text:
    DETERMINATION AS TO WHETHER. A CONVEYANCE WAS FRAUDULENT.
    Circuit Court of Cuyahoga County.
    Elizabeth Weeks v. Frank O. Spencer et al.
    Decided, May 27, 1913.

      Fraudulent Conveyance — Action to Set Aside — Laws of State Where Transaction Occurs, Govern.

    1. A fraudulent conveyance made with intent to hinder, delay and defraud creditors, will not be set aside under Section 67-e, of the National Bankruptcy Act, unless made within four months next preceding the filing of a petition, in bankruptcy, nor under Section 6343 of the Revised Statutes of Ohio, unless the person to whom the conveyance was made knew at the time of the transaction .of the fraudulent intent on the part of the debtor.
    2. Where a husband citizen of Ohio becomes indebted to his wife in the United States and in payment of that indebtedness delivers to her in Italy a conveyance of his interest in a trust estate held in the state of Ohio, the transaction is governed by the laws of Ohio and not by the laws of Italy.

      H. J. Doolittle and C. B. Bissell, for plaintiff.

      White, Johnson & Cannon, contra.

      Marvin, J.; Winch, J., and Niman, J., concur.
   This suit was originally brought by Elizabeth Weeks to have set aside an assignment or transfer of property made by Frank O. Spencer to his wife, Margaret T. Spencer. This transfer or assignment was made on the 10th day of June, 1908, at a time when Frank O. Spencer was insolvent.

On the 16th day of August, 1910, Frank O. Spencer filed a voluntary petition in bankruptcy in the District Court of the United States for the Northern District of Ohio, and in that proceeding he was adjudged a bankrupt, and Clarence R. Bissel was appointed trustee of his estate in bankruptcy, and thereupon he was substituted for the plaintiff in the action brought by Mrs. Weeks. This was doné in pursuance of Section 70e of the Bankrupt Act, which provides that the trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have avoided, and may recover any property so transferred, or its value, from the person to whom it was transferred, unless he was a Iona fide holder for value prior to the date of the adjudication.

It may be said here that the original plaintiff, Elizabeth Weeks, proved up'the claim which she held against Spencer in the bankruptcy proceedings, and the same was allowed. She made no claim for a lien in making her proof in the bankruptcy court,

The bankrupt act provides, in Section 87e, as follows:

“All conveyances, transfers, assignments or encumbrances made or given by a person adjudged a bankrupt under the provisions of this act, subsequent to the passage of this act and within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay and defraud creditors, or any of tliem, shall be null and void as against the creditors of such debtor, except as to purchasers in good faith and for a present, fair consideration.”

A further provision in the same section on the same subject fixes the time as within four months next preceding the filing of the petition in bankruptcy as being the period for determination that such transfers are null and void.

Since this assignment was made much more than four months prior to the proceedings in bankruptcy, it is clear that if the transfer can be set aside, it must be done because of the provisions of the statutes of the state of Ohio.

The statute in force at the time of the alleged transfer by Spencer to his wife, was Section 6343 of the Revised Statutes, which reads:

“Every sale, conveyance, transfer, mortgage or assignment, made in trust or otherwise, by a debtor or debtors, and every judgment suffered by him or them against himself or themselves in contemplation of insolvency, and with the design to prefer one or more creditors to the exclusion in whole or in part of others, and every sale, transfer, conveyance, mortgage or assignment, made or judgment procured by him or them to be rendered in any manner with intent to hinder, delay or defraud creditors, shall be declared void as to creditors of such debtor or debtors at the suit of any creditor or creditors. Provided, however, that the provisions of this section shall not apply unless the person or persons to whom such sale, conveyance, transfer or mortgage or assignment be made knew of such fraudulent intent on the part of the debtor or debtors.”

This last clause appears first in the amendment of the section passed on the 30th of April, 1908, found in 99 O. L., 241.

The same proposition, however, had already been held in a construction of the statute prior to this amendment, in Babilya v. Priddy, 68 O. S., 373, in which the court sustained a purchase made in good faith and for fair value from an insolvent debtor, and in speaking of such sale used this language :

‘‘ Such transfer must be held valid as to such purchaser, even though the seller may have made the sale in contemplation of insolvency or with the design to prefer one or more creditors to the exclusion of others, or with the intent to hinder, delay or defraud his creditors, even though a deed of assignment made by such debtor was filed therein ninety days after such sale.”

And in the case of Lytle v. Baldinger, 84 O. S., 1, the first clause of the syllabus reads:

“A petition to set aside a fraudulent sale or transfer made in violation of the provisions of Section 6343, Revised Statutes, which does not aver that the person to whom the sale, conveyance, transfer,, mortgage or assignment is made, knew at the time of the transaction of the fraudulent intent on the part of the debtor, does not state facts facts sufficient to constitute a cause of action.”

So that, unless it be found that Spencer made-this transfer to his wife with the design to prefer one or more creditors to the exclusion in whole or in part of others, or that it was a transfer made by him with intent to hinder, delay or defraud creditors and that the transferee knew these facts at the time, the transfer must be found to be good and the claim of the trustee denied. And this brings us to a consideration of the facts for the purpurpose of determining whether they bring the transfer or assignment of Spencer to his wife within the provisions of the statute.

The property which it is charged was fraudulently transferred by Spencer to his wife consisted of such rights as he had .under the will of Phineas. M. Spencer, deceased, which was "duly admitted to probate in this county, and -which provides among other things, that after the payment of-certain bequest's made .in the will, ‘ ‘ all the rest and residue of my property and estate, of every kind and description, I give and bequeath. as follows: The remaining one-fourth to my executor or trustee, to be held in trust during the life of Charlotte M. Spencer, the widow of my late brother A. K. Spencer, and the income during such period to be paid to her semi-annually or oftener, and upon her death, one-half of the principal of such fund so held in trust during her life, shall be paid or delivered to Florence Murphy, if living, or if deceased, to her next of kin under such statutes, and the remaining one-half thereof shall be held in ■ trust by my trustee during the joint lives of my nephew, Frank, and his wife, Margaret, and the life of the survivor of them. During their joint lives the income from the fund shall' be paid for their joint maintenance while and so long as they live together as husband and wife, and accumulated during any period during which they shall not live together. During the lifetime of the survivor, the income shall be paid to such survivor, and .on. the death, of such survivor, if their .son, Frederick .Albert Spencer, be then of age and a resident and citizen of the United States of America, such fund and its accumulations shall thereupon be transferred to him, and if he be a minor the income thereof may, during the period of his minority be, at the discretion of my trustee, applied to his proper maintenance and education with a view of his becoming such citizen, and thereupon, upon his arriving at age, the principal and any accumulations .thereon shall be paid to him on the condition of his then becoming a resident and citizen of the United States.”

It will be seen that the portion of the estate of the testator in which Prank O. Spencer had any interest (for the Prank Spencer mentioned in the will is the defendant P. O. Spencer in this action, and his wife Margaret mentioned in said will is the Margaret T. Spencer, defendant in this action) was one-half of the one-fourth residuum of the estate of which his mother, during her lifetime, was to receive the entire income. At her death this one-half of one-fourth was to be held in trust by the trustee. The trustee which actually had this money in trust Was the Citizens.Savings & Trust Company.

