author: Gorman, J.

text:
    NEGLIGENCE AS BETWEEN A CHAFFEUR. AND A MOTORMAN.
    Court of Appeals for Hamilton County.
    The Cincinnati Traction Company v. Bertha Webster Harrison.
    Decided, March 29, 1915.

      Automobile Struclc by Street Gar — Whether Ordinary Care Was Exercised by Either Chauffeur or Motorman a Question for the Jury— Relative Value of Testimony of Witnesses — Claim of Husband Who Paid Bills of Nurse and Physician — Models in Evidence.

    1. The degree of care required of motormen between street intersections is not as great as at street crossings, while drivers of other vehicles should exercise greater care in crossing street car tracks • between intersections than at street crossings.
    2. Whether a chauffeur exercised ordinary care in driving out of private grounds upon the street in the face of an approaching car, with the result that his machine was struck by the car and his employer injured, is for - the jury to determine in view of all the circumstances surrounding the- case.
    3. It would be error to charge a jury that “if you find the witnesses are of equal credibility, then I charge you that the affirmative testimony of the witness who says that he heard the gong sounded is of greater value than the testimony of the other witnesses,” unless the qualification be added that “they had equal opportunity to hear.”
    4. Where a husband testifies that he has assigned to his injured wife the claim on account of services of a physician and nurse, he estops himself from asserting such a claim in a future action, and these items may be submitted to the jury to be included in the damages awarded notwithstanding the assignment was not in writing:

      Einhead c§ Rogers, for plaintiff in error.

      Galvin $ Galvin, contra.
   Gorman, J.

This was an action to recover damages for personal injuries sustained by the defendant in error, by reason of a collision between her automobile and a car of the plaintiff in error company, on Gilbert avenue near Chapel street, in January, 1912. A verdict of $3,750 was rendered in her favor below, and the cause is now here on error.

The principal contention of plaintiff in error is that the verdict is against the weight of the evidence. We have read the record of the evidence in the case ,and carefully considered same. It appears that defendant in error was driving out of the premises of Mrs. Krippendorf, on the west side of Gilbert avenue, about forty feet south of Chapel street. There was a slight cut in the driveway near the street line, and the driveway gradually, sloped from the house, which stood back perhaps eighty or .a' hundred feet, to the street line. Plaintiff in error claims that it was such negligence on the part of the chauffeur, who was driving the automobile of defendant in error, to drive his automobile onto the street car track ahead of a north bound car on Gilbert avenue; that the defendant in error is precluded from recovery.

The evidence tends to show that at the time the chauffeur drove out upon the street, there was a south bound car standing at the intersection of Chapel street and Gilbert avenue, about forty feet north of the driveway, the front end of the south bound car being not more than ten or fifteen feet from the driveway. There was a great deal of snow, Avhich had been cast onto the sides of the street by the sweepers of the traction company, leaving no space between the stréet car tracks and the curbs on either side of Gilbert avenue for the automobiles or vehicles to pass, and it wás necessary for automobiles to keep to the center of the street along the street ear tracks in order to pass over the street. The evidence tends to show that there was a north bound car approaching Chapel street at the time the chauffeur drove onto Gilbert avenue from the driveway of Mrs. Krippendorf, and the distance this car was from the driveway at the time the chauffeur crossed the sidewalk, on the drive, to the street, is placed at from eighty feet to four hundred and fifty feet away.

Now it is claimed by plaintiff in error th'at it was negligence on the part of the chauffeur to undertake to drive onto the street in front of this approaching car when it was so near to him as the evidence tended to show it was. Mrs. Harrison testified that she saw the approaching car and also saw the stationary south bound car, but that the north bound ear was so far away that she didn’t think there could be any danger in driving upon the street ahead of the car.

We think that it was a question for the jury to determine under all the circumstances of the case, taking into consideration the speed of the car, the necessity of Mrs. Harrison’s automobile to drive in the part of the street where the street car tracks were laid, whether or not a reasonably prudent person would have driven upon the track at the time and place the chauffeur of the defendant in error did drive. If, as a reasonably prudent chauffeur, he believed that, under all the conditions before him, it was reasonably safe to drive upon the north bound track at the time and place he did, then he was not guilty of negligence. If, on the other hand, the approaching ear was so near to him at the time he undertook to drive upon the north bound track that a reasonably prudent chauffeur would not undertake to drive upon the track, then he would have been guilty of such negligence as would preclude a recovery on the part of the defendant in error.

It was not, in our opinion, as a matter of law, negligence for the chauffeur to drive- upon the .track of .the street car company, even though there was an approaching car and he saw it approaching. As we understand the rule laid down in the Brandon case, 87 O. S., which, to be sure, was a case at an intersection, it was a question of whether or not a reasonably prudent driver would under the circumstances undertake to drive upon the track; and this rule we believe applies whether it be at an intersection or between intersections. It is true that between intersections greater care is required to be exercised by drivers of vehicles to avoid being injured in crossing tracks of the street railway, and the degree of 'care to be exercised by a motorman between intersections is not as great as that required to be exercised at an intersection. But when we consider that the car was approaching Chapel street, an intersecting street, and this automobile was not more than forty, and perhaps not more than thirty feet away from this intersection, it was the duty of the motorman to have his car under such control as to be able to stop it within a reasonable distance and to be on the lookout for persons and vehicles who might be on the street and had a right to be on the.street. The street car had no superior right in the street over and above the right of the defendant in error and her automobile. Each of the parties, the chauffeur of the defendant in error and the motorman of the plaintiff in error, were bound to exercise ordinary care. Ordinary care under some circumstances is a higher degree of care than under other circumstances, but the whole question whether or not the parties were guilty of negligence, or contributory negligence, if there was any evidence tending to show negligence or contributory negligence, or both, is one for the jury under proper instructions from the court. Upon this point we do not find any error in the charge of the court, and we feel that there was evidence tending to support the verdict, as to the negligence of the plaintiff in error.

This court ought not set aside a verdict on the ground that it is not supported by the weight of the evidence, unless it be manifestly against the weight of the evidence. The trial judge heard all the testimony of the witnesses, and saw them face to face, and was better able to judge as to the weight to be given to their testimony and the value of their testimony, than a reviewing court. • The trial court having refused to set aside the verdict on the ground that it was against the weight of the evidence, we feel that this court should not do so unless it is manifestly against the weight of the evidence. "We are not prepared to say that the verdict was manifestly against the weight of the evidence.

It is further urged that the court erred in refusing to give special charges Nos. 1 and 2 requested by plaintiff in error.

We think that special charge No. 1 was substantially given in special charge No. 3; so that, if it be true that special charge No. 3 is substantially the same as special charge No. 1, there was no error in the court’s refusal to give special charge No. 1, because plaintiff in error had the benefit of the rule of law embodied in special charge No. 1.

As to special charge No. 2, refused, we do not think the court erred in refusing to give the same, because there was omitted from the charge the question of whether or not the witnesses testifying had equal opportunities to hear whether or not the gong sounded. This charge was predicated upon the rule of law that where two witnesses of equal credibility and equal opportunities of seeing and observing testify to the same fact, one of whom testifies positively that a certain thing was done, and the other testifies that he did not see or hear it done, then greater credence must be given to the witness' who testifies that it was done, than to the witness who testifies that he didn’t see or hear it done.

Now, if there had been added to special charge No. 2, which was refused, the words ‘ ‘ and have equal opportunities to hear, ’ ’ we think that the charge would have been correct. But the charge does not contain this language. The language is:

“ * * * and if you find that the witnesses are of equal credibility, then I charge you that the affirmative testimony of the witness who says that he heard the gong sounded is of greater value than the testimony of the other witness.”

This charge should have read as follows:

* * * and if you find that the witnesses are of equal credibility, and had equal opportunities to hear, then I charge you,” etc.

Thirdly. It is claimed that the court erred as to its rule, in the charge, respecting the liability of plaintiff in error to the defendant in error, for the doctor’s bill, nurse’s bill, etc. The evidence discloses that the doctor’s bill was incurred by the huSv band of the defendant in error, and also the nurse’s bill. A claim was made by defendant in error in the case, on the trial* below, for $400 damages by reason of the doctor’s bill and nurse’s! bill. The husband of defendant in error testified as to these, services, and so did the doctor and the nurse. There was some] evidence as to the reasonable value of the doctor’s services, but! no evidence as to the value of the nurse’s services. It is con-\ tended that defendant in error could not have recovered for these items of damage because there was no assignment in writing of the claim by the husband to her. "While it is true that an assignment of this claim should have been made to the defendant in error in writing, nevertheless, in view of the fact that the husband of the defendant in error took the stand and testified that he had assigned his claim to his wife, we feel that he would be precluded from asserting this claim against the plaintiff in error at any future time. He would be estopped to assert this claim in any future action, and this is the point which concerns plaintiff in error as to this matter. We do not feel that the verdict should be disturbed because of the admission of testimony relating to these claims, or because of the charge of the court relating to these claims.

It is next claimed that there was error in the admission of certain exhibits — photographs, models and a plat taken from the auditor’s office of this county. It is admitted that the plat" taken from the auditor’s office is substantially accurate and drawn to a scale and we can see no error in admitting it in evidence. It is practically the same sort of a plat that was offered by plaintiff in error, with the difference that there was indicated back from the street certain buildings upon the property. As to the photograph, it was an enlarged one, but was not for that reason inadmissible. It has been held by the Supreme Court that photographs are admissible in evidence to show location, situation and surroundings of the place where the cause of action arose. As to the models, they were, to be sure, amateurish, but nevertheless, interesting and instructive. They showed a section of the street and street car tracks, the driveway, the north bound car and the south bound car, and the automobile, and were used purely for illustration and in the argument to the jury. ' We can not find that, because these models were not highly artistic and beautifully designed, they were improperly admitted or improperly used in the argument to the jury.

