text:
    DISTRIBUTION OF PROMISSORY NOTE BY ADMINISTRATRIX WITHOUT ORDER OF COURT.
    Circuit Court of Cuyahoga County.
    Christ Meister et al v. John Feuerstein.
    Decided, January 29, 1912.

      Promissory Note Belonging to Estate — Endorsement of, by Administratrix — Order of Court — Title of Endorsee.

    One to whom a note is endorsed by the administratrix of the estate of a deceased payee, may maintain suit thereon, though no order of distribution in kind was obtained from the probate court at 'the time, where it appears that all the debts of the estate had been paid and the distribution of the note was afterwards reported to the probate court and approved by it.

      R. E. McKisson, for plaintiff in error.

      Morgan & Litzler, contra.

      Niman, J.; Winch, J., and Marvin, J., concur.
   The plaintiffs in error were defendants and the defendant in error was plaintiff in the court of common pleas. When the terms "plaintiff and defendants” are used herein, reference is made to the relation of the parties in the court below.

The plaintiff brought suit in the court of common pleas against the defendants to recover on a promissory note, a copy of which is as follows:

"$300.00 Cleveland, O., Jan. 14, ’95.
"One year after date I promise to pay to the order of Christ Feuerstein, three hundred dollars, at six per cent (6%) interest. Value received.
, ‘ ‘ Christ Meister,
"Johanna Meister.”
The note bears the following endorsement.
"Pay to the order of John Feuerstein.
"Estate op Christ Feuerstein,
"by Eva Feuerstein, Administratrix.”

It is established by the evidence set forth in the bill of exceptions that Christ Feuerstein, the payee in said note, was the father of the plaintiff; that some time prior to the bringing of the action, Christ Feuerstein died intestate, leaving the plaintiff his sole heir at lav7, and leaving a widow, Eva Feuerstein, who was duly appointed administratrix of his estate and who qualified as such; that all of the debts of his estate having been paid, the plaintiff and said administratrix entered into an agreement whereby the former was to take all the remaining property left by said Christ Feuerstein, and pay to the administratrix for her interest in the estate, as widow, the sum of $4,000'; that pursuant to this agreement, the note sued upon was indorsed over to the plaintiff in the manner indicated; that at the time of the making of this agreement and the indorsement of the note by the administratrix and its delivery to the plaintiff, no approval of the probate court had been obtained but that subsequently, after the suit was started, but before it was tried, the probate court, on the application of said administratrix, and with the consent of the plaintiff, duly approved the distribution in kind of said note to the plaintiff; that the trial in the court below resulted in a verdict and judgment in favor of the plaintiff.

Upon this state of facts on the errors assigned, we are called upon to determine whether the plaintiff could rightfully bring suit on the note.

It is contended by the defendants that the title to the note in question was in the administratrix of the estate, and until the approval of the probate court was obtained, in compliance with the statute providing for a distribution in kind of certain forms of personal property, in which notes are included, she had no authority or right to transfer the note to the plaintiff, and he took no title by the indorsement. In other words, defendants contend that the plaintiff was not the real party in interest, and therefore could not bring the action.

Section 10839, General Code, provides:

“An executor or administrator who has paid all the debts of an estate, but has in his possession notes, bonds, stocks, claims Or other rights in action, belonging thereto, with the approval of the probate court entered on its journal, and the assent and agreement of the persons entitled to the proceeds of such assets as distributees, including executors, trustees and guardians, may distribute and pay them over in kind to those of such dis-tributees as will receive them.”

The' plaintiff and administratrix, in this case, were the only parties concerned or interested in the distribution of the estate. The debts had all been paid at the time the note was taken by the plaintiff. There were no creditors to complain, because the debts of the estate had all been paid. Absolutely unimpeachable was the formal approval of the probate court, which was secured after the suit was started but before the trial took-place.

In our opinion, the omission to secure the formal approval of the probate court did not operate to deprive the plaintiff of his right to bring suit on the note. The administratrix, being vested with the legal title to the note, by her indorsement transferred that legal title to the plaintiff. He thereby acquired a voidable, not void, title. As against creditors whose rights might be affected, or other distributees not consenting to the transaction. his title might’have been assailed; but there were no such creditors and no such distributees. The only parties financially interested in the estate were the plaintiff and the administratrix, and when the latter'entered into the agreement which resulted in the plaintiff taking the note, he became the only person financially interested therein, and at the commencement of the suit had both the legal title and beneficial interest therein.

The plaintiff would, of course, take the title with notice that it was liable to be defeated by the assertion of the claims of pos: sible creditors, or perhaps by the refusal of the probate court to sanction the agreement between himself and the administratrix. His position would be analogous to one who, with knowledge, acquires trust property from a trustee. The law in such case is set forth in Perry on Trusts, Volume 1, Section 274, in this language:

“If a trustee conveys away the trust estate to another, even bis co-trustee, and appoints another to execute the trust, the conveyance may pass the valid legal title, but it will have no effect in relieving the original trustee from responsibility, if the transaction is not sanctioned by the decree of the court, or by consent of all parties interested and it will transfer no authority to the person thus appointed, except to make him a trustee de son tort, if he attempts to interfere with the trust estate.” See also Perry on Torts, Volume 1, Section 334.

The subsequent approval of the probate court confirmed the plaintiff’s title to the note, aud would have hs><»k to the

time of its acquisition by him. We are supported in this opinion by Palmer v. Whitney, 166 Mass., 306. In the opinion, on page 308, Field, C. J., says:

“It has been held that the only way in which an administrator of an intestate estate can effectually protect himself against the claims of all possible distributees, is by obtaining a decree of distribution and distributing the estate in accordance therewith. Such a decree, obtained according to law after due notice, is a protection against all the world. (Gathaway v. Bowles, 136 Mass., 54.) But it is a common practice, when the distributees are known and their shares undisputed, to pay them what is due without a decree of distribution and to credit payment in .the final account. When such payments are made and are credited in the account, and the distributees assent to the account, or have notice of it and make no objection to the allowance of it, or are heard upon the allowance of it and their objections are overruled, we see no reason why'the account should not be allowed. If the distributees have actually received all they are entitled to, they ought not to be heard to complain that the formality of obtaining a decree of distribution has been omitted. An administrator distributing property without a decree of distribution incurs the risk that there may be distributees who are not bound by the allowance of his account, but if he is willing to take this risk, the distributees who have received all they are entitled to can not complain of the procedure.”

In In re Scott’s Account, 36 Vermont, 297, the court on page 300 says:

“The main purpose of the statute in providing for the order of distribution seems to be to insure the just .accountability to the party entitled for the money thus being in the hands of the. administrator. When that end has been accomplished by this voluntary action, there would seem to be no occasion for resort•ing to the court for an order in that behalf.
“Another purpose of that provision seems to be to enable the administrator to protect himself under an order of the court against any claims that might be made on him for funds of the estate in his hands. Tf ho should see fit to take the risk of disposing of the funds without the shield of such order, and no claim should be made, upon him by any person otherwise entitled to those funds, and in point of fact he had paid them over to the person entitled and to whom they would have been ordered to be paid, it is difficult to see on what ground the transaction can be called a question.” _

.The case, of Maraten et al. Administrators, v. Noble et al, 10 La. Reports, 210, is similar to the case under consideration. The syllabus reads as follows:

“The defense to the plaintiffs’ action on a promissory note was that the note belonged to the estate of Kemp; that it was not a negotiable instrument, and that no legal title passed to the transferee. The note, however, being indorsed in blank by Noble, the payee, and by Lea in his individual capacity, went into the hands of Bullard. Held: There is no affirmative evidence impeaching the validity of this transfer as one detrimental to the estate of Kemp,.and Noble having been notified of the transfer some time before suit brought, and no payment having been made to the estate on account of the note, there is no equitable reason for turning plaintiff out of court for not showing a judicial authorization of transfer to him.”

Our attention has been called to McBride, Admr., v. Vance, 73 O. S., 258, where it is held that the personal property of a deceased person does not vest in his heirs, but is in abeyance until administration is granted, and is then vested in the administrator by relation front the time of death, and no right of action on a promissory note belonging to a deceased person is shown by a party in an action on the note by proof of possession and that he is the sole heir of the decedent.

