text:
    WILFUL AND WANTON NEGLIGENCE.
    Court of Appeals for Champaign County.
    Nypano Railroad Company and Erie Railroad Company v. Leroy L. Blose and Henry Heater, Administrators of the Estate of Augustus Mauck, Deceased.

    Decided, February 26, 1914.

      Carriage Struck by Train at Street Crossing — Reckless and "Wanton "Negligence Charged Against Railioay Company — Doctrine of Last Clear Chance Not Applicable, When — Weight of ■ Evidence. ■

    In an action growing out of the striking of a vehicle by a steam railway train, running forty miles an hour over a street crossing within municipal limits, where the view of the track to the occupants of the vehicle was obscured by a string of freight cars, and when the street is also in part obstructed by cars standing thereon a jury is justified in finding that the train was being operated in such a manner as to amount to wilful and wanton negligence.
    I. T. Siddall and S. S. Deaton, for plaintiffs in error.

      L. D. Johnson and Buroker & Zimmer, contra.
    Kunkle, J.; Allread, J., and Ferneding, J., concur.

      Writ of certiorari denied by the Supreme Court, February 10, 1914

   The court of common pleas upon the original trial of this ease directed the jury to return a verdict in favor of plaintiffs in error.

Error was prosecuted from such judgment to the circuit court, which court, in an opinion delivered by Judge Sullivan, held that the case should have been submitted to a jury for its consideration and such court reversed the judgment of the common pleas court.

The judgment of the circuit court was affirmed by the Supreme Court without opinion and the cause ivas remanded to the common pleas court for re-trial.

The case was re-tried and submitted to a jury in the common pleas court in December, 1912.

The jury rendered, a verdict in favor of defendants in error for $4,000. Motion for a new trial having been overruled, error is prosecuted to .this court.

Since the case was heard in the circuit court, the petition has been amended by adding an additional ground of negligence, viz: “that the defendants• further obstructed said Bloomfield avenue, on the south side thereof, by cars standing out on the avenue so that the full use of said avenue was obstructed and there was less room to pass through between the cars than there should have been.”

Counsel have favored the court'with unusually exhaustive briefs in this case. These briefs have been submitted to opposing counsel. We have considered the arguments contained therein, and have examined the authorities cited therein, hut shall not attempt to discuss or review the same in detail.

Plaintiffs in error claim that the evidence does not establish any negligence in the respects claimed in the petition and that the verdict is manifestly against the weight of the evidence and is contrary to law.

There was a conflict in the evidence as to whether the whistle upon this engine was blown or the bell thereon rung, as the train was approaching this crossing. There was also a conflict in the evidence as to the rate of speed at which this train was running when it approached and crossed Bloomfield avenue.

It is sufficient for the purposes of this decision to state that the above were questions of fact, which were required to be and were properly submitted to the jury. The record shows that the jury was fully instructed by the trial court as to the rules by which stuch testimony should be weighed. The charge upon this subject concluded with the following statement:

“In such cases the question is purely for the jury, and the jury must determine it from a consideration of all the facts and circumstances in the evidence.”

We think the manifest weight of the evidence shows that this train approached and passed over this crossing at practically forty miles an hour.- Bloomfield avenue is a public street in the outskirts of the city of Urbana. While this crossing was not used to as great an extent as many other street crossings in that portion of the said city, yet the evidence discloses that this crossing was used by travelers to a considerable extent. We think the jury was justified in finding that the plaintiffs in error were guilty of negligence in passing over this crossing at the rate of speed at which it was crossed.

A number of witnesses testified as to whether the whistle on this engine was blown and whether the bell upon this engine was rung as the train approached said crossing. Some testified that the whistle was not so blown and that the bell was not so rung. A portion of the witnesses so testifying appear'to have been in a position where they could have heard the same had the bell been rung or the whistle blown. Other witnesses called by the plaintiffs below stated that they did not hear the bell ring or the whistle blow, and the inference claimed from such testimony was that if the bell had been rung or the whistle had been sounded, these persons could and would have heard the same.

The defendants below called a number of witnesses who testified that the whistle was blown and the bell was rung for this crossing. As above suggested, these were questions of fact to be determined by the jury. If the jury believed the witnesses called by the defendants in error upon these questions of fact, then there was ample evidence to support a finding that the bell was not rung nor the' whistle sounded at the time in question.

It also appears from the record that the plaintiffs in error at the time in question obstructed this crossing by standing freight ears thereon,-so that the width of the crossing was thereby reduced to a width of about thirty feet, instead of being sixty feet, the width of the said avenue.

It appears from the testimony of Lawrence Zimmerman, who was the only eye-witness to this accident, that he saw Mr. Mauck driving through this opening in the cut of ears which plaintiffs in error had left standing in part upon Bloomfield avenue. He says that Mr. Mauck was trying to pull his horse to the south and the car standing on Bloomfield avenue to the south prevented his so doing. The record shows that the carriage in which these people were riding was thrown against and under the car so standing on the south side of Bloomfield avenue, and that by reason thereof Mr. and Mrs. Mauck were killed and their daughter seriously injured. If this car had not been so unlawfully placed on Bloomfield avenue, the accident in question might have been avoided.

Mr. Zimmerman testified in part as follows:

“Q. Now, just tell the jury what happened after you first saw Mauck with his horse coming through that opening? A. Just as I saw him coming through the cut, the train hit him just as I saw him.
“Q. What was he doing? A. Pulling on the lines.
‘ ‘ Q. What direction was he pulling ? A. South.
“Q. Do you know any reason why, when he pulled south, that he didn’t get out of the way of the train?
“Objected to. Objection sustained.
“Q. When you saw him pulling — on the left, vou say? A. Yes.
“Q. What was the condition there? A. Those ears stopped him.
“Q. What cars? A. The south'range of cars.
“Q. Stopped him from what ? A. Turning his horse around.
“Q. Now, when you saw the horse coming, was it trotting or walking? A. Walking.”

The petition also charges that the defendants below “carelessly, recklessly and wantonly caused said locomotive to strike, wound and kill the said Augustus Mauck.”

This branch of the case presents a very interesting question. In order that we may avoid any confusion as to the issues, it will not be amiss to again repeat that the petition charges that the defendants “carelessly, recklessly and wantonly caused the death of the said Mauck.” What is known as the doctrine of the “last clear chance” is not plead in the petition and is not relied upon by counsel for defendants in error. Some of the .authorities cited by counsel for plaintiffs in error relate to this doctrine. A portion of their oral argument was also devoted to showing that there' can be no recovery, as it wás conceded that the agents of the railroad company in charge of this train did not know of the peril of Mr. Mauck before he was injured, and it is claimed there can be no liability, as there was no testimony showing or tending to show that the agents of the railroad company could have avoided the accident after they learned of Mr! Mauck’s peril.

If the defendants in error had relied for recovery upon the doctrine known as the “last clear chance,” then before they could recover, it would have been incumbent upon them to show that the agents of the railroad company in charge of this train knew of the peril of Mr. Mauck and after having acquired such knowledge could by the exercise of ordinary care have avoided injuring him. As above stated, however, this doctrine is neither plead nor relied upon.

In addition to the acts of negligence above specifically referred to, the defendants in error also claimed that the railroad company obstructed Mr. Mauck’s view of this train by the cars which were placed on another track — that Mr, Mauclr’s view was completely obstructed by such ears so placed by the railroad company.

We are satisfied from an examination of the record that the plaintiffs in error by this act materially obstructed Mr. Mauck’s view of .this approaching train.

In 76th Ohio State Reports, 176, our Supreme Court says:

“The rule upon the subject has been correctly stated to be that ‘where the surroundings are such as to render a crossing particularly dangerous, it is the duty of the company to exercise care commensurate with the danger and especially if the company has created unusual danger at or near a crossing, it must meet such peril with additional precautions.’ ”

We are inclined to think, from an examination of the entire record, that the jury was justified in finding that the train in question was operated at the time and under all the circumstances in question, in such a manner as to amount to a wanton and wilful disregard of the rights of persons lawfully using this crossing. If the jury believed the testimony of certain witnesses of defendant in error then we think it was justified in finding that the acts complained of in the petition were done under such circumstances as that the natural and probable consequences of such acts would be to cause injury to others.

What acts constitute wilful and wanton disregard of the safety of others is very fully discussed in the case of Atchinson, T. & S. F. Railroad Company v. Baker, Admr., 21 L. R. A. (N.S.), 427, and in various other authorities cited by counsel.

If we are correct in our conclusion that the jury was warranted under the evidence in finding that the conduct of the agents of the railroad company at the time in question amounted to wilful and wanton negligence, then the plaintiffs in error can not escape liability on account of any contributory negligence on the part of Mr. Mauek — even assuming that he -was negligent, and that his negligence contributed to his receiving the injuries complained of.