The amount of the verdict in this ease was not so great as to indicate that there was any prejudice or bias on the part of the jury. Indeed, it is not claimed that the verdict was excessive. On the contrary, we think the jury might have returned a very much larger verdict, if the defendant in error was entitled to recover at all.

We are of the opinion that the case was fairly tried and there was no substantial error in the admission or exclusion of evidence; the charge of the court was as fair as could have been asked, and substantial justice has been done by the rendition of the verdict in favor of the defendant in error.

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

Jones (E. H), J., and Jones (Oliver B.), J., concur.


source: Caselaw Access Project

author: Richards, J.

license: Public Domain

text:
    COMMITMENT OF WITNESS BY NOTARY FOR. CONTEMPT.
    Court of Appeals for Erie County.
    In re Application of George J. Sage for a Writ of Habeas Corpus.
    Decided, June 5, 1915.

      Contempt — Sufficiency of Commitment Issued l)y Notary Against a Witness Refusing to Testify — Nature of an Oath.

    1. An order of commitment of a witness for contempt for refusing to be sworn, issued by a notary public before whom his deposition is sought to be taken, is not defective in failing to show a specific order that the witness be sworn, where it recites that the witness unlawfully refused to be sworn; and such order of commitment need not recite that the notary was not a relative or attorney of either party, or otherwise interested in the action.
    2. An oath includes an affirmation and embraces every method whereby the conscience of a witness is obligated to testify to the truth.

      George A. Groot, IlermaAi Preusser and PL. L. Peeke, for plaintiff in error.

      Stanley & Horwitz, contra.
   Richards, J.

Error to the court of common pleas.

While the case of The Ohio Assets Company v. George A. Groot, George J. Sage et al was pending in the Court of Common Pleas of Cuyahoga County, the plaintiff gave due notice to the defendants that the deposition of George J. Sage would be taken on October 19, 1914, before a notary public in Erie county, in which county,said Sage resided. A subpoena was served on Sage to appear at the time and place named and testify as a witness. The witness appeared in accordance with the command of the subpoena but refused to be sworn as a witness. He was thereupon committed to the jail of Erie county by order of the notary public, for contempt, whereupon he sued out a writ of habeas corpus in the probate court, and on a hearing being held in that court he was discharged. Error was prosecuted from that decision to the court of common pleas, where the judgment of the probate court was reversed and the petitioner remanded to the custody of the sheriff. To reverse this latter decision rendered by the court of common pleas, this proceeding in error is brought in this court.

The order of commitment issued by the notary public recites, substantially, the facts of the pendency of the action in Cuyahoga county; the service of notice on October 14, 1914, to take the deposition of Sage at the office of the notary on October 19, 1914; that the witness appeared at the office of the notary at the time specified; that his fees as a witness had been paid; that he was called by plaintiff in that case as a witness, and that he refused to be sworn as a witness in the taking of said deposition. The commitment further recites that thereupon the notary found and determined that he was guilty of contempt by his unlawful refusal to be sworn as a witness, and ordered and adjudged that he be imprisoned in the county jail of Erie county, there to remain until he should submit to be sworn, testify and give his deposition, or until otherwise legally discharged.

- When the case came on to be heard in the probate court counsel for the petitioner moved that court for a discharge of the prisoner for two reasons: first, that the commitment is defective in that it does not specify the cause of commitment as required by law; and, second, that the return of the sheriff fails to show the facts in reference to the case which are required to be set out by the sheriff in making his return.

On the hearing of the case in the court of appeals it was insistéd by counsel for the petitioner that the commitment issued by the notary is insufficient for the reason that it does not show that any order was made upon him to be sworn or to give his testimony at such hearing, and that the notary had no authority to issue the commitment because the witness’ deposition could not be taken a second time, it having already been taken in said action. It is further insisted on behalf of the petitioner that the commitment is defective in that it fails to show that the notary is not a relative or attorney of either party or otherwise interested in the action; and it was contended in oral argument that the commitment is defective in failing to show that the witness had refused to be affirmed as well as refused to be sworn.

The order of commitment as recited contains a finding by the notary public that the witness had unlawfully refused to be sworn as a witness, and such refusal necessarily involves a finding that the witness had been lawfully called upon to testify. The refusal of the witness to testify could not be an unlawful refusal unless the circumstances were such that the witness was properly required to testify, and when the notary finds and determines that the witness has unlawfully refused to testify, he has made all the finding in that respect which is required by law. (General Code, 11510.)

In view of the evidence contained in the bill of exceptions, the contention that this was a second taking of the deposition of the witness and that, for this reason, the notary had no authority to commit him for contempt, certainly exhibits ingenuity. It appears in the bill of exceptions that an attempt had been made to take the deposition of this witness in the same ease on September 10,1914, on which occasion the witness appeared and was sworn, but refused to answer very many material questions. The issue in the case was whether a certain conveyance of real estate, from G-root to his brother-in-law, Sage, situated on Seovill avenue in the city of Cleveland, was fraudulent as against creditors, the plaintiff claiming that the conveyance had been made without consideration and that it was invalid. In view of this issue in the pleadings, the witness was inquired of when the first attempt was made to take his deposition, as to how much he had paid for the property. Iiis answer was, “That is my own business. I shall give no answer to that. It is none of your business. I am not going to answer.” He was asked whether his answer would incriminate him in any way and he answered that it would not. The notary thereupon held that the answer was sufficient and that he could not compel the witness to answer further.

The deposition of September 10th contains many other illustrations of refusals to answer pertinent questions. It is impossible to conceive of any circumstances which would have justified these refusals, and, as the questions to which answers were desired were of vital importance in the case and the special fact which plaintiff desired to prove, it could not in any sense be said that the deposition of the witness had in fact been taken. It is true that many years before, an action had been brought by some other creditor to set aside the conveyance and that such creditor had failed in the action, but the plaintiff in the action in which the deposition was being taken was not a party to the prior action and in no sense bound by the judgment therein rendered. In addition to all this, the trial of the case in which the deposition of September 10th was taken was commenced, and that deposition, such as it was, was offered in evidence. The trial court, apparently concluding that it was in effect no deposition so far as the material issue was concerned, stopped the trial, manifestly for the purpose of enabling the plaintiff to take the deposition of Sage, and if any order to take a second deposition was necessary, this action of the court would be a substantial compliance therewith.

It is said that the commitment is defective because it fails to show that the witness refused to affirm; and this contention is made in the face of the language contained in General Code, Sec. 1, where it is enacted that, “the word ‘oath’ includes affirmation. ” The same enactment is again contained in General Code, See. 10*213. It is provided in General Code, Sec. 11542, that the officer before whom the deposition is taken shall certify that the witness was first “sworn” to testify, etc., and it is further provided in General Code, Sec. 12137, that a refusal to be sworn may be punished as for a contempt. Section 11510 has been held applicable to confer power on notaries public (De-Camp v. Archibald, 50 O. S., 618; Ex Parte Malcolm Jennings, 60 O. S., 319). We hold, in A'iew of these provisions, that an oath, AA'ithin the meaning of the statutes, embraces every method Avhereby the conscience of a witness is obligated to testify to the truth. The sections of the code cited show that the objection Avas a mere triviality. In addition to this, the record discloses that the witness had in fact been sworn, without objection on his part, AA'hen they sought to take his deposition a month previous, so that he evidently had no conscientious scruples against taking an oath.

The contention that the warrant of commitment is defective in that it fails to shoAV that the notary was not a relative or attorney of either party, or otherwise interested in the action, is Avithout merit. The record shows that the notary public was duly qualified as such within the county of Erie, and that he had jurisdiction of the person of the petitioner Avho was duly subpoenaed as a witness, and he had, of course, jurisdiction and authority to take depositions. It would be announcing altogether too strict a rule to say that the absence of every disqualification must appear in the commitment. If it were true that the notary Avas subject to any disqualification, that fact could easily be made to appear on the hearing of the habeas corpus proceeding, and no attempt was made to show that. The whole-record discloses a persistent and flagrant attempt to frustrate tlie endeavors of the plaintiff to ascertain the truth on issues properly made and awaiting determination in a court of justice.

Finding no error, the judgment of the court of common pleas will be affirmed.

Chittenden, J., and Kinkade, J., concur.


author: Grant, J.

text:
    JUSTIFIABLE REPUDIATION OF A SETTLEMENT AGREEMENT.
    Court of Appeals for Cuyahoga County.
    Elizabeth Farley, Administratrix, v. The Cleveland, Cincinnati, Chicago & St. Louis Railway Company.
    Decided, May 26, 1914.

      Release of Claim for Wrongful Death — Terminated hy Failure of Defends ant to Carry Out One of its Essential Features.

    1. An agreement to pay a widow a specified sum of money in full settlement of her claim for the wrongful death of her husband, and also to pay her lawyer a stipulated sum under his agreement with her when he took the case or to protect her against the claim of the lawyer, is so far repudiated by a subsequent refusal to settle with the lawyer as to justify the party of the first part in tendering back the amount she had received and declaring the whole agreement at an end.
    2. Where one of the parties to an agreement of settlement has repudiated an integral part of it, and the other party has thereupon elected to disavow the whole of it with-an offer to restore the status quo ante, the rescission is an accomplished fact and requires no judicial declaration of the result thereby accomplished.

      G. B. Keppel and Chas. A. Thatcher, for plaintiff in error.

      Cook, McGowan A Foote, contra.
   Grant, J.

Error to the court of common pleas.

In 1913 and at the time of his death, one George F. Farley, the plaintiff’s-intestate, was engaged-in the service of the defendant company, and while so engaged was killed.

