text:
    RECOVERY FOR DEATH OF A CHILD IN AN ELEVATOR.
    Circuit Court of Cuyahoga County.
    Alexander Campbell v. Buela Tarr, Administratrix of the Estate of James Winiford Tarr.
    Decided, March 20, 1911.

      Wrongful Death—Infant—Negligence of Beneficiary—Amount of Judgment.

    In an action for the wrongful death of a child five years old, a judgment for $1,800 will not be set aside, though there is some evidence that the mother, one of the beneficiaries, was negligent, and that the father had deserted the mother and child.
    Marvin, J.; Winch, J., and Henry, J., concur,
   The relation of the parties here is the reverse of that which they sustained to one another in the court of common pleas, but they will be spoken of here as they stood in the court below.

Plaintiff recovered judgment, under the statute authorizing such actions, for wrongfully causing the death of plaintiff’s decedent.

On the 25th of January, 1908, decedent, who was then live years old, was killed in an elevator operated in a large building owned by the defendant.

This building was several stories high and was occupied in 1 lie stories above the ground floor, by a considerable number of tenants, for living rooms. Plaintiff, who was the mother of the deceased, lived in one of the upper suites, together with plaintiff’s mother.

The elevator was in common use by the tenants of the upper -floors, for going up and down.

Without question, the evidence shows that the defendant allowed this elevator to be and remain for a long time so out of repair as to render it unsafe. The door could be so far opened by any one as to permit entry to the elevator.

The decedent, while at play in the lower hall of the building, got into this elevator, which he could not have, done but for the negligent manner in which it was maintained by the defendant, of which negligence the defendant was surely chargeable with knowledge. The elevator was moved upward and the child crushed.

Owing to the age of the child no want of care on his part could affect the question of recovery in the action.

Since, however, this action can be maintained only for the benefit of the next of kin of the deceased, as provided in Section 9135, Revised Statutes (General Code, 10772, 10773), and since airy such next of kin whose negligence contributed to the death is not entitled to any compensation on account of such death, as held in Wolf, Adm’r, v. Railway Company, 55 Ohio St., 517, the question of the negligence of this plaintiff, mother of deceased, becomes a subject of inquiry.

The mother was employed in a store on the east side, of the river. The defendant’s building in which she, her mother and her child lived, is on the west side of the river, a considerable distance from her place of employment. On the day of the accident she came to her home for her noon meal. Having eaten, she went down to the ground floor, accompanied by her little son. bade him good-bye at the door, and left for her work.

Without going into details, we think the jury might well have reached the conclusion, as they probably did, that she exercised ordinary care for the protection of her child. We have said the jury probably found, and might well have found, that-the mother was not negligent. However, if they found otherwise as to her, it would not necessarily have barred a recovery, because the father of the child was living, and, under the statute, is one of those for whose benefit the action may be maintained. Under the facts, however, as disclosed in this case, the jury would not be likely to do much for the father. And as the verdict was for $2,500 it can not be doubted that the jury found, as to the charge of negligence against the mother, in her favor.

Section 6135, Revised Statutes (General Code, 10773), provides that the amount recovered shall be apportioned among the beneficiaries by the court by whom the administrator is appointed; so with such distribution this court has nothing tc do, nor has the court of common pleas anything to do with it. The amount returned by the jury was the gross sum of $2,500. This is in accordance with the statute, and with the holding of the court in Wolf, Adm’r, v. Railway Co., supra. In this case it is said in the opinion at page 536:

“As to the beneficiaries found guilty of contributory negligence, no damages should be awarded on their account, and the jury should find in its verdict, which, if any, of the beneficiaries were guilty of such contributory negligence.”

The verdict in the present case makes no finding that any beneficiary was chargeable with negligence, and therefore the presumption is they found, as hereinbefore suggested, that the mother was not negligent.

No negligence could be charged to the father in the case.

On motion for new trial, the court, as condition for not granting a new trial required a remittitur of $700 from the amount found by the jury. This remittitur was made and judgment entered for $1,800.

As we find no error on the record, the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    DISMISSAL OF A CASE ON APPEAL NOT A BAR TO A NEW ACTION.
    Circuit Court of Cuyahoga County.
    Joseph Artino v. Santo Laparo.
    Decided, March 24, 1911.

      Judgment of Dismissal on Appeal—No Bar to Another Action.

    Upon judgment in favor of plaintiff by a justice of the peace, defendant appealed the case to the common pleas court and there obtained a dismissal of the ease for failure of plaintiff to file a petition. Thereupon the plaintiff brought another action on the same • claim before a justice of the peace. Held: The judgment of dismissal of the former action was no bar to the maintenance of the latter action.

      Samuel Doerfler, for plaintiff in error.

      William H. Chapman, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The plaintiff below was Laparo. He brought suit against Artino, before a justice of the peace, and recovered judgment.

The defendant appealed the ease to the common pleas giving his bond therefor and filing transcript from the docket of the justice of the peace, with the clerk.

The plaintiff failed to file petition within the statutory period, and on motion of the defendant, the case ivas dismissed in the common pleas court.

Plaintiff sued again before a justice of peace, on the same claim. Defendant produced the record of the proceedings in the former ease, claiming the same as a bar.' The result was a judgment again in favor of the plaintiff. The defendant prosecuted error to the common pleas on this last judgment and, on hearing the judgment of the justice of the peace was affirmed.

The present proceeding is brought to reverse this judgment of affirmance and the judgment of the justice of the peace. The question therefore presented is whether the proceedings in the former ease constituted a bar to the latter suit on the original claim. On the part of the plaintiff in error it is urged that to permit that to be done which was done in this case, would enable a plaintiff to harrass a defendant beyond all reason, and therefore it should not be permitted.

This would be equally true if plaintiff, after bringing his suit before the justice of the peace had dismissed it before its being brought to trial, and yet, without question he could have done this, and again bring suit on the same claim.

As said in the brief of plaintiff in error, the giving of the appeal bond and the filing of the transcript suspended the judgment which had been taken, and if the plaintiff had filed his petition in the proper time the case would then have been in the common pleas, to have been proceeded with as though originally brought in that court. Suppose this had all been done, and the case had thereafter been dismissed for some reason other than upon the merits, the plaintiff would not have been barred from suing again, and there seems no good reason why the dismissal '>f the case for failure to file a petition should work any mora severely upon the plaintiff than a dismissal after the filing of the petition, for want of prosecution or for any cause other than upon the merits.

The ease cited by counsel for plaintiff in error, B. & O. R. R. Co. v. The City of Washington, 34 Bulletin, 266, materially differs from the case at bar.

In that case judgment was rendered in favor of the defendant in the lower court. The plaintiff appealed, and then asked leave to dismiss the case without prejudice. "This, if granted, woiild have left the party who had obtained a judgment below deprived' of the benefit of that judgment by the simple act of the losing party, without any further hearing on the merits.

In the case at bar, the plantiff, by failure to file his petition in time, lost the benefit of his judgment obtained before the justice of the peace, but he deprived the other party of nothing.

Section 53.14, Revised Statutes, providing for dismissal of a ease without prejudice to a new action, after enumerating the causes, says:

“In all other eases the decision must be upon the merits upon the trial of the action.”

In Loundenback v. Collins. 4 Ohio St., 251, it is said in the head-note, and borne out by the opinion, that to render the dismissal of an action a bar to a new action on the same cause, it must be established that the dismissal was upon the merits.

Here it is shown affirmatively that the dismissal was not upon the merits. The result is that such dismissal is not a bar to a new action and the judgment is affirmed.


text:
    WHEN A RECEIVER. MAY BE APPOINTED FOR A CORPORATION.
    Circuit Court of Cuyahoga County.
    Edward L. Brown v. The Brown Automatic Hose Coupling Company.
    Decided, March 24, 1911.

      Receiver—Ancillary to Other Relief.

    A receiver will not he appointed for a corporation except as ancillary to the working out of other relief to which the plaintiff is entitled.

      B. E. McKisson, for plaintiff.

      Hcui'ry F. Payer and J. A. Natty, contra.
    Marvin, J.; Winch, j., and Henry, J., concur.
   The petition here sets out that the defendant is a corporation; that it is indebted to the plaintiff in the sum of $3,400 upon an account; that he is a stockholder, general manager and vice-president- of the defendant, and that by reason of certain action on the part of other stockholders- and officers of the company, the plaintiff is being prejudiced in his rights. But, on examining the claims which he makes and the prayer of the petition, we are unable to find that he is entitled to or claims any final judgment in this action. ITis suit is sought to be maintained in equity and the prayer of the plaintiff is that the “defendant be temporarily restrained from removing any of its assets and property from the jurisdiction of this court or the county of Cuyahoga until further order of this court; that said defendant company be required to set up why a receiver should not be appointed or a permanent restraining order be not made; that said defendant company be restrained and enjoined from selling or disposing of any of its property at any time or place until further order of this court; except that it may -carry on its commercial business in the usual way; that it be ordered that its business and affairs be conducted in Cuyahoga county; and further, and until the further order of this court, that a receiver may be appointed to conduct or liquidate all of the affairs and assets of the defendant company, and that the receiver may be ordered to carry on the affairs and business of the defendant company subject to the orders of this court from time to time; that at the final hearing of this cause a permanent injunction shall issue until the affairs of this company may be worked out by the receiver for the interests of all stockholders- and creditors, and for such other and further relief as equity and good conscience shall require.

