text:
    RAILROADS.
    [Lorain (8th) Circuit Court,
    September 28, 1910.]
    Winch, Henry and Marvin, JJ.
    Lake Terminal Ry. v. State.
    1. Coupler Becoming Defective after Train in Transit not Cause for Statutory Penalty.
    A judgment against a railroad company for a penalty for violation of the provisions of Sec. 8950 G. C.., making it unlawful to haul a car not equipped with a coupler which can be uncoupled without the necessity of men going between the ends of the car, will be reversed when the evidence shows that the coupler complained of became out of order after the train was made up and started and the defect being immediately discovered, the car was watched until it reached the first point where the coupler could be repaired and was there cut out and the coupler repaired.
    2. Skilled Repairers and Proper Facts not Required on Trains.
    A railroad company is not required to have on every train it operates, sufficient and proper tools and skilled workmen so that it can repair all defects which may suddenly occur in any of the appliances which by law it is required to have upon its cars and locomotives.

      E. G., E. C. & T. C. Johnson and Squire, Saunders & Dempsey, for plaintiff in error.

      F. M. Stevens, for defendant in error.
   WINCH, J.

Plaintiff in error was found guilty of violating Sec. 8950 G-. C., which provides as follows:

“No such common carrier shall haul, or permit to be hauled or used on its line, a locomotive, car, tender, or similar vehicle used in moving state traffic, not equipped with, couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars. ’ ’

The bill of exceptions shows that the case was tried upon an agreed statement of facts, supplemented by very little other evidence. Paragraph 8 of the agreed statement of facts reads as follows:

‘ ‘ That said defendant the Lake Terminal Railroad Company hauled said car No. 23,300 from the No. 1 scale house located just within the west fence of the yards of the National Tube Company at Lorain to the joint inspection yards known as Tenth avenue at Lorain, a distance of 3,200 feet, with the coupler link on the ‘A’ end of said car disconnected, under the circumstances set forth in the answer of the defendant.”

The circumstances under which the railroad company hauled the ear set forth in its answer, are as follows:

“Defendant says that on July 22d, 1909, at about 9:30 o’clock a. m., while ear No. 23,200 was being weighed upon the so-called No. 1 scales, located just inside the west fence of the National Tube Company’s yard at Lorain, Ohio, said car being at that time the middle car in a train of nineteen ears, one of the defendant’s brakemen lifted the coupling lever at the west end of said car to uncouple the same, and the chain in the coupling head pulled out of the head.
“Defendant says that said ear had been inspected a few hours before; that all its appliances were then found in proper condition; that no defect in any of the appliances on said car was discovered or existed until defendant’s brakemen attempted to cut the train at the No. 1 scale as aforesaid.
“Defendant says that as soon as its brakeman discovered that the coupling lever chain was disconnected, he threw the operating or coupling lever back over the top of the end sill so as to prevent its use.
“Defendant says that after its brakeman had turned the coupling lever so as to prevent its use as aforesaid, he uncoupled said car by using the lever on the end of the adjoining car; that after the ear was weighed it was coupled by impact and was not uncoupled again, but was taken direct to the interchange track used in common as such by the defendant and the Baltimore'& Ohio Railroad Company where tools and material with which to repair such defects as the one described, were kept, and was the nearest point where such repairs could be made.
“Defendant says that its brakeman rode with said train and ear to said interchange track, ready to give warning about said disconnected operating lever and prevent its use by other employes, that as soon as he met defendant’s inspector, defendant’s brakeman told him about the condition of said operating lever and said inspector had the same repaired as soon as permitted by Johnson, agent of plaintiff.”

Johnson was the state inspector of safety appliances, who was present at the time.

It would seem from these conceded facts in the case that the railroad company was diligent in its duty of inspection and that immediately upon discovery of the defect in the coupler the railroad company exercised the highest degree of care, not only in repairing the defect, but in protecting its employes from any possible danger, to them that might arise by reason thereof, until the repair was made.

The only criticism upon this conclusion made by the prosecuting attorney is his statement that the defect in the coupler was of such a nature that it could have been fixed with hammer and cold chisel at the scales, when discovered, if such tools had been at hand, and that company should have had them at hand for that purpose. This suggests that it is the duty of the company to carry repair tools on every, train, but what is the extent of that duty? In this case it would have been fulfilled by having at hand a hammer and chisel; the next defect might require an anvil and forge. This is not all. It does not appear that any one of the train crew could have fixed this coupler with these tools or any number of tools. It is well known that a skilled mechanic can repair mechanical devices without any tools, which the untrained man can not repair with a full kit of tools. Is the railroad company required by this law to have not only tools, but a skilled repair man on every train? We think not.

The law here claimed to have been violated is a humane one and only by its strict enforcement will its benefits accrue to those who risk their lives in the transportation business of the country. Had any employe been injured by reason of this defect in the coupler, the better authorities seem to agree that the law imposes the hardship thus occuring without the fault of either party, upon the company rather than upon the individual. But cases thus arising can not rule the company’s duty to the state as fixed by the statute here under consideration. The question of inevitable hardship to one of the two parties is not involved. The sole question here is whether the company did everything in its power to comply with the law, intelligently, promptly and with that foresight which is required of the most skillful in the business. We think it did, and arriving at this conclusion from the conceded facts in the case, it is our duty not only to reverse the judgment, but to enter judgment in favor of the plaintiff in error.

The contention, of plaintiff in error that the petition fails to state a cause of action under the statute, we think is not well taken.

Judgment reversed and judgment for plaintiff in error.

Marvin and Henry, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    MUNICIPAL CORPORATIONS.
    [Lorain (8th) Circuit Court,
    September 28, 1910.]
    Marvin, Winch and Henry, JJ.

      Elyria (City) v. John L. Good.
    Evidence of Prior Accidents at Same Place Received in Case of Negligently Failing to Guard Defect in Street.
    In an action against a municipal corporation for damages suffered through its negligence in failing to properly guard an excavation in the street, evidence of prior accidents at same place may be received for the purpose of charging the municipality with notice of the conditions existing at the place in question; and this is so, even though actual notice of such prior accidents is not brought home to the proper municipal authorities.
    Error.

      H. A. Pounds, for plaintiff in error.

      Clayton Chapman and Guy B. Pmdlay, for defendant in error.

      Affirmed, no op., Elyria v. Good, 85 Ohio St. 471.

   WINCH, J.

This is a proceeding to reverse judgment recovered by Good against the city for damages received by him through the negligence of the city in failing to properly guard an excavation in one of its streets, which had been made by a licensee of the city in laying a gas pipe and had not been properly filled up.

It is said that there is error in the record in two particulars, first, because the trial court refused to give the city’s first request to charge, which reads as follows:

“Evidence that at a time shortly before the accident complained of, a traveler upon Lake avenue at the place complained of by plaintiff, experienced some difficulty in getting through the street, or that his vehicle became stalled, should be considered by you only for the purpose of determining whether or not a defect or dangerous condition existed at such point in the street; and such evidence should not be considered by you in determining whether or not defendant had notice of such defect, unless defendant had knowledge or actual notice of such occurrence, and sufficient time had elapsed after such knowledge or actual notice for defendant to have remedied such defect. ’ ’

There was no error in refusing this request; it was defective in that it stated evidence of prior accidents should not be considered in determining whether or not defendant had notice of such defect, unless it had actual notice of such occurrences. The law recognizes such a thing as constructive notice of defects in the streets. This is well stated by the trial judge as follows:

“It is a question of fact for you to determine from all the evidence in the case whether the circumstances were such as that had the city used ordinary care it would have known that this street was out of repair at the point where the accident occurred in time to have repaired it before the accident or to have guarded the same by warning or signal; and in determining that matter you should consider the character of the depression, whether or not it was caused by an excavation, how long it had existed, and whether or not it could be readily observed, its depth and appearance at the time of and before the accident, and from all the facts and circumstances appearing in the evidence it is for you to determine whether or not this road was out of repair so as not to be reasonably safe for travel and whether or not the city had or should have had notice of its being out of repair a sufficient length of time before the accident to have repaired the same or to have guarded the same by warning or signal. ’ ’

It is further claimed that the verdict and judgment thereon is not sustained by sufficient evidence. On this point it is claimed again that no notice to the-city, actual or constructive, was shown.

This point is not well taken. It was shown in evidence that other similar accidents occurred at this point at least ten days before Good was injured. To quote from the brief of counsel for the city:

“The testimony of all witnesses called by the plaintiff was that Lake avenue was in a muddy condition at the time of the accident to Good; that there were ruts in the street due to the wear of travel and the general condition of the weather, rains, etc., at that time of the year. There is no question that travel was inconvenient at that time, but it appears that the condition of the street was well known to all persons traveling thereon, and that travel on said street was not considered dangerous.”

It is also known that a member of the board of public service of the city and its street commissioner were on the street at the place of the accident and observed its condition during said ten days elapsing after the previous occurrence. They and the city were put upon inquiry to find out its true condition and to remedy such defects as its condition suggested. The city knew what work had been done there; ordinary foresight might have suggested the dangerous condition shown on the trial.

Upon a careful consideration of all the evidence, bearing in mind all the suggestion contained in the brief of counsel for the city, we are unable to say that the verdict is so manifestly against the weight of the evidence as to require that it be set aside.

Judgment affirmed.

