author: SHIELDS, J.

text:
    NEGLIGENCE — STREET RAILWAYS.
    [Stark (5th) Court of Appeals,
    February Term, 1917.]
    Powell, Houck and Shields, JJ.
    Northern Ohio Trac. & Light Co. v. Margaret Schrock.
    1.- Proof of Premature Starting of Interurban Car While Passenger Alights at Regular Stopping Place Justifies Verdict for Injuries.
    A conductor of an interurban car discharging passengers at regular stopping places being hound to observe that passengers alighting therefrom are safely discharged before starting the car in motion again, a verdict in favor of a passenger injured by the alleged premature starting of an interurban car while she was in the act of alighting at a regular stopping place will not be set aside on error where it appears from the record that she had twice notified the conductor of her place of destination, that the conductor called the stop in question and stopped the car and that the car started again while she was descending the rear steps thereof, especially since the record fails to show that the conductor and motorman exercised such degree of care toward the passenger at the time she started to leave and alight from the car as the rule above required.
    2. Special Instruction as to Passenger’s Duty in Alighting from Interurban Car at Regular Stopping Place Cures Defect in Summary of General Charge.
    ■A special instruction that a passenger on an interurban car, attempting to alight therefrom at a regular stopping place, “was under legal obligation to use ordinary care to preserve herself from bodily harm and injury * * * while alighting therefrom,” and if she was negligent in the performance of this duty and such negligence either directly and proximately caused her .fall or in conjunction with the traction company’s negligence, helped or contributed to cause her injuries she is not entitled to recover, covers any defect in the failure of the summary in. the general charge, specifically to call attention to her duty in alighting from the ear.
    3. Verdict of Jury not Reversed as Against Weight of Evidence by Number of Witnesses Testifying Adversely in the Case.
    A verdict in an action for negligence in prematurely starting an in- ' terurban car,, while a passenger is attempting to alight therefrom, will not be set aside by. a reviewing court if the plaintiff appears to have given a natural and reasonable narration of the acts causing the injury, it is the province of the jury to weigh the evidence and determine the credibility of the witnesses, appearing at the trial, and they are not controlled by the number of witnesses testifying to the fact in issue.

      ERROR.

      WeUy & Burt, for plaintiff in error.

      Webber & Turner, for defendant in error.
   SHIELDS, J.

This action was brought in the court of common pleas by Margaret Schrock to recover damages from the Northern Ohio Traction & Light Co. for injuries claimed to have been sustained by her on December 27, 1915, through the alleged carelessness and negligence of said company in the operation of one of its local intcrurban passenger cars on which she had taken passage in the city of Canton at the public square in said city to ride and to be discharged from said car at what is known as Wendell Place in said city, a regular stopping place, and of which she notified the conductor at the time of boarding said ear, and again notified him before said car reached said Wendell Place, in this: that as she was in the act of alighting from said ear at said Wendell Place after said ear had stopped, and while exercising due care, said company through its agents’ and servants’ carelessness and negligence caused said car to be started forward suddenly whereby she was thrown violently from the steps of the rear platform of said car to the brick-paved street at said place, thereby causing her permanent injuries to her damage in the sum of $10,000.

The defendant company answered said petition, first, denying generally the negligence charged; secondly, that whatever injuries the plaintiff may have received were directly the result of her own carelessness and negligence, in this, that the plaintiff carelessly and negligently and without exercising ordinary care alighted from said ear while the same was in motion, and was further negligent in stepping and alighting from said car baek-wardly, which careless and negligent conduct caused or directly contributed to her injuries.

A reply was filed by the plaintiff denying the negligence and contributory negligence charged.

The plaintiff recovered a verdict and judgment against said company for $2250.00.

In the petition in error filed in this court for the reversal of said judgment are many grounds of error alleged, but we will notice only such as were brought to the attention of said court in argument and which include the principal questions saved upon the record.

It was argued that the verdict of the jury in this case is against the manifest weight of the evidence. It will be conceded that if a reviewing court was clothed wdth the prerogative of a jury in passing upon the facts as they appear of record here, where the court has not the opportunity of seeing or hearing the witnesses as they testified upon the witness stand, and where the judgment of the court is based alone upon what the typewritten record contains, there might be some hesitancy in reaching a conclusion that the jury had done full justice to such evidence, under the instructions given by the trial court. In thus speaking we have special reference to the number of witnesses testifying to what they observed immediately before the defendant in error received her injuries. But, as is well known, the number of witnesses to a fact, or to a given state of facts, does not necessarily control the action of juries or determine the rights of parties. Juries are not only the judges of the credibility of witnesses but of the weight to be given to their evidence as well. Applying this rule of law, how does the case stand? The defendant in error here testifies that when she boarded the car in question she notified the conductor that she desired to get off at Wendell Place; that when the conductor took her ticket she again notified him that she desired to get off at said place; that just before said car reached said place the conductor announced Wendell Place when she arose from her seat in said car and walked back toward the rear door, of said car and before reaching said door said car stopped; that she continued her way out of said car on the rear platform to get off said car and taking hold of the hand-rail on the right, she attempted to descend the steps' of said car and v hile in the act of stepping on the second and last step, said car suddenly started and threw her violently off said ear and onto the hard brick-paved street, whereby she sustained severe if not permanent injuries. That she boarded said car, that she told the conductor where she desired to get off said car, that she rose in her seat and walked toward the rear door of said car upon the announcement made by the conductor that Wendell Place was about to be reached, that said ear did stop at Wendell Place and that she attempted to alight from said car at that place by descending the steps thereof and was seriously injured seems to be uneontradicted, the only question in controversy being as to whether or not she descended, or attempted to descend, said car steps and alight from the ear after the same started and when the same was in motion. As stated, she testified that the car was-at a stand-still when she attempted to alight, while several witnesses for the defendant below testified otherwise. Before argument, the following written requests were submitted to the trial court to give in charge to the jury the following special instructions which were so given :

“If you find from the evidence that the sole cause of plaintiff receiving her injuries was her stepping from the car while in motion, if you so find, then I will say to you that this verdict should be for the defendant.”
.“If you find from the evidence that the plaintiff and defendant ivere both negligent and the joint negligence of both directly caused plaintiff’s injuries, then the plaintiff cannot recover and this verdict should be for the defendant.”
“Plaintiff cannot recover herein if she was negligent in alighting from said ear w'hile the same wms in motion, if you so1 find, and such negligence was the direct and approximate cause of her injuries.”

Under these instructions, with the right resting in the jury to pass upon the disputed facts of the case under the evidence of witnesses testifying before them, was not the determination of such facts a finality? We are aware that the action of a jury may be so clearly against the weight of the evidence as to require that such action be set aside, but it is always proper to inquire into the reasonableness of the history of the facts in question and this should not be lost sight of in the final analysis of the case on review where such error is alleged as a ground for reversal. While the plaintiff appears to have given a natural and reasonable narration of the facts of this occurrence, and while we in no wise wish to be understood as discrediting the testimony of other witnesses testifying in the case, we think the solution of the facts in the case properly rested with the jury. Sharing this view, the contention of the plaintiff in error under this specification of error cannot be upheld.

It was also argued that the trial court erred in its charge to the jury and that because of such alleged error the verdict and judgment, in this case should be set aside. On the degree of care due a passenger when aboard and riding on one of the defendant company’s ears, there seems to be no dispute between counsel for the respective parties hereto, but the controversy, seems to arise over the relative rights of such passenger and carrier in the manner such passenger may be let off and discharged from such car at one of the regular stops along the line of the carrier. This question has already been before and passed upon by the courts of this state.

Wilson v. Railway, 57 Bull. 143 (9 O. L. R., 594); affirmed, no op., Wilson v. Railway, 79 Ohio St., 435; Ohio Electric Ry. v. Vaughn, 38 O. C. C. 83 (24 N. S. 298); Stark Electric Ry. v. Fording, not reported.

