text:
    DUTY OF ONE RIDING IN A VEHICLE DRIVEN BY ANOTHER. OVER A RAILWAY CROSSING.
    Circuit Court of Mahoning County.
    Pennsylvania Company v. Elizabeth Stahl.
    Decided, March Term, 1912.

      Negligence — At a Railway Grossing — Girl Riding with Her Parents Injured Toy a Train — Degree of Care Required hy Others Than the Driver — Failure to Loolc and Listen Defeats Recovery.

    1. The occupant of a buggy which another is driving m-ust use ordinary care for his own safety when crossing a railroad track on a public highway, and if he fails in this, and is thereby injured, he can not recover although the railroad company may have been guilty of negligence.
    2. Ordinary care requires that the occupant of a buggy, which another is driving, when about to cross the tracks of a railroad, should look and listen to discover if a train is in close proximity and avoid injury; and if when in full possession of his faculties he fails to do so, and is injured thereby, it is such negligence as will defeat a recovery, unless some further fact appears which excuses the occupant from this duty.

      Arrel, Wilson A Harrington, for plaintiff in error.

      Anderson, Cooh & Mathews, contra.
    Pollock, J.; Norris, J., and Metcalee, J., concur.
   Elizabeth Stahl, by her next friend, brought suit in the court below against the Pennsylvania Company to recover damages for personal injuries which she received in consequence of an accident while crossing the railroad tracks of the company. She says that her injuries were due to the negligence of the defendant company.

On June 11th, 1910, the defendant was operating a railroad through the county of Trumbull, which crossed a public highway at what is known as Dunlap’s Crossing. The plaintiff on this morning, received the injuries of which she complains by the buggy in which she was riding coming in collision at that crossing with a fast passenger train. The railroad tracks run substantially north and south, and cross the public highway at grade and at right angles. South of this crossing the tracks of the railroad run straight for about three-quarters of a mile. Beginning near the crossing, and extending south for a distance of three or four hundred feet, is an embankment on the west side of the railroad tracks some four or five feet in height. The view of the tracks from the public road, as this crossing is approached from the west, is not otherwise obstructed.

The record' discloses that the parties caused measurements to be taken, and observations to be made, to determine at several points on the highway the distance south on the- tracks a train could be seen, by a person riding in a buggy.

It is not material which of the measurements and observations are accepted as correctly giving the distance from the crossing that the train might have been seen by the occupants of the buggy, as it is beyond dispute that a person riding in a buggy could not look as they approached the railroad tracks from the west, and before passing upon them, without discovering a train approaching from the south if it were so close to the crossing that it would be dangerous to attempt to cross in advance of the train.

There is no testimony tending to prove that this train was running at over fifty miles an hour.

On the morning of the accident plaintiff below, with her father and mother, were going from home east on this public road to church. They were riding in a one-horse buggy, with the top up. The father and mother were sitting on the seat, and the plaintiff was sitting on a stool in front and facing her parents; the father was driving the horse. The home of plaintiff was a short distance west' of this crossing. She knew of the railroad crossing and all the surroundings, and of the operation of trains over, these tracks. She knew that a passenger train was due about the time they were approaching the track. At the time of the accident the plaintiff .below was between sixteen and seventeen years of age. The father’s hearing was slightly impaired, which fact was known to the plaintiff below. The father and mother were killed by the accident, and the plaintiff below is the only witness as to what transpired in the buggy as they approached and passed on to the tracks.

The plaintiff below says that she first looked to her right; that she then looked to her left, and just at that time she was struck by the train; that she had not looked before that time; that she did not notice anything the other occupants of the buggy were doing, except that her father was driving the horse. There is a conflict in the testimony as to whether or not the signal required by statute was given by defendant as the train approached the crossing.

The acts of negligence averred by plaintiff below in her petition are that the defendant failed and neglected to give any notice or warning of the rapid approach of the train to the crossing, and in causing and permitting said train to be run at a high and dangerous rate of speed; that the negligence of -defendant, as alleged, was the cause of her injuries.

The defendant, by-answer, denied these acts of negligence, and alleged contributory negligence on the part of plaintiff below ; that she went upon the tracks of defendant below without taking any precaution, or using any care for her safety.

The plaintiff below, by reply, denies the contributory negligence alleged by the defendant below.

The ease went to trial to a jury. At the close of plaintiff’s evidence the defendant asked the court to direct a verdict in its favor, and renewed the motion at the close of all the evidence.

It is urged that the trial court in overruling these motions, asking that a verdict for defendant be directed, erred, for the reason that plaintiff was guilty of contributory negligence in not taking ordinary care for her own safety; and this proceeding in error is prosecuted to obtain a reversal of the judgment of the court of common pleas for this and other errors.

Where a traveler on the public highway is approaching a railroad crossing, it is his duty to use ordinary care for his own safety, and if he fails in this, and is injured thereby, he can not recover, although the railroad company may have been guilty of negligence in failing to sound a whistle, or ring a bell, or. give any other warning of the approach of the train to the crossing.

In this state the care required of a person traveling on a public highway, when, about to cross the tracks of a railroad, is no longer a question of fact, but has become a rule of law, the failure to observe which is negligence.

A traveler on the public highway in the full enjoyment of his senses of sight and hearing, before going upon a railroad crossing, should look and listen for the approach of a train, and if he fails to discover the approach of the train in time to avoid danger, when a prudent person by looking and listening would have discovered it and avoided the danger, he is guilty of such negligence as will defeat a recovery, unless some further facts appear which will relieve him. Railroad Company v. Crawford, Admr., 24 O. S., 631; Railroad Company v. Elliott, 28 O. S., 340; Pennsylvania Company v. Rathgeb, 32 O. S., 66; Railroad Company v. McClelland, 69 O. S., 142-157.

“Where a person, familiar with a dangerous railroad crossing, neglects to use his senses of sight and hearing, and is injured by a collision with a train, he is guilty of negligence and the fact that he had forgotten that he was in the vicinity of the crossing will not excuse such neglect.” Railroad Company v. Witacre, 35 O. S., 627.
“The looking required before going upon a crossing, should usually be just before going upon the track, or so near thereto as to enable the person to get across before a train within the range of his view of the track, going at the usual rate of speed of fast trains, would reach such crossing.” Railroad Co. v. Kistler, 66 O. S., 326.

The father and mother were both killed in the collision, and the plaintiff is the only witness who testified in regard to what she did as they approached and passed upon the crossing, just before the accident.

She says she was riding in the manner already stated; that she first looked to her fight, which would be north, that she then looked to her left, which would be in the direction of the train, and just at that time they were struck. She testifies that she did not look before that time; that she did not notice anything the other occupants of the buggy were doing, except that her father was driving the horse. This is all the testimony in regard to what any of the occupants of the buggy were doing just before the accident.

Plaintiff was possessed of all her faculties. She resided near the railroad crossing; she knew of the crossing and the operation of trains over the railroad. It was daylight, and plaintiff as she approached and just before she passed upon this track, by looking could have seen the approach of this train in time to have avoided injury. But she says that she did not look until just before she was struck by the train. She must he held to be guilty of such negligence as will defeat a recovery, “unless some further fact appears which relieves” her from looking and listening.

It is urged that because she was only riding in the buggy, while her father was driving, she was excused from using the care ordinarily required of persons approaching a railroad crossing, and had a right to rely upon her father exercising such care; and if he failed in this, and plaintiff was injured through the negligence of the driver, her father, and the railroad company, she could not recover against the defendant.

“The doctrine of imputed negligence does not prevail in this state. ’’ Railroad Company v. Kistler, supra; Railroad Company v. Eadie, 43 O. S., 91.

Under the facts in this case the negligence of the father could not be imputed to the daughter, but it is not sought to charge plaintiff with the father’s negligence, but with her own.

This brings us to the determination of the question of the care required of a person riding in a buggy, when approaching a railroad crossing, but who is not engaged in driving the horse.

Counsel have not called our attention to, and we have been unable to find, any ease where this question has been determined by the Supreme Court of this state.

In the case of Railroad Company v. Eatherton, 11 C. C. D., 253, the circuit court held that:

“It is the duty of the occupant as well as the driver of a wagon, in approaching a known railroad crossing to look and listen for approaching trains; and -where the evidence shows that the occupants, as well as the driver, failed to do so, the occupants are guilty of negligence which will defeat their- recovery.”

The Court of Appeals of Indiana has held that while “the negligence of a driver will not deprive the occupant of the vehicle of his right to recover from one whose neglect has caused the injury, but even if the negligence of the driver can not be imputed to the occupant, yet the occupant must still show that he was free from negligence contributing to his own injury. ’ ’ Railroad Co. v. Boyles, 16 Ind. App., 640 (45 N. E., 812).

The same court in Railroad Company v. Robbins, 38 Ind. App., 172, say:

‘ ‘ The fact that decedent was riding with her husband, who had entire control of the team, did not relieve her of the duty of exercising care for her own safety. * * * Liability was denied not on the ground that the negligencé of the driver was imputed to the injured person, but that the injured person herself failed to exercise the care required of a person approaching a crossing.
“Each person approaching a railroad crossing must use ordinary care for their own safety, and can not rely upon the driver being both eyes and ears for them.”
“It is the duty of the passenger, when he has the opportunity to do so, as well as of the driver, to learn of danger and avoid it if practicable.” Whitman v. Fisher, 98 Me., 575; Brickell v. Railroad Co., 120 N. Y., 290.