Marvin and Henry, JJ., concur.


author: WINCH, J. HENRY, J. WINCH, J.

text:
    SALES.
    [Lorain (8th) Circuit Court,
    September 28, 1910.]
    Marvin, Winch and Henry, JJ.
    Ezra Sprague v. Frank Munger.
    1. Agreement of Seller to Repurchase Certificate of Stock If Tendered by Purchaser.
    A proposition by the seller of stock made to the buyer, that he will repurchase the stock within one year, if the buyer so desires, becomes a contract, upon sufficient consideration, if, within the year, the buyer evinces to the seller his desire to transfer the stock to him and tenders it.
    2. Allegation that Stock Was Tendered Includes All Essentials to Ownership though Certificates not Endorsed.
    While a tender of certificates of stock may not be sufficient unless they are properly endorsed, or unless coupled with an offer to transfer the stock on the books of the corporation, still, an allegation that the plaintiff tendered the “stock” itself, necessarily includes all things essential to the ownership of it. 1
    Error.

      G. A. ReseJc, for plaintiff in error.

      Frank Coleman, for defendant in error.
   WINCH, J.

Munger recovered judgment against Sprague on a contract for the sale of stock.

According to the amended petition in the ease the contract consisted of a written proposition by Sprague and the acceptance thereof by Munger. The written proposition, as reformed by the court, reads as follows:

“I hereby agree to take of Prank Munger the $1,000 stock bought of us today off his hands and give him back his $1,000 that he paid for the stock, with interest at six per cent, one year from date, if he so desires. (Signed) Ezra Sprague.”

It is alleged that Munger within the year evinced to Sprague his desire that the latter take the stock off his hands. This we think, completed a contract between the parties and that Munger ’s agreement to transfer the stock communicated to Sprague before the end of the year, became consideration for Sprague’s promise to take it off his hands.

It is alleged that Sprague at the end of the year repeated and confirmed his agreement to take the stock, but complained that he was hard up at the time and asked for more time in which to raise the necessary funds and that Munger granted further time not only then but at subsequent times, until finally about April 16, 1909, Munger tendered the stock, demanded his pay for it, but Sprague neglected and refused to pay him for it.

It is claimed by plaintiff in error that said tender was not sufficient. This is the only question raised in this court, except that the contract was without consideration, a proposition upon which we have already stated our views.

The insufficiency of the tender is questioned in two way's: by a criticism of the allegátions of the amended petition and by a suggestion that the judgment of the common pleas court is not sustained by sufficient evidence.

It is claimed that the tender was not complete because the stock certificate alleged to have been tendered was in the name of Munger and not endorsed by him, either in blank or otherwise, so as to authorize its transfer to Sprague upon the books of the company, and that the record does not show that Munger ever offered to endorse said stock certificate.

It is to be regretted that we can not examine the bill of exceptions on this proposition, for said bill is not complete; it does not contain all the evidence.

On page 16 of the bill of exceptions we find the following statement:

“Plaintiff also offered in evidence a certain certificate of stock of the McKinley Hardware Company, placed in the hands of the clerk of the court of common pleas for delivery to the defendant, and it is agreed by and between counsel for the parties that said certificate be known'as ‘Plaintiff’s Exhibit G-,’ in this ease and be treated as attached to and made part of this bill of exceptions, but retained in the custody of the said clerk for safe-keeping.”

"We have also found in the files a certain certificate of stock of the McKinley Hardware Company certifying that Frank Munger is the owner of ten shares of the capital stock of said company. This certificate is unattached to the bill, and, moreover, is not identified in any manner as the one referred to as offered in evidence.

Under the rule frequently announced by this court in conformity with the directions of the Supreme Court of Ohio, found in the case of the Lake Erie & W. Ry. v. Mackey, 53 Ohio St. 370 [41 N. E. 980; 29 L. R. A. 757; 53 Am. St. 640], we can not treat this certificate of stock as a part of the bill of exceptions.

It follows that the bill does not contain all the evidence and therefore we are unable to weight the evidence.

As to the sufficiency of the amended petition on the subject of tender, the allegation is that the plaintiff “tendered back to him (the defendant) said stock in accordance with the said understanding and mutual agreement between said parties.

It will be noticed that the stock, not the certificate of stock, is mentioned. The courts make a distinction between the two: the certificate is only the evidence of the ownership of the stock.

An allegation of the tender of the certificate might be faulty unless including a statement that the certificate was-properly endorsed or unless coupled with an offer to transfer it: (Hager v. Reed, 11 Ohio St. 626).

But an allegation of a tender of the stock itself, necessarily includes all things essential to the ownership thereof.

So holding, we find the amended petition sufficient, and there being no other errors complained of, the judgment is affirmed.

HENRY, J.

I feel like adding to what my brother Winch has said in this ease that we do not wish to be accused of being astute in discovering defects in the bill of exceptions in any case or going out of our way to discover that which has not been called to our attention by counsel with respect to a deficiency of the showing by a bill of exceptions of all the evidence so as to enable us to weigh the evidence. But in this case notice was necessarily directed to this deficiency by our attention having been called by counsel to the question of the validity of the tender. We looked for the certificate of stock; finding that there was none attached, we looked for all the allegations of the bill in regard to it, in order that we might examine and see whether or not it was properly endorsed so as to amount to a proper tender. So that the defect that we found in the bill of exceptions can hardly be said to be one which we have called attention to of our own motion, but rather a defect which the things which were called to our attention in argument necessarily brought to our consideration.

WINCH, J.

We do not know that this certificate is the certificate that was deposited with the clerk. There is not a mark of any kind on it to indicate anything of that kind. How many certificates Hunger had we don’t know. This is found in the files, as all papers deposited with the clerk are found.

Where it came from we don’t know; we found it between two pages in the bill of exceptions. It is not a certificate properly marked and identified as the bill shows the one to be considered a part, is marked and identified.

Marvin, J., concurs.


text:
    DAMAGES — VERDICT.
    [Cuyahoga (8th) Circuit Court,
    November 15, 1909.]
    Marvin, Winch and Henry, JJ.
    John Wagner v. American Construction Co.
    Cross-Petition Dismissed when Proof of Circumstances from which Inference of Damages Occasioned Resulted may be Drawn Either Way.
    In an action on a contract for building a break-water for the protection of the shore of land on Lake Erie, in which the defendant by cross-competition claims damages by reason of dilatory and defective work, it is not error to dismiss said cross-petition for want of direct evidence that the damage to his land was caused by delay or defects in the construction of the break-water, when the evidence only shows circumstances from which the fact that such damages were so occasioned is not a more natural inference than that they resulted from some other cause.,

      Error.

      G. J. Benkoski, for plaintiff in error.

      Laubscher & Kees, for defendant in error.
   WINCH, J.

The American Construction Co., defendant in error, was plaintiff below, where it commenced its action against John Wagner, for the contract price of constructing a breakwater in the lake opposite his premises. Wagner by answer and cross-petition alleged that the construction was both dilatory and defective, whereby his land along the lake front was caused to settle, from the beating of the waves on the shore.

At the close of his evidence in support of the cross-petition, the court granted the company’s motion to withdraw the same from the jury and to direct a verdict in its favor upon the defendant’s prayer for'affirmative relief. This action of the court, which is the only error urged here, was taken upon the theory that the defendant had failed to show that the damage to his land was caused by the alleged delay or defects in the construction of the breakwater.

At the close of all the evidence the question was submitted to the jury whether or not the defendant was entitled to recoup any part of the contract price by reason of the alleged delay and defects in the construction of the breakwater; but the jury returned a verdict for the plaintiff, for the full amount of the agreed price as claimed by it. It thus appears that the jury found that the structure itself was not diminished in value by reason of any fault of the plaintiff below in these respects. While this is perhaps not quite conclusive of the grounds on which the claim of the cross-petition is founded, still it is difficult to see what delay or defect might, consistently with this verdict, 'exist in the construction of the breakwater that, without impairing its value as such to Wagner, could nevertheless cause damage to his land.

The president of the company testified, at page 69 of the bill of exceptions, “that'this breakwater was to be. .constructed for the protection of Mr. Wagner’s premises.” That, of course, was within the contemplation of both parties. But whether it could be made effectual to that end nowhere expressly appears. True, Mr. Wagner testifies at pages 413 and 414, that upon examination of the bank, along this lake front, in the spring following the completion of the breakwater, he “found, down below, it was all worked out by lake waves,” and that it was undermined for “about seven or eight feet,” right underneath, and “the lake had worked down that way by waves, little by little.” But he further testifies at pages 449 and 450, that, prior to the construction of this breakwater, he had tried to prevent such erosion by putting a row of large' concrete blocks in the water all along his lake front. These, he says, were “put there for the purpose of a breakwater and they didn’t work. After I had them there, they was no good; that’s the reason why I got this breakwater constructed. They were no good.”

There is no direct evidence in the record to show that the new breakwater, however perfectly constructed according to the terms of the contract, would have been any more effectual than the old one, to prevent the damage from which he was suffering. This was left entirely to inference. It may perhaps be a natural inference that a proper breakwater would have prevented the waves from beating against the shore. But another and deeper cause of such difficulty appears from the testimony at pages 486 and 487, of John Hogg, foreman at Gordon park for twenty-seven years, who says that he has known thirty-five foot piling (which is much longer than any furnished by Wagner for this job) to be driven “to within four feet of the water at night, and in the morning they were up about fifteen feet in the air. They came up in the night after being driven.” This he says is apt to occur at irregular intervals where so-called liver quicksand underlies the land and water along the lake front.

E. B. Wicks, who afterwards repaired Wagner’s breakwater with piling 33 or 35 feet long, testifies at page 476. that he drove piling and they drove down soft, and back further they drove down hard through that gap there, there seemed to be a soft hole there, they went down easy, and we had to hit with hammer light or they would go down too low.

It appears, moreover, from the testimony of the witness Imhoff at page 246, that there was a break in the water pipe near "Wagner’s property sufficient to soften the ground there, about the time his bank subsided.