Application was made in each of the last two eases for an order requiring the court of appeals to certify, both of which were overruled by the Supreme Court. Again, the same doctrine enunciated in said cases is laid down in Thompson, Negligence, Sec. 3520:

“The high degree of care which the law puts upon the carriers of passengers is not fulfilled in the ease of a street railway carrier, unless its servants before putting the ear in motion see and know that all passengers in the aet of alighting have succeeded in doing so in safety, and that no passenger is in such a situation as would be put in peril by! the starting car.”
“It is the duty of the conductor before putting a car in motion to see and know that no passenger is alighting or otherwise in a position which would be rendered perilous by starting the car. ’ ’
“It is not enough that a reasonable time was given to allow passengers to alight; the carrier has no right to put a vehicle in motion and imperil life and limb, although they may have taken an unreasonable time.”

As was said in the Vaughn ease, supra.

“The view we entertain of tbe obligation of the defendant company, under the circumstances detailed in the testimony in the ease before us, is that in discharging passengers from cars at regular stopping places, they should be allowed- not only a reasonable time to alight therefrom, but the duty rests upon the conductor or other employe having charge of such cars to loot to it that such passengers are safely discharged before starting the car in motion again, and if such passengers are in the act of alighting and are exposed to danger, such duty becomes more apparent.”

Applying the rule laid down to the case at bar, does the evidence for the plaintiff in error as given on the trial meet the requirements of this rule ? Conceding that which is claimed for the evidence on behalf of the plaintiff in error, and without here stopping to rehearse it, we think that it fails to show that the conductor and motorman in charge of the car in question, on the day and at the place named, exercised such a degree of care toward the defendant in error at the time she started to leave said car and alight therefrom as the law as hereinbefore indicated requires.

But aside from this, the plaintiff in error claims that the-trial court erred in charging the jury, especially in that part of said charge wherein said court undertakes “to summarize,” as the same appears on p. 502 of the record. If this was the only instruction as applied to the conduct of defendant in error when-alighting or attempting to alight from said car, we would be-disposed to agree with the contention of counsel, but by referring to p. 500 of the record we find that said court did specially instruct the jury as to the degree of care to be exercised by the defendant in error when alighting or attempting to alight from said ear in the language following:

“Plaintiff was under legal obligation to use ordinary care to preserve herself from bodily harm and injury while a passenger on the defendant’s car and while alighting therefrom; if she was negligent in the performance of this duty and if such negligence of hers either directly and proximately of itself caused her fall and injuries, or in conjunction with defendant’s negligence, as hereafter explained, helped or contributed,. directly and proximately, in causing ber fall and injuries, then plaintiff is not entitled to recover and your verdict should be for defendant.”

True, as counsel contend, said Court omitted to call the attention of the jury to the degree of care to be exercised by the defendant in error when she alighted or attempted to alight from said car in the “summary” referred to, but said charge to the jury is to be considered as a whole. As was held in the case of Hollenden Hotel Co. v. Jackson, 38 O. C. C. 540 (22 N. S. 485), afterward affirmed by the Supreme Court without opinion:

“A charge to a jury is to be construed as a whole, and if, construing the whole charge, the law of the case appears to have been correctly given to the jury, and in a way that will reasonably enable them to understand the rules of law which they are to apply to the evidence before them, the charge will not be held erroneous simply because every condition to a recovery or a defense is not embraced in each paragraph, and the paragraph excepted to is not in itself calculated to mislead.” See also Cincinnati Traction Co. v. Dannenfelser, 35 O. C. C. 620 (20 N. S., 553).

As already stated, while the part of said charge referred to by counsel for plaintiff in error might be subject to criticism when taken alone, the whole charge must be read together and when so considered said charge appears to contain a fair and correct statement of the law' as applied to the facts of the case. The court therefore fails to find any error in said charge pre judicial to the plaintiff in error, or in giving to the jury certain special instructions in the several written requests made on be half of the plaintiff below before argument, or in the refusal tc give certain special instructions requested in writing to be giver to the jury by the Court on behalf of the defendant below before argument.

Other errors are alleged in said petition in error, all of which ■we have examined and on such examination we find no such error in the record prejudicial to the rights of the plaintiff in error as to require a reversal of the judgment below, and it therefore follows that the judgment of the court of common pleas will be affirmed and said cause will be remanded for execution.

Powell and Houck, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    INSURANCE.
    [Stark (5th) Court of Appeals,
    January Term, 1916.]
    Shields, Powell and Houck, JJ.
    Milton Coal & Lime Co. v. General Acdt. L. & F. Assurance Corp. Lim.
    1. Reservation of Right to Settle Claim for Indemnity for Injury 'to Employe is Inherent and Absolute. -r
    Under a provision in a contractors’ employers’ liability policy, indemnifying insured against loss for liability for damages imposed by law for injury to an employe caused by negligence, that the insurer “reserves the right to settle any claim or suit,” the right to settle claims or suits, meritorious or otherwise is inherent and absolute; hence the defense that the injury for which claim was made and settlement effected, was not caused by any negligence by insured cannot avail against an action to recover from insured a stipulated sum of money expressly conditioned to be paid before recourse could be had upon .the insurer for indemnity.
    2. Policy Provision Against Waiver Except by Proper Written En-' dosement Precludes Insured's Defense of Waiver Without Such Endorsement.
    Failure of insured’s 'answer to' show written endorsement of waiver of the conditions of a policy, expressly providing that no condition or provision of the policy shall he waived except by written endorsement, signed by the proper managers, and further providing that knowledge possessed by an agent shall not be held to effect a waiver, precludes the insured from asserting that if the claim in question was paid or settled the responsibility and loss would he upon the insurer.
    Error.

      Amerman & Mills, for plaintiff in error.

      Garrett Stevens, for defendant in error.
   SHIELDS, J.

■ Error is prosecuted to the action of the court below in sustaining a motion for judgment upon the pleadings herein, and ihe plaintiff in error not desiring to plead further, judgment was entered on said motion in favor of the defendant in error, and by a petition in error filed herein the plaintiff in error seeks to reverse said judgment.

In the court below a petition was filed by the plaintiff corporation, defendant in error herein, to recover of the defendant below, plaintiff in error herein, the sum of two hundred and fifty dollars under the terms of a certain policy of insurance known as “contractors’ employers’ liability policy,” issued by the plaintiff to the defendant indemnifying the defendant against loss “by reason of the liability imposed by law upon the assured for damages on account of bodily injuries including death at any time resulting therefrom, accidentally suffered or alleged to have been suffered through the assured’s negligence and while this- policy is in force, by any employe or employes of the assured while at or about the places designated in said declarations, or elsewhere, by reason of the prosecution of the work described in said declarations.”

‘ ‘ That there was attached to and made a part of said policy of insurance when the same was issued an indorsement providing that in view of a reduced premium rate for the limitation of plaintiff’s liability, providing that before recourse could be had against the plaintiff under the policy as issued for reimbursement or indemnification for liability for loss, the policy holder, the defendant, must have expended an amount in excess of two hundred and fifty dollars in effecting the settlement of any claim.”
“That on February 1, 1913, said policy of insurance (a copy of which is attached to said petition) was issued by the plaintiff to the defendant upon the payment of a certain advance estimated premium, the balance of said premium or consideration for said contract, to be subject to adjustment as based upon the actual pay-roll of the defendant company, during the life of said policy.”
“That said defendant company was at said time and afterward engaged in the manufacture of gray lime, and the mining of clay and coal, and had in its employ a number of employes, among them one James Lewis, who on March 15, 1913, was injured. That exercising its option contained in said policy of insurance, plaintiff made a settlement of the claim of said Lewis nuainst the defendant company by paying him therefor the sum of three hundred dollars and took a full and complete release of all claims against the defendant company. Acting under the terms of said policy of insurance, the plaintiff thereupon forwarded said release to the defendant company and requested payment of the sum of two hundred and fifty dollars in accordance with the terms of said policy, which was refused, and judgment is prayed for said sum with interest.”

