text:
    ELEVATORS — NEGLIGENCE.
    [Cuyahoga (8th) Circuit Court,
    January 22, 1912.]
    Marvin, Winch and Niman, JJ.
    Cleveland Provision Co. v. Edwin C. Hague.
    1. Ordinary Care in Selection of Safe or Unsafe Way of. Doing Thing.
    The rule that where there are two ways of doing a thing, one safe and the other unsafe, he who undertakes to do the thing must choose the safe way, or choose the unsafe way at his peril, does not require that more than ordinary care shall be used in the selection.
    2. Reliance of Electrician on Operators Giving Notice of Moving Elevator.
    When one working for an independent contractor in repairing wires about an elevator has requested the operator of the elevator to notify him each time before the elevator. is moved, which he has promised to do, it is for the jury to say whether the workman was negligent in relying upon such notice being-given him.
    3. Knowledge of Operator of Danger to Repairing Electrician by Starting Elevator without Notice Knowledge of Owner.
    When the operator in charge of an elevator, whose duty it is to run the elevator for the defendant in the conduct of his business, has notice that a workman for an independent contractor making repairs near the elevator is likely to put himself in position where the operation of the elevator without warning-will injure him, and that such danger will be avoided by giving him notice before the elevator is moved, the knowledge of the elevator operator is the knowledge' of the defendant.
    4. Competency of Exhibits.
    An exhibit is not necessarily incompetent because it fails to show some exact thing in connection with the subject under investigation provided it shows some matter directly bearing upon the matter under investigation, with an explanation of how it differs from that which is being investigated.
    Error.

      Kline, Tolies <& Morley, for plaintiff in error.

      Cooke, McGowan & Foote, for defendant in error.
   MARVIN, J.

The relation of the parties here is in the reverse order from what is was in the court below. The terms plaintiff and defendant used in this opinion refer to the parties as they were in the original ease. .

Plaintiff brought suit against the defendant, which is a corporation, claiming to recover for injuries received by him while working at the plant of the defendant in the city of Cleveland, on June 16, 1910. At that date the defendant was having the electric wires in its plant changed so that the wires should pass through a conduit, that is, that they should be covered instead of exposed. This work of covering the wires was first undertaken by the defendant itself, but later it entered into a contract with the Martien Elec. Co., whereby that company undertook to complete the alterations to be made in connection with this wiring system.

The plaintiff was in' the employ of the Martien Electric Co., at his Avork, at the time of the injury. At the time of the injury his work was upon a platform some ten feet above the upper floor of this building, high up toward the ceiling. On this platform there was some moving machinery connected with the Avorking of the plant. One of the moving parts of such machinery Avas a horizontal shaft so connected with the elevator that, as the elevator platform moved up or doAvn, this shaft revolved the one way or the other. This shaft was some little distance above the platform, but not so high but that a man could step across it without resting himself upon it; that is, it lacked some inches from being as high as the length of plaintiff’s legs. When this shaft was at rest there Avas, of course, no danger in stepping over it; when in motion, it Avas dangerous to step over it, because of its proximity to the person, of him who stepped over it. There were, besides this, certain pulleys and chains working over them, which would of course be dangerous for one coming in contact Avith them. The plaintiff was entirely familiar with the situation on this platform. The defendant also was familiar with the situation, and the defendant knew that the work required of the plaintiff, or of those doing the work for the Martien Co. in arranging this conduit system for the wires, would require him to be on this platform more or less.

This platform was reached by a stepladder standing upon the floor under the platform and reaching to one of its comers. This ladder could have been placed at some other part of the platform, that is, it was not necessary that it should be at the particular point where it was placed. On the day of the injury the plaintiff, while working upon this'platform, had occasion to get. some tools, to reach which'it was necessary for him to go upon the' floor beneath. He was at work at such point on. the platform as that to reach the stepladder he must pass over the elevator shaft. The elevator was operated by an employe of the defendant, and he .knew that the plaintiff was at work upon this platform. There is evidence on the part of the plaintiff tending to show that shortly before .the accident he was seen upon the platform by the chief engineer of the defendant, or by its superintendent, or both.

On the part of the plaintiff it is claimed, and the evidence shows, that the plaintiff notified the elevator man that he was going onto this platform to work, and that he would be in danger if the elevator should be moved up or down without notice being given to him that the elevator was about to move, and that therefore he must be notified before the elevator should be moved either way, causing this shaft to revolve.

It should be said that the defendant, in the operation of its plant, needed the elevator to be moved at frequent intervals. Of course the suspension of all use of the elevator and of the moving machinery above this platform would have taken away all danger incident to the moving of such machinery: but this was not necessary, nor was it asked for by anybody. The danger to the plaintiff consisted in the moving of this machinery, including the shaft, at a time when the proximity of the plaintiff to such moving shaft or machinery was such that he was liable to be caught by it, and this could easily be avoided if the plaintiff could know in advance just when this machinery was to move; and so far as this shaft is concerned, to know in advance just when the shaft was to move.

The result of the suit was a verdict and judgment in favor of the plaintiff.

On the part of the defendant it is claimed that from the facts disclosed, which are substantially as hereinbefore stated, the court should have granted a motion which was made both at the close of the plaintiff’s evidence and at the closé of all the evidence, that a verdict be directed for the defendant, and that the court erred in refusing to grant such a motion. One of the grounds for this claim is, that it is clear, as a matter of law, that the plaintiff contributed to his injury by his own negligence. This claim is not well founded. It is urged in support of it that if the plaintiff had placed the stepladder, or caused it to be placed, at another part of the platform, he could have reached it to go to the floor below without stepping over this shaft; that therefore there was a safe way by which he might have reached the tools which it was necessary for him to have without stepping over the elevator shaft, and the rule that where there are two ways of accomplishing a thing that needs to be done, the one a safe way and the other unsafe, he who undertakes to perform the thing must choose the safe way, or choose the unsafe at his peril. This rule does not require that one shall exercise more than ordinary care in making such selection, and this particular case would not require that the ladder must be placed at a point where it would have afforded a safe place for the plaintiff to have avoided the particular accident which came to him, provided, taking the whole situation into consideration, he placed the ladder where a man of ordinary prudence would have placed it.

It must be remembered that there was no danger in stepping over this shaft provided it should remain still during the whole time of stepping over it. It was entirely safe when tlie plaintiff started to step over it. He was injured because it sarted while he was stepping over it, because it then caught him and threw him in such wise that his foot caught so as to be crushed at one of the pulleys over which a chain moved. It was a question properly for the jury to determine whether the plaintiff exercised such care as the ordinarily prudent man would have exercised in such a circumstance, and we are not prepared to say that the jury found wrong on that question.

It is urged further that the plaintiff was negligent in not notifying the man in charge of the elevator that he was about to step over this shaft, because, it is said, knowing as he did that if the shaft revolved while he was stepping over it, he would be placed in a dangerous position. In considering this it must be remembered that the situation was not dangerous when, he attempted to step over it, provided the conditions remained until he had completed the stepping over as they were at the time he began to step over; that he had notified the elevator man to warn him when he started the shaft, because his work would be such that he was liable to be in danger when the shaft started, unless he had an opportunity to protect himself. We think it was a question fairly submitted to the jury whether it was per se negligence for the plaintiff to rely upon receiving the notice, and so this position is not sound.

On. the part of the defense it is shown by the man in charge of the elevator himself that at all times prior to the happening of this accident, whenever the plaintiff was working upon this platform, notice was given to him before the shaft was set in motion, and it is testified to by him, the elevator man, that on this occasion he gave notice before he started the shaft. Upon this proposition the evidence is conflicting. But it is urged that whether this be true or not, that is, whether it be true or not that the plaintiff arranged with the elevator man that he should be notified whenever the elevator was to start, that it was negligence on the part of the plaintiff to trust to any such arrangement made with the elevator man, because, it is said, the latter went beyond the scope of his employment when he took upon himself to give notice to the plaintiff of when he would start the elevator. In support of this claim our attention is called to the case of Hall, Headington & Co. v. Poole, 94 Md. 171 [50 Atl. 704]. This case will be discussed later in this opinion, together with others cited on this proposition, contenting ourselves here with saying that we hold that the man in charge of the elevator, whose duty it was to run the elevator for the defendant in the conduct of its business, was so far the agent of the defendant as that, he having notice of the dangerous position in which the plaintiff was likely to put himself, and having notice that such danger would be avoided by his notifying the plaintiff when he would move the elevator and so put the shaft in motion, his knowledge of the arrangement was the knowledge of the defendant.

It is further urged on the part of the plaintiff in error that the court erred in receiving the verdict and entering judgment upon it in the absence of answers by the court, and which they failed to answer.' Those questions were:

First. “Was the operation of the elevator while the plaintiff was at work upon the elevator platform, inherently dangerous to plaintiff during the entire time he was so engaged?”

To this the jury responded. “Can not answer.”

Suppose the jury had answered this either way, we are unable to see that the general verdict would necessarily have been affected by that. The general verdict might well have been reached if the answer had been “Yes,” and so it might well have been reached if the answer had been “No.”

This applied equally to the second question, which reads:

“Was the operation of the elevator while the plaintiff was at work on the platform dangerous at intervals only?”

To this the same answer was made, but we think an answer either way would not have been inconsistent with the general verdict.

The jury responded to each of the several interrogatories in the same words, “Can not answer.” The other questions are:

Third. “Was the operation of the elevator while the plaintiff was at work upon the elevator platform dangerous only when he was passing to and from the work upon said platform?”

