author: POWELL, J.

text:
    WILLS.
    [Richland (5th) Court of Appeals,
    1916.]
    Shields, Powell and Houck, JJ.
    F. M. Hess, Admr. v. American Bible Soc. et al.
    Devise to Sister and Her Husband, Charged With Bequest to Bible! Society Lapses as to Sister's Undivided Share at her Death Without Issue and Interstate or Equitable Election Requires Payment Out of Her Share and Husband Deemed to Elect to Accept his Share.
    The will of M devised certain real estate to his sister and her husband jointly, burdened with a bequest of $10,000 to the American Bible Society. The sister died without issue prior to the death of the testator. The husband survived the testator, but died before a sale of the land had been effected or he had made an election under the will. Held:
    1. The bequest to the sister of an undivided one-half of said property lapsed, and said interest thereby became intestate property.
    2. The other undivided one-half passed under the will to the husband of said sister, subject to his right of election to accept benefits and assume the obligations thereby conferred, with the privilege of postponing his election until he could determine whether acceptance of the bequest would prove a benefit or a detriment; and inasmuch as there will be something over after payment of the legacy to the bible society together with costs, he will be presumed to have elected to take.
    3. If the devise to the sister did not lapse, it became subject to the equitable rule of election, and in either event should be applied to payment of the disappointed donee, the bible society, whose legacy was general and not special, and as intestate property this lapsed bequest should be exhausted in payment of costs and the bible society legacy before resort is had to the remainder of the estate.
    4. The residue of the legacy to the bible society with accrued interest should be paid out of the other half of the estate, the balance over going to the heirs of the deceased devisee.
    [Syllabus by the court.]
    Appeal.

      Brucker, Voegele & Henkel, for plaintiff.

      Olin M. Fa/rber, for American Bible Soc.
    W. 8. Kerr and Douglass & Hutchinson, for other defendants.
   POWELL, J.

This is an action for the direction of the eourt relative to the administration of the estate of Joshua Measle, deceased, and the same is authorized by Sec. 10857 G-. C.

First in logical order is the construction to be given the will of said Joshua Measle, deceased, in view of the admitted and established facts. The pertinent facts are as follows:

Joshua Measle died October 3, 1908, leaving a will, which was duly admitted to probate and record in this county. Mary Sprow, his sister and devisee under his will, died without issue surviving her August 25, 1908.

Lewis Sprow, the husband of said Mary Sprow, was appointed executor October 29, 1908.

On December 28, 1910, after the verdict of a jury sustaining the will of said Joshua Measle, Sprow as executor filed a petition to sell the real estate of said testator to pay debts, costs, and a legacy to the defendant, the American Bible Sociey, in the district court of Cedar county, at Hartington, Nebraska, in which state said real estate was situated. Lewis Sprow died April 10, 1911, before said lands had been sold, and F. M. Hess was appointed administrator de bonis non with the will annexed of the estate of said Joshua Measle, deceased.

Hess sold the said real estate June 10, 1911, for something more than $16,000 and filed his petition in this case February .8,1912,

The provisions of the will of the said Joshua Measle requiring construction are as follows:

“ Second, I give and devise and bequeath to my sister Mary Sprow and her husband Lewis Sprow in fee simple all my personal property and real estate of every kind, nature and description that I own or may own at the time of my decease.
“My real estate at this time is situated in Town 30, range 2 E., Cedar county, Nebraska, they to have the exclusive right to do whatever they think best with the same, just as though they had purchased it and received deeds from me.
“Item Three. It is my will and I hereby order that my sister Mary Sprow and her husband Lewis Sprow shall pay to the American Bible Society, Bible House, New York, ten thousand dollars ($10,000) within one year after my death and to take good and sufficient receipt in my name for the same from the American Bible Society or their proper officials. ’ ’

Mary Sprow died, without issue before her brother, the testator, and her interest in his property under his will lapsed,, unless it comes within the exception mentioned in Sec; 10581 G. C., relating to residuary legatees. Such exception is as follows:

“Section 10581. # * * If such devisee leaves no such issue, and the devise be of a residuary estate to him or her, and other child or relative of the testator, the estate devised shall pass to, and vest in such residuary devisee suviving the testator, unless a different disposition be made or required by the will. ’ ’

The words “residuary estate” in this statute are held to be used in a technical sense and should be given their technical meaning, when it becomes necessary to construe, the same to determine their legal effect. Jewett v. Jewett, 12 Circ. Dec. 131 (21 R. 278).

