text:
    NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    February 26, 1910.]
    Giffen, Smith and Swing, JJ.
    Daniel Ziegler v. Wuerdeman Co.
    1. Negligence on Part of Operator of a Machine to Try to Clean it while in Motion when it Would be at Rest in Five to Eight Minutes.
    When thé operator of a dough mixer was directed by his foreman to dust his mixer and clean his machine while the machine was in a mix which would have been out in five to eight minutes it was negligence on his part to undertake to clean his machine while in motion, it being the uniform custom to wait until the machine was empty and at rest to do so.
    2. Unguarded Cogwheel not Proximate Cause of an Injury when Guard Would Have Been Removed to do the Work Necessary.
    That cogwheels were not guarded cannot be charged as the cause of an injury resulting to the operator of the machine while cleaning such cogwheels, when it would have been necessary to remove the guard, if there had been one, to do the work.
    Error to Hamilton common pleas court.
    Charles Phares and Carl Phares, for plaintiff in error:
    Cited and commented upon the following authorities: Republic Iron & Steel Go. v. Yanuszka, 16 O. F. D. 000 [166 Fed. Rep. 684]; Ziehr v. Paper Co. 28 O. C. C. 342 (7 N. S. 144) ; Laidlaw-Dunn-Gordon Co. v. Miller, 31 O. C. C. 559 (12 N. S. 246) ; Narramore v. Railway, 10 O. F. D. 7 [96 Fed. Rep. 298; 37 C. C. A. 499]; Pittsburgh & Lake Erie Ry. v. Blair, 5 Circ. Dec. 366 (11 R. 579), reversed,'no op., Blair v. Railway, 55 Ohio St. 689 (memorandum, 1 O. S. C. D. 549; 37 Bull. 59); New York, C. & St. L. Ry. v. Woods, 6 Circ. Dec. 350 (9 R. 322), affirmed, no op., Railtvay v. Woods, 58 Ohio St. 710; Stephens v. Railway, 86 Mo. 221; 1 Labatt, Mas. & Serv. 1237 Sec. 439; Van Duzen Gas & Gas. Eng. Co. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998].
    Robertson & Buchwalter, for defendant in error.
   SMITH, J.

It was not error for the trial court to instruct the jury to return a verdict for the defendant in error at the time it did in the proceedings, if when the plaintiff in error rested his case said motion should have been granted.

The plaintiff in error after stating in his petition that he was employed by the defendant in error to operate a dough mixer, alleges that it was his duty also to clean and operate this mixer; that while so employed he was peremptorily ordered by the foreman of the defendant company to clean the machine while the same was in motion and while the cogwheels of said mixer were revolving rapidly, although as set up it was the custom to clean this machine while it was at rest. He further alleges that without time or opportunity to reflect or realize the danger of obeying the order of the foreman by reason of the machine being in motion, he commenced the, work of cleaning it; that, in so doing his fingers were caught and crushed between the cogwheels; that said cogwheels had no guard upon them, and that in not providing such guard the defendant in error was negligent.

The evidence of the plaintiff in error discloses that he worked for the defendant in error from December 3, 1903, to June 15, 1904, upon a certain dough mixer, a period of six and' one-half months, when he was hurt. His age was about twenty-seven years. At the time he was employed the machine was explained'to him. He had charge of it to run it, and knew how to stop it, and cleaned it when through with the day’s work. He testified that the foreman said to him on the day when he was injured “let that work go and dust your mixer and leave those bins-; go and clean your machine. ’ ’ It was his custom after the machine was cleaned on the inside, to stand it up, tilt it and dust the outside, when it was not in motion. He says that prior to the accident he always had the machine stopped, whenever he dusted or cleaned the outside. It took from eight to fifteen minutes for the mix of dough to run through the machine, and at the time he was hurt the mix in the machine had been running about five or eight minutes. He further testifies that he had full charge of the machine after he had been in the employ of the defendant company a week, and that when he was hurt he did not stop to think that the machine should be stopped to dust it, and a witness (called in his behalf) also testified that the machine was never to be cleaned and oiled while in motion.

Under the allegations of the petition, we think the evidence offered in behalf of the plaintiff, the answer setting up the fact that the plaintiff in error was injured by reason of his own negligence, clearly shows that the motion to direct a verdict for defendant in error was well taken. He was not told by the foreman, as alleged in his petition, to dust the mixer while it was in motion, and as he had never done this before and knew that no person else had ever undertaken to clean or dust the mixer while in motion, and that by waiting five or eight minutes longer for the mix to pass through the machine, he could then take the dough out, clean and dust the machine, it would seem that by his own statement he was clearly guilty of negligence on- his part.

We do not think the section of the statute relating to the guarding of the cogwheels is applicable in this case, for while there was no spiard upon the cogwheels, yet to have dusted them it would have been necessary to remove such guard had there been one. The proximate cause of the accident was the failure of plaintiff in error to stop the machine or allow it to come to rest before undertaking to clean or dust it.

It is apparent, therefore, that the evidence produced by the plaintiff in error upon the trial, shows that it was his own negligence that caused his injury, ánd therefore the court was justified in instructing a verdict for defendant in error.

The judgment will therefore be affirmed.

Giffen and Swing, JJ., concur.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    BILLS, NOTES AND CHECKS — EVIDENCE.
    [Hamilton (1st) Circuit Court,
    January 22, 1910.]
    Giffen, Smith and Swing, JJ.
    Samuel Hoffman et al. v. Wiedeman Brewing Co.
    Time of Maturity and Manner of Payment of a Note are Material and Should be Properly Charged upon.
    The time of maturity of a note and the manner of its payments are material parts thereof, and it is error to refuse to charge the jury with reference to these matters where they constitute issues of fact which the jury must determine.
    Error to Hamilton common pleas court.
    B. C. Fox, for plaintiffs in error.
    W. C. Taylor, for defendant in error.
   SMITH, J.

The court is of the opinion that the judgment of the trial court-¡0^ the above case should be reversed.

We see no objection to the admission in evidence of the note sued on, nor do we find any error in the trial court giving the special charge asked by defendant in error.

The sole question of fact being one of alteration of the promissory note sued upon, we think there was error in not giving to the jury the two special charges asked by the plaintiffs in error, one of which related to the time after the date of the note when it became due, and the other to the insertion in the note by the defendant in error, the words, ‘ ‘ payable ten dollars per week.”

We do not think these questions were properly submitted to the jury in the general charge of the court. As we have already said, they raised the question of fact as to alteration, and under Secs.' 3171m and 3175o Rev. Stat. (Gen. Code 8119 and 8121), the jury were called upon to determine this from the evidence under proper instructions. The date borne by a. promissory note has been held to be a material part thereof (Newman v. King, 54 Ohio St. 273 [43 N. E. Rep. 683; 35 L. R. A. 471; 56 Am. St. Rep. 705]), and we see no reason why the time of maturity of a note, or the manner of its payment is not also a material part thereof. If this is true, then it was simply a question of fact to be determined by the jury whether or not the alterations made in this respect were made by the agreement of the parties or not, and we think the trial court upon this question did not properly charge the jury as set out in the general charge.

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

Giffen and Swing, JJ., concur.


text:
    ATTACHMENT — NAMES—PLEADING—PROCESS.
    [Hamilton (1st) Circuit Court,
    May, 1910.]
    Giffen, Smith and Swing, JJ.
    M. S. Daniels v. Mitchell Taylor.
    1. Attachment Lies against Nonresident Corporation in Civil Action nob Money.
    An action upon an account for the recovery of money is a civil action within the meaning of Sec. 11819 Gen. Code (R. S. 5521) upon which an attachment may issue against a nonresident corporation.
    2. Designation by Initials not Ground to Set Aside Attachment.
    Attachment will not be set aside upon the ground that defendant has been sued by the initials of his Christian and middle names in conformity to Sec. 11259 Gen. Code (R. S. 5010) if such designation is that commonly used by him in business transactions, was the one by which he was commonly known and indicates who is meant thereby; in such case it is not necessary for the verification of the petition to allege that plaintiff could not discover the true name of defendant', nor that the summons contains the phrase “real name unknown.”
    3. Description oe Articles Attached not Necessary as to Personalty.
    A description of attached property is not necessary under Sec. 11295 Gen. Code (R. S. 5047), providing for constructive service by publication where the property attached is personalty. Hence, notice to defendant that personal property belonging to him has been attached and return disclosing “forty ear loads of staves” levied upon are sufficient. Green v. Coit, 81 O. S. 280, distinguished.
    Error to Hamilton common pleas court.
    Paxton, Warrington & Seasongood, for plaintiff in error.
    Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   SMITH, J.

The court is of the opinion that the judgment of the trial court overruling the motion of plaintiff in error to set aside the attachment issued in the above case should be affirmed.

The action is a civil action upon an account for the recovery of money, and the attachment was issued upon the ground that the defendant is a nonresident of the state of Ohio. We think the action as brought is within See. 11819 Gen. Code (R. S. 5521).

It is further claimed that the motion to set aside the attachment should have been granted for the reason that the defendant is sued as “M. S. Daniels,” without stating in the verification of the petition that the plaintiff could not discover the true name of the defendant and that the summons did not contain the words “real name unknown.” It is apparent that plaintiff in error was known to defendant in error in all his dealings as “M. S. Daniels,” and so far as defendant in error is concerned the true name was as stated and his real name was not uniknown to defendant in error. A name is a word to designate a person or thing; a man’s name is the. designation by which he is distinctly known in the community. 21 Enc. 305. It is the designation by which ■any individual is known, and in this case the defendant named “M. S. í)aniels” is the same person intended to be sued and is sued, although his Christian name is “Morris.” If initials have been commonly used by any individual in the transaction of his business affairs, and he has been commonly designated by such for his Christian and middle names, and they plainly indicate who is meant thereby, we see no reason why such individuals should not be'so known. In this case the one who seeks ~to set aside the attachment is clearly the same person sued as “M. S. .Daniels.”

