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    PRINCIPAL AND AGENT — TRUST.
    [Cuyahoga (8th) Circuit Court,
    February 14, 1911.]
    Henry, Marvin and Winch, JJ.
    William E. Telling v. J. J. Sullivan et al.
    1. Bank Official Gratuitously Engaging to Find Purchaser for-Customer’s Stock Becomes Agent Precluding His Purchase without Disclosing Fact.
    A bank official who gratuitously engages to find a purchaser for certain stock owned by a customer of the bank, thereby becomes the agent of said customer and cannot thereafter himself become the purchaser of said stock without full disclosure of that fact to his principal and the latter’s assent thereto.
    2. Four Years’ Lapse oe Time oe Discovery oe Fiduciary Relation not • Bar to Rescission oe Sale.
    Mere lapse of time, short of four years from the discovery hy the principal that the agent bought the stock for himself, will not bar an action in equity for the restoration of the stock, notwithstanding meanwhile it has greatly increased in value.
    [Syllabus by the court.]
    Appeal from common pleas court.

      Smith, Taft <& Arter and S. H. Tolies, for plaintiff.

      White, Johnson '& Gannon, for defendants:
    Colonel Sullivan was agent for Mr. Telling, no consideration for agency being necessary. 31 Cye. 1216; 1 Am. & Eng. Enc. Law 950.
    An agent to sell cannot purchase for himself. 4 Am. & Eng. Enc. Law 966; Taussig v. Hart, 58 N. Y. 425'; 1 Am. & Eng. Enc. Law (2 ed.) 1077; James v. James, 55 Ala. 525; Dos Pasos, Stock Brokers p. 365; Peckman Iron Go. v.^Harper, 41 Ohio St. 100; Welsh v. Perkins, 8 Ohio 52 [28 Am. Dec. 640]; Armstrong v. Huston, 8 Ohio 552; Mitchell v. Dunlap, 10 Ohio 120; Glass v. Greathouse, 20 Ohio 503, 515; Barrington v. Alexander, 6 Ohio St. 189; Caldwell v. Caldwell, 45 Ohio St. 512 [15 N. E. Rep. 297]; Davoue v. Fanning, 2 Johns. Ch. (N. Y.) 252; Piatt v. Longworth, 27 Ohio St. 159; Mechem, Agency Sees. 454, 455, 456, 461, 463, 464, 952; Pomeroy, Eq. Jur. Sec. 958; Perry, Trusts 195, 197; Van Epps v. Van Epps, 9 Paige (N. Y.) 237; Cox v. John, 32 Ohio St. 539.
    If J. J. Sullivan could not purchase from Telling, Corliss could not; for J. J. Sullivan could not do indirectly what he is forbidden to do directly. Tyler v. Sanborn, 128 111. 136 [21 N. E. Rep. 193; 4 L. R. A. 218; 15 Am. St. Rep. 97] ; Trice v. Comstock, 121 Fed. Rep. 620 [57 C. C. A. 646; 61 L. R. A. 1761]; Pomeroy, Eq. Jur. Secs. 959, 963; Frazier v. Jeakins, 64 Kan. 615 [68 Pac. Rep. 24; 57 L. R. A. 575].
    The finding of the stock in the possession of Col. Sullivan immediately raises a presumption of breach of his duty as agent.
      McGar v. Adams, 65 Ala. 106; Walker v. Derby, 5 Biss. (U. S.) 134.
    The doctrine of laches does not apply. Pomeroy, Eq. Jur. See. 817, p. 1449; Brissell v. Knapp, 155 Fed. Rep. 809; Daggers v. Van Dyck, 37 N. J. Eq. 130, 137; Hawley v. Von Lanken, 75 Neb. 597 [106 N. W. Rep. 456]; Pacific By. v. Railway, 20 Fed. Rep. 277; Bogan v. Mortgage Go. 63 Fed. Rep. 192, 199 [11 C. C. A. 128]; Kelley v. Boettcher, 85 Fed. Rep. 55, 62 [29 C. C. A. 14; 56 U. S. App. 36»}; Ide v. Carpet Go. 115 Fed. Rep. 137, 148 [53 C. C. A. 3411]; Brun v. Mann, 151 Fed. Rep. 145 [80 C. C. A. 513; 12 L. R. A. (N. S.) 154]; Parker v. Hotel Go. 96 Tenn. 252 [34 S. W. Rep. 209; 31 L. R. A. 706]; Longworth v. Hunt, 11 Ohio St. 194, 201; Mack v. Brammer, 28 Ohio St. 508, 516.
   WINCH, J.

By this action, which is brought here on appeal, the plaintiff seeks to effect a rescission of the sale, which was made by him to the defendants, May 20, 1908, of 170 shares of stock in the Peerless Motor Car Company. The purchase price of $90 per share, or $15,300 in all, has been tendered back, and the plaintiff prays for the restoration to him of said stock and for an accounting of the dividends meanwhile paid to the defendants thereon. Tie contends that the defendant, J. J. Sullivan, while acting for the plaintiff, as his agent to sell said stock, purchased the same for himself and his son Corliss, without disclosing to plaintiff their identity as such purchasers. The defendant, J. J. Sullivan, was president of the bank where plaintiff and his firm, the Telling Brothers, did some, at least, of their banking business, and it is admitted that plaintiff con-suited him about the sale of this stock; but Colonel Sullivan now denies that he undertook to act for plaintiff in that behalf. His first answer filed herein is, however, significant as setting forth in detail, on oath and over his own signature, his version of the conversation had between plaintiff and himself. This answer is superseded, as a pleading in the case, by the amended answer subsequently filed on leave obtained. But its admissions are in evidence, and the language used by the parties in their interviews is so carefully and minutely rehearsed, in contradistinction'to plaintiff’s version thereof as alleged in his petition, that we cannot acquiesce in the suggestion now made, of a misconception by defendants’ counsel as to the words used by his client, and of an oversight by the latter in signing and verifying the same when embodied in the answer.

It is worth while to quote the averments of the original answer at length:

“He denies that he had with plaintiff the conversations set forth in said petition, or that he ever, in any way, acted as agent for plaintiff in and about the sale of the stock mentioned in said petition, or any part of it, or as the representative of plaintiff in and about such sale; he denies that he ever advised plaintiff to sell said stock, or any of it, or was, in any way, responsible or the cause of his making said sale.
“He avers that the statements contained in said petition, in manner and form as therein stated, are untrue, and avers that the facts in relation thereto are these:
“About May 5, 1908, plaintiff told this defendant that he thought of selling his stock in the Peerless Motor Car Company, which he said had cost him par, and said he thought he ought to get that for it. This defendant replied to plaintiff that he would see what could be done about it. About May 15, 1908, plaintiff asked defendant if he had heard of any probable buyer, and defendant told him that he knew of a person who would give him $90 a share cash. Plaintiff said he did not like to sell it for less than it cost him, but would think about it. About May 20, plaintiff informed defendant that he had made up his mind to let his stock go at $90. This defendant asked plaintiff: ‘"Why do you want to sell.it?’ Plaintiff said: ‘Oh, I want to raise a good deal of money at present. ’ Defendant replied: ‘I would be glad to loan you all you want,’ to which plaintiff answered: ‘I would rather sell some things I have than go in debt so much. ’
‘ ‘ This defendant did not advise said sale, but instead sought to dissuade plaintiff from making it.
“In the interval between plaintiff’s first speaking to this defendant on the subject, and said May 20, this defendant had made' inquiries as to what could be got for the stock, and had not been able to find anyone who would give more than $90 per share, and that offer was made by said defendant, Corliss E. Sullivan, the son of this defendant. Said defendant, Corliss E. Sullivan, was a director in the Peerless Motor Car Company, having nominally fifty shares of stock in his name, which had bee'n loaned to him by this defendant to qualify him to act as a member of the board of directors. He authorized this defendant to pay $90 per share for said stock, and this defendant paid plaintiff on said May 20, 1908, at said rate for said 170 shares of stock. Thereafter, when said Corliss E. Sullivan settled with this defendant for said purchase, he, for the first time, requested this defendant to keep seventy shares of said stock, as he did not want to borrow the amount he would have to if he paid for the whole stock, and he also repaid this defendant the fifty shares of stock which had been loaned to him by this defendant.
“This defendant denies that said stock was worth more than $90 per share, or that this defendant had any knowledge that said stock was worth more than $90 per share, and avers that $90 per share was as much as could then be got for said stock. The statement made to plaintiff by this defendant, that the best offer that he had been able to get of $90 per share, was true. He denies that he made any statement to plaintiff which was false or untrue, or made for the purpose of deceiving plaintiff, or which did deceive plaintiff, or that plaintiff relied upon any statement made by this defendant, or that this defendant was the banker of said the Peerless Motor Car Company, or fully, or at all informed as to the condition of said company, or that the book value of said stock at the time of said transfer was more than $90 per share, or that, at that time, large profits had been made, or that either of said defendants had any knowledge of the making of large profits by said the Peerless Motor Car Company, or that the book value of said stock was more than $90 per share, or that either of these defendants had any knowledge, either as to the profits made by said the Peerless Motor Car Compiany, or the book value of said stock, which was not disclosed to plaintiff, or that was not equally as accessible to plaintiff as to these defendants, or either of them.
“Defendant avers that he and said Corliss B. Sullivan dealt ■with plaintiff at arm’s length, and not in any respect as agents or trustees, or in a confidential relation.
“The probabilities of dividends being declared on said stock were as much within the knowledge of plaintiff as of this defendant.
“He avers that the transfer of the property of said corporation, and the issuance of stock in payment thereof, was entirely the result of matters and negotiations not known to exist, or existing, at the time of said purchase. ’ ’

It will be noticed that in this answer the defendant, J. J. Sullivan, declares that when the sale of the stock was broached, he “replied to plaintiff that he would see what could be done about it.” Again, he says, that he later “made inquiries as to what could be got for the stock and had not been able to find anyone who would give more than $90 per share. ’ ’ Still further he avers, that, “The statement made to plaintiff by this defendant that the best offer that he had been able to get of $90 per share, was true.”