The Supreme Court of Kansas say:

“A'special finding in an action for injuries in a collision with a train at a crossing, that plaintiff had no control over the vehicle in which she was riding, did not acquit her of contributory negligence in failing to see the approaching train, when she could have seen it, had she looked, in time to have avoided the accident. ’ ’ Railroad Company v. Bursy, 66 Kan., 744.

The plaintiff below was bound to use the care for her own safety ordinarily required of travelers on the public highway, when approaching a known railroad crossing. The fact that she was only an occupant of the buggy, while her father was driving, will not relieve her from that duty.

She was seated in the buggy in such a position that she could have looked for the approach of the train, and had she looked, would have seen the train. It was equally her duty, as well as that of her father, to look and listen and learn if a train was approaching in dangerous proximity to the crossing, and, if it was, to call the driver’s attention to the danger. A failure to do so will constitute such contributory negligence as will prevent a recovery, although the railroad company did not give the warning required of it, and even though she did not have authority to control the acts of her father.

This conclusion is sustained by numerous decisions by the courts of other states, a few of which are cited: Auretius v. Lake Erie & W. R. Co., 19 Ind., 584 (49 N. E., 857); Dryden v. Penna. R. Co., 211 Pa., 620 (61 Atl., 249); Pennsylvania Company v. Henderson, 179 Fed. Rep., 580; City of Vincennes v. Thuis, 28 Ind. App., 523 (63 N. E., 315; Colorado & S. Ry. Co. v. Thomas, 33 Colo., 517 (81 Pac. Rep., 801); Bush v. Union Pac. R. Co., 62 Kans., 709 (64 Pac. Rep., 624); Atlantic & D. R. Co. v. Ironmonger, 95 Va., 625 (29 S. E., 319); Holden v. Missouri R. Co., 177 Mo., 456; Flynn v. Chicago City Ry. Co., 250 Ill., 460 (N. E., 499).

It would not be strictly correct to say that the authorities uniformly hold the above conclusion. Probably cases can be found which hold that the occupant of a vehicle, when approaching a railroad crossing, has a right to rely upon the driver using ordinary care to avoid danger. But we think an examination of the eases, which seem to hold this rule, will mostly show some fact which relieved the occupant from this duty; that they were riding in such a position that they either could not look, or, if they did look, it would interfere with the driver, or that they saw the driver looking and listening and relied upon him, or that they were a passenger for hire in a public conveyance.

We think, where there is no excuse given for not doing so, that the great weight of authorities hold that an occupant of a private conveyance, which another is driving, is required to use the same-care for their own. safety, when approaching a known railroad crossing, that they would be required to exercise if passing alone over the railroad.

Now, in this case there was nothing to interfere with the plaintiff below seeing. She was sitting in a position to see if she had looked: Had she looked she would have seen the train. She says she did not see her father looking. She knew that he was slightly deaf. She says that she did not look until just before the train struck the buggy; they were then upon the track and her looking was too late.

The court of common pleas erred in refusing to direct a verdict for defendant below. The judgment of the court below is reversed and judgment entered for the plaintiff in error.


source: Caselaw Access Project

author: By the Court

license: Public Domain

text:
    ENFORCEMENT OF DOWER RIGHT BY DIVORCED WIFE.
    Circuit Court of Licking County.
    Clarissia C. Hand v. Edward Kibler, Guardian.
    Decided, March Term, 1911.

      Dower — Divorced Wife Not Divested, of Her Bight of, When — May Assert Her Bight in an Action for Partition — Section 11991.
    A wife who procures a decree of divorce from her husband because of his aggression retains her right of dower in any real estate which he may own not granted to her as alimony; and where an action is brought for the partition of property in which he holds an undivided interest, his former wife may ask by answer and cross-petition for an assignment to her of her inchoate contingent right of dower in her said former husband’s share of said property.
   By the Court

(Voorhees, Shields and Powell, JJ.)

The petition in error filed in this case is to reverse the judgment of the court of common pleas, in sustaining a demurrer to the answer and cross-petition of this plaintiff in error, in a suit in said court in which partition was sought of certain lands described in the petition therein.

Edwin S. Hand, one of the defendants in said partition suit, was the owner of the undivided one-sixth part thereof. The plaintiff in error had formerly been the wife of the said defendant, Edwin S. Hand, but had procured a divorce from him before the commencement of said partition suit. Her answer and cross-petition sets out that the divorce was procured by her upon the aggression of. her husband, the said Edwin S. Hand. The defendant in error, Edward Kibler, is the duly appointed guardian of the said Edwin S. Hand. The plaintiff in error, by her answer and cross-petition, claimed to be entitled to the value of her inchoate, contingent right of dower in the share of the said lands owned by her former husband, Edwin C. Hand.

To her answer and cross-petition, the defendant in error filed a demurrer, which was sustained in both the probate and common pleas courts. To the action of said court in sustaining said demurrer, this petition in error is filed.'

Section 11991 of the General Code, provides that when a divorce is granted because of the husband’s aggressions “if the wife survives her husband, she also shall be entitled to her right of dower in his real estate not allowed to her as alimony, of which he was seized during the coverture, and in which she had not relinquished her right of dower.”

In other words, a wife who procures a divorce from her husband because of his aggression, retains her right of dower in any real estate that he may own not granted to her as alimony; and, so far as dower is concerned, stands in the same position as though no divorce had been granted, her dower right being reserved to her in the event that she survives her husband.

The Supreme Court of Ohio, in the 46th O. S., at page 407, have decided in the first paragraph of the syllabus, commencing on that page:

“The contingent right of a wife, during her husband’s life, to be endowed of his real estate at his death, is property having a substantial value that may be ascertained with reasonable certainty from established .tables of mortality, aided by evidence respecting the state of health and constitutional vigor of the husband and wife respectfully.”

If the right of the wife, who has procured a divorce, is the same as though no divorce had been granted, this holding of our Supreme Court applies to such right, and Mrs. Hand, in this case, would have a contingent right of dower in the share of the real estate described in the petition belonging to her husband, Edwin S. Hand, and the same would be a property right having a substantial value that could be ascertained with reasonable certainty.

It was said in argument that the only provision for the payment of the value of the contingent right of dower was provided by Section 11123 of the General Code, and applied in eases provided by the chapter on insolvent debtors. Said section provides :

“When real estate is to be sold as herein provided, the husband or wife of the assignor may be made a party, and file an answer in the court to have such real estate sold free of his or her contingent right of dower and to allow him or her in lieu thereof, out of the proceeds of the sale, such sum of money as the court deems the just and reasonable value of the dower interest therein.”

Section 11124 provides:

“That if the assignor and his wife have executed a mortgage upon the real estate so assigned, or if the assignor himself has executed a mortgage to secure the payment of the purchase money, the court shall order the sale of such real estate free from the contingent right of dower of such wife, and find and determine the just and reasonable value of her dower interests in the proceeds of sale remaining after the payment of such incumbrances as preclude her right to dower therein.”

In other words, the statute provides that the value of the wife’s dower shall only be computed in what remains after the payment of prior incumbrances; while the 46th O. S., quoted above, decides that the value of the wife’s dower interest shall be computed in the entire amount of the sale. We think that, under the constitutional provision which provides that all laws of a general nature shall have uniform operation throughout the state, every married woman, and every wife who has procured a divorce by reason of the husband’s aggression, is entitled to be paid the value of her inchoate, contingent right of dower in the entire proceeds of the sale of the lands in which she has such dower interest, upon á saie of the same by which such dower right might be defeated.

This is not inconsistent -with the holding in the court in the 60th O. S., at page 547. This case seems to be in conflict with the holding of the court in the case of Weaver v. Gregg, 6 O. S., page 547. It probably is not in conflict with the syllabus of that ease, in which it is said that “a sale, under the act ‘to provide for the partition of real estate, ’ of an estate held in common, divests the wife of a co-tenant in fee of the estate, of her inchoate right of dower therein, and passes the entire estate to the purchaser.” But it is in conflict with some parts.of the opinion of the court in that case.

It is said in the opinion of the court on page 550, that the wife ‘‘has a contingent possibility of interest in the husband’s share of real estate sought to be partitioned, which may be released, but that she has no property, or actual interest in it which is the subject of grant or assignment.

The case of Mandle v. McClave, above cited, in the 46th O. S;, certainly decides that proposition entirely differently from this opinion, as expressed above; but the court seems to recognize that .when the law steps in and divests,the husband of his seizin, and turns the realty into personalty, in such cases she is remitted, in lieu of her inchoate right of dower to the real estate, to her inchoate right to the distributive share of the personalty into which it has been transmitted; and the only difference between the later holdings and that holding is that her right is property having an ascertainable value, of which she herself is entitled to be the custodian, and not her husband.

For this reason, we think that the court erred in sustaining the demurrer to the answer and cross-petition of the defendant, Clarissa C. Hand.

