text:
    MISJOINDER OF CROSS-PETITIONERS.
    Circuit Court of Cuyahoga County.
    Ferdinand Junge v. The German Roman Catholic Central Verein W. & O. Fund et al.
    Decided, March 28, 1908.

      Pleading- — When Several Cross-petitions May Not he Piled.

    Several cross-petitions may not he filed under favor of Section 5008, Revised Statutes, when the only relief demanded therein different from that demanded by the plaintiff in the original petition is a demand for the respective shares of the petitioners in a fund impounded and in course of distribution under order of court.

      L. A. Grossner, Herman Prcusser and F. J. Wing, for plaintiff in error.

      M. P. Mponey, contra.
    ITenry, J.; Winch, J., and Marvin, J., concur.
    This proceeding in error is prosecuted to reverse the judgment of the court of common pleas in sustaining a demurrer to an answer and cross-petition of Ferdinand Junge and many others, filed in the court of common pleas in a cause commenced there' by Herman Preusser, for an accounting and distribution of an insurance fund of an incorporated fraternal order, which undertook, in excess of its corporate powers, to transfer said fund, under a contract of re-insurance, to another similar organization, in consideration of the assumption by the latter of the insurance contracts of the former.
   A decree for plaintiff in that action was made some time ago and a referee appointed to make an accounting and report upon ■the plaintiff’s claim and other claims filed, and upon rendition of the referee’s report, all claimants dissatisfied with the re-insurance arrangement, who had presented claims to lie paid their proportionate shares of the fund, were duly awarded and paid the amounts to which they were respectively entitled. Some matters of accounting were referred back to the referee for further report, and meanwhile other claims coining in, a number of claimants, including the plaintiff in error here, filed their joint answer and cross-petition, praying a general accounting of the fund and demanding their respective shares thereof.

The demurrer to this joint answer and cross-petition is founded upon alleged misjoinder of the cross-petitioners and upon the failure of their cross-petition to state a ground for affirmative relief in the action.

We think there was no error in sustaining this demurrer. True, it is provided by Section 5008,'Revised Statutes, that:

“AVhen the question is one of a common or general interest of many persons or when the parties are very numerous, and it is impracticable to-bring them all before the court,- one or more may sue or defend for the benefit of all.”

But under Sections 5066, 5069 and 5071. an answer demanding affirmative relief may be interposed by a defendant or defendants against other parties to the action only when a “several judgment” is possible in the action as between the parties so put in opposition. Tn this case the accounting asked for in the cross-petition under consideration, is precisely the relief which the plaintiff in the original action on behalf of himself and all othei’s, including said cross-petitioners, had already sought and obtained, or was in the course of obtaining. If the filing of the cross-petition considered as the commencement of a cross-petition is warranted in this ease, it is surely not because of its reiteration of the demand already made on-behalf of the same persons for precisely the same relief. Rather, must the cross-petition stand or fall upon the demand for the respective shares’ of the cross-petitioners in the insurance fund which has been impounded and partially distributed. This is the only new and affirmative relief prayed for by the answer and cross-petition which was not already covered by the original petition in the case. But these demands of the cross-petitioners are clearly not joint, but several. Each demands to be paid his individual share of the common fund, and the several claimants’ certainly can not join their several demands in a single cross-petition. The distinction is well illustrated by a comparison of the decision in Platt, etc., v. Colvin et al, 50 O. S., 703, upon the one hand, and Trustees v. Thoman et al, 51 O. S., 285, upon the other. In the latter case a tax-payer commenced a suit on behalf of himself and other tax-payers against the county treasurer to restrain the collection of a tax alleged to have been illegally levied, and' obtained a temporary order restraining the collection of the tax until the final hearing on the merits. Subsequently he filed á supplemental petition, alleging that since the commencement of the suit the injunction being in full force and unmodified— all had been involuntarily compelled to jpay the tax.by the refusal of the treasurer to receive the taxes from them already due, though tendered, unless they paid the taxes that had been enjoined.

Under these circumstances the court held, with respect to the further prosecution of the action, that:

“A suit can not be maintained by one táx-payer on behalf of himself and others, to recover back taxes, alleged to have been illegally assessed, on the ground that the taxes were involuntarily paid by each. In such case each must bring the action in his own behalf.”

It is doubtful whether in view of the representative capacity in which the original plaintiff sued, the court in which the cause is pending should permit its records and files to be encumbered by pleadings of all or any of the other individual claimants, who desire merely to assert their adjudicated equitable title to an undivided portion of the impounded amount. If indeed the litigation should be prolonged in the posture which the cause had assumed when all the original parties were satisfied, so far as their individual claims or differences were concerned, the further distribution of the fund could be much better accomplished by requiring all claimants, upon due notice, to file their claims with the referee, with the privilege to them, if dissatisfied with the referee’s decision, to file exceptions thereto, than by permitting the claimants severally or collectively to file pleadings asserting their demands.

If the demand for the liquidation and distribution of the assets in question is such as to justify a court of equity in permitting it to proceed to final conclusion, the cross-petitioners represented by the plaintiff in error here have certainly not been prejudiced by the refusal of the court to permit their pleading to stand. If their rights are not properly protected in the referee’s report, they can file their exceptions and have the same passed upon and reviewed precisely as if they were expressly made "'parties and permitted to file pleadings.

Judgment of the court of common pleas affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    EFFECT OF ASCENDENCY OF WIFE ON LEGALITY OF HUSBAND’S WILL IN HER. FAVOR.
    Circuit Court of Cuyahoga County.
    Henry Kornfield et al. v. Louisa Kornfield et al.
    Decided, March 23, 1908.

      Wills — Undue Influence — Declarations Concerning Later Will.

    1. The fact that a wife guides or even dominates her husband in the ordinary affairs of life, or has acquired an ascendency over him, does not render his will made in her favor invalid.
    2. Declarations of the testator are not of themselves alone sufficient to • establish the execution of a lost or destroyed will, but are admissible in evidence and have great weight when corroborated by other evidence.

      Eerruish cO Eerruish, for plaintiffs in error.

      Walter D. Meals and Thomas Robison, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The plaintiffs in error were contestants of the will of Leopold Kornfield, deceased, in an action begun by them in the court of-common pleas, wherein by verdict of the jury said will was sustained. The ■ grounds of contest were, first, that the will was made under undue influence exercised bjr the testator’s second wife, Louisa Kornfield, one of the defendants in error who was the chief beneficiary thereunder, and secondly, that the testator revoked said will by making another and later one, inconsistent with the former. The latter it is claimed was suppressed by testator’s wife. :

The facts are as follows: Leopold Kornfield, a Hungarian Jew, came to this country in 1880, leaving his wife and five, children behind. The wife followed later, bringing one child, Benny. The wife soon died in New York, and Benny was pnt into an institution there. In 1886 Leopold married a second wife, who, it is said, knew nothing of his family in Europe. He soon sent, however, for three of the children there, and later for the remaining child, Simon, a cripple, for whose admission under the immigration law he gave a maintenance bond. Meanwhile he had three children by his second wife.

After his second marriage, the testator was engaged in the saloon business in Newburg until his death. The presence of the first set of children in the household was much resented by the second wife, who constantly domineered over and abused both them and her husband. In 1896, he desired to go to Hungary to see his aged parents, but she refused to allow it until he had made his will giving her all the property, amounting to about $15,000, including $7,000 life insurance, save that the will as actually made bequeathed $1,000 to Simon, the cripple. The testator died in 1903, about seven years after this will was made.

By evidence of testator’s declarations the contestants offered, but were not permitted, to show that shortly before his death, he spoke of having made a new will and sent his wife with a written order for the first one to the office of the lawyer, Charles Zuker, Esq., who had drawn the same, and retained it for safe-keeping; that upon her return she handed him the will, remarking that it was good enough for him and that he had made a new will dividing his property evenly between wife and children, and told her to take the old one out and burn it; that she then took it out and on returning repeated her remark that the old will was good enough for her.

The contestants further offered to show by another witness in answer to questions as to whether he had a conversation with the testator about a new will, whether he had seen'that new will, and whether he had had it in his hands, that once when witness was moving the bed under him the will fell from under his pillow and he seeing it fall said to witness “Give me that paper; it is a new will I have made.” that witness took it, opened it and looked at it, and testator took it and placed it under his pillow again; that it was “a large paper” with “names of witnesses and it was properly executed;” that testator said he had provided in his new will that he should be buried in the Jewish Burying Ground in Glenville, that he had given $200 to the old folks in the old country and divided the rest of his property evenly among his children.

The contestants further offered to show by testator’s child Simon, in response to inquiry whether he saw a new will made by his father, that the latter after his health got poor, on one occasion when Mrs. Kornfield was in the house, took some papers and picking out one o£ them handed it to witness and said “This is,the new will;” that witness opened it, saw it was a written document, saw two names signed to it as witnesses and his father’s name at the end; that then there was some movement as of eavesdropping and testator seized the paper and took it away; that witness had the means of knowing, and knew, that the papers were locked up in the wardrobe, and that after testator went to the hospital where he soon died, Mrs. Kornfield, having access to the wardrobe, was seen to go there and take papers out. ■

All the testimony thus offered was excluded and exceptions were reserved. These rulings constitute one of the errors here assigned. They will be considered further. It is also complained that the trial court having refused to* allow evidence of undue influence during the seven years interval between the making of the original will and testator’s death, charged the jury that they might consider that lapse of time as bearing upon the issue of. undue influence at the time the will was made. The contention is that the charge though abstractly correct, was misleading in view of the refusal to allow proof of continuance of the undue influence. We think, however, that the error, if any, can not be ascribed to any evidence offered, the exclusion whereof was excepted to, which would tend to show the Avife’s domination over her husband between his return from Europe and his death. The evidence excluded tends rather to show his escape from such domination.

