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    AS TO PRIORITY UNDER ASSIGNMENT OF A FUND.
    Circuit Court of Cuyahoga County.
    The State Banking & Trust Company v. C. A. Krause, Jr., Trustee, et al.
    Decided, December 14, 1908.

      Assignments — Priorities Determined by Notice and Acceptance.

    An assignment of a fund, of which the debtor has notice and which he accepts and agrees to pay to the assignee, has preference as against - - an earlier assignment of which the debtor had no notice.

      Smith, Taft & Arter, for plaintiff in error.

      Carpenter, Young & Stocker, Kline, Tottes & Goff and Smith, Taft & Arter, contra.
    I-Ienry, J.; Winch, J., and Marvin, J., concur.
   The action below was begun by the defendant below, trustee in bankruptcy of the (¡Jeorge W. Beeman Company, to recover from the Erie Railroad Company a balance due the bankrupt for construction work under a written contract. Various other claimants for this balance fled cross-petitions, and the Erie Railroad Company paid the money into court, where it was finally awarded to the trustee in bankruptcy.

The State Banking & Trust Company prosecutes error and claims the fund should have been awarded to it under an assignment made to it by the bankrupt, on estimates to become due from the Erie Railroad Company under said contract; -said assignment being made as security for advances which the bank thereupon made to the bankrupt. Other assignments of the fund were subsequently made, and one at least, in an amount sufficient with, interest to consume the entire balance now in controversy was accepted by the railroad, company, and payment thereof, out of moneys to become due from it to the bankrupt, was apparently promised before plaintiff in error gave-notice to the railroad company of its said assignment, thus bringing the case within the exception to the rule announced in the opinion of Day, J., in Copelan et al v. Manton, 22 Ohio St., 398-403, where it is said in substance, that:

“The assignees of a fund take subject to.all equities existing between the assignor and the debtor at the time he had notice of the assignment;-but the time of notice will not be material, unless it becomes so for the equitable protection of the debtor or of a bona fide, purchaser.”

In other words, the plaintiff in error’s assignment, though earliest in time, must be postponed hi effect, to such orders thereafter made by the bankrupt upon the railroad company as the latter had accepted and agreed to pay before receiving notice of the prior assignment.

The bill of exceptions, at pages 77 and 78, makes reference to a certain document described as “Nicola’s Exhibit 1,” purporting to be signed by one Parsons, on behalf of the. Erie. Railroad Company, and pledging it to the payment of an order made by the bankrupt out of the funds due and to become due the latter, in a sum of money sufficient, as aforesaid, to consume the entire fund in controversy. The authenticity of this -signature is admitted, but the defendant in error denied the capacity of Parsons to bind the Erie Railroad Company. Thereupon “Nicola’s Exhibit 1’’ was formally offered in evidence. A search of the bill of exceptions fails to reveal it as attached to or made a part thereof. A document is exhibited to us outside the record purporting to be “Nicola’s Exhibit 3,” and it is evidently the document offered in evidence, but we can not consider it. be-' cause it is not a part of the record before us. We are, therefore, unable to weigh the. evidence presented in the court below so as to say that that court erred in. holding as it did hold, that plaintiff in error’s claim must be postponed to other claims asserted in the case. For the same reason, namely, that we can not weigh the- evidence at all. because of the imperfect bill of exceptions, we forbear to discuss the claims of the Buckeye Line Company further than to say that this company has filed no cross-petition in error, and as intimated on the hearing we see no reason why we should give it leave to do so now. We are content with the affirmance which we are thus forced to make, because we think, if the merits of the case were properly before us, we should come to the same conclusion with regard to the rights of all the parties to the record and hold that the court below adjudicated the whole matter correctly. Not being able to weigh the evidence, and finding no error in the record, we affirm the judgment below.


source: Caselaw Access Project

license: Public Domain

text:
    ALLOWANCE OF ALIMONY PENDENTE LITE PURELY DISCRETIONARY.
    Circuit Court of Cuyahoga County.
    Samuel C. Myers v. Minnie Myers.
    Decided, January 25, 1909.

      Alimony Pendente Lite in Discretion of Court.

    An award of alimony pendente lite is in the discretion of the court wherein the action is pending, and where there has been no abuse of discretion no appeal lies to the higher courts.

      William A. Spill, for plaintiff in erroi\

      Riley & McQuigg, contra.
    I-Ienry, J.; Winch, J., and Metcalfe, J. (sitting in place of Marvin, J.), concur.
    This proceeding in error is prosecuted to reverse an order allowing alimony pendente lite, in an action for alimony still pending in the court of common pleas. The plaintiff in error is a locomotive engineer, whose earnings are from $85 to $158 per month, and has living with him two children by a former marriage; a son who is still a minor, and a daughter of the age of 22. The defendant in error is about 23 years old.
   An answer filed by plaintiff in error, who was defendant below, denies the allegations of the petition, and at the hearing of his wife’s application for alimony pendente lite, he sought to introduce evidence that she had left him, not for good cause, but because he failed to give her all the money she thought she ought to have. The court allowed $7 a week pending the final hearing. The court below was not required to examine fully the merits of the main action in passing upon the application for alimony pendente lite, and the testimony which it excluded was not such as to defeat that application. Unless a perfect defense to the main-action were made, at the preliminary hearing, the court’s discretionary power to allow alimony pendente lite can not be doubted, and we hold that that discretion was not abused 'in this case.

Judgment affirmed.


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    RIGHTS AS BETWEEN MATERIAL MAN AND CONTRACTOR.
    Circuit Court of Cuyahoga County.
    E. A. Thompson v. James Rosenberg et al.
    Decided, June 14, 1909.

      Mechanic’s Liens — Material-Man May Rely on Ostensible Price to be Paid Contractor.

    Where a material-man who has furnished material to a contractor, relying upon the ostensible price the contractor is to receive, has perfected his lien under Section 3201, Revised Statutes, he is entitled to payment as against the grantee of the original owner, who upon default of the contractor, has furnished money necessary to complete the buildings to an amount in excess of the actual price but less than the ostensible price the contractor was to receive.

      H. F. Parks and Howland & Niman, for plaintiff.

      H. A. Kangesser, John H. Fackler, Frank Higley, Myler & Turney, W. D. Meals and Max E. Katz, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This action was commenced, by E. A. Thompson, doing business as the Independent Lumber Company, plaintiff, v. James Rosenberg and A. B. Katz, defendants, to establish a mechanic’s lien based upon an attested account against two residence lots; to the erection of houses thereon the items of lumber in said account were devoted. A money judgment against the defendant Rosenberg, as for money had and received, is also prayed.

Rosenberg was the owner of the real estate in question on November .10, 1906, at which date he entered into a contract with Pickel and Sehmulowitz, building contractors, for the erection'of the two dwellings aforesaid, for the sum of $5,500 ostensibly, but really $4,500 according to plans and specifications' furnished by J. B. Eberling, architect.

Before the first estimate became payable on this contract price, plaintiff had delivered lumber to said contractors on said premises to the amount of $969.29, no part of which had been paid; and on March 5, 1907, the plaintiff filed with the defendant Rosenberg an itemized and verified statement of account. March 8, 1907, an affidavit and itemized statement was filed Avith the county recorder for a lien under Section 3201, Revised Statutes.

Meanwhile, however, Rosenberger had a difference Avith the contractors which resulted in their stopping work January 18, 1907, after Avork of the estimated value of $1,195 had been completed, though some of it was afterwards done over on account of defective construction. Thereupon the defendant Katz advanced money from time to time, between February 1 and October 20, 1907, amounting to $5,739.86, by means of which the buildings were completed. Katz thereupon took a conveyance of the property from Rosenberg, and the real controversy is between him and the plaintiff. Eighteen hundred and five dollars and thirty-three cents of this amount was advanced to Rosenberg, Avho though claiming that he paid $300 additional out of his own pocket, in fact accounts in detail for only $1,790.23 as paid out by him for construction of the houses. There is still owing for plumbing $145 and furnace $140. Plaintiff claims some $40 additional which may be alloAved without affecting the result, besides the $3,934.53 which he admittedly paid out, otherAvise than through Rosenberg, in connection AAdth the property. $1,139.35 thus paid out is, however, conceded not to have been paid for construction of the buildings; and the sum of $475 paid to lift pending or impending liens of employees of Pickel and Sehmulowitz, must also be disallowed in so far as it swells the construction account beyond $4,500, which was the original contract price really agreed to between the party Rosenberg and these building contractors.

An ostensible price of $5,500 was, however, as already mentioned, named in the written contract between the parties apparently for the purpose of deceiving the bank from which the money was to be borrowed to finance the construction. This device deceived the plaintiff also, and must therefore be taken to be the real contract price so far as he is concerned. There is thus enough of the ostensible contract price remaining in the owner's hands to pay plaintiff’s claim of $969.29 in full.

The Lakeview Land & Improvement Company, one of the defendants herewith, sets up a purchase money mortgage of $1,685 given by defendant Rosenberg November 12, 1906, and filed for record November 16, 1906. Another defendant, the Woodland Avenue Savings & Trust Company, sets up a mortgage for $4,500 given by Rosenberg to Katz, and by Katz transferred to it. 'This mortgage was filed for record February 2, 1907, but priority is claimed for it over the previous mortgage by virtue of a waiver signed by the Lakeview Land & Improvement Company. The latter company appears .to have waived the priority of its mortgage upon condition that two houses should be erected upon the premises before June 1, 1907, at a cost and value of at least $2,500 each. But the pleadings do not properly raise this issue, presumably because the conditions of the waiver can not be shown to. have been complied with. The marshaling of the other liens involves no dispute.