While Sec. 11259 Gen. Code (R. S. 5010) provides that parties to ;a written instrument by initial letter may be so designated in an action thereon, yet this section would not preclude the bringing of other actions against a defendant by using the initial letters of his Christian .•and middle names. To the plaintiff in this case the defendant’s real name was not unknown, but his name was “M. S. Daniels.”

We think the property attached is sufficiently described in the sheriff’s return. Green v. Coit,. 81 Ohio St. 280, we do not think is applicable to the case at bar; that case related to an attachment upon real estate and the return did not show the property attached. In the 'present case the return discloses that forty car loads of staves were attached, appraised and taken into possession by the sheriff of this county, who mow holds the same, and they are the identical staves attached and no •others, and their identity is always fixed.

For the same reason as above we think the attached property is •sufficiently described in the service by publication. This sets forth that an attachment was issued and levied on personal property belonging to the defendant. Under Sec. 5047 Rev. Stat. (Gen. Code 11295) providing how publication shall be made in suits in attachment, we do not think it was necessary to give a description of the attached property, but if so, a notice to the defendant that personal property belonging to fnm blip been attached, the kind of personal property can be readily •ascertained by him by referring to the sheriff’s return, said property •¿being in the possession of the sheriff.

We think the return of the order of attachment is sufficient, both as to the date thereof as well as that the appraisers were disinterested* freeholders. For the above reasons the judgment of the court below will be affirmed.

Giffen and Swing, JJ., concur.


author: GIFFEN, J.

text:
    ASSESSMENTS — LIMITATION OF ACTIONS.
    [Hamilton (1st) Circuit Court,
    May, 1910.]
    Giffen, Smith and Swing, JJ.
    Joseph E. Fox et al. v. Cincinnati et al.
    Certification of Assessment fob Sidewalks Requisite Act to Save Limitations.
    The particular act which saves an assessment from the two years’ statute’ of limitations fixed by Sec. 3906 Gen. Code (R. S. 2297) is its certification by the municipal corporation to the county auditor by virtue of Sec. 3865 Gen. Code (B. 1536-237).
    Fox & Fox, for plaintiffs.
    Fyffe Chambers, for defendant.
   GIFFEN, J.

Under Sec. 71 Mun. Code of 1902 (Gen. Code 3854) the written notice required therein may be served upon the agent of the owner of abutting land, and it sufficiently appears that W. F. Fox was the agent of the owners and served with notice.

While the agreed statement of facts shows that the assessment appeared for the first time upon the tax duplicate for the year 1908, yet it does not appear that the same was certified to the auditor more than two years after it was payable. It is the action taken by the corporation in certifying the assessment to the auditor of the proper county, See. 3865 Gen. Code (B. 1536-237), which saves it from the two years’ limitation, and if this was done prior to August 29, 1908, the statute was complied with.

Section 3905 Gen. Code (R. S. 2295) authorizes a penalty of 10* per cent to be collected upon any unpaid assessment, and even conceding; that the penalty should be computed only on the amount of the assessment, without including the interest due, it is a mere trifle not requiring the action of the court.

The petition and cross petition will be dismissed.

Smith and Swing, JJ., concur.


author: MARVIN, J.

text:
    BILLS AND NOTES — PLEDGES.
    [Cuyahoga (8th) Circuit Court,
    February 7, 1910.]
    Henry and Marvin, JJ. (Winch, J., not sitting.)
    Edward W. Moore v. Central Nat. Bank of Cleveland.
    1. Agent foe Collection of Note Secured by Pledge is not Holder Having the Right to Purchase Collateral upon Sale by Such Agent to Pay Note.
    An agent with whom a note has been left for collection and to whom securities therefor have been delivered for sale if necessary to secure the collection, is not the “holder” of the securities within the meaning of a default clause in the note authorizing the holders to sell the securities “with the right on the part of such holders to become purchases” thereof; hence such agent cannot, either against the pledgee or pledgor, become the purchaser at a sale made by such agent.
    2. Purchase of Securities of Note by Collecting Bank is not Ratified by Maker’s Knowledge that Note was Paid.
    Delivery of a cancelled note secured by collateral is notice to the maker that the bank, to whom the note with securities was sent for collection, has paid the note, and also holds the collateral, especially since the maker had requested the collecting hank to pay the note and retain the securities for Its own protection and notwithstanding the bank refused to accede to such request. The maker relyiDg upon this fact and having no notice of the sale of and purchase by such bank does not ratify the purchase so as to bar an action for conversion of the proceeds of such securities in excess of the indebtedness upon the note.
    Appeal from Cuyahoga common pleas court.
    Kline, Tolies & Moriey, for plaintiff.
    Hoyt, Dustin, Kelley, McKeehan & Andrews, for defendant.
   MARVIN, J.

The plaintiff brings his action against the defendant, which is a banking institution, organized under the laws of the United States, and doing business in the city of Cleveland, state of Ohio, praying that certain certificates of stock of the Detroit United Railways Company, which he once owned, and which were afterwards in the hands of the •defendant may be delivered to tbe plaintiff upon his paying to the defendant such sum of money as the court shall find is owing by the plaintiff to the defendant that an accounting may be had of the dividends received by the defendant on said stock while in its hands, and that if it shall be found that the defendant has disposed of said stock, then that an accounting may be taken to include whatever may have been received by the defendant for said stock, and that the plaintiff may recover whatever the amount received in dividends and upon the sale of said stock shall exceed the. indebtedness of the plaintiff to the defendant.

The following facts we find established:

Prior to December 20, 1901, the plaintiff was indebted to the defendant in the sum of $78,000, and also prior to said December 20, 1901, the plaintiff was indebted to the Industrial Trust Company, a banking institution of Philadelphia, Pa., in the sum of $25,000, for which the last named company held the plaintiff’s note, and as collateral security for the payment thereof held the certificates of stock which are the foundation of the present action, and which certificates were the property of this plaintiff. The par value of said stock was $50,000. On said December 20, 1901, the trust company sent to the defendant the said note, in the city of Cleveland, Ohio, where the plaintiff then resided, for collection, and at the same time sent with the note the said collateral. The $25,000 note became due on said date and the defendant immediately notified the plaintiff that said note was in its hands for collection, and that it also had in its hands said collateral. The plaintiff answered that he was unable to pay the note that day or the next, but would arrange it very shortly. Before December 31, 1901, the plaintiff received notice more than once, after the notice first mentioned, that the note was in the hands of the defendant for collection and must be paid. No payment, however, was made by the plaintiff on the note, and on December 31, 1901, the defendant notified the plaintiff that the note must be paid at once, or that the collateral would be sold. The note referred to contained the following provisions:

“I, -, upon default of payment at maturity - do hereby authorize and empower the holders hereof, for the purpose of liquidation of said note, and of all interest and costs thereon, to sell, transfer and deliver the whole or any part of such security (being the five, hundred shares of Detroit United Railways Company stock) without any previous demand, advertisement or notice, either at [Broker’s board or at private sale, at any time or times thereafter, with the right on the part of such holders to become purchasers and absolute owner thereof, free of all trusts and claims.”

On the afternoon of said December 31, at the close of banking hours, the defendant, without any notice to anybody, in front of its place of business on Superior avenue in the city of Cleveland, announced that the said five hundred shares of stock were now offered, for sale to the highest bidder. Nobody paid any attention to said announcement except the officers or employes of the defendant. The attorney of the defendant made the announcement and the offer of sale, and the defendant bid for said stock the sum of $25,050, being the exact amount that day owing upon the note already mentioned. No other bid was made and the attorney who had offered the stock for sale, announced that it was sold to the defendant. The next day being the first of January, and a holiday, no entry of the transaction was made on the books of the defendant, but, on the second of January an entry was made that the stock was sold to the defendant at private sale, and thereupon the defendant remitted to the trust company in Philadelphia the amount then due upon its note, being the amount for which said stock was so purported to be sold. Prior to December 31, aforesaid, the plaintiff had stated to the defendant, what was true, that he was laboring under great financial embarrassment; that payment on notes held against him by various parties was being demanded ; that his assets were largely in excess of his liabilities, but that he was unable to convert such assets at once into money, and therefore unable to pay his obligations as they became due; that another bank in the city had promised him that so far as notes came due it for collection it would arrange for the payment of same, and hold the collateral to protect itself, and he urged that the defendant do the same thing in regard to this note. This, the defendant told him it would not do; that it must insist that he pay the note. The plaintiff had no knowledge of this purported sale on December 31, other than the notice given to him on the morning of that day, that unless the note was paid That day the collateral would be sold. And the plaintiff prior to December 31, said to the defendant that he hoped if the stock was sold there would be no publicity about it, as he feared the effect on the market value of the stock, and upon his credit if it should be publicly known that this collateral was being sold. The plaintiff says in his testimony, that the first knowledge he had of this sale was communicated to him by the president of the defendant on January 14, 1902; that he was then told by this president that they had sold the stock to themselves, and had paid the note to the trust company, and would hold this collateral as security to themselves for the payment they had made and for the other indebtedness of $78,000 which plaintiff then owed to the defendant. This conversation the president of the defendant denies, and we are not prepared to say that the plaintiff sustains by preponderance of the evidence that this conversation took place, as he relates it. But in this opinion we treat the matter as though the plaintiff had not so testified. We think he is as likely to be mistaken about his remembrance of this as the president of the defendant. But. however, we do find that on February 5, 1902, the defendant transmitted by mail to the plaintiff the note which it had paid to the trust company in Philadelphia, which was cancelled as “paid” on December 31, 1901, and that such cancellation was stamped upon the note upon the date last named. The plaintiff acknowledged by letter the receipt of this note so cancelled. Beyond that there was no communication between the plaintiff and the defendant in reference to said note until June 4, 1902, while the defendant still held the said collateral, when the plaintiff sent to the defendant, by mail, a draft drawn upon him on Mr. Charles Ashbrook, for $37,500 and by letter accompanying said draft, advised the defendant that he had sold the five hundred shares of Detroit United railways’ stock which it was carrying for him, and that this draft was in payment therefor. In this letter he requested the defendant to apply the proceeds of this draft on his indebtedness to the bank. The defendant immediately notified the plaintiff that it claimed to own said stock; that it had purchased the same on December 31, 1901, and denied all right on his part to any interest in the stock.