The judgment of the court of common pleas will be reversed. The case will be remanded to the probate court, with instructions to overrule said demurrer to the answer and cross-petition of the said Clarissa C. Hand, and for an order of distribution in accordance with this opinion. Exceptions may be noted.


text:
    COMPUTATION OF TIME.
    Circuit Court of Hamilton County.
    John Killian v. Mollie Muzio.
    Decided, November 23, 1912.
    The rule found in Section 10216, General Code, providing how time shall be computed, applies to any act required by the law to be done.

      G. B. Wilby, for plaintiff in error.

      Kwrl M. Gadwell, contra.
    The court below dismissed the petition on the ground that Section 10216 does not apply to proceedings before justices of the peace. This section reads:
    ‘ ‘ Section 10216. Unless otherwise specially provided, the time within which an act required' by law to be done shall be computed by excluding the first day and including the last; except that the last day shall be excluded if it be Sunday.”
    Jones, J.; Smith, P. J., and Sming, J., concur.
   We are of the opinion that Section 10216, General Code, is not limited in its application to any one court but it is intended to apply, as its language implies, to any act required by law to be done.

Judgment reversed and cause remanded.


text:
    AS TO LIABILITY OF SURETY ON APPEAL BOND.
    Circuit Court of Franklin County.
    Shedd & Pembroke et al v. D. P. Cooke.
    Decided, January 24, 1911.

      Appeal — Came Dismissed in Appellate Court — Surety Not Liable, When —Sections 10883, 10384 and 10393.
    A surety on an appeal bond, providing that the appellant will prosecute the appeal without unnecessary delay, is not liable to the appellee where the cause of appeal is dismissed for want of prosecution under a rule of court, where there had been no default in the condition that the appeal shall be perfected without unnecessary delay.

      Ed. Howard, for plaintiffs in error.

      Smith W. Bennett, contra.
    Rockel, J.; Dustin, J., and Allread, J., concur.
    Error to common pleas court.
   - Plaintiff in error recovered a judgment before a justice “ of the peace against Sarah A. and Laura Sears. From said jurgment the defendants appealed to the court of common pleas, filing an appeal bond upon which the defendant in error was a surety. Said proceedings were duly perfected in the court of common pleas. The plaintiffs filed their petition and the defendants their answer. The same was pending in the court of common pleas and said cause was properly at issue in the court of common pleas. According to a rule of the court of common pleas, that if the “case is not noticed for trial for two consecutive terms of court after it is at issue or in default, may be dismissed for want of prosecution or dropped from the docket.” This ease not having been noticed as provided for in this rule was dismissed by the court of common pleas, the entry thereon being as follows, after giving the title of the case:

“Upon the .call of the docket and no good cause being shown why this case should be retained, it is ordered by the court that it be dismissed without record or prejudice at the cost of the plaintiff. ’ ’

Thereafter the plaintiffs in error brought an action against the defendant in error before a justice of the peace on the appeal bond to recover against the defendant in error, who was surety on said bond, the amount conditioned for in said appeal bond, setting forth an alleged breach of said bond in this, that the plaintiffs did not prosecute their appeal to effect without unnecessary delay in the action that was pending in the common pleas court. In considering this question, it will be proper to consider the conditioned clause of the original bond. This read as follows:

“Now, therefore, we of Franklin county, Ohio, hereby promise and undertake to the said appellee in the sum and to the amount of $160, conditioned as follows:
“(1) That the said appellants will prosecute their appeal to effect and without unnecessary delay.
“(2) That if judgment be adjudged against said appellants on the appeal, we will satisfy such judgment and costs. ’ ’

This bond is in conformity to General Code, 10883 (R. S., 6584). The defendant contends that because said defendants permitted said cause in the court of common pleas to be dismissed that, therefore, they did not prosecute their appeal to effect and without unnecessary delay.

This involves a consideration of what is meant and intended by the first condition of this bond. The entire matter being regulated by statute, necessarily other statutory provisions must be considered in determining the true meaning of this. In General Code, 10384 (R. S., 6585), we find that certain duties devolve upon the appellant in reference to his prosecution of the appeal in this, that he must file á transcript within á certain time. In General Code, 10393 (R. S., 6593), we find a provision as to when the surety is liable. This statute reads as follows:

“When an appeal is dismissed, or judgment is entered in the. court- of common pleas against the appellant, the surety in the bond shall be liable to- the appellee for the whole amount of the'debt; costs, and'damages, recovered against appellant, *’

Taking these provisions together, we are of the opinion that the first condition of the bond relates very largely to the perfection of the appeal. That is, that the appellant will, without unnecessary delay, have said appeal perfected, and that he will do all things within a reasonable and proper time that are necessary to properly, bring the action before the appellate court, and he will thereafter stand ready to do and perform whatever is proper and necessary in the due prosecution of the suit; that upon so doing this condition of the bond has been complied with. When the case comes up to the appellate court and is properly in that court, then it is subject to the laws relating to that court and to the rules which govern that court in the transaction of its business.

So, we are at a loss to understand how, in the case at bar, the defendant in error can be held to be liable on this bond. The defendants in the original action did all that was required of them, and, so far as the record shows, they were ready and willing to proceed further. If the case was not tried in the court above, it was not their fault. Unless the defendant has filed a cross-petition in which he asks affirmative relief, it could hardly be expected that he would be so interested in its prosecution ás that the court might presume that a duty devolved upon him to see that the prosecution did not fail. It is to the defendant’s interests that the prosecution shall fail in such instances, and it would be a violent presumption to assume the contrary.

We are, therefore, of the opinion that there was no error by the justice of the peace in dismissing said action, nor in the court of common pleas in affirming the judgment of the justice.

The judgment of the court below, therefore, will be affirmed.


text:
    ERROR. IN REFUSING TO HEAR MOTION FOR A NEW TRIAL.
    Circuit Court of Hamilton County.
    Ernest Armstrong v. State of Ohio.
    Decided, December 14, 1912.

      Criminal haw — Motion for a New Trial Can Not be Ignored by Trial judge — Accused Can Not Demand that lie be Present at the Hearing as a Constitutional Right.

    The hearing of a motion for a new trial is not a part of the trial. The presence at the hearing of such motion of one convicted of a crime is not necessary and it is error for the trial judge to refuse to hear and determine same on account of the convict’s absence.

      Bulison <& Bose, for plaintiff in error.

      Thos. L. Pogue, contra.
    The plaintiff in error was convicted under an indictment charging cutting to wound and was in the penitentiary.
    Jones, J.; Smith, P. J., and Swing, J., concur.
   We are of the opinion that the court erred in refusing to hear and determine the motion for a new trial on its merits, and, until such hearing by the trial court, this court is without jurisdiction to pass upon alleged errors occurring at the trial.

The plaintiff in error has a statutory right to have his motion determined in the court below. _ But we hold that he has no constitutional right to be present at the hearing as same is no part of the trial.

The court below is, therefore, directed to hear and pass upon the motion for a new trial upon the grounds therein stated.


text:
    BREACH OF CONTRACT TO DELIVER. COAL.
    Circuit Court of Lucas County.
    Empire Coal Mining Company v. The George M. Jones Company.
    Decided, September 28, 1907.

      Contracts — Agreement to Deliver Coal at the Bate of Five Cars per Day ■ — ■Suit by Seller for Payment — Counter-Claims by Purchaser Based on Failures to Deliver — Procedure where Plaintiff Rests Upon Insufficient Evidence — Proof of Loss Under a Breach of Contract— Plaintiff Need Not Allege Readiness and Ability to Perform, When —Meaning of the Phrase “Mining Rate.”

    1. "Where at the close of the evidence in support of a claim upon which judgment is asked a motion to withdraw the case from the jury is overruled, the right to prosecute error thereto is waived and lost, if the defendant does not stand upon his motion, but instead of so doing proceeds with the testimony for the defense.
    2. Upon renewal of such a motion at the close of all the evidence, any deficiency in the evidence for the plaintiff which has heen corrected by that offered for the defendant enures to the benefit of the plaintiff.
    3. It is not necessary that a dealer in coal who has been called to testify as to the price of coal during a specified period should first qualify as an expert.
    4. In proving loss from breach of contract to deliver coal, testimony to the effect that during the period in question prices were irregular and high, ranging between certain figures which were given, affords a fair and safe basis for computation by the jury as to the loss sustained by reason of the breach, where the jury are also apprised as to the sales made by the plaintiff during the period under review and the prices which he received.
    5. Where, in such a case, the jury were cautioned that they must do no guessing or speculating, a further instruction that they were to use their best ability and understanding in the light of all the evidence, is not erroneous.
    6. In an action for breach of contract to deliver goods on credit it is not necessary that the plaintiff allege or prove that he was ready, willing and able to pay for the goods on delivery.
    7. In the case at bar, two of the contracts being for coal bought on credit and one capable of being construed as a purchase for cash, and there being enough in the record to sustain the judgment which was rendered without regard to the contract for coal sold for cash, the judgment will be sustained, notwithstanding failure to allege and prove ability and willingness to perform the one of the three contracts requiring payment of cash on delivery.

      Marshall & Fraser and Whitlock, Milroy & Mallow, for plaint'iff in error.