A third error assigned concerns the Aveight of the evidence Aipon the issue of undue influence. The bill of exceptions does does not contain a copy of the probate of the will which the statute requires to be offered and which apparently AAras offered in evidence. Whether it is now too late to correct the bill so that we may lawfully weigh the evidence we have not inquired. In examining the alleged error as to the exclusion of evidence we have necessarily considered the facts of the case. Upon this point a very recent case in which the facts are very similar is Gwin v. Gwin, 48 Pac., 295, and the law is well stated in the opinion of the court at page 301, as follows:

“The fact that a wife guides or even dominates her husband in the ordinary affairs of life, or has acquired an ascendency over him, does not render his will made in her favor invalid.”

Giving due heed to all that has been urged upon our attention, we can not say that the .jury’s verdict is manifestly contrary to the weight of the evidence.

I recur now to the first error assigned, the exclusion of evidence tending to show that the testator made a second will inconsistent with the first. Tt is urged that enough evidence was offered tending to show the existence and different contents of the second will, and the probable suppression thereof by the testator’s wife, to authorize the jury to infer that such second will inconsistent with the first was actually made. AVere the rejected evidence hereinbefore recited to be received, the theory of this branch of the’ contestants’ case would necessarily be that the very meager direct evidence of the appearance and nature of the document supposed to be the testator’s second will is confirmed by the testator’s declarations characterizing it as such and defining its testamentary provisions. Superimposed upon this foundation of proof as to the existence of' a document deemed by the testator to be his last will, is the further testimony offered of his wife’s access to the place of deposit of that instrument, of her taking papers from said place, of the subsequent non-appearance of the will and of her interest to suppress it. Applying then the maxim omnia praesuntur in odium spolialoris, it is urged that, for the purpose of this case at least, the existence and due execution of a later will, inconsistent with and revocatory of the one under contest', are prima facie shown.

It is, however, a fragile edifice which is thus ingeniously reared, and if it be faulty it must collapse like a house of cards. Eet us therefore examine it in detail. Consider the paper first which fell out from under testator’s pillow. It was a written document hearing his signature and the names of witnesses. These attributes are not distinguishing characteristics. They are common to various instruments, testamentary contractual and declaratory. If in addition to the signatures, the witness who had the document in his hand, had read therein such words as “I have and bequeath,” or “This is my last will and testament,” or “I appoint as executor,” etc., the paper would be distinguished as of testamentary import, leaving its validity as such to be determined by further evidence. Without some such remark, the self identification of the paper as a will is not even begun.

It is generally conceded, moreover, that a testator’s declaration of having made or revoked a will is no independent evidence of the fact. Without some foundation of testimony or presumption as to the fact, such a declaration is not admissible at all. Only as it is offered to confirm or rebut such testimony or presumption, can a testator’s declaration in this behalf have any probative force whatever.

It is true that the late case of Williams v. Miles, 62 L. R. A., 383, seems to hold the opposite view, and there are a few decisions to the contrary following the supposed authority of the leading English case of Sugden v. St. Leonards, L. R., 1 P. D., 154; but in the later case of Atkinson v. Morris, L. R., P. D., 1897, p. 40, in which Sugden v. St. Leonards was discussed, it was held that:

“Declarations made by a testator after the date of air alleged will are not admissible to prove the execution of the will.”

So also in a most excellent and exhaustive note to Clark v. Turner, 38 L. R. A., 433, many cases are cited at page 442 under the caption “Declarations” to the point that:

“Declarations of the testator are not of themselves alone sufficient to establish the execution of a lost or destroyed will, but are admissible in evidence and have great weight when corroborated by other evidence.”

This we understand to be in perfect analogy with the distinction made in Behrens v. Behrens, 47 O. S., 323, where it was held that:

‘ ‘ When a will,, once known to exist, and to have been in the custody of the testator, can not be found after his decease, the legal presumption is, that it was destroyed by the testator with the intention of revoking it.
‘' To strengthen such presumption, it is. competent to prove the declarations of the testator after making his will, that he had destroyed, or intended to destroy the same.” See, also, Tynan v. Paschal, 84 Am. Dec., 619.

Can this gap be bridged over by resort to the maxim omnia praesimtur in odium spoliatoris? We think not. In 1 Wig-more on Evidence, 291, pages 382, 383, it is said in discussing the act of a spoiler, quoting from’ the opinion in McReynolds v. McCord, 6 Watts, 288, 290, that:

“Before he can be fixed with the character of a spoiler, the purport of the paper must be proved to have been what it is surmised to have been.”

It follows, therefore, that all the rejected testimony taken together does not tend to prove the existence of the alleged second will revoking' the one which was admitted to probate. It is suggested, however, that when the court rejects the first link in a chain of proposed proof, it is not necessary to proceed step by step offering every link and excepting to its rejection; so here, the rejection of testimony that the lost document bore such signatures of testator and witnesses as a will must have, made it unnecessary to proceed further in order to save the point. Tt is doubtless that the offer should not be full enough in any case not only to indicate in outline what the full chain of proof would be but to embrace an actual tender of some testimony leading unequivocally in that direction. Be this as it may, the offers here were manifestly intended to cover all the facts in the entire chain of proof proposed. They may therefore be considered as we have considered them, in ascertaining whether prejudicial error was committed in the rejection of this evidence.

On the subject of admissibility of evidence our brother Marvin dissents from this opinion from the judgment of the court.

The judgment below is. affirmed.


text:
    COLLISION BETWEEN INTERURBAN CAR. AND VEHICLE AT STREET CROSSING.
    Court of Appeals for Delaware County.
    Eli M. West, as Receiver of the Columbus, Delaware & Marion Railway Co., v. Walter H. Gillette, as Administrator of the Estate of Albert N. Gillette, Deceased.
    Decided, May Term, 1915.

      Negligence — Vehicle Struck by Car at Street Crossing — Car Three Hundred Feet Distant When Driver Attempted to Cross Track— Proximate Cause of Collision — Not Error to Overrule Motion to Arrest from Jury, When — Application of Doctrine of Last Chance.

    1. Actions for personal injuries should be submitted to the jury, where there is evidence tending to show negligence on the part of either party, or where material and important facts affecting the right of recovery are in issue.
    2. Where a motorman, having discovered a vehicle three hundred feet ahead about to cross the track at a street crossing neglected to slacken the speed of his car or bring it under control — knowing that the driver of the vehicle having arrived first might stand on his right to pass over the crossing first, and might fairly assume that the car would approach the crossing at a rate of speed which would not endanger those in the act of passing over the tract — -the failure of the motorman to bring his car under control in time to avoid striking the vehicle constitutes the proximate cause of the resulting collision.
    3. The averments of the petition in the present case, which are set out in the opinion, warranted the court in instructing the jury on the doctrine of the last chance.

      Harry 1?. West and Hough & Jones, for plaintiff in error.

      Marriott, Freslmater Wickham, and George G. Snyder, contra.
    Shields, J.; Powell, J., and IIouck, J., concur.
   This was an action brought in the Court of Common Pleas of Delaware County, Ohio, by Albert N. Gillette’s administrator to recover damages against Eli M. West, as receiver of the Co lumbus, Delaware & Marion Railway Company, for the death of the said Albert N. Gillette, alleged to have been caused by the neglect of the said railway company while the said Albert N. Gillette, on the 11th day of January, 1913, was driving his horse attached to a buggy upon and over the crossing of Olentangy avenue and Sandusky street within the corporate limits of the city of Delaware, Ohio.

The negligence charged in the plaintiff ’s petition filed in the court below was, in substance, that the motorman in charge of one of the interurban cars of said railway company, in operating the same between the said city of Delaware and the city of Columbus, Ohio, in the afternoon of said day, when approaching said crossing at down grade from the summit of an elevatioii some three hundred 'feet distant therefrom, and when in full view of the said Albert N. Gillette while driving on said Olen-tangy avenue up to and upon said crossing and in an effort to cross the same, carelessly, negligently and unlawfully run said car at a high, reckless and dangerous rate of speed in utter disregard of the rights of the said Albert N. Gillette upon said crossing, without giving warning by whistle or otherwise of the approach of said ear to said crossing, which said car struck the horse and carriage of the said Albert N. Gillette, with great-force and violence when upon said crossing, throwing him out of said carriage upon the ground, causing concussion of the brain and great internal injuries, from the effects of which he died. Other averments of negligence in connection with the killing of said Albert N. Gillette at said time and place were contained in said petition, which appear in the discussion of the facts in this opinion. Damages in the sum of ten thousand dollars were prayed for.