At the time of this transfer, the mother of Prank O. Spencer, who was to have the income of this property during her life, was still living, so that no part of the income was yet payable, to either Prank or his wife. Not only so, but for a considerable time prior to such assignment Prank O. Spencer and his wife had been living apart. They have a son who was living at the time of this transfer, and who is still living, being the Frederick Albert Spencer named in the will.

The amount of property, the income of which it is provided in the will shall go to Prank and his wife while they are living together and to the survivor if one of them should die, is about $34,000.

At the time of the marriage of Prank O. Spencer and his wife, she received from her mother about $924.50 which she put into the hands of her husband to be deposited for her. He failed to make the deposit and had never paid it back before the time of this assignment or transfer. This certainly constituted a good and valuable consideration for the transfer by him to her of some property in payment of that debt. The value of his interest in the bequest was very uncertain; it depended, among other things, on the length of time which his mother should live; it depended in a measure upon whether he should outlive his wife; it depended, during their joint lives after the death of his mother, upon the length of time they should live together. They had separated and lived apart for a considerable time before this transfer was made, and whoever purchased his rights under that will would be- purchasing that which is sometimes not inaptly spoken of as a “pig in a poke.” It was a purchase of something which might never bring any return, and which, if it did bring any return, depended on so many things that nobody could say what it was worth. He made out the assignment on the 10th day of June, 1908, here in Ohio, and immediately deposited it with the Citizens Savings & Trust Company, the trustee under his uncle’s will. He then went to Italy where his wife was, taking a duplicate of this transfer and delivering it to her in Italy. She accepted it and expressed herself as satisfied. The assignment itself expresses that it is in payment and full settlement of the claim which Margaret had against him for this $924.50, together with interest from the time it was taken by him, to-wit, May 4, 1904.

Attention has already been called to some of the elements of uncertainty as to the value of this interest of Prank O. Spencer thus assigned. There is a further uncertainty, to-wit, a fractional part of any income to which Prank might be entitled, that might be received from this money while in the hands of the trustee after the death of Prank’s mother. The will provided for its being paid to Prank and his wife for their joint support. Whether this would entitle each of them to one-half while they were living together, we do not undertake to say, but regard it as a matter of grave doubt, and as therefore affecting the value of any interest which Prank might have in such income which at the time of this transfer to his wife, he could have transferred to anybody.

The evidence fails to show that Margaret T. Spencer had any knowledge or intimation or suspicion that Prank was making this transfer to her for the purpose of hindering, delaying or defrauding any creditors. The amount of her claims as compared with the very uncertain value of Frank’s interest under this will of his uncle, we think is sufficient, in the absence of evidence showing knowledge on her part of some fraudulent intent, to sustain the transfer made to her.

It is said, however, that this transfer to her was a contract made in Italy, and that it must be governed by the laws of Italy at the time the contract was delivered to her, and evidence is introduced of certain provisions of the law of that country. Without stopping to read these provisions, the effect of them apparently is that under the law of Italy, a wife can not alienate or dispose of her dowery without authorization of a proper judicial tribunal. Even if it be held that this contract or assignment of Frank to his wife is to be governed by the laws of Italy, we find nothing that would prohibit the wife from accepting payment of an indebtedness to her. which indebtedness accrued in a foreign country, though the payment should be made in Italy. By this contract Mrs. Spencer was not disposing of any dowery which she had. The money which she had furnished to her husband was given to her, it is said, as dowery by her mother in Austria, where the marriage between these people took place, and that dowry, the money she had long before the time of this contract in Italy, had been taken by her husband; she did not have it.

. Under the facts hereinbefore recited, her husband, by reason of having used this money which had come to her as dowery, became indebted to her in America; that debt was still subsisting, and she accepted this transfer in payment of that indebtedness, and to hold that, therefore, the contract was invalid would be to hold that a contract made between citizens of the United States of America paid in some foreign country, while they were abroad, and completely executed, did not bind the parties because, if the contract by which the indebtedness was created had been made in Italy, it would not have been enforeible. We do not, therefore, regard it as essential for the disposition of this ease, to determine whether the laws of Italy in relation to dowery would affect a contract made by the citizens of the United Sates between themselves Avhile they were temporarily in Italy, would be valid or invalid. Under the laAA's of the United States where the contract by which Frank became indebted to his wife because of his use of this money, which is the implied contract that where money is put into his hands, to be used for the party so putting the money into his hands, and it is used for another purpose, the party thus using the money is obligated to pay it back, and it was simply the settlement of that American contract which was made in Italy. If the completion of the contract by delivery of the writing of transfer to Margaret Avas the time when the contract became effective, still it was simply an agreement to release a claim on which, under an American contract, implied it is true, but still a contract, Frank became indebted to his wife.

We have not discussed the question of the right of the trustee here to enforce any lien which, by possibility, it might be claimed Mrs. Weeks had on any interest of Frank under this will, because, as we understand the law, when Mrs. Weeks proved up her claim in bankruptcy and had it allowed, she released any lien. If she had any before that time, and it may well be doubted, the trustee in bankruptcy having only the rights in this action which Mrs. Weeks would have had, had the case continued in her name without the intervention of any bankruptcy proceedings. Whether he coaid have maintained the action even if the transfer had been known by Mrs. Spencer to have been in violation of the rights of other creditors, we have not regarded as essential to the disposition of this case to determine.

We therefore reach the conclusion that the trustee in bankruptcy has no rights of Frank O. Spencer in any income or property growing out of this will of Phineas M. Spencer, deceased, and that all the rights Avhich Frank otherwise would have under said Avill are now the property of Margaret T. Spencer, and a decree will be entered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    PROOF REQUIRED AS TO RELEASE OF EQUITY.
    Circuit Court of Cuyahoga County.
    Henry Lancken v. William G. Platt.
    Decided, June 3, 1912.

      Trustee — Release to, hy Cestui — Evidence Must he Clear and Convincing.

    When one holds property as trustee for another and claims that such other has released his equity therein upon sufficient consideration, the evidence of such release must he clear and convincing.

      Dissette, Dissette, Dissette & Reynolds, for plaintiff.

      C. F. Taplin and White, Johnson & Cannon, contra.
    Niman, J.; Marvin, J., concurs; Winch, J., not sitting.
   In March, 1903, the original plaintiff, Henry Lancken, was the owner of a tract of land located in Brooklyn township, Cuyahoga county, Ohio, consisting of about twenty-five acres. He was also the owner of another parcel of real estate on Franklin avenue, in the city of Cleveland. The twenty-five acre tract was incumbered by a mortgage to John C. and Lonisa M. Pflug, to secure the payment of $3,500. The Franklin avenue property was covered by mortgages aggregating $4,250. A Mrs. Humphries owned property on Birch street in the city of Cleveland, About this time contracts were entered into between Lancken and Mrs. Humphries and Lancken and the Pflugs, whereby Lancken was to reduce the incumbrance on the Franklin avenue property to $1,250 and convey the same, subject to such incumbrance, to the Pflugs in satisfaction of their mortgage against the twenty-five acre tract and in satisfaction of certain other claims held by them against Lancken, while the farm, or twenty-five acre tract, with a mortgage for $3.500 to be placed against it, was to be exchanged by Lancken for the Birch street property of Mrs. Humphries subject to a mortgage of $3,500.