With these allegations the original answer, though it perhaps repelled the ascription of actual fraud to the defendant, J. J. Sullivan, clearly fixes upon him both the obligation of a fiduciary, and the breach of such obligation. But apart from the original answer, it is perfectly evident from Colonel Sullivan’s own testimony that the plaintiff at least conceived their relation to be one of confidence reposed and accepted.

While it requires no citation of authorities to establish the proposition that the relation of banker and client is not necessarily of a fiduciary character, it is nevertheless emdent that the. relation may easily assume, that character. The circumstances here were such as to make this transition easy. The plaintiff was not only a depositor in, but a borrower from, the defendant’s bank. The stock which he sold was in a company which not only occupied a like relation to the bank, but in which Colonel Sullivan, its president, was a stockholder and represented by his son upon the board of directors, the son having been qualified for that office by the loan to him of some of his father’s stock. Under these circumstances an express form of words would hardly be necessary to characterize any effort on Mr. Sullivan’s part to comply with the plaintiff’s expressed wish to find a purchaser for his stock, as efforts made on behalf of the plaintiff and as his agent.

Their second interview was begun, according to Colonel Sullivan’s own testimony, with the inquiry by plaintiff: “Have you heard of anyone who would be apt to buy my stock in the Peerless Company?”

“I said, ‘I know a man who will give you $90 a share for it.’ He said ‘will it be in cash?’ I said ‘yes, certainly.’ He then said ‘it cost me par and I would like to get that for it.’ And with' that remark he left the bank.

“Q. Is that all that was said on the occasion of this visit?

“A. That was all that was said on the occasion of this visit.

‘ ‘ Q. Prior to that time had you talked with anybody about buying the Peerless stock other than with Corliss?

“A. No, sir.

“Q. And you never did try to sell his stock to anybody other than to Corliss?

“A. That question is not a correct question; I didn’t try to sell it to Corliss.

“Q. Well, you never told anybody else but Corliss that Telling was willing to sell his stock ?

“A. I don’t recall now having made a statement about it to anybody else.”

At page 182 of the transcript of testimony Colonel Sullivan testifies again concerning this interview with the plaintiff.

“On or about May 15 he called at the bank, and I am not sure which bank it was in, I think it was the Central National Bank. I was sitting at my desk and he said, ‘Have you'heard anything about the stock of the Peerless Motor Car Company?’ I said ‘I.know a man — a person, I believe is what I said — who will give $90 a share for it. Mr. Telling didn’t ask me who it ivas. ITe didn’t ask me my advice as to the propriety of selling, but he said, ‘will it be in cash?’ and I said, ‘certainly.’ He then said, ‘well, it cost me par and I would like to get that for it, but I will think it over,’ he said, and he then left the bank.”

Thus it appears by the testimony of Colonel Sullivan himself that the plaintiff did not consider himself to be dealing at arm’s length, but the contrary.

-The relationship was one of trust and confidence,' and Colonel Sullivan’s undertaking, though gratuitous and by no means absolute, was that of agency for the sale of plaintiff’s stock.

The obligations arising from such a relationship are fully set forth by Boynton, J., in the United States Rolling Stock Co. v. Railway, 34 Ohio St. 450, 460 [32 Am. Rep. 380]:

“The rule that an agent or trustee in matters touching his agency, or pertaining to the trust, can not bind the principal or cestui que trust, without his consent, by a contract in which the former is adversely interested, rests upon a very satisfactory foundation, and is supported by a great weight of authority. Wade v. Pettibone, 11 Ohio 57; Morison v. Thompson, L. R. 9 Q. B. 480; 1 Leading Cases in Eq. 210.
“In Story on Agency, Sec. 210, the rule is said to be founded ‘upon the plain and obvious consideration, that the principal bargains, in the employment, for the exercise of the disinterested skill, diligence, and zeal of the agent for his own exclusive benefit. It'is a confidence necessarily reposed in the agent, that he will act with a sole regard to the interest of his principal as far as he lawfully may.’ And, in 2 Kent’s Com. 618, the same principle is asserted, in the following language: ‘An agent, acting as such, can not take upon himself, at the same time, an incompatible duty. He can not have an adverse interest or employment. He can not be both buyer and seller; for this would expose his fiduciary trust to abuse and fraud.’ In Bennett, Ex parte, 10 Ves. 393, Lord Eldon, commenting on a sale of the trust property to the trustee, stated the reason of the rule denying the right of the trustee to buy the trust property to be, ‘that it would not be safe, with reference to the administration of justice in the general affairs of the trust, that a trustee should be permitted to purchase; for human infirmity will, in very few instances, permit a man to exert against himself that providence which a vendor ought to exert, in order to sell to the best advantage, and which a purchaser is at liberty to exert for himself, in order to purchase at the lowest price. ’ The rule which prevents the agent or trustee from acting for himself in a matter where his interest would conflict with his duty, also prevents him from acting .for another whose interest is adverse to that of the principal; and, in all eases where, without the assent of the principal, the agent has assumed to act in such double capacity, the principal may. avoid the transaction, at his election. No question of its fairness or unfairness can be raised. The law holds it constructively fraudulent, and voidable at the election of the principal. ’ ’

It is evident from the foregoing that Colonel Sullivan being the agent for the plaintiff, his purchase of the stock, if he did purchase it, was constructively fraudulent, and voidable at the election of the plaintiff.

This brings us to the second question in the case.- Did Colonel Sullivan become the purchaser of the stock, or was he merely executing the order of his son Corliss for the purchase thereof? On this point, Colonel Sullivan testifies at page 181, that having talked the matter over with his son at the dinner table in their home, the latter finally said “that while he would give $90 a share for it, he didn’t think it would be a great buy at that, owing to the general uncertainty in which the industrial world was enveloped at that time. ”

‘ ‘ Q. D^d he say anything about the amount of money and number of shares of stock ?

“A. Yes.

“Q. What?

“A. He said, ‘It is a good deal of money to raise in these times; and he said ‘if I get it, why I will have to fall back on the bank. ’ - .

“Q. Yes, and what else did he say?

“A. Well, that is about all I can recall now.”

. At page 184 Colonel Sullivan testifies to his final interview with the plaintiff, as follows:

“He called at the Superior Savings & Trust Company, of which company I am president, on May 20, 1908, and the first salutation was, ‘Well, I have made up my mind to let my stock go at $90 a share.’ And I said, ‘Why do you want to sell it?’ He said, ‘I want to raise a good deal of money at this time.’ I said, ‘Very well, I will be glad to loan you all the money you want.’ He said, ‘I would rather sell some things I have than to go in debt so much.’ I said, ‘Very well, if you have made up your mind to sell your stock, I will settle for it here and the party can pay me.’ He didn’t ask my advice; he didn’t ask my opinion. We are frequently asked advice and opinions in matters of that sort, but as a rule, the general rule in our bank, each of the banks, we never advise people as to the sale or purchase of stocks. Our experience teaches us that there are apt to come up, as the result of such advice, pro and eon complications such as this. Hence the rule is that we do not offer advice.
“Q. What else occurred at that time?
“A. I said to him, ‘Have you got the stock with you?’ He said, ‘I have some of it and I can get the balance very shortly.’ Then I called Mr. Darling, the secretary of the Superior Savings & Trust Company, and I said, ‘Mr. Darling, you settle with Mr. Telling for 170 shares of stock of the Peerless 'Motor Car Company at $90 a share. ’ Mr. Darling was in my room at that time and he then stepped out into his room which is connected by an open door, and he and Mr. Telling settled for the stock in Mr. Darling’s room. There was somebody waiting for me at that time and he came into my room and took up another subject. Mr. Darling prepared the checks for Mr. Telling in manner and form and in amounts as he desired, brought them to me and I looked them over, put the footing together so as to be sure that they aggregated the right amount, and I signed the checks and Mr. Darling handed them to Mr. Telling.
“Q. Have you now told all that was said between you and Mr. Telling on that occasion?
“A. Yes.
“Q. Did you at that time communicate to him in any way anything that had been said to you by Corliss?
“A. No.
“Q. Did you say anything to him about the value of the stock ?
“A. Not a word.”

Again at page 186, Colonel Sullivan testifies:

“Q. Returning to May 20, 1908, what talk was there.between you and Corliss Sullivan that night?
“A. I belive the matter first came up, I don’t want the court to infer that we only talk business at my table, but as a matter of fact, we have discussed the incidents of the day quite frequently at the dinner table. I told Corliss that Telling had called at the bank and said that he had made up his mind to let his 170 shares of stock in the Peerless Motor Car Company go at $90 a share.
“ Q. Go on.
“A. Corliss remarked, ‘Well, I will have to depend on you to help me out a little in furnishing the money,’ and I said, ‘Now, that is a good deal of money at this time.’ He said, ‘I know it is.’ I said, ‘How much would you want?’ ‘Well’, he said, he ‘wouldn’t know until tomorrow morning, I will figure up and see where I stand.’ And 1 said to him, ‘I paid for the stock, I gave Mr. Telling my checks for the stock so that whenever you are ready you come down to my office and settle for it. ’ He said, ‘All right, I will go down to the bank in the morning and 1 will pay you for it. ’
‘‘A. That was about all that occurred that night.”

Again at page 188 Colonel Sullivan testifies:

‘‘The next morning Corliss called at the bank about, as near as 1 can remember, ten o’clock, and he said, ‘I have been figuring over that matter and I am a little afraid that it will involve me in debt too much if I should borrow all the money required to pay for all the stock.’ I then laughed at him. I said, ‘I thought you were over-reaching yourself a little,’ and he said, ‘Well I have made up my mind that I don’t want to go in debt to the extent that I would be required to go in debt to pay for the 170 shares,’ and he said, ‘I wish that you would take seventy shares of it off my hands.’
“Q. What did you say?
‘‘A. I said, ‘I don’t want the stock.’ I said, ‘I could have bought it all from Mr. Telling if I wanted any of it, but I didn’t want any of it and don’t want any of it now.’ He said, ‘Well, of course, if you feel that you don’t want it, I will have to arrange for it, but I would a little rather not take it all. ’ So I then said, ‘Very well, if you feel that way about it, and you don’t want it all and you want me to take seventy shares of it, I will do it.’
“Q. - Is that all?
“A. That is about all, except that I turned the stock over-to Corliss. Mr. Darling, I believe, held the stock over night in his possession for me. I turned the stock over to Corliss.
“Q. Will you state whether this was the first time that, there had been any talk about your taking any of the stock ?
“A. That w'as the first time that any talk had been between Corliss and me relative to my taking any portion of the-170 shares of stock which Mr. Telling had sold.”