In his answer to said petition said receiver admits that the said Albert N. Gillette collided with one of the ears operated by the defendant as receiver, at the time and place stated, and that he died shortly thereafter, but denies all the other allegations of said petition. lie further avers that if upon the trial it should appear that the defendant was gnil+y of negligence as charged in said petition, that the decedent was guilty of negligence directly contributing to his injury and death, in'that hi* started to cross tlie tracks of the defendant at the point of the collision without first exercising care to discover the approach of the car of the defendant.

For a reply to the second defense in said answer the plaintiff denied all the allegations therein charging negligence directly contributing to the injury of the said decedent.

Trial was had upon the issues thus made resulting in a verdict and judgment for the plaintiff. A petition in error with a bill of exceptions containing the evidence taken upon the trial, including the charge of the trial court to the jury, was filed in this court for a reversal of said judgment.

Numerous assignments of error are contained in said,petition in error, but we will consider more particularly such as were urged upon the attention of this court and upon which the plaintiff in error relies.

Tt was urged that the court below erred in overruling the motion of the plaintiff in error for an instructed verdict in its favor at the conclusion o£ the evidence introduced'in behalf of the plaintiff below and again renewed at the close of all the evidence in the case. We think the law is well settled in this state as to the duty of the trial court where a motion is interposed in a case to direct a verdict, or for non-suit, the authorities holding with practical unanimity that where there is evidence tending to prove negligence of one party or the other, the case should be submitted to the jury.

In Stockstill v. Dayton & Michigan R. R. Co., 24 O. S., 83, it is held that:

“If the evidence tends to prove all the facts which it is incumbent on the plaintiff to establish in order to maintain his action, he has a right to have the weight and sufficiency of the evidence passed upon by the jury, and it is error for the court to grant'the motion and render a judgment against him.”

In Dick v. Railroad Co., 38 O. S., 389, it is held that:

“A motion to arrest the testimony from the jury and render a judgment against the party on whom the burden of proof rests, involves an admission of all the facts which the evidence tends to prove and presents only a question of law for the coxix’t; but if there is evidence tending to prove each material fact put in issue, and indispensible to a recovery, it should be submitted to the jury under proper instructions.’''

In Gibbs v. Village of Girard, 88 O. S., 34, it is held that:

“A cause of action for damages brought against a village for negligence in the care of its sidewalks, by reason of which it is claimed plaintiff was injured, presents a jury issue if there is some evidence tending to prove every essential fact necessary to entitle plaintiff to recover; and an order of the trial judg'e at the close of the plaintiff’s case directing a verdict in favor of defendant over the objection of such plaintiff is a denial and violation of the right of trial by jury and therefore reversible error. ’ ’

And Judge Wanamaker speaking for the court in said case on page 47 says:

‘ ‘ So long as the trial by jury is a part of our system of jurisprudence its constitutional integrity and importance should be jealously safe-guarded. The right of trial by jury should be as inviolate in the working of our courts as it is in the wording of our constitutions..’ ’

From the foregoing and from numerous other like decisions by the courts of this state, it will be seen that the duty of the trial court is mads clear in a case on a motion to direct a verdict wherein the evidence tends to support the material allegations charged in the petition. Applying this rule of law to the facts in the case at bar, was the action of the trial court in overruling said motion within the limitations of said rule ? An examination of the record shows there was no little conflict in the evidence in reference to at least some of the material facts put in issue, namely, the rate of speed at which the. car in question was being operated, the gait at which the horse of the decedent was being driven, and the location of the horse and carriage at the time of the accident, all of which were material and important facts as affecting the right of recovery by the defendant in error, and in the light of the foregoing citations we are of the opinion that the action of the court below in overruling said motions ivas proper.

It was also urged that the verdict of the jury is clearly against the weight of the evidence, because it was contended that the decedent’s death was the result of his own negligence and was not wholly due to the negligent act or acts of the motorman in charge of said ear. Not unlike most cases of this character, the liability of this company here, if any, depends upon a very few controlling physical facts in the ease, and the law when applied to such facts ought not to render the case difficult of solution. An examination of the evidence contained in the bill of exceptions shows that as one of the defendant’s interurban cars reached the summit of the elevation north of the intersection of Olentangy avenue and Sandusky street at said crossing, a distance of about 325 feet, the motorman in charge of said car saw the decedent’s horse and carriage, with the curtains on said carriage and a rain-apron fastened in front of the seat of said carriage, through which said apron was an opening for the handling of the lines upon said horse, approaching the tracks of said railway, on said avenue, and while in the act of crossing said railway tracks said car collided with said horse and carriage resulting in the death of said Albert N. Gillette. The motorman testified that as said car left the summit of said elevation and descended towards said crossing said horse was walking on said avenue and was about fifty feet distant from said railway tracks on said crossing, that said car was then running from eight to ten miles an hour, that upon sounding the whistle on said car and noticing that no apparent heed was being given to it, he sounded further danger warnings, and when said car was about one hundred and fifty feet from said crossing, acting upon what he assumed to be a cheeking or stopping of the horse “just as he was about to cross the tracks,” he released the air and as said car passed over said crossing it collided with said horse and carriage. That a drizzling rain was falling on said day which rendered the surface of the tracks of said railway company wet and slippery. Pie further testified that he was familiar with the surroundings at said crossing, that he passed over said crossing some six times daily in making his runs fo and from Columbus, that he knew there was a hedge fence on the north side of the traveled portion of said Olen-tangy avenue and that said crossing was known to be dangerous. That the whistle on said car was sounded substantially as claimed by the motorman does not seem to be disputed, nor is the distance that said decedent was seen to be traveling toward and near to said crossing with said horse and carriage as said car descended said hill or elevation seriously in dispute, although the testimony of the motorman in this respect is not wholly borne out by persons aboard said car as passengers, especially as to the distance of said car from said crossing when the last danger signal was given and the position of the horse and carriage at that time, the main conflict of testimony being as to the rate of speed said car traveled from the summit of said elevation to and over said crossing. Joshua Stickney, a witness for the plaintiff, who was a passenger on said car, testified, in substance, that when said car descended said elevation from the 'summit thereof to said crossing it was running twenty miles an hour or more, that there was no change in the rate of speed traveled by said car during said distance. That when said car was within seventy-five feet of said crossing there was a sharp, shrill whistle blown when he jumped up from his seat, that he looked out through a window and saw the carriage about seventy-five feet from the crossing. That the horse was then jogging on a trot and when he again looked out, the carriage was then from twenty to twenty-five feet from the crossing and that it was then that the ear seemed to srike it. Other witnesses testified in support of the contentions of both the plaintiff and defendant. The undisputed testimony was that the right hind leg of the horse was broken, that the carriage was demolished, that the body of the decedent was hurled some thirty feet from the crossing, and that he thereafter died from the injuries received in said collision. Was said verdict returned clearly against the weight of the evidence given upon the trial? The plaintiff in error vigorously contended that the evidence fully justified their contention that the decedent’s death was wholly due to his own negligence in attempting to pass over said crossing without exercising that degree of care necessary to avoid danger. The rule that a party about to cross a known place of danger is called upon to exercise his senses of sight and hearing and to do everything that a prudent man would do under similar circumstances to avoid being injured, is held in C., C., C. & I. v. Elliott, 28 O. S., 340, and in numerous other authorities that might be cited to the same effect, but the last pronouncement by our Supreme Court on this subject in Traction Co. v. Brandon, 87 O. S., 387, is that the omission to look before going upon a crossing is not negligence in all eases as matter of law. For aught that appears here it may be that the decedent looked before going upon said crossing,, and in the absence of proof to the contrary the presumption is that he did so look (Interurban Railway Terminal Co. v. Hines, Admr., 13 C.C.[N.S.], 370; 95 U. S., 161; 163 U. S., 353), and observing the ear at such distance as that he supposed and believed that he could safely pass over said crossing, and attempted to cross, if he did, this would not be negligence; or observing said car at the summit of said elevation and his horse and carriage being plainly visible to" the motorman in charge of said car, and being first at said crossing, he may have relied upon his right to cross' over said crossing before said car, even though the motorman was called upon to slacken the speed of said car, or if necessary, to stop the same to avoid a collision. The first at said crossing, under the facts stated, had the right to cross, for a street car company must operate its cars with reference to the rights of others traveling on a street and over street crossings. The motorman testified that he saw this horse and carriage approaching said crossing when some three hundred feet distant therefrom, and it seems that he saw them plainly, too, for he testified that he even saw the opening' in the rain-apron for the lines, and if this is true, did he not have ample time and opportunity to get his car under control before reaching said crossing as to have avoided the injury that followed said collision? Having seen the horse and carriage approaching said crossing at "such distance, and about to cross, and on the crossing at the time of the collision, in the face of testimony that there was no change in the speed of the car from the summit of said elevation to said crossing, even in view of the claim of the motorman that the car was running but eight or ten miles an hour and that the horse apparently halted, as claimed, what was left for the jury to do under proper instructions? Concerning the relative, rights of the public and traction companies at street crossings, in Toledo Street Ry. Co. v. Westenhuber, 22 C. C., 67, the Circuit Court of Lucas County held, in a collision ease between a street ear and a carriage crossing the tracks of a street railway at the intersection of two streets that:

“1. It is negligence in the motorman of an electric street ear when the ear is from 150 to 200 feet from a street crossing, and he sees a wagon about to cross the track, not to try to stop or slacken the speed of the car until almost at the crossing, when by so doing the collision which ensued might have been avoided.
“2. It is not negligence in the driver of a wagon to attempt lo drive across a street car track ahead of an approaching electric car, when the car is so far away that by the exercise of reasonable care it might be stopped before reaching the place of crossing.”