Applying such construction to the language of the will of' Joshua Measle, and Mary Sprow and Lewis Sprow become and are general legatees or devisees and not residuary legatees, and the exception mentioned does not apply, and Lewis Sprow^ did not take the half of testator’s property devised to Mary Sprow as a residuary devisee under the will.

For another reason Lewis Sprow could not take the share devised to Mary Sprowr; and that is, he is not such relative of the testator as is contemplated by the provisions of said See. 10581 G. C. He is a relative of the testator by affinity only, and not by consanguinity. Schaefer v. Bernhardt, 76 Ohio St. 443 [81 N. E. 640; 10 Ann. Cas. 919.]

And though Lewis Sprow may have been next of kin to Mary Sprow, and entitled to inherit from her, yet his relationship to her brother, the testator, is not such as to prevent the legacy to Mary Sprow from lapsing. Norwood v. Mills, 3 Dec. 356 (1 N. P. 314).

Mary Sprow having died before the death of the testator, the share of his estate given and devised to her must be held to have lapsed and thereby to have become intestate property.

A testator may die testate as to part of his property, and intestate as to the residue. Goff v. Moore, 36 O. C. C. 618 (20 N. S. 224; 3 App. 170).

The other undivided half of said estate passed under the will of said testator to Lewis Sprow, subject, however, to a right of election on his part, as to whether he would accept the benefits, conferred on him by said will and assume its obligations, or refuse to accept such benefits and-thereby decline to assume its-burdens.

This was a ease for an election. The testator devised one-half his estate to Lewis Sprow coupled with a provision that he should pay a legacy of $10,000 to the American Bible Society; and he can not accept the benefits conferred on him by an instrument of this character and at the same time repudiate the burdens which such instrument imposes.

“1. "When a testator by will confers a benefit out of his own estate upon another whose estate he also attempts to dispose of by such will, the acceptance of the benefit by the devisee is a ratification of the attempted disposition of his own estate.
“2. When from all the terms and the entire scope of a will it appears that the testator intended to charge property in the hands of his immediate devisee with a trust in favor of third persons, courts will give effect to that intention, whether the terms used by the testator be, in form dispositive, peremptory or precatory only.” Ide v. Clark, 3 Circ. Dec. 120 (5 R. 239).
“No technical language is necessary to the creation of a trust; and a devise accompanied by words imperative, expressing a wish or recommendation that devisee will apply it to the benefit of others, may create a trust.” Colton v. Colton, 127 U. S. 300.

This doctrine seems well settled law in Ohio. Huston v. Cone, 24 Ohio St. 11; Hibbs v. Insurance Co. 40 Ohio St. 543; Corry v. Lamb, 45 Ohio St. 203 [12 N. E. 660]; Bebout v. Quick, 81 Ohio St. 196 [90 N. E. 162]; Pomeroy, Equity Juris., Sec. 395; Snell’s’ Equity, 178.

A statement of the doctrine applicable to cases of this kind may be found in Bebout v. Quick, supra, above cited. Quoting from Pomeroy, Equity Juris., Sec. 395, the court says:

‘ ‘ The owner of an estate having, in an instrument of donation, applied to the property of another expressions which, were that property his own, would amount to an effectual disposition of it to a third person, and having by the same instrument disposed of a portion of his own estate in favor of the proprietor whose rights he assumed, equity imposes upon that proprietor the duty of electing either to relinquish the benefit conferred upon him by the instrument, if he asserts his own inconsistent proprietary right, or if he accepts that benefit, to complete the intended disposition by conveying in conformity to it that portion of his own property which it purports to affect.”