In its amended answer, for a first defense, the defendant admits that said policy of insurance was issued to it upon the-payment of certain premiums specified therein, and that said policy was indorsed thereon as set forth in said petition.

“It admits that about March 15, 1913, the said James Lewis was injured, and that the plaintiff made a settlement with him by paying him the sum of three hundred dollars and secured-from him a full release of all claims against the defendant, but it avers that said injury was not due to any fault or negligence of the defendant but was due solely to the negligence of said Lewis, and therefore there was no liability on the part of the defendant to said Lewis for said injury, all of which was known to the plaintiff wdien it adjusted said claim. That the defendant so notified said plaintiff and .demanded that plaintiff defend against said claim, and further, that said claim was groundless, and that if the plaintiff settled the same the defendant would not'pay any part of said settlement — that said policy was issued to the defendant to cover only such liability imposed by law upon the defendant occasioned by its negligence, and it denies each and every allegation not expressly admitted in said ground of defense.”
“For a.second defense it says that if by the terms of said policy the defendant was obliged to pay any part of the settlement of said claim, which it denies, it was expressly agreed between the plaintiff and the defendant that whatever settlement of said claim was made by the plaintiff it would be made entirely on the plaintiff’s own responsibility, and that the defendant would not be required to pay any part of the same, and with this agreement so made said claim was settled by the plaintiff, and the defendant asked that the plaintiff’s petition be dismissed.”

Upon these pleadings the plaintiff company below claimed it was entitled to a judgment, and upon a motion submitted for ibis purpose, said motion was sustained, as already indicated.. This action on the part of the trial court is assigned as error.

The claim originally made by the defendant in error rests; in a contract in writing between it and the plaintiff in error, a. copy of which is attached to and made a part of the plaintiff’s, petition, and the legal rights of the parties hereto are fixed by the terms of said contract.

The execution and delivery of the policy of insurance by the-defendant in error, together with the indorsement thereon of a reduced premium rate being stipulated for the limitation of the liability of the defendant in error, the payment of premiums thereunder, that said Lewis, an employe of the plaintiff in error, was injured, and that the defendant in> error made settlement with him and procured from him a release of all claims-for damages against the plaintiff in error, are admitted, but the-plaintiff in error makes the claim that it ought not to be called' upon to respond to the payment of the sum of $250, provided for in the policy, first, because said employe was not injured by any act of negligence of the plaintiff in error, which fact was made known to the defendant in error before said settlement was made with said employe; secondly, that it was expressly agreed between said parties that if a settlement was made with said Lewis it should be entirely on the defendant in error’s responsibility and that the plaintiff in error would not be required to-pay any part of said settlement.

1. Looking to the contract, what do we find? Is there anything appearing therein admitting of two constructions, or any doubt or ambiguity arising out of the language employed there-in, affecting the rights of the insured, requiring a construction? In the ease of The Germania Fire Insurance Co. v. Schield, 69 Ohio St. 136 [68 N. E. 706; 100 Am. St. Rep. 663], it is held that

“Policies of insurance like all other contracts, should be reasonably construed, so as to give effect to the express words-, of the parties, and not to defeat their intention.”

The policy of insurance here sued upon in reciting the-conditions upon which it wss issued, and which is made a parfc of said contract of insurance, under condition B therein provides, among other things, that

“The Corporation reserves the right to settle any claim or suit. ’ ’

The language here employed admits of but one interpretation. There is no room for construction, nor is there any limitation of power placed upon the defendant in error as to what claims or suits shall or shall not be settled by it. The defendant in error by the power thus given becomes the sole judge of what shall be done in the premises relating to the settlement of claims or suits, and whatever the nature of the claim, whether meritorious or otherwise, the exercise of the right of settlement inheres in the defendant in error under the terms of said policy. True it may seem that said policy by its terms is a harsh contract, but the presumption is that the plaintiff in error read and understood its provisions before signing it. Indeed there is no claim made that the provisions of the policy were not Understood at the time said contract was entered into. It cannot be overlooked, either, that in contracts of their character the power of deciding whether or not claims shall be adjusted must rest somewhere, otherwise the insurer might be subjected to expensive and vexatious litigation at the arbitrary will of the insured. It would seem, therefore,, that the provision referred to in said contract of insurance was inserted therein to avoid and prevent such litigation. So, then, applying the'rule laid down in the case cited “giving effect to the express words of the parties,” the duty of the court seems plain, and we hold that said clause under said condition B means just what the language therein plainly and unmistakably indicates, henee the claim of the plaintiff in error that the injury received ivas not caused by any act of negligence on its part cannot 'avail as against the exercise of the option to settle said claim by the defendant in error under the provisions of the policy. Had the plaintiff in error elected to surrender and have said policy cancelled, which it had the right to do under condition I) therein, it could then have had full control of said claim, but this it failed to do: at least did not do.

2. But it is contended by the plaintiff in error that after the defendant in error was made acquainted with the eireum-stances under which said injury occurred and that it was not due to any neglect on the part of the plaintiff in error, the defendant in error agreed with the plaintiff in error that if a settlement was made with said Lewis by the defendant in error, that the latter should bear all responsibility and loss for such settlement. The defendant company having accepted and acted under said policy, it was bound by its terms and provisions. Condition L in said policy provides that

“No condition or provision of this policy shall be waived or limited except by written indorsement attached hereto, signed by the United States Managers, or the Assistant United States Manager, nor shall knowledge possessed by any agent or by any other person be held to effect a waiver or a change in any part of this contract.”

An examination of said second defense in said amended answer fails to show that any waiver of the conditions of said jjolicy was indorsed thereon signed by the United States Managers or the Assistant United States Manager, and as against this express provision no alleged agreement of whatever kind would avail to render said provision ineffective.

The judgment of the court of common pleas will therefore be affirmed.

Powell and Houck, JJ., concur.


author: POWELL, J.

text:
    WILLS.
    [Ashland (5th) Court of Appeals,
    April Term, 1917.]
    Powell, Houck and Shields, JJ.
    Clinton C. Ricket, Trustee v. Jay Peck and Elizabeth Peck, et al.
    Trust Estate Descends Upon its Termination and Failure of Trustee to Convey Land for Some Years Thereafter Does not Affect Validity •of Trustee’s Deed.
    Where a will devised to a son of testatrix a life estate in certain land and then created a trust in the remainder to one of three grandsons, providing if he die without children surviving him, the fee shall go to the other two grandsons or their survivor, the fee is vested in and the land descends to the surviving grandson, upon termination of the trust estate even without a deed from the said trustee as provided by will. The fact that the trustee made a settlement of the trust estate some years prior to the execution of the deed to such survivor does not affect the validity of the deed. Hence, a trustee of the surviving grandson being appointed after the original trust had expired and the estate descended has no right to recover possession of the premises in question.
    Error.

      Peter Emslie, for plaintiff in error.

      E. M. Palmer and Wickham & Martin, for defendants in -error.
   POWELL, J.

This was an action in ejectment. The plaintiff filed his petition as trustee of one C. F. Denham, to recover possession of certain real estate described in his petition, now in the possession of the defendants Jay Peck and Elizabeth Peck, and claimed to be owned by them.

The • rights of the parties are all derived from the will of Caroline Ensign, who was the owner of the lands described in the petition, at the time of her death.

Caroline Ensign died testate, July 5, 1895, leaving two sons, Milan Denham and Cornelius Denham, and three grandsons, William Denham, John Denham, and C. F. or Frank Den-ham, sons of the said Milan Denham.

By the terms of her will she gave the east half of the farm: owned by her in this county to her son, Cornelius Denham, in fee simple. To her son, Milan Denham, she gave a life estate to the west half of her said farm, together with certain rights in her personal property, which was left in the hands of her executor for the use and benefit of said Milan Denham during his lifetime.