In Harris v. Cleveland Electric Railway Co., decided by the Court of Appeals for Cuyahoga County, and reported in 19 C.O. (N.S.), 410, it is held that—

“A street car company has only equal rights with the driver of a horse, or a pedestrian, at a street crossing, and therefore it is the duty of the motorman as he approaches the street crossing to have his car under control and to keep a constant lookout, not only ahead, but also to the right and left, so as to discover persons upon the track or approaching it without noticing or heeding the approaching car, so that he may allow them to pass over in safety.”

In Greve v. Cincinnati Traction Co., 21 C.C. (N.S.), 331, the Court of Appeals for Hamilton County held that—

“ In an action by a driver -who was thrown from his seat and injured in a collision between a traction car and his vehicle, it is error to direct a verdict for the traction company, where the evidence tends to show that the vehicle could have been clearly seen by the motorman, crossing from one side of the street to the other, in time for him to have avoided the accident by stopping or checking the speed of the car. ’ ’

In L. S. & M. S. R. R. v. Schade, Admr., 15 C. C., 424, it is held that—

“If the decedent in this case was negligent in going upon the track in the manner and at the time he did, yet if the engineer in charge of the train ought, by the exercise of ordinary care, to have seen the decedent in his perilous position, and could, by the exercise of ordinary care, have stopped or cheeked the speed of the train so as to avoid a collision, and failed to do so, it was negligence for which the. company is liable, notwithstanding the negligence of the decedent in going upon the track.
“If the decedent was negligent in going upon the track as he did, yet if after such negligence the persons in charge of the train, by the exercise of ordinary care, could have seen the decedent in his dangerous position and stopped or checked the speed of the train and avoided the injury, and they failed to do so, they were guilty of negligence, and such negligence is the proximate cause of the injury, and the railroad company is liable.”

The same rule was also followed by the circuit court in this district in the case of Mansfield Railway, Light & Power Co. v. Kiner, reported in 17 C.C.(N.S.), 431, which was affirmed by the Supreme Court.

And in Traction Co. v. Brandon, supra, page 196:

“It is not negligence in the driver of a vehicle to attempt to cross a street ear track ahead of an approaching car so far away that by the exercise of reasonable vigilance on the part of the motorman it might be stopped or checked before reaching the crossing. ’ ’

It would seem that the foregoing adjudications ought to be decisive of the rights of the public and street car companies at street crossings, but it is contended that the evidence shows that the death of the said Albert N. Gillette was caused by his own negligence — that his negligence contributed to his injuries and consequent death. As already stated, when about to enter upon said crossing he may have relied on the presumption of said ear being at such distance, and under control of the motorman, especially when running down grade, as that he could safely pass over it, or, having been first at said crossing and said car being some three hundred feet distant and presumably traveling at such speed as that the motorman would not be unmindful of the rights of the public at said crossing, he attempted to cross, or he may even have been guilty of negligence in driving upon said crossing, but if the motorman after having seen the horse and carriage at the place and in the condition stated by him, and if after having seen the peril of the decedent, if he did, and he then had time and opportunity to avoid a collision between said car and said horse and carriage by checking or even stopping said car, and he neglected to do so, .would not such neglect be actionable negligence and be regarded as the proximate cause of the said Albert N. Gillette’s death? If guilty of such neglect, we think a liability would follow from the rule laid down in Traction Co. v. Brandon, supra, which appears to have been followed by the trial court in its instructions to the jury.

It-was urged on the part of the plaintiff in error that it was impossible for the motorman to avoid said collision because of the close approach of said car to said crossing and because of the slippery condition of the surface of the tracks of said railway after the apparent halting of said horse and after the motorman released the air of said car. The inquiry naturally arises that if the tracks were slippery, would not such fact require increased vigilance on the part of the motorman to see to it that the ear be kept under safe control? Such inquiry would seem pertinent when it is considered that said car was running down grade according to the testimony of Engineer Core, just prior to reaching said crossing. In commenting upon the necessity of a motorman keeping a car under control when descending a grade, Thompson in his Commentaries on the Law of Negligence, Volume 2, Section 1395, says:

"Upon the question what rate of speed is to be deemed unreasonable or dangerous, no exact definition can be made; but the obvious conclusion of reason is that a rate of speed which prevents the motorman from maintaining control of his car so as to stop it within a reasonable distance upon an appearance of danger to others, falls within this category, and, on the other hand, that a rate of speed which, although greater than usual, does not prevent the motorman from keeping his car well in hand, and does not endanger persons using the street with reasonable care for their own safety, is not negligent or blameworthy. The true view is that the railway company must not adopt such a rate of speed as will prevent its motorman from keeping control of the car, especially upon a down grade, and if a ear can not otherwise be kept under control, the sanding of the tracks may be regarded as a reasonable means to be adopted for that purpose, the failure to resort to 'which may be negligence/’

But as we view it, this was a question of fact, including the conduct of the motorman in respect to the speed at which he was operating said ear between the summit of said elevation and said crossing as tending to show whether or not he was exercising reasonable care in the management of said car, and including also the circumstances under which said decedent drove upon said crossing for the purpose of passing over the same, all of which were questions of fact as bearing upon the alleged negligence of the defendant, or contributory negligence of the decedent, which were°to be submitted to and determined by the jury under proper instructions (Gibbs v. Village of Girard, 88 O. S., 34-44). TTpon a review of this record we are of the opinion that said verdict is not clearly against the weight of the evidence, nor is the same unsupported by evidence sufficient to warrant said verdict.

It was urged that the court below erred in its instructions upon the law to the jury, and upon a request made for further instructions that said court further erred in repeating such erroneous instruction to the jury. It appears that after said court had instructed said jury and after they had retired for deliberation they requested further instructions by said court, as appears by the following on page 115 of the record:

“Thereupon at 10 a. m. the jury retired to their room for deliberation, and at 1:30 p. m. the jury returned into court and asked for further instructions.
“By the Court: Gentlemen of the jury, the bailiff has instructed the court that the jurors have requested the court to give them further instructions on the law of this case’. Is that correct, Mr. Foreman?
“Mr. Foreman (Mr. "Willis) : The jury merely wish to ask the court to read the part of the charge referring to a similar case' where negligence may be found on both sides. It was not understood by. all of the jurors, whether deficient ears or memory we don’t know;
“By the Court.: I will read it to you, gentlemen, having it in pencil form before me, that part of the charge which has been requested by your foreman:
“ ‘In other words, gentlemen of the jury, the decedent, Albert X. Gillette, may have been guilty of negligence in driving upon this track as he did, yet such negligence will not defeat the right of the plaintiff to recover, if the motorman saw the danger in which he was placed in time to have avoided colliding with him by the exercise of reasonable care and by the use of all the means at his command, and negligently failed to exercise such reasonable care. That is, if you find that there was negligence upon the part of the railway company, and negligence upon the part of Gillette, in driving upon this track in front of- an approaching car, then you will proceed and examine the conduct of the motorman after he had discovered, or by the exercise of ordinary care ought to have discovered, the danger in which the said Albert N. Gillette was at the time. As we have said, it was the'duty of the motorman to have liis ear under control; that is, the car must be in the power of the motorman to such an extent as that when he saw this horse and buggy on the track, or Avhen by ordinary care in his duty of looking for vehicles he ought to have seen this horse and buggy on the track, he could stop his oar within a reasonable time and distance so as to avoid, if possible, the collision.’ T)o you desire the court to read any farther?
“Mr. Foreman: 1 guess that is sufficient, as far as I am concerned.
“The Court: You may retire.”

The foregoing instruction is claimed to be not only erroneous but prejudicially erroneous, for which the judgment below should be reversed. It is claimed by the plaintiff: in error that the trial court in giving said instruction sought to introduce and apply the.rule of liability under what is known as the “last chance” doctrine when the allegations of the petition of the plaintiff below do not warrant'the application of such rule, and that the facts of the case are such as to defeat the right of said plaintiff to recover. What, then, is understood to be the doctrine of the “last chance”? In Thompson on Negligence, Volume 2, Section 1629, we find it defined as follows:

“Although a person goes upon a track negligently, yet if the servants of the railway company, after they see his danger, can avoid injuriug him, they are bound to do so. And, according to the better view with reference to injuries to travelers at highway crossings, as distinguished from injuries to trespassers and bare licensees upon railway tracks at places where they have no legal right to be, the servants of the railway company are bound to keep a vigilant lookout in front of advancing engines or trains, to the end of discovering persons exposed to danger on highway crossings; and the railway company will be liable for running over them if, by maintaining such a lookout and by using reasonable care and exertion to check or stop its train, it could avoid injury to them.”

This definition appears to have been adopted in Drown v. Traction Co., 76 O. S., 234.

