the state
of Ohio; and
''Whereas, the said Harry M. Coleman does not make any
claim of any class or character against said company, for or on
account of said injuries, and admits that the same are not the
result of any negligence on the part of said company,
*Wow, Therefore, in consideration of the sum of one dollar
($1.00) in hand paid, and the further consideration of my re-
employment by ?aid the Toledo & Ohio Central Railway Com-
pany, for such time only as may be satisfactory to the company,
said railway company is hereby released from any and all claims
that I, said Harry ^I. Coleman, claimant herein, ever had or
might have against said company, up to date and especially
released from any and all other claims arising out of injuries
specially set forth herein.
*' Given under my hand and seal at Toledo, Ohio, this 9th day
of August, 1902.''*
And following that is a receipt for the one dollar mentioned
in the foregoing agreement and that is signed by Harry M.
Coleman and witnessed by H. P. Latta and G. D. Lewis.
CIRCUIT COURT REPORTS— NEW SERIES. 499
1910.] Lucas County.
What the plaintiff says by way of reply I can hardly state
more succinctly than to read it:
**Now comes plaintiff and for reply to the amended answer
filed herein, says that it is not true that on the 9th day of August,
1902, or at any other time, plaintiff entered into an agreement by
the terms of which he released the defendant for injuries which
he suffered as set forth in his petition.
** Plaintiff alleges that on the said 9th day of August, 1902,
the plaintiff was still in the employ of the defendant company
and that he had not in any way applied for re-employment by
said company, and was not re-employed by said company. That
at said time he was temporarily off duty because of the injuries
which he received by the bursting of the water glass as set forth
in his petition.
** Plaintiff says that on or about the 9th day of August, 1902,
he was suffering a great deal of pain from the injuries which he
received in his right eye, and that said oye was in such condition
that he could not use the same, and that his left eye was very
much impaired by reason of the injuries to his right eye. That
by reason thereof he was unable to read. That on or about the
said day, he was at the office of the defendant company in the
presence of one Latta, who was in charge of the defendant's
round-house, and the superior over plaintiff. That the said Latta
placed before plaintiff a paper containing some printed and
written matter, w'hich plaintiff now is informed and believes and
therefore avers is the paper referred to in said answer and
bearing date of August 9, 1902. That at said time said Latta
requested plaintiff to affix his signature to said paper in one or
more places, and at the time told plaintiff it was a mere for-
mality required by the defendant in all cases wherein a person
had met with an injury and did not affect any claim he had
against said company. That at said time plaintiff was unable to
read said paper, and that the said Latta and no other person
read the same to him or made the contents of the same kown to
plaintiff, but the said Latta told plaintiff that the same was of no
importance, and was a mere formality. That plaintiff relied
upon the said statement and affixed his signature as best he could
to said paper at the request of the said Latta. That all of the
foregoing was well known to said Latta."
There is more of said reply upon the same subject and of the
same tenor, but the substance of it is contained in the paragraphs
I have read. There are other averments to the effect that he did
500 CIRCUIT COURT REPORTS— NEW SERIES.
Railway v. Coleman. [Vol. XII, N. S.
not receive the dollar, and that the matter of settling his elaim
was not discussed and was not considered, and that no idek of
that sort was entertained by himself or by the representative of
the railroad company, and more to the same effect.
If what I have read were established it would appear that the
release was absolutely void. If it were true that Coleman at the
time was unable to read by reason of these injuries to his eye,
and if he was deceived by ^Ir. Latta, his superior in the employ
of the company, as to the contents of the paper, if he signed the
paper under such circumstances, supposing it to be one thing,
whereas it was an entirely different thing, that is to say, a mere
matter of form that he must sign before he began work again,
whereas it was a release of all his claims against the company, if
his signature to the release was obtained under such circum-
stancas and by such method, the release would be absolutely void ;
and under the authorities, this issue of release might be raised
by a reply setting forth the facts showing that the release was
void.
On the other hand, if the circumstances were such as to make
the release simply voidable in law and not void ; if the circum-
stances were such that a court of equity alone could give relief,
then the matter could be properly pleaded in a reply; but it
would be necessary, before the plaintiff could maintain his suit,
for him to get rid of the release by instituting proper proceed-
ings in equity to have it canceled and set aside. That might be
done in a separate and distinct cause of action in the same case
as the one wherein he prosecuted his claim for damages, or by
suit brought for that purpose only.
As we have said, in this reply, besides the matter pleaded,
which, if true, would make the release void, there is much else
which, if established, would render the release voidable and
would authorize a court of equity to cancel it.
It will be observed that the plaintiff, by bringing this issue
into the case by reply, undertook to establish that the release
was void.
Now, to go through the record in this case and call attention
to all of the testimony bearing upon this issue would take a
CIRCUIT COURT REPORTS— NEW SERIES. 501
1910.] Lucas County.
great deal of time and would not be profitable. I may say, how-
ever, generally, that after a careful examination of the record,
we are unanimously of the opinion that there is in it no evi-
dence tending to establish the allegations nequired to be estab-
lished to render this release void. The evidence does not estab-
lish that the plaintiff at the time he signed this release was un-
able to read; that his eyes were so affected by the injury that
he was unable to read, though it appears that his eyes were some-
what affected, and perhaps he could not have read at that time
as easily as ordinarily. It does not appear that Mr. Latta
stated to the plaintiff that this release was a mere formality, or
that it did not affect any claim that he had against the company.
In plaintiff's interview with Mr. Latta there was nothing said
upon that subject, or to the effect that it was of no importance
and a mere formality;
On the contrary it appears that Mr. Latta was a friend of
the plaintiff's, and that he treated him with entire fairness and
candor on this occasion. There was no fraud practiced upon
the plaintiff. Had he cared to acquaint himself with the con-
tents of the paper he had full opportunity to do so. It seems
quite apparent that he knew substantially what was in the paper.
He received one dollar for the release. It is said that the con-
sideration of one dollar is merely nominal, and that it must be
apparent that the plaintiff would not release a substantial claim
against the company for a consideration of one dollar. In law,
a consideration of one dollar is a valuable consideration, and to
fulfill the requirement that a contract shall be supported by a
consideration it is as good as a thousand dollars or any other
sum. Of course there are circumstances, especially in equity,
where the amount or va'.ue of the consideration will have weight
but it can not be said that this release was void at law because
wholly unsupported by a consideration.
The fact is that the plaintiff, after having his eyes injured
as we have stated, laid off for a time and had his eyes treated,
and when he came back to the company to ''sign up" as they
call it, he supposed that his injuries were substantially over with
and cured. He did not then appreciate or apprehend that he
502 CIRCUIT COURT REPORTS— NEW SERIES.
Railway v. ColemaiL [VoLXII,N. S.
had received the serious and permanent injuries that he now
claims he had in fact sustained. And it was therefore, no
doubt, that the matter of signing this release for the considera-
tion of one dollar was regarded by him, as it was by 'Sir. Latta,
as somewhat in the nature of a formality and a matter not in-
volving serious consequences.
It is true, and it very apparent from this record, that they
did not consider, upon either side, the question of settling for
the alleged serious injury that it is said had really been sus-
tained by the plaintiff. But it was known by both that the
plaintiff had sustained some injury to his eyes, and that it was
with respect to those injuries that the dollar was paid and the
release given.
Whether the circumstances were such as that the release should
be set aside by a court of equity because of inadequacy of con-
sideration, or because of ignorance of the parties of the true
situation, or for any other reason, are questions that we are
not now called up to consider.
That the plaintiff understood that he was signing this release
is very apparent from his own testimony. He understood thctt he
was signing a release. Several times in the course of his cross-
examination when asked why he signed this paper and what he
supposed he was signing, he answered in substance that he sup-
posed he was signing off for the time he had lost; that he was
releasing any claim that he might have against the company for
the time he had lost. That of course had reference to the time
he had lost by reason of this injury to his eye; and it is ap-
parent that at that time he supposed that the only claim that
he had against the company on account of these injuries was for
loss of time for a few days — loss of wages in consequence of loss
of time, and such loss at time being due to the injury to his eye.
So that he knew that he was releasing the company from the
only claim that he supposed he had against the company for the
injuries that he supposed he had received. Under those circum-
stances the release is valid in law although he discovered after-
wards that he had received more serious injuries than he sup-
posed when he signed the release, and concluded that he should
CIRCUIT COURT REPORTS— NEW SERIES. 508
1910.] Hamilton County.
have received a large compensation therefor on settlement instead
of one dollar only.
Now this question has been fully considered and passed upon
by the Supreme Court of Ohio in a decision recently handed
down in the case of Perry v. The M. 0 'Nell & Co. When we had
the case under consideration we had a certified transcript of the
opinion of the Supreme Court, but since we decided it the case
has been published. We decide the case at bar upon the author-
Hy of Perry v. The M. O'Neil (fe Co., 78 0. S., 200. We will not
attempt to add by further comment anything to what is there
said in elucidation of this subject.
At the close of all the evidence the trial court was requested
by the defendant below to instruct the jury to return a verdict
for the defendant in view of the fact that there was no evidence
tending to support the allegations of the facts necessary to be
established to render this release void. We think that instruc-
tion should have been given. As the greater includes the lesser,
of course it follows that the verdict on that issue is against the
weight of the evidence also.
For these reasons the judgment of the court of common pleas
will be reversed and the case will be remanded.
ALTERATIONS IN A PROMISSORY NOTE.
Circuit Court of Hamilton County.
Samuel Hoffman et al v. W^iedemann Brewing XIIompany.
Decided, January 22, 1910.
Promissory Notes — Charge of Court with Reference to Material Issues
in an Action to Enforce Payment — \Error — Sections S171m and
31750.
The time of maturity of a note and the manner of Its payment are
material parts thereof, and it is error to refuse to charge the jury
with reference to these matters where they constitute issues of
fact which the Jury must determine.
B. C. Fox, for plaintiff in error.
W. C. Taylor, contra.
504 CIRCUIT COURT REPORTS— NEW SERIES.
Taylor v. State. [VoL XII, N. 8.
Smith, J. ; Gipfen, P. J., and Swing, J., concur.
The court is of the opinion that the judgment of the trial court
in the above case should be reversed.
We see no objection to the admission in evidence of the note
sued on, nor do we find any error in the trial court giving the
special charge asked by defendant in error.
The sole question of fact being one of alteration of the promis-
sory note sued upon, we think there was error in not giving to
the jury the two special charges asked by the plaintiffs in error,
one of which related to the time after the date of the note when
it became due, and the other to the insertion in the note by the
defendant in error, the words, ** payable ten dollars per week.''
We do not think these questions were properly submitted to the
jury in the general charge of the court. As we have already said,
they raised the question of fact as to alteration, and under Sec-
tions 3171m and 3175o, the jury were called upon to determine
this from the evidence under proper instructions. The date
borne by a promissory note has been held to be a material part
thereof (Newman v. Kiiig, 54 O. S., 273), and we see no reason
why the time of maturity of a note, or the manner of its payment
is not also a material part thereof. If this is true, then it was
simply a question of fact to be determined by the jury whether
or not the alterations made in this respect were made by the
agreement of the parties or not, and we think the trial court upon
this question did not properly charge the jury as set out in the
general charge.
For these reasons the judgment of the court below will be re-
versed.
CIRCUIT COURT REPORTS— NEW SERIES. 605
1910.] Wood County.
AS TO THE TERN OF A GAS AND OIL CONTRACT.
Circuit Court of Wood County.
North Western Ohio Natural Gas Co. v. Isaac
Whitacre et al.
Decided, October 28, 1892.
•
Gfoa and Oil— Construction of Contract for Drilling and Operating
Wells — Term of Contract for Producing Wells Not Extended by
Payments of Rental on NonrProducing Well — Right of Lessee to
Terminate the Agreement.
A contract granting the exclusiye right to drill and operate gas and oil
wells for the term of three years from the date thereof and as
much longer as oil and gas are found in paying quantities, in con-
sideration for which the operators were to pay a royalty on the
oil produced and $300 per well for gas, and in case no well be
drilled within the first six months then a stipulated rental per
year, terminates upon the expiration of three years, unless oil or
gas is produced in paying quantities. Payment of yearly rental
and tender of |300 per year for a non-producing gas well will not
effect an extension of its terms; neither will a separate agreement
upon consideration three years and eight months after the date
of the contract, granting an extension to a fixed date more than a
year in the future, the terms of which are endorsed on the origi-
nal agreements, continue the original contract in force beyond
such fixed date, especially since no new or further efforts were
made to develop oil or gas on the premises.
Bentley, J.; Scribner, J., and Haynes, J., concur.
This case has been submitted to us upon the pleadings and
the testimony. The action was brought by the plaintiff, the gas
company, to enjoin the principal defendant, Priddy, from drill-
ing wells on a certain farm of Isaac Whitacre for the purpose of
obtaining gas or oil ; the gas company claiming that, by a^prior
grant to one Vandergrift, Mr. Whitacre had granted the ex-
clusive right to bore for gas and oil upon his farm and that
that right by assignment had come to the plaintiff, the gas
company.
606 CIRCUIT COURT REPORTS— NEW SERIES.
Natural Gas Co. t. Wbitacre. [YoLXII.N. S.
■
It will be necessary to consider briefly the contract upon
which the plaintiff relies. The contract was made July 16,
1886, between Isaac Whitacre of the first part and T. J. Vander-
grift of the second part, and I will read certain of the para-
graphs which will bear upon the discussion arising in this action.
The contract reads :
''That the said party of the first part for the consideration of
the covenants and agreements hereinafter mentioned, has granted,
demised and let unto the party of the second part, his heirs or
assigns, for the purpose and with the exclusive right of drilling
and operating for petroleum and gas all that certain tract of
land situated in Bloom township, Wood county, Ohio." [And
here follows a description of the land, containing seventy-two
acres be the same more or less, together with the right to use
sufficient water therefrom necessary to the operation thereof.]
''The right-of-way over said premises, the right to lay pipes
to convey oil and gas, and the right to move any machinery or
fixtures placed on said premises by the party of the second part.
"The party of the second part, his heirs or assigns, are to
have and to hold the said premises for and during the term of
three years from the date thereof and as much longer as oil or
gas is produced or found in paying quantities thereon.
"In consideration of said grant the said party of the second
part agrees to give or pay to the said party of the first part, the
full equal one-eighth part of all the petroleum or rock oil pro-
duced or found on said premises, and to deliver the same free
of expense into tanks or pipe lines to the credit of the party
of the first part, and should gas be found in sufficient quanti-
ties to justify marketing the same, the consideration in full to
the party of the first part shall be $300 per annum for the gas
from each well so long as it shall be sold therefrom.
"It is further agreed that the party of the second part shall
complete a weU on the above described premises within six
months from the date hereof, and in case of failure to complete
such well within such time, the party of the second part agrees
to pay to the party of the first part for such delay, a yearly-
rental of $1 per acre on the premises herein leased from the time
of completing such well as above specified until such well be com-
pleted, the said yearly rental amounting to $72 shall be deposited
to the credit of the party of the first part in the Farmer's Na-
tional Bank of Findlay, Ohio, or be paid direct to said first party.
And a failure to complete such a well or to make such deposit
CIRCUIT COURT REPORTS— NEW SERIES. 507
1910.] Wood County.
or payment as above mentioned shall render this lease null and
void and to remain without effect between the parties hereto."
There are certain other clauses in the contract which are not
necessary to the understanding and disposition of the case here.
This w^ell which the lease provides should be completed within
six months or a payment made, was not completed within the six
months, but before the six months expired the alternative was
acted upon, the $72 rental was paid to Mr. Whitacre, that being
paid in January, 1887, and before the six months had expired. A
well, however, was completed upon the premises about May, 1887,
before a year from the date of the lease had expired. When that
well was ** drilled in," as the saying is, it seemed to furnish quite
a quantity of gas, but with the gas a small quantity of oil so as
to practically destroy the utility of the gas. The gas however
was turned into the company's gas line a few hours one evening
when an illumination was being held in Toledo, and the gas was
used for that purpose a few hours and was then turned off.
The gas has never been used from the well since that time.
In the fall of that year, the w^ell was driven still deeper
and produced perhaps another supply of gas — ^the quantity is not
shown with any degree of certainty— and the well drilled still
deeper until a vein of salt water was struck. That was in the fall
of 1887. Shortly after, the casing wps pulled out which let sur-
face water into the well, and the gas was sufficient in the well
it seems to throw the water out of the well — the water being pro-
jected in such quantities that it flooded a portion of Mr. Whit-
acre's land, and some complaint seems to have been made re-
garding it, and the assignees of the contract attempted to shut
off the water. They attempted to shut off the salt water by a
lead plug and perhaps were reasonably successful in that, but
the other water being furnished in such quantities, caused some
damage, it is claimed by the Whitacres, and they attempted to
shut this off by putting stones in the w^ell and pounding them
down ; that seemed of no avail, so at last they put the casing back
into the well. It would appear for the purpose of enabling them
to shut off this water more effectually, more or less stone wag put
into the well to stop the flow of water, and the well has remained
508 CIRCUIT COURT REPORTS— NEW SERIES.
Natural Gas Co. v. Whltacre. [Vol. XII, N. S.
substantially in that condition ever since ; the gss not being used
and no attempt being made to use it; the gas company left it
in that way.
That substantially states the situation of this well and the
operation upon that farm under this contract, until March 22,
1890. It will be noticed that this was three years and eight
months after the date of the lease, the original lease being for
three years with this contingency for an extension. Eight months
after that definite date had elapsed, a further arrangement was
made between the parties. On the date I have last mentioned,
the owner of the land, Mr. Whitacre, and the gas company, en-
tered into this arrangement : the company paid him $175 for an
extension of the lease and he granted and consented to an exten-
tion in these words:
** March 27, 1890. In consideration of the sum of $175 to me in
hand paid by the N. W. 0. N. Gas Co., I hereby agree to the ex-
tention of the within lease for and until the first of May, 1891.
Signed, Isaac Whitacre. *'
The extension was written at the same time upon each of the
duplicates of the contract, or upon the contract, and the copy is
substantially the same, possibly with the variation of a word or
two, which is not material.
Nothing was done further regarding this matter between the
parties after this extension to May 1, 1891, until May 10, 1891,
when the company by its agent tendered to Mr. Whitacre $300 in
money for the rental for the gas mentioned in the contract, the
contract providing for $300 each year for gas which should be
produced and sold. -Mr. Whitacre refused this tender, claiming
that the contract had expired. On July 29, 1891, Mr. Whitacre
granted another contract or oil lease, covering the same prem-
ises, to the defendants, Priddy & Bro. They inunediately pro-
ceeded to erect their rig and began to drill a well on the prem-
ises, until they were stopped by the commencement of this ac-
tion, and an injunction obtained thereunder; the petition be-
ing filed September 15, 1891, and the injunction being served
either that day, or the day following. All operations were sus-
pended for a time, and on April 19, 1892, the plaintiff again
CIRCUIT COURT REPORTS— NEW SERIES. 509
1910.] Wood County.
tendered to Mr. Whitacre the $300 for the gas, as he claimed,
which Mr. "Whitacre again refused.
On that state of facts it is claimed by the plaintiflf that this in-
junction should be made perpetual ; on the part of the defend-
ants that its lease had expired before the beginning of this ac-
tion and that Mr. Whitacre had released the premises a;nd had
elected to treat the contract as at an end; and the answer of Mr.
Whitacre as well as the answer of the Priddys asks that the
Priddys^ exclusive right to drill and operate for oil and gas be
adjudged to them and that their title be quieted.
Naturally the inquiry is suggested here, and the question is
presented, what were the rights of the natural gas company, as-
suming now for the moment that it had acquired all the rights
that were originally granted to T. J. Vandergrift at the time
this extension was made, and before the extension was made;
and then again what rights did that extension give themf
At the time this extension was made, the well had been com-
pleted and the $72 had been paid, so the whole matter had been
disposed of. There is nothing in the lease which would forfeit
it for the non-completion of that well or the non-payment of
the rental ; the rental had been paid and the well completed. At
the expiration of the three years, as the lease stated, it would
seem clear that the contract and lease terminated, unless at that
time there was oil or gas produced or found in such paying quan-
tities on the premises as wouM extend it under the clause of the
lease providing that it shall extend as much longer as oil or gas
is produced or found in paying quantities thereon.
That in fact this well produced oil or gas in paying quantities,
there is no proper proof. We think it follows under the rulings
of the Supreme Court in the cases of Scioto Fire Brick Co. v.
Poiid, 38 0. S., 65, and Cook v. Andrews, 36 0. S., 174, that if
plaintiff desired to found any right upon the fact that oil or
gas was produced in paying quantities, it was bound to furnish
that proof, the burden of proof being upon it. So, I say, there
is not furnished us proper proof that at the time of this exten-
sion the original lease did continue in force by reason of that
alternative presented by the original contract ; that is, the three
510 CIRCUIT COURT REPORTS— NEW SERIES.
Natural Gas Ck). v. Whltacre. [Vol. XII, N. S.
years had expired and gas or oil not shown to be produced or
found in paying quantities so as to extend the lease. Practically,
under the terms of the lease, the rights of the parties had ended
at the time of this extension. But this extension so made did
extend the lease until the first of May, 1891, but we think this
can scarcely be said to extend the provisions of the six months'
clause of the lease, because the first well had been drilled and the
rental paid to excuse it being drilled within six months. We think
this term *' first of May, 1891,'' fixes the terms of the lease as
being this date, and not "three years from the original date
which had been originally fixed. That the lease should be con-
sidered now as if it originally read *'that it should expire by the
first of May, 1891.''
It is argued, and not without force, by the defendant's counsel,
that, whereas the original contract presented one term for three
years and another conditional term dependent upon the produc-
tion of oil or gas in paying quantities, the parties by this
extension waived all the conditional terms and should fix it so
that it would expire in ^lay, 1891. While, as I say, that argu-
ment is not without force, yet we are inclined to think that this
should stand and be considered as in place of three years, and
this would extend the lease to May, 1891, and if by that time
oil or gas had been produced in paying quantities, under the
original terms of the lease, the right should be considered as ex-
tended as long as the gas or oil was produced in paying quant-
ties upon the land. Now was it ?
There was nothing by way of operation done at this time,
May, 1891 ; but it is argued as perhaps the principal basis of
the plaintiff's right, that, whereas the contract was extended to
the first of ^lay, 1891, and whereas there was a well on the
premises producing some gas, it would make no difference to the
land owner whether the gas has in fact been found by the pro-
ducer or not, as long as the producer was willing to pay the
price of it — $300 a year; and as he was willing and tendered
that price, it continued the lease in force as if another well had
been drilled and complet-ed prior to the first of May, 1891.
Now, if this position of the plaintiff's counsel should prevail, it
CIRCUIT COURT REPORTS— NEW SERIES. 611
1910.3 Wood County.
would result in this : that as long as $300 was paid by the plaint-
iff, the exclusive right to drill for oil and gas on the premises
was continued in the plaintiff, and that without any limit — no
limit at all of any number of years or any circumstances, except
the will of the plaintiff as long as he would pay.
By the original lease, however, while the term was undetermi-
nate if gas or oil was produced, yet the land owner had seen fit
to provide that this should continue as long as gas or oil was
produced in paying quantities. There was a circumstance that
he had a right to rely upon, that at some time he could termi-
nate the lease. It might be said that gas or oil could not last for-
ever, and that when it ceased, it would terminate the contract,
but if the contract and condition are to be enlarged, there would
be no limit in that regard. We think that he has a right, and
has an interest in knowing the fact itself, whether oil or gas is to
be found in paying quantities, and that this lease can not be
indefinitely extended by the mere will of the plaintiff company
in paying him $300 a year.
Now the fact is, as we think it clearly established by the de-
fense, that this gas was not being produced in paying quantities ;
and he, having the right to have his rights determined as to that
fact, finds that this extension to May 1, 1891, was not continued
further by the fact of his having obtained or rather by the fact
that the plaintiff was willing to treat it as if it had been obtained
in paying quantities, and paid for it, so that when in July, 1891,
after May 1, 1891, extension has elapsed, this owner's rights to
his premises had been restored to him, and he had the right
and the authority to grant to other parties, and it seems that he
did so.
We think the rights of Priddy as claimed in the case must pre-
vail over the alleged rights of plaintiff; that plaintiff's petition
must be dismissed at its costs, and that as to the prayer that the
rights of the Priddys be quieted, we see no reason why that
prayer should not be granted, and an order will be made ac-
cordingly. There will be a special mandate to the court of com-
mon pleas for execution and costs.
512 CIRCUIT COURT REPORTS— NEW SERIES.
Automobile Co. v. Evans. [Vol. XII, N. S.
CHARGE OF COURT— mCOMPLETE BILL OW EXCERTIONS.
Circuit Court of Hamilton County.
The Hanauer Automobile Company v. Percy Evans.
Decided, January 3, 1910.
Where the evidence is not all set out in the bill of exceptions, a re-
viewing court can not say that the portions of the charge to the
Jury which are complained of ^^ere not properly given.
Paxton, Warrington & Seasongood, for plaintiff in error.
Mitchell Wilby, contra.
The plaintiff below recovered a verdict for $250 against the
automobile company on account of injuries from being struck by
one of their autos.
Smith, J. ; Gipfen, P. J., and Swing, J., concur.
Upon the authority of the Supreme Court in the recent case
of Duffy V. Queen City Box Company (reported without opinion,
81 Ohio State, reversing 11 C. C. — N. S., 69), the judgment of
the trial court will be affirmed.
For aught that appears, the entire evidence not being set out
in the bill of exceptions, we can not say but that there was evi-
dence upon which the court might properly charge as it did in
those portions of the general charge complained of by plaintiff in
error.
We do not think the court charged or intended to do so upon
the doctrine of *Mast chance,'' but merely called the attention of
the jury to the duty that was upon the defendant if he saw the
automobile approaching.
Finding no error in the record, the judgment is affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 618
1910.] Cuyahoga County.
WHAT CONSTITUTES A DISMISSAL.
Circuit Court of Cuyahoga County.
William A. Strauss v. Mabel Strauss.
Decided, February 7, 1910.
Dismissal — Record Necessary to Show, Where Made Without Prejudice
—Section SSlh
The evidence of the dismissal of an action by the plaintiff during term
time is the court's entry to that effect.
J. C. Hutchins, for plaintiff. (fs ^ ''^-**y'
Kerruish & Kerruish, contra. p ^^/^
*«-
Winch, J. ; Henry, J*, and ^Tabvin, J., concur.
This case was heard upon appeal and involves the validity of
a judgment entered in an action for divorce and alimony.
It is claimed that the judgment was void for want of jurisdic-
tion to render it, the case having been previously dismissed by
the plaintiff and reinstated by the court without notice to the
defendant and in fraud of his rights. If the case was ever le-
gally dismissed, the contention of the plaintiff seems to be sus-
tained by the evidence, so that the vital question in the case is:
was the action ever dismissed by the plaintiff?
The disipissal of an action by the plaintiff is regulated by the
first and sixth paragraphs of Section 5314 of the Revised Stat-
utes, which read as follows :
**An action may be dismissed without prejudice to a future
action :
**1. By the plaintiff, before the final submission of the case
to the jury, or to the court, when the trial is by the court.
*'6. By the plaintiff, in vacation, on payment of costs; and
the clerk, in such case, shall forthwith make an entry thereof on
the journal, whereupon dismissal shall take effect."
The record of the common pleas court in this case shows the
following entry:
514 CIRCUIT COURT REPORTS— NEW SERIES.
Strauss v. Strauss. [VoL XII, N. S.
** Thereupon on the 15th day of November, A. D. 1906, there
was duly filed in said court of coraraon pleas, a certain entry of
dismissal in this cause, which was afterwards withdrawn. There-
upon on this 15th day of November, A. D. 1906, being a day of
the September term, A. D. 1906, of said court, there was duly
entered upon the journal the following order to-wit: *the plaint-
iff has leave to withdraw the entry of dismissal in this cause.' "
The exact facts, as shown by the pleadings and the evidence,
are that on the 15th of November, 1906, the plaintiff filled out
and signed the usual, dismissal blank which, after giving the
venue and title and number of the cause, reads :
**To the clerk. This cause may be entered dismissed by
plaintiff. Costs are paid."
She paid the costs and delivered this document to the clerk,
who noted the filing of it. The next day, having quarreled with
her husband again over night, she went to the court house and
asked to have the dismissal slip returned to her. This was done,
and the only action ever taken by the court regarding the dis-
missal is shown by the record, which has been quoted.
^fanifestly the clerk had no right to make any entry of dis-
missal under the sixth paragraph of Section 5314, for it was
during a session of the court and not in vacation, so that the
sixth paragraph does not apply, and this authority being ex-
pressed in the sixth p<aragraph, and not in the first paragraph,
by a familiar rule of construction, we are led to conclude that to
effect a dismissal under the first paragraph, something other than
an entry by the clerk is necessary.
All applications, unless otherwise specified in the statutes,
must be made to the court. A plaintiff may appear in open
court and apply for a dismissal of his action; it may be con-
ceded that upon such application the court has no alternative but
to dismiss the case, unless the rights of other parties are involved,
as shown by the record. The conclusion of the case, however, is
marked by the entry of the judge dismissing it. How, otherwise,
wouM there be any record of it? The entry of dismissal has
properly been called a judgment or final order, though it may
CIBCUIT COURT REPORTS— NEW SERIES. 515
1910.] Hamilton County.
not finally adjudicate the rights of the parties. Indeed, the
plaintiflF in this action plants himself upon such assumption.
The plaintiff may request the clerk to bring the application for
dismissal to the attention of the court, and when the clerk does
so, and the court makes an entry, the cause stands dismissed, and
record of the dismissal is then made to prove the fact.
Such was the request made of the clerk in this case by the
polite note left in his hands. Before the matter was presented
to the court the clerk's authority to represent the plaintiff was
withdrawn. The application for dismissal was never acted upon
by the court. It would seem that a plaintiff might apply in
open court for a dismissal of his action and then change his mind
at any time before the court entered a dismissal and direct the
court not to enter it. Would anybody then say that the case
had been dismissed, though the record showed nothing of the
transaction 1
If we are right in our conclusion that a dismissal of a case
can not remain iq b plaintiff's mind, but must be entered on the
records of the case, and further, that said entry during term
time can not be made by the clerk, then it follows that the entry
must be made by the judge, and none having been made by him
in this case, the case was never dismissed, and no rights can be
predicated upon a dismissal of it.
Petition dismissed.
CONSTRUCTION OF CONTRACT FOR SCHOOLING.
Circuit Court of Hamilton County.
Joseph C. Gropp v. Frederick Hertenstein.
Decided, January 29, 1910.
Schools— Pupil Taken III in the Middle of the School Year^— Construc-
tion of Contract as to Whether Parent Could he Held for Charges
for the Entire Year.
Where a parent sends his son to a school under a contract with the
principal of such school, and pays the tuition for part of the year
at the time the son enters — Held:
616 CIRCUIT COURT REPORTS— NEW SERIES.
Groff V. Hertenstein. [VoLXII, N. S.
1. Whether the contract be for the entire school year or for a shorter
period must be determined from all the facts, words, acts, conduct
and circumstances surrounding the parties at the time.
2. If the contract be for the entire school year it may be discharged
by the son becoming disabled by illness from attending the full
year; both parties must be deemed to have acted on the assumption
that, if such an event intervened, the agreement for the full school
year would be discharged.
Clyde P. Johnson, for plaintiff in error.
Frank M. Coppock, contra.
Smith, J.; Swing, J., and Gippbn, J., concur.
The plaintiff in error in his petition claimed that the defend-
ant in error had placed his son in his school for one year and had
agreed to pay to him for tuition and board for that year $1,200 ;
that of this amount $600 has been paid and there was still due
from the defendant in error the remaining sum, $600.
The defendant in error denied this agreement and claimed
that the contract was for the first part of the ^school year from
September 30, 1907, to January 31, 1908, for which he had paid
plaintiff in error said $600. He also set up as a defense that he
did not return his son to the school of plaintiff for the latter part
of the year for the reason that by an act of God, to-wit, the
serious illness of his son, he had been prevented from sending
him; and thereby the contract was discharged, if it was for a
full year.
Whatever the contract was between the parties, whether for the
entire school year or for a shorter period, it is apparent that the
same was not in writing and had to be determined by the jury
from all the facts, words, acts, conduct and circumstances sur-
rounding the parties at the time. Both questions as to what the
contract was and whether the contract was discharged by act
of God were submitted to the jury and a verdict returned in favor
of the defendant.
If the sole question had been before the jury as to what the
contract was between the parties then the case might easily be
disposed of, but the second defense having been interposed, it is
difficult to say which defense or whether both defenses were
found in favor of defendant in error by the jury.
OIECUIT COURT REPORTS— NEW SERIES. 617
1910.] Wood County.
We think there was no error in the court refusing the three
special charges asked by plaintiflf in error ; the latter two of which
relate to the question as to whether or not the contract was sus-
pended or discharged by the illness of defendant's son.
The evidence clearly shows that the son was not returned to
school by defendant in error on account of his serious illness.
This was something over which neither plaintiff nor the defendant
had control and such an occurrence must have been in the minds
of the parties at the time the agreement was made if it was made
for one full school year. They both must have acted upon the
assumption that if any such event intervened whereby the boy
was rendered physically incapable of attending the school, then
the agreement for the full school year would be discharged.
Death or a disability which renders performance impossible dis-
charges the contract. Marvel v. Phillips, 162 Mass., 399 ; Stew-
art V. Loring, 5 Allen, 306.
We do not think the authorities cited by plaintiff in error are
applicable to the case at bar, but believe the rule as laid down in
the above cases, and in our conclusion herein, to be the more rea-
sonable. We find no error in the record and the judgment of
the court is therefore affirmed.
RIGHTS UNDEK A DEED CONVEYING CO. LANDS.
Circuit Court of Wood County.
Dora H. Wollam et al v. George H, Van Vleck et al.
Decided, October 28, 1892.
Deeds — Uncertainty as to the Estate Granted to ''Hevrs*' of the Son of
the Grantor — Where no Words of Perpetuity were Used — Lease for
Gas and Oil of Lands thus Conveyed — Operations by the Lessees
Can Not he Enjoined by Children of the Son of the Grantor.
A deed granting a life estate to a daughter of a grantor and her husband
with a covenant that the premises after the death of the life ten-
ants "shall vest in and become the legal property of the heirs" of
the grantor's son, in the absence of words of perpetuity is a con-
veyance of a fee simple estate in the remainder to the children of
518 CIRCUIT COURT REPORTS— NEW SERIES.
Wollam V. Van Vleck. [Vol. XII, N. Q.
the grantor; and the children of the son of the grantor, if any in-
terest in the property was conveyed to them, took a life estate only,
and are not entitled to an injunction against operations under an
oil lease executed by the daughter of the grantor and her husband.
The words "forever" or "to one and his assigns forever" add no force
to a grant of an estate in lands.
ScBiBNEB, J.; Bentley, J., and Haynes, J., concur.
Appeal from Wood Common Pleas Court.
It appears from the evidence and proof in the case that Benja-
min Wollam in his lifetime was the owner of certain lands which
are described in the petition, and in regard to which the con-
troversy here arises.
The said Benjamin Wollam had two children, both now living ;
one Leah Crowell, wife of the defendant, Agustus Crowell; the
second William M. Wollam, one of the defendants in this action.
The said William M. Wollam has three daugbters, the plaintiffs
herein, viz.: Dora H. Wollam, Laura S. Wollam and Loraine
Yambert.
July 16, 1883, the said Benjamin Wollam executed and de-
livered the deed which is involved in this controversy; this deed
was delivered for record, July 7, 1884; afterwards, and before
the commencement of this suit, the said Benjamin Wollam died
intestate. An oil and gas lease of (the premises in question was
executed by Leah and Agustus Crowell, the grantees for life
named in the deed, to Frank Drake, May 14, 1890. This lease
was afterwards assigned to the defendant, Van Vleck, who is
asserting his right to proceed thereunder, and with the defend-
ant, Jesse Graham, threatens to enter and drill oil wells upon
the premises in question, appropriating the oil and gas imder-
lying the same to their own use. It is alleged (that these threat-
ened acts on the part of Van Vleck and Qraham will operate to
the waste and injury of the premises.
The material allegations in the petition in this regard are as
follows :
**That on said last-named date, said Benjamin Wollam de-
signing and intending to convey to the defendants, Leah and
Agustus Crowell, an estate for life for each of them in said
lands, and designing and (thereby intending to convey the estate
CIRCUIT COURT REPORTS— NEW SERIES. 519
1910.] Wood County.
in remainder therein to these plaintiffs, procured a scrivener to
prepare such deed and directed and instructed him to write in
said deed a grant of said lands to Leah and Agustus Crowell
during the life of them and of the survivor of them with re-
mainder over to the children of the defendant, William M.
Wollam; that thereupon said scrivener did prepare said deed
•granting said life estate as directed, but by mistake he wrote
in said deed that said estate in remainder should vest in the heirs
of said William M. Wollam instead of writing therein that the
same should vest in the children of said William M. WoUam ns
he was instructed to do. And said deed as thus prepared with
said mistake and incorrect provision was, through inadvertance
and mistake, executed and delivered by said Benjamin Wollam,
and was on July 7, 1884, duly filed for record and recorded in
Vol. 73, p. 265, of the record of deeds of Wood county.
**That at the time of the delivery and acceptance of said deed,
said grantees and each of them knew and understood said design,
intention and purpose of said grantor as hereinbefore stated, and
accepd:ed said conveyance with full understanding that they
thereby acquired respectively the estate which said grantor de-
signed to convey and directed should be written in said deed.
That thereafter, and before the commencement of this action,
said Benjamin Wollam died intestate, leaving as his sole heirs
at law the defendants, Leah Crowell and William M. Wollam,
both of whom still survive him.
** Plaintiffs aver that said deed by the intention of the parties
and upon a fair and reasonable construction thereof, conveyed
to plaintiffs and vested in them an estate in remainder in said
lands, after the termination of said life estate, but if said deed
does not in fact and in law in its present form convey said es-
tate in remainder to plaintiffs, it is ithe cause of the mutual mis-
take of the parties thereto, and of the scrivener who prepared
the same as hereinbefore stated, and said deed should be cor-
rected so as to convey said lands according to the true intent
and direction of said grantor and the other parties thereto as
hereinafter prayed. Wherefore plaintiffs say, and aver that said
defendants, Leah and Agustus Crowell, have an estate for life
in said land, and that plaintiffs are the owners in fee of an es-
tate in remainder in said lands, after the termination of the life
estate, of said defendan/ts, Leah and Agustus Crowell.
** Plaintiffs further aver that said lands contain and are under-
laid at great depth with valuable deposits of petroleum oil ; that
said defendants, Leah and Agustus Crowell, having no further or
other interest in the said lands than their said life estate, did on
May 14, 1890, execute and deliver to one Frank Drake a certain
520 CIRCUIT COURT REPORTS— NEW SERIES.
WoUam V. Van Vleck. [Vol. XII. N. S.
instrument of lease purporting to grant to said Frank Drake, his
heirs and assigns, the right to enter upon said lands and drill
and operate for, and remove therefrom the oil contained therein.
That subsequently said Frank Drake assigned the said instru-
ment and all the rights therein purported to have been given to
the defendant, George H. Van Vleck, who now holds the same
and is asserting his rights to enter upon said lands and drill
wells for oil therein. That on October 21, 1890, plaintiffs notified
said defendants, George H. Van Vleck and Jesse Graham, of
plaintiffs' interest in said lands and warned said defendants not
to enter (thereon and not to drill any wells therein."
The petition then proceeds to aver, that:
**The defendants, George H. Van Vleck and Jesse Graham,
are threatening to commence drilling an oil well on said lands,
and are now placing lumber, timbers and material thereon for
the purpose of erecting a derrick on said lands, and are threaten-
ing to drill a well therein to a great depth to reach the oil
bearing rock which underlies said lands and to draw therefrom
the valuable deposits of oil therein contained, and to take and
appropriate said oil and to wholly deprive said plaintiffs of the
benefit thereof."
The petition then proceeds to aver that this threatened ac-
tion on the part of Van Vleck and Graham will operate to the
waste and injury of the estate of the plaintiffs in the lands; and
they aver that the lease is absolutely void and conveys no right
upon Van Vleck and Graham to enter upon said premises and
operate for oil. Wherefore, plaintiffs pray that the said deed
of conveyance from Benjamin WoUam may be decreed to con-
vey to plaintiff an estate in remainder in said lands. Or if said
court shall be of the opinion that in the present form of such
deed, such decree can not be made, plaintiffs pray that the said
deed may be so corrected and reformed as to accord with the
true intent and direction of the parties thereto, by substituting
the word *' children" for the ^^rd *' heirs" in the grant of said
estate in remainder, so that said portion of said deed shall read,
**Iit is further covenanted by and between the parties to this
conveyance that after the death of both of the above named
grantees the within described premises shall vest in and become
the legal property of the children of one William M. WoUam,
CIRCUIT COURT REPORTS— NEW SERIES. 521
1910.] Wood County.
who is the son of the grantor thereof," and for a decree enjoining
the defendants, Van Vleek and Graham, from proceeding to enter
and drill upon the premises.
Upon the trial of the case there was given, subject to objec-
tions, testimony (tending to show that the draughtsman of the
deed w^as instructed to insert the word "children" where the
word ** heirs" appears therein as alleged in the petition and he
substituted the word *' heirs" for the word ** children" because
as he understood it, it was a more comprehensive term and
equivalent.
There were answers and replies thereto, filed in the case, and
the question substantially is whether or not the plaintiffs are en-
titled to have the deed reformed as claimed by them.
Now the deed reads as follows: **Know all men by these
presents that I, Benjamin Wollam, of the village of Rising Sun,
O., for the consideration of $3,000 received to my full satisfac-
tion of Leah Growell and Agustus Crowell, the grantees, do
give, grant, bargain, sell and convey unto the said grantees (the
words ** heirs and assigns" being run through with red ink)
the following described premises"; then follows the description
of the lands, and (then comes this clause in the deed: *'It is
further covenanted by and between the parties to this conveyance
that after the death of both of the above named grantees, the
within described premises shall vest in and become the legal
property of the heirs of one William M. Wollam, who is the son
of the grantor thereof."
This conveyance is made upon the express condition that the
said grantees shall take, keep and care for the said grantor, dur-
ing his natural lifetime or any part thereof at his option, pro-
viding him, the said grantor, with an agreeable and pleasant
home, together with all things necessary for his health and com-
fort. The evidence tends >to show that these stipulations pro-
viding that the grantees for life shall provide for the grantor,
constitute the only valuable consideration upon which this instru-
ment was executed and delivered. It then proceeds:
**To have and to hold the above granted and bargained prem-
ises with the appurtenances thereunder belonging unto the said
522 CIBCUIT COURT REPORTS— NEW SERIES.
Wollam V. Van Vleck. [VoL XII, N. 8.
grantees (heirs and assigns erased by red ink) forever. And I,
the grantor, do for myself and my heirs, executors and adminis-
trators, eovenaot with the said grantees (heirs and assigns again
erased by red ink) that at and until the ensealing of these pres-
ents, I am well seized of the above described premises as a good
and indefeasible estate in fee simple, and have a good right to
bargain and sell the same in manner and form as above writ-
ten; that the same are free, clear and unincumbered except as
above written, and that I will warrant and defend said premises
with the appurtenances thereunder belonging, to the said gran-
tees (heirs and assigns again erased in red ink) , forever against
all lawful claims and demands whatsoever, except as aforesaid."