A receiver was appointed in the court of common pleas and he took charge of the business of the company, and upon final hearing the court found that the plaintiff was not entitled to an injunction and discharged the receiver. The case being appealed to this court the order discharging the receiver was vacated, but as has already been said, the only púrpose, so far as appears, for the continuance of a receiver is, that instead of having the business managed by its officers,' it shall be managed entirely by a receiver, the language of the prayer being until such time as “the affairs of this company may be worked out by a receiver for the interests of all stockholders and creditors. ’ ’

It would be an anomalous- thing to appoint a receiver to take charge of a business in a case in which no ultimate judgment or order can be made. The appointment of a receiver is simply ancillary to the bringing about of some final result. We see no final result here that it is• expected any receiver will work out.

It is said in the argument, that probably if the business is left long enough in the hands of a receiver, the parties interested will settle their differences. This suit is brought against no party other than the corporation itself and the facts do not justify the continuance of a receiver for the purpose of inducing the various stockholders and officers of this corporation to come to an .adjustment of any difficulties they may have among themselves. Certainly not under the allegations of the petition in this case.

The order of this court will be that the petition be dismissed, the receiver be dismissed; that he make a report to this court of his doings, as such receiver; and this court will make such an allowance to him for his services as a receiver as it shall find to be just and proper, and this amount he will be permitted to retain out of the moneys in his hands which have come to him as such receiver. The balance of such property he will restore to the corporation, and a judgment will be entered against the plaintiff for all the costs in the action, including the amount which the receiver is permitted to take from the moneys in his hands, as his compensation.


text:
    ARREST WITHOUT A WARRANT.
    Court of Appeals for Ashtabula County.
    John Rasey et al v. Virginia Ciccolino, Administratrix.
    Decided, December 11, 1913.

      Police—Arrest of Peacable Person on the Highway Without a Warrant—Authoriy to Search One Under Arrest.

    1. A police officer is not authorized to arrest a person, passing peacably along a highway without a warrant, on a- mere venture without any knowledge or reliable information, though in fact, as after-wards discovered, concealed weapons were found on the person so arrested.
    2. A police officer has no authority to search a person passing peacably along a highway of a municipality until he has placed such person under arrest, and the circumstances must be such as to give reasonable and probable grounds to justify such arrest.

      H. B. Hill, for plaintiff in error.

      Charles Lawyer and M. A. Sonles, contra. ■
    Norris, J.; Metcalfe, J., and Pollock, J., concur.
   The defendant in error, the administratrix, brought an action in the court of common pleas against John Rasey and his bondsmen to recover damages for Rasey causing the wrongful death of her decedent.

John Rasey was a police officer in the city of Ashtabula at the time of the wrongful death complained of, and the other defendants below were on his bond as such officer. It is charged in the petition that Rasey was in the discharge of his duties as a police officer when he wrongfully caused the death of Luigi Ciccolino. The verdict was returned in favor of the plaintiff below and judgment rendered according to the verdict and this proceeding in error is brought to reverse that judgment.

Some rulings of the court below on the questions of law are complained of. The first to which attention is called is the refusal of the court to give certain instructions found on page 141. This is what is contained in the record:'

“And thereupon the defendants requested the court to give in charge to the jury, before argument, the following propositions of law, all of which requests to charge were refused by said court.”

Two things might be noted about this record. The first is the request is not made- to give in writing—no such request is made. Second, these requests are asked as a whole and not separately. There could be no error on the part of the court to refuse all of them because they are not asked in compliance with the provision of the statute which says, written requests, and second, unless all of them ought to have been given to the jury, then it was not error of the court to refuse all of them.

We might stop here, but certain rules of law are applicable to this case which might be spoken of in connection with these requests. The court was asked to charge the following:

“The reasonable and probable grounds that will justify an officer in arresting without a warrant, one whom he suspects of felony, must be such as would actuate a reasonable man, acting in good faith.
“The usual and necessary elements of the grounds of suspicion are, that the officer acts upon his belief that the person he is about to arrest is the one guilty of the felony, based either upon facts or circumstances within the officer’s own knowledge, or upon information imparted to him by reliable and creditable third persons.”

There is not any evidence in this record of any effort on the part of the officer to arrest decedent at any time. There is no evidence that so far as this officer is concerned at the time, that there was any felony for which he was about to, or intended to, arrest the decedent, and that would be sufficient to make this request very properly refused as asked for in accordance with the rules.

Again, this instruction was asked:

“At the time of making an arrest an officer has the right to search the prisoner and take from his person, and hold for the disposition of the trial court, any property connected with the offense charged or that may be used as evidence against him or that may give a clue to the commission of the crime, or the identification of the criminal or any person or implement that might enable the prisoner to commit an act of violence, or effect his escape.”

Doubtless the law is applicable, but only in case of arrest, and there was no arrest of this man, or attempted arrest.

Third request:

“If John E. Rasey at the time he stopped Luigi Ciccolino, on the night of the shooting, in good faith believed Luigi Ciccolino had concealed on his person a gun or other concealed weapon, he, John E. Rasey, had a right, and it was his duty, to take such weapon or gun from him and to arrest him.”

That statement leads to an investigation perhaps, of the duties and powers of a police officer, under the laws of Ohio, acting without a warrant.

' Section 13492 of the General Code reads as follows:

“A sheriff, deputy sheriff, constable, marshal, deputy marshal, watchman or police officer, shall arrest and detain a person found violating a law of this state or an ordinance of a city or village, until a warrant can be obtained.”

I would suggest here that this record fails to disclose any fact indicating that the deceased in this case was at the time of this occurrence violating any law of the state, or any ordinance of the city, in so far as there was any knowledge of this police officer.

Section 13493 reads:

“When a felony has been committed, any person without warrant may arrest another whom he has reasonable cause to believe guilty of' the offense and detain him until a warrant can be obtained. If such warrant directs the removal of the acr cused to another county in which the offense was committed, the officer holding the warrant shall deliver the accused to & magistrate of such county to be dealt with according to law The necessary expense of such removal and reasonable compensation for his time and trouble, shall be paid to such officer, out of the treasury of such county, upon the allowance of the county auditor.”

The claim on the part of the officer with reference to any crime having been committed was, that the Chief of Police of the City of Ashtabula had telephoned him that somebody had committed some offense in the city of Buffalo in the state of New York, and that he might come in on certain trains that evening, coming in from the east, and to watch the heads of those trains for such person.

There is no evidence in this record anywhere that the deceased answered any description of this supposed fugitive, or that he did anything that night that indicated anything suspicious about him, or that he came from that train. The testimony is that he was peaeably passing westward along the Lake Shore Railroad tracks, until he came-to the cross over the north and south railroad, with another companion, with his coat over his shoulder, and had reached within a few hundred yards of his own home, to which he ivas going, so that there seems to be nothing in this record that would bring the situation of these parties or this officer within any of the provisions of these statutes, and as they have been interpreted by our courts. It does not follow from this law that an officer may interrupt any one whom he sees passing peaeably along the ways of the city. There must have been such situation, such suspicious circumstances, such surrounding conditions that' a reasonably prudent man might believe the person so passing to have been guilty of crime, that he would be authorized to detain him long enough to procure a warrant.

In the ease of Ballard v. State, 43 O. S., 340, it is said in the opinion of the court on page 345:

“Under these circumstances, we think the officer was in the performance of official duty. This does not authorize such an arrest without a warrant on a mere venture, without knowledge or reliable information, though in fact, as áfterward discovered, concealed weapons were found.”

See also State v. Lewis, 50 O. S., 179. In the case of Britton v. Granger, 7 C. D., 182, the third syllabus reads:

“To constitute a probable cause so as to warrant the arrest of a person for the commission of a crime, there must be such circumstances and surrounding facts as will lead a person of ordinary prudence to believe in the guilt of the person arrested, and if the facts show that to be the ease, then there is probable cause for the arrest. ”

Now, that perhaps is sufficient to dispose of these requests. And now as to the charge of the court which is found on page 152 of the record, and on that page the court defines the rule of law as to self-defense. It was finally claimed on the part of the defendants below that this officer shot the deceased in self-defense, and we think the court very fairly gave the rule to the jury governing that feature of the case. The law that is given is as favorable to the defendants as they had a right to ask.

Now, it is insisted further that this verdict is against the evidence. I shall state in brief the situation of the parties. This deceased, Ciecolino, and another man by the name of Tuseano, were passing along the railroad tracks of the Lake Shore Railroad, going westward to their homes, there is no dispute about that. This officer overtook them and first stopped the companion of the deceased, and this is what he says occurred:

“I came to the first fellow. I don’t his name, and said, ‘What you got on you ? ’ He says, ‘ Nothin. ’ I put my hands over him and thought I felt something in his hip pocket and looked and found a razor in a box, and gave it back to him. Q. Then what did you do? I stepped by him and said to the other fellow, ‘What you got on you?’ Luigi Ciecolino says, ‘You no take my money?’ or something like that, and put his hand towards his hip pocket. I grabbed him by the shoulder, put my right hand on his shoulder, he had an overcoat thrown over his shoulder, I think, I don’t recollect how it was, and he commenced to resist—(Mr. Lawyer: Object. The Court; Tell what he did.) lie tried to get away from me. I was satisfied that he had a gun on him or he wouldn’t resist. Q. Go ahead, tell what happened? He broke away from me, and I took my club and hit him on the left shoulder with it, his overcoat was on that shoulder, hit him on the left shoulder, and just then he drew a gun. Q. Where did he take the gun from? Hip pocket, I suppose, from the rear of his clothes somewhere. Q. After he broke away and pulled the gun, were you moving at that time? Not at that time. Q. What did you do? I jumped back, put my club up and pulled my gun from my overcoat pocket and hollered, ‘Drop that gun or I’ll shoot.’ Then he brought the gun up on me in about this position—(Mr. Lawyer, What position?) Not quite level and brought it up like this, and then I shot four times. Did you fire until he pulled his gun and started to level it? No, sir, he had levelled it when I commenced. Q. When he drew the gun how far would you say you were apart ? I should judge in the neighborhood of eight or ten feet, as near as I can recollect. Q. And about where at that time? Just a little east of the cross-over, going west. Q. Where was Carmine Tuscano at that time? I don’t know, didn’t see him after I searched him. Q. He wasn’t around at the time of the shooting ? No. sir. When you left him to search the other fellow, that was the last you saw of him? Yes, I think he went off. Do you know whether he ran or walked? Don’t know. Then what happened? I fired four shots and he turned to the left and ran on until he fell down, ran I should think 150 feet, then I see some people in the tower and went over there and asked if there was a telephone there, and they said there was a Bell.”