It is claimed by the plaintiff in error that this decision should control in this case, but in our opinion an entirely different question was involved in that case than the one under consideration. There the plaintiff did not, as in this case, derive title through an administrator, but sought to recover solely on the theory that' she was the sole heir at law of the decedent to whom the note belonged, and that having possession of the note she was entitled to maintain the action. Tt is clear that she -had no legal title to the note sued upon, and perhaps had no beneficial estate therein, depending xipon the question of whether or not the proceeeds of the note might be necessary for the payment of debts of the estate. Here the. plaintiff obtained title by the indorsement of the administratrix, which, though voidable when it was acquired by him, was in fact not avoided, but on the contrary, confirmed by the action of the probate court, and in addition to the legal title, had the sole beneficial interest in the note.

We find no error prejudicial to the plaintiffs in error in the rulings of the court of common pleas in which the question of the right of the plaintiff to bring his action was raised, and no error in any of the matters assigned in the petition in error' as grounds of error, and the judgment of the court of common pleas is affirmed.


source: Caselaw Access Project

author: By ti-ie Court

license: Public Domain

text:
    LINE REPAIRMAN INJURED BY APPROACHING CAR.
    Court of Appeals for Richland County.
    The Mansfield Railway, Light & Power Company v. John E. Barr.
    Decided, February Term, 1914.

      Master and Servant — Negligence-—Duty of Electric Railway Management Toward Men Repairing Trolley Wires — Charge of Court— Excessive Yerdict.

    1. Where a repairman is sent to adjust a trolley wire, it is the duty of the railway company in the exercise of ordinary care to make proper provision to protect him from injury from cars using the track over which the wire upon which he is at work is strung.
    2. A motorman running a car upon such track under the direction of his conductor is not a fellow-servant of one engaged in repairing the trolley wires.
    3. Where a repairman so engaged discovered a car bearing down upon him and in dangerous proximity, it is for the jury to' say, under proper instructions from the court, whether or not he was guilty of contributory negligence in jumping from his perch, thereby sustaining the injuries of which he complains.
    4. A verdict for personal injuries will not be set aside simply because it is excessive in the mind of the court, but only where the excess is so great as to shock sound judgment and a sense of fairness toward the defendant.

      McBride & Wolfe, for plaintiff in error.

      W. S. Kerr, contra.
   By ti-ie Court

(Vooriibek, Shields and Powell, JJ.).

A verdict of $8,500 was awarded the defendant in error, as damages for personal injuries alleged to have been sustained by him as ,a result of the alleged negligence of the plaintiff in error, while he was in its employ as a repairman of its electric lines.

To state the cause of action more fully, the plaintiff in his petition filed in the court below alleged:

“That on the 9th day of October, 1909, and prior thereto he was employed by the defendant as a repairman on its lines in Mansfield, Ohio, and to do such other work and service in connection with the maintenance and repair of its lines as might be assigned him by the defendant. In doing said work for the defendant lie was required, lidien it became necessary, to gó up on top of a repair car and from that position repair wires, switches,'etc. On the said 9th day of October, 1909, there was a break in the wires of said defendant’s lines on Spring Mill street of said city at or near the point where Mulberry street and Spring Mill street branch. In the usual and ordinary course of his duty he went to the break on a repair car, and went on top of said car, which was about twelve feet above the street, to repair said break and while so engaged and without any fault or negligence on his part the repair ear, upon which he was standing in doing the work aforesaid, was run into by one of the defendant’s ears from the Shelby line.
"That when he saw that the Shelby ear was going to strike his car, he was standing on the top of a platform or box of sufficient elevation above the roof of the car to enable him to reach and do the work he was doing and being afraid that he would be thrown from the box or platform to the street by the collision of the ears he jumped from the platform or box to the roof of the car and by the shock of the collision he was thrown from the roof of the car to the brick street.
"That he struck on his feet on the brick street from a distance of about twelve feet and that both ankles were fractured; that the bones of his ankles have grown together where some of the fractures were, and that he is now unable to walk but with great difficulty and he is permanently disabled from doing manual labor. Tie suffered great pain and he is unable to walk without great pain and suffering in his ankles. He expended the sum of ,‡100 for medical services in attempting to be cured.
"That the defendant by its servants negligently and recklessly run the said Shelby car onto and against the repair car on which he was working and thereby caused the injuries of which he complains; that the said Shelby car was under the charge of a conductor who had control of the movements of the same, and that a motorman was employed on said Shelby car who was under the control of the conductor, and that said conductor and motorman negligently and recklessly, ran said Shelby car onto and against said repair car as alleged; and he avers that the officer or agent of the defendant who has the supervision and control of the movement of the cars on the defendant’s lines, with knowledge that plaintiff was engaged in repairing the lines as alleged and that in doing so it was necessary that said repair car occupy the track, failed and neglected to notify or warn the conductor on Shelby car of this fact, whereby the injury to plaintiff would have been prevented. He says the car on which he was working w.as in sight of the conductor and motorman of the Shelby car and that he could be seen far enough to stop the Shelby car if they had exercised reasonable care in the premises. The defendant is a corporation organized under the laws of Ohio, and as such operated a city and surburban railway in the city of Mansfield and to Shelbjr as alleged. Wherefore judgment is prayed for in the sum of $10,000.”

By answer the defendant admits that the plaintiff on the 9th da.y of October, 1909, and prior thereto was employed by it as stated in said petition, that in doing said work for the defendant he was required and it became necessary to go up on the top of a repair car and from that position repair wires, switches, etc.; that on said 9th day of October there was a break in the wires of the defendant’s wires on Spring Mill street; that he went to the break on a, repair car, and went on top of said car to repair said break, but it denies all the other allegations in said petition.

For a second defense the defendant says “that the plaintiff’s injuries, if any were, received, were caused by his own fault ■and negligence directly contributing thereto in jumping from said car and in taking no- precaution whatever for his own safety.”

The, reply is a general denial of the contributory negligence charged.

Upon the issues thus made by the pleadings, the cause was. submitted to a jury resulting in a verdict for the. plaintiff. A motion for a new trial was overruled and judgment was entered upon said verdict. A hill of exceptions was taken containing all the evidence offered upon the trial, including the charge of the trial court, and by a petition in error said cause was brought into this court for review.

There is little or no controversy between the parties hereto as to the facts leading up to the injury here complained of. The employment of the defendant in error by the plaintiff in error to repair the wires on its lines, and, if necessary, to make-such repairs on the top of its repair cars, that in pursuance of such employment he went on top of such car to repair a break in the wires of the plaintiff in error at the time and place stated, and while he was so at work an internrban ear on the Shelby line of the plaintiff in error, operated by a motorman in its employ, collided with said repair car, is admitted; and while it is not contended that the defendant in error was not injured thereby, it is insisted by the plaintiff in error that whatever injuries were sustained by the defendant in error were caused by his own negligence and carelessness, and that therefore said company is not liable in this action.

It is hardly necessary to remark that if the evidence fairly shows the facts to be .as claimed by the plaintiff in error, namely, that the defendant in error’s negligence directly contributed to or was the proximate cause of his injury, or if it should appear by the evidence that the concurrent negligence of both the defendant in error and the plaintiff in error contributed to and produced said injury, then the motion submitted for an instructed verdict should have been sustained .and not overruled.

An examination into the facts of this ease as disclosed by the bill of exceptions tends to show that on the morning of the day mentioned the defendant in error, then in the employ of said company as lineman, seeing the break in the wires of said company at the place mentioned, and upon arriving at said company's office reported the same to the general manager of said company, who personally directed him to repair said break without delay. Acting under such directions he prepared to make such repairs, and soon thereafter took out and employed the use of the repair car of said company used for such purposes, following what was known as the Shelby car of said company, operated on .and over the streets in the city of Mansfield, and between Shelby .and said city of Mansfield, to the place where the wires of said company were out of repair, and where said repair ear stopped on said company’s tracks, with its brakes set, to enable the defendant in error, • with a helper, to make such repairs. It appears that said repair ear was so constructed that it became necessary to use a box on top of the platform of said ear to make said repairs, and that such a box was'used by the defendant in error for that purpose, and that while on said box at work

repairing said -wires, with his back to the north, his attention was called by his helper to a Shelby interurban car approaching, when turning around and finding that said car was about to collide with said repair car, he jumped to get down and failing to get hold of anything he fell on the brick pavement and was injured, or quoting from the language of the witness “I turned right around, saw that it was- right on to us, and I made a jump to get down and get hold of something and I went on off; ” that said interurban car did there collide with said repair car, knocking the latter forward on the tracks of the company some considerable distance from the point of said collision.