Plaintiff may take decree.


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    ACTION GROWING OUT OF THE FILING OF CHARGES OF UNPROFESSIONAL CONDUCT.
    Circuit Court of Cuyahoga County.
    Herman Preusser v. F. V. Faulhaber.

    Decided, June 18, 1909.

      Libel — Charges of Unprofessional Conduct on Part of Attorney, When Privileged.

    Charges of unprofessional conduct on the part of an attorney, filed with the clerk of a court in which the attorney practices, are privileged.

      Herman Preusser, for plaintiff in error.

      M. P. Mooney, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.

      Affirmecl without opinion, Preusser v. Faulhaber, 82 Ohio State, 466.

   The parties stand related here as they stood below. There the plaintiff in error brought action for an alleged libel contained in certain written charges against him as an attorney at law filed in the office of the clerk of the court of common pleas by the defendant in error. The charges so filed were acted upon by that court and sustained; but, upon review in this court, we held that though, by Section 563, Revised Statutes, “judges of such courts are required to cause proceedings to be instituted against any attorney at law, when it in any manner conies to the knowledge of any judge in whose court such attorney practices, that such attorney is probably guilty of any of the causes of suspension or removal,” and “before any attorney is suspended or removed, written charges must be filed against him,” the statutory order of procedure had not been followed. That order is, in brief, so far as it is pertinent to the present case:

1. Knowledge of the probable guilt of an attorney' coming to a judge.

2. Proceedings caused by the judge to be instituted against the attorney by the appointment of a person or persons to file and prosecute charges.

3. The filing of written charges, etc.

Manifestly, therefore, the charges filed by Fanlhaber against Preusser did not of themselves amount to the institution of a disbarment proceeding. A judge of the court in the office of whose clerk the charges were filed, might, in his discretion, have treated them as bringing to his knowledge the probable guilt of the accused; whereupon it would have become his duty to cause proceedings to be instituted. But he could not proceed to try charges which were filed without previous authority from him.

Having thus held the disbarment proceedings to have been irregular and the judgment of suspension from practice therein pronounced by the court below to have been without jurisdiction, a libel suit was begun by Preusser, in which he merely alleged that the said libelous charges against him were published by Fanlhaber, without allegation as to the circumstances above set forth. When that ease came before us, we held that the charges quoted bore internal evidence of having been filed in a disbarment proceeding; and it not being alleged that such proceeding was a mere cloak maliciously employed to make the pub-' lication a privileged one, the alleged libel was not actionable.

Thereupon Preusser began a second action for libel, based upon the same charges; though the pleadings here do not disclose that any prior action for said libel was ever commenced or decided. Tn this new action, he discloses all the circumstances, and adds other averments upon which he relies to escape the application of the principles announced in the former case. ITe relies mainly upon the fact that the so-called charges were filed, not with any judge, but in the office of the clerk of the court of common pleas, the publication counted and relied on being to a certain deputy clerk.

We do not concur in the distinction thus attempted to be made. In our view, the proper way to bring charges in such cases to the attention of a judge is by putting them in writing and depositing them with the clerk of the court for such action thereon as the judge must take, in ease he finds the accused attorney “probably guilty.” It might be more delicate if the accusation so deposited with the clerk were left sealed for delivery to the judge or judges, as iu the ease of Wilson v. Whitacre, 4 C. C., 15; but it is neither necessary nor desirable that such charges should be whispered orally into the ear of a judge who is called to act judicially upon them.

As to the question of privilege, we need not again discuss the cases that were cited in our former opinion. Suffice it to say that we do not feel warranted in' qualifying the privileged character of language used in judicial proceeding unless and until the Supreme Court shall decide that that privilege is not absolute.

The judgment is affirmed.


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    JURISDICTION OF A MAGISTRATE IN ATTACHMENT.
    Circuit Court of Cuyahoga County.
    C. W. Jamison v. Cooper Medicine Co.
    Decided, December 9, 1907.

      Attachment and Garnishment — Ho Presumption that a Justice of the Peace Had Jurisdiction.

      1. To confer jurisdiction on a justice of the peace in an attachment case it must appear, either that personal service was had upon the defendant, or that property of the defendant has been taken in attachment, or found in the hands of a garnishee, or that a garnishee is indebted to the defendant.
    2. There is no presumption favoring the correctness of a judgment of a justice of the peace, and to support a judgment of his court it must affirmatively appear by the record that it had- obtained jurisdiction over the person or property of the defendant.

      George A. Groot, for plaintiff in error.

      C. N. Fiseus, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The parties here are as they were in the court below. The plaintiff brought suit against the defendant before a justice of the peace, and at the time of bringing the suit filed an affidavit for attachment and garnishment, averring that Benton-ITall & Company, Strong, Cobb & Company and W- G. Marshall had property in their possession, and rights in action, the property of the defendant and'were indebted to the defendant. Summons was issued to the defendant and an order of attachment served upon Benton-TIall & Company, Strong, Cobb & Company and W. G-. Marshall, as garnishees. None of these parties garnisheed made any answer in the case, and the return of the officer serving the notice or order upon said garnishees shows, that he did not take possession of any property of the defendant in the hands’ of any one of said garnishees. The officer failed to find the defendant and thereupon the case was continued for service by publication, which was duty made, and then upon the case being called before the justice at the time to which it was adjourned, and the defendant not appearing, the justice proceeded to hear the ease, and rendered judgment- for the plaintiff. To reverse this judgment of the justice the defendant filed a petition in error in the court of common pleas, and on hearing in that court the judgment of the justice was reversed. The present proceeding is brought to reverse this judgment of reversal.

One of the claims made by the defendant in error is that the justice was without jurisdiction to render any judgment against him, because, it is said, no personal service was had upon the defendant, and no property of his was brought into court or under control of the court by the proceedings in attachment and garnishment.

If this contention is true, of course the common pleas was right in reversing- this judgment of the justice.

Section 6496, Revised Statutes of Ohio, provides for the obtaining of services upon the defendant by publication in attachment proceeding:

“When any property of the defendant has been taken under an order of attachment,” etc.

In this case it will be noted that no property was taken.

Section 6503, Revised • Statutes of Ohio, provides what , shall be done if the garnishee appears and answers and it is discovered on his examination, that at or after the service of the order of attachment and notice upon him he was possessed of any property of the defendant, or was indebted to him.

It will be noticed that this case is not governed by the statute just quoted, because it did not appear that either of the garnishees had any property of the defendant, or was indebted to him.

Section 6504, Revised Statutes of Ohio, provid.es what may be done if the garnishee fail to appear and answer, or if he appear and answer and his disclosure is not satisfactory to the plaintiff in such case the plaintiff may proceed in an action against the garnishee.

It will be noticed that that course was not here pursued and we know of no provision of law which authorized the proceeding which was here had, to-wit, the proceeding by the justice' to enter a judgment against the defendant, where no service had been made upon him, no property had been taken in attachment, and no property had been found in the hands of any garnishee, nor was it found that any garnishee was indebted to the defendant. It can not be doubted that the justice was without jurisdiction to render judgment against the defendant, -where personal service was not made upon him, unless- he found that there was property or rights in action of the defendant which were within his jurisdiction. The transcript of the docket of the justice shows no finding in this regard, and so it is urged on the part of the plaintiff in error that the justice must have found that there was property or rights in action of the defendant within his jurisdiction, and that in the absence of any finding that there -was no such property, the reviewing court -was bound to assume that he did find it, because, it is said, that every presumption must be taken in favor of the correctness of the judgment of the justice, and therefore, the presumption must prevail that some fact existed which gave him jurisdiction.

This proposition is not sound. See Robbins v. Clemons. 41 Ohio St., 285, where the syllabus reads:

“1. The jurisdiction of a justice of the peace in this state is inferior and limited; and to supports judgment of his court the record must show that it had obtained jurisdiction over the person of the defendant.
“2. Section 14, of the act of March 13th, 1853, regulating the jurisdiction and procedure before justices of the peace, provides that summons must be served by delivering a copy thereof with the indorsements thereon duly certified to the defendant, or leaving the same at his usual place of residence:
“Held: That a return by the constable of service o£ summons iii these words, ‘served on the second day of January, 1861, by reading’ shows a want of service and not merely a defective service or return; and where the record does not otherwise show that jurisdiction of the defendant was obtained a judgment by default is a nullity and may be attacked collaterally.”

Of course, in attachment, it is not necessary under a proper state of facts that personal service be made upon the defendant, and this case is cited 3iot for the purpose of showing that the justice was without jurisdiction for want of personal service on the defendant, but simply for the purpose of showing that the presumption which arises in courts of general jurisdiction, that the court- had jurisdiction in the'case, unless the contrary appears by the record, does not apply to cases before a justice of the peace, and that when the record fails to show that the justice had jurisdiction, the reviewing court 3nust find that he was without jurisdiction. This being so, it follows that he was without jurisdiction, and' that the judgment of the court of common pleas reversing the judgment of the justice of the peace was right, and said judgment of the court of common pleas is affirmed.


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    MINORITY AS AGAINST MAJORITY STOCKHOLDERS.
    Circuit Court of Cuyahoga County.
    Margaret K. Smith v. The Peoples Gas Light Co.
    Decided, November 8, 1909.

      Corporations — Action of Stockholder to Restrain Action of Other Stockholders Wot Maintainable — Anti-Trust Law.

    1. A minority stockholder can not maintain an action u> restrain the other stockholders from exchanging their stock in the corporation for stock in another corporation where the action so complained of is the action of individuals and not of the corporation.
    2. The fact that the exchange of stock by stockholders in one corporation for stock in another may result in a violation of the state anti-trust law to which the state might object, gives a dissenting stockholder no right to enjoin such exchange.

