text:
    TRUST AND TRUSTEES
    [Summit (8th) Circuit Court,
    April 17, 1908.]
    Winch, Henry and Marvin, JJ.
    Peoples Savings Bank Co. v. Omar N. Gardner et al.
    1. Division of Estate Held in Trust for Widow Postponed to Her Decease.
    Under a will creating a trust for the testator’s widow’s life in property devised to a son and daughter, and directing “the same to be parted and divided between them share and share alike as they may agree; said division not to be made until after the decease of my said wife Matilda but the property to remain intact until that event, and until then the rents of the real property shall go into my estate for the purpose of paying the eight hundred dollars per year to my said wife,” etc., “and in case either my son or daughter should die before a division of my estate, leaving no heir or heirs, that in that case the whole of said property shall go to the survivor of them,” unless all the beneficiaries of the trust consent, it is beyond the power of the parties or of the court to enforce a division of the estate until after the widow’s death.
    2. Trustee Preferably Appointed to Administer Trust Estate though Administrator May Act in Interim.
    A trustee, eo nomine, should be appointed to administer the trust created under such a will, but an administration de bonis non will include the administration of the testamentary trust, until a trustee for the purpose is appointed.
    Appeal.
   HENRY, J.

This is a creditors’ bill to subject Omar N. Gardner’s interest in his father’s estate under the latter’s will, which devised the homestead and contents to his wife, and the remaining property to his son and daughter to life annuities of $800 to his wife and $500 to a former divorced wife.

The testator died in 1873, leaving his widow, who still survives; his son Omar, who, having become involved has recently disappeared, his daughter who afterwards died, leaving a family, and his divorced wife, who is also now deceased. The estate disposed of by the will consisted, besides the property specifically given to the widow, of several parcels of real estate in the city of Akron, in some of which, however, the executor, David Hanseom, had a half interest that was subsequently severed in a partition suit brought for the purpose. The decree in that proceeding set off one of said parcels to the testator’s two children jointly, subject to the annuity lien provided by the will.

Hanseom had conducted the administration until the son’s majority, as provided by the will; thereupon he resigned, and, the estate being then still unsettled, the son was appointed administrator de bonis non with the will annexed. He rendered his final account in 1877, but continued to manage the property for the family, paying his mother’s annuity, for thirty years thereafter. In 1907, he was removed as administrator and "William Irvin appointed in his stead.

The court below appointed a receiver in this action at the instance of Omar N. Gardner’s creditors, plaintiffs and cross-petitioners herein; but his father’s administrator and widow contend that under the will the property must be kept intact and managed under the oversight of the probate court as long as she lives.

As we construe the will, it creates a trust for the widow’s life in the property devised to the children, directing “the same to be parted and divided between them share and share alike as they may agree; said division not to be made until after the decease of my said wife, Matilda, but the property to remain intact until that event, and until then the rents of the real property ah all go into my estate for the purpose of paying the eight hundred dollars per year to my said wife, * * *■ and in case either my son or daughter should die before a division of my estate, leaving no heir or heirs, that in that ease the whole of said property shall go to the survivor of them.”

Unless all the beneficiaries of this trust consent, it is thus put beyond the power of the parties or of a court of equity to enforce a division of the estate until after the widow’s death. If the ordinary administration is complete, as the evidence shows it is, it becomes the duty of the probate court, upon application under Sec. 5986 R. S. (Sec. 10596 G. C.) to appoint a trustee to execute the trust so created by the will, for want of an appointment in the will itself. A trusteeship eo nomine and not administration de bonis non, is what the statute contemplates under these circumstances. But the appointment actually made by the probate court of an administrator de bonis non will also include the administration of the testamentary trust as specially created by the will, unless upon application there made the more appropriate appointment of a trustee for that purpose be substituted therefor Mathews v. Meek, 23 Ohio St. 272, 289. Such trustee has under the statute exclusive control of the property subject to the supervision of the • court appointing him. The most we can do here is to enter a decree that the interest of Omar N. Gardner in said trust be subjected to the payment of his debts. His mere equity might be sold, if it would benefit the creditors here to do so; but as such sale would not divest the trustee of his possession and control of the property, we can see no advantage to them from such. a course, especially as that equity may never mature into a legal estate; for if Omar N. Gardner should die without issue before his mother’s death, it is at least doubtful whether his interest in the property would not then pass to his sister’s heirs, if any. We might also, if however, the creditors desire, continue the receivership, limiting the receiver’s authority to the collection by him from the trustee, of Omar N. Gardner’s share of the rents and profits of his father’s estate as they accrue from year to year. This, we take it, would also be a most wasteful proceeding. The simplest solution as it, seems to us, is so to mould our decree as to ascertain and declare the interests of the plaintiffs in Omar’s present equity and contingent remainder in his father’s real estate so that they may- be duly recognized by the trustee as long as the trust continues, and be properly taken care of in the partition of the estate when the widow dies.

What has thus far been said applies to all the property except the first parcel described in the petition. We have given careful consideration to the contention that as regards all of the real estate the parties are bound to a contrary interpretation of the will by the actual setting off to the children of a legal estate in this one parcel which was the subject of the Hanseom: partition proceedings; but we do not subscribe to that view. They were bound by that proceeding with respect only to the land then in controversy, and may well decline to acquiesce in further division of the estate. The court’s decision must be construed to have proceeded not upon the construction of the will, but upon the tacit consent to the decree then entered, so far only as it concerned the subject-matter of that action. Such consent was given by all the cestuis que trustent under the elder Gardner’s will, for they were all parties to that action, and the decree is conclusive and binding upon everybody so far ás that one parcel is concerned.

Omar N. Gardner’s thirty years’ management of the remaining property is not conclusive of his mother’s rights here; for its import, so far as the widow is concerned, is at most equivocal. She received her annuity from one who had been duly appointed administrator with the will annexed; and her conduct in that behalf so far from indicating that she looked to him personally instead of officially, apparently indicates the contrary.

The creditors may take a decree ascertaining their interests and their succession, so far forth, to' the rights of Omar N. Gardner'in his father’s estate. The decree may also provide for a sale of Omar N. Gardner’s interest in the parcel of land aparted to him and his sister jointly in the Hanseom partition proceeding, subject, of course, to the lien of the widow’s annuity. The costs are adjudged against Omar N. Gardner.

■Winch and Marvin, JJ., concur.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    MUNICIPAL CORPORATIONS — NUISANCE
    [Summit (8th) Circuit Court,
    April 17, 1908.]
    Winch, Henry and Marvin, JJ.
    Thomas Worthington v. Akron (City) et al.
    Plaintiff Denied Right to Prevent Nuisance in Vacated Street.
    A taxpayer neither can maintain an action against a municipality and others for obstructing a street, either in his individual capacity or as an abutter upon the street, unless the nuisance sought to he abated is private and personal to him, affecting him or his property in a manner differing not merely in degree, hut in kind from its effect upon the community in general, nor can he maintain such action as a taxpayer, for want of statutory provision therefor.
    Appeal.
   HENRY, J.

The plaintiff in this appeal seeks to enjoin the obstruction of Moore avenue or street in the city of Akron by the defendant Standard Table Oil Cloth Co., acting under color of an ordinance passed by the council of said city for the vacation of that portion of said street on which said oil cloth company’s property abuts. The claim that the obstruction of this part of the street in question is unlawful rests chiefly upon alleged want of jurisdiction in the council over this particular street, because it was and is a county road, and upon the council’s reconsideration in alleged due season of the vote, whereby said ordinance was passed, followed by indefinite postponement of further consideration thereof.

The character in which the plaintiff sues is, as disclosed by the caption, three-fold, viz., (1) personally, (2) as a taxpayer under favor of Sec. 1536-668 R. S. (Sec. 4314 G-. C.), and (3) as owner of property abutting on said street though not on the vacated portion thereof.

In the first and last of these capacities it is clear that he has no right to sue, unless the nuisance sought to be abated is private and personal to him, affecting him or his property in a manner differing not merely in degree but in kind from its effect upon the community in general.

No such case is here made. The plaintiff has left to him other, although it may be more circuitous, inconvenient or difficult, means of access from his own premises to every point within and without said city which was accessible to him before Moore street was obstructed. If the obstruction complained of is unlawful, it is thus, so far as plaintiff is concerned, a purely public nuisance, which it is the city’s duty to abate, but which can not become the subject of an action founded upon any private right to sue unless the statute has expressly given such right.

The only claim of statutory right here arises under Sec. 1536-667 and 668 R. S., but a careful perusal of those sections discloses no right thereby conferred on the city solicitor of his own motion or on request of a taxpayer to bring an action to enjoin a street obstruction; from which it follows that a taxpayer, on his refusal, can bring no such action in his stead. Whatever remedy may be afforded by said sections the one here sought to be invoked is certainly not included therein.