By Item 5 of her will -she created a trust in the said west half, after the death of Milan, for the benefit of her grandson, "William Denham, and provided that if William Denham should die without leaving children surviving him the said west half should pass in fee simple to her grandsons, John Denham and-Frank Denham, and if either John Denham or Frank Denham should die before the death of said William Denham, without children surviving him, said west half should descend to the surviving grandson in fee simple. .

To carry the trust so created by her in favor of William Denham into effect, she named one, Charles MeClave, as trustee, and the said MeClave was, after her death, duly appointed as such trustee and carried out the terms of such trust until the death of William, when the trust terminated.

Milan Denham died March 9, 1904. John Denham died January 14, 1908, leaving at the death of William Denham, which occurred January 28, 1909, and when said trust terminated, Frank Denham as the only survivor of the devisees named in said will, having an interest in the west half of said farm.

At the death of William Denham, MeClave as trustee filed a final account, March 24, 1909. This account was approved by the court and afterwards, February 25, 1914, MeClave executed a deed, as such trustee, to the said Frank Denham, for the lands in the petition described and in controversy in this proceeding.

The issue presented to the court for adjudication is made by an answer to the petition, in the nature of a general denial of all the material allegations in the petition and amended petition contained. This issue puts the plaintiff upon proof of his title and his right to possession of the lands sought to be recovered.

The evidence adduced and disclosed by the bill of exceptions shows,—

1. A record of the appointment of plaintiff, as trustee.

2. The will of Caroline' Ensign, but not the order admitting the same to probate.

3. The record of the appointment of Charles McClave as trustee for the benefit of William Denham.

4. The final settlement of McClave as such trustee.

The other facts above set forth were agreed to by counsel in open court.

At the close of plaintiff’s testimony, defendants moved that the case be tafeen from the jury and a verdict in their favor be directed by the court. This motion was sustained.

Upon an examination of the record, the court is of the opinion that the will of Caroline. Ensign fixes and determines all the rights of the parties to this proceeding.

Item 5 of the said will creates a, trust, and, as we view it, a trust solely for the benefit of William Denham in the lands described in the petition, and in certain personal property mentioned in said will. At the death of William Denham this trust so created terminated, and by the further provisions of said will the title to said lands passed in fee simple to the said Frank Denham, he being the survivor of the two devisees named to take said title at the death of William without children surviving him.

Nothing remained to be done to carry out the trust so made except the filing of a final account by the trustee, and possibly the execution of a deed by him to the said Frank Denham.

The will provides that a deed should be executed by the said trustee. The court, however, is of the opinion that it matters but little whether or not such deed was made or not, as the will itself was the source of Frank Denham’s title, conveying to him an absolute estate in said west half upon the death of William without children surviving him, and that without the intervention of any trustee.

It is contended that because McClave had made his settlement some years prior to the execution of the deed by him to said Frank Denham, such deed would be without legal effect.

We think this contention is not well taken, and that by analogy to the rule in cases of administrators and executors the authority of a trustee continued even after final settlement, until the duties of such trust as designated in the instrument creating the trust shall have been fully performed.

We cite Taylor v. Thorn, 29 Ohio St., 569, where the court say,- — -“The administrator had not resigned, nor had 'he been removed. Neither his functions nor duties would cease until the estate was fully settled.”

We also cite, McAfee v. Phillips, 25 Ohio St., 374; Weyer et al. v. Watt, Exec., 48 Ohio St. 545 [28 N. E. 670].

The first proposition of the syllabus is as follows:

“1. The authority of an executor or administrator to represent the estate, unless terminated in one of the modes provided by statute, continues until the estate is fully settled. ’ ’

This rule, we think, applies to a trustee appointed by any court of competent jurisdiction, and that if it was necessary that a deed be made by McClave to Frank Denham in order to convey complete title to him, the deed of February 24, 1914, would be effectual for that purpose.

The court is of the opinion that upon the record as presented plaintiff was without any legal right to the possession of the lands sought to be recovered: that while he was appointed trustee, as appears by the record of the probate court of this county, offered in evidence, he was so appointed after the trust had expired; that nothing remained for him to do as such trustee; and that the lands described descended in fee simple to Frank Denham, under the express provisions of the will of Caroline Ensign to that effect.

It appears that the plaintiff is without title to said lands as trustee or otherwise, and without any right of possession, and the court did not err in sustaining the motion to direct a verdict.

Ip. eases of this kind, if the plaintiff is entitled to recover, it is upon the strength of his own title and not upon the weakness of the tille of his adversary, and the plaintiff in this case, having failed to show any title in himself, or right of possession, the court properly instructed the jury to return a verdict dn favor of the defendants, and that judgment we think ought to be affirmed.

Judgment affirmed.

Houck, and Shields, JJ., concur.


author: HUGHES, J.

text:
    EVIDENCE — BILLS AND NOTES.
    [Crawford (3rd) Court of Appeals,
    May 10, 1917.]
    Hughes, Kinder and Crow, JJ.
    Second Nat. Bank of Bucyrus v. New First Nat. Bank of Columbus.
    1. Forwarding Bank Paying Money Upon Forged Indorsement Guaranteeing all Prior Indorsements Required to Pay Correspondent Bank.
    A bank which cashes a draft, upon a forged indorsement of the name of the payee, and forwards the same to its correspondent hank with an indorsement by such forwarding bank, of guaranty of all prior indorsements and receiving credit therefor, will be required to repay the amount to its correspondent bank upon discovery of the forgery, even though said draft had been paid by the drawee and the drawee had been repaid voluntarily by said correspondent bank.
    2. Hearsay Evidence Admissible as Exception to Rule.
    Declarations or statements of a person are admissible in evidence in an action between third parties when it appears: (1) That the declarant is dead; (2) That the facts declared of is in relation to a matter concerning which the declarant was immediately and personally cognizable; and (3) That the declaration was at variance with the interest of the declarant.
    [Syllabus by the court.]
    ERROR.

      Benjamin Meek, for plaintiff in error.

      Edward VollratJi, for defendant in error.
   HUGHES, J.

This is an action to reverse the judgment of the court of common pleas entered upon a directed verdict for the plaintiff at the close of all evidence.

The facts, briefly stated, are as follows:

On the 31st day of October, 1910, the Zanesville & Western Railway Company made a pay roll draft payable to tbe order of James Horton, a supposed employee. Horton was a fictitious perso-n. His name appeared upon the pay roll through the fraud of Louis Irvin who was at the time a clerk in the office of the division engineer at Bucyrus, Ohio.

The division engineer prepared the time sheets for the month.' After signing, approving and sealing them in an envelope, he deposited them in the office mail box to be transmitted to the home office.

Irvin abstracted the envelope from the mail box and after opening the same, wrote in the name of James Horton as an employee, placing opposite his name the amount supposed to have been earned by him during the month, and then replaced the envelope in the mail box.

When the draft was returned, by similar fraud, Irvin abstracted it' from the returning mail, forged the endorsement of Horton and deposited the same with the Second National Bank of Bucyrus, receiving in cash, the amount for which it was drawn.

The Bucyrus bank forwarded it to the plaintiff bank, with all prior endorsements guaranteed over its endorsement, and the plaintiff bank in turn offered it to the Toledo bank and the draft was, by the Toledo bank, presented to the railroad company and paid.

Thereafter the railroad company discovered the fraud and forged endorsement, returned the draft to the Toledo bank and received credit therefor. The Toledo bank in turn returned it to the Columbus bank and received credit therefor, but when the Columbus bank returned it to the Bucyrus bank demanding credit therefor, the same was refused and this suit was to recover thereon.

We have related the history of but a single draft. There were two drafts involved, but the history of one is the history of both.

At the trial, the court permitted a witness to relate a statement made by Louis Irvin, after he had been arrested for the forgery, in which Irvin/stated the facts above chronicled in so far as they concerned his connection with the forgery.