It is not, of course, for the court to weigh conflicting evidence in determining whether the direction of a verdict against the party holding the affirmative of an issue is proper. But that is not the rule to apply to this evidence. In Lake Shore & M. S Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. 26], the syllabus reads:

'“In the absence of direct evidence in its support an allegation that one sustained injuries by reason of the negligence of the defendant is not sustained by proof of circumstances from which the fact that his injuries were so sustained is not a more natural inference than any other.”
There the court held that “a verdict for the defendant should have been directed as requested.”

So here we hold that, for want of direct evidence that the damage to "Wagner’s land was caused by delay of defects in the construction of his breakwater, the proof of circumstances from which the fact that such damages were so occasioned is not a more natural inference than that they resulted from some other cause, does not make a case for the jury. "We think, though not without hesitation that the verdict for plaintiff on the defendant’s cross-petition was properly directed, and the judgment is affirmed.

Henry and Marvin, JJ., concur.


author: HENRY, J.

text:
    ACCOUNTING — QUIET TITLE.
    [Cuyahoga (8th) Circuit Court,
    November 15, 1909.]
    Marvin, Winch and Henry, JJ.
    Mart A. Montpelier, Tr. v. Essie Montpelier et al.
    Cross-Petitioner can not Prevent Dismissal of Action to Quiet Title and Demand Accounting.
    When a plaintiff in an action to quiet title desires to dismiss her case, a defendant who by cross-petition asks for an accounting of her equitable interest in the property under a trust can not keep the case in court, the plaintiff trustee not yet having rendered an account of her trust to the proper court.
    Appeal.

      Higley & Maurer, for plaintiff.

      E. J. Grossman and Thompson & Sine, for defendant.
   HENRY, J.

This is an appeal from the judgment of the court of common pleas rendered upon a demurrer in an action to quiet title. The plaintiff now seeks to dismiss her petition and moves also dismissal of the cross-petition filed for the first time in this court by the defendant, Essie Montpelier; the other defendant joins plaintiff in this application. The defendant, Essie Montpelier, however, resists the motion to dismiss her cross-petition and the question before us is her right to insist upon the adjudication of her alleged cause of action. The prayer of her cross-petition is as follows:

“Wherefore this defendant prays that plaintiff may be required and compelled to file herein a list or inventory of all the property of said estate in her possession, or under her control, and also an account of her administration thereof since August 1, 1907; and that said plaintiff be enjoined and restrained from disposing of any of the real estate belonging to said estate, except so much, if any, as this court will find must be disposed of in order to raise a fund, sufficient to pay the present liabilities of said estate, including plaintiff’s annuity; that in the event the court finds it is necessary and proper that' plaintiff should dispose of any of said property, that this court retain jurisdiction over the parties hereto and direct plaintiff to report all sales to this court for confirmation, and compel plaintiff to give such bond as may seem to the court to be proper, to the effect that plaintiff will abide by all orders of the court made in reference thereto; that plaintiff be required and directed to hold the proceeds of any real estate belonging to said- estate hereafter sold by her upon the same trust on which said estate is now held, and be further directed to pay over to defendant on October 15, 1909, one-third thereof, and for such other and further relief as this defendant may be entitled to in the premises. ’ ’

It will be observed that the original action was, as already stated, an action to quiet title and the relief sought by the cross-petition is not strictly germane thereto. The cross-petition does not question the legal title of the plaintiff at the time the action was brought, but seeks relief in respect to the alleged equitable title of the plaintiff in the same property.

Section 5069 ft. S. (Sec. 11317 G. C.) defines a counterclaim thus:

“Affirmative relief can be had by the defendant only on a cause of action arising out of the transaction set forth in the petition or connected with the subject of the plaintiff’s action.”

It is true, of course, in a sense, that the cause of action sought to be asserted in cross-petition arises out of the transaction set forth in the petition, to-wit, a conveyance to Essie Montpelier, by her co-defendant, of an interest in the land described in the petition yet her alleged right to an accounting from the plaintiff trustee is quite independent of the latter’s right to have her legal title as trustee quieted at the time the action was begun.

But be this as it may, an examination of the answer and cross-petition discloses no such facts as confer upon the defendant, Essie Montpelier, the right to require plaintiff to make an accounting of her trust under the direction of this court. The right of the plaintiff as trustee to dispose of the property in question, as well as her title to the property in question, as such trustee, terminated on Ocober 15, 1909. If the plaintiff shall fail to make proper final account of her trust as required by statute, or if it shall be made to appear in the proper forum that she has abused her trust, the cross-petitioner can then obtain full relief, but we think she is not in a position to assert her right to continue, independently of the plaintiff, her litigation in this court.

The petition and cross-petition will therefore be dismissed without prejudice to the right of the defendant, Essie Montpelier, to commence or maintain another action.

Marvin and Winch, JJ., concur.


text:
    LANDLORD AND TENANT.
    [Cuyahoga (8th) Circuit Court,
    November 22, 1909.]
    Marvin, Winch and Henry, JJ.

      John Wageman et al. v. Helen V. Stevens et al., Noah Ellen v. Samuel Lees.
    1. One Cotenant not Bound by Other Lessee Holding Over after Lease Termination.
    One of two lessees named in a lease can not, by merely holding over after termination of the term of the lease, bind his cotenant for payment of rent, said cotenant not participating in the actual occupancy of the premises after termination of the term fixed by the original lease to which he was a party.
    2. Owner’s Right to Maintain Action for Rent Accruing after Expiration of Lease Does not Accrue by Implication to Agent.
    One who sues under favor of Sec. 4995 R. S. (Sec. 11244 G. C.), not as the real party in interest but as the agent with whom and in whose name, as lessor, the original written contract of lease was made, can not maintain an action for rent accruing after the expiration of the express agreement and while the tenant continues as such, merely holding over.
    Error.

      G. C. Hafley and Loomis & Pfeiffer, for plaintiffs in error.

      Humphrey & Taylor, Carpenter, Young & Stocker, and J. S. Kohn, for defendants in error.

       Affirmed, no op., Wageman v. Stevens, 85 Ohio St., 490.

   HENRY, J.

Eaeb of these proceedings involves the liability of a lessee holding over, to pay rent, and requires us to ascertain the true ground of the continued existence of the relationship of landlord and tenant in such case. In either proceeding the parties stand as they did below, and error is prosecuted to reverse a judgment denying recovery for installments of rent alleged to be due from a hold-over tenant.

The precise question in the first ease is whether one of two lessees named in the.original written lease, can, by merely holding over, bind his co-tenant, who never.participated in the actual occupancy of the premises and who was in fact, though not in form, a mere surety for the payment of the rent reserved.

The question in the second case is whether one who sues under favor of See. 4995 R. S. (Sec. 11244 Gr. C.) not as the real party in interest, but as the agent with whom, and in whose name, as lessor, the original written contract was made, can maintain his action for rent accruing after the expiration of their express agreement and while the tenant continues as such merely holding over.

In Baltimore & O. Ry. v. West, 57 Ohio St. 161 [49 N. E. 344], the second and third paragraphs of the syllabus read:

“Where, after the expiration of the term, the tenant holds over and pays rent for a part of another year, without any new arrangement with the landlord, he becomes a tenant for that year at the same rent, and can not terminate the tenancy before the end of the year without the landlord’s consent.
‘ ‘ The obligation of the tenant to pay the rent for the year, in such case, is not within the statute of frauds; the holding over being equivalent to a new entry.”

And at page 168 of the per curiam, opinion, this language quoted later in Gladwell v. Holcomb, 60 Ohio St. 427, 435, [54 N. E. 473] is used:

“The tenant by holding over, is regarded as consenting or proposing to enter upon a new term for another year at the same rent and upon the conditions of the prior occupancy and the landlord's acceptance of the proposed tenancy is presumed from his receiving the rent, or other acquiescence. The agreement arises by implication of law from the conduct of the parties after the expiration of the former tenancy; and, in this respect, is essentially different from those agreements made by parties while in possession under an existing lease, for a new lease to commence in the future; as was the case of Armstrong v. Kattenhorn, 11 Ohio, 265; and Crawford & Murray v. Wick, 18 Ohio St. 190 [98 Am. Dec. 103].
“Here the new agreement grows out of, and is founded upon, the possession evidenced by the holding over, and is therefore referable to it, rather than to the possession under the prior agreement which had expired. The holding over is equivalent to a new entry.”

We hold therefore that the privity of estate, or contract, or both, which the original instruments created, was terminated with the expiration of the terms therein contemplated and that it is a new and independent agreement, by the real parties in interest which the law implies, as between a tenant holding over and the owner of the land. There is no necessity that the implied agreement should be deemed to be between the same parties as the original lease. The new tenancy arises from the circumstances of the case and the conduct and interest of the parties. True, it follows the terms of the old agreement, but it does not depend upon it. It is only actual occupancy, the continuance of which gives rise to the assumpsit in regard to payment of rent. The obligation does not attach to one who has no participation in such actual occupancy. Neither does it accrue by implication of law to anyone whose interest is merely that of agent for the owner of the premises. The right implied is clearly the principal’s right. He alone is deemed to be the landlord; and in like manner the actual occupant must be regarded as the tenant.

It follows that neither the landlord’s agent as such, nor an. original co-lease who has never in fact occupied, is an appropriate party to an action for hold-over rent. There is no cause of action by or against such a party; and accordingly the judgments below are affirmed.

Marvin and Winch, JJ., concur.


text:
    SPECIFIC PERFORMANCE.
    [Cuyahoga (8th) Circuit Court,
    November 30, 1909.]
    Marvin, Winch and Henry, JJ.
    George W. Smith v. Lillian M. Cotton.
    1. Contract for Sale of Realty Must be Enforceable against Both Parties.
    A contract for the sale of realty is not specifically enforceable in equity at the suit of either party, unless it be enforceable also at the suit of the other.
    2. Discretion to Refuse Specific Performance for Want of Clearness or Unfairness.
    In such suit, if it appears that there is any want of clearness, or any unfairness in the contract so sought to be enforced, it rests in the sound discretion of a court of equity to refuse specific performance.
    Error.

