author: VOORHEES, J.

text:
    EXECUTORS ARD ADMINISTRATORS — WILLS.
    [Morgan (5th) Circuit Court,
    November Term, 1901.]
    Douglass, Voorhees and Donahue, JJ.
    Brigham H. Martin et al., Executors, v. Susan Spurrier et al.
    1. Action to Recover Possession oe Read Estate by Executors — Peeading.
    In an action for possession of real estate brought by the executors of a will, it is sufficient to allege that they have a legal estate in the premises, are entitled to the immediate possession thereof, and that the defendant unlawfully keeps them out of possession. Although the will is the source of the executors’ title, it is not good pleading to make the will, or a copy thereof, a part of the petition; yet, when this has been done, and no motion is made to reform the pleading, the objection is waived by demurring to the petition.
    2. Devise oe Read Estate and Personae Property to be Soed and Distribution oe Proceeds to be Made by Executors, Construed.
    A testator by his will gave to his widow certain real estate so long as she should remain his widow, and directed that the balance of his real estate and personal property should be sold at private of public sale, and the proceeds be applied to the payment of all his just debts and funeral expenses; and provided, that after all of his said debts were paid, then, should his said widow prefer her legal share in the residue rather than the real estate so given her said real estate sliould be also sold and she should have her legal share of the estate; and provided, that after his said -widow had received her legal share, as she should desire, the balance of the estate should be equally divided among his six children, naming them. The widow elected to take her legal share in the residue of the proceeds of sale of all of said property after payment of said debts; and for a valuable consideration released her interest in said proceeds to the children of the testator named in the will. The testator appointed two executors with full power to execute the will as therein directed. Held:

      (a) That the direction to sell the real estate was not left discretionary with either the executors or with the heirs; but that the direction to sell was imperative, and the only discretion given the executors is as to the manner of sale.

      (b) That under the direction to sell, the real estate is to be regarded, for the purpose of distribution, as converted into money; and the beneficiaries take, ft the death of the testator, a vested interest in the proceeds of the sale.

      (c) That the imperative direction to sell the real estate, and the unconditional requirement to distribute the proceeds among the beneficiaries named, are powers coupled with an interest; and, by force of the will, the title to the real estate of the testator vests in fee in his executors, and does not descend to his heirs.

      (d) That the duty of making the sale and the distribution of the proceeds devolves, by the will, upon the executors, and not upon his heirs.

      (e) That the executors take the fee in the real estate, and with it the right of possession; and the executors may maintain an action for possession, under Sec. 5781, Rev. Stat., against one wrongfully in possession, and the heirs are not necessary parties.
    Heard on Error.
    M. E. Danford & Charles H. Fox, for plaintiffs in error.
    George W. Barry and Kennedy & Tannehill, for defendants in error
   VOORHEES, J.

The petition in this case was filed in the court of common pleas of Morgan county by the executors of the last will and testament of Otho Elliott, deceased, against the defendants to get possession of the real estate described in the petition.

In plaintiffs’ amended petition, and as a first cause of action, it is alleged in substance that: On June 13, 1900, Otho Elliott died leaving a will, a copy of which is attached to the amended petition, and made part thereof; That said will was on June 30, 1900, duly admitted to probate and record by the probate court of said county. The plaintiffs are named as executors of the will, and that they were duly qualified as such; that said Otho Elliott died seized of the real estate described in the petition. .

It is further alleged in the petition that plaintiffs have had, since June 30, 1900, a legal estate in and to all of said described lands, and are now entitled to the immediate possession of the same. That on or about December 10, 1900, the defendants entered upon and took possession of all of said lands, and haye ever since retained the possession of the same and since said December 10,1900, they have unlawfully kept plaintiffs out of possession of said lands and they are now unlawfully keeping them out of possession of the same. Prayer is for judgment and an order for the delivery of the possession of the premises.

A second cause of action was set forth in the petition, but it having been withdrawn, the only question we have to consider is, as to the sufficiency of the first cause of action as against a demurrer. The action being one to recover the possession of real estate, its sufficiency is to be tested by Sec. 5781, Rev. Stat. The section provides that: “ In an action for the recovery of real property, it shall be sufficient if the plaintiff states in his petition that he has a legal estate therein, and is entitled to the possession thereof, describing the same as required by Sec. 5095, Rev. Stat., and that the defendant unlawfully keeps him out of the possession; and it shall not be necessary to state how the plaintiffs’ estate or ownership is derived.”

The petition in this case contains the requisite allegations under said section; but it is contended that5 attaching, a copy of - the will and making it a part of the petition these material allegations as to title and right to possession in the plaintiffs as such executors are destroyed, for the reason, according to the claim of defendant, that under the will they do not get any title to the land nor does it give them the right of possession.

It is true the purpose of the pleader in attaching the will and making it a part of the pleading was, to give the source of the plaintiffs’ title and to show how their estate or ownership was derived.

No motion was made to strike the copy of the will out of the petition, but instead a demurrer was interposed.

The first question then is, was it proper pleading to make the will a part of the petition ?

The will is evidence of title; but as the action is not founded upon the will it should not be made a part of the petition. Section 5086» Rev. Stat.

In the absence of a motion to reform the pleading, is it good as against a demurrer?

In actions founded upon written agreements, other than for the unconditional payment of money only, it is not good pleading to copy the written instrument into the pleading, nor to attach a copy making it a part thereof, and upon motion for that purpose a reformation of the pleading would be ordered; yet, when it has been done without objection, and the petition contains facts sufficient to constitute a good cause of action, if well stated, the judgment will not be reversed. Crawford & Morrison v. Satterfield, 27 Ohio St. 421.

The question presented is: Does the petition, with the will as a part thereof, set forth a cause of action good as against a general demurrer ?

A demurrer was filed to the petition stating three grounds:

First. A defect of parties plaintiff.

Second. Defect of parties defendant.

Third. The petition does not state facts sufficient to constitute a cause of action.

We will consider the grounds of demurrer in the reverse order, and attention will be directed first to the last or third ground. As against a demurrer, the petition is not defective merely because a copy of the will is made a part thereof. Crawford v. Satterfield, supra. This will being so attached can be looked to, as a part of the petition in testing the pleading on general demurrer.

The plaintiffs having attached to their petition a copy of Otho Elliott’s will, and made it a part thereof and the will being the source of title to them, for the premises in controversy, and their right to possession being derived from the same source, attention will be first directed to its provisions. The testator by making the plaintiffs the executors of his will, and by giving them authority to execute the same, their title in the property or right of possession is to be determined by the will alone. What interest does the will give the executors in this real estate, and what are their rights as to possession ?

The provisions of the will which relate thereto are as follows:

“ Item first. I desire that all my just debts and funeral expenses shall be paid as soon as possible after my decease.
“ Item second: I bequeath to my beloved wife Acsha Elliott the house and lot where we now reside so long as she shall remain my widow.
“Item third: The balance of my real estate and my personal property be sold at private or public sale and the proceeds to be applied to the payment of all my just debts and funeral expense.
“Item fourth: After all my debts are paid then shall my wife Acsha Elliott prefer her legal share in the residue rather than the house and lot where we now reside, then the house and lot shall be sold and she shall have her legal share of the estate. After my wife has received her legal share as she may desire the balance of the estate shall be equally divided among my six children to-wit: Lewis Elliott, Charles Elliott, Emma Dougan, Mary Davis, Ada Sisk and Anna Martin.
“Item fifth: I nominate and appoint B. H. Martin and J. C. Sisk, both of Morgan county, Ohio, to be the executors of this my last will and testament with full power to execute the same as herein directed.”

It is alleged in the petition that said Acsha Elliott ..survived her husband, and after the probating of the will she elected tq take her interest in the proceeds of the sale of the lands of said testator and, not the house and lot given her in item two, and for a valuable consideration she released all her interest, in the estate to the, children and her rights were thereby extinguished. „ , , ,, , :

The contention of the respective parties may be summarized as follows: The plaintiffs in'error as executors contend that by, the will of Otho Elliott, his real estate was converted into personalty, and the beneficiaries named therein took, at the death of the testator,.a vested inr terest in the proceeds of the real estate when sold according to directions under the will. That by force of the will the real estate in controversy vested in fee simple in the executors, and did not descend to, the heirs of the testator, and that the title being in the executors they are entitled to the possession of the premises.

On the,other hand, defendants in error contend, that the executors take no interest in the property further than necessarily connected with its sale; and,"subject only to this power to sell, the testator, so far as they, the executors, are concerned, left the title as i,¿.stood at law to pass to his heirs to be divested only by the execution of the power to sell by the executors.