The court is of the opinion that this doctrine is applicable to the ease under discussion. Lewis Sprow was the devisee of the half of testator’s property. He, or it, is charged by the will making- the devise, with the payment of $10,000 to the American Bible Society. If he accepts the gift he must make the payment. The two acts of acceptance and payment are concurrent and no statute of limitations applies to the one that does not equally apply to the other.

As a matter of fact, did Lewis Sprow make an election to accept the devise made for his benefit by the will of said testator? The court is of the opinion that he did not make an unconditional election. He proceeded as executor to convert the estate into money, in order to make settlement of the same. He was under no obligation to make such election until the rights of third persons were interfered with, and he could proceed as he did proceed to settle up the estate, and postpone his election until he could ascertain and know whether such election would be a benefit to him or a detriment.

The law presumes, however, that if in the end, an election to take under the will would be beneficial to him, such election would be made accordingly.

In the circumstances of this case an election to take under the will will be presumed to have been made if anything remains for distribution after the payment of costs and the said legacy.

We have then two estates or conditions growing out of the will of said Joshua Measle, deceased:

1. One- half of his estate intestate property by reason of the lapsing of the devise to Mary Sprow; or if the devise to Mary Sprow did not lapse or become intestate property, it at least became subject to the equitable rule of election, and should be applied as compensation to the disappointed donee, the American Bible Society. Bebout v. Quick, supra.

2. The other half of his estate testate property under an. acceptance of the devise to Lewis Sprow, subject to the payment of the remainder of a gift of $10,000 to the American Bible Society, after any other property of the testator, subject to such payment shall have been applied thereon.

Having determined the status of the estate of said testator, it follows, in logical order

Second. That the court shall determine the disposition of the same. Intestate property should first be applied to the payment of debts, costs and general legacies, and in the proper order of distribution of the funds in the hands of said administrator all costs should be first paid out of said estate. One-half of the residue, being the intestate property of which the testator died seized, should be applied to the payment of the legacy due the American Bible Society, the same being a general legacy and not specific. The residue of said legacy, with accrued interest from the date it became due and payable, should be paid out of the residue of the funds in the hands of plaintiff as such administrator, and then if any residue remains for distribution, it should be distributed to such of the next of kin and heirs at law of Lewis Sprow, deceased, as are entitled under the laws of Nebraska, for the descent of real estate, to receive the same.

A.decree may be entered in conformity with the views expressed in this opinion, and the case will be remanded to the court of common pleas to carry the same into execution.

Shields, and Houck, JJ., concur.


source: Caselaw Access Project

author: JONES (O. B.), J.

license: Public Domain

text:
    RECEIVER'S.
    [Hamilton (1st) Court of Appeals,
    November 22, 1915.]
    Jones, Jones and Gorman, JJ.
    Charles Andrews et al. v. Edward Beigel, Recvr., et al.

      Rents Accrued Before Receivership and Ordered Paid Before Disastrous Result of Receivership Affairs Held Preferred.
    That the conduct of a business by a receiver resulted so unfortunately that the proceeds finally derived from a sale of the business and property were not sufficient to meet the obligations incurred in the operation of the business by the receiver, can not be regarded as ground for the setting aside of a positive order by the court for payment of a part of the rental which had accrued prior to the receivership, when it appears that ait the time of the making of the order and afterward there were funds in the hands of the receiver which could have been used in making this payment; the receiver’s certificate, issued in lieu of such payment, must be treated as a preferred claim.
    Error.
    ■ DeCamp & Sutphin and Gregor B. Moormcmn, for plaintiff in error.

      Kramer & Bettman, for Burger.

      Rmner & Renner and Otto Pfleger, for Beigel, receiver.
   JONES (O. B.), J.