Fourth. “Was the operation of the machinery while the plaintiff was at work upon the elevator platform dangerous only when he passed over the drum shaft in going to and from the work?”

Fifth. “Could the plaintiff have gone to and from the work upon the platform with safety to himself by means of a ladder placed against the front of the platform ”

Sixth. “Was there any safer way for the plaintiff to go to and from the work on the elevator platform than that of passing over the drum shaft ”

If what has already been said in this opinion in reference to the matter of the different means by which one may go from one place to another, and the responsibility as to taking a safer course is sound, then an answer either way to any one of these questions would not necessarily have resulted in a different verdict, notwithstanding the proposition that in choosing between a safe and a dangerous way to do a thing, other things being equal, he who takes the dangerous way does it at his own peril; because the circumstances surrounding the taking the one way or the other must always be taken into consideration in determining whether ordinary care is used in the choice of the path taken. This seems to be a sufficient answer to the claim that the case should be reversed because of this failure to answer interrogatories. However, it may be said that no objections were taken at the time. True, counsel were not present when the verdict was returned, but it seems to be settled by the authorities that in order to avail oneself of each failure, there must have been exception taken or objection taken at the time. See Preferred Masonic Mut. Acc. Assn. v. Harrington, 30 O. C. C. 612 (10 N. S. 134); 20 Enc. Pleading & Practice, 352. However, we do not here determine that the rule applies where the party or attorney is not present.

It is further urged that the court erred in admitting certain offered evidence over the objection of the defendant.

The first of these objections is shown, by the record at page 75, where this question was asked of the plaintiff by his own counsel: “Mr. Hague, was it necessary to shut the elevator down for you to do your work up there?” It is said this is asking for a conclusion, and this is true in a sense, but the admission of the answer to this question was not prejudicial to the defendant, especially when the answer to that question is taken into consideration. The answer was: “It was not.” And this is equally true of another question appearing on the same page of the record: “When did it become necessary to stop the operation of the elevator?” The answer was: “Why, it only became necessary when we were crossing or pulling the wires, going to and from.” There was no prejudice in this. It clearly conveyed to the jury only a proposition which was so thoroughly shown by all the evidence that the only danger io which the plaintiff was subjected by the moving of the elevator shaft was the danger that he might be caught when he was required to cross over it, if it were then in motion.

On page 83 of the record, the plaintiff offered in evidence a cut or picture of a pulley with a chain over it; before this was offered in evidence it was handed to the witness, and this question was asked of him: “I hand you a little cut showing a couple of sprocket wheels and chain, and ask you whether in a general way that represents the chain in which you were caught and the wheels around •which it revolves?” To which the answer was: “It does, except it was about half the width.” Q. ' ‘ That is, a half that width chain would represent the chain in question here?” A. “Yes, sir; that is the shape of the gear exactly.” Thereupon the cut was offered and appears in the record as “Exhibit A.”

The objection is that it is not a cut of the exact wheel, but the answers to the questions put show in what the plaintiff says it differs from the exact wheel. We see no reason, why this might not be a proper item of evidence as giving to the jury information from which they might well learn more than they would without such cut.

The “Exhibit B,” also, which was offered in evidence was offered and admitted under objection. This was shown by the witness to represent a chain similar to the one shown, in “Exhibit A,” somewhat enlarged. An exhibit is not necessarily incompetent because it fails to show some exact thing in connection with the subject under investigation, provided it shows some matter directly bearing upon the matter under investigation with an explanation of how it differs from that which is being investigated. Suppose that one is injured by some mechanical device eight inches in diameter; there is offered in evidence a device which is testified to as being exactly like the one under investigation except that it is double the size of the one being investigated, but it is offered to show the workings of the device. Or, suppose a cut of some device which is being investigated is offered, which is not of the exact size of the device itself but is larger or smaller, but shows the construction or operation of the device; or, suppose that a device under investigation is so similar to a device produced by another manufacturer as that the operation or construction of the one under investigation may be shown by the similar devices, the witness explaining that the difference is, it can not be that the exhibit must be excluded. First, a witness testifies that the device is similar, but points out in what respect it differs; then, surely, with the opportunity for cross-examination to show whether it is all similar, or if dissimilar, to what extent, the court would not be justified in refusing to admit the exhibit. We find no error in the rulings upon the admission to evidence.

But it is said that the court erred in its charge to the jury, and that it erred in refusing to charge certain propositions requested by the defendant. It should be said in reference to these requests that they were not made in such wise as to bring them under the statute as to requests made to be given before ai'gument, nor it it claimed here that they were so requested. So that, if the charge as given was a proper charge, and if on the subjects covered by the requests the court properly charged the jury, then there was no error in refusing to give the requests in the form in. which they were presented to the court. It is said that there was error in the charge first because of the following language:

“Briefly stated, the plaintiff says that he was injured through the negligent act of the defendant in failing to notify or warn him of the starting of said elevator, and of the setting of said machinery connected therewith in motion, while knowing that plaintiff was on said platform in the performance of his duty.”

And again this language:

“So that the issue directly made by the petition and the answer was as to the fact of the warning. The defendant admits the agreement to warn, and says the fact was that on this particular occasion it did warn. That is the issue as made up by the pleadings.”

There is this to be said about the language of the judge here last quoted: The defendant did not admit the agreement to warn, but substanially it does admit that the plaintiff had notified the man in charge of the elevator that he should give him warning when, he would start the elevator. If the defendant had knowledge, through its proper agent, that the plaintiff would be in danger when the shaft moved, and that the plaintiff would depend upon warning coming to him when the shaft was to be moved, the obligation to give such warning would have been no greater because the elevator man had promised that he would give him warning, and so the statement by the court as to the admission was immaterial.

It is further complained that the court erred in using this language in its charge:

“If you find that the elevator boy was entrusted by the defendant with the control and operation of the elevator for any purpose, then under such facts the boy became the agent of the company.”

Taken in connection with the remainder of the charge, there was no error in this. If the boy controlled the operation of the elevator, then he was the agent of the company, in the operation of that elevator, and the “for anj' purpose” can only have affected the matter of the charge when taken in connection with the evidence as to whether the boy did have the control of the operation of that elevator. Of course this meant, and was understood by the jury to mean, that this boy or man, if he had such control of the elevator, that he determined when it was io be moved and when it was not to be moved, and what warning was to be given, if any, to one who might be in danger by reason of its being moved, then he was the agent of the company for that purpose. And so we consider that charge the right one.

In this connection the following authorities should be considered :

Earlier in this opinion the case of Hall, Headington & Co. v. Poole, supra, is mentioned, with the statement that it would be discussed later. In that case the plaintiff was in the employ of a contractor, who had to put in the electric wiring for a business plant. He found it convenient, though not necessary in the performance of his work, to get into the elevator shaft at its foot. By so doing he put himself in position in which he was sure to be injured if the elevator should.be used in the ordinary way, running clear down to the bottom of the shaft. He told the elevator boy that he was going into this place of danger; he told him not to run the elevator down below the first floor while he was there at work. And he testified that the boy said: “All right.” Aside from the knowledge of this boy there was no knowledge on the part of anyone connected with the defendant that the plaintiff was in this dangerous position. What the boy undertook to do was to omit doing all that his duty 'required of him, namely, to stop the elevator at the first floor when coming down, whereas his duty required of him to run clear down to the foot of the shaft.

The court held that when the boy undertook to omit the performance of the duty required of him by the terms of his employment, he went beyond the scope of such employment, and could not thereby bind his principal.

The present case is easily distinguishable from that. In that case it was sought to hold the principal for a promise of his servant that he would omit the performance of a duty which his employment required of him to perform. In this case no suggestion was made that any duty should be omitted, but only that warning should be given, of when he would perform one of his duties in the running of the elevator. We think it might well be that one should not be held to be acting within the scope of his employment when he assumed to omit to perform such duty, and still be within the scope of his employment when he undertook to perform the duty in. a particular way, which would in nowise interfere with the performance of his full duty to his employer.

The ease of Farmers & Mechanics Nat. Bank v. Hanks, 61 Tex. Civ. App. 379 [128 S. W. 147], is very nearly akin to the present case. We quote from the syllabus:

“A passenger elevator-man who knew before descending that a workman was in the shaft in. a position where he was liable to be injured, if not notified, was legally bound to use ordinary care not to injure him, independent of any agreement as to notifying him of his descent, and he was, under the circumstances, the agent of the owner of the building, and being intrusted with the control and operation of the car by such owner, was the latter’s agent.”

In the case of Beatty v. Metropolitan Bldg. Co., 63 Wash. 207 [115 Pac. 90, 1912D Ann. Cas. 528], it is held that where a workman went into an elevator shaft, telling the elevator boy not to come below a certain floor with his elevator, and the boy promised not to do so, the elevator boy was not acting outside the scope of his employment.

In this case the court considered a large number of cases on the question of the agency of the elevator man, among them the case of Hall, Headington & Co. v. Poole, supra, and reaches the conclusion as above stated, cited in support of the view taken by the court the following: Soderstrom v. Patten, 131 Ill. App. 32; Farmers & Mechanics Nat. Bank v. Hanks, supra, and Donovan v. Gay, 97 Mo. 440 [11 S. W. 44].

The requests to charge made by the defendant to be given were seventeen in number. Of these nine were given and eight refused. The first one refused is the one numbered 7 and reads:

“The duty of determining whether or not it was safe for the plaintiff to work on the platform over the elevator shaft was upon the plaintiff and not upon the defendant.”