In the case above cited, the first paragraph of the syllabus is as follows:

“In an action to recover damages on account of an injury to a pedestrian resulting from a locomotive being driven along the public street of a city at an unlawful and dangerous rate of speed, with no signal being given of its approach, and with no outlook being kept, the misconduct of those in charge of it may amount to such recklessness and wantonness as to cut off the defense of contributory negligence, although sueh'employees did not know of the presence o C the person injured, if to their knowledge the extent to which the street was used made an injury so probable that they must be deemed to have realized its imminence, and to have refrained from taking steps to prevent it because they were indifferent whether it occurred or not.”

Counsel for defendants in error claim that there' is no testimony showing negligence upon the part of Mr. Mauch; that it devolved upon the plaintiffs in error to prove their defense of contributory negligence; that in the absence of any testimony upon the question of Mauek’s negligence the presumption is that he exereised ordinary care to protect himself from injury and was not guilty of negligence.

In viewr of the conclusion at which we have arrived, it is unnecessary to consider this question.

Plaintiffs in error also claim that the trial court erred in requiring the jury to stay out from 4:45 p. m., Saturday, until 2:30 a. m. Sunday morning. Our observation is that juries are often kept out not merely a portion of the night bitt throughout the entire night. There is nothing in the record which would justify us in finding that the plaintiffs in error were prejudiced by reason of the jurors being held until that hour of the morning.

Plaintiffs in error also complain of various questions which the trial court permitted the plaintiff below to ask different witnesses. A list of such questions has been handed to this court. We have examined the record, and while some of the questions referred to are somewhat leading and suggestive, yet that is a matter which rests in the sound discretion of the trial court. We do not find any prejudicial error in the respects suggested.

Plaintiffs in error also claim that the court erred in refusing to give certain instructions to the jury. The bill of exceptions shows that after the court had concluded its charge to the jury the defendant excepted to the general charge of the court and asked the court to give certain further instructions to the jury. Assuming that the request for the charges in question was properly made, we have examined such requests to charge, and think they were properly refused. The charges requested had in part already been given in substance in the general charge of the court.

Finding no error in the record, prejudicial to the plaintiffs in error, the judgment of the lower court will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    THE TAKING POSSESSION OF MORTGAGED CHATTELS.
    Circuit Court of Lorain County.
    Andrew McQuate v. Thomas Smith.
    Decided, April 26, 1911.

      Chattel Mortgage — Mortgagee’s Right to Take Possession — Replevin-Tissue that Mortgagee Injured Property and Sold it for Less Than it Was Worth. . .
    1. The rightful exercise by a mortgagee of chattels to take possession of them, under a covenant in the mortgage that he may do. so if he at any time before the money becomes due, deems it necessary for his more complete and perfect security, does not depend upon the fact that he has reasonable grounds for deeming it necessary for his security. o:
    2. An averment in a cross-petition in replevin that the plaintiff, during his possession of the replevined property failed to. properly care and provide for it and permitted it to greatly depreciate and injured the same, and thereafter sold it at' public auction' for less than its value,- presents an issue which must he determined by a jury. •
    Henry, J.;.Winch, J., and Marvin, J., concur. ’
   Smith brought replevin before a justice-of -the peace against McQuate to recover possession of a team of horses and a set of double harness. On appeal of the action to the court of common pleas, Smith filed his petition, briefly alleging that he was entitled to the immediate possession of said chattels and of fifty dollars damages for its unlawful detention.

McQuate’s answer and cross-petition alleges that he had mortgaged said property to Smith to secure his note for $175.65, which was not yet due. The mortgage, attached to and made a part of the answer, provides that “if the said grantee, his heirs, or assigns, shall at any time before said sum of money becomes due, deem it necessary for his or their more complete and perfect security, the said grantee, his heirs and assigns, are hereby authorized and empowered with or without the aid and assistance of any persons or person, to enter the dwelling-house, store or other premises of said grantor, or such other places as the said goods or chatties are or may be placed, and take and carry away said mortgaged property, and sell and dispose of the same at public auction or private sales, at once, without notice, and out of the money arising therefrom to retain and pay the said indebtedness above mentioned, and all charges touching the same, etc.

The answer and cross-petition further alleged:

“Defendant further says that on or about the 9th day of August, 1910, said plaintiff, pretending to act under said mortgage, and without any just cause or excuse and without any default made in the conditions of said mortgage by this defendant and in violation and contrary to the expressed terms and the true intent and meaning of the said mortgage, forcibly took possession of said property and converted the same to his own use against the will and protest of this defendant.
“Defendant alleges that none of the conditions of said mortgage were broken by him, and that after the giving of said mortgage he had done or suffered to be done no act; nor was he about to do pr suffer to be done any act, nor had he in contemplation the doing or suffering of any act, which would tend in any manner to impair the security of the said mortgage or to give plaintiff any reasonable or probable cause to apprehend the loss or impairment of his said claim against defendant or said mortgage security.”

This does not amount to an allegation' that Smith did not deem it necessary for his more complete and perfect security to take the property and sell it, as the mortgage permitted him to do. As said in Francisco v. Ryan, 54 Ohio St., 308, 320, “The rightful exercise of that authority does not depend upon the fact that he has reasonable grounds for deeming it necessary for his security.” In other words, the answer and cross-pet-ition does not adequately deny the averment of the petition that plaintiff was “entitled to the immediate possession” of the property. The defendant having failed to join issue by answer traversing the petition’s allegation in this behalf, the averments of the reply and of the so-called replication upon the subject .are immaterial so far then as the plaintiff’s cause of action is concerned, the court below reasoned rightly in granting his motion for judgment on the pleadings.

The cross-petition alleges, however, that the plaintiff after taking the horses and harness, and during his possession, failed to properly care and provide for said property and permitted same to greatly depreciate and injured the same. The defendant further alleges that plaintiff thereafter caused said property to be sold at public auction “for $187 being less than its value.” These averments are denied by the reply, and the issue of fact thus joined presented a case for trial upon evidence such as to preclude judgment on the pleadings. For error in rendering such judgment, therefore, the same is reversed and the cause remanded.


text:
    PROCEEDINGS IN ATTACHMENT.
    Circuit Court of Lorain County.
    Nichols Brothers v. Charles Koshinick, alias Kosti Nick.
    Decided, April 26, 1911.

      Attachment — Motion to Discharge on Ground Property is Claimed by Another — Judgment Against Infant Personally Served, Hot Void. But Reviewable.

    1. Upon a claim of ownership of attached property by a person other than the defendant, an order restoring the property to the claimant may be made, but it is erroneous to discharge the attachment because of such claim.
    2. A judgment against an infant defendant, sued personally, is not void, but will remain subject' to review until a sufficient time after removal of the disability of infancy shall have elapsed to bar such review,
    Henry, J.; Winch, J., and Marvin, J., concur..
   Nichols Brothers sued Charles Koshinick before a justice of the peace upon an account, and on the same day garnisheed the Been Electric Company. Default judgment was rendered for the plaintiff November 17, 1909, but the garnishee not having answered, no order was made against it. Two days later Charles Nick filed his motion to discharge the attachment, and this motion upon being heard, was granted.

There is no express authority of law foi> entertaining such motion filed by the defendant after judgment. Revised Statutes, 6522; General Code, 10297, provides only for the filing of such motion by the defendant before judgment. We incline to believe, though it is unnecessary now to hold, that the judgment meant is the judgment on the merits in principal action and not the order or judgment, if any, against the garnishee. The motion itself, however, alleges that Charles Nick, who filed it, “is not the.above named defendant.” On the hearing of this motion, Charles Nick gives evidence tending to show that it was his father, Kosti Nick, who incurred the debt, whereas the wages attached were earned by the witness, who is the minor son of said Kosti Nick.

Considered as a claim of ownership of the attached property by a person other than the defendant, the motion was triable as if “the property had been seized upon execution issued by the justice of the peace and claimed by a third person” (Revised Statute, 6509; General Code, 10283). And the right of property was thus tried substantially in accordance with Revised Statutes, 6573-6575; General Code, 10371-10373.

The boy, it appears, had been doing business upon his own account to some extent, but there is no sufficient evidence of emancipation to warrant the court in finding that the wages he had earned were not the property of his father. Even if the justice had been warranted in so finding, the judgment should not have been a discharge of the attachment, but an order restoring to the claimant his property erroneously detained' by the garnishee as that of the defendant. The garnishee being in default for answer, it might, for aught appearing to the contrary, have been detaining not only the boy’s wages but also money due the father. If so, the attachment being regular, it was improper to discharge it.

There is much confusion in the record as to whether the boy or his father was the real defendant in the original action. The constable’s return recites personal service of the summons upon the defendant. The boy testifies that the summons was handed by the constable to him and not to his father, who had just left on a visit to Europe. But the constable, he says, told him to send it to his father. The bill of exceptions, prepared by Nichols, Brothers and certified by the justice, alleges that the said motion was interposed by the defendant, and that on the trial thereof he offered himself as a witness. The style of the original action was Nichols Brothers vs. Chas. Koshinick, alias Kosti Nick, and though the boy’s name is Charles Nick and the father’s Kosti Nick it is not certain that the former was not meant. The boy testifies that Nichols Bros, claimed that he was the one indebted to them. If they intended to sue the boy, the action was irregular in that the defendant was an infant, sued personally, without guardian. But' the judgment is not therefore void, though it will-remain subject to review until a sufficient time after the removal of the disability of infancy shall have elapsed to bar such review.