To facilitate this deal and apparently to enable a loan to be negotiated, Henry Lancken conveyed the twenty-five acre parcel to the defendant, William G. Platt, having first executed a mortgage against it to Florence II. Easterman, an employee of the defendant, to secure a note for $3,450. At the same time the Franklin avenue property was conveyed to the Pflugs. The trade with Mrs. Humphries was never consummated.

The, deed to the twenty-five acre tract was placed on record and the title to this property is still in the defendant, who claims to be the absolute owner thereof.

This action was brought by Laneken to have said twenty-five acre tract decreed to be his property and to secure a reconveyance thereof to himself. An accounting of the rents and profits of the land and the money secured by mortgage thereon, and the cancellation of the Easterman mortgage are also sought.

After the suit was begun J. C. Logue, trustee in bankruptcy for Henry Laneken, was substituted as plaintiff, and the action is now prosecuted by him.

It is conceded that the defendant took title to the property in controversy as the agent or trustee of Laneken for the special purpose of negotiating the Easterman note and mortgage, and effecting the exchange of properties with Mrs. Humphries, and discharging the mortgage of the Pflugs. The Humphries deal was never carried out, and the defendant continues to hold the title to the property.

It is the defendant’s claim that about June 1, 1903, having been unable to negotiate the mortgage on the farm property, he made an agreement with Laneken whereby Laneken and his wife, in consideration of the surrender of a certain cognovit note for $367.50 and the cancellation of certain other items of indebtedness, executed a release in writing of all their equity in said property. The decision of this case rests upon the determination of the question whether such a release was in fact executed. The evidence on this subject is clouded with uncertainty. The release itself is not produced. The defendant and Miss Easterman testify that such a release was executed, but that in some way it has been lost. Its contents are testified to in general terms, but rather according to what is supposed to be the legal effect of the document than to its language..

Lancken and his wife both deny absolutely that such a release was ever executed.

The burden of proving that the release was executed as claimed rests upon the defendant. The property having been held by him in trust, he must establish by proof of the required degree, the act on the part of the cestui que trust, relied upon as as a relinquishment of his estate. This proof should be clear and convincing.

The defendant, in our opinion, has not sustained the burden of establishing his claim that Lancken and his wife released their interests in the property in controversy.

The fact that Lancken did not list among his assets in the bankruptcy proceedings the interest in his property, afterward asserted by him, and the fact that he neglected to start this action until more than four years after the land was deeded to the defendant, are urged as showing that he did not consider that he had any interest therein.

Lancken explains his course in this respect by testifying that he was advised by the attorney that represented him in the bankruptcy proceedings that he could not list this property as-an asset, and that he supposed that the bankruptcy proceedings had put an end to his interest in said property, until-he was requested to execute a. quit-claim deed to another parcel of land adjoining that involved in this action.

Whatever may have been Lancken’s conduct with reference to this property, it does not supply the proof lacking to establish the defendant’s claim of absolute ownership of the twenty-five acre tract of land.

According to this view of the case it follows, of course, that the defendant must account to the plaintiff, the trustee in bankruptcy, for the rents and profits of the farm and the other moneys received by him as the agent of-Henry Lancken. He should be charged with the rents actually received, and with such other sums as came into his hands in the course of his agency, and credited with his disbursements.

. The defendant can not, however, be allowed anything on account of the cognovit note for $367.50 which is claimed to have furnished part of the consideration for the execution of the alleged release. That note was surrendered to Lancken as paid, and since we find under the evidence that no such release has been shown to have been executed, it necessarily results that this note must have been paid in some other manner, probably by the transaction relating to the Quincy avenue property, one of the matters dealt with by the evidence.

According to the figures in evidence, such an accounting shows a balance of $2.39 due the plaintiff..

On the subject of compensation it is urged on behalf of the defendant, that in ease it should be held that he has not so established the release in dispute as to be entitled to retain the property, he should be adequately compensated for his services in connection therewith.

On the plaintiff’s part it is contended that the defendant being in the position of trustee, and having denied the trust, is not entitled to compensation.

The defendant undoubtedly performed services of considerable value in preserving this property from sale under foreclosure proceedings. At the time the property was deeded to him it was incumbered to practically its full value. While there is no evidence before us as to its present value, it may fairly be assumed from the efforts put forth on both sides of this action to obtain the' property, that it has so increased in value that a considerable equity in it now exists.

The services .rendered by the defendant dealt, also, with' other property and other liens than are involved here, and a considerable part of said services were rendered before any dispute as to the ownership of the land arose.

Under all the circumstances of the case considering the doubt and uncertainty with which many features of this case are surrounded, and considering also the undoubted benefit which has resulted from the defendant’s services, we allow him as compensation the sum of $325, which will be made a charge against said premises subject to the valid and existing liens thereon.

The notes of Henry Lancken and Mary Lancken to the Pflugs, and the mortgage securing the same, should be canceled and surrendered by the defendant, as should also the note and mortgage to P. M. Easterman for $3,450.

A decree for the plaintiff will be entered, and a journal entry may be prepared in accordance with the findings herein indicated.


text:
    RIGHTS OF A PENSIONED FIREMAN.
    Circuit Court of Cuyahoga County.
    The State of Ohio, ex rel Joseph Rothgery, v. The Board of Trustees of the Firemen’s Pension Fund of the City of Cleveland.
    Decided, June 3, 1912.

      Firemens’ Pension Fund — Pensioned Fireman Gan Not be Discharged for Offense Before Retirement.

      A fireman who has been retired and regularly put upon the pension - roll in accordance with the laws of the state and the regulations of the trustees of the firemens’ pension fund, can not thereafter be discharged from the fire department for violating one of its rules before his retirement, and his.pension be reduced.

      Geier, Farrell & Edwards, for plaintiff in error.

      E. K. Wilcox, contra.
    Neman, J.; Marvin, J., concurs; Winch, J., not sitting.
   This is an action brought in this court by the relator to secure a writ of mandamus, to compel the Board of Trustees of the Firemen’s Pension Fund of the City of Cleveland to authorize the payment to him of the sum of $2,895, with interest, claimed to have been unlawfully withheld from him from June 1st, 1906, to April 1st, 1912, and to authorize the payment to him from the 1st day of April, 1912, of a pension in the amount which he claims to be entitled to recover.

The Board of Trustees of the Firemen’s Pension Fund of the city of Cleveland exists under and by virtue of an enactment of the state Legislature, which is now found in the General Code from Section 4615. By Section 4600 it is provided:.

“In any municipal corporation, having a fire department sup ported in whole or in part at public expense, the council by ordinance may declare the necessity for the establishment and maintenance of a firemen’s pension fund. There a board of trustees, who shall he known as ‘trustees of the firemen’s pension fund,’ shall be created, which shall consist of the director of public safety, and, in villages, of the fire chief and five other persons, members of such department. But upon petition of a majority of the members of the fire department, such director or fire chief may designate a less number than five to be elected trustees.”