The giving of this request could not have aided the jury more than it was aided in determining the rights of the parties by the charge given.

The claim of the plaintiff is not based on the proposition that it was necessarily dangerous to work on the platform over the elevator shaft, but that it was dangerous when the machinery was in operation, and so the refusal to give this aid did not prejudice the defendant.

The court gave, at the request of the defendant the eighth proposition requested:

“The defendant in this case did not owe the plaintiff the duty of providing a safe place for him to work.”

That was a sufficient instruction as to whose duty it was to determine whether the place was safe or not. The claim of the plaintiff was not based upon the obligation which would be due from the defendant to him if the pliaintiff had been an employe of the defendant, and the court distinctly told the jury that the obligation of the defendant to the plaintiff was to exercise ordinary care for his protection.

As bearing upon whether there was any prejudice to the defendant in the refusal to give the seventh proposition requested, the ninth proposition requested, which was given, may be considered, and this reads:

“Even though you may find that it was unsafe to work upon the elevator platform while the elevator machinery was in operation, you can not on this account conclude that the defendant was guilty of negligence; neither is there any presumption to the effect, if the plaintiff was injured, that the defendant was guilty of negligence.”

The eleventh, which was refused, reads:

“If you find that it was in fact unsafe for the plaintiff to work on the elevator platform while the elevator machinery was in operation, then, I charge you, that it was the duty of the plaintiff, when in the course of his work it became necessary for him to go upon said platform, to notify the defendant, and thus afford the defendant an opportunity to discontinue the operation of said car until the plaintiff had completed his work upon the platform.”

Clearly this ought not to have been given. There was no claim made that the car should not be operated while the plaintiff was at work upon the platform, but only that it should not be put in motion without a warning to him.

Without stopping to read each one of these requests refused, we reach the conclusion that in view of the charge as given, there was no prejudice to the defendant in the refusal to give such as were refused. Attention has not been called specifically to each one of the errors complained of, but attention has been given to all of them, and attention in this opinion is called to those which we regard as of large importance as any, and on the whole record we fail to find that there was any error to the prejudice of the defendant whereby substantial justice ivas not done to it in this trial, and the judgment is affirmed.

Winch and Niman, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    DAMAGES — FRAUD.
    [Cuyahoga (8th) Circuit Court,
    May 22, 1912.]
    Marvin, Winch and .Niman, JJ.
    J. A. C. Golner v. George Luttner.
    Measure of Damages for Misrepresentations in Exchange of Properties.
    The measure of damages in an action for fraud in the exchange of property is the difference between the value of the thing received, if it had been as represented, and its actual value at the time of the exchange.
    Error.

      Hidy, Klein & Harris, for plaintiff in error.

      David (& Heald, for defendant in error.
   WINCH, J.

This was an action to recover for an alleged fraud practiced upon Luttner by. Golner in inducing Luttner to exchange his property in Cleveland, worth about $7,000, for some notes secured by mortgages on land in Lorain County, which Golner and his associates, or alleged fellow-conspirators, represented to be upon the shore of Lake Erie and ample security for the notes, whereas the lots described in the mortgages were not upon the shore of the lake, and were not good security for the notes. There were other misrepresentations alleged to have been made.

The ease was tried to a jury, which brought in a verdict for the plaintiff, and we have reviewed the evidence upon a claim by plaintiff in error that the verdict was not sustained by sufficient evidence in two particulars — that is, that it was not shown that Luttner was deceived by any false representations made as to the location of the land, if any were made, for he had opportunity from a plat to ascertain that the lots mortgaged were not located upon the shore of the lake, and that Golner’s connection with the fraud was not shown.

There is no need to recite the facts in this case — counsel for the parties are familiar with the record. It unfolds a tale of apparent fraud. Though there are some contradictions in the evidence, this is not unusual.

Suffice it to say that if the jury believed some of the witnesses and disbelieved others, as they had a right to do, and considered all the probabilities of the ease, the age, business and capacity of the parties, they might well have come to the conclusion that Luttner had been wronged by Golner in the manner claimed in the petition and was entitled to damages.

It is claimed, however, that the case must- be reversed for error in the charge on the measure of Luttner’s recovery if the jury should find in his favor. On this subject, the court charged as follows:

“If from a consideration of all the testimony your verdict is for the plaintiff against the defendants, or either of them, you will award to the plaintiff such amount as will compensate him for any damages he has sustained; and in arriving at the proper measure of recovery, in case your verdict is for the plaintiff, you will take into consideration the difference, if any, between the value of the securities, consisting of notes and mortgages transferred to the plaintiff, and what would have been the value of the same at the time they were transferred, if the lots covered by said mortgages had been located on, or near to the shore of Lake Erie.”

Plaintiff in error claims that the court should have charged that the measure of damages in a case' such'as this is the difference between the actual value of the thing parted with and the actual value of the thing received.

There is respectable authority for the rule contended for, but it seems that it makes a new contract for the parties. One may trade his property for another’s because he expects to make a good bargain and a profit, and would make a decided profit if the thing traded for were as represented; by reason of the false representations, however, he receives something worth less, instead of more than what he parted with. The rule urged cuts out the profit he had a right to expect and remits him to the actual value of what he parted with.

Both the rule given by the court and the rule contended for are given in 20 Cyc. 132, with authorities sustaining each. In a note giving eases purporting to sustain, the rule as given by tbe trial judge is cited the ease of Linerode v. Rasmussen, 63 Ohio St. 545, a ease very similar to the one at bar. There it was held:

“Where the defendant was sued on notes given for purchase money for a farm, and sought to recoup damages on the ground that the plaintiff had represented that ‘underlying said premises was a three or three and a half foot vein of good bituminous, minable coal,’ whereas there was no coal whatever under said premises, the measure of damages is the difference between the value of the farm as it was represented to be and its actual value at the time of the purchase. ’ ’

From this authority we conclude that there was no error in the charge given.

See also Wilkinson v. Root, Wright, 686.

On the whole record it seems that substantial justice was done in this ease, and the judgment is affirmed.

Marvin and Niman,JJ., concur.


author: MARVIN, J.

text:
    WILLS.
    [Cuyahoga (8th) Circuit Court,
    May, 1912.]
    Marvin, Winch and Niman, JX
    Edna Giddings v. George Schmuck, Ex., et al.
    Sufficient Signature to Will.
    A will is signed at the end thereof, as required by the statute, when the signature of the testator appears after the will, just below a line intended in a blank form for the signature and in a blank space in the attestation clause intended for the name of the testator as part thereof, said name also appearing in the attestation clause, in the handwriting of the scrivener of the will, just below the testator’s signature, in such position as to be read as a part of said attestation clause. Sears v. Sears, 77 Ohio St. 104, distinguished.

      G. W. Toland and II. G. Shcdbley, for plaintiff.

      M. P. Mooney, for defendant.
   MARVIN, J.

A writing purporting to be the last will and testament of William Gable, deceased, was admitted to probate by the probate court of this county on. January 26, 1909. Proceedings were brought in the court of common pleas to set aside this will, with the result that on motion, the court directed the jury to find a verdict that the purported will was in fact the will of said deceased. It is to reverse this judgment that the present proceeding is prosecuted.

The parties here are as they were in the court below, the defendants being the proponents of the will.

Pursuant to the provisions of See. 12085 G. C., the proponent offered in evidence the will, or order of probate, including the testimony taken in the probate court by the defendant’s witnesses, and rested. Thereupon the contestors of the will moved the court to direct a verdict that this writing was pot the will of said testator. This motion was overruled, and then the motion, already mentioned, was made by the proponents of the will that a verdict be directed finding for the proponents.

The only question in the case is as to whether the writing claimed as a will was executed in accordance with Sec. 5916, which was the statute in force at the time this will purports to have been executed. That section requires that wills, except nuncupative wills, “shall be signed at the end thereof by the pai’ty making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party by two or more competent witnesses who saiv the testator subscribe or heard him acknowledge the same.”

The present statute, Sec. 10505 G. C., has practically the same provision, although the wording is somewhat different, but this ease must be governed by the statute in force at the time the will was executed, although, as already said, the present statute is practically the same, and if the case were to be governed by the present instead of by the former statute, the result would be the same.

The real question in the case is whether this writing was signed at the end thereof by the maker.

The attesting witnesses swore in the probate court that it was signed by William Gable in their presence, and that all the other formalities were complied with as the statute requires, and we are brought to the inquiry whether the writing itself contradicts this evidence.

The writing is in the usual form of a will, making various bequests and nominating an executor, and then is followed by these words: “In testimony whereof, I have set my hand to this my last will and testament at Cleveland this 22day of September, in the year of our Lord 190Eight.”

Then follows a blank line, thus: “....................” evidently intended, to indicate where the testator should sign, but there is no writing on this line. Then follows the following in print:

“The foregoing instrument was signed by the said....... ...............in our presence, and by him published and declared as and for......will and testament, and at......request and in......presence, and in the presence of each other, and we hereunto subscribe our names as attesting witnesses at........ this............day of....................A. D.........”

And then follows in writing the names of two apparenly attesting witnesses, they being the names of the witnesses who testified as to the execution of the will in the probate court at the time it was admitted to probate.

Filled in the first blank in this printed form appear, in writing, the word's, “William Gable,” and then, almost immediately under these written words and between the first and second lines of this printed form, appear again in writing the words, “William Gable,” and the other blanks are filled out with the pronouns “him” and “his” respectively and after the word “at” is the written word “Cleveland,” and after the word “this” is “22,” and after the words “day of,” is written the word “September,” and after the letters “A. D.,” the figures “1908.”