. In any event the judgment of the justice discharging, the attachment, -and that of the common pleas court in affirmance therefor, were erroneous, and the same must be set aside and the cause remanded to the. latter court. Proceeding therefore to render the 'judgment which the court of common pleas should have rendered, the judgment of the justice of the peace discharging the attachment is reversed because it is contrary to law and the evidence, and the cause will be retained in the common pleas for retrial.


text:
    CORPORATION AND ITS OFFICERS HELD LIABLE ON A NOTE.
    Circuit Court of Lorain County.
    The Huron County Banking Company v. The Oberlin Company, J. C. Hill and Albert E. Hay.
    Decided, April 26, 1911.

      Promissory Note Signed by Corporation Name and Officers Names — : Officers Liable, ff/Vhen.

    When the words “we or either of us” and other kindred phrases appear in the body of a promissory note, signed by the proper officers of a corporation in the corporate name, but underneath the cor- ■ ' porate name said officers sign their own names, though they affix thereto their appropriate official titles as such officers, the note will be construed as the note of the corporation and of said officers, as individuals. Aungstv. Creque,72 O. S., 551, distinguished.
    Henry,--J.; Winch, J., and Martin, J., concur.
   The parties stand here as they stood below. There the court sustained the demurrer of the defendants Hill and Hay to the petition of the plaintiff praying personal judgments against each of them as well as the Oberlin Gas & Electric Company upon a promissory note as follows:

“$2,500.00 Oberlin, Ohio, December 29, 1909.
...“'Pour months after date, for value received, We or either of us, promise to pay to the Huron County Banking Company of Norwalk, Ohio, or order, at its banking office, twenty-five hundred and 00i-100 — dollars, with interest at the rate of 7 per cent, per annum,- payable semiannually, having deposited with said banking company the following described property, to-wit: eight (8) first Consolidated 6 per cent. Mortgage Bonds of the Oberlin Gas & Electric Company par value $500 each; same being Nos. 329-336 inc. — as collateral security for the payment of the above indebtedness of the undersigned to said banking company. The extension of the time of payment or renewal of the indebtedness evidenced by this note, shall in no way release the undersigned or either of them, or the collateral security above described, or any substituted or additional security which may be furnished; and we, or either of us, hereby agree to deposit with said banking company, upon its demand, such additional collateral security as said banking company may from time to time require. On the non-performance of the foregoing conditions, provisions and agreements as to furnishing additional collateral, or upon the non-payment of the above mentioned liability, then and in either case, we or either of us hereby authorize and empower the said banking company to sell, assign and deliver the whole or any part of the above securities or any substitutes therefor, or any additions thereto at any brokers’ board or at public or private sale at the opinion of said banking company or of any one or more of its officers without either public advertisement or personal notice to us or either of us, both of which are hereby expressly waived. If said securities are sold at public sale the said banking company may itself purchase the whole or any part thereof, free from all rights of redemption on the part of us or either of us, which right is hereby waived and released; and after deducting all legal and other costs and expenses for collection, sale and delivery of said securities; the residue of the proceeds of such sale or sales so made shall be applied upon the payment of the above liability; the overplus, if any, to be paid to us, or either of us.
' ‘ The Oberlin Gas & Electric Co.,
“ J. C. Hill, President,
“Albert E. Hat, Treasurer.”

There are no endorsements nor credits upon said note.

We hold that the words “or either of us,” and other kindred phrases in the body of this note, distinguish this case from that of Aungst v. Creque, 72 Ohio St., 551, which decided that:

‘ ‘ But where a promissory note is signed by the proper officer of a corporation in the corporate name, and underneath the corporate name he signs his own name, affixing thereto his appropriate official title as an officer of said corporation, in the absence of anything in the body of the instrument requiring a different construction, such note will be construed and held to be the note of the corporation only, and not the note of the officer so signing, or the joint note of such officer and the corporation.”

Judgment reversed for error in sustaining demurrer, and cause remanded.


text:
    PASSENGER. INJURED WHILE WAITING FOR. TRAIN.
    Circuit Court for Coshocton County.
    Curtis E. Smith v. The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company.

    Decided, November Term, 1911.

      Negligence — Duty of Passenger While on Railway Company's Premises —No Recovery for Injury from Being Struck by a Train, When.

    An intending passenger waiting the arrival of his train is bound to use reasonable care for his own safety while on the company’s premises, and he is guilty of contributory negligence which bars recovery for injuries from being struck by a train,, when he attempts to pass from one waiting platform to another and in so doing crosses a track without looking to see whether there is a train approaching.

      Anderson & Anderson, for plaintiff in error.

      Frank E. Pomerene, contra.
    Shields, J.; Voorhees, J., and Powell, J., concur.

       Affirmed by the Supreme Court without opinion, Smith v. P., C., O. & St. L. Railway Co., 88 Ohio State, 586.

   This is a proceeding in error to reverse the judgment of the court of common pleas of this county in an action brought by Curtis E. Smith against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company to recover for personal injuries claimed to have been sustained by him by reason of the negligence of the defendant company.

The plaintiff in error complains of the action of the court below in several respects, as appears in his petition in' error filed herein for the reversal of said judgment, but the principal error complained of, and which alone was argued to this court, is that said court erred in directing the jury to return a verdict for the defendant company, at the close of the plaintiff’s testimony, upon the motion of the defendant company, because the plaintiff’s testimony failed to show negligence upon the part of the defendant company, and because said testimony clearly showed negligence on the part of the plaintiff which directly contributed to his injuries.

From the record in this case it appears that railroad tracks Were located on either side of the defendant company’s passenger station at Carnegie, Pennsylvania, where the accident resulting in the plaintiff’s injuries occurred; that the traeks. on the north side of said station were used by the trains of the defendant company running to and from Pittsburgh, Pennsylvania, from Carnegie and to points beyond; that two platforms, were constructed about said station, on the north side thereof, for the convenience and accommodation of passengers taking passage on said trains — one immediately up to and along the side of said station, running several feet eastwardly, and extending in width close to the inner rail of the first of said tracks nearest to said station, and the other between the second and third rails of said tracks running parallel with said first described platform, and for about the same distance; that a plank walk was also constructed between said named platforms, running north and south; that the plaintiff below was at said company’s station on the day of said accident and procured transportation from Carnegie to Pittsburgh; that at said time and place there was present on and about said platforms and in. and about said station a large number of people; that about the time the train which said plaintiff intended taking for Pittsburgh was due at Carnegie, and was approaching said station, he hastily made his way through the throng of people assembled on said first named platform, for the purpose of crossing over said plank walk to said second platform, to enable him to go aboard-said train from that place, supposing and believing, as he testified, that said train would enter and stop upon the tracks immediately north of said, second described platform, at said station, and in so doing the pilot on the engine attached to said approaching and moving train struck him, causing the injuries -complained of.

An. examination of the record in this case shows, that-,the plaintiff below was not a total stranger to the surroundings about said station, and while,'perhaps, it can not be said he was -familiar with them, he testified that he had b?£'re that time taken passage on the defendant company’s trains several times from said station to Pittsburgh, so that he had some knowledge of the location of the tracks and property conditions in and about said station.

Counsel for plaintiff in error contend that the testimony shows that the plaintiff in error, in attempting to cross over said plank walk between the said platforms, believed it was necessary for him to do so, that he might enter a car of said train from the second named platform. If such was his belief it was a mistaken belief, for the testimony shows that the defendant company’s trains running to Pittsburgh, ordinarily at least, approached said station upon the tracks south of said platform, and not north of it, and the plaintiff’s own testimony leaves the matter in no little doubt as to what he himself thought in this respect, for he testified that he entered said company’s ears in going to Pittsburgh sometimes from one platform, and at other times from another.

But aside from this phase of the case, connected as it is with the implied invitation of the company for its passengers to cross over on said plank walk to the second platform to take passage on the trains, it is contended by the plaintiff in error that said company was guilty of negligence in not signaling its approach to said station by ringing the bell and sounding the whistle on the engine attached to said train. While we recognize that the failure to do this might be such negligence as to subject the said company to liability, under certain conditions, in ease of an accident, and if in the exercise of ordinary care it was necessary to do so, even as -a precautionary measure for the safety of the people gathered in and about said station, and assuming that said company, through its employees, in charge of said train, was negligent in this respect, the inquiry arises as to whether the plaintiff in error was free from fault ? While said company, in the exercise of ordinary care, was required to provide and maintain such accommodations at said station as were reasonably safe and adequate to protect him against accident and danger, it was' likewise incumbent upon the plaintiff in error to use like care for his own safety. What does the record disclose in this respect ?