Thereafter, partly in the month of June and partly in the month of July, 1902, the defendant sold said stock for $40,000.

This suit was brought on April 9, 1906. Before that time the plaintiff had fully paid to the defendant all of the indebtedness other than that connected with this note, being the $78,000 hereinbefore mentioned. The plaintiff claims that he is entitled to the full amount received by the defendant on the sale of this stock, less the amount necessary to reimburse it for its payment to the trust company at Philadelphia. The defendant denies that under the facts the plaintiff is entitled to any recovery, but insists that by virtue of the purported sale of December 31 it became the absolute owner of this stock, and the defendant further pleads, that in any event more than four years elapsed after its appropriation of this stock as its own, before any suit was brought, and that more than four years elapsed after the plaintiff had knowledge of its claim, that the stock belonged to itself, because it says that the plaintiff was bound to take notice of that fact, if not before then on the day that he received from the defendant the can-celled note which it had paid to the trust company in Philadelphia, that the plaintiff is therefore barred by the statute of limitations from prosecuting this action.

Many additional facts were developed in the trial of the case, but we regard those already stated, with a proper application of the law to them, as decisive of the ease.

But for the statute of limitations the plaintiff is entitled to recover, unless by the purported sale of the stocks on December 31, 1901, the defendant became the absolute owner of this stock, either because the sale alone transferred the ownership, or because the same was ratified by the plaintiff when he came to know of it, for even if the sale did not confer a complete title when it was made, the title might become complete by ratification of the plaintiff after knowledge of it came to him.

It becomes necessary then to consider whether the sale in and of itself transferred the title to the defendant. It is too well established to require the citation of authorities or any powers of reasoning, that except where authority is expressly given for that purpose, the pledgee cannot be the purchaser of the pledged securities, either at public or private sale. The language of the note which it is claimed authorized the purchase here has already been quoted, and is here repeated: “I, -upon default of payment at maturity do hereby authorize - the holders hereof * * * to sell the whole or any part of such security: * * . * at any time thereafter, with the right on the part of such holders to become purchaser and absolute owner thereof, free of all trusts and claims.”

It will be noticed that this authority to purchase is given only to the holder of such securities. The sale was made, not to the pledgee, but to an agent of the pledgee, whose only interest in the matter was to obtain payment of the note. The purchase was made not for the pledgee, but for the agent in his own right. Was the defendant the holder of the note in the sense in which that word is used in the clause of the note quoted? We think not. Parsons, Notes & Bills Sec. 253, reads:.

“By the holder of negotiable paper is meant in law the owner of It, for if it be in his possession, without title or interest, he is in general •considered only as the agent of the owner.”

Daniels, Neg. Instr. Sec. 716, defines the'holder of a negotiable instrument as:

“Anyone who has acquired it in good faith for a valuable eonderation from one capable of transferring it.”

Surely the agent with whom the note had been left for collection, •>ud to whom the securities had been delivered, for sale, if necessary ¿o secure the collection, except he be the holder of the securities as we have said the defendant ivas in this ease, could not, either as against the pledgee or the pledgor, become the purchaser at the sale made by such agent. Mecham, Agency Sec. 68 reads:

“For the same reason, one cannot be both the party and the agent for the opposite party in the same transaction. Thus, as will be more fully explained hereafter, except with the full knowledge and consent -of his principal, an agent appointed to buy lands or goods for his principal cannot buy of himself; and an agent to sell lands or goods for his principal cannot sell to himself, nor can an agent authorized to receive payment for his principal bind the latter by the receipt of money due from himself.”

And so we hold that the defendant did not become the owner of these stocks by virtue of the purported sale of December 31, 1901.

Under the facts, as stated, the only knowledge the plaintiff had of what the defendant had done with the securities was obtained from the delivery of the cancelled note to him by the defendant on February 5, 1902.

From that fact he did know that the defendant had paid his note .and we think was fairly notified that it still held the collateral.

Of course, if the defendant had, as a volunteer, paid the debt of the plaintiff to the trust company of Philadelphia, the plaintiff was entitled forthwith to the delivery of the stock to him, and might have made demand at once for such delivery, treating’ the further holding of the collateral as a conversion, then made, and if he delayed making such demand beyond the period of limitation fixed by the statute, he would be barred. In view, however, of the fact that he had requested the defendant to pay the note for him and retain the securities for its own protection, although the defendant had notified him that it would not do so, yet when he found that it had paid the note, and still held -on to the collateral securities he would have been and should have been defeated, if he had brought an action for the delivery of the stock to him, or an action for the value of the stock, on the ground that the defendant had converted the same to its own use. The most-favorable construction to the conduct of the defendant which the plaintiff could have given, he being ignorant of the purported sale on. December 31, was' that which his conduct indicated that he did give,, to wit; that the defendant had complied with his request to pay the-note and retain the collateral for its own protection. In short, that, it — “Vowing it would ne’er consent, consented.”

It is said that this is the most favorable construction which the-plaintiff could give to the conduct of the defendant because to have-given any other construction would have resulted, if such other construction was justified, in depriving the defendant of the protection, afforded by the retention of these stocks. If the plaintiff was justified, as we think he was, in giving the construction to the conduct of the defendant first suggested, then there ,was no ratification by him of the purported sale, because he knew nothing of it; nor was there-any conversion, actual or constructive, by the defendant until the date-in June, 1902, when the plaintiff drew on the defendant and was notified that the defendant claimed the stock as its own.

See Glidden v. Bank, 53 Ohio St. 588 [42 N. E. Rep. 995; 43 L. R. A. 737], the second and third paragraphs of the syllabus of which, read as follows:

“If the pledgor do not so elect, the pledgee, while he retains the-possession and control of the property with the ability to perform his-part of the contract by restoring the property to the pledgor, cannot be held for its conversion, without demand for its return accompanied with an offer by the pledgor to perform his part of the agreement.

“When, however, the pledgee puts it out of his power to perform his part of the agreement, by an unauthorized disposition of the property, he will be liable for its conversion without demand and offer of performance by the pledgor; and when he has so disposed of a part of the property, he may be held for the conversion of all of it, as of the time of such disposition.”

Again, upon principles of equity, the defendant may be,held as holding this stock as trustee for the ■ defendant, after the payment of this note, and so not liable for its conversion, until' it actually párted with it by sale in June and July, 1902, or in any event until it notified the plaintiff in June that it claimed to own the stock and denied that he had any right to it, in the absence of any contract about it.

For a discussion of this view see: Bispham, Pr. of Eq. Sec. 91 et seq.

After a discussion of the principle in Sees. 91 and 92 this writer says in Sec. 93:

“The rule under discussion applies not only to persons standing in a direct fiduciary relation towards each other * * * but also to those who occupy any position out of which a similar duty ought in equity and good morals to arise.”

It seems clear to us that in good morals, the defendant should have held this stock for no purpose but to indemnify it for the payment made to the trust company, and that it may well be held, therefore, to have held this as trustee, in which case, so long as it held it, the plaintiff had no right of action against it until he tendered payment of .the amount of his debt, and hence was not, barred in his present action by the statute.

This principle is stated in the case of Carpenter v. Canal Co. 35 Ohio St. 307, at page, 317, as follows:

“The court will sometimes make use of the machinery of a trust to aid an injured party in obtaining property, the title to which has been acquired by another by fraudulent means. * * * Relief in such case is granted on the ground of fraud, and the statute of limitations will not be a bar where there is concealment.”

The third paragraph of the syllabus in this case reads:

“An action for wrongfully depriving a mortgagee of Ms security is barred in four years, whether such action is for a tort or for relief on the ground of fraud by charging the guilty party as a trustee. In the former ease, the action is deemed to have accrued at the time of the injury; in the latter ease, on the discovery of the fraud.”

Perry, Trusts Sec. 168, discusses constructive trusts, and includes among them “trusts that arise from constructive fraud,” and says that:

“In this class the conduct may not be actually tainted with moral fraud or evil intention, but it may be contrary to some rule established by public policy for the protection of society. Thus a purchase made by a guardian of his ivard, or a trustee of his cestui que trust, or by an attorney of his client, may be in good faith, and as beneficial to all parties as any other transaction in life, and yet the inconvenience and danger of allowing contracts to be entered into by parties holding such relations to each other are so great that courts of equity construe such contracts prima facie to be fraudulent, and they construe a trust to-arise from them.”

And in Sec. 167 of the same work, it is said:

“It is not, however, the rule that the court will presume or construe a trust to arise except in cases of absolute necessity; for courts-of equity will act upon the just preponderance of all the facts and circumstances of proof in the case.”

While it is not supposed that the defendant did that which it understood to be a fraud upon the plaintiff, especially as the evidence fails to show that the price it assumed to pay was not fully as much as could have been obtained from any other person, yet, in holding onto this stock, under the purported sale of December 31, 1901, it did that which in legal effect worked a fraud upon this plaintiff, if it was. done without his knowledge or consent, and we hold that though he-knew that the defendant was holding on to the stock, yet if he understood and had a right to understand that such holding was simply to protect itself for the payment which it had made to the trust company, his making no claim or protest about it,, did not constitute a consent on his part to its holding such stock under the purported sale. The result would be that the statute of limitations did not begin to-run against him until he was notified in June, 1902, of the claim of the-defendant under such purchase.