The solution of the question arising from these conflicting .claims, lies in the proper construction of the will of Otho Elliott; and the main controversy depends upon .the construction of the third item of the will. The question is, whether the salé of the lands therein provided for is directed and authorized to be made by the executors; or whether the direction to sell is contingent on the executors getting authority to, sell from the court, in order to distribute the estate as directed in , the will. In other words, are the executors empowered and unconditionally, required to convert the real estate into money, by selling it either at public or private sale ? . ’ ', , ,

■ The testator in the third item of the yvill does not,in terms direct by whom the sale of his réal'estate shall be mqijle; b.ut he does, direct the balance, meaning his real estate other than the house and lot given , to bis wife in item two, be sold at public or private sale.

In item four, in the event his wife should prefer io take ber, legal share in the residue of liis estate, after the páyment of debts and funeral expenses, rather than the house and lot given her in item two, then he directs that the house and lqt shall also be sold] and' his wife or widow shall have her legal share of tbe estate, and the balance , to be equally divided among his six children named therein.,

In the fifth item he .names .the executors,, who are the -plaintiffs in error, giving them full power to. execute' the will-;as.therein directed.1 ¡

, -The whole.will-is to be construed, together, .and. each -parti shall- be so construed a$ wifi conform its-general .scope and purpose to the-wbole instrument.

The. testator intended that his -real estate should ■ be .sold either ar private or public sale.- A sale is necessary ■ in,-- -order -that: the i distribution should be made as -provided -for, in, the, willi., The testator.gives-no interest,in .the real, estate in question, pr in- its..proceeds, to. his .children by way of direct devise or bequest;, the gift is to be , found ■ only in the direction to distribute the proceeds of its sale, and the naming of -the persons among whom distribution is .to be. made.- ¡ .It is >clear that-'he did not intend, the distributees should have any- beneficial .use, or. enjoyment of the real estate as.such.. -

By the second item of the.will the testator .g-iv.e,s to his wife Acsha Elliott the house and,lot where they then resided,'so long-as she-.hhould remain his widow. The.balance of his real estate and, personal property to be sold, and.the. proceeds.applied-to the payment, of,-debts ¡and-funeral expenses. If, however, his wife, should prefer her legal, share in the residue of his estate, that is„ the proceeds arising from .-either a'..private or public sale of his real and-personal property-after paying debts,.to the house and lot .given in-item -two,- then(the.house,and lot- to--.be.also.sold, and she to have, her .legal share of the estate; and after she-shall receive her share, the balance of the estate shall be-equally-(divided-among his six children-named in the will;

It will be-obáerved that-the direction.,to sell-or -power to'sell',- under the .will; except as -t.o the .house-and: lot described-in ;item /two, - is mot contingent,on,any-event that.may or may not happen; but.-the .direction to sell the property,-real and personal,, is imperative ;-and, it seems to us, the duty of making the sale is imposed on the exeoutors., They.are given full-power to execute the will. - The.only:discretion-given is-as to m-anner :of sale.;

,, It. is contended .by. defendant s,.in. error., that as-the.executors are. not named as persons,who. shall,make the sale Of the property,That these plaintiffs have no interest in'the property by- virtue-'of, their office, as executors, and consequently there is no imperative! duty., requiring ithem to convert .the .real, estate-into. money by- selling, it.

-, . This contention is not.sound.. In .the case of Collier v. Grimesey, 36 Ohio St. 17, the executors were, not .named as .persons who,'should make the sale .of the; real1, estate under the will.- -In the.-paragraph-.of the will, in that ease,.directing thei,sale-of.the.;real estate,, itidid;,not;.designate.who should sell it. The paragraph directing the sale is as follows:

“ I direct that when my son, Samuel Painter, shall arrive at the age of twenty-one years, that the above mentioned real estate shall be sold (provided that my wife’s widowhood shall have ceased before that time) and to be divided between them as follows : Seth, Samuel and Oris two shares each, and the rest of my children one share each.” Then follows in the next paragraph the authority and only authority or designation of the persons who shall make the sale contemplated. “ And lastly, I constitute, nominate and appoint my son, Seth Painter, and my son-in-law, John Grimesey, my executors, to act and see the accomplishment of this, my last will and testament according to the true intent and meaning thereof.”

The Supreme Court in that case held: “ The duty' of making the sale and dividing the proceeds is imposed on the executors,” and “ as one of the executors refused to act, the duty of executing the trust devolved, under the statute, upon the other executor.”

That Otho Elliott, the plaintiffs’ testator, intended that the sale of the lands and the division of the proceeds should be made by them, as executors of the will, is shown by the language used in the fifth and last item or the clause of the will. He appoints the plaintiffs his executors with full power to execute the will as therein directed.

It seems to us the testator could not have intended to devolve the making of the sale and- distribution of the proceeds upon his heirs ; but that he regarded this as a matter to be accomplished by his executors. Where, in a will, a testator confers power upon his executors to sell his real and personal property at private or public sale and distribute the proceeds of the sale among beneficiaries, designated in the will, it is a power coupled with an interest, and will be so construed, if the other parts of the will seem to require it, in order to carry out the intention of the testator. And in such case, by force of the will, the title to the real estate is vested in fee simple in the executors, and does not descend to the heirs. Williams v. Veach, 17 Ohio, 171 [49 Am. Dec. 453].

We think this case is decisive of the questions raised by the demurrer to the plaintiff’s petition. The material question in the case of Williams v. Veach, supra, was raised by the court below in refusing the instructions asked by plaintiff, and in. the instructions given. The suit was to recover the possession of real estate.

“ After the testimony was closed, the plaintiff requested the court to instruct the jury, that, by the language of the said will of John Kidd, the fee simple did not become vested in the executors of the said John Kidd; and that said fee descended to, and became vested in his heirs at law, on the death of John Kidd. This instruction the court refused, but did instruct the iury that, by the will, the executors were vested with the fee, and that the same did not descend to the heirs.” The instruction given was affirmed by the Supreme Court.

Whether the fee in the real estate in this case is in the executors or in the heirs, depends upon the third and fourth items of the will. In item three the direction is to sell the real estate and personal property of the testator at private or public sale, and the direction is imperative; and as seen by authority this duty devolves upon the executors and not upon the heirs. Collier v. Grimesey, supra.

Item fourth makes a disposition of the proceeds of the sale. It provides that the proceeds of the sale shall be divided among the children of the testator. There is no discretion vested in the executors, or in the heirs, whether the real estate shall be sold or not. The direction is that the real estate shall be sold, and the proceeds of the sale divided among the persons designated.

The bequest is of money, the proceeds of the sale of land, and not of the land. The beneficiaries under the will take the property with the character impressed upon it by the testator. Their interest became vested at the taking effect of the will. The conversion was necessarily to precede the distribution; and the gift is, therefore, to be regarded as a bequest of personalty, and not as a devise of land. It makes no difference that the fund to be distributed is the proceeds of that which was land, at the date of the will, or at the testator’s death. The bequest is nevertheless a legacy, and when vested in interest in the legatee, whatever may be the time for its payment, the law of succession in respect to it is to be found in the statute, not of descent, but of distribution.

This doctrine and rule of construction have been frequently recognized in this state. Richey v. Johnson, 30 Ohio St. 288; Collier v. Grimesey, supra; Williams v. Veach, 17 Ohio 171 [49 Am. Dec. 453],

This case is distinguished from Elstner v. Fife, 32 Ohio St. 358, and Nimmons v. Westfall, 33 Ohio St. 213.

In those cases the power invested in the executors was not coupled with an interest as in this case, to distribute and apportion the proceeds of the sale, in the manner and among the parties indicated by the will. In Elstner v. Fife, supra, the trust conferred by the will, was intrusted to a special trustee, and not to the executors, as in the case at bar, where the testator not only directs that his real estate be sold by his executors, but that they divide and distribute the proceeds, which takes this case out of the rule of construction adopted in Elstner v. Fife, supra, and Dabney v. Manning 3 Ohio, 321 [17 Am. Dec. 597].

We think the case of Collier v. Grimesey, supra, is directly in point and decisive of this case.

' A mere direction in a will to executors to sell land is a naked power, and gives them no estate or interest' in ■ the lahd- whatever; and; until tüe power is executed the land descends to the 'testator’s heirs at law. Nimmons v. Westfall, supra.