Tbe question in tbis case grows out of a receivership of the-J. Walker Brewing Company in which the receivers of the brewing company carried on the business under order of the court for a period of two years. The business ’was carried on by the receiver with a view of selling the property and business of the company as an entirety. Efforts were made by the receiver and his counsel to make such sale, at private sale, and these failing it was offered at public auction as an entirety and failed to sell. Afterwards the bréwery was dismantled, the leasehold was sold separately and other property sold in parcels and thus disposed of.

The result of the management of the business by a receiver was" most unfortunate. Money was borrowed for the purpose of paying for merchandise, labor and expenses of running the business, and after-tbe property had been sold it developed, there was not sufficient funds on hand to pay all the obligations of the receiver.

The question submitted in. this ease is as to the payment of rentals for the property occupied by the brewery and used by •the receiver in the conduct of the business. This question arises upon an intervening petition filed by Charles Andrews and the representatives of the estate of Peter Andrews, deceased, and of the estate of Conrad Schultz, deceased, said three parties, owning respectively nineteen-sixtieths, thirty-six-sixtieths and-■five-sixtieths of the property so used.

This property was held by the brewing company under a lease from said parties at a rental of $3,600 per annum, payable-at the rate of $300 per month. The receiver was appointed August 30, 1910, and the court by its receiver then took possession of all said leased property and ordered its receiver to continue the business of the brewing company, all of said property-being essential to the conduct of said business.

The two proceedings in which a receiver was asked have been consolidated in this case.

On December 10, ] 910, a petition was filed by the receiver 'praying for instructions in regard to the payment of rentals for said property. On December 24, 1910, the court made an order finding said property under lease to the brewing company from the above named lessors at a rental of $3,600 per annum, and ordered the receiver to pay all rents accruing from the date of his appointment, being at the rate of $300 per month.

On June 17, 1911, an intervening petition was filed by said lessors setting out their claim for back rental and praying for an order for its payment prior to any other claim; that the lien for said rental might be established and declared; and that the receiver might be required by the court to elect and determine whether he would accept the leasehold' estate and assume the-obligations thereof, including said rental, and in the event that said receiver should determine not to assume said lease that said lessors might be allowed to forfeit said leasehold estate or foreclose the lien thereon, or take other proceedings to enforce and protect their rights in said property; and that said receiver "be required to pay the past due rentals as a Condition for continuing in the use and occupation of the premises as receiver.

After several hearings upon said intervening petition an -order was made by the court December 18, 1911, finding that there was due for hack rentals under said lease, which had accrued prior to the appointment of said receiver, the amount of $5,736.42, and the receiver was ordered to pay to said lessors or their attorneys one-fourth of said amount, being $1,434.11; and the time of the payment of the balance of said claim and the consideration of all other matters set forth in said intervening petition was postponed for further consideration of the court. And for the purpose of making said payment of $1,434.11 the receiver was authorized to borrow such sum, if necessary so to do, and to issue a receiver’s certificate therefor, which should be the first lien upon the property and estates of said the J. "Walker Brewing Company.

On April 6, 1912, an order was made to sell the brewery as a going concern; including said leasehold, and on the same day an order was made providing that if such sale as an entirety was made that the lien to secure all rentals due under said lease up to the day of sale of said leasehold should be transferred to the purchase money derived from the sale of said company’s' ■estates, and the lien asserted by said lessors should be transferred, in the event of such sale, to the proceeds of said sale as the first and best lien thereon and should be paid out of said purchase price prior and preferably to all other claims.

The property was offered as an entirety under said order and failed to sell, and an order was made on May 7, 1912, providing for the sale of said property in parcels if it failed to sell as an entirety; and on the 8th of May, 1912, an order was made providing that the lien reserved to the lessors to secure rentals under said lease up to the day of sale, should be transferred to the proceeds of sale of said leasehold estate as the first and best lien thereon, and said rentals should be paid out of the purchase price of said leasehold estate prior and preferably to all other claims. Upon said sale the leasehold sold for the sum of $1,000, and the court afterwards made an order that said amount should be paid by tbe receiver to said lessors and' credited upon the amount due for rentals.