The result is that we find the defendant did not become the owner of the stock, by the purported sale on the thirty-first day of December; that such sale was never ratified by the plaintiff. That the only justification for the defendant in holding this stock, after it had paid the note to the trust company, was to protect itself from loss on account of such.payment, and that because in doing so, it was complying-with what the plaintiff had requested it to do. That it was not complying with the terms under which it held the stock when it sold the same in June and July, 1902, and that the plaintiff is entitled to an accompanying and to a recovery for the amount received for the stock, with interest thereon, after deducting' therefrom the amount paid by it for the plaintiff to the trust company, with interest thereon, and an. order is made accordingly.

Henry, J., concurs.


text:
    MASTER AND SERVANT.
    [Hamilton (1st) Circuit Court,
    March 5, 1910.]
    Giffen, Smith and Swing, JJ.
    George E. Mason v. John R. Ferguson.
    1. Duty of Foreman to Inspect Scaffold Must be Proven.
    In an action by an employe for injuries resulting from falling of a scaffold,, the master can be held liable on the ground of negligence of his foreman only when it is proven that it was the duty of such foreman to inspect the scaffold in question.
    2. Bricklayer's Scaffold not an Appliance within Meaning of Sec. 4238o Rev.. Stat. (Gen. Code 6242).
    The provisions of Sec. 4238o Rev. Stat. (Gen. Code 6242) as to an employer’s, liability for injuries to an employe notwithstanding the negligence of a fellow-servant, do not apply to a temporary scaffold, erected on land of a third person by a carpenter for a brick layer to work on in building a. wall.
    Error to Hamilton common pleas.
    W. W. Smith and H. C. Busch, for plaintiff in error:
    Cited and commented upon the following authorities: Goal & Mining Co. v. Clay, 51 Ohio St. 542 [38 N. E. Rep. 610; 25 L. R. A. 848]; Pittsburg, C. & St. L. By. v Banney, 37 Ohio St. 665; Little Miami By. v. Fitzpatrick, 42 Ohio St. 318; Brady v. Norcross, 172 Mass. 331 [52 N.. E. Rep. 528]; Adasken v. Gilbert, 165 Mass. 443 [43 N. E. Rep. 199]; Hoppin v. Worcester, 140 Mass. 222 [2 N. E. Rep. 779],; Colton v_ Bicharás, 123 Mass. 484; Kelly v. Norcross, 121 Mass. 508; Boss v. Walker, 139 Pa. St. 42 [21 Atl. Rep. 157, 159; 23 Am. St. Rep. 160]; Hoar v. Merritt, 62 Mich. 386 [29 N. W. Rep. 15]; Dewey v. Parke, IB Mich. 631 [43 N. W. Rep. 644 |; Marsh v. Herman. 47 Minn. 537 [50: N. W. Rep. 611]; Dube v. Lewiston {City), 83 Me. 211 [22 Atl. Rep.. 112] ; Brown v. Gas Light Co. 81 Vt. 4.47 [71 Atl. Rep. 204]; Peffer v. Cutler, 83 "Wis. 281 [53 N. W. Rep. 508]; Columbus & Xenia By. v. Webb, 12 Ohio St. 475; Kelly Island Lime & Transp. Co. v. Pachuta, 69' Ohio St. 462 [69 N. E. Rep. 988; 100 Am. St. Rep. 706].
    M. O. Burns and Powell & Smiley, for defendant in error.
   GIFFEN, J.

The plaintiff in the original action, J. R. Ferguson, was injured' by reason of the scaffold upon which he was working as a bricklayer-breaking and precipitating him to the ground. The negligence charged was the use of a defective board called the “ledger,” which supported the platform upon which he was working, and was attributed to the carpenter, a fellow-servant of the plaintiff, or to the foreman who inspected the scaffold after it was constructed.

Although there is no positive proof that it was the duly of the foreman to inspect, yet it may fairly be inferred from his testimony that it was customary for him to inspect, and that he did inspect this scaffold before it was used. If he did not, therefore, exercise ordinary care in performing that duty, his want of care would be chargeable to the defendant, because the evidence is undisputed that he was placed by the defendant in authority and control over the plaintiff. If, however, the evidence is insufficient to support a finding that it was the foreman’s duty to inspect, then the question arises whether the defendant is responsible for the negligence of the carpenter, a fellow-servant of the plaintiff, or in other words, do the facts bring the case within the provisions of Sec. 4238o Rev. Stat. (Gen. Code (5242) :

“An employer shall be responsible in damages for personal injuries caused to an employe, who is himself in the exercise of due care and diligence at the time, by reason of any defect in the condition of the machinery or appliances connected with or used in the businesss of the employer, which arose from, or had not been discovered or remedied owing to the negligence of the employer, or of any person in the service of the employer, intrusted by him with the duty of inspection, repair, or of seeing that the machinery or appliances were in proper condition.”

The chief object in enacting this section was not to impose a liability upon an employer for failing to perform his duty to exercise ordinary care to furnish a reasonably safe place for his employes to work in, or reasonably safe machinery and appliances to work with, because that liability already existed at common law; but to impose a liability upon the employer for negligence of fellow-servants in performing the duties therein mentioned.

It was not the duty of the defendant to furnish to the plaintiff a permanent and completed appliance, but it was itself a part of the work which he and his fellow-workmen were engaged in, to wit, the building of a brick wall, the scaffold being constructed in sections as the work progressed. The common law liability of the defendant ended when he furnished reasonably safe materials and reasonably competent men to do the work. It was the duty however of the carpenter to use ordinary care in constructing the scaffold, and in seeing that it was in proper condition, for failure of which duty the statute makes the employer liable, unless as claimed by counsel the scaffold in question was not an appliance within the meaning of this section. A similar statute in the state of Massachusetts, which has been often construed by the supreme court of the state, is as follows:

“Where after the passage of this act personal injury is caused to an employe, who is himself in the exercise of due care and diligence at the time; by reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer, which arose from or had not been discovered or remedied owing to the negligence of the employer or of any person in the service of the employer and intrusted by him with the duty of seeing that the ways, works or machinery were in proper condition '* * * the employe has the same right of compensation and remedies,” etc.

In the case of Burns v. Washburn, 160 Mass. 457 [36 N. E. Rep. 199], the first proposition of the syllabus is as follows:

“A temporary staging, put up by masons in the employ of a contractor for the purpose of erecting a building on the land of a third person, is not apart of the employer’s ‘ways’ or ‘works’ within St. 1887, c. 270.”

In the case of Adasken v. Gilbert, 165 Mass. 443 [43 N. E. Rep. 199], the second proposition of the syllabus is as follows:

“A temporary staging, .put up by an employer and. his fellow-servants for the purpose of painting the outside of a building is not within the term ‘ways, works or machinery’ in St. 1887, c. 270.”

The reason assigned is that the statute refers to ways or works of a permanent character, such as are connected with or used in the business of an employer; and that it does not apply to a temporary structure like a staging erected on the land of a third person.

So likewise we are of opinion that Sec. 4238o Rev. Stat. (Gen. Code 6242), does not apply to a temporary scaffold erected on the land of a third person; but was intended to avoid the rule stated in the case of Little Miami Ry. v. Fitzpatrick, 42 Ohio St. 318, and like cases.

The court charged the jury as follows:

“If you find from the evidence that the platform in question was an appliance used in the business of the defendant and necessary in his business then this statute would apply. ”

The temporary nature of the scaffold is undisputed in the record, henee this instruction is erroneous and no. doubt influenced the jury to return a verdict for the plaintiff, although they may have found it to be the duty of the foreman to inspect the structure when completed, and that he negligently performed that duty.

The judgment will therefore be reversed and the cause remanded for a new trial.

Smith and Swing, JJ., concur.


text:
    CONTRACTS — BILLS, NOTES AND CHECKS — PAYMENT.
    Hamilton (1st) Circuit Court,
    January 26, 1910.]
    Giffen, Smith and Swing, JJ.
    W. F. Margeson v. Eckart Kellar.
    Payment not Available as a Defense under Answer Setting up Want op Consideration.
    Payment as a defense to an action on a note cannot be proven under an. answer alleging only want of consideration.
    Error to Hamilton common pleas court.
    Bates & Meyer, for plaintiff in error.
    Jones & James, for defendant in error.
   SMITH, J.

Plaintiff in error’s action below declared upon a promissory note. Defendant’s answer sets up a want of consideration for the same.

The case was tried upon the theory that the note was paid by defendant in error by way of usurious interest paid thereon, and the court in its charge to the jury stated that payment in this matter could be proven by defendant in error.

Want of consideration for a note and payment of the same are two^ separate, distinct defenses, and if defendant in error relied upon payment to discharge his liability it was necessary that it should be pleaded. Lord v. Graveson, 26 O. C. C. 371 (4 N. S. 268). As this was not dohe, the court therefore erred in admitting evidence relative thereto, and in-charging the jury in that respect.

Hpon the whole record we do not feel that this court would be justified in entering judgment for plaintiff in error. The judgment of the court will therefore be reversed and a new trial granted, so that upon proper pleadings the matter in controversy can be determined as the justice of the case would seem to demand.

Giffen and Swing, JJ., concur.


author: PER CURIAM.

text:
    ADVANCEMENTS — WILLS.
    [Madison. (2nd) Circuit Court,
    March 29, 1909.]
    Dustin, Sullivan and Allread, JJ.
    J. W. Goodson, Exr., v. Thomas Goodson.
    An Advancement to Devisee may be a Charge upon Devised Lands.
    A loan by a father to a son, subsequent to the execution by the father of his will, which is evidenced as follows “Received of G. G. $900 to be taken out of his estate” signed T. G. is to be charged in equity upon the real estate devised to such son by the will, and an executor is not entitled to a personal judgment against such son in an action to recover such loan.
    Error to Madison common pleas court.
    A. T. Cordray and McCloud & Lincoln, for plaintiff:
    G. W. Wilson, for defendant.
   PER CURIAM.

This action was brought in the court of common pleas by the plaintiff in error to recover of defendant the amount of an alleged loan and to charge the amount against a devise of real estate.

A demurrer was sustained to the petition and final judgment rendered. The ease is brought here by petition in error.