Where no necessity can- arise .to' call ■ for án "exercise óf this’naked power, under the will, the executors are vested with no title to the real estate. But where a testator devises to his'children, naming them, or their heirs forever; the proceeds of land in equal proportions, and further directs that his executors shall apportion and distribute the same, according to the will, the title to the land, in such cáse, is vested in the executors. This is the logical cbnclusiori of the court’s reasoning in the case of Nimmons v. Westfall, supra. And where the'próyisions ’of'the will evince a design in the testator, that at all events'the lahds áre to' be sold by his' executors,'and they1 are to distribute the proceeds thereof among the legatees, in order to satisfy the whole intent of the will, this is not á mere naked power, but one coupled with other trust's and duties. Franklin v. Osgood, 14 Johns. (N. Y.) 527; Peter v. Beverly, 35 U. S. (10 Pet.) 532; Martin v. Barnard, 33 Ga. 520.

It is a well recognized principle of law in our state at least,'that the title to land must rest somewhere. In some of the states it is held that the title may be in abeyánce; but not so1 in Ohio. Gilpin v. Williams, 25 Ohio St. 283, 295.

■ Our conclusion is, that1 under the will of Otho' Elliott,''the title to the real estate, described in the petition; is vested in the executors; the plaintiffs in error. Title to lands; nothing else intervening, draws with it the right to possession in the holder of the legal-title. ' • - '

Therefore, from the facts stated in the petition, which are admitted By the demurrer, and this conclusion as to the true construction of- the will,Nested title in the executors, we hold, that the petition states á good-cause of action, arid the third ground of demurrer is not well taken.

This conclusion settles also the question raised by--the' first and .second'-grounds of’demurrer, as to' defect of-parties-plaintiff or defendant. If-the1-plaintiffs-have the legal1 estate and 'are entitled to possession, then there is no defect of parties plaintiff; and the- children of the testator are not concerned as -to the title or possession of the lands. Their interest is in -the proceeds of the land and not in the- land. The widow, having parted with her interest in the estate, is not a necessary party.

' - Therefore, the demurrer is not well ■ tákén, and the common pleas erred in sustaining the same, and for this reason the judgment is reversed ánd cause remanded with'instruction to overrule the derdurrer-.-


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    DOW TAX — ERROR
    [Clark (2nd) Circuit Court,
    December Term, 1901.]
    Wilson, Sullivan and Summers JJ.
    T. J. Casper v. J. T. Norris.
    Dow Tax — Action op Probate Under Sec. 4364-9a, Rev. Stat.
    The power conferred upon the probate court by Sec., 4364^9a, Rev. Stat., 94 O. R. 332/333, relating to complaint, notice and entry pndjbr Dow law, is ministerial and the finding of the probate coúrt-upón a compláint thereunder is not reviewable.on error.
    Oscar T. Martin, and F.M. Hagan,- for «plaintiff in error;1
    M. B. Eafnhart, for defendant in error;
   SULLIVAN, J.

In this case the'probate court dismissed1 the complaint filed"by defendant in that court, under Sec.14364-9a, Rev. Stat.’"Plaintiff in' error, who was defendant below, filed a general démurrer to the'complaint setting forth several grounds, one being that the law under which the complaint was drawn and filed was unconstitutional: Upon that ground probate court sustained the démurrer, disrhisste'd the complaint and entered úp a judgment against defendant in error' for'costs, To reverse that judgment, defendant in error prosecuted error to the com; mon pleas! That court reversed the judgment of the probate court, and error is prosecuted here to reverse the judgment of the common pleas.

Counsel for plaintiff in error presented in oral argument 'three; severál grounds,'upon'either or any one of which, they insist, the judg-' mtent of the comihon pleas should bé reversed: Tt will íiót, howévér, be nécessary in view of the conclusion we have reached, to-notice but one, and that is whether the common pleas erred in overruling thé motion of plaintiff in error, tb dismiss the petition in error to the probate court-It is the action of that court upon the motion filed' April 12,' 1901.’ The fifth ground' of that motion rñky be construed, we think','as one asking' for a dismissal of the petition, for want of jhrisdictibh in 'that court/'''

Sections 4364-9a-9b-9c-9d and 9e,‘Rev. Stat., in 94 O.'L. 832, 333, are supplementary to Sec. 4364-9, and were passed April 16, 1901.1 Sections 4364-9 and thte several sections follbwihg aside from the supplementary' sections are ■ commonly known as the Dow law, fixing a tax upon the business of trafficking in spirituous, vinous/ mait of any intoxicating liqüors. ' Section 4364-9, Rev. Stat.', fixes the amount; Sec/ 4364-10/ Rev/ Stat.,1 makes the same 'a lien upon 'thé ’pfemises'in'which/ the business is cárr'iéd on; 4864 — 12 provides for the collection of the tax 4364-13” provides: “That every assessor•' shall rettiin'"tb the county auditor with bis other returns, a statement * * * as to every place within his jurisdiction where such business is conducted, showing the name of the person, corporation or copartnership engaged therein, a brief and accurate description of the premises where the same is conducted, and by whom owned; said statement shall be signed and verified before such assessor by such person, corporation or copartnership.” If on demand, they fail or refuse to furnish the requisite information for such statement, sign and verify the same, the assessment on the business shall be $400, an increase of $50.00 over the amount fixed in Sec. 4364-9.

Section 4364-14, Rev. Stat., provides: “ That the county auditor shall make and preserve duplicates of such assessments, alphabetically arranged, showing the amount and date of each assessment, by wh«Sm to be paid, and the premises whereon the same is a lien. And upon receiving satisfactory information of any such business liable to assessment or increased assessment,” as provided in Sec. 4364-13, “he shall forthwith enter the same upon such duplicate and upon the county treasurer’s copy thereof.”

Section 4363-9a, provides that: Upon complaint in writing by any person, verified by affidavit filed in the probate court of any county in the state of Ohio that any person, corporation or copartnership is engaged in such county in the trafficking in spirituous, vinous, malt or any intoxicating liquor and whose name does not appear on the auditor’s duplicate in such county as * * * engaged in such traffic, has refused or neglected to pay the assessment made upon such business, commonly known as the Dow tax,’ * * * the probate court shall forthwith issue notice to such person, corporation or copartnership of the filing of said complaint and requiring them to appear before said court at a time therein mentioned, not to exceed four days from the date of the issuing of said notice, and show cause why said business should not be entered upon the duplicate of said county for assessment; and said notice shall be directed to the sheriff of said county, and shall be served and returned by him within the time hereinbefore named in the same manner as summons is served in civil action.”

The complaint made by John T. Norris against Casper, contains substantially all the matter set out in this section, notice was prepared, served and returned as provided in the section. The purpose of this supplementary act, we think, is apparent. It is to bring upon the duplicate persons engaged in the traffic under the guise and name of a different business, and thus avoid payment of the tax. By Sec. 4364-13 it is made the duty of the assessor to discover and return all places and names of all persons engaged in the traffic, together with a description of the premises in which carried on, no matter under what guise ro name it is conducted. If the matter set forth in tbe complaint herein was given to the auditor, that officer if he discharged his duty, has the power to do all that is provided in these supplementary acts, except in the amount of penalty, and the penalty provided for in the supplementary act is to be added by the auditor.

If the probate court upon a hearing found against the complaint, the auditor could still exercise the same power and do the same duty. What is the nature of the power sought to be conferred by this act on the probate court ? Is it judicial or ministerial ? When exercised by the county auditor, it is held to be ministerial. Musser v. Adair, 55 Ohio St. 466 [45 N. E. Rep. 903]. The court say in that case the county auditor “ in making additions to the returns of a person, of his property for taxation, does not act as a judge. He acts simply as an agent of the state. * * * He is simply a ministerial officer and none other. * * * The township assessor, the auditor and the board of equaliza. tion are all parts of the same system, devised by the legislature for the assessment of the property of individuals for the purpose of taxation.”

We take it, that the duty of the county auditor under Sec. 4364-14 is the same in character as that of making additions to the returns of a person of his property. If, then, a ministerial power when exercised by the auditor when by a legislative act, the same is conferred upon the probate court, does it become a judicial power? In DeCamp v. Archibald, 50 Ohio St. 618, 625 [35 N. E. Rep. 1056; 40 Am. St. Rep. 692], the court, in defining judicial powers, say: “ The term ‘judicial power ’ as used in the constitution, is not capable of a precise definition. It is included in the power to hear and determine, but does not exhaust the power. That it embraces the hearing and determining of all suits and actions, whether public or private, there can be no doubt. But we think that it is equally clear that it does not necessarily include the power to hear and determine a matter, that is not in the nature of a suit or action between parties. Power to hear and determine matters, more or less directly affecting public and private rights, is conferred upon and exercised by administrative officers.