      Smith Beckwith, contra.
    Parker, J.; Haynes, J., and Wildman, J., concur.
   The Empire Coal Mining Company brought an action in the court of common pleas against the George M. Jones Company, to recover on an account for coal sold and delivered by the plaintiff to defendant under three certain contracts, its whole claim, including interest,- at the time of the trial, amounting to $2,220.96. The defendant filed an answer in which was set forth three counter-claims, on account of the non-delivery of coal to it under such contracts. That it had received coal of the amount and value sued for, was not disputed; so that, upon submission of the ease to a jury, the jury was properly instructed to find for the plaintiff in the sum of $2,220.96. And then the question was submitted to them as to the amount, if any, that was due to the defendant from the plaintiff upon defendant’s counter claim The defendant’s'demand upon the counter-claim was $10,332 and interest. The amount allowed by the jury was $2,243.86, leaving a balance due in favor of defendant of $22.88.

The first of the three contracts is dated September 8th,-1902, and provides for the delivery of 1000 cars of coal in the month of December, 1902, beginning with the first day of the month, at the rate of five cars per day, at $1.15 per ton of 2,000 lbs., the deliveries to be made free on board cars at the mines, which were located in the southeastern part of this state. This contract contains the provision: “This price is based upon the present mining rate and is subject to change to the same extent as the mining rate may increase or decrease. ’ ’ And also: “ It is further understood that we shall not be called upon to furnish the coal in case of shut-down of our mines through strikes or other unavoidable cause. ’ ’ And also: ‘ ‘ Shipments at the full rate on this order are conditioned upon our receiving an adequate ear supply. Settlement for all coal shipped, in any month shall be made in cash by the twentieth day of the next ensuing month. ’ ’ These are, I believe, all the provisions to which I need call especial attention.

The next contract is dated September 15th, 1902, and provides for the delivery of coal in January, 1903. This also provides for the delivery of 100 cars, at the rate of five cars per day, commencing with the first day of the month. This contract contains the same provision as to the seller being excused in ease of shut-down of mines through strikes or unavoidable causes, and as to shipments being conditional upon sellers receiving an adequate ear supply; as to settlements for coal shipped during the month of January being made in cash by the 20th day of the next ensuing month, and as to the prices being based upon the mining rate at the period subject to change to the same extent as the mining rate might increase or decrease. The prices agreed upon for this coal was for % lump, $1.25 per ton, and for run of mine $1.15 per ton of two thousand pounds, f. o. b. at the mines.

The third contract is dated November 25, 1902. It consists of a written order from the George M. Jones Company to the Empire Coal Co., at'Pittsburg, Pa., for 50 cars of Pittsburg No. 8% lump at $1.65, f. o. b. ears at the mines to be consigned to the Geo. M. Jones Co., at Toledo, Ohio, and to be forwarded at the rate of five ears per day, and adds: “this to confirm order by telephone of this date. ’ ’ This order was accepted by a letter reading:

“Pittsburgh, Pa., Nov. 25th, 1903. The G. M. Jones Co., Toledo, Ohio. Gentlemen: We are in receipt of your order No. 2500 of Nov. 24th, in confirmation of telephone conversation of the same date which calls for 50 ears % lump to be shipped at the rate of 5 cars daily to your address, Toledo, Ohio. The same has been entered for our best attention, subject to car supply. Please accept our thanks. Yours truly, Louis F. Newman, Mgr. B.”

This contains no stipulation as to credit and nothing on the subject of prices being modified by the mining rate at the mine; and nothing specific as to when the cars are to be delivered; so is was construed upon the trial — and we think correctly — to be an agreement to begin the delivery of the coal within a reasonable time, and we believe it was conceded that such reasonable time had expired before a claim for damages on account of the nondelivery of cars under this contract was asserted.

Upon the trial the defendant undertook to show in support of these counter-claims — one under each contract — that the plaintiff was in a position with respect to cars and other circumstances so that it might have delivered a greater number of ears of coal to the defendant than it actually did deliver. It was asserted and shown that under this first contract the plaintiff had delivered but 18 cars of coal instead of 100; that under the second contract it had delivered 5 cars instead of 100; that under the third contract it had delivered 22 ears instead of 50. It was contended by the plaintiff that it had delivered all of the cars of coal that it could deliver, in view of the shortage of cars prevailing at this time; that the defendant had received its full share of all the ears available to the plaintiff for such use. It was conceded upon the trial that the rule as to the obligation resting upon the plaintiff under contracts of this character, under circumstances like those shown, is correctly stated in the case of Jessup & Moore Paper Co. v. Piper et al, 133 Federal Reporter, 108, a decision by McPherson, District Judge of the Eastern District of Pennsylvania. I read from the syllabus only:

“Defendants, who owned a colliery reached by a single line of railroad, contracted to deliver at the works of plaintiff, at an agreed price, a stipulated quantity of coal each month during a series of monthsthe contract providing, however, ■ that they should not be liable for a. failure to perform if prevented by hindrances beyond their control. During certain months they delivered less than the required quantity, as claimed, through their inability to obtain sufficient ears. Held: That they were excused from full performance if they were unable to obtain cars to enable them to fulfill all their contracts, and they in good faith made deliveries to all customers ratably, but that they were bound to put forth all reasonable and proper exertion, and to pay any reasonable additional expense to obtain cars, and were liable for non-performance if they failed to do so, or if they made the shortage of cars an excuse to demand an increased price, and gave a preference to such customers as paid it, and that if, after knowledge of the shortage of cars, they made additional contracts which lessened their ability to ship to plaintiff, they would be liable to that extent.”

We say, it was agreed by counsel that that was the law of the case, and it was so laid down to the jury upon the trial.

Various errors are alleged by the plaintiff in error. It is said that at the close of defendant’s evidence introduced in support of these counter-claims, a case had not been made out in favor of the defendánt, and that a motion of the plaintiff to withdraw the case from the jury should have been sustained. This motion was overruled and the plaintiff went into its testimony upon the counter-claims. We are now asked, however, to examine this question, and if we shall find that that motion should have been sustained at that time, we are asked to reverse this judgment without regard to what may have subsequently developed or transpired upon the further trial of the ease. We do not think that we are called upon’ or authorized to take such action. Had the plaintiff in error, at the close of defendant’s testimony in support of the counter-claims, made this motion, and, upon its being overruled, rested his case upon it, allowed the judgment to go against him and then prosecuted error to this court, the question would have been fairly presented, and this court would have been called upon to determine whether the verdict was sustained by the evidence; but, where the course is taken which was pursued in this case, of going into the defense, we understand that the result is the same as where one demurs to a petition and, upon the demurrer being overruled, answers over. ■ If the answer corrects the defect in the petition, the party can no longer stand upon his demurrer to the petition. So, in a ease like this, if the further evidence introduced corrects that deficiency in the evidence introduced before the making of the motion, the party may no longer stand upon his motion. This motion was renewed at the close of all the evidence, on behalf of both parties; and that, of course, presents a question to this court for consideration upon that motion; and I may as well say at once, with respect to that, we do not find that the defendant failed in any material respects to introduce evidence tending to support the counter-claims, and, therefore, the court below was right in overruling that motion. I shall give more attention to certain specific claims respecting the deficiency of the evidence, further along in this opinion.

It is claimed on behalf of plaintiff in error that prejudicial errors intervened in the introduction of evidence. Mr. A. Gr. Blair, Jr., was called as a witness of defendant to establish the market price or the prevailing prices being paid for coal of the character that the defendant had purchased during the months that the coal should have been delivered. 'Mr, Blair testified that he was in the coal business in this pity; had been engaged as a dealer in coal for about twelve or thirteen years; that for a few months prior to his appearing as- a witness he had been engaged in operating a mine; that he was engaged in the business of buying and selling coal in the years 1902 and 1903; that he was familiar with coal of the character covered by these contracts. Tie tells where it came from, adjacent to the Ohio river, in the mines of the Harrison and Jefferson. Then he is asked: •

“Are you able to state what was the market price of different grades of that coal at the mines in the month of November and December, 1902, and January, 1903 ? A. There are no different grades, there are different sizes.
“Q. Different sizes? A. Yes, sir.'
“Q. Now will you please state to the jury what the market price at the mines of three-fourth lump coal was during the month of December beginning with the first of December and up to the 24th of December ? A. The market price ?'
“Q. Yes, sir? (Question objected to.)”

No specific ground of objection is stated. It is suggested to us that the objection was on account of the witness having failed to show qualification to answer this question. The court then asked this question: “Q. At the mines — -in Belmont county?” To this there was no response. There was no ruling upon this objection. . Counsel for defendant then asked the further question:

“ Q. At the mines from which this coal was taken in Belmont county ? (Question objected to; objection overruled; exception.)
A. The market price, or the selling price — do you mean — the market price was three to five dollars a ton. (Motion to strike out the answer. Motion denied. Exceptions.) ”

There is a further examination of the' witness, tending to show that he was advised -of the prices prevailing at that time and place; so that, really, the question raised by this objection at this time is — whether the witness must first answer directly that he is able to state what the price was, before he may be called upon to answer the question: ‘ ‘ State what the price was ? ’ ’ The question and the answer presuppose that the witness, a dealer in coal, knew what the price was. If he did not know, he would not be called upon to answer, could not make the answer that he made. We do not understand that, under circumstances like these, it is necessary to go further to qualify the witness. In a sense, he is an expert — that is to say he is familiar and acquainted with the business, and yet he is testifying to a fact within his knowledge that a person not in the business may have become acquainted with and may have been entirely competent to answer. It is not necessarily a question for an expert, and we see no error in allowing this answer, no error in refusing to require that the witness should be further qualified by his answers — assuming that that was the ground of the objection.