      II. L. Peeke, for plaintiff in error.

      Squire, Sanders & Dempsey, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This is an action brought by a minority stockholder in the Peoples Gas Light Company'to enjoin certain acts by the majority of the stockholders in the corporation, - and also by a majority of the stockholders in the corporation co-defendant, the Cleveland Gas Light & Coke Co., both of which are corporations organized under the laws of Ohio, and the third corporation defendant, which is -a corporation organized under the laws of West Virginia. It is alleged in the petition substantially that the directors of the two Cleveland corporations, not acting in their official capacity, that is through any resolution passed in a meeting of the board, but upon their individual responsibility, have, together' with the other stockholders constituting with them a majority, entered into an agreement or conspiracy to violate the anti-trust law of this state, in bringing about what is in effect though not in form a consolidation of the two Cleveland companies, in connection with other companies in other cities, by exchange of their stock for stock in the West Virginia company.

It is claimed on behalf of the plaintiff that she has the right for herself and on behalf of the minority stcokholders, to maintain this action to enjoin the transactions already referred to. She does not allege in her petition any special damage to herself or to those who are in like ease with her, different from the results which will accrue to all of the stockholders of the two Cleveland companies. She does not allege that any effort is being made to defraud her, or that she will sustain any special injury, but she does claim that she has the right to maintain this action in precisely the same manner that a minority stockholder in any corporation may maintain an action to enjoin or to redress by some other means, a wrong threatened to be committed or actually committed by the corporation of which .she is a stockholder, through the commission of ultra vires acts, acts which are beyond the power of the corporation to perform.

Now, there is abundant precedent for the maintenance of that sort of action. There is no question that a minority of the stockholders, without alleging any special damage to himself may, after exhausting the possibilities of redress within the corporation itself, maintain an action in the court to prevent or to undo any corporate act in excess of. the charter powers of the corporation. And if it is apparent in the face of things that application to the corporation would be futile, for the purpose of obtaining such redress, it is unnecessary to make such application as a prerequisite to the maintenance of such an action. But as has been stated in the argument of this ease by plaintiff’s counsel, the allegation is made in the petition that plaintiff has applied to the corporation for redress of the grievances complained of.

We may assume for the purpose o.f our decision in this case, that the facts alleged in the petition are sufficient, under the authority of the ease of the Standard Oil Company in the 49th Ohio State Reports, to be a foundation for an action by the state, such as that action was, to oust the corporation from the exercise of the illegal powers which it has assumed to possess and use. That ease, it will be remembered, was a ease where, so far at ]east as the syllabus discloses, there was no formal corporate action in excess of its corporate powers. The eorporate action there consisted, so far at least, as the syllabus goes, was of the action of the stockholders individually. In this case, as in that, if there has been any such infraction of the law, any attempt to violate the Valentine act, the anti-trust law of this state, such as the petition complains of, there is abundant redress provided by the laws of this state at the suit of the state itself. So that these wrongs, if they be wrongs, will not need to go unredressed.

So far as the plaintiff herself is concerned, there is no precedent, so far as we know, any where in the books, for the maintenance. of an action by a minority stockholder to restrain corporate action beyond the lawful powers of the corporation where, such action so complained of is merely constructively a corporate action — that is to say, an action of the stockholders as distinguished from formal action of a corporation in the manner in which such action under the statutes of the state must be regularly had. And we are unwilling to take the new step that it will be necessary to take, as we understand the case, in order to grant the plaintiff the relief which she prays for. And although the objection to the petition is interposed upon our own motion and not upon the motion of counsel for defendant, we are disposed to hold, and do hold that the ease made by the plaintiff does not constitute a cause of action.


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    FALSE REPRESENTATIONS TO A PURCHASER. OF PERSONAL PROPERTY.
    Circuit Court of Cuyahoga County.
    Frank Wirick v. Mary L. Clunk.
    Decided, November 1, 1909.

      Deceit — Action for — Statute of Frauds.

    An action for deceit for false representations inducing plaintiff to purchase personal property can not he maintained when the representations are such that were they a part of the contract it would he within the statute of frauds.

      Dunning, Knight & Eagleson, for plaintiff in error.

      E. J. Tobaban, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The parties to this proceeding in error stand in-the relation opposite to that in which they stood below. The petition below is as follows:

“Plaintiff says that on or about the 14th day of February, A. D. 1907, the defendant in order to induce the plaintiff to buy of him the furniture and furnishings and business of a certain rooming house situated at number 2070 East 22d street, Cleveland, -Ohio, falsely and fraudulently represented to her that he had the right of possession of said house for 12 years, and that she could occupy said house for said period at a rental of $50 per month.
“That relying on said representations, plaintiff bought said furniture, furnishings and business from said defendant and paid him therefor the sum of $750.
' ‘ That the right of occupancy of said house for said period at said rental was of great value, viz: the sum of $450 and said furniture and furnishings and business- independent of said right was worth the sum of $300 and no more.
“That said representations so as aforesaid made were false and untrue; said defendant did not have the right of occupancy of said house for said period, but only for the period until the first day of September of the year 1907, of which fact this plaintiff had no knowledge, and at said time plaintiff was compelled to move out of said house by the owner thereof.
“That but for said false and .fraudulent representations plaintiff would not have bought said furniture and furnishings and business.
“Plaintiff says that by reason of the premises she has been damaged in the sum of $450, for which amount, prays she for judgment with interest from said 14th day of February, 1907. ’ ’

From the testimony of plaintiff below we learn that the defendant below said to her “that he had a lease for twelve years, and that he wanted the barn and yard in the rear for his horses and vans; and that he had a lease for twelve years and didn't care to sublet it to us, because he wanted the barn and yard, and we could have it for that length of time, twelve years, if we wanted it. ”

Upon this state of facts it is perfectly clear that she had no cause of action. Whether Wirick had or. had not a lease for twelve years upon the premises was of no consequence whatever, so long as he entered into no agreement to assign or sublet to her, or to give her any right of occupancy in the premises enforceable under the statute of frauds.

Upon the undisputed facts, therefore, the judgment is contrary to law and should have been for the plaintiff in error instead of for the defendant in error.

The judgment below is reversed, and proceeding here to render the judgment which should have been rendered in the court of common pleas, we enter final judgment for plaintiff in error.


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    APPRAISAL OF THE PROPERTY OF A DECEDENT.
    Circuit Court of Cuyahoga County.
    James R. Sprankle, Jr., et al v. Arthur Odell, Administrator.
    Decided, November 1, 1909.

      Probata Law — Estoppel—One Securing Low Appraisal of Personal Property May Not Complain Later.

    When one who was both administrator and heir has instructed the appraisers to return a low appraisal of the property of the estate in order to minimize taxes thereon, he can not later, after the widow has elected to take a large portion of the property at its appraised value, ask for a reappraisal.

      James J. Hogan and Goulder, Holding & Hasten, for plaintiffs in error.
    - Wallace I. Knight, 8. A. Schwab, W. G. Ong and E. J. Blandin, contra.
    IIbnry, J.; Marvin, J., and Winch, J., concur.
    This proceeding in error is prosecuted to reverse the judgment of the court of common pleas upon an appeal from the order of the probate court in the matter of the estate of James R. SpranMe, deceased, overruling-the motion of James R. SpranMe, Jr., for a re-appraisal. Upon the appeal the court of common pleas made the same order, and it is to reverse this order that the proceeding here is prosecuted.
   The facts are, that James R. SpranMe, Jr., was originally the administrator of his father’s estate, and as such, by agreement with his mother, widow of the decedent, he instructed the appraisers to make a low appraisal of the property, in order to minimize the taxes levied thereon.. After the appraisal was thus effected the widow took a large-part of the property at the appraised'value, and in the ensuing controversy, James R. Sprankle, Jr., was removed as administrator. He thereupon undertook to have a reappraisal ordered upon the ground that the original appraisal was admittedly too low. The probate and common pleas courts refused to order such reappraisal upon the ground that he had himself been, responsible for the very thing of which he complained. In this view we concur. But James R. Sprankle, Jr., appears before us in another capacity, to-wit, apparently as one of the co-administrators of the estate of his sister who, it is suggested, has died since the trial in the court of common pleas, and in this capacity, he and his co-administrator seek the relief which he personally is denied. It is urged that the sister is in no way estopped, inasmuch as she had nothing to do with procuring the low appraisement complained of. There are, however, no allegations in the petition in error with regard to her death or the appointment or qualification of the administrators of her estate. These are issuable facts and should have been alleged instead of being left to mere inference from the' caption of the petition in error. So far as these parties are concerned, therefore, the petition in error not having been filed by any party to the record below or by anyone who is expressly alleged to be a successor in interest to any such party, must be stricken from the files. We should, however, be inclined to allow an 'amendment of the petition in error upon proper application, if it appeared to us that such amendment could be made in furtherance of justice, but the record discloses that the exceptions which were the subject-matter of the trial in the probate court and court of common pleas, were those of James R. Sprankle, Jr., personally and of no one else. It was not until after the expiration of the statutory period of limitation within which such exceptions by any person interested might have been filed, that the sister undertook by application to adopt and make her own, the exceptions which James R. Sprankle, Jr., had filed. It is apparent, therefore, that it would subserve no good purpose to permit such amendments to the petition in error to be made as would suffice to bring the administrators before this court as administrators of her estate and as parties to the proceeding. •

With regard to James R. Sprankle, Jr., who is the sole remaining plaintiff in error in this proceeding, the judgment below is affirmed. As to the other parties, plaintiffs in error, the petition is dismissed.