On November 23, 1912, another intervening petition was filed by said lessors, Charles Andrews and the representatives of said two estates, setting out the proceedings above detailed, and stating that no money had been paid on account of the sum of $1,434.11 ordered paid by the receiver to them under the order of court made December 18, 1911, and setting out the amount of unpaid rental due them from the receiver accruing after his appointment amounting to $2,115, and stating that the sum of $1,GOO, the proceeds of the sale of said leasehold ordered paid to them October 29, 1912, had been credited by them upon the rental due prior to said receivership, leaving a balance due of said rentals of $4,736.42, with interest for the amount due prior to the receivership, and $2,115 rental accruing under the receivership, and praying that the same be established as a'first and prior lien upon the proceeds of sale prior to the claims of the receiver’s certificates issued in said proceeding, and to the* claim of the Fifth-Third National Bank for moneys advanced to said receiver, and prior to the claims of all creditors.

The right of such priority was contested by answer and cross-petition filed by Win. Ammann and the Burger Brothers Company, w*ho were creditors for malt sold to said receiver, and also by answer of the receiver. Issue was made by reply of said intervenors, and evidence was taken, and. a hearing had thereon,, all of which is set out in the bill of exceptions.

Where real estate is occupied and used by a receiver in the operation of a business under the direction of the court, the rental or compensation for the use of the property becomes an. expense incident to the administration of the receivership and,, like other costs, is to be paid before the assets of the debtor are distributed among his creditors. Where before the appointment of a receiver property has been held under lease, and the receiver takes possession, he will be given a reasonable time to determine whether he will accept under the lease or not. If he does so accept, he will be bound by the terms of the lease.. If he does not accept under the lease and no other terms are made with the landlord he will be required to pay for the tim® be occupies the premises a reasonable compensation not less than the rate oí rental stipulated in the lease. The court has no power by the receiver to take possession of the property of a person without his consent and then make its own terms for compensation to be paid for its use. When a receiver takes under a lease under which arrears of rental are due, it can be made a condition by the lessor that such arrears must be assumed and paid by the receiver.

A careful consideration of the record convinces the court that it must be held that the receiver took under the terms of said lease, and that under the orders of the court as made December 24, 1910, and December 18, 1911, both the accrued rentals prior to the receivership and those unpaid accruing since the appointment of the receiver are obligations of the receiver.

The sum of $1,434.11, being one-fourth of the back rentals which was ordered paid December 18, 1911, and for which a receiver’s certificate was authorized, must be considered as a preferred claim, the order for payment by the court having been made positively, and the evidence showing that the receiver had from time to time funds in his hands sufficient to malee such payment. The court in its order of December 18, 1911, allowed said back rental as an indebtedness of the receiver instead of refusing such allowance and granting the application of lessors the right to possession of their property or foreclose their lease. After the receiver had thus been enabled to continue in the possession of the property and to operate the brewery, it would be unfair to the lessors to reverse this order, as was done in the final judgment of the court below, and disallow any claim for back rent.

It ajjpears, however, from the record, that these lessors were ■all stockholders in the brewing company, and, in part, its creditors; that they with all the other parties interested were under the belief that the brewing company might through its operation by the receiver of the court and a favorable sale of its property as an entirety be enabled to pay all of its obligations, and because of this belief and the other interests 'of the lessors, while at no time expressly waiving any right of priority they might have for rentals, they undoubtedly did permit, with others interested, th.e continuation of the receivership and the accumulation of unpaid rentals to such an extent that it would be inequitable under all the circumstances to prefer them to other creditors of the receiver who had also by extending their credits permitted the continuation of the receivership.

The judgment of the court below must therefore be modified to the extent of allowing plaintiffs in error a preferred claim of $1,434.11, with interest from the date at which it was ordered paid, and allowing them to pro rate as to the balance of all rentals due — both those áccruing before and those accruing after the appointment of the receiver.

