text:
    NO BAR RAISED BY FAILURE TO SET UP COUNTER-CLAIM.
    Court of Appeals for Cuyahoga County.
    Katherine Engel v. M. L. Rothman.
    Decided, March 6, 1916.

      Pleading — Action for Liquidated Damages Under a Contract — Defendant May Set Up Counter-Claim, or Waive It and Bring an Independent Action Thereon.

    A defense, where the same facts constitute a counter-claim, may he withheld without estopping the defendant from asserting his claim later, and having waived it at the expense of having the costs assessed against him, he may proceed upon his counterclaim in a separate action for equitable relief.

      B. J. Selzer, for plaintiff.

      F. G.'Scoit and M. L. Koblitz, contra.
    Carpenter, J.
    This ease comes into this court on appeal.
   It appears that the defendant, on the 14th day of May, 1915, recovered a judgment against the plaintiff, Katherine Engel, for $1,000, being the amount stipulated in her contract with the defendant Rothman as liquidated damages.

In her answer in that case she set up as her sole defense a denial of her ownership of the premises which she had refused to convey. Thereafter said defendant instituted an action in the court of common pleas to subject plaintiff’s property on Dennison avenue to the payment of said judgment. The present suit is brought by plaintiff to restrain the defendant from proceeding to enforce the collection of said judgment, and from issuing any order of sale, and that said contract may be declared null and void.

In her petition plaintiff sets forth the recovery of said judgment ; that her answer to the petition was solely a denial of her ownership of said premises, and alleges that the contract upon which said judgment was obtained and action thereupon founded, was procured by a conspiracy entered into by said defendant and one A. L. Simons, a real estate agent, acting in behalf of said defendant. That said Simons made various false representations to her which she was induced to believe, and relying thereon signed said instrument. The court below sustained the motion of said Rothman to dissolve the restraining order granted plaintiff upon the filing of her petition, and also sustained the general demurrer of said defendant to the petition, and the plaintiff not desiring to plead further, dismissed plaintiff’s petition.

The question which accordingly arises is whether the plaintiff is barred from maintaining this action by failing in her answer to set up as defensive matter the allegations in her present petition.

It is true that the general rule is that a party when sued Is bound to set up every defense, legal or equitable, or both, which he may have to an action, and effectually waives those not pleaded, but it is also true that a party having a counter-claim 's not compelled to set it up in the same action. He may waive it, and at the expense of having to pay the costs as provided by the General Code, may institute an independent proceeding.

It will be remembered that plaintiff in her answer in the former suit pleaded only that she was not the owner of the premises, thereby bringing herself squarely within the rule.

In the case of Loraine v. Long, 6 Cal., 452, the court say:

“Although a party may set up an equitable defense to an action at law, his remedy is not confined to that proceeding. He may let the judgment go at law, and file his bill in equity for relief. Our practice while it enlarges the field of the remedy does not take away pre-existing remedies by implication.”

In the case of Hill v. Cooper, 6 Ore., 181, on page 186, the court say:

“But we understand that respondent’s counsel do not strenuously contend that ITill might not have obtained the relief he now seeks in this suit, had he interposed the same as a defense by the way of a cross bill in equity to the action by Cooper against him to recover the possession of this land. But counsel for respondent now insists that having a right under the statute to interpose this equity in that action, appellant having failed to avail himself of such a defense, can not now, after having asserted in his answer in that action that he was the owner of the fee simple title, and that having been determined against him, come and assert his equity derived through the deed from Stratton to Patton. It is insisted by the counsel for respondent that it is the duty of a party defendant, who has an equitable defense to an action at law, to interpose the same by way of cross bill, as allowed by the code, and if he fails to do so, his right is lost and the determination of the action at law against him, will forever bar his equity. "We think it was not the intention of the statute to place defendants in a worse position by giving them a right to interpose equitable defenses in legal actions than they were before. It was the intention of the statute to simplify legal proceedings and save expenses to litigants and at the same time save to them all their former remedies, if they saw fit to omit them. And such a construction has been given to a similar statute in other states. We think the proper construction of this statute is that it confers on a defendant in an action at law, the privilege to interpose an equitable defense if he has one, but that if he fails to so interpose, he may avail himself of his equity after a judgment against him, in the same manner as before this statute was enacted.”

In the ease of Witte v. Lockwood, 39 O. S., 141, the syllabus is as follows:

“1. The general rule is that a defendant is bound to set up every defense, legal or equitable or both, which he may have to the action, and waives those riot pleaded; but where the facts claimed to afford a defense are sufficient to constitute a counterclaim, there is an exception to such general rule.
“2. A defendant relying solely on his legal title, in an action to recover the possession of real property, and failing, is not estopped to maintain an action to correct mistakes in the deeds under which the parties to such action respectively claimed. He has his election to rely on such equitable title as a defense of a counter-claim, or he may maintain an action thereon.”

In its opinion the court say, at page 144:

“The inference that a defense, where the same facts constitute a counter-claim, may also be withheld without estopping the defendant, seems to be irresistible. It follows that Witt had his election to plead his equitable title as a counter-claim of a defense, or reserve it as he has done, for a separate action. The New York code of civil procedure, from which ours is largely borrowed, had received a construction in accordance with the view here expressed, before the adoption of our code (Halsey v. Carter, 1 Duer., 667). Mr. Pomeroy.in his able work on the modern codes of civil procedure, states the rule in the same way (Remedies & Rem. Rights, Section 804); and we are led to the conclusion, after a laborious examination of the cases, that the position is impregnable.”

Under the foregoing authorities, we regard the rule as pronounced therein, as applicable to the facts of the ease at bar, and fully answers the question at issue in favor of the plaintiff, and the demurrer will be overruled.

Meals, J., and Grant, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    PASSENGERS AND INTENDING PASSENGERS DISTINGUISHED.
    Court of Appeals for Stark County.
    Jane Sinnock, Administratrix, v. The Pennsylvania Company.
    Decided, 1916.

      Charge of Court — As to the Degree of Care Due an Intending Passenger hy a Carrier.

    Whether an intending passenger, who is in and about the depot awaiting the arrival of the train he desires to take, is a passenger and therefore entitled to the highest degree of care, is a question which should be submitted to the jury under proper instructions; and to charge the jury that one injured under such circumstances was a passenger at the time of his injury constitutes prejudicial error.
   fbrneding, J. (sitting in place of Shields, J.).

A careful examination of the errors complained of in this case leads to the conclusion that the trial court in its charge to the jury omitted to distinguish between the degree of care a railroad company owes to an intending passenger in and about its station awaiting the arrival of a train, and a passenger actually aboard one of the railroad company’s cars.

An intending passenger has to a greater or less extent control over his movements and can therefore exercise corresponding precautions to protect himself from danger. To this end, it becomes the duty of the common carrier to provide such station accommodations as are reasonably safe for persons exercising ordinary care.

When a passenger is actually aboard a train, he has substantially no control over his movements; he has, in effect, wholly surrendered himself to the care and .control of the carrier, and the carrier must therefore exercise the highest degree of care to protect him (21 C. C., 288). This court followed this rule in the former hearing of this case.

The trial court in the present hearing charged, the jury as follows:

“If you should find from the evidence in this ease that John Sinnock went to the station that morning for the purpose of taking train 26 to Youngstown, and was upon the depot platform and went there for that purpose, he was a passenger, and if he was a passenger he was entitled to that degree of care which the law imposes upon a railway company which is the common carrier of passengers, and that degree of care, gentlemen, is the highest degree of care. ’ ’ * * *

We are unable to escape the conclusion that such instruction was of such character as to prejudice the rights of the railroad company in imposing upon it a higher degree of care than was required.

As a matter of fact, the evidence tends to prove Sinnock was not a passenger upon any.train. It is admitted he intended to board a train as a passenger, but whether he was or was not a passenger, we think was a question to be submitted to the jury under proper instructions. The court in effect announced in his charge to the jury that he was a passenger, and therefore entitled to the highest degree of care, and this, we think, was error.

The judgment of the court of common pleas will therefore be reversed, and the cause remanded for a new trial.

Powell, J., concurs'; Houck, J., dissents.


author: Jones (Oliver B.), J.

text:
    PROCEEDINGS IN ERROR. TO THE FINDINGS OF A REFEREE.
    Court of Appeals for Hamilton County.
    John Bryan v. D. DeMott Woodmansee.

    Decided, February 28, 1916.

      Bill of Exceptions — Embodying Proceedings Before a Referee — How a Review May be Had — Effect of Striking Bill from the Files.

    1. In order to review the findings of a referee on the evidence, a motion for a new trial must be filed and when overruled a bill of exceptions prepared and filed with the referee for his allowance and signature thereto, and a motion lies to strike from the files a bill of exceptions purporting to embody proceedings before a referee but in no way authenticated by him or by the judge of the court in which the referee’ was appointed.
    2. The fact that the granting of such a motion leaves no bill of exceptions before the court does not authorize a dismissal of the petition in error, but the record as it stands, with the bill of exceptions excluded, showing no substantial error, the judgment will be affirmed.

      Keifer & Keifer and Hosea & Knight, for plaintiff in error.

      Chas. W. Bciker and W. B. Collins, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, June 6, 1916. •

   Jones (Oliver B.), J.