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    BURDEN OF PROOF AS TO NEGLIGENCE OF RAILWAY.
    Circuit Court of Cuyahoga County.
    Richard Palmer, Administrator, v. The Erie Railroad Co.
    Decided, June 18, 1909.

      Failure of Electric Gong to Work at Railway Grossing Raises no Prc sumption of negligence.

    The mere fact that an electric gong at a railroad crossing fails to ring raises no presumption of negligence on the part of the railroad company.

      ~W. C. Ong, for plaintiff in error.

      dusking & Siddall, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   We know of no rule to warrant our holding that when an automatic gong at a grade crossing fails to work, the burden is upon the railroad company maintaining such gong to show that such failure was not due to its negligence. We know of no decision which, either squarely or by reasonable analogy, makes such failure prima facie evidence of the railroads’ negligence. On the contrary there are many imaginable things which, without any fault on the part of the railroad company, might reasonably have interrupted the due operation of this electric gong. And the ordinary rule is that the burden is upon the plaintiff in negligence cases. No reason appears in this ease to except it from the operation of that rule.

In this case also, the decedent manifestly did not look. He neither stopped nor turned his head. And if he listened, it was obviously for the customary sound of the gong and not for the noise of a train. If he had stopped and looked, or listened, at the point where looking and listening could have profited him, he must necessarily have seen and heard the train and been safe. If he relied upon the gong, which failed to ring, he was no more excusable than if he had omitted to take due precautions for his own safety in reliance upon the performance of the railroad’s statutory duty to sound the whistle and bell of its locomotive when approaching a highway crossing. Contributory negligence by the plaintiff in such eases is not neutralized or offset by similar conduct of the defendant.

The judgment is affirmed.


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    PROSECUTION FOR KEEPING INTOXICATING LIQUORS IN DRY TERRITORY.
    Circuit Court of Cuyahoga County.
    Joseph Nickels v. The State of Ohio.
    Decided, June 14, 1909.

      Intoxicating Liquors — Criminal Trials — Burden of Proof May be Changed by Statute.

    1. Upon the trial of criminal causes the law presumes the party charged with crime to he innocent, and the burden is on the prosecutor, unless a different rule has been provided by statute.
    2. Where the Legislature has provided, as in Section 4364-20, Revised Statutes, that the keeping of intoxicating liquors in dry’ territory in any place except a drug store or private residence shall be prima facie evidence that such liquors are kept for unlawful sale, " furnishing or giving away, the burden of proof is changed and a conviction will be sustained upon evidence of this fact alone.

      Tcmney & Barber, for plaintiff in error.

      II. W. Ward, contra.
    Henry, J.; Winci-i,.J., and Marvin, J., concur.
   The plaintiff in error was convicted before the mayor of the village of Olmsted Falls, Ohio, of a violation of Section 4364-20& of the Revised Statutes of Ohio. The information contained three counts, the first charging that Nickles “did unlawfully keep a place where intoxicating liquors were then and there kept for sale as a beverage.”

The second count repeats by reference, the averments of the first count and adds- a charge of unlawfully giving away intoxicating liquors as a beverage.

The third count repeats by reference the averments of the first two counts and adds that Nickels ‘ ‘ furnished as a beverage and otherwise dealt in intoxicating liquors as a beverage. ’ ’

The transcript .shows that ‘ ‘ the court after considering the testimony given hérein finds the defendant guilty,” and later that, “the court pronounced sentence on defendant, as follows: A fine of one hundred and twenty-five dollars and costs in this action, and defendant to stand committed until paid.”

The court of common pleas affirmed this judgment, and petition in error is filed by the said Nickels in this court.

Error is assigned upon the overruling by the trial court of a motion to quash, a demurrer, a plea in bar and a motion to require the state to elect upon which count it would rely. Upon the last motion the - rule is perfectly well settled in this state that a motion to elect is addressed to the sound discretion of the court, and even if the last two counts be deemed bad for duplicity, a general verdict or finding of guilty, such as was rendered here, is supported by the first count, which is apparently free from objection. The offense therein, described is charged to have been committed “on or‘about the 31st day of October, A. I). 1908,” and the plea in bar alleges an arraignment upon a charge that “from the 1st day of June, 1908. until the 30th day of October, 1908, in said village of Olmsted Falls, one Joseph Nickels then and there being, did unlawfully keep a place where intoxicating liquors were then and there kept as a beverage,” etc. The evidence in the present record shows that the offense was com'mitted, if at all, upon the 31st day of October, 1908. It is thus evident that there was not any prejudicial error warranting a reversal of the judgment in this case by reason of any of the rulings of the trial court above referred to.

Error is further assigned upon the overruling of the motion for a new trial, upon the ground that the conviction is unsupported by the evidence, and it is claimed that the evidence adduced on behalf of the state affords, at most, only a prima facie case under Section 4364-3(h/ of the Revised Statutes, which makes “the keeping of intoxicating liquors in any room, or building or any other place, except in a regular drug store or in a bona fide private residence ® * * prima facie evidence that such liquors are kept for unlawful sale, furnishing or giving away, provided such place is situated in territory in which the selling, furnishing or giving away of intoxicating liquor as a beverage, is prohibited.”

It is urged that a prima facie ease made by virtue of this statute alone is an insufficient basis on which we find beyond a reasonable doubt that this defendant is guilty.

In Fuller v. State, 12 Ohio St., 433, the first paragraph of the syllabus is:

“Upon the trial of all criminal cases the laws presumes the party charged with crime to be innocent, and the burden of proof is upon the prosecutor, unless a different rule ha's- been provided by statute.”

In this ease a different rule has been provided by statute, and the evidence found in the bill of exceptions as we have examined it, is sufficient in our judgment to warrant this conviction.

Irregularities in the method of introducing the evidence on the part of the state; in the rulings of the trial court upon objections by the accused thereto, are further complained of, but we are mindful of the rule that the proceedings of magistrate’s courts in causes wherein they have jurisdiction are to be viewed indulgently, and we fail to find anything in this record prejudicial to the rights of the accused to warrant the reversal of the judgment below, and the same is therefore affirmed.


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    ACTION AGAINST JOINT CONTRACTORS.
    Circuit Court of Cuyahoga County.
    Perry L. Hobbs v. John Thompson.
    Decided, June 7, 1909.

      Joint Contractors — Judgments.
    1. Where two are sued upon an alleged Joint contract, judgment may be rendered against one or more of the several defendants.
    2. Where two-are sued jointly and one is in default ror answer, as between the two defendants it is error to render judgment against the answering defendant alone.'

      Henderson, Quail & Sidclall, for plaintiff in error

      M. B. & H. II. Johnson, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The parties here stand in the relation opposite to that in which they stood in the court of common pleas. There Thompson sued Hobbs and Tucker jointly for pipe, etc., alleged to have been put in for them at the Union Salt Works. The completed work was a device to purify brine and. obtain a precipitate’of chalk. Plaintiff in error Hobbs is a distinguished chemist, who had seen the process in use 'abroad and had communicated it to his friend Tucker, when the latter was in need, to enable him to undertake a profitable enterprise hitherto unused in this country. Tucker procured Thompson to do the work, but prevailed upon Hobbs to see Thompson and to do the supervisión of the construction. It appears to have been Hobbs’ intention to donate the idea of the enterprise, but Thompson understood that Hobbs was the proprietor and that he was “going to give Mr. Tucker an interest in it.” This notion was derived from or confirmed by a conversation which Thompson and Hobbs had while they were riding out to the scene of the work in an automobile from which we think the jury might not unreasonably have inferred that Hobbs authorized Thompson to charge the cost of the construction to him alone or to him and Tucker jointly. And this disposes also of the questions raised as to admissibility of evidence.

Tucker interposed no answer and made no defense to the action, and no judgment was rendered against him, although counsel for Hobbs repeatedly sought to have plaintiff declare whethei lie,still maintained the defendants to be jointly liable, and, if not, which defendant he would pursue. Under the charge the jury may have found their verdict for plaintiff against Hobbs either upon the theory of a contract between Hobbs and Thompson or upon the theory of an actual or apparent agency of Tucker for Hobbs. It is complained that the court erred in charging according to this theory, thus permitting the jury to render a verdict against Iiobbs individually when the petition alleged only a joint liability, and inferentially that it erred also in not rendering a joint judgment against both defendants, if against either — Tucker being in default for answer and a verdict having been found against Hobbs.

In Roby v. Rainsberger, 27 Ohio St., 674, it was held that, “in an action on an alleged joint contract, judgment may be rendered under Section 371 of the code, against one or more of several defendants, when it turns out upon the trial that only one or more of them is liable on the contract. ’'

Without quoting at length from the opinion in this ease which is illuminating upon the point here involved, ive remark that this case appears to us to he decisive of the point now made. As between Thompson and Hobbs, there is nothing' iii the record to disentitle the former to the fruits of the judgment which he has obtained.' As between Hobbs and Tucker the judgment should have been against both. Tucker is not a party to this proceeding in error because no judgment against him ivas rendered below. We can not therefore so modify the .judgment below as to make it run against him as ivell as against Hobbs.

Without vacating the verdict of the jury; we reverse the judgment of the court below, and because it is .not the judgment which the case required, and is therefore contrary to law; and we remand the cause with instructions to the court of common pleas to enter judgment against both defendants.


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    WHERE NEGLIGENCE INTERVENED IN SEVERAL RESPECTS AND AN ACCIDENT OCCURRED.
    Court of Appeals for Greene County.
    Ida J. Larkins, Administratrix, v. Ohio Electric Railway Company.
    Decided, October 24, 1914.