The petition in the court below sets forth that plaintiff’s decedent, George Goodson, devised certain real estate after the death of his wife to his son Thomas (the defendant), and certain other real estate to his son John; that the personalty was devised to the testator’s daughters, and that after the execution of the will the testator loaned to Thomas, who was then insolvent, $900 under agreement that Thomas was to repay it out of any portion of the father’s estate the son might receive, and that said loan was evidenced by the following receipt:

“Londón, Ohio, April 13, 1900.
“Received of George Goodson nine hundred dollars (900) to be taken out of his estate.
“Thomas Goodson.”

We think the rights of the parties may Be determined by a construction of this instrument in the light of surrounding circumstances.

The signing of the receipt by Thomas, and its preservation by the father by fair inference sustains the view that he (Thomas) was in some way to be charged with the amount. This inference is supported and strengthened by the clause “to Be taken out of his estate.” The clause alludes to a future event or occasion. It cannot, fairly, be held to refer to the delivery of the money to Thomas, or the taking of it out of the father’s hands. That had already been done and no obligation or receipt of Thomas was necessary to accomplish that object. The terms contemplated a future adjustment or settlement of the amount receipted for. The term “estate” is often used with reference to one’s property after death. An order, draft or check implies that the amount is to be charged against the drawer, although not expressed.

That Thomas was to be charged with the amount of the receipt may be implied and read into the receipt, as is done in case of bank ■checks.

There is, we think, a fair inference that Thomas was to be charged with the amount of this receipt, to Be taken out of his father’s estate mpon distribution, or at the time he came into enjoyment of it and it was charged to him (Thomas). The word “his” before estate might and does refer to Thomas, as contracts are often written in the third person, and we think the construction given by us is the most tenable.

While we think the plaintiff is not entitled to a personal judgment, yet it is appropriate that the amount be charged in equity upon the real estate devised to Thomas.

The petition justifies this relief and to that extent states a cause of action.

The judgment below is therefore reversed, with instructions to overrule the demurrer.


text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    February 26, 1910.]
    Giffen, Smith and Swing, JJ.
    Frank Unnewehr Co. v. Frank L. Smith.
    .Failure of Master to Instruct a Sixteen Year old Box as to Defects of Machine mat be Negligence.
    A machine being defective in such a way that a boy sixteen years old could not reasonably be expected to appreciate the dangers resulting from such defects, it is the duty of the master, if he knew of such defective condition, to instruct such boy as to such defects and dangers, and failure to do so is negligence.
    Error to Hamilton common pleas court.
    The defendant in error recovered a verdict of $5,000 on account of the loss of a hand in machinery while in the employ of the Unnewehr Company, but the verdict was reduced by a remittitur to $3,500.
    Robertson & Buchwalter, for plaintiff in error.
    Cogan & Williams, for defendant in error.
   GIFFEN, J.

In addition to general verdict for plaintiff the jury returned the following findings of fact:

“Q. What act or conduct, if any, of this defendant was negligent in the sense of a neglect of ordinary care which caused this plaintiff’s injury?
“A. Lack of instructions to plaintiff in operating press and proper maintenance of press as to general repairs.
“Q. What defect if any was there in the printing press or its appliances which caused the plaintiff’s hand to be caught in the press?
“A. Loosening of key in the tight pulley of the press.”

It is claimed that inasmuch as the plaintiff had operated similar printing presses, and understood the work which was in itself simple, there could be no instruction given that would have avoided the accident; but the testimony showed the absence of the ordinary device for shifting the belt from the fixed pulley to the loose pulley on the line shaft, and for holding it in place, and that the key designed to hold the fixed pulley firmly to the shaft was loose, the tendency of all of which being to cause the belt to slip from one pulley to the other and start or stop the press according as it was running on the fixed or loose pulley.

This the defendant knew, or by the exercise of ordinary care would have known, while a boy of sixteen years of age would not likely appreciate the danger of the machine suddenly starting. The primary duty of the defendant as to remedy the defect, and if that was not done then to instruct or warn the plaintiff:

The following portion of the general charge is claimed to be erroneous :

“It was the duty of the defendant, in the exercise of ordinary care, if it directed plaintiff to work at his machine, to furnish a machine and appliance that were reasonably safe for the work intended, and if same was not reasonably safe, and you find that said machine or employment thereupon and under the condition as charged was dangerous for a boy of plaintiff’s age, intelligence and experience to operate, and that the defendant knew, or in the exercise of ordinary care would have known, such to be the facts, then it was defendant’s duty to properly instruct plaintiff how to operate the machine in safety to himself and to warn him against dangers therefrom, if danger there was.”

The first part of this instruction imposes an absolute duty on the defendant to furnish a machine and appliances that were reasonably safe for the work intended, which is incorrect, but as here used seems to us not prejudicial. It is merely primary and forms a basis for the ultimate duty imposed by the charge, to wit, “to properly instruct plaintiff. ’ ’

In other words, if the machine was not, from any cause, reasonably safe, was especially dangerous for a boy of plaintiff’s age and experience, and the defendant knew or by the exercise of ordinary care would have known such to be the facts, the duty to instruct was manifest.

The special instruction at page 131 of the bill of exceptions pertains to the same subject-matter, and exacts a higher degree of care on the part of the defendant than the law requires; but, although erroneous, it does not affect the finding of the jury of negligence in maintaining repairs of press and appliances which, as before stated, was the primary duty of the defendant.

A careful consideration of the record discloses no error prejudicial to the rights of the defendant, and the judgment will be affirmed.

Smith and Swing, JJ., concur.


text:
    EVIDENCE — NEW TRIAL.
    [Hamilton (1st) Circuit Court,
    February 26, 1910.]
    Giffen, Smith and Swing, JJ.
    Cincinnati Traction Co. v. Florence Fesler.
    Newly Discovered Evidence Must be Such as Will Require a’ Different Verdict to Warrant a New Trial.
    A new trial will not be granted on the ground of newly discovered evidence, unless the legitimate effect of such evidence would be to require a different verdict, and not merely such as might induce a jury to give a different verdict (R. S. 5309; Gen. Code 11580).
    Error to Hamilton common pleas court.
    The defendant in error recovered a judgment below of $2,955 on account of injuries sustained in alighting from a street car.
    Joseph Wilby, for plaintiff in error.
    Cogan & Williams, for defendant in error.
   SMITH, J.

The two grounds of error relied upon by plaintiff in error for a reversal of the judgment below.are:

First. That the verdict and judgment are against the weight of the evidence.

Second. That a new trial should have been granted on account of newly discovered evidence.

The court has examined the record in this case and cannot agree with counsel for plaintiff in error that the verdict and judgment is •against the weight of the evidence.

The newly discovered evidence relates to certain statements contained in the affidavits of Elizabeth P. Fridman and Harrison "Willauere Lowe relative to the condition, complaints and conduct of the defendant in error from the middle of November, 1908, to February 4, 1909. Said statements, being such as claimed by counsel for plaintiff in error, might tend to disprove the condition of defendant in error as testified to by her at the time of the trial.

We do not think the statements disclosed by the affidavits can be ■classified as newly discovered evidence. It is the province of the court to determine whether by the introduction of newly discovered evidence a different verdict ought to be obtained. The rule seems to be, that in considering the motion for a new trial upon the ground of newly discovered evidence, the court will not inquire, whether taking the newly discovered evidence in connection with that exhibited on the trial, a jury might be induced to give a different verdict, but whether the legitimate effect of such evidence would be to require a different verdict. Ludlow v. Park, 4 Ohio 5.

In considering all of the affidavits in the bill of exceptions in this record, we do not’ believe that if a new trial'was granted and such statements offered as evidence they would require the jury to return a different verdict.

There being no errors in the charge of the court the judgment will be affirmed.

Giffen and Swing, JJ., concur.


author: GIFFEN,-J. .

text:
    ATTORNEY.
    [Hamilton (1st) Circuit Court,
    January 8, 1910.]
    Giffen, Smith and Swing, JJ.
    Gustave R. Werner v. George Zehler Provision Co.
    Attorney Has no Lien on Money Agreed upon in Settlement op Claim.
    A right of action for services rendered does not exist in favor of an attorney and against one from whom he had sought to recover damages for- personal injuries for a client when a compromise settlement had been agreed upon direct and money paid to client.
    Error to Hamilton common pleas court.
    The plaintiff was employed by Frank Husz to prosecute a claim against the George Zehler Provision Co. for personal injuries, and alleged that knowing of his employment and of the lien he had for services on whatever amount might be recovered, the defendant company through their counsel, settled with Husz for $500 and paid the entire amount direct to him. The plaintiff claimed that under his contract with Husz he was to receive one-half, and sued for $250. Judgment was given below for the defendant.
    G. R. Werner, for plaintiff.
    Robertson & Buchwalter, for defendant.
   GIFFEN,-J. .

The judgment will'be affirmed upon the authority of Weakly v. Hall, 13 Ohio 167 (42 Am. Dec. 194), and Pennsylvania Co v. Thatcher, 78 Ohio St. 175 [85 N. E. Rep. 55],

Smith and Swing, JJ., concur.


text:
    CONTRACTS.
    [Hamilton (1st) Circuit Court,
    January 29, 1910.]
    Giffen, Smith, and Swing, JJ.
    Joseph C. Groff v. Frederick Hertenstein.
    Contract fob Board and Tuition for a Given Time may be Discharged as to-. Part of Time by Illness of Pupil Incapacitating Him from Attending! ' School.
    Illness of a pupil, incapacitating him from attending school during the-last half of a year for which his father had contracted for his board and-tuition at an agreed price for the school year, paying in advance for-the first half, is an occurrence over which the parties had no control * as an act of God. Both parties will be deemed to have acted upon the-assumption that if any such event intervened the agreement for the full year would be discharged; hence, no recovery can be had fonboard and tuition of such pupil for the last half of such year.
    Error to Hamilton common pleas court.
    C. P. Johnson, for plaintiff in error.'
    F. M. Coppock, for defendant in error.
   SMITH, J.