Holding as we do that plaintiff has misconceived his remedy and that he can not in any of the three capacities named by him maintain this action for injunction, the petition is dismissed.

Winch and Marvin, JJ., concur.


text:
    WILLS
    [Lorain (8th) Circuit Court,
    April 29, 1908.]
    Winch, Henry and Marvin, JJ.

      Henry McRoberts et al v. Henry H. Barnard et al.
    Widow May Will Property Devised “to Her and to Her Disposal.”
    A widow who has received real estate under her husband’s will “to be to her and to her disposal during her life," may dispose of the same by her will.
    Error.

      Affirmed no opinion, McRoberts v. Barnard, 81 Ohio St 560.

   HENRY, J.

The only feature of this case which we deem it necessary to discuss here is the true interpretation of the second item of Pitt McRoberts will, as follows:

“I give and devise all the residue of my estate to Abby my beloved wife, to be to her and to her disposal during her life. ’ ’

The testator’s widow, Abby, undertook to dispose, by will, of the real estate thus devised to her. The validity of this disposition by her obviously can be rested either upon the view that she was invested with the fee therein by the term of her husband’s will, or upon the view that her husband’s will invested her with the power to make testamentary disposition of the same. The first of these views seems to us to be supported by the case of Davis v. Corwine, 25 Ohio St. 668, and Lesley v. Smith, 7 Circ. Dec. 264 (13 R. 189).

The second view is supported by the Massachusetts ease of Burbank v. Sweeney, 161 Mass. 490 [37 N. E. 669], a well considered ease which we approve.

Judgment "below affirmed.

Winch and Marvin, JJ., concur.


text:
    RAILROADS
    Winch, Henry and Marvin, JJ.
    [Lorain (8th) Circuit Court,
    April 29, 1908.]

      Lake Shore & M. S. Ry. v. Rudolph Stark, Admr.
    Locomotive Engineers on Same Road are Fellow-Servants.
    Two engineers, on different locomotives, are fellow-servants, and where one is killed solely on account of the negligence of the other, there can be no recovery against the railroad company.
    Error.

      Affirmed no opinion, Stark v. Lake Shore & M. S. Ry., 81 Ohio St. 560.

   HENRY, J.

The action below was for death by wrongful act. The defendant in error was plaintiff below. His intestate, Frank Stark, was an engineer in the employ of the plaintiff in error. On the' day of the accident, he, with a fireman, had charge of engine No. 818, east bound, standing on a side-track at Graytown. Their train had been detained there for several hours. At the same time engineer Van Glahn, with a fireman, was in charge of engine 773, west bound, which with his train and crew had been detained on a side-track at Rocky Ridge for many hours.

About 5 -.45 o’clock a. m., the train déspatcher on being advised that Van Glahn’s engine was out of water, issued an order to the conductor and engineer of its train, as follows: “C and E. Engine 773. Engine 773 will run extra Rocky Ridge to Port Clinton; protecting itself against all trains. ’ ’ Port Clinton was east of Bocky Bidge and Graytown .west thereof. About the time the order above quoted was given, Stark, who was killed, started with his train from Graytown towards Bocky Bidge and Port Clinton. As he approached Bocky Bidge, Van Glahn, with the fireman and brakeman, was just starting to cross over from the west bound to the east bound track, en route to Port Clinton for water, in pursuance of said order. Before Van Glahn’s engine had fully passed from the cross-over to the eastbound track, Stark’s engine overtook it, and in the ensuing collision Stark was killed. _ ■

It is practically admitted that one cause of this collision was Van Glahn’s failure to. observe the company’s rules, 99, 100 and 102, quoted on pages 22 and 23 of the bill, as follows:

“Buie 99. When a train is stopped by an accident or obstruction, the rear brakeman must immediately go back with danger signals to stop any train moving in the same direction. At a point ten telegraph poles, or 1,500 feet, from the rear of his train, he must place one torpedo on the rail; he must then continue to go back at least twenty telegraph poles, or 3,000 feet, from the rear of his train, and place two torpedoes on the rail, ten yards apart (one rail length) when he may return to a point ten telegraph poles or 1,500 feet, from the rear of his train, and he must remain there until recalled by the whistle of his engine; but if a passenger train is due within ten minutes, he must remain until it arrives. When he comes in, he will remove the torpedo nearest to the train, but the two torpedoes must be left on the rail as a caution signal to any following train.'
“Should the flagman be recalled before reaching the required distance, he will place two torpedoes on the rail, on the engineman’s side, ten yards apart (one rail length) and immediately return to his train, unless an approaching train is within sight or hearing.
“If from any cause the speed of the train is reduced, the conductor will be held responsible for fully protecting the rear of the train by use of proper signals.
“If the accident or obstruction■ occurs upon single track, and it becomes necessary to protect the front of the train, or if any other track is obstructed, the front brakeman must go forward and use the same precaution. If the front brakeman is unable to go, the fireman must be sent in his place.
“Bule 100. Freight trains having work to do on any other track may cross over if no passenger train is due, provided no approaching freight train is in sight; and also provided that the flagman has been sent out in both directions with danger signals, as provided in rule 99.
“Rule 102. When it is necessary for a train on double track to cross over to the opposite track, a flagman must be sent out in both directions with danger signals, as provided in rule 99.”

Van Glahn failed to take the precautions required of him under the circumstances, by these rules. It is suggested that inasmuch as these rules had been disregarded on some occasions to the knowledge of persons having superintendence of the running of trains, they might be regarded as having been thus abrogated. But the. second paragraph of the syllabus in the case of New York, C. & St. L. Ry. v. Ropp, 76 Ohio St. 449 [81 N. E. 748; 11 L. R. A. (N. S.) 413], shatters this contention. It reads:

“The failure to obey any such rule is not excused by the presence or consent of another servant of the master, who is superior to the servant who agreed to obey such rule, when the superior servant is not authorized to represent the master in the making or changing of rules or contracts; and failure to obey the rule under such circumstances is negligence per se.”

The claim of liability really relied on, however, is stated in defendant in error’s brief as follows: “The negligence in this case was the despatching of Stark out of Graytown at 6:10 A. M. when he knew or ought to have known that Van Glahn had an order to come up on the east bound track, and in not notifying Stark, as he says he might have done, five minutes before the accident. ’ ’

The case was in fact submitted to the jury and they found their verdict for the plaintiff below, upon the sole issue as to whether, under the circumstances of this case, the order, given by the despatcher to Van Glahn as above quoted, was reasonable or unreasonable. The jury found that it was unreasonable. It is in proof that the order was in the customary form. JEt expressly required Van Glahn to protect himself against all trains. The rules of the company binding upon all its employees specifically provided in what way such protection should have been insured by him. His failure to observe those rules was thus the sole cause of the accident, and inasmuch as Van Glahn and Stark were fellow-servants, no liability arises. Tbe company did its part, when it provided, as it did, adequate rules and appropriate orders to meet such emergencies as arose when it became necessary for Van Glahn to detach his engine from the west bound train and proceed over an east bound track to a station east of where his train was lying, in order to obtain water. Having done its full duty in the premises, the company is not liable to Stark’s administrator, although it is conceded that Stark himself was wholly without fault.

For error in refusing to instruct the jury as requested by plaintiff in error and to direct a verdict for the defendant, the judgment of the court of common pleas is reversed, and because we see no possibility of a retrial of this case bringing out any facts which could vary this result, we proceed to render here the judgment which the court should have rendered in favor of the defendant below.

Winch and Marvin, JJ., concur.


text:
    REFORMATION OF INSTRUMENTS
    [Cuyahoga (8th) Circuit Court,
    September 23, 1908.]
    Winch, Henry and Marvin, JJ.

      Washington W. Boynton v. Max Strauss et al.
    1. Clear and Convincing Evidence Required to Reform Written Instrument.
    Reformation of a written instrument can only be had on the production of clear and convincing evidence of the intention of the parties and of the mutuality of that intention with regard to some phase of their contract which their writing fails properly to express.
    2. Interpretation of Written Instrument Open to Two or More Interpretations.
    In construing a written instrument which is open to more than one interpretation such effect will be given to it as the conduct of the parties at the time of its execution indicates they intend it should have.
    Appeal.

      Norton T. Ilorr and Stroup Fauver, for plaintiff in error.

      Webber, Wilford & Gillie, for defendant in error.

      Affirmed no opinion, Boynton v. Strauss, 82 Ohio St. 409.

   HENRY, J.