With such modification the judgment below will be affirmed.

Jones (E. H.) and Gorman, JJ., concur.


author: JONES (E. H.), J.

text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Hamilton (1st) Court of Appeals,
    May 22, 1916.]
    Jones, Jones and Gorman, JJ.
    P. & C. Schneider Co. v. Lulu Wagner.
    Hand Operated Coffee Mill With Balance-Wheel not Inherently Dangerous.
    A coffee mill, operated by band and equipped with, a large balance-wheel that is in motion for a short time after the operator ceases to propel it, is not inherently dangerous; hence, a clerk in a grocery Store who passed such a mill before the handle ceased to revolve and was struck by it and injured cannot recover.
    Error.

      Cohen, Maeh & Eurtig, for plaintiff in error.

      S. L. Hagans and Black, Swing & Black, for defendant in error.
   JONES (E. H.), J.

The plaintiff below, Lulu Wagner, was employed by the defendant company as a clerk in its grocery. There was in this grocery a large coffee-mill operated by hand. Upon the side of this coffee-mill was a large fly-wheel, to the rim of which was attached a handle. Between the end of this handle and the wall or shelving there was a space of seventeen and one-half inches. Some employee who had used this mill had left the wheel in motion, and Miss Wagner while in the performance of her duties and while passing through the space above described was struck by the revolving handle and severely injured. She recovered a judgment below for $2,500. This proceeding is brought to reverse the judgment.

The petition charges the company - with negligence in four particulars:

1. Failure to guard said mill, alleging that it is a dangerous machine.

2. Placing of the mill in a dangerous position, with a space ■of not more than two feet between it and the shelves.

3. Allowing trash, boxes and other material to accumulate in the aisle so that there was not sufficient space to- allow one to pass in safety.

4. Another clerk left said mill revolving rapidly.

The answer admits the employment of Miss Wagner, the business in which defendant was engaged, and denies everything else in the petition.

At the close of plaintiff’s evidence below, and again at the close of all the evidence, defendant moved for an instructed verdict upon the ground that no act on the part of defendant constituting negligence was shown. The overruling of these motions by the trial judge is principally relied upon for a reversal of the judgment. The question thus raised being fundamental is entitled to first consideration, and disposes of the case, in the view we take- of it.

The evidence shows that the injury received by Miss Wagner was a serious one. But while most injuries from violence are the result of crime or of culpable negligence on the part of some one, it is not always so. Many personal injuries are received for which the law provides no remedy or recompense. Negligence, in its legal sense, -is the failure to exercise ordinary care —not the highest degree of care. It was ordinary care that defendant in error owed to Miss Wagner. Wherein did he fail to exercise it? What act of negligence by him was the direct and proximate cause of her injury ? Should he in the exercise of ordinary care have foreseen the injury as the probable result of the coffee-mill or its revolving wheel? These are questions raised by the record and briefs in this case, and must be answered. We can give but one answer, namely, that there is no-evidence to support the judgment below. The result of that judgment is to exact from the one against whom it was rendered a very high and unreasonable degree of care.

There was nothing inherently dangerous about the coffee-mill. It can not be regarded as a dangerous machine. To leave the wheel in motion, with the power removed, in the place and under the conditions described, can not be actionable negligence. The danger, if any, was as obvious to Miss Wagner as to any one else. If there was danger she should have avoided it by going another way, or by keeping away from the handle while passing through the aisle. There was a way by which she could have reached the part of the store to which she was going without, passing the mill.

But in deciding this case against her we do not act upon the theory that she was negligent, and for that reason can not recover. This reversal is upon our conviction that there is in the record no evidence of negligence on the part of the defendant.

The injury might have been avoided by the exercise of great care. Such care is not exacted by the law. In law’s domain this occurrence must be regarded as an accident, for which no one is answerable and for which no remedy is provided.