By various other sections provision is made for the creation of a pension fund, and Section 4612 proceeds:

“Such trustees shall make all rules and regulations for the distribution of the fund, including the qualifications of those to whom any portion of it shall be paid and the account thereof, but no rules or regulations shall be in force until approved by the director of public safety or the fire chief as the case may be.”

Under the authority conferred by the section last quoted, the Board of Trustees of the Firemen’s Pension Fund of the City of Cleveland adopted certain rules and by-laws, a part of Section 3, which is as follows:

“Any member-of such fire department who has been in the service of said paid fire department thirty years, the last twelve years consecutively, may, upon making written application to the person or persons in charge of the fire service of such city, retire at his own option without medical examination, and the board of trustees shall authorize the payment to such member, so retired, monthly from the pension fund, of a sum equal to eleven-sixteenths of his salary at the time of retirement.”

The relator became a member of the paid fire department of the city of Cleveland on the 11th day of October, 1871, and served continuously for more than thirty-three years. On April 21st, 1905, he availed himself of the rule quoted and asked to be relieved from active duty and to have his name placed on the firemen’s pension roll. On June 1, 1905, due action having been taken, his name was placed upon the pension roll, and under the rule he received a pension monthly equal to eleven-sixteenths of his salary.

Subsequently, however, he was discharged from the fire department for violating one of the rules of the department before his retirement. The board of trustees of the pension fund took such action that his name was placed upon the pension roll at a rate equal to six-sixteenths of his salary per month from the time of his discharge on February 10, 1906, instead of eleven-sixteenths which he had received up to that time.

In taking this action the board claims to be sustained by that part of Section 3 of the rules and by-laws which provides:

“That any member who may be discharged from' the fire department after having served not less than eighteen consecutive years, shall be placed on the pension roll at six-sixteenths of his salary at the time of his discharge, provided such discharge is for any other offense than dishonesty, intoxication or a criminal act.”

We are, therefore, required to determine whether the Board of Trustees of the Firemen’s Pension Fund had power to change the status of the relator as a beneficiary under the pension fund, after he had retired at his own option, and after his name had been placed upon the pension roll -at the rate provided for one in his class.

Reference to the rule under which the relator retired, and had his name placed upon the roll at a rate equal to eleven-sixteenths of his salary, discloses a requirement that “the member so retired without special disability shall always receive the same amount of pension as when retired.”

If this part of the rule be given effect according to its clear terms, the rights of the relator were fixed when his name first went upon the pension roll.

In the absence of this requirement of the rule, we think that when the relator retired under the rules, and the payment of his pension was authorized and his name placed upon the pension roll, all questions affecting his status were determined, and the subsequent act of the Board of Trustees, based upon his discharge after retirement, was without authority, and could not affect his status as already fixed.

In People, ex rel Fitzpatrick, v. Greene, 181 N. Y., 308, a question similar to that presented here was involved and it was there held, quoting from the syllabus;

“Whatever may be the nature or form of the charges which will prevent the retirement on a pension of a member of the police force of the city of New York, who is a veteran, has served twenty years and has made application therefor under Section 3555 of the charter (L. 1901, ch. 466) providing that he must be relieved if ‘there are no charges against him pending,’ an anonymous communication, containing no statement of an act, default or neglect upon his part which would constitute a breach of duty, although certain statements were made therein which by argument or inference might reflect upon him as a public officer, in the possession of the commissioner two weeks before the application for retirement was fixed and upon which no charges were formulated, can not be regarded as a charge ‘pending’; and the subsequent formulation of charges, his trial thereon and removal, can not affect his status as a retired member of the force.”

All the facts necessary to entitle the relator to retire at his own option, without medical examination, were present. Upon his exercise of the option given him, the mandatory language of the rule required the board of pension trustees to authorize the paymént to him monthly from the pension fund of a sum equal to eleven-sixteenths of his salary at the time of retirement, ‘ ‘ and he shall always receive the same amount of pension as when retired.”

There are sufficient funds to the credit of the pension fund to pay the relator the pension he Is entitled to receive at the rate of eleven-sixteenths of his salary per month.

The powers and duties of the board of trustees of the pension fund with respect to the payment of the pension, to which the relator is now entitled, are purely ministerial. There is nothing calling for the exercise of discretion, or judgment upon the propriety of the thing to be done.

The writ of mandamus may issue as prayed for by the relator.


text:
    CONVERSION OF PERSONAL PROPERTY.
    Court of Appeals for Guernsey County.
    Gillespie & McCulley v. James Holland and Susan Holland.
    Decided, April Term, 1914.

      Wrongful Possession or Dominion — Gives Right of Action for Conversion — Application of the Statute of Limitations.

    1. It is not necessary for the party tailing wrongful possession of personal property of another to assert absolute ownership of the property in order to give the owner, who is entitled to the immediate possession, the right to an action for conversion, but any' unauthorized act which deprives the owner of the possession of his property, or the exercise of any dominion over the property inconsistent with his possession, is sufficient.
    2. The statute of limitations begins to run at the time the right of action accrued, and an action for the conversion of personal property is barred within four years after that time.

      R. T. Scott, for plaintiffs.

      Rosemond, Bell & Dugan, contra.
    Pollock, J.; Metcalfe, J., and Norris, J., concur.
   The defendants in error brought an action in the court of common pleas of this county, in which they alleged that on or about the — day of October, 1908, the plaintiffs in error wrongfully converted to their own use certain articles of household furniture owned by the defendants in error.

The answer of the defendants below contained two defenses, but it is now only necessary to refer to the second defense, which was a plea of the statute of limitations, alleging that the cause of action did not accrue within four years prior to the bringing of the action.

The ease went to trial to a court and jury, resulting in a verdict and judgment in favor of the plaintiffs below, and to reverse that judgment this action is prosecuted.

The plaintiffs below had been residents of the city of Cambridge, and the defendants were engaged in the furniture business in that city. While the plaintiffs below were living in that city they purchased from defendants below some articles of furniture and failed to pay the entire purchase price, leaving unpaid $25.85. Sometime after the purchase of this furniture plaintiffs below stored this and other furniture which thej owned, in a room in the city, and moved to the state of Illinois. After plaintiffs below left the city the defendants below took this furniture from the room where plaintiffs had stored it, into their own possession and placed it in their store-room. They had no lien on any of the furniture but only an account against plaintiffs below for the amount referred to above.

On January 22d, 1907, after defendants below had taken possession of the furniture, they wrote to plaintiffs below stating that they had taken possession of their furniture, and that there was a balance due them of $25.85, and one dollar storage, and that they were willing to sell sufficient of these goods to pay their claim, and to send plaintiffs below the balance of the goods.

After this the defendants below wrote plaintiffs below a number of letters saying that they would sell the furniture, and apply the amount received therefor to the payment of their claim, unless plaintiffs below paid the claim. The last letter was written on May 5th, 1908, saying that if plaintiffs below did not promptly comply with this request that defendants below would take judgment and sell this property. In all these letters defendants below say that the furniture is the property of plaintiffs below, but they always asserted their intention to hold this property until the debt which plaintiffs below owed them was paid, and if their demand was not complied with they would sell the property. Plaintiffs below gave defendants below no right to take the property from the room in which it was stored to their store-room. The defendants below retained possession of this furniture until some time after July 12th, 1908, and then sold it.