By referring to pages 65 and 66 of the record, the-plaintiff in error, on cross-examination, when interrogated upon the incidents immediately preceding the accident, testified as follows:

“Q. Do you still say that you couldn’t have stood.at the outer edge of the platform, where others were standing at the platform, and look down the track a piece? A. I could if I was on the track.
“Q. I mean before you stepped down on the track. A. I might if I had walked up and peeked out around.
“Q. Any difficulty in seeing a part of the way down the track? A.'It isn’t customary for people to do that.
“Q. Couldn’t you have done that? A. I suppose I could.
“Q. There wasn’t the slightest difficulty before you stepped down on the track ? A. If I had stopped there somebody would have bump'ed against me or knocked me over. I have no right to blockade the way.”

j

This testimony furnishes its own comment. The witness, if he did not see the approaching train before reaching the edge of the platform, knew it was about due, and yet with this knowledge, he attempted to pass over the crossing without looking for the train, as he testified, and was injured. Surely he could not with his eyes wide open walk into the presence of danger, for had he looked there was nothing to prevent him from seeing the approaching train, and then make a claim for damages against the company because the bell on its engine was not rung or the whistle sounded.

And so, too, if he could have seen the train and avoided the accident by the exercise of ordinary care on his part,'he is not entitled to recover. And further, if before attempting to cross said walk leading from the first to the second platform, he was in such position as that he could have known and ought to have known of the approaching train and the danger confronting him, and with this knowledge undertook to cross said walk and was injured in so doing, he was guilty of such contributory negligence as would defeat his right to a recovery.

“A passenger awaiting the arrival of his train, is bound to use reasonable care for his own protection while on the company’s premises, and failing to do so will be denied a recovery in case of a resulting injury. ’ ’

.For the reasons stated, we think there was no error in the action of said common pleas court in directing the jury to return a verdict for the defendant below, and the judgment of said court will therefore be affirmed, with costs. Exceptions noted.


text:
    PARTICIPATION OP MATERIAL MEN AND LABORERS UNDER A MECHANICS LIEN.
    Circuit Court of Lorain County.
    The Cleveland Trust Company v. The Village of Oberlin et al.
    Decided, April 26, 1911.

      Mechanic’s Lien Law. — Filing Sworn Statements with Owner and County Recorder — Effect of.

    Where a sub-contractor, material-man, laborer, or mechanic has, within four months from the furnishing of his material or labor, filed his sworn and itemized statement thereof as provided" by Section 8324, General Code, and files a copy thereof with the county recorder, as required by Section 8326, General Code, all other sub-contractors, material-men, laborers and mechanics who file their statements within ten days thereafter, as provided by Section 8328, General Code, are thereby let in to participate in the fund, though more than four months have elapsed since their claims accrued.
    Henry, J.; Winch, J., and Marvin, J., concur.
   Under General Code, Sections 8324 and 8328, relating to mechanics’ liens and attested accounts, we hold that where a sub-contractor, material-man, laborer, or mechanic, has, within four months from the furnishing of his material or labor, filed his sworn and itemized statement thereof as provided, by the former section, and files a copy thereof with the county recorder as required by General Code, 8326, all other sub-contractors, material-men, laborers and mechanics, who file their statements within ten clays thereafter, as provided by General Code, 8328, are thereby let in to participate in the fund, though more than four months have elapsed since their claims accrued. The statutes in question, having, as we read them, expressly so provided, we are not at liberty to construe them otherwise.'

Under General Code, 8334, the transfer of the avails of his contract, by the head contractor to the plaintiff here, is made subject to valid claims, of the sort above described, upon the fund in the hands of the defendant, and the_ plaintiff is entitled to nothing until those claims are paid. So also the assignee in insolvency of the head contractor is not entitled to fees, for himself or his counsel out of this fund, for finishing the contract. The assignee’s services were not a continuation of the assignor’s business, petitioned for and ordered by the court, pursuant to General Code, 11125; .and no special allowance therefor in prejudice' of the valid claim of the'other parties'to this action, can be made, under General"Cod'e, 11144, out of the avails of said contracts.

A decree may be taken as in the court below.


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    PROCEDURE FOR BREACH OF CONTRACT.
    Circuit Court of Summit County.
    The Magadore Stoneware Co. v. Thomas Hiers.
    Decided, April 12, 1911.

      Action on Contract or for Breach of it~What Must 6e Alleged— Measure of Damages.

    In an action growing out of a contract for work and labor, where the plaintiff relies upon repudiation of the contract before its completion by him, he should sue for its breach; if he alleges full performance, he must prove it, and in such case the measure of his recovery is the reasonable value of the work and not the sums expended to accomplish it.
    Henry, J.; Winch/ J., and Marvin, J., concur.
   . 'The. parties to this proceeding in error stand hére 'in the relation opposite- to" that in which they stood below. The action was -appealed to the court of common pleas from that of a justice of the peace., Iiiq'rs recovered a judgment on the following cause of action, -set forth in his second amended petition, which alleges “that the, defendant, the Mogadore Stoneware Company, is indebted- to him in the sum of $285.95 for work done, labor performed and money paid out by him -for said company, at its special instance and request under a contract entered into by and .between this plaintiff and said defendant company, whereby and by the terms of which contract the plaintiff was to open for the defendant, company a clay mine on what is known as the Webb, farm in. Springfield township, Summit county, Ohio. He further says that said contract was entered into verbally on or about the 10th day of May, 1908, by and between plaintiff and the said Mogadore Stoneware Company, and through Charles • FI Sheeby, its general manager and agent, said Sheeby then and thereby,.in the making of said contract with this plaintiff, acting: as ,such general manager and agent of the defendant company on its behalf. Plaintiff further says that, acting under and in performance of said contract so entered into as aforesaid, he (proceeded to and did open a clay mine for the defendant .company ; that in performing said work under aforesaid contract, he paid-to the. several persons named helow, for work and labor done and performed by them in the opening of the said mine by this- plaintiff for the defendant company, the sums of money hereinafter-immediately following set forth.”

After itemizing,at length his accounts and outlays for. labor, the second amended petition continues: “Plaintiff further says that, acting- under and in performance of said agreement, he also -made the following expenditure of money for material used in doing the work of opening said clay mine.”- The items,are then set forth. . . ;

.'■The petition concludes with averments .concerning Sheeby’s ■authority to make said contract, the company’s receipt and retention of the benefits of the labor performed and expenditures made thereunder, and the fact that the said sum of $285.95 for. which judgment is prayed, is due and wholly unpaid. . .

■ The facts-, as testified to by Hiers, are-that on April. 11,.1.908, ■he-agreed-verbally witluthe stoneware company to .open the. lafter’s clay mine to the clay for the sum of $50, and that within the month he completed this contract and received his pay. ■ On April 27, they entered into a further contract in writing, "to continue as long as the parties thereto mutually agree,” for the mining of clay by fliers for the company at fifty-five cents a ton.' Hiers worked one day under this contract and then threw it up, because the clay wall proved to be but a shell, behind which was an old abandoned working. Hiers called Sheeby’s attention to this and asked Avhat he should do. Sheeby said, "Go ahead, we’ve got to have the clay.” Hiers thereupon continued the Avork through the old working. Pie' had four or five men in his employ for about tAvo months and furnished slabs and plank for timbering the mine. Upon applying to Sheeby for an advance of money upon his contract in order to meet his disbursements, he discovered that the company claimed that he was still working under his first contract to open the mine to the clay. Meanwhile pockets or pillars of clay were found from time to time, but no large deposit was reached.

Hiers quit his work, and the company continued it till clay in larger quantity was found; but the company’s business languished, and was soon abandoned. Hiers sued to recover what he had expended under his alleged third contract, and the company counter-claimed for the cost of completing his first contract.

The theory of Hiers’ second amended petition is that he fully performed his third contract, and that the measure of his recovery is the amount expended by him. His evidence shows that the company repudiated the contract before it was completed. He should, therefore,, have alleged the fact of breach by the company instead of alleging his OAvn full performance of the contract. But if he stands upon his claim of performance, he must, of course, prove it, and in that ease, the measure of recovery is the reasonable value of the work, and not the sums expended to accomplish it. The second amended petition does not state a cause of action; nor is the evidence or the charge such as to cure the petition’s defects after verdict. By amending his petition once more, the plaintiff may be able to recover. But for three reasons, viz: first, that the petition does not state a cause of action; secondly, that the evidence fails to support the averment of the petition that the alleged contract was fully performed ; and thirdly, that the charge on the measure of recovery is erroneous, in view of Pliers’ claim of full performance on his part, the judgment is reversed and the cause remanded.


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    TITLE CLOUDED BY CONDITION IN WILL.
    Circuit Court of Wood County.
    Charles Barr and Albert O’Mercer v. Frank E. Swartz.
    Decided, October 28, 1912.