Corliss testifies on the same subject: “I said I would give $90 a share for this stock.” And again: “I said that $90 a share was what I could give for the 170 shares that Mr. Telling had.”

Detailing the conversation between himself and his father at some length, and in substantial accord with his father’s testimony, Corliss Sullivan adds: “There was nothing unusual in my father’s speaking to me about money matters and the occurrences of the day. We do it quite frequently. Daily,, practically. ’ ’

Corliss further testifies: “The third time I had a talk with father about Telling’s stock was a week or ten days after the second time. Father came home in the evening, and in going over the news of the day mentioned this matter to me; that Telling had been in, and said that he would sell his stock at $90 a share, and I said all right. I said what shape is it in? Did he: deliver the certificates, and father said: ‘Yes, he left them with me, and I paid him for them.’ I said, ‘All right, I will be down tomorrow morning and fix up the matter with you. ’' The next day, I said to my father, ‘I will have to get $9300 in order to-pay for it and ■ I would much rather not borrow that much money at this time; I would like to have you take about seventy-shares.of this and I will take the one hundred.’ His answer to that was: ‘Well now, you went ahead and bought this; I thought you were going pretty strong on it, but it is too late now, and if you will only take the one hundred, I will have to take the seventy.’ ”

From the foregoing it is apparent first, that although Corliss authorized the statement that he would buy the stock, he gave no express directions to his father either to purchase it for him or to pay for it in his behalf.

Colonel Sullivan advised Telling that he knew of a person who would pur6hase the stock, and thereafter he received and paid for the same, without further disclosing the purchaser’s identity. This undisclosed person was his own son, a member of his own family, with whom he constantly maintained the closest and most confidential relations. In settling the transaction with his son the following day, he found himself constrained to keep a large part of the stock, which he did accordingly; and for the son’s purchase of the remainder, the father, through the bank, of which he was president, loaned the purchase price to the son. These were not separate transactions; they were all parts of a single transaction. Under the circumstances that existed, Colonel Sullivan not only had no right, without full disclosure of the fact, to purchase the stock, or any part of it himself, but he could not act as plaintiff’s agent in the sale of the whole or any part thereof to his son, except with plaintiff’s full knowledge and consent. In fact, he himself became the purchaser when he paid the purchase price, and the division of the stock between himself and his son does not alter the ease.

The whole transaction was constructively fraudulent and voidable.

The only question remaining is the defense of laches. The plaintiff discovered the identity of the real purchasers of the stock in August, 1908. Petition was filed in this case on January 18, 1910.

The defendants claim that this lapse of time is sufficient in an action in equity to bar a recovery, though were the action at law the statute of limitations, four years from the discovery of the fraud, would apply. It is asserted that we have here a stale equity. This defense also assumes the form of a claim of ratification of the transaction by acquiescence therein.

In the Ohio cases on the subject, the doctrine is variously stated as follows:

In Larrowe v. Beam, 10 Ohio 498, Judge Grimke says, page 502: “If the party be guilty of such laches in prosecuting his title as would bar him, if his title were solely at law, he shall be barred in equity.”

Read, J., in Gibler v. Trimble, 14 Ohio 323, at page 343, says: ‘ ‘ Stale equities will not be enforced; when a party, having' an equity, neglects to enforce it, for a period which would constitute a bar at law, under the statute of limitations — in analogy to the statute — it will also be barred in equity. ’ ’

In the case of Longworth v. Hunt, 11 Ohio St. 194, Brinkerhoff, C. J., says, page 201:

‘ ‘ In cases of which courts of equity and courts of law have-concurrent jurisdiction, the former act in obedience to statutes of limitation; but in cases of which equity has exclusive jurisdiction, they act only in analogy to them. This ease is of the latter kind; for, the bar of the statute being complete at law, a court of equity, alone, can give relief. The statute of limitations does not, in terms, apply to this proceeding; and we are., therefore, left to the exercise of a sound legal discretion as to whether or not we will hold a lapse of time, correspondent to the time constituting a statutory bar at law, to be a bar to this proceeding.
“An attempt of Benjamin V. Hunt to set up the lapse of time in defense to the claim of Piatt’s heirs, in view of the relation which he sustained to them when the survey was made,, would be most unconscionable; and, being at liberty to close our ears against it, we are unwilling to listen to it when it comes from those who represent him. ’ ’

In the case of Mack v. Brammer, 28 Ohio St. 508, the court say, page 516:

“But it is said the plaintiff’s claim is barred by lapse of time; not that it is barred by the statute of limitations, but that it cannot be enforced in equity, for the reason that it has become stale. It is only necessary to say upon this point, that it is questionable if the plaintiff had a distinct knowledge of her rights until near the time the action was brought.”

In the case of Paschall v. Hinderer, 28 Ohio St. 568, the Supreme Court Commission, speaking by Johnson, J., at page 580, say:

"What constitutes a stale equity is,a vexed question hardly susceptible of an accurate definition. Length of time alone is not a test of staleness.”

The doctrine of laches, merging into ratification, is nowhere more forcibly expressed than in the case of United States Rolling Stock Co. v. Railway, supra, wherein Boynton, J., says at page 462:

"Mr. Wharton, in his work on Agency, Sec. 244, says: ‘So, also, a principal, when fully knowing the facts, can ratify the agent’s action, though tainted with employment by an opposing party. ’
"The doctrine is equally well settled that the option to avoid the contract must be exercised by the principal within a reasonable time after being fully apprised of the circumstances of the agent’s engagement;
“ ‘Where the principal is informed of what has been done, he must dissent, and give notice of it within a reasonable time; and if he does not, his assent and ratification will be presumed. ’ '2 Kent, Commentaries 616; Paley, Agency 172.
"What constitutes a reasonable time must largely, if not wholly, depend on the circumstances of the particular case. Where the consequences of delay are or may prove injurious to the other contracting party, especially where large expenditures, to the knowledge of the principal, are being made, on the faith of the validity of the contract, the law requires prompt action on his part, if he would avoid responsibility for the acts of the agent. His right to avoid being one arising in equity, is governed by the rules upon which that court administers justice He must speak when he should, or he will not be permitted to speak when he would. In Smith v. Clay, 3 Bro. C. C. 639 (n), Lord Camden, adverting to the principles which govern a court of equity, where a party has slept upon his rights, said: ‘A court of equity has always refused its aid to stale demands, where a party has slept on his right, and acquiesced for a great length of time.
“ ‘Nothing can call forth this court into activity but conscience, good faith, and reasonable diligence. “Where these are wanting, the court is passive,, and does nothing. Laches and neglect are' always discountenanced.’ ”

A fair summary of the Ohio law on the subject is found in the opinion of a federal 'judge in another state. ^ Farrington, district judge, in the case of Brissell v. Knapp, 155 Fed. Rep. 809, 810, says:

“The rules controlling the application of the doctrine of laches are among the most characteristic in equity jurisprudence. If unreasonable delay in seeking relief is the only element to be considered, courts of equity will usually follow the statute of limitations, if there be one which is applicable. The statute of limitations is an arbitrary rule. The doctrine of laches is flexible. Its application depends upon the circumstances of each ease. It will not, save in exceptional cases, be applied unless there are conditions other than mere lapse of time which render the maintenance of the suit inequitable and unjust. Laches is not merely a matter of time. It is a question of equity or inequity, of justice or injustice. Kelley v. Boettcher, 85 Fed. 55, 62 [29 C. C. A. 14]; Williamson v. Monroe, 101 Fed. Rep. 322, 330.
“ ‘Laches’, says the Supreme Court of the United States in Galliher v. Cadwell, 145 U. S. 368, 373 [12 Sup. Ct. 873, 875; 36 L. Ed. 738], ‘is not, like limitation, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced — an inequity founded upon some change in the condition or relations of the property or the parties. ’
“The questions which must be asked and answered in deciding each ease are: Has the delay been unreasonable? If so, have the conditions or the relations of the property, or of the parties, so changed that it would be inequitable and unjust to permit the plaintiff to enforce his claim ? If, during the long delay, important testimony has been lost or destroyed, and the memory of the original transaction becomes hazy and- indistinct, a court of equity may refuse to grant relief because-of its inability to do certain and complete justice. Speidell v. Henrici, 15 Fed. Rep. 753, 756; Selden v. Kennedy, 104 Va. 826 [32 S. E. Rep. 635; 4 L. R. A. (N. S.) 944]. If, during tbe delay, tbe property in dispute has passed into the hands of innocent purchasers, or the defendant has been lulled into doing something which he would not have done, except he had been led to believe that the claim was abandoned, the rule of laches may be applied. Tazewell v. Saunders, 54 Va. (13 Gratt.) 354, 362.
“If ‘the defendant has risked large sums of money developing the property, as a result of which it has greatly increased in value, and the plaintiff has suffered this to be done, intending if the venture proved profitable to assert his claim, but, if unprofitable, to allow the defendant to pay all the losses, then in such a case the court will be justified in saying to the plaintiff: ‘You have been guilty of laches, your delay was not without a motive, and that motive was not good. You were silent while the-defendant was risking his money and his labor, but now, when there are no chances to take, you are willing to-come in and share the profits.’ The dominant idea in eases where the doctrine of laches has been applied is that the delay has been productive of changes which render it unjust and unfair to prosecute the suit. If the delay has not prejudiced the defendant, there is no laches. Pacific Ry. v. Railway, 20 Fed. Rep. 277; Bartlett v. Ambrose, 73 Fed. Rep. 839 [24 C. C. A. 397]; Williamson v. Monroe, 101 Fed. Rep. 322, 329; London & San Francisco Bank v. Dexter Horton & Co. 126 Fed. Rep. 593, 601 [61 C. C. A. 515]; Galliher v. Cadwell, 145 U. S. 368, 373 [12 Sup. Ct. 873; 36 L. Ed. 738]; Cahill v. Superior Court, 145 Cal. 42 [78 Pac. Rep. 467]; Cook v. Ceas, 147 Cal. 614 [82 Pac. Rep. 370]; Hawley v. Von Lanken, (Neb.) [106 N. W. Rep. 456]; Daggers v. Van Dyck, 37 N. J. Eq. 130; Rozell v. Chicago Mill & Lumber Co. 76 Ark. 525 [89 S. W. Rep. 469]; Demuth v. Bank, 85 Md. 326 [37 Atl. Rep. 266; 60 Am. St. Rep. 322].”