      Smith, Taft & Arter, for plaintiff.

      Henderson, Quad <& Siddall, for defendant.
   HENRY, J.

We have reached the conclusion in this case that the motion interposed by the defendants at the conclusion of the plaintiff’s evidence, for judgment dismissing the petition, should be granted.

A contract for the sale of realty is not specifically enforceable, in equity at the suit of either party, unless it be enforceable also at the suit of the other-.

Moreover, if it appears that there is any want of clearness or any unfairness in the contract so sought to be enforced, it rests in the sound discretion of a court of equity to refuse specific enforcement.

The last clause of the contract -upon which this action is founded, is as follows:

“It is further agreed that party of the first part will remain as a stockholder and act as manager for the Euclid-Genesee Realty Company, for a period of five (5) years, at a compensation of twelve hundred dollars ($1,200) per year, as heretofore.”

If this language creates any actual or intended contractual relation between the parties we think it is so inseparably connected with the remainder of their agreement as to preclude its being considered an independent covenant or contract.

It is highly improbable that the defendants would have contracted for the services of the plaintiff except in connection with their acquisition from him of the stock in the corporation to which those services were to be rendered.

Neither can we assume that they would have bargained for the stock in exchange for their land unless they should secure the services of the plaintiff in connection therewith. The stock and the services together must be deemed to be the consideration for the land'which they were selling.

Construing, therefore, the entire contract with reference to this clause, if it shall appear that the object sought to be accomplished by the parties when they inserted this language in their contract is for any reason incapable of accomplishment by the remedy of specific performance, it follows that the entire contract is likewise incapable of such enforcement.

The clause in question has a manifest infirmity in one or more of the three following particulars, to-wit:

It contemplates the employment of the plaintiff by the corporation of which the control was, under the contract, to pass from plaintiff to defendants by the transfer of a majority of the capital stock from the former to the latter. Such a contract to procure corporate action without regard to the interest of the minority stockholders is clearly against public policy, and void. And if so, an important part of the consideration which the defendants obviously supposed themselves to be bargaining for, fails.

On the other hand, if the covenant be construed as binding upon the plaintiff, it is a contract for the performance of personal services by him, and hence under the well known rule of equity, unenforceable by specific performance.

Finally, if the covenant in question be one in form of words only or merely unilateral in its obligation, it is likewise unenforceable by specific performance.

Thus upon any view the concluding clause of this contract being neither separable from, not specifically enforceable in connection with, the remainder thereof, the entire contract is necessarily rendered incapable of specific performance in equity.

We have deemed it more important to announce our conclusion now than to wait until we could cite and review at length the authorities which we have examined.

Marvin and Winch, JJ., concur.


text:
    ERROR — MASTER AND SERVANT.
    [Cuyahoga (8th) Circuit Court,
    December 17, 1909.]
    Marvin, Winch and Henry, JJ.
    Lake Shore & M. S. Ry. v. Martha Latto, Admrx.
    1. Comment on Matters not in Evidence without Admonition or Retraction Reversible Error.
    Misconduct of counsel in commenting upon matters not in evidence, without admonition of the court or retraction by counsel, is reversible error.
    2. Duty of Employer to Furnish Safe Place Measured by Ordinary care.
    In an action for wrongful death it is error to charge the jury that it is .the duty of the employer to furnish a safe place to work and suitable tools for carrying-on the work. Ordinary care is the measure of this duty.
    Error.

      Cook, McGowan & Foote, for plaintiff in error.

      T. S. Dunlap and Harry Payer, for defendant in error.
   HENRY, J.

In this action for wrongful death, the sole issue below was upon the alleged negligence of the defendant company, which is, plaintiff in error here. The death was caused by the explosion of the mud-drum of a horizontal tubular steam boiler.

This mud-drum was a sediment tank, located near the ground at one end of the boiler proper, and suspended from the headers by means of a series of nipples, or short tubes, about five inches long and four and a half inches in diameter. All these parts were, when in use, subjected internally to the full steam pressure of the boiler itself.

About a fortnight before the accident, a leak was discovered at one or more of the nipples, and the entire series was replaced.

The mud-drum was blocked up and each nipple when fitted into its proper place, was rolled into snug union with both the header above and the mud-drum seat below by means of a dudgeon roller inserted therein from the top. A manhole in the header afforded access for this purpose.

The dudgeon roller is a hollow cylindrical steel capsule with three pockets, each of which contains a small, solid steel roll attached. These rolls may be made to partially protrude through apertures in the side of the tool by driving vertically through it a tapering pin, which coming into contact with the rolls through corresponding interior apertures, drives them apart. The three rolls are thus brought to bear forcibly against the interior surface of the tube into which the tool is inserted, and^when the pin is turned by means of the handlever attached to its top by a toggle joint, the rolls are revolved by the friction so as to produce a slight expansion of the tube at the plane or place of contact.

The tool has a collar at the top which rests on the upper edge of the tube, and by proper adjustment the rolls can be brought to bear at any desired level within the tube. When in use, the small rolls are necessarily tilted outward at the top by the taper of the pin which separates them.

The expansion produced by them is therefore greatest at the top, and when adjusted with their upper edges exactly opposite the plane of contact between the nipple and its seat, a steam proof union can be made. If adjusted a trifle higher, a steam proof union with slight shoulder above it can be rolled in a single operation. But, because of the tilt of the rolls when in use, a steam proof union with a shoulder below it,, requires two adjustments, one with the upper edges of the rolls exactly opposite the union, and another immediately below it. If, however, the rolls instead of being cylindrical are in the form of a cone frustrum, the slant of which offsets the taper of the pin, the opposite result may be produced. The shoulders, if any, in these nipples should of course have been above the upper union, and below the Tower one, for greater security in keeping the nipples from detachment under pressure of the steam within. To produce such shoulders by means of an expanding tool having cylindrical rolls, as already shown, three adjustments were necessary, one at the top and two at the bottom.

In this case the roller was of this sort, but only two adjustments were made in rolling each nipple. The workman who used it was but slightly experienced in this particular kind of work. The hydrostatic test applied to the boiler when the job was done, and the fortnight’s use of it, prior to the explosion, showed that he had indeed rolled steam tight unions; but there were no shoulders in the nipples below the mud-drum seat, for none could have resulted from his manner of doing the work. Right there is where the rupture apparently originated, most of the nipples being detached from the mud-drum.

1. Expert evidence offered by the defendant indicates that the nipples should have held without the aid of any solder and a latent flaw in the casting of the iron mud-drum is suggested as a possible alternative explanation of the explosion. But we think that the jury were warranted in finding, as the most probable cause, a negligent failure to roll shoulders in the nipple just below the mud-drum seat.

2. "We have carefully examined the assignments relating to the amount of the verdict and the admission and rejection of testimony, and we find no error in those respects.

3. Misconduct of counsel for plaintiff in argument to the jury and otherwise is also assigned as error. There was strong and apparently indefensible provocation for most of the misconduct complained of. But the following excerpt from the bill of exceptions, page 469, 470, can not thus be passed over:

‘1 Have they tried to conceal anything from you ? Have they objected when testimony was being elicited from witnesses on the stand? Had they offered testimony in those two books, we couldn’t have done it.
“Mr. Foote: Let the record show that at this point counsel holds up two ‘locomotive’ books with the statement that the defendant excluded the evidence from those books, and the inference which counsel seeks to draw from them, and that counsel for defendant objects and excepts to that kind of talk, and asks the court to rule on it.
“Mr. Pater: You may let the record show, for I desire to have it appear in the record, that when you offered the testimony from these books and read it into the record you had those identical books in your hand and offered certain pages from them. You offered in the issue of 1906 and 1907 from page 164 and from page 114 from the issue of 1881. I can not show you what is in the books, gentlemen, because if I did there would be an exception,—
“Mr. Foote: I except to these remarks of counsel.
“Mr. Pater: Not like the one he is making now, for they don’t count for anything, but if I would show you what is in these books, they would take an exception, and that would be error, and I haven’t any right to show you what is in them.
“Mr. Foote: I except to that kind of talk, as to what is in these books.
“Mr. Pater : You will remember this one thing, gentlemen, that he has taken the books and extracted from them certain things that he has dictated to the stenographer, given you certain details of tests, and that he has given you nothing else from the books; that he has submitted those propositions to you just as he has submitted to you the testimony of Mr. Woodward and the other witnesses by picking out for you the passages that might be misleading and omitting all the rest, and the gentleman says he is fair.”

In thus commenting upon what was not in evidence there was misconduct of counsel, which, when objected to, should have been, but was not, rebuked by the court. This we hold is reversible error. SeeHayes v. Smith, 62 Ohio St. 162 [56 N. E. 879] wherein the seventh paragraph of syllabus is:

“For counsel, in the course of argument to the jury, to charge the opposite party with deliberate purpose and effort to suppress the truth, and with having hired an attorney for that purpose, without justification in the evidence, or to state or assume facts matters which are not in evidence, or to comment on testimony which has been ruled out, is an abuse of privilege, and which is misconduct for which a new trial should be granted. ’ ’

4. In the charge of the court, at page 478 of the bill of exceptions occurs this language:

“It is the duty of the defendant company in this case to provide a suitable and reasonably safe place for its workmen to work, and in providing that suitable and ordinarily safe place, they must exercise ordinary prudence, such prudence as people of ordinary discretion and prudence would exercise under like circumstances. They must provide suitable tools for the carrying out of the work that is to be accomplished. They must provide a reasonably safe place for its laboring men, its employes to work.”