The plaintiff is his widow as well as the administratrix of his estate. In the latter capacity she brought suit against the defendant for damages occasioned by her husband’s death, alleging it to have resulted from the wrongful acts and omissions of the company. For the prosecution and conduct of that action she employed one Thatcher as her agent, engaging to pay him for his service in that behalf 25 per centum of any recovery or settlement reached in the ease without going to a trial on the merits.

"While that action was pending in court and untried, the plaintiff came to an agreement of settlement with the defendant for the sum of $3,000, and executed a full release, accordingly.

Whereupon, such settlement having been approved by the probate court having jurisdiction, the suit was discontinued by the plaintiff, or at her instance.

The agents of the defendant who effected this settlement knew at the time it was made of the contract between the plaintiff and Thatcher as to the latter’s stipulated compensation, and it was a part of their agreement with her, either to pay Thatcher’s claim at the rate contracted for, or to “protect” her against it — which of the two things agreed to be done in this respect being in dispute in the record in this case. After the release was signed Thatcher claimed $750 for himself under his agreement with Mrs. Farley. He Avas entitled to more, his compensation being liquidated at one-fourth of the recovery, and- the recovery being' $3,000 and such sum as might be coming to him in^ addition.

The defendant refused to pay Thatcher. Mrs. Farley then— as she stood obligated to do — paid him the amount he claimed, toAvit, $750, and so satisfied and kept her promise to him.

Mrs. Farley thereupon treated this repudiation by the defendant of Avhat she regarded as a material part of an indivisible contract, as a rescission of it, pro tanto, and elected to rescind it on her oAvn part as an entirety. Accordingly, she tendered back to the defendant company all the money received by her in settlement of her claim, Avith interest to the day the tender was made, and " commenced this action, the tender having been refused.

The petition alleged two causes of action. The first was at aAAr, strictly, -being1 in "fact a restatement of the original suit for damages for the alleged wrongful death of her intestate. The second demanded that the alleged contract of settlement be vacated and set aside, and concluded with a prayer for a money judgment upon the first cause of action.

The defendant, by answer, among other things, pleaded the release.

The plaintiff replied, alleging again in substance the second cause of action of the petition.

Upon the trial in the court below the plaintiff called for the submission to a jury of the issue joined by the pleadings on the second cause of action. This demand was denied, and the court proceeding to a trial of that issue, upheld the release, and dismissed the action.

It is alleged that error has intervened in both of these respects, that is, in refusing a trial of the issue raised by the second cause of action by a jury and in rendering final judgment against the plaintiff.

In support of the first proposition the case of Perry v. O’Neill & Co., 78 O. S., 200, is relied on.

Assuming, but not deciding, that the doctrine of that case allows, as of right, a jury trial where the question to be decided is whether on account of the absolute incapacity of a party to make it, a contract is void, db initio, we are of the opinion that .no such question- is presented in this case. The most that is said in the petition in this respect is that Mrs: Farley, at the time she executed the release, “suffered great mental anguish and grief” and that the defendant knew it.

This allegation falls short of alleging that the settlement contract was void for want of capacity on the part of Mrs. Farley to make it, instead of being voidable at her instance because she, although mentally qualified to make it, was induced to make it by the false and fraudulent conduct and representations of the defendant.

This allegation, without more, does not bring the case within the principle announced in Perry v. O’Neill, or within the remarks made in the opinion in that case.

It .is to be remembered that a pretty stringent rule, has recently .been. announced, by the Supreme Court of Ohio in this respect. In Palmer v. Humiston, decided February 25, 1913, the syllabus is:

“1. The issues of a case are defined by and confined to the pleadings. ’ ’

It is quite true that in the later case of Ryland Coal Co. v. McPadden, decided April 21, 1914, the following syllabus declares the law also on this subject, in the following words:

“2. In such case the issue of contributory negligence is not made by the pleadings, but is raised by the evidence properly offered by the parties in support of their respective claims. The issue of contributory negligence thus raised is to be determined by the same rules as to burden of proof and otherwise as if made by the pleadings.”

We are not at present called upon to say which of these two cases, in apparently hopeless conflict, as they appear to be, is the law for us, because neither does the petition sufficiently raise a jury issue, nor is one raised by the testimony disclosed by the record before us, as we think.

We shall spend no time in discussing the question of whether the contract of settlement was induced on the part of Mrs. Farley by the active fraud of the agents of the defendant company, or whether the representations they made to her as part of such inducement were representations which, although false and known by them to be so, were still such representations as she had no right in law to rely upon, and did rely upon them at her own proper peril. Our conclusion rests upon another, and, as we think, more certain and less difficult ground. Nor need we determine whether or not that question presents an issue triable as of right by a jury.

The agents of the defendant company knew, at the time they made settlement with Mrs. Farley, that she had agreed to pay Thatcher at least $750 on the basis of that settlement, and not that she had merely reserved the right to have a lawsuit with Thatcher over his compensation when he should come to the point of demanding it. Just what they agreed to do in regard to Thatcher’s claim is not so clear; the testimony on that point is in dispute. Mrs. Farley says the agreement was to pay Thatcher, unreservedly. The agents say it was to “protect” her against Thatcher.

As these agents had not just fallen from a Christmas tree, but were experienced and seasoned men in that line of activity, it is not likely that they did not at the time have in view the avenue of retreat finally taken by their company in refusing to pay Thatcher, and rely on the requisite degree of darkness that would be shed upon their agreement by the word “protect,” as used in relation to Mrs. Farley. * In this view of the matter it is probable that the testimony of one of the agents is not far afield. TIis language is:

“Well, I conferred with Mr. Hruska, who was in the adjoining room, and together we told her that we would protect her against Mr. Thatcher and not to accord him the mere privilege of suing her.”

What they really meant by agreeing to “protect” her, instead of paying the debt she had obligated herself to pay, is disclosed by their letter to her of April 8th, 1913, which they caused to be read aloud to her “at about 5:30 p. m.,” as the endorsement on the communication is at pains to state.

In that letter they tell her plainly that what they mean by “protecting” her is to allow her to be sued by Thatcher, when she should send the summons to them and the company would then do the defending. They further notify her that if she fails to do this, or if she voluntarily pays Thatcher what she thinks she owes him, or in any way assists him to the company’s prejudice, then they will consider themselves relieved from “protecting ’ ’ her further and will regard their agreement to do so as at an end. This was a matter of ten days after they had gotten the release.

It is of no moment, in our estimation, whether one version or the other of this part of the settlement agreement is accepted, although the brief refers to an answer of one of the agents who affected it as being “illuminating.” The answer shows that the agent told Thatcher that they would not pay him $750; that while that was the proper percentage reserved in the latter’s contract with Mrs. Farley, still as he, Thatcher, had not brought about the settlement there was simply no percentage about it; he had earned nothing under his agreement; but that, nevertheless, they were willing to pay him what he reasonably had earned. In other words, having earned nothing they would pay it.

In the view of the matter that the promise was to “protect” Mrs. Farley, instead of to pay what she owed Thatcher, even so, the'kind of “protection” to which, upon every just consideration, she was entitled, was that due to an honest and honorable woman, although an Irish woman, namely, not, to back her in an attempt to break faith and repudiate an obligation and to be put in the attitude of one who is to be sued before she will pay what she owns is an honest debt. To defend her in such a lawsuit, in which she goes on an enduring and public record as one who will not keep her written engagement, is no adequate “protection” to a woman, who having a higher sense of honor than that, paid the debt out of her own pocket and thus received a less sum than she had been promised, to meet the loss occasioned by her husband’s killing. In the view we take of the matter it was no “protection” at all.

It may be that Mrs. Farley’s idea that she ought to be protected in keeping her agreement with Thatcher instead of breaking it, was rather primitive; but such as it was, it was hers. She was entitled to have it, and it is not believable that she would have settled if she had not thought it was the idea of the company also. The record shows her to be that kind of a woman, and she and not the company was doing the obliging when she agreed to settle her lawsuit. If it shall be said that by going back from her settlement she showed herself willing to break contracts, too, the answer must be the example she had just had in that line, from men who told her that they were her real friends and her only disinterested advisers.

The defendant company broke its agreement in this respect. Mrs. Farley, because she would not break her agreement — and no amount of typical “protection’’’ could either in law or morals compel her to do so — did not receive in settlement the amount the company bargained to pay her, and the vice of the defendant’s initial repudiation of its contract penetrated the entire transaction, and entitled Mrs. Farley to treat it as at an end, at her own election. She did so elect and offered to restore to the defendant all she had taken from it.

It does not affect this conclusion to say that as the two parts of the contract have regard to two separate things, one to paying Mrs. Farley for her loss, and the other to paying a debt which the defendant assumed to pay in her stead, therefore the company may keep that part of the agreement which is of advantage to itself and ma.y violate the part which it deems burdensome, and send the other party forth to revel in the luxury of a lawsuit, or, in legal parlance, remit him to his remedy at law. It would be most inequitable to allow this. The two parties are not equals in this respect. To the defendant, lawsuits are easy things, old and familiar acquaintances. To a poor Irish woman they are a burdensome thing. And to compel her to indulge in one, when her sole desire is to keep her own engagements and to expect others to keep theirs, which if done would obviate lawsuits, must be regarded as an unjust thing. Speaking for myself, it would be Avith extreme reluctance that a view of the laAV would be entertained which could permit a party to a contract to retain its benefits and reject its burdens, with no alternative right except to engage in all the uncertainties, vexations and expenses of the litigation to Avhich the other party should be remitted. The defendant company could have easily held its settlement contract by keeping its part of it, and at a relatively small expense; for it is not seriously contended now that Thatcher’s claim was unreasonable in amount. The responsibility, therefore, is on the company and not on Mrs. Farley. In receding from her part of the agreement she was only entering on a path to which she Avas invited by her adversary, who had opened the way for her. If this case goes to a jury it will be because the defendant company sent it there.