If the application of the doctrine of laches depends upon the circumstances of each case, the inquiry arises: What are; the circumstances of this case?

The transaction here in question occurred May 20, 1908. The stock continued to rise in value thereafter. Rumors of this came to Telling. In the neighborhood of a couple of months afterward Telling met Sullivan in the middle of the floor as he was walking in the bank and said: “Colonel, haven’t I made an awful mistake in letting this Peerless stock go?” He said, “Yes,” and walked away without telling who the real purchaser of the stock was.

Kittrédge, president of the Peerless Company testifies that in August, Telling came to his office and they discussed matters. Telling said, “"Who got my stock?” Kittredge replied: ‘ ‘ Colonel Sullivan got some of it. ’ ’ Telling said, ‘ ‘ The hell you say?” “We then drifted into lighter vein.”

The lighter vein was to the effect that Telling said: ‘ ‘Of course I would like the Peerless stock, and probably made a mistake in selling it, but I am satisfied. ’ ’

Cameron, assistant cashier of the Central National Bank,' testifies to a conversation with Telling several months after the transaction (probably in August) in which Telling said he had made a hell of a mistake selling that Peerless stock and added: “Of course I can’t blame anybody but myself, and I took the money I got out of that and did very well with it in other matters, and while I had better have disposed of something else than that, as they are doing a very fine business out there — he thought it was a great mistake.”

Telling admits the profane remarks attributed to him by Kittredge and Cameron but denies that he said to either of them that he was satisfied and his expletives quoted lead us to the conclusion that he was not satisfied.

Telling further testifies:

“Anyway I knew that Colonel Sullivan had this stock in the summer of 1908. I knew it when I saw Kittredge for the first time, positively. That was in the summer of 1908. (We know from Kittredge that it was in August.) That was the first time T heard it positively; I had heard rumors before. I wanted to be sure, so I went to Mr. Kittredge and asked it. Mr. Siddall asked me why I had not come to see him before I sold him; that he would have told me what it was worth. I did not go to see Colonel Sullivan after the sale of the stock because I thought he was too slick for me; I always patted him as he patted me, with a glad hand. I knew I would have to bring a suit some day, when my attorney from New York got back, but he is there yet.”

Iiis attorney was B. B. Avery, who went to New York on traction matters and remained there. After waiting for his return, he finally sought another lawyer, but not until the middle of September of the next year, when he retained Judge F. L. Taft to look after his interests. It is questionable whether the plaintiff had a distinct knowledge of his rights until he consulted Judge Taft. Judge Taft appears to have used due diligence in investigating the facts and took the matter up with Colonel Sullivan, writing him a letter October 18, 1909. The latter put him off until the day after election in November, when Taft made a formal tender of the amount paid by Mr. Sullivan to Mr. Telling with interest down to that time.

Judge Taft then heard from Mr. Cannon, attorney for Mr. Sullivan, and- gave to him a petition he had prepared, "in order that he might file an answer at the same time the petition was filed.” This was at Mr. Cannon’s request.

“Later the South Cleveland Bank failed and Mr. Cannon telephoned to me,” says Judge Taft, “and requested that he might delay filing the petition. Shortly before the South Cleveland Bank failed, the Werner Company had gone into the hands of the Superior Savings & Trust Company, as receiver, and Mr. Cannon suggested that it was not a good thing to be filing suits against bankers, and would I let the matter stand a few days. It did stand then until I called Mr. Cannon up and urged him, to file the petition, or else I would have to get another copy and file it myself, as considerable delay had taken place. And finally the petition was filed at the time indicated, in January.”'

The petition was verified December 17, 1909, and filed January 18, 1910.

It thus appears that Telling did nothing but await the return of Avery, from August, 1908, to September, 1909, thirteen months.

The testimony discloses that the stock commenced going up in August, 1908, and after the election of that year it went up enormously, the full effects of the increased business not being ascertained until December, 1908. Before September, 1909, the value of the stock was doubled and large dividends were paid.

It seems apparent from the record that Telling kept track of the value of the stock from and after his talk with Kittridge in August, 1908.

There has been no change in the position of the defendants. They still retain the stock in question and the defendant, J. J. Sullivan, is now a stockholder in the Peerless Motor Car Company to the extent of more than the number of shares in controversy. The only change has been in the value of the stock. The defendants have not incurred any expense, but have received large dividends.

It thus appears that the mere lapse of time is the only thing upon which the defendants rely as establishing their defense of laches. Counsel points out a single inequity resulting therefrom, that the delay enabled the plaintiff to speculate upon the transaction. It is said that plaintiff would . not have brought this action if the stock had not gone up. That may be conceded. All suits are brought because the plaintiff anticipates some advantage therefrom.

But is it not inequitable to allow the defendant to realize this large profit from a transaction which the law says was at least constructively fraudulent? Good morals would not interpose this defense, but would suggest that at the time the transaction occurred, the defendant might himself have limited any delay and obviated any speculation by candidly stating who the purchasers were and calling upon the plaintiff to ratify or rescind the sale within what he considered a reasonable time. He had the opportunity to do so, but passed it by. He should not now be heard to claim that thirteen months was too long a time for the defendant to take to make up his mind.

Longer time was not held to create a stale equity in the following cases: Pacific Ry. v. Railway, 20 Fed. Rep. 277; Bogan v. Mortgage Co. 63 Fed. Rep. 192; Ide v. Carpet Co. 115 Fed. Rep. 137; Brun v. Mann, 151 Fed. Rep. 145.

It is doubtless true, however, that where mere lapse of time has been relied upon, the statute of limitations alone has been raised and the defense of stale equity has not even been suggested. Hence, while many eases have been cited where other circumstances than mere lapse of time have led to the court’s applying the doctrine of laches, few are found where this defense has been denied. See the case of Moore v. Bank, 31 O. C. C. 614 (12 N. S. 529), decided by this court a year ago, a case very similar to this, yet the defense of laches was not raised The statute of limitations alone was relied upon.

It has been well said that "the profitableness of a fraudulent transaction can never be its justification, and it can never shorten the arm of the court. ’ ’

The parties in this action are in almost exactly the same situation they were in at the time the wrong complained of was committed, and relief can be given the plaintiff, without doing any injustice whatever to the defendant.

We find that the defendant,- J. J. Sullivan, is in a position to turn over to the plaintiff 170 shares, of stock in the Peerless Motor Car Company and receive therefor all the money he parted with, with interest to date, and such is the order of the court.

This conclusion addresses itself to the sound discretion of the court in the premises and conforms not alone to good morals, but to the equities of the case. Indeed, the two should be, and usually are, synonymous.

Judgment for the plaintiff, see journal.

Of course there must be an accounting of the dividends.

Certain rulings on evidence have been requested which will be indicated on the bill of exceptions.

Henry and Marvin, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MUNICIPAL CORPORATIONS — STREETS.
    [Stark (5th) Circuit Court,
    February 19, 1910.]
    Taggart, Donahue and Yoorhees, JJ.
    Massillon (City) et al. v. Benjamin F. Huff.
    1. City is Liable for Acts of Its Contractors Working Under the Direction of the City Engineer.
    A city and its contractors are jointly liable for damage done to shade trees by the contractors in constructing a sidewalk under the direction of the city engineer.

      2. City cannot Destroy Shade Trees on Streets Unless Necessary to Further Street Purposes.
    A city council has no right to cause the destruction of shade trees upon its streets unless it is necessary to use the ground occupied by them for street purposes, and an abutting owner injured by such destruction may recover damages from the city. Newcomerstown v. Dickenson, 32 O. C. C. 311, followed and approved.
    [Syllabus approved by the court.]
    Error to common pleas court.

      George W. Kratsch and Thomas C. Davis, for plaintiff in error:
    Cited and commented upon by tbe following authorities: Hamilton, G. & G. Trac. C.o. v. Parish, 67 Ohio St. 181 [65 N. E. Rep. 1011; 60 L. R. A. 531] ; Lawrence By. y. Williams, 35 Ohio St. 168; Daily v. State, 51 Ohio St. 348 [37 N. E. Rep. '710; 24 L. R. A. 724; 46 Am. St. Rep. 578] ; Phifer v. Cox, '21 Ohio St. 248 [8 Am. Rep. 58]; Callen y. Electric Light’Co.. 66 Ohio St. 166 [64 N. E. Rep. 141; 58 L. R. A. 782] ; Cincinnati (% S. G. A. S. By. v. Cumminsville, 14 Ohio St. 523; Columbras v. Agler, 44 Ohio St. 485 [8 N. E. Rep. 302] ; 3 Abbott, Mun. Corp. p. 2075; 26 Am. & Eng. Enc. Law (1 ed.) p. 562; Gaylord y. King, 142 Mass. 495 [8 N. E. Rep. 596] ; Castleberry y. Atlanta, 74 Ga. 164; Hodgins y. Toronto, 19 Out. App. 537; 2 Abbott, Mun. Corp. p. 1941; Page Y. Belvin, 88 Ya. 985 [14 S. E. Rep. 843] ; Chase y. Oshkosh, 81 Wis. 313 [51 N. W. Rep. 560; 15 L. R. A. 553; 29 Am. St. Rep. 898] ; Mt. Carmel y. Shaw, 155 111. 37 [39 N. E. Rep. 584; 27 L. R. A. 580; 46 Am. St. Rep. 311]; McQuillian, Mun. Corp. p. 720n, See. 459; Akron v. Chamberlain, 34 Ohio St. 328 [32 Am. Rep. 367] ; 2 Thompson, Negligence Sec. 41, p. 913; Veigel v. Lukenheimer, 9 Dee. Re. 48 (10 Bull. 293) ; Joliet (City) v. Harwood, 86 111. 110, 114 [29 Am. Rep. 17] ; Erie v. Caulkins, 85 Pa. St. 247 [27 Am. Rep. 642]; Chambers v. Insurance Co. 12 Dee. Re. 650 (1 Dis. 327) ; 28 Cyc. 340; Hughes v. Railivay, 39 Ohio St. 461; Cincinnati v. Stone, 5 Ohio St. 41.