      Negligence — Safe Place to Worh — Failure of Employee to Use an Appliance Furnished Eim — Does Not Absolve Employer from Liability Where Such Failure Was Only One of Several Causes Contributing to the Accident — Contributory Negligence May be Considered, Although Not Pleaded or Mentioned in the Charge of the Court— Damages Apportioned in Accordance mth the Proprieties of the Case.

    1. The doctrine that where a servant was furnished a proper appliance and failed to make use of it the master is absolved from liability on account of resulting injury, is not applicable under the employers’ liability act where back of the failure of the servant to use the appliance, there is negligence on the part of the master in failing to provide other safeguards and his negligence in that respect contributed to the injury.
    2. The remedy for correcting an inadequate verdict by giving to the defendant in error the option of consenting to a proper increase as a condition of affirmance of the judgment, will be resorted to by a court of review only in extreme eases, and will not be resorted to in a case where the damages are speculative and were peculiarly in the province of the jury to determine.
    3. Although not pleaded or commented upon in the charge of the court, contributory negligence may be considered under the employer’s liability act where arising as an inference from the evidence of the plaintifC; and where the reduction in the amount of damages as fixed by the jury is within the proprieties of the case, the verdict will not be disturbed on the ground of inadequacy.

      Boy G. Fitzgerald and Amor P. Smith, for plaintiff in error.

      G. L. Darlington and Paul G. Martin, contra.
    Allread, J.; Ferneding, J., and Kunkle, J., concur.
   The original action was brought against the Ohio Electric Railway Company for wrongful death, and a verdict and judgment for $4,500 was obtained.

The railway company moved for a new trial upon the sole ground that the court.erred in overruling its motion at the close of the plaintiff’s evidence for a directed verdict.

The administratrix also moved to increase the amount of the verdict to $12,000 or to grant a new trial for gross inadequacy.

Both motions were overruled and both parties prosecute error to this court.

The cause of action arose under the employer’s liability act of 1910 (Section 6242 G. C., el seq.).

This act was intended to broaden the liability of the employer, particularly in respect to maintaining safe conditions and to abolish-the common law- defenses of the negligence of fellow-servants and the assumptions of the risk and also to narrow the defense of contributory negligence.

The act emphasizes the duty of the employer to provide safe conditions where the workmen are employed and to .charge the employer with knowledge of unsafe conditions.

The evidence of the plaintiff tends to show that one Isenberger, night foreman of the boiler room, was directed by his superior, the day foreman, to make certain changes or disconnections on top the heaters. To do this he was required to ascend by means of a temporary ladder. -

Larkins, the decedent, was night engineer and had general supervision of the plant during the night hours. The day foreman who was also Larkins’ superior gave the order for this special work to Isenberger, but Larkins by virtue of his general aiithority had a general oversight of the work.

When Isenberger attempted to make the changes ordered he was confronted with an unusual condition as to the exhaust of steam and the testimony of at least two witnesses tends to show that Isenberger requested Lai’kins to come up and see the conditions.

Other witnesses deny hearing this invitation. Upon a motion for a directed verdict, however, we are required, under the scintilla rule as established and affirmed in the recent case of Gibbs v. Village of Girard, 88 O. S., 34, to take the broadest reasonable inference from the pláintiff’s testimony. The court is not authorized upon such motion to weigh conflicting testimony. Independent, however, of an invitation by Isenberger, the responsibility of general oversight charged upon Larkins would justify him in an investigation upon his own motion. Larkins in the apparent line of his duty ascended the ladder and in attempting to get upon the top of the heaters fell and received injuries which caused his death.

The general ground of negligence charged was the failure to maintain safe conditions for the performance of this work. The evidence tends to show that the company had constructed a system of electric lights to illuminate this portion of the plant and that-the same were at the lime of the accident out of repair so that the place where this work was to be done was in darkness. The condition as developed in the evidence leaves a natural inference that light was reasonably essential to the safety of workmen engaged in the special service ordered in the case at bar. This inference is strengthened by the employer’s act in establishing the light system. Tt would, therefore, follow as an inference capable of being drawn by the jury that the negligence of the company in allowing the light plant to become out of order contributed to the unsafe condition. There was also evidence tending to show that a wire had been stretched over the heaters in such a manner as to increase the difficulty of workmen getting thereon, and there is also evidence tending to show that a certain pipe maintained for other uses was allowed to become defective and easily broken. There is evidence tending to show that Larkins in attempting hr the darkness to get.past the wire onto the heaters caught hold of the defective, pipe wihich gave away causing his fall.

We do not agree that the evidence tends to show that the defect in the pipe was the sole proximate cause of the injury. The unsafe conditions were rather a combination. If the place had been properly lighted, it would be a probable inference that Larkins would have been able to get upon the heaters in safety Such an inference might also be drawn if the wire had not been unnecessarily placed at this point. It was, therefore, a combination of the absence of light, the unnecessary placing of the wire obstruction and the defect of the pipe which caused the unsafe condition.

It is contended that the company was not bound to furnish an elaborate lighting system for places rarely used by workmen and this contention, in a limited sense, may be sound. Still the testimony tends to show that repair work upon the heaters was not infrequent, but occurred at such intervals as would fairly make it the duty of the employer to make the place safe for workmen, and this would certainly be true where the workmen were specially ordered to do the work.

It is also contended that the master was not bound to make the pipe which the decedent caught hold of safe for the purposes of a hand hold. But in view of the other defective conditions we think it was a subject for consideration by the jury upon the issues as to whether the place into which workmen were specially ordered to go was safe.

It is contended that Larkins should have taken a torch which the evidence shows was provided for workmen and that if he had done so, the danger would probably have been obviated.

The evidence tends to show that Isenberger had taken a lighted torch and had it with him on top of the heater. There was evidence tending to show that there were other torches provided by the master but not used on this occasion. Witwer followed Isenberger to the top of the heater.and following him was Larkins, neither of whom had torches.

It is contended that the furnishing of the torches exonerates the master and that the failure of the employees to use the torches was not merely contributory negligence to be considered in mitigation of damages, but constitutes an absolute defense.

What 'would have happened had Larkins taken a torch is of course problematical. We think the court is not called upon as a matter of law to solve this question; it is rather one to be considered by the jury.

It is probably true that where the master has furnished to the servant proper appliances to make his work safe and the servant fails to .use such appliances, that the master would be absolved from liability. This doctrine, however, rests upon the proposition that'the master has performed his full duty by furnishing the servant ample means to make the place safe, and not upon the doctrine of contributory negligence. We think it was an inference capable of being drawn that torches are not a sufficient substitute for electric lights and that back of the failure of Larkins to use the torch, the negligence of the master as to maintaining th,e light plant in good order existed as a ground of negligence. The failure of Larkins to use the torch in ascending' the ladder and getting upon the heaters with the other men was a matter of contributory negligence rather than a defense.

The employers’ liability act was intended to abolish the assumption of the risk and contributory negligence defenses, and the courts ought not by narrow construction or subtlety of distinction to defeat the evident purpose of the Legislature and reinstate contributory negligence and assumption of the risk as available defensés in eases where the master has failed to maintain safe conditions.

Under the evidence we think that the failure of Larkins' to carry a torch did not necessarily defeat the action, but was a question for the jury in mitigation of damages.

It is also contended that Larkins having control of the plant at the time of the accident was charged with a duty of keeping the electric lights and other portions of the premises in good repair and that this position of responsibility intercepts and supersedes the negligence of the master as the proximate cause. Under the evidence as we are bound to consider it on a motion for an instructed verdict, we think it is not a clear inference that the duty to make repairs to the electric light .plant rested upon Larkins. He was only in charge of the plant at night as engineer. There is evidence in the record tending to show that the duty to repair the light plant rested upon the day foreman, and we are not bound to assume that the night foreman by mere inference was charged with the responsibility of such repair. To make this inference under the evidence of this ease would be to revive the abolished doctrine of assumption of the risk by judicial construction.

We, therefore, hold that the evidence was sufficient to require the trial court to submit the case to the jury, and that the motion for an instructed verdict was properly overruled.

The administratrix contends that the verdict is too small and that the court should either increase the verdict or grant a new trial upon the ground that the amount is grossly inadequate. We may assume that a reviewing court in eases of gross inadequacy is authorized to grant a new trial or to give the defendant in error the option of agreeing to a proper increase as a condition of the affirmance of the judgment. It is conceded, however, that such remedy will be sparingly applied and only resorted to in extreme cases.

The ease of Light Company v. Mason, 81 O. S., 463, was an extreme case. There the evidence demonstrated that up to the time of the trial the actual damages amounted to more than the verdict. The court was not, therefore, required to enter the realm of speculation.

In the' present case the amount of actual damages is more or less speculative and falls within the province of the jury to determine. In cases where the damages are speculative, courts are reluctant to interfere with verdicts.

The court is quite willing to concede that it is difficult to harmonize the amount of the verdict with a reasonable and just determination of the entire damages arising from Larkin’s death, but there are two propositions upon which we think this judgment should be sustained. In the first place we may assume from the evidence that the jury was somewhat in doubt upon the fundamental question of liability, and we think that the contention of counsel for defendant in error, based upon authorities cited by him, that such doubt may fairly influence the jury within a reasonable latitude in the fixing of the amount of recovery.