      Specific Performance — Action to Enforce — Defense of Imperfect Title— Uncertainty as to.Devolution of Title Under Condition of Devise.

    The defense of imperfect title is good against an action to enforce specific performance of a contract to purchase land, wher.e it appears that the plaintiffs derived their title from one who took by way of devise from his father, on condition that should he die without issue living, “the lands shall descend to my other children mentioned in this will share and share alike,” and where it appears from the testimony that the devisee is still living and has children living.

      Edward Beverstock and E. G. McClelland, for plaintiffs.

      Eugene Bheinfrank, N. B. Harrington and G. C. Nearing, ■ contra.
    Wild man, J.; Kinkade, J., and Richards, J., concur.
   This is an action brought- to this court by appeal to enforce the specific performance of a land contract, executed June 7th, 1910, and partly performed by payment of an installment of the purchase price. The contract contemplated complete execution by March 1st, 1911, on or about which date a deed was tendered by the plaintiffs to the defendant and refused. The claim of the defendant is that by the terms of the contract, he was to have a good and perfect title to the land contracted for: that subsequent to the execution of the contract he discovered that such title could not'be obtained and granted to him and for that reason he demanded a rescission of the contract. Notice of his wish for snch rescission had been given prior to the time fixed for the complete payment and transfer of title, and promptly upon his discovery of the claimed defect.

The claimed title of the plaintiffs is based upon the conveyance of one James Porter, together with quit-claim deeds from Porter’s brothers and sisters. James Porter and his brothers and sisters so quit-claiming, reasserted by the plaintiffs to have derived their title to the land in question by virtue of the will of Christopher Porter, their father, who died intestate some years before the execution of this contract. The provision of said will relating to the present controversy devises to James Porter the said land, charged with certain payments to a daughter and the widow of Christopher, and then qualifies the devise in the following words;

“The devise in this item to my son James is on this condition that, should he die without issue living, the said lands shall descend to my other children mentioned in this will share and share alike.”

The charge upon the land in favor of the daughter and widow has been extinguished by performance subsequent to the death of Christopher, leaving the question only as to the character and extent of the title devised to James, freed from the charge which I have mentioned.

It is the contention of the defendant that the title of James and the interest of his brothers and sisters joining in the quitclaim'deed is of such doubtful character as to justify a court of equity in.refusing a decree for specific performance. This contention is based upon numerous authorities. But they need not be reviewed by us in view of the emphatic holding of the Supreme Court of our own state in the ease of City of Tiffin v. Shawhan, 43 O. S., 178. T quote the third paragraph of the syllabus:

“If the specific performance of such a contract would be harsh, oppressive, or inequitable in its consequences, or would leave the purchaser with a doubtful and unmarketable title, the court, in the exercise of its discretion, will refuse to decree its. performance as no man will be compelled to accept a doubtful title.”

We might cite, as counsel have done, numerous adjudications expressing the view that a purchaser under land contract is not compelled to accept a clouded title, one unmerchantable, or which is likely to involve him in litigation to defend it. The equity of this rule is manifest, and we have no hesitancy in assenting to it or in applying it to .the conditions presented by the evidence in the case at bar. In' saying this we wish not to be understood as departing in any respect from the construction heretofore placed by this court upon the will involved in' the title to land litigated- in the Anderson-Messenger eases, and as affirmed by the Supreme Court in Anderson v. Realty, 79 O. S., 23.

The United States Circuit Court of Appeals,has adopted a construction in conflict with the one obtaining in the state court, basing its decision upon the ease of Shaw v. Hoard, 18 O. S., 227.

If the view of this federal court were to be adopted, it would place the title to the real estate devised in the issue of James Porter, if any there shall be living at the time of his death. It is disclosed to us in evidence that, although he was unmarried at the date of his father’s will, he is now the father of four minor children, not parties to the litigation before us. We can not say that there is no possibility of their surviving their father, James Porter, and at some time in’the future asserting title to this land. If they, or either of them should be non-residents of this state, the result might be litigation in the Federal -court, which, if the last adjudications in that court on this subject should remain unreversed by the Supreme Court of the United States (in which we understand the question is now pending), the result would be disastrous to the claimed title of the plaintiffs in this action or of the defendant if ordered to fulfill the- contract of purchase.

For reasons stated, decree for specific performance will be refused. The defendant has made payment of the sum of $500 as a first installment of the purchase price and one negotiable note for a like sum given by the defendant to plaintiffs to apply also upon the purchase price of the land, has been sold to some other party or parties.

It is conceded by counsel that if the plaintiff is not entitled to specific performance, the claim of the defendant for reimbursement to the amount of $1,000 and interest thereon, is just and should prevail. Judgment may be taken accordingly.


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    PROSECUTION FOR EMBEZZLEMENT OF ONE ACTING AS AGENT AND ATTORNEY.
    Circuit Court of Medina County.
    Emanuel F. Shelley v. State of Ohio.

    Decided, May 23, 1911.

      Embezzlement — -No Limitations — Construction of Statutes — Punctuation —Evidence in Criminal Case — Definition of Embezzlement.

    1. There is abundant authority in this state for disregarding or rearranging punctuation of statutes in order to effectuate the evident meaning of the Legislature.
    2. The three year limitation in Section 6842, Revised Statutes, applies only to the period within which different conversions may be aggre- ■ gated so as to constitute one embezzlement, and does not interpose any bar to the prosecution of the crime of embezzlement.
    3. At the trial of one indicted, for embezzlement of funds of one for whom he had been appointed guardian, the judgment and orders of a court upon exceptions filed to. the accused’s inventory and accounts as guardian, are not admissible in evidence.
    4. The nature of the crime of embezzlement is such that although money may be received by an agent or servant from time to time as it comes into his hands lawfully, there may be no completed crime of embezzlement until, having thus received several sums at different times he finally refuses or is unable to account for the aggregate amount.
    5. One is not guilty of embezzlement who has not concealed the receipt of money alleged to have been embezzled, but, on the contrary, has claimed in good faith to heep it under some right as against the owner.

      F. V. Owen, F. N. Patterson and Frank Heath, for plaintiff in error.

      George Frey, N. M. Wolf, C. M. Workman, W. J. Weirick and N. H. McClure, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.

      Affirmed by the Supreme Court on grounds stated in this opinion, State- v. Shelley, 85 Ohio State/ 481.

   Plaintiff in error was convicted of embezzling $15,000 September 28th, 1904, while agent and attorney-in-fact for one Paul Oliver, the trial occurring in October, 1910, upon a change of venue from Ashland to Medina county.

The first error assigned involves the construction of Section 6842, Revised Statutes of Ohio, upon the question of the three years limitation therein prescribed for the prosecution of embezzlers, the indictment in this case having been returned more than three years after the date of the offense therein charged.

We hold, however, that the concluding clause of said section should be read as if there were commas after the word “time” and “prosecution,” and none after the word “times.”

The clause as thus punctuated will then read:

“If the total value of the property embezzled in the same continuous employment of term of office, whether embezzled at one time, or at different times if within three years prior to the inception of the prosecution, amounts to or exceeds thirty-five dollars, shall be imprisoned in the penitentiary not more than ten years, nor less than one year, or, if such total value is less than thirty-five dollars, be fined not more than two hundred dollars, or imprisoned not more than thirty days, or both.”

The three years limitation applies only to the period within which different conversions may be aggregated so as to constitute one embezzlement, and does not interpose any bar to the prosecution of the crime of embezzlement generally.

The reasons for this conclusion are well pointed out in State v. Bailey, 19 O. D., 442; see also State v. Gibbs, 9 N.P.(N.S), 129. There is abundant authority in this state for disregarding or rearranging punctuation of statutes in order to effectuate the evident peaning of the Legislature. Albright v. Payne, 43 O. S., 15; Shriedley v. State, 23 O. S., 140; Slingluff v. Weaver, 66 O. S., 629; Allen v. Russell, 39 O. S., 337; Hamilton v. Steamboat Hamilton, 16 O. S., 429; Burgess v. Everett, 9 O. S., 428; Pancoast v. Ruffen, 1 Ohio, 385, 386.

We hold therefore, that this prosecution is not barred by any statute of limitation.

A further assignment of error is that the court erred in charging the jury as follows:

“Gentlemen of thei jury, the other day there was certain evidence offered in this case, in the nature of records of the pages of the journal of the court of common pleas and the circuit court of Ashland, as to the two items of accounts in the account of E. F. Shelley, as guardian of Paul Oliver, being one item for $10,000 and another item for $5,000; there were other items, but I simply call your attention to these two, which it is claimed by the state were items embezzled and with which the defendant is charged for one crime of embezzlement. Now, so far as those two items are concerned, they were adjudicated in the court of common pleas, which ease was affirmed by the circuit court, and the court admits the records of those tw.o courts upon the question as to whether or not those two items were legal items of charge for which Shelley should have been credited as to whether the charges simply were legal, and they are admitted for no other purpose.” (Bill of exceptions, pages 89 and 90.)