Now it may be noted in this connection that according to the
law as laid down in 1 Washburn, Real Prop., 156, according to
the views there expressed, the words ** forever" "or to one and
his assigns forever" adds no force whatever to the grant. It
adds nothing, I should say, to the estate granted. The addition
of these simple words as they appear here, "To have and to
hold the above granted and bargained premises with the ap-
purtenances thereunder belonging unto said grantees forever,"
so far as force and effect are to be given to the conveyance, is
precisely as if the word "forever" is not here added.
We adhere to the opinion expressed on the hearing that no
case is made under the pleadings for a reformation of this in-
strument.
The rights of the parties are to be determined on a proper and
reasonable construction of the language used in the deed itself.
If in fact a life estate only is conveyed, the plaintiffs are not
entitled to relief, as was conceded in the argument, when the
owner of the life estate has any such interest in the lands con-
veyed as entitles such owner to quarry or open mines or to drill
for gas or oil, has any interest in the substance underneath the
surface, whether in mines already down or not, and can not
therefore complain that the owner of the preceding life estate is
committing waste in opening mines or drilling for any underly-
ling substance.
One of the principal questions arising in the case is occasioned
by the fact that no words of perpetuity are contained in this in-
strument so far as any of the parties to the controversy are con-
CIRCUIT COURT REPORTS— NEW SERIES. 528
1910.] Wood County.
cerned. Plainly and clearly the grant to Leah and Agustus Crow-
ell is of a life estate. If the covenant contained here, viz., **Tt
is further covenanted by and between the parties to this convey-
ance that after the death of both of the above named grantees,
the within described premises shall vest in and become the legal
property of the heirs of one William M. Wollam, who is the son
of the grantor hereof; if these words are to be construed
into a grant to the heirs of William M. Wollam, so far as it at
present appears, there are no words of perpetuity ; it is simply
a grant, if it be a grant at all, that the grantees shall take an
estate in fee, or an estate other than one for life.
In some states by statute it is provided, or the same provision
is made in regard to the construction of deeds as is made in re-
gard to the construction of wills. This is so in Alabama, Arkan-
sas, Georgia, Iowa, Kentucky, Tennessee, New York, Texas, Vir-
ginia, Maryland and perhaps some other states, but no such pro-
vision is contained in any statute in Ohio, and Mallon in his
work takes occasion to express dissent as to legislation of this
character, and I may say in this connection that many of the
decisions cited in the argument of this case for the plaintiff in
error are from the courts of states where statutes such as I have
mentioned are in force.
Now as bearing upon the case here presented, I will refer to
the case of Ford v. Johiison, 41 Ohio State, 366, the syllabus of
which reads : **In a deed of bargain and sale, the grant was 'unto
said Charles Cline and his lawful issue, to go to his surviving
brother or brothers and to their heirs and assigns.' '' Martin,
J., says:
*'The original action was brought by Ford and others, the chil-
dren and grandchildren of one Cline, to recover possession of
land in Clinton county. The case is this: In September, 1824,
Salters by deed of bargain and* sale conveyed the premises to
Cline. The grant is *un/to the said Charles Cline and to his
lawful issue, and in case he should die without leaving lawful
issue, to go to his surviving brother or brothers and to their
heirs and assigns.' '*
It would seem beyond question that the words "lawful issue''
are equivalent to the word ** children" as it is claimed to have
524 CIRCUIT COURT REPORTS— NEW SERIES.
WoUam V. Van Vleck. [VoL XII, N. a
been written in this deed. The habendum runs ''unto the said
Charles Cline and his lawful issue, to the only proper use of the
said Charles Cline and his lawful issue (as above mentioned)
forever." There are covenants of seizin, of quiet enjoyment and
against incumbrances which are with "the said Charles Cline
and his lawful issue." These are the material features of the
deed; and the court comes to the conclusion that the grant to
Cline and his issue, they to hold forever, conveyed to Cline noth-
ing but a life estate.
In Brown v. Bank, 44 O. S., 269, the Supreme Court laid down
a more liberal rule as to the proper interpretation of the terms
of a mortgage ; they say :
"By a well established general rule the use of the word 'heirs,'
or other appropriate words of perpetuity in a mortgage or other
deed of conveyance of lands, is essential to pass a fee simple
estate; but this is not an inflexible rule admitting of no excep-
tion or qualification.
"Where the language employed in, and the recitals and condi-
tions of, a mortgage plainly evidence an intention to pass the en-
tire estate of the mortgagor as security for the mortgage debt,
and the express provisions of the instrument can not otherwise
be carried into effect, it will be construed to pass such estate, al-
though the word 'heirs' or other formal word of perpetuity is
not employed.
"A mortgage was executed in Indiana upon lands in Ohio.
By the terms of the mortgage the mortgagors 'mortgage and
warrant' the lands to the mortgagee (without the usual words
of succession or perpetuity) to secure the payment of negotiable
notes, and provide that upon default of payment they are to
be 'collected by foreclosure of the mortgage or otherwise.' By
virtue of an Indiana statute, the words 'mortgage and warrant'
are operative to pass a fee simple estate in the lands mortgaged.
Held, the mortgage security does not terminate with the death
of the mortgagee ; but upon a foreclosure proceeding, after the
death of the latter, a sa^.e of the mortgaged premises in fee
simple is authorized."
There is a very interesting discussion in that case, but the de-
cision goes mainly upon the provision that the strict rule of few
is to be recognized in cases where mortgages are given for se-
curity as payment of a debt.
CIRCUIT COURT REPORTS— NEW SERIES. 525
1910.] Wood County.
In the case of Smith v. Block, 29 0. S., 488, the syllabus reads:
**Real estate was conveyed to C for life, and after her death
to her children by E, during the life of each of the children, and
after their death to E and his heirs, habendum to C, during life,
and after her death to the *said surviving children,' and after
the death of each of them to E and his heirs: Held:
** (1) That the provision for the children was contingent upon
their surviving their mother, and only such of the children as
survived her took the estate.
*' (2) That E took a vested remainder in fee, subject to the
intervening contingent estate of the children/'
The application of the rule there is, that the devise being to
the children of C, the life estate having been conveyed to C with
a provision for the children, was contingent upon the death of
the mother to whom the life estate was given.
Now upon these authorities and upon the general doctrine of
the books, we are clearly of the opinion that even if any estate
be granted to these plaintiffs, by this deed, it is an estate for
life only. We do not undertake to decide that they took an es-
tate for life, but if they did take anything, it is simply an estate
for life.
The result in that case would be that the two children of Ben-
jamin Wollam, Mrs. Crowell and William M. WoUam, took the
fee simple in remainder. These plaintiffs as life tenants would
have no right to the relief which they pray for in their petition,
and the judgment of the court is that the petition be dismissed
with costs.
526 CIRCUIT COURT REPORTS— NEW SERIES.
Wm. Powell Co. v. Gaskins. [Vol. XII. N. 3.
INJURY FROM EXPLOSION OF MOLTEN BRASS IN A CRUCIBLE.
Circuit Court of Hamilton County.
Tub Wm. Powell Co. v. Claude Gaskins.
Decided, January 15, 1910.
Proximate Cause of Explosion — Variance between Allegations and Proof
— Res Ipsa Loquitur — Presumption — Evidence — Charge of Court.
It is evident that the oil which might collect on brass turnings would
pass off in form of vapor long before the brass was melted, and
could not therefore have caused the explosion in the crucible which
is complained of in this case; and in the absence of evidence that
ordinary brass, whether turnings or ingots, will form a scum In
fusion of sufficient strength to imprison vapors between it and
the molten metal and cause an explosion, no presumption arises
that the use of oil brass turnings was the proximate cause of the
explosion.
Thornton M, Hinkle, Rohertson (& Buchwalter and Theodore C.
Jung, for plaintiff in error.
Kinkead, Rogers <& Ellis, contra.
GiFFEN, P. J. ; Swing, J., and Smith, J., concur.
The only ground of negligence relied upon is stated in the peti-
tion as follows:
**That the defendant was guilty of carelessness and negligence
in this, to-wit: that it knew or should have known and was
bound to know that the said brass turnings in said crucible were
covered with oil and that therefore said vapors and gases were
liable to form as aforesaid between the surface of said molten
metal and the scum forming on the top thereof, and that an explo-
sion was liable to happen if the plaintiff attempted to skim the
surface of the same in the usual manner. That the plaintiff
had no knowledge or information about these facts and that the
defendant was guilty of carelessness and negligence in not ad-
vising the plaintiff thereof. *'
It is self-evident that the oil on the brass turnings was con-
sumed or passed off in the form of vapor long before the brass
was melted and could not therefore have caused the explosion.
There is no evidence tending to prove that ordinary brass, wheth-
CIRCUIT COURT REPORTS— NEW SERIES. 527
1910.] Hamilton County.
er clippings or ingots, will in fusion form a scum sufficient to
imprison vapors and gases between it and the molten metal.
The plaintiff has therefore failed to sustain the cause of action
stated in the petition; but counsel contend that the evidence
makes a good cause of action and that the variance between the
allegation and proof is immaterial. Evidence was offered tend-
ing to prove that brass sweepings gathered from the floor of
the foundry contain nails, other particles of iron, sand and like
impurities, and that when a shovelful of such sweepings is added
to the ingots of brass in the crucible, a scum or slack (slag) dur-
ing the process of melting forms upon the surface and holds the
gases between it and the molten brass, and that some brass turn-
ings contain iron and other impurities which would produce a
like result, although it is admitted that brass turnings free from
such impurities would not. At the conclusion of the evidence
the court upon motion made by the defendant ruled out all the
testimony pertaining to brass sweepings, so that the only ma-
terial from which such scum could form are the brass turnings.
The defendant knew that it was customary to add a shoveful of
brass turnings to the other metal in the crucible, which practice
was not ordinarily dangerous ; but the evidence tending to prove
that it knew or ought to have known that the brass turnings in
this particular heat, as it is called, contained iron and other im-
purities that might cause the result claimed or be otherwise dan-
gerous, is extremely meager, unless it be, as the trial court
charged, the duty of the master to furnish reasonably safe ap-
pliances to the servant.
There are several cases in the Ohio State Reports in which this
duty is thus expressed, but the late case of the C, H, & D. By, Co.
V. Frye, 80 0. S., 289, the benefit of w^hich the trial judge evi-
dently did not have, places the limit of the master's duty at ordi-
nary care in providing a safe place and appliances. The great
weight of the evidence is opposed to plaintiff's theory of the
case either as presented by the pleadings or the evidence, and it
is even more probable that the accident was caused by the use of
a damp skimmer although by no means certain.
It is further claimed that the maxim ^*Res ipsa loquitur' ' ap-
plies. A statement of this maxim by Shearman & Redfield on
528 CIRCUIT COURT REPORTS^NEW SERIES.
Wm. Powell Co. v. Gaskins. [Vol. XII, N. S.
Negligence is cited with approval in the case of Traction Co. v.
nolzenkamp, 74 0. S., 379 :
' ' Proof of an injury, occurring as a proximate result of an act
of the defendant, which would not usually, if done with due care,
have injured any one, is enough to make out a presumption of
negligence. When a thing which causes the injury is shown to
be under the management of the defendant, and the accident is
such as in the ordinary course of things, does not happen, if
those who have the management use proper care, it affords rea-
sonable evidence, in the absence of explanation by the defend-
ant, that the accident arose from want of care."
The act relied upon as a proximate cause of the injury both
in the petition and the evidence is the use by the defendant in the
crucible of oil brass turnings, and if the evidence shows that such
use was the proximate cause, then, in the absence of explanation,
the presumption might arise that defendant was negligent; but
it is the failure of proof sufficient on this issue ot which we com-
plain.
Counsel for defendant in error say in their brief: ''Defend-
ant introduced the testimony of several witnesses experienced
from twenty-five or thirty years' work, in mixing and handling
metals, to the effect that there is a danger to explosion to be ap-
prehended from the melting of oil brass turnings with pure
metal." If this were true, the defendant was required to ex-
plain why it permitted the use of brass turnings without giving
due warning of the danger to plaintiff; but we think the record
does not support the statement, nor does it show, by a prepon-
derance of the evidence, from all sources, that the use of oil
brass turnings with other brass metal, is liable to cause an ex-
plosion. Until some act of the defendant is shown to be the
cause of the explosion it is premature to inquire whether negli-
gence should be presumed or proved.
Special instruction No. 5 requested by the defendant does not
embrace actual knowledge as well as probable knowledge of the
danger complainexi of, hence it was not error to refuse it. The
judgment will be reversed for error in overruling the motion
for a new trial upon the ground that the verdict is not sustained
by sufficient evidence, and cause remanded for a new trial.
CIRCUIT COURT REPORTS— NEW SERIES. 529
1910.] Cuyahoga County.
SALE OF COLLATERAL BY BANK HOLDING NOTE FOR.
COLLECTION.
Circuit Court of Cuyahoga County.
Edward W. Moore v. The Central National Bank op
Cleveland.
Decided, February 7, 1910.
Promissory Note Secured by Collateral — Sale of the Collateral to Itself
— By Bank to which the Note had been Sent for Collection — Bank
Held for Value of the Collateral above Amount Due on the Note —
Meaning of the Word "Holder" — Notice to Owner — Affency—Tru^t
Relation — Consent of Owner to Purported Sale — Statute of Limi-
tations.
1. A bank having in its possession a promissory note for collection is
not the "holder*' of the note.
2. The rule that a pledgee of securities can not become the purchaser
thereof either at a public or private sale, except where authority
so to do has been expressly conferred, is a bar to the purchase of
such securities by a bank which received for collection the note
to which the securities were attached, where the note authorizes
the "holders" thereof in the event of default of payment at ma-
turity to sell the securities in whole or in part with the right
reserved to the holder to become the purchaser and absolute owner
thereof, free of all trusts and claims.
3. The maker of a note, which was not paid at maturity, can not be
held to have been given notice of the sale of the securities pledged
for its payment by the mere return to him of the canceled note,
where it appears that he had requested the bank to pay the note
for him and retain the securities for its own protection, notwith-
standing the bank declined so to do at the time the request was
made.
4. Moreover the bank may be said on principles of equity to have held
the stock as trustee for the maker of the note, and therefore not
liable for conversion of the securities until such time as it actually
parted with them by sale, or gave notice to the maker that it
claimed to hold the stock as its own and denied that he had any
right to it in the absence of a contract with respect thereto.
5. In such a case, failure of the maker to claim the stock, or to pro-
test against its being held by the bank, did not amount to consent
on his part to the purported sale, and the statute of limitations did
not begin to run against him until he received notice from the
bank of its claim of ownership under the purchase.
580 CIRCUIT COURT REPORTS— NEW SERIES.
Moore v. Bank. [Vol. XII, N. S.
Kline, Tolles & Morley, for plaintiff.
Iloyt, Dustin, Kelley, McKeehan & Andrews, contra.
Marvin, J.; Henry, J., concurs; Winch, J., not sitting.
Heard on appeal.
The plaintiff brings his action against the defendant, which is
a banking institution, organized under the laws of the United
States, and doing business in the city of Cleveland, state of Ohio,
praying that certain certificates of stock of the Detroit United
Railways Company, which he once owned and were afterwards
in the hands of the defendant, may be delivered to the plaintiff
upon his paying to the defendant such sum of money as the court
shall find is owing by the plaintiff to the defendant; that an
accounting may be had of the dividends received by the defend-
ant on said stock while in its hands, and that if it shall be found
that the defendant has disposed of said stock, then that an ac-
counting may be taken to include whatever may have been re-
ceived by the defendant for said stock, and that the plaintiff may
recover whatever the amount received in dividends and upon
the sale of said stock shall exceed the indebtedness of the plaint-
iff to the defendant.
The following facts we find established :
Prior to December 20, 1901, the plaintiff was indebted to the
defendant in the sum of $78,000, and also prior to said 20th
of December, 1901, the plaintiff was indebted to the Industrial
Trust Company, a banking institution of Philadelphia, Pa., in
the sum of $25,000, for which the last named company held the
plaintiff's note, and as collateral security for the payment there-
of held the certificates of stock which are the foundation of the
present action, and which certificates were the property of this
plaintiff. The par value of said stock was $50,000. On said
20th of December, 1901, the trust company sent to the defendant
the said note, in the city of Cleveland, Ohio, where the plaintiff
then resided, for collection, and at the same time sent with the
note the said collateral. The $25,000 note became due on said
date and the defendant immediately notified the plaintiff that
said note was in its hands for collection, and that it also had
in its hands said collateral. The plaintiff answered that he was
unable to pay the note that day or the next, but would arrange
CIRCUIT COURT REPORTS— NEW SERIES. 581
1910.] Cuyahoga County.
it very shortly. Before the 31st day of December, 1901, the
plaintiff received notice more than once, after the notice first
mentioned, that the note was in the hands of the defendant for
collection and must be paid. No payment, however, was made
by the plaintiff on the note, and on the 31st day of Deoember,
1901, the defendant notified the plaintiff that the note must be
paid at once, or that the collateral would be sold. The note
referred to contained the following provisions :
((
upon default of payment at maturity
do hereby authorize and empower the holders hereof, for
the purpose of liquidation of said note, and of all interest and
costs thereon, to sell, transfer and deliver the whole or any part
of such security (being the 500 shares of Detroit United Rail-
ways Company stock) without any previous demand, adver-
tisement or notice, either at broker's board or at private sale,
at any time or times thereafter, with the right on the part of
such holders to become purchasers and absolute owners thereof,
free of all trusts and claims.''
On the afternoon of said 31st day of December, at the close
of banking hours, the defendant, without any notice to anybody,
in front of its place of business on Superior avenue, in the city
of Cleveland, announced that the said five hundred shares of
stock was now offered for sale to the highest bidder. Nobody
paid any attention to said announcement except the officers or
employes of the defendant. The attorney of the defendant made
the announcement and the offer of sale, and the defendant bid
for said stock the sum of $25,050, being the exact amount that
* day owing upon the note already mentioned. No other bid was
made and the attorney who had offered the stock for sale, an-
nounced that it was sold to the defendant. The next day being
the 1st of January, and a holiday, no entry of the transaction
was made on the books of the defendant, but on the 2d of Janu-
ary an entry was made that the stock was sold to the defendant
at private sale, and thereupon the defendant remitted to the
trust company in Philadelphia the amount then due upon its
note, being the amount for which said stock was so purported
to be sold.
Prior to the 31st of December, aforesaid, the plaintiff had
stated to the defendant, what was true, that he was laboring un-
der great financial embarrassment ; that payment on notes held
682 CIRCUIT COURT REPORTS— NEW SERIES.
Moore t. Bank. [YoL XII, N. 8.
against him by various parties was being demanded; that his
assets were largely in excess of his liabilities, but that he was
unable to convert such assets at once into money, and therefore
unable to pay his obligations as they became due; that another
bank in the city had promised him that so far as notes came to
it for collection it would arrange for the payment of same, and
hold the collateral to protect itself, and he urged that the de-
fendant do the same thing in regard to this note. This, the de-
fendant told him it would not do ; that it must insist that he pay
the note. The plaintiff had no knowledge of this purported sale
on the Slst of December, other than the notice given to him on
the morning of that day, that unless the note was paid that day
the collateral would be sold. And the plaintiff prior to the 31st
of December, said to the defendant that he hoped if the stock was
sold there would be no publicity about it, as he feared the ef-
fect on the market value of the stock and upon his credit if it
should be publicly known that this collateral was being sold.
The plaintiff says in his testimony, that the first knowledge
he had of this sale was communicated to him by the president of
the defendant on the 14th of January, 1902; that he was then
told by this president that they had sold the stock to themselves,
and had paid the note to the trust company, and would hold
this collateral as security to themselves for the payment they had
made and for the other indebtedness of $78,000 which plaintiff
then owed to the defendant. This conversation the president
of the defendant denies, and we are not prepared to say that the
plaintiff sustains by preponderance of the evidence that this con-'
versation took place, as he relates it. But in this opinion we
treat the matter as though the plaintiff had not so testified. We
think he is as likely to be mistaken about his remembrance of
this as the president of the defendant. But, however, we do
find that on the 5th of February, 1902, the defendant trans-
mitted by mail to the plaintiff the note which it had paid to the
trust company in Philadelphia, which was canceled as **paid*'
on the 31st day of December, 1901, and that such cancellation
was stamped upon the note upon the date last named. The
plaintiff acknowledged by letter the receipt of this note so can-
celed. Beyond that there was no communication between the
plaintiff and the defendant in reference to said note until June
CIRCUIT COURT REPORTS— NEW SERIES. 588
1910.] Cuyahoga CJounty.
4, 1902, while the defendant still held the said collateral, when
the plaintiff sent to the defendant, by mail, a draft drawn for
him or by Mr. Charles Ashbrook for $37,500, and by letter accom-
panying said draft advised the defendant that he had sold the
500 shares of Detroit United Railways stock which it was carry-
ing for him, and that this draft was in payment therefor. In
this letter he requested the defendant to apply the proceeds of
this draft on his indebtedness to the bank. The defendant im-
mediately notified the plaintiff that it claimed to own said stock ;
that it had purchased the same on the 31st day of December,
1901, and denied all right on his part to any interest in the
stock.
Thereafter, partly in the month of June and partly in the
month of July, 1902, the defendant sold said stock for $40,000.
This suit was brought on the 9th of April, 1906. Before that
time the plaintiff had fully paid to the defendant all of his in-
debtedness to it other than that connected with this note, being
the $78,000 hereinbefore mentioned. The plaintiff claims, that
he is entitled to the full amount received by the defendant on the
sale of this stock, less the amount necessary to reimburse it for
its payment to the trust company at Philadelphia. The de-
fendant denies that under the facts the plaintiff is entitled to any
recovery, but insists that by virtue of the purported sale of De-
cember 31st it became the absolute owner of this stock, and the
defendant further pleads, that in any event more than four
years elapsed after its appropriation of this stock as its own be-
fore any suit was brought, and that more than four years elapsed
after the plaintiff had knowledge of its claim that the stock be-
longed to itself, because it says that th^ plaintiff was bound to
take notice of that fact, if not before then on the day that he re-
ceived from the defendant the canceled note which it had paid
to the trust company in Philadelphia; and that the plaintiff is
therefore barred by the statute of limitations from prosecuting
this action.
Many additional facts were developed in the trial of the case,
but we regard those already stated, with a proper application of
the law to them, as decisive of the case.
But for the statute of limitations the plaintiff is entitled to
recover, unless by the purported sale of the stocks on the 31st
634 CIRCUIT COURT REPORTS— NEW SERIES.
Moore v. Bank. [VoL XII, N. S.
of December, 1901, the defendant became the absolute owner of
this stock, either because the sale alone transferred the owner-
ship, or because the same was ratified by the plaintiff when he
came to know of it, for even if the sale did not confer a complete
title when it was made, the title might become complete by ratifi-
cation of the plaintiff after knowledge of it came to him.
It becomes necessary then to consider whether the sale in and
of itself transferred the title to the defendant. It is too well
establish to require the citation of authorities or any process
of reasoning, that except where authority is expressly given for
that purpose, the pledgee can not be the purchaser of the pledged
securities, either at public or private sale. The language of the
note which it is claimed authorized the purchase here has al-
ready been quoted, and is here repeated:
**I, upon default of payment at maturity do
hereby authorize , the holders hereof • • •
to sell the whole or any part of such security * * * at any
time thereafter, with the right on the part of such holders to
become purchaser and absolute owner thereof, free of all trusts
and claims."
It will be noticed that this authority to purchase is given only
to the holder of such securities. The sale was made, not to the
pledgee, but to an agent of the pledgee, whose only interest in the
matter was to obtain payment of the note. The purchase was
made not for the pledgee, but for the agent in its own right.
Was the defendant the holder of the note in the sense in which
that word is used in the clause of the note quoted! We think
not. Parsons, Notes & Bills, Section 253, reads:
•
**By the holder of negotiable paper is meant in law the owner
of it, for if it be in his possession, without title or interest, he is
in general considered only as the agent of the owner."
Daniels in his work on Negotiable Instruments, Section 716,
defines the holder of a negotiable instrument as:
** Anyone who has a<jquired it in good faith for a valuable con-
sideration from one capable of transferring it."
Surely the agent with whom the note had been left for col-
lection, and to whom the securities had been delivered, for, sale, if
necessary to secure the collection, except he be the holder of the
securities as we have said the defendant was not in this case,
CIRCUIT COURT REPORTS— NEW SERIES. 585
1910.] Cuyahoga County.
could not, either as against the pledgee or the pledgor, become
the purchaser at the sale made by such agent. Mecham on
Agency, Section 68 reads:
"For the same reason, one can not be both the party and the
agent for the opposite party in the same transaction. Thus, as
will be more fully explained hereafter, except with the full
knowledge and consent of his principal, an agent appointed to
buy lands or goods for his principal can not buy of himself ; and
an agent to sell lands or goods for his principal can not sell
to himself, nor can an agent authorized to receive payment for
his principal bind the latter by the receipt of money due from
himself."
And so we hold that the defendant did not become the owner
of these stocks by virtue of the purported sale of December 31,
1901.
Under the facts, as stated, the only knowledge the plaintiflE
bad of what the defendant had done with the securities was ob-
tained from the delivery of the canceled note to him by the de-
fendant on the 5th day of February, 1902. From that fact he
did know that the defendant had paid his note, and we of course
knew that it still held the collateral.
Of course, if the defendant had, as a volunteer, paid the debt
of the plaintiff to the trust company of Philadelphia, the plaint-
iff was entitled forthwith to the delivery of the stock to him, and
might have made demand at once for such delivery, treating the
further holding of the collateral as a conversion then made, and
if he delayed making such demand beyond the period of limita-
tion fixed by the statute he would be barred. In view, however,
of the fact that he had requested the defendant to pay the note
for him and retain the securities for its own protection, al-
though the defendant had notified him that it would not do so,
yet when he found that it had paid the note, and still held on to
the collateral securities, he would have been and should have been
defeated, if he had brought an action for the delivery of the
stock to him, or an action for the value of the stock, on the
ground that the defendant had converted the same to its own use.
The most favorable construction to the conduct of the defendant
which the plaintiff could have given, he being ignorant of the
purported sale on the 31st of December, was that which his con-
586 CIRCUIT COURT REPORTS— NEW SERIES.
Moore v. Bank. [Vol. XII. N. S.
duct indicated that he did give, to-wit, that the defendant had
complied with his request to pay the note and retain the col-
lateral for its own protection. In short that it — ''Vowing it
would ne'er consent, consented."
It is said that this is the most favorable construction which the
plaintiff could give to the conduct of the defendant because to
have given any other construction would have resulted, if such
other construction was justified, in depriving the defendant of
the protection afforded by the retention of these stocks. If the
plaintiff was justified, as we think he was, in giving the construc-
tion to the conduct of the defendant first suggested, then there
was no ratification by him of the purported sale, because he
knew nothing of it ; nor was there any conversion, actual or con-
structive, by the defendant until the date in June, 1902, when
the draft was presented to the defendant and was notified that
the defendant claimed the stock as its own.
See Glidden v. Bank, 53 Ohio St., 588, the second and third
paragraph of the syllabus of which read as follows :
"2. If the pledgor do not so elect, the pledgee, while he re-
tains the possession and control of the property with the ability to
perform his part of the contract by restoring the property to
the pledgor, can not be held for its conversion, without demand
for its return accompanied with an offer by the pledgor to per-
from his part of the agreement.
"3. When, however, the pledgee puts it out of his power to
perform his part of the agreement, by an unauthorized dispo-
sition of the property, he will be liable for its conversion with-
out demand and offer of performance by the pledgor ; and when
he has so disposed of a part of the property, he may be held for
the conversion of all of it as of the time of such disposition.'*
Again, upon principles of equity, the defendant may be held as
holding this stock as trustee for the plaintiff after the payment
of this note, and so not liable for its conversion, until it actually
parted with it by sale in June and July, 1902, or in any event
until it notified the plaintiff in June that it claimed to own the
stock and denied that he had any right to it in the absence of
any contract about it.
For a discussion of this view see: Bispham's Principles of
Equity, Section 91 and following.
CIRCUIT COURT REPORTS— NEW SERIES. 687
1910.] Cuyahoga County.
After a discussion of the principle in Sections 91 and 92 this
writer says in Section 93 :
**The rule under discussion applies not only to persons stand-
ing in a direct fiduciary relation towards each other • • •
but also to those who occupy any position out of which a similar
duty ought in equity and good morals to arise.'*
It seems clear to us that in good morals, the defendant should
have held this stock for no purpose but to indemnify it for the
payment made to the trust company, and that it may well be
held, therefore, to have held this as trustee, in which case, so
long^ as it held it, the plaintiff had no right of action against it
until he tendered payment of the amount of his debt, and hence
was not barred in his present action by th^ statute.
This principle is stated in the case of Carpenter v. The Canal
Co., 35 Ohio St., 307, at page 317, as follows:
* * The court will sometimes make use of the machinery of a trust
to aid an injured party in obtaining property, the title to which
has been acquired by another by fraudulent means. • • •
Relief in such case is granted on the ground of fraud and the
statute of limitations will not be a bar where there is conceal-
ment. ' '
The third paragraph of the syllabus in this case reads :
'*An action for wrongfully depriving a mortgagee of his se-
curity is barred in four years, whether such action is for a tort
or for relief on the ground of fraud by charging the guilty party
as trustee. In the former case the action is deemed to have
accrued at the time of the injury, in the latter case, on the dis-
covery of the fraud.''
Perry on Trusts, Section 168, discusses constructive trusts, and
includes among them ''trusts that arise from constructive fraud,"
and says that:
**In this class the conduct may not be actually tainted with
moral fraud or evil intention, but it may be contrary to some rule
established by public policy for the protection of society. Thus
a purchase made by a guardian of his ward, or a trustee of his
cestui que trust, or by an attorney of his client, may be in good
faith, and as beneficial to all parties as any other transaction in
B88 CIRCUIT COURT REPORTS— NEW SERIES.
Moore v. Bank. [VoL XII, N. 8.
life, and yet the inconvenience and danger of allowing contracts
to be entered into by parties holding such relations to each other
are so great that courts of equity construe such contracts prima
facie to be fraudulent, and they construe a trust to arise from
them/'
And in Section 167 of the same work, it is said:
**It is not, however, the rule that the court will presume or
construe a trust to arise except in cases of absolute necessity;
for courts of equity will act upon the just preponderance of
all the facts and circumstances of proof in the case."
While it is not supposed that the defendant did that which
it understood to be a fraud upon the plaintiff, especially as the
evidence fails to show that the price it assumed to pay was not
fully as much as could have been obtained from any other per-
son, yet in holding on to this stock, under the purported sale
of December 31, 1901, it did that which in legal effect worked a
fraud upon this plaintiff, if it was done without his knowledge
or consent ; and we hold that though he knew that the defend-
ant was holding on to the stock, yet if he understood and had a
right to understand that such holding was simply to protect it-
self for the payment which it had made to the trust company,
his making no claim or protest about it did not constitute a con-
sent on his part to its holding such stock under the purported
sale. The result would be that the* statute of limitations did not
begin to run against him until he was notified in June, 1902, of
the claim of the defendant under such purchase.
The result is that we find the defendant did not become the
owner of the stock, by the purported sale on the 31st day of De-
cember ; that such sale was never ratified by the plaintiff. That
the only justification for the defendant in holding this stock,
after it had paid the note to the trust company, was to pro-
tect itself from loss on account of such payment, and that be-
cause in doing so, it was complying with what the plaintiff had
requested it to do. That it was not complying with the terms
under which it held the stock when it sold the same in June and
July, 1902, and that the plaintiff is entitled to an account-
ing and to a recovery for the amount received for the stock,
CIRCUIT COURT REPORTS— NEW SERIES. 589
1910.] Wood County.
with interest thereon, after deducting therefrom the amount
paid by it for the plaintiflE to the trust company, with inter-
est thereon, and an order is made accordingly.
TERM OF A GAS AND OIL LEASE.
Circuit Court of Wood County.
Henry Diehl v. Ohio Oil Co.
Decided, October 29, 1892.
Oas and Oil — Lessees Held to an Extension of Time — Where Oil Has
been Discovered, hut Not in Paying Quantities, and There is No
Limitation as to Time Except that a Well Shall be Completed With-
in One Tear.
Where a gas and oil lease provides that one well shall be completed
within a year, and the lessees make a cash payment of $1,500 on
the date the contract was executed and expend as much as |2,200
within the year in drUling a well, which yielded oil but not in
paying quantities, they are entitled to an extension of time within
which to make further search for gas and oil; and upon refusal
of the lessees to pay rental demanded on the theory that "no well
had been completed" injunction will not lie against them, within
five months of the completion of the well that was drilled, to re-
strain them from entering upon the premises and operating for
gas and oil.
James it Seney, for plaintiff.
Cook cfe Troup, contra.
ScBiBNER, J. ; Bentley, J., and Haynes, J., concur.
Appeal from Wood Common Pleas Court.
It appears that on July 26, 1890, the plaintiff, Deihl, being
the owner of certain lands situate in Wood county, more par-
ticularly described in the petition in this case, executed and
delivered to one William Fleming the instrument of which the
following is a copy :
*'In consideration of the sum of eleven hundred dollars, the
receipt of which is hereby acknowledged, Henry Deihl, of Pem-
berville, first party, hereby grants unto William Fleming, of
640 CIBCUIT COURT REPORTS— NEW SEBIB8.
Delhi V. Ohio Oil Co. [VoL XII, N. 8.
Oil City, Pennsylvania, second party, his heirs and assigns, all
the oil and gas in and under the following described premises,
together with the right to enter thereon at all times for the pur-
pose of drilling and operating for oil, gas or water, and to erect
and maintain all buildings and structures, and lay all pipes
necessary for the production and transportation of oil, gas or
water, taken from said premises. Excepting and reserving to
first party the one-sixth part of all oil produced and saved from
said premises, to be delivered in the pipe line free of co»t with
which second party may connect his wells, namely: (Here fol-
lows a description of the land.) To have and to hold the above
premises on the following conditions:
**If gas only is found, second party agrees to pay $300 each
year in advance for the product of each well while the same
is being used off the premises and first part^ to have gas free of
cost to heat three stoves in dwelling-house during same time.
** Whenever first party shall request it, second party shall
bury all oil and gas lines and pay all damages done to growing
crops and tiling by reason of burying and removing said pipe
lines or otherwise, said lines to be put below plow depth, the
damages to be decided by three disinterested parties.
* * No well shall be drilled nearer than three hundred feet to the
orchard, house or bam on said premises, and no well shall occupy
more than one acre.
**In case no well is completed within one year from this date,
then this grant shall become null and void, unless second party
shall pay to first party, twelve hundred and sixty dollars, in ad-
vance, for each year such completion is delayed, the rental to
continue until the oil is marketed, if produced in paying quanti-
ties.
* * The second party shall have the right to use suflScient gas, oil
or water, to run all necessary machinery for operating said wells,
and also the right to remove its property at any time.
* * It is understood and agreed that second party is to keep all
gates closed going to and coming from the place of operation.
If oil or gas can not be found in paying quantities then this lease
shall be returned to first party. ' '
Then follows some stipulations in the lease as to having the
agreement and conditions extend to the heirs, executors and
assigns of the respective parties.
The statement in this lease is that the grant is made by Deihl,
the owner of the land, in consideration of $1,100, while the proof
shows there was in fact paid to him $1,500.
CIRCUIT COURT REPORTS— NEW SERIES. 641
1910.] Wood County.
By its provisions, ss will be seen, one well was to be com-
pleted within one year; that year would expire on July 26,
1890. One well was completed on June 28, 1890, which was
within the time limited. This well was drilled as shown by the
testimony at an expense of about $2,200. It produced oil, but
not in paying quantities. A tank was built and connected
with the well, but not with any pipe line. The oil to the extent
of about twenty-six barrels was saved and removed about the
month of October, 1890. The testimony on behalf of the de-
fense tends to show that a check for the portion due this plaintiff
for oil was tendered to him. The plaintiff denies, however, that
t any such tender was made. Nothing further was ever done with
this oil.
On August 12, 1890, which was less than a month after the
expiration of the year, and again on the twenty-fifth of the same
month, and on the first of October, 1890, according to the tes-
timony of the plaintiff, he demanded that either the rental of
$1,260, which he claimed was due him, should be paid, or his
lease should be surrendered. The lease, I should say, by assign-
ment became the property of the defendant, the Ohio Oil Com-
pany, and all that was done under the lease was done by that
company.
The latter company refused to pay the rental claimed, and also
refused to return the lease, and the plaintiff on November 27,
1890, brought this suit. This was about four months after the
expiration of the first year mentioned in the lease within which
the first well was to be sunk.
The plaintiff in his petition in this case sets out, in substance,
as I have stated, the lease, the demand that was made, the re-
fusal to pay the $1,260 or return the lease, and avers in conclu-
sion that the defendants still claim to have some beneficial right
or interest in said lands under said lease, and by asserting and
threatening the same, cast a cloud upon the title of plaintiff in
the peaceable use and occupation of said lands thereby greatly
diminishing the value thereof and causing great and irreparable
damage, loss and injury to the plaintiff. That the defendant
still claims the right under said contract to enter upon said
lands, to erect derricks, drill wells, lay pipes and remove oil or gas
542 CIRCUIT COURT REPORTS— NEW SERIES.
DelU y. Ohio Oil Co. [YoL XII, N. S.
■ ■ »- ■■■—■■■■ -_■- ■■ ^m I I ■ »■ I I 11 ^^^^^ * 11 ■ ■
therefrom, and will, unless restrained by this Court, enter thereon
for such purposes and carry the same into execution, thereby
causing plaintiff great and irreparable damage, injury and an-
noyance.
Wherefore, plaintiff prays for an injunction restraining the
said defendant from asserting any further right, title or interest
in said lands under said contract, or otherwise from entering
upon said lands, and from proceeding further to erect derricks,
drill wells, lay pipes, or in any w^ay molest or disturb plaintiff
in the peaceable possession and enjoyment of said lands; that
the lease may be declared null, void and forfeited, that the same
may be surrendered to plaintiff and the order of this court may
cancel the same of record; and that the plaintiff may have all
other and further relief in the premises.
It will be noticed that there is no limitation contained in this
lease as to time. That is, so far as these provisions are con-
cerned, the lessee may operate upon the lands under its terms ex-
cept when oil or gas can not be found in paying quantities, then
this lease shall be returned to the first party. The only other
stipulation relating to the termination of the lease, is found in
this clause :
**In case no well is completed within one year from this date,
then this grant shall become null and void, unless second party
shall pay to said first party $1,260, in advance, for each year
such completion is delayed, the rental to continue until the oil
is marketed, if produced in paying quantities."
The consideration to the lessor, the plaintiff, is first, the sum
of $1,500. An absolute pajTnent of $1,500 in cash on the day
the contract was entered into. Further down there is reserved
to the plaintiff, the lessor, the one-sixth part of all the oil pro-
duced and saved from said premises to be delivered in the pipe
line free of cost, to which second party may connect its wells.
These are the two items of compensation for the privileges
granted, provided for in the lease. First, $1,500 cash; and sec-
ond, the reservation of one-sixth of the oil to be delivered into
tanks or pipe lines, and third, if gas only is found, the second
party is to pay $300 for the product of each well and first party
to have gas free of cost.
CIRCUIT COURT REPORTS— NEW SERIES. 548
1910.] Wood County.
These are the considerations moving to the plaintiff, the lessor,
provided in the lease : First. The consideration of $1,500 paid
for the grant. The reservation to the plaintiff of one-sixth part
of the oil to be delivered in tanks. Then it is further provided,
and this is the only other provision relating to compensation :
* * In case no well is completed within one year from this date,
then this grant shall become null and void, unless second party
shall pay to said first party twelve hundred and sixty dollars, in
advance, for each year such completion is delayed, the rental to
continue until the oil is marketed, if produced in paying quanti-
ties."
Now there was a well completed within one year. The lessees
strictly in compliance with the terms of their contract, and at
an expense of about $2,200, went forward and drilled, and com-
pleted a well within the time stipulated in the contract. It fol-
lows in our judgment that this rental of $1,260 is not due under
this stipulation in the contract.
It was to be paid on condition, or in case no well is completed
within one year ; but a well was completed within one year. In
case it was not completed within a year then this rental was to be
paid each year such completion was delayed. That rental was
the condition in the lease, one condition for the payment of
this rental was not only that the well should not be completed,
but that oil should not be produced, or at least the continuance
of the payment of this rental was to depend upon the production
of oil in paying quantities; then in case oil and gas can not be
found in paying quantities, then this lease is to terminate.
Now we are clear that this plaintiff, this lessor, has a right
within a reasonable time to make his election, but it would de-
pend very much upon the circumstances to put an end to this
lease providing the lessee does not proceed to perform the stipu-
lations of the contract relating to him ; but now the year within
which this well was to be completed extended until July 26, 1890,
and June 27, 1890, a well had been completed at a large expense ;
and on the twelfth of August, on the twenty-fifth of August and
in the month of October of the same year, all within four or five
months from the sinking of the first well, this plaintiff is de-
644 CIRCUIT COURT REPORTS— NEW SERIES.
Delhi V. Ohio Oil Co. [Vol. XII. N. 3.
manding that he shall be paid the sum of $1,260 or the lease
should be surrendered to him.
Now upon careful consideration of the terms and conditions
of this lease, we are of the opinion that he was not entitled to
compliance with either of these demands. He was not entitled
to the payment of the $1,260, because the completion of the well
had not been delayed; and he was not entitled to the return of
the lease because the lessee had a reasonable time to make a fur-
ther effort to find oil or gas ; and we think to require the lessee
to proceed within four or five months from the time of sinking
of the first well and deprive him of further right to search for
oil or gas, would be an unreasonable application of the right
claimed by the plaintiff in the contract to terminate the lease.
The defendant's witnesses testify that shortly before the bring-
ing of this suit they were about to proceed, and plaintiff m fact
alleges that they are about to proceed to make a further search
for oil or gas, and alleges that unless prevented by the injunction
of the court, they will enter upon this land and make further
search for oil or gas.
Now in view of all the circumstances, we are of the opinion that
the comapny has a right to reasonable further time to enter upon
the land and prosecute this work. That having expended $1 ,500
first, and then expending $2,200 on this lease, that they ought not
be shut off from proceeding with their work, and certainly not
on the ground that the defendant has not paid $1,260, which we
do not think it should pay, and our conclusion is, that the equity
of the case is with the defendant, and the petition must be dis-
missed with the plaintiff's costs.