. When the defendant repudiated its contract to “protect” her, .within the intendment of that word as we find it, it was Mrs. Farley’s right to declare the agreement as a totality at an end, to tender back the money received by her on account of it, and stand where she stood before it was made. She might then sue in damages as for a breach of it, or be remitted to her original cause of action, which would then remain wholly unadjudieated and unaffected by a settlement which had failed through no fault of hers, but through the sole fault of the other party to it.

Mrs. Farley has elected, seasonably, to take the latter alternative.

When, because the defendant had repudiated an integral part of the settlement agreement, the plaintiff chose to end the whole of it and offered to put the other party in statu quo ante, the rescission of it was a fact accomplished — accomplished by the parties themselves, as their right was — and no duty remained to the court in that respect, but upon the prayer of the plaintiff to make a judicial finding and declaration of the already rightfully accomplished result. The prayer of the petition is broad enough to allow this to be done.

Our conclusion is that the trial court should have done this and sent the case, thus stripped of its impotent settlement agreement, to a jury for determination upon the first cause of action in the petition.

Because this was not done, the judgment complained of is reversed and the cause is remanded to the court of common pleas for further proceedings, in accordance with law.

Having made this disposition of the petition in error, the appeal in the same case is dismissed.

Winch, J., and Meals, J., concur.


author: Jones (Oliver B.), J. Swing, J.,

text:
    CLAIM TO PART OF STREET BY PRESCRIPTION.
    Court of Appeals for Hamilton County.
    Clara Hermann v. Joseph Spitzmiller et al.
    Decided, June 25, 1914.

      Adverse Possession — Policy of the Law With Reference to Prescriptive Title to Land Dedicated for Street Purposes — Character of the Improvements Which Will Create Estoppel Against the Public.

      1. The decisions of the Ohio Supreme Court show a tendency to require a private person, claiming through adverse possession title to land which originally belonged to the public for street purposes, to base his claim on estoppel rather than the statute of limitations, and recognition will hardly be given to a claim by prescription unless in regard to land upon which valuable improvements have been erected.
    2. Where the grade of an unimproved street was such that it could not be used by vehicles until improved, the inclosure by an abutting owner of a part of the dedicated strip by a fence for a period of less than twenty-one years does not afford ground for enjoining its improvement on a claim of title by adverse possession.

      Ellis B. Gregg and J. T. Bhyno, for plaintiff.

      Walter M. Schoenle and Dennis J. By an, City Solicitors, and Gideon C. Wilson and John O. Eckert, contra.
   Jones (Oliver B.), J.

This action was brought by the plaintiff for the purpose of enjoining certain grading that was being done upon a strip of land 25 feet wide by about 70 feet long, which is the east end of an unnamed street, along the north section line as shown on the plat of James H. Oliver’s subdivision of St. Peter’s, Lick Run, Section 31, Town. 3, Fractional Range 2 of the Miami Purchase, as recorded in plat book 1, page 254.

The action was originally brought against Joseph Spitzmiller, a contractor who was doing the work of grading, and Jennie "Wahl, who owned the property east of plaintiff’s property and who had been granted permission by the city of Cincinnati to grade said part of said street by private contract, on behalf of the city and under the direction of the city authorities. The city of Cincinnati was afterwards made a party, and claimed in its answer and cross-petition that the strip of land described in plaintiff’s petition is a public street and forms a part of what is known as Fairmount avenue, and asked for a permanent injunction against plaintiff from interfering with its use and enjoyment as a public street.

At the time of the record of Oliver’s subdivision the territory comprised in the plat was not within the city of Cincinnati. The plat was made, signed, acknowledged and recorded in accordance with the terms of the act of March 3, 1831 (29 O. L., 350), as found in Swan’s Statutes of 1854, at pages 948-9. And under Section 8 of that act, now General Code, 3589, the recording of this plat made the strip of land shown along the north line thereof a public street and vested the title in fee simple in the county for public use as such. After the annexation of this territory to the city of Cincinnati, the platting commission of the city (under the platting commission act of 1871, 68 O. L., 36, afterwards R. S., 2626 and 2639), by resolution of May 27, 1875, adopted a plat of the territory of which this subdivision was a part, showing this strip 25 feet wide as a dedicated and accepted street of said city, and showing as located and recommended for street purposes a strip 30 feet wide along its north line, and five feet wide along its south line. — which three strips taken together would make a street 60 feet in width known as Fairmount avenue. The strip 30 feet wide along the north line was afterwards dedicated by the will of Robert W. Orr, found in will book 86, page 384, which together made a dedicated street 55 feet in width, with five additional feet on the south recommended by the platting commission but not yet dedicated.

Plaintiff holds the title to lots in J. IT. Oliver’s subdivision which abut upon the south line of this 25 foot street under .deeds which describe the property by lot numbers and refer to the recorded plat. The description of the property in these deeds does not embrace, by metes and bounds or otherwise, the tract of land as to which she seeks an injunction, and she does' not claim title under any deed, but claims to be the owner of that tract of land by adverse possession.

There is, therefore, no question but that the tract of land in dispute was part of a regularly dedicated street by statutory dedication, and that the title to same which originally vested in the county became vested in the city by the annexation of the territory embracing this subdivision, as a public street. The provision of law now found in Section 3723, General Code, did not require an acceptance by ordinance of this particular street, as that section is made for the protection of the city against liability for care and maintenance of the street rather than for the perfection of its title, and the action of the platting commission under the law in force at that time would constitute a complete acceptance of the street if a specific acceptance were required.

The question presented to the court is, whether the city has lost that title and the plaintiff has acquired title to this tract by adverse possession.

It is well settled in Ohio that an abutting property owner can acquire no right in a public highway by encroachment or occupation however long continued, where such encroachment or occupation is of a temporary character, such as fences, walls, shrubbery, etc., and is upon that part of the street not then required for public use. Lane v. Kennedy, 13 O. S., 42; McClellan v. Miller, 28 O. S., 488; Ry. v. Commissioner, 31 O. S., 338; Ry. v. Commissioner, 35 O. S., 1; Ry. v. Elyria, 69 O. S., 414.

The doctrine that adverse possession of a public highway can be established alone by fencing it in is not sustained by the late Ohio decisions. The tendency of the Supreme Court decisions seems to be to place the right of the private person to claim land belonging originally to the public for street purposes upon the ground of equitable estoppel rather than that of the statute of limitations and to refuse to recognize any claim of right by adverse possession unless accompanied with the erection of valuable improvements upon the land. Elster v. Springfield, 49 O. S., at 98.

The subject has been quite thoroughly examined and the decisions of this state considered in Heddleston, Supervisor, v. Hendricks, 52 O. S., 460, the third syllabus of which is as follows :

“The right of an adjacent landowner to inclose by a fence, however constructed, a portion of a public highway, can not be acquired by adverse possession, however long continued.”

And Minshall, J., in the opinion of the court, at page 465, used the following language:

“The general rule is that the statute of limitations does not apply as a bar to the rights of the public unless expressly named in the statute; for the reason that the same active vigilance can not be expected of it, as is known to characterize that of a private person, always jealous of his rights and prompt to repel any invasion of them,”

following this with a discussion of Ohio eases, and then saying:

“More recent cases place the right of the public as against encroachments on its highways, however long continued, on the ground that they are public nuisances, in favor of which the statute of limitations does not run.”

And refers to Section 6921, Revised Statutes, now found in Section 13421, General Code, which imposes a penalty on whoever obstructs or incumbers by fences, buildings, etc., a public street or alley in a municipal corporation.

A good discussion of the law in regard to adverse possession of a public highway by fencing, is found in the decision of the superior court, general term, in the case of Winslow v. Cincinnati, 6 N. P., 47.

There is some conflict in the decisions of the circuit court in regard to this question of adverse possession of a street, but this conflict is not serious when the facts of each case are considered, and it is not necessary nor have we space to discuss all of the cases or attempt to point out wherein they differ or how they may be reconciled.

Plaintiff relies upon the ease of Mott v. Toledo, 17 C. C., 472, where the facts justified the decision. The owners of the land dedicated a certain street by plat dated February 20, 1866, duly accepted by council March 21, 1866, but on October 25, 1866, conveyed by metes and bounds a portion of the land covered by such plat, including part of the dedicated street, and under that deed possession was taken and the land enclosed, and the property was used by the grantee and assigns for more than twenty-one years before the city made any effort to improve or take possession of the street. The court, in its opinion, on page 483, said:

■ “We do not intend to decide now that the owner of land who dedicates it for street purposes may himself set up a title against the public, claiming to hold by adverse possession, unless he shall hold by such possession of the property after the dedication, as to have made it notice to the public and to the city that he intended to hold that property against the city and to ignore and set aside his deed of dedication.”

Another case relied upon by plaintiff is that of Seese v. Village of Maumee, 7 C.C.(N.S.), 497, where the effect of Section 4977, Revised Statutes, as amended in 1889, now Section 11220, General Code, was discussed. The facts there made out a case showing adverse possession within the terms of that section, and the case was jfroperly decided. In its opinion, the.court, discussing numerous cases, saw fit to question the decision found in Morehouse v. Burgot, 22 C. C., 174, and Wright v. Oberlin, 3 C.c. (N.S.), 242. We think this was unnecessary, and on the contrary approve the doctrine as laid down in the cases last named.