The adjudication referred to is the judgment and orders of the court upon the exceptions filed to Shelley’s inventory and accounts as guardian of said Oliver’s estate, to which office he was appointed October 4, 1904, after having had virtualy sole charge of his ward’s property for some five months previous to that date, by virtue of a general power of attorney appointing him the attorney-in-fact of said Oliver.

For some years prior to 1904, the accused claims to have done much business for Oliver. In his accounts as guardian, he charges himself with assets received both before and after the date when said guardianship commenced, and seeks to credit himself with $15,000 compensation for his services in all said capacities, including $10,000 for services before, and $5,000 for services during the guardianship. These credits were both disallowed in the adjudication referred to, and the record of that proceeding constitutes the backbone of the proof of guilt in this prosecution.

In Gee v. State, 60 O. S., 485, it was held that:

“On the trial of the issues joined by a plea of not guilty to an information or an indictment charging the defendant with willfully and negligently failing to support his illegitimate child, the record of a bastardy proceeding instituted by the mother of the child in which, the defendant was adjudged to be its reputed father is not admissible evidence.”

The per curiam opinion, 60 O. S., 486, is as follows:

“The record offered is not competent under the general rule that in a criminal proceeding the record of a civil action can not be introduced to establish the facts on which it was rendered. The judgments offered followed verdicts which might have been lawfully returned upon a mere preponderance of evidence. A higher degree of evidence was required to convict under the indictment and the information. Greenleaf on Evidence, Section 437; Britton v. State, 77 Ala., 302; Riker v. Hopper, 35 Vt. 457.”

In view of the foregoing authority, we hold that the judgments disallowing Shelley’s claims for compensation ought not to have been received in evidence. They were not admissible for any purpose, although it was discretionary with the court to allow or disallow the claim of $5,000 for compensation to the guardian. This could have nothing whatever to do with Shelley’s embezzlement of said amount before the guardianship began.

As to the $10,000 the adjudication, founded not upon the exercise of judicial discretion, but strictly upon proof, was nevertheless predicable upon a rule of evidence requiring only a preponderance instead of proof beyond a reasonable doubt. In other words, it required no production of the record of another ease to show that Shelley was not (since he could not be) entitled to guardian’s fees September 28, 1904, not only before their allowance by the court, but before the guardianship began; neither does the fact that he was adjudged in a civil proceeding not to have earned $10,000 prior to the guardianship tend to prove in this proceeding that his claim to compensation in that amount on said date was unwarranted.

We hold, therefore, that the court erred in admitting said evidence, and in charging thereon as above indicated.

Third, we see no reason why the court should have refused the first and fifth special request to charge (bill of exceptions, 92 .and 93) as follows:

“1st. The nature of the crime of embezzlement is such that although money may be received by an agent or servant from time to time as, it comes into his hands lawfully, there may be no completed crime of embezzlement until, having thus received several sums at different times, he finally refuses or is unable to account for the aggregate amount.
‘ ‘ 5th. The court instructs you that if the defendant has not concealed the receipt of the- money alleged to have been embezzled, but has claimed in good faith to keep it under some right as against the owner, then he is not guilty of embezzlement, and your verdict should not be guilty. ’ ’ Young v. State, 26 C. C., 717; 1 McClain’s Criminal Law, 641.

We do not understand that a demand for the property alleged, to have been embezzled must in all cases have been made by the owner upon the accused, in order to lay a foundation for a prosecution. Refusal of such a, demand, when properly made, would of course be evidence of conversion and embezzlement, except as circumstances might exist excusing such non-compliance. In this case, however, we fail to discover any evidences, except that which, as above indicated, is clearly incompetent, to show that Shelley had converted any part of the estate to his own use, or that he has failed to account for and pay over the same to those properly entitled thereto. With the incompetent eliminated, there is not enough left whereon to found a verdict of conviction. The several motions, including the motion for new trial by which this point was raised -and saved, were erroneously overruled.

We have examined all the numerous rulings on. evidence not already disposed of without finding any such prejudicial error therein as to warrant reversal upon that ground; but for errors above indicated, to-wit, the admission in evidence of the record of the civil case or eases, the court’s charge with respect thereto, the refusal of the court to grant the first and fifth special requests to charge presented by the defendant below, and for overruling the motion for new trial upon the ground that the competent evidence was not sufficient to warrant conviction, the judgment is reversed and the cause remanded.


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    LIABILITY OF ENDORSER OF THE LAST OF A SERIES OF NOTES SECURED BY MORTGAGE.
    Circuit Court of Medina County.
    Thomas Ferriman v. The Savings Deposit Bank.
    Decided, May 23, 1911.

      Endorser of Last of Series of Notes Secured by Mortgage — Agreement to Release Endorser — Stipulation in Mortgage as to All Notes Becoming Due, Not Binding on Endorser — Effect of Judgment in Foreclosure Case.

    1. One who has endorsed the last of a series of notes secured by mortgage upon an agreement that he is to be released from his endorsement upon the payment of the first note of the series by the maker, his heirs or assigns, is not entitled to such relief upon payment of the first note out of the proceeds of sale of the mortgaged land upon foreclosure.
    2. To charge an endorser of the last of a series of notes secured by mortgage, it is to be deemed due according to its terms, irrespective of an agreement in the mortgage that all should become due upon failure to pay one; hence an adjudication in a foreclosure of said mortgage, brought against the maker and endorser of the notes before the endorsed note is due is not a bar to another action against the endorser after said note becomes due.

      Lee Elliott and J. W. Seymour, for plaintiff in error.

      Frank Spellman, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   Tbe parties to this proceeding in error stand in the relation opposite to that in which they stood below. The action then was one brought by the bank against Ferriman on his guaranty and endorsement of two notes.

In the common pleas court, a jury was waived and this cause submitted to the .court (Hon. George Hayden, Judge) upon the petition, answer, reply and an agreed statement of facts, as appears by the bill of exceptions.

The court (sitting as a jury) found for the plaintiff, the Savings Deposit Bank Company, and rendered judgment against the defendant, Thomas Ferriman.

The plaintiff, in its petition, alleged the execution and delivery of the notes to the defendant Ferriman by Aubles; the transfer, guaranty and indorsment of same to the said bank; the demand a payment from said Aubles at the maturity of said notes; the failure of said Aubles to pay-said notes at maturity; due notice of such failure to pay, given to Ferriman; demand of payment from Ferriman and his refusal to pay. All of these allegations were admitted to be true by the defendant, under the agreed statement of facts.

But Ferriman as a first defense alleged that these two notes were a part of a series of seven notes, six of $500 each and one of $200, given by said Aubles to said Ferriman and by him transferred to the bank; that at the time of said transfer the bank agreed to release Ferriman from his guaranty, upon the payment of the first $500 note of said series, by said Aubles, their heirs or assigns; that to secure the payment of said series of notes, a mortgage on real estate had been given by said Aubles to said Ferriman, and by him transferred to said bank; that said mortgage had been foreclosed and said first $500 note paid out of the proceeds of the sale of said mortgaged premises.

It is manifest that this payment- was not one made “by said Aubles, their heirs or assigns” within either the letter or the intent of the guaranty’s terms.

The answer of Thomas Ferriman, plaintiff in error in the court below, set up as a second defense a determination of a prior cause in the same court, for the foreclosure of a mortgage, to which the mortgagors, John Auble, Harriet Auble and Thomas Ferriman were defendants, in which the notes on which this action was brought with other notes of' the name series, were set out in separate causes of action, and in an additional cause of action the mortgage securing the series of notes was set out, and also a guaranty of $500- of the last notes of the series, being the same notes as the last notes of the series, upon which judgment is asked in this action. The amount claimed and the time for which interest is claimed was also- set out, and in the final entry a finding was made of the amount due on the entire series of notes and the mortgaged premises' were ordered sold and the proceeds applied on the amount found due and execution awarded for the balance. No mention was made of the defendant Thomas Ferriman on the final determination of that case, but the finding as to the amount due was only as to the defendant, John Auble, the summons in the action, which was served on all the defendants, including the plaintiff in error, advises them' of the amount remaining unpaid, and date from’which interest was claimed.

It is contended that this was a final determination of the rights of the parties in the foregoing action, and constitutes a judgment under the definition given in the General Code, Section 11528. As a judgment it is conclusive between the parties not only as to what was actually determined, but also as to every question that might have been litigated under the pleadings.

Not only was no finding made in the foreclosure case of anything due from Ferriman, but nothing could then have been found due from him. On the exercise by the plaintiff of the right given it by the mortgage to elect that, on default of any payment, the entire series of notes should become due, the result was to mature the entire debt for foreclosure purposes only. The finding of the amount thus deemed due from the mortgagor was likewise incident to the foreclosure, it being requisite to enable proper distribution to be made of the proceeds of sale. No such finding us against Ferriman was either requisite or proper. He could have no share of such proceeds. The last two notes, on which he was indorser or guarantor, had not matured as to him. It is expressly held in McClelland v. Bishop, 42 O. S., 113, that “to charge indorsers, such notes are to be deemed due according to their terms, irrespective of such stipulation in the mortgage.”