Looking at the averments of the petition of the plaintiff below we find that after averring that said decedent approached said tracks to cross the same, and while in the exercise of due care, said car approached said crossing at a high and dangerous rate of speed, it is averred that:

“When the said decedent started across the track of the defendant’s railroad, the motoiman in charge of the said car could see the decedent starting across or upon the track with his said horse and buggy more than three hundred feet away, and that said motorman knew that at the speed he was running the car, it would strike said horse and buggy before it could cross said track; but plaintiff avers that the decedent did not know the speed of the ear and could not learn its speed from his position, and avers that decedent reached the track when the car was at least, three hundred feet away, and had a right to cross said track, and that the agents, servants and employees of the defendant had ample time after seeing as they did the decedent crossing the track, to check the speed of the car and stop it and thereby have prevented the collision, and the plaintiff says that the agents, servants and employees of the defendant in charge of said car, negligently, recklessly and wilfully approached said crossing at a high rate of speed and ran against the horse and buggy of said decedent with great force and violence and thereby hurled him from the buggy to the ground.”

These averments, in our judgment, brought the case within the rule stated, and warranted the trial court in submitting said case to the jury under instructions embodying said rule of law. Li giving said instructions the tidal court appears to have followed the instructions in the case of Cincinnati Traction Co. v Jennings, reported in Vol. 7 N.P.(N.S.), pp. 462-466, which case was affirmed by the Supreme Court of this state, without report, October 20, 1908, wherein it is held that—

“It is not error to charge that where the .jury have found that both the plaintiff (driver of a cab) and the motorman of the car which collided with the cab were negligent, they may then take into consideration whether the motorman had his car under control to such an extent that he could have avoided the accident after he saw, or by the exercise of ordinary care could have seen, the vehicle on the track.
“Nor is it error to charge that it is not negligence in the driver of a vehicle to attempt to cross a street car-track ahead of an approaching car, when the car is so far away that by the exercise of reasonable care it might have been stopped before reaching the place of the crossing where the circumstances of the case render such a charge appropriate.”

We are not unmindful of the contention made by the plaintiff in error as to the finding of the court on the rehearing of said case, but the Supreme Court held that the instruction given to the jury on the alleged negligence of the traction company and that o£ the decedent was a correct statement of the law.

Upon an examination of the facts in the case of Drown v. Traction Co., supra, we find the facts stated in that case to be entirely different from the facts stated in the case at bar. Here it is admitted that the motorman plainly saw said horse and carriage at all times from the time said car reached the fop of said elevation to the time it descended said elevation and reached said crossing, and likewise saw, or by the exercise of ordinary care could have seen, the peril of said decedent in said carriage, and neglecting and disregarding the rights of said decedent when upon said crossing in said carriage, carelessly and recklessly ran said ear upon and against said horse and carriage, throwing said decedent out of said carriage and hurling his body some thirty feet and more distant, resulting in his death, while the former case involved a charge of negligence by the traction company for a violation of a city ordinance in failing lo give warning of the approach of one of its cars on its tracks to one driving on such tracks in a street going in the same direction as said car. It was not in any sense a street crossing case and the holding made was made with reference to the particular facts in said case. In the matter of the elements of negligence laid as the basis of said actions, we are of the opinion that the cases are essentially different, and we are further of the opinion that the. instruction given by the trial court to the jury was proper, that dt contained a correct statement of the law as applied to the facts in the case, and that it fairly and imparlially presented said case under the. issues to the jury.

We have examined the other specifications of error in said petition in error and find no such error in the record as justifies a reversal of the judgment of the court below.

Upon an examination of the entire record, notwithstanding t-be errors complained of, we arc unanimously of the opinion that the case is one in which substantial justice has been done between the parties hereto, that no substantial right of the plaintiff in error has been prejudicially affected bv the judgment herein and that said judgment ought to be and the same is affirmed, at the costs of the plaintiff in error. Said case will be remanded for execution. Exceptions may be noted.


text:
    ABUSE OF DISCRETION IN REQUIRING A NEW SIDEWALK,
    Court of Appeals for Hamilton County.
    Louisa F. B. Livingston v. City of Cincinnati.
    Decided, April 12, 1915.

      Municipal Corporations — Order to Tear up Brick Sidewalk and Replace It with Cement Unreasonable and May be Enjoined, When.

    Where a bricK sidewalk constructed at the cost of the property owner in conformity with specifications of the city is in good condition and fully answers the demands of public travel it is an abuse of discretion on the part of council to require that it be taken up and a cement sidewalk laid in its place.

      Pogue, Hoffheimer & Pogue, for plaintiff.

      Walter M. Schoenle and /?««?■ Zielonka, contra.

      Jones (Oliver B.), J.; Jones (E. IT.), P. J., and Gorman, J., concur.
   The council of a municipality is vested with the discretionary potver to determine and provide for the improvement and repair of sidewalks (Sections 3582 to 3870, General Code). Courts have no supervisory control, and will not interfere with the action of council in its determination as to such improvement and repairs, unless a manifest abuse of its discretion is shown.

In this case it appears from the evidence that plaintiff now has in front of her property fronting 155 feet on West Sixth street a brick sidewalk which was constructed at her expense and conforms to the specifications of the city for such sidewalks, and is now in good condition except in some minor particulars which can be repaired at slight cost, and that said sidewalk now corresponds with brick sidewalks laid in that portion of the city, and with slight repairs wdll fully answer all requirements for some time to come. The city council by sidewalk resolution No. 2723 has provided that sidewalks be constructed “by paving with cement full width and repairing when necessary in accordance with the specifications therefor on file in. the office of the department of public service.” The specifications in the above resolution were not introduced in evidence, but this resolution which is not explicit as between construction and repairs, has been construed by'the parties as requiring the present brick sidewalk to be torn up and in its place a new cement sidewalk to be constructed on the entire front of plaintiff’s property.

There is no question but that a cement sidewalk is generally regarded as much better than brick, but when, as in this case, the brick sidewalk is in good condition, fully answering all the demands of public travel, it would be an abuse of discretion to require the destruction of plaintiff’s brick sidewalk and the construction of a cement walk in its place. Plaintiff should be permitted to repair the bi’ick sidewalk in the minor particulars shown necessary by the evidence, and the construction of the cement sidewalk will be enjoined.


text:
    PROPERTY CONVEYED BY HUSBAND TO WIFE THROUGH TRUSTEE.
    Circuit Court of Cuyahoga County.
    J. C. Lower, Administrator of Malcolm D. McBride, Deceased, v. Nancy Gardner et al.
    Decided, March 16, 1908.

      Descent and Distribution — Property Conveyed by Husband to Trustee and by Trustee to Wife Not Ancestral — Deed by Insane Person 'Voidable — Conveyance by Deceased Insane Person may 'be Ratified by Heir.

    1. Where a husband- conveys real estate to a trustee to hold for the benefit of the wife of the grantor and the trustee upon the same date and for a nominal consideration conveys the property to the wife without describing himself as trustee, the property so conveyed to the wife is acquired by her by purchase and not by deed of gift.
    2. A deed of conveyance made by a person of unsound mind is voidable only and not void.
    3. When the husband who is the only heir of a deceased insane wife, places on record a deed- of conveyance from her to him he thereby ratifies such conveyance.
    - Lindsay, for plaintiff in error.
    17. O. Ong, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This' is an appeal by the defendants of an action brought by the plaintiff as administrator of the estate of Malcolm D. McBride, deceased, for authority to sell lands of said decedent to pay debts owing by his estate.

The facts are as follows: On October 13, 1871, James Brown, the first husband of Emiline McBride, conveyed the land in question to- one Charles M. Safford, trustee, upon the trust expressed in said deed that he hold said land for his (Brown’s) wife. On the- same day the grantee made a deed of the same land to his cestui que trust, not however, describing or signing himself as trustee in said deed.

Thereafter, James Brown died intestate and without blood relatives, and his widow, Emiline, married Malcolm McBride, to whom, on August 4, 1896, she made a deed of the same property. It is claimed that she wa.s then insane. She died intestate, November 23, 1896, and the deed to her husband which meanwhile had been held in escrow by Ms attorney, was by him recorded five days later. Malcolm McBride died intestate in October, 1906.

The question arises between the next of kin of Emiline McBride and those of Mlalcolin McBride respectively, and turns largely upon the applicability of Section 4162, Revised Statutes of Ohio.

As we view the law, Emiline Brown acquired her title to the land by purchase and not by descent. The deeds from her husband to the trustee and from the trustee to her were both expressed to be given for a valuable, albeit nominal, consideration. The deed from the trustee to her, although it did not describe the trustee as such, and although it may have been given in breach of the strict terms of the trust, expressed in James Brown’s deed to him, was nevertheless sufficient to give the legal'title, as by purchase, to Emiline Brown. See 2 Jonas on, Law of Real Property in Conveyancing, 1058.

If.her equitable estate in the same property was limited in duration to the term of her natural life by virtue of the provision creating the trust .in the deed from her husband to'the trustee, the equitable estate in remainder was in her husband as creator of the trust and upon his death such equitable estate passed to his widow and became merged with the legal title which she already had.

Having thus a legal title by purchase which authorized her to convey an estate in fee simple, she.made a deed thereof to her second husband, Malcolm McBride, as .already stated, under circumstances which her next of kin, parties defendant here, now offer to show, render such conveyance void, on account of the grantor’s insanity and the grantee’s undue influence.

We think this evidence must be excluded, because at the time such conveyance was made the said, defendants,- as -grantor’s next of kin, had no vested, interest whatever in the property and.therefore no footing existed on which they could be heard to complain of or avoid any conveyance which the grantor might make. Nor can they now be heard in that behalf, unless the conveyance from Mrs. McBride to her husband were absolutely void. A deed of conveyance made by a person of unsound mind is, however, not absolutely void, but merely voidable. See 1 Jones on Law of Beal Property in Conveyancing, 63.