In the ease at bar we think the evidence has failed to make out a case of adverse possession under the terms of Section 11220, General Code. It appears that the property covered by this subdivision of which the street was a part was rough and hilly, that there was an old fence upon the north line called Orr’s fence, between the lands of Oliver and Orr, and also a fence upon the east line between the lands of Fenton and Oliver, part of the property being now owned by the defendant, Jennie Wahl. These fences were in existence at the time of the subdivision and have not been changed except by decay and renewal. The evidence fails to show that there ever was a complete enclosure, of the tract owned by plaintiff, and also shows that there was a certain amount of passing along the lines of Fairmount avenue, and Massasoit avenue, formerly called Orr’s lane, by pedestrians ■ traveling from Fairmount into Lick Run. It shows that the property was practically not in use, except for pasturage purposes during certain parts of the year, until about fourteen years ago when plaintiff built her dwelling-house upon her lots, and the only dominion she has undertaken to exercise over this particular tract since that time has been by grading and grassing same and the planting of one or two trees upon it. The street was of a character that could not be traveled conveniently by vehicles without grading and improvement. There was no necessity on the part of the city to tear down fences in advance of proceedings for such improvement, as the only travel that could be had upon it was that of pedestrians who could and did use the streets regardless of the fences.

The evidence also shows that the 20-foot street or alley known as Hill street, along the east side of the Oliver subdivision, was vacated by the council of the city of Cincinnati, at the instance of plaintiff, and that in January, 1913, she presented to council a petition and ordinance asking for the vacation of the tract in question under the description of an “unnamed 25-foot alleyway between High street and Massasoit avenue, along the south line of Section 31, Millereek township,” which vacation was not granted — thus showing a recognition at that time of the existence of the streets and ways shown in the Oliver subdivision.

To bar “rights under the statute of limitations the possession must be actual, open, notorious, continuous, exclusive and adverse, shown by overt acts of unequivocal character which clearly indicate an assertion of ownership to the premises to the exclusion of the rights of the real owner.” Gill v. Fletcher, 74 O. S., 295 (3 Syl.).

“Adverse possession to give title must have been open, notorious, continuous and adverse for twenty-one years, and where it appears that land, part of a dedicated and accepted public street, while yet unopened and unimproved, was fenced in by an adjoining owner for twenty-one years, such fact is only one element of evidence necessary to establish his right to possession, and would not be conclusive to establish such right. The question remains under what circumstances and claim the fence was built and maintained.” Reynolds v. Newton, 14 C. C., 433, 434; 1 Am. & Eng. Enc. (2d Ed.), 759.

The plaintiff has not shown adverse possession to bring herself within the terms of Section 11220 of the General Code; even conceding all that she claims from the evidence, certainly not for a period longer than fourteen years. To entitle the plaintiff to an injunction the burden is upon her to show clearly that she is the owner of the land claimed. In this we think she had failed. In our opinion the evidence shows that the city is entitled to improve this street directly or by means of a permit granted to any interested property owner, as it may see fit.

The petition of plaintiff will therefore be dismissed and a decree will be entered enjoining her from interfering with the city in the possession of this land.

Jones (E. EL), J., concurs; Swing, J., dissents.

Swing, J.,

dissenting.

I can not agree with the decision of a majority of the court. I have no contention about the law as announced in the decision, but the facts of the case, in my judgment, do not fit the law as laid down. This is not an encroachment on a part of the street, but for more than fifty years the public has been excluded from any portion of the street and the plaintiff and her predecessors in title have for more than fifty years enjoyed the adverse, continuous and exclusive possession of the street, and under such conditions the plaintiff has acquired a good title as against the public and everybody else.


text:
    RIGHTS UNDER. A PRIVILEGE OF DRILLING FOR. OIL.
    Circuit Court of Wood County.
    Albert J. Steele v. Ohio Oil Company.
    Decided, May 3, 1912.

      Allegations of Reprehensible Conduct — Not Q-round for Affirmative Relief, When — Right to Drill for Oil — Not Affected by Alleged Membership in an Oil Trust.

    A.n allegation that the defendant is a member of an unlawful conspiracy in restraint of trade, designed to create and perpetuate a monopoly in the business of producing, transporting and manufacturing petroleum and its products, is not ground for quieting the title of plaintiff in certain land on which the defendant claims the right to drill for oil.

      Geo. U. Phelps and Silas E. Hurin, for plaintiff in error.

      J. W. SchaufeVberger and F. P. Piegel, contra.
    Richards, J.; Wildman, J., and Kinkade, J., concur.
    Error to the Court of Common Pleas of Wood County.
   In the court of common pleas, Albert J. Steele sued for the purpose of restraining the defendant from drilling oil wells upon a forty-acre tract of land owned by him in this county, and asked to have his title quieted against any claim made by the defendant. Subsequently he filed a second amended petition in which he set up additional grounds for an injunction. The additional grounds alleged were, in a general way, that the defendant is a member of and acting in furtherance of an unlawful and fraudulent conspiracy in restraint of trade designed to create and perpetuate a monopoly in the business of producing, transporting and manufacturing petroleum and its products in violation of the statutes of Ohio. The pleading contained other analogous allegations in further statement of the details of such claim of unlawful trust and conspiracy, but the pleading does not contain any averment that such alleged combination and conspiracy had anything to do with the oil lease referred to in plaintiff’s pleadings or that said lease was entered into in furtherance of the claimed conspiracy.

Thereafter, upon motion, all of these allegations contained in this pleading which relate to the claim of unlawful and fraudulent conspiracy were stricken from the pleading by order of the court of common pleas. At a later date, to-wit, on September 26th, 1911, the journal entry recites that the parties came with their attorneys and by consent in open court the plaintiff is permitted to withdraw all pleadings filed by him in the case subsequent to the original petition. The issues were then made up and the case tried upon the original petition and answer thereto, which averred a right to operate the lands for oil by reason of certain facts set forth in the answer, and a reply filed by the plaintiff which denied the right claimed by the defendant company by reason of the claim that such right was barred by the statute of limitations.

Upon the trial in the court of common pleas the issues were found for the defendant, the Ohio Oil Company. The plaintiff thereupon filed a petition in error in this court, in which he assigns as his only ground of error- that the court erred in sustaining the motion of the defendant to strike from the second amended petition the matter constituting the plaintiff’s principal ground of action. No bill of exceptions was taken and the plaintiff does not contend any error was committed by the court except in the one particular mentioned.

The state of the record is such in this case, that we are unable to see that the error upon which reliance is placed, arises. The plaintiff by leave of court voluntarily withdrew his pleading, which had, as he claims, been emasculated by order of the court, and the only issue submitted to the trial court, and upon which this judgment was based, was the issue made by the pleadings remaining in the case, viz., the original petition, the amended answer thereto, and the reply. None of these pleadings contained any of the averments which it is contended were erroneously ordered to be stricken out.

Under such circumstances error can not be predicated upon the- action of the court in striking from the second amended petition the allegations to which reference has been made. If any error was committed in that respect, it was waived by a voluntary withdrawal of the pleading upon leave of the court. We have, however, examined the question sought to be made because of its importance and of the attempt to present it upon the record. If the question were fairly before us we would be constrained to hold that the court of common pleas committed no error in ordering the matter, which avers that the Ohio Oil Company was a party to an unlawful conspiracy in restraint of trade, stricken from the second amended petition.

The question was before .this court two or three years ago in Sandusky county in the case of Herbrand Company v. Bellefontaine Bridge & Iron Company, an unreported case. In that case the court of common pleas had held that the fact, if it was a fact, ihat the Bellefontaine Bridge & Iron Co. was a member of an unlawful trust and combination called ‘ ‘ the bridge trust, ’ ’ did not prevent its recovering upon a contract for furnishing the Herbrand Co. certain building material for a structure being erected by the latter company in the city of Fremont. We see ho reason to differ with the holding thus made. If. a plaintiff were a member of a gang of highwaymen, such plaintiff would not thereby be deprived from recovering in a court of law upon a contract having no relation to his criminal membership in such organization. In analogy to this principle we cite Kinner v. L. S. & M. S. Ry. Co., 69 O. S.; 339, in which the familiar rule is announced that the plaintiff when he comes into a court of equity must come with clean hands, requires only that the plaintiff must not be guilty of reprehensible conduct with respect to the subject-matter of his suit. This principle is one of universal application and has been followed in Holland Stock Remedy Co. v. Independent Chemical Co., 17 Ohio Dec., 207, and in many other eases.

It is insisted in argument that the plaintiff is not entitled to prosecute error for the reason that no exception was lodged to the-final judgment of the trial court, but no exception need be taken to a final judgment. See Commercial Bank v. Buckingham, 12 O.

.Finding no. prejudicial error .the. judgment-of the court of common pleas will-bé'affirihedi':


text:
    AS TO OWNERSHIP OF PROCEEDS OF A POLICY OF LIFE INSURANCE.
    Court of Appeals for Hamilton County.
    Henry Schlachter, Administrator, etc., of Mary Teepen, Deceased, v. Al. H. Teepen.

    Decided, June, 1915.

      Wilis. — Determination as to Ownership of the Proceeds of a Policy of Life Insurance of Husband — Bequeathed by Wife to Husband.

    A bequest by a wife of all her property both real and personal to her husband, includes a policy of insurance on the life of her husband (who was still living), made payable to her, her executors, administrators and assigns.

      Clore & Clayton, for plaintiff in error.

      Charles M. Leslie, contra.
    Jones (Oliver B.), J.; Jones (E. IT.), J., and Gorman, J., concur.