Before this evidence was introduced, it was shown that Irvin was a clerk in the office of the division engineer; that be had access to the mail and that he had died shortly after his arrest.

There are two questions involved for determination.

First. Is the Bucyrus bank liable to the Columbus bank under the above outlined facts? And,

Second. Is the statement of the deceased Irvin, competent ?

Mr. Daniel in his work on negotiable instruments, Sec. 1369 and following, says:

“It is a general principle of law that money paid under a mistake of fact, may be recovered back. And accordingly where one pays money on forged paper by discounting or cashing it he can always recover it back, provided he has not himself contributed materially to the mistake by his own fault or negligence, and provided that by an immediate or sufficiently early notice he enables the party to whom he has paid it to indemnify himself as far as possible. ’ ’

Along this same line it has been held that the action for money had and received, lies in all cases where one has the money of another which he cannot in equity and good conscience retain. It lies, therefore, for money paid on a negotiable instrument by mistake or upon a consideration which has failed because in such case the plaintiff did not intend to give his money to the defendant and later cannot conscientiously retain money for which he has given no equivalent. 3 R. C. L., p. 1291 n. 4.

So also, money paid upon the forged endorsement of a bill or check may be recovered. The holder, whether he endorses the instrument or not, warrants the genuineness of all prior endorsements. If, therefore, an instrument upon which the name of a prior endorser has been forged is paid, the amount may be recovered from the party to whom it has been paid or from any party who endorses it subsequent to the forgery. 3 R. C. L. p 1296 n. 11.

And so where a stranger to the instrument forges the payees endorsement thereto and transfers it to another who presents it to the drawee and receives payment, it is held, that the payee ■may recover the amount from the person thus receiving payment.

Hence, if the facts in this case have been proved by competent evidence, the judgment of the trial court is correct.

Was the evidence of the statements of Louis Irvin, deceased, competent ?

. This evidence is clearly hearsay and if competent it must come within one of the exceptions to the general rule that hearsay evidence is not proper evidence.

It has been laid down in the text books that an exception to the hearsay rule admits declarations of deceased persons under certain circumstances. Greenleaf, Evidence, Secs. 147, 148.

“But, to render them admissible, it must appear that the declarant is deceased; that he possessed competent knowledge of the facts, or that it was his duty to know them; and that the declarations were at variance with his interest. When these circumstances concur, the evidence is received leaving its weight and value to be determined by other considerations.
“The ground upon which this evidence is received is the extreme improbability of its falsehood. The regard which men usually pay to their own interest is deemed a sufficient security, both that the declarations were not made under any mistake of fact or want of information on the part of the declarant, if he had the requisite means of knowledge, and that the matter declared is true. ’ ’ 1

This rule has in a way, been recognized by our Supreme Court in the case of Bird v. Hueston, 10 Ohio St., 418.

In a well considered ease, Mahaska v. Ingalls, 16 Ia. 81, the court has held that verbal declarations are receivable in evidence in an action between third parties when accompanied by the following prerequisites: First, that the declarant must be dead; second, the declaration must have been against the pecuniary interest of a declarant at the time it was made; third, the declaration must be of a fact in relation to a matter concerning which the declarant was immediately and personally cognizable; and, fourtfi, tbe court should be satisfied that the declarant had no-probable motive to falsify the fact declared.

We hold, therefore, that the evidence of the declarations of Louis Irvin, deceased, were properly admitted.

It must follow, therefore, that the judgment of the trial court is correct and must be affirmed.


author: BY THE COURT.

text:
    BREACH OF MARRIAGE PROMISE.
    [Stark (5th) Court of Appeals,
    February Term, 1917.]
    Powell, Houck and Shields, JJ.
    Robert R. Jacob's Admr. v. Ellen W. Canine.
    1. Contract to Marry, not Intention to Marry Residing in Their Minds, may be Inferred From Acts, Declarations and Conduct of Parties.
    In an action for breach, of marriage promise, an instruction stating that contracts of marriage may be inferred from the acts, declarations and conduct of the parties, such as would lead reasonably prudent men to .believe and infer that the parties intend marriage, “then the jury would be justified in concluding under all the circumstances that a contract of marriage had been entered into between the parties,” means that marriage contracts may be inferred from such acts, declarations and conduct of the parties, and not from the evidence that the intention to marry resided in their minds.
    2. Instruction to Jury, and Amendment of Petition After Verdict In Breach of Marriage Promise for Exemplary Damages Based on Ruthless and Wanton Conduct not Erroneous.
    The general rule in breach of marriage promise limiting recovery to pecuniary loss sustained does not apply when the promise is broken abruptly or under humiliating circumstances; hence, instructing the jury that if the making and breaking of the marriage promise was ruthless and wanton exemplary damages may be awarded is not erroneous, notwithstanding plaintiff’s petition contained no allegation for such damages and no intimation was given by counsel during tidal that such damages would be or were claimed. A trial court may sua sponte, even after verdict challenged, by virtue of Sec. 11363 order an amendment to plaintiff’s petition to conform to the facts which the evidence tended to prove.
    3. Failure to Exercise Due Diligence Defeats'New Trial Based on Newly Discovered Evidence.
    One seeking a motion for new trial upon the ground of newly discovered evidence, pursuant to Sec. 11576 G. C., having charged and offered evidence of the adventuresome character of plaintiff in a breach of marriage promise action, is presumed to have notice of the range of testimony the charge would undoubtedly take and prepare his case accordingly, and his counsel having cross examined the witnesses upon whose proposed testimony the newly discovered evidence is alleged to be based, when their depositions were taken and later met and interviewed them before the trial, knowing that plaintiff was disappointed by their testimony in their depositions taken, cannot assert due diligence in securing such evidence, without which the motion cannot be sustained.
    4. Admissions of Plaintiff to Third Parties Tending Merely to impeach Evidence Offered on Trial is Cumulative and insufficient to Sustain Motion for New Trial for Newly Discovered Evidence.
    Newly discovered evidence upon which a motion for new trial is based under Sec. 11576, G. C. based on admissions made to the witnesses by plaintiff in an action breach of marriage promise affecting her relations with defendant must be construed by the rule that admissions made to third parties are to be scrutinized closely and received with great caution, and if the effect of such evidence would be at most merely to discredit or impeach plaintiff on matters concerning which evidence had been given on the trial, such evidence would be cumulative and not material to the issue and as such insufficient to sustain such motion.
    5. Death of Defendant Breach of Marriage Promise After Adverse Verdict and Motion Filed for New Trial not Abatement.
    The death of defendant in a breach of marriage promise action after adverse verdict and motion for new trial filed, does not work an abatement of the action under Secs. 11397 and 11235 G. C.
    ERROR.
   BY THE COURT.

This is an action brought in the court below by Ellen W. Canine, plaintiff below, to recover $50,000 damages of Robert R. Jacob, defendant below, for an alleged breach of promise of a contract of marriage.

The petition of the plaintiff is in the usual form and the answer of the defendant is a general denial. The trial resulted in a verdict and judgment in favor of the plaintiff in the sum of $10,500, and a petition in error is filed in this court to review the proceedings of said trial and to reverse said judgment.

Eighteen separate grounds of error are alleged in said petition in error for said reversal, and while we will consider such grounds of error as were specially urged in oral argument upon this court in behalf of the plaintiff in error, it will be apparent that for want of time and space for an opinion, several of the allegations of error therein can only be generally referred to.

First, as to the specification of error -under sub. Nos. 1, and 2 relating to the admission and rejection of evidence during the trial. Under this head we are not cited to any specific instances in the record where the rulings of the court- below are claimed to have affected the interests of the plaintiff in error pre-judicially in either of the respects mentioned, hence we were obliged to rely upon a reading of the record to determine whether or not there is any good and sufficient ground for the contention made. In a volume covering several hundred pages of testimony, it is not unnatural! to find more or less technical errors and we find this record not to be an exception to the rule, and we further find that in some instances the court below admitted and rejected said testimony, which action of said court was erroneous, but not prejudicially erroneous, and we therefore hold that such rulings of said court afford no ground of error for which the judgment below should be set aside.