Ordinary care is the measure of the duty. Failing thus to qualify all the language used here as to the employer’s duty, was error. Cincinnati, H. & D. Ry. v. Frye, 80 Ohio St. 289 [88 N. E. 642; 131 Am. St. 709] and see also Cleveland City Ry. v. Von Quiram, 81 Ohio St. 523 [91 N. E. 1126].

For these errors the judgment is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


text:
    PRINCIPAL AND SURETY.
    [Cuyahoga (8th) Circuit Court,
    January 17, 1910.]
    Marvin, Winch and Henry, JJ.
    General Construction Co. v. Lakewood (Vil.)
    1, Principal Held Proper Party in Action Against Surety on Same Obligation.
    Because a judgment against a surety binds the principal having notice of the pending action, and payment thereof by the former may be recouped from the latter, in a suit against the surety alone, the principal has “an interest in the controversy adverse to the plaintiff,” and may therefore become a party defendant.
    2, Principal Let In as Party Defendant in Action against Surety May Litigate Counter-claim Notwithstanding Dismissed by Plaintiff.
    Having so become a party defendant, the principal’s answer may contain not only a denial or other strictly defensive matter, but a counter-claim against the plaintiff, and the plaintiff can not thereafter, by dismissing his action, prevent the principal from litigating its counter-claim.

      3. Contract Attached to but Made Part of Pleading not Considered on Demurrer.
    When a contract attached to a pleading is not made a part of it, it can not, on demurrer, be looked to as varying the allegations with respect to the contract set up in the pleading proper.
    Error.

      Thompson & Rine, for plaintiff in error.

      E. R. J. Hobday and Stearns, Chamberlain & Boyan, for defendant in error.
   HENRY, J.

By this proceeding in error the General Construction Co. seeks a reversal of the judgment of the court of common pleas dismissing its answer and cross-petition.

The action below was commenced by the village of Lakewood against Thomas H. Garland & Sons and the Fidelity & Deposit Co. to recover upon a contractor’s bond. Thomas H. Garland & Sons were the original contractors, but with the acquiescence of all parties their contract had been assigned to and assumed by the General Construction Co., plaintiff in error here. The latter was not made a party to the original action, although the petition discloses its interest in the controversy. This practice accords with the provision of Sec. 5009, Rev. Stat. that: "One or more of the persons severally liable on an instrument may be included in the same action thereon.”

Afterwards the General Construction Company, of its own motion, intervened by leave of court, and becoming a new party defendant filed its answer and cross-petition, wherein it prayed for affirmative relief in damages against the village of Lakewood for alleged breach of the same contract. This practice is authorized by Section 5006, Revised Statutes, which provides that:

"Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.”

It is elementary that a judgment against a surety binds the principal having notice of the pending action, and payment thereof by the former may be recouped from the latter. So that in a suit against , the surety alone the principal clearly has “an interest in the controversy adverse to the plaintiff,” and may therefore become a party defendant.

Having once become a defendant, the principal’s answer, under favor of Sec. 5066, may not only contain a denial or other strictly defensive matter, but also may plead such counter-claim as “a cause of action existing in favor of a defendant and against a plaintiff or another defendant, or both, between whom a several judgment might be had in the action and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.” The principles of set-off are also applicable to this situation, so that, as held in Wagner v. Stocking 22 Ohio St, 297, “in an action on a joint debt against principal and surety a demand due from the plaintiff to the principal, under the provisions of the code, may be set off against the claim of the plaintiff. ’ ’

In the case before us, however, when it appeared upon the trial that the plaintiff must fail in its action to recover on the contractor’s bond, the General Construction Co.’s answer and cross-petition was, on motion of the plaintiff, without opportunity being given to it to introduce testimony in support of its counter-claims, dismissed, and this ruling is the error complained of here.

On the other hand it is claimed that the General Construction Co., if it had any right whatever to intervene and become a defendant in the case, clearly had no right to remain in it for any purpose after its occasion for defending against the recovery of a judgment against its surety had ceased. That there are some limitations to the right to make additional defendants in cases of this sort appears from Wilkins v. Ohio National Bank, 31 Ohio St. 565, the syllabus of which is:

“Where the holder of a joint and several obligation elects to sue one of the obligors who is only a surety thereon, it is not competent for the defendant by cross-petition or otherwise, to bring in his principal for the purpose of having the relation of principal and surety certified under Section 449,' of the code, although the holder knew that such relation existed. ’ ’

So also in Hillier v. Stewart 26 Ohio St. 652, it was held that:

“In an action on a promissory note by the holder against the maker it is irregular and improper for the court to let in a new party on his own motion and that against the objection of the plaintiff, with leave to file an answer and cross-petition to contest the bona fides of the plaintiff’s title to the note and to assert therein an equity of the cross-petitioner derived through the plaintiff’s assignor, who is also a necessary party to the determination of the case made in the cross-petition. Such relief should be sought by an original petition. ’ ’

It is very evident from the former of these cases that the right of the plaintiff under Sec. 5009 R. S. (Sec. 11258 G. C.) to pursue the surety alone if he so elects, can not be impaired by permitting the latter, under Sec. 5006 R. S. (Sec. 11255 G. C.), to bring in his principal in order to have their mutual rights and obligations determined.

From the second of these authorities it is manifest also that no one can intervene in an action for the mere purpose of asserting an affirmative cause of action against the plaintiff. In either of these cases the relief sought must be by an independent action'. But neither of these cases goes so far as to hold that where an intervenor must interpose his defense to the plaintiff’s claim in the pending action or else run the risk of having an ultimate liability irrevocably fixed upon him, he is nevertheless denied the right to become a party defendant upon his own motion. Neither do they hold that when he has properly become a party defendant his rights are any less than those of a defendant who was made such originally by the plaintiff himself.

We therefore hold that the General Construction Co. was properly allowed to become a party to the action below and that its answer and cross-petition was, unless demurrable, improperly dismissed. It is said, however, that it fails to state facts sufficient to constitute a cause of action. The argument in support of this contention necessarily takes account of the terms of the written contract between the parties which is attached as an exhibition to the petition, and which the General Construction Co. ’s answer admits to be so attached. The contract is not, however, made a part of either pleading, by reference or otherwise. We can not, therefore, take it into account in passing upon this question.

As the contract is pleaded in the answer and cross-petition in substance, and in accordance with the pleader’s interpretation thereof, it affords no basis for the construction for which counsel for the village of Lakewood have argued. Upon its face the answer and cross-petition is not demurrable.

A further objection to the entertaining of the petition in error here is based upon the proposition that some parties to the record in the court of common pleas are not made parties to this proceeding in error.

But in Roberts v. Roberts, 61 Ohio St. 96 [55 N. E. 411], it is held upon a state of the record like that which we have here that:

“In such petition in error it is sufficient if all the parties in interest in the judgment sought to be reversed are made parties. When nothing is claimed for or against a party in the pleadings, and nothing is adjusted for or against him in the judgment, it is not error to omit such party from proceedings in error.’ ’

It is also objected that there is no bill of exceptions here and that the error complained of is not reviewable without the evidence. We have, it is true, repeatedly held that a bill of exceptions exhibiting all the evidence is necessary to enable us to review the correctness of a ruling or rulings by the trial court directing a verdict or judgment for the defendant at the close of the plaintiff’s evidence. The case here is very different. The transcript shows that the answer and cross-petition of the plaintiff in error was dismissed without any opportunity being given to introduce evidence in support of it. No conceivable state of the evidence that had already been offered in behalf of the village of Lakewood could authorize the court to direct a judgment in its favor upon the answer and cross-petition of the General Construction Co. before the latter had had a chance to maintain its claim by its introduction of evidence, hence no resort to the evidence in this ease is necessary, and no bill of exceptions is required to exhibit the error complained of.

For error in dismissing the answer and cross-petition of thé plaintiff in error the judgment is reversed and the cause remanded.

Winch, J., concurs.

Marvin, J., not sitting.


text:
    INNKEEPERS.
    [Cuyahoga (8th) Circuit Court,
    January 17, 1910.]
    Marvin, Winch and Henry, JJ.
    Alfred Aloe v. E. Fuller.
    Hotel Keeper’s Liability for Theft by Employe Based on Fact that Employe Must be Engaged in Master’s Business, or Plaintiff is Guest, not Boarder.
    One who has property stolen from him in a hotel by an employe of the proprietor of the hotel, in order to recover in an action against the proprietor must show, either that the dishonest employe stole when engaged in his master’s business, or that he sustained the relation of guest and not of boarder to the hotel.
    Error.

      Riley & McQuigg, for plaintiff in error.

      Solders, Thayer & Mansfield, for defendant in error.
   HENRY, J.

The parties to this proceeding in error stand as they stood below, where a verdict and judgment for the defendant was directed at the close of the plaintiff’s evidence. The plaintiff is a captain in the regular army, and came to Cleveland on recruiting service, the duties of which commonly occupy a period of two years at a single post. He sought and obtained accommodations for himself and family, consisting of several persons, at the Garfield Apartment Hotel, at the rate of $72 a month for his lodgings and $21 per week per person for meals. After having remained there some months he and his family had occasion to go to Chicago for about a week and locking the door of their apartment, they entrusted the key, before leaving, to the night watchman, who was the person on duty in the office that night. Upon returning they found that an employe of the defendant (who was the proprietor of the house), had broken into their lodgings and stolen personal property valued at over $200, During their absence in Chicago they paid at the regular rate for both board and lodgings precisely as if they had been present. The family stayed in the hotel some months longer, having during all this time no other home than the apartment hotel aforesaid. Their household goods were there, and there they lived, though it does not appear what their contract provided, if anything, upon the subject of the duration of their stay, or of the termination of their obligation to pay for their board and lodgings in case of their leaving permanently at any time, in the middle of a month or week, as the case might be.