Each of the two actions which were consolidated into one before trial in the superior court, was brought for an accounting between the parties as to sundry transactions in which Bryan had furnished to "Woodmansee sums of money from time to time to be invested for his benefit. Certain investments had been made by "Woodmansee, and money had been repaid by him on account of principal and of interest or income, and he claimed to have fully accounted to Bryan, and offered to convey and transfer to him certain real estate, notes and other property still in his hands resulting from said investments. Bryan however refused to accept said property and insisted that Woodmansee’s account was not true and complete and that he should be held for all money received together with interest thereon; that he had guaranteed all investments made by him and should himself stand for and make good all losses that had occurred, and that he should be allowed no fees for any services rendered.

After the cases were consolidated and ordered to proceed under the case in which Bryan was plaintiff and Woodmansee defendant, and the issues had been made between the parties, on February 28, 1913, a receiver was appointed to take charge of certain property and securities and the case was referred to a referee to hear the testimony and report separate findings of fact and law.

The cause was duly heard by the referee, who filed his report April 13, 1914, finding on the facts that there was nothing due from Woodmansee to Bryan, but that allowing him reasonable attorney’s fees for services rendered, his credits would be $1,000 in excess of all proper charges against him, for which excess no judgment was prayed; and that as a matter of law, all possible claims in favor of Bryan were barred by the statute of limitations ; and that the costs should be equally divided between the parties.

April 14, 1914, defendant filed a motion to confirm the report of the referee, and for judgment. April 17, 1914, plaintiff filed a motion to set aside the report of the referee. March 12, 1915, the report of the referee was confirmed, except that all costs were taxed against plaintiff, and judgment was entered for defendant.

April 19, 1915, a bill of exceptions was filed by plaintiff, in the court, which was allowed and signed by Judge Pugh. It appears to contain testimony and other evidence in the form of numerous exhibits,- had before the referee, but it is not signed or in any way authenticated or certified to by him, nor is the certificate of Judge Pugh to that effect; nor does it show that any of the evidence was directly heard in court before him.

Error proceedings are prosecuted here from the judgment of the superior court. The matter comes before this court now (1) Gn a motion of.defendant in error to strike the bill of exceptions from the files, and (2) on a motion to dismiss the petition in error.

(1) A trial before a referee proceeds as before a court, and his decision “may be excepted to and reviewed as in a trial by the court.” G. C., 11479. To review the findings of the referee on the evidence it is therefore necessary to file a motion for a new trial with such referee, and upon its being overruled, to prepare and file with the referee a bill of exceptions and secure his allowance and signature thereto. Guthrie v. Augusta Milling Co., 17 C. C., 257; Woodward v. Brockell, 21 C.C.(N.S.), 223, and cases cited.

It is contended, however, by counsel for plaintiff in error, that the referee in this case was without power because he was not appointed under G. C. 11475 by consent of the parties, but under G. C. 11476 by the court alone without the consent of the parties; that the action being for the recovery of money, was one in which plaintiff was entitled to a trial by jury, therefore the court had no power to appoint a referee without consent of parties.

The entries referring the ease are as follows: -

February 28, 1913:

“And upon application and consent of parties and to expedite the hearing and disposition of the cause, the case is referred to William P. Rogers, as referee to take the testimony of parties and witnesses and to receive and consider in addition thereto any depositions of non-resident witnesses that have been or may be taken by the parties in the usual form upon due notice, and upon completion of the evidence and arguments submitted, to return all the evidence so taken and received, to the court with separate findings of law and fact thereon, for final disposition by the court.
“Consent: John Bryan by Hosea & Knight, Attys.”

May 10, 1913:

“The court on its own motion hereby appoints William P. Rogers as referee herein, who was duly sworn and qualified to hear testimony and report the testimony and his findings of fact and law to this court, together with all other matters and things in question or pertaining to this cause with all convenient speed; said referee is hereby granted authority and power to compel the attendance of witnesses and the production of such documents as may be necessary to carry out the purpose of this order. ’ ’

It will be observed that there is no practical difference in the orders so far as the powers or duties of the referee are concerned. ’The first order not only recites the consent of the parties, but also has the written consent of plaintiff. This is not in any way withdrawn, nor does the later entry revoke or cancel the former one, and as both entries were permitted to stand, it is probable that the later entry was made only for the purpose of showing the fact of the referee’s acceptance and qualification. Then, too, the action as framed was one invoking the equity powers of the court, both parties praying for an accounting, and was triable to a court and not to a jury. Plaintiff made no demand for a jury and took no exception to the appointment of a referee, but appeared and proceeded to trial before him without objection.

It is also urged on behalf of plaintiff in error that while Mr. Rogers was called a referee he was in fact a special master commissioner, and that therefore it was proper in this case to take the bill of exceptions before the court instead of before the referee. The difference between the powers of a referee and a master commissioner is set out in the statute and is adverted to in the cases above cited, and is discussed by the General Term of the Superior Court in Williams v. Stevens, 1 C. S. C. R., 176. There is no question but that the appointment made in this case was that of a referee and not a master commissioner. This was recognized too late by counsel for plaintiff when on May 7, 1914, they filed the following motion to re-refer to the referee conditionally :

“Now comes the plaintiff and pending the consideration by the court of the motion to reject the report of the referee in this cause, and, conditional upon the overruling of said motion, in whole or in part, moves the court as follows:
“First, that, in the event of said motion to reject, being overruled in whole or in part, the court re-refer the said report to the referee to enable the plaintiff to make a motion for a new trial before said referee and to enable the plaintiff to make exceptions and prepare a bill of exceptions and have the same signed according to law by said referee.
“Second, and the plaintiff asks that said referee, in the event of a motion for new trial being made, and exceptions having been taken and settled as indicated as above, return said report with said motion and bill of exceptions duly signed to this court for further action.
“ (Signed) John Bryan, plaintiff, by Keifer & Keifer,
“Hosea & Knight,
“His Attys.”

The motion to strike the bill of exceptions from the files is therefore granted.

(2) The fact that this leaves no bill of exceptions before the court, however, does not authorize the court to dismiss the petition in error, and the motion to dismiss is overruled.

But the entire record, with the bill of exceptions excluded, fails to show any substantial error to the prejudice of plaintiff, and the judgment is therefore affirmed.

Jones (E. IT.), P. J., and Gorman, J., concur.


author: Pollock, J.

text:
    WILL CONTEST MAY BE DETERMINED BY NINE JURORS.
    Court of Appeals for Harrison County.
    H. L. Slemmons et al v. Julia A. Toland et al.
    Decided, April Term, 1916.

      Wills — Actions to Contest Validity of — Verdict by Three-fourths or More of the Jury Sufficient — Order in Which Signatures are Affixed to a Will Not Essential.

    1. Article I, Section 2, of the Constitution, and Section 11455 of the General Code, includes actions to contest the validity of a will, and a verdict in such actions may be rendered upon the concurrence of three-fourths or more of the members of the jury.
    2. A will, otherwise regularly executed in conformity with the provisions of Section Í0505 of the General Code, is not invalidated by the fact that one of the subscribing witnesses to the will signed as a witness before tbe testator signed tbe will, where tbe signing was one continuous transaction.

      Healea & Kinsey and A. 0. Barnes, for plaintiffs in error.

      P. W. Boggs, B. E. Minteer and Wesienhaver, Boyd & Brooks, contra.
   Pollock, J.

Plaintiffs in error commenced an action against the defendants in error in the common pleas- court of this county to contest the validity of the will of Elizabeth Slemmons, deceased, which will was on August 1st, 1914, duly probated in the Probate Court of Harrison County, Ohio, and an issue was made up whether of not the writing produced is the last will of Elizabeth Slemmons.

A trial was had in the court of common pleas, which resulted in a verdict sustaining the will. This action is prosecuted to reverse the judgment thereon rendered for errors which the plaintiffs claim occurred in the trial of the cause in the court below.

The court charged the jury that three-fourths or more of their number could return a verdict, and the verdict returned by the jury was concurred in by only ten of the jurors.

Article I, Section 5, of the Constitution of this state is as follows:

“The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed, to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.”

Section 11455 of the General Code, which was amended after the adoption of this provision of the Constitution in order to give effect to the Constitution, provides, in so far as it refers to this question, that:

“In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number. The verdict shall be in writing and signed by each of such jurors concurring therein. ’ ’

The plaintiffs contend that the Legislature only provided for a verdict by three-fourths of the jury in a civil action, and that the contest of a will is not a civil action but a proceeding provided by statute. That the term “civil actions” in this section embrace only such cases as were before the code known as actions at law and suits in equity. The General Code, Section 11237, defines an action as follows:

“An action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment or decree, by which a party prosecutes another for the redress of a legal wrong, enforcement 'of a legal right, or the punishment of a public offense.”

And Section 11238 provides that:

1 ‘ There shall be but one form of action, to be known as a civil action. This requirement does not affect any substantive right or liability, legal or equitable.”

Thus it appears that a “civil action” includes all ordinary proceedings involving process, pleadings, and ending in a judgment which finally determines the matter in controversy between the parties before the court.