CIRCUIT COURT REPORTS— NEW SERIES. 645
1910.) Lucas County.
PAYBiENTS ON MORTGAGE FOR THE PURPOSE OF
PRESERVING THE UEN.
Circuit Court of Lucas County.
Ella Felt Lowe, Executrix, v. Sumner D. Pelt et al.
Decided, February 27, 1909.
Limitation of Actions — Methods hy Which the Running of the Statute
is Barred — Rayments to Prevent Operation of the Bar — Lien of
Mortgage Preserved by Acknowledgment, Though Debt is Barred,
1. Either one of the three methods, prescribed by Section 4992, Revised
Statutes, for keeping claims alive — payment, promise of payment
or acknowledgment thereof — complies with the saving clause of
the^statute and is adequate to prevent its running. Hence, pay-
ment of a sum of money within fifteen years after the maturing
of a note secured by mortgage, is sufficient to constitute an ac-
knowledgment of an existing liability.
2. A nephew having an interest in a mortgage upon his uncle's lands,
transferring his interest therein to his brother by written assign-
ment, recognizes the existence and validity of the mortgage and
note secured thereby; and having obtained within a month there-
after a warranty deed of the mortgaged premises, in which he sub-
sequently granted back a life estate to the uncle in pursuance of
a family arrangement to leave him in possession undisturbed dur-
ing his life, he can not assert that payments made by him and en-
dorsed upon the note did not operate to keep the mortgage alive
after the uncle's death.
3. Payments on or acknowledgments of a debt secured by mortgage, by
the owner of an equity of redemption, may operate to keep the
mortgage lien alive as against the statute of limitations, although a
right of action on the debt against the original debtor may be
barred.
Failing & Eppstein, for plaintiff.
Sumner Felt and A. P, McKee, contra.
WiLDMAN, J. ; Parker, J., and Kjnkade, J., concur.
Appeal from Common Pleas Court of Lucas County.
In the ease of Ella Felt Lowe, as executrix of the estate of
Clinton H. Pelt, deceased, against Sumner D. Felt and others,
the transactions with reference to certain real estate have had
546 CIRCUIT COURT REPORTS— NEW SERIES.
Lowe, Executrix, v. Felt. IVoL XII, N. 8.
such a history as might justify the count in spending some time
in reviewing the facts presented, not only by the pleadings but
by the evidence which has been submitted to us, the case being
one appealed to this court from the court of common pleas.
Mrs. Lowe, as executrix of the estate of Clinton Felt, her de-
ceased husband, brings suit to foreclose a mortgage upon certain
real estate, the title to which is in Sumner D. Felt, one of the
defendants.
In the year 1870, one Milo Felt, an uncle of the present par-
ties, Mrs. Lowe and Sumner Felt, and Alice M., his wife, ex-
ecuted a note and mortgage to one Dorman Felt, who was the
father of Clinton and Sumner and a Mrs. Bostwick. At his
death the note and mortgage passed to the sons and the daughter,
Mrs. Bostwick, and by subsequent release became the property
of Clinton ; and upon Clinton's death, by his will, it becomes the
property of Ella Lowe, as executrix. The question upon fore-
closure, and the sole question, is whether the right to proceed
upon the mortgage against the land has been barred by lapse of
time under our statute of limitations.
The mortgage and note were due November 1, 1871, at which
time a right of action accrued and the statute began to run.
The note was made payable to Dorman Felt or bearer, and to
secure its payment the mortgage was given upon the land which
is now sought to be subjected, a farm of some 160 acres situated
near Monclova, in this county. At the time of the giving of the
mortgage the title in fee was in the wife of Milo, Alice M. Felt.
Upon her death in 1883 the equity of redemption passed to Milo
S. Felt, her husband.
Two transactions occurred in the year 1885 which may or may
not have had any special reference to each other. After the
death of Dorman Felt, the father of Clinton and Sumner, by
written assignment on August IQ, 1885, Sumner transferred his
interest in the mortgage and note to his brother, Clinton. There
can be no question that at that time, and by that transaction he
recognized the existence and validity of the note and mortgage.
A little more than a month later and in the same year he ob-
tained, by warranty deed, the title to the real estate from his
uncle, Milo, who, as I have stated, had succeeded to the interest
CIHCUIT COURT REPORTS— NEW SERIES. 647
1910.] Lucas Ck>unty.
of Alice Felt, his wife. There is no claim that Sumner was a
purchaser without knowledge of the existence of the lien upon
the land, or the existence of the debt, and manifestly a claim of
that kind would be idle in view of the fact that he had by writing
expressly assigned an interest in the note and mortgage, only a
little more than* a month prior to his obtaining the conveyance
from his uncle, Milo, of the real estate.
But a period of more than fifteen years elapsed from the time
of the maturity of the note, and indeed from the time of the
acknowledgment of the note by the assignment to Clinton, be-
fore the beginning of the present suit, and the question arises
whether certain subsequent transactions between the parties in-
terested have operated to keep the mortgage alive.
A conveyance was made back from Sumner to his uncle, Milo,
by which the possession of the property was to remain with Milo
during his lifetime, and it did so remain. His possession of the
property was not disturbed, and without any consideration of
oral' evidence it might be assumed that the family relation had
operated upon the minds of all parties to induce them to leave
Milo in the undisturbed possession of the property as a home
during his life. Both Sumner and Clinton may be assumed to
have had the natural affection which nephews would have for
their uncle, and their disposition to leave him in the control of
the property seems to have been shared and the plan or purpose
to have been carried out in like spirit by the widow of Clinton,
after his death.
There appears upon the mortgage under date of August 31,
1886, a credit of $20, and another of like amount on October 1,
1895. A claim is urged upon us in behalf of Sumner that these
credits, while made by his consent, were not evidence of real
payments made — that they were mere forms dBsigned to protect
the possession of their uncle, Milo, in view of the possibility of
some other outstanding claim wresting the property from him.
This mortgage was a first mortgage, and by keeping it alive he
would be protected in the possession of the property when
otherwise he might be dispossessed. That is the contention of
Sumner Felt, the principal defendant here, as we understand it.
He says that these endorsements made upon the paper were merely
648 CIBCUIT COURT REPORTS— NEW SERIES.
Lowe, Executrix, v. Felt. [VoL XII, N. 8.
formal as between him and the holder of the mortgage, and were
not to operate to keep the mortgage alive after the death of Milo.
We can not, however, so look at those transactions. We do not
think that the competent evidence taken as a whole indicates this.
There is nothing in any of the written evidence to indicate that
there was any intention that the mortgage should remain alive
merely until the death of Milo, and that then it should become eo
iTistanti barred by lapse of time. The written assignment of
his interest in the mortgage made in 1885 to his brother, Sumner,
recognized its validity as a security for the existing debt. The
correspondence between the parties, the letters, all indicate the
same thing.
The deposition of Sumner has been taken to disprove the in-
ference which might be drawn from these writings, and his evi-
dence so far as it relates to transactions after the death of his
brother, Clinton, is competent. We do not deem it competent as
to the transactions occurring before that death, except in so far as
it may be made so in rebuttal of evidence as to particular trans-
actions with regard to which evidence was offered on the other
side. I do not care to go over these letters in detail. I might,
however, in passing, refer to one written after the death of his
uncle, Milo, in which he substantially recognized the mortgage.
Perhaps standing alone this letter would not be such a written
acknowledgment as is essential under the statute to take the
case out of the statute of limitations. Nor is it an express
promise to pay, but we think that it is very persuasive evidence
to show that he did not understand that the mortgage was to
expire with the death of Milo. He substantially says in the let-
ter— I will not attempt to repeat its precise phraseology, and will
not now look for it in this voluminous bundle of papers before
jne — that by reason of his business matters he is unable at
present to take care of the mortgage, but that he will see her, Mrs.
Lowe, or Mrs. Felt perhaps, at a time later with regard to it.
It would seem that, if he were right in his contention that those
endorsements on the paper were signed only to protect the in-
terests of Milo, now after the death of Milo, when called upon
to pay the indebtedness which was a lien upon his land, he
would at once have asserted this claim which he now urges be-
CIRCUIT COURT REPORTS— NEW SERIES. 649
1910.] Lucas County.
fore this court. The letter, together with his other corre-
spondence in which he consents to the endorsements upon the
paper, are sufficient, we think, under the statute to keep the mort-
gage alive.
The claim for a personal judgment against the estate of
Alice Felt is probably barred by lapse of time, and the same
would be true as against Milo Felt, who joined with her in the
making of the evidences of the original indebtedness. It may be
altogether true that the time has expired within which any suit
could be brought by the executrix of Clinton Felt to recover a
personal judgment against any representative of the estate of
Alice or Milo. But it does not follow that the failing of the
right to sue upon the original personal claim drags down with
it the right to foreclose a lien upon the real estate.
In reference to adjudications bearing upon the question of a
written acknowledgment as affecting the right to sue after a
lapse of the time fixed by the statute of limitations to bar a
claim, Judge Kinkade has opened before me Coffin v. Secor, 40
Ohio St., 637, which reports very briefly a case which went to
the Supreme Court from this county, and in which a somewhat
similar acknowledgment to that embodied in the letter written
by Sumner Felt after the death of Milo was held by the Su-
preme Court to be sufficient to keep the claim alive. We have
found other cases in which a mere reference to the mortgage, re-
citing its existence as a lien upon the property, was held a suffi-
cient acknowledgment, and some other cases where the party
had indicated by his written acknowledgment his knowledge of
the existence of the mortgage and his view that it was still in
effect. There is no magic in the words. We can not tie parties
to precise words, and say that a certain form of acknowledg-
ment must be adopted, for the statute has not prescribed any
form. Any written acknowledgment of an existing liability or
any promise to pay signed by the party who is sought to be held
is sufficient under the statute, and we do not see how a party
could in any way have more clearly indicated his belief that this
was a valid claim against the land which he owned than has
been evinced by Sumner Felt in this case in the whole course of
the transactions.
650 CIRCUIT COURT REPORTS— NEW SERIES.
Lowe, Executrix, v. Felt. [VoL XII, N. S.
As to the endorsement of August 31, 1886, even if it does not
evidence an actual payment, the writing signed by Sumner Felt
at that time in the way amounted to an acknowledgment of the
existing debt. The statute (Section 4992, Revised Statutes)
provides three methods by which the claim may be kept alive —
one is payment, another a promise of payment, and the third,
an acknowledgment. Either one of these three, standing alone
and without the others, if it fully complies with this saving
section in the statute of limitations, is adequate to keep the claim
alive. Now as to this one of August 31, 1886, which was less
than fifteen years after the maturing of the note in November,
1871, we think that it was a sufficient acknowledgment of an
existing liability.
On October 1, 1895, and after the death of Clinton Felt,
there was a transaction between Sumner and his sister-in-law,
the present plaintiff or widow of Clinton, which resulted in an-
other endorsement of $20 upon the paper, and this endorsement
was within the statutory period of limitations prior to the be-
ginning of the suit. Our Supreme Court in one case has used
certain language which might upon a hasty examination convey
the impression that if a note is barred by lapse of time, the mort-
gage must necessarily be also barred by lapse of the same time ;
but while this is true in a general way, it is only because the stat-
ute of limitations applicable to mortgages happens to be the same
statute of limitations as to notes. The Supreme Court has ex-
pressly held that where a mortgage is given to secure an account,
which is barred in six years, the statute of limitations applicable
to the mortgage is still the fifteen-year one. In other words, if
a mortgage is given to secure an amount, the right to sue upon the
account terminates at the end of six years, but the mortgage con-
tinues to run for the residue of the entire period of fifteen years,
which is the statutory limitation upon a contract under seal or a
specialty such as a mortgage.
Referring again to this endorsement of October 1, 1895, and the
testimony of the parties, and in this matter that of Sumner is
competent as well as that of the others, we have sufficient to in-
dicate to our minds that Sumner Felt did perform some services
either to the widow, his sister-in-law, or to her son. Really, it
OIECUIT COURT REPORTS— NEW SERIES. 551
1910.] Hamilton County.
was perhaps at the request of the son or upon conyersation with
the son, but she accepted the benefit of it, and upon arrangement
between them, compensation to the amount of $20 was agreed to,
and it was expressly arranged that it should be endorsed upon
this paper. His claim is that it was only for the purpose of
keeping the mortgage alive during the lifetime of Milo, but we
think that the evidence does not indicate that she had such an
understanding of the matter. On the contrary, we think it is
clearly indicated in her letters to him, that she was insisting that
he make some endorsement in writing, and when they turned the
charge for services upon the note, that she was all the time in-
sisting upon his consent to make that endorsement for the very
purpose of keeping it alive. She was relying upon this claim.
It is our judgment that the lien of the mortgages has not been
lost by lapse of time. Decree will be entered for its foreclosure.
EXCESSIVE DAMAGES FOR INJURIES TO A DRIVER.
Circuit Court of Hamilton County.
The Interurban Railway & Terminal Company v.
John Bierman.
Decided, February 5, 1910.
Damages far Personal Injuries-Judgment for $3,500 Excessive, When
— Presumption as to Effect of Improper Remarks by Counsel
Verdicts Must he Clearly Based on the Evidence and the Law,
Damages in the sum of $3,500 for injuries to a driver are excessive,
where it appears that he returned to work at the end of six weeks
and was steadily employed thereafter; and the fact that in such
a case counsel for the plaintifE during the argument to the Jury
indulged in improper remarks will be accepted as explaining the
excessive verdict returned, notwithstanding the caution which was
uttered by the trial Judge with the direction to the Jury not to
be influenced by such remarks but to decide the case from the law
and the evidence.
Frank F. Dinsmore, for plaintiflP in error.
Theodore Horstman, contra.
652 CIRCUIT COURT REPORTS— NEW SERIES.
Interurban Ry. Co. v. Bierman. [Vol. XII, N. S.
The plaintiff was thrown from his seat on a wagon to the street
in a collision with an interurban car. He complained of severe
injury to his spine and nervous shock. The jury gave his $4,-
500, but the trial judge reduced the verdict to $3,500.
»
Smith, J.; Gipfen, P. J., and Swing, J., concur.
The court has carefully read the record in the above case and
has had it under consideration for some time. While we think
a verdict if properly rendered for defendant in error might not
be against the weight of the evidence, yet we are of the opinion
that the amount of the judgment to which the trial court reduced
the original verdict is far in excess of what the defendant in er-
ror was entitled.
The evidence discloses that the defendant in error after being
thrown out of employment for about six weeks on account of his
injuries, returned to work, and practically had steady employ-
ment thereafter, earning as high as $1.75 a day.
It is hard to understand how a jury could return the verdict
it did, unless it was influenced by something extrinsic of the
evidence.
In this regard the record discloses what took place before the
jury in argument, and sets forth certain statements made there-
in by counsel for defendant in error. While the trial court
cautioned counsel, and told the jury to be influenced only by
the evidence and not by any personal reference to counsel for
the plaintiff in error, yet the statements had been heard by the
jury, and we do not think their effect was removed. In such
cases the jury is apt to try and determine the case as made by
statements of attorneys rather than to determine it upon the evi-
dence and the law. If justice is to be done in the trial of any
ease it should be upon the latter two elements; all other things
should be eliminated, otherwise a fair conclusion can not be
reached.
It seems unnecessary to say anything further upon this mat-
ter, as, taken in connection with the amount of the judgment,
we think its effect was harmful.
We find no error in the charge of the court, and would not
attempt to say under the evidence in this case what the amount
CIRCUIT COURT REPORTS— NEW SERIES. 558
t910.] Wood County.
of the verdict should be, except that the present judgment is
excessive. We believe that the case for the above reasons should
be reversed and again submitted to a jury.
Judgment reversed.
GAS AND OIL.
Circuit Court of Wood County.
Aerie E. Stahl v. George H. Van Vleck.
Decided, Ck:tober 29» 1892.
Designation of Premises to he Operated for Oil — Lease not Invali-
dated hy the Plugging Up of the Test Well — Where the Existence
of Oil had been Ascertained within the Period Prescribed by the
Lease.
1. Where the owner of three adjoining forty acre tracts of land leases
one acre thereof — to be designated by himself — and agrees thai,
if oil or gas be found under the lease or on lands adjoining the
same premises of which the designated acre is a part, the lessee
shall have the right to operate forty acres of the balance of such
premises for oil or gas on the terms before stated, the forty acre
tract out of which the first acre was designated constitutes the
forty acres to be drilled under the contract.
2. The provision of a gas and oil lease requiring the lessees "to commence
a test oil or gas well" within ninety days, is sufficiently complied
with where a test well was begun and completed at the designated
place within ninety days and the existence of oil ascertained, not-
withstanding the well was immediately plugged and the casing
withdrawn and there were no further operations on the lease for
several months.
C. A, Houston and Dodge & Canary, for plaintiff.
Cook <fe Troup, contra.
Per Curiam.
ScRiBNER, Bentley and Haynes, JJ.
In this case the plaintiff seeks relief in the alternative. He
claims that a certain gas and oil lease which he executed on
* Affirmed by the Supreme Court, Stahl v. Yan Vleck, 53 Ohio St., 136.
564 CIRCUIT COURT REPORTS— NEW SERIES.
Stahl V. Van Vleck. [Vol. XII. N. S.
December 15, 1886, to Manahan & Detwiler has by its own terms
ceased and determined, the assignee, Van Vleck, as it is claimed
not having performed the terms and stipulations to be performed
on the part of the grantee in this lease, and he also claims that
in the drafting of the lease an error occurred which should be
corrected.
Mr. Stahl was the owner of the land upon which this lease was
given, situate in Wood county, and entered into the contract with
Manahan & Detwiler on the date named, viz., December 15, 1886.
By the terms of the lease it was stipulated and agreed that the
lessees or their assigns should commence a test well within ninety
days at Rising Sun or near thereto, and in the event of failure to
commence a test well within the period stipulated, the lease should
be null and void. This instrument is nearly, if not precisely,
identical with leases that we have heretofore passed upon in
this court. The lessee, however^ as the testimony shows, did
commence and sink a well at Rising Sun. The testimony intro-
duced in his behalf shows that about the 17th of February they
commenced the work of procuring timber and erecting a derrick at
the place named — Rising Sun. It is not disputed by the plaint-
iff that so much of the work was done. It is shown, also on the
part of the defendant, that the lessees did commence the opera-
tion of drilling a well upon the lands which they had leased near
Rising Sun. The testimony of the defendants tends to show that
that work was commenced within the three months limited.
The testimony on the part of the plaintiff tends to show that
the drilling did not actually commence until about March 17,
1887, which would be a day or two subsequent to the expiration
of the ninety days provided for in the lease for the sinking of
the test well. We are led to the conclusion, however, upon a
careful review of all the testimony, that the lessees did in fact
enter upon the performance of drilling a well at Rising Sun
within the period provided for in the lease, and we think pro-
cured the timber necessary for the work of drilling, and erected
the derrick within ninety days within a fair meaning of this
contract as to the commencement of the drilling within that
period of time ; and really, we are of the opinion that upon the
testimony the work of actually drilling had commenced before
CIRCUIT COURT REPORTS— NEW SERIES. 555
1910.] Wood County.
the expiration, but upon that there is some conflict of testimony ;
but however that may be, in our view of the construction to be
given the terms of the contract, we do find that the work of drill-
ing a well at Rising Sun was commenced by the lessees within the
period of ninety days after the execution of this lease. We also
think that, while there was no obligatory undertaking on the
part of the lessees to do anything, yet inasmuch as they did
voluntarily proceed to perform stipulation under that contract,
expended their money and performed labor, that the defense that
there was a nudum pactum, can not well apply.
Now the well that was sunk did disclose the existence of oil in
that territory — ^not to any great extent — and the well was closed
and remained closed for a considerable period of time; but
nothing was done on the part of the lessor, the plaintiff, to termi-
nate this contract. Conditions run on about as they were after
the sinking of the well until about the month of August, 1891,
this suit having been commenced on November 28, 1891, at which
time, the defendant. Van Vleck, having become the owner of the
lease, took steps looking to the drilling of a well upon these lands,
and an interview was had by Van Vleck, or his employes, with
the plaintiff in regard to that, and as to the place where the
well should be sunk, and thereupon a difference arose between
them; the defendant claiming that he had a right to drill any-
where on the property described in the lease, and the plaintiff
claiming that he had only the right to drill on forty acres to be
named by him — part of the 120 acres described in the lease. The
plaintiff himself testifies and witnesses on his behalf testified that
he expressed to the defendants that they should drill, provided
they should limit their operations to a certain forty acres which
he designated, a certain forty in the northwest corner of the
tract, on which they should operate. The defendants under-
standing that they had a right to drill anywhere on the tract,
nevertheless proceeded to haul their material and tools to the
northwest corner, being the corner designated by Mr. Stahl for
the drilling of the first well ; but the result of the controversy be-
tween them was that the plaintiff insisted that they should re-
linquish their right to drill on the entire 120 acres, and they in-
sisted that the lease embraced the entire 120 acres, and they being
656 CIRCUIT COURT REPORTS— NEW SERIES.
Stahl V. Van Vleck. [VoL XII, N. S.
about to proceed to drill on the northwest corner, the plaintiff
commenced this action to prevent them from proceeding, and to
have a reformation of this contract.
Pending this suit there was an amicable talk between the par-
ties, and in a conversation had after the suit was commenced, Mr.
Stahl indicated to them that he preferred that they should drill
on the southwest rather than the northwest corner as indicated
by him. The contract reads:
''That the said first party for the consideration hereinafter
named and agreed upon does hereby grant to said second parties
or their successors and assigns the right to enter upon the follow-
ing lands and premises now owned by said first party, and situate
in Perry township, Wood county, Ohio, to-wit : A tract to be des-
ignated by first party of one acre on the following described
premises: the south half of the northwest quarter of section
two, in town three, north of range twelve, east, also the north-
east quarter of the southwest quarter of said section, township,
and range aforesaid, containing forty acres of the within de-
scribed premises; for the purpose and with the exclusive right
in and upon said premises to drill and develop oil, gas and other
valuable substances, and the exclusive right-of-way to said sec-
ond parties or their successors and assigns to convey over, upon
and through said premises, any and all oil, gas and other valuable
substances."
Then come written stipulations as to the compensation, etc.,
and further on down is this :
**It is further agreed on the part of the party of the first part
that if oil or gas be obtained by the second party or assigns in
and under the provision of this contract upon said tract or on the
lands adjoining the same premises of which the foregoing one
acre described embraces a part, said second party shall have the
right to operate the balance of said premises on the same terms
as above. ' '
It is contended on the part of the plaintiff that when this con-
tract was entered into it was agreed that it should be limited to
forty acres of these premises ; this was denied on the part of the
defendant company, or the defendants, and one of the principal
matters of contention relates to this controversy as to what the
terms of the grant were originally. The plaintiff, it seems, was
CIRCUIT COURT REPORTS— NEW SERIES. 557
1910.1 Wood County.
furnished with a copy of the contract when it was entered into ;
he can not produce that copy and we do not know what its terms
are; but the original, as produced on the trial by the defendant
under the compulsory process of this court, shows that there was
originally written in this agreement in another line the words
** forty acres'' and the word ** balance" is stricken out so that
it will read ''of which the foregoing one acre described embraces
a part; said second party shall have the right to operate forty
acres of said premises on the same terms as above."
The testimony of the plaintiff is clear and to the point that the
agreement was made as this agreement shows it to have been re-
duced to writing, and also that it was agreed that he should desig-
nate the forty acres, and the one acre of that forty acres on
which the first well was to be sunk, and the then agent of the
lessee testified that that was the agreement between them and he
states that this interlineation is his handwriting and was so writ-
ten at the time the lease was entered into.
Now without consuming further time, I will say that our con-
clusion is this, that the lease was made as claimed by the plaintiff.
One acre was to be designated by him in the forty to be desig-
nated, on which the first well should be sunk ; he, it was, who by
the agreement should point out where the well should be sunk.
Then upon the condition provided for in the lease, the lessee
was to have the right to operate upon the forty acres so desig-
nated by the plaintiff. Shortly before the commencement of this
suit, he had designated to the lessee the forty acres upon which
he wished him to operate. He was at that time willing, entirely
willing they should go on, provided they consented to the refor-
mation of the lease. The lease, as it was recorded, fails to show
this correction as made by pencil interlineation on the lease.
The defendant, the lessee, while insisting that the right to
operate upon the whole 120 acres immediately, in case oil or gas
should be found, was conferred by the lease, nevertheless was
taking steps to drill upon the forty in the northwest corner
designated by the plaintiff, and hauled material in good faith and
was about to proceed with the work. Plaintiff then brought this
suit and afterwards told the defendants he preferred they should
work in the southeast rather than the northwest corner of the
658 CIRCUIT COURT REPORTS— NEW SERIES.
Ziegler v. Wuerdeman Co. [Vol. XII, N. a
tract. This indicated his willingness that they should operate
upon the lease, but he insisted that they were not upon the cor-
rect quarter which I have referred to. The defendant still claimed
the right to operate upon the whole tract, and was enjoined by
thig action from proceeding.
We think the plaintiff should have a decree so as to limit the
right of the defendant to operate as claimed by this paper here
as written in pencil, yet inasmuch as money has been expended
in that work, and inasmuch as plaintiff has signified that he
was willing to have them go on and operate according to the
terms of the lease as it was actually entered into, and inasmuch
as they have gone on and taken additional steps towards pros-
ecuting the work, they are entitled to that forty acres, and the
decree should be so shaped that their right is limited to the forty
acres contained in the northwest corner of the tract pointed out
by the plaintiff; and in view of the fact that the defendants,
although understanding that the lease, by its terms, covered 'the
whole tract, nevertheless were proceeding upon the forty acres,
we are of the opinion that the costs of this suit should be divided
between the parties.
LOSS OF FINGERS IN EXPOSED COG-WHEELS.
Circuit Court of Hamilton County.
Daniel Ziegler v. Wuerdeman Company^
Decided, February 26, 1910.
Negliff€nce — Operator of a Machine Injured While Attempting to
Clean It — Cog-Wheels Exposed — But Unguarded Wheels Not Proxi-
mate Cause of the Injury — Section 4S64-89c,
1. Where the operator of a machine who is familiar with its mechanism
is told by the foiieman to let work go and clean his machine, and
without waiting for the machine to become empty, which would
have required five to eight minutes, he attempts to clean it while
in motion and is injured thereby, and it is shown by the testimony
that it was the uniform custom to wait until the machine was
empty and had been stopped before, cleaning it, the injury must
be held to have resulted from the operator's own negligence.
CIRCUIT COURT REPORTS— NEW SERIES. '659
1910.] Hamilton County.
2. Exposed cog-wheels are not the proximate cause of such an accident,
where it appears that had a guard been placed over the wheels it
would have been necessary to have removed it before cleaning the
machine.
Charles Phares and Carl Phares, for plaintiff in error.
Robertson dk Buchwalter, contra.
Smith, J. ; Gifpen, P. J., and Swing, J., concur.
It was not error for the trial court to instruct the jury to re-
turn a verdict for the defendant in error at the time it did in
the proceedings, if when the plaintiff in error rested his case
said motion should have been granted.
The plaintiff in error after stating in his petition that he was
employed by the defendant in error to operate a dough mixer,
alleges that it was his duty also to clean and operate this mixer ;
that while so employed he was peremptorily ordered by the fore-
man of the defendant company to clean the machine while the
same was in motion and while the cog-wheels of said mixer were
revolving rapidly, although as set up it was the custom to clean
this machine while it was at rest. He further alleges that with-
out time or opportunity to reflect or realize the danger of obey-
ing the order of the foreman by reason of the machine being in
motion, he commenced the work of cleaning it; that in so doing
his fingers were caught and crushed between the cog-wheels;
that said cog-wheels had no guard upon them, and that in not pro-
viding such guard the defendant in error was negligent.
The evidence of the plaintiff in error discloses that he worked
for the defendant in error from December 3, 1903, to June 15,
1904, upon a certain dough mixer, a period of six and one-half
months, when he was hurt. His age was about twenty-seven
years. At the time he was employed the machine was explained
to him. He had charge of it to run it, and knew how to stop it,
and cleaned it when through with the day's work. He testified
that the foreman said to him on the day when he was injured
**let that work go and dust your mixer and leave those bins; go
and clean your machine.'' It was his custom after the machine
was cleaned on the inside, to stand it up, tilt it and dust the out-
side, when it was not in motion. He says that prior to the acci-
660 CIRCUIT COURT REPORTS— NEW SERIES.
Ziegler ▼. Wuerdeman Co. [Vol. XII, N. S.
dent he always had the machine stopped, whenever he dusted or
cleaned the outside. It took from eight to fifteen minutes for
the mix of dough to run through the machine, and at the time
he was hurt the mix in the machine had been running about five
or eight minutes. He further testifies that he had full charge of
the machine after he had been in the employ of the defendant
company a week, and that when he was hurt he did not stop to
think that the machine should be stopped to dust it, and a witness
(called in his behalf) also testified that the machine was never
to be cleaned and oiled while in motion.
Under the allegations of the petition, we think the evidence
offered in behalf of the plaintiff, the answer setting up the fact
that the plaintiff in error was injured by reason of his own negli-
gence, clearly shows that the motion to direct a verdict for de-
fendant in error was well taken. He was not told by the fore-
man, as alleged in his petition, to dust the mixer while it was in
motion, and as he had never done this before and knew that no
person else had ever undertaken to clean or dust the mixer while
in motion, and that by waiting five or eight minutes longer for
the mix to pass through the machine, he could then take the dough
out, clean and dust the machine, it would seem that by his own
statement he was clearly guilty of negligence on his part.
We do not think the section of the statute relating to the guard-
ing of the cog-wheels is applicable in this case, for while there
was no guard upon the cog-wheels, yet to have dusted them it
would have been necessary to remove such guard had there been
one. The proximate cause of the accident was the failure of
plaintiff in error to stop the machine or allow it to come to rest
before undertaking to clean or dust it.
It is apparent, therefore, that the evidence produced by the
plaintiff in error upon the trial, shows that it was his own negli-
gence that caused his injury, and therefore the court was justified
in instructing a verdict for defendant in error.
The judgment will therefore be aflBrmed.
CIRCUIT COURT REPORTS— NEW SERIES. 661
1910.] Lucas County.
DISCRIMINATION IN THE MATTER OF LIFE INSURANCE
PREMIUMS.
Circuit Court of Lucas County.
James A. Dailey v. John H. Chappell.
Decided, June 12, 1909.
Life Insurance — Notes Executed for Premiums — Action Brought There-
on— Averments as to Illeg<il Rebates on Insurance Premiums In-
sufficient, When^Section S6SI-4,
1. An answer in an action on notes given for life insurance, which
alleges that (1) the notes were executed on an express agreement
that they should be discounted with a certain brokerage firm of
which the insured was a member and brokerage allowed such firm,
otherwise the insurance should be void and the policy canceled; (2)
that upon notice of failure to carry out said brokerage agreement,
the policy was returned to the agent, cancellation demanded and
return of the notes requested; and (3) that the insured became
the beneficiary of a rebate, which was illegal and contrary to Sec-
tion 3631-4, is defective in that it fails to bring the insured within
the terms of the statute so as to invalidate the notes or- make them
fail for want of consideration.
2. Judgment on the pleadings without testing the sufl9ciency of the
answer by demurrer is not prejudicial error, where no motion was
made by the defendant for leave to amend his answer or file some
other pleading.
J. J. Keetian, for plaintiflf in error.
Lloyd & Rettig, contra.
WiLDMAN, J. ; Parker, J., and Kinkade, J., concur.
Error to Lucas Common Pleas Court.
This is a proceeding in error to reverse a judgment rendered
in the court below in a suit in which the present defendant in
error, Chappell, was plaintiff, and Dailey was defendant. Chap-
pell brought suit upon promissory notes given in payment of a
premium for a life insurance policy. Judgment was first ob-
tained before a justice of the peace, and appeal taken to the court
of common pleas. A petition, answer and reply were filed in
the court of common pleas, but shortly before the filing of the
662 CIRCUIT COURT REPORTS— NBW SERIES.
Dailey v. ChappelL (yoLXII,N.&
reply by the plaintiff, Chappell, a motion was made for judg-
ment on the pleadings, and the court sustained the motion, ren-
dering judgment in favor of Chappell.
Chappell's answer is somewhat peculiar. It seeks to assert
rights arising under Section 1 of act 90 O. L., 345, Section 3631-
4, Revised Statutes, the section being applicable to life insur-
ance. It contains three prohibitions, as we analyze the section,
against attempted favoritism practiced sometimes by life in-
surance companies in favor of particular policy holders. The
statute is intended in the interest of the people, to require life
insurance companies to treat alike all persons seeking the benefits
of insurance. The section reads:
"No life insurance company doing business in Ohio, shall make
or permit any distinction or discrmination in favor of individ-
uals between insurants of the same class and equal expectation
of life in the amount or payment of premiums, or rates charged
for policies of life or endowment insurance, or in the dividends
or other benefits payable thereon, or in any other of the terms
and conditions of the contract it makes."
That is one of the prohibitions.
**Nor shall any such company, or agent thereof, make any
contract of insurance or agreement as to such contract, other
than is plainly expressed in the policy issued thereon."
That is the second prohibition, and the third is:
*'Nor shall any such company or agent pay or allow, or offer
to pay or allow, as inducement to insurance, any rebate of pre-
mium payable on the policy, or any special favor or advantage
in the dividends or other benefits to accrue thereon, or any valu-
ble consideration or inducement whatever not specified in the
policy contract of insurance."
The pleadings here concede that these notes were given for a
premium in consideration of the issuance of a policy by the
Phoenix Mutual Life Insurance Company. The answer, as I
have said, attempts to assert that the terms of this statute were
violated, and the question is whether the answer sufficiently as-
serts anything of that kind. It is alleged by the answer, among
other things, that the promissory notes were executed and deliv-
ered to plaintiff, and —
CIRCUIT COURT REPORTS— NEW SERIES. 668
1910.] Lucas County.
*'said life insurance policy was issued to defendant upon the
express agreement that said notes be discounted with the firm of
H. S. Walbridge & Company, of Toledo, Ohio, and a brokerage
allowed to said firm, and that otherwise said promissory notes
were to be returned to defendant, and said policy of life insur-
ance canceled. That pursuant to said agreement and upon no-
tice of failure of plaintiff to carry out the terms of said broker-
age agreement, the policy of life insurance was returned on or
about October 28, 1908, to the Toledo agency of said the Phoenix
Mutual Life Insurance Company of Hartford, Connecticut, for
which plaintiff was then the duly authorized agent, with request
that the said life insurance policy be immediately canceled and
said promissory notes set forth in plaintiff's petition be returned
to defendant. That defendant is and was at the time he entered
into said brokerage agreement a member of the insurance firm
of H. S. Walbridge & Company, of Toledo, Ohio, who were to
brokerage said promissory notes set forth in plaintiff's petition,
and thereby becoming a beneficiary of a rebate illegal and con-
trary to Section 3631-4, Ohio Revised Statutes; 86 and 90 0. L
pp. 220, 345."
These are all the material averments essential to an under-
standing of the question. The terms of the policy are not re-
cited in the answer, nor do they appear elsewhere in the record.
I might indulge in a considerable discussion as to the various
clauses of this statute, and a critical examination of this answer,
to determine whether or not the case as stated in the answer is
brought within the inhibitory provisions of the statute, but I wish
to be as brief as possible consistently with a clearness of state-
ment, and it perhaps suffices, in the first place, to say that as to
these three prohibitions, the defendant surely does not bring his
case under either the first or the second. He does not show that
if a special privilege or benefit is sought to be extended to him
as a member of the firm of H. S. Walbridge & Co., that a like
privilege is not extended to all members of firms soliciting insur-
ance where policies are issued to the members of such firms.
For aught that appears in this answer, he is not favored as
against others of the same class; nor does he say that it is not
the custom of the company to make precisely the same favorable
proposition to all of its policy holders of every class. There is
nothing in this answer that excludes that idea, and of course the
564 CIRCUIT COURT REPORTS— NEW SERIES.
Dailey v. Chappell. [Vol. XII, N. S.
answer to present a defense must embody in it terms which show
the transaction to be violative of the provisions of the statute. If
it were clearly in violation of the statute, it is our judgment that
the notes would not make a basis of action in favor of the party
holding them.
Now the third provision of the statute is :
'*Nor shall any such company or agent pay or allow, or offer
to pay or allow, as inducement to insurance, any rebate of pre-
mium payable on the policy, or any special favor or advantage
in the dividends or other benefits to accrue thereon, or 'any valua-
ble consideration or inducement whatever not specified in the
policy contract of insurance."
Nowhere does his answer allege that the insurance was induced
in any way by this agreement as to ''brokerage." For aught
that appears in the entire answer, Walbridge & Company may
have been soliciting insurance from other people for the Phoenix
Mutual Life Insurance Company, and the transaction may have
been a method of paying them, not a rebate to one of their mem-
bers who was taking out insurance, but a brokerage or compensa-
tion for services which they had performed or might perform for
the insurance company named in the soliciting of insurance from
such other people. There is nothing in this answer to exclude
that idea, and we feel quite clear that the defendant has not
brought himself so within the terms of the statute as to make
invalid the notes .which he has given, or to make them fail for
want of consideration. As to the latter matter, as to whether
they might fail for lack of consideration, it is to be noted that
the pleader nowhere says that the contract, whether legal or il-
legal, has been violated. lie says that pursuant to such agree-
ment, and upon notice of the failure of plaintiff to carry out the
terms of said brokerage agreement, the policy of life insurance
was returned. He does not allege that in fact plaintiff did vio-
late his agreement. His statement amounts to little more than
that he received notice of such violation. In other words, he
says that he is informed that the plaintiff refused to carry out
the terms of the brokerage agreement. The answer is rather
vague in its terms, and while the pleader may have intended to
express a good deal more than he has expressed, in our judg-
CIRCUIT COURT REPORTS— NEW SERIES. 566
1910.] • Hamilton County.
ment he has not made such an answer as would have justified
the holding of its sufficiency by the trial court. We think the
court of common pleas properly rendered a judgment in favor
of the plaintiff upon the pleadings.
It is said that a motion for a judgment upon the pleadings
was not the proper remedy of the plaintiff; that demurrer should
have been filed to the answ^er, and thereby its sufficiency tested,
and a decision of one of the circuit courts of the state in which
the opinion of Judge Shauck, who was at that time a member
of that court, is cited as authority for this claim, Columbus v.
Reinhard, 1 C. C, 289. Judge Shauck in this opinion disap-
proves of the practice of rendering a judgment upon the plead-
ings without testing the sufficiency of an answer, but we do not
think that the rendering of such a judgment is prejudicial error,
because if the answer is insufficient, no judgment in favor of the
defendant could have been rendered upon the basis of the state-
ment therein alleged. The pleader has precisely the same power
and right to appeal to the trial court for the exercise of its judi-
cial discretion in permitting him to amend his answer or to file
some other pleading, if he saw fit, as he would have had if a de-
murrer to his answer had been sustained. No request seems to
have been made for leave to amend, or if one was made it is not
shown in the record.
REOOVUtY rOR INJURIES SU5TAIIWD IN ALIGHTING
FROM A STRE£T:GAK.
Circuit Court of Hamilton County.
The Cincinnati Traction Company v. Florence Fesler.
Decided, February 26, 1910.
Negligence — Weight of Evidence Supporting Verdict — Affidavits as to
Newly Discovered Evidence,
A new trial will not be granted on the ground of newly discovered evi-
dence, unless the affidavits in support thereof contain statements
which if offered in evidence would require the Jury to return a
different verdict
Joseph Wilby, for the traction company.
Cogan <& Williams, contra.
566 CIRCUIT COURT REPORTS— NEW SERIES.
Cincinnati Traction Co. v. Fesler. [Vol. Xlf, N. S.
The defendant in error recovered a judgment below of $2,955
on account of injuries sustaiined in alighting from a street car.
Smith, J.; Giffen, P. J., and Swing, J., concur.
The two grounds of error relied upon by plaintiff in error for
a reversal of the judgment below are:
First. That the verdict and judgment are against the weight
of the evidence.
Second. That a new trial should have been granted on ac-
count of newly discovered evidence.
The court has examined the record in this case and can not
agree with counsel for plaintiff in error that the verdict and judg-
ment is against the weight of the evidence.
The newly discovered evidence relates to certain statements
contained in the affidavits of Elizabeth P. Fridman and Harrison
W.iUauere Lowe relative to the condition, complaints and con-
duct of. the defendant in error from the middle of November,
1908, to February 4, 1909. Said statements, being such as
claimed by counsel for plaintiff in error, might tend to disprove
the condition of defendant in error as testified to by her at the
time of the trial.
We do not think the statements disclosed by the affidavits can
be classified as newly discovered evidence. It is the province of
the court to determine whether by the introduction of. newly
discovered evidence a different verdict ought to be obtained. The
rule seems to be, that in considering the motion for a new trial
upon the ground of newly discovered evidence, the court will
not inquire, whether taking the newly discovered evidence in
connection with that exhibited on the trial, a jury might be in-
duced to give a different verdict, but whether the legitimate effect
of such evidence would be to require a different verdict. Lud-
low. Heirs v. Park, 4 Ohio, 45.
In considering all of the affidavits in the bill of exceptions in
this record, we do not believe that if a new trial was granted
and such statements offered as evidence they would require the
jury to return a different verdict.
There being no errors in the charge of the court the judgment
will be affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 667
1910.] Hamilton County.
AS TO UABEJTY OF A MASTER FOR INJURIES RESULTING
FROM NEGLIGENCE OF A FELLOW-SERVANT.
Circuit Court of Hamilton County.
George E. Mason v. John R. Ferguson.
"" Decided, March 5, 1910.
Master and Bervant—IAaHlity of Master for Failure of Foreman to In-
spect Scaffold Upon Which Men were at Work — Construction of
Section 42S8o— Charge of Court.
1. In an action by an employe for Injuries resulting from the falling of
a scaffold, the master can be held liable on the ground of negli-
gence of his foreman only upon the presentation of proof that It
was the duty of the foreman to inspect the scaftold.
2. The provisions of Section 4238o, as to an employer's liability for
personal injuries to an employe notwithstanding the negligence of
a fellow-servant, do not apply to a temporary scaffold erepted by
the employer on the land of a third person.
3. A charge of court that "If the jury found the platform (scaffold) in
question was an appliance used in the business of the defendant and
necessary to his business, then the statute would apply," is erro-
neous where the scaffold was a temporary structure built in sections
as the work on the building progressed.
Wm. Walker Smith and H. C, Busch, for plaintiff in error.
M. 0. Burns and Powell & Smiley, contra.
Gipfbn, p. J. ; SMIT^, J., and Swing, J., concur.