The plaintiff in error in his petition claimed that the defendant, in error had placed his son in his school for one year and had agreed to pay to him for tuition and board for that year $1,200; that of this, amount $600 has been paid and there was still due from the defendant in error the remaining sum, $600.

The defendant in error denied this agreement and claimed that the-contract was for the first part of the school year from September 30, 1907, to January 31, 1908, for which he had paid plaintiff in error said $600. He also set up as a defense that he did not return his son to< the school of plaintiff for the latter part of the year for the reason that, by an act of God, to wit, the serious illness of his son; he had been prevented from sending him; and thereby the contract was discharged,. if it was for a full year.

Whatever the contract was between the parties, whether for the entire school year or for a shorter period, it is apparent that the same-was not in writing and had to be determined by the jury from all the facts, words, acts, conduct and circumstances surrounding the parties, at the time. Both questions as to what the contract was and whether-the contract was discharged by act of God were submitted to the jury and a verdict returned in favor of the defendant.

If the sole question’ had been before the jury as to what the contract was between the parties then the case might easily be disposed of, ibut the second defense having been interposed, it is difficult to say which defense or whether both defenses were found in favor of defendant in error by the jury.

We think there was no error in the court refusing the three special charges asked by plaintiff in error; the latter two of which relate to the question as to whether or not the contract was suspended or discharged by the illness of defendant’s son.

The evidence clearly shows that the son was not returned to school by defendant in error on. account of his serious illness. This was something over which neither plaintiff nor the defendant had control and such an occurrence must' have been in the minds of the parties at the time the agreement was made if it was made for one full school year. They both must have acted upon the assumption that if any such event intervened whereby the boy was rendered physically incapable of attending the school, then the agreement for the full school year would be discharged. Death or a disability which renders performance impossible discharges the contract. Marvel v. Phillips, 162 Mass. 399 [38 N. E. Rep. 1117; 26 L. R. A. 416; 44 Am. St. Rep. 370]; Stewart v. Loring, 87 Mass. 306 [81 Am. Dec. 747].

We do not think the authorities cited by plaintiff in error are applicable to the case at bar, but believe the rule as laid down in the above cases, and in our conclusion herein, to be the more reasonable. We find no error in the record and the judgment of the court is therefore affirmed.

Swing and Giffen, JJ., concur.


author: VOORHEES, J.

text:
    EXECUTORS AND ADMINISTRATORS.
    [Licking (5th) Circuit Court,
    October Term, 1909.]
    Taggart, Donahue and Voorhees, JJ.

      Catherine Evans (Admrx.) v. William D. Evans et al.
    Claims against Estate op Decedent not Enfobcible Years after Estate has been Closed — Repose of Rights — Waiver.
    The settlement made by an administrator will not be opened up forty years after the estate was closed in order to let in the claim of the widow for her first year's suppoit, where no such claim was asserted at the time the estate vías being settled.
    S. L. James, for plaintiff in error.
    Kibler & Montgomery, for defendant in error:
    Cited and commented upon the following authorities: Hill v. Henry, 17 Ohio 9; Fisher v. Mossman, 11 Ohio St. 42; Glenn, In re Est., 23 O. C. C. 397 (3 N. S. 608) ; McCreight, In re, 9 Dec. 450 (6 N. P. 479) ; Todhunter v. Stewart, 39 Ohio St. 181; Rockel, Prob. Prae. 176, 187, Secs. 211, 226; Woemer, Administration 189, 190, 568, Secs. 267, 268; Mallory v. Raihvay, 53 Kas. 557 [36 Pac. Rep. 1059]; Rierdon, In re Est., 5 Dee. 606 (5 N. P. 516) ; 18 Cyc. 151, 152, 394; Hubbard., v. Wood, 15 N. H. 74; Mathes v. Rennet, 21 N. H. 188.

      Affirmed, Evans v. Evans, 56 Bull. 7; 83 O. S. 000; affirming, Evans v. Evans, 20 Dec. 000.

   VOORHEES, J.

This action is a proceeding in error; and the object of the proceeding in the probate court was to have revoked letters of administration issued to Catherine Evans, plaintiff in error, on the estate of John E. Evans, deceased.

John E. Evans died intestate in 1869. Letters of administration were granted on his estate to his brother who filed his final account in 1870. Upon the confirmation ,of said account by the court the administrator paid over the balance remaining in his hands to the widow, the said Catherine Evans. She gave her receipt to said administrator for said balance in full settlement of said account and of said estate.

During the administration of said estate no allowance of the “year’s support” for the widow was made or allowed to said plaintiff in error; no application or demand for the same was made by her or any one for her. _

Forty years or more after the settlement of said estate application was made for the appointment of an administrator on said estate of said John E. Evans, deceased, for the sole purpose of having said “year’s support” allowed to the plaintiff in error, and upon said application the plaintiff in error was appointed. The only purpose or object of said appointment is to have allowed to said plaintiff in error, as widow of John E. Evans, deceased, a “year’s support.” No application for the appointment of an administrator de bonis non on said estate has ever been made, and the plaintiff in error’s appointment is not as administratrix, de bonis non, but original administratrix upon an estate which had been fully settled for forty years.

A motion was made in the probate court by defendants in error to revoke the letters of administration, granted to the plaintiff in error, and such proceedings have been had in the probate and common pleas courts that the case is brought to this court on error.

From the record in the case it is shown that the estate of John E. Evans, deceased, was settled by his administrator in 1870 and distribution was made according to law, and the widow, plaintiff in error, receipted to the administrator for what was coming to her.

If there had been an allowance made to the widow for her “year’s support” in the original administration, and an application for an increase had been made in a reasonable time, before the estate had been settled, it doubtless could and would have been recognized. But will either a court of equity, or law, after so great lapse of time, open up the-final settlement of an estate to let in a stale claim such as this one? We think not.

In Webster v. Bible Society, 50 Ohio St. 1 [35 N. E. Rep. 297], the policy of the law in regard to a claim like this is pretty clearly indicated. At page 14, the court uses this language:

“Our law favors the prompt and speedy settlement and distribution of estates, and has provided adequate remedies and procedure for the accomplishment of that result. Limitations upon the commencement of actions against executors and administrators, are not more for their, protection, than for the security of the estates of deceased persons, and the repose of rights and titles derived from and through them. ”

Again at page 18, same case, the court say:

“We are also of the opinion, that if the plaintiff’s action was not strictly within any provision of the statute of limitations or if the statute was not applicable to it at all, the claim was a stale one when. presented to the assignee. It has long been established that equity will refuse its aid, independent of the act of limitations, after great lapse of time. Reasonable diligence must be exercised in asserting their claims by those who seek the active aid of a court of equity.”

The plaintiff in error has slept upon her rights for forty years, and now seeks to open up this estate in regard to a claim she could have asserted at any time during the administration of her husband’s estate before it was finally settled in 1870. We think she has waived her right to have this allowance of the “year’s support” allowed to her after waiting these forty years.

The judgment of the court below is affirmed with costs. Exceptions noted.

Taggart and Donahue, JJ., concur.


text:
    CORPORATIONS — PLEADING—QUO WARRANTO.
    [Franklin (2nd) Circuit Court,
    April 2, 1910.]
    Taggart, Donahue and Voorhees, JJ., of the fifth circuit, sitting in " ' -- the Franklin ^circuit judges.
    State ex rel. Atty. Gen. v. National Cash Register Co.
    1. Motion Lies to Strike Redundant and Irrelevant Matter from Petition in Quo Warranto.
    A motion will lie in an action for quo warranto to strike from the petition redundant and irrelevant matter which is prejudicial to the defendant.
    "2. In Quo Warranto against Corporation Pleading Generally Usurpation and Misuser of Franchise Sufficient.
    A petition in an action for quo warranto against a corporation is sufficient which charges the defendant, in general terms, with usurping and misusing corporate privileges and franchises, and with exercising powers and privileges inhibited by law, without specifying in detail the particulars in which the corporation is usurping, misusing and exercising such powers, privileges and franchises.
    3. Specification of Pertinent Particulars Constituting Usurpation of Corporate Rights not Prejudicial.
    Where the petition in an action of qiio warranto against a corporation, after charging the defendant in general terms with usurping and misusing corporate powers and franchises, and. with exercising privileges and franchises inhibited by law, also proceeds to speeify in detail some of the particulars of such usurpation and misuser, such specification of particulars, if pertinent to the inquiry, is not prejudicial and will not be stricken out on motion.

      4. Unlawful Trust Formed by Corporation and Officers not Avoided by Dissolution of Old and Creation of New Trust Continuing Unlawful Conspiracy.
    When an unlawful trust or conspiracy against trade has been formed by a corporation and its officers, stockholders and agents, the trust or conspiracy does not lose its identity by the action of the participants in dissolving or abandoning the corporation and transferring its property and business to a new corporation organized by them for the purpose-of continuing the unlawful trust or conspiracy; and if the new company so organized continues the trust or conspiracy already formed, it and its participating officers, stockholders and agents must answer for the previous acts of the old company and its officers, stockholders and. agents committed in furtherance of the common design.
    6. In Quo Warranto Inquiry by State may be Made as to All Acts of Participants Subsequent to Formation of Trust Proscribed.
    In an action of quo warranto charging a corporation with forming and being a party to a trust and conspiracy against trade in violation of the-Ohio antitrust act (93 O. L. 143), the state may inquire as to all acts committed by any participant from the time it is alleged that the trust or conspiracy was formed.
    6. Trust Formable by Corporate Officers, etc., Who may be Counted in. Making Parties.
    A corporation and its own officers, stockholders and agents, without the-participation of others, may be guilty of forming a trust and conspiracy against trade in violation of the Ohio antitrust act (93 O. L.-143), and all, including the corporation, may be counted in making up the two. or more necessary parties.
    [Syllabus by the court.]
    Quo Warranto.
    U. G. Denman, Atty. Gen., for plaintiff.
    Wilson & West, for defendant.
   PER CURIAM.