In Webb v. Stasel, 80 Ohio St., 125, Shauck, Justice, said:

“It hás long been familiar to counsel that the civil action of the code includes all such proceedings as prior to its enactment were regarded either- as actions at law or suits in equity, and rights of action since authorized by statute unless the authorizing statute itself defines a mode of enforcing the right at variance from the procedure prescribed-by the code.”

We are not left to the general provisions of the code to determine the character of the proceeding to contest the validity of a will, but Section 12079 provides that a person interested in a will or codicil that has been admitted to probate may contest its validity by a civil action in the common pleas court.

The Legislature by this section of the code has provided the action by which parties interested in the distribution of an estate, which, has been disposed of by will, may contest the validity of the will in the common pleas court. We have never had any constitutional limitations on the mode of procedure in actions of this nature, but the kind of action has always been fixed by legislative enactments.

By the act of February 26, 1824, it provided that the contest of the validity of a will should be by a bill in chancery. This mode continued until the adoption of the civil code and the act of March 14, 1853, relating to the jurisdiction of the probate court, where the right to contest the validity of a will was authorized by petition to the court of common pleas of the proper county. Since that time the act above referred to has been amended, and we now have Section 12079 of the General Code, providing that the remedy may be by a civil action. The contest of the validity of a will is now a civil action, and the trial proceeds under the civil code, except where changed by the code in the chapter providing for the contest of wills, and then the trial must proceed in conformity with such special proceedings. Dew et al v. Reid et al, 52 Ohio St., 519.

In Wagner v. Ziegler, 44 Ohio St., 59, Justice Spear said:

“The statute provides the order in which the testimony shall be introduced, gives legal effect to the will and order of probate, and requires the case to be submitted to the jury. In other respects the trial is to be conducted as other jury trials are conducted; and it is the duty of the court in that case, as in other cases, to give proper instructions to the jury.”

The only special statutory provision relating to the contest of the validity of a will is the requirement in regard to the issue — that it must be made up either by pleadings or by order on the journal, the legal effect of the order of probate of the will, and the order that the testimony shall be introduced; in all other respects the trial shall proceed as other civil actions.

We find no special requirement in regard to the verdict of the jury; and the provisions of the Constitution in regard to the verdict of the jury in civil cases, and the statute enacted to carry into effect that provision, controls in actions for the contest of the validity of wills.

There was no error in the court charging the jury that a verdict should be returned by the concurrence of three-fourths or more of the jury.

The plaintiffs further claim that the trial court erred in giving defendants’ request to charge before argument. The request charged is as follows:

1 ‘ If you find that the paper writing purporting to be the last will and testament of Elizabeth Slemmons was signed 'by her in the presence of the two witnesses, S. M. Farnesworth and Catharine A. Case, and that said witnesses signed the same in the presence of the testatrix, then I charge you that as to whether the testatrix signed her name before or after the witnesses had signed their names thereto is wholly immaterial.”

There was testimony tending to prove that S. M. Farnesworth, one of the witnesses to the will, signed his name to the will as a witness before Miss Slemmons, the testatrix, had signed the will; that she signed immediately after this witness; that the will was then signed by the other witness, all one continuous and uninterrupted transaction, and in the presence of each other.

The provision of the code, Section 10505, regarding the execution of wills is as follows:

“Except nuncupative wills, every last will and testament must be in writing, but may be handwritten or typewritten. Such will must be signed at the end by the party making it, or by some other person in his presence and by his express direction, and be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe or heard him acknowledge it.”

In order to make a valid will the code requirements must be followed, and one of the essentials to the execution of a will is that it must be attested and subscribed in the presence of the testator by two witnesses, who either saw him subscribe or heard him acknowledge signing the will. The question then arises whether, if the witness to the will signed before the testator had signed, is it an attesting and subscribing as required by this statute ?

This question first came before the English courts in a construction of Act 1, Viet., C. 26, Section 9. There it was held that it was necessary to the validity of the will that the testator sign the will before the witnesses signed. The provision of the English act was similar to the act of this state quoted above.

Some of the courts of this country have followed the decisions of the English courts, notably the New York Court of Appeals in Jackson v. Jackson, 39 N. Y., 153, and followed by that court in later decisions.

The Supreme Court of Massachusetts has also given a similar construction to the statute of that state in Barnes v. Chase, 208 Mass., 490 (94 N. E., 694).

The courts of Georgia have placed a like construction upon their statute. Lane v. Lane, 125 Ga., 368 (54 S. E., 90).

But the courts of many of the other states have placed a contrary construction upon the statutes of their respective states providing for the execution of a will.

“The view that seems to have the weight of modern authority is that ‘in acts substantially contemporaneous it can not be said that there is any substantial priority, ’ and that where the execution is completed at one transaction it can not be held that the will is rendered invalid because one or more of the witnesses signed before the testator.” Page on Wills, Section 222.

The principle announced by Page has the support of the following cases: O’Brien v. Gallagher, 25 Conn., 229; Gibson v. Nelson, 181 Ill., 122 (52 N. E., 901); Sechrest v. Edwards, 61 Ky., 163; Lacey v. Dobbs, 44 Atl., 481; Cutler v. Cutler, 130 N. C., 1 (40 S. E., 689) ; Miller v. McNiel, 35 Pa. St., 217 (78 Am. Dec., 333); Kaufman v. Caughman, 49 S. C., 159 (27 S. E., 16); In re Silva’s Estate, 145 Pac., 1015; Horn’s Estate v. Bartow, 125 N. W., 696; In re Shapter’s Estate, 35 Col., 575 (85 Pac., 688).

The object of requiring the execution of wills in order to render them valid to conform to a statutory formula, is to prevent fraud upon heirs at law in the distribution of the estate of their ancestors, and courts in the construction of these provisions should have this object in mind, and should not place such a liberal construction, in order to sustain tbe execution, that the object of the statute would be destroyed. But when all the provisions of the statute are followed, the order in which the signatures of the testator and the witnesses are affixed to the will is not essential.

The Supreme Court of Kentucky in Sechrest v. Edwards, supra, say:

“Nor can it be material whether the names of the attesting witnesses or that of the testator should have been first subscribed, if, as in this case, the witnesses had been present when the testator * * * wrote his name, and, being called for that purpose, actually witnessed * * '* the fact.”

The statute does not expressly provide the order in which the signatures of the testator and the witnesses shall be subscribed to the will; all that it requires is that the will shall be attested and subscribed in the presence of the testator. If the persons who are present are told by the testator that he desires to execute his will by signing the paper writing, there present, and that he desires these persons to sign the paper as witnesses thereto, the order of signing is not essential, if the signatures of the testator and that of the witnesses are subscribed at one continuous transaction.

The chances of fraud or imposition in the execution of the will are not increased by reason of one of the witnesses signing before the testator, where the testator signs immediately thereafter, and in the presence of the witness, if the will is otherwise regularly executed.

Harsh and unnecessarily technical rules of construction should not be required in the execution of a will which may defeat the right to dispose of property by will, where the statute does not expressly imply such a requirement, and the formalities of the statute are substantially followed.

Miss Slemmons had a right to dispose of her property by will, and she should not be deprived of that right through some defect in the execution of her will, unless it is material.

Mr. Farnesworth, one of the witnesses to the will, is the only one who testified that he signed the will before the testatrix. He says he was called into the room where Miss Slemmons was; that after some talk with her regarding her desire to execute the will, and that she desired he be one of the witnesses, he took the paper and signed it, handed it to Miss Slemmons, and she signed and handed it to the other witness, and it was signed by that witness.

Other errors were urged by plaintiffs, but we do not find that any of them are well taken, and they are not of enough importance to merit further comment here. The judgment is affirmed.

Spence, J., and Metcalfe, J., concur.


author: Houck, J.

text:
    CONSTRUCTION OF AN ILLITERATE WILL.
    Court of Appeals for Knox County.
    Florence E. Miller v. William I. Cline et al.
    Decided, May 20, 1916.

      Wills — Construction to be Adopted — Where Evidently Drawn by a Layman — Unfamiliar With Grammatical Rules or Punctuation — Most Obvious Meaning Must be Bought and Adopted.

    The illiterate will involved in the instant case is construed by the court in the manner which gives to the words and sentences used the meaning which it seems most probable the testator intended to convey.

      L. G. Stillwell, for plaintiff in error.

      Oolurribus Ewalt, contra.
   Houck, J.

This is an action praying the direction of the court in regard to the construction of the last will and testament of Hugh A. Miller, deceased.