The plaintiff in the original action, J. R. Ferguson, was in-
jured by reason of the scaffold upon which he was working as a
bricklayer breaking and precipitating him to the ground. The
negligence charged was the use of a defective board called the
** ledger," which supported the platform upon which he was
working, and was attributed to the carpenter, a fellow-servant of
the plaintiff, or to the foreman who inspected the scaffold after
it was constructed.
Although there is no positive proof that it was the duty of the
foreman to inspect, yet it may fairly be inferred from his testi-
mony that it was customary for him to inspect and that he did
inspect this scaffold before it was used. If he did not, therefore,
568 CIRCUIT COURT REPORTS— NEW SERIES.
Mason T. Fergoaon. [ToL ZII. N. 8.
exercise ordinary care in performing that duty, his want of care
would be chargeable to the defendant, because the evidence is un-
disputed that he was placed by the defendant in authority and
control over the plaintiff. If however the evidence is insufficient
to support a finding that it was. the foreman's duty to inspect,
then the question arises whether the defendant is responsible for
the negligence of the carpenter, a fellow-servant of the plaintiff,
or in other words, do the facts bring the case within the pro-
visions of Section 4238o^ Revised Statutes :
''An employer shall be responsible in damages for personal
injuries caused to an employe, who is himself in the exercise of
due care and diligence at the time, by reason of any defect in
the condition of the machinery or appliances connected with or
used in the business of the employer, which arose from, or had
not been discovered or remedied owing to the negligence of the
employer, or of any person in the service of the employer, in-
trusted by him with the duty of the inspection, repair, or of
seeing that the machinery or appliances were in proper condi-
tion.''
The chief object in enacting this section was not to impose a
liability upon an employer for failing to perform his duty to ex-
ercise ordinary care 'to fiu-nish a reasonably safe place for his
employes to work in, or reasonably safe machinery and appli-
ances to work with, because that liability already existed at com-
mon law ; but to impose a liability upon the employer for negli-
gence of fellow-servants in performing the duties therein men-
tioned.
It was not the duty of the defendant to furnish to the plaint-
iff a permanent and completed appliance, but it was itself a part
of the work which he and his fellow-workmen were engaged in,
to-wit, the building of a brick wall, the scaffold being constructed
in sections as the work progressed. The common law liiability of
the defendant ended when he furnished reasonably safe materials
and reasonably competent men to do the work. It was the duty
however of the carpenter to use ordinary care in constructing the
scaffold, and in seeing that it was in proper condition, for fail-
ure of which duty the statute makes the employer liable, unless
as claimed by counsel the scaffold in question was not an ap-
pliance within the meaning of this section. A similar statute in
CIRCUIT COURT REPORTS— NEW SERIES. 669
1910.] Hamilton County.
the state of Massachusetts, which has been often construed by the
Supreme Court of the state, is as follows :
** Where after the passage of this act personal injury is caused
to an employe, who is himself in the exercise of due care and
diligence at the time ; by reason of any defect in the condition of
the ways, works or machinery connected with or ]ised in the
business of the employer, which arose from or had not been dis-
covered or remedied owing to the negligence of the employer or
of any person in the service of the employer and intrusted by
him with the duty of seeing that the ways, works or machinery
were in proper condition • • • the employe has the same
right of compensation and remedies," etc.
In the case of Burns v. Washburn, 160 Mass., 457, the first
proposition of the syllabus is as follows :
**A temporary staging, put up by masons in the employ of a
contractor for the purpose of erecting a building on the land of a
third person, is not a part of the employer's * ways' or 'works'
within §t. 1887, c. 270."
In the case of Adaskin v. OUbert, 165 Mass., 443, the second
proposition of the syllabus is as follows:
**A temporary staging, put up by an ejnployer and his fellow-
servants for the purpose of painting the outside of a building is
not within the term 'ways, works or machinery' in St. 1887, c.
270."
The reason assigned is that the statute refers to ways or
works of a permanent character, such as are connected with or
used in the business of an employer; and that it does not ap-
ply to a temporary structure like a staging erected on the land of
a third person.
So likewise we are of opinion that Section 4238o, Revised Stat-
utes, does not apply to a temporary scaffold erected on the land
of a third person ; but was intended to avoid the rule stated in
the case of Railroad Co. v. Fitzpatrick, 42 0. S., 318, and like
cases.
The court charged the jury as follows:
'*If you find from the evidence that the platform in question
was an appliance used in the business of the defendant and neces-
sary in his business then this statute would apply."
570 CIRCUIT COURT REPORTS— NEW SERIES.
Beckenbach y. Harlow. [Vol. XII, N. S.
The temporary nature of the scaffold is undispnted in the
record, hence this instruction is erroneous and no doubt in-
fluenced the jury to return a verdict for the plaintiff, although
they may have found it to be the duty of the foreman to inspect
the structure when completed, and that he negligently performed
that duty.
The judgment will therefore be reversed and the cause re-
manded for a new trial.
INJUNCTION AGAINST FORntlTURK OF LEASE WOK
UNDER-LETTINC.
Circuit Court of Cuyahoga County.
William Beckenbach v. Henry Hablow, Quardian, et al.
Decided, November 17, 1909.
Landlord and Tenant — Covenant Against Under-letting — Covenant
Waived for a Time by Lessors — Then Insisted Upon— Injunction
Against Forfeiture of the Lease.
Injunction will lie to restrain the lessors of premises from declaring
the forfeiture of a lease containing a covenant against under-letting,
where past violations of this covenant had been made with the
knowledge of the lessors and without objection from them; but
such an injunction will not operate to prevent lessors from insist-
ing upon an observance of the covenant against under-letting in
the future, after notice of their intention to thereafter stand on
the covenant.
Frank Butler and J. J. Hogan, for plaintiff.
Berkeley Pearce, contra.
Taggart, J. (sitting in place of Winch, J.) ; Henry, J., and
Marvin, J., concur.
The plaintiff, as tenant of the premises described in the peti-
tion, seeks an injunction restraining the defendant from ouster
proceedings and declaring a forfeiture of the leasehold. The
pleadings and testimony disclose that he has been in the occupa-
tion of the premises about ten years ; has expended about $12,000
CIRCUIT COURT REPORTS— NEW SERIES. 571
1910.] Cuyahoga Ck>unty.
in improvements thereon; that unless this relief is granted he
will be subjected to suits in forcible entry and detention, be dis-
possessed of the property and suffer great loss and damage, and
that he will be without any adequate remedy at law.
The defendant in his answer admits many of the averments of
the petition, and avers the facts to be that the plaintiff has sub-
let a suite of rooms to a tenant, and has received rent therefor.
The defendant further admits that neither Abbie J. Harlow nor
Sarah J. Harlow nor the defendant as guardian, have ever
actually made any objection to the plaintiff sub-letting any por-
tion of said premises until February, 1909; that on or about
said date, defendant notified plaintiff that he was violating the
covenants of his lease and elected to forfeit said lease for said
under-letting, and refused to receive any further rents from
plaintiff, and intends to and will insist on such forfeiture, and
will adopt and pursue any legal measures to obtain possession of
said premises, unless restrained by the courts.
It appears from the evidence that Abbie J. Harlow was the
owner of these premises from the year 1899 to the year 1902;
that she then conveyed the same to Sarah Harlow, who thereafter,
until the year 1906, managed and looked after the premises in
controversy ; that in the year 1906 a guardian was appointed for
Sarah Harlow, so that for seven of the ten years during which
the plaintiff has been in the occupation of these premises the
owners of the property have had every means of ascertaining
how the premises were used and occupied. There is no evidence
that any means were employed by the plaintiff to prevent them
from knowing fully and completely everything concerning said
property. On the contrary, everything that was done was open,
visible and capable of ascertainment, and without any complaint
or protest on the part of either of these owners, but all of the time
by their apparent acquiscence, and acceptance of the rent from
the occupying tenant.
This situation continued until February, 1909, when the guard-
ian of Sarah saw fit to elect to forfeit this lease and dispossess
the plaintiff, or threaten to dispossess him.
The principal ground of complaint is that one or more of the
suites of rooms over the livery barn are or were rented to persons
572 CIRCUIT COURT REPORTS— NEW SERIES.
Beckenbach v. Harlow. [YoL XII, N. S.
other than the employes of the plaintiff, without the consent in
writing of the lessors, and that in consequence he, as such guard-
ian, so elected to forfeit said lease and determined to secure the
possession of the premises.
In the case of Unio7i Cent, Life his. Co, v. Pottker, 33 Ohio
St., 459, the court stated the rule in respect to forfeitures, as
follows :
* * Forfeitures are odious, and there must be no cast of manage-
ment or trickery to entrap a party into a forfeiture."
It would seem from this entire testimony that the conduct of
Abbie J. Harlow and Sarah J. Harlow fairly led the plaintiff
. into the belief that this covenant in respect to under-letting would
not be insisted upon, and that in consequence he continued to sub-
let these suites of rooms, and also the portion of the premises
that had been sub-let for a feed business without protest or ob-
jection, and the first protest came in February, 1909, in the shape
of a declaration of forfeiture and a notice to vacate the premises.
We are of opinion that to permit the defendant to now prose-
cute a suit either in forcible detention or a suit in equity to de-
clare a forfeiture would be a gross injustice, savoring of a fraud
on the rights of the plaintiff
** Where the enforcement of the forfeiture would operate as a
fraud, courts of equity have granted relief though the forfeiture
was incurred for other reasons than the non-payment of rent.
Thus relief has been granted where the lessee's breach was
caused by conduct of the lessor which naturally induced him to
believe that a performance of the conditions of the covenants
would not be exacted." 18 Am. & Eng. Enc. Law (2 Ed.), 391.
We think the language of Andrews, J., in speaking for the
court of appeals in the case of Smith v. Church, 107 N. Y., 610,
and particularly on page 618, is peculiarly fitted to this case:
*'The lease contained a covenant by the lessee, his executors,
administrators, or assigns, that he or any of them 'shall not, or
will not at any time or times hereafter, during the term hereby
granted, lease, let or demise all or any part of the said premises,
nor assign, transfer or make over the same or the present lease, or
any of the renewals of his or their firm, to any person or persons
whomsoever without the consent of the parties of the first part,
CIRCUIT COURT REPORTS— NEW SERIES. 578
1910.] Cuyahoga County.
their successors or assigns, in writing under, their seal, for that
purpose first had and obtained. * It was shown on the trial that
the house erected by the plaintiff was an apartment house and
that the plaintiff occupied one range of rooms and let the other
apartments to tenants by the month, by verbal lease, the rent be-
ing exacted each month in advance. It further appeared that
the house had been occupied in this manner from the time it was
built in 1876, and that in November of each year down to and
including November, 1884, the plaintiff paid to the defendant
the rent due under the lease, which was at all times received
without objection, and the evidence justifies the conclusion that
it was received by the defendant with full knowledge of the
character of the house, and that it was occupied as an apartment
house. Subsequent to the commencement of the action rent fell
due, which was not received, and it is claimed by the defendant
that it is entitled to insist that the lease was forfeited by the
underletting of apartments in the house after November 1, 1884,
and that the receipt of rent up to that time did not operate to
waive a subsequent breach of the condition. Forfeitures are not
favored, and Dumpor's Case (2 Coke's [Littleton], 119) is a
notable instance of the strong leaning of courts against enforcing
them. Following the principle of that case it was held in Brum-
mell V. Macpherson (14 Ves. [Jr.], 173), that a condition against
assignment in a lease was determined forever by the consent of
the lessor to an assignment, although *to one particular person
subject to the covenants in the original lease. ' The defendants on
the fourteenth of December, 1863, consented in writing that
Kiernan, the original lessee, might assign the lease to the plaintiff
upon the conditions that the assignee should perform the cove-
nants in the lease.
**But passing the question of the effect of this consent upon
the rights of the parties, we are of opinion that the conduct of
the defendant in receiving for a series of years, without objec-
tion, the rent due on the lease, with knowledge of the actual
situation, should, if necessary, be construed as a license to use
and occupy the building as an apartment house, and not as a
mere waiver from time to time of a particular antecedent breach
of the covenant. The construction of the house indicated that
it was designed for permanent use as an apartment house. It is
consistent with the circumstances and with fair dealing to con-
strue the acts and silence of the defendant as an assent that the
somewhat peculiar interest created by the letting of the apart-
ments from time to time for brief periods, was not an under-
letting or parting with any interest in the demised premises,
within the meaning of the covenant.*'
574 CIRCUIT COURT REPORTS— NEW SERIES.
Unnewehr Co. ▼. Smith. [YoL XII. N. S.
We are of opiniom that the plaintiff is entitled to an injunction
restraiding the defendant from declaring a forfeiture for the past
violations of the covenants of this lease and from beginning any
forcible entry and detention suits, or any suits to declare a for-
feiture of said lease for said past violations, or for permitting his
employes to occupy said suites of rooms when such occupancy
is a part of the compensation or wage of said employes, or per-
mitting plaintiff to continue to lease said part of said premises
for a feed business as now and heretofore conducted, but this in-
junction is not to operate or prevent the defendant from declar-
ing a forfeiture or seeking to secure the occupation of said prem-
ises for any violations of said lease subsequent to December 1,
1909.
INJURY TO A BOY EMPLOYED IN OPERATINC A
DEFECTIVE MACHINE.
Circuit Ck>urt of Ham U ton County.
The Frank Unnewehr Company v. Fjiank L. Smith, a Minor,
BY His Next Friend, John F. Smith.
Decided, February 26, 1910.
Master and Servant — Machine Out of Order and Liable to Start Itself
— Boy Employed to Operate It — Duty of Master to Instruct — Neglir
genoe — Charge of Court,
1. An employer will be held to have known that a loose key would be
liable to cause a belt to shift from the loose to the fixed pulley and
thus start the machine unexpectedly, while a boy sixteen years of
age employed in operating the machine would not be likely to ap-
preciate the danger, and the crushing of his hand by the sudden
starting of the machine is a matter for which the master will be
held liable.
2. Where a machine is from any cause not reasonably safe to operate,
and is especially dangerous for a boy of sixteen to operate, and
the master knew or by the exercise of ordinary care would have
known the facts with reference thereto, a charge of the court to
the effect that under such circumstances it was the duty of the
master to instruct the boy how to safely operate it is not erroneous.
CIRCUIT COURT REPORTS— NEW SERIES. 575
1910.] Hamilton County.
Robertson & Buchwalter, for plaintiff in error.
Cogan cfe WiUiams, contra.
The defendant in error recovered a verdict of $5,000 on ac-
count of the loss of a hand in machinery while in the employ of
the Unnewehr Company, but the verdict was reduced by a remitti-
tur to $3,500.
GiPPEN, P. J. ; Smith, J., and Swing, J., concur.
In addition to general verdict for plaintiff the jury returned
the following findings of fact :
**Q. What act or conduct, if any, of this defendant was neg-
ligent in the sense of a neglect of ordinary care which caused
this plaintiff's injury?
"A. Lac* of instructions to plaintiff in operating press and
proper maintenance of press as to general repairs.
**Q. What defect if any was there in the printing press or
its appliances which caused the plaintiff's hand to be caught in
the press!
* ' A. Loosening of key in the tight pulley of the press. ' '
It is claimed that inasmuch as the plaintiff had operated simi-
lar printing presses, and' understood the work which was in itself
sinple, there could be no instruction given that would have
avoided the accident; but the testimony showed the absence of
the ordinary device for shifting the belt from the fixed pulley to
the loose pulley on the line shaft, and for holding it in place, and
that the key designed to hold the fixed pulley firmly to the shaft
was loose, the tendency of all of which being to cause the belt
to slip from one pulley to the other and start or stop the press
according as it was running on the fixed or loose pulley.
This the defendant knew, or by the exercise of ordinary care
would have known, while a boy of sixteen years of age would
not likely appreciate the danger of the machine suddenly start-
ing. The primary duty of the defendant was to remedy the de-
fect, and if that was not done then to instruct or warn the plaint-
iff.
The following portion of the general charge is claimed to be
erroneous :
676 CIRCUIT COURT REPORTS— NEW SERIES.
Unnewehr Co. v. Smith. [Vol. XII, N. S.
**It was the duty of the defendant, in the exercise of ordinary
care, if it directed plaintiff to work at this machine, to furnish
a machine and appliance that were reasonably safe for the work
intended, and if same was not reasonably safe, and you find that
said machine or employment thereupon and under the condition
as charged was dangerous for a boy of plaintiff's age, intelli-
gence and experience to operate, and that the defendant knew,
or in the exercise of ordinary care would have known, such to
be the facts, then it was defendant's duty to properly instruct
plaintiff how to operate the machine in safety to himself and to
warn him against dangers therefrom, if danger tnere was."
The first part of this instruction imposes an absolute duty oa
the defendant to furnish a machine and appliances that were rea-
sonably safe for the work intended, which is incorrect, but as
here used seems to us not prejudicial. It is merely primary
and forms a basis for the ultimate duty imposed by the charge,
to- wit, **to properly instruct plaintiff."
In other words, if the machine was not, from any cause, rea-
sonably safe, was especially dangerous for a boy of plaintiff's age
and experience, and the defendant knew or by the exercise of
ordinary care would have known such to be the facts, the duty
to instruct was manifest.
The special instruction at page 131 of the bill of exceptions
pertains to the same subject-matter, and exacts a higher degree
of care on the part of the defendant than the law requires ; but,
although erroneous, it does not affect the finding of the jury of
negligence in maintaining repairs of press and appliances which,
as before stated, was the primary duty of the defendant.
A careful consideration of the record discloses no error preju-
dicial to the rights of the defendant, and the judgment will be
affirmed.
CIRCUIT COURT REPORTS— NEW SERIES. 577
1910.] Putnam County.
LEGALITY OF A COVENANT BY LESSEE TO SELL ONLY
THE PRODUCTS OF LESSOR.
Circuit Court of Putnam County.
Chris. Diehl Brewing Co. v. Louis A. Konst.
Decided, 1905.
Landlord and Tenant — Construction of Lease of Premises for Saloon
Pwrposes — Enforcement of Lease by Injunction — Covenant to Sell
Only Beer Manufactured hy the Lessor Does Not Invalidate the
Lease.
1. The provisions of a lease of premises for saloon purposes, wherein
the lessee covenants not to sell any beer other than that manu-
factured by the lessor, extend to another room rented by the lessee
and used by him with the lessor's consent in connection with the
saloon as originally operated; and the lessee can not, after the
lessor at his request has installed new bar fixtures in the new
room, tear out the new fixtures and repudiate his lease.
2. The lessee of premises leased on condition that only beer manufac-
tured by the lessor shall be sold on the premises, may be en-
Joined from a repudiation of his agreement not to sell other beer.
3. A provision in a lease whereby the lessee engages to sell no beer
on the leased premises other than that manufactured by the les-
sor, in nowise affects the public and is not invalid as in restraint
of trade or in violation of the Valentine anti-trust law.
B. F, Enos and Bisser & Smith, for plaintiff.
Bailey <fe Leasure, contra.
HuRiN, J.; NoRRis, J., and Vollrath, J., concur.
Appeal from Putnam Common Pleas Court.
This action involves the validity of a contract between a brew-
ing company and a saloon keeper, whereby the latter agreed for
a term of years to sell no other beer on certain premises than that
furnished by the former. The case was heard by us on appeal,
the essential facts being agreed upon.
A somewhat lengthy statement of the facts will be necessary
in order to make the issues plain.
Plaintiff, the brewing company, is the owner of a brick build-
ing, the first story of which has been occupied for some years by
578 CIRCUIT COURT REPORT&— NEW SERIES.
Brewing Co. v. Konst. [Vol. XII, N. S.
defendant as a saloon. Formerly he occupied this saloon under
a lease from month to month, hut on October 10, 1904, he entered
into a written agreement of lease for a period of five years, agree-
ing to pay for the premises leased the sum of $360 per year in
monthly installments.
By the terms of this lease defendant was to have the use of all
the saloon furniture and fixtures then in said building free of
cost.
The lease contains the following covenant, which is the bone
of contention in the case at bar :
* ' Said second party further covenants and agrees as a part of
the consideration for said leased premises and use of said furni-
ture and fixtures, to deal exclusively in the beer manufactured
by said party of the first part and not to in any manner sell or
expose for sale in said premises any beer not manufactured by
said first party during the full period of this lease, and that any
alterations or changes made in said building shall be made at
the sole expense of said party of the second part and no such
alteration or change shall be made until after first obtaining the
written consent of said first party therefor in writing."
Defendant continued to occupy said property as a saloon un-
der this lease for about two years until May, 1906, when he also
rented of one Laura E. Andrews a business room adjoining that
formerly used by him, but continued to occupy both rooms, using
the Andrews room as a billiard and lunch room and plaintiff's
room as a saloon. For the first three months plaintiff paid a
part of the rent of the Andrews room, and by agreement be-
tween plaintiff and defendant a doorway was cut in the wall
between the two rooms, which door was used by defendant in the
operation of the two branches of his business.
Soon afterwards defendant, by consent of plaintiff, moved the
saloon fixtures into the Andrews room and the billiard tables and
lunch counter into plaintiff's room, the latter being a larger room,
and more convenient for the purpose.
Plaintiff assented to this agreement, and at defendant's re-
(luest plaintiff later on put larger saloon fixtures in the Andrews
room in place of those removed thither from the plaintiff's room.
Afterwards defendant, with plaintiff's consent, sold the bil-
liard and lunch part of his business to one Diehl Richards, who
CIRCUIT COURT REPORTS— NEW SERIES. 679
1910.] Putnam County.
operated it for a short time, but subsequently resold it to defend-
ant, who from that time to the commencement of this suit con-
tinued to operate the business of both rooms as at first.
Both at the time of the cutting of the connecting door and of
the sale of the billiard and lunch room business to Richards,
plaintiff's consent was given to these arrangements, with the
mutual understanding that the terms of defendant's lease should
be in no way affected thereby.
Plaintiff at all times furnished to defendant all beer ordered
by him and at the same price as that first agreed upon.
Immediately prior to the commencement of this suit defend-
ant notified plaintiff that he intended to purchase other beer than
the plaintiff's, and defendant about the same time tore down
the saloon furniture and fixtures installed by plaintiff and se-
cured other furniture in their place which he is now using.
Plaintiff by this action seeks to enjoin the sale by defendant
in either of said rooms of any beer other than that manufactured
by plaintiff.
Defendant by its answer admits the lease of plaintiff's room
and the terms of the lease as to rental and fixtures, but pleads
that the covenant to deal exclusively in beer manufactured by
plaintiff and not to sell other beer in said premiiaes is void as in
violation of the anti-trust laws of Ohio, and as in restraint of
trade and against public policy.
We have not been favored with any brief by counsel for de-
fendant, but in oral argument it is claimed that the sale of beer
other than that manufactured by plaintiff is not a violation of
the lease, if such beer is sold in the Andrews room and not in
plaintiff's room and that the lease has therefore been strictly
complied with.
Second. That the covenant not to sell other beer than the
plaintiff's is contrary to law and public policy and is therefore
void; and
Third. That injunction is not the proper remedy of plaintiff,
who must sue, if at all, in an action at law for damages for breach
of contract.
Defendant's whole reli«ince as to the law of the case seems to be
on two cases decided by the circuit courts of Lucas and Cuyahoga
580 CIRCUIT COURT REPORTS— NEW SERIES.
Brewing Co. v. Konst. [Vol. XII, N. 3.
counties; the cases of Uuehn^r-Toledo Breweries Co, v. Singlar,
8 C. C— N. S., 49, and Cleveland & 8. Brew, Co, v. Demko, 9 C.
C— N. S., 130.
The facts disclosed in the former case are so different from
those in the case at bar, that that decision is only valuable in our
discussion for the evident ability with which the authorities are
therein reviewed.
As to the first defense suggested, we have no hesitancy in say-
ing that it rests upon the thinnest of technicalities, unworthy of
consideration by a court of equity.
As long as the saloon fixtures remained in plaintiff's room,
even after the two rooms were connected and became practically
one, no question was raised. Defendant had recognized plaint-
iff's rights under the lease by asking and obtaining its con-
sent to cutting the door connecting the two rooms, and this with
the express agreement that the terms of the lease should not
thereby be affected. Again defendant recognized plaintiff's
rights under the lease when he asked and obtained from plaintiff
its consent to make the exchange in the use of the two rooms, re-
moving the saloon business to the Andrews room. And again
when the billiard and lunch business was sold temporarily to
Richards by defendant, he did so under an express agreement
that the terms of the lease should be in no way affected thereby.
Again it was at defendant's request that larger and better saloon
fixtures were by plaintiff installed in the Andrews room.
By all of these actions defendant impliedly, and by some of
them expressly and for valuable considerations, agreed that
plaintiff's lease should be considered as extended over the en-
larged quarters. It is unquestioned that in the use of the two
rooms defendant was operating simply an enlargement of his for-
mer business, not a separate saloon business, but the same saloon
business, and especially is this shown by his express agreement
made with plaintiff (when he sold out the restaurant and bil-
liard business to Richards) that the sale of that part of his busi-
ness should in no way affect the lease although he was thereafter
to operate his saloon business in the Andrews room and not in
plaintiff's roon.
CIRCUIT COURT REPORTS— NEW SERIES. 581
1910.] Putnam County.
Having thus recognized plaintiff's rights under the lease in the
business conducted in the Andrews room, he can not at will and
in his own time and without plain tiflf's consent repudiate those
acknowledged rights.
To say that the sale of another brewer's beer in the Andrews
room is not a sale of it in plaintiff's room, may be literally true;
but since the rooms have been so connected as to be conveniently
used togther in carrying on defendant's business and that too by
the mutual agreement of plaintiff and defendant, and with the
express agreement that the terms of the lease shall not be affected
thereby ; and in view of the continuous course of conduct of de-
fendant in conducting his business in the two rooms and in recog-
nizing plaintiff's rights under his lease in the Adrews room, de-
fendant is now estopped from denying those rights.
The covenants of the lease provided not only that defendant
should not sell other beer than plaintiff's in plaintiff's room,
but also that he, the defendant, during the full period of five
years and in consideration of said lease and the use of plaintiff's
furniture and fixtures, should deal exclusively in the beer manu-
factured by plaintiff. He can not avoid this agreement by any
such flimsy pretext as that now raised.
Passing the second defense for a moment and coming to the
third defense, i. e., that the proper remedy of plaintiff is by ac-
tion for damages and not by injunction, we have even less diffi-
culty.
Plaintiff has definite rights under his contract, and has the
right, if the contract is lawful, to insist that it shall be lived up
to. The possession and use of plaintiff's property is involved.
Plaintiff rented that property for a definite purpose — ^the sa'e
of its beer, not for the sale of a rival 's beer ; not to be shut up
while a rival is doing a rushing business next door; and not, in
the expressive language of plaintiff's counsel, to be used as a
Sunday school or Y. M. C. A. It was rented for a saloon to be
run in plaintiff's interest and in plaintiff's interest only.
Whatever we may think of the liquor business as a business,
it has certain recognized rights under the laws of Ohio, and
those rights must be recognized by courts as long as the Legisla-
ture continues to grant them.
682 CIRCUIT COURT REPORTS— NEW SERIES.
Brewing Co. v. Konst. [VoL XII, N. 8.
A beer contract, if not invalid on constitutional grounds or on
grounds of public policy, must be enforced like any other con-
tract, and where, as in this case, the conflict is between two or
more liquor dealers, their rights must be determined in reliance
on the same legal principles as in any other analogous case.
It is evident that in the case at bar an action for damages would
have afforded no adequate remedy and that plaintiff's interest
can only be protected by preventing a continuous violation of his
lease.
While an action for damages might afford a remedy for past
violations of plaintiff's rights under the lease, there is here a case
of threatened, continuous future misuse of plaintiff's property
in violation of a written contract and to the continuous injury
of plaintiff's property rights. This future abuse plaintiff now
seeks to prevent. To do this, injunction is the proper remedy.
See opinion of Judge White in Stines v. Dorman, 25 Ohio State,
580, 584.
But the main reliance of defendant is apparently on his sec-
ond defense, that is, that the covenant in the lease that plaint-
iff's beer alone shall be sold on the leased premises or by defend-
ant, is in violation of the Valentine anti-trust law, 93 0^ L., 143
(4427-1, et seq., Revised Statutes), as in restraint of trade and is
against public policy and void. This raises a more difficult ques-
tion of law.
Defendant's counsel relies strongly on the case of Huebner-To-
ledo Breweries Co. v. Singlar, supra. The court in that case
holds that :
* * A covenant in a lease of certain premises by which the lessee
agrees to sell only the lessor's beer thereon or within a radius of
one mile for a period of five years is in restraint of trade and
void as against public policy if there is no conveyance to him of
a good will attaching thereto."
And that;
**A contract by the vendor of a certain business not to there-
after enter into competition with the vendee in that locality is
enforcible at law; but a contract, based upon no matter how
valuable a consideration, by a lessee of property not to enter into
CIRCUIT COURT REPORTS— NEW SERIES. 688
1910.] Putnam County.
competition with the lessor in other localities is void as against
public policy, and unenf orcible. "
In that case a brewing company leased property to two tenants,
Joseph and Annie Singlar, with the stipulation that they should
sell no other beer than that supplied by lessor, either in the build-
ing so leased or within a radius of a mile thereof. These tenants
owned another piece of property within a mile of the leased
property ; in fact, within one hundred feet of it, but unconnected
with it, and they attempted to sell other beer than the plaintiff's
in the property owned by them. The court held that the con-
tract in so far as it restricted such sale in property not connected
with the leased property was invalid as against public policy.
That case has no bearing upon the question before us.
As we view the case at bar, the two rooms operated by defend-
ant were by defendant himself practically made one. He occu-
pied them both in connection, and had for various valid con-
siderations bound himself repeatedly to extend the covenants of
the lease over both rooms. This is a very different case from one
involving pieces of property, not used for one and the same busi-
ness and located far apart, even though the business of each was
of the same kind and run by different members of the same
family.
In what respect then is the contract in question a contract in
restraint of trade or against public policy? The fact that this
contract relates to liquor can not vary the principles by which
it must be governed.
It must be presumed that this defendant has paid his tax un-
der the Aiken law, or he wouM not be doing business at all.
Having paid this tax, he is not to be molested under the provi-
sions of the law in the sale of liquor of any kind, unless he can,
by his own acts, limit his rights to sell. He has attempted by
private contract and for a valuable consideration so to limit his
rights. Had he not so contracted, he would not have obtained
control of the property which he now enjoys.
" Suppose a miller owns a storeroom and rents that storeroom
to a grocer with the stipulation that the grocer may sell what
he pleases there except only that he shall sell no other brand of
584 CIRCUIT COURT REPORTS— NEW SERIES.
Brewing Ck). v. Konst. [YoL XII, N. S.
flour than that made by his lessor, the miller. Suppose a manufac-
turer of boots and shoes rents a room to a man in the retail shoe
business with the stipulation that he shall sell only the line of shoes
made by his lessor. Suppose a newspaper press agency rents its fa-
cilities for gathering news to a newspaper company, under the
stipulation that no other press agency's service shall be employed
for a certain period of time — ^five years. Suppose a newspaper
manager employs an editor for the period of five years at a stipu-
lated salary with the proviso that all of his time and talents are
to be employed in the service of his employer.
In all of these cases there is a restriction in the free use of
property and services and ability; but are they in restraint of
trade? Is any monopoly created thereby? Is the public pre-
vented thereby from buying other flour or another make of shoes
or from reading other newspapers supplied with news from other
sources, or from reading the effusions of other gifted editors?
The theory on which an act or contract in restraint of trade is
prohibited by law is, as we understand it, based upon the sup-
posed injury to the public by the restraint of its powers of free
trade. It is contrary to a wise public policy that the public
shou'd be prevented from freely buying and selling merchan-
dize wherever it can do so to the best advantage. Such a policy
does not extend so far as to prohibit a man from agreeing to de-
vote his attention to particular lines of activity, unless such a
limitation of his powers can be shown to amount to public in-
jury.
It has been held in Michigan, IMaryland, Massachusetts and
other states that where the restraint contracted for appears to
have been a just and honest purpose, for the protection of the
legitimate interest of the party in whose favor it is imposed,
reasonable as between the parties and not especially injurious to
the public, the restraint will be held valid. Hubbard v. Miller,
27 ]Mich., 15; Guerand v. Dandelet, 32 Maryland, 561; P'erce v.
Woodward, 23 Mass. (6 Pick.), 206.
An agreement not to engage in a particular trade or business
in a certain place within a specified time is valid (Arnold v.
Kreutzer, 67 la., 214). And if this is so, if a man can lawfully
bind himself not to engage in business at all, why can he not also
CIRCUIT COURT REPORTS-NEW SERIES. 686
1910.] Putnam County.
lawfully bind himself not to engage in a part of a business, or not
to use lessor's premises for the purpose of engaging in the sale
of a rival's product?
Cases are numerous where parties have contracted not to en-
gage for a number of years in the practice of law or of medicine
in a certain place, and such contracts have generally been held
valid. Usually in such cases there has been a sale of the good
will of the practice, but that is only a form of consideration for
the contract, and other considerations would doubtless be equally
valid.
In a New Jersey case, a rule wafi laid down, which seems to be
fair and sound, viz.:
*'The test to be applied in determining whether a restraint is
reasonable or not is to consider whether it is only such as is nec-
essary to afford a fair protection to the interest of the party in
w^hose favor it is given and not so large as to interfere with the
interest of the public." Mandeville v. Harman, 42 N. J., Eq.,
185.
In the case at bar we have no evidence that the interest of the
public will be in any degree interfered with by the performance
of the contract in question. It does appear that the interest of
the brewing company requires some such protection as it had
contracted for — the violation of the contract by defendant and
his attempt to favor a rival of plaintiff at plaintiff's expense
is sufficient proof of that necessity.
We are unable to find that any sound public policy requires
the annulling of this contract or that the contract is to any un-
reasonable extent a contract in restraint of trade, but we do find
that equity and fair dealing on the other hand require its en-
forcement.
There will therefore be a finding and decree for the plaintiff;
an injunction will be granted as prayed for; judgment against
defendant for costs and execution for costs awarded.
586 CIBCnX COURT REPORTS— NEW SERIES.
HoUister ▼. Yandersrift. [yiri.XII.N.&
ADJUSTMEfTT OT EOfUITlES UNMUt AN <NL LXASK.
Circuit Court of Wood County.
George Holllsteb v. T. J. Vaxdebgrut et al.
Decided, October 29, 1892.
Oil and (hu— Delay in Completing Well Befoire Expiration of Extended
Term — 2fot Excused by Accident to Apparatus — Lessor May Treat
the Lease as Terminated — Adjustment of EquUies in Connection
with Uncompleted Well.
1. At the expiration of an oil and gas contract for a term of three
years, with a provision for its extension so long as gas and oil
should be produced in paying quantities, the lessees upon con-
sideration were granted an extension of one more year but failed
to commence drilling the first well until within seren days of the
end of the extended term, and it was impossible to complete the
well during that time. Held: That the fact that the lessees made
an arrangement with a contractor to commence drilling in sufllcienc
time to complete the well before the expiration of the extended
term, but on account of an accident to his apparatus he was
compelled to disappoint them and it became necessary to con-
tract with another operator who was unable to begin drilling until
too late to finish a well before the term expired, was not a sufll-
cient excuse for the delay, and the owner had a right to treat the
contract as at an end.
2. A court of equity, in a suit to enjoin further operations and to quiet
the title of the lessor to premises under an expired oil and gas
lease and extension thereof, will grant the relief sought; but
where the lessees have made an effort to complete a first well
within the term, and have met with delay but not of an excusable
character which would extend the lease, equity will permit the
completion of the well for the purpose of ascertaining the resulte
of the work, and will apportion the cost between the parties.
B. F. James and Edward Beversiock, Parker <fe Moore, for
plaintiff.
Doyle, Scott & Lewh, contra.
ScRiBNER, J.; Bentley, J., and Haynes, J., concur.
Appeal from Wood Common Pleas Court.
CIRCUIT COURT REPORTS— NEW SERIES. 587
1910.] Wood Ck>unty
This is the case of George HoUister vs T. J. Vandergrift et al.
The substantial parties to this controversy are the plaintiff,
George HoUister, and the defendant, the Northwestern Ohio
Natural Gas Company.
It appears by the pleadings and proof in this case that on
July 12, 1886, the' plaintiff and the defwidant, T. J. Vander-
grift, entered into an agreement in writing, commonly called a
gas and oil contract, a copy of which is contained in the peti-
tion in this case. By this agreement the plaintiff granted, de-
mised and let unto Vandergrift and his heirs and assigns for
the purpose, and with the exclusive right of drilling and opera-
ting for petroleum and gas, all that certain tract of land de-
scribed in the lease containing 160 acres of land situate in Wood
county.
It was provided by this contract that the party of the second
part, his heirs and assigns, are to have and to hold the said prem-
ises for the terra of three years from the date hereof and as much
longer as oil or gas is produced or found in paying quantities
thereon. In consideration of said grant and demise, the said
party of the second part agrees to give or pay to the party of
the first part, the full equal one-eighth part of all the petro-
leum or rock oil produced or found on said premises, and to de-
liver the same, free of expense, into tanks or pipe lines to the
credit of the first party — to the lessor, HoUister — and should
gas be found in sufficient quantities to justify marketing, the
consideration in full shall be $300 per annum for the gas from
each well so long as it shall be sold therefrom. Now here comes
a very material provision in this contract :
'*It is further agreed that the party of the second part shall
complete a weU on the above described premises within six
months from the date hereof, and in case of failure to complete
such weU within such time, the party of the second part agrees
to pay to the party of the first part for such delay a yearly
rental of $1.00 per acre on the premises herein leased from the
time of completing such well as above specified, until such well
shaU be completed, the said yearly rental amounting to one
hundred and sixty dollars shall be deposited to the credit of
the first party in the Parmer's National Bank of Pindlay, or be
paid direct to said first party. And a failure to complete such
588 CIRCUIT COURT REPORTS— NEW SERIES.
HoUister v. Vandergrlft [VoL XII, N. S.
well or make such deposit or payment as above mentioned, shall
render this lease null and void and to remain without effect
between the parties hereto."
Then there are some reservations, not material, and the fur-
ther provisions that all the conditions between the parties to the
agreement shall extend to their heirs, executors and assigns.
This lease, by its terms, it will be perceived extended from
July 12, 1886, to July 12, 1889.
It seems nothing was done under it by either party until May
23, 1889, something less than two months from the date when
it would have expired by its terms and conditions unless gas
or oil should be found in paying quantities on the premises with-
in that time.
On May 23, 1889, this arrangement was entered into :
'*For and in consideration of the sum of four hundred dollars
to me in hand paid, covering all back rental also the advance
rental in full on my farm of 160 acres in section twenty. Port-
age township. Wood county, Ohio, and which was leased to T. J.
Vandergrift, July 12, 1886, the receipt whereof I hereby ac-
knowledge, I hereby extend the term of said lease from one year
ending July 12, 1890. In witness whereof I hereby set my
hand and seal on this twenty-third day of May, 1889.'' Signed,
'* George HoUister." There is a certificate of acknowledgment
attached to this.
The Northwestern Ohio Natural Gas Company became the
owner of this contract. Matters remained in statu quo until
about June 17, 1890, when the lessee or grantee of the rights
provided for under this agreement, gave orders to its employes
to proceed with the work of drilling on these premises. Orders
were issued to erect a derrick and to make the usual and neces-
sary provisions for prosecuting the work of drilling.
Some time between the seventeenth of June and fifth of July
the derrick was erected and lines were laid for furnishing a sup-
ply of fuel in order that the operations necessary might be
prosecuted. Work was actually commenced — ^the work of drill-
ing or ** spudding" as it is termed, on the fifth of July, seven
days before the expiration of the term provided for in the lease
as extended by arrangement of May 23, 1889.
CIRCUIT COURT REPORTS— NEW SERIES. 589
1910.] Wood County.
This work was prosecuted with considerable energy until July
14, 1889, when the plaintiff, HoUister, brought this action to
restrain further proceedings under the lease, alleging that he
was the owner of these premises; that the time within which
work was to be commenced and prosecuted had expired; that
no oil or gas had been found by the lessee, the Northwestern
Ohio Natural Gas Company, and that in violation of the rights
of the plaintiflP they were proceeding to drill upon the premises
in search of oil or gas; and in substance he prayed the court to
quiet his title in these lands and to enjoin the defendants or the
Northwestern Ohio Natural Gas Company from further entering,
trespassing or proceeding with the work upon which they had
entered.
The lease under the terms of the extension terminated on the
twelfth of July; that occurred on Saturday. The plaintiff is
a non-resident of the county and was residing during the time
covered by this contract about one hundred miles or more from
the county of Wood where the lands are located.
About noon on the eleventh of July, according to his testi-
mony, he first learned that the defendant, the gas company, was
drilling upon his premises. The suit was commenced on Monday,
the fourteenth, following. According to his sworn testimony
he had no notice whatever that the defendant was proceeding
with his work until about noon Friday, the eleventh. It seems
there were men engaged in removing timber from the place, and
had been so engaged for some time prior to the commencement
of this work under a contract, by the terms of which they became
the purchasers of the timber. This contract, as testified to by
the plaintiff, would not constitute the contractees as agents or
tenants so as to charge him with notice of any knowledge on their
part. Whether you regard it as established in this case by the
evidence that the plaintiflP had no knowledge of the proceedings
complained of until Friday, the eleventh of July, the lease ter-
minating by its term on the next day, and the action having been
commenced and the papers prepared and the action commenced
on the following Monday, and the lease by its terms not expir-
ing until midnight, it can hardly be charged against the plaint-
690 CIRCUIT COURT REPORTS— NEW SERIES.
N
HoUlBter v. Vandergrift [VoLXlI.N.S.
iff that he was guilty of laches in ascertaining his rights, what-
ever they may be under this contract.
It is shown on the part of the defendant, the gas company,
as I have stated, that they had given orders to erect this derrick
and proceed with this work as ewrly as the seventeenth of June,
and if these orders had been regarded and the work prosecuted
from that time forward, there seems to be no reasonable doubt
but that the work of drilling this one well would have been com-
pleted within the specified time, and these parties advised
whether oil or gas could be found in that particular locality. It
seems from the testimony that the party upon whom they relied
for doing their drilling was not an employe of the company,
but a contractor who met with some misfortune in having his
drilling tools caught and become fast in a well which he was en-
gaged upon, and they were obliged to make arrangements for
drilling with another party, and that other party was not able
to get around to work until about the fifth of July.
Now as we have held and has been announced this morning in
the case that has just been decided. Miller v. Vandergrift, 12
C. C. — N. S., 475, as we construe these instruments they are to
be regarded as sales of the substances of oil underneath the sur-
face of the earth — of the oil or gas that may be found there-
under. The lessee becomes the purchaser of all these substances.