      McCaughey & Eggert, for defendant in error:
    Cited and commented upon by the following authorities: Keefe v. Railway, 11 Dec. 568 (8 N. P. 466) ;- Kellogg v. Traction Co. 80 Ohio St. 348 [88 N. B. Rep. 882; 23 L. R. A. (N., S.) 158; 17 Ann. Cas. 242] ; Vanderhurst v. Tholcke, 113 Cal., 147 [45 Pac. Rep. 816; 35 L. R. A. 267]; Castleberry v. Atlanta,. 74 Ga. 164; Reese v. Cleveland, 18 Dec: 12 (5 N. S. 193) ; Cincinnati v. Stone, 5 Ohio St. 38; Boyd v. Watt, 27 Ohio St. 269; TJpson Coal & Mining Co. v. Williams, 75 Ohio St. 644; affirming, Upson Coal & Mining Co. v. Williamis, 28 O. C. C. 388 (7 N. S. 293).
   PER CURIAM.

The action out of which this proceeding in error arises, was brought in the coipmon pleas court of this county by Benjamin F. Huff to recover from the city of Massillon, and Weible & Schott, contractors, for the destruction of shade trees planted by the plaintiff in front of his premises and upon the street on which his lot abuts, between the sidewalk and the curbing;, and the plaintiff avers that said shade trees so planted by him in no wise interfered with or obstructed the grading of ^aid street in accordance with the established and reasonable grade, nor with the proper and reasonable grading of the sidewalk; but that the defendant contractors under the direction and control of the city through its engineer, wholly disregarded the plaintiff’s rights, and cut and excavated the ground under the sidewalk in front of plaintiff’s said lot to a great and unnecessary depth, and in so doing unnecessarily, purposely, wilfully and unlawfully cut out, carried away and wholly destroyed three of plaintiff’s shade trees so planted by him as aforesaid.

It was agreed in the trial of this cause that if the plaintiff was entitled to recover at all, that the value of the trees so removed was $125; so that the only question in this case is the right of the plaintiff to recover for trees upon the streets and alleys of the city in front of his property.

It is 'conceded by the defendant in error that if in the grading of the street to the depth necessary to construct the curbing and sidewalk on the established grade, the trees are in the way, the city or its employes, the contractors, would have a right to remove them, and plaintiff would be without remedy.

It is contended on the other hand that the city council had absolute control of the streetó, and is the only forum in which the necessity for removing the trees is to be determined.

In this case the city council by proper ordinance established a grade on the street, and under the supervision and control of its officers, the contractors, proceeded to make it conform to 'said grade; so that the city by its council did not determine whether there was necessity for removing these trees or not. The question for the .jury was whether in the work of making the streets and sidewalks conform to said grade so established, it became necessary .to destroy the trees; but whether the grade was a proper one was not a question for the jury. That is conceded.

The only question for the jury was whether the contractors and city engineer in performing the labor required by the ordinance must of necessity destroy the trees, or whether the doing of the same was an unnecessary and wanton violation of plaintiff’s rights, for which he might recover.

We have no doubt but that the plaintiff has such a property interest in those shade trees planted and maintained by him on the street with the knowledge and consent of the city council that he may recover for any unnecessary injury thereto.

This court in the case of Newcomerstown v. Dickenson, 32 O. C. C. 311 (affirmed, no op., Newcomerstown v. Dickerson, 77 Ohio St. 597), so held; and the opinion of Judge McCarty in that case shows the view of the court in reference to the rights of the owner of abutting property in shade trees on the street adjacent to his premises. That case was taken to the Supreme Court of Ohio,' and affirmed; so that we think the law in this behalf is fully settled in this state.

There is also a claim made that the city is not liable for this damage, because it was accomplished by independent contractors; but the charge is made, and the proof seems to us to sustain it, that these contractors were performing the work under the direction of the city engineer, and therefore, if there was a wrong at all, it seems to us that the evidence establishes that it was the joint wrong of the city and contractors combined.

The judgment of the common pleas court is affirmed with costs, without penalty.


author: GIFFEN, P. J.

text:
    STREET RAILWAYS — TRIAL.
    [Hamilton (1st) Circuit Court,
    March 19, 1910.]
    Giffen, Smith and Swing, JJ.
    Cincinnati Traction Co. v. James Jamison.
    1. Answer not Averring Contributory Instruction upon such Defense is Erroneous.
    An instruction upon contributory negligence, or expressing an opinion as to the amount of evidence tending to prove contributory negligence, is improper in the absence of an averment of contributory negligence in the answer or evidence offered by defendant in support of such theory.
    2. Answers by Motorman in Response to Questions of the Cause of Accident are not Part of Res Gestae.
    What a motorman' said immediately after an accident, not voluntarily and spontaneously, but in answer to questions by witnesses of the accident as to why he did not stop his car, is not a part of the res gestae and therefore not admissible in evidence.
    3. Ordinary Care is Required of Motorman Whether Running in Same Direction on Right or Left Track.
    While a motorman may be required to exercise more care when running in the same direction on the left hand track than when running on the right hand track, yet it is still only ordinary care that can be required of him.

      Error to common pleas court.

      Kinhead & Sogers, for plaintiff in error.

      J. T. Shy no and Walter M. Soche, for defendant in error.
    The defendant in error recovered a verdict of $257.47 for injury to his horse and buggy in a collision with a traction ear on College Hill. The petition alleged that the horse was frightened and uncontrollable 'at the time of-.the accident, that the motorman saw or could have seen the peril in which the plaintiff was placed in ample time to have stopped the car, and that the situation was further complicated by the fact that a down car was running on the up track.
   GIFFEN, P. J.

There can be no burden of proof of any issue not raised by the pleadings nor by the evidence. The defendant offered no evidence tending to prove contributory negligence, nor did the answer contain any such defense. The court therefore erred in charging upon the subject of contributory negligence. It was also error to express the opinion “that there is little, if any, evidence tending to show that there was any contributory negligence on the part of the plaintiff.” If there was in fact none it would have been proper to so instruct the jury; but while a doubt existed, it was a question for the jury and not for the court.

Witnesses were permitted to testify to declarations of the motorman in answer to questions put to him by the plaintiff and a bystander after the accident, to wit: “Why didn’t you stop the car?” He says, “I could not stop the car.” He says, ‘ ‘ The brake would not work. ’ ’ And again: ‘ ‘ The motorman he said the brake didn’t work. We asked him why he didn’t stop. He says the brake didn’t work, he could not stop.” ' ‘

These are not voluntary and spontaneous declarations characterizing the transaction, but constitute the motorman’s version of a past occurrence, given under pressure by the witnesses. The numerous eases cited by counsel for defendant in error undoubtedly- show a tendency to relax the rule of evidence in like cases, but none of them goes so far as to hold that such declarations made under such circumstances are a part of the res gestae and therefore admissible.

The court erred in defining the term “burden of proof.”

It is also urged that the court erred in charging the jury that a motorman should exercise more care in running the cár on the left hand side of the road, than if running on the right, hand side. Under the pleadings and evidence of this case, the horse being already frightened and beyond the control of the' driver, the motorman could not anticipate that the horse would be liable to turn one way more than another and especially that he would attempt to pass the car on the side next to a steep embankment and where there was no room to pass. If the motorman in the exercise of ordinary care saw the peril of horse and driver, his. duty to have his car under control and if necessary stop it, arose not from running on the left side of the road, but the' unmanageable and perilous condition of the horse and driver. Under certain circumstances the motorman would perhaps be required to exercise relatively more care in using the left hand track than if using the right hand track; but it would still be only ordinary care, and we think the jury so understood the instruction. -The error, if any, was harmless.

The judgment will be reversed and the cause remanded for a new trial.

Smith and Swing, JJ., concur.


text:
    ADVERSE POSSESSION — EASEMENTS.
    [Richland (5th) Circuit Court,
    January 25, 1911.]
    Taggart, Donahue and Voorhees, JJ.
    C. C. Staman v. Lewis Balliett.
    1. Prescriptive Right of Way over Lands of Another along Stream; Passes by Will or Conveyance.
    A party who uses a road or way as a means of ingress and egress to his own land, over the lands of another along the hanks of a stream without let or hinderance and without obstruction for a period of twenty-one years, acquires a right by prescription, to its use as an incident to his land, and the right will pass by conveyance or descent of the land. Pavey v. Vance, 56 Ohio St. 162 [46 N. E. Rep. 898].
    2. Shift in Roadway Conforming to Shift in Stream Adjacent does; not Defeat Prescriptive Right of Egress and Ingress.
    A party having a prescriptive right to the use of a road or way over the lands of another along the banks of a stream as a means of ingress and egress to his premises, said right is not lost, modified or affected by reason of a shift in the traveled road or way, the traveled road or way remaining in the same-location for a less period than twenty-one years, provided said shift in the traveled road or way is occasioned by a like shift in the bed and bank of said stream, and no more land than is necessary is thereby occupied, in order to continue the use of said road or way along the banks of said stream as a means of ingress and egress to his said premises. In such ease the traveled road or way lawfully shifts with the bed and bank of said stream.
    [Syllabus approved by the court.]
    Appeal from common pleas court.