The facts as disclosed in evidence before ns show that the plaintiff purchased from Max Strauss, one of the defendants, the north half, substantially, of a parcel of land owned by Mr. Strauss on the west side of Washington avenue, in the city of Elyria, and in making that purchase a stipulation was contained in the instrument of conveyance concerning the joint use of a driveway. The driveway may perhaps be regarded as either a horseshoe carriage way, starting in at Washington avenue and going around to the rear of the premises and back again to Washington avenue by another entrance, or it may be regarded as being two driveways.

Nearly all of this horseshoe driveway is located upon the premises which the vendor retained, the south half of the entire parcel of land. It begins near the boundary line between the portion which he retained and the portion which he sold to the plaintiff; continues in a serpentine course westward, crossing the boundary line part way to the rear of the premises; continues on the part that was sold to the plaintiff and then crosses the boundary line between the parties and circles around the defendant’s house, returning again to Washington avenue.

At the time of the sale and since the sale these two driveways (if they were two), or one driveway, if it be so regarded, constituted a means of continuous passage from either entrance on Washington avenue around to the other entrance or exit on the same street.

It should be said that at the time of the sale there were two houses upon the entire parcel, two residences, the south one of which is occupied still by the vendor, Mr. Strauss, the defendant here, or his family, he having since conveyed it by gift to his son, who lives with him; and the house upon the northern portion of the entire piece of land is now occupied by the plaintiff, the vendee, who purchased that portion of the premises from the defendant.

The provision in the deed upon this subject of the driveway is quite extensive and I shall quote it in full, because it is necessary to construe the language:

“The drive or carriage way to remain as now existing and located, a part of which passes from Washington avenue to the land of the grantor lying south of the land above described and thereby conveyed and for a short distance on said grantor’s land when the said drive or carriage way passes on the land hereby conveyed to said grantee, to be used in common between tbe two places for a carriage or driveway, and said grantor conveys to said grantee said use of tbe parcel on Ms land covered by said driveway south of that hereby conveyed, and reserves the right to use for passage and repassage the remaining portion of said driveway on the land hereby conveyed. The corners of said driveway at Washington avenue to be marked by stones or iron piping sunk in the ground, as also the Washington avenue corners of the lot hereby conveyed with the corner on the east line one hundred feet north of the south line as above described.”

Now the controversy which makes necessary a construction of this language is substantially this: For a long period after the conveyance was made the parties and those who did business with them seem to have used indifferently the whole or such part of this driveway or parts of it as they chose. The plaintiff, after he purchased the northern half of the property, built a barn in the rear of the residence thereon and in the construction of that barn the wagons by which the material was hauled were accustomed to pass over that part of the driveway which lies south of the Strauss land and across the boundary line between the two parties over into the parcel which the defendant sold to the plaintiff and on which the new barn was being constructed. Delivery men and others have used the entire driveway, if they chose to do so, making the complete circuit of the horseshoe. At the time the conveyance was made, it should be stated that there was no means, convenient at least, for anyone to drive in at one entrance and turn around so as to come out at the same entrance. Certainly there was no such place or means convenient to be used upon the plaintiff’s portion of the entire tract. Since that time he has in front of his barn, provided a suitable place for turning around, so that one may drive on that part of the driveway between the two houses coming in at Washington avenue and drive up to the plaintiff’s barn and turn around and come out again by the same way.

It is urged on behalf of the plaintiff, who claims still the right to make the complete circuit, that he has an easement in the entire horseshoe driveway, or of all that part of it, being the major part, of course, which is located upon the vendor’s land, which Mr. Strauss’ son still owns, and Mr. Strauss having seen fit, for purposes of his own, to block up the southernmost portion of that driveway so that it can not now be used, this action is brought to vindicate the plaintiff’s alleged right to use by way of easement appurtenant to the land purchased by him the entire horseshoe driveway. It is vigorously claimed in his behalf that such use of the entire driveway physically connected with the residence property which he purchased from the defendant would, as a matter of law, and as an easement appurtenant to the land purchased, pass to him when he bought, and that such was his common law right under the circumstances as they then existed.

But we need not give consideration to that contention, for, as we look at it, the parties have themselves attempted to define in this instrument of conveyance precisely and exactly what their rights are. They have not left them unexpressed, and to the determination of the law as it may be applicable to the physical facts and the circumstances of the parties and their relations, but they have attempted to define them, and that definition supersedes whatever common law rights might have existed if they had given no such expression to their intention. The deed of conveyance, it may be remarked, was written, by the purchaser, the plaintiff, as the scrivener. He dictated that part of it which I have read and quoted, to a stenographer, who as he dictated it, wrote it upon a typewriter (for that portion of the deed is in typewriting), and directly thereafter he or some one in the presence of both the vendor and the vendee read it to Mr. Strauss, the vendor, and it was thereupon signed, witnessed, and acknowledged and by the plaintiff put upon record.

It is claimed that if this deed and the express provisions with regard to the driveway therein contained are insufficient to support the claim made by the plaintiff of an easement in the entire driveway, the complete circuit or horseshoe, he is entitled to a decree upon the evidence here to reform the deed in such manner as that it will definitely and clearly express the intention which he claims to have been the mutual intention expressed between the parties in the negotiations leading up to the purchase.

Upon that subject the testimony is somewhat conflicting. The plaintiff testifies that in the conversation leading up to the purchase between him and the defendant, the vendor, mention was made of the entire driveway, the whole horseshoe, and mention was made of it as being a convenient means to enable gnests of either of the parties, should they have a reception at either of their respective homes, to drive from Washington avenue by one entrance and obtain an exit by the other, and that it was contemplated by both the vendor and the vendee expressly in those conversations that both parties should have the use of the entire driveway. The wife of the plaintiff here corroborates, in some degree at least, perhaps wholly, the statement of her husband in regard to that matter. On the other hand, the defendant, Max Strauss, declares, and he is to some extent corroborated by his daughter-in-law who was present at some of the conversations at least, that no mention whatever was made of that portion of the driveway which is now in dispute and that the only reference to the driveway which is not in dispute made in the conversations between the parties was a reference to the portion which lay between the houses physically.

The rule of evidence with regard to the reformation of a written instrument for mistake is well known in this state by repeated decisions of our court of last resort to be that such reformation can only be had on the production of clear and convincing evidence of the intention of the parties and of the mutuality of that intention with regard to some phase of their contract which their writing fails properly to express; and in this state of the evidence in the case before us, applying that rule in view of the irreconcilable conflict in the testimony of the parties, we are unable, if such relief be required in this case, to afford it. There can be no reformation, because the evidence does not clearly and convincingly indicate that the parties both intended that the deed should have expressed clearly and plainly that the entire circuit was to be used by both of right. If such expression is not contained in the language of the deed itself the plaintiff must fail, therefore.

Eecurring now to the language of. the deed, at first sight it appears that the driveway as intended by the parties and described in the deed is the sinuous or serpentine driveway between the houses, for it must be admitted that so far as the driveway is described in terms the description relates only to that part of the driveway. But it is said that the language used by way of description of this portion of the driveway, is, by the express terms used, applicable only to a part of the whole driveway, in all of which an easement is expressly conveyed; and I will re-read the language giving the expression to that view:

“The drive or carriage way to remain as now existing and located.” * * *

It is now suggested that the force and effect of that comma is to begin a parenthesis, and there is not any further punctuation until the end of the parenthesis as suggested, to be presently indicated; “a part of which passes from Washington avenue to the land of the grantor lying south of the land above described and hereby conveyed and for a short distance on said grantor’s land when the said drive or carriage way passes on the land hereby conveyed to said grantee, ” * * ®.

And this latter comma, it is suggested, amounts virtually to the end of a parenthesis describing a part of the driveway, the whole of which the language of the deed is said to convey. And then the language of the deed proceeds: “to be used in common between the two places for a carriage or driveway,” * * *.

If we went no farther than this, if the deed contained no other language with reference to the driveway than what I have just now re-read, the suggestion having reference to the punctuation as thus pointed out, might - indeed have some force. It might indicate that the driveway, which was, as it then existed, convenient to be used only in complete circuit, was intended to be so described as to give the vendee an easement in all of the entire circuit which was not upon the land purchased by him. Proceeding further, however, with the re-reading of this description, there are some very significant words which, in our judgment, qualify what goes before,: “and said grantor conveys to said grantee said use of the parcel on his said land covered by said driveway south of that hereby conveyed, and reserves the right to use for passage and repassage the remaining portion of said driveway on the land hereby conveyed. ’ ’

Now, it is manifest that if the plaintiff’s contention is true, there are two parcels of the driveway on the defendant’s land in which he claims an easement, and yet the word “parcel” in the singular is used. I may recall to attention the fact that the driveway starts in on the defendant’s land, passes over to the plaintiff’s land, repasses to the defendants’ land and back ont on Washington avenue, so that there are two parcels on the defendant’s land in which the plaintiff claims an easement, and yet the language of the deed specifically refers to but one such parcel in which an easement is conveyed to him. But going still further:

“The corners of said driveway at Washington avenue to be marked by stones or iron piping sunk in the ground, as also the Washington avenue corners of £he lot hereby conveyed with the corner on the east line one hundred feet north of the south line as above described.”