In the second place, contributory negligence may be considered under the employer’s liability act in mitigation and reduction of the damages. It is true that in the present case contributory negligence was not pleaded, nor were the jury charged with reference thereto. Still, we think it is settled in this state that where contributory negligence arises as an inference out of the plaintiff’s evidence, it may be considered irrespective of a special plea. Railroad Company v. Whattacre, 35 O. S., 627; Glass v. Heffron Co., 85 O. S., 70; City of Cincinnati v. Trager,

The reduction of the damages to $4,500 may fairly be reconciled upon the theory that the jury apportioned damages in accordance with the proprieties of the case without a plea or instruction. We are bound to sustain rather than overthrow a verdict, and in doing so, we. are justified in adopting any reasonable inference in favor of the verdict. If the jury, therefore, reduced the amount of the damages to $4,500 upon the theory of equitable apportionment, they were acting within their legitimate province.

It, therefore, follows that the judgment of the court of common pleas should be affirmed.


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    LIABILITY FOR. DEATH FROM EXPLOSION OF NATURAL GAS IN A CELLAR.
    Court of Appeals for Hamilton County.
    Kate Lennon, Administratrix of Rose Lennon, Deceased, v. The Union Gas & Electric Company.
    Decided, January 16, 1915.

      Gas and Gas Companies — Liability for an Explosion — Where the Leak Occurred from Defective Pipes Not Owned by the Company.

    A company engaged in the distribution of natural gas to consumers is liable, at least to third parties, for an explosion due to the escape of the gas from defective pipes, after notice that gas is escaping, notwithstanding the leak is from a pipe laid in private property, the ownership of which is in the owner of the said property and not in the gas company.

      William F. Fox, for plaintiff in error.

      Miller Outcalt and Joseph W. Heintzman, contra.

      Jones (Oliver B.), J.; Swing, J., and Jones (E. PI.), J., concur.
   This was an action for damages, brought by plaintiff in error against defendant in error, for the wrongful death of plaintiff’s intestate, Bose Lennon.

Bose Lennon lived with her mother on Concord Place, which is a private court belonging to the Messrs. Emery. Bunning up the center of this court was placed a service main to provide gas for its occupants, and from this main branches were carried to each of the ten houses fronting upon it. These service pipes were each supplied with a stopcock, as was the main service pipe .in the court, which had a stopcock at Fourth street where it was attached to the gas main in the public street. The Lennons did not use gas. There was however, in the cellar of the house occupied by them, No. 16, a place for two meters, one of which then in service measured the .flow of gas through a pipe which passed into the cellar and through the front room of their house into a lamp that was placed outside and in front of their house, used and paid for by the Emerys for lighting the court. There was no other meter in the cellar, as these tenants were not consumers of gas. Several weeks prior to December 30, 1911, a smell of escaping gas was noticed by residents of Concord Place which was reported to the defendant company. On December 19 the man employed by the company to read the meters observed the leak and reported it, and the same day another man was sent by the company to locate and fix the leak. Again on December 21 a man employed by the company made an examination of the pipes, but the escape of gas continued down to December 31, on which day, plaintiff’s intestate being.about to enter the cellar with- a lighted candle as was the custom of the occupants of this house, an explosion was caused, burning her and resulting in her death. It was afterwards discovered that the service pipes in the court were in part corroded and broken and pitted with holes.

At the close of plaintiff’s testimony the trial court granted a' motion to instruct a verdict for defendant. It was contended that as the pipes which permitted the leak of the gas were the property of the Emerys, the defendant was absolved from liability.

There is no question but that natural gas, when let out and mixed with air, is a highly inflammable and dangerous substance. Thornton on Law Relating to Oil and Gas, Sections 41 and 601.

The rule as to care and control of dangerous substances is laid down in the first paragraph of the syllabus in the ease of Defiance Water Co. v. Olinger, 54 O. S., 532, as follows:

“One who collects on his own premises a substance liable to escape, and, if it should escape, likely to cause mischief, must, at least, use reasonable care to restrain it. If for want of such care it escapes and injures persons or- property rightfully on adjoining premises, he is answei'able for the damages sustained on account thereof.”

This decision was based upon the English case of Flelcher v. Rylands, 1 L. R. Exch., 265. And the same rule was again discussed and adhered to in Langabaugh v. Anderson, 68 O. S., 131, 146.

As the defendant in error was the owner of and engaged in distributing natural gas to its consumers, and for the purpose of such business it used as part of its system of distribution these pipes in the property of the Emerys in Concord Place, it was under obligation, so far at least as a third person was concerned, to use due care in handling this gas, which became explosive and dangerous when not confined. And if it failed to use proper care, it is not relieved from the consequences, where its negligence resulted in the escape of such gas after notice, by the fact that such escape occurred through defective pipes' belonging to others. Its liability depends on the care exercised by it in handling the gas, and not upon the ownership of the pipes which it used for that purpose.

The legislative policy of requiring the natural gas company to keep its product under its control while transporting same, and holding it liable for damages in case it should fail, was recognized by Section 3561«, Eevised Statutes, now Section 14776, General Code, which was confined by its terms to a certain class of cities, and which was sustained by the case of Gas Fuel Co. v. Andrews, 50 O. S., 695.

'Section 12452, General Code, which makes it a misdemeanor to steal gas by means of a pipe carrying it for use without piping through the meter, recognizes that the gas is the property of the company until after it has passed through the meter, when it becomes the property of the consumer.

The case of Memphis Consol. Gas & Electric Co. v. Creighton, decided by the United States Circuit Court of Appeals of this district, found in 183 Fed., 552, is in point. The facts of the case are somewhat similar to those of this case, and it was directly held by that court that whether or not the owner of the property and the pipes was negligent, the negligence of the gas company in.failing to act with reasonable promptness when notified of the dangerous condition of the premises, was one of the causes of plaintiff’s injury, and it was therefore liable. The first two paragraphs of the syllabus of this case are as follows:

“A gas company, which Ihrough its pipes supplies gas to a house and has control of the apparatus for cutting it off, when notified that gas is escaping in the house and informed of injury and danger to the inmates therefrom, owes a duty to the occupants of the house to exercise reasonable diligence in shutting off the gas therefrom, and it is immaterial that the pipes where the leak occurred were owned by the owner of the house.
“Where the negligence of two persons co-operates to produce an injury, both are liable, and inquiry as to the proximate cause is not pertinent.”

Attention might also be called to the case of Forry, Assignee, v. Newark Gas Co., 6 O. L. R., 163, which was affirmed by the Supreme Court in 80 O. S., 733.

In the case of Cooper v. Tri State Gas Co., 19 C.C.(N.S.), 481, where the sufficiency of the petition for damages- caused by a gas explosion was under consideration, it Was held that sufficient facts must be alleged to show notice of the defective condition of pipes not owned by the company, or, that facts existed from which an inference of duty to inspect such pipes would arise, either from contract, custom or franchise.

The pase of Schmeer v. Gas Light Co., 147 N. Y., 529, is also in point. The decision, by Peekham, J., contains a full discussion of the law, and directly decides that the question of negligence is one that must be submitted to the jury.

The court below erred in withdrawing the case from the jury and instructing a verdict for the defense. The judgment is therefore reversed and the cause remanded.


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    NO RECOVERY BY ADOPTING PARENT FOR. WRONGFUL DEATH OF AN ADOPTED CHILD.
    Circuit Court of Huron County.
    Jesse Boswell, Administrator, v. The Lake Shore Electric Railway Company.

    Decided, April, 1911.

      Wrongful Death — Ohio Statute Does Not Permit of Recovery for an Adopted Child — Amendment, Justifying Recovery for Another Beneficiary Not Permissible — Adopted Child Inherits from Adopting Parent, But Converse Not True.

    An action will not lie to recover damages for wrongfully and negligently ' 'causing the death of an adopted child, where such recovery is sought for the sole benefit of the adopting parent.

      Kit-pert Holland and Jesse Vickery, for plaintiff in error

      A. V. Andrews, contra.
    Richards, J.; Wild man, J., and Kinkade, J., concur.
    Error to the court of common pleas.

      Affirmed without opinion, Boswell, Admr. v. Lake Shore Electric Ry. Co., 88 Ohio State, 563.

   This action was brought in the court of common pleas to recover damages by reason of the death of an adopted son of the plaintiff, claimed to have been caused by the negligent and wrongful act of the defendant company. The ease proceeded to trial before a jury and it developed upon' the trial, as well as by the petition, that the plaintiff was seeking to recover for the benefit of an adopting parent of this child, and when that was disclosed, ■ the court directed the jury to return a verdict for the defendant on the ground that the statute providing for the recovery of damages in this class of cases does not authorize a recovery for the benefit of an adopting parent.

To that judgment the plaintiff prosecutes error, and the simple question for our determination is whether the statute authorizing a recovery will permit a recovery for the benefit of an adopting parent.

The statute, G. C., 30772, provides, in substance, that sucli action shall be for the exclusive benefit of the wife.or husband and children, or, if there be neither of them, then of the parents and next of kin of the person whose death was so caused. It is not claimed that the person for whose benefit this action is being prosecuted by the administrator is next of kin, but it is claimed that, by the act of adoption of this boy, the adopting parent comes under the designation of parents within the meaning of this statute. The adoption took place in the state of Michigan. We do not have the benefit of the Michigan statute for it was not introduced in evidence and is not before us. Under the Ohio statutes, G. C., 8029 and 8030, the adopted child becomes in effect the child and legal heir of the adopting parent.

It is claimed that language of this character justifies a recovery for the benefit of an adopting parent, where the child’s death is caused by the negligent or wrongful act of the defendant. No cases have been found or cited by counsel upon either side that have passed directly upon this question. While the adopted child becomes the heir of the adopting parent, the converse is not true. The heirs of the adopted child would be those who are such by nature, and not the adopting parent. It was accordingly held in Heidecamp v. Jersey City Ry. Co., 69 N. J. L., 284 (101 Am. St. Rep., 707), that the plaintiff in this kind of an action could not recover damages for the benefit of the adopting parent.