At the close of the testimony the defendants below requested the court to give the jury in charge the following:

“If you find that the defendants took unlawful possession of the personal property in the petition described, then the court says to you that the cause of action m favor of tflie plaintiffs accrued at the time of the taking, if plaintiffs then knew of the same, but if they did not know, then as soon as they discovered that the goods had been taken, and the party who had taken them. ’ ’

This was refused by the court and exceptions noted. In the general charge the court said in substance that if defendants were holding these goods as goods of plaintiffs, then a cause of action would not accrue until after defendants sold such goods, and if that were after July 12th, 1908, then the statute of limitations would not have run against the action, the petition having been filed July 12th, 1912.

The only question to be determined by this court in this action is whether the cause of action accrued at the time defendants below took the furniture from the room in which it had been stored by plaintiffs below into their possession, and removed it to their store-room, or at the time defendants sold this furniture.

The right to an action of conversion of personal property depends upon the wrongful possession by one party of the property of another. It is the wrongful taking of the property that gives the right of action to the owner of the property against a wrongdoer. The mere fact that the wrong-doer says, “I have taken possession of your property,” does not relieve him from the action of conversion when he has wrongfully taken possession of the property and is asserting the right to retain that possession until some demands of his are complied with. It is not necessary for the party taking wrongful possession of property to assert absolute ownership of the property in order to give the owner of the property the right to an action for conversion. If the owner, entitled to the immediate possession of his property, has been deprived of that possession by the unauthorized act of another, or by the exercise of dominion over the property inconsistent with the right of possession of the owner, it is a conversion of the property.

“Any distinct act of dominion wrongfully exerted over one’s property in denial of his right, or inconsistent with it, is a conversion. ‘The action or trover being founded on a conjoint right of property and possession, any act of the defendant which negatives or is inconsistent with such right, amounts, in law, to a.conversion. It is not necessary to a conversion that there •should be a manual taking of the thing in question by the defendant; it is not necessary that it should be shown that he has applied it to his own use. Does he exercise a dominion over it in exclusion or in defiance of the plaintiff’s right? If he does, that is in law a conversion, be it for his own or another person’s use.’ While, therefore, it is a conversion where one takes the plaintiff’s property and. sells or otherwise disposes of it, it is equally a conversion if he takes it for a temporary purpose only, if in disregard of the plaintiff’s right.” Cooley on Torts, starred page 448.

Of the numerous cases sustaining the principle referred to above we will only cite the following: Bristol v. Burt, 7 Johnson, 254 (5 Amer. Dec., 264); Thorp v. Robinson, 68 Vt., 53 (33 Atl., 396-7) ; Trustees of University v. Bank, 97 N. C., 280 (3 N. E. 359-361); Omaha, etc., Co. v. Tabor, 21 Pac., 925-930.

The defendants below took possession of these goods and removed them to their store-room prior to July 22d, 1907. They did this without the permission of the plaintiffs below. This act was a wrongful taking possession of these goods. It is true that they acknowledged the furniture to be the property of the plaintiffs, but they claimed the right to retain that possession until their account against the plaintiffs below was satisfied, and if not paid by plaintiffs below they claimed the right to sell this property, or sufficient of it, to pay their claim, and afterwards did sell the property.

It is claimed on the part of the plaintiffs in error that the right to an action of conversion did not accrue until the disposal of the property by them. The sale of this property by the defendants below did not affect the title of the plaintiffs below in the property in any way/. They had title to the property at the time that it was wrongfully taken, and that title continued after the sale of the property, until they brought the action to recover damages for the wrongful conversion.

The defendants below had no right to take possession of the property, and they had no right to sell it after taking possession; but the act of the defendants below in selling the property did not. in any way change ihe right of the owners'to take possessiou of the property, or if they saw fit,- to recover damages for its wrongful conversion.

“An action for either of the following causes shall be barred within four years after the cause thereof accrued — for the recovery of personal property, or for taking, detaining or injuring.” General Code, Section 11224.
“The statute of limitations begins to run from the time the plaintiff’s cause of action accrues, unless some recognized exception postpones its operation.” 19 American & English Eneyc. of Law, 193.

Our attention has been called by the defendants in error to the ease of Glidden v. Mechanics’ National Bank, 53 O. S., 588, as sustaining their position that the cause of action did not accrue until the sale. In that ease the property had been pledged, and the pledgee sold the property to himself. All the court decides in that case is that the statute of limitations did not begin to run until the pledgee did some act that put it beyond his power to perform the conditions of the pledge. The difference between that ease and the one we are now considering is that the pledgee in that case had the rightful possession of the property, and the statute did not begin to run until he violated the conditions of the pledge. In the case we are considering the defendants below never had rightful possession of the property, and the wrong was committed at the time they took possession of this furniture.

Our attention is further called to the opinion in the case of Sammis v. Sly, 54 Ohio St., 519. The only question the court is there discussing is when the title to property which has been wrongfully taken possession of by another passes from the rightful owner, and they hold that the mere intermeddling with another’s property in a way to deny his title does not of itself divest his title, but that he may treat it as such by commencing an action for conversion. We do not think that this in any way affects the question now before us.

It follows that the right to maintain this action accrued at the time the goods were taken possession of by the defendants below, that it was error for the court to refuse the request to charge, and also error to charge as stated. Further, as there is no dispute in the evidence as to the time the furniture was taken possession of by the defendants below, the verdict is against the weight of the evidence.

The judgment of the court below is reversed and the case remanded for further proceedings.


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    DEATH AT A RAILWAY CROSSING WHERE THE VIEW OF THE TRACKS WAS HIDDEN.
    Court of Appeals for Hamilton County.
    The Cincinnati, Hamilton & Dayton Railway Company v. Edmund Buxton, Administrator of the Estate of Leo Herppich, Deceased.
    Decided, June 30, 1914.

      Negligence — Milk Wagon Driver Killed at a Grade Grossing — Obstruction of View — Verdict of $5,400 Held Not Excessive.

    1. Where at the intersection of a street and railway tracks at grade there is a high board fence enclosing a coal yard, which completely obstructs the view of tracks from the south until within a few feet of the tracks, and the testimony is conflicting as to whether the electric bell giving warning of approaching trains was ringing or was out of order, a verdict in favor of the administrator of a driver, whose wagon was struck by a train coming from the south at the rate of forty-five or fifty miles an hour, will not be disturbed by a reviewing court.
    2. A verdict of $5,400 on account of the wrongful death of a man thirty-eight years of age, who left a wife and two small children, and who was in perfect health and earning $20 a month and board as a driver on a milk route, is not excessive.

      Waite & Schindel, for plaintiff in error.

      Schorr & Wesselmann and Thos. L. Michie, contra.
    Jones, O. B., J.; Jones, E. H., J., concurs; Swing, J., not sitting.
   Plaintiff below recovered a judgment for damages for the death of his intestate, Leo Herppich, who was struck and killed by a train operated by tbe plaintiff in error in tbe village of Lockland, Hamilton county, Ohio, on December 22, 1909.