On the 20th day of December, 1907, Hugh A. Miller, then a resident of Clay township, Knox county, Ohio, made and executed a papér writing which he intended as and for his last will and testament. On the 20th day of March, 1908, the said Hugh A. Miller departed this life, leaving no issue or other legal representatives, but leaving his widow, Florence E. Miller, surviving him. On the 6th dáy of April, 1908, said will was duly admitted to probate and recorded in the Probate Court of Knox County, Ohio, the same being in the words and figures following:

‘ ‘ First. I desire that all my just debts add funeral expenses be paid as soon as practicable after my decease.
“Second. I give and bequeath to my beloved wife all of my property both real and personal consisting of the farm on which we now reside situated in clay Township Knox county. Ohio being eighty Six acres, and one farm containing one hundred and Sixty Six acres in Harrison Township Knox county Ohio during her natural life and all the Stock house hold goods furniture provisions and other goods and chattels which may be thereon and all moneys If any at the time of my decease without making any appraisement or Sale of Such property only as my wife deems best either public or private I make a request of my wife at the time Albert. Summit, a foster boy that we are raising If he still continues of being a good boy to both of us until he is twenty one years old for my wife, Florence E Miller, to give him Two thousand dollars in money If my wife Should marry again I want all of Said property to be and to be kept in my wifes name during her life and after my wifes death, I want the property If there Should be any, I give to Albert Summit one half of what is left, and the other half to be given to the Trustees of the Baptist Church of Martinsburg Ohio, for the benifit of Said Church as they think best.
“I nominate and appoint Florence, E Miller to be the executrix of this Will, without bond.”

We are required to construe this will in order to determine the nature and extent of the estates of Florence E. Miller, the surviving widow, the Baptist Church, of Martinsburg, Ohio, and Albert Summit, the foster son of testator. It will be observed from the language and punctuation used in said will that the scrivener was not skilled in tbe drawing of wills, and in all such cases the aim and object of the interpreting court is and must be, if possible, to dispel the effect of some careless, incorrect or ignorant use of language or improper punctuation on the part of the testator or his scrivener, and make the will interpret what the testator evidently meant and intended, just as though his ideas had been clearly and correctly stated and expressed therein.

The natural and literal import of the words and phrases used is presumed to have been intended, and each word is to have its effect and its usual meaning given to it, if the general intent be not thwarted thereby. Indeed, it is the duty of an interpreting court to deal lightly with errors of syntax and punctuation, where the testator did not write his own will, as in the instant case. The sole purpose of making a will is to express in written language the wishes of the testator and thereby carry out his intentions, and the only object of construction is to ascertain that intent, which must be obtained from the words used in the will. The inquiry is not, what thought did the testator wish to express by the language used, but what thought has he expressed by the words and sentences used in his will? The judicial expositor must interpret the language as it appears in the will, and therefore if the scrivener did not, by reason of lack of knowledge, inadvertence or carelessness on his part, use the language that would properly carry out the intentions of the testator in the disposition of his property, the responsibility is with the testator and not with the court, for its interpretation is based solely on the language as found in the instrument. The rule for the construction of a will in Ohio is well established, being as follows:

First. In the construction of a will the sole purpose of the court should be to ascertain and carry out the intention of the testator.
Second. Such intention must be warranted from the words contained in the will.
Third. The words contained in the will, if technical, must be taken in their technical sense, unless it appears from the context that they were used by the testator in some secondary sense.
Fourth. All parts of the will must be construed together, and effect, if possible, given to every word contained in it.
Fifth. In construing a will grammatical accuracy need not be obtained, but it should be read with a view to the situation and circumstances of the testator in reference to the subjects of his disposition and the objects of his bounty.
Sixth. With these eollateral aids to a correct interpretation the will must speak for itself, and the intention of the testator be gathered from what appears on its face.

While these rules are used in the interpretation of wills, yet to lay down any positive and definite rules of universal application in the interpretation of wills is impossible, for every will must stand or fall upon the language used therein and the test that is applied to it, and therefore courts are not inclined to follow rules of construction blindly, but interpret reasonably in each particular case. We feel that our theory as to the rule of construction applicable to the case at bar is fully borne out by our Supreme Court in the case of Moon, Admr., v. Stewart et al, 87 O. S., 357-358, where Judge Johnson, speaking for the court, says:

“It may be safely remarked that in the report of cases involving the construction of wills it is no longer necessary or profitable to discuss the various general rules which control the inquiry. They are well established, .simple and familiar. Rules for construing wills are less rigid than those for construing other instruments. Where a will bears the earmarks, as in this ease, of having been drawn by a layman, and not by a lawyer, the court in the endeavor to arrive at the intent of the testator will not view the language technically, but liberally, and with reference to its popular meaning. It is very rare that any two wills present precisely the same question, and therefore in construing doubtful clauses the court will ascertain the intention of the testator, as the language of such clauses may reasonably be interpreted in the particular case. It has been well said that cases on wills may well guide as to general rules of construction, but unless a case be directly in point in its essential circumstances and data, it should have little weight with the court.”

Giving to the language of the will under consideration that plain meaning that the words and sentences therein must certainly convey, and applying thereto the rules of interpretation as herein laid down, we can arrive at bnt one conclusion, and that is that the testator intended to dispose of his property as follows:

First. To Florence E. Miller, his surviving widow, a life estate in all of the real estate described in his will.
Second. To Florence E. Miller, his surviving widow, all of his personal property, including moneys, absolutely, subject, however, to the payment of his funeral expenses and just debts, if any.
Third. Under the terms and provisions of said will, Albert Summit is entitled to a legacy of two thousand dollars, providing he complies with the conditions imposed upon him in said will, the same to be a lien on the real estate described in the will, subject, however, to the life estate of Florence E. Miller, surviving widow of Hugh A. Miller, the testator.
Fourth. After the death of the widow, Florence E. Miller, and the payment of the legacy of two thousand dollars to Albert Summit, provided he complies with the conditions imposed upon him with reference to the said legacy, the one-half of said real estate described in said will shall go to and vest in the said Albert Summit, and one-half shall go to and vest in the Baptist Church, located at Martinsburg, Ohio.

Judgment and decree accordingly.

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


author: Jones (E. H.), P. J.

text:
    INEFFECTUAL EFFORT TO FILE A BILL OF EXCEPTIONS.
    Court of Appeals for Hamilton County.
    The D. T. Williams Valve Company, Robert E. Mullane and Frank X. Pund v. David T. Williams.

    Decided, May 8, 1916.

      Leaving a Bill of Exceptions with an Unauthorised Clerk — Not a “Filing” of the Bill — Inadequate Grounds for Appointment of a Receiver.

    1. The leaving of a bill of exceptions with some deputy in the employ of the clerk of courts not authorized to receive it, with instructions to said deputy to place it on file, does not amount to a filing of the bill, and a motion to require the clerk to stamp the bill as “filed” does not lie where not made until subsequent to the statutory time for the filing of a bill.
    2. It is error to grant a prayer for appointment of a receiver-where the appointment appears to be an end in itself, and is not ancillary to other and ultimate relief within the provisions of Sections 11894 and 11398, General Code.

      Frank II. Kunkel and Pogue, Hoffheimer & Pogue, for plaintiffs in error.

      Nelson B. Cramer and Charles W. Baker, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court June 6, 1916.

   Jones (E. H.), P. J.

This is a proceeding in error brought to reverse an order of the Insolvency Court of Hamilton County appointing a receiver for plaintiff, the D. T. Williams Valve Company, a corporation.

The appointment was made by the court below pendente lite, upon a motion for a receiver filed on September 18, 1915, contemporaneously with the amended petition upon which the action is based. Upon the day the cause was set for hearing in this court a motion was filed by the defendant in error to affirm the judgment and dismiss the petition in error, for the reason that no bill of exceptions had been filed and that the time within which same might be filed had expired. This was followed by a motion of plaintiffs in error asking the court to order the clerk to stamp the bill of exceptions as “filed” in the court of appeals. This latter motion was based upon the claim made by counsel that the bill of exceptions had been left in the hands of one of the deputies of the clerk of the courts, on duty in the insolvency court room, with instructions to have the same filed. It is claimed that this was in effect a filing of the bill of exceptions; that the stamping on the same was a ministerial duty only and it having been neglected the rights of plaintiffs in error could not be jeopardized thereby.

We find that this latter motion is not well taken. It does not appear from the evidence that the matters and things claimed by counsel for plaintiffs in error, admitting same to be true, amount to a filing of a bill of exceptions. The usual manner of filing papers is by taking them to the clerk’s office and there handing them to the clerk or one of his deputies. To grant this motion would be in effect to hold that it is only necessary to hand a paper or pleading or bill of exceptions to some one of the many deputies, stationed in the different court rooms, in order to make the filing complete. This would be an impractical and altogether dangerous rule to establish.

As already announced from the bench, the motion to affirm filed by defendant in error must be overruled, as the petition in error contains assignments of error not based upon the bill of exceptions. We refer especially to the first three grounds of error, which are as follows:

“1. That said court erred in overruling the demurrer of the D. T. Williams Valve Company, plaintiff in error.
“2. That said court erred in holding that it had jurisdiction to appoint a receiver upon the motion of defendant in error.
“3. That said court erred in holding that the facts set out in the petition in said cause were insufficient in law to justify the judgment and order appointing a receiver for the D. T. Williams Valve Company.” ’ '

These alleged errors we may pass upon without resorting to the bill of exceptions. And upon consideration we find that they are well sustained by the pleadings, journal entry of the court appointing the receiver, statutory provisions and several well-considered Ohio cases.

From an examination of the original and amended petition herein it seems clear that the pleader was seeking principally and primarily the appointment of a receiver for this concern. In each instance the prayer begins thus: “Wherefore plaintiff prays that a receiver be appointed,” etc. There is no authority in our statute for the appointment of a receiver except in a proceeding where some other relief is sought and as ancillary to such proceeding and incidental to the relief therein sought. A careful reading of the amended petition in this case must convince any one that there is no foundation laid, nor are there any facts stated which would justify any court in finding that it is desirable, necessary or advisable to dissolve this corporation and wind up its affairs.