Since it appears by the testimony of the attesting witnesses taken in the probate court, that they saw William Gable sign this will, in follows, since there is no place where his name appears that could be a signature to the will, except the two places already indicated, that William Gable either wrote his name in the blank left in the printed form on the first line, or he wrote it at the place where it appears between the first and second lines; one or the other of these must be his signature. It is difficult to present in words just how this appears on the instrument itself, but it is clear, by an inspection of the instrument, that in one place where this name “William Gable” appears, it is intended to be read in connection with the printed form, and that it is so intended to be read in but one place in such printed form. If the words were erased where they appear in the first line, there can be no doubt that those words, as they appear between the two printed lines, would be read in connection with the first line, and so read, the words as they appear in the first line, if restored, could mean nothing but a signature of William Gable; but if they are left in the first line, then the place where they appear between the two lines must mean nothing except that they are the signature of William Gable, so that in either case, we have an instrument, in form a will, and following that we have the signature of William Gable.

From an inspection of the handwriting, we have little doubt that the words “William Gable” appearing in the first line were written by him. The second place where the name appears seems to be in the handwriting of him who wrote out the body of the will, which leads us to the conclusion that the words written in the first line of this form for the attesting witnesses were written by William Gable, and we still have the complete sentence for the attesting clause. We think, therefore, that this writing is clearly shown to have been signed by William Gable at the end thereof.

It is urged on the part of the plaintiff in error that the case must be governed by the case of Sears v. Sears, 77 Ohio St. 104 [82 N. E. 1067; 17 L. R. A. (N. S.) 353; 11 Ann. Cas. 1008], In that case the name of the testator, Arminda S. Nicholson, appears in the same place as the name of William Gable appears in the first line in the attestation in the case before us, and it was held, although it was shown that this name was written by the- testator, that it ivas not a signature at the end of the will. In speaking of this the court said, at page 127:

1 ‘ The attestation clause signed by the witnesses, recites that ‘the foregoing instrument was signed by the said Arminda S. Nicholson, in our presence,’ but this does not change the fact, and in the absence of a signature, is without legal effect. If a scrivener had prepared the will and had written her name where it appears in the attestation clause, her name there would have been merely descriptio personae; and when it is shown that the testatrix was her own scrivener, the natural presumption is that it was so intended; and even if the fast was that the testatrix wrote her name there, intending by that act to sign her will, still her signature would not be at the end of the will, and her intention could not have the effect of transposing it.”

It must be remembered that in that ease the name appeared but once, and necessarily, therefore, was to be read as a part of the attestation clause, whereas, here it appears twice, and the name can be read but once as a part of the attestation clause.

We think, therefore, that it materially differs from the ease cited in that the attestation clause is complete without reading what purports to be the signature, and this coming after the will, as already said, we hold to be a signing at the end of the will, and the judgment of the court of common pleas is affirmed.

Winch and Niman, JJ., concur.


author: NIMAN, J.

text:
    BENEFICIAL ASSOCIATIONS.
    [Cuyahoga (8th) Circuit Court,
    May 27, 1912.]
    Marvin, Winch and Niman, JJ.
    St. John Nepomicine Society v. Josephine Zoulek, Gdn.
    1. When Appeal to Courts Lies to Member of Mutual Benefit Association.
    While a member of a mutual benefit society claiming to be entitled to the payment of sick benefits from it, which are refused, must first seek his remedy for such refusal before the tribunals of the order provided for deciding such claims, still, if the society has provided no method whereby a member whose claim has been rejected may obtain a review of the decision and no tribunal for the hearing of an appeal from such decision such member may sue on his claim in the civil court.
    2. Appeal from Refusal to Pay Sick Benefits not Provided.
    Where the only regulation with regard to appeals in the constitution and by-laws of a mutual benefit society is as follows: “As a sign that a member should be punished for a transgression of the society’s or the union’s constitution either for indecent or immoral conduct by a jury or by the constitution alone, or by the vote of the members, he has no right to arise against the society except by an appeal to the union,” there is no provision with regard to an appeal from a refusal to pay sick benefits.
    3. Interest Claimed for First Time in Common Pleas on Appeal from Justice of the Peace.
    Where suit is brought in a justice court for $202 without interest upon appeal to the common pleas court and trial there on á petition asking judgment for $202 and interest, if no objection is made to the claim for interest until after judgment in the common pleas court, the cause will not be reversed because verdict and judgment included such interest.

      Kerruish, Kerruish, Hartshorn & Spooner, for plaintiff in error.

      Hart, Canfield <& Crolce, for defendant in error.
   NIMAN, J.

This 'proceeding in error had its inception in an action started by the defendant in error, as guardian of John Zoulek, against the plaintiff in error, in the court of a justice of- the peace, to recover certain sick benefits claimed to be due from the plaintiff in error. The ease was appealed to the court of common pleas and a verdict there rendered in. favor of the plaintiff in the action for $299.46. A motion for a new trial was overruled, and judgment entered on the verdict. The plaintiff in error is here seeking a reversal'of this judgment.

The St. John Nepomicine Society is a mutual benefit association, the members of which are entitled to receive sick benefits upon the terms and conditions prescribed by its constitution and by-laws. That part of its constitution and by-laws dealing with sick benefits is found in Article 15, which is as follows:

“Benefits in Case op Sickness.
“1. Each member, who is a member for six months after his admission, will in case of sickness receive weekly sick benefits of such amount as the society is then paying provided that he has all his lawful dues paid up and is adjudged worthy of the sick benefit. No sick benefits shall be paid for less than seven days, counting from the day when his application was presented to the financial secretary.
“2. The society shall decide the amount of this sick benefit at a regular meeting, according to conditions, which, decision shall be a part of the minutes and shall hold good until according to new conditions this is changed. For the change of this amount will be required a two-thirds vote of the entire membership.
“3. If a member is afflicted with sickness of long duration he shall receive sick benefits for one year; after which time it ceases, and only by good will and decision of the society he shall be supported by voluntary contributions. Bach member, during his membership is entitled to- sick benefit for an aggregate time of one year. If a member draws sick benefit for 52 weeks he will in case of another sickness be debarred from further support.
“4. If a member falls sick owing to bad or immoral life, such as drunkenness, staying out late at night, and such, he shall not receive sick benefit in case of sickness. ’ ’

John Zoulek, the ward of the defendant in error, on or about September 1, 1903, was a member of the society. At about that time he became insane, and has remained in this condition ever since. The defendant in error was appointed his guardian, and as such made application to the society for the payment of sick benefits on account of the sickness of John Zoulek. The society, however, after investiation, refused the application on the ground that Zoulek’s condition was due to drink, and, according to the contention of the society, his case came under Art. 15, Sec. 4, of the constitution and by-laws already quoted.

After the refusal of the society to pay any benefits suit was brought in the manner and with the result above indicated. The plaintiff in error contends that on the evidence, the defendant in ei’ror was not entitled to recover on the claim sued on, for the reason that she had not exhausted her remedies in the order or association, and that the verdict was therefore either not sustained by sufficient evidence, or was contrary to law.

It is undoubtedly the law that when a member- of such an organization as this society, claims to be entitled to sick benefits, he must seek his remedy in the first instance in the organization and before the ’ tribunals provided by it for deciding such .claims. Myers v. Jenkins, 63 Ohio St. 101.

However, if the society has provided no method whereby a member whose claim has been rejected by it, may obtain a review of the decision and no tribunal for the hearing of an appeal from such decision, the member whose claim has been rejected may sue for the recovery of the same in the civil courts.

The defendant in error did not make any appeal within the society from the rejection of her claim, and this leaves for determination the question whether any such appeal was required under the laws of the organization..

It is provided by Art. 21, Sec. 1, in substance, that each member who is admitted to the society is required to sign his name to the constitution as a sign that as a member, he acknowledges the constitution and the constitution of the union as the law of the society, and will be guided by the rales therein contained, and will fulfill all his duties and observe all laws thereof. .

Article 21, Sec. 2 of the constitution of the society provides: ■ .

“As a sign that a member should he be punished for a transgression of the society’s or the union’s constitution-either for indecent or immoral conduct, by a jury or by the constitution alone, or by the vote of the members, he has no right to arise against the society except by an appeal to the union. ’ ’

Article 18, Secs. 1 and 2 of the constitution are as follows:

“1. Should a member be dissatisfied with the finding of the jury or the society’s decision, he may appeal to the union.
“2. The appeal must be handed to the local president within at the most 20 days, and must contain definite reasons for complaint, when and how he was unjustly treated by the society.”

It is claimed that by virtue of these provisions, the defendant in error was required to appeal to. the union, but no mention. is made of the subject of sick benefits in any of the sections of the constitution referred to, and, in our opinion, they do not refer to such benefit.

The appeal from the finding of the jury. or the society-’s decision to the union, that is provided for, apparently refers to any punishment for a transgression, of the society’s or union’s constitution, and it can hardly be contended that the refusal to pay sick benefits is a punishment for a transgression of the constitution of the society or of the union, even though the refusal be based upon the claim that the member asserting his right to benefits has, by his own immoral life, produced his sickness.

No appeal having been provided whereby the defendant in error could obtain a review of the action of the organization in refusing to allow her application for benefits, it follows that she had the right, upon the rejection of her claim, to institute a suit to recover them.

Error is also claimed to have been committed by the trial court in refusing to receive in evidence a certain letter and the minutes of certain meetings of the society.