The decedent was driving a covered milk wagon of the usual type, which was open in front and had open doorways on each side, the driver’s seat being in the rear and between these two doorways. He was driving westwardly along Worthington avenue, which is a much traveled highway crossing the C., H. & D. Railway, practically at right angles, just south of its LoeklandWyoming depot. The line between the adjoining villages of Lockland and Wyoming at that time was along the railroad, the tracks of same being located in the village of Lockland. On the south side of Worthington avenue just east of the railroad was a coal yard being operated by Henry Priessmann, which stood four or five feet above the level of Worthington avenue, and which was surrounded on its north and west sides by a tight board fence so high that a person driving westward on Worthington avenue could not see to the south along the railroad until he was very close to the tracks.

Counsel for plaintiff in error have undertaken, by means of photographs which were introduced in evidence and measurements taken by a civil engineer who testified in the case, to demonstrate the fact that the decedent might have been able to see an engine on the northbound track a distance of from 750 to more than 2,000 feet south of Worthington avenue. The difficulty with these photographs is that counsel failed to fix the location of the camera in the center of Worthington avenue where the decedent was driving, but has evidently fixed it at a point some distance north of the center, and the photographer admitted that the distances appearing in the foreground of the picture were deceptive; and the evidence of the photographs and the engineer was-opposed to that of a number of plaintiff’s witnesses who had been upon the ground and were familiar with the surroundings, and while not undertaking to give exact distances their- testimony convinced the jury that decedent could not have seen, by the most careful looking, the approaching train in time to have avoided the injury.

There is no question, from the evidence, that the train was running at least forty-five to fifty miles per hour, and that the decedent was driving at a very low rate of speed. There is conflict in the testimony as to whether the whistle and bell were sounded as required by Section 8853 of the General Code. There was an electric signal bell at the crossing, and testimony was introduced to show that at periods shortly before and after the accident this bell was out of order, and there is conflicting testimony as to,whether or not this bell was ringing at'the time of the accident.

In this state of the record, we do not believe that the reviewing court should invade the province of the jury, and say that it was not justified in finding negligence on the part of the defendant and finding that plaintiff was not guilty of contributory negligence.

It is claimed that the court erred in admitting in evidence an ordinance of the village of Loekland which undertook to regulate the speed of trains within the limits of the village at not more than eight miles per hour. Such an ordinance is authorized by Section 3781 of the General Code and we think it was properly admitted, limited as it- was by the charge of the court.

Plaintiff in error urged as another ground of error the refusal of the court to send the jury back to their jury room to agree upon and return a more complete answer to the second interrogatory which had been submitted to them. This interrogatory was as follows:

“Did the deceased, Leo Herppich, as he was about to cross the tracks of the defendant, look to the south?” This was answered by the jury as follows: “We assume he did.”

We think that in the absence of any direct proof to the contrary, the jury were justified in arriving at such an answer. Especially when, as we have stated above, we do not feel justified in disturbing their answer to the first interrogatory, which was as follows:

“Do you find from the evidence that the deceased, Leo Herppich, as he was about to cross the tracks of the defendant, could have looked to the south and seen the train by which he was struck in time to have avoided being struck? Answer No.”

True, there is testimony by the engineer and at least one pedestrian on the street that they saw the wagon but did not see the driver look out of the wagon. Such testimony is, however, perfectly consistent with the decedent’s performing his full duty to look before undertaking to cross, because one seated in such a wagon could no doubt look out through the openings at the sides, down the track, without changing his position, as effectually as he might by thrusting his head out of the wagon; and the engineer’s testimony showed that he had paid so little attention to the details of the wagon that he thought its sides were covered solidly with no openings or doorways in them.

It is urged that the amount of the judgment, $5,400, is excessive. Decedent was thirty-eight years old, in perfect health, and left a wife and two young children aged six and four years respectively. At the time of his death he was living and working, with his family, on his father-in-law’s farm, driving a milk route, and received twenty dollars per month and board. We can not, therefore, say that the amount found by the jury is excessive.

Other errors in the admission of evidence and in the charge of the court are urged by counsel for plaintiff in error, but on careful consideration of same the court fail to find any prejudicial error, and the judgment is therefore affirmed.


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    PETITION TO PROHIBIT SALE OF LIQUOR.
    Circuit Court of Cuyahoga County.
    In re Petition to Prohibit the Sale of Intoxicating Liquors as a Beverage in a Residence District of the Municipal Corporation of Cleveland, State of Ohio; Two Cases.
    Decided, January 22, 1912.

      Sufficiency of Petition as Against Sale of Liquor — Petition Prima Facie Evidence of What.

    A petition for or against the sale of intoxicating liquor in a residence district is itself prima facie evidence that the signers thereof are resident electors of the district, qualified to sign the petition, and in the absence of evidence tending to show that a signer is not such an elector, it is not error to count his name in determining the sufficiency of the petition.

      W. H. Boyd, G. W. Shaw and G. E. Harshorn, for plaintiff.

      Hidy, Klein & Harris, contra.
    Marvin, J.; Winch, J., and Niman, J., concur.
   On the 7th day-of August, 1911, there was filed with the Honorable Martin A. Foran, a judge of the court of common pleas of this district, a petition purporting to be signed by a majority of the qualified electors of a certain residence district described in the petition and situated in the city of Cleveland, in favor of prohibiting the sale of intoxicating liquors as a beverage in such district. In short, purporting to be such a petition as is provided for in Section 6140 of the General Code, which reads:

“When a majority of the qualified electors of a residence district of a municipal corporation sign a petition in favor of prohibiting the sale of intoxicating liquors as a beverage in such residence district and file such petition with the mayor of the municipal corporation or with a judge of the court of common pleas of the county in which the municipal corporation is situated, the mayor or judge shall examine the petition at a public hearing and decide upon the sufficiency thereof and cause a copy of his decision to be filed with the clerk of the municipal corporation or council.”

Notice of the filing of this petition was given as provided in Section 6151 of the General Code.

Before said petition was heard there was filed with said judge a writing designated as “Answer of Max Sternlicht,” which answer sets out that said Max Sternlicht is a bona fide resident- and qualified elector residing within the boundaries of the territory described in the petition, and that he files this answer in his own behalf and on behalf of other qualified electors who are residents of said district, and states that said petition is insufficient, irregular and illegal and should be dismissed; it then sets out a large number of reasons why he says it should be dismissed, and among them he sets out that a very considerable number of names which appear on said. petition are the names of persons residing outside of the district; a considerable number that he says are duplicated in the petition; a considerable number that he says have not resided within the district for four months, and a considerable number that he says have not .resided within the state for a year; some that he says are not of full age; some that he says were never qualified electors, etc.; and then in such writing he says that he objects to each and every name contained in the petition, for the reason that the persons signing the same are not qualified electors and calls for strict proof that they are qualified electors. An objection to the petition was also made by certain other electors or persons claiming to be electors Avithin the district.

This petition Avas heard by Judge Foran on the 18th of October, 1911, the hearing having been continued from time to time by consent of the petitioners, and by consent also of those who had entered their objections to the hearing. The result of the hearing before Judge Foran was that he found the petition to be sufficient, and certified his findings to the clerk of the city of Cleveland, resulting in the prohibition of the sale of intoxicating liquors within the district described in the petition.

To this action of Judge Foran error is prosecuted in this court, as provided in Section 6164 of the General Code, permission having been giving for the filing of such petition.