It further appears that said report of the condition of said wires was so made to the manager of said company about 8:30 on the morning mentioned; that the Shelby car which the defendant in error followed with said repair .car to Spring Mill street, where the wires were out of repair, left Mansfield for Shelby at 9 o’clock on said morning; that under the schedule time of said company a car from Shelby bound for Mansfield left • Shelby at 9:05 on said morning; that such car would pass the ear going from Mansfield to Shelby, if on schedule time, at Spring Mill, where it was the rule or custom to have telephonic communication between the officers or employees of such car and the Mansfield office of said company, and that a like rule or custom obtained with cars leaving Shelby for Mansfield. The foregoing facts as gleaned from the bill o'f exceptions have been stated with some degree of particularity that they may aid in the consideration of the issues raised by the pleadings therein.

It is fundamental that negligence as a ground of recovery is not to be presumed from the happening of an accident but must be proven. As was announced in the case of Railway Company v. Marsh, 63 O. S., 236:

“Negligence must be proved either by testimony directly establishing the fact, or by the proof of facts from which negligence will reasonably follow and be presumed. The jury can not be allowed to guess that there was negligence without some proof thereof, either direct or inferential.”

The correctness of this proposition as one of law is not to be questioned. In the abstract it is applicable alike to all eases triable by jury, namely, that the material and ultimate fact mpon which a recovery is sought must be proven. The importance of applying this salutary and essential principle of law is emphasized by the verdict in this case. The amount of the verdict, when considered with reference to the issues raised by the pleadings, renders it necessary that the whole record of the case should be thoroughly canvassed with the sole view of ascertaining whether such verdict is authorized by the evidence and the law. To this end we have read the entire bill of exceptions with not a little care with reference to the respective claims of counsel on either side.

It is charged in the petition that the company was negligent in running its Shelby interurban car against and colliding with the repair car on which the defendant in error was at work repairing said wires, which it is alleged was the proximate cause of his injury. The testimony as to whether the manager of the company who is in legal effect the master here, personally directed the defendant in error to repair said wires is somewhat in conflict, but we are inclined to hold that a fair construction of the testimony in this respect shows that such order was given. Having been ordered to go to the scene of the work to repair 'these wires with said repair car, and having gone and engaged upon said ear as ordered, which was known to be peculiarly dangerous, with the knowledge on the part of the company that cars were scheduled soon thereafter to pass at the place where he was so engaged, including the said Shelby interurban car, was it not the duty of the plaintiff in error, in the exercise of ordinary care, to make proper provision for the safety of the defendant in error as would afford him protection from the dangers incident to the operation and movement of cars between Shelby and Mansfield and in Mansfield, to avoid collision with said repair car while he was engaged in said work of repairs? We think, it was, and we further think that this question, in terms, was properly submitted to the jury by the trial court in its charge. Ry. Co. v. Murphy, Admr., 50 O. S., 135; Ry. Co. v. Lavalley, 36th O. S., 221; N. Y. C. & St. L. Ry. Co. v. Ros, Admr., 19 C. C., 689.

It was contended on behalf of the plaintiff in error that the motorman in charge of the Shelby interurban car and the defendant in error were fellow-servants, and that therefore, if the injury to the defendant in error was the result of negligence, it was that of a fellow servant and not that of the plaintiff íd error. Plaintiff in error testified that he was acquainted with the rules of the company in the operation of its cars between Shelby ,and Mansfield, and that before leaving Shelby the officers or employees of the car would “call in and get orders” from the Mansfield office, and the same practice was observed in passing Spring Mill. If this is true, knowledge of the time the car in question left Shelby was brought direct to the knowledge of the plaintiff in error, and although the motorman of such ear may have been negligent in failing to see said repair car and in colliding with it, if the plaintiff in error then knew that said interurban ear was on its way from Shelby to Mansfield, and then knew that the defendant in error was then engaged in the work of repairing said wires and took no steps to protect him from the danger of said car colliding with said repair- car, and colliding with said repair car the defendant was thereby injured, then it would be a question for the jury to determine whether or not the plaintiff in error was not guilty of negligence, and if so, whether or not such negligence was the direct and proximate cause of the injury to the defendant in error. On this subject the court below charged the jury as follows:

' ‘ If you find that the manager of the company knew that the plaintiff in the discharge of his duties intended to make the alleged repairs on said trolley, and you further find that an ordinarily prudent person, under the circumstances and in the situation of the manager of the defendant company, would have reasonably apprehended from the character of the work and the time and place of its performance that the plaintiff would, in the performance of such work, under the circumstances, be placed in peril and danger by reason of the operation of the city and interurban cars upon the track at such point where plaintiff was working, then it would be the duty of the defendant to exercise ordinary care to obviate possible injury to plaintiff arising from the perils, if any, that might reasonably be apprehended in the operation of its ears at said place, while plaint-, iff was in the performance of his duties.
“If the defendant failed or omitted to exercise such care, then such failure or omission would constitute negligence on its part, and, if such negligence was the direct and. proximate cause of injury to the plaintiff, or if the motorman of the car that collided with the work ear was guilty of negligence as charged in the petition, and such negligence, if any, combined with the negligence of the defendant resulted in injury to the plaintiff, defendant would be' liable, unless plaintiff, immediately prior to and at the time of the accident was guilty of negligence directly contributing to his own injury.”

We think that the foregoing contains a fair and correct statement of the law applicable to the facts in this case.

While the defendant in error on entering the service of the company assumed the ordinary and natural risks incident to his employment, including those of his fellow-servants, he did not assume the negligence of the company. The motorman here w,as engaged in another branch and department of service and in a different service from that of the defendant in error. He was engaged in managing and operating an electric ear under the control of a conductor, while the defendant in error was a general repairman with no one in authority over him. Their duties were entirely separate and distinct, and being engaged in different branches and departments of service, we are of the opinion that they were not fellow servants, so that while the motorman in charge of the Shelby interurban car may have been negligent, still under the facts as they appear here, the commingled negligence of the motorman with that of the company would be the negligence of the company and render it liable. Carter v. McDermott, 5th St. Railway Report, 72; Railway Company v. Henderson, 37th O. S., 549; N. Y. C. & St. L. Ry. Co. v. Ros, Admr., 4 C.C.(N.S.), 284.

It is contended by the plaintiff in error that the conduct of the defendant in error in jumping from the repair car immediately before the collision showed such contributory negligence upon his part as to defeat his right to a recovery herein. This was a question for the jury, and upon this subject we are of the opinion that the court below properly instructed the jury. In the light of the uneontradieted testimony of the defendant in error that he suddenly found himself in a position of imminent danger by the close approach of the Shelby interurban car to the repair car on which he was working, he was not to be held to a strict account as to the course of conduct pursued by him to avoid danger, and possibly save his life. Penna. R. R. Co. v. Snyder, 55 O. S., 342.

It is also contended by the plaintiff in error that the court below erred in its charge to the jury in not definitely defining the issues between the parties hereto. A reading of said charge shows that the pleadings were not only read to the jury but that the issues of fact as raised therein were later on during said court’s charge to the jury called to the attention of the jury and special instructions pertaining thereto were given by said court, all of which we are of the opinion was entirely consistent with the rule laid down in the case of The Baltimore & Ohio R. R. Co. v. Lockwood, 72 O. S., 586.