       Affirming, Teepen v. Schlachter, 18 N,P.(N.S.), —

   The insurance policy, the proceeds of which is in controversy here, was written on the life of Herman Teepen, and made payable to Mhry Teepen, his wife, “her executors, administrators or assigns.” Mary Teepen died in 1898, leaving a last will in which the material clause was as follows:

‘ ‘ Second: Subject to the payment of my debts, should there be any, I give, devise and bequeath all my property, both real and personal of which I may die seized, to my husband, Herman Teepen, to hun and his heirs forever. ’ ’

Herman Teepen was appointed executor, and duly elected to take under this will. He settled the estate and filed his final account. Nothing was done by him in this administration or account in regard to this insurance policy. After the death of Herman Teepen in 1911, the plaintiff in error was appointed administrator de bonis non with the will annexed of Mary Tee-pen, and collected and now holds the proceeds of such insurance. Defendant in error was appointed administrator of Herman Teepen and filed a claim on behalf of his estate with said administrator de bonis non of Mary Teepen by virtue of the clause in her will above quoted, and demanded payment to him of the proceeds of said insurance, which being refused this action was brought in the court below.

A demurrer to the petition was overruled. An answer was then filed which alleged that Herman Teepen procured said insurance with the intention of himself and of his wife to make provision for his wife and children, and to make its proceeds her separate estate if she survived him, and if not, such proceeds would go to and become the property of their children to be exclusively for their benefit; that such insurance was taken out in contemplation of Section 9398, General Code, for the purpose of creating a fund and separate estate for said wife and children independent of said Herman Teepen and his creditors, and that it was not the intention of Mary Teepen by her will to invest any estate or interest in the proceeds of said insurance in her husband because it could not be collected until after her death. A demurrer to this answer was sustained.

The question to be determined is whether Mary Teepen had such a vested interest in the insurance policy that it would pass under the terms of her will to her husband, or -whether by virtue of Section 9398, General Code, it was limited to her children.

There is no question but that the words of Mary Teepen’s will are sufficiently broad to include every interest in property vested in her at the time of her decease. As the beneficiary named in the policy she obtained a vested interest in it the moment it was issued, and it continued to be her property up to the time of her decease. Bliss on Life Insurance (2d Ed.), Section 318; Manhattan Life Ins. Co. v. Smith, 44 O. S., 156, 163; U. S. Life Ins. Co. v. Buxon, 62 O. S., 385, 390; Washington Central Bk. v. Home, 128 U. S., 195; Marsh v. Legion of Honor, 149 Mass., 512, 515.

After her death, as it was written to her and “ her executors, administrators or assigns,” her executor became the owner for the purpose of administration under the terms of her will. The fact that it had not then matured and that under the will it passed to her husband who was himself the insured, can make no difference. It would become his property for the benefit of his estate. Nor was it necessary for him as executor of her estate to make a formal assignment of the policy to himself in the settlement of her estate, although that might have propertly been done.

It is true that under the terms of Sections 9398 and 9399, General Code, this policy might have been made payable to and written for the benefit of the wife and children, instead of, as it was, to her and her executors, administrators or assigns. In that event, it would have gone to the children after her death. Or, she might have bequeathed it by her will to her children instead of to her husband. Either plan would have accomplished the intention .for which plaintiff in error contends. But the policy was not solely to her, but to her ‘ ‘ and her executors, ’ ’ etc., and giving the broadest construction possible to the sections of the statute relied upon, they would not prevent her disposition of it by her will.

The history of the legislation now embodied in these sections shows that it was enacted before the married woman’s enabling act, for the purpose of permitting insurance for the separate estate of a married woman for her benefit and that of her children, free from the debts of her husband.

It is not necessary to say more as the questions involved have been fully considered in the opinion of the court below.

The judgment is affirmed.


author: Spence, J.

text:
    INTEREST OF TRIAL JUDGE IN THE DECREE ENTERED.
    Court of Appeals for Ashland County.
    The Ashland Bank & Savings Company and Jacob Friedline v. Joseph W. Houseman.
    Decided, 1915.

      Disqualification of Judge — Not Brought About by His Interest in the Judgment to be Entered, When — Judgment and Decree of Foreclosure where Entered by Default — Not Open to Collateral Attack by Interest of the Judge in the Issue — Causes for which a Judge may be Disqualified.

    1. A default judgment taken on promissory notes and for the foreclosure of the mortgage securing the same, entered by a judge who is interested in the cause or matter pending as stockholder in plaintiff company, if the proceedings are all regular, is not void and can not be collaterally attacked.
    2. The causes provided in the statute are the only ones disqualifying a judge in the trial of a cause or matter pending in his court. The clause “or is otherwise disqualified to sit in such cause or matter” brings into the statute all the common law causes for which a judge may be disqualified, in addition to those enumerated in the statute, and the statutory remedy of filing an affidavit of prejudice applies to all of them.
    Error to the Court of Common Pleas of Ashland County.

      MyUrantz & Patterson and Semple Sherick, for plaintiff in error.

      McBride & Wolfe and C. P. Winbigler, contra.
   Spence, J.

The defendant in error, Joseph W. Houseman, began this action in the Court of Common Pleas of Ashland County against the plaintiffs in error, the Ashland Bank & Savings Company and Jacob Friedline, and for his cause of action averring that on July 25, 1914, the Ashland Bank & Savings Company took a judgment against him on a cognovit note for the amount of one thousand dollars and interest, and caused the sheriff to levy upon and sell certain personal property for the payment of said judgment; that on the 25th day of July, 1914, the Ashland Bank & Savings Company began an action against him in the Court of Common Pleas of Ashland County, Ohio, asking for a judgment on certain notes and a decree of foreclosure of the mortgage securing the same; that on the 25th day of August, 1914, a judgment for $2,227.87 was rendered on said notes against the plaintiff and a decree of foreclosure was given on said mortgage. Then the petition recites the sale of the mortgaged property.

Plaintiff further avers that on the 25th day of July, 1914, the Ashland Bank & Savings Company filed its petition in the Court of Common Pleas of Ashland County, Ohio, against this plaintiff asking for judgment on certain notes and a decree of foreclosure of the mortgage securing the same; that on the 25th day of August, 1914, a judgment for $5,500 was rendered on said notes in favor of the Ashland Bank & Savings Company and against the plaintiff and a decree of foreclosure was given of the mortgage securing said notes, and the petition recites the sale of the mortgaged property.

Then follows this averment:

“Plaintiff further says that each and all of said judgments, orders and decrees were taken before one William T. Devor who was the common pleas judge holding court in Ashland county, Ohio, at each of the several times at which said decrees were rendered and given, and that the said William T. Devor, judge as aforesaid at the time of rendering each and all of said judgments decrees and orders, was wholly and completely disqualified to render said judgments for the reason that said Devor was at and prior to and ever since has been a stockholder of the Ash-land Bank & Savings Company and was financially interested in the result of said judgment and as such judge willfully and without any authority to do so and being wholly disqualified by law, rendered said judgments in each and every instance as aforesaid.” •

Plaintiff prays that each and all of said judgments may be vacated, set aside and held for naught, and that the property sold be restored to him; that an accounting may be made to him for the use of'the property and he asks damages in the sum of $12,000,

The Ashland Bank & Savings Company by answer admits bringing the actions as alleged in the petition and the taking of the various judgments, orders and decrees of foreclosure of mortgages as alleged in the petition and the sale of the mortgaged property, and that William T. Devor was the owner of ten shares of stock of the value of one hundred dollars each in the Ashland Bank & Savings Company at and before the time that each of said judgments, orders and decrees of foreclosure were entered, and by way of answer says first, the personal property sold for the payment of the judgment in the first action set up in the petition was sold by agreement between Joseph W. Houseman, the Ashland Bank & Trust Company and the sheriff who held the execution, and that the proceeds of the sale were applied to the payment of the judgment.

As a third and fourth defense the Ashland Bank & Savings Company sets up the judgment and orders of foreclosure in the two actions' begun on July 25th, 1914, and says that the proceedings in these cases were all regular and legal and that they are a bar to the plaintiff’s claim.

The answer further avers that personal service of a summons in each of said cases was made on Joseph W. Houseman, and that he failed to file answers or demurrers within the time provided by law and each of said judgments was entered by default. -The petition avers that Jacob Friedline claims some interest in the property located in Ashland. The court sustained a demurrer to the third and fourth defenses and the plaintiff filed a reply to the second defense.

This case was tried on the petition and the second defense of the answer and the reply to a judge of the Court pf Common Pleas of Ashland County, Ohio, who found in favor of the defendant on the first action set forth in the petition, and in favor of this plaintiff on the second and third actions set forth in the petition and directed that the judgments, orders and decrees set forth in said actions be and .the same are set aside, vacated and held for naught for the reason that at the time of the rendition of the same by one AYilliam T. Devor, then judge of the Court of Common Pleas of Ashland County, Ohio, the said William T. Devor was a stockholder in the said the Ashland Bank & Savings Company.

Counsel for all parties to this action agree that the only question here presented for the consideration and determination of this court is whether the .judgments, orders and decrees in said actions set forth in the petition are void because William T. Devor, a judge of the Court of Common Pleas in and for Ashland County, Ohio, was a stockholder in the Ashland Bank & Savings Company at the time he entered said default judgments, orders and decrees.

The question is made in this case by the court sustaining demurrers to the third and fourth grounds of the answer and upon the trial and judgment or finding of the court. While the question is here presented in different forms, first upon the court sustaining the demurrer and second upon the trial and judgment or finding of the court, it all goes to the one question: were the judgments, orders and decrees of the court void because of the interest of Judge Devor in the Ashland Bank & Savings Company?

Counsel for plaintiffs in error contend that this action is a collateral attack upon the judgments set forth in the petition, that at most they could only be voidable, and if only voidable they can not be collaterally attacked, which is clearly the law. Counsel for defendant’ in error contend that the judgments are absolutely void and can be collaterally attacked, which contention is true if the judgments are void and not merely voidable.