It is true that the petitioner predicts dire things which are going to happen to this corporation if its present management is permitted to remain in charge of its affairs, but these statements are not predicated upon! allegations of indebtedness, insolvency or inability to meet its obligations which if proven would warrant a court in taking charge of or discontinuing the business of said corporation.

Mr. Williams, the plaintiff below, is a large stockholder, but he is the only one of the stockholders complaining in this action. Nearly all of the remaining stockholders, representing the majority of the stock, and many of the largest creditors of the concern have voluntarily appeared in this action to resist the prayer of the petition and of the amended petition, they having filed in the court below intervening petitions in which they pray for a dismissal of the amended petition and a denial of the relief sought therein.

The entry of the court below appointing a receiver is in the form of a finding of facts and of law separately stated. As its finding of fact the court says:

“that certain litigations concerning which orders hereafter will be made, should be begun by and on behalf of the defendant corporation in order to conserve and protect its interests; that there has not been a proper management and conduct of the business of said corporation; that there is danger of the assets and -property of said corporation being lost, wasted and dissipated, and there is likewise danger of its business being injured, depressed or diminished because of want of proper care, control and management; and all of this pending the determination of important questions of vital interests to the existence and welfare of the corporation and of its stockholders, minority as well as majority, to be determined on the final hearing of this cause, as well as determined in suits which may hereafter be ordered to be brought by the receiver in the interest and in behalf of the said corporation, and all of its stockholders, unless the matters pertaining thereto are settled and adjusted without suits or litigation; and that an injunction or injunctions issued by this court now would not be of any avail in protecting the property and the rights of the corporation and of the stockholders.” * ■* *

Following this the court proceeds to grant the motion for a receiver pendente lite, naming Mr. Philip 0. Geier as such receiver, and defining his duties. It must be presumed that the finding of the court that “there is danger of the assets and property of the said corporation being lost, wasted and dissipated, and there is likewise danger of its business being injured, depressed and diminished because of want of proper care, control and management” is based upon evidence offered in support of the allegations of the amended petition. These allegations have reference to certain transactions of the corporation through its officers, chief among which are the purchase of an automobile and accessories therefor for personal use, and the issuance of a certificate of one hundred and fifty shares of stock to one D. M. Fórker, which certificate was pledged with the Sharon Savings & Trust Company as security for a loan of $15,000, which sum was loaned to and used by the corporation, and the obligation to the bank assumed by it.

Assuming that all these allegations were fully and unqualifiedly proven, we are of the opinion that such a showing would not warrant the finding that there was danger of the assets and property of the said corporation being lost, wasted and dissipated, and the other dire things contained in the finding and decree of the court below. The allegations of the amended petition, in other words, are not sufficient to constitute a cause of action for a dissolution of this corporation, the sale of its assets, the closing up of its business and distribution of the proceeds among the stockholders.

As above stated, we do not understand from a reading of the petition and the amended petition that such a result is really contemplated or sought by the plaintiff in instituting this proceeding. Nor does it appear from the entry of the court below that in making the temporary appointment of a receiver the court had determined that it was necessary or in the interest of the stockholders to so dissolve the corporation and terminate its business. There is no authority in the statute or elsewhere in the law for the appointment of a receiver pendente lite as made by the court below, with the powers and duties with which this receiver was entrusted. In order to appoint a receiver, either permanently or pendente lite, there must be first a finding by the court that the case is one in which under the statute a receiver may be appointed. In an action against a corporation before a receiver can be appointed the case must fall within the provisions of Sections 11894 or 11398, General Code. Courts will not and should not appoint a receiver unless in a proper action for other and ultimate relief the appointment of such receiver is necessary and ancillary to the main and ultimate relief sought. The naming of a receiver is not regarded as an end in itself, but only as a means to better secure a necessary and ultimate end.

In support of this view we will refer, without quoting therefrom, to the case of Cincinnati, Hamilton & Dayton Railroad Company v. George K. Duckworth, 2 C. C., 518; also to a decision of this court of appeals in Wiedemann Brewing Co. v. Herman, 20 C.C.(N.S.), 187; also, Callahan v. Ice Co., 13 C. C., 479; 34 Cyc., 29; Cherry v. Maumee Cycle Co., 64 O. S., 214; C., S. & C. R. R. Co. v. Sloan, 31 O. S., 1.

The amended petition below not having stated a canse of action, the demurrers to it should have been sustained, and for error in not sustaining the same the judgment of the court below will be reversed.

We are further of the opinion, inasmuch as the entry of the court below purports to be and is in effect a finding of fact upon which the conclusions of law are based, concluding with the naming of a receiver, that the judgment of the court below is contrary to law, as is made evident by such finding and decree.

Judgment reversed and cause remanded.

Jones (Oliver B.), J., and Gorman, J., concur.


text:
    RESTORATION OF LIEN UNDER. A MORTGAGE INADVERTENTLY RELEASED.
    Court of Appeals for Stark County.
    Daniel Mossop v. J. W. Bidwell et al.
    Decided, January Term, 1916.

      Mortgage — Transferred as Collateral Security — And Inadvertently Released Toy the Transferee — Notation of Release on Mortgage Record Canceled and Lien of the Mortgage Restored — Notice as to Limited Transfers.

    Where the transfer of a mortgage, which is being used a/s collateral security, is not absolute on its face, but is of such a character as to clearly show it is. a limited transfer, sufficient notice is afforded to one examining the title to the premises described in the mortgage that the transferee is not the absolute owner and has no right to release it of record, and a notation on the mortgage record, placed there by the mortgagee and inadvertently made in the form of a full release, should be stricken therefrom and the precedence of the lien originally attaching to such mortgage fully restored.

      Amerman <& Mills, for plaintiff.

      C. C. Upha/m and Floyd & Ywtzey, contra.
   Houck, J.

This cause is here on appeal from the common pleas court of this county. The plaintiff claims in his amended petition that J. W. Bidwell and his wife, Ida Bidwell, are indebted to him in a sum amounting to about $2,150, with interest, due to him on a mortgage note of $3,900, the said note and mortgage bearing the date of September 1, 1909; that said mortgage was duly filed for record in the recorder’s office of Stark county, Ohio, on the 3d day of September, 1909, and that said mortgage is the first and best lien on the real estate described therein. That on the 22d day of November, 1910, he assigned said mortgage as per the terms of a written contract as collateral security to the StarkTuscarawas Breweries Company, a corporation; that after-wards, on the 19th day of July, 1912, he paid and fully discharged all his indebtedness to said breweries company, and while said mortgage was in full force and effect as between him and the mortgagees, the said breweries company, by mistake on its part and without the knowledge of plaintiff, placed a notation on the mortgage record of said mortgage in the recorder’s office of Stark county, Ohio, which he claims was only intended as a release of said assignment of said mortgage as collateral security to said breweries company, but by inadvertence and unintentionally the said breweries company placed the usual notation of a full release thereon. Plaintiff further asks that certain mortgages on said premises, one of $835, bearing date of May 14th, 1912, and one for $1,801, bearing date of September 30th, 1913, held by the Superintendent of State Banks of Ohio be declared inferior and subsequent to his said mortgage lien, and in fact prays that they be canceled and held for naught.

The defendant, the Superintendent of Banks of the State of Ohio, by answer denies all of the material allegations in the amended petition of plaintiff, and especially avers that by reason of the notation made on the margin of the record in said mortgage record containing the recording of said plaintiff’s mortgage by the said breweries company that the same was released of record, and that by reason thereof the mortgages heretofore mentioned of said Superintendent of Banks of the State of Ohio are the first' and best liens on the real estate described therein, and further that the said pretended lien of plaintiff on his alleged mortgage is and has no force and effect in law.

The only issue in this case, as we view it, is as to the legal effect of the transfer and notation thereon of the Daniel Mossop mortgage, in the light of the facts as shown by the evidence and the law applicable thereto, the notation on the mortgage record being as follows:

“Canton, Obio, Nov. 22, 1910.
“For a good and valuable consideration I hereby sell, assign, convey and transfer all of my right, title and interest to the within note and mortgage to the Stark-Tuscarawas Breweries Company, a corporation, per the terms and conditions of a contract of even date herewith, by and between the parties hereto.
“Daniel Mossop.
“Copied from original mtg. Nov. 22, 1910.
“M. E. McFarren, Recorder, by G.”
“Canton, Ohio, July 19, 1912.
“This is to certify that the conditions of this mortgage have been satisfied.
“The Stark-Tuscarawas Breweries !Co.
“By John F. Weiss, Sec’y & Treas.
“W. E. McFarren, Recorder. Copied from original mtg. 7-9-12. ’ ’

From an examination of the language contained in the above transfer it will readily be seen that it is a conditional or limited transfer, and is not absolute and entire. In other words, the transfer is in extent and scope limited (using the language there) “per the terms and conditions of a certain contract of even date herewith by and between the parties hereto” (referring to the plaintiff and the breweries company). The only right the breweries company had in and to the mortgage was that given to it by the transfer, and when it attempted to release it, whether inadvertently or otherwise, it did so without any authority in fact or in law as between the rights of the mortgagors and mortgagee. We think the language in the transfer is of such a character and nature, and not being absolute on its face, but being a limited transfer, wbieb is clearly patent by tbe language contained therein, is sufficient notice to persons examining the title of the premises1 described in said mortgage to know that the transferee of same is not the absolute owner thereof, and has no right to release it of record. The evidence in this ease clearly shows, and in fact it is undisputed that the representative and agent of the Superintendent of State Banks who examined this title made no inquiry as to any contract, and made no examination as to whether or not the same was of record, although at this time the contract referred to in said transfer was of record and could have been found in Yol. 482, page 153, of the mortgage records of Stark county, Ohio. An examination of the contract would have disclosed the fact that the breweries company was not the owner of the mortgage in question, and was without authority to release the same.