It is further contended by the plaintiff in error that the court below erred in its instructions to the jury respecting the duty of the company in the matter of furnishing the defendant in error a safe place to work. On this subject said court charged the jury as follows:

“The relation between plaintiff and defendant was that of master and servant and by virtue of such relation while the plaintiff was in its employ, the defendant would owe to him the duty of exercising, ordinary care to provide him a reasonably safe place for the performance of his services. Thus a master would be bound to take all such precautions for the protection of one in his employ as an ordinarily prudent person would take to protect a servant in his employ from danger, having due regard for the character of the work and the place of its performance.”

This instruction we think is in harmony with the principle enunciated in the ease of Railway Company v. Frye, 80 O. S., 289, and we therefore hold that the contention of the plaintiff in error in this respect is not sustained.

Errors are also claimed in the action of the court below in the admission and exclusion of certain evidence offered upon the trial including the examination of the ankles of the defendant in error by a physician in the presence of the jury, and the advice given by a certain physician to the defendant in error to have his case treated by a certain Chicago specialist and his charges therefor, and alleged conversations with the defendant in error in respect to the cause of the accident, all of which we have looked into and we are of the opinion that while perhaps technical errors did intervene in the admission of testimony offered in the respects mentioned, we do not regard them as prejudicially affecting the interests of the plaintiff in error, and for this reason we hold that they, or either of them, do not constitute ground for reversible error.

The petition in error filed herein sets forth as one of the grounds of error assigned that the court below refused “to give the several charges asked for by the defendant in error.” We have examined said .petition in error with reference to this alleged assignment of error and find no such requests made.

It is urged that the verdict and judgment are against the weight of the evidence, and contrary to law, and that the damages are so excessive as to appear to have been given under passion or prejudice. As before stated, we have read the entire bill of exceptions and have carefully considered such parts of it as relate to the more important features of this case, and in the light of the direction given, to the defendant in error to do this repair work, the circumstances under which it was done, or undertaken to be done, the history of the facts known to or presumed to have been known by the company immediately preceding and at the time of the collision of the cars resulting in injury to the defendant in error, with the case fairly presented to the jury, under proper instructions, as a reviewing court we do not feel justified in disturbing the verdict of the jury upon the ground that the same is not sustained by the evidence, or that the same was clearly against the weight of the evidence and contrary to law.

As to the damages being excessive as if given under the influence of passion and prejudice, in the absence of a showing made that the jury were so influenced, the presumption would be otherwise. True the verdict given was for a substantial sum, but it was the province of the jury to fix upon the compensation to be awarded the defendant in error, if any, under the facts in the ease as shown by the evidence.

In Fisher v. Patterson, 14 th Ohio, 418-427, which was a suit for libel, Judge Read announcing the opinion of the court said:

“In eases where the damages are to be determined by the sound discretion of the jury, in view of all the evidence the court will not interfere to grant a new trial on the ground of excess, unless the damages are so outrageously gross .as to convince the court that the jury must have acted from corruption, or bias or mistake, or some other improper influence, instead of a sound and enlightened judgment.”

In L. S. & M. S. R. R. Co. v. Louisa Schultz, Admrx., 19 Ohio Circuit Court, 639-647, which was a personal injury case, Judge Parker announcing the opinion of the coart, quoting with approval Judge Hammond in Smith v. Pittsburg & Western Ry. Co., said:

“A verdict should not be set aside simply because it is excessive in the mind of the court, but only when the excess is shocking to a sound judgment and a sense of fairness to the defendant. When there is any margin for a reasonable difference of opinion in the matter, the view of the court should yield to the verdict of the jury rather than the contrary. ’ ’

In Walker v. Railway Company, 63 Barbour, 267, which was a personal injury case, the trial judge said:

“The defendant’s counsel, however, contends that the recovery in the action was excessive. In this class of cases no precise rule exists, by which the extent of the recovery can be prescribed; for the compensation to be received is, to .a great extent, to be awarded for pain and suffering which can not be accurately measured by amounts. * * * The law has, accordingly, in this class of eases, committed the determination of the amount of damages to be awarded to the experience and good sense of jurors. And where the verdict rendered by them, may reasonably be presumed to have resulted from an honest and intelligent exercise of judgment upon their part, the policy of the courts is and necessarily must be, not to interfere with their conclusion.”

In the ease before us the evidence showed the defendant in error to be thirty-seven years of age, in good health and receiving fair wages when injured. Upon the whole ease we can not say that the compensation awarded by the jury is unreasonable or excessive and we therefore do not feel justified in disturbing said verdict. We .are. therefore of the opinion that the court of common pleas did not err in overruling the motion for a new trial, and the judgment of said court will therefore be affirmed with costs, but without penally. Exception may be noted.


text:
    DETERMINATION AS TO WHETHER. MONEY WAS RECEIVED AS A GIFT OR AN ADVANCEMENT.
    Court of Appeals for Hamilton County.
    Aaron A. Ferris, Executor, v. James Goodin et al.
    Decided, December 13, 1913.

      Distribution — Gift of Money to a Niece — Held to Have Been an Advancement — Acceptance by an Heir Amounts to a Contract, When —Ademption—-Estoppel.

    Under the evidence and circumstances surrounding the payment .made in this case the court holds that it should be treated, not as a gift, but as an advancement to be charged against the interest of the payee in the estate.

      Aaron A. Ferris, Rufus B. Smith and Bruce & Bruce, for plaintiff.

      John G. Healy, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   This is a proceeding brought by the executor and trustee under the will of Elizabeth Zinn, under Section 10857, General Code, asking the direction and judgment of the court ,as to whether the sum of $2,000 should be treated as a gift to Virginia G. Ellard, a. sister of said deceased, or as an advancement to be charged against her interest in said estate.

The will of said Elizabeth Zinn was made August 10, 1906, and provided for certain legacies and trusts, dividing the residue of the estate into five equal parts, one of which was given to a brother, one to a sister, and the other shares in trust for the benefit of another sister, certain nieces and nephews and other relatives. Mrs. Zinn died February 28, 1908.

It is claimed by the executor and trustee and on behalf of certain legatees and beneficiaries under the will that the share of Mrs. Ellard should be charged with two thousand dollars which was paid by New York draft drawn by the Merchants’ National Bank, dated May 20,1907, and payable to the order of Mrs. Elizabeth Zinn. This draft was procured for Mrs. Zinn by A. A. Ferris, who was then acting as her attorney and managing her business affairs, and it was endorsed by Mrs. Zinn to the order of Virginia G. Ellard, and endorsed by Mrs. Ellard to the order óf Mary E. Hoffman, her daughter, who collected the money thereon.

It appears that this draft was procured by Mr. Ferris and was sent by him with a letter to Mrs. Zinn, dated May 20, 1907, in which' he advised her not to endorse the draft in blank but to make it payable either to Mrs. Ellard or to Mrs. Hoffman as she might prefer. Tn this letter he also transmitted to Mrs. Zinn the form of a note which he explained in the following language:

‘ ‘ Also find enclosed the form of a note which should be signed by Mrs. Ellard, as to money is really advanced for her. It is a matter of business, in the sense of advancing the money at least, and therefore you should have written evidence that the money has been advanced, and a note is the best form in which to have the acknowledgment.”

Mrs. Zinn after receiving this draft from her attorney endorsed it as above stated and delivered it to Mrs. Ellard, requesting her to sign the note. Mrs. Ellard retained the draft but declined to sign the note. Mrs. Zinn on the following day reported to her attorney the refusal of Mrs. Ellard to sign the note and authorized him to stop payment on the draft until some satisfactory acknowledgment was received from Mrs. Ellard of the money so paid.

Under this direction and .authority Mr. Ferris, acting for Mrs. Zinn, stopped payment of the draft and wrote Mrs. Ellard advising her of this fact and enclosed in his letter a blank form of receipt, stating in his letter that “the draft will not be paid until there is some written acknowledgment from you of the receipt of the money,” and saying:

“T enclose herewith .a blank form of receipt. You can, if you please, fill it out yourself giving the form of it, it being only necessary that you should express in some words that you have received the $2,000. "When such receipt is delivered to Mrs. Zinn and she notifies me to that effect I will countermand the order stopping payment on the draft.”