Mr. William A. Gosline was called as a witness for the defendant, and it is said with respect to his testimony that he showed himself disqualified; that he did not pretend to know anything about the market price, but that he only guessed, and that his testimony should have been disregarded. It is urged that the testimony of these witnesses supplied the only basis that was supplied at the time the defendant rested its case for computing the difference between .the contract prices and the market prices or the value of the coal; but, as I have indicated, we do not feel called upon to examine that question, but only to consider the question of whether prejudicial error intervened in the admission of certain answers objected to.

On the other question, when we look into the record and read the testimony of the witnesses produced after the plaintiff went into its defense, we find ample grounds and basis for computing the difference between the market price or the value at the mines and the contract price of the coal. Mr. Gosline, who was also a man in the coal business in 1902-3, had been in the business for a great many years, and when called upon to answer as to the prices being paid generally for coal during the period covered by these contracts, answered that he could “give a rough guess.” The question asked was: “Q. Can you state the market price the price being paid generally for that coal during that period?” And his answer is: “A. Yes, sir, I can give a rough guess. Of course during that period, there was much variation in price and it depended upon the amount you bought. ’ ’

It appears from the record that the conditions prevailing at that time in the coal business were very peculiar, resulting in such irregularity and such rapid fluctuations in prices of coal that it was hard to name a price as the “market price,” in the ordinary acception of that term. Further along in his testimony, this witness describes those conditions. I need not go into that in detail: they resulted from shortage of cars, lockouts, shutdowns, strikes, etc., so that there was no regularity in the price— there could not be said to be any prevailing prices, though it is clearly shown in this record that the prices were very much higher than those at which plaintiff had agreed to deliver this coal to defendant; that prices ranged between those named by Mr. Blair and by Mr. Gosline who answers further on that the prices ranged between $2.25 and $2.75 at the mine per ton and even ran as high as $3 per ton in January, and shows that he is not guessing, but well informed on the subject. Although these prices were fluctuating rapidly, the information brought out upon cross-examination of the representative of the plaintiff company, is very full and satisfactory and afforded a fair and safe basis for computation on the part of the jury, for, through the books of the company and the testimony of this witness, Newman, we are apprised of all the sales that were made during these periods by the plaintiff company and the prices received. We find no error in the admission of this evidence.

It is also urged that the court erred in its charge to the jury, in that it gave to the jury free rein to continue the “guessing” which had been done by the witnesses and to act upon its own judgment rather than upon the testimony; and it is said that the court charged the jury, in substance, that if the market price could not be ascertained from the testimony, they were to take instead thereof the value at the place of delivery, and that such value per ton was to be multiplied by the number of cars undelivered that should have been delivered, and then by proper deductions the loss of the defendant would be ascertained. We have read this charge through very carefully, and, taken as a whole, we think it is correct and fair. Of course, every paragraph is not and can not be expected to be a complete exposition of the law upon the subject — the whole charge must be taken together. It appears that the court did, in one place, make a mistake by saying that the value per ton was to be multiplied by the number of ears undelivered, which should have been delivered ; but that was an error that was corrected in the further statement of the matter to the jury, and, even if it had gone uncorrected, it would not have been prejudicial to the plaintiff in error, but rather to the defendant in error, because it would have given to the defendant in error but one-thirtieth of the amount he would have been entitled to, since there were an average of thirty tons of coal in each car.

The statement upon the subject of the jurors using their best ability and understanding, is a part of a paragraph in which the court is undertaking to direct the jury as to how they shall arrive at a correct result in the computation, and in the paragraph occurs this language:

“Upon this phase of the case there should be no guessing, of course, nor speculation. You should determine, according to the best light you have, and your best ability and understanding, the difference in price between the contract and coal at the mine for the various days that the contract was broken. Multiply the price by the number of cars of coal that the evidence shows should have been shipped to the defendant on this occasion by the plaintiff, and which was not shipped.”

In another part of the charge, however, the court says to the jury distinctly that they are to be guided by the evidence. I read from a preceding paragraph:

“It is the duty of the jury to determine these disputed facts from the evidence in the ease. You can not guess at it. It will be your duty to determine from the evidence what the percentage was that the defendant lost by reason of the breach of any one of its contracts, or of all of them combined,” etc.

So that the jury could not have misunderstood the direction . of the cpurt to them to use their best ability and understanding— they were to do that in the application and consideration of. the evidence. We find no error in the charge prejudicial to the plaintiff in error.

In the contract of September 15, 1902, it is said: ‘ ‘ Shipments to be made in gondola cars only.” That provision is not contained in either of the other contracts. It is urged on behalf of plaintiff in error that.in arriving at the pro rata share of the defendant of the cars available to the plaintiff for the shipment of coal, the gondola cars only should be considered under this contract; and' it is apparent that if that were so, there would be much less due on this account than would be due thereon if all the cars available to the plaintiff should be considered. It appears that there were within the control of the plaintiff for use in the shipment of coal more gondola ears than were necessary to fulfill this contract with the defendant. The other contracts that the plaintiff made with other dealers, for coal, which it was bound to respect and which were to be taken into consideration in arriving at the defendant’s pro rata share, did not require of the plaintiff that it should furnish coal to those buyers- in gondola care. We think, therefore, that under the circumstances, the plaintiff was bound to keep and use for the benefit of the deféndant under these contracts the gondola cars available to it, or a sufficient number of them to fulfill its obligation to the defendant and that it was correct, therefore, to estimate the share of the defendant in these cars upon the basis of all the cars available to the plaintiff.

It is urged that there was no evidence adduced to the effect that the defendant was ready and willing to perform these contracts, and we are cited to a number of authorities in support of the proposition that, usually, under contracts of sale where the purchaser sues on account of the default of the seller, it devolves upon the purchaser to allege and show that he was ready and willing to perform. Among other decisions, we are cited to the ease of Henry Geisel, Jr., v. The A. G. Blair Co. (unreported), decided by this court February 11, 1905, the opinion being by myself. It is urged that it devolved upon the party to show that he was able to perform. As was said in the course of that opinion, the averment that one is ready, seems to involve the ability to perform, so that it is usually expressed as readiness and willingness to perform. We understand the rule of pleading — and the proofs ordinarily follow the pleadings — to be that the performance of conditions precedent must be alleged and shown, and that with respect to stipulations or conditions to be performed concurrently, a readiness and willingness to perform must be alleged and shown by the party who claims default on the part of another. But this is not true with respect to conditions subsequent. So that if the particular thing to' be done by the person suing is to pay for an article to be delivered, whether he must allege and show readiness and willingness to perform, must depend upon whether the payment is to be made concurrently with the delivery of the property, or is to be made subsequently — in other words, whether the property is sold for cash or on credit. We have taken occasion to re-examine the record in the case of Geisel v. Blair Co., and it appears from the record that the sale was a cash sale — at least it does not appear that any credit was given, and it is therefore presumed to have been a cash sale — and with respect to that, it was said in the opinion:

“So it appears very clearly from the authorities that under circumstances like these disclosed in this record it would devolve upon the buyer suing upon a breach of this contract, to show that he was ready, willing and able to pay for the goods. ’ ’

In support of this, the case of Simmons et al v. Green, 35 O. S., 104, was cited and the syllabus read.

That the allegation or proof of readiness and willingness to perform is not required where a sale is upon credit, is stated in a great many authorities. We think it is the unquestioned law of the land. I cite but one ease, that of Monarch Mfg. Co. v. Royer Wheel Co., decided by the Circuit Court of Appeals of the Sixth Circuit and found in Vol. 105 Federal Reporter, at page 324.

This contract of September 8th, 1902, as I have pointed out, was for a sale of coal on credit. The contract of September 15, 1902, was also for a sale of' coal on credit. The contract of November 25,1902, for fifty carloads of coal, says nothing about extending credit, and we suppose that, under the rules, that must be regarded as a cash sale. Therefore, to support the counterclaims based upon the alleged breach by the plaintiff of this contract, it would devolve upon the defendant to show a readiness and willingness to perform by paying for the coal upon delivery. If, however, this verdict can be sustained upon the contracts of September 8th, 1902, and September 15, 1902, disregarding this contract of November 25, 1902, it ought not to be disturbed even if there were a failure to show any loss or damage under this contract of November 25, 1902. The general rules governing courts of error, where there is a failure of evidence as to one branch of a claim constituting a separate and distinct cause of action, or as to one defense among several defenses, or where there is error intervening in the charge of the court or in the introduction of evidence with respect to one claim or defense only of several involved in a ease submitted to a jury— the general rule is, that if there is enough to sustain the verdict, disregarding the claim or defense in respect to which error has intervened, the judgment should be allowed to stand. Illustrations of this rule will be found in certain decisions of our Supreme Court which I shall cite. In the case of Barbara Sites v. Caspar Haverstick et al, found in 23 O. S., 626, it is said in the syllabus:

“Where the jury, by their verdict, ‘find the issues joined in the cause’ in favor of one of the parties, this is to be taken as a verdict finding each and all of the issues therein for sueh party.
“In such case, if the issues are such that a finding of either of them in favor of the successful party entitles him to the judgment rendered, the judgment will not be reversed for-error in the instructions of the court relating exclusively to the other.”