As a part of the contract, he is licensed to enter and remove these
substances and make return to the owner of the land for a cer-
tain proportion of the land thereof. This right to remove these
substances expires ordinarily with the period limited by the
terms of the contract (in this case it was to be three years and
in many cases as stipulated in these contracts it would be five
years), the time granted for the removal of the oil and gas ex-
pires at the time named in the leases, unless within that time oil
or gas is found in paying quantities. In that event, as we un-
derstand these agreements, the lessee or purchaser of the oil or
gas has the time extended for removing the oil or gas so long as
it shall be found there in such paying quantities as would justify
the marketing of it.
Now according to the strict terms of this contract, according
to the strict legal rights of these parties, this plaintiff has the
CIRCUIT COURT REPORTS— NEW SERIES. 691
1910.] Wood County.
right to treat the lease as having expired at the end of the period
of extension. "While it may be true that had this work been
prosecuted with due and reasonable diligence from the seventeenth
of June, that the test would have been made before the expira-
tion of the extended period, before July 12, 1890, yet we do not
think the reasons given for the delay are entirely sufficient to
excuse the delay.
It may be that men were not to be had ; it may be that work
was being done to such an extent in that region as alleged, that
it was difficult if not nearly impossible to employ men; and it
is probable that if the accident had not occurred to the man who
was contracted with to do this work, that the work would have
been successfully prosecuted within the proper period; but
nevertheless, we do not think that either of these misfortunes are
of such a character as to excuse the defendant company from
the non-performance of its contract within the period stipulated,
and to be brief, our final conclusion in this regard is that we are
of the opinion that as to all this territory, except that immediately
adjacent to this well, the plaintiff is entitled to the injunction
prayed for, and as to the land on which this particular well in
question is being drilled, while according lo the strict legal
rights of the parties under the terms and conditions of this con-
tract it would appear that the defendant is justified for the de-
lay and for the status of the work, nevertheless, inasmuch as
the plaintiff had apealed to us as a court of equity to interfere
in his behalf, and is here standing upon his strict legal rights un-
der the exact terms of this contract, we are disposed to say to
him and to hold that we will give him his decree as to the lands
not occupied by this well; but as to that particular portion of
this territory we will extend the time for a short period to en-
able the defendant, if he chooses, to prosecute the work with a
view of ascertaining what may be the result.
In so doing, we simply exercise the power which we have as a
court of equity not to refuse relief unless it be shown that some
equitable consideration shall be extended to the party who is
being proceeded against, namely here, the Northwestern Ohio
Natural Gas Company. It would seem, for example, if a man
had bought timber, upon certain premises, or stone, and was en-
592 CIRCUIT COURT REPORTS— NEW SERIES.
HoUister v. Vander^ift. [VoLXII.N.S.
gaged in the act of removing it at the hour when the period
stipulated for within which the timber or stone was to be re-
moved, and he had not quite gotten oflf his timber or stone, and
the owner of the land should come into court and ask equitable
relief, that the court in granting it would do so upon some condi-
tion such as we have in this case.
The decree will be that the plaintiff ghall be quieted in his
title as to all his lands except one acre or thereabouts imme-
diately adjacent to this well as being drilled. As to that the de-
fendant shall have a period of twenty days from the entering
of this decree in which to complete the well. The plaintiff shall
pay one-third of the costs and the defendant two-thirds of the
same.
For this extension, the defendant, the gas company, shall pay
as further compensation the sum of $20. Our recollection of
the testimony being that the year's compensation was $240, the
defendant to be permitted within this period of twenty days to
ascertain whether gas or oil shall be found in paying quantities
in the region where the well is being drilled ; in case that it shall
be found, then the defendant shall be permitted to proceed with
the work of extracting and disposing of the oil or gas according
to the terms of the contract, and to have such facilities in remov-
ing it -as are ordinarily used in such cases.
END OF VOLUME XII.
INDEX.
ABANDONMENT—
Allegations of, do not make the
city of Cleveland a necessary
party to a determination of the
question Involved In this case, as
to title. 321.
Of child by parent; order re-
quiring that the parent contribute
periodically a certain amount for
support of the child may be modi-
fled as changed conditions of the
child or of the ability of the par-
ent to provide may require. 361.
ABATEMENT—
A plea In abatement does not
lie to an Irregularity in the selec-
tion of a grand jury. 97.
ACCORD AND SATISFACTION-
Where there is a charge of fraud
in the settlement obtained, a ten-
der back of the amount received
Is a necessary prerequisite to an
avoidance of the settlement and
an action on the claim. 126.
Where a woman whose clothing
has been damaged while a passen-
ger on a street car accepts an
agreed sum in settlement therefor
and signs a release without read-
ing it, she is not barred from
prosecuting an action for bodily
injuries which subsequently de-
veloped, although the release cov-
ered damages of both clothing and
person. 373.
ACCOUNTING—
Action for, by a creditor, where
money was fraudulently trans-
ferred by an Insolvent in contem-
plation of an assignment and was
restored to him by the transferee
after the assignment had been
made. 41.
An action for wrongful conver-
sion does not become equitable by
reason of an averment that the
amount due is unknown coupled
with a prayer for an accounting,
when. 241.
The objection that cash Items
alone can not, without special au-
thority, be the subject of a book
account is not well taken, where
the action is on a contract and
there is an averment in the peti-
tion that the indebtedness arose
'for money laid out and expended
and commissions in the purchase
and sale of goods by the plaintiff
for the defendant at his request*'
483.
Where neither party to an ac-
tion on an account has kept his
books in such a way as to
strengthen his oral testimony,
but the plaintiff seems to have
been a fair and candid witness, a
finding by a jury in his favor will
not be disturbed. 483.
ACTIONS—
Evidence of some conversation
between the parties that if they
could not settle their differences
they would arbitrate is not suffi-
cient to preserve the claim from
the running of the statute of lim-
itations. 261.
When a pro<;eeding by a munici-
pality for the appropriation of
property is "begun." 378.
An action is begun in an attach-
ment proceeding when the petition
is filed and summons has been is-
sued thereon. 401.
ADMINISTRATOR—
Where appealing in the Interest
of the trust from the common
693
Mi
pleas to the circait ooart an ad-
mfiitotrat4>r must file a notice of
mch intention within thirty days
after the entering of jndgmenL
87.
Where an administrator fails,
for more than six years after dis-
covering tliat the personalty :jt
the decedent is insufficient to pay
his debts, to bring an action to
subject his real estate to the pay-
ment of said debts, the statute of
limitations runs a^Unst hiuL 161.
Exceptions to account of; certifi-
cation to the common pleas; ex-
tent of repairs an executor may
make on property specifically de-
vised and to be turned over to the
devisee after one year; allowance
of additional compensation and
counsel fees; division of expenses;
form of order to distribute. 340.
ADULTERATION—
A plea of guilty of, by a seller
of goods, does not prove that the
goods were adulterated. 160.
ADVANCEMENTS—
See Wills.
ADVERSE POSSESSION—
Title may be obtained by ad-
verse possession as against a cor-
poration, and it will be held to
have been so obtained where the
probabilities as to the situation
bear out the positive testimony of
the one asserting possession. 309.
AFFIDAVIT—
Charging the keeping of a place
where intoxicating liquors have
been sold in dry territory; the
affidavit need go no further than
to aver an unlawful sale, leaving
it to be developed by the evidence
in what respect the sale was un-
lawful. 330. .
AGENCY—
Action against a real estate
agent who was alleged to have sold
the property of the plaintifT for
more than was represented to
plaintiff as the purchase price.
48.
For the purchase of apples; de-
termination by a jury as to the
nature of the oontnet and the In-
debtedness arising thereimder will
not be set aside, when. 483.
AGREED STATEMENT OF
FACTS—
The mere filing of an agreed
statement of facts in the trial
court does not make it a part of
the record; nor is it snflicient to
merely refer to the agreed state-
ment as bearing the fUennarks of
the court and as having been of-
fered in evidence, if there is no
further identification and it Is not
attached to the bill of exceptions.
223.
AGRICULTURAL SOCIETIES—
Section 7006, forbidding the tf-
tablishment of any temporary
place of business for the sale of
any article within one-fourth of a
mile of any agricultural society
while the fair of such society is
being held, unless upon written
permission of the society, abridges
the privileges of citizens, deprives
them of their property without
due process of law, denies to them
the equal protection of tiie law
and the right of enjoying and pos-
sessing property, and is void. 81.
ALIMONY—
See DivoBCE and Alimont.
AMENDMENT—
The amendment of a return of
summons after the substitution of
the proper party defendant is in-
effectual to bring that party into
court. 69.
Where the Supreme Court sus-
tains a demurrer and remands the
case for further proceedings, the
circuit court has authority to al-
low an amendment to the plead-
ing to which the demurrer was
directed. 270.
APPEAL—
Effect of the giving of bond by
an executor desiring to appeal in
the interest of the trust from the
common pleas to the circuit court;
what it is that effectuates the ap-
peal. 87.
Where appeal is taken from the
INDEX.
common pleas to the circuit court
by an executor in the interest of
the trust, a written notice of an
intention to appeal must be filed
with the clerk of the common
pleas within thirty days after the
entering of the judgment appealed
from. 87. f
Error can not be prosecuted to
a judgment rendered on appeal
from the determination by a jus-
tice of the peace on a motion to
discharge an attachment 128.
Enforcement of a bond on ap-
peal in an alimony proceeding.
236.
A claim for wrongful conversion
is not appealable, when. 241.
Does not lie to the common pleas
court in the matter of a guard-
ian's account so long as any item
of said account remains unde-
termined by the probate court.
264.
The effect of Section 1536-114,
as amended, is to deprive the com-
mon pleas court of jurisdiction on
appeal to retry appropriation cases
begun by the municipality in the
court of insolvency before adop-
tion of the amendment, but not car-
ried to judgment until after the
amendment was enacted. 378.
The right of appeal and of pros-
ecuting error is indistinguishable.
378.
APPRAISEMENT—
Of loss under insurance policy;
see Insurance (Fire).
The necessity for an appraise-
ment of a fire loss does not exist,
when. 228.
APPROPRIATION—
Effect on the right of appeal of
the amendment of March 22, 1909,
to Section 1536, upon actions
brought by a municipality in the
court of insolvency for the appro-
priation of property. 378.
An appropriation proceeding is
"begun" by the passage of the
declaratory resolution by council.
378.
ARBITRATION—
A provision of a contract for
arbitration in case of dispute is
rendered illegal by a clause which
ousts the courts of jurisdiction;
or at least is rendered inoperative
by not making arbitration a con-
dition precedent to the bringing of
an action on the contract itself.
193.
Evidence of some conversation
between the parties that if they
could not settle their differences
they would arbitrate is not sufll-
cient to save the claim from the
running of the statute of limita-
tions; positive evidence of the ex-
istence of such an agreement is
required. 261.
ARSON—
To constitute the crime of arson,
it is not necessary that the build-
ing burned should have been en-
tirely completed; but it is suffi-
cient if it be a structure in course
of erection, and so far completed
that it could be used temporarily
for shelter or occupation or the
storage of personal property. 417.
Acquittal of a charge of burning
a dwelling-house is not a bar to a
subsequent prosecution for the
same offense, under an indictment
charging the burning of a struc-
ture other than a dwelling-house.
417.
ASSAULT AND BATTERY—
Liability of a railway company
for punitive as well as actual dam-
ages to a passenger assaulted by
one of its conductors. 177.
Action against a policeman for
damages for. 255.
Where the defense is self-de-
fense the burden is upon the ac-
cused to show the reasonableness
of his belief that he was in actual
danger and that the force which
he exerted was necessary for his
own protection. 311.
ASSESSMENTS—
For a street improvement can
not be enjoined by a lessee for a
term of years or by a mortgagee.
696
INDEX.
where the ground for asking for
an injunction is either that the
proceedings were irregular or that
the estate will be damaged by the
improvement. 123.
Against policyholders in a mu-
tual fire insurance company; lia-
bility of members of an insolvent
company to assessment; defenses.
277.
ASSIGNMENT FOR CREDITORS-
Where money Is transferred by
the insolvent in contemplation of
an assignment, and subsequent to
the assignment is restored to the
assignor, an action by a creditor
for an accounting will lie against
both the assignor and the party to
whom the money was transferred.
41.
Mere presentation of a claim to
the assignee of an Insolvent debtor
does not stop the running of a stat-
ute of limitations. 93.
ASSUMED RISK—
The doctrine of, is without ap-
plication where there has been a
failure on the part of an employer
to afford protection against ma-
chinery or appliances. 246.
ATTACHMENT—
Error can not be prosecuted to
a judgment rendered on appeal
from the determination by a Jus-
tice of the peace on a motion to
discharge an attachment. 128.
Sections of the code of civil
procedure relating only to Jurisdic-
tion over the person are not ap-
plicable under the section relat-
ing to attachments where Jurisdic-
tion is sought over the property at-
tached. 271.
The right of attachment against
personal property of a foreign
railway company, having no place
of business or officer upon whom
summons can be served within the
county, is given under Section
6489, and such a company is not
exempted from attachment by the
provisions of Section 6478. 271.
An action has been begun un-
der the attachment law when the
petition has been filed and sum-
mons issued thereon, and the or-
der of attachment will not be set
aside because issued before the
service by publication was begun.
401.
In a suit in attachment on a
Judgment taken on a promissory
note which was signed by the
maker with his initials and sur-
name only, the Judgment debtor
will be required to show a meri-
torious defense, and if he fails to
set forth his defense in his peti-
tion to vacate the Judgment, objec-
tion to the service had upon him
by publication will not lie for de-
fects therein. 401.
ATTORNEY AND CLIENT—
Actions against county officers
must be prosecuted or defended by
the prosecuting attorney, or by
legal counsel appointed by the
county commissioners on request
of the prosecuting attorney in ac-
cordance with Section 845. 202.
Where counsel are employed by
an executor to defend the will and
the action results in sustaining the
will, a reasonable allowance may
be made to them for their services
in that behalf, and the allowance
may be made more liberal where
the services were performed on
the basis of a contingent fee. 340.
An executor is authorized to
employ counsel although he is him-
self a man of affairs with business
experience and ability. 340.
An action does not lie by an at-
torney against a tort feasor for
the attorney's share of the amount
paid to his client by the tort feasor
by way of compromise and in full
settlement for injuries received by
the said client. 495.
BAIL AND RECOGNIZANCE—
A surety on a bail bond who de-
sires to surrender the prisoner is
not discharged from further lia-
bility on the bond until the court
accepts the delivery, and the only
evidence of delivery is the record
of the court 367.
INDHX.
697
BALLOTS—
See Elections (Political).
BANKS AND BANKING—
A bank having in its possession
a promissory note for collection is
not the "holder" of the note, and
upon default in payment can not
itself ptirchase the securities
pledged as collateral, where the
note authorizes the "holder" to be-
come purchaser and absolute own-
ers free of all trusts and claims;
return of canceled note not notice
of sale of the collateral, when;
-owner of the collateral may de-
mand an accounting, when. 529.
BEER—
See LiQUOB Laws.
Where the lessee is a saloon
keeper and the lessor a brewing
company, and the lease contains a
covenant that the lessee shall sell
no beer other than that manu-
factured by the lessor, the lease is
not invalidated thereby. 577.
Extension of a saloon business
to the adjoining property, which
is fitted up by the lessor of the
premises first leased; lessee bound
by the covenant of his original
lease as to the sale of the lessor's
beer exclusively. 577.
BENEFITS—
Neither a lessee for a term of
years nor a mortgagee can enjoin
a proposed street improvement on
the ground of lack of benefits. 123.
BILL OF EXCEPTIONS—
Where a bill of exceptions refers
to an exhibit as the charge of the
court, a reviewing court may ex-
amine the charge for the purpose
of determining whether or not the
law was properly given. 129.
A reference in the bill of ex-
ceptions to an agreed statement of
facts as having been offered in evi-
dence and as bearing the file-
marks of the trial court is not
sufficient to make it a part of the
record. 223.
Where the evidence is not all
set out in the bill of exceptions, a
reviewing court can not say that
the portions of the charge to the
jury which are complained of were
not properly given. 512.
BILLS, NOTES AND CHECKS—
See Pbomissobt Notes.
BLASTING—
It is not negligence per ae to
use explosives for blasting; in-
jury to surrounding property
caused by the concussion creates
no liability in the absence of negli-
gence; proper charge of court as
to the degree of care necessary in
the use of explosives for such
work. 76.
BOARD OF EDUCATION—
Limitation of the power of a
board of education to make and
enforce rule^; vaccination and
failure of pupil to submit thereto.
33.
BONDS (Negotiable)—
Of a coal mining company can
not be endorsed by a railway com-
pany, or by parallel and competing
companies. 49.
Limitations of bond issues by
municipalities; what bonds may
be excluded in determining wheth-
er the limitation has been reached;
validity of an ordinance providing
for the issuing of bonds for the
building of a bridge where the
amount named is not sufficient to
complete the structure. 279.
Enforcement of a bond on appeal
from a judgment ordering the pay-
ment of alimony. 236.
For the performance of public
work; where the contractor de-
faults the sureties can not com-
plain, in the absence of any show-
ing of abuse of discretion, because
the contract was relet to the next
lowest and best bidder and the loss
thereby sustained was taken as the
measure of their liability. 240.
Guaranty of coal company bonds
by competing lines of railway not
in the nature of a tonnage con-
tract and not permissible. 145.
696
INDBX.
BOOK ACCOUNT—
See AccouNTixo.
BOOKS AND PERIODICALS—
There can be no recovery of
profits arising from the publica-
tion of the books of an author un-
less the books were copyrighted,
and in that event the state courts
are without jurisdiction. 241.
An action for recovery of books,
plates and electrotypes is an action
for recovery of specific personal
property and can not be deter-
mined by the circuit court on ap-
peal. 241.
Where a periodical is given by
its founder to a society in trust,
and the society in reliance on the
trust thus created contributes
large sums in extending its circu-
lation and value, equity will not
require the trustees of the society
to account to the estate of the
donor for profits derived. 241.
BRIDGES—
An ordinance authorizing an is-
sue of bonds for the building of a
bridge is not rendered invalid by
reason of the fact that the con-
struction of the "draw," and there-
fore of the completed structure, is
not provided for. 279.
BUILDING—
Construction of statute provid-
ing that cellar and foundation
shall not be considered as part of
building in settling fire loss. 228.
BURDEN OF PROOF—
Where the question of contribu-
tory negligence is not directly
raised by the pleadings but there
is evidence tending to show that
the negligence of both the plaint-
iff and the defendant directly con-
tributed to the injury complained
of. 17.
As to an oral agreement that a
promissory note was not to be-
come effectual until the happening
of a specified event at some date
subsequent to its delivery. 37.
In an action against a carrier of
parcels for hire for failure to de-
liver a traveling bag at a desig-
nated depot in time for a particu-
lar train. 122.
As to the fairness of the transac-
tion, where property was conveyed
to his sons by a father who had be-
come enfeebled by age. 180.
The rule that the burden of
proof rests upon the plaintiff, and
does not shift to the defendant by
reason of presumptions in his
favor, applies to an action to sub-
ject to a husband's debts property
standing in the name of his wife.
253.
The burden is on a contractor
to show that his work complies
with the terms of the contract 269.
As to the reasonableness of the
belief of one on trial for assault
and battery that he was in actual
danger and that the force which
he used was necessary to his pro-
tection. 311.
Is on a bank to prove payment
of the balance of a savings ac-
count ^hich it is claimed by the
depositor he has not withdrawn.
314.
A defendant in a homicide case
can not be required to establish
self-defense by a preponderance of
the evidence, until the state has
proved that the killing by him was
an unlawful killing within the de-
gree of crime charged. 486.
As to the existence of causes
"beyond control," claimed to have
prevented the carrying out of a
contract to mine a minimum ton-
nage of coal. 465.
CANALS—
The act authorizing the city of
Cleveland to enter upon and oc-
cupy a part of the Ohio canal (69
O. L., 182) does not authorize the
conveyance of a fee simple estate
by the Governor to the said city,
but only the right to occupy the
lands therein described for the
purposes specified or similar pur-
poses. 321.
In an action in quo warranto to
INDBZ.
699
oust lessee railway company and
its successors from such lands, the
city of Cleveland is not a neces-
sary party. 321.
CARRIER—
Of parcels for hire; where a
traveling bag was entrusted to
such a carrier to be delivered at a
certain depot in time for a par-
ticular train, a prima facie case of
negligence is made out by testi-
mony of the plaintiff to the effect
that he inquired at the baggage
room at the proper time for his
baggage and was unable to find
it. 122.
CATSUP—
If catsup is sold by the barrel
and it is necessary to close the
barrels while hot, there is an im-
plied agreement between the par-
ties that the shrinkage of the con-
tents shall be borne by the pur-
chaser. 173.
CHARGE OF COURT—
As to what constitutes testamen-
tary capacity; a charge that eccen-
tricities, pecularities and delusions
are of no consequence, if the tes-
tator has sufficient mental capacity
to transact ordinary business and
understand the nature of the busi-
ness in hand, is prejudicial. 8.
Instructions to the Jury, which
were approved either expressly o^
by implication at a former hear-
ing on review, will not be held er-
roneous at a second review of the
same case unless error clearly ap-
pears. 17.
A special instruction in a negli-
gence case is erroneous which does
not state the manner in which the
negligence of the defendant caused
the accident, or which includes
any negligence not charged in the
petition. 17.
As to the degree of care neces-
sary in the use of explosives in
blasting in order that surrounding
property may not be injured by
the concussion. 76.
In an action against a carrier of
parcels for hire for failure to de-
liver a traveling bag at a desig-
nated depot in time for a particu-
lar train. 122.
A charge that submits to the
Jury a question of a widow's rights
is erroneous. 129.
A charge of court which is at-
tached to the bill of exceptions as
an exhibit, and is referred to in
the bill of exceptions as the charge
of the court, may be examined by
the reviewing court for the pur-
pose of determining whether or
not the law was correctly given.
129.
Where the Judgment rendered
was manifestly the correct Judg-
ment, mere technical errors in the
charge are not prejudicial. 129.
With reference to the right of a
defendant to rescind the contract
after he had waived all the
breaches of its material provisions.
173.
In an action against a railway
company on account of injuries
sustained by a passenger who was
assaulted by the conductor of the
train upon which he was a pass-
enger. 177.
A definition given to the Jury of
ordinary care is not unfair to the
plaintiff in that particular case
because it applies to a class rather
than a particular individual. 204.
A Judgment will not be reversed
for refusal to give charges as to
the slippery condition of the floor
where the accident occurred or the
assumption of the risk by the
plaintiff employe, where the Jury
has found that the accident was
due to exposed machinery. 246.
In an action against a policeman
for damages for assault and bat-
tery, where the officer answered
that plaintiff interfered when he
was attempting to arrest a third
party and that he used no more
force than was necessary. 255.
Where in the charge to the Jury
the court speaks of damages re-
sulting from or by reason of the
acts complained of, other acts are
necessarily excluded. 220.
600
INDHX.
Where the plaintiff voluntarily
went upon a defective sidewalk
with full knowledge of its condi-
tion and was injured; definition
of ordinary care. 212.
In an action for damages against
an innkeeper because of injury to
the apparel of a guest. 209.
It is error to refuse to instruct
a jury that if they find that the in-
jury was due to the negligence of
a tort feasor who is not a party to
the action, and the defendant was
not negligent, the verdict should be
for the defendant. 234.
With reference to a total fire
loss, and that the jury need not
consider whether or not the prop-
erty was vacant at the time the
policy was applied for and is-
sued. 228.
A charge is erroneous which per-
mits the plaintiff to recover on a
preponderance of the evidence in
an action for personal injuries,
■ regardless of his own possible
negligence and without the negli-
gence of the defendant being the
direct or proximate cause. 262.
In an action for damages on ac-
count of injuries to one riding in
a wagon which collided with an
electric car at the intersection of
two streets. 266.
It is error to charge that the
burden of proof is satisfied by a
fair preponderance of the evidence,
since there are no degrees of pre-
ponderance, and if the evidence
preponderates at all it is suffi-
cient. 269.
Where error is prosecuted to the
charge of the court, the record
should show that the charge as
tembbdied therein comprises all
that the court said to the jury on
the subject complained of. 278.
A charge to a jury in a prosecu-
tion for assault and battery in
which the defense of self-defense
is asserted is erroneous, where the
jury are instructed that the bur-
den is on the defendant to show
that he was In actual danger and
that he used no more force than
was actually necessary. Ignoring
any reference as to the question of
the reasonableness of the belief
upon which he acted. 311.
As to burden of proof where a
depositor is seeking to recover
from a bank the balance of his de-
posit, and payment is asserted by
the bank. 314.
An instruction to a Jury which
excluded all consideration of con-
tributory negligence* although
pleaded as a defense and supported
by some evidence, constitutes
prejudicial error requiring a re-
versal of the judgment 337.
It is prejudicial error to refuse
to instruct the jury, in the case of
one indicted for pocket picking
where the amount stolen is valued
at $20, that pocket picking in-
cludes the offense of petit larceny.
348.
It is not error to charge that
one who, having passed safely in
front of a street car, is confronted
by an automobile running at great
speed and but a few feet distant,
is to be held to the exercise of or-
dinary care only in his choice of
a way of escape. 381.
An instruction to a Jury which
required that a verdict be re-
turned for the defendant traction
company, without regard to any
act of negligence on the part of the
'company in the running of its car
prior to the instant the decedent
attempted to cross the track and
was struck, Is erroneous. 385.
As to the use of the word
"honestly" in connection with be-
lief in a criminal case. 486.
It is error to refuse to charge a
jury with reference to the time of
maturity of a note sued on and the
manner of Its payment, where
these are matters which consti-
tute issues of fact which the jury
must determine. 503.
Where the evidence is not all
set out in the bill of exceptions, a
reviewing court can not say that
the portions of the charge to the
jury which are complained of were
not properly given. 512.
INDEQL
601
Where a machine Is from any
cause not reasonably safe to oper-
ate, and is especially dangerous
for a boy of sixteen to operate,
and the master knew or by the ex-
ercise of ordinary care would
have known the facts with refer-
ence thereto, a charge of court
that under such circumstances It
was the duty of the master to in-
struct the boy how to safely oper-
ate it is not erroneous. 574.
Where the plaintiff was injured
by the falling of a scaffold built
by his employer in sections and
for temporary use as the work on
the building they were erecting
progressed. 567.
CHATTEL MORTGAGED-
See Mortgage.
CHILDREN—
See Infants and Minobs.
Group of children approaching a
traction road crossing; one struck
and killed; speed of the car held
to have been the proximate cause
of the accident. 385.
Validity of provisions for the
care of delinquent and dependent
children. 374.
Authority of the juvenile court
superior to that of parents; con-
stitutionality of the act establish-
ing juvenile courts; designation of
judge to act. 374.
CITY SOLICITOR—
Has authority to bring suit in
the name of the municipality to
enjoin a public utility company
from violating its obligations to
the city and its inhabitants. 392.
CLAIMS—
A claim is not preserved from
the running of the statute of limi-
•tations by evidence of some con-
versation between the parties that
if they could not settle their differ-
ences they would arbitrate. 261.
COAL—
See Monopoly and Railways.
COLLATBRAI^-
See Banks a.nd Banking.
COLLEGE—
See Ken YON College.
COMMISSIONS—
For the sale of goods; construc-
tion of contract between agent and
manufacturer. 154.
COMMON LAW MARRIAGE—
See Mabriage.
COMPETITION—
The Kanawha ft Michigan and
the Hocking Valley Railways are
competing lines in the broad and
practical sense. 145.
COMPULSORY EDUCATION ACT-
See Schools.
CONDITIONS—
Where there is a provision in a
contract that the measurements
shall be made at the place of ship-
ment, it amounts to a condition
precedent, and a refusal by the
buyer to be bound by this provi-
sion justifies the seller in repu-
diating the whole contract. 173.
Action which is less than a
waiver by a fire Insurance com-
pany of the conditions of the
policy. 241.
CONDITIONAL SALES—
A contract of conditional sale,
filed with the county recorder, is
sufficient, where the statement of
the vendor as to the amount due
and unpaid does not appear "there-
on,'' but is embodied in an affidavit
on a separate sheet attached to
the contract of sale. 15.
CONFESSIONS—
See Evidence.
The claim that statements made
by an accused person under duress
were not in the nature of a con-
fession, but were mere admissions,
does not render them competent
evidence against him, when they
constitute conclusive evidence with
reference to the crime charged. 197.
CONGRESS—
The offices of mayor and member
of Congress are not incompatible
602
INDB3L
and may be held by one and the
same person. 274.
CONSANGUINITY—
See Next of Kin.
CONSIDERATION—
Where promissory notes are
found among the papers of a de-
cedent, the stipulation of such
notes that they were for value re-
ceived is prima facie evidence of
consideration. 353.
Payment of a promissory note
and want of consideration therefor
are distinct defenses. 496.
One dollar is a sufficient amount
to constitute a consideration in
law for a release from liability for
damages on account of personal in-
juries. 497.
CONSTITUTIONAL LAW—
The provisions of 98 O. L.. 320,
compelling the owners of motor
vehicles to register with the Secre-
tary of State and forbidding the
passage and enforcement by local
authorities of ordinances for the
regulation and licensing of such
vehicles, are unconstitutional. 23.
The repeal of an unconstitu-
tional statute does not per ae in-
validate an ordinance previously
enacted. 23.
Section 7006, Revised Statutes,
which provides that "whoever es-
tablishes a temporary place of busi-
ness for the sale of any article,
etc., within one-fourth of a mile of
any fair ground or agricultural so-
ciety while a fair is being held
therein, unless he had obtained
the written permission of the so-
ciety" and impo^ng a penalty
therefor, is unconstitutional. 81.
Section 845 is unconstitutional
and void in so far as it attempts
to authorize the appointment of
legal counsel by county commis-
sioners. 103.
The state has no inherent power
to impose restrictions upon a busi-
ness innocent in itself and lawful
per se, 108.
Section 553, relating to the ap-
pointment of court constables is
not unconstitutional, but has been
repealed by the county salary law.
267.
Consideration of the commerce
clause of the federal Constitution
in its bearing on the powers of a
state railroad commission as to
demurrage charges for cars used
in interstate commerce. 317.
That part of Section 1209a, pro-
viding for the appointment of a
deputy coroner in all counties con-
taining a city of the first class of
the second grade, is unconstitu-
tional in that it is an enactment of
a general nature without uniform
operation throughout the state. 335.
Local conditions do not consti-
tute ground for a general enact-
ment which is without uniform
operation. 335.
Section 548-36(1 et seq., establish-
ing Juvenile courts and procedure
therein, do not contravene the pro-
visions of the state Constitution.
374.
The Rose local option law (99
O. L., 35) is not rendered uncon-
stitutional by reason of the fact
that it deprives or may deprive
the accused of a trial by jury.
404.
CONTINUANCE—
The granting of, is largely a mat-
ter of judicial discretion, and error
thereto will not lie unless abuse of
discretion is shown. 248.
CONTRACTS—
Between a municipality and a
natural gas company — see Muirici-
PAL COBPOBATIONB.
Contracts voidable for fraud dis-
tinguished from those which are
absolutely void. 126.
Before asserting a cause of ac-
tion to which a contract of release
is a bar so long as it remains In
force, a tender back of the con-
sideration received is a prerequi-
site to avoidance of such release.
126.
For sale of goods; construction
of in the light of the business en-
gaged in. 154.
INDBZ.
601
The filing of an affidavit charg-
ing that the goods sold did not
come up to the contract does not
prove breach of contract. 160.
Where competing lines of rail-
way guarantee the bonds of a coal
company on condition of an equal
division of the traffic, the transac-
tion can not be construed as a
tonnage contract, but is of a na-
ture calculated to beget monoply
and discrimination. 145.
The state is not bound by the
fact that the parties to an illegal
contract are satisfied therewith,
but may inquire whether others,
and especially the public at large,
are prejudiced thereby. 145.
Written in the third person;
construction of. 158.
Action for breach of, for the sale
of catsup; shortage in measure-
ment; delay in payment; custom
of trade. 173.
Where a product is sold by the
barrel, and it is necessary to run
it into the barrels and close them
up while hot, there is an implied
agreement that the shrinkage shall
be borne by the purchaser. 173. .
A provision for arbitration
which ousts the courts of jurisdic-
tion is illegal to that extent. 193.
A contractor who has acted in
good faith may recover notwith-
standing his contract has not been
rigidly performed. 269.
Where the contractor for public
work has defaulted, the work may
be relet to the next lowest and best
bidder. 240.
A traveling salesman has no
power to modify a contract made
for his employer, when. 243.
Custom as an aid in construing
a contract; can not be substituted
for the plain provisions of a con-
tract. 243.
Evidence and circumstances es-
tablishing an agreement to con-
tract a common law marriage.
289.
Inasmuch as a written contract
is presumed to contain all the
stipulations, complaint can not be
made of a refusal to admit in evi-
dence a proposal made by one of
the parties. 382.
Where work on a contract is
stopped by the owner and is not
allowed to proceed until a ch9.nge
of season has made it more ex-
pensive to carry the work forward,
it is the duty of the contractor, if
he intends to make a claim for ad-
ditional compensation, to make it
immediately; otherwise, if presen-
tation of the claim is delayed until
trouble has arisen in settlement,
it is open to the suspicion that it
is an afterthought. 382.
Of purchase competent as evi-
dence in a forcible entry suit for
the purpose of showing the nature
of the defendant's possession. 431.
Action for breach of; proceed-
ing for disclosure of unknown par-
ties for whom the defendant was
acting as agent or manager. 457.
The contract of employment re-
lied on in this case the court finds
to have been for a term of one
year. 459.
A lease for gas and oil held to
have been a contract for the sale
of petroleum products; effect on
contract of extension of time for
opening first well. 475.
Agreement with owner of land
for development of oil and gas
thereon; effect on agreement of
payment of rental without begin-
ning operations. 489.
Ck)nstruction of a coal mining
contract in an action for recovery
of minimum royalties; meaning of
the words "impossible'' and "causes
beyond control" as used in the
contract; burden of proof as to
the existence of such causes; ef-
fect of retention of possession by
the party claiming to have been
prevented from removing the mini-
mum tonnage; burden of proof as
to the existence of such causes;
evidence admissible as to the con-
struction placed upon the contract
by the parties. 465.
Determination of an account un-
der a contract for the purchase
and sale of apples. 483.
eM
INDBZi
Construction of a contract for
drilling and operating gas and oil
wells; payment ef rental held not
to have extended the contract
where no producing well had been
drilled within the term originally
agreed upon. 505.
Whether a contract entered into
by a parent for schooling his son
was for the entire school year, or
for a shorter period, must be de-
termined from all the facts, words,
acts, conduct and circumstances
surrounding the parties at the
time; if for the entire school year,
the contract may be discharged by
the son becoming disabled by ill-
ness from attending the full year,
it being presumed that both par-
ties acted on the assumption that
if such an event interyened the
agreement would be at an end. 515.
CONVERSION—
A claim for wrongful conversion
does not become an equitable ac-
tion by reason of a mere averment
that the amount due is unknown,
coupled with a prayer for an ac-
counting, when the allegations of
the petition do not otherwise re-
quire a decree requiring an ac-
counting; such an action is not
appealable. 241.
CONVEYANCE]—
See Deeds.
CORPORATIONS—
The control and management of
a coal mining company can not be
acquired by a railway company
over whose line the coal from such
mines is shipped; nor can the
shipment from mines be divided
by parallel or competing lines by
virtue of an agreement through
Joint stock ownership. 49.
Agricultural societies are private
corporations and are bound by the
limitations of such corporations;
exercise of tyranny by corpora-
tions. 81.
Where a court is called upon to
construe a corporate franchise at
the suit of the state granting it,
all doubt will be resolved in favor
of the state and against the gran-
tee. 145.
The right of attachment against
property of a foreign corporation,
with no officer upon whom sum-,
mons can be served or place of
doing business within the county,
is given by Section 6489. 271.
Municipal and commercial cor-
porations; control of, where opera-
ting public utilities; void provi-
sion in a grant to a natural gas
company permitting the supply-
ing of gas for heat and power but
not for illuminating purposes;
transfer of rights to artificial gas
company. 392.
A corporation is the custodian
of its own stock; situs of the cor-
poration is the situs of the stock;
order that corporate stocks be
transfered to a wife as alimony
not rendered invalid by reason of
the fact that the husband was
served by publication only. 460.
COUNSEL—
See Attobnet aihd Client.
COUNTY COMMISSIONERS—
The provision of S'ection 845
conferring upon county commis-
sioners the authority to appoint
legal counsel is unconstitutional.
103.
COURT CONSTABLES—
See Office and Officeb.
COURTS—
An Ohio court is bound to follow
the decisions of the courts of this
state as distinguished from those
of the U. S. Supreme Court, where
only state statutes and policies are
involved and no federal question
arises. 145.
The provision of the county offi-
cers' salary law that a certain sum
shall be allowed to the probate
judge for payment of his deputies,
etc., includes his court constable.
268.
Section 553, relating to the ap-
pointment of court constables, Is
not unconstitutional, but has been
repealed by the county salary law.
INDEX.
606
which proYides that the county
shall allow the probate judge a
certain sum out of the county
treasury to pay the salaries of his
deputies, etc., including "other em-
ployes"; the phrase other employes
includes court constables. 268.
Authority exists to distribute
business among judges having like
original jurisdiction. 374.
COVENANT—
Against under-letting; observ-
vance of the covenant waived by
the lessor for a time, and then in-
sisted upon; to what extent in-
junction will lie on the petition of
the lessee. 570.
CRIMINAL LAW—
An order to a clerk of court to
draw a grand jury should stipu-
late the number of names to be
drawn; irregularity In the selec-
tion of a grand jury can not be at-
tacked by a plea in abatement. 97.
Sales of intoxicating liquors
from a manufactory in quantities
of one gallon or more at any one
time are forbidden under the Rose
law; a manager of a brewery sell-
ing beer in quantities of one gal-
lon or more in a county where
the Rose law is operative is lia-
ble to prosecution, notwithstand-
ing the sale was made at a time
when he was absent, if it was in
conformity to his general direc-
tions. 118.
Prosecution of a physician for
selling from his own store drugs
for the use of one who was not
his patient. 142.
A negative averment covering an
exception to a criminal statute is
not necessary, when. 142.
Duress in obtaining a confes-
sion; circumstances under which
admissions by a suspect are not
voluntary; prejudi<yial error in
admitting such admissions in evi-
dence; and also in admitting the
statement of a conclusion by a
witness, who had stated no facts
from which such a conclusion
could be drawn and as to which
the jury would have been quite as
competent as the witness to draw
a conclusion. 197.
The setting of cases and grant-
ing of continuances are largely
matters of judicial discretion, and
error will not lie to the action of
a court with reference to these
matters unless abuse of discretion
is shown. 248.
A reasonable time should be al-
lowed, for a new trial in a Jones
law local option case after the
filing with the clerk of the munici-
pality of the findings of the judge
on the original hearing. 248.
Where self-defense was asserted
as a defense to a charge of assault
and battery. 311.
A surety is not discharged from
his bond until the court accepts
delivery of the accused, and the
only evidence of delivery is the
record of the court. 317. 4
Prosecution for keeping a place
where intoxicating liquors were
sold in territory voted dry under
the Rose county local option law;
proof of one unlawful sale suffi-
cient; in what respect unlawful
may be developed by the evidence;
proof that the territory has been
voted dry; hearsay evidence that
liquor had been obtained in dry
territory. 330.
An indictment charging the
crime of pocket picking, where the
property stolen is valued at $20, in-
cludes the offense of petit larceny,
and a refusal of the court to so
instruct the jury upon request of
the accused is prejudicial error;
but an indictment for pocket pick-
ing does not include either assault
and battery or assault. 348.
An indictment charging in two
counts that the same offense oc-
cured on dates ninety years apart
is not bad for duplicity or inde-
finiteness, where it is manifest
that one of the dates is a mistake
and the defendant has suffered no
prejudice thereby. 417.
eo6
INDB3L
It is not necessary to constitute
the crime of arson that the build-
ing burned should have been com-
pleted, but it is sufficient if the
structure is so far advanced that
it could be used temporarily for
shelter or occupation or for the
storage of personal property. 417.
An acquittal of the charge of
burning a dwelling is not a bar to
a subsequent prosecution for the
same offense where the charge is
burning a building other than a
dwelling. 417.
Where the judgment of a justice
of the peace in a criminal case
has been reversed for error in the
sentence alone, the case may be re-
manded for re-sentence notwith-
standing the time has elapsed,
after trial, within which judgment
may be rendered. 430.
It Is within the discretion of a
trial judge to re-open a case at any
time before it is finally closed and
let in testimony in chief, but where
that is done it is error to refuse
to allow the defendant at least a
reasonable time to recall his wit-
nesses and make answer to the
new evidence. 486.
Before a defendant in a homi-
cide case can be required to estab-
lish self-defense by a preponder-
ance of the evidence, the state
must establish that the killing by
him was an unlawful killing with-
in the degree of the crime charged.
486.
CROSSINGS—
See Railways.
CUSTODIAN—
Control of intangible • property
by injunction against the custo-
dian. 460.
CUSTOM AND USAGE—
While custom may aid in con-
struing a contract, and parties will
be considered to have entered into
it with reference to an established
custom, yet custom can not be sub-
stituted for the plain provisions of
the contract. 243.
DAMAGES—
One causing an arrest to be
made is liable for the natural and
probable consequences of such ar-
rest. 140.
Railway company liable for puni-
tive as well as actual damages on
account of an assault by a con-
ductor upon a passenger, when.
177.
The measure of damages to prop-
erty from causing an increased
flow of surface water upon it is
the cost of restoration to its for-
mer condition; .where restoration
and necessary repairs are both in-
cluded in the verdict, the latter
should be eliminated. 220.
An award of |3,500 is not ex-
cessive where made to a woman
who suffered a miscarriage in con-
sequence of a fall due to the negli-
gence of the defendant 315.
Testimony as to damages for the
wrongful detenstlon of musical
instuments which had been replev-
ined; probable earnings of such
instruments. 309.
A judgment for $3,500 for in-
juries to a team driver is exces-
sive, where it appears that at the
end of six weeks he returned to
his work and was employed stead-
ily thereafter. 651.
A judgment for damages for
wrongful death in a collision of
traction cars is supported by sufll-
cient evidence that it was due to
a defective brake shoe, when no
other reasonable inference as to
the cause of the accident can be
drawn from the testimony. 337.
DANGEROUS MACHINERY—
Where an employe is thrown
upon an unguarded belt by the
toppling over of a stool upon which
he was standing, the fact that the
belt was unguarded was not the
proximate cause of the injury,
and recovery can not be had from
the master therefor. 208.
The doctrine of assumed risk
has no application where there has
been a failure on the part of the
ummL
607
master to afford protection against
machinery and appliances. 246.
ESxposed cog-wheels are not the
proximate cause of an injury to
the operator of a machine from
heing caught in them, where it ap-
pears that he was attempting to
clean the machine while it was
running, which would have re-
quired the removal of the guard
over the wheels had one been pro-
vided. 558.