Mrs. Ellard then filled up and returned to Mr. Ferris her receipt in the following words:

“Cincinnati, May 23, 1907.
“Received of my sister Elizabeth Zinn her draft for $2,000, on account of my future interest in her estate.
“ (Signed) "Virginia G. Ellard.”

The attorney after receiving this receipt from Mrs. Ellard advised Mrs. Zinn that he had satisfactory acknowledgment from her, and thereupon under Sirs. Zinn’s authority countermanded the order stopping payment on the draft, and the money w.as paid.

The testimony ivas received on behalf of Mrs. Ellard, subject to the objection and exception of the other side, tending to show a gift by Mrs. Zinn to her niece, Mrs. Hoffman, who was the daughter of Mrs. Ellard, of this two thousand dollars to be used by her in the purchase of a house.

It is a well settled principle of láw that parol evidence ean only be admitted to set aside such an instrument as the receipt made by Mrs. Ellard upon the ground of fraud or mistake. No such claim is made by her here in her pleadings. She seeks only to explain the receipt, or to have it disregarded by the introduction of evidence tending to show that the money was not in any way intended for her but was to be a gift to her daughter. This parol evidence ean not be received to contradict the written instrument. Jackson v, Ely. 57 O. S. 450; Cassilly v. Cassilly, 57 O. S., 582.

Indeed even if this evidence might be considered by the court, we do not feel that it would be sufficient to cause the delivering of the draft to Sirs. Ellard to he construed as an outright gift to Mrs. Hoffman which could in no way affect, the ultimate share of her mother. Especially so when we consider the manner in which the draft was endorsed and the form of the receipt.

The effort of the defense has been to show that the idea of making this payment .a charge upon Mrs. Ellards’ share was one originating solely with Mrs. Zinn’s attorney. But both Mrs. Zinn and Mrs. Ellard were clearly advised o£ it. Mrs. Zinn acted upon her attorney’s advice, and even though she did not herself see the receipt as finally written she was informed of its effect and was satisfied. And Mrs. Ellard, although she refused to sign the note, voluntarily made out and signed the receipt and did not undertake to appeal from Mr. Perris to Mrs. Zinn to have the matter put in what she now claims to be its true character. So having agreed to the transaction as it was carried out, she must now be bound by it.

The general rule as to ademption is that it is wholly a matter of the intention of the testator. Where a legacy is given by a testator to a child or to one to whom he stands in loco parentis, a subsequent payment made to such child or person will raise a presumption of an intention on the part of the testator to adeem the legacy, while such a payment made to a person not in the relation named will not raise such a presumption, but the intention to charge the payment against the legacy must then be proved (40 Cyc., 1915-6, and cases cited).

In the opinion of the court, however, the intention of the parties is conclusively shown by the manner of the payment and the form of the receipt given for it by Mrs. Ellard, so long as that receipt is not set aside..

Under the common law the mere expectancy or chance of succeeding to an estate is held not to be the subject of release or assignment (Needles v. Needles, 7 O. S., 432), but that rule has been relaxed in equity (Rosenthal v. Mayhugh, 33 O. S., 168). And an heir apparent or one who is named as a legatee under the will, who has received a valuable consideration from the ancestor or testator under an agreement by him that same be charged against his future interest in the estate, is 'held to his contract by way of estoppel.

A case directly in poiut is that of Goodson v. Goodson, 12 C.C., (N.S.), 158.

Other cases where such estoppel is held are: Low v. Low, 77 Me., 37; Callicott v. Callicott, 43 Southern Rep., 616 (Miss.) ; Vreeland v. Vreeland, 56 Atl., 1089: Re Garcelon’s Est., 32 L. R. A., 595.

Tn the opinion of the court, therefore, it is the duty of the executor in the distribution of said estate to charge against the share of Mrs. Ellard the sum of two thousand dollars. Decree accordingly.


text:
    LIABILITY FOR EXPLOSION FROM LEAK IN GAS PIPE WITHIN THE CURB LINE.
    Court of Appeals for Columbiana County.
    Marion Cooper v. The Tri State Gas Company.
    Decided, April 8, 1914.

      Gas and Inspection of Gas Pipe — No Continuing Liability on Gas Company to Keep Pipes in Safe Condition Within the Curb Line, When —Pleading—Failure of Notice as to Leah.

    1. A gas company engaged in furnishing natural gas to the inhabitants of a municipality for consumption by means of lines of pipe laid in the streets and to the curbs thereof, where such pipes are connected with pipes conveying such gas over the premises and into the dwelling-houses of consumers thereof, such pipes from the curb into the dwelling-houses having been installed and being now maintained and controlled by such property owners and consumers, the same having been properly inspected before gas was turned in, is not thereafter required to inspect the same, nor is there a continuing liability on the part of such company to see that such piping is kept in safe and proper condition for the transportation of such gas.
    2. In order to constitute a cause of action against a gas company by reason of failure to inspect gas pipes installed, owned, maintained and controlled by a consumer of gas leading from the curb into the dwelling-house of such consumer, where damage to such consumer was caused by leaks in such pipes owing to natural decay or other faulty condition arising after a number of years of use thereof, there must be sufficient facts alleged to show notice to the company of such defective condition, or facts from which an inference of duty to inspect such pipes arises either from contract, custom or franchise.
    W. F. Lones, for plaintiff in error.

      Brookes & Thompson and William, C. O’Neill, contra.
    Norris, J.; Metcalfe, J., and Pollock, J., concur.
   Plaintiff! in error ivas plaintiff below and filed an amended petition in the lower court, to which the defendant demurred on the ground that the petition did not state facts sufficient to constitute a cause of action.

The court sustained the demurrer, and the plaintiff, not desir ing to plead further, entered up a judgment dismissing the case. Error is assigned in this court to sustaining that demurrer.

The petition,.in substance, states:

The defendant is a corporation engaged in the business of supplying natural gas to the citizens of the city of Wellsville and other cities for heating and lighting purposes, and has gas pipes laid in the streets of said city from which gas is supplied to the individual houses by service lines.extending from such pipes in the street to the houses of the inhabitants; that the plaintiff was the owner of a lot or tract of land upon which her dwelling-house was situated in the city of Wellsville, and that the defendant had been supplying her with natural gas for use in such dwelling-house for a number of years; that the gas was conducted from the lines in the street over her land to her house, and her house was about eight feet from the line of the street, she paying for the gas a certain rate per thousand feet; that the defendant maintained and owned such of the pipe line as were constructed in the street up to the curb in front of plaintiff’s property, and the plaintiff installed, maintained and owned the service pipe line leading from the curb to and upon the lot upon which her dwelling was located, and through said lot into her said dwelling-house; that on or about the 17th day of January, 1912, owing either to natural decay or other faulty eondition, said service pipe so installed by plaintiff, began to leak at a point on plaintiff’s said lot, about one foot from ber said dwelling-house, and between the meter and her said dwelling-house, and the gas escaping therefrom percolated through the ground into plaintiff’s dwelling-house, where it exploded and caused the damages complained of.

The plaintiff further says that as far as she knows the defendant had no actual knowledge of the faulty condition of said service pipe or that said gas was escaping from the same; but alleges that it was the duty of said defendant to have inspected said service pipe at the time the sanie was installed on her said premises;- and to have inspected the same from time to time thereafter, and by the exercise of ordinary care in inspecting said service pipe, said defendant would have discovered the faulty condition of the same in time to re-place said service pipe and prevent said explosion. And she says that the defendant negligently and carelessly failed and neglected to so inspect said service pipe on said plaintiff’s said premises at any time, and negligently and carelessly continued to deliver its gas through the same to plaintiff’s said premises; and by reason of the said negligence the gas was permitted to escape through said pipe and caused the damages aforesaid.

It will be observed that there are no facts alleged in this petition from which the duty of the defendant -company to inspect these lines arises. Plaintiff alleges that the company did not inspect, but alleges no facts by way of contract or custom, or other facts from which it- might be said that a duty arose to inspect the service lines in her dwelling-house, or other dwelling-houses in the city of Wellsville. Then the question arises whether, from the situation and from the facts set out in this petition, it can be said that a duty arose on the part of the gas company to inspect the lines in the dwelling-house, and on the private premises of the owners of these lines inside the curb.