As to the 'specification of error under sub. Nos. 3 and 4 in respect to the court below overruling the motion of the defendant below, submitted at the close of the ease of the plaintiff below, and again renewed at the close of all the^evidence in the case, an examination of the entire evidence in the bill of exceptions is found not to be necessary to satisfy the court that under the well recognized rule of law in this state mating it the duty of the (rial court to submit to the jury for determination all disputed questions of fact arising out of the trial of a case, under proper instructions, 'the trial court in this instance did not commit error in overruling said motion. In thus holding we recognize the faith of the agreement made between the parties hereto as tha same appears on page 384 of the record whereby the question of a common law marriage was to be eliminated from the case, and which was so eliminated by an express instruction of the trial court to the jury as the. same appears on page 385 of the record, and which is as follows:

‘ ‘ The question of a common law marriage you will not con-. sider in any way, shape or form, as that has been taken out of the ease by agreement of counsel for both plaintiff and defendant °1

T-Jence our examination of the record evidence was not made without a due observance of the limitations of this agreement and the same will be observed in the further consideration of the case.

As to the specification of error under sub. No. 5, it is urged that the court below erred in its charge to the jury. Among other things, on p. 391 of the record said court instructed the jury as follows:

“The consideration of a contract in law is mutuality of promise, whereas a consideration in marriage is the affection between the parties; but we must say that every civil contract is founded upon a consideration, and so we say in law that the consideration for a contract of marriage is a mutual promise made by each of the parties. In testing this kind of a contract as we do ordinary civil contracts it is essential to constitute a contract to marry that there must be a. meeting of the minds of the contracting parties, that is, there must be an offer on the one side and an acceptance on the other. Also contracts of marriage may be inferred from the acts and the declarations and from the conduct of the, parties. That is, if the acts and declarations and conduct of the parties are such as would lead reasonably prudent men to believe and infer that the p'arties intend that they should become man and wife then thé jury would be justified in concluding under all the circumstances that a contract of marriage had been entered into between the parties. ’ ’

It is the two latter clauses of said paragraph that are ob jeeted to as being erroneous, commencing with “Also contracts of marriage may be” etc., and running to the end of the paragraph. Referring to said instruction, counsel for plaintiff in error in Üieir behalf say:

“In the instruction given, the trial Judge distinctly told the jury that if it is found from the evidence that the intention to marry resid'ed in the' minds of the parties the jury would be justified in finding that a contract of marriage had in fact been entered into. ’ ’ It is said that the language used in a charge to a jury is sometimes capable of more than one construction, but we do not think it too much to say that a fair and reasonable construction of the language used in the foregoing paragraph, admits of but one meaning, and one in hai’mony with the other parts of said charge on the same subject. Counsel for plaintiff in error contend that a construction and meaning of said charge is as above stated by them. We do not so construe it, and applying the rule of construction mentioned, we think it meansi that marriage contracts may also be inferred from the acts, declarations and conduct of the parties and not from the evidence that the intention to marry resided in their minds. As laid down in Yol. 4, R. C. L. Sec. 26,
“The promise may be inferred from the circumstances which usually attend an engagement. And so it has been held that a promise may be inferred from proof of intimate and frequent association at the time of and prior to the engagement -, of the voluntary admissions and declarations of the defendant, including his admissions made by letter and declarations and admissions of the plaintiff made in the defendant’s presence, and preceding the alleged breach; or of acts or conduct of the plaintiff in the presence of the defendant, her declarations or statements made in his presence; and, in certain cases, the acts and declarations of the plaintiff, without the presence of the defendant, such as her preparations for the marriage, and communications by her to her own faimly of the fact of her engagement to marry. ’ ’

This view is sustained by many decisions in this state and elsewhere. In thus instructing the jury we do not think the trial court erred to the prejudice of the plaintiff in error.

It is also contended that the court below erred in charging the jury upon the subject of punitive damages. Counsel for plaintiff in error say that plaintiff’s petition contained no allegation for such damages; that no intimation was given by counsel for the plaintiff during the entire trial that such damages would be claimed, or were claimed; that no request was made by the defendant in error for any charge upon said subject but that the trial court charged the jury on said subject as the same appears-on p. 397 of the record:

“If the defendant’s conduct in the matter of promise and the breaking of it,.if you find it was ruthless and wanton toward plaintiff, you may if you think it proper under all the circumstances of the case, in addition to compensatory damages award exemplary damages in such sum as you may think proper under the circumstances.”

We do not understand that said charge in form is objected to or that the same is not proper, if the question of punitive damages was in the case, but counsel for plaintiff in error contend that such damages have no place or right to be considered in said case and therefore the court below erred in so instructing the jury. And in this connection, also, the right of the trial court sua sponte to consider an amendment to be made to the plaintiff’s petition after verdict is challenged.

. Strictly speaking the basis of recovery for damages in a civil' action is the cause of action set up in the plaintiff’s petition, but the evidence in the trial of such case may lead to such developments, apparently outside of the strict letter of the petition, as-to require the court to instruct the jury as to the legal effect of such evidence. For instance, in an action for damages for assault and battery it is held in the case of Roberts v. Mason, 10 Ohio St., 277, that where an action “involves the ingredients of fraud, malice or insult, a jury may go beyond the rule of mere compensation to the party aggrieved and award exemplary or punitive damages.” This case was for damages for assault and battery only, but it appears that the scope of the evidence was such as to show the existence of malice .and insult, and the jury were instructed that if the circumstances as shown in the evidence warranted it, they might award exemplary or punitive damages in addition to compensatory damages. No special averment of exemplary or punitive damages in the petition was made in that case, but the elements of malice and insult appear to have been developed in the proof during the progress of the trial. So> in the case before us, if the petition charged and the evidence disclosed wantonness or malice or other grounds of aggravation; in the relations of the plaintiff in error toward the defendant in error, the damages would not be confined to the actual pecuniary loss suffered by the defendant in error, but the jury would be authorized to allow exemplary or punitive damages in addition to compensatory damages, and in a proper case, and the evidence justified it, it would be tbe duty of tbe trial court to instruct tbe jury upon the same, even in the absence of any request on tbe part of counsel, the duty of the trial court being to instruct the jury upon tbe law arising out of the pleadings and evidence in the case. And in a proper case, the trial court may -charge that vindictive damages are recoverable. In this connection, we cite the ease of Duvall v. Fuhrman, 2 Circ. Dec. 174 (3 R. 305), which was affirmed, no op., by the supreme court, Duvall v. Fuhrman, 19 Bull. 424, Judge Cherrington speaking for the court, after discussing the right of the jury to consider the property rights of the defendant in that case, after the breach of the contract, says:

“It is well settled that the jury may give punitive damages, on account of the conduct of the defendant subsequent to the breach of the contract, even on account of the defense he sets up, the testimony he gives, and the manner in which he conducts the defense before the jury. It was claimed by the plaintiff below that the conduct of the defendant below was peculiarly insulting on the trial, and intended to degrade and disgrace her. If the jury so believed, they might give vindictive damages without any regard to his property, no matter when it was acquired. ”

True, the general rule is that in a case for breach of contract the party’s recovery is limited to the pecuniary loss sustained, but it is held that this general rule does not apply to a case for breach of promise of marriage, wherein if the promise is shown to have been broken abruptly or under humiliating circumstances, or if the defendant acted maliciously and in a way to injure the plaintiff’s ebaracter, punitive damages may be recovered. Johnson v. Travis, 33 Minn. 231 [22 N. W. 624]; Thorn v. Knapp, 42 N. Y. 474 [1 Am. Rep. 561]; McPherson v. Ryan, 59 Mich. 33 [26 N. W. 321].