The first question raised here is whether, the petition not having been heárd within forty days of the time of its filing and therefore having been heard at a time when the certificate provided for could not have been made, and in fact was not made until more than forty days after the filing of the petition, the whole proceedings were not void. In short, whether the judge, having had the petition in his hands for more than forty days, was authorized thereafter to hear it and to make his certificate at a time beyond the forty days.

As was shown on the hearing, this court has heretofore held that the time limit prescribed in this section is directory and not mandatory, and finding in that case reasons why the officer hearing a petition might well have delayed we adhere to-the holding in that case, and certainly if any case would justify the delay, the present is such case, because here the only parties objecting to the granting of the petition consented to the delay. There was no error in the court’s refusing to dismiss the petition because of the lapse of time.

The next question sought to be raised is whether the burden of showing that those who signed the petition were qualified electors within the district was upon the petitioners. We think it very doubtful whether that question is in this case. Judge Foran certifies that all the evidence offered by either party is in the bill of exceptions. We find, however, on page 25 of the record, that the petition was offered in evidence. We nowhere find the petition or a copy of it in the record. We do find, however, that Judge Foran announced earlier in the hearing that the burden of showing that those who signed the petition were not residents of the district was on those who contested the petition. The petition was offered in evidence and was examined by the judge. The reason it is not here is because of the provision of Section 6152 which provides that the judge shall cause a certified copy or certificate of his findings, together with the original petition, to be filed with the clerk of the municipal corporation or council. Complying with that requirement of the statute, of course the original petition could not be filed here. In any event, it was out of the hands of the judge when he signed the bill of exceptions. I-Iow we can say that the judge may'not have had such knowledge as to who the parties were who signed this petition as that an inspection of the petition might not be sufficient to satisfy him that the parties who signed it, those whose names he allowed to remain on it as signers, were bona fide electors of the district, we are unable to say. However, we are of opinion, at any rate a majority of the court are of opinion, that when the petition was exhibited to the judge, reading, as by law it was required to read and presumably did read, since we have not the petition before us, that those who signed (in the language of the statute), "respectfully represent that we are qualified electors in ihe following residence district,” etc., he was justified in saying that this made a prima faeie case as to the residence and qualifications of the parties who signed.

True, it was held by Judge Foran, and has been held by this court, that the proceeding is in the nature of a judicial proceeding, and therefore the- court must act upon evidence; but having before him a statement that these people were resident electors, we think it was not error to find such to be a fact in the absence of any evidence tending to show the contrary.

The provision with reference to the public hearing of this petition, as provided for in Section 6151, is that the judge shall "hear any electors of the district as to the question of the petitioners being qualified electors in such residence district, or any other matter which may be brought before such mayor or judge for determination relating to the sufficiency of such petition.”

The judge had exactly the same evidence that the petitioners (except in so far as testimony was taken on the hearing or admissions made as to some of these signers, that they were resident electors of the district), as he had'that any one protesting or opposing the granting of the prayer of the petition was an elector of the district. A qualified elector of the district had a right under Section 6151 to present evidence on the question of whether those signing the petition were electors, and, acting under this, the judge heard such witnesses as were protesting, Max Sternlicht and other objectors. Their right to be heard depended upon their being electors. Sternlieht had filed an objection denominated by him an answer, in which he claimed this right to be heard, because he said he was an elector in the district. Pie was heard. The evidence offered by him was received, because prima facie, filing this so-called answer, he was the one who had a right to be heard. It would hardly be claimed on the part of anybody that the judge would have been justified, in the absence of any suggestion on the part of anybody that Sternlieht was not an elector, to have refused to have heard the evidence that he offered. We think that the practical workings of this statute, if it is to have any value either to those desiring to prohibit or those who are opposed to the prohibiting of the sale of intoxicating liquors within a proposed district, would be so hampered as to substantially take away all the good which it was the design of the Legislature to give, if the petitioners, whether on a petition for prohibition or on a petition against prohibition, were to be required to produce evidence of the qualification of the signers as electors other than such evidence as is furnished by the petition itself, except in answer to evidence which might be produced against their qualifications as electors; and we think this is clearly shown by the section last referred to.

As pointed out by Judge Foran in his opinion in this case, and by Judge Martin in the case referred to in Montgomery county, the time to be taken in these hearings would be such as to make it practically of no use to file any such petitions.

We are of opinion, therefore, that there is no error apparent upon the record in this case which would justify a reversal, and the judgment is affirmed.


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    PROCEEDINGS FOR SATISFACTION OF A JUDGMENT OBTAINED ON CROSS-PETITION.
    Circuit Court for Lucas County.
    Samuel C. Swigerd et al v. Fred W. Deck.
    Decided, March 23, 1912.

      Appeal from a Magistrate — Effect of Failure of Plaintiff to File a Petition — Finding t>y a Court Equivalent to a Personal Judgment, When —Homestead.

    1. Where the only thing sought by a cross-petitioner is a personal judgment, and the court finds the allegations of the cross-petition to be true and determines that the defendant should recover from the plaintiff a specified sum on his cross-petition with interest and costs, the entry will be construed to be a personal judgment.
    2. It is the duty of a plaintiff whose case has been appealed from a justice of the peace to file a petition setting forth his claim, and where he fails so to do and permits final judgment to be entered upon the claim set forth in the cross-petition, it is too late for the plaintiff to set up his claim in an action thereafter brought to enforce payment of the judgment entered upon the cross-petition.
    3. The claim can not be maintained that property which it is sought to subject to payment of a debt is a family homestead, where it appears that the debtor and his family have not occupied the property for three or four years and during a portion of that time a contract was in existence wherein they agreed to sell the premises.
    Kohn, Northup & Morgan, for plaintiffs in error.

      Eugene Rheinfrank, contra.
    Richards, J.; Wildman, J., and Kinkade, J., concur.
    Error to the Court of Common Pleas of Lucas County.
   In the court of common pleas, Fred W. Deck sued for the purpose of enforcing the payment of a judgment rendered in his favor in that court against Samuel S. Swigerd, the object of the action being to compel the sale of a house and lot and the adjustment of liens thereon.

The answer of Samuel S. Swigerd denied the allegation of the petition that Deck had obtained a judgment against him and set up by way of cross-petition a claim against Deck. The case was tried to the court and resulted in a finding and decree in favor of Deck, and to that finding and judgment this proceeding in error is prosecuted.

It appears from the record that Swigerd had sued Deck before a justice of the peace upon an account, and that Deck had filed a claim by way of set-off which, on trial to a jury in the justice court, resulted in a verdict in favor of Swigerd for a small sum. Deck appealed from the judgment rendered in the justice’s court, the transcript and papers being filed and the ease docketed in common pleas court on March 11,1908. Swigerd filed no petition in the court of common pleas and upon May 21, 1909, Deck filed, no leave of court first being granted so to do, a cross-petition setting up the claim which he had theretofore filed before the justice of the peace. No pleading was filed by Swigerd and the case was submitted to the court of common pleas and a judgment rendered by default in favor of Deck and against Swigerd on June 14, 1909; the journal entry reciting that the same was heard upon evidence.