We think it is a well settled principle of law that whenever a party has information or knowledge of certain extraneous facts which of themselves do not amount to nor tend to show actual notice, but which are sufficient to put a reasonably prudent man upon inquiry respecting a conflicting interest, claim or right, and the circumstances are such that the inquiry if made and followed up with reasonable care and diligence would lead to a discovery of the truth, and a knowledge of the interest, claim or right which really exists, the party is absolutely charged with a constructive notice of such interest, claim or right, and the presumption of knowledge is then conclusive.

In view of what we have already said we think that the law and equities are in favor of the plaintiff, and that he is entitled to the relief pray'ed for in his petition, and that said notation on the mortgage record, placed there by the said breweries company, should be stricken therefrom and held for naught, and that judgment be entered in favor of the plaintiff on his note, with interest, and said real estate described in the amended petition be sold, and the proceeds first applied to the judgment of plaintiff.

Judgment and decree accordingly.

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


author: Gorman, J.

text:
    PROOF OF NOTICE TO CITY OF DANGEROUS CONDITION IN STREET.
    Court of Appeals for Hamilton County.
    Etta M. Dietz v. the City of Cincinnati.

    Decided, February 28, 1916.

      Charge of Court — As to Evidence of Constructive Notice — Previous Accident at the Same Place and from the Same Cause — Competent as Tending to Show Knowledge of the Municipality of the Existence of a Dangerous Condition.

    In an action against a municipality for injuries from falling into a manhole alleged to have been covered with a lid which tilted when stepped upon, it is prejudicial error to charge the jury that evidence to the effect that other persons had fallen into the same hole, previous to the accident to plaintiff, could not be considered for the purpose of showing constructive notice to the city of the defective and dangerous condition of said lid.

      Thos. L. MicMe, James J. McCartin and E. P. Karch, for plaintiff in error.

      Walter M. Schoenle, City Solicitor,' Saul Zielonka, Assistant City Solicitor, contra.

      Motion to require the Court of Appeals to certify its record overruled by the Supreme Court, May 22, 1916.

   Gorman, J.

Plaintiff in error brought an action against the defendant in error in the Superior Court of Cincinnati to recover damages for personal injuries claimed to have been sustained by her by the turning of an iron lid or covering on the manhole of a sewer inlet on the sidewalk on Watson street in the city of Cincinnati. She claimed that in walking along the sidewalk she stepped on the side of this iron covering, and by reason of the same being defective and worn it turned under her foot, causing her to be thrown into the manhole, resulting in serious injuries. A verdict was returned for defendant and judgment was entered thereon, and error is prosecuted to this court to reverse the judgment.

The bill of exceptions before us does not purport to contain all the evidence, but is in the short, narrative form. It recites that the evidence tended to show that on two different occasions before the date of the fall suffered by the plaintiff, to-wit, December, 1911, and- four years prior to the trial, other persons had stepped upon the said lid, and it had turned and caused them to fall, and that said lid and sewer inlet were in practically and substantially the same condition when the plaintiff fell as the lid had been at the different times when it had tilted, on former occasions and caused other persons to fall when it was stepped upon.

Objection is made to the general charge of the court with reference to this evidence. The language of the court referred to is as follows:

"There was certain evidence in this case tending to show that other persons had fallen through this sewer top, and the time of such incidents was given in the testimony of certain witnesses. I will say to you that the fact, if fact it be, that certain persons had fallen at prior dates does not tend to show notice to the city of Cincinnati of a condition of defect, or of any condition at that time. This evidence you will take as bearing only upon the question of whether or not, if you find the defect to have existed at the time of plaintiff’s accident, such defect did actually exist at these prior times. In other words, the testimony, to which I refer bears not upon notice to the city, but bears, as I say, upon the condition of the sewer top and the length of time for which such condition existed.”

A general exception was taken to the charge of the court, and the sole ground of error complained of is that that part of the general charge above set out was prejudicial to the plaintiff in error, and requires a reversal by this court of the judgment below.

In the case of Village of Ashtabula v. Bartram, 3 C. C., 640, it is held that:

"Testimony that other vehicles and persons had been precipitated down the hill, at the point in question, at other and prior times, and when tbe fence was in tbe same condition substantially as when the accident to the plaintiff occurred, is, in such case, admissible to prove the dangerous character of the place for want of such barrier, and knowledge thereof by the defendant; but not to prove negligence on the part of the defendant, nor care and prudence on the part of the plaintiff.”

In Brooklyn Street Ry. Co. v. Kelley, 6 C. C., 155, it was held:

“It is proper to show that other ears had left defendant’s track at or about the place where the accident complained of occurred, for the purpose of showing notice to defendant of the liability of cars to leave the track at that point, and also of showing the dangerous condition of the track at that point.”

In City of Circleville v. Sohn, 20 C. C., 368, it was held:

“ In an action against a municipal corporation to recover damages for an injury alleged to have been caused by slipping and falling at an alley crossing, and evidence having been offered tending to show that the alley crossing had been substantially in the same condition for a number of years, and that during that time divers persons had slipped or fallen at that point, the court should at the time said testimony is received, then instruct the jury that such testimony can only be used by them for two purposes: first, as tending to show the defective condition of the alley crossing, at the point where the plaintiff claimed to have received her injury; and, second, as tending to show that the city authorities had knowledge or should be charged with knowledge of such defective condition.”

The same rule is laid down in Brewing Co. v. Bauer, 50 O. S., 560, where the court says:

‘‘ Such evidence is only competent to prove the defective character of the machine, and the employer’s knowledge of the fact.”

The same rule is laid down in the following cases: Evans v. Erie R. R. Co., 213 Fed., 133 (a decision of the U. S. Circuit Ct. of App. of this Dist.); Dist. Columbia v. Armes, 107 U. S., 519; Chicago & N. W. Ry. Co. v. Netolicky, 67 Fed., 665; Patton v. Southern Ry. Co., 82 Fed., 979.

It would appear that the trial court erred in limiting the evidence above referred to, to show the condition of the manhole top at the times when other persons claimed to have fallen at this place, and specifically charging the jury that they could not consider this evidence for the purpose of showing knowledge on the part of the city authorities.

We are further of the opinion that this error was so prejudicial to the plaintiff, who was endeavoring to establish constructive notice to the city, that the judgment should be reversed and the cause remanded for a new trial.

Jones (E. PL), P. J., and Jones (Oliver B.), J., concur.


text:
    TIME WITHIN WHICH SUIT MAY BE BROUGHT.
    Court of Appeals for Mahoning County.
    Joseph Cortesi et al v. Firemen’s Fund Insurance Company.

    Decided, October Term, 1915.

      Aotion on Policy of Pire Insurance — Dismissed Otherwise than on its Merits — New Action Not Barred — By Lapse of More than One Yew-After Occurrence of the Pire — Section 11233.
    A clause which shortens the statute of limitations, as to the time for bringing suit on the contract in which said contract is incorporated, can not be enforced in the face of the provision of Section 11233, having reference to the time within which suit may be brought in cases which have failed otherwise than on the merits.

      D. J. Hartwell and E. H. Moore, for plaintiffs in error.

      J. W. Mooney, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled, May 23, 1916.

   Houck, J. (of the Fifth Appellate District, sitting in place of Spence, J.).

This is an action in this court on error to the judgment of the Common Pleas Court of Mahoning County, Ohio.

The original action arose out of a policy of insurance issued by the Firemen’s Fund Insurance Company on the property of the plaintiffs in error, the policy covering a building located in the city of Youngstown, Ohio, and in an amount not to exceed $1,200.

The petition contained two causes of action: the first seeking a reformation of the contract of insurance, and the second praying for a judgment on the reformed contract for the sum of $1,200.

The cause was heard, and the contract of insurance was reformed, as prayed for in the petition. Thereafter the cause came on for trial on the second cause of action, and the same was dismissed by the court for want of prosecution.

Thereafter, and within one year after the dismissal of the second cause of action, as aforesaid, but'not within twelve months next after the fire, the plaintiffs in error filed their petition in the common pleas court, alleging therein that by a decree of said court the contract of insurance had been reformed; the loss by fire of the building; the failure otherwise than upon its merits of the second cause of action in the former suit; a full compliance with all the terms and conditions of said policy, and prayed for judgment against the defendant for the sum of $1,200.

The defendant filed its answer to said petition, alleging, among other things, that said policy of insurance contained the following provision:

“No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance, by the insured, with all the foregoing requirements, nor unless commenced within twelve months after the fire.”