It was held in Upson, Admr., v. Noble et al, 35 O. S., 655, that the personal estate of an adopted child, dying intestate, passes to the natural mother to the exclusion of the adopting parents. Section 10772, G-. C., authorizing the recovery of damages in cáse of wrongfully and negligently causing death, requires that such damages shall be proportioned to the pecuniary injury resulting from such death, and if the adopting parent can not inherit from the adopted child, then such adopting parent does not, in a legal sense, suffer pecuniary injury by such death. Furthermore, the same section provides that the damages recovered shall be apportioned among the beneficiaries in accordance ivith the laAvs of descent and distribution of personal estates. We therefore find no warrant for a reeoArery for the benefit of an adopting parent in this class of actions. Doyle, Admx., v. B. & O. R. R. Co., 83 O. S., 184, 192.

We conclude that the language used in (4. C., 10772; supra, is not broad enough to embrace an adopting parent.

It is said, hoAArever, that the ease should have proceeded in the court of common pleas for the reason that it might still be prosecuted further for the benefit of the natural parents — the true parents. The evidence in the case, Avhich Avas offered, was in accordance AAdth the averments of-the petition. There Avas no request made by the plaintiff beloAV to amend the petition after the court of common pleas had indicated that the action could not be maintained for the benefit of the adopting parents. We think that the naming of the beneficiaries in the petition, in this kind of a case, is eminently proper, and the plaintiff having done so, it would not be alloAArable for the plaintiff to offer eAddence justifying a reeoArerv for the benefit of another beneficiary, where no leave to amend had been granted or asked.

Finding no prejudicial error, the judgment Avill be affirmed.


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    VALIDITY OF A JOINT TOWNSHIP DITCH LEVY.
    Court of Appeals for Licking County.
    Elisha J. Case v. Frank Burrell et al.
    Decided, March Term, 1915.

      Township Trustees — Aetion by Joint Boards with Reference to Establishment of a Bitch — Not Invalidated by Fact that Terms of Office of Trustees Had Expired.

    Both election and qualification are necessary in order to render a township trustee an officer in contemplation of law, and where action by a joint board on a petition for the establishment of a ditch had been set for January 1, the granting of the application and levying of the assessment at a meeting held on that day is not invalidated by the fact that the terms of office of the trustees so acting had expired the pervious midnight and their successors did not qualify for some days later, the action of the old board being that of etc jure officers.

      Fitzsimmons, Montgomery Black, for plaintiff.

      Kibler & Kibler., contra.
    Shields, J.; Powell, J., and Houck, J., concur.
   The sole question presented in this case, which is in this court on appeal, is whether the trustees of Hartford and Bennington townships in this county were legally constituted and acting as a legal joint board of trustees of said townships at the time of the action taken by them on January 3, 1914, upon the petition of W. "W. Stockberger et al, in ordering the establishment, location and construction of the ditch in question at that time.-

It appears that at a joint session of said board of said township trustees, held December 1st, 1913, further action on said petition was adjourned by said board to January 1, 1914, at — o’clock a. m., at which time a majority of said board of said township trustees made and caused to be entered on their minutes an order granting the prayer of said petition, and caused an assessment to be made for the construction thereof on certain property owners to be benefited thereby, including the property of the plaintiff. It is claimed that this action ivas illegal, null and void because the official terms of said trustees composing said joint board of trustees had then and before that time expired, to-wit, at midnight on December 31, 1913. It appears that trustees for the term beginning January 1, 1914, had been elected in each of said townships; and it likewise appears that the trustees elected in and for said Hartford township did not qualify until 4 r. M. on said January 1, 1914, and that two of the trustees elected in and for said Bennington township did not qualify until January 5, 1914, and the other and third trustee not until January 8, 1914.

The question made by the record is: Did the township trustees of said townships continue in office as such until their successors in office qualified, or did their terms of office expire by limitation on December 31, 191.3, at midnight?

Section 3268 of the General Code provides that:

“Three trustees shall be elected biennially in each township, Avho shall hold their offices for a term of two years commencing on the 1st day of January next after their election.”

Article IV, Section 10, of the Constitution provides that:

“ToAvnship officers shall be elected by the electors of each township at such time,-in such manner and for such term, not exceeding three years, as may be provided by law, but shall hold their offices until their successors are elected and qualified.”

Section 8 of the General Code provides that:

“A person holding an office of public trust shall continue therein until his sAiccessor is elected or appointed, and qualified, unless otherwise provided in the Constitution or laws.”

From the foregoing it appears that both an election and qualification are necessary in order to render a tcAvnship trustee an officer in contemplation of larv. But it is contended that under Section 3268 of the General Code, toAvnship trustees are elected for the period of tAvo years, that their terms commence January 1st, and that such day commences at the expiration of the day preceding, and that no fractional parts of a day are to be considered. Such is the holding in the case of Arrowsmith v. Hamering, 39 O. S., 573; but in the same case it is likewise held by the court, in discussing fractional parts of a day, that—

“This presumption will not prevail when it is in conflict with any right required in actual points of time on that day before the act took effect. In such ease the exact time.in the day may be shown.”

In the ease before us an official declaration had been made at the time of said adjournment requiring some official action to be taken .on said January 1st, 1914, at — o’clock a. m., and the successors to what may be termed the old joint board not having qualified at that time, could not such old joint board continue to act until their successors qualified? At best, the trustees of Hartford township having qualified on January 1st, in the afternoon of said day, and'the said P>ennington township trustees, at least a majoritj' of them, not having qualified until January 5th, a joint meeting of the newly elected trustees of said townships was thereby rendered impossible on January 1st, even though the beginning of the official terms of said trustees related back to midnight of December 31st.

Under the evidence presented, we think that the action of the o joint board of said township trustees on January 1st, in ordering the establishment, location and construction of said ditch and making an assessment therefor, was taken by said joint board of trustees as de jure officers, and that such action was not unauthorized or illegal; and it follows that the temporary'injunction heretofore allowed will be dissolved and the petition of the plaintiff dismissed.


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    GARNISHMENT OF TEN PER. CENT. OF WAGES.
    Circuit Court of Cuyahoga County.
    Charles Scharfenburg v. W. T. Parsons, and Edward J. Callahan v. The Kennedy Furniture Company.
    Decided, June 7, 1909.

      Attachment and Garnishment — When Ten Per Cent, of Wages May he Garnished for Necessaries.,
    A voluntary payment by a debtor of ten per cent, of his monthly earnings to one creditor for necessaries is no bar to a garnishment of ten per cent, by another creditor, under the provisions of Section 6501, Revised Statutes.

      I. Grossman and Charles Scharfenhurg, for plaintiffs in error.

      William A. Spill, Edward J%. Callahan and Nathan Loeser, contra.
    PIenry, J.; A¥inch, J., and Marvin, J., concur.
   PRese two eases originated in justices’ courts and involve a construction of “An act to amend Section 6501 of the Revised Statutes as amended April 26, 1898,” passed April 16, 1900 (95 O. L., 376), allowing personal earnings to be garnisheed for debts for necessaries to the extent of ten per cent, per month and costs of suit not exceeding $4.

The precise point in controversy is whether a debtor’s voluntary payment of such 10 per cent, to one of his creditors bars another’s resort to this statute within thirty days thereafter. We think it does not. Whether it would be otherwise if such payment were involuntary is a question not before us. Such a distinction between voluntary and involuntary payments would, however, sufficiently protect debtors’ families against repeated attempts within a single month to take tithings of their blood and sweat. But to hold that mere voluntary payments when made without either demand or process may be a bar, would be to open wide the door to frauds upon the law. At all events we hold that the language of the statute neither requires nor warrants such a construction, and the judgments below are affirmed.


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    AGREEMENTS AS TO SALE OF LAND NOT WITHIN THE STATUTE OF FRAUDS.
    Circuit Court of Cuyahoga County.
    William F. Sauer et al v. The Walton Realty Company.
    Decided, May 24, 1909.

      Land, Contracts — Modification, When Not Subject to Statute of Frauds.

    When a contract for the sale of land has been properly executed in writing, subsequent agreements between the vendor and vendee, as to the pecuniary liabilities growing out of the transaction, which do not take away or confer any interest in the land, hut only determine the time when the purchase money becomes due, are not affected by the statute of frauds.

      George G. Eafley, for plaintiff in error.
    W. B. Beebe, contra.
    Henry, J.; Marvin, J., concurs.
   Tlie relation of the parties here is the reverse of that in the court of common pleas. The petition, in error prays for a reversal of the order of that court appointing a receiver in an action to foreclose a land contract. The petition below alleges default in payment of installments of. the purchase price stipulated in the written agreement between the parties. At the outset of the case below, plaintiff moved for the appointment of a receiver, but before this motion was acted upon, the defendant interposed an answer, alleging among other things' that the provisions of the written agreement, in regard to the times of payment and amounts of installments, had been modified by subsecpient oral agreement between the parties, in accordance with which the defendants had paid or tendered all installments of the purchase price as they fell due. No reply was filed, but the court upon hearing the motion for good cause shown granted the same, and appointed a receiver.

No bill of exceptions is presented here by which the finding of fact, as to good cause shown, can be reviewed. But in the absence of a reply the fact stood admitted, that the defendants below were not in default under tlie modified agreement as set out in the answer (Beach on Receivers, 151). The sole question, then, for our consideration, is one of law, namely: Whether or not, under our statute of frauds, a contract in writing for the sale of land may be subsequently modified in the manner already described, by oral agreement. The answer does not allege that in consideration of the promise of the defendants below to pay monthly installments of $25 instead of $20 their obligation to make a certain stipulated payment of $200 at a time named, had been waived by the plaintiff below.