And then he telephoned to the chief of police.

Again, to show what occurred by his testimony:

“Q. You seem to be able to remember some things quite well. What did you say when you turned after seaching that man Tuscano? I can’t remember exactly. Q. Now, how far was this other man, Ciccolino, standing from you when you searched Tuscano? Well, he stood on the left side of him, on my right, stood about two or three feet from him. Q. AYhile you were searching the other man Ciccolino make no attempt to do anything, did he stand right there? No, sir. Q. Ain’t that true that all the time you were searching this man, that Ciccolino stood right there where he was in the first place and never tried to get away? No, sir. Q. Well, what did he do while you were searching Tuscano? Ciccolino started off. Q. Started which way? Towards the west across the Lake Shore. Q. How far had he got before you said anything to him? Oh, just a few steps off. Q. A few steps, how many? About six or eight. Q. How far? Well, four feet I should think * * *” and so on.
“Q. When you hollered to him to hold on a minute, did he stop? Yes, sir. Q. Tell what occurred, what was done or said? I came up to him to search him. Q. Didn’t you say to him ‘What have you got?’ You said that to him, didn’t you? T don’t know. Can’t remember that now. Q. And he said ‘You can’t take my money?’ Yes sir.”

This is his statement of what occurred.

The other witness who was there part of the time, testified quite differently,—that before any proceedings had taken place, .that the police officer struck the deceased over the side of the head with his club, and there was evidence of a scar on the side of his head, as testified to by people who examined the body afterwards. And testimony of other disinterested witnesses was that these four shots did not all come at one time; that two of them took place one right after the other then a short interval, then the other two. This man was hit twice, once in the abdomen and the other in the leg.

.But, was the officer justified by his own statement in what he did at that time—-and is it necessary in order that we may have police protection that we justify such proceedings on the part of a police officer?

This deceased, as the testimony shows, was foreman on the tracks of the Lake Shore Railroad, and had Jived there a number of years. As I have stated, these two persons were peacably passing along the railroad track on the way to their homes, no pretense that they were violating any law; there is no pretense on the part of the police officer in his testimony that he thought either of them had been violating the law, but he had a suspicion that each of them might be carrying a concealed weapon, and lie searched the first one and then attempted to search the other, and because the other man perhaps, did not yield gracefully to a search by a policeman who may meet him anywhere, lie raps him over the head. The officer claims he struck him on the shoulder but there doesn’t seem to be any reason for either blow, the one which he admits having given, or the other which the testimony shows, and the jury might well find, was given.

And he says the other man pulled out a gun, thereupon he told him to put it up, and without waiting for him to do so he shot four times, and that he was eight or ten feet away, he says. He was not, as I have stated, in this testimony, in any way attempting to arrest this man. Neither is there any statement on his part that he did arrest him, or that he desired to put him under arrest. If he had wanted to escape this gun he could have very easily done so. He simply wanted to search him. There is no evidence that he found anything about him to indicate that he ivas this person from Buffalo he was hunting.

The other man, Tuseano, says that this man did not pull any revolver out. The testimony shows that he had a revolver but that it was carried in the inside pocket of his coat, and it was found under his body .after he was shot. The jury could well find that he did not even take out his gun. And the jury was abundantly justified in so finding.

We think this officer largely exceeded any authority he had as a policeman of the city of Ashtabula, and that the jury were justified in finding that he wrongfully, acting as a policeman, caused the death of this decedent, and that there is no error in the record, and the judgment is affirmed.


text:
    LIMITATION UPON A DEVISE HELD VOID.
    Court of Appeals for Licking County.
    Laura Robraham et al v. Allen B. Gregg et al.
    Decided, 1913.

      Wills—Devise of Land With a Limitation Over—Nature of the Title Talcenhy the Devisee.

    Where land is devised generally by G. to H, without qualification or condition except the prdviso that, in the event H does not sell said land during his lifetime or make disposition thereof in his last will, the said land shall go to and become the property of persons named, the devise over is void, and in an action to set aside the will of H, it is not error to sustain an objection to testimony of the said secondary devisees on the ground that they are not persons having an interest in the will of H.

      Carl Norpell and Kile & Kirkpatrick, for plaintiff in error.

      Filzgibbon & Montgomery, contra.
    Powell, J.; Shields, J., concurs; Voorhees, J., not sitting.
   The plaintiffs in error, Laura Robraham, Sloan Campbell, Margery Johnston, Erma Crawfdrd, "Margaret A. Hill and Lois B. Ingalls file a petition in error in this court, by which they seek to reverse the judgment of the court of common pleas, in an action brought in that court to set. aside the will of one Ensley Finney Haas, deceased.

These plaintiffs in error were, by leave of the court, made parties defendant to a proceeding brought by the heirs at law of the said Ensley Finney Haas, deceased, to set aside what purported to be his last will and. testament, which had been admitted to probate and record in the Probate Court of Licking County before that time.

By the will of Martha Goff, who was a sister of the said decedent, Ensley Finney Haas, -he became the owner of the east half of a tract of land consisting of 135 acres, more or less, in Licking county, and which was described in the will of said Martha Goff, deceased. The plaintiffs in error claim to be the owners of this tract of land, which was devised by the said Martha Goff to Ensley Finney Haas, by virtue of the provisions of her will, in the event that the said Ensley Finney Haas did not sell, or otherwise dispose of said real estate during his lifetime, or by his last will and testament.

By item 2 of the will of said Martha Goff, an estate in fee simple was devised to the said Ensley Finney Haas. It was further provided in said item 2 of said will “that in the event that said Ensley Finney Haas does not sell or otherwise dispose of said east half during his life, or by his last will and testament, said east half of said property”—the said 135 acres1—“shall go to and be the property absolutely of Margaret A. Hill, Margery Johnston, Eliza Dunlap, Addie Dunlap, Lois B. Ingalls, Laura Robraham, Sloan Campbell, Erma Crawford and Harriett Hughes; that is, that said property shall be owned by said named persons, or those of the same who are living at the time of my said brother’s death.”

The plaintiffs in error claim that, because of incapacity and undue' influence, the paper-writing, which was admitted to probate and record as the last will and testament of the said Ensley Finney Haas, was not his will; and on the trial of said cause in the court of common pleas they endeavored to show, by testimony, that the same was not his will; that he was without capacity to make a will at the time when said purported will was executed, and that, by reason of undue influence on the part of the defendants, such paper-writing was not his will; that they being named as secondary devisees of said real estate in the will of Martha Goff in the event that said Haas did not dispose of the same, they became the owners of said real estate upon his death; and they seek a decree of the court setting aside said will. ■

Their right to offer testimony on the trial of said cause was objected to on the part of the various devisees named in the will of said Ensley Finney Haas, on the ground that these secondary devisees, now plaintiffs in error, had no interest in the estate of the said Ensley Finney Haas, deceased, and that the devise over, in the second, item of the will of Martha Goff, was void; that they were strangers to his estate, and without authority to contest the validity of his will.

Their right to maintain said action depends upon the construction to be given to the second item of the will of "said Martha Goff. There is no dispute among counsel or claim that the second item of the will of Martha Goff does not give an absolute estate in fee simple to the land described in said item to said Ensley Finney Haas;, and it is not-claimed but that, by the terms of said will, he had full power of disposition and could sell and convey, or could devise by last will and testament, the land so devised to him; and only in the event that he failed to exercise his power to convey by deed or by will, could the plaintiff in error become seized of any interest in said lands.

A large number of authorities have been cited as to the proper construction to be given to this item of the will of Martha Goff. If plaintiffs have any interest whatever under said will, they were entitled, by reason of such interest, to contest the validity of the will of said Ensley Finney Haas, and to have the sanie set aside in case a proper showing for that purpose had been made. If they do not take any interest under the will of Martha Goff, then the action of the court below, in refusing to hear testimony offered by them, was correct.

Upon an examination of all the authorities cited by counsel for both plaintiffs in error and defendants in error, the court has arrived at the conclusion that the plaintiffs in error have no interest in said lands derived through the will of the said Martha Goff, deceased; that the title to said lands passed by said will absolutely and in fee simple to the said Ensley Finney Haas, and that the devise ever, in the event that he died without, having disposed of said real estate by deed or will, is void.

It is said to be a general rule that, when an estate is given to a person generally, with a power of disposition, it carries with it the fee; and the only exception to the rule is when the testator gives to the first taker an estate for life only by certain and express words, and annexes to it a power of disposition. There can be no question but that the estate conveyed by the second item of the will of Martha Goff to the said Ensley Finney Haas was an absolute estate in fee simple, with full power of disposition ; and that the limitation over, in case- he did not dispose of it by will or otherwise in his lifetime, is void. Finley Brewing Co. v. Henry Dick et al, 13 O. D., 581, the syllabus of 'which case is: “If real estate is devised to A generally, without any qualification or condition, but with a proviso that in ease of his death without will, the property shall go to B, the limitation over is void, and A takes the entire estate in fee simple, unaffected by the proviso.” This case was affirmed by the Circuit Court of Lucas County, without report.