Counsel for Houseman earnestly contend that the question of the right of an interested judge to enter judgment in a cause in which he is interested, has been detennined by the Supreme Court in the case of Gregory v. Cleveland, Columbus & Cincinnati Railway Company, 4 Ohio St., 675. In that case two of the judges of the court of common pleas were stockholders in a railroad company which was seeking to appropriate propex’ty for a right-of-way. These interested judges appointed appraisers to fix axxd detexmixxe the value of the laxxd to be appropriated and to fix axxd determine the benefits fx’oixx the road to the land owner; the court appoixxting the appraisers received their report to which report Gregory filed a motion to set it aside for several reasons, one of which was that two of the judges of the court of common pleas which appointed the appraisers or commissioners were stockholders in the railroad company. The court refused to set it aside but certified it to another county for hearing by a judge of that county, where the report was approved and confirmed by the common pleas court, from which finding Gregory prosecuted error to the district court, which court reversed the finding of the common pleas court, and from the decision of the, district court the railroad company prosecuted error to the Supreme Court, which court affirmed the judgment of the district court.

In his opinion in the Gregory case, Kennon, Judge, says:

‘‘ The statute confers on the court, and upon the court only, the power of selecting the men who shall decide the facts in the ease, who determine how much benefit the road will be to the landholder, and how much damages he will sustain by the appropriation. There are few subjects upon which men are more likely to differ in opinion, and few eases in which an interested judge, in the mere selection of the commissioners, could (if he chose to do so) more effectually injure the landholder and that, too, without redress, if his judgment could not be reversed without showing actual error in the proceedings. ’ ’

In his conclusion Judge Kennon says:

“We think, for the administration of-justice, the safe way is, in all cases, for interested judges to decline acting in such cases, and where it appears on the record that they were interested and acted on questions of fact, especially when they were to select the jury who try the facts, they should refuse to sit, and make known their interest at the earliest stage of the proceedings, that the case may, under the statute, be transferred to an adjoining county.”

It is not stated either in the syllabus or the opinion that the judgment is void, but it was simply reversed for error. It will be seen that the facts in the Gregory case are entirely different from the facts in the ease at bar, where Judge Devor only made a formal entry in a case where the facts were determined by statute and he had no discretion in the ease. Section 11281, General Code, provides:

“When the action is for the recovery of money only there must be endorsed on the writ the amount stated in the precipe, for which, with interest, judgment will be taken if the defendant fails to answer. If the defendant fails to appear, judgment shall not be rendered for a larger amount and costs.”

Section 11383, General Code, provides for entering a default judgment as follows:

" In an action upon an account, or written instrument for the payment of money only, or in foreclosure, judgment may be entered at any time during the term after the defendant is in default for answer, unless for good cause shown the court gives further time to answer.”

There is no contention that the proceedings in the cases set forth in the petition were not in every respect regular and legal and that the defendant was in default for answers at the time the judgments, orders and decrees were entered. The code gave the court authority to enter judgments, orders and decrees, and also fixed the amount for which the default judgments should be entered. All that the judge could do was to make the formal entry as directed by statute. The only discretion given to the court by the statute is on good cause shown to give further time to answer, which was not asked for in those cases. In Van Ingen v. Berger, 82 Ohio St., 255, Spear J., at page 260, commenting on now Section 11283 of the code, says:

‘ ‘ It would seem not to require argument to "show tha.t the statute and the rights of parties under it can not be abridged by a rule of court.”

In the Gregory ease Judge Kennon quoted the old English maxim “No one ought to be a judge in his own ease.”" And also refers to the ease of Pearson. v. Atwood, in 13 Mass., 324, and says:

“The plaintiff brought an action of trespass against the dedefendant, for arresting the plaintiff, on a warrant held by the defendant as constable, that by the laws of Massachusetts, a moity of the fine went to the town in which the justice resided and that therefore he was interested.”

The court did not find it necessary in the case to hold the act of the justice wholly void. This case is an authority against the contention of counsel for defendant in error that the judgments are wholly void.

In the case of Probasco v. Raine, Auditor, 50 Ohio St., 378, Burket, Judge, at page 392, says:

“A probate judge acts judicially in the appointment of guardians and administrators and receives a fee for each appointment, and yet such fee does not disqualify him from acting in the premises. A justice of the peace acts judicially and is paid therefor by fees collected from litigants before him, and while his mind ' may be biased in particular eases, it can not be claimed that he is thereby disqualified from discharging his judicial duties. A judge who is a large tax-payer in his county or city is not thereby disqualified from sitting in judgment in eases against the county and city.”

This conclusion is the reverse of that reached by the court in the Massachusetts ease above referred to.

In Cooley’s Constitutional Limitations, Fifth Ed., page 511, the author says:

“Mere formal acts necessary to enable the case to be brought before a proper tribunal for adjudication an interested judge may do.”

There are many cases holding that it is not error for an interested judge to make a formal entry in a-case. In County of Floyd v. Cheny, 57 Iowa, 160 (10 N. W., 324), syllabus:

" A decree of foreclosure entered on default and without mutual consent by a judge who was an attorney for one of the parties in the transaction, is not for that reason void. ’ ’

Rotlireck, J., at page 325 says:

“By Section 2685 of the revision of 1860 which was in force when the plaintiff’s foreclosure was had, a judge was disqualified from acting as such in any case where he had been an' attorney for either party in the action, unless by mutual consent of the parties. It does not appear that Collins, the party defendant, to the foreclosure, appeared in the action. If he did not but was in default, his default was an admission of the cause of ae-' tion and that something was due on the debt secured by the mortgage. Under these circumstances the amount of .the judgment is usually ascertained by the clerk, and the decree is entered as a matter of form. "We do not think that the decree was void, presuming as we may that it was entered by default. ’ ’

The amount for which judgment shall be entered in an action for money only in this state is fixed by the code and the judgment or decree is entered as a matter of form.

The correct conclusion in this ease will not be advanced by a consideration of the common law rules or by a review of the decisions in other states, as the matter is controlled in this state by statute and we must look to the statutes for its proper solution.

Section 1687, General Code, as amended May 8, 1913, was ih force when the original actions were begun, and provides as follows:

“When a judge of the common pleas court or of the superior court of Cincinnati is interested in a cause or matter pending before the court in a- county of his district, or is related to, or has a bias or prejudice, either for or against, a party to such matter or cause, or to his counsel, or is otherwise disqualified to sit in such cause or matter, on the filing of an affidavit of any party to such cause or matter, or of the counsel of any party, setting forth the fact of such interest, bias, prejudice or disqualification, the clerk of the court shall enter the fact of the filing of such affidavit on the trial docket in such case and forthwith notify the chief justice of the Supreme Court, who shall designate and assign some other judge to take his place. Thereupon the judge, so assigned shall proceed and try such matter or cause.”

The statute after stating a number of eases for which a judge may be disqualified, contains this clause:

“ Or is otherwise disqualified to sit in such cause or matter. ’ ’

This clause necessarily brings into the statute all the common law causes for which a judge may be disqualified, in addition to those enumerated in the statute and applies the statutory remedy to all of them; that is, by filing an affidavit containing one or more of the causes for disqualification of a judge, under the statute it is not the existence of any of these causes, but the filing of the affidavit which disqualifies the judge. If the relief provided by statute is not sufficiently broad to cover all cases that may arise, the remedy is with the Legislature and not with the courts.

In Patterson v. Police Court, 123 Cal., 453 (56 Pac., 105), the court say:

“The causes enumerated by Code Civil Proc., Sec. 170, as amended in 1897, are the only ones disqualifying a judge.”

In State v. Moore, 121 Mo., 514 (26 S. W., 345), it is said:

The only way by which a judge may be disqualified from sitting in the trial of a cause is by the reason of the existence of some one or more of the causes mentioned by Section 4174, ReUsed Statutes 1889, and by a compliance with the provisions.”

In Probasco v. Raine, Auditor, 50 Ohio St., 378, Burket, Judge, at page 392 says:

“Almost every officer in this state is more or less directly or indirectly interested in the result of the duties by him performed, whether ministerial or judicial, but such interest does not disqualify him from performing his official duties, unless the Legislature has by statute so provided.”

It is argued by counsel for defendant in error that Houseman did not know of the existence of the cause at the time the judgments and decrees were entered. We have failed to find any such an allegation in the petition, or any such evidence in the record, as he was not called as a witness. Judge Devor was one of the regular judges in that judicial district, holding court in Ashland county, and from anything that appears in the record Houseman knew at and before the judgments and decrees were entered that Judge Devor was a stockholder in the Ashland Bank & Savings Company.

It is our conclusion that all the judgments, orders and decrees in the eases set forth in the petition are not void, and can not be collaterally attacked, as in this proceeding; that the remedy provided by statute in case of a judge, who is interested in a cause or matter pending before the court in one of the counties of his district, is exclusive and must be followed or it is waived by the parties.

The judgment of the court of common pleas will be reversed and final judgment rendered for plaintiff in error.

Shields, J., and Powell, J., concur.


author: By the Court

text:
    LIBEL OF A JUDGE TOUCHING PROCEEDINGS WHICH HAVE BEEN TERMINATED.
    Court of Appeals for Hamilton County.
    John M. Dugan v. State of Ohio et al.
    Decided, November 22, 1915.

      Contempt — Punishment for, Can Not be Based on Defamatory Comments Regarding the Court, When Libel Does Not Constitute Contempt.

    A libelous attack upon a judge can not be made the basis of a charge of contempt, unless it has a tendency to impede or hinder the court in the administration of justice by having reference to the action or conduct of the judge in a pending case or proceeding.

      Charles L. Swain and Pogue, Uoffheimer & Pogue, for plaintiff in error.

      Hosea icé Knight, contra.
   By the Court

(Edward H. Jones, Frank M. Gorman and Oliver B. Jones, JJ.).

This is a proceeding in error to the judgment of the Superior Court of Cincinnati imposing a sentence of fine and imprisonment upon the plaintiff in error, John M. Dugan, under a charge of contempt.