The judgment will be reversed, and the judgment which the lower court should have rendered will be entered here.

Judgment reversed.

Jones ( O. B.), and Gorman, JJ., concur.


author: RICHARDS, J. Kinkade, J.

text:
    APPEAL — EXECUTORS AND ADMINISTRATORS.
    [Seneca (6th) Court of Appeals,
    January 27, 1916.]
    Richards, Chittenden and Kinkade, JJ.

      John C. Royer et al. v. Walter G. Trumpler, Admr.
    Appeal Lies to Order of Probate Court Determining Validity of Account for Legal Services.
    An appeal lies, by virtue of the provisions of Sec. 112'06 G-. C., from a decision of the probate court adjudging, on application made therefor by the claimant, as to the validity of an account for legal services rendered by attorneys employed by the administrator of an estate.
    [Syllabus by the court.]
    Error.

      Boyer & Spitler and W. C. Rhorhacker, for plaintiffs in error.

      Milton Sayler and Frank Fore, for defendant in error.

       Affirmed, Trumpler v. Royer, 95 Ohio St. 000; 62 Bull 31.

   RICHARDS, J.

This is a proceeding in error to reverse a judgment of the court of common pleas dismissing the appeal to that court from the probate court of this county, and the only question before us is whether the original action was appealable. In order to determine that question it will be necessary to recur to the proceedings in the probate court.

The record discloses that Walter G. Trumpler had been appointed administrator de bonis non, with the will annexed, of the estate of Emma R. Slusser, deceased, and was proceeding to administer the estate of the testatrix. The testatrix had named in her will a man as executor of her estate and the person so named was appointed by the probate court in that capacity and qualified and entered upon the performance of his duties. An action to contest the will was brought and the executor employed counsel to make a defense in that action. A large estate was left and the trial of the contest occupied a considerable period of time and involved the introduction of a large mass of evidence. The trial of the action, resulted in a verdict and judgment sustaining the validity of the will. Thereafter Mr. Trumpler, then acting as administrator, filed in the probate court his account as administrator, showing the receipt and disbursement of a large number of items.

After the filing of this account steps were taken in the probate court to secure the allowance of this claim in favor of the attorneys for services. rendered in the defense of the will. All parties in interest were duly notified, and the matter was heard in the probate court and a finding and judgment entered in that court that the services had been duly rendered in defense of' the will, and under employment of the executor, and that they were of the value of four hundred dollars. It was ordered that this sum be allowed to the attorneys in full for their services, and the remainder o‘f the claim disallowed. It was further ordered by the probate court that the administrator pay the sum so allowed to the attorneys for such services. From this judgment and order Royer & Spitler appealed to the court of common pleas.

Whether the action is appealable depends upon a construction of Sec. 11206 G. C. That section, so far as pertinent to the question under consideration, reads as follows:

“Appeal may be taken to the common pleas court by a person against whom it is made, or whom it affects, from any order, decision or judgment of the probate court in settling the accounts of an executor, administrator, guardian and trustee, or ot assignees, trustees or commissioners of insolvents.”

The simple question under this section is whether the judgment of the probate court under review was one made in settling the accounts of the administrator of the estate of Emma R. Slusser. We do not regard as very material the precise steps taken in the probate court to procure an adjudication as to whether the claim should be allowed and added to the account of the administrator. The account as filed stated, in substance, that the administrator was not advised as to its validity and for that reason he rejected the same, and his statement naturally suggested to the probate court the necessity of a determination as to whether the claim was valid and whether the same should, or should not, be paid and entered in the account. The decision of the probate court amounted to a judgment and order that the claim was valid to the extent of four hundred dollars, and that the remaining part was excessive and should not be allowed. It would naturally follow that the administrator should pay the amount so adjudged and enter the amount so paid in his account, and, in this sense, a majority of the court are of the opinion that t lie judgment of the probate court was one made in settling the accounts of the administrator within the meaning of the section above cited, and that,' therefore, the judgment was one from which an appeal could be'taken.