We -think this rule of law is controlling in the ease at bar; that the provision in the will of the said Martha Goff, deceased, under which the plaintiffs in error claim title, is void and of no effect; and that because said plaintiffs in error have no interest or title in and to the estate of the said Ensley Finney Haas except under this void provision, they are without right or authority to contest his will. The persons who are authorized by statute to maintain a contest of the will of any deceased person are named and specified in Section 12079 of the General Code. The Supreme Court, in construing Section 5858 and Section 5859 of the Revised Statutes, say:

“Any person who has such a direct, immediate and legally ascertained pecuniary interest in the devolution of the testator’s estate as would be impaired or defeated by the probate of the will, or be benefitted by setting aside the will, is ‘a person interested,’ ” and only “a person interested” can maintain a suit to set aside a will. 78 O. S., 46.

It follows that the judgment of the court of common' pleas, in refusing to permit plaintiffs in error to introduce testimony because of their want of interest in the estate of the said decedent, was correct, and that the judgment of said court should be affirmed.


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    DEGREE OF CARE REQUIRED IN OPERATING A PASSENGER ELEVATOR.
    Circuit Court of Cuyahoga County.
    Charles F. Schaber, Executor of the Will of John Schaber, Deceased, v. Benjamin F. Young.
    Decided, March 24, 1911.

      Elevator Accident—Duty of Owner and Operator—W7io is Passenger.

    1. In an action for damages for injuries received by a passenger through the alleged negligence of an owner and operator of an elevator, it is not error to charge that the same degree of care is required of such owner and operator as of a common carrier of passengers, it being explained that the care so required is of the highest degree.
    2. The owner and operator of an elevator, like the common carrier of passengers, is not bound to use the highest degree of care for all who come to its stations, yet, when it holds out the invitation to “step aboard,” its duty to afford the highest degree of care to him who accepts the invitation, and undertakes to step abroad, has begun.

      Howland, Moffel x& Niman, for plaintiff in error.

      H. J. Pinney and Herman J. Nord, contra.
    Marvin, J.; Winch, J., and ITenry, J., concur.
   Benjamin F. Young brought suit against John Schaber.

Before the ease was tried John Schaber died, and by order of the court the action-was revived in the name of the present plaintiff in error, as defendant.

Trial was had to a jury, and plaintiff recovered.

The cause stated in the petition is that defendant owned an apartment house in the city of Cleveland the rooms and suites of which were rented out to various tenants. Plaintiff was a tenant of defendant in said building, occupying rooms on the fourth floor. Said apartment house was provided with a passenger elevator, operated by defendant and his servants-, to convey tenants and those having business with them, up and down between the several floors of the building.

On tbe 21st of September, 1905, late in tbe afternoon, tbe plaintiff stepped through the doorway of said elevator into the elevator shaft, on the ground floor, and the elevator not being there, the doorway being unobstructed by any door guard or warning, and fell a considerable distance, and was severely injured.

He says in his petition that he was without fault, and that his injuries were caused wholly by the negligence of the defendant in not properly performing his duties in respect to such elevator, specifying the items of negligence.

The defendant denies, in his answer, that plaintiff was injured, but says if he was, his own negligence contributed to his injury.

. The result of the trial, was a verdict and judgment for plaintiff below in the sum of $4,500.

By this proceeding in error, it is sought to reverse said judgment.

That the jury might well have found that the original defendant was negligent and that the plaintiff was not negligent we think is shown by the evidence. We do not mean that there may not be some doubt about one or both of these propositions; but that the jury might so find as to both, without finding against the manifest weight of the evidence.

The first claim urged by plaintiff in error in his brief is that excessive damages were allowed. We are not prepared to say that the amount of the verdict is "such as to show passion or prejudice on the part of the jury. Within reasonable limits, the jury may fix such damages as to them seem the proper compensation for the injuries received.

Plaintiff was 64 years of age; was a shoemaker by trade and could earn $650 to $700 per year. There is evidence tending to show that his injuries are permanent and have practically destroyed his earning capacity. There was no evidence offered as to his expectancy of life or of continuance of earning capacity. He suffered much pain, and was put to expense for treatment on account of his injuries. No one can sa.y in such a case just what is reasonable compensation, and though all reasonable men might say that a named amount is unreasonably high, or another named amount is unreasonably low, yet it can not be doubted that reasonable men might vary considerably in the amount which ought to be allowed in a ease like the present.

We do not feel justified in reversing the judgment for excessive damages.

Complaint is made that the court erred in its' charge to the jury by the use oE these words:

“It has been decided by our courts that an elevator owner and operator of an elevator stands in the same relation as a common carrier of passengers.”

This fairly construed with the facts in the case and the charge generally, meant, and must have been understood by the jury to mean, that the elevator owner, or manager, owed the 'same duty to elevator passengers that is owed generally by common carriers of passengers to those whom they undertake to carry.

The court follows the words above quoted with a correct statement of what duty common carriers of passengers owe to such passengers.

The language used was in accordance with the holding of this court in the case of The Cobb-Bradley Realty Co. v. Hare, in an opinion announced by Judge Hale in February, 1903, and is in accordance with á large number oh cases, cited by and quoted from in the brief of defendant in error.

In Mitchell v. Marker, 25 L. R. A., 35, Judge Lurton said:

“We see no distinction in.principle between the degree of care required from a carrier of passengers horizontally, by means of railway cars or stage coaches, and one who carries them vertically by means of a passenger elevator. The degree of care required from carriers by railway or stage coach is the highest degree.
. “Neither is an insurer, but in regard to each, care short of the highest degree, becomes, not ordinary care, but absolute negligence.”
To the same-effect are the following: Shellenberger v. Fisher, 143 Federal, 937; Fox v. City of Philadelphia, 208 Pa. St., 128; Goodsell v. Taylor, 41 Minn., 207.

There was no error in this part of the charge.

Counsel for plaintiff in error uses this language in his brief:

“We contend that it was erroneous for the trial court to state as a fact, that our courts have already decided a certain proposition of law, when the question has not been passed upon by oar courts here, so far as the reported cases disclose.”

In using this language counsel overlook -the fact that the jury were bound to take tlie law from the court as he gave it, and that they would be no more, and no less, bound so to take it, whether the court was, or was not supported by authority of any other court or of any text book.

It is urged, however, that the rule as to care due to passengers, whatever that care is, does not begin until one actually becomes a passenger by getting into the car or other vehicle in which he is to be carried, and that therefore this duty never arose in favor of the plaintiff below, because he never got into the elevator.

We think the position is not sound.when applied to the facts of this case.

The only reason the plaintiff was not a passenger in the ear, was, that when he stepped there, if the elevator platform was where the open door indicated that it was, he would have been in the elevator. The platform not being there was what caused him to fall. And though the carrier is not bound, to use the highest degree of care for all who come to its stations, yet when it holds out the invitation to “step aboard” its duty to afford the highest degree of care to him who accepts the invitation, and undertakes to step aboard, has begun. If one were to take hold of the handle or rail provided, to be taken hold of by him who is to take passage in a car, and that handle was so defective that it gave way without any unusual strain upon it, by reason of its rottenness or broken condition, the party seeking to board the train would have all the rights of the passenger.

Complaint is made of the court’s definition of proximate cause. What the court said was, “By the proximate cause of the injury I mean that, cause, which caused the injury, but for which the injury would not have occurred.”

This language, taken in connection with what was said on the effect of contributory negligence, was neither erroneous nor misleading.

There is no error in the charge, nor in any part of the proceedings which would justify a reversal and the judgment is affirmed.


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    EXTRAVAGANT REPRESENTATIONS AS TO THE MERITS OF AN ICE CREAM FREEZER..
    Circuit Court of Cuyahoga County.
    H. B. Pumphrey v. C. H. Haffner, Maggie A. Haffner and Frances H. Palmer.
    Decided, May 15, 1911.

      Sale of Patent Rights—Covenant as to Ownership—Made Good 6y Repurchase of Outstanding Interest—Applications for Patent a “Patent Right’’-—-Immaterial and Material False Representations.

    1. It is immaterial if one contract to sell a one-half interest in certain dies and patent rights, covenanting that he is the sole owner of all interests therein, whereas in fact he had previously sold a one-' half interest, provided that he obtains a reconveyance thereof at or about the time he makes such covenant.
    2. One who has applied for a patent upon an invention of which he is the owner, while his application is pending and before it is issued may declare that he is the owner of “patent rights” and sell an interest therein.
    3. Representations that an ice cream freezer is the best ever; that whoever saw it would want it; that hardware dealers would take it as noon as they saw it; that his price for a half interest in the invention would be much higher to any one else than the plaintiff, but that owing to the plaintiff’s especial Adaptability to exploit an ice cream freezer, he would let him in cheap, etc., made in order to induce the plaintiff to purchase an interest in the invention, and upon which he acts, are a kind of bragging and flattery, but though false, do not constitute that kind of fraud which is recognized by the law.
    4. Representations that an ice cream freezer is selling well; that it is giving excellent satisfaction and is doing the work intended in a perfectly satisfactory manner are material and if relied upon in purchasing an interest in the invention, and turn out false, will give ground for setting aside the sale.

      D. M. Bader, for plaintiff.

      H. A. Tilden, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   H. B. Pumphrey prays to have a deed of conveyance of certain real estate, made by him to Maggie A. Haffner, who is the wife of C. IT. Haffner, set aside; also to have a deed of a part of the same real estate-made by C. H. Haffner and Maggie A. Haffner to Frances IT. Palmer set aside.