DEATH BY NEGLIGENCE—
See Negligence.
DEBTOR AND CREDITOR—
Where money is transferred by
an insolvent in contemplation of
making an assignment and subse-
quent to the assignment is restored
to the assignor, an action for an
accounting will lie against both
the assignor and the party to
whom the money was given. 41.
DECISIONS—
Of our own state, as distin-
guished from those of the U. S.
Supreme Court, are controlling
where only state statutes and poli-
cies are involved and no federal
question arises. 145.
DEDICATION—
Property is effectually dedicated
as a street of a village where the
attempted dedication took place
before the village was organized;
and where the owner conveys the
property after the attempted dedi-
cation and before the organization
of the village, the grantee takes
a good title as against the village.
309.
DEEDS —
A deed will not be set aside on
the ground of undue influence or
lack of mental capacity, where the
same result is achieved by the
deed as by a will executed six
years earlier at a time when no
doubt existed as to freedom of ac-
tion or mental capacity. 180.
A deed granting a life estate to
the daughter of the grantor and
her husband, with a covenant that
the premises after the death of the
life tenant "shall vest in and be-
come the legal property of the
heirs" of the grantor's son, in the
absence of words of perpetuity is
a conveyance of a fee simple es-
tate in the remainder to the chil-
dren of the grantor; if the chil-
dren of the son of the grantor have
any estate, it is a life estate only.
517.
The words "forever" or "to one
and his assigns forever" add no
force to a grant of an estate in
lands. 517.
.Reformation of a deed denied,
where it was claimed the word
"heirs" had been used instead of
"children." 517.
DEFENSES—
Application of the rule as to the
defenses which may be set up to
an action for recovery of an as-
sessment levied by a mutual fire
insurance company. 277.
If ah answer contains a good de-
fense, the question whether it was
filed in good faith or for purposes
of delay becomes immaterial 287.
Want of consideration for a
promissory note and payment
thereof are distinct defenses; if
payment is relied upon it must be
pleaded; where the only defense
set up is want of consideration, it
is error to admit evidence with
reference to payment or to charge
the jury with respect thereto.
496.
DELEGATION OF POWER—
To agricultural societies, as at-
tempted by Section 7006, is in
derogation of property rights and
unconstitutional. 81.
DELIVERY—
Of a promissory note; parol tes-
timony admissible to show that it
was understood the note should,
not become effectual until the hap-
pening of a specified event at some
time subsequent to delivery. 37.
Of an accused person by his
surety is not complete until the de-
livery has been accepted by the
eourt, and the only evidence of
4eliTery is the record of the conrt
367.
Where promissory notes are
found among the papers of a dece-
dent, delivery will be presumed.
353.
DEMAND—
Failure to duly make, accord-
ing to law, amounts to a waiver of
the right of forfeiture of a lease
for failure to pay rent 399.
DEMURRER—
See Pleadings.
DESCRIPTION—
A description of demised prem-
ises by metes and bounds controls
over that by occupation. 225.
DEVISE —
To a wife upon the happening of
an event, held to be executory.
129.
Money furnished by a father to
bis son, under the circumstances
of this case is properly chargeable
against the father's devise to the
son. 168. Q i
DIRECTOR OF PUBLIC SAFETY
The appointment of a director of
public safety is valid where made
on August 1, 1909, under the
amended sections of the municipal
code. 305.
DISCRETION—
It is an abuse of discretion for a
court to discharge an entire petit
jury because "so interested In
causes coming on further to be
heard as to disqualify them from
sitting thereon." 97.
In the matter of fixing times
and places for the holding of ex-
aminations of applicants for cer-
tificates to practice medicine and
surgery. 189.
It is not an abuse of Judicial
discretion to admit evidence out of
order, when. 220.
In reletting a contract for pub-
lic work to the next lowest and
best bidder, where the original
contractor has defaulted. 240.
It is an abuse of dtecretion on
the part of a trial judge to refuse
to permit the jury to take to their
room all the standards of writing
which have been introdoeed in evi-
dence as exhibits for the purpose
of proving the genuineness of the
signature which is in dispute. 3S3.
Of a trial judge in the maner of
sentence to be imposed In a crimi-
nal case will not be disturbed
where the sentence as pronounced
is within the limits provided by
law. 404.
Of a trial judge In permitting m
case to be reopened in chief be-
fore it has been finally closed. 486.
The setting of cases and grant-
ing of continuances are largely
matters of judicial discretion, and
error will not lie to the action of
a court with reference to these
matters unless abuse of discretion
is shown. 248.
DISCRIMINATION—
In railway rates on coal, arising
out of a joint guaranty by competi-
tive railway companies of coal
company bonds. 145.
With reference to car service
and demurrage charges; state rail-
road commission without author-
ity to r^;ulate as to cars employed
in interstate commerce. 317.
Application of the state railroad
commission act to matters of trans-
portation and terminal, facilities.
317.
Insufficient averments as to il-
legal rebates on life insurance
premiums. 561.
DISMISSAL—
A motion to dismiss error pro-
ceedings will lie where there has
been a failure to file in the cir-
cuit court a transcript of the dock-
et and journal entries in the case
within four months from the ren-
dition of the judgment, as distin-
guished from the filing of the peti-
tion in error. 352.
The evidence of the dismissal of
an action by the plaintiff during
term time is the entry of court to
that efl!ect. 513.
iWbEX.
609
DISTRIBUTION—
Form of order for, where di-
rected to an executor. 340.
DIVORCE AND ALIMONY—
The property owned by a hus-
band at the time of entering the
decree is the proper basis for fix-
ing the amount of alimony he shall
be required to pay; expectancy as
to accession to his holdings by in-
heritance from his parents then
living can not be considered. 29.
Overdue installments of alimony
are in legal effect a Judgment,
which may be enforced hy an ac>
Uon on the bond given on appeal
from the order fixing the amount
of alimony without first obtaining
consent of the court rendering the
decree. 236.
The adequacy of an allowance
of alimony can not be attacked
collaterally; installments due may
be collected by execution. 236.
In an action by a wife for ali-
mony, the fact that the husband
was served by publication only
does not render invalid an order
awarding to the wife stocks in cor-
porations for profit which have
been brought into the action as
defendants and enjoined against a
transfer of the stock. 460.
DOMICILE—
See Elections (Political).
DOW TAX—
See LiQUOB Laws.
Sale of non-intoxicating liquor
not subject to. 113.
DRUGS AND DRUGGISTS—
The sale of drugs by a physician
who is not a pharmacist or assist-
ant pharmacist from a store which
he owns or in which he has an in
terest, to or for the use of one who
is not his patient, is by the pro-
visions of 99 O. L., 507, rendered
illegal. 142.
A druggist is liable to an action
hy a wife for damages on account
of the loss of the society of her
husband through the wanton or
malicious sale to him, against her
protest, of morphine in such
quantities as to incapacitate him
369.
DUPLICITY- -
As between two counts of an in-
dictment; see Indictments.
EDUCATIONAL INSTITUTIONS-
Property belonging to, which is
exempt from taxation under the
provisions of Section 2732. 1.
A student domiciled outside of
the state must remain In Ohio one
year after attaining his majority,
in addition to the necessary intent
to change his domicile, in order to
acquire a residence for voting pur-
poses. 433.
EDUCATIONAL TEST—
The Legislature is without au-
thority under the Constitution, to
require voters to possess an edu-
cational qualification. 433.
EJECTMENT—
For failure to perform some of
the conditions of a contract of
purchase entered into by one who
IS in possession, the proper remedy
IS a suit in ejectment rather than a
suit in forcible entry and detainer.
431.
ELECTIONS (Political)—
There is no special rule for de-
termining the residence of stu-
dents for purposes of voting, but
the same rules that determine
the domicile of other persons apply
to them; the fact that a student
voted raises a presumption as to
the legality of his ballot and of his
innocence in casting the ballot.
433.
The right of a voter to have a
legal ballot counted can not be de>
'eated after it has been depositeu
in the box by any act or omission
of an election officer; the fact that
the voter affiliates with a particu-
lar political party is not sufficient
evidence that he cast his ballot
for any particular candidate when
the election is contested. 433.
6ia
INDEX.
The Legislature has no right un-
der the Constitution to require
voters to possess an educational
qualification; any act of the Legis-
lature which has such an effect, or
which would prevent the judges
of election from assisting others
•than those afflicted with blindness,
paralysis, the feebleness of extreme
old age, or other physical infirmity,
is a limitation on the constitu-
tional right of the voter. 433.
EMERGENCY—
See Negligence.
EMPLOYER AND EMPLOYE—
See Master and Servant.
EMPLOYMENT—
Breach of contract for; holding
that the contract relied on in this
case was for one year. 459.
EQUITY—
Where a periodical is given by
Its founder In trust to a society,
and In reliance on the trust thus
created large sums are contributed
by the society in extending the cir-
culation and value of the periodi-
cal, equity will not require the
trustees of the society to account
to the estate of the donor for
profits derived therefrom. 241.
An exception to the general
rule that equity will not enjoin
the enforcement of a judgment
where a defense at law is availa-
able is found in the provision of
Section 6601, that a judgment in an
action in forcible entry and detain-
er shall not be a bar to a second
action. 399.
Adjustment of the equities be-
tween a lessee under an expired
oil lease and the lessor as to an
uncompleted well. 586.
ERROR—
In instructions to jury, see, also,
Charge of Court.
Argument to the jury in a will
contest which constitutes miscon-
duct and requires a reversal of the
judgment for prejudicial error. 8.
A trial court is presumed to
know what errors occur at the
trial of a cause, and having certi-
fied to the correctness of the bill
of exceptions, the fact that the at-
tention of the court was not called
on motion for a new trial to er-
rors thus shown to have been ex-
cepted to, does not preclude a re-
viewing court from considering
such errors. 8.
In a charge to the jury In a will
contest; proper definition of testa-
mentary capacity; bearing of ec-
centricities, delusions and pecu-
liarities of the testator. 8.
It is reversible error to permit a
witness to answer a question which
leads the witness to answer in the
same words which a former wit-
ness had denied using. 17.
A special Instruction to a jury
In a negligence case Is rendered
erroneous by not stating the man-
ner In which the negligence of the
defendant caused the accident, or
that includes any negligence not
charged in the petition. 17.
A proceeding in error is essen-
tially a new case; such a proceed-
ing can not be Instituted in the
name of a decedent and his execu-
tor thereafter substituted. 45.
Errors of law. If any occurred
during the trial, are not prejudi-
cial when the verdict Is fully sus-
tained by the evidence. 48.
In impannellng and discharging
jurors; order to clerk should des-
ignate how many names are to be
drawn for the grand and petit jury
panels respectively; abuse of dis-
cretion in discharging entire petit
jury panel; proper method of at-
tacking Irregularity In selection of
grand jury. 97.
Error can not be prosecuted to a
judgment rendered on appeal from
the determination by a justice of
the peace on a motion to discharge
an attachment 128.
In the admission of evidence and
charge of the court are not pre-
judicial, when. 129.
In submitting to the jury ques-
tion as to the rights of a widow.
129.
INDBX.
611
It is not error to give to a jury
a definition of "ordinary care"
which applies to a class rather
than to a particular individual.
204.
It is prejudicial error to admit
a so^alled confession made by
a suspect under circumstances of
the character presented in this
case. 197.
It is prejudicial error to admit
a statement of a conclusion by a
witness, who has stated no facts
from which the conclusion could
be drawn, and the Jury would be
quite as competent as the witness
to draw a conclusion. 197.
Where the assignments of error
aH depend on the facts as found
from a consideration of the evi-
dence, and the agreed statement
of facts is not attached to the bill
of exceptions or otherwise suffi-
ciently identified, the court is with-
out power to review. 223.
It is error to refuse to charge
a Jury that if they find the injury
was due to the negligence of a tort
feasor who is not a party to the
action, and the defendant was not
negligent, the verdict should be
for the defendant. 234.
It can not be said that no sub-
stantial error resulted from the de-
nial of a right. 234.
A Judgment will not be reversed
for refusal to charge as to slippery
condition of the floor or assumed
risk, where the Jury has found that
the accident was due to exposed
machinery. 246.
It is not error to exclude the
opinion of an expert witness as to
whether certain cog-wheels were
"exposed," where the Jury had
viewed the premises and had be-
fore them the evidence with ref-
erence to said gearing. 246.
It would be error to overrule a
motion for a directed verdict in a
railway crossing case, where it ap-
pears that the decedent was
familiar with the crossing and
schedule of the trains, and others
similarly situated saw the ap-
proaching train in ample time to
have avoided the accident. 250.
It is erroneous in an action for
personal, injuries to charge the
Jury that the plaintifF may recover
on a preponderance' of the evi-
dence, regardless of his own pos-
sible negligence and without the
negligence of the defendant being
the direct and proximate cause.
262.
It is error to charge that bur-
den of proof is satisfied by a fair
preponderance of the evidence,
since if the evidence preponderates
at all it is sufficient. 269.
The question whether or not the
overruling of a motion to make
more definite and certain was er-
roneous can not be determined on
a motion for Judgment, but only
on a petition in error. 287.
Where error is prosecuted to a
charge of court, the record should
show that the charge as embodied
therein comprises all that the
court said to the Jury on the sub-
ject complained of. 278.
It is error to put upon a bank
depositor the burden of proving
that he has not withdrawn all the
money he had on deposit. 314.
In an action for damages for
wrongful death it is prejudicial er-
ror to exclude all consideration of
contributory negligence, although
pleaded as a defense and supported
by some evidence. 337.
Proceedings in error will be dis-
missed by the circuit court for
want of jurisdiction, where no tran-
script of the docket and Journal
entries in the case was filed with-
in four months from the rendition
of the judgment and not for more
than four months after the filing
of the petition in error. 352.
Where the issue is as to the
genuineness of a signature, it is
prejudicial error to refuse to per-
mit the Jury to take to their room
upon retiring for deliberation all
of the standards of handwriting
which have been introduced in evi-
dence as exhibits. 353.
Bit
In an action for injuries to the
person, it is error to arrest the case
from the jury because of the intro-
duction of a release signed by the
plaintiff, where it appears' that the
signature was obtained in the be-
lief that the release coTered in-
jury to clothing only. 373.
The right to prosecute error and
the right of appeal are indis-
tinguishable. 378.
Where a trial judge has per-
mitted a case to be re-opened in
chief, it is error not to permit the
defendant at least a reasonable
time to recall his witnesses and
make answer to the new evidence.
486.
Before a defendant in a homicide
case can be required to establish
self-defense by a preponderance of
the evidence, the state must estab-
lish that the killing by him was
an unlawful killing within the de-
gree of the crime charged. 486.
It is not prejudicial error to give
judgment on the pleadings without
testing the answer by demurrer,
when no motion was made by the
defendant for leave to amend his
answer or file some other pleading.
561.
ESTATES—
Where a probate judge has any
interest In an estate, whether
financial or otherwise, he is au-
thorized under Section 535 to cer-
tify it to the common pleas, either
upon motion of a party in inter-
est or acting sua sponte. 340.
An executor has authority to
make needed repairs on a build-
ing specifically devised with di-
rections to turn the property over
to the devisee at any time after
one year from the date of the
death of the testator; but such
repairs should only go to the ex-
tent of keeping the property in as
good condition as the executor
found it. 340.
As to the allowance of counsel
fees to an executor for defense of
the will and for other legal serv-
ices. 340.
An order to an executor with
reference to the distribation of
the fund in his hands should
merely direct him to pay It out in
accordance with law and the pro-
visions of the wilL 340.
EVIDENCE—
A question which leads a wit-
ness to answer by using the same
words which a former witness had
denied using is incompetent, and
permitting such a question to be
answered constitutes reversible er-
ror. 17.
The control and management by
one railway company of a parallel
and competing line may be shown
by circumstances; a unity of
stockholding interests, together
with unity of management, pur-
suant to a plan to that effect, is
sufficient proof. 49.
Parol evidence is admissible to
show that an agreement existed
that the note sued on was not to be-
come effectual until the happening
of a specified event at some date
subsequent to the delivery of the
note. 37.
It is competent for a plaintiff in
an action for false arrest to testify
as to the effect of the arrest on her
mental and nervous condition. 140.
Newly-discovered evidence, if
cumulative only or such as might
have been discovered with reason-
able diligence, is not available as
a ground for a new trial. 140.
A breach of contract is not
proved by the filing of an affidavit
charging that the goods sold did
not come up to the contract; nor
does a plea of guilty by the seller
to a charge of adulteration prove
that the goods were adulterated.
160.
Admissions by a suspect are not
voluntary or admissible as evi-
dence against him, when obtained
after taking him to a private of-
fice where he was plied with ques-
tions regarding the crime for two
days and nights, with the repeated
admonition that if he told the truth
he would be allowed to go, his in-
INDBX.
61S
terrogators assuming to be the
final arbiters of what was the
truth. 197.
It Is not error, In an action for
damages against a municipality to
one who was injured by stepping
from a street car into a hole, to
exclude an ordinance which re-
quires cars to stop on the further
side of the street to receive and
discharge passengers. 204.
It is not an abuse of discretion
to admit evidence out of order,
when the court states at the time
to opposing counsel that they may
offer evidence to meet it. 220.
Where the evidence is equally
balanced, affidavits that the plaint-
iff stated on the night of the acci-
dent that it occurred at a different
point from that now claimed are
sufficient to warrant a new trial
or a reversal of the judgment for
error in overruling the motion for
a new trial. 212.
Where the evidence of plaintiff
and defendant is of equal weight,
and the surrounding circumstances
and probabilities favor that of the
plaintiff, the evidence may be re-
garded as preponderating in his
favor. 212.
Circumstantial evidence as to
the means of a husband being used
to purchase property standing in
the name of his wife. 253.
It is not correct practice to post-
pone objection to a question until
it develops what the answer will
be and then move to strike the an-
swer out. 243.
A motion to strike out part of
an answer should be overruled, un-
less it is made to clearly appear
what part of the answer is in-
cluded in the motion. 243.
Evidence which is sufficient to
establish negligence in falling to
look and listen at a railway cross-
ing. 250.
The exclusion of the testimony
of an expert witness as to wheth-
er certain cog-wheels were "ex-
posed" is not error, when. 246.
A mere preponderance of the
evidence is not sufficient to sustain
a verdict for personal injuries,
when. 262.
Evidence showing that a motor-
man left a meeting point on a
mere assumption that the track
was clear is not sufficient to sus-
tain a verdict in- his favor for in-
juries sustained in the resulting
collision. 259.
There are no degrees of pre-
ponderance; if the evidence pre-
ponderates at all it is sufficient.
• 269.
Evidence which is sufficient to
establish a common law marriage;
where the relation was at first
meretricious but later was sur-
rounded by evidence of a common
law marriage, the question as to
the validity of the marriage is one
of fact for the court or jury. 289.
Competency of testimony of the
parties to a common law marriage;
either party may be called to prove
the agreement, but after the status
is fixed by cohabitation the rule of
exclusion operates as provided by
Section 5241. 289.
Notwithstanding the husband is
dead a common law wife is a com-
petent witness in an action to
which she is not a party, but which
has been brought to determine
property rights growing out of
their relation. 289.
As to the amount of damages
sustained by the wrongful replevin
of musical instruments! 309.
A judgment in favor of an in-
tending passenger who was injured
while attempting to board a car
while still in motion held not sup-
ported by the evidence. 327.
The provision of Section 1 of the
Rose county local option law as
to the result of a local option elec-
tion Is not exclusive, but any evi-
dence that the territory has been
voted dry is sufficient. 330.
Hearsay evidence that liquor had
been obtained in dry territory may
be admitted without error, when.
330.
Proof of one unlawful sale of in-
toxicating liquor in dry territory
614
INDBQL
is sufficient to sustain a conviction.
330.
Evidence that a collision of trac-
tion cars was due to a defective
bralte shoe is sufficient, when. 337.
The only evidence of the delivery
of an accused person by his surety
is the record of the court 367.
Where a number of standards of
handwriting have been submitted
in evidence for the purpose of
proving the genuineness of a sig-
nature, it is prejudicial error to
refuse to permit the jury to take
them all to their room upon retir-
ing for deliberation. 353.
An expert witness on handwrit-
ing should be confined to matters
apparent on the face of the writ-
ing; and he can not be permitted
by argument or inference to draw
conclusions as to matters not ap-
pearing on the face of the writing,
and the value of his opinion will
depend upon the clearness with
which he demonstrates its correct-
ness. 353.
It was error injthis case to sus-
tain an objection ^to the question
put to the plaintiff, '*Did you rely
upon what Mr. McCarthy (the
agent of the defendant) told you?"
373.
Where the sole issue is as to
price, the fact that some witness
was permitted to testify as to
quantity is not prejudicial. 382.
Inasmuch as a written contract
is supposed to contain all the
stipulations, complaint can not be
made of a refusal to admit in evi-
dence a proposal made by one of
the parties. 382.
The same rule applies in de-
termining whether a Judgment is
against the weight of the evidence
that would apply were a verdict
being considered. 382.
A verdict can be reversed on the
weight of the evidence only when
it is BO manifestly against the
weight of the evidence as to indi-
cate mistake, bias or prejudice.
382.
Evidence of negligence is suffi-
cient where it appears that a mo-
torman saw in time to have pre-
vented a collision that the space
between the track and the curb of
the street was not sufficient to
permit the wagon in front of him
to get out of the way, and yet he
permitted the car to strike the
wagon. 390.
As to the reason an insured
failed to demand an appraisal of
a fire loss is not competent, when.
241.
Evidence not admissible as to
waiver of a condition, where the
petition has alleged that the con-
dition was performed. 411.
In an action in forcible entry
and detainer before a justice of
the peace, it is competent for the
defendant to offer in evidence a
contract of purchase for the pur-
pose of showing the nature of his
possession. 431.
The fact that a voter affiliates
with a particular political party
is not sufficient evidence, in a
contested election, that he cast his
ballot for a particular candidate.
433.
Evidence showing the practical
construction either party has
placed on a coal mining contract
and acquiescence of the other
party therein, may be considered
for the purpose of aiding in a
proper construction of the con-
tract. 465.
Where neither party to an ac-
tion on an account has kept his
books in such a way as to
strengthen his oral testimony,
but the plaintiff seems to have
been a fair and candid witness,
a finding by a Jury in his favor
will not be disturbed. 483.
In order to Justify the granting
of a new trial on the ground of
newly-discovered evidence, it must
appear that the newly-discovered
evidence if submitted to a jury
would require that a different ver-
dict be returned. 565.
EXAMINATIONS—
By the state board of medical
INDB3L
«U
registration; discretion of board
In fixing times and places for.
189.
EXCEPTIONS—
To a criminal statute need not
be covered by a negative aver-
ment, when. 142.
EXECUTION—
Overdue Installments of alimony
may be collected by execution.
236.
Where a judgment creditor de-
lays levying execution for more
than a year, he loses his priority
to a subsequent Judgment under
which execution was levied with-
in one year. 286.
EXECUTORS—
See Admin isTBATOBS.
EXECUTORY DEVISE—
Where a will devises the entire
estate to wife and child in the
proportions provided by law, with
the provisions that in the event of
the death of the child without Is-
sue the wife shall take the entire
estate, the happening of that event
in the lifetime of the widow vests
her with all the property in fee
bimple as by executory devise.
129.
EXEMPTIONS—
From taxation; see Taxation.
EXHIBITS—
Where In the form of samples
of handwriting Introduced for the
purpose of proving the genuine-
ness of a signature, they should
all be sent to the jury upon their
retirement for deliberation. 353.
Where the charge of court is at-
tached to the bill of exceptions
as an exhibit, and is referred to
In the bin of exceptions as the
charge of the court. It may be ex-
amined by the reviewing court
for the purpose of determining
whether or not the law was cor-
rectly given. 129.
EXPECTANCY—
Of a husband by way of Inheri-
tance from persons then in life
can not be considered in fixing
the amount of alimony he must
pay. 29.
EXPLOSIVES—
A charge of court in an action
for damages to property in the
neighborhood from the use of ex-
plosives in blasting is not erro-
neous, where the jury are told that
the users of such materials "know-
ing their destructive tendency are
bound to exercise the highest de-
gree of care In their use." 76.
FALSE IMPRISONMENT-
One causing an arrest to be
made is liable for the natural and
probable consequences. 140.
It is competent for a plaintiff
in an action for false arrest to
testify as to the efl!ect of the ar-
rest upon her mental and nervous
condition. 140.
Where the facts upon which an
action for false arrest are based
are sufficient, the motive prompt-
ing the bringing of the action is
Immaterial. 140.
FINAL order-
No order in the matter of a
guardian's account Is a final or-
der so long as any item of said
account remains undetermined.
264.
The sustaining of a demurrer
to interrogatories, attached to a
petition for the purpose of secur-
ing a disclosure of the names of
unknown parties, does not con-
stitute a final order. 457.
FORCIBLE ENTRY—
The provision of Section 6601,
that a judgment in an action In
forcible entry and detainer shall
not be a bar to a second action,
constitutes an exception to the
general rule that equity will not
enjoin the enforcement of a judg-
ment where a defense at law was
available; and if the facts alleged
by one praying for an injunction
against the enforcement of such a
judgment entitled him to a decree
quieting his title or fixing the ex-
616
INDEX.
tent of his title, injunction
(which is merely ancillary to the
main issue of title) will lie until
the question of title has heen de-
termined. 399.
Right to declare forfeiture for
failure to pay rent held to have
been waived by failure to make
demand, and title to permanent
leasehold quieted. 399.
In an action in forcible entry
and detainer before a Justice of
the peace, it is competent for the
defendant to offer in evidence a
contract of purchase for the pur-
pose of showing the nature of
his possession. 431.
A showing of possession under
a contract of purchase is a com-
plete defense to an action in forci-
ble detainer; and for failure to
perform some of the conditions
of the contract the plaintiff must
have recourse to a suit in eject-
ment. 431.
FOREMAN—
As to liability of a master for
the negligence of his foreman in
failing to inspect a scaffold which
fell, injuring the plaintiff em-
ploye. 567.
FORFEITURE—
Right to declare forfeiture of
lease for failure to pay rent held
to have been waived by failure
to make demand. 399.
Injunction will lie against for-
feiture of a lease for disregard of
the covenant against under-let-
ting, where there had been a
manifest waiver for a time of
this covenant by the lessor; but
observance thereof in the future
can be required, after due notice
to the lessee. 570.
FRANCHISE—
Where corporate franchise is
construed at the suit of the state
granting it, all doubt will be re-
solved in favor of the state. 145.
FRAUD—
Where money was fraudulently
transferred in contemplation of
an assignment and after the
making of the assignment was re-
stored to the assignor; action held
to lie against the assignor and
the transferee for an accounting.
41.
Where a charge of fraud in ob-
taining a release is made, a ten-
der back of the amount received
as compensation becomes a neces-
sary prerequisite to avoidance of
the release. 126.
GAMBLING—
The statute providing that a
loser at gaming may within six
months sue for the amount so
lost is a statute of limitations;
where the party to whom the
money was lost makes an assign-
ment, the filing by the loser of
his claim with the assignee does
not stop the running of this stat-
ute unless the claim is allowed.
93.
GAS—
See Oil and Gas.
GAS COMPANY—
Void provision in a grant to a
natural gas company permitting
the supplying of gas for heat and
power but not for illuminating
purposes; transfer of rights to ar-
tificial gas company. 392.
GOOD FAITH—
In the filing of an answer and
cross-petition is not material, if
the answer contains a good de-
fense or the cross-petition a good
cause of action. 287.
GRANT—
Of a part of the Ohio canal by
the state to the city of Cleveland;
'limitations upon the uses to
which said land can be devoted.
321.
The words "forever" or "to one
and his assigns forever" add no
force to a grant of an estate in
lands. 517.
GUARANTY—
Of coal company bonds by
competing lines of railway, on
omaoL
«17
condition of an equal division of
the traffic, leads to monopoly and
discrimination and is not permis-
sible. 145.
GUARDIAN AND WARD—
Inasmuch as exclusive jurisdic-
tion is conferred upon the pro-
bate court in the matter of the
settlement of a guardian's ac-
count the court of common pleas
can acquire no Jurisdiction on
appeal so long as any item of
such an account remains undeter-
mined. 264.
HABEAS CORPUS—
Will not lie for release of a
work house prisoner, the running
of whose sentence has been inter-
rupted by his transfer to the peni-
tentiary from which he had escaped
to complete his sentence there,
when. 257.
Will lie for rejease of a parent
confined for a failure to comply
with a modified order to contrib-
ute to the support of his aban-
doned child, when he has not had
opportunity to so comply. 361.
HANDWRITING—
See Evidence.
HEALTH—
As to the fumigation of prem-
ises and the careless use of fumi-
gating apparatus; see Municipal
Corporations.
HOMICIDE—
See Criminal Law.
HUSBAND AND WIFE—
The property owned by a hus-
band at the time of the entering
of the decree is the proper basis
for fixing the amount of alimony
he shall be required to pay; ex-
pectations by way of inheritance
from persons then in life can not
be considered. 29.
Action to subject to a husband's
debts property standing in the
name of his wife; burden of
proof. 253.
On account of the relation of
husband and wife less evidence is
required than in the case of other
persons to raise a presumption
that property standing in the
name of the wife was paid for out
of the husband's means. 253.
A mutual agreement entered
into in good faith between compe-
tent parties to contract the rela-
tion of husband and wife, fol-
lowed by cohabitation as such, con-
stitutes a valid marriage, even if
the agreement was not made in
the presence of witnesses; where
the relation was in its inception
meretricious, but later was sur-
rounded by evidence of a valid
marriage, a question of fact as to
marriage or no marriage is pre-
sented for the determination of
the Jury; in such a case either
party is a competent witness to
prove the agreement, but after
the status is fixed by cohabitation
the parties fall under the rule of
■exclusion provided in Section
5241; where the husband is dead
and the wife is not a party to an
action to determine property
rights, she is a competent witness.
289.
A wife may maintain an action
for the loss of the society of her
husband through the wrongful
acts of a druggist who, against
her protest, wantonly or mali-
ciously furnishes her husband, an
opium habitue, with morphine in
;such quantities as to incapaci-
tate him. 369.
ICE CREAM—
Unfair competition in the sale
of, by creating a wrong impres-
sion as to the identity of the
manufacturer. 134.
INCLUDED OFFENSES—
An indictment charging the of-
fense of pocket picking includes
the offense of petit larceny where
the property stolen is valued at
$20; but an indictment for pocket
picking does not include either
assault and battery or assault.
348.
INDICTMENT—
An indictment is not bad for
INDEX.
duplicity or indeflniteness because
it charges in the first count that
the accused, as principal, burned
a building in 1804, and in a sec-
ond count charges him with abet-
ting another In the same crime
in 1894, where it is manifest that
the earlier date is a mistake, and
the accused has suffered no pre-
judice thereby. 417.
INFANT—
See Minors.
An order requiring the father
of an abandoned minor child to
provide a certain sum periodi-
cally for its support may be modi-
fied as changed conditions of the
child or of the father may re-
quire. 361.
INITIALS—
See Promissory Notes.
INJUNCTION—
Will lie to prevent vexatious
litigation and a multiplicity of
suits, where it appears that as
many as six different suits are
being proecuted by the same ad-
ministrator of as many different
estates against the same defend-
ants, which can only result in
void judgments. 69.
Will not' lie on the petition of
a lessee for a term of years or
of a mortgagee to restrain the
improvement of the street upon
which the property abuts, where
the ground for asking for an in-
junction is either irregularities in
the proceedings or that the estate
of the plaintiff will be damaged
thereby. 123.
If the facts alleged by one pray-
ing for an injunction against the
enforcement of a judgment in for-
cible entry and detainer entitle
him to a decree quieting his title
or fixing the extent of his title,
injunction which is merely an-
cillary to the main issue of title
will lie until the question of title
has been determined. 399.
Will lie to restrain a public
utility company from violating its
obligations to a municipality and
its inhabitants. 392.
An injunction against the cus-
todian of intangible property
gives to the court such control
of the property as authorizes a
decree transferring the title from
the owner of the property before
the injunction issued to another
party to the suit who has been
duly served with summons. 460.
Does not lie on the petition of
life tenants to restrain operations
under an existing lease for oil and
gas. 517.
Granted against further opera-
tions under an oil lease which
expired before the test well had
been completed. 586.
Enforcement of a lease by in-
junction. 577.
Will lie against forfeiture of a
lease for disregard of a covenant
against under-letting, where ob-
servance of the covenant had been
waived for a time by the lessor;
but observance of the covenant
may be insisted on in the future,
after due notice to the lessee of
intention so to do. 570.
INNS AND INNKEEPERS—
Negligence on the part of an
innkeeper can not be presumed
or inferred from the mere fact
that water flowed from a tank or
pipe upon the apparel of a guest
and damaged it. 209.
INSURANCE (Fire)—
Where an insurance company,
which has not complied with the
Ohio law requiring that a license
be issued to do business within
the state, evades that requirement
by issuing policies outside of the
state on property located within
the state, an action can not be
prosecuted in the courts of the
state for recovery of premiums on
such policies; but payment on a
policy so issued may be enforced
within the jurisdiction of the state
in which it was issued, and an ac-
tion for recovery of premiums may
be maintained within such state
INDEX.
619
provided Jurisdiction can be ob-
tained over the person of the
policy holder. 200.
Notwithstanding the insurable
interest which the owner of a
building has in the foundation
upon which it rests, he can not re-
cover for the foundation where the
policy includes it as a part of the
building. 225.
Where it is not disputed that
the loss was total, a failure on the
part of the court to qualify the
definition of "total loss" in the
charge to the jury does not con-
stitute error; if the building ex-
clusive of the foundation is a total
loss, a disagreement as to the
amount of the loss is immaterial
and the necessity for an appraise-
ment does not exist. 228.
To charge a jury that they need
not consider whether or not the
property was vacant at the time
the policy was applied for and is-
sued is not error under the pro-
visions of Section 3643. 228.
Action to enforce payment of as-
sessment; defenses which may be
set up. 277.
A mortgagee may recover on a
fire insurance policy, containing
what is known as the union mort-
gage clause of the standard policy
of New York, for a loss of the
property by fire, although neither
he nor the mortgagor presented
proof of loss within sixty days af-
ter the loss as required of "the
insured" by a condition of the
policy. 364. ^
INSURANCE (Life) —
Averments in a petition in a
suit on a life insurance policy,
that the condition as to proof of
death was definitely performed on
a certain date and that every con-
dition required by the policy was
performed, are wholly inconsistent
with a subsequent averment that
the condition of the policy with
reference to proof of death had
been waived; and in the absence
of any averment of any excuse for
non-performance, or any inference
to be drawn from the petition that
there was such an excuse, evi-
dence could not be offered on the
question of waiver. 411.
The requirement, that proof of
death be made in writing is a rea-
sonable requirement, as is also a
requirement as to the identifica-
tion of the deceased. 411.
Notice of a defect in a proof of
death is not necessary, where re-
peated notices have been given by
the company that no proof of
death has been filed. 411.
Averments as to illegal rebates
on insurance premiums are insuffi-
cient under Section 36314, when.
561.
INTENT AND SCIENTER—
A deed executed by a father
enfeebled by age is shown to have
been in accordance with an inten-
tion long entertained by the fact
that the same property had been
devised to the son by a will ex-
ecuted years before the making of
the deed. 180.
A mistake in the description of
demised premises may be material
and entitle the lessee to relief not-
withstanding he has not used the
property for the purpose intended
at the time the lease was executed.
225.
Intention toward a mortgagee
as shown by the union mortgage
clause of the standard fire insur-
ance policy of New York. 364.
Of a druggist in selling mor-
phine to a morphine fiend against
the protest of the man's wife. 369.
INTEREST-
Where a jury in returning a ver-
dict falls to include interest as
prayed for in the petition, it is
error for the court in entering
judgment to include interest upon
the verdict; where this has been
done a reviewing court will modi-
fy the judgment entered below by
deducting the interest added by
the trial judge. 463.
I NTERROG ATORIES—
As to whether relevant or an-
swers thereto material; answers
620
INDE2Z.
to interrogatories which are con-
sistent with general verdict. 285.
The sustaining of a demurrer to
interrogatories does not consti-
tute a final order, when. 457.
INTERSTATE COMMERCE—
The state railroad commission is
without authority to fix car serv-
ice and demurrage charges for
cars used in interstate commerce.
317.
INTERURBAN RAILWAYS—
See Negligence.
The degree of care required in
going upon the track of, in the
open country is the same as in
the case of a steam road. 170.
INTOXICATING LIQUORS—
See Liquor Laws.
JUDGES—
Where a probate Judge has any
Interest whatever in a controversy
whether financial or otherwise,
he is authorized under Section
535 to certify the case to the com-
mon pleas, either on motion of
the party interested or acting sua
aponte. 340.
JUDGMENTS—
Where the levying of execution
on a Judgment is delayed for more
than one year, the Judgment credi-
tor while retaining his lien loses
his priority to a subsequent Judg-
ment under which execution was
levied upon the land of the debtor
within one year. 286.
The same rule applies in de-
termining whether a Judgment is
against the weight of the evidence
that would apply were a verdict
being considered. 382.
A Judgment can be reversed on
the weight of the evidence only
when it is so manifestly against
the weight of the evidence as to
indicate mistake, bias or prejudice.
382.
An exception to the general rule
that equity will not enjoin the
enforcement of a Judgment where
a defense at law is available is
found in the provision of Section
6601, that a Judgment in an action
in forcible entry and detainer shall
not be a bar to a second action.
399.
A Judgment taken on a promis-
sory note signed by the maker
w*ith his initials and surname
only is an evidence of debt owing
by him under that name, and is
not void in the sense that the
Judgment debtor is not required in
a petition to vacate the Judgment
to set forth a meritorious defense.
401.
May be given on the pleadings
without testing the answer by de-
murrer, when. 561.
In favor of an intending passen-
ger who was injured while at-
tempting to board a car which was
still in motion not sustained by
the evidence, when. 327.
JURISDICTION-
IS not acquired by the circuit
court in a proceeding in error
against a deceased defendant by
the substitution of his executor
and waiver of service of summons
by the attorney for such executor.
45.
A provision for arbitration is il-
legal if it deprives the courts of
Jurisdiction. 193.
Where an equitable issue is
tendered under Section 587 rela-
ting to actions on undertakings
before Justices of the peace. 236.
Of the circuit court to reverse
a Judgment in a Jones law local
option case. 248.
Sections of the code of civil pro-
cedure relating only to Jurisdic-
tion over the person are not ap-
plicable under the section relating
to attachments where Jurisdiction
is sought over the property at-,
tached. 271.
The court of common pleas can
acquire no Jurisdiction on appeal
in the matter of a guardian's ac-
count so long as any item of such
account remains undetermined.
264.
INDBX.
621
Where no transcript of the final
record or transcript of the docket
and journal entries is filed in the
circuit court until after expiration
of four months from the rendition
of the judgment complained of and
not for more than four months
after the petition in error had
been filed, the court acquired no
jurisdiction. 352.
It is not a conferring of juris-
diction to designate one of several
judges, competent under the stat-
ute, to perform the duties pertain-
ing to the juvenile court; author-
ity to distribute business among
judges having like original juris-
diction. 374.
The common pleas court is with-
out jurisdiction to retry appropria-
tion cases brought in the court of
insolvency before the enactment of
the amendment of March 22, 1909,
but not carried to judgment until
after the amendment was adopted.
378.
JURY—
Names for grand and petit jurors
should be drawn from the wheel
as distinct panels; a judge is
without authority to personally
select an entire grand jury; or
to discharge an entire petit jury
"because so interested in cases
coming on further to be heard as
to disqualify them from sitting
thereon"; irregularity in selection
of grand jury can not be at-
tacked by plea in abatement. 97.
The fact that one of the jurors
in a similar action for damages
against the municipality recovered
a verdict, does not constitute
ground for a reversal of the pres-
ent judgment, where it appears
that counsel for the municipality
made no examination of the jury
before going into trial. 212.
Error can not be prosecuted to
a judgment rendered on appeal
from the determination by a jus-
tice of the peace on a motion to
discharge an attachment. 128.
JUSTICE OP THE PEACE—
Where a criminal case has been
reversed by the common pleas
court for error in the sentence
alone, and the case is remanded
for re-sentence, the justice has au-
thority to re-sentence notwith-
standing the time has elapsed, af-
ter trial, within which judgment
may be rendered. 430.
JUVENILE COURT—
The act of April 16, 1906, es-
tablishing juvenile courts and pro-
cedure therein, does not contravene
any of the provisions of the state
Constitution. 374.
In counties where three or more
common pleas judges regularly
hold court concurrently, it is com-
petent under Section 548-36/ that
the probate judge be designated
to perform all the duties pertain-
ing to the office of the juvenile
court. 374.
KENYON COLLEGE—
Property belonging to, which is
subject to and is exempt from tax-
ation. 1.
LANDLORD AND TENANT—
Where a municipality is the
owner of ground and an attempt
has been made to collect taxes
upon it or to avoid the lease; see
Lease and Taxation.
Tenant for a term of years not
entitled to notice of a resolution
declaring it necessary to improve
the street upon which the demised
property abuts; nor can the ten-
ant enjoin the levying of the as-
sessment to pay therefor, either on
the ground of irregularities or that
his estate will be damaged by the
improvement. 123.
A lease is not in restraint of
trade because of a covenant that
the lessee shall sell only products
manufactured by the lessor; in-
junction will lie against violation
of the covenant. 577.
Injunction will lie to restrain
lessors from declaring the for-
feiture of a lease containing a
covenant against under-letting,
where past violations of this cove-
022
INDflZ.
nant had occurred with the knowl-
edge of the lessors and without
objection from them; but such an
injunction will not lie to prevent
lessors from insisting upon an ob-
servance of the covenant against
under-letting in the future, after
notice of their intention to there-
after stand on the covenant. 570.
LAST CHANCE—
Doctrine of. not applicable where
it appears that the plaintiff was
guilty of contributory negligence
and there is no allegation of subse-
quent or willful negligence on the
part of the defendant. 170.
LEASE—
A lessee of land for a term of
years is not entitled to notice of a
proposed improvement of the
street upon which the property
abuts; nor can he enjoin the mak-
ing of the improvement, or the
levying of an assessment to pay
therefor, on the ground of ir-
regularities in the proceedings or
because his estate will be damaged
by the improvement. 123.
Mistake in the description of
land held under lease; a descrip-
tion by metes and bounds controls
over that by occupation; a mis-
take in description may be ma-
terial, notwithstanding the lessee
has not used the land for the pur-
pose intended at the time the lease
was executed; where the mistake
was mutual and the lessee acted
immediately upon discovery, he is
entitled to a rescission; no re-
covery can be had of rents paid
while the lessee was in possession
and enjoyment of the premises
previous to discovery of the mis-
take. 225.
Lease of a part of the Ohio canal
by the city of Cleveland to a rail-
way company not valid under the
grant of this land by the state to
said city. 321.