As I have said, we understand the same rule to apply to a failure of evidence in support of one claim, where there are other claims upon which the evidence would support a verdict, and the verdict in this case is upon three counter-claims and there is nothing in the record to indicate that any allowance was made to the defendant by the jury on account of this certain claim arising upon the contract of November 25, 1902, for the fifty cars of coal. Now, this case was followed and approved in Smith v. Gardner et al, 57 O. S., 666, and in National Union v. Rothner, 57 O. S., 679.

In McAllister v. Hartzell, 60 O. S., 69, it is field tfiat wfiere two issues are presented in tfie pleadings for tfie determination of tfie jury, and tfiere is a verdict finding tfie issues for tfie defendant, and such finding on either issue entitled him to a general judgment in his favor, and a judgment is rendered on the verdict, such judgment will not be reversed for error in tfie instructions of tfie court to tfie jury relating exclusively to one of tfie issues.

In Beecher v. Dunlap, 52 O. S., 64:

When distinct issues are submitted to a jury arising upon distinct defenses, and tfie verdict of tfie jury is general, tfie erroneous admission of evidence on one of tfie issues, does not of itself render tfie judgment entered upon the verdict erroneous.

In Clark v. Clark, 8 Circuit Decisions, 752:

Wfiere tfiere are several distinct issues in tfie case, an omission to properly direct the jury upon a certain matter, is not prejudicial error, unless such omission was in regard to a controlling issue in tfie case.

In Topliff and Ely v. Topliff, 4 Ohio Decisions, 312, affirmed and reported in 51 O. S., 625, it is held tfiat:

If tfie court, a jury being waived, finds tfie issues joined with tfie defendant, this means all tfie issues, and tfie plaintiff can not show by parol that tfie court in fact was governed by one alternative.

In a ease tfiat we decided in Wood county a year or so ago, we had occasion to go into this question very fully and we examined these and a great many other authorities bearing upon the question. I have not been able to find that decision. I do not know tfiat it has been reported, and in the hurry of examination of this ease I am sure I have not found all of tfie decisions of our own courts — -I mean the courts of this state — in support of this general proposition. I know tfiat there is one criminal case in which tfie same rule was applied, although generally in constructions and practice there is more liberality in favor of tfie prisoner, or strictness against the state, in a criminal proceeding, than prevails against a party in civil cases.

Upon looking over this record we find sufficient to sustain the verdict of the jury upon the counter-claims disregarding entirely the claims under the contract of November 25, 1902. We have taken the analysis of the evidence furnished by counsel for defendant in error, his computations, etc., and have made comparisons thereof with the record, and we are satisfied that his data and his deductions are substantially correct and that this verdict should stand.

There is one other matter to which I should make reference. In this ease of Geisel v. A. G. Blair & Co., supra, we had under consideration a blank for a contract which was not filled out nor signed, but which it was claimed was the basis of the contract between the parties; and we were furnished by oral evidence with the date which would have enabled the court to fill out the contract — determine what the contract was — had we given credit to it. Upon looking at that blank we found in it a clause like that contained in certain of these contracts, to-wit: “the prices named -in this contract are based on the present mining rate of (blank) pér ton, and shall advance or decline as said mining rate may advance or decline during the life of this contract.” Counsel had said nothing about this clause in the blank, the alleged basis of the agreement, and when we came to examine it and consider it, we assumed that what was meant by the “mining rate” was the market rate or price of coal at the mines, and upon that assumption we concluded that the party had no claim, under his alleged contract, for what he was contracting for was a certain amount of coal to be furnished to be paid for according to the prevailing market rate — that he had no contract for a special price except such as would be governed’ and controlled by the fluctuation of the market. While the case was not decided upon this ground, this was mentioned by us as something that appeared to us to be an additional reason why the case should be decided as we were deciding it. These contracts of September 8 and September 15th, 1902, contain like provisions, and we are not enlightened by any averment or proof as to what is meant by the “mining rate.” It is said by counsel for plaintiff in error, however, that we should follow our decision in Geisel v. Blair Co. and reverse. It is alleged by counsel for defendant in error that “the mining rate” means the rate to be paid to miners for mining the coal. Without any further light upon the subject, we conclude that we are not authorized to assume, as we did in the other case, that the mining rate means the market price of coal at the mines. We think that if there was any change in the mining rate affecting the price, so as to relieve the plaintiff to any extent from its apparent obligation under these contracts, such change should be alleged and shown by the plaintiff. In the absence of any showing upon this subject, we conclude, as we believe we are bound to, that there was no such change in the mining rate.

We find no error in the record prejudicial to the plaintiff in error and the judgment will be affirmed.


text:
    THE RIGHT TO BUILD ADJOINING A RAILWAY VIADUCT.
    Circuit Court of Hamilton County.
    Louisville & Nashville Railway v. Jacob Baum.

    Decided, 1906.

      Railways — Property 'Owner May Erect Building Adjoining Yiaduct — Injunction.Not Available to Railway Company on Ground of Interference.

    The construction on land bordering a railway viaduct of a building which is necessary to the use and enjoyment of the land and which will not unreasonably interfere with the operation of the viaduct, will not be enjoined notwithstanding it will cause some inconvenience to the railway company.

      Kinhead & Rogers, for appellant.

      Albert Bettinger and Jacob Shroder, contra.

      'Gíefen, J.; Jelke, J., and Swing, J., concur.

       Affirmed without opinion, 78 Ohio State, 427.

   The most liberal construction, contended for by counsel for plaintiff, of the indenture of February 19, 1906, does not confer greater rights than would be acquired by proceedings t.o appropriate the land for the use of a single track viaduct such as the one already constructed; and the ultimate question therefore is whether the contemplated building of the defendant is necessary for the convenient use of his land on either side of the right-of-way, and will it unreasonably interfere with the maintenance and operation of such viaduct? C., H. & D. Ry. v. Wachter, 70 Ohio St., 113; Gibbons v. Ebding, 70 Ohio St., 298.

The necessity of the building to the convenient use of the land on both sides of the right-of-way can hardly be denied, and it seems further, from the deed of June 30, 1905, that the parties had the same in contemplation.

It does not appear from the evidence that the building will unreasonably interfere with the maintenance and operation of the viaduct, but at worst will cause some inconvenience.

The petition for an injunction will therefore be dismissed.


text:
    ALLEGED FRAUD IN THE PURCHASE OF RELEASES UNDER. A WILL.
    Circuit Court of Wayne County.
    Elgie C. Leedle v. Florence May Christie, Individually and as Executrix; and Edna Cowden v. Florence May Christie, Individually and as Executrix.

    Decided, 1912.

      Pleading — Fraud Charged in Obtaining Releases from, Legatees — Copy of the Will Made a Part of the Petition — Answer in the Form, of a General Denial Not Insufficient — Failure to Sustain Burden of Proof.

    1. Where, in an action to set aside releases obtained by a life tenant from legatees under the will, on the ground that the said releases were obtained by fraud, the mistake is made of incorporating the will in the petition, objection can not be made to an answer in the form of a general denial, notwithstanding it involves a denial of allegations shown to be true by the will itself.
    2. The testimony having disclosed that the legatees were not under duress, but treated with the life tenant at arm’s length, and remarked that they understood their rights, and that they preferred “a bird in hand” to the contingencies in which their legacies were involved, it can not be said that they sustained the burden of proof devolving upon them, and judgment must be given for the defendant.

      Kiefer & Kiefer and II. D. Metz, for plaintiffs.

      John McSweeney and Ed. 8. Wertz, contra. -
    Voorhees, J.; Taggart, J., and Powell, J., concur.

       Affirmed by the Supreme Court without opinion, -March 11, 1913.

   These cases respectively are numbered 546 and 547, and are in this court on appeal from tbe court of common pleas, to be heard together, and what is said in this opinion in case No. 547, as far as applicable, is to apply to case No. 546, and to be the holding and finding in that ease. Both cases have been submitted to the court upon the pleadings and evidence. The plaintiffs in their petition sets forth at length and in specific detail their cause of action against the defendant, both in her individual capacity and as executrix of the last will and testament of Raymond F. Christie; deceased. Said causes of action are based upon alleged acts of fraud practiced upon plaintiffs by the defendant.