Without going into the reasons why, it is agreed that both of these deeds should be set aside, if the contract made between Pumphrey and C. IT. Haffner, under which the deed to Maggie A. Haffner was made, would not support the deed last named if it had been made -to C. II. Haffner instead of to Maggie A.. Haffner.

■ The plaintiff says this contract was tainted with fraud perpetrated on him by C. PI. Plaffner.

This contract was made May 24th, 1910. If there was fraud on the part of Haffner in the transaction, it was in reference to certain representations made by him to Pumphrey in regard to certain rights in a patent on ice cream freezers. In a writing given to Pumphrey by Haffner on the day last named, Haffner declared that he was the sole owner of all interests in certain dies and patent rights in the ‘ ‘ ReamsrHaffner Instantaneous Freezer,” and one-half interest in these patent rights and dies was what he gave to Pumphrey for the real estate in question.

The evidence shows that, before the date of this contract, ITaffner had sold a half interest in this same thing to a certain corporation, with which he was connected, and on the part of Pumphrey, the evidence tends to show that this title was outstanding at the date of the contract with Pumphrey. On the part of Haffner, it was asked that the case be delayed for evidence which it was said could and would be produced, that the interest which this corporation had received from Haffner had been transferred back to him before the 24th day of May, 1910. It was conceded by the plaintiff that such reconveyance was made at some time, either before or after May 24th, 1910, and holding that it would in no wise matter to Pumphrey whether such reconveyance was made before or after the date named, we did not wait for the evidence, but hold that Pumphrey would hot be entitled to relief simply because of this transaction with the corporation, so long as Haffner got the title in, and'so made good the title in Pumphrey.

■ As a matter of fact, no letters patent have ever been issued on the device spoken of, but application for such patent had been made, and this application was pending in the patent office at the time of the contract, and such application was owned by Haffner, so that he had certain fights in the patent, which may be called “patent rights” even without letters patent having been issued.

The evidence is not clear as to whether Pumphrey knew exactly the situation of the patent in the patent office or not, when the contract was made. If he did not, he learned shortly after the date of the contract, and did not seek then to avoid the contract on that account. Many representations are charged by Pumphrey to have been made by Haffner, which, whether strictly true or not, would not avoid the contract. Haffner said, in effect, that the freezer was the best ever, that whoever saw it would want it, that hardware dealers would take it as soon as they saw it, and that to any other man than Pumphrey. his price for the half interest would be $10,000 but that owing to his especial adaptability to exploit an ice cream freezer, he would let him in cheap, etc. .

This kind of bragging and flattery does not constitute the kind of fraud recognized by the law. These representations only purported to be Haffner’s opinions as to the great value of the invention, and very likely may have been entertained by him. Many an enthusiastic inventor has entertained such opinions relative to his invention, only to have them shattered by the indifference with which his device was received by the public, or by its utter rejection.

But the evidence does show that Haffner made statements to Pumphrey which the existing facts did not warrant, which were material and were relied upon by Pumphrey. He told him the machines were selling well; that they were giving excellent satisfaction, and were doing the work intended in a perfectly satisfactory manner.

The fact was, that the machines sold up to that time, as well as since; were wholly unsatisfactory, and had failed to show that there was any value in the patent, either as it then was, inchoate, or as it might become, if letters were issued. Haffner substantially admits that the machines had not done good work, but says it was because of faulty construction. Possibly the whole difficulty was on account of faulty construction, but the difficulty is that Haffner represented to Pumphrey that the machine already sold demonstrated the value of the invention, and on this Pumphrey relied. Haffner so far overstated the fact as to constitute a fraud, by reason of which the plaintiff is entitled to a decree setting aside the deeds, as prayed for, and such decree will be entered.


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    CONVICTION UNDER. AN INVALID ORDINANCE.
    Circuit Court of Cuyahoga County.
    W. C. Gates v. The City of Cleveland.
    Decided, June 2, 1911.

      Police Court—Judicial Notice of Ordinance of Municipality—Reviewing Courts Can Not Take Judicial Notice of Ordinances—Exposing Turnips for Sale in Unsealed Receptacle, Not an Offense.

    1. The police court of a municipal corporation may take judicial notice of its ordinances, but the common pleas and circuit court may not do so.
    2. Upon conviction in a police court for violation of a municipal ordinance of which that court took judicial notice, the bill of exceptions failing to show the terms of the ordinance, the higher courts will assume the existence of a valid ordinance authorizing the conviction, if the offense charged in the affidavit is one a.s to which the municipality has power to legislate.
    3. Municipal corporations are not vested with power to make it an offense “to expose for sale turnips in a receptacle not tested, marked and sealed by the city sealer,” and a conviction by a police court on such a charge will be set aside.

      E. J. Pinney and G. W. Rosenberg, for plaintiff in error.

      N. D. Baker, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   An affidavit was filed in the police court of the city of Cleveland, charging that in the city of Cleveland, on January 3d, 1911, W. C. Gates 11 exposed for sale turnips in a receptacle not tested, marked and sealed by the city sealer, contrary to an ordinance of said city.” Thereupon Gates was arrested, tried and convicted. On error prosecuted by him in the court of common pleas, this conviction was affirmed. We are asked to reverse this affirmance and the original judgment of conviction. The ground of reversal urged is that the ordinance under which the conviction was had is invalid.

This court, as we have held in several cases, can not take judicial notice, of municipal ordinances, hence, since the bill of exceptions does not contain the ordinance, we can not know how it reads; and this was true also of the court of common pleas. If it be said that, since the police court takes judicial notice of ordinances, there would, of course, be no question for its introduction as evidence on a trial in that court, and hence it could not properly be contained in the bill of exceptions taken from the court.

We have pointed out in other cases that the police court could have made a copy of the ordinance a part of the bill, certifying that the prosecution was had under such ordinance. By this means the reviewing court has the ordinance before it for consideration.

However, the defendant in error, the city, loses nothing by the absence of the ordinance, because, as we have held in other cases, we must presume, in the absence of the ordinance, that the police court did not err in the application of it, and that the ordinance is valid, unless the city was without authority to pass a valid ordinance w'hich would make it an offense to do that which the affidavit here charges Gates with doing.

So we have directly presented the question: Has a municipality authority under the statutes of the state to make it an offense to “expose for sale turnips in a receptacle not tested, marked and sealed by the city sealer ? ’ ’

The claim on the part of the city is that it has such authority under Section 3651, General Code, which is a section in Chapter 1, Division 2, Title 12, on municipal corporations. This entire chapter is on the enumeration of powers. This section authorizes municipal corporations, by ordinances, “to regulate the weighing and measuring of hay, wood, and coal and other articles exposed for sale, and to provide for the seizure, forfeiture and destruction of weights and measures, implements and appliances for measuring and weighing, which are imperfect, or liable to indicate false or inadequate weight or measure,” etc.

To us this statute falls far short of authorizing the municipality to make it an offense to “expose for sale” articles that are not in any measuring receptacle or on any weighing device.

If the city could, by ordinance, make it a punishable offense to do what Gates is charged with doing, then if he brought beans in an ordinary barrel, took them to the market house, and there exposed them for sale in such quantities as purchasers might desire to buy, having at hand a measure in exact conformity with the standard fixed by law, and which measure had been properly tested, marked and sealed by the city sealer, in which he properly measured every quantity sold, still he would have committed exactly the offense which Gates is charged with.

Every word in this affidavit may be true, and yet, it may be lhat Gates had his turnips in his wagon box, or in barrels, or in bags, not using any of them as means of measuring them, but only as a convenient way of bringing them to the city, or to the market house, or about the city, as a huckster, from house to house, having and using at every sale the property tested and sealed measure.

It is possible that if the charge was that he had exposed these turnips for sale in a receptacle purporting to be, or used by him as a measure, for such turnips, we might reach the conclusion that the city could, by ordinance, make that an offense, under the authority of' the statute; but we are clearly of the opinion that the Legislature of the state has not conferred upon the city the authority to make that an offense which is charged in this affidavit against Gates.

It follows that the judgment of both the court of common pleas and of the police court must be reversed.


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    ACTION FOR. FAILURE TO PERFORM A CONTRACT.
    Circuit Court of Cuyahoga County.
    Elita E. Peck v. Elizabeth D. Osborn.
    Decided, June 2, 1911.

      Former Adjudication—Dismissal of Petition for Specific Performance No Bar to Action for Damages.

    A judgment of dismissal of a petition for the specific performance of a contract for the sale of lands is no bar to an action for damages for failure to perform said contract.

      Parsons ■& Fitzgerald, for plaintiff in error.

      Ong, Thayer & Mansfield, contra.
    Marvin, J.; AYinci-i, J., and Henry, J., concur.
   Elita E. Peek was plaintiff below, and sued Elizabeth D. Osborn for damages for failure to perform a contract- for the sale of certain real estate. The defendant set up that the same plaintiff had sued the same defendant in the same court, praying for specific performance of this same contract and that the court had held against her, refusing to decree specific performance, and dismissing her petition. On demurrer in the present ease, the court sustained said defense and dismissed the petition, entering judgment for the defendant.

The only question before us is as to whether or not the plaintiff here is barred by the adjudication in the former case.

Our attention is called to ma^r cases, 53»- counsel on both sides of this case, the contention of the defendant in error being that the rights of both parties, in all matters growing out of this contract, were either determined or might have been determined, in the former action. In support of this, among other authorities cited, is the case of Strangward v. The American Brass Bedstead Co., 82 O. S., 121, the second paragraph of the syllabus of which reads:

“When a matter has been finally determined in an action between the same parties by a competent tribunal, the judgment is conclusive, not only as to what was determined, but also as to every other question which might properly have been litigated in the ease.”