Judicial powers are those conferred on judges as courts in the hearing and determining of questions arising in litigation between parties in actions pending before them. State v. Harmon, 31 Ohio St. 250; DeCamp v. Archibald, 50 Ohio St. 618, 624 [35 N. E. Rep. 1056 ; 40 Am. St. Rep. 692].

The proceedings provided for by Sec. 4364-9a is not between parties ; it is not to secure a right to any one in litigation or to establish the right of any person. Any person without regard to any individual interest or right may file the complaint, in fact he need not be a taxpayer 'or have any intérest tó be affected by the failure of the party complained of topay the tax. So the proceeding sought to be'provided for, is not adversary in its character, not' betwee'n parties; 1 It is as we falte it, a; duplicate if we may so term it of the one provided the county auditor may take to accomplish the same purpose, nb broader in its terms, adding nothing to ■ make it a judicial power. If executed it simply succeeds in placing upon the duplicate the ñamé of on!é evading tax under the Dow law, the'same thing cáii be done bów^áhd could hávé‘been doné by the auditor before the 's'üppl'em'éntáfy act;

( 1 Being: then simply1 a-ministerial power, érior" did not lie from the action of'the-probate court, and the motion of Casperin the common pleas, to dismiss the petition in -error should háve been sustained. The judgment of the'common-pleás’iS reversed'and this court entering the judgment -that court'should have returned,’ dismisses the petition in error as the common pl'eás had no jurisdiction ‘ to' entertain the petition in error frormthe probate court fór-the’reasóhs' stated.' Other errors insisted upon "by- plaidtiff1 in1 error' are not’-necessary tobé considered. Judgment for costs of this court will be taxed to defendant' in error.


author: CALDWELL, J.

text:
    CONTRACTS — NOVATION—TRIAL.
    [Cuyahoga (8th), Circuit Court,
    December 16, 1901.]
    Caldwell, Hale and Marvin,
    Edward Jarmusch v. Otis Iron & Steel Co.
    1. HxnoNEons Construction ,or Pleading — Trial—Error..
    Where an answer, in an action for damages on a contract entered into by one "• company and subsequently assumed by another company, to whom the busi- , ness of the first .company was sold, attempts- to-set up novation,-but technically fails to do so, a charge construing the, answer as.ayerring novation,:does not constitute prejudicial 'error where it appears that the case was tried on the theory that both the old and -new company-and the plaintiff were parties : to the contract.. ,
    2. Requisites of a Contract of Novation.
    The requisites of a contract of novation are: (1) A previous valid obligation. (2) An agreement of the old parties to the new contract. (3) That the new contract shall be so complete as to extinguish the old contract. ‘(4)¡The making of á Valid new contract. When "this .is done a substitution is accomplished in the debtor and the creditor has his cause of action ’for the violation of the contract against the new debtor oply. ...
    3. Sufficient Evidence of Contract by Novation.,
    Where a person in the employ of one company under a specified contract com tinues to work for a company that has bought out the old company for several years .thereafter, and has interviews ..with the officers-of .the new company in regard to such contract and iu conformity to his contract with-the old corn-il i pany he is placed' on-the pay roll at stipulated wages 'whether be works or ,, not, the jury is, warranted, in finding that he was a party-to-'the contract’of1 1 novation entered into .between the companies, this defeating any claim against . the old company. 11 ' - 1 .. ."

      4. Not Within the Statute of Frauds.
    Where one of the .considerations of the sale of an iron and steel plant from one company to another was that the new company should obligate itself to carry out the contracts and obligations of the old company, the obligation is anew one founded on sufficient consideration, and not necessary to be in writing, as required by the statute of frauds,'Sec. 4199, Rev. Stat., as to contracts to answer for the debt, default ór miscarriage of another.
    6. Verdict Sustained; Though Evidence' is Sdight.
    The verdict of the jury will not be set aside where there'is evidence of the facts submitted to them and which they must have foun d jn order to, bring in their verdict, notwithstanding the evidence thereof may be very slight.
    6. Generad Verdict — Defenses need not add be Sustained.
    A general verdict for defendant wili not be set aside on review if there is sufficient evidence to sustain any one of numerous defenses offered. All the defenses need not be sustained by evidence in order to sustain a general verdict.
    Heard on Error.
    Préusser & Wenneman, for plaintiff in error.
    Squire, Sanders & Dempsey, for defendant in error,,
    cited:
    Whüe the finding of the jury is to be taken in favor of the defendant upon each and all of these issues, yet, if a finding upon.any one of them would entitle the defendant to judgment, such, judgment would not be reversed for, error in the instruction,of the court relating-,to either of .the others. . Sites v. Haverstick, 23 O. S. 626. ..
    A debtor cannot secure a new debtor .tq assume his, obligations under a contract without the creditor’s consent. ..His consent is a.necessary incident to such substitution, and that is all .that is held in the case referred to by counsel, recently, reported -in the Supreme Court and found in Dennison University v. Manning, 65 0hio:St. 1.38, Also, Chapin y. Longworth, 31 Ohio St. 421. •■, - ■-
    Had the plaintiff been discharged from the service of the, new company without cause, he would have had a cause of action against it under his contract. 1 Beach Mod. Law of ■ Contracts, Secs. 786, 787.
   CALDWELL, J.

'The plaintiff brought his action' in the common pleas court to recover damages from the Otis Iron & Steel Company for'the violation of a contract that he had with the defendant. ' The plaintiff was injured while in the employ of the defendant and he settled with the defendant the damages he claimed by reason of such injury by' a contract in which he was to have services as a’ crane-boy at certain "wages, and at any time that the defendant thought him capable of doing other work more remunerative, it would give him such work.

In about a year after this contract was made and entered into, the Otié Iron & Steel'Company sold out to the Otis Iron & Steel Company, Limited, an English corporation. The plaintiff continued to work for the new company for a number of years when he left its employ, claiming that he left by reason of the fact that the work that he was doing, which was the same work he entered upon after the making of the contract, had become dangerous to him in his crippled condition by reason of new appliances put in, whereby the cranes were operated by electricity; and then brought this action to recover of the original company.

The original company made an attempt to plead a novation, and undertook to say in its answer, that the plaintiff had, under this contract, worked for the defendant and that there was an agreement to the effect that he should be continued under his contract, by the new company.

The plaintiff claims that he did not know there was any change in the company; that he supposed, for all the years that he was working there, that he was still working for the Otis Iron & Steel Company.

The plaintiff failed to recover in the common pleas court, and he prosecutes his petition in error here, and alleges numerous errors, and desires to have the judgment of the court of common pleas reversed by reason of such errors.

Among other things set up in the answer is a denial of the making of the contract on which suit is brought; and it is claimed that the verdict, being a general one in favor of the defendant, that that means that all the defenses of the defendant are sustained; and that the jury were not warranted in so finding, for the reason that there was no evidence tending to show that the defendant did not enter into the contract; but the law in such case, as established in this state, is, that where there are numerous defenses and the verdict is a general one, if there is sufficient evidence to sustain any one defense the case should not be reversed, and the ground taken by counsel that the case should be reversed for this reason, is not well founded.

The plaintiff claims that he was prejudiced in the charge of the court in that the court stated in substance to the jury that the answer was to the effect that a contract of novation had been entered into between the old and new company and the plaintiff, and it is claimed that the answer is not to that effect, but is only to the effect that the plaintiff entered into a new contract with the new company, and that the old company was not a party to that new contract.

It is true that the answer does claim that there was a novation and, in stating the facts, does not state that the old company was a party to the contract that would work the novation, and that the court perhaps gave a very liberal construction to the answer; but the case was tried upon the theory that both the old and the new company and the plaintiff were parties to the new contract, and it seems that on the trial the answer was treated as setting up the defense fully as stated to the jury, while a literal construction of the answer, it might be said, does not show that the defendant averred that it was a party to the new contract. However, it being so treated on the trial, and evidence being offered tending to show that the old company was a party to the contract, we do not think it reversible error that the court to the jury construed the answer as it did.

It is claimed as error, that the court did not charge upon the statute of frauds. The plaintiff contended that if the new company had agreed to carry out this contract with the plaintiff and at the request of the old company, that it was not a contract that would warrant the plaintiff in bringing suit upon it in case of a breach of the same; that it was a mere promise to pay the debt of another, and not in writing, and hence, under Sec. 4199, Rev. Stat., was not a valid contract and could not take the place of the old contract in law.