Since neither of Ferriman’s defenses is meritorious, the judgment must be and it is affirmed.


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    VALUATION OF REAL ESTATE FOR. TAXATION.
    Circuit Court of Summit County.
    Elias S. Day et al v. Arthur J. Week et al.
    Decided, June 2, 1911.

      Oity Board of Review — Powers of.

    A city board of review, under Section 5624, General Code, has power to make wholesale increases in the valuation of real estate in the city as fixed by the quadrennial appraisers, without making corresponding decreases.

      Geo. M. Anderson and Charles Howland, for plaintiff in error.

      F. J. Rockwell, C. T. Grant, N. M. Greenberger and J. Taylor, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   . The petition in this appeal challenges the power of the Akron city board of review, under General Code, 5624, to make wholesale increases in the valuations of real estate in said city, as fixed by the quadrennial appraisers, without making corresponding decreases. We understand that the question of the constitutionality of the statutes involved is no longer pressed. If, however, it be relied on, it is sufficient now to say that no such clear case of conflict with any constitutional provisions is here presented as to warrant our so holding. On the' question of notice, too, the opportunity afforded by law for a hearing, after the increases were resolved upon and made public, satisfies the constitutional guaranty of due process of law. The power of the board is then the sole question before us.

The present policy of the law is more clearly defined by the act approved March 2, 1911, Section 5624-1 whereof provides that: ,

‘ ‘ Boards of review for municipal corporations sitting as boards of equalization and revision, shall have and exercise, in so far as the same may be applicable, all the powers and perform all the duties, and be governed by the same rule and limitations, conferred or imposed’ b3'- the law upon the annual county boards of equalization of real and personal property, moneys and credits, and quadrennial county boards of equalization of real property outside of cities, and sucb boards sitting as boards of revision,” etc.

This act was not, however, in force when the increases complained of were made; but it may aid in the construction of the pre-existing law (General Code, Section 5624), though phrased more concisely than Revised Statutes, Sections 2819-1, must, unless the contrary is plainly intended, be deemed to be identical with it in meaning (State, ex rel, v. Commissioners, 36 O. S., 326). It now defines the powers and duties of municipal boards of review as the same as those “provided by law for all other municipal boards of equalization and revision.” It formerly defined them as the same as those “conferred upon or required of the annual city board for the equalization of the value of real and personal property, moneys and credits; the decennial city board, for the equalization of the value of real property; and the annual city board of revision; and the decennial city board of revision, under any and all laws now in force, pertaining to such municipálities.”

Sections 2815 and 2816, Revised Statutes, were, it is significant, left unrepealed by the General Code. They provide for decennial city boards of equalization with the same powers and dutiés as those of the decennial county board of equalization (Revised Statutes, 2814, General Code 5598). The county auditor was, by Section 2813, Revised Statutes (5594, General Code), made a member of such board; and upon complaints filed with or preferred by him, or filed with the board as such, it was empowered, by Section 2814a, Revised Statutes (5599-5601, General Code), while sitting as a board of revision, to “increase or decrease any valuation complained of, and no others,” in accordance with the “laws in force governing the valuing of real property.

This limitation, as to acting' only upon complaints filed, does not, however, apply to the decennial county board of equalization sitting as such; the only express limitation upon them in that capacity being that “they shall not reduce the aggregate value thereof, as returned by the assessors, with the addition made thereto by the auditor, as hereinafter required.” The municipal board of review is invested with all the powers of said county board in each of these capacities and it is clear, from General Code, Section 5598 (Section 2814, Revised Statutes), that in their preliminary work, they may of their own motion raise values to conform with the standard required “by the laws in force governing the valuing of real property.” Such is also the present provision of law as contained in, or contemplated by, the act of March 2, 1911, Section 5624-1. The increases here complained of were made in the primary work of equalization of the values tentatively fixed by the quandrennial appraisers, in order that, as finally determined, they should agree with the standard aforesaid.

We hold, therefore, that the petition makes no case for enjoining the defendants from making the increases complained of. The demurrer to the petition was properly sustained upon the fifth ground. The third ground of demurrer was, also, we think well taken.

Judgment affirmed.


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    LOSS FROM CLOGGING UP OF A SEWER.
    Court of Appeals for Hamilton County.
    City of Norwood v. The Gobrecht-Geyer Company.
    Decided, March 15, 1913.

      Municipal Corporations — Not Liable for Damage from Water Backing Vp Through Sewer, When.,
    There can be no recovery from a municipality on account of the flooding of a basement or cellar by reason of the obstruction of a sewer,, where notice of the obstruction is not shown and no negligence appears in the construction, maintenance or care of the sewer.

      H. E. Engelhardt, City Solicitor of Norwood, for plaintiff in error.

      Albert H. Morrill and H. C. Bolsinger, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   This action was for the recovery of damages to goods and furniture of plaintiff stored in its basement caused by the backing up of water from the city sewer, brought about by the stopping up or obstruction of the sewer on two separate occasions.

The amended petition sets out a charge of negligence in the following language:

‘ ‘ This defendant carelessly and negligently allowed said sewer to become clogged and stopped up and failed to properly inspect said sewer and keep the same in repair, open and in working-order. ’ ’

There is no allegation of defective or improper construction, or of failure on the part of the city to remove the obstructions when brought to its notice.

Counsel for defendant in error however claim that by virtue of Section 11363, General Code, under the evidence produced at the trial plaintiff below might even now have its amended petition amended to conform to the evidence and that the evidence shows such faulty construction and failure to properly maintain and inspect this sewer on the part of the city as to entitle it to recover.

It may well be doubted whether the statute referred to would now permit the amendment of the petition after defendant’s motion for an instructed verdict and the overruling of its motion for a new trial and the judgment below, even if the evidence would make out plaintiff’s claim. But we do not find that the evidence sustains the contention of defendant in error.

On the contrary the only claim of anything faulty or improper in the construction of this sewer is the fact that a ten-inch pipe enters a manhole from which the outflow is an eight-inch pipe, but the uncontradicted testimony of the city engineer who planned the sewer shows that, because of the difference in the grades at which the two pipes are laid, the one carries off the sewage as fast as the other delivers it and that the construction of the sewer was in all respects a proper one. The evidence also shows that this sewer had the usual inspection, and that the flooding was on both occasions caused by such an obstruction of sticks, leaves, etc., as might occur in any sewer no matter what its construction; that the city had no notice actual or constructive of the obstructions until the damage had occurred, and immediately upon receiving such notice' it proceeded promptly to remove them, and as to the second flooding the evidence from the government records shows a very unusual rainfall.

We therefore find no evidence of negligence on the part of the city, either in construction, maintenance or care of this sewer, and the court below erred in not instructing a verdict for defendant. The judgment below will be reversed and, judgment entered here for plaintiff in error.


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    TESTAMENTARY CAPACITY AS AFFECTED BY INTEMPERANCE.
    Circuit Court of Cuyahoga County.
    Kate Fagan et al v. Bridget Welsh et al.
    Decided, January 25, 1909.

      Will Contest — Presumption from, Guardianship for ■ Intemperance— Relation of Ward to Person with Whom She Boards.

    1. Guardianship on the ground of intemperance does not raise the same presumption of testamentary incapacity as would be the case if. the guardianship rested upon the ground of insanity or imbecility.
    2. The relation of a ward under guardianship for intemperance, to a person with whom she boards under an arrangement made by the guardian for her, though such person has received certain instructions from the guardian as to the care of the ward, is not the same as the relation of the ward to the guardian, and does not, of itself, raise a presumption of undue influence in an action to set aside a will under which such person is a beneficiary.

      A. A. & A. H. Bemis, for plaintiff in error.

      P. H. Kaiser and Koran, Pearson & Powell, contra.
    Metcalfe, J. (of the Seventh Circuit, sitting in place of Marvin, J.); Winci-i, J., and Henry, J., concur.
   This action was brought by Kate Fagan, plaintiff herein, in the court below, to contest the will of Coena Murphy.

The errors complained of all relate to requests for instructions to the jury, and the general charge of the court. The question of the weight of the evidence is not raised, and the whole evidence does not appear in the record. There was a verdict and judgment in the lower court sustaining the will and this action is to reverse that judgment.