Also Grant v. Ramsey, 7 O. S., 157, in which it is held that where a question of fact has once been tried and adjudicated by a court of competent jurisdiction, it can not be reopened in a subsequent suit between the same parties. They are concluded by the former judgment.

It can not be claimed, at least it ought not to be claimed here, that all the questions which may arise in this case bearing on 'the plaintiff’s right to damages, were necessarily disposed of in the former case, because in that case the court may have adjudicated as it did, because it found, in the exercise of its discretion, that it would be inequitable to decree specific performance, and so that relief was refused, and the plaintiff left to her remedy at law, as 'in many of the cases it is said.

It can not well be claimed either, that as the pleadings stood in that case, the right of the plaintiff to damages could have been tried. The pleadings called for the exercise of the equitable jurisdiction of the court only. Because of this, the case was appealable, and was appealed to this court, and it was in this court that the final judgment was made' of. dismissal of the plaintiff’s petition. Could this court have directed or allowed pleadings to be amended so as to make a case for damages, and then proceed on this appeal to try the question of damages?

We regard the case of Porter v. Wagner, 36 O. S., 471, as decisive of this ease. The first paragraph of the syllabus in that ease reads:

“A judgment of dismissal of a petition for the specific performance of an agreement, and of a counter-claim asking a rescission of the same, is no bar to an action for the recovery of money paid on the agreement, although the cause of action accrued before the rendition of the judgment.”

We reach the conclusion, therefore, that the judgment of the common pleas court must be reversed, and the cause remanded,


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    VALIDITY OF THE ELECTRIC RAILWAY STREET CROSSINGS ACT.
    Circuit Court of Cuyahoga County.
    Village of Rocky River, v. The Lake Shore Electric Railway Company.
    Decided, June 2, 1911.

      Constitutional Law—Section 9118, General Code, Constitutional.

    Section 9118, General Code, which provides that the court of common* pleas shall have jurisdiction to fix the manner and mode of crossing streets in a municipality by electric street railroads and the compensation, if any, to be paid therefor, is constitutional.

      D. F. Miller, for plaintiff in error.

      W. B. & E. E. Johnson, contra.
    Marvin, J.; Winch, J., and Henry, J.. concur.
   A question in this case is made by the defendant in error, that by reason of the entry made in the court below, the case is not reviewable on error. The language of the entry is as follows :

“By consent of the parties herein, it is ordered, adjudged and decreed that the certain manner and mode of effecting the crossings of said Blount street and said Wooster road in the village of Rocky River, with the tracks of said defendant herein as indicated in a certain map or plat attached to the amended answer of defendant herein and marked 'Exhibit A’ thereto, is a proper and reasonable manner of effecting said crossings, and it is further ordered, adjudged and decreed that said plaintiff shall lay or cause to be laid,” etc.

There is a peculiarity about the record in this ease, to which attention was not- called at the hearing, which is, that, though a motion for new trial was filed by the village of Rocky River on the-28th day of November, 1930, it was never disposed of. .The petition in error was filed in this court on the 23d of March, 1911. Thereafter, on the 6th of April, 1911, leave was given in the court of common pleas to the village to file an amended answer of November 25th, 3910, and on the same day the motion of the village for a new trial was withdrawn. These proceedings of April 6th, 1911, appear by an additional transcript filed here, or at least found in the file wrapper here, but without any mark of filing upon it.

As we view the case, however, it is not necessary to say what effect the entering of judgment by consent of the defendant below or the withdrawal of the motion for new trial, or the fact tb,at such motion was not passed upon by the court before proceedings in error were instituted, would have, because we find no error in the case which would justify its reversal in any event.

The action below, brought by the railroad company under Section 9118, General Code (101 Ohio Laws, 375), was that the court of common pleas might determine the mode and manner of crossing the streets named, in the village, with the tracks of the railroad, and the compensation to be paid therefor. The proceedings were in exact conformity with the provisions of the statutes, and the only claim of error is that the statute is unconstitutional. There is nothing said in the statute as to a jury to assess the damages, the language being:

“The court of common pleas, thereupon, shall have jurisdiction of the parties and of the subject-matter of the petition, and may proceed to examine the matter offered by 'the evidence, by reference to a master commissioner, or otherwise, and upon the final hearing of said cause, the court shall enter its decree fixing the manner ahd mode of such crossing and the compensation, if any, to be paid therefor.”

Whether, under this provision, the parties would have the right to have the damages assessed by a jury, we do not need to determine here. For if this can not be done under the statute, still the statute does not come under Article I, Section 19, of the Constitution, which provides that where private property is taken for public use, damages shall be assessed by a jury. The streets in which the company seeks to acquire rights in this proceeding are not private property, but have already become public property by being streets of a municipality, and what is sought is to subject this public property to an additional public use. The case of Zanesville v. Tel. & Tel. Cos., 64 O. S., 67, seems directly in point. We reach the conclusion that the judgment below should be affirmed.


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    FEES TO ATTORNEYS PAYABLE ONLY OUT OF SPECIFIC FUND.
    Circuit Court of Cuyahoga County.
    Charlotte M. Phillips v. The Travelers Insurance Company of Hartford, Conn., et al.
    Decided, June 2, 1911.

      Attorney’s Fees—Allowed Only for Services in Case in Which Fund Recovered.

    Attorneys fees for services rendered in one case, may not be ordered paid out of funds recovered in another case, or for any services rendered, except in the case in which the fund was recovered.

      J. J. Sullivan, for plaintiff in error.

      Hoyt, Dustin, Kelley, McKeehan & Andrews, Carr, Stearns & Chamberlain, E. J. Pinney and White & Grosser, contra.
    Marvin, J.; Wincii, J., and Henry, J., concur.
   The cpiestion involved in this case arises on an amended answer and cross-petition filed here by W. B. Neff and C. W. Dille, and a demurrer filed thereto.

We fail to see how the facts therein stated entitle these parties to a lien upon the money now in the hands of the court or a decree declaring an equitable assignment of any part of the funds. We find no case in Ohio directly in point.

In Diehl v. Friester, 37 O. S., 473, the matter is discussed at page 477 and it would appear that cases may arise and do arise where the court orders payment of fees to attorneys out of funds under its control, but in no case, so far as we know, has it been held that the court may order fees to be paid out of funds recovered in one case, for services rendered in another ease, or for any services rendered except in the case in which the money was recovered.

There is nothing set up in the pleading of these defendants that seems to require any equitable interference; there seems fo be no reason why these parties should not be put to their remedy at law, allowing Mrs. Phillips to have the verdict of a jury as to what amount she owes them, and from their pleadings it would appear that she clearly owes them something, and from aught that appears, she is able to pay whatever may be adjudged against her in an action brought for such fees.

The discussion of the question of the liens of attorneys found in Chapter 5 of Jones on Liens, is instructive, and seems directly against the claim of these defendants.

See also DeWinter v. Thomas, 27 L. R. A., (N. S.), 634, and notes of eases there cited.

Demurrer sustained.


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    AS TO CORRECTION OF RECORD BEFORE JUSTICE OF THE PEACE.
    Circuit Court of Cuyahoga County.
    William Fountain v. The J. T. Wanelink & Sons Piano Company.
    Decided, November 13, 1911.

      Justice of the Peace—Motion to Correct Date of Judgment—Bill of Exceptions—Review on Error.

    It is error for the common pleas court to reverse on error proceedings from a justice of the peace, the order of the justice overruling a motion to correct his record so as to show the actual date on which he entered judgment in the case, there being no bill of exceptions from the justice showing all the evidence given and offered on the hearing of said motion before him and no provision of law for the perfecting of a bill of exceptions in such matters.

      Charles li. Summers, for plaintiff in error.

      Parsons & Pilzgeralcl, contra.
    Marvin, J.; Winci-i,'J., and Henry, J., concur.
   An action was brought before a justice of the peace by the plaintiff in error against the defendant in error. The result of the trial of such action was a judgment in favor of the plaintiff. That judgment was entered on the docket of the justice under date of July 6, 1909. Ou the 5th day of August. 1909. a motion was filed by the defendant before said justice in these words, “The defendant moves the court for an order in the above entitled case to correct the record so as to show the actual date on which judgment was entered in said case, to-wit, on a day subsequent to July 6, 1909;” and on the same day this motion was overruled. To the order of the justice overruling this motion, error was prosecuted in the court of common pleas, the result of which was that the last named court reversed the order of the justice in overruling said motion, and it is to reverse this judgment of reversal that the present proceeding is prosecuted.

The situation is somewhat peculiar. There is no suggestion in the motion made before the justice of any particular day or definite date on which this judgment, which was entered as of July 6th, should have been entered, but only that such should be. entered on a date subsequent to July 6th. Unless the court of common pleas had evidence properly before it to show that the justice should have entered this judgment at a date subsequent to that on which his records show that he did enter it, there was error on the part of the court of common pleas in reversing this judgment. We hold there was no such evidence.

There appeared among the papers in the case certain affidavits in reference to the entry of this judgment. It is probable, though perhaps it is not-at all certain'from anything that appears, that these affidavits were used on the hearing of the motion before the justice. There is no mark of their being filed with the justice; but treating them here as though they were on file with the justice, and that they properly came into the court of common pleas as a part of the original papers in the case, they still did not furnish such evidence as authorized the common pleas court to reverse the judgment below, and this for the reason that whatever is contained in those affidavits, even though it was properly before the common pleas court for consideration, may have been, for all that appears, but a part of the evidence on which the justice acted. There is nothing in his transcript to show upon what evidence he acted. The court of common pleas was not authorized to reverse upon the facts, without all the evidence upon which the justice acted being brought before the common pleas court; and, as already said, there is nothing in the record to show that this was done.