Malcolm McBride was not only the grantee but the only heir of his wife. By putting the deed in question, on record after her death he affirmatively elected to take the property not by inheritance but by purchase. As the heir of his wife he was the only person having any right do challenge the validity of his wife’s deed, and instead of challenging it, he affirmed it. See 1 Jones on Law of Real Property in Conveyancing, 64.

It follows from the views thus expressed that neither Emiline Brown in relation to her first husband whom she survived, nor Malcolm McBride, in relation to the same woman his wife, whom he survived, can properly be described with regard to the acquisition of this property, in the language of Section 4162, Revised Statutes; as the relict of a deceased husband or wife dying intestate and without issue and possessed of any real estate or personal property which came to such intestate from any former deceased husband or wife, by deed or gift, devise or bequest, or under the provisions of Section 4159.

The supposed rights of the defendants who are next of kin of Emiline McBride, depending as they do upon the application of the facts of this case of said Section 4162, are without foundation, because the section does not apply.

The plaintiff may take a decree in accordance with this opinion.


text:
    WAIVER. OF FORMAL DEFECTS IN PETITION.
    Circuit Court of Cuyahoga County.
    Mrs. Loren Tuttle v. Louise Furi, an Infant, by Katherine Furi, Her Next Friend.
    Decided, March 16, 1908.

      Pleading and Practice — Formal Defects in Petition Waived by Answer— Action by Next Friend Constitutional — Damages in Suit by Next Friend for Injury to Infant — When Damages Erroneously Allowed Not Cured by Remittitur.

    1. Where defendant files an answer she thereby waives any formal defects in the petition such as failure to use her Christian name in the caption or the proper verification of the petition.
    2. Objection to the introduction of any evidence on the ground that the petition does not state a cause of action does not operate as an objection to evidence in support of an allegation in the petition which might have been eliminated from the petition by motion.
    3. Sections 4998 et seq., Revised Statutes, providing that actions may be brought on behalf of an infant by its next friend are constitutional even though such next friend has not been designated or appointed by the infant or the court and is not responsible financially.
    4. Damages which may be recovered on behalf of an infant in an action by its next friend may not include care and medical attendance or other items for which the parent is responsible.
    5. Where the court has erroneously permitted the jury to include certain items of damages in their verdict the error is not cured by a remittitur where there is nothing to show that the amount remitted was the amount which the jury may have awarded because of those items.

      O. J. Horn and Ralph R.'Snow, for plaintiff in error.
    Henry, J.; Winch, J., and Marvin, J., concur.
   By this proceeding in error, the plaintiff in error, Mrs. Tuttle, who was defendant below, seeks a reversal of the judgment for $250 recovered against her by the defendant in error, an infant suing by her next friend, as damages sustained by said infant in consequence of having been bitten July 3d, 1905, by a dog alleged to have been owned or harbored by the plaintiff in error.

The first error assigned is upon the court’s denial of the motion, made by the defendant below, at the outset of the trial, to exclude all evidence offered in support of the petition, upon the grounds, first, that it does not state facts sufficient to constitute a cause of action; and secondly, that the next friend is-without authority to bring the action.

Within the scope of the first ground, objections to the caption and to the verification of the petition are sought to be included. So far as such defects are merely formal, they were of course waived by the defendant below, when she answered and went to trial, without having first challenged them by motion. Her Christian name undoubtedly should have been used in the caption, in place of the expression “Mrs. Loren Tuttle’* but her objection to it was made too late. The verification, we think, was properly made by the next friend, rather than by the infant, according to the provisions of Section 5109, Revised Statutes, and particularly paragraph 2 thereof, the agency for that purpose and for all purposes connected with the prosecution of an infant’s suit, being derived not indeed from any appointment by, or agreement with, the'infant, but by virtue of the statutory provision of Sections 4998 et seq. But be this as it. may, the objection to the verification was likewise made too late. Kerns v. Roberts, 3 West. L. M., 604; 2 O. Dec. Reprint, 537; Simmons v. Brown, Cleve. L. Rec., 33; 4 O. Dec. Rep., 29.

It is further urged, however, that the Legislature could not constitutionally authorize the practice of .planting suits on behalf of infants by persons as next friends under no appointment by such infants, or by any court; neither can the plaintiff’s just liability to judgment for costs in case of defeat be shifted by the Legislature from the shoulders of an infant plaintiff to those of a possibly irresponsible next friend. Reference is made to the Bill of Rights, Sections 1 et seq., but we .find nothing therein to support these contentions, and the practice of suing by prechein ami is immemorial and well approved at common law and under both the old and the new Constitutions in this state (Hanly v. Levin, 5 O., 239; Massie v. Long, 2 O., 287; Pennsylvania v. Gallagher, 40 O. S., 637). Moreover Section 4998, Revised Statutes, expressly provides that the court may dismiss an infant’s action brought by next friend, if it is not for the benefit of the infant, or it may substitute another person as next friend, or the infant’s legal guardian. It is no objection to this form of procedure that neither the infant nor its next friend has authority to bind it by a contract of settlement, if such be the law. The authority to enter into an accord is not a pre-requisite to an infant’s right to sue. The authority of the next friend in this case is sufficiently alleged in the petition, by the averment that “Plaintiff is an infant eleven years of age and brings this action by Katherine Furi, her next friend, ” it is sufficiently proved by the evidence that Katherine Furi is the infant’s mother, and there is absolutely nothing in the recofd to rebut the presumption tliat the action was brought and throughout maintained for the infant’s benefit.

Sufficient facts to constitute a cause of action are set forth in the petition’s averments that plaintiff was, without warning to or provocation by her, bitten by a fierce and dangerous dog which the defendant owned and kept and, knowing its disposition, negligently allowed to run at large. We fail to see how the facts constituting the duty, the breach thereof, and the consequent injury to plaintiff could be stated so as to conform more nearly with the requirement of the first paragraph of Section 5057, Revised Statutes, that the petition shall contain “A statement of the facts constituting the cause of action in ordinary and concise language.” The averments that the occurrence was “without warning or provocation,” so far as she was concerned, is the full equivalent of the expression “without fault on her part,” the absence of which from the petition is complained of.

The further criticism of the petition in connection with the motion to exclude all evidence in support thereof, becomes, of course, irrelevant upon the determination thus reached that its averments of fact suffice to constitute a cause of action. No motion, was interposed to reform the petition in respect to any alleged indefiniteness or redundancy of its allegations, and defects of that character, if any, were therefore waived.

It is claimed, however, that the objection to the introduction of any evidence under the petition operated to save all questions concerning the admissibility - of evidence thereafter received. This is not true where the petition' states, however, in-artificially, a cause of action. In such case, specific objection must be made to each particular item of evidence adduced in support of averments which have no proper place in the petition, but which have been suffered to -remain in it for want of any motion made to expunge them.

On the other hand, though timely objection be made, it is by no means true that evidence is admissible only of such facts as are specifically pleaded, or expressly put in issue. On the contrary, the evidence upon - the trial of cases usually consists chiefly of testimony of other facts from which those facts may he inferred. ITence when the petition introduces its statement of facts with the qualification “at. all times hereinafter mentioned,” an allegation for example, of the defendant’s knowledge of the vicious disposition of her dog, opens the door to proof of antecedent facts showing the mode of her acquisition of such knowledge. She had that knowledge at the times mentioned in the petition because the knowledge had been brought home to her by facts which had transpired on some former occasion. Hence the evidence of her dog having previously bitten some other child, to her knowledge, is admissible notwithstanding that it antedates the times expressly mentioned in the petition.

It is further complained that the» verdict and judgment are not supported by sufficient evidence and are contrary to the weight of the evidence. The alleged conflicts in the testimony concerning the description and identity of the dog in question, as well as of divers minor matters, are not different in kind nor greatly different in extent from like discrepancies in most cases. The verdict of the jury is the means provided by law for settling disputed questions of fact and we can not say here that the solution of these questions implied in the verdict in this ease is unwarranted by the evidence.

We have, however, paused somewhat on the question whether the bill of exceptions discloses sufficient testimony as to plaintiff in error’s ownership of the dog to warrant the submission of the. case to the jury, and more especially to warrant the refosal to grant a new trial for want of sufficient evidence in that behalf to support the verdict for the plaintiff helow.

At page 52, plaintiff’s mother and next friend, testifies:

“When Louise got in bed I thought it was Kidd’s dog, but after I found out it wasn’t Kidd’s dog. After we found out that wasn’t Mr. Kidd’s dog, we found out it was Tuttle’s dog'.’’
The trial court excluded the last phrase from the jury and the witness continued:
‘ ‘ After this We found out. She said that was Mrs. Tuttle’s dog. I went to Mrs. Tuttle and brought her over, and she saw. the circumstances the way that girl was bitten. Then Mrs. Tuttle says, ‘It’s not so bad after all.’ ”
The court withdrew from the jury the statement that it was Mrs. Tuttle’s dog, and the witness again continued:
“Mrs. Tuttle told me then I need not be afraid of the dog, he’s alright. He gets good care and fresh water every day. ’ ’..