The record is silent in a large measure as to what the consideration was that passed from the old company to the new, that induced it to assume liability under this contract; but the entire evidence, taken as a whole, makes it clear that in the sale that was made by the old company of its property to the new company, one consideration was that the new company should obligate itself to carry out and entirely fulfill the obligations of the old company under the contract; if so, there would be no statute of frauds applying to the matter at all, as in such case, the obligation of the new company would be a new obligation founded upon a sufficient consideration, and it would not be necessary to have it in writing, nor could there be any defense to the same when sued upon the new contract.

It is contended that the new company had no power to make such a contract; that it was outside of the business that it was created to do. We see nothing to this point. It was entirely legitimate for the new company to agree to carry out the contract of the old company with the plaintiff as a part consideration of the purchase of the property of the old company.

The attorneys in the case are in contention as to what constitutes a novation, and also as to whether or not there was sufficient evidence in the case to establish a novation.

As we understand it, the requisites of a contract of novation are: (1) A previous valid obligation. (2) An agreement of the old parties to the new contract; that is, of the two parties to the old contract and the party to the new contract. (3) That the new contract shall be so complete as to extinguish the old contract. (4) The making of a valid new contract.

Fijfien this,is¡.done, -a substitution,isr accomplished,,which.may be in the debt, the debtor or creditor. , ,vWheu jt, .results .in,-the substitution of a new debtor, .the creditor, has his cause of action for the violation of the contract, against the new debtor only. ,' ■■■

. It is claimed, that thpse requisites ,of a .contrapt of; novation are:- not established by tl^e evidence, in this;:,

First. There is no evidence showing that the old company entered into any such agreement... The-,evidence,on; this .question'is, not very voluminous, but there, appears in the,1 bill, we think, sufficient-,to. wár-rant the jury in finding that, the; old company did, take, part ¡in the agreement and was instrumental, perhaps wholly, ,in having the; new company assume its liability,to the plaintiff.

Second.. .It, is clajmed ,thqt ,th,e, evidence does -not show that ,the plaintiff was a party to the, agreement of ,novation. There is- no evidence showing that the plaintiff entered into - negotiations: with-th‘e-two companies by which a contract of novation, was made. >, The, evidence consists in showing .that he continued to work,,;un-d,,he claims -.that his continuing to work was,, as he supposed all the,while,,for- .the’ old company, and, that he was ignorant, of any change being made by which one company retired and, another was substituted. , But the Tacts are, such that we think fbe jury were warranted, in concluding,that - he.:.must have known that he was pot working for the, company, with ,which:-he;-made his,first; contract., And-the evidence further , consist^ of theffact thathe went a.t one time, when.he had been, laid,off .or, the ¡works., were- idle,-to the officers of the new company, and, claimed that he had. a contractby which they were to,give him work, and,, after „twp,, interviews upon this matter, he was placed upon the pay roll by reason of his contract,-at a stipulated rate of wages, .whether,.he,worked or;n©t.'- - ■ > ,:- ,

. The jury were-warranted.in ,.finding that, he, was; ¡urging .-with the new company that lie had a contract with it,.which,could only have been the cpntract.of .novatdpn^and that the new company after the officers had made the,proper inquiry as to the obligation; of ;itv acquiesced:; and proceeded to continue to carryout the contract of novation which« was sufficient evidence,to ¡warrant, th.e,ju,ry in, finding,-the verdict it did. ’.

If the .jury w.erej. right thus, far in, its,.consideration- of .thecáse, it would then necessarily follow that the plaintiff, would- have no cause of action against the old ,co,mpanyv ,for. the ,old- contract would be cancelled, and, his cause of action, if ,any,, would be;uponr,the,*hew contract. '• So that, tbe result below-would bp -the,,proper one;,whether;he;had quit work with sufficient,,excuse ,or,not,¡and,the question of. damages as laid down by the.court,, wopld be; a mattpr,pf.no-.consideration jn determining,the correct result of the case in the court of common pleas.

If this verdict was founded upon the charge of the .court as to damages and as to whether the plaintiff had any reasonable excuse. for. quit-: ting his employment, we find.no error in the direction of the court upon that question, and we think the jury was warranted in finding that the plaintiff was not justified in. quitting his employment under, the circumstances. . r

So that, under whichever proposition these questions are considered, the verdict was justified by the jury, and the judgment of the court of common pleas is affirmed. ■


author: JELKE, J.

text:
    STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    December 18, 1901.]
    Swing, G-iffen-and Jelke, JJ.
    Cincinnati Street Railway Company v. Mary A. Lewis.
    1. No Ordinance Regulating Speed oe Electric Cars in’ Cincinnati.
    There is no ordinance regulating the speed of electric cars upon the streets of Cincinnati. - - -, •. i . , -‘ , -
    2. The Daw is that.oe,Reasonable Safety.
    The law regulating the speed of such cars is that of reasonable safety in view of all the facts and surrounding conditions.
    Paxton & Warrington and Kittredge & Wilby, for plaintiff in error.
    Prescott Smith, contra.
   JELKE, J.

The principal question raised .in this case is what speed ordinance; if any, is applicable to the operation of the electric cars of the defendant company upon the streets of the city of Cincinnati. So far as the record shows three enactments- by the legislative -board of the city are submitted .for consideration, and it is stated that these three, ordinances comprise all the legislation upon the subject. They are: . :

1. The ordinance of February 7,1879, which,provides:

. “No cars shall be-drawn at a greater speed than six miles an hour.” Coppock,& Hertenstein’s Ordinances, p.- 5S8, Sec. 18, Par. 1. .

2. The ordinance of October 25, 1889, which is :

“ Sec. 2. That the schedule time for operating cars over said routes 5 and 7, and over all portions of said company’s other street railway routes over-which any kind of motors, or, means-of rapid transit are authorized to, be used, shall not exceed-ten- miles an -hour; and .Art., 1, Sec. 18 of, the general street railway ordinance, -passed February 7, 1879, or any provision of any other ordinance relative to the speed.at which each car shall be operated, shall not be applicable to such routes.” Henderson’s Ordinances, 1887-1895, p. 88.

8. The ordinance of October 14, 1892:

“ Therefoie, be it ordained by the board of legislation of the city of Cincinnati, that said ordinance, passed October 25, 1889, entitled ‘ An ordinance, No. 4286, to provide for the extension of route No 7 of street passenger railroads, and for the construction of an electric system of motive power along said route No. 7 and upon a portion of route No. 5, and to fix rates of speed upon certain routes,’ be and the same is hereby repealed; and all rights, privileges and franchises granted to the Cincinnati Street Railway Company under and by virtue of said ordinance, be and the same are hereby forfeited and held for naught.” Henderson’s Ordinances, 1887-1895, p. 83.

The court below held that the ordinance of 1889, providing for a schedule rate not to exceed ten miles an hour, was void, as being unreasonable, and charged the jury that the ordinance of 1879, reading that “no cars shall be drawn at a greater speed than six miles an hour,” obtained and was controlling upon the company.

We are of opinion that this ruling of the court below was error. The ordinance of 1879, this court feels, must be construed in view of existing facts and conditions. We cannot divest ourselves of the knowledge that in 1879 the cars in the streets of the city of Cincinnati were drawn by horses and mules, and the use of electric motive power for the purpose of propelling cars through the streets had not then been thought of as practicable.

The language of the ordinance, the use of the word “drawn,” would point to the use of horses and mules, and indicate that electric rapid transit as we know it to-day was not in contemplation.

We are of opinion that the ordinance of 1879 is practically on a different subject matter — that modern electric locomotion is a different thing from that regulated by that ordinance. This brings us to the consideration of the ordinance of 1889.

We are of opinion that Sec. 2 of the ordinance of October 25,1889, to the extent that it regulates the speed of electric cars, was repealed by the ordinance of October 14, 1892. Having come to this conclusion, we do not pass upon the question of reasonableness which engaged the attention of the court below.

It is contended by the street railway company that the ordinance of 1892 only partially repeals the ordinance of 1889. It is true that the 1892 ordinance speaks of fixing the rates upon certain routes, and does not in express words mention that part of the ordinance of 1889, which says “and over all portions of said company’s other railway routes upon which any kinds of motive or street railway transit are authorized to be used,” or to the part which provides, “-and Art. l-.of Sec. 18 of the general street railroad ordinance, passed February 7, 1879, or any provision' of any other ordinance relative to the speed at which 'éach car shall be operated, shall not be applicable to such, routes.” The qtiotation in the-ordinance of 1892 is of the caption of the ordinance of 1889, and is used for the purpose of reference to everything upon the subject of speed contained in that ordinance.

This leaves the city, so far as our attention has been called to the ordinances upon the subject, without an ordinance as to the rate of (Speed at which electric cars can be operated upon the streets of the city of Cincinnati. This is somewhat startling, but We reach the conclusion-, without misgiving or hesitancy because such conclusion works little or no substantial change in the law as it would be under the ordinance of 1899 as construed in the Gannon-case.