But it is said that there is no provision of statute for bringing up by bill of exceptions, the evidence, upon which a justice of the.peace acts, in a matter of this kind. This difficulty is recognized in the case of Baer, Harkeimer & Co. v. Otto, 34 O. S., 11. On page 15, it is said in the opinion in this ease:

“In order to settle the practice in such cases, we now decide that there is no provisions in such cases made by legislation, as it now stands, for preserving the evidence offered on such motion, or for reviewing the decision of the justice upon the grounds that such order either in granting or refusing the motion is contrary to the evidence.”

The matter under consideration was a motion to discharge an attachment by the justice of the peace. The difficulty, however, and injustice, if it is an injustice or failure of the statute to work out complete justice, seems to exist in such a case as we have before us as existed in the case under consideration by the Supreme Court when the language quoted was used.

To relieve from the difficulty presented by the decision in Baer, Harkeimer & Co. v. Otto, supra, the General Assembly enacted Section 6524 of the Revised Statutes, now appearing in the General Code as Section 10299. This section, however, applies only to orders discharging or refusing to discharge attachments. This would seem to leave the other matters in which error is prosecuted to the court of common pleas in the situation that the matter of attachment was in at the time of the decision of Baer, Harkeimer & Co. v. Otto, supra. The claim of the defendant in error here is that no bill was before the court of common pleas on the hearing of this case' in that court, and so, whether the evidence could or could not have been before it by bill of exceptions, it was not before it at all. If it could have been brought before it by bill, that should have been done. If it eould not, the party excepting was in the same unfortunate situation as the losing party in the ease of Baer; Harkeimer & Co. v. Otto, supra.

In either event, the court erred in reversing the judgment of the justice, and the judgment of the common pleas court is here reversed, and the judgment of the justice affirmed.


text:
    AGREEMENT FOR. ARBITRATION.
    Circuit Court of Cuyahoga County.
    B. W. Ernst v. William McDowell et al.
    Decided, November 27, 1911.

      Arbitration—Declaration that Party Will Not Stand by Award Does Not Amount to Revocation—Parol Award Sufficient—Disqualifying Interest of Arbitrator.

    1. The mere declaration of a party to an arbitration agreement, communicated to one or more of the arbitrators, that he will not stand by any decision they may make, is not alone sufficient to revoke the agreement to arbitrate.
    2. If the arbitration submission does not expressly direct that the award be in writing, an oral award is sufficient, there being no statute requiring a written award.
    3. The mere fact that one of the arbitrators named in an arbitration agreement is a creditor of one of the parties to it, is not sufficient to disqualify the arbitrator from serving as such and does not, of itself, require that the award made be set aside.

      Ford, Snyder & Tilden, for plaintiff.

      Herrick dl Hopkins and D. G. Parker, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The parties to this action, Ernst and McDowell, entered into a written agreement on the 6th day of April, 1909, which agreement reads as follows:

“Cleveland, 0., April 6th, 1909.
“We, William McDowell and B. W. Ernst, both jointly and separately hereby agree that in view of a misunderstanding and disagreement in regard to a certain contract for work done at Upper Sandusky, said contract for work having been done by B. W. Ernst, who did not complete the same, William McDowell doing the unfinished portion of the work for B. W. Ernst and completing said work in accordance with the plans and specifications of the engineer in charge representing the village of Upper Sandusky for whom the work was being done.
“Now there being a misunderstanding and disagreement in regard to the amount claimed by Mr. McDowell as due him for the completion of said work, we hereby agree to leave this disputed amount to the following named gentlemen, Mr. E. W. Sloan, A. F. Helm and H. C. Bradley, as arbitrators and also agree to abide by the decision rendered in regard to a settlement of all the questions in dispute. This finding of the arbiters to be final and no further action to be taken by either of us pertaining to this question in dispute.
“Witness our hands and signature this 6th day of April, 1909.
“Witness: (Signed) B. W. Ernst,
“E. W. Sloan, (Signed) Wm. McDowell.
“A. F. Helm,
“H. C. Bradley.”

On the same day the three men named as arbitrators met and agreed upon their award, but did not then reduce such award to writing. It will be noticed that the contract of submission does not require that the award be made in writing.

On the day the award was agreed upon, the defendant, Wm. McDowell, was apprised of what it was by one of the arbitrators'. He was dissatisfied with the award, and either that evening or the next day gave notice in writing to two of said arbitrators, but not to the defendant, that he would not stand by any decision made by the arbitrators, giving as a reason that one of the arbitrators was an intimate friend of the plaintiff, and that he believed such arbitrator to be financially interested in the matter before him.

The arbitrators, however, reduced their award to writing, after receiving such notice, and furnished to each of the parties a copy of such writing, which reads as follows:

“April 7, 1909.
“Messrs. B. W. Ernst and Wm. McDowell,
“Gentlemen: Your committee, appointed by you and mutually agreed upon to arbitrate the disputes and determine the compensation to be received by each in the sewer contract of Upper Sandusky, Ohio, which was started by Mr. B. W. Ernst and completed by Mr. W. McDowell, decides as follows:
“Mr. B. W. Ernst is to receive all the money now left on the work and now on deposit at the First National Bank of Upper Sandusky, approximately twenty-two hundred and five dollars ($2,205) as his share of the proceeds. The same to be paid within ten days.
“Mr. Wm. McDowell is to complete any work now unfinished upon the contract, within the specified time allowed, and is to receive the one thousand dollars ($1,000) now held by the village of Upper Sandusky as guarantee for the completion of the contract, in accordance with the specifications, as his share of the proceeds.
“Your committee has carefully considered the evidence presented and it is their unanimous opinion that this decision does justice to both parties.
‘ ‘ Respectfully submitted,
“A. F. Helm,
“E. W. Sloan,
“H. C. Bradley.”

The defendant McDowell refuses to abide by said award, and has withdrawn from the bank where the money was on deposit, a large part thereof.

The present suit, under the amended petition, is to recover judgment against McDowell for a fixed amount of money claimed to be due under the award.

The original petition < prayed for an injunction against the bank, to restrain it from paying any of the awarded money to McDowell, and for an order that it pay the same to the plaintiff. By the amended petition, however, it is shown that the bank has paid to the plaintiff all the money remaining in its hands, to-wit, $721.62; and so, as already said, the only relief now prayed, on the part of the plaintiff, is a judgment for money only.

The answer to this petition, however, filed by McDowell, raises the issues hereinafter discussed, and prays to have the contract of submission and the award set aside, and that the money paid by the bank to the plaintiff be recovered by McDowell.

The defendant McDowell says that he ought not to be bound by this award, because he says that before any award was made he repudiated the contract of arbitration, and so notified two of the arbitrators, Mr. Bradley and Mr. Helm. He did not notify Mr. Sloan, and as has already been said, he did not at that time notify Mr. Ernst.

That the award had been made, and that Mr. McDowell had been told what it was before he undertook to revoke the contract, we think is clear from the testimony of Mr. Helm, who says that the decision of the arbitrators was made on the same day that the hearing was had: that they never got together again about it; that he told Mr. McDowell what the decision was the day of the hearing, after the arbitrators had agreed, and before Mr. McDowell gave him any notice that he would not abide by the result. Later, that same evening, McDowell told him by ’phone that he had heard that Sloan was an intimate friend of Ernst and was perhaps financially interested in the result, and the next day Helm got a letter from McDowell to the same effect.

Mr. Bradley also says the award was agreed upon on the day of the hearing, which was at Mr. Bradley’s office, before the arbitrators separated.

Mr. Helm says he "told McDowell the exact terms of the award and what each party was to get, and on that same evening, and in that same interview before McDowell gave any" notice either by ’phone or letter.

Though there may be doubt as to the exact contents of the written notice sent by McDowell to Bradley and Helm, we have what Willis McDowell, a son of the defendant, says is, if not an exact copy, a substantial copy of the notice. This notice first states that defendant has learned that Sloan is an intimate friend of Ernst, and that, to quote, ‘ ‘ I also think he is financially interested.. I will not stand by any decision made under these circumstances. ’ ’

This language is sufficiently explicit to show that McDowell did not intend to abide by any award, but it may be doubted whether it amounts to a revocation of the contract of submission even if given before the award was made.

In Brown v. Welker, 41 Tenn., 197, the syllabus reads:

“After a question is submitted to the decision of arbitrators, by agreement, neither the power nor the duty of the arbitrators, to make an award can, in any way, be affected by the declaration of one of the parties that he would not abide by his agreement. . Such declarations are simply nugatory, unless the party revokes the authority conferred on the arbitrators to act in the premises. ’ ’

In this case the evidence showed that Brown, one of the parties to the contract of arbitration, said to Kincaid, one of the arbitrators, when on the way to the place of meeting for the arbitration, that he would not stand for it. Commenting on this, the court, in its opinion, page 200, uses this language:

‘ ‘ The error of the charge is in the assumption that the mere expression of a determination on the part of Brown not to stmd to the agreement, put an end to the contract or was equivalent to a revocation of the authority of the arbitrators. Such was not the legal effect; he might have revoked the authority before it was executed by the arbitrators but if this were not done, neither the power nor authority and duty of the arbitrators to make an award could be affected in any way by the declaration of Brown that he would not abide by his agreement. ’ ’

But we are of opinion that, whatever its effect might have been, if given in time it came too late to be effective here.