If the facts alleged by one pray-
ing for an injunction against the
enforcement of a Judgment in
forcible entry and detainer en-
title him to a decree quieting his
title, injunction which is merely
ancillary to the main issue of
title will lie until the question of
title has been determined. 399.
Where a lessee under a lease for
three and one-half years renew-
able forever holds over for twenty
days before notice is served upon
him tp quit the premises, he there-
by elects to renew the lease, and
the provision not having been com-
plied with, that a forfeiture could
only be declared after demand for
unpaid rent duly made according
to law, the lessee upon offering to
pay his arrearages is entitled to a
decree quieting his title to a per-
manent leasehold. 399.
For gas and oil; held to have
been in effect a sale of petroleum
products; effect of extension of
time for opening well and of a
temporary arrangement whereby
the lessor was furnished with gas
from an outside source. 475.
Construction of the provision of
a lease as to when work shall be-
gin; effect of payment of rental
without beginning drilling opera-
tions; extension of lease thereby.
489.
Of coal mining rights; action
thereunder for recovery of mini-
mum royalties; causes Interfer-
ing with mining operations, and
construction of the words "im-
possible" and "causes beyond con-
trol" as used in the contract; bur-
den of proof on the party claiming
it was prevented from mining and
removing the minimum tonnage
by causes beyond its control; ef-
fect of retention of possession
without mining and removing the
minimum tonnage. 465.
For oil and gas; where a well
has been drilled within the time
specified for the making of a test,
and oil is discovered and all pay-
ments required under the lease
have been made, the lessee is en-
titled to time for further opera-
tions notwithstanding the test well
has been plugged and the casing
withdrawn. 553.
Lessees of gas and oil rights
INDBX.
628
are entitled to an extension of
time under their lease, where they
have made all required payments,
and have drilled one well, and
found oil but not in paying quanti-
ties, and there is no limitation as
to time in the lease except that a
well shall be completed within one
year. 539.
Right of the lessor of gas and
oil lands to terminate the agree-
ment wjith the lessee, notwith-
standing rental has been tendered
for a longer period, where no
producing well has been drilled
within the time prescribed. 505.
A lease for premises to be oc-
cupied by a saloon is not ren-
dered invalid by a covenant that
the lessee will sell no beer other
than that manufactured by the
lessor brewing company; injunc-
tion will lie against the sale of
other beer. 577.
Extension of a saloon business
to adjoining premises, which are
fitted up by the lessor of the origi-
nal premises; covenant of origi-
nal lease as to sale of beer manu-
factured by the lessor only held
to apply to the new room opened.
577.
Delay in completing a test well
before the expiration of an ex-
tended term of an oil and gas
lease is not excused by an acci-
dent to the drilling appratus, and
the lessor may treat the lease as
terminated; but equity will per-
mit the completion of the well
for the purpose of ascertaining the
results of the work, and will ap-
portion the cost between the par-
ties; title of the lessor in the
premises may be quieted. 586.
To what extent an injunction
will lie against the enforcement of
a covenant against under-letting,
which has been disregarded in
the past with the knowledge of
the lessor. 570.
LEGAL COUNSEL—
In so far as Section 845 at-
tempts to authorize the appoint-
ment of legal counsel by the coun-
ty commissioners, it contravenes
Section 2 of Article X of the Con-
stitution of Ohio, that all county
officers shall be elected by the
electors of their respective coun-
ties. 103.
Proceedings in quo warranto to
oust legal counsel illegally ap-
pointed. 103.
Actions against county officers
must be prosecuted or defended by
legal counsel appointed by the
county commissioners, or by the
prosecuting attorney where no le-
gal counsel have been appointed. .
202.
LICENSE—
The provisions of 99 O. L., 538,
do not inhibit the requiring of
municipal licenses for motor
vehicles; Justification for the im-
posing of such licenses; effect of
(repeal of unconstitutional stat-
ute on ordinance relating to ordi-
nances previously enacted. 23.
Rights of policy holders and
status of policies issued by an
unlicensed insurance company.
200.
An ordinance which provides
that a license fee of $25 shall be
paid by each wagon hauling sand,
fire-clay, safes, engines, boilers or
logs, and other wagons of the same
class shall pay only $10, is un-
reasonable and can not be en-
forced and the excess collected
may be recovered. 273.
LIEN—
Where the levying of execution
on a Judgment is delayed for more
than a year, priority is lost to a
subsequent Judgment under which
execution was levied within one
year, but the first Judgment credi-
tor retains his lien. 286.
An attorney has no lien against
a tort feasor for his fees, where
the tort feasor has settled the
claim for injuries with the client
directly and has paid the amount
agreed upon in full. 495.
Of a mortgage preserved, though
the right of action on the debt is
barred. 545.
624
INDEX.
LIFE ESTATE—
Construction of a grant of a life
estate to the daughter pf the
grantor and her husband, with a
covenant that the premises after
the death of the life tenants
"shall vest in and become the
legal property of the heirs" of
the grantor's son, where no words
of perpetuity were used. 517.
Life tenants may not enjoin
operations under an existing oil
and gas lease. 517.
LIMITATIONS—
Upon municipalities as to the
issue of bonds — see Municipal
Corporations.
LIMITATIONS OF ACTIONS—
The statute (Section 4270) pro-
viding when and by whom money
lost at gaming may be recovered
back is a statute of limitations.
93.
An action to sell lands of a de-
cedent to pay debts must be
brought within six years from the
discovery by the administrator of
the fact that the personalty is
insufficient to pay the debts. 161.
A claim is not preserved from
(the running of the statute of
limitations by a mere understand-
ing between the parties that if
they could not settle their differ-
ences they would arbitrate. 261.
Payment on a mortgage debt to
prevent the operation of the bar
of the statute; lien of the mort-
gage preserved, though the right
of action on the debt is barred.
545.
Where a note is not paid at ma-
turity and the collateral is sold
by a bank holding the note for
collection and is bought in the
bank, the statute does not begin
to run against an action by the
maker against the bank for an
accounting for the difference be-
tween the value of the stock and
the face of the note until notice
is received by the owner from the
bank of its claim of ownership
under the purchase. 529.
LIQUOR LAWS—
Illumination of drinking places;
screens and blinds; municipal-
ities without power to regulate
places where soft or non-intoxi-
cating drinks are sold. 108.
The sale of non-intoxicating
liquors is not subject to the Dow
tax. 113.
Sale of intoxicating liquors from
a manufactory in quantities of
one gallon or more constitutes an
offense under the Rose law; where
such a sale is made from a
brewery located in a county
where the Rose law has become
operative, the manager of the
brewery is liable to prosecution
therefor notwithstanding the sale
was made while he was absent, if
it was made under his general di-
rection. 118.
A petition may be filed under
Section 2 of the Jones local option
law at any time after two years
from the filing of a petition under
Section 1, but the decision of the
mayor under Section 2 can not
take effect until two years after
his decision under Section 1. 166.
The purchase of a few pints of
beer at a time and the sale of it
at a profit constitutes trafficking
in intoxicating liquors and ren-
ders the seller liable to payment
of the tax on such traffic. 238.
The fact that sales of intoxica-
ting liquors are made in connec-
tion with an illegal business does
not bar the state from enforcing
the collection of the tax imposed
on such traffic. 238.
The circuit court has jurisdic-
tion to reverse the judgment in a
Jones law local option case and
remand the case for new trial, not-
. withstanding no express provision
therefor is contained in the act.
248.
The setting of liquor selling
cases is a matter of discretion;
reasonable time should be al-
lowed for a new trial after the
filing with the clerk of the mu-
nicipality of the findings of the
INDEX.
625
Judge on the original hearing.
248.
An affidavit charging the keep-
ing of a place where intoxicating
liquors were sold, furnished or
given away on a given day is suffi-
cient to sustain a prosecution un-
der the Rose county local option
law. 330.
Proof of one unlawful sale suffi-
cient; affidavit need go no fur-
ther than to aver an unlawful sale,
leaving it to be developed by the
evidence in what respect the sale
was unlawful. 330.
The provision of Section 1 of
the Rose county local option law,
making a certified copy of the re-
sult of a county lo(^al option elec-
tion sufficient proof of the hold-
ing of such an election, is not ex-
clusive; but any evidence from
which the fact may be deduced
that such an election has been
held is sufficient to sustain a
prosecution of violation of the act.
330.
It is not error to admit the
statement of a witness that a
police officer told him where he
obtained liquor in dry territory, if
no disclosure is made by the wit-
ness as to the place where the
liquor was obtained or the per-
son who sold it or furnished it.
330.
A prosecution will lie under the
Rose law for sending intoxicating
liquor out of a dry county and
selling it in a wet county to be
returned to the dry county for
consumption. 404.
A sentence will not be held ex-
cessive by a court of review,
where the trial court has con-
fined itself within the limits pro-
vided by law and has exercised
only that discretion which the
law has given it. 404.
Non-intoxicating malt liquors
are not within the proscriptions
of the Rose county local option
law; intoxicating liquors only
come within the inhibition of this
act. 404.
The Rose law is not rendered
unconstitutional by reason of the
fact that it deprives or may de-
prive the accused of a trial by
jury. 404.
MACHINERY—
See Dangerous Machineby.
While the natural laws upon
which the operation of a machine
is based are invariable, the prac-
tical operation of these laws in the
construction of a machine are as
variable and erring as human
judgment itself. 337.
MALICE—
Implied from the action of a
druggist in continuing to sell mor-
phine to a morphine fiend against
the protest of the man's wife. 369.
MARRIAGE—
A marriage per verba praesenti
is valid, when; agreement to con-
tract the relation of marriage not
made in the presence of witnesses;
competency of the testimony of
the parties thereto; death of one
does not preclude receiving the
testimony of the other, when;
question of the validity of a com-
mon law marriage one of fact for
the court or jury, when. 289.
MASTER AND SERVANT—
A different rule applies to as-
sault by a conductor of a railway
train upon a passenger in transit
upon his train, than to ordinary
injuries inflicted by servants act-
ing in other capacities; company
liable for punitive as well as act-
ual damages. 177.
Will not lie to compel the hold-
ing of examinations of applicants
for certificates to practice medi-
cine and surgery, in other cities:
than Columbus, in the absence of
a showing of abuse of official dis-
cretion on the part of the examin-
ing board. 189.
Recovery can not be had from
a master for an injury to a serv-
ant who was thrown upon an un-
guarded belt by the toppling over
of a stool upon which he was
standing. 208.
6M
INDEX.
The doctrine of assumed risk
has no application where the risk
which it is alleged was assumed
arose out of a violation of the
statutory obligation of the master
to protect his employes against
injury by machinery or appli-
ances. 246.
A master is not liable for in-
juries to an employe from exposed
cog-wheels, where it appears that
the employe was at the time of
the accident attempting to clean
the machine while It was run-
ning, and to have done so would
have required the removal of the
guard over the wheels had one
been provided. 558.
A master can not be held liable
for injuries to an employe from
the falling of a scaffold, on the
theory that his foreman was negli-
gent in not inspecting the scaffold,
unless proof is offered that it was
the duty of the foreman to in-
spect the scaffold. 567.
The provisions of Section 4238o,
as to an employer's liability for
personal injuries to an employe
notwithstanding the negligence of
a feUow-servant, do not apply to
a temporary scaffold erected by
an employer on the land of a third
person. 567.
A scaffold which is a temporary
structure built in sections as the
work on a building progresses is
not an "appliance" within the
meaning of Section 4238o. 567.
A master will be held to have
known that a loose key would be
liable to cause a belt to shift from
the loose to the fixed pulley and
thus start the machine unexpect-
edly, while a boy sixteen years of
age employed in operating the
machine would not be likely to
appreciate the danger, and the
crushing of his hand by the sud-
den starting of the machine is a
matter for which the master will
be held liable. 574.
Duty of master to instruct boy
as to the safe method of opera-
ting machine. 574.
MAYOR—
The offices of mayor and mem-
ber of Congress are not incom-
patible and may be held by one
and the same person. 274.
MEASURE OF DAMAGES—
See Damages.
MINES AND MINING—
A railway company incorpor-
ated under the laws of Ohio Is
without authority to hold the stock
and particularly a majority of the
stock of a coaJ mining company
upon whose road the coal company
is a shipper. 49.
The fact that a coal company
has built a spur track to its mines
which serves as an outlet thereto,
does not constitute such coal com-
pany a railway or kindred com-
pany, authorizing another rail-
way company to subscribe for its
stock; nor can the bonds of a
coal mining company be endorsed
and guaranteed by a railway com-
pany. 49.
Construction of a coal mining
contract In an action for recovery
of minimum royalties; evidence
as to the practical construction
placed on the contract by either
party and acquiescence therein by
the other party may be considered
for the purpose of arriving at a
proper construction; covenants to
mine and remove a minimum ton-
nage and to pay a minimum royal-
ty, held to have been not absolute;
meaning of the words "impossible"
and "causes beyond control" aa
used in the contract; effeot of
retention of possession; burden
of proof. 465.
MINORS—
See Children and Infants.
A minor is without capacity to
change his domicile; if he re-
moves into Ohio from another
state he must remain here one
year after attaining his majority,
and with the necessary intent, in
order to acquire a residence here
for voting purposes. 433.
INDEX.
es7
MISCONDUCT—
Argument to the Jury In a will
contest to the effect that the pro-
bate Judge who admitted the will
to probate was a man of experi-
ence in such matters and for the
Jury to afterward set the will
aside would be presumptuous, con-
stitutes misconduct of counsel
prejudicial to the rights of contes-
tants, and requires that a Judg-
ment based on a verdict sustain-
ing the will be reversed. 8.
Of counsel during trial; re-
marks within hearing of the Jury
regarding an alleged offer to com-
promise does not warrant a re-
versal of the Judgment which fol-
lowed in favor of the plaintiff,
when it appears that the state-
ment was withdrawn and no rul-
ing of the court or admonition of
the Jury was asked by the defend-
ant then or thereafter. 209.
Of counsel in argument to the
Jury is ground for setting aside an
excessive verdict. 651.
MISTAKE--
In the description of land held
under lease; lessee entitled to re-
lief, when. 225.
Taxes paid under a mistake of
law but with full knowledge of
the facts can not be recovered.
270.
MONOPOLY—
The control and management
of a coal mining company by a
railway company through stock
ownership, upon whose line the
coal company is a shipper, tends
to monoply and restriction of com-
petition and trade, and is unwar-
ranted and illegal. 49.
Creation of, by forbidding all
maner of temporary business with-
in one-fourth of a mile of the fair
ground of any agricultural so-
ciety, .is in derogation of constitu-
tional rights; and Section 7006 is
unconstitutional for that reason.
81.
In the carrying of coal, brought
about by a Joint guaranty by com-
peting railway companies of coal
company bonds; such a transac-
tion is not in the nature of a ton-
nage agreement, when. 145.
A provision in a lease whereby
the lessee engages to sell no beer
on the premises other than that
manufactured by the lessors, in
nowise affects the public and is
not invalid as in restraint of trade
or in violation of the Valentine
anti-trust law. 577.
MORPHINE^-
See Dbuos and Dbugoists.
MORTGAGE—
A chattel mortgage is only an
incident of the debt and can not
be made any more than that by
its terms. 37.
A mortgagee can not enjoin the
improvement of the street upon
which the mortgaged property
abuts, on the ground either that
the proceedings are irregular, or
that his estate will be injured
thereby. 123.
A mortgagee may recover upon
a fire insurance policy, contain-
ing what is known as the union
mortgage clause of the standard
policy of New York, for loss by
fire, although neither he nor the
mortgagor presented proof of loss
within sixty days after the loss
as required of "the insured" by
a condition of the policy. 364.
Methods by which the running
of the statute of limitations may
be barred;" payments to prevent
operation of the bar; lien of mort-
gage preserved by acknowledg-
ment, although the right of ac-
tion on the debt is barred. 545.
MOTIVE—
Where the facts upon which an
action for false arrest are based
are sufficient, the motive prompt-
ing the bringing of the action is
immaterial. 140.
MOTOR VEHICLES—
License fees may be prescribed
by a municipality for the use of
motor vehicles on its streets, ir-
e28
INDEX.
respective of the provisions of 99
O. L.. 538; "use" of the streets
means continued and repeated use;
justification for the imposing of
special motor vehicles licenses. 23.
MULTIPLICITY OF SUITS—
Injunction will lie to prevent,
where it appears that only void
judgments can result from their
prosecution. 69.
MUNICIPAL CORPORATIONS—
A municipality is not prevented
from placing a license fee on the
use of auto vehicles on its streets,
notwithstanding the provisions of
99 O. L., 538, and the repealing
clause of 98 O. L., 320; justifica-
tion for such a license irrespec-
tive of the license required by
the state. 23.
Municipal corporation are with-
out power to regulate places where
soft or non-intoxicating drinks are
sold; illumination of drinking
places; screens and blinds. 108.
An ordinance requiring street
cars to stop at the further cross-
walk is a provision which applies
to the street car company and in
no way controls passengers in
boarding or alighting from cars;
not error to exclude such an ordi-
nance in an action for damages
against the municipality brought
by a passenger who was injured
by stepping into a hole in the
street when alighting from a car.
204.
Where damages are claimed on
account of an increased flow of
surffice wEurer upon plaintiff's
premises, it is Immaterial whether
or not the wrong was due to
negligence or otherwise. 220.
^The measurte of 4&mages to
property due to an increased flow
of surface water upon it is the
cost of restoration to its former
condition, and where cost of res-
toration and necessary repairs are
both allowed by the Jury, the lat-
ter should be eliminated from the
verdict. 220.
An ordinance providing for a
license fee of |25 for each wagon
using the streets in hauling
articles enumerated thefein, but
other wagons of the same class
hauling loads of other articles a
fee of only $10, is unreasonable
and can not be enforced; excess
collected may be recovered. 273.
An ordinance authorizing an is-
sue of bonds for the building of a
bridge is not rendered invalid by
reason of the fact that the con-
struction of the "draw," and there-
fore of the completed structure, is
not provided for. 279.
In determining the amount of
bonds which may be issued by a
municipality under the limitation
imposed by Section 2835, all
bonds issued prior to the amend-
ment of April 29, 1902, should be
isxcluded, whether belonging to
original issues or put forth to re-
fund the indebtedness incurred un-
der the original issues. 279.
Where a street and sidewalk
run so near an unguarded retain-
ing wall as to create the impres-
sion that the wall is within the
line of the sidewalk, the munici-
pality is liable for Injuries sus-
tained by a pedestrian who fell
over the wall, and a variance be-
tween the allegations of the peti-
tion and the proof as to the loca-
tion of the wall is not material.
285.
Under the municipal code as
amended, departments of public
safety went out of existence on
August 1, 1909, and the appoint-
ment of directors of public safety
on and after that date was au-
thorized. 309.
A city solicitor is authorized
under Section 1777 to bring suit
in the name of the municipality
to enjoin a public utility company
from violating its obligations to
the city and its inhabitants. 392.
An action to enjoin a public
utility company from violating its
obligations to the municipality
will lie notwithstanding the com-
pany is acting under color of an
ordinance, if the provisions of the
ordinance are in excess of the
power of council to grant. 392.
INDIDL
629
A municipality is without au-
thority to prescribe by ordinance
that a commodity acquired by its
inhabitants shall not be used for
any purpose that is not dangerous
or injurious; and a provision in
an ordinance embodying a grant
to a natural gas company that gas
shall not be furnished for illumi-
nating purposes, but only for heat
and power, is void, and the com-
pany may be compelled to either
furnish gas for illuminating pur-
poses or abandon its rights in the
streets. 392.
A court may vacate a street
only when satisfied that the gen-
eral interests of the municipality
require that an order of vacation
be granted; a mere showing that
the street is not demanded by the
present needs of travel is not suffi-
cient. 414.
MUTUAL BENEFIT SOCIETIES-
Where a fraternal beneficiary
association reserves the right to
amend its by-laws, a by-law pro-
viding that no death loss shall be
paid where the only evidence of
death is the presumption aris-
ing from disappearance for seven
years, is for the mutual bene-
fit of the members, not against
public policy, and is binding
apon the beneficiary of a mem-
ber, notwithstanding its adoption
only fifteen days before legal pre-
sumption of the member's death
would be established and notwith-
standing the receipt of dues and
assessments from the beneficiary
up to the date of the amendment.
137.
NATURALIZATION—
A contestant at an election is
not bound to negative the excep-
tional circumstances under which
the naturalization of a minor
might have been effected at an
earlier date than one who had at-
tained his majority. 433.
NEGLIGENCE—
Where a husband and wife,
riding in a buggy, were run down
by an electric car. 17.
A special instruction in a negli-
gence case hs erroneous which does
not state the manner in which the
negligence of the defendant caused
the accident, or which includes
any negligence not charged in the
petition. 17.
Negligence can not be predi-
cated against a traction company
because the motorman of the car
which was in collision with a
buggy did not stop his car irre-
spective of the intervening dis-
tance or the opportunity of the
driver of the buggy to get his
vehicle ofT the track before the
car reached him. 17.
It is not negligence per se to
use explosives for blasting. 76.
Where a car on an electric road
on the public highway is run at
such speed in the night time that
a cow standing on the track where
it was straight and level could
not be discovered until too late
to stop the car, and a passenger is
injured by reason of the car strik-
ing the animal, the facts Justify a
jury in rendering a verdict in
favor of a passenger who was In-
jured. 73.
On the part of a carrier of par-
cels for hire in failing to deliver
a traveling bag at a designated
depot in time for a particular
train. 122.
Rule as to going upon track of
an electric road in the open
country; application of the doc-
trine of last chance; pleading as
(to subsequent or willful negli-
gence. 170.
Where an Intending passenger
leans over the track of an electric
road in the open country for the
purpose of signalling a car to stop,
and is blinded by the headlight
and struck by the car, he is guilty
of contributory negligence; in
such a case, in the absence of an
allegation of subsequent or will-
ful negligence as a ground of re-
covery, the doctrine of last chance
does not apply. 170.
In the construction of a rail-
way bridge whereby water was
thrown upon the lands of the
dSO
INDIBX.
plaintUf; company liable for such
damage, when. 185. •
It is not negligence per ae for a
passenger to alight from a street
car which had made a safety stop,
but has not yet reached its regular
place for stopping to receive and
discharge passengers. 204.
Can not be presumed on the
part of an innkeeper from the
mere fact that water flowed from
a tank or pipe upon the apparel of
a guest and damaged it. 209.
It is not error to charge the
jury that ordinary care is such
care as is used by a person of
ordinary care and prudence; defi-
nitions of ordinary care. 212.
Where the answer of the city
alleges that the plaintift having
full knowledge of the condition of
the walk voluntarily went upon it
and thereby contributed to his in-
Jury, the city is entitled to a more
definite charge as to plaintiff's
negligence than is found in the
statement to the Jury that if he
was negligent in going upon the
walk he could not recover. 212.
Where the evidence is equally
balanced as to the point at which
the accident occurred, aflidavits to
the effect that the plaintiff stated
on the night of the accident that it
occurred more than a block dis-
tant from the spot now claimed
are sufficient for the granting of a
new trial, or the reversal of the
Judgment for overruling the mo-
tion for a new trial. 212.
Negligence upon the part of a
municipality in maintaining a de-
fective sidewalk upon which
plaintiff was injured; allegation
that the defect had existed "for
a long time"; qualifications of a
Juror who had himself recovered
a verdict in a similar case. 212.
Where an increased flow of
surface water is thrown upon the
premises of another, it is imma-
terial whether or not the wrong
was due to negligence or other-
"vpise. 220.
Where a flreman stepped off his
engine backwards in the dark,
without making any effort to dis-
cover where he was stepping, the
fact that his reason for getting off
was that the engine was out of
repair and needed attention does
not constitute the proximate cause
of his resulting injury or render
the railway company liable there-
for. 230.
It is not the duty of a railway
company to place guard rails and
lights on all its bridges. 230.
It is error to refuse to instruct
a Jury to the effect that if the
Jury found that the injury was
due to the negligence of a tort
feasor who was not a party to the
action, and the defendant was not
negligent, the verdict should be
for the defendant; a covenant by
a plaintiff that he will not sue
one tort feasor is not a bar to an
action against another Joint tort
feasor. 234.
Buggy struck by a train at a
railway crossing; error to over-
rule a motion for a directed ver-
dict for the defendant company,
when the evidence shows that the
decedent was familiar with the
locality and schedule of trains,
and others similarly situated saw
the approaching train in ample
time to have avoided the acci-
dent. 250.
Doctrine of assumed risk with-
out application, when; unsafe
place to work because of slippery
condition of floor; exposed gear-
ing. 246.
A motorman is lacking in vigi-
lance and caution when he leaves
a meeting point on an assumption
that the car from the opposite di-
rection has arrived, and he can
not recover from the company for
injuries received in the collision
which resulted. 259.
In an action for damages on ac-
count of injuries sustained in a
collision between a wagon and an
electric car at the intersection of
two streets, the admission of the
plaintiff who was seated with the
driver of the wagon that she saw
the car approaching nearly half a
square away, but made no at-
IKDBX.
dsi
tempt to warn the driver, raises
a presumption of negligence oh her
part which entitles the street rail-
way company to an instructed ver-
dict in its favor, in the absence of
testimony that the motorman saw
the peril of the plaintifC and failed
to exercise proper care to avoid
the collision. 266.
Proper care on the part of a
motorman at a street crossing is
not "to do all that he can to avoid,
a collision," but merely to exer-
cise ordinary care. 266.
Recovery can not be had for
personal injuries on a mere pre-
ponderance of the evidence, re-
gardless of negligence of the
plaintiff and without the negli-
gence of the defendant being the
direct and proximate cause. 262.
Where a street railway company
admits placing grease and oil upon
its rails at an intersection of two
streets where great numbers of
people are constantly crossing, and
the testimony is to the effect that
the grease was negligently ap-
plied and the rails smeared with
it, the question of negligence on
the part of the company ceases to
be one of fact for the Jury and
becomes one of law for the court.
315.
Negligence in attempting to
board a car while in motion;
a Judgment for damages on ac-
. count of injuries thereby received
not sustained by the evidence. 327.
Where the question of negli-
gence on the part of fellow-serv-
ants in charge of a runaway car
has been eliminated, and no other
reasonable inference can be drawn
from the testimony as to why the
car started down the grade, it may
be assumed that the loose brake
shoe was the proximate cause, and
a Judgment for damages on ac-
count of injuries received in the
resulting collision will not be set
aside for insufficient evidence. 337.
An instruction to a Jury which
excluded all consideration of con-
tributory negligence, although
pleaded as a defense and supported
by some evidence, constitutes
prejudicial error requiring a re-
versal of the Judgment. 337.
It is not negligence per se to
cross in front of a street car with-
out first ascertaining whether an
automobile or other vehicle, pro-
ceeding in the same direction as
the car and concealed by it, is
running at a great and unlawful
rate of speed. 381.
One who, after having passed
safely in front of a car, is con-
fronted by an automobile running
at great speed and but a few feet
distant, is not to be held to the
exercise of the same care In the
choice of a way of escape that
|)rudent persons would exercise
were there no danger present. 381.
Where a settlement had been
agreed upon for damages to cloth-
ing, it was not negligence for the
woman receiving the payment to
fail to read the release which she
signed, although by so doing she
would have discovered that it
covered injury to both her cloth-
ing and her person. 373.
A traction company is not Justi-
fied in running its car at full
speed when approaching a public
crossing, although it is not a street
intersection, particularly when
several children were walking on
the sidewalk toward the crossing
with their backs to the car and in
full view of the motorman. 385.
Where it appears that had the
car been running at a maximum
reasonable rate of speed, the child
who was struck at the crossing
would have passed over In safety
and the collision would have been
avoided, then the greater rate of
speed at which the car was run-
ning was the proximate cause of
the injury. 385.
The question what would have
been a reasonable rate of speed
at a particular place and under
all the circumstances is one for
determination by the Jury. 385.
An instruction to the Jury which
requires that a verdict be returned
for a traction company, without
6S2
INDEX.
regard to any act of negligence
on the part of the company in the
running of its car prior to the
moment the deceased attempted to
cross the track, is erroneous. 385.
Elvidence that a motorman saw
in time that the space between the
track and curb of the street was
so narrow that the wagon in front
of him could not get out of the
way is sufficient to sustain a ver-
dict for damages resulting from
his permitting the car to strike
the wagon. 390.
It is not necessary that all the
acts of negligence alleged in a peti-
tion be proved. 390.
Where a section hand, at work
beside a railway track in the full
light of day, failed to see or hear
a train approaching on a track
which was straight for more than
a mile, and was struck and in-
jured by it, though a movement
of a few Inches would have pre-
vented the accident, he can not re-
cover damages therefor, notwith-
standing he was given no warn-
ing of the train's approach by
either the engineer or the section
boss. 387.
Pleading release by way of
avoidance in action for personal
injuries; procedure for cancella-
tion of the release. 497.
Where the operator of a ma-
chine, upon being told to clean the
machine, attempted to clean it
while running and his hand was
crushed. 558.
As to the liability of a master
for injuries to an employe from
the falling of a scaffold. 567.
Machine operated by a boy of
sixteen allowed to remain out of
order; machine starts itself and
boy is injured; duty of master to
instruct. 574.
Sufficiency of evidence support-
ing verdict; new trial will not be
granted on the ground of newly-
discovered evidence, unless. 565.
NEGOTIABLE INSTRUMENTS—
Under Section 3171o of the
negotiable instruments law, it
may be shown by parol evidence
that it was not intended a promis-
sory note should become effectual
until the happening of a specified
event at some date subsequent to
the delivery; this rule is not
changed by the fact that the note
is secured by a chattel mortgage.
37.
NEW TRIALr—
Newly-discovered evidence, if
cumulative only, or such as might
have been discovered with reason-
able diligence, is not available as
a ground for a new trial. 140.
A reasonable time should be al-
lowed for a new trial after the
filing with the clerk of the munici-
pality of the findings of the Judge
on the original hearing in a Jones
law local option case. 248.
Affidavits in support of a new
trial on the ground of newly-dis-
covered evidence must contain
statements which if offered in evi-
dence would require the Jury to re-
turn a difFerent verdict. 565.
NEXT OF KIN—
These words will be construed
to designate a particular class of
persons, related to the testator by
an equal degree of consanguinity,
when. 72.
NOTICE—
Of the claim of a vendor under
a contract of conditional sale is
insufficient, where it does not ap--
pear on the copy of the contract
filed with the county recorder, but
is embodied in an affidavit on a
separate sheet attached to the con-
tract of sale. 15.
Must be filed with the clerk of
the common pleas court by an ex-
ecutor who is proposing to appeal
to the circuit court in the inter-
est of the trust.' 87.
Neither a lessee for a term of
years nor a mortgagee is entitled
to notice of a resolution declaring
it necessary to improve the street
upon which the property abuts.
123.
Notice of a defect in a proof of
death is not necessary where re-
INDEX.
peated notices have been given by
the insurance company that no
proof of death has been filed. 411.
The maker of a note, which was
not paid at maturity, can not be
held to have been given notice of
the sale of securities pledged for
its payment by the mere return
to him of the canceled note, when.
529.
OFFICE AND OFFICER—
The provision of the Ohio Con-
stitution that all county officers
shall be elected by the electors
thereof is violated by the provi-
sion of Section 845, which at-
tempts to authorize the appoint-
ment of legal counsel by county
conmiissioners; duties of such
counsel are those of public offi-
cers. 103.
The county officers' salary law
includes court constables. 267.
The offices of mayor and mem-
ber of Congress are not incompati-
ble and may be held by one and
the same person; when dual office
holding is incompatible. 274.
Under the amendments of the
municipal code, adopted April 29,
1908, the appointment of a direc-
tor of public safety on August 1,
1909, was valid. 305.
The provision of Section 1209a
for the appointment of a deputy
coroner in all counties of the state
containing a city of the first class
of the second grade is unconstitu-
tional in that it is an enactment
of a general nature without uni-
form operation throughout the
state. 335.
OHIO RAILROAD COMMISSION-
The power to regulate car serv-
ice and demurrage charges as to
cars employed in interstate com-
merce is not conferred upon the
Ohio Railroad Commission by 98
O. L., 342. 317.
OIL AND GAS—
As to contracts between munici-
palities and natural gas companies
— see Municipal Corporations.
Construction of a gas and oil
lease; held to have been in effect
a sale of petroleum products; ef-
fect of a temporary arrangement
whereby gas Was furnished from
an outside source for the lessor's
use, and of extension of time for
opening a well. 475.
Construction of provision in a
gas and oil lease as to when the
lessee should begin work; effect
of payment of rental without be-
ginning operations; extension of
lease thereby. 489.
Construction of contract for
drilling and operating wells; the
term of the contract for pro-
ducing wells held not to have
been extended by payments of
rental on non-producing well;
right of lessee to terminate the
agreement. 505.
Parties whose only interest in
lands held under lease for oil and
gas is that of life tenants can not
enjoin operations under the lease.
517.
Lessees held to be entitled to an
extension of time under their
lease, where oil has been discov-
ered but not in pa>4ng quantities
and the lease contains no limita-
tion as to time except that a well
should be completed within one
year. 539.
Designation of premises by les-
sor to be operated for oil; plugging
up of a test well does not deprive
lessee of an extension of time for
further operations, where the ex-
istence of oil had been demon-
strated within the prescribed time
find all payments required un-
der the lease had been made. 553.
Delay in completing a well be-
fore expiration of extended term
of lease is not excused by an acci-
dent to the drilling apparatus; the
lessor may treat the lease as ter-
minated; adjustment of equities
in connection with uncompleted
well. 586.
ORDINANCE—
The repeal of an unconstitution-
al statute does not per ae Invali-
684
IMBIDL
date an ordinance previously
enacted. 23.
The provision of 98 O. L.. 538,
relating to the regulation of motor
vehicles, does not inhibit the pas-
sage and enforcement of a mu-
nicipal ordinance requiring the li-
censing of motor vehicles. 23.
Places where soft or non4n-
toxicating drinks are sold can not
be regulated by ordinance. 108.
The fixing of unequal fees for
the use of the streets by vehicles
of the same class is unreasonable
and can not be enforced. 273.
Authorization of an issue of
bonds to build a bridge not ren-
dered invalid by reason of the fact
that the amount authorized is not
sufficient to complete the struc-
ture; intention to complete the
structure. 279.
The provision in an ordinance
making a grant to a natural gas
company, which permits the sup-
plying of natural gas for heat
and power but not for illuminat-
ing purposes, is void. 392.
ORDINARY CARE^
A definition of, is not rendered
erroneous because it applies to a
class rather than to a particular
individual. 204.
PARENT AND CHILD—
A parent who sends his child to
school and is willing to continue
so to do, but the child is excluded
for failure to comply with a rule
of the board of education requir-
ing vaccination, is not liable to
conviction under the compulsory
education act. 33.
Devise by father to son; money
afterward furnished to the son
properly chargeable in this case
against the devise to him. 158.
Conveyance of property by a
father to his son shown to have
been in accordance with an inten-
tion long entertained and not as a
result of undue influence. 180.
•
An order made pursuant to Sec-
tion 3140-2, requiring the father
of an abandoned minor child to
pay a certain amount periodically
for care, clothing, etc., for said
child and give bond therefor, may
be modified at any time thereafter
when so required by changed con-
ditions of the child or by inability
of the father to comply with the
original order; but where he was
not in default under the original
order, It is unlawful to arrest and.
confine the father until he has had
opportunity to comply with the
modified order. 361.
Liability of a parent for tuition
for his son for the entire school
year, where after attending for a
part of the year the son became
disabled by Illness from continu-
ing his studies. 515.
PARTIES—
Proper procedure by the plaint-
iff where separate causes of ac-
tion against several defendants
have been improperly joined. 79.
Where service is had upon a pe-
tition in which the wrong company
is named as defendant, the sub-
stitution of the proper party and
the amendment of the return of
summons to conform thereto is in-
effectual to bring the proper party
into court. 69.
In an action in quo warranto
brought by the Attorney-General
of the state to oust a railway com-
pany from canal land leased to it
by the city of Cleveland, and con-
veyed to the said city by authority
of 69 O. L., 182, the said city is
not a necessary party. 321.
Character of the judgment ob-
tained where a party is sued by
initial letters. 401.
Proceedings for tlisclosure of
the names of unknown parties.
457.
PARTNERSHIP—
Where an action for damages
on account of a tort is brought
within the time prescribed under
the statute by a partnership doing
business under a fictitious name,
the fact that the certificate re-
lating to the partnership was not
INDEX.
M5
filed with the county clerk for
more than four years does not
bar the action under the provi-
sions of Section 3170-6. 390.
PAYMENT—
Delay in, where goods have been
purchased under an agrement to
ship them at intervals; retention
of discount after the ten days
usually allowed for discount has
passed. 173.
Payment of a note and want of
consideration therefor are distinct
defenses; if payment is relied
upon, it must be pleaded. 496.
PERFORMANCE—
A contractor who has acted in
good faith may recover notwith-
standing failure to literally per-
form. 269.
PERSONAL INJURIES—
See Negligence.
PHARMACIST—
The sale of drugs, chemicals,
poisons or pharmaceutical prep-
arations is not within the business
of a physician but of a pharma-
cist. 142r
PHYSICIAN AND SURGEON—
A physician who sells from his
own drug store, or from a store in
which he is a part owner, to one
or for the use of one who is not
his own patient, either drugs,
chemicals or poisons, does not in
so doing act within the business
of a physician, and if he be not a
pharmacist or assistant pharma-
cist such action subjects him to
the pains and penalties provided
by statute where such sales are
made by others than pharmacists
or assistant pharmacists. 142.
It is the duty of the state board
of medical registration and exam-
ination to cause examinations for
admission to the practice of medi-
cine and surgery to be held in Cin-
cinnati, Cleveland and Toledo as
well as Columbus; but a writ of
mandamus will not lie to compel
the holding of such examinations
4n the absence of a showing of an
abuse of discretion on the part of
the board in fixing the times and
places for examinations. 189.
PLEADING—
A special instruction to the jury
in a negligence case must not in-
clude any negligence not charged
in the petition. 17.
Where separate causes of ac-
jtion against several defendants
are improperly joined, the plaint-
iff should be permitted to file a
petition against each defendant
as provided in Section 5064, Re-
vised Statutes. 79.
Pleading in avoidance; tender
back a necessary prerequisite
where a release has been granted
and it is alleged that it was ob-
tained through fraud. 126.
In the absence of an allegation
of subsequent or willful negli-
gence, the doctrine of last chance
does not apply where it appears
that the plaintiff was guilty of con-
tributory negligence. 170.
Necessary allegations in a pro-
ceeding in mandamus to compel
the holding of examinations in
other cities than Columbus for ad-
mission to the practice of medi-
cine. 189.
A judgment for personal injuries
will not be set aside on account
of indefiniteness in the allegation
that the defect complained of had
existed "for a long time," when ob-
jection thereto was not made un-
til the case reached the reviewing
court. 212.
Where the defense in an action
for personal injuries is a general
denial, an allegation that the acci-
dent was due solely to the negli-
gence of the plaintiff serves no
good purpose and is misleading.
266.
Where the Supreme Court sus-
tains a demurrer and remands the
case for further proceedings, the
circuit court has authority to al-
low an amendment to the plead-
ing to which the demurrer was
directed. 270.
686
INDBX.
The object of a motion to strike
from the files is to test the cor-
rectness of the form of the plead-
ing or the regularity of Its filing.
287.
If an answer contains a good
defense or a cross-petition a good
cause of action, it Is Immaterial
whether or not It was filed In
good faith or for purposes of de-
lay only. 287.
The overruling of a motion to
make definite and certain may con-
stitute reversible error; but the
question of whether or not error
was committed can not be deter-
mined on motion for Judgment,
but only on a petition in error.
287.
Variance between pleading and
proof not material, when. 285.
Averments in a suit on a policy
of life insurance that the condi-
tions as to proof of death were
definitely performed, and that
every condition required by the
policy was performed, are wholly
inconsistent with a subsequent
averment that the condition as
to proof of death had been waived;
and in the absence of any aver-
ment of an excuse for non-per-
formance, or inference to be drawn
from the petition that there was
such an excuse, evidence could
not be ofEered on the question of
waiver. 411.
Where payment is relied upon
as a defense against liability on
a promissory note, it is necessary
that it should be pleaded. 496.
Where the action is on a con-
tract and there is an averment
that the indebtedness arose "for
money laid out and expended and
commissions In the purchase and
sale of goods by the plaintiff for
the defendant at his request," the
objection does not lie that cash
items can not alone, without spe-
cial authority, be the subject of a
book account. 483.
Pleading where a release has
been set up by way of defense to
an action for personal injuries; If
the release is voidable only, and
not void, the plaintifP can not rnaHn-
tain his action while it stands un-
canceled; and he can not seek its
cancellation in a reply, but must
do so by a petition in a suit in
equity brought for that purpose
only, or as a cause of action in
the same suit in which he seeks
to recover damages for the injury.
497.
Held that no case was made
under the pleadings for a reforma-
tion of the deed in question, where
the word "heirs" had been used
instead of "children." 517.
Judgment on the pleadings with-
out testing the sufficiency of the
answer by demurrer is not preju-
dicial error, where no motion was
made by the defendant for leave
to amend his answer or file some
other pleading.. 561.
PLEDGE—
STee Banks and Banking.
POCKET PICKING—
An indictment charging the
crime of pocket picking, where
the property stolen is valued at
$20, includes the offense of petit
larceny, and a refusal of the court
upon request of the accused to so
Instruct the Jury is prejudicial
error, but an indictment for
pocket picking does not include
either assault and battery or as-
sault. 348.
POLICE—
May arrest without a warrant
one found violating a valid city
ordinance, and the arrest may be
made without explaining the rea-
son therefor; Interference by a
bystander with an officer while
^making an arrest; officer may
use such force as may be neces-
sary to defend himself from at-
tack. 255.
POLICE POWER—
Limitations upon the exercise
of; restrictions upon business
which disturbs religious exercises
distinguished from other forms
of business. 81.
-^
1
INDEX.
687
Limitation upon the exercise of.
108.
Exercise of, in the enactment of
statutory provisions for the care
of delinquent and dependent chil-
dren and the establishing of ju-
venile courts. 374.
POSSESSION—
Effect of retention of possession
under a lease of coal mining
rights* where the second party to
the contract claimed to have been
prevented from mining and re-
moving the minimum tonnage by
causes beyond his control. 465.
PREMIUMS—
For life insurance; insufficient
averments as to Illegal rebates.
561.
PRESUMPTION—
The presumption that a testator
by the use of the words "next of
kin" intended to designate a par-
ticular class of persons related
to him by an equal degree of con-
sanguinity arises, when. 72.
Where the probate record as to
an election to take has been de-
stroyed a presumption arises that
a widow elected to take the more
valuable estate. 129.
Presumption of death from dis-
appearance for seven years; mu-
tual benefit societies may refuse
to pay death claims based on such
disappearance. 137.