The facts, so far as they aré necessary to an understanding of the questions'raised, are as follows:

Coena Murphy was an orphan girl of about the age of 20 years at the time of the execution of this will. She was possessed of some property, consisting mostly of real estate in the city of Cleveland. Some time in 1905, Mr. Wm. T. Clark was by tbe probate court of this county appointed guardian of her person and property, under favor of Section 6317, on the ground that she was incapable of taking proper care of herself or her property by reason of intemperance. It appears also that before this appointment an application was made for the appointment of a guardian on the ground of mental incapacity, which failed or was withdrawn, as appears. In accordance with some understanding between the parties, Mr. Clark, upon his appointment as guardian, made an arrangement with the defendant, Bridget Welsh, to board and care for his ward, and from that time until her death, which occurred in June, 1905, Ooena Murphy continued to reside with Mrs. Welsh. The will in question was made by someone in Mr. Clark’s office, a few weeks before Coena’s death, and gave all her property to Mrs. Welsh. At the time Mr. Clark made his arrangements with Mrs. Welsh to take care of Ooena, he gave her some general directions about the way she was to be taken care of.

There is no evidence in the record tending to show undue influence or mental incapacity, and the only questions raised in the ease come from the refusal of the court to give certain requests to charge, made by plaintiff in error; the giving of certain requests made; by the defendants, and alleged error in the general charge.

The fifth and sixth requests to charge before argument, raise this question.: Did Mrs. Welsh stand in the same relation to Coena Murphy as her guardian to such, an extent that the mere fact that Coena made her will in Mrs. Welsh’s favor raised a presumption that the will was procured by undue influence. And, if so, was the burden of the proof thereby thrown upon the proponents of the will to disprove undue influence on the part of Mrs. Welsh?

We are unable to see how the mere fact that Mrs. Welsh was employed and paid by Coena’s guardian to board and care for her could place her in the same fiduciary capacity as the guardian himself. It is true that Mrs. Welsh took Coena into her house, probably treated her as a member of her family;'perhaps was a mother to her. This family relation would undoubtedly be one of trust and confidence between Mrs. Welsh and Coena, which if there were any evidence tending in any way to show had been used by Mrs. Welsh to induce the making of the will, would undoubtedly raise a suspicion of unfairness and perhaps a presumption which it would be necessary to rebut.

This would be more particularly so if there were evidence tending to show mental weakness on the part of Coena. We do not think, however, that we are required to entertain a presumption of mental weakness on account of the guardianship alone. The' guardian was appointed solely on the ground of Coena’s habits of intoxication and might be entirely consistent with the possession of testamentary capacity or even of extraordinary mental endowments. While the fact of the guardianship on the ground of intemperate habits would be evidence for the jury to consider as bearing on her mental condition, yet we do not think that the fact of the guardianship on this ground would raise the same presumption of testamentary incapacity as would have been the case had the guardianship rested upon the ground of insanity or imbecility, or any other form of mental weakness or disease.

There may have been evidence of mental weakness given at the trial, but that we know nothing about. We are deciding the question before us purely, on the presumptions sought to be raised by the appointment of the guardian and the employment by him of Mrs. Welsh to take care of his ward and the relations of friendship and intimacy thus established. We do not think that the mere fact of employment of Mrs. Welsh and the friendly relations thus established, is sufficient of itself to raise a presumption of undue influence on the part of Mrs. Welsh, at least not without some evidence tending to show that such friendly relations were abused, or exerted in some way to influence the making of the will. AYe do not think that Mrs. AYelsh stood in the shoes of the guardian in this respect.

Supposing, however, that we are wrong' in this conclusion, and that a presumption of undue influence is raised against Mrs. AYelsh by the fact of her relationship to Coena Murphy. What is the" degree of proof required to rebut the presumption ? The issue in a will contest is simplified by statute to the single question: Is the paper in question the last'will and testament of the testator? The party sustaining the will has the right to open and close the evidence and the argument. He must offer the will and order of probate thereof and rest his ease. The order of probate is prima facie evidence of the due attestation, execution and validity of the will. By these provisions of the statutes, which I have thus summarized, it is sure that the only'* burden resting on the party sustaining the will is to offer certain evidence which the law requires to make a prima facie case, sustaining the will. The burden then rests on the contestants to prove something necessary to render the will invalid. Are the contestants relieved of this burden at any stage of the trial ? .

We think not. While it may happen that in the course of the trial some issue may arise, the burden of which would rest upon the party sustaining the will, the general burden of proof, as to those things which render the will invalid, does not change. The degree of proof required to rebut a presumption is not a preponderance of .the evidence, but evidence equal in countervailing weight to the effect, of the presumption. In Klunk v. Railway, 74 O. S., 125, the action was by a locomotive engineer to recover for injuries sustained by the breaking of a water guage, the breaking of which raised a prima facie presumption of negligence. In the second proposition of the syllabus it is said:

“Proof of facts sufficient under the statute to create a prima facie presumption of negligence against the defendant cast upon it the burden of producing evidence of equal weight or countervailing force, in order to control or destroy the presumption, yet proof of such facts does not impose upon the defendant .the burden of establishing affirmatively by a preponderance of the evidence, that it was not negligent.” Hutson v. Hartley, 72 O. S., 262.

We think these cases settle the question that the burden of proof in .a will contest does not shift as to any question at issue necessary to establish the invalidity of the will. The contestants in the fifth proposition to charge before argument, asked .the court to say that the same fiduciary relation existed between the girl and Mrs. Welch as existed between her and her principal guardian, and this relation raises a presumption of undue influence and casts npon the proponents of the will the duty of showing by a clear preponderance of the evidence that there was not such undue influence, but that everything connected with the making and execution of the instrument was free from impropriety and unfairness.

Wé think the court' was right in refusing to so charge. And proposition six was equally vicious.

Proposition four might possibly have been given to the jury without prejudice. It is, however objectionable in that it assumes the existence of other evidence of mental incapacity and the probable existence of undue influence, and gives undue prominence to both these questions. Hence, there was no error in refusing to give it.

We think that the proposition submitted by the defendant were all applicable to the issues in the case, and were properly given.

Proposition one, made after argument, relates to the effect of the order of probate appointing a guardian for Coena Murphy, and the prima facie presumption of testamentary incapacity thereby raised. Conceding that the appointment of the guardian did raise this prima facie presumption, we think the request was faulty in confining the evidence to rebut the presumption too exclusively to the 2d day of June, the date of the execution of the .will. In this it might have been misleading. It was the duty of the jury to look to all the evidence on the question of mental capacity, and then say whether or not at the time the will was made, she was of sound mind, etc. The jury might have understood from his request that they were confined to evidence relating only to the 2d day of .June. So we think there was no error in refusing the request.

Request No. 2, after argument, is disposed of by. our holding as to the numbers five and six, before argument.

In regard to the general charge; the court, after properly defining the amount of capacity and the understanding which he must have of the extent of his. property, his relation to the objects of his bounty, the effect of his will and the strength of mind necessary to perceive their obvious relations to each other, etc., used this language:

“Though he may not be able to understand and appreciate these matters in all their bearing as a person in sound and vigorous health of mind, and body would do.”

This language is excepted to. The qualifying words “sound and vigorous” relate to the health of the mind. The mind may be enfeebled by age or sickness, indeed, if our learned physiologists are right, very few do possess perfectly sound and vigorous health of mind and body. And yet there may be testamentary capacity, and we think that the use of the phrase in question is entirely consistent with the rest of the charge on that question, and there was no error in its use.

The following language also is excepted to: “ The law gave to Coena Murphy the right to dispose of her property by last will and testament, lawfully executed, in any way she saw fit.” And in this connection also the court said: “You are not at liberty to make a will for her. That was her right. You are simply to decide whether the one she has made was sanctioned by and fulfilled the requirements of the law.” Perhaps this language might be criticised in the way it is expressed, but it states the law correctly. Coena Murphy, if of sound mind, had a right to make a will. The question of soundness of mind was for the jury, and in view of the instructions on that point, we do not. see how they could have been misled by the language used. It was perfectly proper for the court to impress upon the jury that they were not to be governed by their own ideas of what Coena ought to have done, but decide whether the requirements of the law had been fulfilled.

Referring to the paper in controversy as “the will” or “the will she has made” in that connection would not be calculated to mislead.

The part of the charge excepted to, relating to influence obtained over a testator by kindness, affection, friendly attention, etc., is conceded .to be a perfectly correct statement of the law, and we see no reason why it should not have been given in this charge. The charge also is correct on the burden of proof. In summing up the court said:

“If the contestants have proved by a preponderance of the evidence any one of these things ,as to which the burden of proof was on them, then you should return a verdict finding the paper produced not to be the last will and testament of the deceased, but if they have failed to prove any one of them to your satisfaction, by a preponderance of the evidence, you should in that case return ,a verdict sustaining the will.”

The expression “failed to prove any of them” would seem at first blush to have required the contestants to prove all of the claims made to invalidate the will. It is evident, however, that this is not what the court meant. The jury are told that if the contestants have proved any one of the things, the- burden of' which rested on them, they were entitled to a verdict setting the will aside, so that they could not without superhuman dullness have understood the subsequent expression used in that very connection, “failed to prove any one of them” to have meant that the contestants must prove all the claims.

The judgment of the court of common pleas is affirmed.