The facts briefly stated are as follows:

On October 32, 1914, the Juvenile Protective Association, by •its president, Frank IT. Nelson, brought an action for injunction and damages in the Superior Court of Cincinnati against Millard F. Roebling, who at that time was a candidate for the office of judge of the court of domestic relations. The Juvenile Protective Association, whose object is indicated by its name and whose purposes were closely allied with the duties and functions of the court of domestic relations, had endorsed for judge of that court the opponent of Mr. Roebling, and had issued a circular for public distribution which while not mentioning the name of the candidate so endorsed by said association, called upon the electors to carefully consider the qualifications and fitness of the respective candidates and cast their ballots for the man best qualified for the position. A very short time after the appearance of said circular or pamphlet, another pamphlet was circulated purporting to be issued by the Juvenile Protective Association, the greater part of which adopted the language of the original circular. This latter circular concluded with the endorsement of Millard F. Roebling for the position of judge of the court of domestic relations.

The petition of the Juvenile Protective Association in the ease against Roebling above referred to set forth the above facts and charged that said circular representing the Juvenile Protective Association as endorsing Mr. Roebling for judge was a misrepresentation and a fraud wholly unauthorized by said association and intended to place said association in a false and unenviable attitude, etc. That case was partially heard before one of the judges of the superior court on the day before the election, when it was shown that the spurious or bogus circular was printed at the printing establishment conducted by Mr. Henry S. Rosenthal. And it therefore became important in the conduct of the case and in order to render a correct judgment therein to ascertain who authorized the printing and distribution of said bogus circular. To this end during the progress of the case Mr. Henry Rosenthal was called as a witness.

It is only necessary, in order to understand the nature of the case under consideration, to further state that on account of alleged evasive and false answers given by Mr. Rosenthal at said time, and after a lengthy and fruitless examination, the judge presiding found that the witness Rosenthal was concealing the truth and in effect refusing to testify; that his conduct in the presence of the court was an obstruction to the administration of justice and, under the authority of Section 12136, General Code,' adjudged the witness Rosenthal guilty of contempt of court.

This took place on the 6th day of November, 1914. On the same day Rosenthal instituted a suit in habeas corpus in the Court of Common Pleas of Hamilton County, which was heard and finally determined on the 25th day of November, 1914.

We deem it necessary to give this short history of the Rosenthal matter in order that the charge against Dugan and the ground of this decision may be fully understood, and we now come to the part that Dugan took in the matter which led to the formal charges of contempt filed against him by a committee of the bar appointed for that purpose.

It appears that late in December, Dugan as correspondent for a periodical known as the Typographical Journal, which is said to be the official paper of the International Typographical Union of North America, wrote an article to that journal which was printed in its January, 1915, number. This article or contribution of Dugan occupied several columns of the journal and consisted of items of news supposed to be of interest to printers. In one of these items Mr. Dugan entered into a lengthy and somewhat animated defense of Mr. Rosenthal, with reference particularly to the trouble which arose in the Printers’ Union No. 3 over the taking away from Rosenthal and his establishment of the union label for the alleged offense of printing the spurious circular above referred to and the use of the label thereon without the number of said label.

It will be borne in mind that at the time of the writing of the article, and a long time before its publication, the contempt proceedings against Rosenthal had ended, and that the habeas corpus proceedings growing out of the adjudication of that case had terminated. It was language used by Dugan at this time which was made the basis of the charge of contempt against him. On page 68 of the Typographical Journal Dugan wrote:

“During the discussion of the case at the last meeting of No. 3 it was plainly shown that a member of No. 3, an officer of the allied council, had visited the homes of members working in the Rosenthal office trying to secure evidence from these members to assist in convicting the president of the Rosenthal plant in an action that was then on in Hamilton county courts. When the proprietor of this shop was on trial this member of No. 3 and an officer of the allied council sat on the bench with the judge prompting him and coaching him as to how to proceed against Mr. Rosenthal.”

To the charges of contempt Mr. Dugan filed an answer containing three separate defenses:

The first defense was in effect a denial that said article or any part or portion thereof insulted, villified. or intimidated the judge, or had a tendency so to do; he denies that'it inflamed or had a tendency to inflame the prejudices of the people, etc.

The second defense was briefly stated in the answer and we quote it in full:

“This defendant adopts and makes part hereof all and singular the allegations stated in the first defense, and says that the proceedings referred to in said publication were, at the time the same was written and published in said journal, wholly concluded and terminated, and that neither said article, nor anything therein contained obstructed or tended to obstruct in any manner the administration of justice in the proceeding in which Ilenry Rosenthal was tried for contempt. ’ ’

And in the third defense Dugan states that his only object in writing and publishing said article was to inform the printing craft of the trial of Henry Rosenthal and the charges made against him and the subsequent removing and taking away the union label from the firm of Rosenthal & Company. He further states that in writing and publishing said article he did the same in good faith without any intention, purpose, thought, design or desire to embarrass or obstruct the process of the court in the proceedings against Henry Rosenthal or in the suit of the Juvenile Protective Association v. Roebling, and now disclaims airy intention or thought of disrespect or imputing corrupt or improper motives to said judge or court or any of its officers, or questioning its integrity or interrupting, embarrassing or in any manner obstructing the administration of justice therein.

■ A review of the evidence adduced in the court below shows that the defendant utterly failed to prove his first and third defenses. It was shown by the evidence in the case that the portion of the article quoted above, in whcih it is stated that someone sat by the judge during the trial and coached him, was absolutely unfounded, and that there was no justification whatever for the publication in anything that Mr. Dugan had seen or heard. He was not present in court while Rosenthal was on the witness stand or when he was adjudged in contempt, or at any other time during the progress of the ease. The only foundation which he claimed for the article was that at a meeting of' No. 3 he had heard someone say that a Mr. Bell had prompted the judge during the Rosenthal hearing. He could not say who it was who made the statement in his hearing and did not show that he had made any effort to ascertain the identity of the person making the statement before writing the false and scurrilous attack upon the judge.

It seems a travesty, almost, upon judicial procedure for him to use this language in his first defense:

“He denies that it degraded or had a tendency to degrade said court in the estimation of the community; he denies that it inflamed or had a tendency to inflame the prejudices of the people against said court. ’ ’

The trath or falsity of this must be determined by the court from the language used. We do not see how reasonable minds could differ as to the obvious purpose and effect of this language. That it was false, no one now denies. We believe that it was not only false, but was deliberately and wilfully false, without any excuse or justification whatever. The attack was libelous; it was vile and venomous.

The third defense is equally unsupported by the evidence. It does not show that. M|r. Dugan -made this statement about the judge in good faith “without any intention or thought or disrespect or imputing corrupt or improper motives to said judge ■or court or any of its officers, of questioning its integrity or interrupting, embarrassing or in any manner obstructing the administration of justice therein.”

But we think the second defense of the answer is a good defense, and tliat it is supported by the evidence in the case, which shows that at the time the article was written and at the time it was published the proceedings for contempt against Mr. Rosenthal — which was obviously the case referred to by Mr. Dugan in his article — was fully terminated.

It seems to be the well settled law in most, if not all, of the states'of this Union that however libelous a written attack upon a judge nmy be, it can not be successfully made the basis of a contempt charge unless it is with reference to the conduct of the judge in a pending case or proceeding and thus has a tendency to impede or hinder the court in the administration of justice.

Without further comment we will cite a few authorities in support of this well recognized rule of law:

In 6 R. C. L., p. 512, the general principle is thus stated:

“Under our laws defamatory comments on the past conduct of the judge or relating to his fairness or honesty, may be libelous, but do not constitute contempt, even though they may well embarrass the court to some extent in pending litigation.”

In Post v. State, 14 C. C., 112, the last paragraph of the syllabus reads as follows:

“Newspaper comments, however libelous, having relation to proceedings which are past and ended, are - not in contempt of court, or of the authority of the court to which reference is made. ’ ’

On page 121', in the opinion of this case, the court referring to the opinion of the Supreme Court of Ohio in the case of Myers v. Ohio, 46 O. S., 473, say:

“It is apparent to us that this language of the court was intended to, and the court does hold that the libels upon the court which do not relate to cases pending, are not a contempt, and concur with the adjudications in those states which so hold.”

In Rosewater v. State, 47 Neb., 630, the court says:

“To constitute any publication contemptuous it must reflect upon the conduct of the court in reference to a cause or proceeding then pending in court and undetermined and be of a character tending to influence its decision or obstruct, interrupt or embarrass the due administration of justice.”

Clark, J., in the concurring opinion in the ease of State v. Cox and Burba, 11 N.P.(N.S.), 265, tersely expresses the same principle thus:

“The authority, this extraordinary power residing in the court being founded on necessity, it must find its limit when the necessity ceases, and this necessity as has been set forth extends only to the preservation of its freedom of action in the business it has in hand.”

A¥e again quote from the opinion by Hale, J., in the case of Post v. State of Ohio, supra, from the concluding paragraph on page 123:

“The tendency of the article was not to embarrass the court in the disposition of the case then pending before the court. «= * * In both the general discussion and in the specific instance referred to, the reference was to a past transaction, to matters done and ended. It will not be claimed that the publication of this article had, or could have had, the slightest influence on the judge named therein, in the disposition of a case then pending, or in any way embarrass him in the disposition of any case thereafter to be tried. It did not, therefore, within the meaning of the statute, in the judgment of this court, obstruct the administration of justice. It was an unjust criticism of a faithful and upright judge, but not a contempt of court.”

Every word of this quotation is peciliarly applicable to this case. The false and unjust criticism by Mr. Dugan had no reference, as we view the evidence, to any case pending before the judge who was the object of Dugan’s mean attack. Although libelous in the extreme, it was not contempt.

The judgment will therefore be reversed.