Immediately upon the completion of this purchase the parties employed surveyors and one of those surveyors, the one, perhaps, employed by the vendor) went forward with the work of establishing the boundary lines between the two parcels and establishing the corners of the driveway. Iron pipes were placed in the ground and they are there now, as indicated by the evidence, to mark the boundary line between the two properties and to mark the two sides of the one entrance of the driveway which is nearest that boundary line, but there are no iron pipes at the other entrance.

It is said it was immaterial to the plaintiff here where the other entrance was to be located, just so there was another entrance ; but it was very material to him where the entrance nearest his property was to be fixed, because the line between them was near certain shade trees which it was very desirable that they should retain and it was very important that the driveway in its serpentine course should be fixed in such manner that the parties would know where it was located. This might take away some of the force of the inference which we draw from the acts of the parties in omitting to put iron pipes at the other entrance to the driveway; and yet, considering all of the language of the deed with reference to the driveway, and considering not alone what the intention of the scrivener, the purchaser, the plaintiff, was, when he drew the deed, but also the idea which the vendor, the defendant Strauss, would gain from this language, we are constrained to interpret it as meaning what he says it did mean to him, viz: that the driveway or that portion of it physically between the two houses was the part in which the easement so far as that driveway lay upon the vendor’s land was conveyed to the vendee.

The word “between” in the sentence “to be used in common between the two places for carriage or driveway” is of course, equivocal. It may mean physically between the two houses, between the two parcels, or it may be between in the sense of in common between the two proprietors. That is not convincing, but the singular number of the word “parcel” and the fact that only one of the two entrances was immediately staked off with iron pipes, the fact, too, that the description of a portion, the serpentine portion of the driveway physically between the houses, at first glance and without the construction by way of interpolated parenthesis, would convey to the casual reader the idea that only the serpentine portion between the two houses was intended to be described and conveyed leads us to the conclusion that Mr. Strauss might well have believed, as anyone would naturally infer, that this alone was included; and the parties, therefore, must be held to have meant by the language which they used only that part of the driveway which lies physically between the two houses.

The petition will therefore be dismissed.

I ought to say that the very learned and carefully prepared printed brief of the plaintiff has been of service to us in presenting fully his contention, and while we think we have not missed his view, we do not concur in it.

Winch and Marvin, JJ., concur.


text:
    CORPORATIONS
    [Summit (8th) Circuit Court,
    October 8, 1908.]
    Winch, Henry and Marvin, JJ.

      Cora B. Nevin v. Akron Engineering Co. et al.
    Corporations — Stockholder’s Liability — Limitations—Voluntary Dissolution.
    The voluntary dissolution of a corporation under the provisions of - Sec. 5674a R. S. (Sec. 8740 G. C. et seq.) does not cause the eighteen months to begin to run within which an action upon the liability of stockholders must be brought, as provided in Sec. 3258a, R. S. (Sec. 8688 G. C.)

      Affirmed no opinion, Akron Engineering Co. v. Nevin, 84 Ohio St. 498.

   HENRY, J.

This action to enforce stockholder’s liability was not begun within the eighteen months succeeding the voluntary dissolution of the defendant company, under Sec. 5674a R. S. (Sec. 8740 G. C. et seq.), and the filing with the secretary of state a certificate thereof under Sec. 2780-31 R. S. (Sec. 11974 G. C.), but it was begun within eighteen months after plaintiff’s claim was reduced to judgment and execution thereon returned unsatisfied. Under See. 3258a R. S. (Sec. 8688 G. 0.), it must have been begun, if at all, within eighteen months after plaintiff’s claim against the corporation was in a condition to assert it against its stockholders.

The rule established by our Supreme Court, and subsequently observed by this court sitting in Cuyahoga county, in the case of Scofield v. Excelsior Oil Co., 27 O. C. C. 347 (6 N. S. 169), precludes the assertion of any such claim against the stockholders of a corporation, however notoriously insolvent and out of business it may be, unless actually subjected to judicial liquidation, without the reduction of such claim to judgment against the corporation and the fruitless issue of execution thereon. This course was permitted in that case to be pursued pending the action, but the right to maintain the action was conditioned upon the observance of that procedure. On the facts, the plight of the defendant corporation here became very similar to- that of the Excelsior Oil Co. We can not say here, any more than we could there, that the cause of action against the stockholders accrued prior to the return of execution unsatisfied on judgment rendered in favor of the plaintiff and against the corporation.

The voluntary dissolution under the statute can not alter the case, for the sections above referred to expressly confer this right of voluntary dissolution only on solvent corporations which have paid, or suppose themselves to have paid, all their debts. There is no presumption whatever of corporate insolvency or of the necessity of creditors’ recourse to stockholders’ liability in such cases.

We think the present action is not barred but was seasonably commenced, and an interlocutory decree may be taken accordingly as usual in such cases.

Winch and Marvin, JJ., concur.


text:
    SALES
    [Summit (8th) Circuit Court,
    October 8, 1908.]
    Winch, Henry and Marvin, JJ.
    Freeman Stroh et al. v. Anton Peterson.
    Loss of Engine Sold but Destroyed by Fire Pending Delivery.
    Delivery is not essential to pass title to specific personal property sold, when nothing remains to be done to identify it or put it into a deliverable condition, unless a contrary intention is shown in the words or conduct of the parties. But when delivery by the seller at a stipulated place other than that of sale is customarily implied, or is expressly stipulated for an entire consideration which includes the purchase price payable on delivery, title and risk ordinarily remain with the seller, and he can not have his action for the price until such delivery is made.
    Error.
   HENRY, J.

The parties to this proceeding in error stand related as they stood below. The plaintiffs sold an engine which they had in use in Barberton and agreed to deliver it to the defendant in Akron. The latter was to send someone to participate in disconnecting the engine and getting it ready for transportation so as to know how to set it np again in the new location. Neither party was ready for the delivery to take place when the negotiations for the sale were consummated; but except as thus indicated nothing else remained to be done to put the engine into a deliverable condition. By agreement the buyer meanwhile made partial payments on the purchase price. Before the time for delivery arrived, however, the engine was destroyed by fire, and by mutual consent of the parties .was sold by the plaintiffs for scrap. The action below was brought for the balance of the purchase price, and the defendant, denying liability, counterclaimed for the partial payments by him made. Judgment was rendered on the verdict of a jury against the plaintiffs and for the defendant in the amount of his claim.

Various rulings, on the admission of evidence, in the charge of the court, in the refusal of plaintiffs’ requests, and in denying a new trial, are alleged here as error. Without discussing any in detail our views upon all the minor points in controversy, the main contention of the parties turns upon the question of law involved in the relation of the stipulated delivery to the transference of title and risk. There can be no question that by the law as declared in Ohio, in consonance with modern authority generally, delivery is not essential to pass title to specific personal property sold, where nothing remains to be done to identify the same or put it into a deliverable condition, unless a contrary intention is shown in the words or conduct of the parties. But where delivery by the seller at a stipulated place other than that of sale is customarily implied, or is expressly contracted for by the parties, for an entire consideration which includes the purchase price payable on delivery, title and risk will ordinarily remain in the seller and he can not have his action for the price until such delivery is made. Cunningham Iron Co. v. Warren Mfg. Co., 80 Fed. Rep. 878. True Terry v. Wheeler, 25 N. Y. 520, is apparently the other way, but it is sharply distinguished in Benjamin, Sales, (6th Ed.) 677.

Now it is in evidence in this case that the parties made no express stipulation as to when the title and risk should pass. Nor did they evince any intention whatever on the subject except such as the law implies from the terms of the agreement as made. Their conduct both before and after the fire, with respect to insurance and other details of their business transaction, does indeed evince a somewhat natural uncertainty as to what that implication of law might be; but there is nothing in the evidence which was properly admitted nor in that alleged to have been erroneously admitted or excluded, which could alter the case. Practically the only material fact in controversy was whether the agreed price was $410 for the engine delivered or only $400 for the engine and $10 for the delivery. By the court’s charge the jury’s verdict was properly made to hinge chiefly upon this distinction, and we see no reason to disturb it. The requests refused, though perhaps correct in themselves, would not have aided the jury in the determination of this issue.