The first contention of the plaintiff in error in this case is that the finding of the court, as entered in the court of common pleas, is not in fact a judgment. The entire entry, omitting the title of the case, is as follows:

“This day this cause coming on to be heard upon the cross-petition of the defendant, Fred W. Deck, and the evidence, and the plaintiff being in default for answer or appearance, the court does find that the allegations of said cross-petition are true and the defendant should recover from the plaintiff thereon the sum of $161.67 together with interest from the first day of this term of court and costs.”

It is insisted that the court only found the amount which the plaintiff should recover, and did not, in fact, enter judgment upon such finding. Authorities are cited which hold under language somewhat similar to that of the above finding, that the language did not amount to a judgment, but they were cases in which equitable relief was demanded by way of foreclosure of mortgage or otherwise, and that fact aided in construing the language used, and would in such cases justify a conclusion that the only effect was to make a finding of the amount which should be a lien upon the premises. In this case, however, nothing was sought in the pleadings except a personal judgment, and the court clearly finds the allegations of the cross-petition to be true, and determines that the defendant should recover from the plaintiff, the amount of $161.67. We hold in this kind of a ease the language amounts to the rendition of a judgment.

It is further urged by counsel for plaintiff in error that the court of common pleas erred in rejecting evidence. Under the statutes of this state, it was the duty of Swigerd, when his ease, which had been tried before a justice of the peace, was appealed, to file a petition setting forth his claim. Having omitted to do so and having allowed final judgment to be entered upon the claim set forth in the cross-petition of Deck, it was too late to set up his claim in the action thereafter brought by Deck to enforce the collection of the judgment rendered in his favor, and we therefore find no error in the rulings of the court of common pleas in the rejection of evidence relating to such claim.

The premises sought to be subjected were claimed by Maude Swigerd, the wife of Samuel S. Swigerd, as a family homestead. The evidence showed that she and her husband had not lived upon the property for some three or four years, and that there had been, during a portion of that time, a contract in existence by which they agreed to sell the premises, and that the premises werp worth the sum of $1,650.

We think the court of common pleas was justified in finding that the homestead had not been abandoned for a temporary purpose, and that she was not entitled to hold the same as a homestead. The-property being of the value stated, it would seem apparent that, in any event, Deck would be entitled to an order for the sale of the premises, and that the mortgage lien should be satisfied therefrom in order that it.might be ascertained whether a balance would be left applicable to the payment of this judgment.

Finding no prejudicial error, the judgment of the court of common pleas will be affirmed.


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    WORKMAN IN EXPOSED POSITION INJURED BY MOVEMENT OF ELEVATOR.
    Circuit Court of Cuyahoga County.
    The Cleveland Provision Co. v. Edwin C. Hague.
    Decided, January 22, 1912.

      Contributory Negligence — Choice of Two Ways of Doing a Thing— Owner of Elevator Chargeable with Knowledge of Operator — Competency of Exhibits.

    1. The rule that where there are two ways of doing a thing, one safe and the other' unsafe, he who undertakes to do the thing must choose the safe way, or choose the unsafe way at his peril, does not require that more than ordinary care shall be used in the selection.
    2. When one working for an independent contractor in repairing wires about an elevator has requested the operator of the elevator to notify him each time before the elevator is moved, which he has promised to do, it is for the jury to say whether the workman was negligent in relying upon such notice being given him.
    3. When the operator in charge of- an elevator, whose duty it is to run the elevator for the defendant in the conduct of its business, has notice that a workman for an independent contractor making repairs near the elevator is likely to put himself in position where the operation of the elevator without warning will injure him, and that such danger will be avoided by giving him notice before the elevator is moved, the knowledge of the elevator operator is" the knowledge of the defendant.

      i. An exhibit is not necessarily incompetent because it fails to show some exact thing in conned ion with the subject under investigation provided it shows some matter directly bearing upon the matter under investigation, with an explanation of how it differs from that which is being investigated.

      Kline, Tolles & Morley, for plaintiff in error.

      Cook, McGowan & Foote, contra.
    Marvin, J.; Winch, J., and Niman, J., concur.
   The relation of the parties here is in the reverse order from what it was in the court below. The terms plaintiff and defendant used in this opinion refer to the parties as they were in the original ease.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This applied equally to the second question, which reads:

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

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

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

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

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

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

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

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

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

The first of these objections is shown by the record at page 75, where this question was asked of the plaintiff by his own counsel: “Mr. Hague, was it necessary to shut the elevator down for you to do your work up there?” It is said this is asking for a conclusion, and this is true in a sense, but the admission of the answer to this question was not prejudicial to the defendant, especially when the answer to that question is taken into consideration. The answer was-. “It was not.” And this is. equally true of another question appearing on the same page of the record: “When did it become necessary to stop the operation of .the elevator?” The answer was: “Why it only became necessary when we were crossing or pulling the wires, going to. and from,” There was mo-prejudice in this. It clearly conveyed to the jury only a proposition which was so thoroughly shown by all the evidence that the only danger to which the plaintiff was subjected by the moving of the elevator shaft was the danger that he might be caught when he was required to cross over it, if it were then in motion.

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

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

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

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

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

And again this language:

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

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

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

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

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

In this connection the following authorities should be considered :

Earlier in this opinion the case of Hall, Headington & Co. v. Poole, 50 Atlantic, 704 (94 Md., 171), is mentioned, with the statement that it would be discussed later. In that case the plaintiff was in the employ of a contractor, who had to put in the electric wiring for a business plant. He found it convenient, though not necessary in the performance of his work, to get into the elevator shaft at its foot. By so doing he put himself in a position in which he was sure to be injured if the elevator should be used in the ordinary way, running clear down to the bottom of the shaft. He told the elevator boy that he was going into this place of danger; he told him not to run the elevator down below the first floor while he was there at work. And he •testified that the boy said; “All right.” Aside from the knowledge of this boy there was no knowledge on the part of anyone connected with the defendant that the plaintiff was in this dangerous position. What the. boy undertook to do was to omit doing all that his duty required of him, namely, to stop the elevator at the first floor when coming down, whereas his duty required of him to run clear down to the foot of the shaft.

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

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

The case of Farmers & Mechanics National Bank v. Hanks, 128 S. W., 147, is very nearly akin to the present case. We quote from the syllabus:

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

In the case of Reatty v. Metropolitan Building Co., 115 Pacific, 90, it is held that where a workman went into an elevator shaft, telling the elevator boy not to come below a certain floor with his elevator, and the boy promised not to do so, the elevator boy was not acting outside the scope of his employment.

In this case the court considered a large number of cases on the question of the agency of the elevator man, among them the case of Hall, Headington & Co. v. Poole, supra, and reaches the conclusion as above stated, citing in support of the view takeby the court the following: Soderstrom v. Patten, 131 Ill. App., 32; Bank v. Hanks, supra, and Donovan v. Gay, 97 Mo., 440.

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

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

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

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

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

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

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

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

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

The eleventh, which was refused, reads:

“If you find that it was in fact unsafe for the plaintiff to work on the elevator platform while the elevator machinery was in operation, then, T charge you, that it was the duty of fihe plaintiff, when in the course of his work it became necessary for him to go' upon said platform, to notify the defendant, and thus afford the defendant an opportunity to discontinue the operation of said ear until the plaintiff had completed his work upon the platform.”

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

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