We have been cited to a number of cases which we have examined, but there is no reported ease in this state, so far as we have been able to find, or have been referred to upon this question.

The first case uxrnn which counsel for plaintiff in error rely, is the case of Washington Gaslight, Company v. District of Columbia, 161 U. S., 316. The first proposition of the syllabus in that case is as follows:

“It is the duty of a gas company to supervise and keep in repair a gas box which is part of the apparatus of the company, and is placed in a sidewalk to afford means for turning on or off the gas from a house, when it has entire control of the box to the exclusion of the property owner, although the latter is required to pay for the gas box and connection.”

In this case it appears that a deep and dangerous hole was at this place where the gas box was, and that a resident of the District of Columbia fell into this hole through its not being properly guarded or covered, and recovered damages against the city of Washington. Then the city, under its arrangement., the franchise under which the gas company had a right in the. city, brought suit to recover over the amount that had beer/ allowed to the plaintitT in the first case.

Justice White, in slating the opinion, says:

“It was proved on the trial of the case to have been an open gas box placed and maintained in the sidewalk by the gas company for its own use and benefit, and which it was its duty to repair; that this duty had been grossly neglected by allowing the box to remain unrepaired, thus causing the injury for which the city had been held liable. The declaration, moreover, averred notice to the gas company and the fact that adequate opportunity was given it to defend, and the failure of the gas company to act in defense of the suit,” and so on.

Tt seems to us there is a vast difference between that case and the one we have set forth in this petition. The court says in the opinion:

“It. would be unreasonable to infer that Congress when it authorized the use of the streets or sidewalks for the purpose of the gas company’s business, contemplated that the city of Washington or its successor, the District of Columbia, should keep in repair such apparatus, the continued location of which in the sidewalks of the city was permitted, not only as an incident to the right to make and sell gas, but also for the pecuniary benefit of the gas company.”

The next case referred to is the case of Gas Company v. Creighton, 183 Federal, 552, and the point in that is stated in the first proposition of the syllabus in the Circuit Court of Appeals of the Sixth Circuit:

“A gas company, which through its pipes supplies gas to a house and has control of the apparatus for cutting it off, when notified that gas is escaping in the house and informed of injury and danger-to inmates therefrom, owes a duty to the occupants of the house to exercise reasonable diligence in shutting off the gas therefrom, and it is immaterial that the pipes where the leak occurred were owned by the owner of the house.”

And that rule would apply here if the gas company had been notified by the owner of the house of this defective pipe, and that gas was escaping therefrom; but it does not seem to us to touch the question of the duty of the gas company, in the first instance, to inspect it from time to time for the purpose of ascertaining the condition of the pipes without any information from the property owner. Another case cited is that of Schmeer v. Gaslight Company of Syracuse, reported in 42 N. E., 202, by the Court of Appeals of New York. Without taking time to read the syllabus, I read from the opinion of Justice Peekham, on page 203:

' ‘ While this gas remained on the premises of the manufacturer, or while it was being conducted through its own pipes to different parts of the city, there can be no doubt that the company was bound to exercise vigilance to prevent injury to third parties from the dangerous qualities of .the gas. The question is where its responsibility ended. The claim is made on its behalf here that such responsibility had certainly determined before this explosion occurred. It is urged that it had no responsibility for putting the piping into the house, as it was done by third parties under the employment of the owner; that it had no charge of such piping after it was fitted in the building; that the gas was turned on by third parties, without consultation with, or knowledge on the part of, the officers of the company, which simply was accustomed to; and in this case did, permit any one to turn on the gas after plans had been submitted to it, and a meter had been provided by it upon application.”

In this case the other parties put the lines in the building, and without any inspection on the part of the gas company, it turned on its gas and it resulted in an explosion and injury. Then they further say on the question, after holding that under these circumstances it was a question for the jury and the gas company might be liable, speaking of the delivery of the gas:

‘ ‘ In making that delivery it is not an insurer, but is simply bound, in such a case as this, to that degree of care which the nature of the article it deals in, and the consequences to be apprehended from an accident, reasonably call for. Nor do we assume to say that when once the piping, in cases similar to this, has been fairly and properly examined previous to turning on the gas (if such examination by defendant’s servants is called for at all), that thereafter there is a continuing liability on the part of the company to see to it that such piping is kept in proper condition. As the company has no control over the piping, does not put it in, and is not consulted about it, the principle upon which it might be held liable, in cases of this character, at the time of first delivery of gas, if no precaution were taken at all, is simply that it would have the right to refuse to turn on. or permit others to turn on, the gas for the supply of the applicants until properly assured of the condition of the piping in other portions of the building. Having become assured of it and the gas being on, it would not seem that the company ought further to be regarded as liable for the continuous good condition of the piping. Here we may justly say that to impose such a liability upon the defendant would clearly be unreasonable. It would render necessary the examination, at frequent intervals, of all the buildings in the city in which .gas was used. This would be so onerous as to be practically impossible of execution, because of the expense to the company. The law ought not to and does not, exact an unreasonable amount of care from anyone. Under the restrictions, however, as above stated, we think the question < f defendant’s negligence was for the jury.”

There are two other cases that still more firmly affirm the doctrine announced last in this case. I will read a portion of the opinion in the case of State v. Gas Company, 37 Atlantic, 264, Supreme Court of Maryland :

“All the cases agree that, to constitute a good cause of action, there should be stated and proved a right on the part of the plaintiff, and a duty on the part of the defendant in respect to that right, and a breach of that duty by the defendant, whereby the negligence and the injury there must be the relation of cause and effect.”

In this case there are no facts alleged in this petition upon which a duty upon the part of the gas company apparently arise. But it is alleged as a conclusion of law that there was negligence in not inspecting these premises without any facts alleged upon which it might be said such duty was imposed upon the • gas company.

But the case of Smith v. Pawtucket Gas Company reported in the 57 Atlantic, 1078, decided by the Supreme Court of Rhode Island, is still stronger:

“The failure of a gas company, on introducing gas into a dwelling, to inspect pipes therein, which have long been out of use, but which were placed therein by the owner, and over which the company has no control, is not negligence, in the absence of any showing of a duty in such respect from contract, custom or charter. ’ ’

And the court in the opinion say the same thing in stronger language:

“In the absence of any facts upon which .to base an inference of duty, a court can not infer a general obligation to inspect pipes in a private house, which are not under the control of the company, and as to which it has no apparent relation other than the fact that its gas is to be used through pipes placed therein by the owner, as it has suited them to have them.”

We have found no authorities, and none have been cited to us, in conflict with the principle announced in these cases, and none under the facts in this case as set out in this petition where a recovery was permitted against the gas company. It would seem a very onerous duty to impose upon gas companies, with their lines through the streets of a city, that from time to time, without notice, they should be called upon to inspect the service lines in the dwelling-houses and on premises of the parties who take gas from them, but we do think such duty is imposed on the property owner in reference to the use of this substance, owing to its somewhat dangerous quality, to exercise constant vigilance in the use of it to see that their own appliances are in proper condition for the safe use of it. That is the holding, in substance, in the case of Bartlett v. Boston Gas Company, 117 Mass., 533, 539.

We do not think that the amended petition states a cause of action against the gas company. It follows that the judgment of the court of common pleas will be affirmed


text:
    JURISDICTION TO REVIEW A FINAL DECISIÓN OF THE PROBATE COURT.
    Court of Appeals for Cuyahoga County
    The W. M. Southern Realty Company v. A. A. Schmidt et al.
    Decided, March Term, 1914.

      Appeals in ltoad Oases — Abutting Owner Dissatisfied With. Compensation Awarded — Trial Had Before the Probate Court — Appeal to the Common Pleas — Right of a Reviewing Court to Reverse for Error which the Trial Court Could Have Corrected — Evidence as to Sales in the neighborhood.

    The right of the court of common pleas, under the provisions of Section 7093 of the General Code, to review the final decision of the probate court in appeal by claimant for compensation and damages in road cases, is not limited to the right of the probate court to grant a new trial for misconduct of the jury, but the common pleas court, upon petition in error, is required by this section to review the entire proceedings of the probate court and reverse the final decision of that court-for error that occurred in its proceeding which affect tthe substantial rights of the party complaining.