This case is submitted to this court upon a motion to strike out parts of the petition and to make the petition definite and certain.

While we have given full consideration to all the questions raised by this motion, we do not think it necessary or advisable at this time to discuss them in detail in this memorandum.

The plaintiff insists that no motion will lie to the petition either to strike redundant or irrelevant matter therefrom, or to make the petition definite and certain. Section 6760 Rev. Stat. designates a proceeding in quo warranto as a civil action, to be brought in the name of the state. Section 6772 provides what pleadings are to be, filed after the petition, and these pleadings are the same as are authorized by the civil code. It would, therefore, appear that this motion is properly filed in this case.

The motion seeks to strike from the petition certain allegations, therein contained, as being redundant and irrelevant. It is claimed, in support of this motion, that if all these matters and things sought to be stricken* out were fully proven in the trial of the case, it would not entitle the state to a decree as prayed for in its petition. In the case of State v. Canal Co. 23 Ohio St. 121, 126, the Supreme Court says:

“The office of an information in the nature of a quo warranto, is not to tender an issue of fact, but simply to call upon the defendant to show its warrant or charter for exercising the privileges and franchises named.”

It would appear from this, as well as from many other authorities in this and other states, that whenever the state calls upon a defendant tó show by what authority it exercises corporate franchises, the allegations in the petition of the attorney-general may be of the most general character. But the attorney-general, in the case at bar, has seen fit not only to set forth the powers granted by the state, and to aver that the defendant is proceeding to abuse and misuse these corporate franchises and privileges so granted, and is assuming and exercising rights, privileges and franchises not granted by its charter and especially inhibited by law, but has also specified in detail the particulars in which the state claims that this defendant has violated its corporate franchises, and the particulars in which it has misused the same and wherein it is assuming to exercise rights^ privileges and franchises especially inhibited by law.

It is perhaps true that the petition would have been sufficient for the purposes of this ease if it had closed with the last paragraph on page five of the printed copy of the petition, followed by an appropriate prayer for the relief desired. Yet it cannot be prejudicial to the defendant that the attorney-general in this petition, or information, has set out in detail the matters and things complained of. So that the only question is as to whether these matters and things so set out are pertinent to the inquiry, and, if proven, whether they would amount to such misuse and abuse of its franchise or to an exercise of unlawful powers, authorizing the courts to revoke its charter. This petition sets forth in detail the organization of prior and successive corporations in this state and in New Jersey for the purpose of conducting the business and property to which this defendant has, in its turn, succeeded; and also charges these former corporations with being parties to the original conspiracy which has been maintained through all the life of each of said corporations, and is still being maintained by the corporation, now defendant herein. The defendant asks that all of that be stricken out for the reason that it cannot be responsible for the acts of other corporations, committed before it was in existence. This, perhaps, as an abstract proposition of law, is correct; but the charge here is that this present corporation is composed of the same stockholders, having the same officers and agents as each of the former corporations, and that it is, in fact, identical in body and mind with each of the original corporations, and that this identity has been maintained at all times since the original conspiracy, as charged, was formed. It is true that each corporation is a separate legal entity, but, as stated by the Supreme Court of Ohio, in the first paragraph of the syllabus in the case of State v. Oil Co. 49 Ohio St. 137 [30 N. E. Rep. 279; 15 L. R. A. 145; 34 Am. St. Rep. 541], this “legal entity, apart from the natural persons who compose it, is a mere fiction, introduced for convenience in the transaction of its business, and of those who do business with it; but * * * when urged to an intent and purpose not within its reason and policy, may be disregarded.”

It would be absurd to say that certain individuals could organize themselves into a body politic and corporate, which fictitious entity might become a party to a conspiracy to violate the laws of the land in the creation of a trust and monopoly and in the destruction of competition, that when it had contributed by its efforts and its capital largely to this end, that these same individuals might abandon that corporation lest they and it be punished for the wrong and its charter revoked, organize a new and independent corporation to take its place m the conspiracy so that the business might go on uninterrupted and unchallenged by the state and this new corporation, or new conspirator, joining the conspirators in the furtherance of the common design, and accepting all the property, benefits and advantages already acquired for it by the united efforts of the former corporation and its coconspirators, and yet be exempt because it had no part in the original conspiracy.

The supreme court of Illinois, in the case of Cooke v. People, 231 Ill. 9 [82 N. E. Rep. 863], has declared that

“Every person entering into a conspiracy already formed is deemed, in law, a party to all acts done by any of the other parties, before or afterwards, in furtherance of the common design; and the entry of such person into a conspiracy already formed does not make a new and distinct conspiracy.”

We are, therefore, of the opinion that the state may inquire, and the court may be advised, as to all acts done or committed by any party to this conspiracy from the time it is charged that the same was formed; and that the state cannot be restricted to the few acts and. things that may have happened since the joining of a new member to the conspiracy.

True, it is this new member whose conduct is tó be inquired of, and it is not to be punished for the acts and wrongs of others unless it has become party to the wrongs complained of and has taken its place in the conspiracy charged, and is doing and is performing the things charged against it. But, in order that its conduct may be understood, and that the court may be fully advised in relation thereto, it is perfectly proper to show not only what is being done, but what has been done by others in the furtherance of this conspiracy from the moment of its inception down to the present time; and the motion in that respect will be overruled.

The next important question raised by the motion and particularly urged upon our attention is the repeated charge in this petition that this defendant corporation has combined and conspired with divers of its • officers and directors, stockholders, agents and others to create and maintain a trust and monopoly; and we are asked to strike from this petition the averment that it has conspired with its officers, directors, stockholders and agents, for the reason that a corporation cannot enter into a conspiracy with those officers and agents in charge of its affairs.

If this prosecution is to be measured by the Valentine act (93 O. L. 143), then we are of the opinion-that these officers and agents may be counted as one of the necessary parties to a conspiracy, and the corporation may be counted as the other. In the case of the Standard Oil Co. v. State, 117 Tenn. 618 [100 S. W. Rep. 705; 10 L. R. A. (N. S.) 1015], the supreme court of that state declared that a corporation and its officer or agent, engaging in a criminal or unlawful conspiracy, must both be held to be parties to it, and must both be considered and counted in computing the necessary number of two or more to constitute a conspiracy. We think this is the correct doctrine. Any other rule would make a conviction impossible in most of these eases, for it would only be necessary for the corporation to employ as its agent any of the individuals, firms, or other corporations to carry out the ■purposes and intention of the conspiracy, and that employment would then eliminate such agents from the unlawful compact, and insure immunity from all prosecutions. So that it must be held to be the law that whenever any individual, whether he be an officer or an agent of a corporation or not, joins with that corporation in an unlawful enterprise, he becomes one of the parties to that enterprise, and may be counted as such in determining whether a conspiracy existed or not. For that reason, the motion in that respect must be overruled.

It is also insisted in support of this motion that there are a great many redundant statements and much irrelevant matter pleaded. We are inclined to the belief that there is some redundancy here that, ought to have been avoided, but it would be difficult to' separate now and would create more confusion than if it were permitted to remain.

The only object in striking out redundant matter is to simplify the pleadings and to make plain the issues in the case. We think no good would be accomplished here in endeavoring to strike out any statement that appears to be redundant. The petition, as. it now stands,, is not obscure in any particular, and does not encumber the record to any grievous extent, and we, therefore, overrule the motion in that particular.

As we have already said, this petition would perhaps be sufficient, without the averment of the specific wrongs complained of, but we do not think that that is prejudicial to. the defendant, or that the same-are immaterial or irrelevant, or in any way embarrasses it in making its defense.

Therefore, that part of the motion is overruled.

It is also asked in this motion to compel the plaintiff to make the-petition definite and certain We have already said that it is now more than can be required in that behalf. It is definite and certain, and avers and specifies, in detail, the acts and things complained of; the manner in which said defendant is charged with misusing its corporate-franchises and privileges; its assumptions of powers and privileges not granted, and the exercises of powers and privileges inhibited by law.

There are other questions raised by this motion which we do not think necessary to discuss at this time. It is sufficient to say that the motion as a whole is overruled, and the exceptions of the defendant are noted.

The defendant may have leave to further plead in thirty days, from the date of the entry of the overruling of this motion.


author: WILDMAN, J.

text:
    DAMAGES — EXPLOSIVES—EVIDENCE—MASTER AND SERVANT-TRIAL.
    [Lucas (6th) Circuit Court,
    January 22, 1910.]
    Parker, Wildman and Kinkade, JJ.

       Cincinnati, H. & D. Ry. v. Stanislaus Tafelski, Admr.
    1. No Right Exists for Person to Store Dynamite Where and How he Chooses on his Own Property if Property or Ltves of Others will be Endangered.
    A railroad company does not have an unquestionable right to store its dynamite cartridges wherever and however it pleases upon its own property; such dangerous substance must be so taken care of that it will not injure the property and lives of others.
    2. Not Error to Permit Widow and Children to Sit within has when They
    are Beneficiaries of the Case.
    It is within the discretion of trial court to permit a widow and children, beneficiaries of the trust represented by the nominal plaintiff, to sit within the bar and in view of the jury during trial, and overruling a request to exclude them is not error.
    3. Proposition Once Overruled by Court may Sometimes be Properly Renewed.
    There may be cases when counsel may properly renew some proposition to the court even after it has ruled against him, if he thinks he can throw new light upon the matter, and discussion before the jury as to the propriety of certain argument is not necessarily misconduct.
    [Syllabus approved by the court.]
    Error to Lucas common pleas court.
    Julian Tyler, for plaintiff; in error.
    O. S. Brumback, for defendant in error.

       Affirmed, no op., Cincinnati, H. & D. Ry. v. Tafelski, 55 Bull. 423; 83 O. S. 000.

   WILDMAN, J.