      G. H. Workman, for plaintiff.

      G. H. Htiston, for defendant.
   PER CURIAM.

This cause is in this court by appeal from the court of common pleas. The controversy between the parties arises from, an alleged right of way leading from a public road in this county, known as the Wooster road, and leading from the village of Mifflin, Ashland county, Ohio, westward across the Blackforh of the Richland county’line.

The alleged way is about thirty rods long and is claimed to be about ten to fifteen feet in width, and is claimed as a means of ingress and egress from this highway to a portion of the plaintiff’s premises. The plaintiff complains of the defendant that he wrongfully barred this way by a fence and posts preventing him from at all times passing and repassing over the alleged way, and he prays for an injunction requiring the removal of said fence and from interfering with the plaintiff in the use of the way. It is the claim of the plaintiff that he has been in peaceable occupation of this way-for a period of time that would give him a prescriptive right thereto.

The answer of the defendant in respect to the material allegations of the plaintiff’s cause of action are a denial and he further avers that, in consequence of plaintiff’s straightening the stream to the north of the alleged right of way, the channel of the stream was changed and that a portion of the claimed driveway was washed away, and that there is not sufficient room to drive between the fence, which he avers wa§ to the west of the bank of said creek, and the bank of the creek; he further avers that the plaintiff has other means of ingress and egress to his said premises which, through his own fault, was interfered with, and that he has no prescriptive right to said alleged way. This was denied and on these issues the case was presented to the court on the pleadings and evidence.

On behalf of the plaintiff there were certain witnesses introduced who testified directly to- the fact of the way leading from the Wooster road to the eighty-nine acre tract of land to which it is claimed this way. is a means of ingress and egress. These witnesses testified that for a great many years the way was used and they testified that they used it, so that considerable credence must be given to the witnesses who testified distinctly and affirmatively to facts which they themselves were cognizant of.

Much of the testimony introduced on behalf of the defendant is that there was no such way and that they had the means of knowing, but we think the clear weight of the testimony in this case is to the fact that there was a traveled way substantially upon the line claimed by the plaintiff in his petition, and that it was used and intended as a means of ingress and egress to this eighty-nine acres of land.

In addition to the affirmative testimony on behalf of the plaintiff, a number of witnesses on behalf of the defendant testided that the plaintiff did use the disputed way in the summer of 1884 and each and every year since that date, up to the time that he was interfered with By the defendant. This would be a sufficient time to give the plaintiff a right to use this way under the doctrine of prescription, unless the same was by permission. The defendant undertakes to say that the use of this was merely permissible and that before and while attempting to use, it, he had sought the defendant out and secured his permission so to do. But this is denied by the plaintiff, and if in view of the testimony that is introduced in this case that prior to this alleged permissive use it was a matter of right, we think that the weight of the testimony is with the plaintiff in this case.

"We, perhaps, would not need to introduce any authority supporting this proposition of- the right of relief to the plaintiff further than the case of Pavey v. Vance, 56 Ohio St. 162 [46 N. E. Rep. 898], but it is insisted that the proof in this ease shows from the fences and the remains of fences that have been dug up since, that the present traveled way has been changed, and that in consequence of the straightening of the stream to the north of the property in dispute, the traveled way has been so far interfered with that the plaintiff cannot now claim the use of the same, and that, in the event that he attempted to pass and repass there, he could not pass within the boundaries of the former right of way, in consequence of a portion of the same being washed away by the stream.

But we think that Pomeroy v. Salt Co. 37 Ohio St. 520, 523, and the case of Holtsberry v. Bounds, 29 O. C. C. 257 (9 N. S. 510), answers this question. This latter case was affirmed by the Supreme Court without opinion, Bounds v. Holtsberry, 75 Ohio St. 636.

In the latter case, the right of way was shifted in many places, but a decree was entered confining tbe party to tbe width of the road or way as it formerly existed.

A decree may be entered herein for the plaintiff, enjoining the defendant from interfering with him in the use of this way, and a judgment may He entered for costs. Motion for a. new trial will be overruled with exception and twenty days for separate finding of fact and conclusions of law.


text:
    BANKS AND BANKING-FACTORS.
    [Hamilton (1st) Circuit Court,
    April 9, 1910.]
    Giffen, Smith and Swing, JJ.
    David M. Smith et al. v. City Hall Bank.
    1. Burden is on Owners to Prove Proceeds of Sales Made by Factors were Deposited in Bank on Particular DAy.
    In an action for recovery of the proceeds of sales made by factors and deposited in a bank, the burden is on the owners of the property sold to prove that the proceeds from the sales in question were deposited on that particular day and remained in possession of the bank..
    2. Bank not Held to Know Ownership of Deposits by Factors on Particular Day.
    Although a bank may be deemed to have known that the greater portion of the deposits made by the factors was derived from sales made for their customers, it cannot be held to have had knowledge of the ownership of the deposits made on a particular day or to be liable for the payment in good faith of checks drawn against such deposits.
    3. Checks Drawn by Factors, not Accepted by Bank, Have no Preference.
    Checks drawn by factors and held by their customers, but not accepted by a bank, have no preference against the fund on deposit over the claims of general creditors.
    Appeal from common pleas court.

      Bennett & Utter, for plaintiffs:
    Cited and commented upon the following authorities: 12 Am. & Eng. Enc. Law (2 ed.) 628, 629, 696; 28 Am. & Eng. Ene. Law (2 ed.) 1115, 1116, 1118; Sutliff v. Bank, 18 Dec. 354 (6 N. S. 177); Mannix v. Purcell, 46 Ohio St. 102 [19 N. E. Rep. 572; 2 L. R. A. 753; 15 Am. St. Rep. 562] ; Campbell v. State, 35 Ohio St. 70; Union Stock Yards Bank v. Gillespie, 137 U. S. 411 [11 Sup. Ct. Rep. 118; 34 L. Ed.. 724]; Central Nat. Bank v. Insurance Co. 104 U. S. 54 [26 L. Ed. 693] ; Commercial Nat. Bank v. Armstrong, 6 O. F. D. 383 [39 Fed. Rep. 684] ; Hunter v. Bobbins, 117 Fed. Rep. 920; Union Stock Yards Bank v. Moore, 79 Fed. Rep. 705; Baker v. Bank, 100 N. Y. 31 [2 N. E. Rep. 452; 53 Am. St. Rep. 150]; Clemmer v. Bank, 157 III. 206 [41 N. E. Rep. 728]; LaPorte v. Carpenter, 91 Hum 76 [36 N. Y. Supp. 168] ; Cavin v. Gleason, 105 N. Y. 256 [11 N. E. Rep. 504]; Ellicott v. Euhl, 60 N. J. Eq. 333 [46 Atl. Rep. 945]; Cushman v. Goodwin, 95 Me. 353 [50 Atl. Rep. 50] ; Peters v. Bain, 133 U. S. 670 [10 Sup. Ct. Rep. 354; 33 L. Ed. 696]; Veil v. Mitchell, 4 Wash. 105; Fahnestock v. Baüey, 60 Ky. (3 Mete.) 48 [77 Am. Dec. 161] ; National Cordage Co. v. Sims, 44 Neb. 148 [62 N. W. Rep. 514]; Merrill v. Bank, 36 Mass. (19 Pick.) 32; Heidelbach v. Bank, 87 Hum 117 [33 N. Y. Supp. 794] ; Cady v. Bank, 46 Neb. 756 [65 N. W. Rep. 906]; Van Alen v. Bank, 52 N. Y. 1; Burtnett v. Bank, 30 Mich. 630; Davis v. Bank, 29 S. W. Rep.,' 926 (Civ. Tex. App.) ; Third Nat. Bank v. Gas Co. 36 Minn. 75 [30 N. W. Rep. 440] ; Commercial Nat. Bank v. Armstrong, 6 O. F. D. 383 [39 Fed. Rep. 634] ; Skunk v. Bank, 9 Dec. Re. 684 (16 Bull. 353) ; Cincinnati, H. & D. By. v. Bank, 54 Ohio St. 60 [42 N. E. Rep. 700; 31 L. R. A. 653; 56 Am. St. Rep. 700]; Covert v. Bhodes, 48 Ohio St. 66 [27 N. E. Rep. 94]; Lotze v. Hoerner, 11 Dec.' Re. 131 (25 Bull. 31) ; 4 Cyc. 50; Converseville Co. v. Woollen Co. 14 Hun. (N. Y.) 609; Duguicl v. Edwards, 50 Barb. (N. Y.) 288; Martin v. Moulton, 8 N. H. 504; District Township of Eureka v. Bank, 88 Iowa 194 [55 N. W. Rep. 342]; Bobb v. Boelker, 9 O. F. D. 24 [66 Fed. Rep. 23] ; 7 Enc. PI. & Pr. 361, 362, 363; Moffat v. Wood, Seld. Notes (N. Y.) 200; Powers v. Benedict, 88 N. Y. 605; Hersey v. Benedict, 15 Hun. (N. Y.) 282; Miller v. Lake, 24 W. Ya. 545; Second Nat. Bank v. Morrison, 3 Dec. Re. 534; Morgan v. Skidmore, 3 Abb. N. Cas. (N. Y.) App. 92; Badman v. Haberstro, 49 Hun. (N. Y.) 605 [1 N. Y. Supp. 561]; Bowen v. Mmdeville, 95 N. Y. 237; Parken v. Knox, 60 Hun. 550 [15 N. Y. Supp. 256]; Walden Nat. Bank v. Birch, 130 N. Y. 221 [29 N. E. Rep. 127; 14 L. R. A. 211]; Bidgely Bank v. Patton, 109 111. 479; Hobbs v. Hobbs, 58 N. H. 51.

      Bobertson & Buchwalter and Theodore G. Jung, for defendant.
   GIFFEN, P. J.