The cause was submitted to a jury, and after the plaintiffs had submitted their evidence the defendant moved the court to direct the jury to return.a verdict for the defendant, upon the ground that the evidence disclosed the fact that the suit at bar had not been brought within twelve months after the fire; and thereupon the court sustained the motion, and the jury - returned its verdict for the defendant. A motion for a new trial was filed, heard, and overruled, and judgment was entered on the verdict.

Error is prosecuted to this court seeking a reversal of the judgment of the court below for sustaining the motion for a directed verdict, and in overruling plaintiffs’ motion for a new trial.

The question presented fpr determination is, Does the stipulation in the policy of insurance that ‘1 suit must be commenced within twelve months after the fire” abrogate and set aside the provisions of Section 11233 of the General Code, which provides :

“In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff be reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff, or, if he dies and the cause of action survives, his representatives may commence a new action within one year after such date.” * '* *

The stipulation in the policy that no suit could be maintained to recover on the policy, unless brought within twelve months after the fire, was intended to shorten the statute of limitations with reference to the time of bringing the action; but how can it be properly claimed, or the contention of defendant in error sustained by any reasonable principle of law or justice, in the face of the provisions of Section 11233 of the General Code? Such a contract between the parties could not in any way abrogate, set aside and hold for naught the provisions of said section, stating as to when actions may be commenced unless they have been determined upon their merits.

The action at bar was not determined upon its merits in the former suit, and after the dismissal of the former suit a new action was brought — the one at bar — within the year, and we think properly so. The plaintiffs never had their “day in court” until the filing of the action and its trial in the present case.

The stipulation in the contract that ‘ ‘ no action could be maintained on the policy unless commenced within twelve months after the fire,” in no way waived or abrogated the rights of plaintiffs under Section 11233 of the General Code. Yihen the parties herein entered into the stipulation or agreement contained in the policy they must have, or at least should have, considered it in the light of the provisions of said statute. It is presumed they knew the law, and that it was their intention to make their contract in conformity thereto, and if they did not do so, the defendant in error can not now complain because it was in violation of and not in conformity with the provisions of the general statute governing the same. A contract for a shorter limitation does not control in face of the general statute, which must govern in such cases.

We have made a careful examination of the authorities cited by counsel in this case, and have examined many other authorities and decisions of courts not only in our own, but other states, bearing on the proposition before us, and we feel that the rule herein laid down is applicable to the case at bar. The case of Railway Company v. Bemis, 64 Ohio State, page 26, while not directly in point, was a material aid to us in arriving at our conclusion.

A majority of the court is of the opinion that the judgment of the common pleas court should be reversed. Judgment reversed, and cause remanded to the common pleas court for a new trial.

Metcalfe, J., concurs; Pollock, J., dissents.


author: Jones (Oliver B.), J,

text:
    STREET RAILWAY’S SHARE OF A GRADE ELIMINATION.
    Court of Appeals for Hamilton County.
    The City of Cincinnati, by Alfred Bettman, its Solicitor, v. The Cincinnati Traction Company and The Cincinnati Street Railway Company.
    Decided, July 6, 1916.

      Grade Grossings — Division of the Expense of Elimination — Street Railway Company Not a Necessary Party — Where Agreement for Elimination is Entered Into — Between Municipality and Steam Railroad Company — Liability of Street Railway for Part of the Cost— Not Affected by Change in Location of Street — Reasonableness of the Change and of the Cost Assessed Against the Street Railway Company.

    1. The authority vested in municipalities for the elimination of grade crossings is a police power which is continuing in,its nature and is in no way limited hy the franchise of a traction company whose tracks occupy the street.
    2. A municipality in contracting with a steam railway company for the elimination of a grade crossing is not bound to make the traction company occupying the street a party thereto, but may proceed with the improyement without notice to such company.
    3. A street railway franchise in the street in no way limits the right of the municipality to change either the grade or the location of the street as the public necessity or convenience may require, particularly where the reasonableness of the change is not questioned,'and the traction company must adapt its tracks to the changes-so made.
    4. The grade crossing in the instant case was eliminated by the building of a viaduct. Sixty-five per cent, of the cost was paid hy the steam road and thirty-five per cent, by the city. ' The city then . obtained a judgment, based upon a verdict, against the traction company occupying the -street for its share of the cost of the improvement, which was fixed at $61,220.09, which was something less tháh one-half of the share paid by the city, Held: ' .•
    That in view of the evidence and all the circumstances surrounding the improvement and the benefit to and the saving which it will .effect for the traction company, the proportion of the ,cost which it,,is asked tb pay is' reasonable, and a judgment is awarded similar to that entered in the lower court."

      Walter M. 8choenle, Solicitor, and Constant 8outhworfh, Assistant Solicitor, for plaintiff.

      Joseph Wilby and Ellis G. Kinhead, contra.
   Jones (Oliver B.), J,

This action was brought by the city of Cincinnati to compel the Cincinnati Traction Company and the Cincinnati Street Eailway Company to pay to the city their share of the expense incurred in the elimination of the grade crossing of Ludlow avenue and the Baltimore & Ohio Southwestern Eailroad, and to have the judgment for such share of said expense declared to be a lien on the property of said companies.

Under the provisions of Sections 8874 to 8894, inclusive, of the General Code, the city of Cincinnati in conjunction with the Baltimore & Ohio Southwestern Eailroad Company provided for the elimination of the grade crossing of Ludlow avenue over the tracks of the steam railroad company. In .so doing a bridge or viaduct was constructed from a point on Ludlow avenue southeast of the Miami canal, running in a direct line to Spring Grove avenue at the same place that the former line of Ludlow avenue intersected it, and that part of the old line of Ludlow avenue included between the north and south lines of the right-of-way of the Baltimore & Ohio Southwestern Eailroad was vacated and the grade crossing entirely eliminated, all of the through travel over Ludlow avenue going above said railroad tracks on the new Ludlow avenue viaduct, including the street railway travel of the defendant company.

The Cincinnati Street Eailway Company is the owner of the street railway tracks and franchise, and has leased same to the Cincinnati Traction Company which is operating them. Previous to the elimination of said grade crossing, a double track road was operated over that part of Ludlow avenue lying west of the point where the east end of the Ludlow avenue viaduct was constructed and across the Baltimore & Ohio Southwestern railroad track on grade. After the vacation of said grade crossjng,Auch. operation did not continue, but instead the line was operated over the new viaduct.

The total cost of the viaduct so constructed was $354,023.63. Sixty-five per cent, of the cost was paid by the Baltimore & Ohio Southwestern Railroad Company as provided by statute. The city paid thirty-five per cent., amounting to $126,692.13, and by ordinance required said street railway and traction companies to bear one-half of the portion payable by it as their reasonable proportion of the cost assumed by said city. Each of the defendants denies the right of the city to collect any part of said cost, and in the event that any part should be so chargeable to either of said companies insists that the amount sought toabe recovered in this case is excessive and above the amount properly chargeable against them.

The ease was tried to a jury in the court of common pleas, and resulted in a judgment against the Cincinnati Traction Company in the sum of $61,220.09, with interest at six per cent, from April 5, 1915; which judgment was declared to be a lien on all the property, real and personal, of the defendant the Cincinnati Street Railway Company.

The Cincinnati Street Railway Company took an appeal from said judgment; and error proceedings were also prosecuted by both companies, to secure a reversal of said judgment. The cause was heard in this court on the appeal of the Cincinnati Street Railway Company.

Numerous questions were raised in the oral arguments and briefs of both parties. The main questions were all considered and disposed of in the ease of Northern Ohio Traction & Light Company v. City of Akron, in which the opinion of the court of appeals appears in 23 C.C.(N.S.), 497, where Sections 8892, 8893 and 8894 were held to be constitutional. This decision was affirmed by the Supreme Court in a journal entry found in 91 O.' S., 382. In that case it was held that the amount fixed by an ordinance of a city, as the proper amount to be paid by a street railway existing in a street where a grade has been eliminated, was a proper basis upon which to institute an action in court, but that the recovery to be had by the city against said street railway for such share of- expense should be for such amount as the. jury should determine to be a reasonable portion of the cost' of the improvement. And in that case the amount fixed by the jury in its verdict, for which judgment was rendered and upheld by the Supreme Court, was less than the amount claimed by the city and fixed by its ordinance.

The proceedings in this case have been had along the same lines as those in the Akron case, the only difference being that in the instant ease two companies are interested in the street railway, one as lessor and the other as lessee, the lessee being bound by the terms of its lease to pay all obligations arising similar to the claim here under consideration; and the lessor company being interested only to the extent of the lien upon its property in the event of the failure of the lessee company to pay any judgment obtained for such expense.

The power authorized to be exercised by a municipality in the elimination of a street grade crossing over a steam railroad, under ■the sections above referred to, is an exercise of the police power, 'which is a power continuing in its nature and not in any way limited by the extent of the grant or franchise. Gas Light & Colee Co. v. Columbus, 50 O. S., 65; Wabash R. R. Co. v. Defiance, 52 O. S., 262.