At page 69 et s&q., Clarence Keehl, another child previously bitten by a dog alleged to be the same one, testifies he had seen the dog around Mrs. Tuttle’s yard by the path, “right in front of her house.”

At page 92, Mlrs. Keehl, the mother of Clarence, testifies, that after her boy was bitten, she and her husband went to Mrs. Tuttle’s house and talked with her, and her husband talked with her at the gate “and told her that there would have to he something done about the dog. She would have to kill it, and she said they wouldn’t, it wasn’t a bad enough bite, it had only scratched the child.” She forther testifies that she saw this dog at Mrs. Tuttle’s house lying on her porch.

At page 132, Pearl Keehl, sister of Clarence, testifies that when she and her brother were going past Mrs. Tuttle’s house a dog ran out and bit him and that she had previously seen the dog in the yard and on the porch where Mrs. Tuttle lived.

While it is by no means conclusively shown that the dog which hit the Keehl child was the same one that bit plaintiff below, there is enough here shown to make a question for the jury as to whether Mrs. Tuttle owned or harbored the dog which bit the plaintiff and whether she had any knowledge of its vicious disposition. We think the jury were warranted, moreover, in finding as they manifestly did find upon these issues.

It is further complained that the court misdirected the jury, but upon examination of the charge we find it correct in every particular except one paragraph on page 161 of the bill as follows :

“By way of compensatory damages you may include reasonable expenses incurred for care and medical attendance made necessary by the injury; also loss of time that may have been sustained by reason of said injuries; also the pain and anguish the child may have suffered by reason of such injuries, including pain of body, anguish of mind by reason of fear, in any, and altogether such a sum as shall compensate for the injury received, and only such. ’ ’

While it is true that care and medical attendance under the circumstances-were necessaries, they were not such necessaries as an infant is liable for if when they were supplied the infant lived with its parents, or either of them, and at the charge of such parent or parents.

In Swan’s Treatise, 21st Edition, p. 26, it is said:

“Tf the infant live with its father or guardian, and their care and protection are duly exercised, he can not bind himself for necessaries. ’ ’

A kindred principle was laid down in Toledo v. Duffy, 13 O. C. C., 482 (7 O. C. D., 113), where it was held that the husband and not the wife was entitled to damages in respect of physician’s charges incurred for treatment of negligent injuries to the wife, and a judgment in her favor was reversed because the. court had erroneously charged the jury that they might include this element of damages in their verdict, if they found for her. See also Mt. Adams, etc., Ry. Co. v. Wysong, 8 C. C., 211 (6 O. D., 28), affirmed.

In the case before us, however, the petition alleges that an expense of $26 was incurred for medicines and medical attendance, and the transcript shows that remittitur of $25 from the original amount of the verdict Avas required by the trial court, in disposing of the motion for a new trial, and the same was made accordingly by the plaintiff.

We have no means of knowing whether or not this remittitur was made because under the charge the jury might erroneously have included these items amounting to $26 in their verdict. But whether so or not, the remittitur can not cúre the error in the charge in permitting the plaintiff to recover reasonable expenses incurred for “care” made necessary by the injury.

Care in the charge is distinguished from medical attendance and the only care disclosed by the record, other than that by the physician, is the care given by plaintiff’s mother and next friend. For such care, as well as for medical attendance, the mother, if the head of the household, might well recover (Omnibus Company v. Kuhnell, 11 W. L. Bulletin, 189; 9 Ohio Dec., Rep., 197), and the same is true of the child’s loss of time which the court said the jury might include as an element of damage sustained by it.

There was no evidence in this case of emancipation of the child’s parents. We did think that perhaps the child might have suffered damage from loss of time which it would otherwise have spent in school acquiring an education, but there is nothing in the record to show that it would have gone to school during the period when it was laid up by reason of its injuries, and this period comprised the three summer months when school is generally not in session.

For error in the charge as thus pointed out and for no other error in the record, the judgment below is reversed and the cause remanded.


text:
    ACTION TO DISSOLVE CORPORATION AND DISTRIBUTE ASSETS.
    Circuit Court of Cuyahoga County.
    August Becker et al v. The Germania Hall Company et al.
    Decided, March 17, 1908.

      Corporations for Profit — Grounds for Dissolution — Violation of Charter.

    1. To justify the dissolution of a corporation on the ground that it has never discharged its charter objects, a plain violation of its" charter must be proven.
    2. The fact that a corporation organized under Section 3262, Revised Statutes, as a corporation for profit, has never been so managed as to attempt to make a pecuniary profit for its stockholders, may not in itself be a deviation from its corporate object.
    3. A corporation organized for “musical, artistic and gymnastic purposes” which owns a building where societies meet for those purposes, but part of which is rented, does not because of such ownership become a real estate corporation.

      Smith, Taft & Arter, for plaintiffs in error.

      Squire, Sanders & Dempsey, contra.
    Henry, J.; Winch, J., and Marvtn, J., concur.
   The action below was begun under favor of Section 5651 et seq., Revised Statutes of Ohio, by more than one-third of the stockholders of the Germania Hall Company, to dissolve said corporation and distribute its assets. This relief was denied upon the ground that the evidence failed to disclose that the corporate objects of the defendant were no longer being fulfilled.

The facts as shown are, that certain German people of Cleveland desiring to provide a suitable place of meeting for various German societies to which they belonged, organized the defendant corporation under the laws of Ohio for musical, gymnastic, and artistic purposes, etc., and became subscribers severally to the capital stock thereof. With the capital thus obtained the corporation erected a building known as 'Germania Hall, containing places of meeting, which thereupon and ever since have been rented to and used by various societies devoted to the objects named, in accordance with the purpose of the promoters. Incidentally parts of the building, and at times the meeting places aforesaid, have been used for other philanthropic, as well as for business purposes. Among other things a saloon has been maintained upon the premises by lessees of the defendant, but in the main the building has been used as was originally contemplated, and broadly speaking, in accordance with the purpose specified in the charter. The corporation although organized with a capital stock has not been administered as a corporation for profit, and the only dividends that have been declared have in distribution been largely offset by sums due as rent from the lessee societies, which, or the members of which, were the principal owners of the defendant’s stock.

In the lapse of years the character of the neighborhood in which this building is located has greatly changed, so that although the value of the real estate became enhanced the suitability of the location as a meeting place for the societies in question Avas much impaired. Several of these societies have provided themselves with independent meeting places elsewhere, and one of the principal societies concerned, which apparently controls a majority interest in the stock of the defendant, desired to sell this property and use the proceeds in erecting a building to be devoted to the same purpose in a more suitable location in this city. Accordingly the building and site OAAmed by the defendant Avere sold, and the proceeds of said sale are now in the corporate treasury of the defendant. The plaintiff stockholders, oAAming as aforesaid, more than one-third of the defendant’s capital stock, dissent from the program above outlined and desire instead a dissolution of the corporation and distribution of its assets. It is plain, hoAvever, from the decided cases cited upon the hearing that the mere pecuniary interest or preference of the plaintiff stockholders can not be decisive of their right to the relief prayed for. It is admitted that the corporation is abundantly solvent, but it is claimed that it has never properly discharged its charter objects. We do not think that the facts as disclosed by the evidence justify this inference, for as already stated, the activities AAdiich the corporation has facilitated are, broadly speaking, within the scope of.the objects originally named. To justify a dissolution of the corporation by judicial decree a plain violation of the charter in this behalf must be proved. It was suggested, however, upon the hearing, that inasmuch as the defendant was organized with a capital stock in the form necessary to corporations organized for profit, and inasmuch as the corporation had never been administered for the purpose of profit it might be said that the main corporate object had never been fullfilled or sought to be fulfilled; but a reference to Section 3262, Revised Statutes of Ohio, as construed in Snyder et al v. The Chamber of Commerce et al, 53 Ohio St., 1, shows that our laws contemplate the lawful organization of an eleemosynary corporation with a capital stock. It is urged further that whatever may have been true in the past as to the performance by the defendant of its corporate objects, yet upon the sale of the building and site which it provided for the accomplishment of those objects, and the reduction of its assets to money, it must be deemed now to have abandoned those objects, particularly as its minutes show a willingness to pay out of the proceeds of such sale the par value of the shares held by dissenting stockholders who wish to retire from their connection with the corporation. Whether or not this part of the defendant's program was lawful, it was not acted upon, because the book value of the shares is nearly double the par value, so that the proposition was not and is not acceptable to the plaintiffs. There is nothing in the charter restricting the defendant to the occupancy or ownership of th¿ property thus disposed of, and it can not be assumed that the corporate objects are capable of being fulfilled only' in the location originally selected. The admitted purpose of the defendant to secure a more suitable property indicates rather that the corporate, objects will continue to be discharged.

It is urged further that the defendant is .and always has been substantially a real estate corporation, which, at the time it was organized was not within the purview of our corporation laws,' and- even now is permitted only to corporations having a limited life.

But we hold that the ownership of real estate though convenient and perhaps necessary to the realization of the general aims and charter purposes of this defendant, is nevertheless but an incident of the main objects as set forth in the charter. In short, we fail to find any sufficient proof of a failure by the defendant to perform its declared corporate objects, nor do we discover any error in the record before us. The judgment is, therefore, affirmed.


text:
    BOND TO SECURE PAYMENT OF INCOME TO WIDOW NOT TAXABLE.
    Circuit Court of Cuyahoga County.
    Joseph C. Shields, Treasurer, v. Rosa S. Matthew, Administratrix.
    Decided, March 19, 1906.