The bill of exceptions contains no intimation of what the contents of this letter or of the minutes offered may have been. There was no offer made to prove their contents, so that we are unable to pass upon their competency. No prejudicial error in the ruling of the trial court on matters of evidence has been brought to our attention.

Another ground of alleged error is founded upon the contention that the court erred in charging the jury in that part of the charge in which the court, in substance, told the jury that the only question for their determination was whether or not intoxication or the excessive use of intoxicating liquor was the cause of the insanity of John Zoulek.

We think, however, that in the state of the pleadings and the evidence, the court was right in so charging the jury. There was no dispute in the evidence that at the time suit was brought, John Zoulek was a member of the society; that all of his dues and assessments had been paid; that he was adjudged insane about September 1, 1903, and has been insane ever since; that the society had been requested to pay the benefits sought to be collected in the suit and had refused payment.

The answer filed in the court of common pleas in the action based the refusal of the society to pay sick benefits to John Zoulek upon the ground that he had led such an intemperate life as to bring about his sickness, and in view of the undisputed facts to which attention has been called, there was no issue of fact left in the case but the simple determination of whether or not Zoulek’s sickness or insanity had been caused by his own addiction to drink.

It is also claimed by the plaintiff in error that the vei’diet is excessive to the extent of interest on $202 from September 1, 1903.

The bill of particulars filed in the justice court asked for judgment for $202 only, no mention being made of interest. The petition filed in the court of common pleas prayed, not only for judgment for $202, but also for interest from September 1, 1903. The charge of the court authorized the jury to compr - interest on such amount of sick benefits as they should / John. Zoulek was entitled to have received on September 1, 19 The amount of the verdict indicates that interest was figure on the amount of benefits to be recovered in the action.

It is claimed that there can not be a recovery for a greater amount than that sought to be recovered in the justice court. No objection, however, seems to have been made at any stage of the case to the claim for interest. The amount sought to be recovered was within the original jurisdiction of the court of common pleas. It has been held that although the cause of action asserted in the court of-common pleas is entirely different from that tried before the justice of the peace, yet, if it is within the original jurisdiction of the common pleas court, that court may acquire and exercise jurisdiction on the voluntary appearance and consent of the defendant. Wilson v. Wilson, 30 Ohio St. 365.

This principle seems applicable to the case under consideration.

The petition in error contains other assignments of error, but no claim has been made- with respect to any other errors than those which have already been considered, and it follows that the judgment of the court of common pleas must be affirmed.

Marvin and Winch, JJ., concur.


text:
    NEW TRIAL
    [Cuyahoga (8th) Circuit Court,
    May 27, 1912.]
    Marvin, Winch and Niman, JJ.
    Sherwin-Williams Co. v. Globe Rutgers Fire Ins. Co.
    1. Motion to Vacate Order Overruling Motion for New Trial.
    When a trial judge, upon submission of a motion for a new trial, promises to let the defendant’s'attorneys know of the disposition of the motion, which he fails to do, but overrules the motion without their knowledge, of which action they do not learn until after time for filing a bill of exceptions has passed, this constitutes such “irregularity in obtaining a judgment or order,” within the purview of Sec. 11631 G. C:, as to authorize the court at a subsequent term to vacate the order overruling the motion for a new trial and set the same for hearing.
    2. Judicial Notice of Judge’s Own Conduct.
    On a motion to vacate an order overruling a motion for a new trial on the ground of irregularity in obtaining it, which irregularity is alleged to be an. act or course of conduct of the judge, said judge in passing on the motion, may take into consideration, without other evidence, such facts as came within his own cognizance.
    3. Journal Entry Embodying Facts Within Knowledge of Court Treated as Finding of Fact and Law. *
    When a journal entry embodies facts relating to the court’s own action on the subject before it, which disclose on their face that they were within the knowledge of the court, such journal entry should be treated as a finding of facts, and given the same effect as though the court had been specially requested to make a finding of fact and of law.
    4. Affidavit of Good Defense not Filed on Motion to Vacate Order Overruling Motion for New Trial.
    An affidavit that the defendant has a good defense need not be filed with a motion after term to vacate an order overruling a motion for a new trial.
    Error.

      Squire, Sanders & Dempsey, for plaintiff in error.

      White-, Johnson & Cannon, for defendant in error.
   NIMAN, J.

The plaintiff in error in this proceeding seeks a reversal of the action of the court of common pleas in granting a motion to vacate and set aside a former order of the court whereby the motion of the defendant in. error for a new trial was overruled.

The action in the court below was for the recovery of money under an insurance policy. The trial took place at the April, 1911, term of court, and resulted in a verdict for the plaintiff on June 14, 1911.

Within three days thereafter the defendant filed its motion, for a new tidal, which was held by the court until December 22, 1911, in the September, 1911, term, when it was overruled, and judgment entered on the verdict. Counsel for defendant did not learn of this until the time for filing a bill of exceptions had passed.

On February 12, 1912, in the January term of that year, the defendant filed a motion to set aside the order overruling its motion for a new trial. In the same term, April 26, the court granted this motion and set aside “the order and decision, of the court overruling the motion for a new trial and the judgment entered thereon,” and set the hearing on the motion for a new trial for the following day, at which time the motion for a new trial was overruled and judgment entered on the verdict.

The motion involved in this proceeding was founded on Sec. 11631 G. C., which among other things provides:

“The common pleas court or the circuit court may vacate or modify its own judgment or order after the term at which it was made:
“3. For mistake, neglect, or omission of the clerk or irregularity in obtaining a judgment or order.”

The irregularity relied upon by the defendant is stated in its motion in the following language:

“Said case was tried at the April term, A. D. 1911, of this court, and a verdict rendered. In due time thereafter, a motion for a new trial was filed by this defendant. Defendant endeavored to obtain a hearing on said motion, at that time, but was unable to do so, and no hearing was had thereon notwithstanding the efforts of this defendant. At the September term of this court, this defendant made repeated efforts to obtain a hearing on said motion,, and the trial judge three times served notice on attorneys for plaintiff and defendant to appear and ax-gue said motion. On each of said occasions, this defendant appeared by eóunsel ready to argue said motion, but counsel for plaintiff did not appear, being engaged in the trial of other cases. On request of the trial judge, this defendant had the testimony written out, of the witness in the course of whose examination the error occurred as to which the judge was uncertain, and also the entire charge of the court written out, showing his charge in relation to this testimony, and delivered the same to the judge on November 28, being a day of the September term; and at that time, the trial judge was busy trying a case in the criminal branch of this court, and stated that he was busy and unable to give the matter attention at that time, but that he would look over the testimony and the charge, and call in the attorneys for the plaintiff and defendant, so that a hearing could be had on November 28, A. D. 1911, when the testimony and charge were delivered to the court.
“Thereafter, counsel for defendant held themselves in readiness to attend upon such call, but without calling in counsel, on the afternoon of- December 22, 1911, the trial judge made the entry overruling the motion for new trial.
“Of this action of the court, defendant had no knowledge until February 8, A. D. 1912, being after the expiration of the time at which a bill of exceptions could be filed. As soon as defendant’s counsel learned of this, they called upon the trial judge and learned the facts as above stated.”

It is contended on. behalf of the plaintiff in error that the motion charges no such irregularity as is contemplated by the statute as ground for vacating a judgment or order after term.

In Guernsey Co. (Comrs.) v. Cambridge, 3 Circ. Dec. 669 (7 R. 72), an irregularity, within the intent of the statute, was defined to be “some act done, or step taken, by the court, either sui sponte, or upon, request, or by an officer thereof, which is not according to the regular course of proceeding, and by which a party was deprived of the benefit of a defense, without fault on his part.”

The term “irregularity” is a very, comprehensive one, and was intended by the legislature no doubt to embrace all such acts of a party to the action, an officer of the court, or of the court itself, as constitute a departure from the due, orderly and established mode of proceeding therein, where a party, with no fault on his part, has been deprived of some right or benefit otherwise available to him. Such irregularity may consist of acts of commission or omission, constituting a want of adherence to some prescribed rule or method of procedure.

If the facts set forth in the motion as the grounds for obtaining the relief sought by said motion are established by sufficient proof, they, in our opinion, make a ease of irregularity within the meaning of the statute. Counsel for the defendant had a right to rely upon any statement of the court, and if through inadvertance or misunderstanding, or any other reason, they were not notified of the hearing on the motion for a new trial, and did not discover the entry overruling this motion, they have a right to invoke the benefit of the relief provided by Sec. 11631 G. C.

It is claimed, however, on behalf of the plaintiff in error, that there was a failure of proof of the irregularity complained of. The only evidence in support of the motion was the affidavit of one of the defendant’s attorneys, which, it is insisted, does not contain sufficient facts to sustain the motion.

The motion itself, however, was sworn to and might properly. have been considered by the court as an affidavit, as well as a motion. In hearings in which affidavits are admissible,-it is common, practice to receive and consider the sworn pleadings and motions as evidence. Moreover, on the journal entry the court makes certain findings of fact which in their very nature must have rested within his own personal knowledge. These findings of fact by the court, based upon his knowledge of what took place with reference to the making of the entry overruling the defendant’s motion for a new trial, are sufficient to sustain the motion when considered with the affidavit offered in support of said motion and the sworn motion itself. The nature of the findings of fact based upon the court’s personal knowdedge is sufficiently indicated by the following language:

“In view' of any promise to let the defendant’s attorneys know of the disposition of the motion, and in view of the further fact that, in spite of effort, the knowdedge was not brought home to them, and they were misled by my promise, it is my opinion that the motion should be granted, and the judgment be set aside, and the motion set for hearing.”