The plaintiffs in the several actions consolidated under the above title aver that on November 11, 1907, and for thirteen years prior thereto the firm of Rabenstein, Harris & Conner were engaged in business as live stock commission men and brokers, having a deposit account in the defendant bank; that thé bank knew the nature of the firm's' business, and that the greater portion of the money deposited by the firm was the proceeds of the sale of live stock belonging to their customers; that during the period from the latter part of October to November 11, 1907, they consigned live stock to said firm, which was sold and the proceeds deposited in the defendant bank, and are still in the possession of defendant; that said firm was then and for a long time prior thereto insolvent, and known to be so by the defendant; that on November 11, 1907, said firm made an assignment for the benefit of creditors, and was subsequently adjudged a bankrupt; that the plaintiffs notified defendant that the money so deposited was the proceeds of such sales and demanded payment. The answer, in so far as it is necessary to here consider it, is a general denial.

The plaintiffs assume the burden of proving not only that the proceeds of such sales were deposited in the bank, but that they are still in the possession of the bank; nor do they now claim that the bank is liable to account to them in any greater sum than the balance due to the insolvent firm on November 11, 1907, to wit, $3,674.01.

On November 5, 1907, the account was overdrawn $700.81; on November 6, $1,259.19; on November 7, $125.87, and on November 9, $70.09. The latter does'not appear at the close of business on that day, but by reason of the custom on Saturday of each week to exchange checks at the clearing house at an earlier hour than other days, the checks on Saturday, November 9, were presented and honored before the deposits of that day were made. It is self-evident that any deposits made by the firm prior to any of such overdrafts ceased to be thereafter in the possession of the bank; and it can not be held liable, unless it knew or ought to have known that such deposits were the proceeds of sales of cattle belonging to the plaintiffs. While the defendant must have known that the greater portion of the money so deposited was derived from sales of live stock belonging to the customers of the firm, it had no knowledge that the proceeds of sales here involved were a part of the deposits, or of the fund in controversy; and the account being an ordinary and general bank account it was justified in honoring good faith any check presented.

The only plaintiffs who have traced the proceeds into the bank and identified them as a part of the balance November 11, 1907, are H. L. Tanner, $166.80, deposited on the 9th, and $32.50 deposited on the 11th; Slack & Offutt, $492.45, deposited on the 9th, and $85 deposited on the same day; and because .they have thus traced the proceeds they are entitled to recover the same with interest. Heidlebach v. Bank, 87 Hun. 117 [33 N. Y. Supp. 794]; Cady v. Bank, 46 Neb. 756 [65 N. W. Rep. 906].

Of course the bank could not apply the money belonging to plaintiffs in satisfaction of an existing overdraft but upon each day the deposits were largely in excess of the overdraft of the preceding day, and largely from sources other than the property of plaintiffs. The presumption is that the firm intended such deposits from other sources to be applied to the overdraft, rather than the money which belonged to plaintiffs.

It is further urged that the checks of the film held by the plaintiffs, but not accepted by the bank, created an equity in the fund or a preference over the general creditors: but the law is otherwise in this state. Covert v. Rhodes, 48 Ohio St. 66 [27 N. E. Rep. 94]; Bank of Marysville v. Brewing Co. 50 Ohio St. 151 [33 N. E. Rep. 1054; 40 Am. St. Rep. 660].

A decree may he entered in accordance with the above finding.

Opinion on Application por a Rehearing.

On application for leave to reargue this cause our attention is directed to the testimony of Mr. George Schmidt, the president of the bank. While it is true that cheeks coming through the clearing house may be returned at any time before 1 o’clock on Saturday and 4 o’clock on other days, and final payment made at that time, yet on Saturday, November 9,- the cheeks were entered in the account about 11 o’clock, and payment became absolute at 1 o’clock, not because of deposits made on thaij. day, but because there was a balance in the account carried over from the preceding day sufficient to pay the cheeks except the comparatively small sum of $70.09.

This particular fund could not therefore be traced by the plaintiff as in the possession of the bank after the checks were charged to the account.

Application denied.

Smith and Swing, JJ.,. concur.


text:
    MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    March, 1910.]
    Giffen, Smith and Swing, JJ.

      Clara Mildner and Benedict Keeti v. Cincinnati.
    Forbidding Dry Cleaning Establishments Only to Use Gasoline in Municipalities is Invalid Regulation.
    An ordinance forbidding dry cleaning establishments only from using gasoline within municipal limits is unreasonable against a certain trade or business; if the business is carried on in such manner as to become a nuisance, or is dangerous, offensive or unwholesome as to cause injury or annoyance it is subject to regulation under Gen. Code 3650.
    Error to common picas court.

      David Davis, for plaintiff in error.

      G. H. Urban, for defendant in error.

      Reversing, Mildner v. Cincinnati, 20 Dec. 61; affirmed, no op., 56 Bull. 338.

   GIFFEN, P. J.

The plaintiffs in error were convicted and sentenced to pay a fine of $50 each’ under an ordinance ‘ ‘ To regulate the use of gasoline, naptha, benzole and other light petroleums, and coal tar productions in the dry-cleaning business in the city of Cincinnati, Ohio.”

While the provisions of the ordinance are apparently intended to regulate the use of gasoline in the dry-cleaning business, they in effect prohibit such business within the city limits; but even this may be done, if the business of dry-cleaning is a nuisance or so dangerous, offensive, or unwholesome as to cause injury or annoyance. Gen. Code 3650; White v. Kent, 11 Ohio St. 550; Hays v. St. Marys, 55 Ohio St. 197 [44 N. E. Rep. 924].

The manifest purpose of the council in passing the ordinance was to prevent injury to life and property from the use of gasoline or other inflammable material. There is no other element of danger in the business of dry-cleaning; and yet it is notorious that this same element of danger is present in other trades and businesses which this ordinance does not pretend to regulate.

Gasoline stored and used for the purpose of cleaning articles made of iron or steel is just as dangerous as the same quantity of gasoline stored and used for the purpose of cleaning cloth or clothing. At least there is nothing in the record showing any distinction. The ordinance is unreasonable, not because gasoline is harmless, nor because of any want of power in council to regulate its use, but because it unjustly discriminates against a certain trade or business.

For this reason the ordinance is void and the judgment of the court of common pleas will be reversed and the cause remanded to that court with instructions to reverse the judgment of the police court of Cincinnati.

Smith and Swing, JJ., concur.


author: GIFFEN, P. J. GIFFEN, P. J.

text:
    AUTOMOBILES — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    April 9,
    June 10, 1910.)
    Giffen, Smith and Swing, JJ.
    Ohio Traction Co. v. Jennings Miller. Ohio Traction Co. v. Louise Breitholle. Ohio Traction Co. v. Miller. Ohio Traction Co. v. Breitholle.

      Collision between Automobile and Street Car Caused by Unexpected Change in Course op the Former not to be Anticipated by Motorman, not Ground por Recovery.
    Conflicting testimony tending to show that an automobile attempting to pass between came into collision almost simultaneously with two cars belonging to different companies and approaching on parallel tracks, and injuring a passenger on the car probably last to strike the automobile by being burned by an explosion of the gasoline tank thereon, is not sufficient to warrant a verdict in favor of such passenger, the unexpected change of course by the automobile not being one to be anticipated and guarded against by the motorman.
    Error to common pleas court.

      George E. Warrington, for plaintiff in error.

      Worhum & Bowdle, for defendant in error.
   GIFFEN, P. J.

The plaintiff in the original action was a passenger- on a Millcreek Valley car owned and operated by the defendant, the Ohio Traction Company, and was burned and otherwise injured by the explosion of gasoline on an automobile which collided with a Vine-Norwood ear running south on Vine street hill while the Millcreek Valley car was running north, and it is claimed in the petition that the defendant, knowing that the collision had occurred, and that the automobile was on the northbound track, negligently and willfully ran its car against and upon the automobile.

The plaintiff’s testimony and that of two of his witnesses, at least, support his theory of the case; but one of his witnesses, Miss Cobham, is uncertain whether the automobile collided first with the Millcreek Valley car 'or with the VineNorwood car. The great weight of the testimony, however, shows that the collision, if any, between the automobile and the Millcreek Valley ear was almost the same instant it struck the Vine-Norwood car. It is not unexpected nor unusual that accounts of an accident of this character given by eye-witnesses vary as to time, distance and other details, especially when observed under conditions of great excitement and confusion; and we conclude- from all the evidence that the plaintiff is mistaken in his recollection and recital of the facts.

It is rightly claimed by counsel that the defendant company was bound to exercise, for the protection of its ,-passengers, the highest degree of care consistent with the practical operation of its road; but a careful reading of the testimony fails to disclose any violation of that duty. The testimony shows that there was room for the automobile to pass the Mill-creek Valley car on the left-hand or the Vine-Norwood car on the right-hand side of the street, and that there was no other vehicle or obstruction in the way. There being no necessity for the driver of the automobile to pass around the left side and in front of the Vine-Norwood ear, the motorman on the Millcreek Valley ear had no reason to anticipate such attempt; but on the contrary might well assume that he would take one of the two ways open for such travel. After the collision with the Vine-Norwood car, the explosion followed so soon and the flames from the burning gasoline so completely surrounded' the motorman and his car that he was powerless to avoid the consequences. The instinct of self-preservation would tend to re- . strain the motorman from doing that which he is charged in the petitioh with doing, and the manifest weight of the testimony exonerates him. The judgment will be reversed for error in overruling the motion for a new trial upon the ground that the verdict is not sustained by sufficient evidence, and the cause remanded for a new trial.

Smith and Swing, JJ., concur.

Error to common pleas court.

George H. Warrington, for plaintiff in error.

S. A. West and Frazier & Kicks, for defendant in error.

GIFFEN, P. J.

■ The plaintiff below, Louise Breitholle, was a passenger on one of the cars of the defendant company, and after describing a collision between an automobile and a car operated by the Cincinnati Traction Company while both were descending Vine street hill, which as alleged left the automobile across the track upon which the defendant’s car was ascending, and about 100 feet in front of the car, charges negligence as follows:

“That after said automobile had been so thrown on and near the track upon which defendant’s car was being run, all of which the defendant then and there had the means of knowing and did know, the defendant then and there carelessly and negligently failed and neglected to control and operate its said car so as to avoid coming in contact with the said automobile, but carelessly ran said ear into said automobile.”

This is a clear cut charge of negligence concerning which there ought not to be. much conflict of testimony, yet there is such conflict not only between the testimony offered by the plaintiff and that offered by the defendant, but also in the testimony of the witnesses on either side.