Counsel. have cited many authorities, chiefly from another jurisdiction, but they seem to have overlooked the case of Negley v. Jeffers, 28 Ohio St., 90, which appears to us to be decisive of the matter in this jurisdiction. Paragraph 6 of the syllabus of that case is as follows:

“When a deed to real estate has been executed, or title in any other way passed, subsequent agreements between vendor and vendee, as to the pecuniary liabilities growing out of the transaction which do not take away or confer any interest in the land, but only determine the time when the purchase money becomes due, are not affected by the' statute of frauds. ’ ’

A deed there was in escrow pending fulfillment of certain conditions, some of which were waived by parol

Title had passed in that case, only in the sense in which it has passed here.

The new basis of payment here was acted upon so far as to estop the plaintiff to claim that the oral modification, if made, is invalid, because not to be wholly performed within one year.

It thus appears that the answer in this case presents a valid defense, and so long as it stood undenied by reply, the court below was vested with no power or discretion to appoint a receiver in aid of the foreclosure.

The judgment of the court of common pleas is reversed and the cause remanded.


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    LIABILITY FOR. SALE OF LIQUOR. RESTS ON ITS UNLAWFULNESS.
    Circuit Court of Cuyahoga County.
    Rose Hanzel v. Charles Telschow.
    Decided, February 1, 1909.

      Intoxicating Liquors — Ho Recovery for Itijui-y to Third Person if Sale Was Lawful.

    No recovery can be had under Sections 4357 and 4358, Revised Statutes, from one who has sold liquor to another who injured plaintiff while intoxicated, unless the sale of liquor was unlawful.

      TL., M. Bull and W. G. Rogers, for plaintiff in error.
    W. T. Clark, contra.
    Henry, J.; Winoh, J., and Metcalfe, J. (sitting in place of Marvin, J.), concur.
   The parties here stand in the same relation' as that in which they stood below. Upon demurrer to the petition sustained, the court, of common pleas rendered a judgment for the defendant below. The action was brought under Sections 4357 and 4358, Revised Statutes, to recover damages alleged to have been sustained by the plaintiff in consequence of the sale by the defendant of intoxicating liquors to her husband, whereby he was made drunk, and while in that condition inflicted the injuries complained of.

The point upon which the decision below turned was that the sales were not alleged to be unlawful: but it is urged here that the necessity of pleading and proving unlawfullness under the authority of Baker v. Beckwith, 28 O. S., 314, and Lyon v. Fleahman, 34 Ohio State, 151, is now obviated by the provisions subsequently incorporated into the law by 72 Ohio Laws, 35, and 93 Ohio Laws, 371, providing for notice.

The Supreme Court has not yet construed the requirement of notice in Section 4358, as bearing upon the alleged enlargement of the liability created by Section 4357, but it has passed upon the effect of the general notice in this behalf formerly required thereby and by Sections-4359 and 4360, Revised Statutes, now repealed, and has clearly intimated in Mullen v. Peak, 49 O. S., 447, 458-9, and Casey v. Bank, 50 O. S., 527, that those provisions as to notice did not obviate the necessity of pleading and proving the unlawfulness of the sales of liquor relied on to make out a ease of liability, under Section 4357. The opinion of the court in Kolling v. Bennett, 18 C. C., 425, implies that the same requirement is deemed to exist still under the present statute.

We feel bound by the construction which the Supreme Court has put upon Section 4357, and adhered to after -the element of notice was incorporated by the General Assembly into the law. The judgment is therefore affirmed.


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    PROOF OF ACCOUNT BY MEANS OF SALE SLIPS.
    Circuit Court of Cuyahoga County.
    M. A. O’Brien v. The W. J. Westgate Company.
    Decided, January 25, 1909.

      Evidence — When Sale. Slips Admissible.

    Slips upon which all sales are written with the balance carried forward from one slip to another are admissible in evidence as origi- . nal entries where no other books are kept, but a balance upon a slip obtained from a prior slip since destroyed is not admissible.

      Morton W. Cope, for plaintiff in error.

      P. T. Cullitcm, contra.
    Henry, J.; Winch, J., and Metcalfe, J. (sitting in' place of Marvin, J.), concur.-
   The action below originated in a justice’s court with the parties standing in the relation opposite to that in which they stand here and stood in the court of -common pleas The bill of particulars made claim for recovery for necessaries, to-wit, groceries sold by the Westgate Company to O’Brien, and judgment was rendered for the full amount claimed.

O’Brien prosecuted error to the court of common pleas where the judgment of the justice’s court was affirmed, and error is now prosecuted to this court.

The bill of exceptions does not purport to set forth all the evidence, but simply enough to show the error relied upon, to-wit, the admission in evidence of sundry sales slips which, taken in chronological order, were posted by carrying forward the total from one slip to another, so that the aggregate thus written upon the final slip’embraces the amount of all'the items of groceries sold, as indicated in the whole number of slips. Not only was the admission in evidence of these slips by the trial court objected by O’Brien upon the ground that they were not properly books of account or of proper original entry, but the first slip in particular was objected to for the reason that it purported to commence with the balance brought forward from previous slips said to have been destroyed upon the rendition of a statement of account to that datc.

No other books of account were kept by the Westgate Company, and it is suggested in argument before us that this method of bookkeeping is now almost universal amongst retail tradesmen in this community.

Without determining whether strictly speaking the slips admitted in evidence together constitute a book account, properly so-called, within 'the meaning of our statute, it is clear that in so far as this account embraced the original entries made in the usual course of business, they were admissible. The first slip, however, so far as it includes and carries into the account a balance derived from previous slips, now destroyed, is clearly not an original entry of this sort, and is therefore not admissible in evidence upon that theory. But the bill of exceptions discloses an effort to prove an account stated to the amount of this balance, in the presentation of an itemized statement.thereof to O’Brien’s wife, by whom the purchases were made and from whom, after the presentation of said statement, a payment on account of $25 was received by the company and duly credited on one of the subsequent slips in evidence. This, of itself, would not suffice as proof of an account stated between the parties to the action, because although O’Brien’s wife may be presumed to have made whatever purchases of groceries she negotiated with authority implied in law to charge her husband therefor as necessaries for family use, yet her agency thus arising can not be deemed to extend to an implied authority from her husband to state an account as between him and the creditor here.

The bill of exceptions does not disclose whether this link in the chain of evidence sought to be produced was supplied by testimony tending to show that the husband had in fact conferred upon his wife the necessary authority to bind him in such a statement of account between him and the company.-With this link supplied the sum total of the account stated might well become the subject of an entry carried forward and incorporated into the subsequent accounts kept by the company of its sales to O’Brien. The question is not to be approached as if the evidence complained of were manifestly inadmissible. In that event, we should have no alternative but to say that the error committed in admitting such testimony was presumably prejudicial to the plaintiff in error. Rather must this assignment of error be considered from the standpoint of admissibility of the evidence pursuant to the theory, of the case actually entertained by the plaintiff, as disclosed by the bill of exceptions, for aught the bill of exceptions discloses, evidence was produced, which according to this theory, would render the evidence complained of perfectly competent. Upon this assumption, we can not say that any prejudicial error was committed in admitting the first slip in evidence.

We find no error in the record and the judgment below is affirmed.


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    RECOVERY BARRED BY FORMER. ADJUDICATION AS TO NEGLIGENCE.
    Circuit Court of Cuyahoga County.
    Abbie A. Johnson, Administratrix, v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Co.
    Decided, January 11, 1909.

      Action for Wrongful Death Barred by Action for Personal Injuries by Decedent.

    Where an action for personal injuries had been begun by a decedent and prosecuted to judgment by his administrator after his death, it is a bar to another action by the administrator for wrongful death of decedent resulting from the same injuries as those upon which the previous suit was predicated.

      Edward 8. Meyer, for plaintiff.

      Cook, McGowan & Foote, contra.
    ITenry, J.; Winch, J., and Marvin, J., concur.
   This was an action for death by wrongful act which resulted in a verdict and judgment for the defendant, by direction of the court, because of former adjudication of the issue of negligence between the same parties in an action for personal injuries brought by the plaintiff’s decedent in his lifetime and upon his death prosecuted to final judgment, after revivor in the name of his personal representative, who is also the plaintiff here. In that action the jury rendered a" verdict for the defendant, upon the merits, and the judgment rendered upon that verdict was set up by answer as a bar to the maintenance of the second action, which was for wrongful death.

The parties to both actions áre identical, and the issue of negligence in both cases the same. It is urged, however, that the administratrix in the second case sued in a different right, representing the widow and children as next of kin of the decedent, for damages sustained by them in consequence of his death, whereas in the first action the administratrix maintained her action for the benefit of the estate of said decedent and those who as creditors or distributees might be interested therein for the recovery of damages sustained by the ‘injured person.

The decedent left a widow and children, who alone are interested in the avails of any recovery for the death by wrongful act.

In the former case the same persons were all likewise interested as distributees of the decedent’s estate, although it is true that the assets of the estate produced by any recovery in that action might all be consumed in satisfying the debts, if any, of the estate. It follows, therefore, that in both eases the administratrix in fact represents the same persons, who seek to benefit by recoveries founded upon one and the same act of negligence as the proximate cause of a single bodily injury, giving rise, when death ensued, to two distinct rights of recovery. ■ '

The gist of each case is the wrongful act complained of, and its wrongfulness can not be twice litigated by or for the- benefit of the same persons.

The judgment in the first .case is conclusive upon all parties concerned in the determination of this issue.

We hold, therefore, that the defence of former adjudication was rightly allowed and the judgment below is affirmed.