This is a proceeding to reverse a judgment rendered in favor of Tafelski in the court below upon a verdict of the jury for $5,500 damages. Tafelski is the representative of the estate of one John Bugaj who was killed by an explosion of dynamite in the yard of the defendant company, the dynamite being stored so as to be ready for use in breaking up and dislodging frozen iron ore. The occurrence was on January 30,1905, and this dynamite and fulminating caps were stored in one of two “shanties,” or unused freight cars which had been taken from their trucks and were kept upon the company’s grounds adjacent to some of their tracks.

The claim of the petition is, in one respect at least, that the company was negligent in storing dynamite and caps in this car, in a certain cupboard therein and at the same time providing these cars as places for rest for employes when awaiting their call to work, or, at least, in permitting the workmen to congregate in these cars. In that season of the year, in extremely cold weather, the car in which the dynamite and fulminating caps were stored was warmed by a stove, supplied with fuel presumably owned by the company. It is claimed on behalf of the plaintiff in error that the decedent, Joseph Bugaj, who was killed by the explosion, was at best a mere licensee of the company in the occupancy of this car or in being in its immediate vicinity at the time of the explosion; that he was not at that time in the prosecution of any work for the company and that he was not directed by the company to be upon the car or about it. Some of the dynamite sticks or cartridges were taken from the cupboard where they were stored and placed upon a shelf, very close to the stove, which was evidently heated to an extreme heat. There is testimony in the case that it was very commonly heated “red-hot.” The grease or oil on the dynamite, took fire by reason of its proximity to the stove, which fire finally seems to have reached the cupboard where the caps and other dynamite cartridges were stored.

A man by the name of Tomas, another employe of the company, whose duty it was to explode the cartridges, having the key to the cupboard, removed some of the boxes of dynamite cartridges therefrom, and threw out from the car some of those which had been put upon the shelf, but he was unable to remove all that were in the cupboard. The men who were in the car took fright when the fire started, removed themselves from the car and in doing so knocked Tomas down, and he was finally obliged to abandon the effort to rescue the remaining cartridges from the cupboard. The explosion seems to have caught Bugaj when he was in the neighborhood of this car and in a sort of a passageway between another box car used for a similar purpose and a car containing coal, or at least one of a train of freight cars situated upon another track and but a few feet from the one of the box ears which it is not claimed contained dynamite cartridges and which was not fired. The side door of that car which I have last mentioned was swung open and extended as it swung open so close to her car which was standing upon the other track that it is claimed on behalf of the plaintiff below it apparently barred escape — and the claim is that probably in his effort to run away, he ran into this sort of a blind alley and was stopped there; at any rate, that is where his body was found.

Numerous reasons are assigned by the plaintiff in error for the setting aside of this judgment. It would not be profitable to review them all in detail, but I will refer very briefly to some of those which have been most prominently mentioned and discussed.

In the first place, it is said that at the close of plaintiff’s evidence, and perhaps at the close of the whole evidence, motions were made to arrest the case from the jury upon two grounds: One, that the petition did not state facts to constitute a cause of action; the other, that there was no proof to justify a verdict for plaintiff. The court overruled these motions, and, of course, the first question which would address itself to our minds is the question of the sufficiency of the petition itself. We deem the petition sufficient. It clearly charges that it was the duty of the company to store the dynamite and caps in some place at a distance from that in which the men were permitted to congregate when waiting for their call to work; that that duty was violated; that the caps and cartridges were in this cupboard; that plaintiff’s decedent was not aware of their being there; that he was not aware of the dangers arising from their being so stored; that the company did have knowledge of their being so stored and knew the danger and negligently permitted them to remain. We think that the petition is sufficient and that the court did not err in overruling the motion upon that ground.

We think, further, that there was evidence justifying the leaving of the matter to the jury to determine whether or not the company was negligent in these respects. We are not inclined to agree with counsel for plaintiff in error that a presumption arose from the evidence in the case that the decedent was guilty of contributory negligence so that it became essential to remove such presumption. He is not’ here to testify and no one is able to describe his conduct specifically. We have the evidence as to the general conduct of the persons who were in the car and attempting to escape, but very little is known as to what plaintiff’s decedent did, except that he died there very near the burning car. He may have been struck by some of the flying objects from the car and there is no question, indeed, that his death was caused, directly by the explosion. It is claimed!, however, in behalf of the plaintiff in error, that if anyone was negligent it was Tomas in taking the dynamite sticks from the cupboard and placing them upon the shelf 'where they caught fire. It may be that there was negligence of Tomas; it may be true, as claimed by counsel, that he was a fellow servant of plaintiff’s decedent; but we do not think, whether that be so or not, it settles the inquiry. If the accident was due to the negligence of Tomas without the concurrence of any negligence of the defendant company, it would, of course, at once raise the question as to whether he was a fellow servant. ■ There is not much doubt in our minds that he was, such, and the court below probably took the view that he was so, although there is some argument by counsel for plaintiff in error that he was not at the moment so engaged in the service as to come within the rule of fellow servant. We are not inclined to adopt this position of counsel for plaintiff in error, but we rather base our judgment upon the view that there was evidence tending to show that there was only concurrent negligence in the act of Tomas.

Now, addressing ourselves to the question whether the plaintiff’s decedent was there by the invitation of the company, we think it may fairly be inferred from all the circumstances of the case, that these cars were placed upon the company’s grounds, or permitted to remain there with the trucks removed, to be used in the manner in which they were used. It appears from the evidence that that had been so done for a long time. The stove in this car from which came the conflagration ■which destroyed it, was manifestly the stove of 'the company; the fuel, the fuel of the company. The dynamite cartridges and caps were used there by authority of the company. Not only Tomas had a key to it, but another person, said to have been a foreman, had a key to the same cupboard. The dynamite was stored there for the company’s purpose and we can hardly come to any other view than that the company intended that the cars should be used for the purposes for which they were used, that is, as a sort of congregating place for the men in cold weather to remain comfortably until such time as they were to do their work. We think then that the evidence tends to sustain the petition of the plaintiff as to the company’s making this sort of a provision to enable the company to conduct its business and for the storing of dynamite.

And now, without dwelling upon the claims remaining, I will consider for a moment the claim of the plaintiff in error as embodied in several requests to charge prior to the argument to the jury.

Proceeding upon the theory that the company had an unquestionable right to store its dynamite cartridges wherever it pleased upon its own property, it substantially asked the court, in several varying forms, to give such instructions to the jury, and counsel argue to us that the court was in error in refusing these requests. Some of them may embody abstractly correct principles of law, but, granting that, the court was not required to give them without such qualification or further instruction to the jury as might safeguard the jury against being misled. If these instructions had been given to the jury as requested by the plaintiff in error, they would have remained in the minds of the jury through the entire course of the argument and until, under the rules of procedure, the court gave its general charge serious injury might result to the rights of the plaintiff below by reason of such misconception being permitted to remain in the minds of the jury during this time. A man may not keep a vicious dog upon his premises at such time as persons, by his invitation or permission are liable to come upon the grounds, without chaining up the dog or taking care of it in some way to protect such persons from injury; and the authorities are very numerous that in the storing of dangerous substances or articles upon one’s own property they must be so taken care of that they will not imperil the property and lives of others. So we think that the court was justified in refusing these several instructions since they were not coupled with some sort of additional instruction as to the storing of dynamite and caps in close proximity to, or in a car which was liable to catch fire from such causes as we have disclosed in this case.

I will not dwell longer upon this phase of the case. Some complaint is made that counsel for defendant in error caused the widow and a number of the children of decedent to come within the bar of the court and sit in view of the jury during the progress of the trial against the objection of defendant below, that the sympathy of the jury might thereby be aroused and the defense of defendant be prejudiced thereby. A request was made of the court to exclude the widow and the children from the court room or from the view of the jury and the court overruled the request and it is said that the court thereby committed error. It is not contended but that ordinarily, such matters are within the discretion of the court, but it is claimed that there was an abuse of that discretion such as justify a reversal. ¥e are not inclined to agree with counsel in this regard. The widow and children, while not parties to the suit, are beneficiaries of the trust represented by the administratrix, who is the nominal plaintiff. The widow’s presence might be essential to the proper trial of the ease, she might have knowledge of circumstances which would affect the issue as to the conduct of the case in the interest of herself and children such as might almost necessitate her presence in court; we are not inclined to think that it was advisable or that it would have been proper to exclude her from the trial. It might, in some instances, be proper enough to send out little children, whose presence could afford no special aid, but I think it may be said that in suits of this character, in view of some of the decisions under this statute, where suits are prosecuted by an administratrix and where the right to recover for the widow and next of kin depends somewhat upon their condition and necessities and the extent to which they would be liable to derive support from the decedent, had he lived, under these circumstances it might be even proper to exhibit to the jury the children, for the purpose of enlightening the jurors as to their age, as to their condition of health and necessities as requiring the support that might have been afforded by the decedent.

In viewing the whole matter, we cannot say that the court abused its discretion in overruling the request.

It is said that counsel for the plaintiff below was guilty of misconduct in argument to the jury in using, as an illustration, perhaps, a stick of dynamite from which the fuse had been removed, or something of the kind, in order to explain to them the nature of the transaction and the uses which were made of dynamite and fulminate caps. Objection was made to this and the court directed counsel not to proceed with the illustration. Counsel insisted to the court that he had a right to do this, saying once or twice to the court that he thought he had such right. It appears, however, that he was addressing himself to the court and was perhaps over-earnestly insisting upon his right. It is not always wise for counsel to persist after a court has decided adversely, but still counsel in his zeal for his client may very well renew some proposition to the court even after it may have ruled against him, if he thinks he can throw any new light upon the matter and we cannot say that there was any misconduct in his so doing.

There are some other points which arose during the progress of the trial, but, without further comment, it is sufficient to say that we find no error in the case which operated to the prejudice of the plaintiff in error justifying a reversal and the judgment of the court belów will be affirmed.

Parker and Kinkade, JJ., concur.