The action below was brought to recover the value of the goods stolen. The petition counts solely upon the relation of innkeeper and guest. It is true that it alleges that the theft was committed by one of the defendant’s employes, but it fails to state what the scope of the employe’s duty was, and for aught that appears it may have been totally foreign to the time and place of the theft. It must of course appear that the wrongful conduct of an employe was while he was upon his master.’s business, in order to enable any third person who is injured by such wrongful conduct to claim indemnity from the employer, upon the doctrine of respondeat superior.

The relation of innkeeper and guest is, however, properly set forth in the .petition and the evidence, which is brought up by bill of exceptions, discloses facts sufficient to warrant the inference that the proprietor of the Garfield Apartment Hotel was an innkeeper. The real difficulty hinges upon the question _ whether Captain Aloe and his family were guests or merely boarders.

In the only parallel case that was cited to us on behalf of the plaintiff in error, to-wit, the case of General Hancock, 48 Am. Rep. 112, a recovery for his loss was allowed upon the theory that he was a guest, because his contract authorized his permanent departure at any time, although, in fact, he remained for a long period of time as a guest of the inn or hotel where he stopped.

In the present case some attempt was made to introduce a section of the United States army regulations in order to show the necessarily uncertain and transient character of- Captain Aloe’s residence at any post of duty. This evidence was excluded, and probably upon the correct theory that the defendant could not be bound by an army regulation of which, so far as appears, he had no notice whatever, and in any event, the regulation so denied introduction in evidence is not set forth in the bill of exceptions, and we are unable to say what it might have disclosed. At most, its sole possible bearing would be as to the terms of the contract between the parties, if those terms were implied instead of being expressed. As it is, we have searched the record in vain for an indication as to the contract’s provisions, if any, either express or implied, relating to its duration. The house was of a character to accommodate both guests and boarders. Captain Aloe’s relations to the house, so far as disclosed are compatible with either relation, but whether he was a guest or a boarder, we can not decide. The burden was upon him to establish the allegations of his petition in that behalf; it was incumbent upon him to show affirmatively that the terms of his contract were such as to constitute him a guest and not a boarder. Having failed so to do he was not entitled to go to the jury, and the court below was warranted in directing a verdict for the defendant.

The suggestion was made to us upon the hearing that the defendant in error is dead, and until the name of his personal representative is -supplied to us, we shall necessarily defer entering the judgment of affirmance.

Winch, J., concurs.

Marvin, J., not sitting.


text:
    DEATH — MALPRACTICE—VERDICT—WITNESSES.
    [Cuyahoga (8th) Circuit Court,
    January 17, 1910.]
    Marvin, Winch and Henry, JJ.
    Clifton D. Ellis v. Charles R. Twiggs.
    1. Discretionary Course of Treatment Challenged Question is for Jury.
    While an action for malpractice can not be successfully founded upon a claim that the physician has taken one of two discretionary courses, concerning the relative propriety of which doctors disagree, yet when the propriety of the course actually taken is challenged, the question is one for the jury to determine as to whether the course taken was improper, so as to manifest want of ordinary skill and care, or whether its propriety is, under the evidence, a discretionary question.
    2. Marital Relation Shown Sufficient to Authorize Substantial as Distinguished from Nominal Damages for Wrongful Death.
    In an action for wrongful death it is unnecessary to show more than that the deceased bore the relation of wife and mother to the persons for whose interest the action is brought, in order to authorize substantial, as distinguished from nominal damages.
    3. Interrogatories Testing Correctness of General Verdict Sufficient.
    Interrogatories must be directed to the ascertainment of the jury’s mind concerning facts in issue; not merely ultimate facts, but determinative facts. It is sufficient if they are of such a nature as that the answer to them, when deliberated upon and returned by the jury, shall tend to test the correctness of the general verdict.
    4. Suggesting to Jury that Expert Witnesses Fail to Comprehend Hypothetical Questions Submitted, Improper.
    It is improper to suggest to the jury that expert witnesses might,through inattention, fail to comprehend the true meaning of hypothetical questions put to them.
    Error.

      Foram, & Powell, for plaintiff in error.

      Walter D. Meals, for defendant in error.
   HENRY, J.

The parties to this proceeding in error stand in the relation opposite to that in which they stood below. There Twiggs brought his action against Dr. Ellis for wrongfully causing the death of the former’s wife and intestate, by obstetrical malpractice. Mr. Twiggs consulted Dr. Ellis about the last of March, 1905, and upon examination he found that she was threatened with ■ involuntary abortions.

The threatened event occurred on or about April 5. The afterbirth was not removed until about April 9th, its removal being, as Dr. Ellis claims, impracticable until that time.

Afterwards, between April 12 and 29th (one witness positively fixes the former date; see bill of exception, page 198), Mrs. Twiggs exhibited some of the characteristic symptoms of blood poisoning, i. e., chills and fever. On the latter date she went with her husband to the doctor’s office. He, finding that she was suffering from fever, ordered her to go home and to go to bed and stay there. This she did, languishing until her death, June 17, following. Dr. Ellis was in attendance upon her most if not all of this time, although it appears that about the middle of April his patient seemed to be better, so that she determined to dispense with his services and with those of her nurse. The dates as fixed by different witnesses are so confused, that we can say nothing with positiveness as to the actual facts in regard to these details.

A verdict and judgment of $1,500 were recovered against Dr. Ellis.

The errors alleged by him are:

1. The verdict is unsupported by the evidence, both as to fact of liability and the amount of the damages.
2. The refusal of the court to submit to the jury this interrogatory: “When did the decedent first manifest fever or chill, as a sympton of the infection of which she died?”
3. The charge of the court concerning expert witnesses, as follows:
“Much of the evidence in this case has been the evidence of experts, what we call expert witnesses. Witnesses who have particular learning or experience of knowledge about matters that are involved in the trial of the case, are called here to give their opinions, based upon á given state of facts, and many of those expert witnesses never saw this woman perhaps; they gave their opinion here based upon a statement of facts as claimed by counsel to have been proved by their witnesses. Expert testimony has some peculiar qualities. It is possible sometimes that expert witnesses may not be put in full possession of the case as it really is before the jury. Some omissions of counsel in' stating a hypothetical case, some inattention of the witness in listening to it, if it is a long question — there is always some — and possible at least, that there may be some slip of that kind. I don’t say that there was any such thing occurred in this case, but that liability, however slight, as it may be, attends more or less the introduction of expert testimony. Sometimes an expert witness takes an interest in one side of a case or in another. He wants to- help somebody or to hurt somebody, and his opinion may be more or less warped, just as the testimony of other witnesses may be more or less warped by interest or by desire to have a certain result to.the case. Some expert witnesses may be more intelligent than others. Some have had more experience than others. Some show from their testimony that they have a better grasp of the case that is put to them than others, and so the testimony of expert witnesses and the value of it may vary — may differ. Now I mention these things not to discredit expert testimony at all, but to enable you gentlemen to weigh that class of evidence, as it is not very frequently that yon are called upon to consider that class of evidence, and I have stated these things to enable you to weigh these expert witnesses and their testimony as it should be weighed. The testimony of an expert witness may, for various reasons, be of little value; may not be so reliable as that of another; may be for want of experience or ability, and so on. Other expert witnesses may render the jury more valuable service. Men who. are candid and capable and clear in their statements, showing that they comprehend the situation, may give the jury very valuable assistance só now I will leave that kind of testimony for your consideration, with these suggestions for your guidance.”

4. The plaintiff in -error also complains of the admissions of sundry hypothetical questions as embracing matters not in evidence.

Concerning the first of these assignments of error, the evidence discloses that it is dangerous to leave the afterbirth Undelivered for as long a period as four days after the delivery of the foetus, in cases of abortion, because it is liable to occasion. infection or blood poisoning. True, some of the physicians say that under the circumstances which Dr. Ellis testifies existed in this case the procedure in question was proper; but other physicians testify that it is improper in any case. While it is undoubtedly true that an action for malpractice can not be successfully founded upon the claim that the physician has taken one of two discretionary courses concerning the relative propriety of which' doctors disagree, yet when the propriety of the course actually taken is challenged, as in this case, the question is one for the jury to determine as to whether the course' taken was improper, so as to manifest want of ordinary skill and care on the part of the physician, or whether its propriety is, under the evidence, a discretionary question. The true doctrine should of course be presented to the jury in the charge, and no complaint is made of the charge in this behalf in the case before us. We can not say, from the evidence, that the jury were wrong in finding that the conduct of Dr. Ellis in this case was irreconcilable with the exercise by him of ordinary skill and care as a physician. If the case were originally presented to us, we might essay a decision, but our province is solely to determine whether the jury had any substantial evidence on which to found the verdict at which they arrived.

It is' claimed, however, that upon the facts of this case it is apparent that the blood poisoning originated from some other cause than the delay in removing the afterbirth. It appears to be agreed that infection declares itself within three days after exposure thereto, and Dr. Ellis claims that the first appearance of infection in Mrs. Twigg’s case was nearly three weeks after the removal of the afterbirth. But, as already stated, one witness positively declares that on April 12, while Dr. Ellis was still in attendance upon his patient, and before his alleged dismissal by her, Mrs. Twiggs was suffering from a chill, and there is some testimony at least that the condition of the afterbirth when removed was such as to compel the inference of infection already declared at that time. Moreover, Dr. Ellis himself signed the death certificate in which he had written as the “cause of death: Placenta-Previas (?) auto-infection, duration twelve weeks. Contributory cause of death: Sepsis, duration eleven weeks.” While the duration of cause, or contributory cause of death as thus given by Dr. Ellis is too great to support his own theory, it is likewise too great to support the theory of the plaintiff. It is however significant that the difference of duration is but a week between the inception of the cause of death to-wit, auto-infection, superinduced by some condition of the placenta, or afterbirth, and the appearance of the contributory, cause of death, to-wit, sepsis or blood poisoning. Dr. Ellis now says that this interval was three weeks instead of one. It seems to us that while this death certificate is by no means conclusive of negligence or unskillfulness, it is pretty nearly conclusive as to the origin in both time and cause of the condition which resulted in the patient’s death. All in all we are not prepared to say from a considération of this record alone that the verdict is either unsupported by any evidence, or contrary to the weight of the evidence.