Judgment affirmed.

Winch and Marvin, JJ., concur.


text:
    INSANE PERSONS
    [Cuyahoga (8th) Circuit Court,
    October 8, 1908.]
    Winch, Henry and Marvin, JJ.

      Mary Kyser v. George Benner, Exr.
    Implied Authority of Wife of Imbecile to Enter Into Express Contract for His Benefit.
    The wife of an imbecile has implied authority to enter into an express contract to engage the services of an adult member of the family in the care of him and his household.
    Error.

      Affirmed no opinion, Benner v. Kyser, 83 Ohio St. 510.

   HENRY, J.

The sole error alleged here is in sustaining the demurrer to the second amended petition below. Mary Kyser, stepdaughter of the decedent, John R. Benner, then an imbecile under guardianship, was induced by her mother, the wife of said Benner, to leave other lucrative employment which she had, outside the family house, and to engage in the service of said Benner, helping to take care of him and of the household, in consideration of the express promise made in his behalf by his wife that she should be paid the reasonable worth of her services. Benner did not, and by reason of mental incapacity could not expressly authorize his wife to make this agreement; but the services were necessaries which the wife had authority implied in law to obtain upon his credit in case of his failure, by himself or guardian so to do. Such was the ease here; and the action below was brought to recover the reasonable value, according to agreement, of the services so rendered.

It was, however, successfully urged in the court below that under the authority of Hinhle v. Sage, 67 Ohio St. 256 [65 N. E. 999], no recovery can be had for services rendered in the home by a member of the family except under an express contract, and that in the nature of things Benner could not and did not enter into any express contract, nor during his incapacity could he confer authority upon an agent so to do.

"While this is true, it is also true that the wife’s authority in the premises arose not from any express authority conferred by her husband, but from the authority implied by law from the relation of the parties as husband and wife, the compelling exigencies of family life, and the duty of the husband to provide. The reason for the rule, instead of failing, becomes all the more urgent when the husband is under disability.

Nor is the wife’s authority, as thus derived, limited to the making of implied contracts to charge her husband with the reasonable value of necessaries supplied to her, or to the family, at her request. There is no reason why, in the exercise of her implied authority, she should not expressly pledge her husband’s credit for the necessaries which she so procures, if the law, on other distinct grounds, as here, requires that the agreement for any such necessary be express in order to be binding. There is no repugnancy in the express exercise of the implied authority to contract. In our opinion the petition states a cause of action, and the demurrer should have been overruled. For error in sustaining the same the judgment below is reversed, the demurrer overruled and the cause remanded.

Winch and Marvin, JJ., concur.


text:
    DAMAGES — STREET RAILWAYS
    [Summit (8th) Circuit Court,
    April 8, 1908.]
    Winch, Henry and Marvin, JJ.
    Northern Ohio Trac. & L. Co. v. Charles Peterson.
    1. Passenger Wrongly Ejected from Street Car May Testify as to Feelings.
    In an action by a passenger for wrongful ejectment from a street car, he may testify that when he was put off he felt “cheap and bind of ashamed of himself” as if he had “done something wrong.”
    2. Exemplary and Punitive Damages Recoverable for Wrongful Ejectment from Street Car.
    When a passenger in utter disregard of his rights, is forcibly ejected from a street car in such manner as to expose him to ridicule and to impute to him an attempt to commit a fraud by riding free, punitive or exemplary as well as compensatory damages may be allowed.
    3. Verdict of $500 for Wrongful Ejectment from Street Car, Excessive.
    A verdict for $500 for forcible ejection from a street car is excessive, when there are no specially aggravating circumstances and no evidence of a studied or systematic evasion of franchise obligations.
    Error.

      Rogers, Rowley <# Rockwell, for plaintiff in error.

      A. J. Wilhelm and Grant, Sieber & Mather, for defendant in error.
   HENRY, J.

The defendant in error, Peterson, brought his action below to recover damages for unlawful ejection from a street car when he presented an imperfectly punched transfer. The conductor from whom he received it, having lost his punch, gave him the transfer in question with instructions to explain the circumstances to the other conductor who would honor it for him. This he did but was put off. He recovered a verdict and judgment of $500.

The first error assigned is in permitting Peterson to testify that when thus put off he felt “cheap and hind of ashamed of himself” as if he had “done something wrong.” This direct testimony to his sense of humiliation and indignity was the best possible evidence of the fact in issue. It was neither an opinion nor hearsay. The fact that another than he who suffers perceives no pain, be it either physical or mental, affords no reason why the sufferer himself should not testify thereto, precisely as any witness may testify to any fact which has come under the observation of his senses whether anyone else was in a position to observe it or not.

The second error assigned is the giving of defendant in error’s request:

“If you believe from the evidence that plaintiff was forcibly ejected from the car by defendant’s conductor and the ejection was done in such a manner and accompanied by such language on the part of the conductor as to expose plaintiff to the ridicule of other passengers, and imputed to him an attempt to commit a fraud on the defendant by deceiving the conductor with a worthless transfer so as to ride free, you may award to plaintiff punitive or exemplary damages; that is, damages in addition to compensatory damages, for the purpose of punishing the defendant for the wrong done to plaintiff and to furnish an example to deter others from doing likewise. ' In awarding such, however, you should be extremely cautious and not go beyond the bounds of reason. You may take into consideration reasonable counsel fees to which plaintiff may have made himself liable in prosecuting his claim. ’ ’

It is urged that this should have been qualified by inserting the condition that the ejectidn must have been wilful, or wanton, or in utter disregard of plaintiff’s rights to authorize exemplary damages. But the truth is that if he was put off at all, under the circumstances indicated, his rights were utterly disregarded. There is no middle ground. It is urged further that the element of being falsely charged with attempting to deceive the conductor with a worthless transfer so as to ride free, was not in the plaintiff’s petition and could not therefore be a proper element of recovery. But we think this was a view of the matter which the jury might well be authorized to take, if they should so find; for, though not a necessary, it is a natural and legitimate deduction from the facts expressly in issue.

It was intimated upon the hearing that this request was open to the criticism that it takes for granted that the ejection was wrongful an'd that plaintiff’s story of the preceding events was true; whereas in fact that story was for the jury to believe or disbelieve as they might. But on inspection of the bill we find the company’s claim agent, a witness in its behalf, testifying that the transfer (which was in evidence) was in fact issued, in the condition in which it now appears, by a conductor, who, though present at the trial, was not offered by the defendant as a witness. It is evident that in this state of the case the plaintiff in error was not prejudiced by the court’s assumption of a state of facts, which, though formally denied by the answer, was thus virtually conceded to be true to the extent indicated.

A like objection to a paragraph of the charge at page 93 of the bill is not well taken because it begins with the condition, “If you find for the plaintiff,” and, therefore, does not contain any assumption which the court was not warranted in making in charging the jury.

The third error assigned consists in the court’s refusal to charge on contributory negligence as requested. The requests are no doubt correct in law, but they have no application to the case made. Peterson knew that his transfer was imperfectly punched, but he relied on the conductor’s assurance that it would nevertheless be honored. It is not a case of negligence at all, on either side.

The fourth error assigned is misconduct of counsel of plaintiff below in argument to the jury. There was evidently some misconduct. But a careful scrutiny of each item discloses that the improper language attributed to counsel in one or two of the exceptions taken is not expressly averred by the bill to have been spoken as charged. Another instance we think was sufficiently met by the court’s ruling and caution to the jury and counsel. Still another did not amount to misconduct; and in the remaining instances the question was not saved, by the reservation of proper exceptions. Taking it altogether, while we have no toleration for misconduct of the sort here charged, no reversible error in this behalf is disclosed in this record.

The fifth and final assignment of error is that the verdict is excessive, evincing bias and prejudice on the part of the jury. "We think this is true. This was not a specially aggravated case. There was no studied or systematic evasion of franchise obligations as to fares or transfers, on the part of the company.

The company is, of course, answerable for its agent’s misconduct, but there is no showing that it inspired or desired such misconduct on the part of its agents in this case. There was no bodily injury inflicted upon Peterson in putting him off. It was all due to misadventure and misjudgment on the part of the two conductors — the one in losing his punch and in making the improvident and ill-judged substitute arrangement for the punching of the transfer in the regular manner, and on the part of the other conductor in not heeding a probable story that was told him by a passenger. To one or the other, or both, the wrongful conduct of the company in putting him off the car to which he was entitled to ride, is chargeable, of course. It was all due to misadventure and misjudgment on the part of two conductors, and not malice or ill-will. Yet the verdict is in amount what would suffice if all these were elements in the case. We think $150 would cover actual damages and expenses of prosecuting this action, besides penalizing the company up to the full limit for its laxity and the injustice perpetrated, and unless the defendant in error will remit all of his original judgment in excess of $150 the same will be reversed and remanded for error in refusing the motion for a new trial on this account. If remittitur is made the judgment will be affirmed.