Mrs. Fiseus, a witness called by the plaintiff, testified that while standing on the steps in front of her house on. the east side of Vine street she saw the automobile collide with a Nor-wood car; that defendant’s car was at the time about 75 feet south of the automobile, and continued slowly up the hill until stopped about 15 feet south of the automobile, from which the burning gasoline flowed down the hill and set fire to the car. This testimony does not support plaintiff’s theory of the ease, and is discredited by the testimony of her sister, who was next called by the plaintiff, and said that they were both in the house when the collision took place and when they came out the car was burning.

The Nulsen sisters (called by plaintiff), who were in the automobile, were unable to state whether the Millcreek Yalley car operated by the defendant collided with the automobile, although very close to it when stopped. One of them testified that defendant’s car “was just turning the' curve” when the collision between the Yine and Norwood car happened, which she estimated to be 75 or 80 feet away, whereas by actual measurement it was more than 700 feet. Her inability to accurately state the distance is excusable, but her statement that the ear “was just turning the curve” is not supported by any other tbstimony.

The motorman on the Vine-Norwood car testified that after the automobile struck his car he looked around and the automobile and the other car “hit .while I was looking.” And again, “but the ears were so close together that the other crash came almost instantly.” The witness, Keys, called by the defendant, was a passenger on the Millcreek Yalley car, sitting in the second seat from the front on the left hand side, and testified upon cross-examination as follows:

“Q. Then if there was a collision between the automobile and the Yine-Norwood car, you didn’t see it? A. Well, I saw , it just as that happened, but I didn’t see the car before.
“Q. I see. The first that you really knew was when your car, that is, the Millcreek Yalley car, was within five feet of the automobile? A. Yes, sir.
“Q. And your car, you think, ran up and touched the automobile? A. Well, rather the automobile ran down and. touched the car.
“Q. The automobile was still running, was it? A. The car stopped first according to my recollection.”

The natural explanation of this testimony from all the evidence is that the automobile was thrown against the Millcreek Yalley ear by the Yine-Norwood car which the witness did not, at that moment, see.

There is, however, very little conflict in the testimony , of the passengers on the Yine-Norwood car, which, being open, afforded a better opportunity for accurate observation, and is in substance that the automobile in the attempt to pass in front of the Vine-Norwood. ear struck it near the front part, and that the collision with the defendant’s car, if any, was almost instantly thereafter. There is of course testimony tending to sustain the charge of negligence; but the great weight of the evidence is against it.

The attempt of the driver of the automobile to pass in front of the Vine-Norwood car was wholly unnecessary and so reckless that the motorman on defendant’s car could not reasonably anticipate that he would make such attempt.

The defendant offered in evidence an ordinance of the city of Cincinnati providing that vehicles shall keep to the right hand side of the street and near the curb, so as to give those moving at greater speed the use of the central part of the street. Why this ordinance was introduced by the defendant does not appear; but counsel for plaintiff seek to thereby excuse the chauffeur for his failure to pass the defendant’s ear on the left hand side of the street. The proper observance of a city ordinance is in itself, of course,' commendable; but we fail to see how the motorman could anticipate that, while the chauffeur would duly obey the city ordinance, he would at the same time violate every rule of common sense, and thereby risk not only his own life but a score of other lives. The verdict of the jury appears to have been the result of sympathy with the plaintiff, or prejudice against the defendant, and ought not to stand. The judgment will therefore be reversed and the cause remanded for a new trial.

Smith and Swing, JJ., concur.


text:
    ' EVIDENCE — NEGLIGENCE—STREET RAILWAYS.
    [Hamilton (1st], Circuit Court,
    May 28, 1910.]
    Giffen,-Smith and Swing, JJ.

      Cincinnati Traction Co. v. Edward J. Ruthman, a Minor, by His Next Friend.
    1. Weighing Plaintiff’s Evidence in Negligence Case Requires Separation of Evidence Tending to Prove Essential Pacts 'of His Case from that Tending Otherwise.
    An issue of failure to exercise due care by plaintiff having been raised by the pleadings and evidence, an instruction is erroneous that directs the jury to find for plaintiff in the event his evidence outweighs that of defendant, especially since they were not at the same time directed, before weighing plaintiff’s evidence to separate, without regard to source, such evidence as tends to prove the essential facts of his case from that which tends otherwise.
    2. Motorman not Required to Use Every Possible Effort to Avoid Collision.
    The first and highest duty of a motorman is owing to the passengers on his car; hence a charge that “it was his duty to make every effort to check his car or stop his car, if necessary, in order to avoid injury” by collision, being liable to be construed as meaning “every possible effort,” is more than the law requires.
    Error to common pleas court.

      Einkead & Rogers, for plaintiff in error.

      Frank Seinsheimer and Thomas L. Michie, for defendant in error.

      Reversed, no op., Cincinnati Trac. Co. v. Ruthman, 85 O. S. 000; 56 Bull. 375.

   GIFFEN, P. J.

Although counsel for plaintiff in error does not urge the ground stated in the petition in error that the verdict is not sustained by sufficient evidence, we have read the same to ascertain whether the alleged errors in the charge of the court are prejudicial.

The pleadings and the evidence make a case where the plaintiff’s exercise of due care- is presented for determination, and a charge which misleads the jury to its conclusion upon that issue' without considering all the evidence is erroneous.

The court charged as follows:

“Preponderance has reference to something that has-weight, or that may be weighed. You can not, of course, by a pair of scales, weigh the evidence in this ease as you would a material solid substance, but you can in your minds weigh -the evidence by putting into one side of an imaginary scale or balance all the evidence offered by the plaintiff and into the other &ide of the scale or balance all the evidence offered by the defendant, and then in your minds determine which evidence, the plaintiff’s or the defendant’s, is the weightier or heavier.
“Before the plaintiff can recover in this action the evidence offered in his behalf must outweigh in your minds the-evidence offered on behalf of the defendant.”

The law recognizes and experience teaches that the evidence offered by the plaintiff in an action founded, upon negligence, often shows that he himself is at fault; but if such evidence is placed 'on plaintiff’s side, of the scales it will add nothing to the weight of defendant’s side. Before proceeding to weigh the evidence the jury must separate that which tends, to prove the essential facts of plaintiff’s case from that which tends otherwise, without regard to its source. A charge similar in effect was condemned in the ease of Robison v. Gary, 28 Ohio St. 241.

The motorman was bound to exercise ordinary care only, and the court so told the jury in a special instruction given at request of the defendant; but in the general charge he said “It was his duty to make every effort to check his car or stop his car, if neeessáry, in order to avoid injury.”

The jury would be liable to construe this as meaning “every possible effort,” which is more than the law requires in an emergency like the one presented by the evidence. The fírst and highest duty of the motorman was owing to the passengers on his car. New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130].

The cross-examination of the motorman was proper as reflecting on his conduct at the time of the collision and his. version of it. There was no purpose to introduce a new element of negligence.

The judgment will be reversed for errors in the general charge and the cause remanded for a new trial. ’ •

Swing and Smith, JJ„ concur.


text:
    STREET RAILWAYS.
    [Clermont (1st) Circuit Court,
    June 1, 1910.]
    Giffen, Smith, and Swing, JJ.

      Interurban Railway & Term. Co. v. John M. Hines, Admr.
    Interurban Company Using Tracks op City Street Railway held-Bound by Rules op Latter as to Speed at Crossings.
    An interurban traction company using tracks of city street railway, is bound by the rules of the latter company regulating the speed of cars at crossings. Where it appears that due care was: not exercised the interurban company is liable for injuring a. passenger alighting from one of the cars of the city company..
    Error to common pleas court.

      Frank F. Dinsmore, for plaintiff in error.

      Prescott Smith and D. W. Murphy, for defendant in error..
    Plaintiff below brought suit in the common pleas court of this county for damages on account of the death of his wife, who was struck and fatally injured by an inbound interurban. car as she alighted from an outbound car of the Cincinnati Traction Company. The case was removed to Clermont county for trial, and a verdict was returned for the husband of $3,000» Error was prosecuted to the circuit court for reversal of that judgment.

      Affirmed, no op., Interurban Ry. & Term. Co. v. Hines, 84 O. S. 493.

   PER CURIAM.

From a consideration of the evidence as disclosed by the record in the above case, the court is of the opinion that the judgment of the trial court should be affirmed.

The acts of negligence charged against the railway company in the petition are fully sustained by the evidence, and we do not think that there is anywhere disclosed contributory negligence upon the part of the decedent. From all the circumstances surrounding the decedent at the time she was struck by the ear of plaintiff in error, it would seem that the railway company did not exercise the care that it should.

The congestion of the ears on the outbound track, the lack of warning either by headlight or sounding of the gong, together with the speed at which the interurban car was proceeding, as well as the fact that the night was dark, would seem to indicate that the care necessary under the existing conditions was not taken by the servants of the railway company.

While the decedent was not a passenger upon the car of the plaintiff in error company, yet we think the rule laid down in the case of Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276], might well apply to the case at bar, for the railway company, in operating its ears upon the line of the Cincinnati Traction Company, seems to us would be bound by the rules of that company applicable to the speed of running of .cars at a crossing; but beyond this, under the circumstances of the present ease, it was the duty of the railway company to have approached the point of accident with due care, as it owed this ordinary care to any pedestrian who might wish to cross the street.

As to whether or not the decedent stopped, looked and listened before attempting to cross the track of the railway company, we are not prepared to say but that she did, and she at least had the right to assume that the plaintiff company in the handling of its car would exercise ordinary care towards her at this particular time and place under all circumstances. But if the evidence would not justify such an inference and was wholly lacking upon this point, there is the legal presumption in her favor that she did look and listen. Baltimore & P. Ry. v. Landrigan, 191 U. S. 461 [24 Sup. Ct. Rep. 137; 48 L. Ed. 262].

The court is of the opinion,' therefore, that decedent was not guilty, either in fact or law,, of contributory negligence, and as the amount of damages assessed by the trial court is not- excessive the judgment will be affirmed.