      Howell, Roberts & Duncan, for plaintiff in error.

      Cyrus Locher, Prosecuting Attorney, and F. W. Green. Assistant Prosecuting Attorney, contra.
    Pollock, J.; Metcalfe, J., and Norris, J., concur.
   Proceedings were instituted before the commissioners of Cuyahoga county for the establishment of a public road through the lands of plaintiff in error and others.

The viewers in that proceeding made their report establishing the road, and allowing to plaintiff in error compensation for the land taken and damages for the remainder, and this report was affirmed by the commissioners.

Plaintiff in error being dissatisfied with the compensation allowed it for the land taken and damages given for the remainder appealed to the probate court from the action of the commissioners affirming the report of the viewers as to the compensation and damages allowed him.

Trial was had before the probate court and a jury resulting in a verdict for a less sum- than that allowed by the viewers. A transcript of all the evidence introduced in the trial in the probate court was signed by the probate judge and filed in the ease as a bill of exceptions.

Error was then prosecuted to the court of common pleas of this county, and there the judgment of the probate court was affirmed, and error is prosecuted to this court to reverse the judgment of the court of common pleas and the probate court.

The errors complained of in the trial of the cause in the probate court are—

First, improper rejection of evidence offered by plaintiff in error in the trial of that action.

Second, improper admission of evidence offered by defendants in error in that action.

Third, errors in the charge of the court respecting the evidence so admitted.

These are the errors urged here for a reversal of the judg•ment of the courts below.

Tt is urged by the defendants in error that the court of common pleas had no jurisdiction to review the final decision of the probate court for any of the errors appearing in the record, and - for that reason the petition in error in this court should be dismissed.'

Section 7083 of the O-eneral Code provides for a jury trial to determine the compensation to be paid for the property taken and the damages to the residue, and a return of the verdict by the jury. Upon the return of this verdict the probate court is not authorized to render judgment on the verdict, but the court has no further duties to perform in these proceedings, except to render judgment for costs, make a record of the proceedings and transmit to the county auditor the original papers and the transcript of the proceedings before the court, unless the verdict is attacked for misconduct of the jury; in which event the probate court may set the verdict aside and grant a new trial.

The last sentence of the section of the code just referred to is as -follows:

“A new trial shall not be granted except for misconduct of the jury, nor shall an appeal except by petition in error as hereinafter provided be taken to another court.”

Section 7093, which is a part of this special proceeding, provides for the review of the final decision of the probate court on error, as follows:

“The final decision of the probate court, made under the provisions of this chapter, may be reviewed, upon a petition in error, by the court of common pleas of the proper county, but shall not be reversed for any defect in form if found to be substantially correct.”

It will be observed that a new trial can only be granted by the probate court for misconduct of the jury, and the defendant in error claims that the right granted to the court of common pleas, by the above section, to review and reverse the final decision of the probate court, is limited to the power of the probate court to grant a new trial, and that the common pleas court can only reverse the case upon the grounds of misconduct of the jury, and as no motion for a new trial was filed on that ground in probate court, or no claim made in that court that there was misconduct of the jury, that the common pleas court had no jurisdiction in this action.

The right to prosecute error in any case exists only when conferred by statute. Lafferly v. Shinn, 38 Ohio St., 46-48; Young v. Shallenberger, 53 Ohio St., 291-302.

The Legislature, when it creates the right to review upon- an action in error, can limit or enlarge that right as it deems best.

In the opinion in the case of Canfield v. Brobst, 71 Ohio St., 45, Price, Justice, said:

“The right to prosecute error to a judgment of a court is purely statutory, and if such remedy is not provided by statute, none exists. Moreover, where the statute provides the right of review on error, it may fix such conditions to its- exercise as the Legislature, in its wisdom, may adopt. ’ ’

When the Legislature gave the right of appeal to the probate court from the compensation and damages allowed the landowner in proceedings of the commissioners to establish a public highway, it limited the right to prosecute error from the final decision of the probate court to the provisions made in that special act.

Then we must look to Section 7093 to determine the extent of the right given the common pleas court to review the. final decision of the probate court. That section provides that the final decision of the probate court may be reviewed in the court of common pleas, and the only restriction placed upon its power to review for error occurring in the probate court is that it shall not reverse for any defect in the form of the final decision, if found to be substantially correct.

It is an elementary principle that remedial statutes shall receive a liberal construction. Railroad Company, v. Sullivent, 5 Ohio St., 276-279.

Keeping this principle in mind and looking to this section, we find that it gives full power to review the final decision of the probate court and reverse it for errors which it may find that occurred in the trial, if they substantially affect the rights of the party.

It is true that ttie general policy of the Legislature has been to restrict the right of the reviewing court to reverse for errors that the trial court could have corrected by granting a new trial, but it can not be doubted that the Legislature has power to enlarge the right of the reviewing court to errors other than those which the trial court might have corrected. To limit the right of the common pleas court, under this section, to reverse the final decision of the probate court for error in granting or refusing a new trial, would be limiting the right of revieAv granted by this section beyond the plain meaning of its terms.

For these reasons we think that the' common pleas, court had authority to review the proceedings of the probate court in the admission and review of testimony and, if errors are found which substantially affect the rights of the party, to reverse for such errors.

This brings us to a consideration of the errors claimed to have occurred in the introduction of evidence on the trial of this ease.

The first error complained of is in the court’s permitting W. S. Reed, a witness on behalf of the realty company, upon cross-examination to be asked what he paid for seventeen lots purchased by him, and over the objection and exception of plaintiff in error to give the purchase price of $130; and again in permitting the witness, EE. J. Sheets, on cross-examination to be asked if he knew 'the lots that Reed bought were bought for $325 apiece, and after the introduction of this testimony Mr. Southern, plaintiff in error, was called as a witness and was asked on cross-examination what he sold Lot No. 162 for. This was objected to by the defendant and the objection sustained.

This brings us to a consideration of when the price of specific sales of property can be proven in a trial involving the question of real estate sought to be taken for public purposes.

The question asked Southern was an effort on direct examination to prove the the selling price of another lot in the neighborhood, as tending to establish a basis for determining the value of the property sought to be appropriated. There is some conflict in authorities on this question, but we think the great weight of authoxhty is against the ixitrodxietioxx of this evidence.

But the questions asked the other two witnesses oxi cross-examination were intended to test their knowledge of the value of property, and the value that should be given to them as expert-witnesses. The rule seexns to be almost universal that this can be done. On these questions we call attention to the following authorities: Lewis on Eminent Domain, Section 435; Railway Co. v. Vickory, 26 Pac., 498; Railway Co. v. Stewart, 28 Pac., 1017; 1 Elliott on Evidence, Section 180; Railroad Co. v. Gorsuch, 8 C.C.(N.S.), 297; Railroad Co. v. Weildemnann, 94 Pac., 146; Union Pacific R. R. Co. v. Stanwood, 91 N. W., 191.

There is a further complaint made that ixx the cross-examination of Mr. Sheets, before referred to, the price paid for the Reed lots was misstated. The witness Reed had a short time before testified to the correct price, and the jury would not be deceived to the substantial prejudice of the plaintiff by the error committed in asking the question.

Tt is further complained that the defendant' in error asked on cross-examination the witness if he did not-know of one hundred and forty-four lots in this allotment, including the ones in controversy in this action, had been appraised by appraisers appointed in a proceeding in the court of common pleas at less than $100 a lot; and the question was repeated to a second witness.

Neither of the witnesses seems to have known of this appraisement and the value placed thereon, and there was no evidence of this fact except the question asked by the attorney. The court should not have permitted an answer to this question, and it should not have been asked the second time. But it could not influence the jury so as to affect the plaintiff’s substantial rights, and for this reason it was not prejudicial error. The jury would understand that they must not consider the value introduced in a question of counsel as proof of the value of the property in dispute.