In-"the Gannon case [not reported] the existence' or-validity of the 1889 ordinance was not questioned, but it -was treated as a valid and subsisting ordinance. In .that case the trial court charged as follows:

•“ In regard to speed,'the ordinance provides ‘that the schedule time: for operating'cars over said routes 5 and 7 and-over all portions of said company’s other street railway routes over which -any kind of motors or means of rapid transit are authorized to be used, shall not ‘exceed- ten • miles an hour,’ etc. I charge you that this' ordinance fixing thenfi-te of speed at which defendant’s car might, be operated at the time in issue here, does not mean that the car shall not be operated at any time or place at a speed exceeding ten miles an hour, but its ' true construction is that in planning the movements and operation of its cars, the defendant company shall allow sufficient time, for a car to make its round trip by running at an average speed not to.exceed ten miles per hour.
“ It is permissible under this ordinance for a car which has been ‘ obstructed in .the more crowded and populous parts of the city and has been compelled to run at a very slow speed, to make up its time by run-t ning at a rate to exceed ten. miles per hour on parts of its. route which are unfrequented by vehicles and pedestrians,' provided it .can do so with reasonable safety. This leaves the rate of speed at which the car may travel to be determined by-you, in view of all the surrounding.facts and circumstances, and of the degree of care to be observed by those operating it. Manifestly a car may be operated at very much greater speed5 through Fden Park than on Fourth street between Idain add .Vine. What would be a lawful and reasonable speed .for the ear upon which James Gannon rode upon the night,of his'death, is, for you,.gentlemen ot the jury, to determine in view of all the facts and circumstances of the case.- And in this determination you may consider the location in the city, the time of day or night, whether or not it was between intersecting streets, the presence or absence of persons and vehicles in the street along the tracks, the load which the car was carrying, and everything which, in your judgment, would influence a reasonable man in exercising the degree of care’ incumbent upon the defendant company.”

That charge received.the approval of this court and the Supreme Court.

The law, with or without the 1889 ordinance, is that of “reasonable safety, in view of all the facts and surrounding conditions.” If it is deemed wise and necessary that there be an ordinance on the subject, one should be properly and regularly passed.

Further, there were a number of special charges requested by the defendant and refused by the court. We are of opinion that the court refused the first special charge properly.

We think that the court should have given the second charge.

We think the third special charge would be better if the word ‘‘when” were changed to “if;” the word “when,” perhaps not necessarily, but in its reading, seems to imply a little finding of fact by the court.

The fourth and fifth were properly refused; the sixth ought to have been given; so should the seventh and eighth; the ninth was properly refused.

For these reasons, the judgment of the court below will be reversed.


text:
    ERROR — RAILROADS—NEGLIGENCE.
    [Mahoning (7th) Circuit Court,
    October Term, 1901.]
    Douglass, Voorhees and Cook, JJ.
    (Judges Douglass and Voorhees, of the fifth circuit, taking the places of Judges Laubie and Burrows.)
    Pennsylvania Co. v. John F. Alburn, etc.
    1. Proceedings in Error — Section 6716, Rev. Stat., Construed.
    Section 6716, Rev. Stat., requires that a plaintiff in error “ shall file with his petition either a transcript of his final record, or a transcript of the docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of.” Where the transcript is sufficient to exhibit the errors complained of, although it may not be a full transcript of the proceedings had in the cause, it is sufficient under said section.
    2. Unnecessary Facts Need not be Brought Into Record, When.
    Where a plaintiff in error does not complain that the cause, in which he is seeking a reversal, has been tried two or more times in the court below, and the judgment set aside by the reviewing court on the weight of the evidence, and such trials and reversals are not necessary in the determination of the errors complained of, he need not bring such facts into the record or transcript.

      3. If Pacts Become Material Answer or Cross-Petition may Bring Them Into the Record.
    If such facts as to former trials and reversals become material parts of the record as affecting the rights of the defendant in error, it devolves upon him to bring them into the record, either by cross-petition in error or by answer, setting them up as extrinsic facts, as a reason why the plaintiff in error can not have the judgment reviewed on error on the weight of the evidence.
    4. Procedure — Review on Weight of Evidence — Section 5306, Rev. Stat., 93 O. L. 217, Considered.
    Section 5306, Rev. Stat., as amended April 23,1898, 93 O. L. 217, does not affect the jurisdiction of this court to review a judgment of a lower court on the weight of the evidence, where the action was pending, or the right to prosecute error existed, prior to the amendment taking away such rights ; and the statute in force when the action was commenced governs the proceedings in error.
    5. Approaching Railroad Crossing — Required to Loor and Listen.
    It is the duty of a traveler upon a highway, when approaching a railroad crossing, to make use of his senses to ascertain if there is a train in the vicinity; and if, when in full possession of his faculties, he fails to see or hear an approaching train, when a prudent man, by exercising his senses of seeing and hearing with ordinary care, would have discovered a train in close proximity, and he is thereby injured, he is guilty of such negligence as will prevent a recovery.
    6. Omission to Ring Bell or Sound Whistle at Crossing, not Sufficient to Authorize Recovery, When.
    The omission to ring the bell or sound the whistle at a public crossing is not of itself sufficient ground to authorize a recovery, if the party, notwithstanding such omission, by the exercise of ordinary care, might have avoided the accident.
    7. When Undisputed Pacts and Circumstances Show Injury Might Have Been Avoided, Negligence a Question of Law.
    Where the undisputed facts and circumstances show, that by the exercise of ordinary care a party might have avoided injury, in such case the question of negligence becomes a matter of law merely, and the court should so charge the jury.
    Heard on Error.
    Carey & Mullins, for plaintiff in error,
    cited:
    1. The cases most resembling this determined by the Supreme Court of Ohio, are as follows : C. C. C. & I. R. R. Co. v. Elliott, 28 Ohio St. 340; Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66; Pittsburg, Ft. Wayne & C. R. R. Co. v. Krichbaum, 24 Ohio St. 119 ; Cleveland, C. & C. Ry. Co. v. Whittaker, 24 Ohio St. 642; Bellefontaine Ry. Co. v. Snyder, 24 Ohio St. 670 ; Baltimore & Ohio R. R. Co. v. Whitacre, 36 Ohio St. 627 ; Baltimore & Ohio R. R. Co. v. Transportation Co., 32 Ohio St. 116, 147; Wabash Ry. Co. v. Skiles, 64 Ohio St. 468 [60 N. E. Rep. 676]; Pittsburgh, C. & St. E. Ry. Co. v. Peters, 1 Circ. Dec. 20 (1 R. 34); Wells v. Railroad Co., 6 Circ. Dec. 137 (9 R. 340); New York Central & St. L. Ry. Co. v. Swartout, 6 Circ. Dec. 768 (14 R. 582); Cleveland T. & Val. Ry. Co. v. Heiman, 9 Circ. Dec. 222 (16 R. 487) ; Baltimore & Ohio Ry. Co. v. McPeek, 8 Circ. Dec. 742 (16 R. 87); Baltimore & Ohio Ry. Co. v. Stnltz, 9 Circ. Dec. 638 (18 R. 93).

      2. When the material facts in any case are uncontradicted and admit of but one rational conclusion, it has been held in a long line of cases in Ohio that the trial court should so treat them as to direct the verdict of the jury accordingly, and when the court refuses to do so, it is error. Fear v. McMíllen, 17 Ohio St. 464,471; Aetna Ins. Co. v. Church, 21 Ohio St. 492; Yeoman v. Lasley, 40 Ohio St. 339; Columbus, H. V. & T. Ry. Co. v. Burke, 54 Ohio St. 98 [43 N. E. Rep. 282 ; 32 L. R. A. 329]; Minnear v. Holloway, 56 Ohio St. 148 [46 N. E. Rep. 636]; Gart-ner v. Corwine, 57 Ohio St. 246 [48 N. E- Rep. 945]; McAlpine Co. v. Finsterwald, 57 Ohio St. 524, 531 [49 N. E. Rep. 784]; Warder v. Jacobs, 58 Ohio St. 77 [50 N. E. Rep. 97].
    3. It is for the plaintiff below to prove any facts or circumstances excusing what would otherwise be contributory negligence. Pitts-burg, C. & St. E. Ry. Co. v. Peters, 1 Circ. Dec. 20 (1 R. 34).
    James Kennedy, for defendant in error.
   VOORHEES, J.

This case comes into this court on petition in error to review the judgment of the common pleas court of Mahoning county.