That the court had the right to consider and take into account the facts that rested within his own personal knowdedge, v'e think, is clear. In contempt cases it is well settled that the court may determine without other evidence facts that occur in court and wdiich are within, the court’s knowdedge. Thus, in Myers v. State, 46 Ohio St. 473 [22 N. E. 43; 15 Am. St. 638], it was said:

“It was competent for the court to take judicial notice of pertinent facts connected with the transaction that came within the cognizance of his own senses.”

When irregularity, consisting of an act, or a course of conduct of the court, is asserted as the ground of relief sought by a motion, it is competent, in passing on the motion, for the court to consider without other evidence the facts involving his own act or conduct.

An affidavit by the court, or testimony by him, would be useless, and when the journal entry embodies facts relating to the court’s own action on the subject before him, which disclose on their face that they were within the knowledge of the court, such journal entry should be treated as findings of fact, and given the same effect as though the court had been specifically requested to make a finding of fact and of law.

Unless, therefore, the contention of the plaintiff in error, that an, affidavit of merit must be filed with the motion to vacate the judgment or order, is to be sustained, the ruling of the court below on the motion under consideration must be affirmed.

We do not think the requirement that such affidavit be filed is applicable to the hearing of a motion of this kind. It was intended to apply in those cases where a party has been prevented from making a defense on the merits, as in cases of default judgments.

The language of the Supreme Court in Knox Co. Bank v. Doty, 9 Ohio St. 506, is in accord with this view. It was there said:

“Section 538 of the code which provides that a judgment shall not be vacated on motion until it is adjudged that there is a valid defense to the action, was intended to apply to cases where the ground of the motion is that the party had a defense, which he, for some cause, was prevented from setting up, and not to cases where, as in the case at bar, there is confessedly no such cause of action, or where the court had no jurisdiction over the person of the defendants. ’ ’

It follows from the views here expressed that the judgment of the court of common pleas must be affirmed.

Marvin and Winch, JJ., concur.


text:
    ELEVATORS — LANDLORD AND TENANT — PLEADINGS.
    [Cuyahoga (8th) Circuit Court,
    February 5, 1912.]
    Marvin, Winch and Niman, JJ.

      James Flynn v. Salina Wiltshire.
    1. Landlord , Liable for Accident Resulting from Faulty Construction of Elevator.
    When an elevator accident occurs as the'result of original faulty construction the owner of the building may be liable, though he has leased the building to a tenant.
    2. Landlord Retaining Control of Elevator and Repairs Liable for Defects.
    When a landlord under his lease to a tenant retains control of an elevator and agrees to keep it in proper condition, he is liable for an accident resulting from the elevator getting out of repair.
    3. Pleadings Amended to Conform to Evidence.
    When it can be done without surprise or injury, a case should be tried upon the evidence, and if objection be made that evidence is not admissible under the pleadings, the pleadings should be amended at once and without terms.
    4. No Reversal for Variance if not Prejudicial or Misleading.
    When there has been a variance between pleadings and proof, and no amendment of the pleadings to conform to the facts proved has been asked, ordered or made, the judgment will not be reversed unless it appear that by the variance the plaintiff in error was misled to his prejudice.
    Error.

      Reed, Russell & Fichelberger, for plaintiff in. error.

      F. C. Scott, for defendant in error.

       Dismissed in Supreme Court, March 25, 1913, on motion of plaintiff in error at his costs.

   WINCH, J.

This was an action brought by defendant in error to recover for personal injuries received in an elevator accident in a building owned by James Flynn,, plaintiff in error, and leased to the Flynn-Froelk Company, which was a defendant below, but is not a party to these proceedings in error.

It is doubtful if this court has such jurisdiction of the subject-matter of the case as will authorize it to review the judgment, for want of necessary parties. Jones v. Marsh, 30 Ohio St. 20.

However, we have examined the several assignments of error and give onr views regarding them.

It is claimed that the petition made no allegation of negligence against James Flynn, merely stating that lie was the owner of the building and that he had leased it to the FlynnFroelk Company, who were in possession of the building and consequently, of the elevator; that there is no allegation that Flynn retained any control over the elevator and that, therefore, under the adjudications in Ohio, no case was stated against him.

With this view we do not concur; the petition is susceptible of the interpretation that the accident happened because of original faulty construction for which the owner -would be liable, so that it complies with the rule stated in the third paragraph of the syllabus of the case of Shindelbeck v. Moon, 32 Ohio St. 264 [30 Am. Rep. 584], and sets forth a ease such as is referred to in the last paragraph of the opinion, on page 267:

“Hence it is said that wherej at the time of the lease, the property, is in a ruinous or defective condition, and by reason, thereof the injury happens, then the owner or lessee is liable generally, though there are cases which make the liability dependent upon the covenants of the lease.”

But, if we are wrong in our interpretation, of the allegations of the petition, the next claim of error brings us to another aspect of the same question, so that another resolution of it is offered.

At the close of plaintiff’s evidence, which tended to show that the accident happened because of original faulty construction, both defendants asked for the direction of a verdict in their favor.

Thereupon the plaintiff asked leave to reopen the ease for the purpose, as he stated, “to put on proof as to the liability of James Flynn individually. ’ ’

This was permitted over the objection of Flynn. Thereupon the plaintiff put Flynn on the stand for cross-examination, and drew from him that under an oral lease with the Flynn-Froelk Company he retained eontrol of the elevator and was to keep in proper condition.

This evidence made him liable under the ruling in the ease already mentioned, and others referred to in the decision in the ease of Stackhouse v. Close, 83 Ohio St. 339 [94 N. E. 746].

Counsel for plaintiff in error conceded that it was within the discretion of the court to open up the case and permit further evidence to be introduced under the allegations of the pleadings, but he urges that this additional evidence was on an issue not made in the pleadings, and so should not have been admitted, or, if admitted, should have been afterwards withdrawn from the consideration of the jury, as requested by him.

The matter is ruled by statute.

Section 11556 G. C. provides:

“No variance between the allegation in a pleading, and the proof, shall be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action or defense upon , the merits. When it is alleged that a party has been so mislead, that fact must be proved to the satisfaction of the court. It must also be shown in what respect he has been, mislead. Thereupon the court may order the pleading to be amended, upon such terms as are just.”

Construing this section the Supreme Court, in the case of Hoffman v. Gordon & Bro., 15 Ohio St. 212, 218, says:

“The evident object of the code is to vest in the court a discretion, where it can be done without surprise or injury, to try the case upon, the evidence, outside of the pleadings and if objection be made, to allow the pleadings to be conformed to the evidence, at once and without terms.”

Here there was no surprise or injury. Flynn knew all the time the nature of his obligations regarding the elevator under his oral lease with his tenant. The record fails to show, as required by the statute, how he was mislead, and so we must presume that he was not. True, he objected at the time to the introduction of this evidence, and the plaintiff neglected to ask leave to amend his petition to conform to this evidence, but he could have done so and been granted the leave.

What was first said about the uncertain character of the allegations of the petition is to be borne in mind here, for having said allegations-in mind it is not apparent that the variance suggested was material.

It was held in the case of Sibila v. Bahney, 34 Ohio St. 399, 408:

“That the evidence at the trial should be confined to the issue, admits of no doubt. The rule is as inflexible since as be-for the code, that the allegations and proof must correspond. But where the variance between the allegations and proof is such that the court would allow an amendment under Sec. 132 (G. C. 11557), without costs, to conform the pleading to the proof, the variance can not be deemed so far material under Section 131 (G. C. 11556) as t<5 justify a reversal, of the judgment. ’ ’

See also Dayton Ins. Co. v. Kelley, 24 Ohio St. 345 [15 Am. Rep. 612]; and Benninger v. Hess, 41 Ohio St. 64.

In the latter case, at page 69 of the.opinion, the court says:

“Where a judgment has been rendered, and there has been a variance between the pleadings and the proof, but not such as to mislead the opposite party to his prejudice, and where there has been an omission in such ease to conform the pleading to the facts proved, it will not be in furtherance of justice to deprive plaintiff of the fruits of the trial, by a reversal of the judgment in error.”

From this quotation and from the statute, it appears that a variance is not to be deemed material unless it ‘‘mislead the opposite party, to his prejudice.”

We have already seen, that Flynn was in nowise mislead to his prejudice by this variance.

See also Section 11364 G. C.

The trial court, at the conclusion of this additional evidence, dismissed the lessee defendant from the case and it went to the jury on the liability of Flynn alone. The dismissal of the lessee is complained of, as error on the round that it was an intimation that the court believed the owner was liable.

Such is an unusual view to take of the matter and is not consistent with the failure of plaintiff in error to make the lessee a party defendant to these proceedings in error. However, as Flynn’s ease was submitted to the jury on evidence tending to establish his liability, under a charge which we find, as a whole, was unobjectionable, we must assume that the jury confined itself to that evidence.

It is claimed that the court in the charge treated of the subject of contributory negligence of the plaintiff, which would be reversible error, for no such issue was raised in the pleadings, but we have been unable to find a suggestion of that topic in the charge.

Some rulings on evidence are complained of. The plaintiff was permitted to ask Flynn whether he carried insurance on the elevator. This was permitted, possibly, as tending to show Flynn’s own, conception of his control over the elevator. It was an unnecessary question, because he had already fully stated that under his lease he remained responsible for the elevator. As he was not asked how much insurance he carried, we have concluded that the jury was in nowise biased against him by reason of the information, it received on this subject.