Here the jury were instructed upon the subject of punitive damages on the theory no doubt that- the evidence called for such instruction, although it appears that an amendment was ordered to be made to the plaintiff’s petition having special reference to this subject of damages, after trial, presumably to conform the same to the case made by the evidence, under statutory authority, as claimed, and to which reference will hereafter be made.

Here the record shows the entire history of the incidents leading up to this suit, including the trial, and it was for the jury to say what the conduct of the plaintiff in error toward the defendant in error was, whether or not under all the evidence there was good and sufficient cause shown to authorize the application of the rule of law given to them in charge by the court,, and if so, t'o what extent, in the exercise of a sound discretion.

As was said by the distinguished Judge in announcing the opinion in the ease of Roberts v. Mason, supra, as illustrating the rule of law therein laid down:

In a ease of this hind, twelve intelligent and impartial men, acting under oath, and subject, in a proper case, to the control of the court, are not likely to do any great wrong; and it seems; to us that the power which this rule confers upon a jury, may, in practice, operate as a saliitary restraint upon the evil passions of bad men.”

We think the instruction given was proper and in so giving" it the trial court did not commit prejudicial error to the cause or interests of the plaintiff in error.

It is also argued that the court below erred in ordering upon its own motion, after verdict but before the journal entry overruling the motion for a new trial was filed, the plaintiff’s petition to be amended by inserting in the end of the twelfth line of the second page thereof the following;

“and that each and every act of defendant in promising to* marry plaintiff and his subsequent refusal to marry her are ruthless and wanton. ”

This amendment, it is claimed, was ordered to be made under favor of Sec. 11363 G. C.,' which provides;

■ “Before or after judgment, in furtherance of justice and on such terms, as it deems proper, the court may amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party •or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding to the facts proved. When an action or proceeding fails to conform to the provisions of this title, the court may permit either to be made conformable thereto, by-amendment.”

Whenever before the courts for construction, it has always been held that this statute gives to the trial court discretionary power over amendments to pleadings, and such amendments may be made by said courts upon their own motion. Becker v. Walworth, 45 Ohio St. 169 [12 N. E. 1]; Logan v. Thrift, 20 Ohio St. 62; Benninger v. Hess, 41 Ohio St. 64, 69; Mt. Adams & E. P. Ry. v. Wysong, 6 Circ. Dec. 28 (8 R. 211); Barbour v. Miles, 7 Circ. Dec. 688 (14 R. 628); Wicker v. Messinger, 12 Circ. Dec. 425 (22 R. 712).

Here it appears that the amendment made falls within the provisions of said section and that the action of said court was but the exercise of discretionary power conferred by it. True, counsel say they were taken by surprise, and it may be that they were, but it seems that the trial court “in furtherance of justice” felt called upon to order said amendment made, perhaps to conform the petition to the facts which the evidence tended to prove. .An examination of the record fails to show that the objection was made to the introduction of evidence bearing upon the feature of the case sought to be covered by the amendment, and the court having charged upon the subject of punitive damages as if said amendment had been incorporated in said petition, we think that under said section it was not an abuse of power or discretion upon the part of the trial court in ordering said amendment made.

It was also contended “that the damages awarded to the plaintiff below are excessive in amount, appearing to have been given under the influence of passion or prejudice.” In the absence of a showing in support of this allegation, we take it that a contrary presumption would appear. Quoting from the opinion in the case of Duvall v. Fuhman, supra, which was a case for ■damages for breach of promise of marriage, the judge speaking for the court on page 312 says:

“In actions of this nature, the courts rarely interfere to set aside a verdict as excessive. If the damages are so flagrantly -outrageous and extravagant, as to evince intemperance, partiality or corruption on the part of the jury, it is the duty of the court to reduce the amount or set the verdict aside, according to the circumstances. ’ ’

We find none of the elements spoken of in the above case 'present in this case, and assuming that.the jury was composed of fair, upright and intelligent men, we would not be disposed to discredit their judgment by substituting our own in the absence of good and sufficient reasons therefor. This ground of error is held not to be well taken.

It is urged that the verdict of the jury is not sustained by sufficient evidence, that it is against the manifest weight of the evidence and contrary to law. If counsel are right in behalf of their contention on either of these propositions, then this verdict ought not to stand. Without rehearsing the evidence embraced in the two separate voluminous volumes making up the record in this case, it will be sufficient to say that we have read all the evidence therein including the exhibits, and while there appears to be a marked conflict in the evidence of the parties hereto upon the material and controlling issue in this case, namely, whether or not it was a promise on the part of the plaintiff in error to marry the defendant in error and a like promise on her part to marry the former and a mutual agreement to marry each other, and that afterward the plaintiff in error, although requested to do so, refused to marry the defendant in error, and between other witnesses upon other issues involved herein as well, such evidence and all the other evidence relating to. the subject matter of this suit involved questions of fact, which were the sole province of the jury to determine, and having determined them, with a record before us tending to sustain the claim of the plaintiff below that a promise to marry was made and broken as alleged in her petition, although denied by the defendant below, as a reviewing court we do not feel justified in disturbing the verdict of the jury or judgment of said court on either of the grounds stated.

Thus far we have considered the several contentions of counsel for the plaintiff in error involving as they do a review of several of the material questions arising during the trial, and some after trial and before judgment, but we are still met with the question as yet undisposed of, and presented with great vigor by counsel, and that is, the subject of newly discovered evidence. Indeed this branch of the case has given the court more concern than'any other. Unlike many questions that arise out of a ease during the progress of a trial, or even after trial, when the determination of an issue rests with the court, the law in most cases furnishes a means of solution for such questions or issue, and while the law in the case before us also furnished certain rules as aids in the execution of judicial duty, still the rulé to be applied in the ultimate determination of the question made here rests in a sound discretion to be exercised by the court.

The provision relating to new trials is to be found in Sec.. 11576 G-. C., which provides

“A former verdict, report or decision, shall be vacated, and a new trial granted by the trial court on the application of a party aggrieved, for any of the following causes affecting materially his substantial rights.”

Sub. 7 .of said section provides that one of said grounds, or causes is

“Neivly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at the trial. ’ ’

The requisites here pointed out are so plain as that neither lime nor space need be taken in their explanation.

Perhaps the best digest of the rules governing courts in-granting new trials upon the ground of newly discovered evidence is to be found in 14, Enc. of Pleading and Practice, p. 791, which is as follows:

“A new trial will not be granted on the mere showing that new evidence has been discovered. Newly discovered evidence, in order to be sufficient, must fulfill all the following requirements. First, it must be such as will probably change the result, if a new trial is granted. Second, it must have been discovered since the trial. Third; it must be such as could not have-been discovered before the trial by the exercise of due diligence. Fourth, it must be material to the issue. Fifth, it must not be-merely cumulative to the former evidence. Sixth, it must be not merely impeaching or contradicting the former evidence.”

It will be observed that the foregoing embraces the general rules, applicable .to tbe subject treated of, the law of each state of course being governed by the adjudications of such state. In this state, for instance, the law is somewhat different than that stated under the first sub-division of the rules enumerated relating to the legal effect of the alleged newly discovered evidence. Referring to the case of Moore v. Coates, 35 Ohio St. 177, 181, Judge Obey speaking for the court in that case says:

“These authorities show that motions for new trials based on that ground (newly discovered evidence) are not favored. In construing our former statutes, that rule was not disregarded. The motion was denied if the mover had been guilty of laches. ’ ’ and in Ludlow v. Parks, 4 Ohio 544, it was said:
“In considering the motion, the court will not inquire,, whether, taking the newly discovered evidence in connection with that exhibited on the trial, a jury might be induced to give a, different verdict, but whether the legitimate effect of such evidence would be to require a different verdict. ’ ’

See also

Cleveland, C. C. & I. Ry. v. Long, 24 Ohio St. 133; The Cincinnati Trac. Co. v. Fessler, 31 O. C. C. 631 (12 N. S. 565).