      Taxation — Surety Bond Given to Secure Payment of Bequests JSfot Taxable.

    When a testator makes a bequest payable in monthly installments and the executors of his will in order to settle up his estate set aside certain real estate from the rentals of which the monthly installments are to be paid and execute a bond which is deposited with the probate court securing the payment of the bequest, such bond is not subject to taxation.
    Marvin, J.; Winch, J., and IIenry, J., concur.
   Julia A. Stone was the widow of Amasa Stone, deceased, who died in 1883.

By the third item of the will of said Amasa a bequest of $25,000 per annum, to be paid monthly, is made to said Julia. By the thirteenth item of the same will it is provided as follows, “In event that my estate shall close up to the value of $3,500,000 including $500,000 from which the annuity of $25,-000 annually to my wife shall accrue,” etc. Clearly the testator contemplated the setting apart of $500,000 from the rest of his estate, as the,source from which the payments should be made to his widow.

It is settled, by the decision of Chisholm v. Shields, Treats., 57 Ohio St., 374, that this bequest is not taxable.

It is settled by the statutes, 2736, 2737 and 2739, that annuities are taxable.-

The bond sought in this action to be taxed was given on the 14th of October, 1886. It was accepted by .Mrs. Stone as a means of securing to her the bequest made in the third item of her husband’s will. It was deposited with the probate judge and was executed in accordance with his suggestions and as a means of closing up the settlement of Mr. Stone’s estate so far as the court was concerned.

Prior to the giving of this bond the executors of the will of Mr. Stone had set apart, real estate of the value of $500,000 from the rents of which the monthly payments were being made to Mrs. Stone, an agent, Mr. Raymond, having charge of the property and out of the rents paying Mrs. Stone her monthly installments. This was continued up to the time of M!rs. Stone’s death in the same manner after the bond was executed. It was intended that it should so continue.

The deposit of the bond with the probate judge did not make it, nor is it to be treated, or considered in any wise as the bond provided by Section 5997, Revised Statutes, to be given by residuary legatees.

The testimony of Mr. John Hay and of Mr. S. A. Raymond was admitted, not to vary the terms, but to show the circumstances under which it was given, and the use of it. For that purpose the testimony was competent.

Copy of lease made in 1893, by Mr. and Mrs. Hay and Mr. and Mrs. Mather was admitted, though it is doubtful if such lease was competent evidence; it was not prejudicial to the plaintiff in error.

It is manifest from the evidence that after the giving of the bond, as well as before, the payments were, and were to be made to MErs. Stone from the income of the $500,000 worth ,of real estate. There was no intention or thought of resorting to the bond, unless there should be a deficit from the rents, which there never was. Mrs. Stone was protected by the bond. She was by that instrument secured in the payments provided for her in the will, but she was to receive, as she had received, her income from their rents.

To hold that this simple change in the evidence of Mrs. Stone’s claim should subject this provision to taxation, would be a hardship and would seem to be an injustice. The reason for the decision in the Chisholm case, in great measure is applicable to this case, and the judgment is affirmed.


text:
    INSUFFICIENT CERTIFICATE TO BILL OF EXCEPTIONS.
    Circuit Court of Cuyahoga County.
    H. Taylor et al v. Joseph Bychick.
    Decided, March 19, 1906.

      Appeal ancl Error — Bills of Exceptions Must Slwio Trial Judge Settled or Allowed it.

    Where the trial judge signs a certificate that a bill of exceptions has been prepared, submitted to the attorney for the appellee and to the court for signature within the required time, but nowhere says that he has allowed it or settled it, there is no bill of exceptions which a reviewing court can consider.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The complaint made here by the plaintiff in error, is that the facts did not warrant the judgment entered by the common pleas court. This can only be determined by us upon a bill of exceptions setting forth all the facts. Such bill of exceptions must be in conformity with the statute (Section 5301), which provides that the trial judge, after correcting the bill of exceptions, if necessary, shall allow and sign such bill. Section 5302, Revised Statutes, relieves from the necessity of having the journal show the allowance of the bill, and provides that the signature "of the judge “allowing, settling and signing such bill shall be sufficient evidence of such fact.”

The'judge-before whom this case was tried, has not signed anything showing .that he has either settled .or allowed any bill of exceptions.- What he signed is this:

“This bill of exceptions was presented to the attorney for the plaintiff by defendant’s attorney, on the 10th day of March, 1906, and upon the--day of March, 1906, being within the time allowed by the court, it was presented to said court and the court asked to allow and sign the same, that the same may be made a part of the-,’’ etc.

What the judge signed is a certificate that he- has been asked to allow and sign a bill of exceptions. He nowhere says that he has allowed it, and that he has settled "it, of anything else. .We have therefore no bill of exceptions which we can consider. There is therefore nothing to show upon what evidence the court acted, and the judgment is affirmed.


text:
    FIDELITY BOND INVALIDATED BY FALSE REPRESENTATION.
    Circuit Court of Cuyahoga County.
    J. B. Livingston et al v. The Fidelity & Deposit Co.

    Decided, June 11, 1906.

      Fidelity Bonds — False Representation of the President of a Corporation as to Performance of Duties hy -Fmployees Will Invalidate it.

    When a fidelity bond states that it is a condition that the obligee’s business shall continue to be conducted and the duties and remuneration of the employees remain in accordance with the statements in the application, and the bond of the secretary of a corporation is renewed upon the certificate of the president that each of the employees named in an accompanying list had faithfully and satisfactorily performed his duties and promptly and correctly rendered his accounts during the year preceding, where as a matter of fact all the other officers had delegated their duties to the secretary, thus enabling him to conduct the business of the company in violation of law and the by-laws of the company, and cover up his defalcations, such renewal bond is secured upon false representations and is invalid.

      Smith, Taft & Arter. for plaintiffs in error.

      Hoyt, Dustin & Kelley, contra.

      Henry, J.; Winch, J.,. and Laubie, J. (sitting in place of Marvin, J.), concur.

       Affirmed, Livingston et al v. Fidelity & Deposit Co., 76 Ohio State, 253.

   This case came before this court on error on a former occasion and our decision then is reported in 27 C. C., 662, where the facts are set forth very fully. The cause was remanded for further proceedings; new pleadings were filed, and upon the trial which ensued the court directed a verdict for the defendant at the close of the plaintiff’s evidence. After judgment the plaintiffs below filed their petition in error here with a bill of exceptions exhibiting all the evidence.

Without stating the facts it will suffice to say that the blanket surety bond on a renewal of which this suit was brought, provides that the statements made in the applications for said bond and renewals thereof “shall constitute a part of the basis and the consideration of the contract.” Also that the contract is entered into on the condition that the obligee’s business “shall be continued to be conducted and the duties and remuneration of the employees shall remain in accordance with the statements hereinbefore referred to,” but that on proper notice to the bonding company “interchanges or substitutions among any of the employees may be made.” Some such changes were made, but the building and loan company, of which plaintiffs are the trustees in liquidation, continued to maintain its complement of officers substantially as required by the laws of Ohio until the discovery of the defalcation of its secretary, Jacob A. Blodt. Meanwhile, however, the other officers largely delegated their duties to said Blodt, giving him charge of the company’s bank deposits and providing him with cheeks signed and countersigned in blank for him to issue as might be required. And the secretary of his own motion changed the company’s deposit accounts from the single depository designated by the board of directors and placed them in other banks of his own selection. All this was in direct violation of the statutes of Ohio, Section 3836-4, of the company’s by-laws, and of the. statements and promises contained in the bond and the application therefor, with regard to the conduct of the company’s business; and knowledge of such violation must necessarily be attributed to the company.

The company, however, failed to apprise the defendant of these very material facts, by means of which Blodt gained such complete control of the business as not only to be able to perpetrate successively through a long period of time the colossal frauds of which he was guilty but to cover the same up successfully and by cross-checks between the new depositories delude ^en the public accountant who annually audited the books. Blodt’s employer had of course no actual knowledge of his defalcation, but it would inevitably have known of, or indeed have prevented, the same if it had not knowingly permitted its other officers systematically to neglect their respective duties. Nevertheless the president solemnly certified year after year to the bonding company, in order to obtain the annual renewals of said bond, that “each of the employees named in the accompanying list has faithfully and satisfactorily performed his duties and promptly and correctly rendered his accounts during the year” preceding. And solely upon the faith of this false certificate the renewals were duly issued.

It is undoubtedly true that bonding companies can not claim to occupy the favored position accorded by the common law to those who become private sureties without holding themselves out as engaged in the business of suretyship for profit. But such corporations are not out-laws, and the plainest principles of justice require that they shall not be held to liability to him who has by false and fraudulent representations induced them to enter into a suretyship contract.

It is apparent from what has already been said that it can make no difference in this case whether the statements in the president’s certificates were representations that need only be true in substance and to the belief bona fide of the person making them, or warranties that must be true literally and at all events, irrespective of any bad faith.- For the statements were materially and fundamentally untrue, and their untruth was necessarily known to the corporation if not to its president, since they related to the organization and general conduct of its own business.

The judgment is affirmed.