Flynn was also asked, over his objection, whether immediately after the accident he made repairs to the elevator and he said he did. This question was competent as tending to show his control over it at the time of the accident, and not as tending to show that it was defective. The defect had already been proved.

We find no misconduct on the part of counsel for plaintiff in his argument to the jury. Counsel for Flynn himself asked what plaintiff’s counsel meant by a certain statement, and if he was doubtful of any objectional meaning at the time, it is not strange that a reviewing court should find no prejudice in the remark.

Nor have we any means of determining that the verdict was excessive, as charged. Defendant introduced no evidence in his own behalf and the case went to the jury on uncontradicted evidence, warranting the amount of the verdict.

On the whole we are unable to certify that substantial justice was not done in the case, and so the judgment is affirmed.

Marvin and Niman, JJ., concur.


text:
    APPEAIr-BANKRUPTCY — PRINCIPAL AND SURETY.
    [Cuyahoga (8th) Circuit Court,
    June 3, 1912.]
    Marvin, Winch and Niman, J.T.
    Mark Klein v. Abe Solomon et al.
    Bankruptcy by Debtor Pending Appeal Does Not Stop Proceeding to Judgment Against Bankrupt to Fix Sureties’ Liability, But Execution Enjoined.
    When pending an appeal of a judgment against him, the judgment debtor becomes a bankrupt upon his own petition and is discharged from the payment of his debts, the appeal can still be prosecuted for the purpose of fixing the liability of the sureties on the appeal bond, but execution of judgment in the appellate court against the bankrupt should be perpetually enjoined.
    Error.

      White, Johnson & Cannon, for plaintiff in error.

      Patterson & Austin, for defendant in error.
   MARVIN, J.

Suit was brought by the Solomons against Klein before a justice of the peace, in which the Solomons recovered judgment. Therupon Klein appealed to the court of common pleas, giving a bond therefor with surety, as provided in Section 10383 of the General Code, the condition, being, as provided in section, ‘ ‘ That appellant will prosecute his appeal to effect without unnecessary delay, and that if on the appeal judgment be rendered against him, he will satisfy it and the costs.”

While the case was pending in the common pleas court on the appeal, Klein became a bankrupt on his own petition, and obtained his discharge in the bankruptcy court from the payment of his debts. He then filed a supplemental answer in the appealed case setting up such discharge.

Both the plaintiff and the defendant made motions to the several pleadings filed by the adverse party, on which the court passed, and the case finally went to trial before a jury. At the close of the evidence the court directed a verdict for the plaintiff.

There was no error in this, unless the discharge of the defendant in bankruptcy constituted a defense to the action, and precluded the plaintiff from any right of recovery.

In the schedule of debts filed in the bankruptcy proceedings the claim of Solomon was listed, due notice of the bankruptcy proceedings was given to Solomon, and his claim was one provable in bankruptcy and was not among such claims as are not relieved against by a discharge in bankruptcy.

The order of the court in the bankruptcy proceedings was that “Mark Klein be discharged from all debts and claims which are made provable by said acts” (the acts of Congress relating to bankruptcy), “against his estate which existed on. the 31st day of May, 1911.” The claims of the Solomon’s existed at that time.

It is admitted that upon the judgment rendered in this case, no property of Klein could be taken in execution to satify such judgment, even though no order on that subject had been made in the ease, but to remove any doubt about it, the court said in its judgment: “It is ordered that execution against said defendant, Mark Klein, be and the same is perpetually enjoined.”

If this order had not been made, there would seem to be no doubt that if execution were issued and levied, Klein would have been entitled to an injunction to prevent its being carried into effect, because, by his discharge in bankruptcy, his property, except such as had been taken by the trustee in bankruptcy, was relieved from being taken to pay his debts.

Since, then, nothing could be taken from Klein to satisfy this judgment, it might be questioned whether he was prejudiced by it, and so whether the court should reverse it, even if it was found to be erroneous. However, it is not necessary in the case, as we view it.

The object of the Solomons in securing the judgment was, of course, to enable them to proceed against the surety on the appeal bond, for the bond, by its terms, only requires the surety to pay such judgment as shall be recovered against Klein. That the question presented in this ease would be attended with grave difficulties, were it not settled by the courts of this state, can not be denied, but we regard it as so settled.

In the case of Sigler v. Shelby, 15 Ohio 471, it is said: “After the appellant has become a certified bankrupt, no decree or judgment can be rendered against him.” If this were the last utterance of the court on the subject, it would seem to settle the present case in favor of the contention of counsel for Klein, but it is not the last holding, of the court.

In the case of Farrell v. Finch, 40 Ohio St. 337, it is said:

“Ruan in an action before a justice of the peace recovered1 a judgment against Clarkson, and Farrell became surety for the appeal of the action to the court of common pleas.
“While the case was pending in the comm,on pleas court, Clarkson obtained a discharge in bankruptcy; Held: That while the discharge of Clarkson suspended all remedy against him for the collection of his debts, it did not release Farrell from liability on the undertaking for appeal.”

Little as is said in the report of this case, for the foregoing quotation gives the entire report, so long as it remains undistui’bed it settles the question that somehow this surety, in a case like the present, can be held on. the bond, and this, taken in connection with the last head-note of Sigler v. Sheby, supra, would seem to settle the question that judgment could be entered against the bankrupt principal. That head-note reads:

“To charge the bail, a judgment or decree must be rendered against the appellant personally, and an, execution against him have been returned nulla bona.”

In the case of the Sleepy Eye Milling Co. v. Welsh, 33 O. C. C. 146 (14 N. S. 509), it is held, in an opixxion announced by Judge Henry, that for the purposes of that case a judgment might be taken against a discharged bankrupt debtor, for the purpose of fixing the liability of the sureties upon his bond , given for release of attached property, and upon bond given in appeal

It is urged here that the matter really under consideration in that case was whether such judgment could be taken- for the purpose of fixing liability upon the sureties on an attachment bond.

We do not recognize a distixxction betweexx the two kinds of bonds, viz., appeal bonds and attachment bonds, which could affect the question here under consideration. If no judgment can be taken in any case against the bankrupt, then no surety on either bind of bond could be made to respond, where a discharge in bankruptcy had intervened. Not only .so, but the conditions of the two bonds are too nearly akin to warrant any distinction in regard to the -liability of the surety to respond.

The condition of the appeal-bond is that “If on the appeal judgment be rendered against him” (the appellant) “he will satisfy, it and the costs.” Section 10383 G. C. The condition of the bond in attachment is “That the property or its appraised value in money will be forthcoming to answer the judgment of the court in the action.” Section 10258, G. C.

The judgment of this court in Welsh v. Sleepy Eye Mill Co., 84 Ohio St. 495 [95 N. E. 1158], was affirmed without report on June 20, 1911.

"We reach the conclusion in this ease, therefore, that the judgment should be and the same is affirmed.

Niman, J., concurs.

Winch, J., not sitting.


text:
    RAILROADS.
    [Cuyahoga (8th) Circuit Court,
    May 27, 1912.]
    Marvin, Winch and Niman, JJ.
    Emily Davider v. Wheeling & L. E. Ry.
    1. Competency of Evidence as to Obstruction of View in Crossing Accident Case.
    In a railroad crossing accident case, a witness who has made an inspection of certain premises for the purpose of discovering whether certain buildings obstructed the view from a given point along the line of a railroad track, may testify that they do or do not obstruct the view, but where an objection to such evidence is sustained and the court thereafter permits the exact situation, with location and dimensions of buildings with reference to the track to be given to the jury, from which it may readily conclude whether or not the view was obstructed as claimed, no prejudice results from, the exclusion of the witness’ answer to the first question. So also with regard to the plaintiff’s own statements that her view was obstructed by certain objects, at the time of the accident when she was about to cross the track.
    2. Ordinance Limiting Speed of Trains.
    It is competent on cross-examination of plaintiff in such case to ask ■ her if she knew of a village ordinance limiting the speed of trains at the place where she was injured.

      A. W. Lamson, for plaintiff in error.

      Squire, Sanders & Dempsey, for defendant in error.
   MARVIN, J.

The parties here are as they were in the court below. The plaintiff brought suit against the Pennsylvania Company, and later by amendment of the petition, the present defendant in error was made a party defendant. The purpose of the action was to recover for injuries received by the plaintiff on May 31, 1907, when driving in a one-horse buggy across the track of the Pennsylvania Company on Grace street, in the village of Bedford, in this county.

At the close of the evidence introduced by the plaintiff, the court directed a verdict for the defendant, the' Wheeling & L. E. Ry. Verdict was accordingly rendered and judgment entered on such verdict, dismissing the petition as against said last named defendant. By proper proceedings, the action of the court in that regard is here for review.

The tracks of the two railroad companies run nearly parallel to each other, and the direction is nearly south and north. Grace street, on which the plaintiff was driving, crosses the tracks of the two companies nearly, at right angles. The locomotive on a train of the Pennsylvania Company, proceeding west, collided with the buggy in which the plaintiff was driving, resulting in injuries to her.

The distance between the track of the Wheeling & L. E. Ry. and the track of the Pennsylvania Company, on which the plaintiff was injured, is something like 15 feet. The track of the Wheeling & L. E. Ry. is east of the track of the Pennsylvania Company on which the accident occurred. The plaintiff was driving toward the west and had to cross the track of the Wheeling & L. E. Ry. before reaching the Pennsylvania Com-party's track where she was injured. As she approached the Wheeling & L. E. By. track, there was a freight train standing upon such track, and she was detained for a considerable time by reason of this train. She was finally able to drive across this track by the cutting of the train, leaving an opening sufficient between the cars to allow her to drive across the track, and she says that she was signalled by an employe of the Wheeling & L. E. Ry. to drive across.