When McDowell gave his notice that he would not stand by any decision made, the arbitrators had already made their decision, and that decision was the “award.”

Anderson’s Law Dictionary defines an award in matters of arbitration in these words: “An award is the judgment of the arbitrator upon the matters submitted.”

Bouvier defines it as “the judgment or decision of arbitrators or referees on a matter submitted to them.”

■Second Ed. of Am. & Eng. Enc., 2d Vol., 722: It is said in the text: “If the submission does not expressly direct or the law

require the award to be in writing, an oral award is sufficient.” This is supported by numerous cases cited in the foot-notes.

In 1889 it was enacted by the British Parliament that, unless a contrary intention is expressed in the submission, the arbitrators- shall make their award in writing.

Commenting on this, it is said in the 9th Edition of Russel on Arbitration and Award at page 186:

“Formerly a parol award might have valid where the submission did not expressly provide that the award should be in writing, but since the arbitration act, a parol award will not be good unless,” etc.

It is said in. Moore on Arbitration and Award, at page.256, edition of 1872:

“In the absence of statutory restrictions, or of stipulations in the submission, and except where the right to be disposed of is, by its own nature, capable of being disposed of only by a sealed instrument, a verbal award will be good. ’ ’

Having then reached the conclusion that McDowell never revoked the contract of submission, we come next to a consideration of the question of whether any arbitrator was disqualified. The claim on the part of the defendant is that one of the arbitrators was not qualified to act in that capacity.

The arbitrators in this case were not chosen in the usual way, but were all named by Ernst, and this was done at the suggestion of McDowell. The first man named by him was Sloan. This name he gave to McDowell several days before the writtén agreement was executed, which, as already said, was on the day of the hearing and decision by the arbitrators.

McDowell says in his testimony that he said to Ernst: “I will leave it to any three disinterested men that you pick out—I will let you pick them.”

Ernst did pick the three, who acted. McDowell after having several days opportunity to learn as to the fitness of Sloan, at any rate, if not so long as to the others, voluntarily signed the contract of * * * submission. lie testified that when the meeting took place with the arbitrators, “I asked them if any of them was interested or knew anything in regard to the case, and all that, and they all said they wasn’t, first one and then the other.”

Of course, McDowell should be held to this contract unless- he was. deceived or defrauded into executing it.

The facts as to the relations between Ernst and Sloan -are that they were on friendly terms socially, and that Sloan had signed bonds for Ernst in one, probably two,' instances in connection with his getting contracts for work for city improvements. These bonds, however, had been taken care of long before this arbitration took place. At the time of the arbitration, however, Sloan held the note of Ernst for $1,200, which arose in this way: Ernst was bidding for jobs to be done for the city of Cleveland in the spring of 1909. lie was obliged to accompany each bid with a bond or deposit of money, conditioned that if the work was awarded to him, he would enter into the contract for such work, giving proper bond for its faithful performance.

Sloan had a credit of $1,200 given to Ernst at the First National Bank of Cleveland, that amount being charged to Sloan’s account, and he taking Ernst’s note therefor. None of the mone^ was taken from the bank by Ernst, save for deposit with the city when he bid for work. The note given Sloan was not due at the time of this award. It was paid when it- became due, and that without any avails from this award.

Ernst deposited at his own suggestion with Sloan two policies of insurance on his life, one for $1,000 in the John Hancock Company, and one for $2,000 in the Massachusetts1 Mutual Life. Though the deposit of these policies may not have been in law a security, these parties probably supposed they were. Under these circumstances, can it be said that a fraud was perpetrated on McDowell, or that Sloan was not a disinterested person in the sense in Tyhich an arbitrator is required to be disinterested ?

Authorities are numerous on the question of disqualification of arbitrators on account of interest in the matter submitted, or of special interest in one of the parties.

In the 5th Yol. of Am. & Eng. Enc. of Law and Practice, pp. 83 and 84, authorities are collected, both English and American, and the result is summed up in the text:

“To constitute grounds for setting aside the award, the bias' must have been such as to furnish reasonable ground for believing that the arbitrator was improperly influenced.
“If the interest of the arbitrator was too remote and contingent to induce any reasonable suspicion that it could have influenced his decision, the award will not be set aside.”

In Russel on Arbitration and Award, 9th Ed., it is said at page 93:

"If there is an engagement entered into between the arbitrator and one of the parties, unknown to the other party, which gives the arbitrator a direct pecuniary interest in deciding against the party who was ignorant of the engagement, the court will not enforce a submission to arbitration. The mere fact of owing a debt to or being a creditor of one of the parties is not such an interest as renders a person incompetent for the office. ’ ’

So in Morse on Arbitration and Award, Ed. of 1872, it is said on page 100:

"A debtor or creditor of one of the parties to the submission is said not to be therefor necessarily incompetent to act as an arbitrator. It should be shown further that the debt is considerable, or that it is unsecured or that the debtor is in such circumstances that the decision of this case may appreciably affect his ability to pay the debt.”

In support of the text last above quoted from Morse, and the preceding quotation from Russel, the case of Morgan v. Morgan, 1 Dowling, 611, is cited. In this case it appeared that an arbitrator was indebted to one of the parties.' In commenting upon this, the court uses this language:

"No case has gone to the length of saying that an award can be set aside because the arbitrator was indebted to.one of the parties.”

To the same effect is the case of Wallis v. Carpenter, 13 Allen, 39. In this case one of the arbitrators was in debt to one of the parties. This was established by the evidence, and yet the court say, oh page 24:

"There is no established fact which authorizes the suggestion that the existence of the debt creates partiality.”

Taking into account the facts in this case, that the money for which Sloan held the note of Ernst was for money in the bank, which it was understqod between them would be checked out only to deposit with the city from time to time, when bids were rejected, or in case bids were accepted, to be returned as soon as contracts were entered into, and that this arrangement was.strictly carried out; that.Sloan held the two insurance policies, which the parties supposed constituted security, and that no effort to conceal any fact from McDowell as to the relation oE the two men, Sloan and Ernst; that Ernst told McDowell several days before the submission that he had selected Sloan; that McDowell entered into the written contract for submission of the controversy to these three men by name, we fail to find that any fraud was perpetrated on the defendant, which would justify the setting aside of the contract, or that either arbitrator had such interest in the result of the issue or any such interest in the plaintiff, as would justify setting it aside; and so the prayer of the defendant McDowell, that such contract and the award thereunder be set aside, is denied, and the plaintiff is given judgment for the amount fixed by the award, with interest, deducting therefrom the amount paid to him by the First National Bank of Upper Sandusky, as hereinbefore found, as of the date when such payment was made.


text:
    PLEADING IN DIVORCE AND ALIMONY PROCEEDINGS.
    Circuit Court of Cuyahoga County.
    Clayton Thomas v. Isabelle Thomas.
    Decided, November 27, 1911.

      Alimony Pendente Lite—Sufficiency of Petition to Authorize Allowance of.

    In the absence of a motion to malte it more definite and certain, a petition for divorce and alimony will authorize an order allowing alimony pendente lite where it alleges extreme cruelty on the part of the husband, specifying that he failed to resent insults offered to her by another in his presence, and gross neglect of duty, specifying failure to provide her suitable clothing.

      Wood, Miller c& Rolhenberg, for plaintiff in error.

      Bernsteen c& Berusleen, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Isabelle Thomas is the wife of Clayton Thomas. She brought suit in the court of common pleas for divorce and for alimony. The ease being pending in the court, she made a motion for alimony pending the suit, and the court ordered such alimony paid to her.

It is suggested on the part of the defendant in error that this is not a final order, but we hold that it is, in such sense that error may be prosecuted to it here.

The error complained of is that the court allowed this alimony in a case in which the petition failed to state a cause of action for either divorce or alimony, and it is upon this question that the case is submitted to us.

Without determining whether such alimony could be allowed or not in a case where the petition failed to state a cause of action, it is sufficient for the purpose of this case to find, as we do find, that the petition, unchallenged by any motion to make it definite and certain, states a cause of action.

The petition avers*that the defendant was guilty of gross neglect of duty in this, that ever since said marriage of said plaintiff to said defendant, the said defendant has failed to provide for her a proper home, according to her station in life; that he has compelled her to live with his parents, refusing to keep a house himself, and although she has many times requested and demanded that he obtain a residence for himself and live apart from his folks, yet he has refused to do so, and still refuses so to do.

Plaintiff further says that during their married life he has failed to provide her with the necessary clothing, according to her station of life, and said plaintiff has been compelled to ask the bounty of her parents to obtain such clothing.

She says further that the defendant was guilty of extreme cruelty, in this, that be has refused to live apart from his folks, and that his mother has insulted said plaintiff repeatedly in both the presence of the defendant and callers, and that she (the mother) has made life unbearable for her, and that when she remonstrated with her husband on the conduct of his mother, he has taken sides with her against said plaintiff.

Without stopping to read further, we think that the petition construed liberally, as the statute requires us to construe it, sufficiently states a -cause of action. Doubtless it would be for the court mi the trial to determine whether the facts proved were such as to make the conduct of the defendant extreme cruelty or not. It depends somewhat on the circumstances of the'defendant, and is would depend largely, so far as insults and the like are concerned, what such insults consisted of. One can well conceive of insults which might be offered to a wife in the presence of her husband by another party, the failure to resent which might constitute extreme cruelty on the part of the husband, and one may easily conceive of the circumstances which would make the failure of the husband to provide suitable clothing for his wife both neglect of duty and extreme cruelty.

No motion was made in this case to require the plaintiff to make her petition definite and certain, and as against a demurrer, we hold that this petition would be good. * So finding, we affirm the judgment of the court below.