As to the measure of damages it is claimed that nothing is shown in the evidence regarding any actual pecuniary damages sustained by any of the next of kin, the husband and children of the deceased. We think it is unnecessary to show anything more than the fact of wifehood and motherhood to authorize substantial as distinguished from nominal damages.

See Lake Shore & M. S. Ry. v. Murphy, 50 Ohio St. 135 [33 N. E. 403] ; Cincinnati St. Ry. v. Altemeier, 60 Ohio St. 10 [53 N. E. 300.]

Concerning the request for a special finding, we think it should have been granted. The time when the infection first declared itself was as already shown, a most important fact of the case. It is perhaps true that the most favorable answer from Dr. Ellis’ standpoint to the question thus sought to be asked of the jury in his behalf would have involved no such inconsistency with the general verdict against him as to require or warrant the granting of a motion for judgment non obstante veredicto, if interposed by him. But this is not the exclusive test to be applied in passing upon a request to submit interrogatories to the jury. It is true, of couse, that misleading interrogatories should not he submitted, nor those which relate merely to processes by means of which the jury arrive at their general verdict.

The interrogatories must be directed to the ascertainment of the jury’s mind concerning facts in issue, not merely ultimate facts, but determinative facts. It is sufficient if they are of such nature as that the answer to them, when delivered upon and returned by the jury shall tend to test the correctness of the general verdict. Cleveland Elec. Ry. v. Hawkins, 64 Ohio St. 391 [60 N. E. 558]; Gale v. Priddy, 66 Ohio St. 400 [64 N. E. 437],

The interrogatory in this case, we think, would have tended to test the correctness of the general verdict and it should therefore have been submitted. To refuse to submit it was error.

Concerning the third assignment of error, the charge of the court on expert witnesses, we note particularly this sentence: ‘ ‘ Some omissions of counsel in stating a hypothetical case, some inattention to the witness in listening to it, if it is a long question —there is always some — and possible at least that there may be some slip of that kind.”

All the witnesses of the defendant below were physicians. The hypothetical questions asked of them were necessarily long, much longer than those which the theory of the plaintiff below required in the ease of the hypothetical questions propounded to his expert witnesses. The statement quoted from the charge was therefore discriminatory against the defendant’s witnesses. We think it was improper to suggest to the jury that these expert witnesses might, through inattention, have failed to comprehend the true meaning of the questions put to them. Experts are called because of their superior learning and intelligence in some direction, and a professional expert can not be presumed to be any less likely to comprehend the meaning of a question, long though it may be, than any other witness. To ascribe inattention to them, even by way of suggestion, may well mislead the jury into speculation concerning the unreliability of expert testimony, even within the sphere of its conceded value. See Insurance Co. v. Howle, 68 Ohio St. 614, 622 [68 N. E. 4]; State v. Tuttle, 67 Ohio St. 440 [66 N. E. 524, 93 Am. St. 689]. (4th paragraph of the syllabus.)

We think the court erred in intimating that there may have been some inattention on the part of the expert witnesses in listening to any hypothetical questions.

Concerning the fourth and last error assigned, we content ourselves with the remark that the hypothetical questions objected to and allowed to be put to witness by plaintiff below are not so plainly inclusive of facts, for which there is no evidence, as to warrant our finding error in the overruling of. the objections made thereto.

Upon the whole record we find no error, except as already noted, to-wit:

1st. In refusing to submit the interrogatory to the jury as requested by the defendant below.
2. In charging the jury that expert witnesses may have been inattentive to some elements in long hypothetical questions.

For these two errors the judgment of the court of common pleas is reversed and the cause remanded for a new trial.

Winch, J., concurs.

Marvin, J., not sitting.


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    CRIMINAL LAW — INDICTMENTS—OBSCENITY.
    [Cuyahoga (8th) Circuit Court,
    January 24, 1910.]
    Marvin, Winch and Henry, JJ.
    Albert C. Goode et al v. State.
    1. Surplusage or Indefiniteness in Indictment not Fatal.
    An indictment is not bad solely because it contains surplusage, nor is it indefinite if it affords the accused protection in his legal . rights in making a defense and also furnishes him a record of conviction or acquittal that he may interpose if indicted a second time for the same offense.

      2. “Obscene,” “Lewd” and “Lascivious” and Synonyms, Construed.
    In a trial for unlawfully exhibiting obscene, lewd and lascivious figures, etc., the court charged that words “obscene,” “lewd” and “lascivious” were to be taken and construed together, as charging a single offense and to be considered in their ordinary signification and in their popular sense. He also, in defining said words separately, gave synonyms of them approved by lexicographers, some of which synonyms do not possess the precise content or meaning which the entire phrase carries; Held; Not reversible error.
    Error.

      Harry F. Payer, for plaintiff in error.

      John A. Cline, for defendants in error.
   HENRY, J.

The plaintiffs in error were convicted of violating See. 7022 Rev. Stat., under an indictment which charged that they “unlawfully did exhibit obscene, lewd and lascivious figures, images and casts, to-wit: of the nude female body with openings; of male sexual organs; of venereal diseases; of human organs; of deformed human heads. Said obscene, lewd and lascivious figures, images and easts then and there being of material to the grand jurors unknown and said obscene, lewd and lascivious figures, images and casts then and there being articles of an immoral and indecent nature,” etc.

The first error assigned is that the indictment is bad for want of sufficient facts, for indefinteness and multiplicity.

There is undoubtedly surplusage therein, but this may be rejected and still leave a sufficient description of the offense.

■ “Extreme particularity is neither necessary nor desirable in such eases. For the accused it is sufficient if there be such degree of certainty as will afford him protection in the exercise of his legal rights in making a defense, and also to furnish a record of conviction or acquittal, that could be interposed if indicted the second time for the same offense.” State v. Zurhorst, 75 Ohio St. 232, 239 [79 N. E. 238; 116 Am. St. 724; 9 Ann. Cas. 45].

Upon the authority of that decision, fortified as it is by numerous cited decisions closely in point here, we hold the indictment to be valid.

The second assignment of error is upon the admission in, evidence of numerous exhibits, irrelevant to the prosecution.

No such instance has been particularly called to our attention, and upon inspection of the revolting exhibits, which, by direction of the court, were detached from the bill of exceptions, we fail to find any that were inadmissible under the broad allegations of the indictment.

The third error assigned is that the bill of exceptions discloses no evidence to show that the plaintiffs in error, both of whom were employed upstairs in the physician’s office, were exhibitors of the objects contained in the proprietor’s anatomical museum below. But the connection between these two apartments is shown to have been so immediate and intimate as to justify the inference that the employes upstairs were chargeable with participation in the maintenance of the exhibits downstairs.

The remaining assignments of error relate to the charge of the court:

(a.) In failing to lay down as the test of criminality the tendency of the exhibits to allure beholders to sexual impurity and to arouse libidinous thoughts.
(&.) In giving remote synonyms of the words obscene, lewd and lascivious, thereby authorizing a conviction if the exhibits were merely offensive to the taste.
(c.) In charging that it is sufficient if some considerable class of the community is liable to inspect these casts and be depraved and-degraded thereby.

We find no error in the charge in these particulars.

The court charged that the words ‘ ‘ obscene, lewd and lascivious” are to be taken and construed together, as charging a single offense, and “they are to be construed and considered by you in their ordinary signification and in their popular sense.”

The fact that in defining each of these words separately synonyms approved by lexicographers were employed, some of which do not possess the precise content or meaning which the' entire phrase carries, could not mislead the jury, and the fact that the larger part of the community may be disgusted rather than allured to depravity by the exhibits in question does not afford a defense. As remarked in State v. Zurhorst, supra, “the entire section aims to prevent, the contamination of ou£ youth and the demoralization of the public mind. ’5

From our inspection of the exhibits we are far from being able to say that the jury went wrong in finding as they did, that they were adapted to minister to the obscene, lewd and lascivious curiosity of certain classes in the community.

Finding no error in the record, we affirm the judgment below.

Marvin, J., concurs.

Winch, J., not sitting.


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    INSURANCE.
    [Cuyahoga (8th) Circuit Court,
    February 10, 1910.]
    Marvin, Winch and Henry, JJ.

      Moses Garrett v. Travelers Insurance Co.
    Injured Employe not Subrogated to Rights of Policy Holder.
    When insurance is only against loss from liábility incurred by the party insured to an injured employe, the latter can not be subrogated, in case of the former’s insolvency, to the policy holder’s right to indemnity in whole or in part.
    Error.
    W. C. Ong, for plaintiff in error.

      Hoyt, Dustin, Kelley, McKe,eh,cm & Andrews, for defendant in error.

      Affirming Garrett v. Traveler’ Ins. Co., 20 Dec. 181 (9 N. S. 412).

   HENRY, J.

The parties stand as they stood below. There the action was upon a policy, of employer’s liability insurance issued by the Travelers Insurance Co. to John Miller & Co., in whose employ Garrett was injured, under circumstances which brought his ease within the terms of the policy. He had previously recovered a judgment of $500 against his employer for said injury, but the judgment debtor has meanwhile become utterly insolvent, so that nothing cam be collected directly upon the judgment; hence Garrett sues upon said policy which insured John Miller & Co. against loss from liability in damages for injuries to their employes.