Defendant in error, as next friend of Eafayette E. Alburn, a minor, brought this action to recover damages for personal injury to the minor, resulting in loss of services to the defendant in error, John F. Alburn, and for the destruction of the personal property of said defendant, in consequence of an accident which occurred on October 28, 1893.

Without going into detail of the allegations of the pleadings it will be sufficient to state, that the third amended petition sets forth facts suf ficient to constitute a cause of action ; and the averments of the petition as to the want of care on the part of the plaintiff in error, or care on the part of the son of defendant in error, are sufficient as against a demurrer.

The case has been tried twice at least, resulting at each trial in favor of the plaintiff below; and as often, this court on review has set the judgment aside, on the ground that the verdict of the jury was not sustained by the evidence.

One of the contentions now is, that the circuit court, under Sec. 5306, Rev. Stat., as amended April 23, 1898, 93 O. E. 217, cannot grant more than one new trial on the weight of the evidence. This presents the first question which is raised by the motion of defendant in error to dismiss the plaintiff’s petition in error.

The ground upon which the motion is predicated, is, that the record does not contain a true and complete transcript of the proceedings in the case in the court below, in showing the various trials through which it has passed.

It is contended that the transcript should show affirmatively the number of times the case has been tried, and that if a complete record were here, it would show that the case has been reviewed and reversed by this court two or more times on the weight of the evidence; and being so tried and reversed, the same court cannot again review it upon the weight of the evidence; and the record not disclosing these facts, that there is a defect in the transcript, and for this reason the transcript does not meet -the requirements of the law, that there should be a complete transcript of the record below filed with the petition in error.

Section 6716, Rev. Stat., provides that “ The plaintiff in error shall file with his petition, either a transcript of the final record, or a transcript of the docket or journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of.”

And the Supreme Court in construing this section in connection with Sec. 6723, Rev. Stat., in Second National Bank of Bucyrus v. Moderwell, 59 Ohio St. 221 [52 N. E. Rep. 194] held: “ If a paper writing filed in this court ” — Supreme Court — “ as such transcript; etc., is not sufficient to exhibit the error complained of, no amendment thereof or addition thereto can be made after the expiration of such period of six months. Where, however, such transcript, etc., is sufficient to exhibit the error complained of, but the certificate of the clerk of the circuit court or court of common pleas authenticating such transcript is materially defective, such certificate is amendable * * * after the expiration of such period.”

The plaintiff in error does not complain that this cause has been tried twice in the court below and the verdict of the jury set aside by the circuit court on the weight of the evidence; that is not the plaintiff’s complaint. Nor does the plaintiff ask that the judgment be reversed because the case has been tried and set aside twice by a reviewing court on the weight of the .evidence against the same party. That is not the plaintiff’s contention. Therefore, it is not necessary in determining whether there is error in the record, so far as this plaintiff in error is concerned, whether or not the cause was ever tried or reviewed before by this court.

If these facts, as to former trials and reversals on the weight of evidence become material parts of the record, it would devolve upon the defendant in error to bring them into the record, either by cross-petition in error or by answer setting them up as extrinsic facts, as reasons why the plaintiff in error cannot have the judgment reviewed on the weight of the evidence. Collins v. Davis, 32 Ohio St. 76.

If the record or transcript were defective as to extrinsic facts, but not defective in showing the errors complained of by plaintiff in error, they meet the requirements of Sec. 6716, Rev. Stat. The record in this case does show all the error complained of by the plaintiff in error; therefore, the motion to dismiss the petition in error is not well taken and is overruled.

But the court upon examination of the case, through an abundance of caution, think it best to have these facts brought into the record, namely, that this cause has been tried two or more times to a jury, resulting in verdicts for plaintiff below, and upon error prosecuted to this court, the judgments were reversed on the ground that the verdicts were against the weight of the evidence, and an order, suggesting a diminu. tion of record as to the former trials and the action of the reviewing court thereon, will be made.

With these facts in the record an important question is presented; namely, can this court review the verdict' of the jury upon the weight of the evidence ?

This depends at to whether or not the statute, Sec. 5806, as amended April 23,1898, 93 O. L. 217, applies to this case. The section as amended reads as follows :

“ The same court shall not grant more than one new "trial on the weight of the evidence against the same party in the same case.”

Section 5306, Rev. Stat., before the amendment, was as follows:

“ A new trial shall not be granted on account of the smallness of damages, in an action for an injury to the person or reputation, nor in any other action where the damages equal the actual pecuniary injury sustained.”

The exact date, when this action was commenced, the record does not show, but from the third amended petition it appears, that the accident occurred on October 28, 1893. If the accident occurred on October 28,1893, the action must have been brought before April 23,1898. It must have been brought within four years from the accruing of the cause of action. Therefore, the action must have been commenced before the passage of the amendment to Sec. 5306, Rev. Stat.

Is the section as amended applicable to this case ?

This act, being an amendatory one, must be construed in connection with Sec. 79, Rev. Stat., which reads as follows :

Section 79. “ Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed; nor shall any repeal or amendment affect causes of such action, prosecution or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

According to the statute in force when the cause of action in this case accrued to the plaintiff below, and at the time the action was commenced, there was no limitation on the right or power as to the number of times a reviewing court might reverse a judgment, or grant a new trial, on the weight of the evidence against the same party in the same case. Therefore, at the time this action was commenced there was a subsisting right to either party to have any judgment or judgments reviewed and reversed by the circuit court on the weight ot the evidence, regardless of the number of trials and reversals had in the case.

There being no provision in the amendment to the section making it applicable to pending actions, etc., it follows, that the statute in force when the action was commenced must govern this case, and it is to be tried and to be heard on review as if this amendment had not been enacted. Travelers Ins. Co. v. Myers, 59 Ohio St. 332 [52 N. E. Rep. 831]; Chapman Mfg. Co. v. Taylor, 61 Ohio St. 394 [55 N. E. Rep. 1003].

Coming now to the merits of the case, the contention of plaintiff in error is, that by reason of negligence of the plaintiff’s minor son, Lafayette E. Alburn, he, the son, was responsible for the injury he sustained, and by his failure to exercise ordinary care he was responsible for the accident and the serious results that followed to himself, and to the property of plaintiff. This raises two questions :

First. Do the facts, as shown by the record, as to the negligence of the plaintiff’s son, make the question of negligence one of law?

Second. If the question of negligence on the part of plaintiff’s son should be regarded as one of fact for the jury, then is the verdict against the weight of the evidence?

Considering the questions in this order :

1. It is undisputed that where this accident occurred there was nothing to obstruct the view of Lafayette E. Alburn, when he approached the railroad crossing at the time the accident occurred. The topography of the country, as described in the record, puts him in such position and afforded him such opportunity, that if he, in the exercise o ordinary care, had looked and listened for the approach of a train, he would have seen this train that caused the accident.

One about to pass over a railroad crossing has no right to assume, that at any hour or moment he may attempt to cross the track, that no train will approach. He may know that a regular train is behind time ; he may know that the time for its approach at the point of crossing has passed, yet, that alone does not justify him in assuming there will be no train crossing over the highway at the moment he' may have occasion to cross it. He must at all times exercise reasonable care, such care as is required of an ordinary prudent man, and use his faculties of hearing and seeing. He is not exempt from listening merely, he must look and listen ; and if he fails to do either, and by reason of his so failing, injury results to him, it is his fault and he cannot recover.

The law of the case is well settled by repeated decisions by the-Supreme Court of our state; and some of the cases we will refer to.

In Cleveland, C., C. & I. Ry. Co. v. Elliott, 28 Ohio St. 340, the court held:

“It is the duty of a traveler upon the highway, when approaching a railroad crossing, to make use of his senses to ascertain if there is a train in the vicinity; and if, when in full possession of his faculties, he fails to see or hear anything, when a prudent man, exercising his eyes and ears, with ordinary care would have discovered a train in close proximity, and he is thereby injured, he is guilty of such negligence as will prevent a recovery.” And that “ where the undisputed facts show that-by the exercise of ordinary care a party might have avoided injury, he cannot recover.”

Judge Wright, on page 352, says : “ Manifestly a plaintiff cannot with his eyes open, drive squarely into a train, which he sees and knows is before him, and then claim to reco\rer because the bell was not rung nor the whistle sounded.. Equally true is it, that if he could have seen the train, and could have avoided it by the exercise of ordinary care, he cannot recover. And if if the circumstances were such that he could have known and ought to have known, the accident must be chargeable to his own fault. And we hold the rule to be that if, by the exercise ox ordinary care, the plaintiff could have seen and avoided the train, the omission to whistle or ring, alone is not such negligence on the part of the company as will justify a recovery.”