It is alleged in the petition, among other things, in substance, that said Raymond F. Christie, who was the husband of the defendant, Florence May Christie, by his last will and testament and by the second item thereof, gave, devised and bequeathed to his wife, Florence May Christie, all his property, both real and personal, during her natural life, or while she remained his widow, to have the full and entire control thereof, and at her death dispose of it in such a way and manner as she may see fit; but out of that estate of his said wife, during her lifetime, she was required to pay to his niece, said Edna Leedle (now Edna Cowden), $20 per month, and in case of the death of Mrs. Edna Cowden said payment should cease to be made. This provision as to the $20 to'be paid Edna Leedle was revoked by codicil by said testator by said item two- of the will. The testator required his said wife to pay to his sister, Elgie Leedle, plaintiff in cause No. 546, $12.50 per month during the lifetime of said Elgie Leedle, and at the death of his said wife, Florence May Christie, said Edna Leedle or her legal representative to receive out of his estate $5,000, and his said sister, Elgie Leedle, or her legal representative, $2,000, and his nephew and nieces, Raymond Caskey, Ruth Caskey and Florence May Caskey, $1,000 each. By the third item of the will the defendant was named as executrix of said will, without bond and without appraisement, but in case his said wife should re-marry immediately after said marriage she should cause to be • paid out of his estate $5,000 to said niece, Edna Leedle, and $2,000 to said Elgie Leedle, his sister, and $3,000 to said Caskey children.

After setting forth this provision of the will the petition sets forth .certain acts, fraudulent representations and conduct of the defendant. Said acts, statements and representations were made by one Frank X. Wolfe, who accompanied defendant on her visit to Springfield, Ohio, where they called at the residence of the plaintiff, Elgie Leedle, on or about July 27th, 1909, when the releases were obtained through the plaintiffs releasing said claims and legacies given them by said will, and it is charged and claimed by the plaintiffs that said releases were obtained by fraud, and they ask that the same be canceled, and they be restored to their rights under said will. Copies of these releases that were left with the plaintiffs by the defendant are attached to the petition. A copy of the will of Raymond F. Christie is also attached and made a part of the petition.

The defendant files an answer which is in the nature of a general denial, after admitting certain allegations, which allegations are set out in the answer.

The first contention that will be considered is by the plaintiffs that the answer is insufficient, and that many of the allegations of the petition are shown to be true, as by the will attached to the petition. They are denied by the answer, and the plaintiff contends that this is- a violation of the rule of equity pleading, and that therefore the answer is unsustained and insufficient.

This question comes to the court more as a criticism on the pleading of the answer than in any other form. There was no motion made as to this insufficiency as an answer, but the criticism appears in the discussion of the case by counsel on the trial. First, it seems that as to the petition there was no objection made as to the pleadings, and therefore any matter as to the form of the petition is waived by their not meeting it by a proper motion; but in view of the way the case comes into this court and is presented to the court on the pleadings, we think it is important to say something in regard to the petition and the mode in which it is set forth. The.action herein is not founded upon the will of Raymond F. Christie; that is not the cause of action, and therefore the attaching of a copy of the will and making it a part of the petition is not good pleading. If a motion had been interposed it would have been stricken out of the petition because it was not a proper matter to be set out in the pleadings or attached thereto, and we think in this case it is somewhat important that the question should be considered before we proceed to the merits of the casé.

In-the case of Crawford v. Satterfield, 27 O. S., 421, we find this to be the rule recognized by the Supreme Court of Ohio:

“In actions founded upon written agreements other than for the unconditional payment of money only, it is not good pleading to copy the written instrument into the pleading or to attach a copy making it a part thereof, and upon motion for that purpose a reformation of the pleading would be ordered; yet, when it has been done without objection, and the petition contains facts sufficient to constitute a good cause of action if well stated, the judgment will not be reversed.”

So, in this case, the way it comes to us, we observe that the claim is made there are matters in the will that have been made a part of this petition, and we think they are not admitted to be true, and are denied with other allegations of the petition which are denied and which are in fact true, and therefore the answer was sufficient. We think this will should not have been made a part of the petition in this case. It was proper enough to attach a copy of the will as an exhibit, but it should not have been made a part of the petition. As an exhibit it would be proper enough in the case, but the action not being founded upon the will, hut founded upon fraud, the will could be no part of the petition. The fraud charged is in obtaining a release of legacies given to the parties in the will in question, so we think the rules of law require just such a pleading as is the answer interposed in a case where the cause of action is founded upon fraud. Under the system of practice prescribed to the courts by the civil code, this is incumbent upon the respective parties to the action as it was by the rules of pleading at the common law which prevailed in our courts before the adoption of the code, etc.

It is the sole purpose of the answer either to controvert the right of the plaintiff to recover upon the facts stated in the pleading by general or special denial, or to allege facts which .constitute new matter appearing by way of confession and avoidance of facts forming the basis of affirmative relief as counter-claim or set-off. New matter constitutes facts which .if true are.in law a defense to.the action. This .defense, impliedly admits the truth of the facts stated in the petition,' and that upon these facts the plaintiff is entitled to recover, and it avoids the effect of these statements by the answer or new matter stated therein.

Now in this case, as I have stated, the cause of action is based upon fraud, that the defendant perpetrated fraud, and that fraudulent acts were perpetrated upon the plaintiffs by the defendant in obtaining the releases that were obtained, releasing the plaintiffs’ claims that were given to them in the will of Raymond F. Christie. These fraudulent acts and charges are denied in the answer, and we think that when the denial of the acts of fraud is made, then it throws the burden of proving, these acts upon the plaintiff, and the fact that there were other matters that are neither admitted or denied is immaterial so far as the issues in this ease are concerned. In this case the petition has attached to it a copy of the will of Raymond F. Christie, and as we have stated, the cause of action is not founded on the will. We think the answer is sufficient, and it is proper to deny these acts of fraud if they are not true, and when so denied the burden is upon the plaintiff to prove the allegations set forth in the petition.

It is contended by the plaintiff that the defendant procured by fraudulent acts the release of the legacies that were given to them in the will. It is claimed that advantage was taken of the plaintiffs, and misrepresentations were made, whereby they were induced to sign the papers releasing their claims, as set forth in the petition. It is contended in the case that the defendant occupied a fiduciary relation to these parties, that she sustained the relation of executrix to the will and the estate in question, and that by reason of that relationship it was her duty and the burden was imposed upon her that she must make full disclosure; that when she obtained these papers she must show affirmatively that the transaction, was, so far as she was concerned, absolutely fair and honest. This was upon the theory and ground that because she was the executrix of the will, of Raymond F. Christie she was required to state fully, and make full disclosures as to the rights of the plaintiffs under the will. And the plaintiff further contends that the defendant in making these settlements of these legacies, that the transaction so far as she was concerned is absolutely void. If the transaction imposed upon her a fiduciary relation — namely as executrix — in dealing with this property, to make such disclosures, the question is, has she done so? We think even an executor or administrator, or a trustee, may deal with the trust property, and with the cestui que trust, and if they do, it is not absolutely void, it is voidable only, but the party who is affected thereby may by ratifying and-affirming it bind himself. ' We do not agree with the contention of counsel that such transactions are absolutely void. It is not necessary to go further in the discussion of that question than has been indicated. Was the defendant in this transaction acting in a fiduciary relation to these parties? She is charged in the petition individually as well as executrix] The contention is this: that the defendant, Florence May Christie, visited the home of the plaintiffs in the city of Springfield, and that she had in her company or took with her a young man by the name of Wolf. They go to the city of Springfield and call at the residence of the plaintiff, Mrs. Leedle, and it is contended that Mrs. Christie introduced this young man who was with her as her attorney, or an attorney at law, and by representations and acts took advantage of the plaintiffs and procured from them a release of their rights and legacies under the will of Raymond F. Christie, deceased. The contention is that these parties, Mrs. Christie and Wolf, procured the signatures to said release by fraud and by taking advantage of the ignorance of these parties as to their rights in the premises. It is contended by the plaintiffs that they were hurried, that they had not an opportunity of consulting or getting advice in the matter involved, and that they were urged by these parties to sign these papers; that they signed them without reading them, or without making an investigation. So far as the question of fact is concerned the court does not find this contention to be true. We do not believe that. In fact we find to the contrary, and that these papers were read to the plaintiffs, and that they did have opportunity to read their contents, and therefore as’a matter of fact we find that the papers were read to these parties, and that they had an opportunity of knowing what they were signing, and did know what they involyed — that they involved and concerned the release of their claim under the will of Raymond F. Christie.

But the contentions are that they did not read these releases or contracts; that they signed them without their being read to them or being informed as to what the effect of the papers were, or what effect they would have upon their rights. Assuming this to be true, how stands the rights of. the plaintiffs? We think the question is settled in Ohio by authority of the 78th Ohio State, page 209. I shall read only a brief extract, commencing on page 222, and instead of using the authorities, in the opinion here I will read what the court in this case held and cited in reference to this principle of law.