This case is to be distinguished from those in which the contract of insurance is against liability instead of merely against loss from liability as here. When this distinction is observed we find but one case which squarely supports the plaintiff’s theory, Sanders v. Frankfort M. A. & P. G. Ins. Go., 72 N. H. 485 [57 Atl. 655; 101 Am. St. 688]. The overwhelming weight of authority is to the contrary. Connolly v. Bolster, 187 Mass. 266 [72 N. E. 981]; Cushman v. Carbondale Fuel Co., 122 Ia. 656 [98 N. W. 509]; Allen v. Gilman McNeill & Co., 137 Fed. 136; Allen v. Aetna Life Ins. Co., 145 Fed. 881.

Upon the authority of these and many other decisions to the same effect, as well as upon principle, we hold that no action lies upon a policy insuring against loss from liability until the loss contemplated is sustained by the party, insured. But when the insurance is against liability incurred by the party insured to an injured employe, the latter may undoubtedly be subrogated in ease of the former’s insolvency to the policy holder’s right to indemnity in whole or in part, as circumstances may warrant, but such is not this case, and the judgment is affirmed.

Marvin and Winch, JJ., concur.


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    CONTEMPT.
    [Cuyahoga (8th) Circuit Court,
    May 9, 1910.]
    Marvin, Winch and Henry, JJ.
    Charles O. Rehburg v. A. J. Hirstius, Sheriff, et al.
    Jurisdiction of J.'P. to Punish for Refusal to Answer Question Germane to Case.
    A justice of the peace has, power to punish a witness in a case before him for refusal to answer a question germane to an injury as to the service in the case.

      Error.

      Laubscher & Kees, for plaintiff in error.

      Walter McMahon, for defendant in error.
   HENRY, J.

The action below was a proceeding in habeas corpus begun by Charles.0. Rehburg to obtain his release from imprisonment for contempt of court in refusing to answer the question “Who does business as H. Rehburg, if you know,” in a civil action brought before a justice of the peace against “H. Rehburg, doing business as Rehburg Electrical Co.”

Upon suggestion that H. Rehburg was dead, that the return of service upon him was erroneous, and that service had in fact been made upon Charles 0. Rehburg, who was not the proprietor of the business in question, the justice advised him to move to quash the service of summons upon him. Such motion was thereupon made, and Charles 0. Rehburg was sworn as a witness in support of his said motion. Upon cross-examination he declined to answer the question above quoted.

We think the justice had jurisdiction to inquire into the validity of this service, the return of which was apparently regular. But whether so or not, the plaintiff in error was estopped to deny the jurisdiction which his own motion invoked. ■ It is no answer to say that he was trapped into his present plight. The suggestion by the justice that he made the motion to quash was in no sense coercive. Nor could he, by forbearing to press his motion, or to offer his own further testimony in support of it, deprive the court of jurisdiction to continue the inquiry concerning the truth of the return of service and to compel the witness to submit to such reasonable cross-examination as would test his veracity and recollection.

Judgment affirmed.

Marvin and Winch, 33., concur.


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    CHARGE TO JURY.
    [Cuyahoga (8th) Circuit Court,
    May 9, 1910.]
    Marvin, Winch and Henry, JJ.

      Northern Ohio Trac. & L. Co. v. Ralph Carr, by Next Friend.
    Error in Refusing Requests Cured by Special Findings of Jury.
    Though proper requests to charge are refused, the error in refusing them is not prejudicial if the answers of the jury to special interrogatories submitted to it render the requests irrelevant.
    Error.

      Ford, Swyder & Tilden, for plaintiff in error.

      A. W. Lamson and W. B. Beebe, for defendant in error.

      Affirmed, no op., Northern Ohio Trac. Co. v. Carr, 84 Ohio St., 458.

   HENRY, J.

The defendant in error was plaintiff below, where he recovered a verdict and judgment in an action for damages for personal injuries sustained by him while a pasenger upon one of plaintiff in error’s interurban cars, by being thrown from the rear platform of said car through the motorman’s negligence in rounding a sharp curve too rapidly.

Among the errors assigned here, the exclusion of certain evidence is cured by the subsequent admission of the same evidence in the later testimony of the witness who was then being examined. So also the refusal of certain requests to charge presented by the defendant below, is cured by the special findings of fact made by the jury in answer to interrogatories submitted to them, thus rendering the requests irrelevant. Toledo, St. L. & W. Ry. v. Burr & Jeakle, 82 Ohio St. 129 [92 N. E. 27; 137 Am. St. 771],

The sole remaining assignment of error relates to the following paragraph in the court’s charge, which was otherwise both comprehensive and accurate:

“Where a passenger has received injuries upon the cars of a common carrier of passengers, a presumption of negligence may arise against the carrier by reason of the facts and circumstances under which the injuries are received. If you find that the facts and circumstances of this case raise such inference against the defendant, then the defendant will be required to introduce sufficient evidence to counter balance any such inference; otherwise you will be warranted in finding the defendant negligent. ’ ’

It is urged that this was misleading, because, if there were any evidence tending to prove such facts and circumstances as would raise a presumption of negligence on the part of the defendant below, the jury should have been told what they were, instead of being allowed to speculate about them; for “a presumption is a deduction which the law expressly directs to be made from particular facts,” irrespective of any process of reasoning therefrom by the jury. Not having been thus advised, the jury should not, it is urged, have been told to take the inference, if any, of negligence which they might deem to be annexed by law to the facts and circumstances, as ascertained by them from the evidence, and to weight against such inference the evidence, if any, introduced by the defendant to counter-balance it.

The language of the court is indeed open to this criticism; but we think it does not amount in this case to reversible error. While the trial judge doubtless had in mind the res ipsa loquitur doctrine, without, however, adequately applying it to the case in hand, the jury could hardly have understood, from this language of his, anything else than what is elsewhere in the charge fully and correctly stated, to-wit, that they were required to find by a preponderance of all the evidence whether or not the defendant was chargeable with negligence as alleged in the petition and as defined by the court.

The first sentence, in the paragraph complained of, really means nothing else than that negligence may be proved by circumstantial evidence; which is, of course, true. The second sentence, considered apart from the clause about the defendant’s being required to introduce evidence, is pure tautology, an identical proposition, axiomatic and harmless.

“If you find that the facts and circumstances of this case raise such inference against the defendant, then you will be warranted in finding the defendant negligent.”

This language is surely rendered no worse for the defendant below by including the omitted clause, which affords it some opportunity at least, of escape from the prescribed conclusion. No new burden of any kind is imposed upon the defendant. While this part of the charge could hardly have aided the jury, we fail to see how it could have prejudiced the defendant. The judgment is affirmed.

Winch, J., concurs.

Marvin, J., not sitting.


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    EXECUTIONS.
    [Cuyahoga (8th) Circuit Court,
    May 31, 1910.]
    Marvin, Winch and Henry, JJ.
    James Van Nover v. David Eshleman et al.
    Execution on Dormant Judgment Voidable only and Must be Set Aside on Motion to Release Lien.
    An execution upon a dormant judgment is not absolutely void, but voidable only, and must first be set aside upon motion made in the court whence it issued, before it ceases to be a lien upon the land upon which it was levied.
    Error.

      J ohn McSweeney and M. L. Spooner, for plaintiff in error.

      A. D. Metz, Higley & Maurer and Hills & Van Derveer, for defendant in error.
   HENRY, J.

The main question sought to be presented in this case is as to the validity of an execution issued between the date of a conditional order of revivor of a dormant judgment and the date of the order making such revivor absolute. We have not found it necessary to consider this question because of our conclusion upon a secondary question presented in argument relative to the validity of executions issued upon judgments that are dormant irrespective of the pendency of revivor proceedings. The authorities clearly hold that such executions are not void but merely voidable, and they may be set aside only upon motion made in the court whence such execution issues. Freeman, Executions, Secs. 29, 30, 75 and 76; Green v. Cutwright, Wright 738.

We fail to see that Kelley v. Vincent, 8 Ohio St. 415, sometimes cited to the contrary, is in point. The action below is an independent suit brought to marshal liens and to foreclose the lien of a judgment rendered in a foreign country, which lien arises, if at all, from the execution in question issued to the sheriff of this county and levied upon the lands here. We think the execution was not void, but at most only voidable, and that it could only be set aside by a motion in the court from which it issued.

It follows that the judgment of the court below which found the contrary is erroneous, and the same is reversed and the cause remanded for further proceedings according to law.

Marvin and Winch, JJ., concur.


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    ASSESSORS.
    [Cuyahoga (8th) Circuit Court,
    May 31, 1910.]
    Marvin, Winch and Henry, JJ.
    State, ex rel James McMahon v. Patrick Carlin.
    Failure to Elect Municipal Assessors Results in Vacancy, not Holdover.
    Under Sec. 3352 G. C., a vacancy and not a holdover results when there is no duly elected and qualified successor to a ward or precinct assessor.
    Quo Warranto.

      George A. McGrath, for relator.
   HENRY, J.

This is an. action in quo warranto to test the right of the relator and defendant respectively to hold the office of assessor in the eighth ward of the city of Cleveland. The relator claims to hold over because the defendant who was elected to succeed him in said office is disqualified by noncitizenship. Under Secs. 6762-6764 R. S. (Secs. 12305-12307 G. C.), the relator can not maintain this action unless he claims, with some color of ground, to be entitled to the office. His claim is evidently founded on See. 8 R. S. (See. 8 G. C.), but he has apparently overlooked Sec. 1518 Rev. Stat. (Sec. 3352 G. C.), which provides that a vacancy and not a holdover results when there is no duly elected and qualified successor to a ward or precinct assessor. The petition is therefore dismissed for want of jurisdiction.

Marvin and Winch, JJ., concur.