As these are all the errors complained of, the judgment qf the court below is affirmed.


text:
    STATUS OF CAUSE AFTER. REVERSAL OF ORDER REFUSING TO SET ASIDE A DEFAULT JUDGMENT.
    Circuit Court of Cuyahoga County.
    Rose Connors, Executrix, et al v. George Rackle et al.

    Decided, February 5, 1912.

      Trial of Original Action After Reversal by Higher Oourt — Death, of Party After Reversal — Revivor of Original Action Necessary.

    1. Where a judgment of the common pleas court, refusing to vacate a default iud<rrr>pni, affirmed by the circuit court, is reversed by the Supreme Court and the cause is remanded to the common pleas court for further proceedings according to law, it is error for the common pleas court to enter judgment on the mandate of the Supreme Court vacating said default judgment without hearing and determining whether grounds for vacation and a valid defense exist.
    2. lipón death of one of the partios to a judgment after its reversal and remand to the trial court for further proceedings it is error to proceed with’suoh new trial until the original action is revived.

      Henry & McGraw and McGrath & Stern, for plaintiffs in error.

      F. M. Cobb, Skiles, Green & Skiles and R. B. and A. G. Newcomb, contra.
    Niman, J., Winch, J., and Marvin, J., concur.

      Affirmed without opinion, Rackle et al v. Connors. Executrix, et al, 87 Ohio State, 518.

   The action in the court of common pleas, ont of wihich this proceeding in error arises, was brought by the filing of a petition to vacate a certain judgment, rendered as upon default, in another action in said court.

Proceedings were had in the court below which resulted in a finding that the plaintiffs were not entitled to the relief prayed for, and a dismissal of their petition. This court affirmed tbe judgment of the court of common pleas, but the Supreme Court reversed this court and the court of common pleas in Rackle et al v. Connors et al, 84 O. S., 473.

The decision of the Supreme Court embodied in the journal entry is in the following' language:

“This cause came on to be heard upon the transcript of the record of the Circuit Court of Cuyahoga County, and was argued by counsel.’ On consideration whereof, this court being of opinion that in the original action the cause had not, prior to the trial thereof by the court of common pleas, and entry of judgment therein, been especially assigned for trial out of its regular order within the meaning of Section 5134, Revised Statutes, nor assigned for trial to a jury in series, and the trial thereof, by said court was before the action regularly stood for trial; and the com’t being further of the opinion that the plaintiff in error’s contention in the present action is not res adjudicate! because of the overruling of his motion to vacate judgment to bo found at page 86 of the printed record, and marked ‘defendant’s exhibit 3.’
“Tt is further considered aud adjudged that the judgment’of the circuit court be, and the same hereby is, reversed, for error in affirming and not reversing the judgment of the Court of Common Pleas of Cuyahoga County in said case of Rackle et al v. Connors et al.
“And proceeding to render the judgment which the said circuit court should have rendered, it is considered and adjudged that the said judgment of the court of common pleas be, and the same is hereby reversed, and said cause is ordered-remanded to said Court of Common Pleas of Cuyahoga County for further proceedings according to law.”

Upon receipt of the mandate of the Supreme Court, the common pleas court made the following order;

“This cause came on to be heard upon the special mandate and order of the Supreme. Court- of Ohio, entered at the January term, A. D. 1911, of said court, to-wit, on May 9th, 1914, and proceeding to render the judgment which this court should have rendered in this cause, this court finds that-the trial on February 3d, 1908, of cause No. 102,463, on the docket of this court and entitled ‘James IF. Connors v. George Baclde et al,’ was irregular in 1hat it was had before said cause, regularly stood for trial, and that a valid defense to said action has been shown; and it is therefore ordered, adjudged and decreed that the plaintiffs are entitled to the relief prayed for in their petition and that the judgment rendered by this court on February 3d, 1908, in the sum of two thousand five hundred dollars ($2,500) and costs in said cause No. 102,463, be, and the same is hereby suspended and a new trial granted in said cause; and it is further ordered that in said cause No. 102.463 leave be granted to the defendants therein to plead and milite their defense in said cause, and that the trial of said cause proceed in the manner provided by law.”

By this proceeding in error a reversal of the foregoing order of the court of common pleas is sought, and turn grounds are urged in support thereof:

1. That the court determined the issues upon the petition to vacate and subsequent pleadings, without a retrial thereof.

2. That James AAr. Connors, the plaintiff in the original action, and the defendant in the petition to vacate the judgment, died while the proceeding in error was pending in the Supreme Court, and the order complained of was made without having the action revived. Both of these contentions wc'hold to be well founded.

The essence of the order of the Supreme Court, was that the judgment of the court of common pleas he reversed and the cause remanded for further proceedings according to law, and since the judgment reversed consisted of a dismissal of the. petition, the order of the Supreme Court, merely restored the action 1o its status before the judgment of the court of common pleas was entered.

A proceeding to vacate a judgment involves a determination of whether or not the grounds on which the vacation is sought exist and the existence or non-existence of a valid defense to the action. This is true whether the proceeding is by motion or petition. Where the issues are joined upon a petition to vacate a judgment, there must he a trial, both upon the ground for vacating the judgment and the existence of a valid defense to the original action.

These propositions are affirmed by McIlvaine, C. J. in Watson et al v. Paine. 25 O. S., 340, in the following language found on page 344:

^“AVhen a proceeding by petition or by motion to vacaté' or modify a judgment is instituted, under Section 535 or 536, the first thing to be done bjr the court is to try and decide whether or not a ‘ground’ to vacate or modify exists (Section 537.) 'The grounds’ referred to in this section are those enumerated in the nine subdivisions of Section 534. In some eases, the question thus tried and decided, can be determined by inspection of the record; in others, the testimony of witnesses must be heard. But in all cases this question must be tried and decided by the judge or judges. When the evidence of ground to vacate or modify is thus decided, the case is not yet ready for a final judgment of vacation or modification. Before such judgment can be entered, if the petition or motion be filed by the defendant in the original action, it must be adjudged that there is a valid defense to the action • (Section 538). In order that the validity of the defense may be adjudged, an issue or issues should be made up by proper pleadings. If the proceedings to vacate or modify be by motion, the defendant should be required to file his answer to the original petition with leave to the plaintiff to reply. If the proceeding be by petition, in which the matters of defense are set forth in issuable form, it would he sufficient, no doubt. 1o take issue thereon by reply or demurrer When the issue is thus made up. it should be tried as in other cases.”

In support of these principles see also Ralston et al v. Wells. 49 O. S., 298; Follett v. Alexander et al, 58 O. S., 202.

The court below heard no evidence in support of, or against, either of the essential facts necessary to secure a vacation of judgment. The journal entry shows that the cause came on to be heard, not on the evidence, but on the special mandate and order of the Supreme Court. This is a sufficient answer to the suggestion of counsel for defendants in error that this court is not at liberty to go into the question as to what evidence was presented in the court of common pleas, and that it is always presumed that the court when it makes a finding had before it proof of facts necessary to sustain its finding, and upon which the judgment was rendered.

In our opinion the court of common pleas was in error in making its order without a trial or hearing and on the strength of the mandate of the Supreme Court.

The second ground of error complained of is supported by the expression of the court in Williams v. Englebrecht, 38 O. S., 96, where it is said on page 97:

“Notwithstanding the death of the plaintiff in error after the assignment of errors and before final judgment, the judgment of reversal is valid and effective. By relation, the judgment of reversal takes effect as of the date of the commencement of the proceedings in error.

“True, the original action must be revived before a new trial can be had in the court below; but such revivor may be had in the court to which the cause has been remanded for a new trial. See Block v. Hill, 29 O. S., 86; and Foreman v. Haag, 37 O. S., 143.”

It is urged by the defendants in error that the order the reversal of- which is sought in this proceeding, is not a final order.

We think this contention is refuted by Braden v. Hoffaman, 46 O. S., 639, where it was held:

“An order of the court of common pleas, made on motion of the defendant, and vacating a, default judgment entered at a previous term for irregularity in obtaining the same, is an order affecting a substantial right made upon summary application after judgment, and may be reviewed, vacated, or modified for errors appearing on the record.”

The judgment of 1he court of common pleas is reversed and ,the cause remanded for further proceedings according to law.