Winch and Marvin, JJ., concur.


text:
    RAILWAYS
    [Cuyahoga (8th) Circuit Court,
    June 30, 1909.]
    Winch, Henry and Marvin, JJ.
    Akron, C. & Y. Ry. v. Akron (City).
    Act Relating to Railway and Highway Crossings at Grade Held Valid. Section 4, Act 99 O. L. 58, to provide how railroad and highway crossings may he constructed, is constitutional and valid.
    Error.

      Grant, Sieber & Mather and Jonathan Taylor, for plaintiff in error.

      N. M. Greenberger and Allen, Waters, Young & Andress, for defendant in error.
   HENRY, J.

A preliminary question on this appeal involves the constitutionality of “An act to provide how railroad and highway crossings may be constructed, ’ ’ particularly of Sec. 4 of said act, as amended by 99 O. L. 58.

It is claimed that this section is invalid because it attempts to confer legislative power upon the court of common pleas and to enable that court to create the right in railroad or municipal corporations, or both, whereby, under certain circumstances, a railroad and a highway may be made to intersect at grade. The general policy of the state, as declared in previous sections of the same act, is to prohibit the construction of grade crossings, and to require a separation of grades in all cases thereafter arising, where railroads and highways intersect.

Section 4 attempts to provide for exceptions to this rule, and it authorizes the court of common pleas, upon proper application by either a railroad or a municipal corporation, to make an order, permitting a crossing at grade, upon allegation and proof that such construction is reasonably required, first, “to accommodate the public,” or second, “to avoid excessive expense in view of the small amount of traffic on the highway or railroad, and considering the future uses to which said highway may be adapted,” or. third, “in view of the difficulties of other methods of construction,” or fourth, “for other good and sufficient reasons.”

It is clear that if the right to cross at grade in such cases is by the terms of this statute to be created by the court, the statute is invalid, because it attempts to invest a judicial tribunal with legislative power. On the other hand, if the statute is to be construed as a legislative grant of power to cross at grade, subject in its exercise to the determination by the court of the existence of some one of the statutory conditions, upon which it is made to depend, the law is valid, for the sole function thus imposed upon the court is a judicial and not a legislative function.

The phraseology of the statute is such as to invite at first reading the former construction, but we are mindful of our duty to uphold the statute, if it be at all susceptible of the second construction. Heeding this rule we should still incline to the former construction if the ease were entirely one of first impression, but the Supreme Court has upheld the validity of- a statute which presents similar difficulties in the case of Fairview v. Giffee, 73 Ohio St. 183 [76 N. E. 865]. That statute provides, in substance, that the owner of unplatted farm lands lying within the corporate limits of any municipality may file a petition in the court of common pleas, setting forth the reasons why such lands should be detached, and upon notice to the municipal authorities, and a hearing of the cause, the court may, in its discretion, enter an order that the land's be detached from such municipality, provided the same may be done without material detriment to good government. No express words were employed to indicate that the Legislature intended to create a right to such detachment, nor was there any enumeration of the conditions upon which the exercise of such right was made to depend, yet the Supreme Court read these things into the act, and held that the Legislature had. created a legal right in the owners of unplatted farm lands, lying within the corporate limits of a municipality, to have the same detached, where good reason exists, one manifest reason therefor being to relieve such owners from the burdens of unfair taxation. When, therefore, the court upon application, should find that such reason existed and no material detriment to good government would arise from detachment, it could not properly withhold the order permitting such detachment, for the discretion given to the court by the statute was a purely judicial discretion.

We forbear extended discussion of the authorities cited in that case as well as of those cited to us by counsel in this ease, and content ourselves with stating merely that a majority of the court are unable to escape the application of the rule of Fairview v. Giffee, supra, to the case before us.

We hold Sec. 4 of the act to provide how railroad and highway crossings may be constructed is constitutional and valid, and the objection to the sufficiency of the petition and to the introduction of. evidence thereunder is overruled.

A master commissioner will be appointed to examine the matter of the application presented by the petition herein and to report the evidence taken by him, together with his conclusions of law and of fact as to whether or not the grade crossing petitioned for is reasonably required for any of tbe causes enumerated in the act.

We believe that the general policy of this state in respect to the abolition of grade crossings is such that such crossings should not be permitted unless a clear case under the statute is made out.

Marvin J., concurs.

Winch, J., dissents.


text:
    ACCOUNTS — PAYMENTS
    [Cuyahoga (8th) Circuit Court,
    January, 1909.]
    Winch, Henry and Marvin, JJ.
    George J. Renner Brew. Co. v. Dennis Michynak.
    No Demand for Repayment Necessary when Overpayments on Open Account Made by Mistake.
    In an action on an account, with counterclaim for overpayments, when it appears that the overpayments were not voluntary, but were made by mistake, while the account was still open, no demand for their repayment is necessary to entitle the defendant to enforce repayment.
    Error.

      Grant, Sieber <& Mather, for plaintiff in error.

      Otis, Beery & Otis, for defendant in error.
   HENRY, J.

The action below was upon an account for beer sold and delivered to the defendant in error, a saloon-keeper, by the plaintiff brewing company. The former counter-claimed for overpayments made upon said account and recovered a verdict and judgment.

Error is assigned upon the insufficiency of the counterclaim ; but we think that the record sufficiently shows that the overpayments were not voluntary and were made by mistake. No demand for their repayment was necessary before suit brought, for the account was open, with debits and credits on each side.

Error is also assigned upon the admission of testimony of plaintiff’s witness, Mary Kinney, who as a bookkeeper had examined the books of both parties and testified to her computations made therefrom. We have carefully read her testimony and find it competent under the rules laid down in Lawson, Expert and Opinion Evidence 186.

It does not appear that her written summary of the computations was received in evidence after objection made thereto. Her oral testimony as to the fact of overpayment is, however, clear, and though the amount is apparently stated at one point in the record to be $2.40 (a sum less than the verdict), it is elsewhere made plain, not only in her testimony but, somewhat less clearly in that of the defendant himself, that the final balance is substantially as the jury found it to be.

There is indeed an irreconcilable conflict in the whole evidence as to the true state of the accounts between the parties, but we can find no sufficient reason to disturb the verdict as being against its weight.

The charge of the court is complained of, first, because of the term “preponderance of evidence” was used without definition; but the court mentioned as his reason for omitting generalities that the jury had been sitting in many cases, and counsel did not ask for elaboration.

It is further complained that the court, without warrant from the evidence, imported into the issue “items in dispute in regard to deliveries of beer”; but the record shows plainly that there was such dispute, not indeed as to the fact of deliveries, but whether certain of them did not antedate a former full settlement.

The court, it is also urged, committed error in referring to drivers’ discounts on collections, and corrections of credits to the defendant so as to include the same; but the testimony of Miss Kinney and the books of the parties clearly raise the question of fact to which this instruction properly applies. It was for the jury to decide whether there were any such rebates not credited.

We find no error in the record and the judgment is affirmed.

Winch and Marvin, JJ., concur.


text:
    CORPORATIONS — -PRINCIPAL AND AGENT
    [Summit (8th) Circuit Court,
    January, 1909.]
    Winch, Henry and Marvin, JJ.
    Akron Brewing Co. v. Brunswick-Balke-Collender Co.
    Implied Authority of Agent of Brewing Company to Purchase Bowling Alley for Saloon.
    There is no implied authority in the manager of a brewing company to order a bowling alley installed in connection with a saloon.
    Error.
   HENRY, J.

The action below was brought by the defendant in error on an account to recover the price of a bowling alley installed in connection with the saloon of one Eliza Lee upon the order of William Fuchs, manager of the plaintiff in error. The main issue was upon the agent’s authority. The evidence discloses no express authority to make this purchase; nor, in view of the provisions of Sec. 7000 R. S. (Sec. 13396 G. C.), prohibiting bowling alleys in connection with saloons, is such authority to be inferred. There was no express ratification, nor, since the plaintiff in error did not itself get and has not used the bowling alley, is any implied.

The judgment below, not being sustained by sufficient evidence, is reversed and the cause remanded.

Winch and Marvin, JJ., concur.


text:
    CARRIERS
    [Summit (8th) Circuit Court,
    January, 1909.]
    Winch, Henry and Marvin, JJ.
    Pullman Co. v. George H. Goble, Admr.
    Liability of Sleeping Car Company for Jewelry Left in Berth.
    A verdict against a sleeping car company for the value of jewelry left in a berth by a passenger and alleged to have been stolen by the porter, will be set aside when the only evidence that the porter stole tbe jewelry is tbe fact that be, in common with passengers on tbe.car, bad an opportunity of stealing it.
    Error.