In Missouri Pacific Ry. v. Omaha, 235 U. S., 121, it was held by the Supreme Court:

, “A railway company may be required by the state, or by a .municipality acting under the authority of the state, to construct overhead crossings or viaducts over its tracks at its own ex- ' pense; the consequent expense is dammim absque mjtiria or compensated by the public benefit in which the company shares and is not a taking of property without due process of law.” (Syl. 1.)
* ‘ In the exercise of the police power the means to be employed to promote the public safety are primarily in the judgment of the ■Legislature, and the courts will not interfere with duly enacted legislation which has a substantial relation to the purpose to be accomplished, and does not arbitrarily interfere with private rights.” '(Syl. 2.)

And in this case the court in its opinion at page 129 said, in regard to the matter of charging part of the Expense to the street railway occupying such street:

“It may be that it would be more fair and equitable to require the street railway to share in the expense of the viaduct, and if the municipality had been authorized so to do by competent authority, it would have been a constitutional exercise of the police power to have such division of expenses. ’ ’

And in the ease of Chicago & Alton R. R. Co. v. Transbarger, 238 U. S., 67, the court upheld a statute requiring the owners of a railroad to provide means for passing water under their railway embankment long after it had been constructed, as a matter of police regulation.

Nor was it necessary in arranging for this improvement that the street railway company or the traction company should be notified of the proceedings or that either should become a party to the contract between the city and the steam railroad company.

In C., B. & Q. R. R. Co. v. Nebraska, 170 U. S., 57, the court says, page 76:

“In State v. Missouri Pacific Ry., 33 Kan., 176, the power of the city of Atchison to compel the respondent to construct viaducts was sustained under legislation similar to that herein involved and, referring to the subject of notice, the court, per Judge Valentine, said: ‘"We do not think it is necessary that the city should have given the railroad companies notice before passing the ordinance requiring them to construct the viaduct. Notice afterward, with the opportunity on the part of the railroad companies to contest the validity of the ordinance and the right of the city to compel them to construct the viaduct is sufficient. ’

And On page 77:

‘ ‘ So, in the present case, while no notice may have been given to the railroad company of the pendency of the ordinance, and while they may not have been invited to participate in the proposed legislation, yet they had an opportunity to, and did in fact, put in issue,, by the answer, both the validity of the ordinance and the reasonableness of the amount apportioned to them respectively for the repair of the viaduct in question.”

The rights of the street railway company are to the use of the street, and the fact that they enjoy such a franchise in no way limits the rights of a municipality to either change the grade of that street or to alter its course or location as public necessity may require, and it becomes the duty of the street railway company to adapt its tracks and location to such requirement of the city. And so far as the amount to be paid by it is considered, that is to be fixed not as a matter of determination by the city by ordinance, but as a matter of adjudication by the court subject to the legislative restrictions that have been provided.

There is no question as to the right of the city to change the location of Ludlow avenue in making this improvement. Such power is expressly conferred by the terms of Section 8875, General Code. The only portion of Ludlow avenue which has been entirely vacated is the part lying between the north and the south lines of the right-of-way of the B. & O. S. W. railroad— that is, the crossing itself, within the lines of the railroad right-of-way. The other two parts of Ludlow avenue as it previously existed still remain public streets being each a cul-de-sac running from either terminus of the new viaduct to the line of the railroad. But because of the vacated portion at the crossing it becomes an impossibility to cross the railroad on Ludlow avenue at '■•rade. The street railway, therefore, being unable to continue the use of its franchise over that crossing, was compelled by reason of the change in the lines of Ludlow avenue by the construction of the viaduct, to transfer its track and operation from the old to the new line of Ludlow avenue between the termini of the viaduct. In other words, the effect is the same as though the entire old portion of the avenue between those termini had been vacated, so far as continuous passage is concerned.

There is no question but that if a street is straightened, as was done by the construction of this viaduct, or if its location is changed by a detour or shifting of its lines to either side of its old lines, that the street railway could claim a right under its franchise to occupy and use the new lines of the street; and such would be the case.in this instance regardless of the stipulation made between the parties that the use and occupation of the viaduct should in no way prejudice their rights in this case. And while upon this subject, it might be said that the admission of evidence as to the amount of travel over the viaduct is not regarded as an infraction of this stipulation.

Defendants however have undertaken to argue that this case does not come within the strict literal terms of Section 8892, for the reason that Section 12 of the ordinance recites “that the company operating the street railroad over the present intersection shall pay a portion of the city’s expense to be hereinafter fixed by ordinance, ’ ’ and that the ordinance which fixes that portion, in the third paragraph of its preamble, states that “Whereas the tracks of the Cincinnati Traction Company, a corporation under the laws of Ohio, cross the right-of-way of said railroad company at a point where under the plans and specifications it has been determined to construct such improvement.” They argue that because the old crossing at grade is some two hundred and fifty feet further east than the location of the viaduct where the new crossing passes above grade, the “point” of crossing can not be identical in the new and in the old, and therefore that Section 8892 does not apply. Such argument is clearly without merit. The same argument might be made as to any sub-grade or overhead crossing because the place of crossing, even though the lines of the street or the lines of the viaduct or subway were identical now with those of the old, the actual tracks would be either many feet above or below the point of the old crossing.

No question is raised in this case as to the reasonableness of the change iñ location. In fact it is shown by the record that the change is a great benefit both to the traveling public and to the defendants, and that the expense is greatly reduced by the straightening in the line of Ludlow avenue by means of the new viaduct, which forms practically the hypotenuse of a triangle of which the old lines of Ludlow avenue form the other two sides.

The power to so change a highway in separating grades in the crossing of a railway and a highway is well illustrated in the case of Davis v. Village of Hampshire, 153 Mass., 218; and an interesting nisi prius decision upon this proposition is found in the ease of Stoner v. P., C., C. & St. L. Ry. Co., 9 N.P. (N.S.), 337, in which a railroad subway crossing was substituted for two railway crossings, being 990 feet away from one and 772 feet from the other.

Defendants, however, insist that the charge' as fixed by the judgment below is excessive and far beyond any reasonable charge that should be asserted against them, for the reason that the life of the franchise under which they operate is a matter of only thirty-one years’ duration, while the viaduct is supposed to be practically indestructible. The proportionate amount of the respective contributions that should be made by the steam railroad company, by the public, represented by the city or county, and by the street railway company operating over the crossing so changed, is primarily a matter for legislative action. The General Assembly has laid down the rule fixing the proportion of the steam railroad at sixty-five per cent., and that of the city or county at thirty-five per cent.; and the power is given under Section 8892, G. C., for the municipality to charge a, proper amount of its share against a street railway using the street at such crossing. This amount has been fixed by the General Assembly at not to exceed one-half of the thirty-five per cent, charged against the city. Considering the situation of the old grade crossing and the conditions surrounding it, the necessity for its elimination and the benefits accruing from the construction of the new viaduct, we are of the opinion that no case could be found where the propriety of charging the maximum amount allowed by the Legislature would be greater than the one under consideration here, and we therefore feel in a measure bound by the legislative expression of the proper portion to be charged against the street railway company; and while it is argued that the balance of the life of the present franchise under which the street railway is operating is only thirty-one years, it must be remembered that the policy of the law of Ohio, outside possibly of this particular franchise, has never been to permit the granting of a franchise beyond the term of twenty-five years; so it can not be considered that such an argument would prevail as against the expressed policy of the Legislature. But aside from this policy of the Legislature, we think the amount of the judgment in the lower court was fully sustained by the evidence submitted.

The evidence shows that in the opinion of experts the same travel, other than that by street railway, could be accommodated by a viaduct ten feet narrower than the one actually constructed. In other words, not considering the travel in the street ears, a viaduct fifty feet in width without a street railway would accommodate the same travel as does one sixty feet in width where a railway has been placed upon it. And the cost of the additional ten feet of the viaduct was shown to be from about $64,000 to $66,000.

It is also shown that a considerable saving would be made to the defendants in the expense of watchmen and maintenance of tracks, frogs and repairs, each year, which if capitalized for the thirty-one years of the franchise still to run would represent a capital of from more than twenty-five to twenty-eight thousand dollars, depending upon the rate of interest at which it was figured; that the rental value for the balance of the term of the franchise figured upon only the amount of the judgment would be from $47,000 .to $51,000; that in addition to these figures a great advantage is obtained by the defendant companies by the removal of probability of damage that may -be caused by possible accidents at a grade crossing, the amount of which is not subject to accurate calculation.

It was further shown that new double tracks to the value of $15,200 had been included in the construction of the viaduct, as well as trolley poles to the value of $980.

The defendant companies have not indicated accurately what they regard as the proper charge to be placed upon them for their share of the expense of this improvement. The amount of the judgment below being considerably less than the maximum as fixed by the General Assembly in Section 8892, G. C., and the amount having been fixed in the trial below by the verdict of a jury upon a full and fair presentation, this court upon a full consideration of all the evidence is not inclined to fix a different amount, but is of tbe opinion that tbe amount found by the jury and fixed by the judgment of the court of common pleas from which this appeal is taken, is a proper finding and amount, and a reasonable charge to be made against the defendants for their share in this improvement.

A judgment may be taken in this court similar to that in the court below.

Jones (E. EL), J., and Gorman, J., concur.