On a side-track of the Pennsylvania Company, which was east of the track on which she was injured, there were cars standing, so that, she says, she was unable to see the train approaching on the Pennsylvania track.

The acts of negligence charged against the Wheeling & L. E. Ry. are that it failed to establish methods of warning other than by bell and whistle, at a crossing alleged to be more dangerous than the usual crossing, by reason of obstruction to view by a freight train on the Wheeling & L. E. Ry., passing same ; freight cars on the Pennsylvania storage track, and buildings, fences and bushes erected and permitted on the rights of way of both companies. Further, that there was unnecessary blocking of the crossing by the train on the Wheeling & L. E. Ry.

One of the errors alleged in the petition is that the verdict was against the weight of the evidence; in any event, that there was evidence tending to show negligence on the part of the Wheeling & L. E. Ry., and that there being such evidence, the court was bound to have submitted the case as between the plaintiff and the last named defendant to the jury.

For reason explained by the court on the hearing of this case, this question can not be considered by us, and it is not necessary to discuss it further here. The evidence is not ail before us, and under rulings of this court, affirmed by the Supreme Court, we have no authority to examine into the question of the facts in this proceeding.

It is urged, however, that there is error manifest in the record in the ruling which the court made upon the admission of evidence.

Attention is first called to an alleged error of this sort appearing at page 7 of the record. Frank William Karber was a witness who had been called by the plaintiff, and testified as to the location of the tracks and his observations and experiments made at the place where the accident occurred. From the evidence it appears that there was a tool house situated on the right-of-way of the Wheeling & L. E. Ry., and it was claimed that this tool house was so situated as to render it impossible for one driving on Grace street, as this plaintiff was, to see along the track of the Pennsylvania Company for a sufficient distance to avoid collision with trains coming on that road from that direction.

After the witness had told that he had made some experiments to determine the effect that the location of this tool house had upon the view of one from Grace street along the Pennsylvania track, he was asked this question:

“What did you do?”'

This was objected to by the defendant; the objection, however, was overruled by the court, and the witness answered:

“I stood on the south track of the Wheeling & L. E. Ry;, on the south rail of the main track, and observed that the tool house obstructed the view of the westbound track, beginning at a point about 1000 feet back and extending for quite a distance.
“Q. Back from where? A. Standing on the south rail of the main track.”

Then his attention is called to the fact that at that particular point although the general direction of the road is east and west, as it passes through this village, it runs practically north and south, and the track which is oil the left hand side as trains are coming toward Cleveland, is spoken of among the railroad people as the southerly track, although at this particular point it is the westerly track.

The witness then says:

“Standing on the westerly rail I observed that the tool house obstructed the view of the west bound track, beginning at a point approximately 1000 feet back from the center line of Grace street.”

The defendant moved that this answer be takén from the jury and this motion was sustained.

It is said that there is error in this, because the point which the plaintiff was seeking to make was that the Wheeling'& L. E. Ry. had erected a building on its right-of-way at such a point that it obstructed the view of the Pennsylvania, and that therefore this was negligence on the part of the Wheeling & L. E. Ry.

Other questions were asked of a similar nature immediately following the questions to which attention has been called, and objection to some of them being answered was sustained, and answers to others were taken from the jury.

It is urged on the part of the defendant in error that the rulings were proper because, it is said, to say that a building obstructed one’s view is to state a conclusion.

We are not impressed with the soundness of this reasoning. It seems to us exceedingly technical to say that one may not testify that a building obstructed his view. However, we are unable to see that the plaintiff suffered from this ruling, by reason of what immediately followed.

The witness was asked to describe the tool house, size and height. He had already, given its location, and he answered to this question, as follows:

‘ ‘ The tool house, the side parallel with the west bound track of the Pennsylvania line was 14 feet 9 inches wide; the side at right angles Was 16 feet and 6 inches wide; and the height I didn’t ascertain any more than from observation, but my memory is that it was about 12 feet high.”

Then he was asked to give the length of the switch of the Wheeling & L. E. Ry., which he gave.

Following this he was asked this question:

“Did you make any observation to see what, if any, obstruction was created by the tool house which you described and located on this map, to a person standing at or near the Wheeling & Lake Erie tracks at Grace street?”

An objection to this was sustained, and it was stated by counsel for the plaintiff as follows:

“We expect to show that he took a position on the center line of Grace street in the easterly track of the Wheeling & Lake Erie Railroad Company, and looked south for the purpose of seeing what, if any, obstruction this tool house was to a view of the west bound track of the Pennsylvania Company, and found that the tool house cut off the view of a person, situated as he was, on the west bound track of the Pennsylvania Company, from a point about 900 feet south of Grace street in said track southerly as far as the track was in view, which was to the point where the track, by reason of the curve, passed out of the view of a person at Grace street.”

On cross-examination the witness was asked again as to the location of this tool house, and he gave it as in the direct examination.

We think that no prejudice came to the plaintiff by reason of sustaining objections to the question as to what effect the matter of the obstruction of the view of the witness this tool house had, because when the dimensions of the tool house were given, the point from which the witness looked and the situation of the track, the jury had full information that the tool house obstructed the view, so though we think that the witness should have been, permitted to answer that the tool house obstructed the view, the ruling of the court in regard to it was not to the prejudice of the plaintiff; hence there can be no reversal on account of this.

At page 35 of the record it was sought to show by the plaintiff, who was being examined as a witness, that her view of the Pennsylvania track on which the train was approaching which collided with her buggy, was obstructed by freight ears standing on a track of the Wheeling & L. E. By., the claim being that there was negligence on the part of this company in allowing their cars to so stand as to obstruct the view of the Pennsylvania tracks.

This question was asked the plaintiff by her own counsel:

“What effect did the train or the other cars there have on your seeing the Pennsylvania line?”

The court sustained an objection to this question. The offer to show was that the cars of the Wheeling & Lake Erie standing on this track obstructed the view of the plaintiff.

We think that the court should have permitted this question to be answered, for the same reason that we think the court should have permitted answers to the questions in reference to the effect of the tool house upon the ability to see along the line of the Pennsylvania track.

Immediately following this, this question was asked:

“When you were looking southerly along the line of the railroad tracks in front of you, were you able to see the line of the Pennsylvania Railroad?”

The court sustained an objection to that question, and proper exception was taken and an offer made to prove that she was not able to see along the line of the railroad.

However, immediately after, this the following questions were asked of the plaintiff, and answered as indicated:

“Q. I will ask you, did you, while sitting there in your carriage, did you look towards the Pennsylvania Railroad tracks southerly from Grace street? A. I couldn’t see the Pennsylvania track. The Wheeling & Lake Brie obstructed — the cars of the Wheeling & Lake Erie obstructed my view.
“Q. My question was, did you look toward the Pennsylvania tracks in that direction while you were standing there ? ’ ’

Whereupon the court said: “The answer may stand.”

So that, the court left as an answer to go to the jury testimony. of the witness that the ears spoken of obstructed her view. We think the court did right in this.

Then followed this question:

“Did you look in that direction?”

This question -was objected to by the defendant, the objection was overruled, and she gave this answer:

“I looked in a northly and southerly direction and could not see the Pennsylvania tracks.”

As all that was sought to be shown by the witness in refex*ence to the interference with her view of the Pexxnsylvania track by these ears which were standing on the Wheeling & L. B. Ry. track got to the jury, we see no reversible error in the nxling of the court, though we are not able to see why the court ruled out the same thing earlier in the testimony of the same witness.

Later on a similar situation arose in reference to the claim on the part of the plaintiff that her view of the approaching train on the Pennsylvania road was obstructed by cars on the track of that road, but as anwers to these questioxxs could not have affected the right of the plaintiff one way or another to recover against the Wheeling & L. B. Ry., we regard it as of no importance in this connection, although, upon reading the record, we find the same situation in reference to this, that practically all'that the witness undertook to say in answer to any questions ivas finally admitted by the'court.

Again, at page 62 of the record, the plaintiff, being under cross-examination by counsel for the defendant railroad company, was asked as to her having seen the trains passing at this point frequently. She said she had, and she was asked: “About how fast an hour have you seen trains passing over that crossing on the Pennsylvania track?”

She answered: “You mean freight or passenger?”

The counsel replied: “Freight and passenger trains, both?”

Objection to this was. made by the plaintiff, and it was overruled; and she- answered: Freight trains about twenty or thirty miles an hour, and that she had seen that frequently.

We think this'was competent as tending to show that she might have anticipated that there would be a train along at that rate of speed crossing Grace street at the point where such street crossed the track.

At page 162 of the record it is shown that the plaintiff was recalled to the stand for further cross-examination: On her part evidence was introduced of the existence of an ordinance in the village of Bedford restricting the speed at which trains might run through the village ten miles an hour, and when she Avas recalled, as already stated, she Avas asked by counsel for the railroad company if she knew anything about that ordinance, and she answered that she did not.

Objection was made by her counsel to this question and that objection was overruled.

This ruling was proper, upon the principle that she could not rely upon the provisions of an ordinance in relation to the speed of trains of AAdiich she had no knowledge.

No other questions are presented to us which affect the claim of the plaintiff against the Wheeling & L. E. Ey. As to these, we find no error to her prejudice in the rulings of the court, and the result is that the judgment is affirmed.

Winch and Niman, JJ., coneur.