- The court cited with approval Wharton on Negligence, Sec. 382, where the author says :

“ ‘It is the duty of a person who attempts to cross a railroad to listen for signals, to notice all signs that may be put up as warnings, and to look up and down the road. It follows, therefore, that if a traveler b}’ looking along the road could have seen an approaching train in time to escape, it will be presumed, in case of collision, that he did not look, or looking did not heed what he saw, and in such case the road under ordinary circumstances is not liable.’
“ The same author (p. 384) says: ‘ Where a person knowingly about to cross a railroad track may have an unobstructed view of the railroad so as to know of the approach of a train a sufficient time to clearly avoid any injury from it, he cannot, as a matter of law, recover,. although the railroad company may have been also negligent or have neglected to perform a statute^ requirement.’

In Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66, the court, by Wright, J., on page 72, says:

“ We think the law must now be considered as. well settled, that the traveler approaching a crossing, must be upon the lookout for danger. Ordinary care requires that he must look and listen to see if a train is in the vicinity, and if he fails in this, it is not merely evidence of negligence to be considered by the jury, it is itself such negligence as will prevent a recovery.”

Also on page 73, the court says: “ The evidence is clear, that Rathgeb might have seen the train at any point less than three hundred feet from the crossing, until he reached it, and seen it in time to have avoided a collision. Although he says he was near-sighted, still he stated that he could have seen a train for a distance of fifty rods, and his defect of vision was not such as to vary the principle.

“ Being able to see, therefore, and the opportunity of seeing being presented, his failure to discover or to he aware of the approaching cars, we think, was not only evidence of negligence, but negligence itself, and sufficient to justify a vereict against him. And in other parts of the charge, the court declined to say that the positive duty of the plaintiff was to look up along the track, but left it to the jury to determine whether it was incumbent upon him to do so or not. We think such directions do not meet the requirements of the case. The rule should be laid down in such clear terms that there can be no mistake in its application. This case is really disposed of by that of Railroad v. Elliott, 28 Ohio St. 340. In the Cleveland, C. & C. R. R. v. Crawford, 24 Ohio St. 631, the first clause of the syllabus is : ‘ Ordinary prudence requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding danger from an ■ approaching train; and the omission to do so, without a reasonable excuse therefor, is negligence, and will defeat an action by such person for an injury to which such negligence contributed.’ ”

In the late case of Wabash Ry. Co. v. Skiles, 64 Ohio St. 458, the court, by Judge Davis, announcing the opinion, held that where an employe of a railway company whose duty requires him to cross a track in the yards or at his station, “ will be held to the exercise of ordinary care in going from a place of safety upon or across railway tracks; and ordinary care requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a railroad track, should use them for the purpose of discovering and avoiding danger from an approaching train ; and an omission to do so, without reasonable excuse therefor, is negligence which will defeat an action by such person to recover damages for an injury to which such negligence contributed.

“ Where such an employe without looking or listening, steps upon a railway track from a place of safety on a platform, immediately after the passing of a train, and in front of and close to, a backing switch engine, so that he is immediately struck and injured by such engine, he is guilty of contributory negligence, and cannot recover for the injury thus received.”

If a party looks and listens, and the situation, circumstances and surroundings were such, that if he had exercised these faculties, he could not have discovered the threatened danger from the approaching train, then a different rule would apply, and there would be duties devolving upon the railroad company to be considered that do not arise in this case. To illustrate : If the location were such that by reason of obstruction in the way the party, even if he had exercised the caution of looking could not have seen an approaching train, then the question as to whether he listened or not, would become important; and if the railroad company failed to use ordinary care in giving warning, by sounding a whistle, ringing a "bell, or otherwise, such party might not be charged with negligence in attempting to cross the railroad. Cleveland, C. & C. Ry. Co. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633]; W. & L. E. Ry. Co. v. Suhrwiar, 10 Circ. Dec. 715 (22 R. 560).

But suppose when such party approaches the crossing he listens, and hears no whistle or bell, but there is a train in full view, approaching the crossing which he seeks to cross, could it be claimed that he would be exempt from using his faculty of seeing, when by looking, he could have seen such train approaching, although it may not have made any noise, or given warning by a whistle or bell? We think not. Cleveland, C. C. & I. Ry. Co. v. Elliott and Pennsylvania Ry. Co. v. Rathgeb, supra.

Coming to a closer analysis of the facts of the case at bar, did plaintiff’s son see this train approaching, or could he have seen it, had he looked? He claims, that when he was one hundred feet from the crossing he looked in both directions. The undisputed testimony is, that at that distance from the crossing he could have seen a train coming from the west, (the direction from which the train came which caused the injury) at least for a distance of fourteen hundred feet. The record shows that there was nothing to prevent his seeing the train, if he had looked. Then it resolves itself into this condition of facts, either he did not look when he was within a hundred feet of the crossing, or, if he did look, he must have seen tbe train coming. But not resting the case at this point, on the theory, that different minds might possibly differ as to it being negligence per se or a question of law, on the ground or possibility, that at one hundred feet from the crossing, the traih, running at the speed it is claimed this train was running, may not have come within the space of fourteen hundred feet when he looked and listened as claimed at one hundred feet, the record shows that he moved on towards the crossing) his horses in a walk, and when he reached within twenty feet of the crossing he claimed that at that point he again looked and listened. Testing the case now under such conditions how does it stand. The situation of the country at this crossing, from the undisputed facts and admissions of the plaintiff’s said son, are: that he was familiar with this crossing. He knew its location, knew all about it, and with the opportunities he had of seeing,' if he had looked, according to the undisputed testimony, he could have seen beyond the point of fourteen hundred feet when he was within twenty feet of the crossing. But he leaves this place and moves on towards the crossing. The excuse he offers for leaving this place of safety twenty feet from the crossing, is, that he looked and listened and that he heard neither whistle nor bell. But if he looked he must have seen the train. He could not, from the testimony, when he was within twenty feet of the crossing, have looked without having seen the approaching train. At this distance he was in a place of safety, and if he moved on seeing the train coming, it was immaterial as to the speed of the train, or whether it-whistled or not, because he is bound to look and listen, and if either faculty gives him warning, he must heed it. A man would be reckless to drive upon a railroad crossing, although he were deaf, if he saw an approaching train within close proximity. Therefore, this party, from the circumstances and facts disclosed in the record, if he looked when he was within twenty feet of that crossing, he must have seen the approaching train; if he did not look, he was equally negligent. When he reached the point, twenty feet from the crossing and the train was approaching within his view, as appears in the record, he would then be reckless if he undertook to cross; and from these facts and circumstances we must find, that he either looked and disregarded what he saw, or that he did not look, and, therefore, was careless and negligent in approaching, and as a matter of law cannot recover.

But the plaintiff’s son claims that he moved on until he got within five feet of the crossing before he discovered the train, and his attention was first called to it by the sounding of the alarm whistle, and his team became unmanageable and sprang upon the track and he was injured. This would not relieve him from the charge of negligence.

Without spending more time upon the first branch oí the proposition, the one that we think raises the vital question in this case, namely, that under the circumstances disclosed in the record, it was the duty of the court to have said to'the jury, as a matter of law, that upon the undisputed facts and according to plaintiff’s own version of the transaction, I/ilayette E. Alburn was guilty of negligence per se, and that it is not a question of fact where different minds might differ as to whether he was negligent or not, we hold, as a question of law, that the court below should have instructed the jury as requested in the third instruction, by saying to the jury, as a matter of law, that upon the undisputed facts in the case said Lafayette E. Alburn was guilty of contributory negligence, and that the verdict must be for the defendant.

Cleveland, C. C. & I. Ry. Co. v. Elliott; Pennsylvania Ry. Co. v. Rathgeb; Wabash Co. v. Skiles, supra.

2. From the view taken by the court, that section 5306, Rev. Stat., as amended, does not affect this case, it is still open for consideration by a reviewing court upon the weight, of the evidence.

If the case, as presented in the record, rested solely upon the weight of the evidence, notwithstanding the rule that a reviewing court should not reverse simply because it differs from the jury upon the facts, yet where there is substantially no evidence to support the verdict, or the verdict is manifestly against the weight of the evidence, in such case it is the duty of the reviewing court to set aside the verdict and judgment based thereon. And this is the conclusion of the court, upon a review of the evidence, that the verdict is against the weight of the evidence.

Therefore, this cause is reversed and the judgment set aside, because : it is contrary to law, and the verdict of the jury is against the manifest weight of the evidence.