Leaving this subject for the present, let us inquire concerning the history of this action, when it was commenced, etc., as bearing upon the diligence required by said Sec. 11576 0. C., as a prerequisite to the granting of a new trial upon the ground of newly discovered evidence.

The transcript shows that the plaintiff’s petition was filed.in the court below July 2,1915. That the defendant filed his answer November 13, 1915. That the case was tried February 18, 1916, and verdict for plaintiff for $10,500. That a motion for a new trial was filed February 21, 1916. That the death of the defendant below was suggested to the courts March 2, 1916. That H. W. Banbert, as administrator with the will annexed of the estate of Robert H. Jacob, is made party defendant to said action and that it is ordered that said action proceed in his name' as such party defendant June 23, 1916.

“It appearing to the court that the petition of plaintiff in this action does not conform to the facts as developed at the-trial of said cause, the court on its own motion orders that plaintiff’s petition on page 2, at the end of paragraph 2 and line 12 thereof be amended by interlineation by adding the following words:

‘ ‘ and that each and every act of defendant in promising to marry plaintiff and his subsequent refusal to marry her was ruthless and wanton. ’
“and said amendment is accordingly made to which judgment by order of the court defendant by counsel excepts. Approved this 5th day of June, 1916. Will P. Stephenson, Judge. ’ ’

That the motion to set aside the verdict and for a new trial herein was heard and refused June 23, 1916, and at said date judgment was rendered against said administrator for said sum of $10,500 and costs of suit. It thus appears that some eight months intervened between the commencement and trial of said action, and that during said time it also appears that depositions of witnesses were taken in the city of Indianapolis, Indiana, at different.times, by both the plaintiff in error and defendant in error, under proper notice served for such purpose. That on the occasion of the plaintiff in error taking such depositions, the depositions of Mary Myers and Ida Crane were taken, on whose evidence the motion for a new trial on the ground of newly discovered evidence is based. It appears that counsel for plaintiff in error were present and cross examined at the taking of such depositions, thus affording the plaintiff in error opportunity of learning who said witnesses were, their relations to the defendant in error, their occupation, their residence, etc. It likewise appears that counsel for plaintiff in error, after such depositions were taken, served notice to take the depositions of witnesses in said city of Indianapolis, for the plaintiff in error and went to said city for that purpose. In support of said motion for a new trial an affidavit of counsel for plaintiff in error was filed setting forth that neither the plaintiff in error nor his counsel were in possession of any fact or facts known by said two witnesses or either of them concerning the issues of this case other than as testified to by them in their depositions taken. 'As the statute cited requires, and as is held in numerous cases of this state, one applying for a new trial on the ground of newly discovered evidence must show reasonable diligence to obtain testimony of witnesses sought before trial and it must further appear that such testimony could not have been discovered and produced at said trial by the exercise of reasonable diligence. Considering the intelligence and experience with the world’s affairs of the plaintiff in error as evidenced by his testimony, his letters, to the defendant in error and otherwise, it would seem that the commencement of this action coupled with his alleged knowledge of the adventuresome character of the defendant in error, as claimed, would have been notice to him to prepare his case accordingly. He knew of the charge made, of what the range of testimony the charge made would undoubtedly take, that the defendant in error then resided and for many years theretofore had resided in the city of Indianapolis, where her friends and aequaintanecs also resided, and among them the two witnesses named, Mary Myers and Ida Crane, whom he, or at least his counsel, had personally met after the taking of their depositions and interviewed them concerning this case, and also knew that the defendant in error apparently had been disappointed in the testimony given by said two witnesses in their deposition taken. Under this state of facts, does it appear that reasonable diligence was used to obtain the testimony of these 'witnesses at the trial and that their testimony could not have been discovered by reasonable diligence? Nothing appears to show that these witnesses, or either of them, were not in the city of Indianapolis where their depositions could have been taken at any time before trial, if desired. Of course we are aware it sometimes happens that litigants are deprived of the benefit of the testimony of witnesses, unknown to them at the time of trial, but where a party has knowledge, or the means of knowledge, which if followed up would have led to the discovery of the evidence before trial (as in this case) and on which an application for a new trial is based, on the ground stated, a new trial will not be granted. Wright v. Express Co. 80 Fed. 85.

Again, following the suggestion made that the plaintiff in error had reason to anticipate the character of the testimony to be produced against him on the trial, in view of the charge made in the petition, we call attention to an extract or two from the ease note made under the case of Graves v. Graves, 10 L. R. A. (N. S.), 216 [132 Ia. 199; 109 N. W. 707], wherein the question of different causes for a new trial are discussed:

‘ ‘ Some of the cases turn on the question of negligence in the preparation for trial; and it is held that, where the unsuccessful party has had his day in court, knowing what the issues were, and the sort of testimony his adversary was likely to produce, he should have been ready then and there to meet and prove its falsity. If any relief is to be granted, it must be for something discovered after the trial, which could not with due diligence-have been made available there.”

Also from the same case note under said case at p. 217:

‘1 Since it is the policy of the law that there shall, be 'an end of litigation, when parties to a lawsuit have their day in court they must be ready. And if they have had means, or could have had means, to exhibit the falsity of the adversary’s testimony on the trial, it is afterwards too late to ask for relief against it. ”

Assembling all the facts on this branch of the ease, we are inclined to the view that the case is one of doubtful propriety, at least, authorizing a new trial on the ground that reasonable diligence has been shown to obtain the testimony of these two witnesses, or that the same could not have been obtained by reasonable diligence.

Said sub. 7 of said Sec. 11576 G. C., provides that the newly discovered evidence must also be material to the issue in the case.

Assuming that reasonable diligence has been shown to obtain the testimony of said two witnesses, Mary Myers and Ida Crane, would their testimony be material to the issue here and not be cumulative to the evidence already offered by the plaintiff in error? If no such evidence had been offered, there could be but one answer to the question, because said witnesses in their affidavits state that certain admissions were made to them by the defendant in error — admissions affecting her'relations with the plaintiff in error — which would be competent as evidence against the party making them. t

But would the legitimate effect of such evidence, if introduced on the trial, when taken in connection with that already-introduced on the trial, be to require a different verdict as was held in the case of Moore v. Coates, 35 Ohio St. 177, already-cited ? Not that it might produce a different verdict, but would the legitimate effect of such evidence be to require a different verdict, when considered in connection with that introduced on the trial? It will be noticed that the evidence proposed to be offered is in the nature of admissions only. Under the rules of evidence, admissions made to third parties are always to be closely scrutinized and to be received with great caution. Considering the statements made in said two affidavits, which are substantially the' same and which are denied by the defendant in error, the question arises: Are they material to the issue in the case, if testified to, and if material and testified to, would their effect be anything more than to discredit or impeach the testimony of the defendant in error on matters concerning whicii evidence has already been given? And further, would not such evidence be, not evidence of new and distinct facts, but of an inconclusive and cumulative character in sustaining the witness, Clara Brown, in her testimony of alleged admissions made to her by the defendant in error? We are of the opinion that it would be, and it is a well settled rule of law that a new trial will not be granted on the ground of newly discovered evidence when the new evidence relied on is merely cumulative to that introduced at-a former trial. So we hold that the evidence proposed as contained in said two affidavits is not material to the issue or issues involved herein and that the court below was not guilty of a manifest abuse of discretion, or of any abuse of discretion, in overruling said motion for a new trial on the ground of newly discovered evidence.

Considering the provisions of Secs. 11397 and 11235 G. C., we are of the opinion that the death of the plaintiff in error, under the status of the ease at the time of his said death, did not work an abatement of this action, and therefore the court below did not err in ordering said action to proceed in the name of the ■administratrix of said decedent’s estate.

Finding no error in the record prejudicial to the legal rights of the plaintiff in error, the judgment of the court of common pleas will be affirmed and said cause will be remanded to said court to carry said judgment into execution.