      Otis, Berry & Otis, for plaintiff in error.

      G. M. Anderson, for defendant in error.
   HENRY, J.

The action below was brought to recover the value of personal jewelry alleged to have been stolen by the porter of a sleeping car from the defendant in error’s intestate, a passenger. On retiring, she put the jewelry in a bag by her side between the sheets of her lower berth, and neither saw nor thought of the same again till several hours after leaving the train the next morning at dawn. The porter, appearing at her berth, waked her before light, and repeatedly urged her to make haste in rising and completing her toilet. He warned her that the train was near her destination, and rapped loudly several times at the door of the woman’s dressing room to which she’ had repaired. The lights in the car having failed' he had provided her with a candle, and later at her request, he searched in and about her berth for some of her hat pins. She was ready in ample season to leave the car' when her stop was reached; and, after she had alighted, the porter passed her hand baggage to her from the car steps, but did not carry it to the waiting room as she desired.

Meanwhile three other passengers were aroused by the noise thus made; and when the porter returned, one of them saw him apparently making up the berth which had been vacated, though it seems that the upper berth was still occupied. There may be some other slight circumstances relied on to cast suspicion on the porter; but, aside from his more convenient opportunity to steal the jewelry, there is scarcely more reason to charge him with such theft than any of the other occupants of the car. Neither he nor they saw or knew of the jewelry beforehand. The jury’s verdict is purest guesswork, and because it is not supported by sufficient evidence, the judgment is reversed and the cause remanded.

Winch and Marvin, JJ., concur.


text:
    BENEFICIAL ASSOCIATIONS
    [Summit (8th) Circuit Court,
    January, 1909.]
    Winch, Henry and Marvin, JJ.
    Akron Printing & Paper Co. v. Chevaliers (Sup. Council) et al.
    Trustees of Fraternal Order not Personally Liable for its Debts.
    The provision of Sec. 3261 R. S. (Sec. 8666 Gr. C.), that the trustees of a corporation created for a purpose other than profit shall be personally liable for all debts of the corporation by them contracted, has no application to fraternal orders incorporated under the laws of the state.
   HENRY, J.

The plaintiff company seeks to subject the liability of trustees of the defendant fraternal order, which is insolvent, to the payment of its account against the order. Section 3261 R. S. (See. 8666 G. C.), provides that “the trustees of a corporation created for a purpose other than profit, shall be personally liable for all debts of the corporation by them contracted. ’ ’ The main issue is whether this general provision in the first chapter of Title 2 on Corporations applies to Sees. 3631-11 to 3631-23® R. S. (Secs. 9462 to 9483 G. C.) in the tenth chapter of the same title, where the act respecting fraternal orders (92 O. L. 360, replaced later by 97 O. L. 420) is inserted.

Originally this act (92 O. L. 360) did not purport to stand related to any portion of the Revised Statutes, except that it provided negatively-that fraternal orders should not “be required to make any report under this or any other section of the insurance laws, ’ ’ thereby referring evidently to said chapter 10 of Title 2 aforesaid, entitled “life insurance companies.” It was plainly intended to be an independent act for the government of fraternal beneficiary associations. And though the amended act (97 O. L. 420) refers expressly to the sectional numbers annexed by Bates’ Statutes to the original act, we attach no importance to that circumstance. Any such association was by the act “declared to be a corporation, society or voluntary association, formed or organized and carried on for the sole benefit of its members and their beneficiaries.” It was further provided that “Each association shall have a lodge system, with ritualistic form of work and representative form of government, and may make provision for the payment of benefits, ’ ’ etc. For an existing unincorporated association the assumption of a technically corporate character under the act seems to have been optional, and the manner of corporate organization therein provided differs materially from that prescribed by the general corporation laws, though it is akin, at least, to that of non-stock corporations not for profit.

As to any association which should assume this corporate character, the provision of Art. 13, Sec. 3 of the Constitution, both before and since its recent amendment regarding the security to be prescribed by law for dues from corporations, was and is met by the requirement that the payments of benefits and expenses shall be made out of á separate fund “derived from assessments, dues, or other payments collected from its members.” The amended act, it is true, expressly provides that officers shall not as such be personally liable for the payment of the benefits; and from this we are asked to infer that they are liable for expenses under Sec. 3261. While there is force in this argument, it has no application to the original act, and we think there is no sufficient intention manifested in the amended act to enlarge the liability in this behalf. On the contrary, the provision in Sec. 1 of the original act, that “such associations shall be governed by this act” is amplified by Sec. 4 of the amended act so as more clearly to exclude the applicability of other laws by prefixing thereto the words “except as herein provided.”

While the case before us is by no means so clear as Kelley v. Bender, 12 Circ. Dec. 181, 183 (22 R. 147), and Mamifactures’ Fire Ass’n v. Lynchburg Drug Mills, 4 Circ. Dec. 350, (8 R. 112), we nevertheless apply the rule laid down in those eases and hold that Sec. 3261 has no application to fraternal orders incorporated under these statutes. The petition will be dismissed.

Winch and Marvin, JJ., concur.


text:
    COVENANTS
    [Summit (8th) Circuit Court,
    January, 1909.]
    Winch, Henry and Marvin, JJ.
    Hannah Carmichael v. Philander D. Hall et al.
    Uniform Restrictions as to Lots in Allotment Enforcible Against Aiioters.
    The rights of a purchaser of a lot in an allotment as to which the owners have adopted a uniform scheme of restrictions and limitations, made binding upon her by covenant in her deed, but not therein expressly covenanted to be binding upon the allotment owners, to compel said owners to impose similar restrictions upon all lots sold by them does not rest in contract, nor consist of an estate or easement in other lots, but flows from the inequity of allowing the abandonment of a uniform scheme of restrictions after the owners of the allotment have sold part of the lots on the faith of its enforcement as held out by them to the particular purchaser or the public at large.
    Error.
   HENRY, J.

Judgment below was entered upon demurrer sustained to the petition. The action was brought by the purchaser of the first lot sold in the defendants’ park allotment, to enjoin them from violating their uniform scheme of restrictions and limitations applying to said allotment as held out to plaintiff and made binding upon her by covenant in her deed at the time of her purchase, but not therein expressly covenanted to be binding also upon the defendants. The demurrer is founded upon the assumption that a writing is necessary to create in the grantee under such circumstances a reciprocal right, because such right is an interest or easement in the land under the statute of frauds. The truth is that plaintiff’s right need not rest in contract nor consist of an estate or easement in the remainder of the allotment. Her rights flow rather from the inequity of allowing the abandonment of a uniform scheme of restrictions after the-owners of an allotment have sold part of the lots on the faith of its enforcement as held out by them to the particular purchasers or the public at large. And even if such an equity in the grantee be regarded as an equitable estate in the allotment there is nothing in our statute of frauds requiring it to be evidenced by a writing. We have more than once enjoined violations by allotment owners of their uniform schemes of restrictions under just these circumstances.

The judgment is reversed and the cause remanded with instructions to overrule the demurrer to the petition.

Winch and Marvin, JJ., concur.


text:
    INSURANCE
    [Medina (8th) Circuit Court,
    1909.]
    Winch, Henry and Marvin, JJ.

      Union Insurance Co. v. Catherine Billman.
    Waiver of Prompt Payment of Premium by Negligence of Company’s Agent.
    There may he a recovery on a fire insurance policy, though the premium was not paid to the company’s agent until after due and after the fire, when it is shown that the company’s agent received the premium and remitted it to the company, which returned it to the agent with instructions to refund it to the insured, hut the agent failed to tender it to the insured until six or eight months after the fire and long after suit brought, such tender then being refused.
    Error.

      J. W. Seymour, for plaintiff in error.

      John O. Lisey and Grant, Sieber & Mather, for defendant in error.

      Affirmed no opinion, Union Insurance Co. v. Billman, 82 Ohio St. 451.

   HENRY, J.

The relation of tbe parties bere is tbe reverse of tbeir relation below. Tbe defendant in error recovered a verdict and judgment on an insurance policy for a partial loss by fire. Her third amended petition, which embodied the policy, shows that after the fire she paid to the plaintiff in error’s agent an assessment which was then so long overdue that (as decided on a former review of this case) her insurance stood suspended. But the plaintiff alleges waiver. The agent remitted the money to his company, which, however, returned to him the portion covering the destroyed property, with instructions to return it to the insured. This he failed to do until six or eight months after the fire, and long after suit brought, and then, upon tender, the insured refused to receive it. This delay was shown by the company’s own witness and stands undisputed; and the other facts above recited are conceded.