Of negligence does not arise
against an innkeeper, when. 209.
Circumstances which raise a
presumption that a husband's
means were used in the purchase
of property standing in the name
of his wife; burden of proof. 253.
As to delivery of promissory
notes found among the papers of
a decedent. 353.
As to the legality of a ballot.
433.
Held that no presumption exist-
ed that the use of brass turnings
upon which oil had collected was
the proximate cause of the explo-
sion complained of, by imprison-
ing vapors between the scum and
the molten metal. 526.
PRIORITY—
Of liens — see Liens.
Is lost by a judgment creditor
who delays the levying of execu-
tion for more than a year, where
execution has been levied upon
a subsequent judgment within one
year. 286.
PRISONER—
Running of sentence not inter-
rupted by transfer of prisoner
from workhouse to penitentiary
and back to the workhouse, when.
257.
PROMISSORY NOTES—
It may be shown by parol testi-
mony, under the negotiable instru-
ments law, that it was not intend-
ed a promissory note should be-
come effectual until the happen-
ing of a specified event at some
date subsequent to the delivery;
burden of proof as to such under-
standing. 37.
Where a note, which has been
signed by the maker with his ini-
tials and surname only, has been
merged into a judgment in which
he is designated in the same man-
ner as on the note, the judgment
becomes an evidence of debt
owing by him under that name,
and such judgment is not void in
the sense that in a subsequent
suit in attachment on the judg-
ment the judgment debtor is not
required to show a meritorious
defense to the action. 401.
Where the defendant in such a
case fails to set forth his defense
to the action in his petition to
vacate the judgment,- objection
to the service had upon him by
publication will not lie for defects
therein. 401.
Where promissory notes are
found among the papers of a dece-
dent, delivery will be presumed;
and nothing else appearing, a
stipulation in such notes that they
were for value received is prima
facie evidence of consideration.
353.
688
INDEX.
Testimony of expert witness as
to genuineness of signature; may
give the reasons for his opinion
as well as the opinion itself on ex-
amination in chief; where a num-
ber of standards of handwriting
have been admitted in evidence
for the purpose of proving the
genuineness of a signature, they
should all be given to the jury
upon their retirement for delib-
eration. 353.
It is necessary that payment
should be pleaded, if it is relied
upon as a defense against liability
on a note. 496.
It is error to admit evidence
with reference to payment of a
note, or to charge the jury with
respect thereto, where the only de-
fense set up was want of consid-
eration. 496.
The time of the maturity of a
note and the manner of its pay-
ment are material parts, and it
is error to refuse to charge the
jury with reference to these mat-
ters where they constitute issues
of fact which the jury must de-
cide. 503.
The holder of a note for collec-
tion is not the "holder" in the
legal sense; a bank holding a note
for collection can not, upon de-
fault in payment at maturity, be-
come the purchaser of the collat-
eral security free from all interest
of the maker therein; return of
the canceled note to the maker is
not notice of the sale of the col-
lateral for non-pajonent, when;
bank may be required to account
to maker for value of the collat-
eral above the face of the note,
when. 529.
PROOF—
See Evidence.
PROSECUTING ATTORNEY—
Legal counsel for the assistance
of the prosecuting attorney can
not be legally appointed by the
county commissioners; statutory
provisions with reference to cer-
tain duties by prosecuting attor-
neys. 103.
Actions in which county com-
missioners or any other county
board or officer is a party must be
prosecuted or defended by the
prosecuting attorney, or legal
counsel appointed by the county
commissioners upon request of
the prosecuting attorney and in
accordance with the provisions of
Section 845. 202.
PROXIMATE CAUSE—
Of damage to land from flood
waters not shown to be due to the
negligent construction of a rail-
road bridge, when. 185.
Where an employe while stand-
ing upon a stool is thrown by the
toppling over of the stool upon
an unguarded belt and injured,
the fact that the belt was un-
guarded was not the proximate
cause of the injury. 208.
Where a fireman was injured in
stepping off his engine backwards
and in the dark without making
any effort to discover where he
was stepping. 230.
To sustain a verdict for per-
sonal injuries the negligence of
the defendant must be shown to
have been the direct or proximate
cause. 262.
Where an electric car and a
wagon collided at a street inter-
section. 266.
A defective brake shoe may be
assumed to have been the proxi-
mate cause of the collision and
fatal injuries in this case, result-
ing from a car running away down
a grade. 337.
A wife may maintain an action
against a druggist who, against
her protest, sells morphine to her
husband in such quantities as to
incapacitate him, notwithstanding
the proximate cause of the injury
was not the selling of the drug but
the intervening act of the purcha-
ser in taking it into his system.
369.
Where it appears that had the
traction car which struck the de-
cedent and caused his death been
running at a reasonable rate of
INDEX
089
speed, the decedent would have
passed over the crossing in safety
and the collision would have been
avoided, then the greater rate of
speed at which the car was run-
ning was the proximate cause of
the accident. 385.
Where molten brass contained
in a crucible exploded causing in-
jury to the plaintiff. 526.
Exposed cog-wheels are not the
proximate cause of an injury from
being caught in them, where the
operator attempted to clean the
machine while it was running,
and to have done so would have
required the removal of the guard
from the wheels had one been
provided.' 558.
PUBLIC UTILITIES—
Oontrol of corpori^tions oper-
ating public utilities; Injunction
will lie to prevent violation of ob-
ligations to a municipality and
its inhabitants. 392.
PUBLICATION—
Objection to service by publica-
tion will not lie for* defects there-
in, when. 401.
Service on a husband by publica-
tion does not render invalid a de-
cree transferring the title of cor-
porate stock to his wife, where
the corporations issuing the stock
have been made defendants and
duly served with summons and
enjoined from transferring the
stock pending a hearing. 460.
PURCHASE—
A contract of purchase is a
complete defense to an action in
forcible entry and detainer, and
may be introduced in evidence for
the purpose of showing the nature
. of the defendant's possession; if
there are conditions of the con-
tract which have not been per-
formed, the plaintift must have
recourse to a suit in ejectment.
431.
QUIET TITLE—
Where no action to subject the
real estate of an ancestor to the
pajrment of his debts was brought
within six years from the discov-
ery by the administrator that the
personalty was insufficient to pay
the debts, it is the right of an
owner of an estate in remainder,
though not in possession, to bring
an action to quiet his title in said
estate against the claims of the
administrator. 161.
Title may be quieted in one
claiming by deed and adverse pos-
session, where the defendant is
a village and contends that the
strip in controversy was dedicated
as a street before the village was
organized. 309.
QUO WARRANTO—
Is the proper remedy against a
corporation exercising a doubtful
right which has not been adjudi-
cated and the illegal acts have
not been persistent, defiant or
flagrant; the ouster In such a case
is against the illegal acts or a
continuance of the unauthorized
business. 49.
Proceedings to oust legal .coun-
sel appointed by county commis-
sioners under authority of Section
845. 103.
Involving the validity of the ap-
pointment of a director of pub-
lic safety on August 1, 1909. 305.
To oust a railway company from
canal lands leased by it from the
city of Cleveland; said city not a
necessary party. 321.
RAILWAYS—
A railway company, incorpor-
ated under the laws of Ohio, has
no authority to acquire and hold
capital stock of a coal mining
company, and especially a control-
ling interest in such company;
moreover, such ownership tends
to monopoly and restraint of
trade and competition, and Is un-
warranted and illegal; nor can
a railway company acquire stock
in a spur line built by a tnining
company and constituting the out-
let from their mines; nor can the
bonds of a coal mining company
640
INDEX.
be endorsed by a railway com-
pany or by competing railway
companies. 49.
Ownership by a railway com-
pany of a controlling Interest in
a parallel or competing road is
invalid; such control may be
shown by circumstances, and a
unity of stockholding Interests to-
gether with unity of management,
pursuant to an established plan to
that etPect, is sufficient proof; the
appropriate remedy where illegal
acts have not been persistent, de-
fiant and flagrant is ouster by
quo warranto. 49.
Service upon the chief clerk of
the superintendent of a railway
is not service upon a chief officer.
69.
Monopoly and discrimination in
rates on coal arising from a joint
guaranty by competing railway
companies of coal company bonds;
such an arrangement is not in the
nature of a tonnage contract,
when; test as to whether railway
lines are competing; one line may
be in competition with another by
virtue of its connections. 145.
The Kanawha ft Michigan Rail-
way is by virtue of its connections
a competing railway with the
Hocking Valley in the broad and
practical sense, and the acquire-
ment by the Hocking Valley Rail-
way Company of a majority of
the stock of the Kanawha ft Mich-
igan was illegal. 145.
An assault by a conductor upon
a passenger will be held to have
been within the scope of his au-
thority, and the company liable
for punitive as well as actual dam-
ages, when. 177.
A railway company is not liable
by reason of the negligent con-
struction of a bridge for the over-
flow of lands at a time of unprece-
dented flood, when. 185.
Not the duty of, to place guard
rails and lights on all bridges.
230.
Consideration of Section 3305,
providing for joint liability for
lessor and lessee of railway tracks.
230.
Evidence sufficient to establish
failure to look and listen at a rail-
way crossing. 250.
As to the right of attachment
against the property of a foreign
railway corporation having no
officer or place of doing business
within the county. 271.
The Ohio Railroad Commission
Is without authority to regulate
car service and demurrage charges
on cars employed in Interstate
commerce. 317.
A railway companjr is not liable
for injuries to a section hand who
was struck by a train • while at
work beside the track, where the
approach of the train could have
been seen for more than a mile
and a movement of a few Inches
on his part would have prevented
the accident. 387.
RECEIPT—
Construction of, where given by
a son to his father after the exe-
cution by the father of his will
which provided for all his chil-
dren. 158.
RECONIZANCE—
See' Bail and Reconizance.
RECORI>—
The mere filing of an agreed
statement of facts in the trial
court does not make it a part of
the record. 223.
REFORMATION—
Of a deed where the word
"heirs" was used instead of "chil-
dren" denied under the pleadings
as presented in this case. 617.
RELEASE—
Charge of fraud in obtaining;
tender back of compensation re-
ceived a necessary prerequisite to
avoidance of. 126.
A woman who had agreed upon
a settlement for damages to her
clothing while a passenger on a
street car can not be held negli-
gent In failing to read the release
INDEX.
641
which she s'gned, although a read-
ing would have revealed that she
was signing a release for injury
to both clothing and person. 373.
One dollar is a sufficient amount
to constitute a consideration in
law for a release from liability
for damages on account of per-
sonal injuries. 497.
Where the answer to an action
for personal injuries sets forth
a release executed by the plaintifE
in writing, and the reply alleges
facts which if established would
render the release voidable, and
further facts which if established
would render the release void,
and there is evidence tending to
show that the release was void-
able but not void, it is the duty
of the court on motion to instruct
the jury to return a verdict for
the defendant. 497.
Facts which if established would
render the release void may be
pleaded in reply by way of avoid-
ance of the defense of release;
but if the facts would render the
release voidable only, and not
void, the plaintiff can not avail
himself thereof by way of reply.
497.
If the release is voidable oniy
and not void, the plaintiff can not
maintain his action while it
stands uncanceled, and he can not
seek its cancellation in a reply,
but must do so by petition in a
suit in equity for that purpose
only, or as a cause of action in
the same suit in which he seeks to
recover damages for his injury.
497.
REMAINDER—
The owner of an estate in re-
mainder though not in possession,
may bring an action to quiet his
title against the claims of the ad-
ministrator of the ancestor, where
the administrator neglected, for
more than six years after discover-
ing that the personalty was insuffi-
cient to pay the debts, to bring
suit to subject said estate to their
payment. 161.
RENTS—
Where a mistake has occurred
in the description of land held
under lease, there can be no recov-
ery of rents paid by the lessee
while in possession and enjoy-
ment of the premises previous to
the discovery of the mistake.
225.
Effect of payment of rental un-
der a gas and oil lease without be-
ginning drilling operations within
the prescribed time. 489.
REPLEVIN—
Competency of testimony as to
damages for wrongful detention
of musical instruments; probable
earnings of such instruments. 309.
RES IPSA liOQUITUR—
Aplication of the doctrine of,
where a passenger was injured by
an interurban car striking a cow
on a straight and level piece of
track in the public highway. 73.
As to application of the doctrine
of, where molten brass contained
in a crucible exploded. 526.
RESCISSION—
Of lease warranted for mistake
in description when it appears
that the lessee acted immediately
upon discovery and that the mis-
take was mutual. 225.
RESriDENCE—
A minor is without capacity to
change his legal residence; and if
he remove from another state into
Ohio, he must remain here one
year and in addition have the nec-
essary intent, in order to acquire
a residence for voting purposes.
433.
RESTRAINT OP TRADH>—
See Monopoly.
A lease is not in restraint of
trade because of a covenant that
the lessee will sell on the leased
premises the products manufac-
tured by the lessors exclusively.
577.
REVERSAL—
Authority to amend after re-
versal. 270.
64f
INDEX.
R08B LAW—
See LiQUOB Laws.
SALES—
Of goods on commission; con-
struction of contract. 154.
Th^ filing of an affidavit charg-
ing that the goods did not come up
to the contract does not prove
breach of contract, nor does the
fact that the plaintiff pleaded
guilty to a charge of adulteration
prove that the goods were adulter-
ated. 160.
Shortage in measurement; delay
in payment; waiver; custom and
usage; retention of the dicount
after more than ten days had
passed. 173.
It is the right of a buyer of
goods which have fallen short of
the warranty to sue on the breach
without first shipping out the
goods he has still remaining on
hand, when. 243.
SALCX)N—
See Liquor Laws.
As to covenant In lease provid-
ing for exclusive isale of beer
manufactured by the lessor. 577.
SCAFFOLD—
A temporary scaftold, erected
in sections on the land of a third
person as the building progressed,
is not an "appliance" within the
meaning of Section 4238o. 567.
SCHOOLS—
A parent who sends his child to
a public school and is willing to
continue to do so, but the child
is excluded for failure to comply
with the rule of the board of edu-
cation requiring vaccination, is
not liable to prosecution under
the compulsory education act.
33.
Limitation on the power of a
board of education to make and
enforce rules. 33.
Whether a contract by a parent
for schooling for his son is for
the entire school year, or for a
shorter period, most be deteimined
from all the facts, words, acts, con-
duct and drcomstances snrroimd-
ing the parties at the time; if for
the entire school year, the con-
tract may be discharged by the
son becoming disabled by illness
from attending for the entire year,
it being presumed that both par-
ties acted on the assumption that
if such an event intervened the
agreement would be at an end.
515.
SELF-DEFENSE—
Before a defendant in a homi-
cide case can be required to estab-
lish self-defense by a preponder-
ance of the evidnce, the state must
establish that the killing by him
was an unlawful killing within
the degree of crime charged. 486.
SENTENCE—
Interruption in the running of
a workhouse sentence by transfer
of the prisoner to the penitentiary
from which he had escaped does
not prevent his being returned to
the workhouse to complete his
sentence there after discharge
from his penitentiary sentence,
when. 257.
A sentence will not be held ex-
cessive by a court of review where
the trial court has confined itself
within the limits provided by law
and has exercised only that dis-
cretion which the law has given
it. 404.
Upon reversal by the common
pleas of the judgment of a Justice
of the peace in a criminal case for
error in the sentence alone, and
remanded for re-sentence, the jus-
tice has authority to re-sentence
notwithstanding the time has
elapsed, after trial, within which
judgment must be rendered. 430.
SETTLE^fENT-
With one joint tort feasor not a
bar to an action against another
joint tort feasor. 234.
SHRINKAGE—
Where a product is sold by the
barrel and it is necessary to run
iNOHX.
04S
it into the barrels and close them
up while it is hot, there is an im-
plied agreement that the shrink-
age shall be borne by the pur-
chaser. 173.
SIDEWALKS—
In an action for damages, on ac-
count of injuries resulting from
a defective sidewalk, the objec-
tion that the allegation that the
defect had existed "for a long
time" comes too late when de-
ferred until the case has reached
the reviewing court. 212.
Bordered by an unguarded re-'
taining wall over which a pedes-
trian fell and was injured; liabil-
ity of the municipality. 285.
SPEED—
Of a traction car held to have
been the proximate cause of the
plaintiff's intestate being struck
and killed; what would have been
a reasonable rate of speed at that
place and under all the circum-
stances of the case was a question
for determination by the Jury.
385.
STATE—
All doubts will be construed in
favor of the state in an action
brought by the state to construe a
franchise which it has granted.
145.
The state is not bound by the
fact that the contracting parties
to an illegal agreement are satis-
fied therewith, but 'may inquire
whether others, and especially the
\publlc at large, are prejudiced
thereby. 145.
STATUTES CONSIDERED—
Section 2732, providing that cer-
tain property shall be exempt
from taxation. 1.
Section 5856, providing that any
person interested may contest a
will or codicil. 8.
Section 5856, limiting to per-
sons not under disability the pro-
vision that a will must be con-
tested within two years after its
probate. 8.
Section 5926, relating to the
examination of witnesses to a
will. 8.
Section 4155-2, relating to con-
ditional sales and the filing of a
statement by the vendor with the
county recorder. 15.
98 O. L., 320, requiring owner
and operators of motor vehicles to
register with the Secretary of
State. 23.
99 O. L., 538, providing for the
registration, identification and
regulation of motor vehicles. 23.
Section 3986, providing that a
board of education may make and
enforce rules with reference to
vaccination. 33.
Section 4022-1, known as the
compulsory education act. 33.
Section 3171o of the negotiable
instruments act. 37.
Section 3256, providing that cor-
porations may borrow money on
mortgage bonds. 49.
Section 3300, providing when a
railway company may aid, lease
or purchase the lines of another
company. 49.
Section 6041, providing how
service may be had upon a corpora-
tion. 69.
Section 5064, providing proce-
dure where causes of action are
misjoined. 79.
Section 7006, prohibiting ex-
hibitions and temporary business
within one-fourth of a mile of
any agricultural fair. 81.
Section 5229, as to procedure
where a party dies before his ap-
peal is perfected. 87.
Section 640S, relating to appeal
bonds. 87.
SBCtlon 5227, relating to appeal
to the circuit court and the under-
taking therefor. 87.
Section 5228, providing who
shall not be required to give bond
on appeal. 87.
Section 4270, providing when
and by whom money lost at gam-
ing may be recovered back. 93.
Section 6352, relating to the pre-
sentation of claims to assignees
644
INDEX.
of insolvent debtors; such pre-
sentation does not stop the run-
ning of a statute of limitations.
93.
Section 5165, relating to the
drawing of grand and petit jurors
and the issuing of venires there-
for. 97.
Section 5169, relating to the
service and return of venire for
jury. 97.
Section 5170, providing that the
name of a juror drawn but ex-
cused must be returned to the box.
97.
Section 5171, providing when
talesman may be summoned. 97.
Section 5172, providing when a
special venire for a jury may is-
sue. 97.
Section 7256, providing that af-.
ter a demurrer to an indictment
has been overruled the accused
may plead in bar. 97.
Section 799, relating to duties
and services required to be per-
formed by prosecuting attorneys.
103.
Section 845, relating to the gen-
eral powers and duties of prosecu-
ting attorneys. 103.
Section 1277, authorizing the
prosecuting attorney to procure a
restraining order against the mis-
application of public funds. 103.
Section 1278a, providing that an
allowance may be made to a pros-
'ecuting attorney for compensa-
tion and expenses incurred in cer-
tain matters. 103.
Section 3977, providing that
the prosecuting attorney shall act
as counsel for the school board.
103.
Section 1536-100, relating to the
general powers of municipalities.
108.
Section 4364-20, providing for
the closing of saloons on Sunday.
108.
Section 4364-9, known as the
Dow law. 118.
99 O. L., 35, known as the Rose
county local option law. 118.
99 O. L., 507, relating to the sale
of drugs, chemicals and poisons.
142.
Section 5779, relating to actions
to quiet title. 161.
Section 6137, providing where
and how application shall be made
by an administrator to sell land
to pay debts. 161.
Section 4981, known as the six
years statute of limitations. 161.
Section 4985, providing that cer-
tain actions for relief may be
brought within ten years from
the time the cause of action ac-
crues. 161.
98 O. L., 68, known as the Jones
residence local option law. 166.
Section 2433, providing when a
passenger conductor is a police-
man. 177.
Section 3434, providing when a
railway conductor may eject a
passenger. 177.
99 O. L., 492, relating to the
state board of medical registra-
tion, etc. 189.
Section 845, relating to the ap-
pointment of legal counsel by
county commissioners. 202.
Section 1271, relating to the ap-
iPointment of assistant prosecu-
ting attorneys. 202.
Section 4364-89c, relating to the
protection of employes from dan-
gerous machinery. 208.
Section 3691, providing that cel-
lar and foundation shall not be
considered as part of structure in
settling fire loss. 228.
Section 3643, fixing the extent
of liability under a policy of fire
insurance. 228.
SecCion 3305, as to provision
that lessor and lessee of railway
tracks shall be jointly liable. 230.
Section 3443-6, providing that
street cars shall make a full stop
before crossing steam railway
tracks. 234.
Section 587, relating to actions
on undertakings before justices of
the peace. 236.
Section 4364-9, imposing a tax
INDBZ.
646
on the traffic in intoxicating li-
quors. 238.
Section 1536-553, relating to the
making of contracts for water
works. 240.
Section 4364-89C, providing for
protection to employes against
dangerous machinery. 246.
98 O. L., 68, known as the Jones
local option law. 248.
Section 5748, relating to the re-
moval of a prisoner from the cus-
tody of one officer to that of an-
other. 257.
Section 7404, relating to the ar-
rest and return of escaped con-
victs. 257.
Section 524, conferring exclu-
sive jurisdiction on the probate
court in certain matters. 264.
Section 6407, providing when
appeals may be taken from the
probate court to the court of com-
mon pleas. 264.
Section 553, relating to the ap-
pointment of court constables.
267.
98 O. L., 89, known as the coun-
ty officers' salary law. 267.
Section 6478, relating to suits
before justices of the peace
against railroad companies. 271.
Section 2835, having reference to
the issuing and selling of bonds
by townships and municipalities
for the purposes there specified.
279.
Section 28351), providing when
the limitations upon the powers
of muincipalities and townships
to issue bonds are not applicable.
279.
Section 5415, providing^ when
judgment loses its performance
as a lien. 286.
Section 5240, providing who are
competent witnesses. 289.
Section 5241, relating to privi-
leged communications and acts.
289.
Section 5242, as to the compe-
tency of a party to testify. 289.
Section 146 et seq of the munici-
pal code, as amended April 29,
1908. 305.
98 O. L., 342, creating and pre-
scribing the duties of the state
railroad commission of Ohio. 317.
69 O. L., 182, authorizing the
city of Cleveland to enter upon and
occupy a part of the Ohio canal.
321.
99 O. L., 35, known as the Rose
county local option law. 330.
Section 1209a, providing for
deputy coroners in counties con-
taining a city of the first grade
of the second class. 335.
Section 535, providing that
where the probate judge is inter-
ested in a matter pending before
him he may certify it to the com-
mon pleas court for determination.
340.
Section 3140-2, making abandon-
ment of a child by its parent a
felony. 361.
Section 7177, relating to the sur-
render of a defendant by his surety
in recognizance. 367.
Section 4364-9, levying a tax on
the sale of intoxicating liquors
and known as the Dow law. 369.
Sections 548-36d et seq, known
as the juvenile court law. 374.
Section 1536-114, as amended, by
providing for the prosecution of
error in certain cases from the
court of Insolvency to the circuit
court. 378.
Section 3170-6, relating to the
filing with the county clerk of cer-
tificates as to partnership. 390.
Section 1777, authorizing a city
solicitor to apply for a restraining
order. 392.
Section 6601, providing that a
judgment in an action in forcible
entry and detainer shall not be
a bar to a second action. 399.
Section 5010, providing that par-
ties may be designated by initial
letters, when. 401.
Section 5358, providing proceed-
ings for vacation of judgments in
certain cases. 401.
616
INDEX.
99 O. L., 35, known as the Rose
connty local option law. 404.
Section 2655, relating to the va-
cation of streets. 414.
Section 6831, relating to the
crime of arson. 417.
Section 7215, proYidlng that no
indictment shall be treatel as in-
valid because of defects, when.
417.
Section 2966-87, relating to the
folding of ballots at an election.
433.
Section 5099, providing for an-
nexing interrogatories to a plead-
ing. 457.
Section 6707, defining what is a
final order. 457.
Section 5199, providing when a
verdict may be reformed and the
jury discharged. 463.
Section 5203, providing that the
jury must assess the amount of the
recovery. 463.
Section 5086, providing what
shall be a suflicient pleading upon
an instrument for the payment of
money only. 483.
Section 3171111, providing when
blanks may be filled in a negoti-
able instrument. 503.
Section 31750, relating to altera-
tions in a negotiable instrument
and the effect thereof. .503.
Section 5314, providing when an
action may be dismissed by the
plaintiff without prejudice. 513.
Section 4992, relating to new
promises, which must be in writ-
ing. 545.
Section 4364-89c, requiring pro-
tection against injury by ma-
chinery. 558.
Section 3631-4, making it unlaw-
ful to discriminate in the matter
of premiums for life Insurance.
661.
Section 42380, relating to an
employer's liability for injury to
an employe notwithstanding the
negligence of a fellow-servant. 567.
Section 4427-8, making void any
contract in restraint of trade. 577.
Section 4427-1, known as the
Valentine anti-trust law. 577.
STOCKHOLDEIR&—
A railway company can not be-
come a stockholder in a coal com-
pany whcse product is shipped
over its line; nor can a railway
company become the owner of
the majority of the stock of a par-
allel or competing line; how such
ownership can be proved. 49.
STREETS—
A lessee of land abutting on a
proposed street improvement is
not entitled to notice of a resolu-
tion declaring it necessary to im-
prove; nor is he entitled to an in-
junction to restrain the making
of the improvement or the levy-
ing of an assessment on the de-
mised lands to pay therefor on
the grround of Irregularity in the
proceedings or because his estate
will be damaged by the improve-
ment. 123.
Municipality not relieved from
liability by the fact that a woman,
who was injured by stepping into
a hole in the street, stepped there-
in when alighting from a street
car at a safety stop as distin-
guished from the regular stopping
place. 204.
Where license fees are exacted
for the use of vehicles on the
streets, equal fees must be re-
quired from vehicles of the same
class. 273.
Where an attempt is made to
dedicate property for a street of
a proposed village before the vil-
lage is organized, and during the
interim the owner conveys the
property including the strip so
dedicated, the village subsequently
organized will be held to have
taken no title by virtue of the
dedication. 311.
Under the statute of Ohio a
court can not vacate a public
street unless satisfied that such va-
cation will conduce to the general
interests of the municipality, and
it is not error to refuse an order
of vacation upon a mere showing
INDEX.
647
that the street is not demanded by
the present needs of travel. 414.
STREET RAILWAYS—
A verdict will be sustained in
favor of a passenger who was in-
jured by the car striking a cow
standing on the track in the high-
way in the night time. 73.
Liability for injuries to a pe-
destrian who slipped and fell at a
street crossing, by stepping on
one of the company's rails which
had been smeared with grease in a
negligent manner. 315.
Where an intending passenger
was injured while attempting to
board a car before it had come to
a standstill. 327.
STUDENTS—
As to right of, to vote — see Elec-
tions (Political).
SUMMONS—
Where a proceeding in error is
brought against a deceased defend-
ant, the substitution of his execu-
tor and waiver of summons by
him does not give the circuit court
Jurisdiction. 45.
Service upon the chief clerk of
the superintendent of a railway is
not service on a chief oflBcer, and
where such service is had upon a
petition in which the wrong com-
pany is named as defendant, the
substitution of the name of the
proper company as defendant and
the amendment of the return of
summons to conform thereto, is in-
effectual to bring the proper party
into court. 69.
Service by publication can not
be objected to for defects, when.
401.
SURETIES—
In the absence of a showing of
an abuse of discretion, the sure-
ties of a defaulting contractor for
public work will not be heard to
complain because the contract was
relet to the next lowest and best
bidder and the loss thereby sus-
tained was taken as the measure of
their liability. 240.
A surety on a bail bond who de-
sires to surrender the defendant
is not discharged from further lia-
bility on the bond until the court
accepts said delivery, and the only
evidence of delivery is the record
of the court. 367*
TAXATION—
The exemption from taxation of
property belonging to colleges and
academies, provided by Section
2732, extends to all buildings and
lands that are with reasonable cer-
tainty used for furthering or car-
rying out the necessary objects and
purposes of the institution; resi-
dences occupied by the president,
professors and janitor and vacant
land from which no revenue is
derived are exempt, but land
used for agricultural purposes or
pasturage or land used for a
pumping station from which water
is furnished for a consideration
to persons outside the college com-
munity is taxable. 1.
Traffic in non-intoxicating li-
quors is not subject to the Dow
tax. 113.
The fact that sales of intoxica-
ting liquors are made in connec-
tion with an illegal business does
not bar the state from enforcing
collection of this tax. 238.
The purchase of a few pints of
beer at a time and the sale of it
at a profit constitutes trafficking
in intoxicating liquors as defined
by the statute and renders the
seller liable to payment of the tax
on trafficking in spirituous, malt
and other intoxicating liquors. 238.
Payment of taxes under a mis-
take of law but with knowledge of
the facts; • no recovery can be had.
270.
TESTIMONY—
See Evidence —
TIME—
Which must intervene between
the filing of petitions under Sec-
tion 1 and Section 2 of the Jones
residence local option law. 166.
TITLE—
Title maj be obtained bj adrene
poMeMioD as against a oorpora-
tUm; it will be beld to baTe been
wo obtained wbere tbe probabilities
aa to the situation bear oot tbe
poaftiTe testimonr of the plaint-
iff aaaerting poMcaaion. 209.
To part of the Ohio canal, con-
veyed by the Goremor of the state
to the city of Cleveland and leased
by tbe city to a railway company;
limitation npon the grant author-
ized by 69 O. U, 182.
Question as to, in a forcible en-
try and detainer suit; enforce-
ment of Judgment may be enjoined
until issue as to title has been de-
termined; right to declare for-
feiture of lease for failure to pay
rent waived by failure to make
demand. 399.
A showing of possession under a
contract of purchase is a complete
defense to an action in forcible
deUiner; for the purpose of show-
ing the nature of the possession it
is competent for the defendant to
offer in evidence his contract of
purchase; for failure to perform
some of the conditions of the con-
tract the plaintiff must have re-
course to a suit in ejectment. 431.
Of intangible property; an in-
junction against a custodian gives
to the court such control of the
property as autborizies a decree
transferring the title from the
owner of the property before the
Injunction issued to another party
to the suit who has been duly
served with summons. 460.
May be quieted in the lessor of
an oil and gas lease, where the
term of the lease as extended ex-
pired before the test well was
completed, notwithstanding the
failure to complete the well was
due to an accident to the drilling
apparatus. 686.
TORT—
An assault by a conductor of a
railway train upon a passenger,
whose conduct is peaceable and
who Is not violating any of the
mles of the company, win be lidd
to have been within the scope of
his anthorit J and to have rendered
the company liable for punitive as
well as actual damagea 177.
A covenant by a plaintiff that
he will not sue one Joint tort
feasor is not a bar to an action
brought by him against anc»ther
Joint tort feasor. 234.
Where the Jury finds that the in-
Jury was due to the neglig«ice of
a tort feasor who is not a party to
the acti<Hi, and that the defendant
was not negligent, the verdict
should be for the defendant. 234.
A tort feasor can not be held
for the fees of the attorney who
represented tlie injured party,
where the settlement was made di-
rectly with the person injured
and he has been paid the full
amount agreed upon. 496.
TRACTION COMPANIES—
See Stbeet Railways.
TRADE NAMES—
Where a man named French has
used the word "French" for a
long period in connection with the
manufacture and sale of ice cream,
the use of that word by a competi-
tor whose name is not French and
who is not a Frenchman may be
enjoined. 134.
TRANSCRIPT—
Failure to file a transcript in
the circuit court of the docket and
Journal entries in the case until
after expiration of four months
from the rendition of the Judg-
ment, or for more than four
months after the filing of the peti*
tion In error, deprives the court
of Jurisdiction. 362.
TRAVELING SALESMAN—
While a traveling salesman,
charged only with the duty of sell-
ing goods, has no power to modi-
fy a contract made for his employ-
er, it is possible that he has ren-
dered services for his employer
in the way of adjusting differences
arising in the adjustment of the
INDEX.
649
contractual relations which are not
in his ordinary line of duty. 243.
TRIAL—
Settings and continuances are
largely matters of Judicial dis-
cretion to which error will not lie
in the absence of a showing of
abuse of discretion. 248.
It is within the discretion of a
trial judge to permit the re-open-
ing of a case at any time before it
is finally closed and let in testi-
mony In chief, but where that has
been done it is error to refuse to
permit the defendant at least a
reasonable time to recall his wit-
nesess and make answer to the new
evidence. 486.
Misconduct of counsel by mak-
ing improper remarks in his argu-
ment to the Jury is ground for a
new trial, where an excessive ver-
dict is returned. 551.
TRUSTS—
Creation of a trust in funds ex-
pended on a periodical and con-
tributed in reliance on the trust to
increase the value of the periodi-
cal; estate of donor of periodical
held not entitled to an account-
ing of profits. 241.
A trust relation is created be-
tween a bank holding a note for
collection and the maker of the
note, where the securities pledged
for payment of the note are sold
and purchased by the bank itself,
when. 529.
ULTRA VIRES—
The guaranty of the bonds of a
coal mining company by a rail-
way company is ultra vires, as is
also such guaranty by competing
or parallel railways, where the con-
sideration is an equal division be-
tween them of the freight to and
from such mines. 49.
UNFAIR COMPETITION—
Where a family named French
has carried on a dairy and milk
business for a great number of
years under their own name, and
more recently have built up in con-
nection therewith an extensive
business in ice cream, an injunc-
tion will lie against the use of the
word "French" in connection with
an ice cream business carried on
by one whose name is not French
and who is not a Frenchman, but
whose manifest purpose is to at-
tract trade by creating a false im-
pression as to his own identity.
134.
VACATION OF STREETS—
See STREETS.
VACCINATION—
Failure to comply with a rule
of the board of education requir-
ing, does not render liable to con-
viction under the compulsory edu-
cation act a parent whose child
has been excluded from school for
that reason. 33.
VALENTINE ANTI-TRUST LAW-
See Monopoly.
VARIANCE—
Between the allegations of the
petition and the proof is not ma-
terial, when having reference to
the location of an unguarded re-
taining wall which ran so close to
the sidewalk that it was supposed
to be within the line of walk and
over which wall the plaintiff fell
and was injured. 285.
Between the allegations of a
petition and the evidence subo-
rn itted, as to whether the note
sued on had been paid or was with-
out consideration. 496.
Between allegations and proof as
to the cause of an explosion of
molten brass contained in a cru-
cible. 526.
VEHICLES—
An ordinance imposing a license
fee for the use of vehicles on the
streets is rendered invalid by pro-
viding unequal fees for vehicles
of the same. class. 273.
VENDOR AND PURCHASER—
Strict compliance required as to
statutory provisions relating to
conditional sales; filing of ven-
INDBX.
dor's affldETlt on a separate sheet
renders a contract of conditional
sale void. 16.
Where an attempt is made to
dedicate a street for a proposed
village, but before the village is
organized the owner conveys the
property to a purchaser by deed,
the vendee and those after him
take a good title as against subse-
quent claims by the village. 309.
VERDICT—
Errors of law, if any occurred,
are not material, where the verdict
is fully sustained by the evidence.
48.
Will not be set aside because of
the discovery that one of the Jury
had recovered a verdict In a simi-
lar case against the same defend-
ant municipality, where there was
no examination made by counsel
for the municipality of the Jury be-
fore going into the trial. 212.
Should be directed for a defend-
ant railway company in a crossing
accident case when it appears that
the decedent was familiar with the
crossing and schedule of the trains
and that others similarly situated
saw the approaching train in
ample time to have avoided the ac-
cident 260.
A street railway company is en-
titled to an instructed verdict in
its favor in an action for injuries
sustained by one riding in a wagon
which collided with an electric car
at the intersection of two streets.
266.
Where in favor of a motorman
injured in a collision, is not sus-
tained by evidence which shows
that he left the meeting point on
a mere assumption that the track
was clear. 259.
A verdict of $3,500 damages is
not excessive where the plaintiff
is a woman who slipped on one of
the defendant street railway com-
pany's rails which had been
smeared with grease at a street
crossing, and as a consequence of
her fall suffered a miscarriage. 315.
A trial court is without author-
ity to add interest to a verdict as
prayed for in the petition, where
the Jury has failed to include in-
terest; where this has been done
a reviewing court will modify the
Judgment by deducting the inter-
est thus added. 463.
A verdict of $3,500 for injuries
to the driver of a team is excessive,
where it appears that at the end of
six weeks he returned to his work
and was employed steadily there-
after. 661.
Verdicts must be clearly based
on the evidence and the law. 551.
Misconduct of counsel in mak-
ing improper remarks during his
argument to the Jury will be ac-
cepted as the explanation of an
excessive verdict, when. 551.
VILLAGE—
Where an attempt is made to
dedicate property for street pur-
poses for a proposed village, but
before the village is organised the
owner conveys the property to a
purchaser by deed, the grantee
and those after him take a good
title as against the claims of the
village. 309.
WAIVER-
Of service of summons In a pro-
ceeding in error by the attorney
of the deceased defendant does
not give the circuit court Juris-
diction. 45.
Where no waiver is pleaded as
to the most important of the
breaches of a contract, it is error
to charge the Jury that the defend-
ant had no right to rescind the
contract If he had waived all the
breaches of its material provisions.
173.
The right to declare a forfeiture
of a lease for failure to pay rent
is waived by a failure duly to
make demand according to law.
399.
An averment that all the condi-
tions of a policy of life insurance
were performed is inconsistent
with a subsequent averment that
INDBX.
661
the condition as to proof of death
had been waived; and in the ab-
sence of any averment of an ex-
cuse for non-performance, or any
inference to be drawn from the pe-
tition that there was such an ex-
cuse, evidence can not be oftered
on the question of waiver. 411.
Waiver for a time of a cove-
nant against under-letting; cove-
nant can not then be insisted upon
except after due notice of such in-
tention. 570.
WARRANTY—
Of goods; a buyer is not bound,
before bringing suit on a breach of
warranty, to ship out the goods he
has still remaining on hand with
the accompanying risk of injury
to his trade, after a reasonable
test has made it apparent that the
goods are of inferior quality. 243.
WATER AND WATBR-COURSBS-
Water thrown upon lands of the
plaintiff as a result of negligent
construction of a railway bridge;
company liable in damagees, when.
185.
Where it is shown that an in-
creased flow of surface water had
been thrown upon the premises of
the complainant, it is immaterial
whether or not the wrong was due
to negligence or otherwise; the
measure of damages is the cost of
restoration of the property to its
original condition, and not cost of
restoration and also cost of re-
pairs. 220.
WIDOW—
Where the probate records as to
an election under a will have been
destroyed, a presumption arises
that the widow elected to take the
more valuable estate. 129.
«
A devise of the entire estate to
wife and child as under the law,
with the provision that the wife
shall take all in the event of the
death of the child without issue,
vests the widow with the entire
property in fee simple as by execu-
tory devise upon death of. the
child. 129.
WILLS—
An order admitting a will to
probate is prima facie evidence
only of its validity, and in an ac-
tion to contest the will argument
to the jury as to the experience of
the probate judge who admitted
the will to record and that it would
be presumptuous for the Jury to
disagree with him and set' the will
aside constitutes misconduct preju-
dicial to the rights of the contes-
tants and requires that a judgment
sustaining the will be reversed. 8.
A charge of court which defines
mental capacity suflicient to make
a will as, "capacity enough to at-
tend to ordinary business, and to
know and understand the business
he was engaged in," lacks essential
requisities and is prejudicial; de-
gree of comprehension and under-
standing necessary to constitute
testamentary capacity; whether
eccentricities, peculiarities and de-
lusions have affected either the
natural. or selected objects of the
testator's bounty or interfere with
his testamentary capacity is a
question for the jury. 8.
Where it appears that a testa-
tor was uncertain as to whether
certain relatives were living or
dead, it will be presumed that he
intended by the use of the words
"next of kin" to designate a par-
ticular class of persons related to
him by an equal degree of consan-
guinity, when. 72.
Where the probate records have
been destroyed by fire subsequent
to the probate of a will and in the
absence of direct evidence, a court
will presume that the required ci-
tation was issued to the widow and
that she elected to take the more
valuable estate. 129.
Where an estate was devised to
wife and child in the same pro-
portion as under the statute, and
further provided in case of the
death of the child without issue
the estate should go to the wife as
her separate property, the widow
takes the property in fee simple
by way of executory devise. 129.
662
INDBX.
Where a father, after executing
a will containing a provision for
all his children, accommodated
one son with a sum of money, tak-
ing therefor a receipt in the form
appearing In this case, the amount
so furnished was properly charged
against the devise to his son. 158.
Where property is devised by
will to a son, and six years later
the same property is conveyed to
the same son by deed, the deed will
not be set aside on the ground of
undue influence or lack of mental
capacity, where no doubt existed
in these respects at the time the
will was executed. 180.
If an executor defends in an
action to set aside the will, and the
action results in sustaining the
will, he may be allowed a reason-
able amount for counsel fees in
that behalf; where the contract
with counsel was on the basis of
a contingent fee, the allowance
will be made more liberal. 340.
WORDS AND PHRASES—
Meaning of the word ''use"
where referring to the use of
streets by motor vehicles. 23.
The words "next of kin" desig-
nate a particular class, related to
the testator by an equal degree of
consanguinity, when. 72.
Meaning of the word "others"
as used in the Dow law taxing the
sale of intoxicating liquors. 113.
The word "other" may refer to
articles specified in general terms.
or it may refer to articles of the
same kind as those generally de-
scribed. 113.
Meaning of the word "owner" as
used with reference to a street as-
sessment 123.
A definition of "ordinary care" is
not erroneous because it applies to
a class rather than a particular
individual. 204.
The phrase "other employes" as
used in the county officers' salary
law includes court constables. 267.
The words "or other purposes"
as used in 69 O. L., 182, with refer-
ence to a grant of a part of the
Ohio canal, means simply "other
similar purposes." 321.
Meaning of the words "the in-
sured" as used in a fire insurance
policy containing what is known
as the union mortgage clause of
the standard policy of New York.
364.
The word "at" where used in a
contract is suitable to express
"value" as well as "rate." 459.
Meaning of the words "impos-
sible" and "causes beyond con-
trol" as used in a coal mining con-
tract 465.
Meaning of the word "holder,"
where used with reference to a
promissory note. 529.
A temporary scaffold, erected in
sections as a building progresses.
is not an "appliance" within the
meaning of Section 4238o. 567.
I '
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