57th Ohio State, page 582:

“Where a mother and son entered into a written contract which is correctly read to her before it is executed, and she then voluntarily executed it, she is bound by its terms until it is set aside by a proceeding brought for that purpose. The facts, if satisfactorily established, that ¡she ,could not read writing, and on account of the confidence reposed by her in her son did not carefully weigh, so as to comprehend the terms of the instrument when it was read to her, affords no ground to treat it as a nullity, or to permit her to contradict its terms by parol evidence when interposed by the son as a defense to an action at law brought by her against him. ’ ’

It will be observed that in this 57th Ohio State, the extract that I have read in this opinion is that there was- the relation of mother and son, a confidential relation that would exist between persons so situated that would bear upon the question whether the facts there stated, the relation of confidence existing between these parties — whether that is sufficient to require the party to make disclosures by reason of this peculiar relation. On page 226 the court say:

“A person who without reading a writing signs it, signs a contract releasing his rights to maintain an action for damages resulting from the injury occasioned by the negligence of his former employer, will be held to have executed the instrument with full knowledge of its contents when his only excuse for not reading it was that he was somewhat hurried. Such a contract can not be relieved against by the party who signs it on the ground that he was deceived and that the instrument was not read. ’ ’

What-was the relation of these parties? When this transaction occurred and when these papers were signed they were not under duress; they consulted together before they signed these papers. They were no doubt halting between two opinions — whether it would be best for thepi to sign the papers or not, and as expressed by the mother, “whether it would be best to accept a bird in the hand rather than two in the bush,” or whether they would not take the offer that was made. They consulted together and came to the conclusion between themselves, and made known to the defendant that they would accept her offer. It is contended by the plaintiff that they were put into this situation to sign these papers or these releases for the reason that they were told by the defendant that, “if you do not sign these papers you will never get anything.” We do not find this to be the true statement of facts, nor do we think it is the testimony in the ease. The facts as disclosed in the evidence in this regard are that the offer was made by Mrs. Christie to give so much money to them, and they were discussing between themselves as to whether she wouldn’t give more, and Mrs. Christie informed them that that was the limit of her offer. “Now if that is not accepted that will be the end. I will make no further offer.” We think from the proof in this case the evidence does not justify the contention of plaintiffs that the statement was made or any claim made by Mrs. Christie that if they didn’t accept her offer they would get nothing. That was-not the proposition that she made, but is as claimed by Mrs. Christie when she said “I make this offer (namely of $2,500). If this is not accepted I will make no other, and I am not coming back again.” That is the proposition that was made.

Then it is contended by the plaintiffs that they were in ignorance of their rights. Now were they? They knew about these legacies. They knew what they were entitled to under the will. They knew under what conditions they were entitled to. that amount. Mrs. Cowden knew she was to have $5,000, but it was dependent upon conditions that if Mrs. Christie should re-marry then it would become payable; but there was no certainty that she would be married. That could not be ascertained: it was impossible. There were no representations made one way or the other as to how that would be. They knew the fact. They knew the condition. They knew as much about the death of Mrs. Christie as she knew — an uncertain event which couldn’t be ascertained. So we think that in this case the parties were on an equal footing as to the conditions surrounding the parties and the conditions of the will. We do not think it very important whether Mr. Wolf was there as an attorney, or claimed to be an attorney or not. It is undoubtedly a fact that he was not an attorney. Now if he said he was, we do not think that material. We think the facts in this case show that Mrs. Christie, as the testimony discloses, did take means and opportunities to ascertain the situation of her rights under this will. She had a right to do so. When Mrs. Christie obtains such information she goes to the plaintiffs and informs them as to what her rights are, and they in turn say to her that they know their rights under the will; that they knew their rights as well as she did. Mrs. Leedle in fact did know that she was to get $12.50 a month as an annuity under the will of her brother', and that it was dependent upon certain conditions fixed by the will. She knew that. She knew she was to get $2,000 upon certain conditions in the will. She knew that. Edna Cowden knew that she was to get $5,000 under certain conditions disclosed in the will; so that these parties were dealing with each other at arm’s length, knowing their rights respectively, and therefore the plaintiffs were not in ignorance of their rights when they signed these releases. The testimony shows in this case that there was some effort made on the part of the plaintiffs to call their counsel, Mr. Kiefer, into consultation on the day that the releases were made. Mrs. Cowden suggested the calling of their counsel; Mrs. Leedle did not agree with her in that regard, and they did not call Mr. Kiefer or any other counsel to assist them. There is no evidence that Mrs. Christie interposed any objection to their obtaining counsel or assistance, but they relied upon themselves. They claimed that they had as much information as Mrs. Christie had, and' they decided that they could act for themselves, and came to the conclusion that they would sign the release and accept the offer made by Mrs. Christie. Under these circumstances the court thinks- that there was no fraud or imposition practiced upon them.

Attention is called to the 80th Ohio State at page 240. The case does not commence there, but for our purpose it is sufficient to read from this page:

“The law applicable to such a condition of facts should be perfectly clear. Whatever presumption of fraud arising out of confidential relations may be raised, it necessarily is rebutted when it is shown that the instrument is in exact accord with the grantor’s declarations, made both before and after its execution; and that, the only charge of fraud being that it was misread to him, he had it in his possession a considerable time before signing, and at other times had ample opportunity to ascertain the truth before signing, on the day of signing and delivery, and subsequently. It is conceded on all sides that he was intending to make some sort of a reservation in the deed as to the marl, either for life or absolutely; and it would be impossible, because unnatural, to suppose that with the deed in his pocket for six weeks he would never.look at it to learn whether it contained the reservation which he desired, or that when questions as to the defendant’s title arose and he resorted to the deed when it was in custody of the bank, he did not then ascertain just what were its provisions. A person of ordinary mind can not be heard to say that he was- misled into signing-a paper which was different from what he intended, when he could have known the truth by merely looking when he signed. ’ ’

When the proposition of settlement was agreed to, the matter ' was submitted to the plaintiffs as to how they would have the money divided between them, and ’they suggested — not Mrs. Christie — that it should be divided equally, $1,250 to each, and with that understanding Mrs. Christie drew her check and paid the amount thus agreed upon, half to each. We think from the testimony in this case and all the circumstances that the plaintiffs were not deceived nor defrauded by any statement or acts of the defendant; and that the burden being upon the plaintiffs to establish by a preponderance of the evidence the charges of fraud against the defendant, we think the plaintiffs wholly fail, and for the reasons hereinbefore given the judgment and decree of this court will be in favor of the defendant, and the petitions will be dismissed at the cost of the plaintiffs* Motion for a new trial will be overruled, and exceptions, and forty days for finding of fact, and statutory time for bill of exceptions.


text:
    AS TO REVIVOR OF JUDGMENT AGAINST HEIRS OF JUDGMENT DEBTOR.
    Circuit Court of Franklin County.
    DeWitt C. Jones v. Chas. T. H. Kampman et al.
    Decided, October 25, 1912.

      Revivor of Judgment — Nature of a Revivor — No Appeal from Overruling of Application for, When — Unsuccessful Effort to Revive a Lien— Judgment May Not be Revived Against Heirs of the Judgment Debtor.

    1. Inasmuch as a motion for a revivor of judgment is an additional proceeding in the original case, there can be no appeal from the overruling of the motion, where the privilege of an appeal could not have been allowed in the original case.
    2. Nor can such a‘ motion be allowed on the theory that while nominally to revive a judgment its real purpose is to revive a lien, when it is apparent that the proceeding to revive is not only not appealable, but not maintainable, for the reason that it is an effort to revive the judgment against the heirs of the judgment debtor.

      DeWitt C. Jones, for plaintiff.

      Dtmcan & Duncan, contra.
    Dustin, J.; Allread, J., and Ferneding, J., concur.
   We think the motion in each ease to dismiss the appeal should be sustained, upon the ground that a revivor is a special proceeding and not a civil action, and, hence, not covered by Section 12224, General Code.

The original action in each case was for money only, and a jury could have been demanded. We are unable to see why a judgment of revivor, which is held in Misner v. Misner, 41 O. S., 678, and in Bartol v. Eckert, 50 O. S., 31-45, to be an additional proceeding in the same case, is entitled to the privileges of an appeal not allowed in the original action.

It is contended that the proceeding, while nominally to revive a judgment, is in reality to revive a lien. The motion for an order of revivor does not allege any levy or lien. It simply alleges ownership of certain lands by the judgment debtors, which lands have descended to the defendants.

We are not aware of any law by which a lien may be “revived,” or even declared, under such circumstances.

Nor are we aware of any law by which a judgment may be revived against the heirs of a judgment debtor. The heirs, of course, to the extent that they have inherited, are liable for the debts of the ancestor, but they are not liable on the judgment against the ancestor and can not be made judgment debtors. They may have inherited only $500 and the judgment may be for' $5,000. There is no allegation here as to values, and a judgment for the full amount against the heirs would be a manifest injustice and wholly unauthorized by statute.

The averments of the plaintiff do not even show that the original judgment debtors were owners of their respectives tracts of land at the time of the rendition of the judgment.

In Smith v. Hogg, 52 O. S., 527, it is held that:

“A dormant judgment * * * does not, by virtue of its revivor, become a lien on lands acquired by the debtor after its original recovery, unless a levy is made thereon before it became dormant or after its revivor.”

And it is held in Miller v. Taylor, 29 O. S., 257, that:

“A judgment in personam, under which no specific lien-on real estate was acquired during the lifetime of the judgment debtor, can not be revived and enforced against the heirs. ’ ’

It does not appear here that thiéré was a specific or even a general lien against the property of the judgment debtors.

We are, therefore, of the opinion that not only was the proceeding to revive not appealable, but was not maintainable originally.

A part of this opinion is obiter, but we thought it might be inore satisfactory to give our views on the revival proceedings than simply to dismiss 'the appeals on the technical ground first indicated.