There could be no issue as to the making of the assessment or the giving of notice, in view o£ the admissions in the third amended petition.

The plaintiff’s ownership and the value of the property destroyed were disputed, but were found by the jury upon competent evidence and upon a charge which was as to these matters correct. The court’s charge as to waiver contained no error prejudicial to the company. Union Mutual Life Ins. Co. v. McMillen, 24 Ohio St. 67; Phoenix Ins. Co. v. Hoeffler, 1 Circ. Dec. 403, (2 R. 131) 2 Joyce Insurance, 1375, n. 217; Phoenix Ins. Co. v. Tomlinson, 125 Ind. 84 [25 N. E. 126; 9 L. R. A. 317; 21 Am. St. 203] ; Phoenix Ins. Co. v. Lansing, 15 Neb. 494 [20 N. W. 22]; Universal Fire Ins. Co. v. Block, 109 Pa. St., 535 [1 Atl. 523]; German Ins. Co. v. Shader, 68 Neb. 1 [93 N. W. 972; 60 L. R. A. 918]; Johnston v. Phelps County Farmers Mut. Ins. Co., 63 Neb. 21 [88 N. W. 142; 56 L. R. A. 127] ; Schoneman v. Western Horse & Cattle Ins. Co., 16 Neb. 404 [20 N. W. 284]; Western Horse & Cattle Ins. Co. v. Scheidle, 18 Neb. 495 [25 N. W. 620]; Phoenix Ins. Co. v. Dungan, 37 Neb. 468, 473 [55 N. W. 1069].

The corporation is bound by its agent’s negligence. Citizens Savings Bank Co. v. Blakesley, 42 Ohio St. 645.

Though the burden of proving the alleged waiver was upon the plaintiff (Eureka Fire & Marine Ins. Co. et al v. Baldwin, 62 Ohio St. 368, 383 [57 N. E. 57]; Mehurin v. Stone, 37 Ohio St. 49, 50), and ordinarily in such case the court can not direct a verdict for the plaintiff, nor refuse a motion for a new trial after a verdict for plaintiff founded upon an erroneous charge, yet this being a case wherein the facts are conclusively determined in a manner not affected by material error, the application of the law to such facts could only result in the verdict which the jury in fact rendered Cincinnati Gas & Elec. Co. v. Archdeacon, 80 Ohio St. 27 [88 N. E. 125; 23 L. R. A. (N. S.) 910; 135 Am. St. 735] and the judgment is affirmed.

Winch and Marvin, JJ., concur.


text:
    HUSBAND AND WIFE — NEGLIGENCE
    [Cuyahoga (8th) Circuit Court,
    October 11, 1909.]
    Henry, Marvin and Winch, JJ.
    M. O’Neil & Co. v. Mary Perry.
    Married Woman Whose Husband Has Deserted Her may Recover for Loss of Her Own Services.
    In an action for damages resulting from personal injuries, a married woman, whose husband has deserted her, may recover for loss of her own services.
    Error.

      Musser, Kirnber & Huffman, for plaintiff in error.

      Skiles, Green & Skiles and W. B. Talbot, for defendant in error.
   HENRY, J.

Mrs. Perry while a customer in defendant’s store, stepped into an opening in the floor in one of the corridors and sustained injuries to her ankle. The hole was open for the purpose of putting in a water pipe for a sprinkling system in the store. Mrs.' Perry recovered a verdict and judgment of $3,000 in the court below. She claims that the hole was not properly barricaded and that the place was poorly lighted. Much evidence both ways on these points was produced below, and there are some inconsistencies in Mrs. Perry’s own testimony, but we can not say that the weight of the evidence is manifestly inconsistent with the jury’s verdict, in regard either to the company’s alleged negligence or the alleged want of care on the part of the plaintiff below. Her view of the hole, even in the place where sufficiently lighted, seems to have been so obstructed by the presence of some other woman, also a customer in the store, that we can not say she would have observed it by the proper use of her senses. So, too, while there may have been some barricade before the hole, she appears to have walked into it, not directly, but by reason of changing her direction in response to somebody’s call and suggestion as to where she might find the elevator which she was seeking.

It is also claimed that the jury’s verdict is contrary to the weight of the evidence in respect of the issue made by the pleadings as to the validity of a certain release of liability signed by Mrs. Perry. She is unable to read and write, except to the extent of signing her own name. She declares that the release was not properly read to her, but that only the first words thereof, which recited the receipt by her of money from the plaintiff in error were read. Whatever doubts we may have about the truth of her testimony in this regard, we 'are not warranted by the direct conflict of evidence on this point in saying that the jury’s finding is plainly and manifestly wrong.

The only remaining assignment of error relates to the measure of damages. It is said that the plaintiff was allowed to prove and to recover for the loss of her own services, etc., which in law belonged exclusively to her husband. But the truth is, as shown by her testimony, that her husband deserted her about two months after the accident, and it is admitted that the amounts paid her from time to time before suit was brought were intended to and did pay the wages of a servant whom she employed during that period to render those services in so far as they could form an element of her recovery in this action, and we must presume that the jury has not allowed a second compensation for the same loss of service. The husband by his desertion clearly forfeited whatever rights in this behalf he might have had, covering the period that has since elapsed. The court’s charge is not open to the criticism that he expressly instructed the jury that Mrs. Perry might recover for loss of service, and as for the evidence in that behalf which was admitted, we think the jury could not have failed to gauge it correctly when all the facts were considered together. There was no error in this particular.

Neither is the verdict so clearly excessive as to evince passion or prejudice on the part of the jury. It is true that a former jury awarded only about one-quarter .of the amount allowed by this one, but in the meantime the effects of Mrs. Perry’s injuries have persisted and it appears from ,the testimony of the physicians that they are likely to be permanent.

The judgment below is affirmed.

Marvin and Winch, JJ., concur. ■


text:
    JUDGMENTS AND DECREES
    [Summit (8th) Circuit Court,
    October 11, 1909.]
    Henry, Marvin and Winch, JJ.
    William Schliewe v. W. Frank Poole.
    Vacating Judgment Obtained by Fraud on Motion Filed More Than Three Days After Next Term Erroneous.
    It is error to vacate a judgment for fraud in obtaining it on motion filed more than three days after the beginning of the next term of court.
    Error.

      Holloway & Chamberlain, for plaintiff in error.,

      J. A. H. Myers, for defendant in error.
   HENRY, J.

This litigation originated in a justice’s court. After judgment it was appealed to the common pleas court, where petition was filed September 26, 1908, and for want of answer or demurrer, judgment was rendered December 21, 1908, during the September term of court. A motion to vacate said judgment was filed February 13, 1909, more than three days after the beginning of the January term; and later this motion was granted, upon the ground set forth in the motion. This ground was that the parties had agreed that no pleadings should be filed nor anything done in the action, pleading negotiations for settlement, but that during the progress of those negotiations the plaintiff, without the knowledge of the defendant, filed his petition and subsequently took judgment.

The error here assigned is that the court of common pleas had no jurisdiction to vacate a judgment upon a motion filed more than three days after the beginning of the next ensuing term of court. This is true with respect to the third ground' mentioned in Sec. 5354 R. S. (Sec. 11631 G. C.) for vacating or modifying judgments after term, to wit, “For mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order.”

It is not true of the fourth ground mentioned in said Sec. 5354 R. S. (Sec. 11631 G. O.), i. e., “for fraud practiced by the successful party in obtaining the judgment or order.” See Secs. 5357 (11634) and 5358 (11635).

Follett v. Alexander, 58 Ohio St. 202 [50 N. E. 720], affords an illustration of such irregularity in obtaining judgment as will authorize its vacation on motion filed more than three days after the commencement of the next succeeding term.

Ralston v. Wells, 49 Ohio St. 298 [30 N. E. 784], affords illustration of fraud practiced by the successful party in obtaining judgment, necessitating the filing of a petition and the issuance of summons, if the proceedings to vacate are begun at a subsequent term.

The case before us comes within the latter category, and the application here having been made by motion instead of by petition, it is apparent that the court below was without jurisdiction to entertain it.

A further reason why the judgment below should be reversed is found in the nonobservance of See. 5360 R. S. (Sec. 11637 G-. C.) which provides that, “A judgment shall not be vacated on motion or petition until it is adjudged that there is a full defense to the action in which the judgment is rendered,” etc. Follett v. Alexander, supra.

The vacating of the judgment in this case was therefore erroneous and void for want of jurisdiction.

The judgment to that effect will therefore be reversed and the original judgment restored in full force and effect.

Marvin and Winch, JJ., concur.