We are the more convinced of the correctness of this conclusion, in view of the language of Sec. 10214 G. C., providing that the provisions of the chapter embracing this section fixing the right of appeal, should be liberally construed in order to promote its object and assist the parties in obtaining justice.

It is manifest that if the administrator had allowed the claim and entered the same in his account, and the same had been approved by the probate court, parties who were interested and prejudicially affected thereby would have the right of appeal. Under the statute the amount justly due to the attorneys-for making a successful defense of the will would be, when .allowed by the probate court, a portion of the legitimate expenses of administration, and the fixing of the amount is the settling of an item of the account. Thomas v. Moore, 52 Ohio St. 200 [39 N. E. 803]. See, also, McMahon v. Ambach & Co. 79 Ohio St. 103 [87 N. E. 1138]. A construction of the statute which would deny the right of appeal when the administrator rejects the claim and the probate judge, on the filing of the account, allows the same in part, would not be giving the statute a liberal construction and would not be assisting the parties in obtaining justice. On the contrary, it would in practice make the appealability depend in large part upon the position taken by the administrator with reference to the claim and the action taken thereafter by the probate judge.

For these reasons, the common pleas court erred in dismissing the appeal, and that judgment will be reversed and the cause remanded to the court of common pleas for further proceedings.

Chittenden, J., concurs.

Kinkade, J.

(dissenting).

It is conceded by the plaintiffs in error that their right of appeal depends entirely upon Sec. 11206 G-. C. To say that every order made by a probate judge with respect to the administration of an estate, which involves the' direction to the administrator to pay. or not to pay, money belonging to the estate, to any given party, is necessarily an order or decision made in the settling of the accounts of the administrator, as mentioned in See. 11206, seems to me a mere play on words.

The account of the administrator which the probate court settles is an account between the administrator and the heirs of legatees or devisees under the will, to whom the residue of the estate will pass after the expenses of administration are taken out, and the validity of a claim of a creditor against the assets of the estate, whose claim arose, as in this case, after the death of the testator, is in.no wise- affected by any order that the court may malee with respect to the settling of the accounts of the administrator.

The situation is not helped out any by a reference to Sec. 10214 G-. C., calling for a liberal construction of the provisions of the statute in that subdivision, including Sec. 11206. The liberal construction called for is for the purpose of enabling the parties to secure justice, etc. It by no means follows that it will further the ends of justice to engraft upon the statute the right of appeal when it does not exist by virtue of the terms of the statute. The party desiring to appeal is not the only one that is to have justice by virtue of a liberal construction of the statute.

¥e come back to the point from which we started, to wit, See. 11206 must, standing alone, determine whether the plaintiffs in error had a right to appeal. The papers before this court do not disclose what action, if any, has been taken with respect to the settling of the accounts of this administrator by the probate court, other than in so far as it is discoverable with respect to this particular item’, by an inspection of the journal entry in which the court allowed, four hundred dollars on the two thousand dollar claim made by the plaintiffs in error. The plaintiffs in error elected, upon the refusal of the administrator to pay their claim,, to go into the probate conrt with a petition and cite all parties to appear and' there try out before the probate judge their right to have the full amount of their claim. The decision of the probate judge gave them four hundred instead of two thousand dollars. From this they undoubtedly could prosecute error, but it does not follow that they can also prosecute appeal.

I am clearly of the opinion that the trial judge was entirely correct in dismissing the appeal, and I think the action of the trial, court should be affirmed.


author: FARR, J.

text:
    DESCENT AND DISTRIBUTION — WILLS.
    [Mahoning (7th) Court of Appeals,
    February Term, 1917.]
    Pollock, Metcalfe and Farr, JJ.
    Albert J. Beight v. Mary C. Organ et al.
    Farm Devised Subject to Payment of Legacies is Estate by Purchase.
    Where a testator in his last will and testament provides as follows, “I give, devise and bequeath to my daughter, A. Y., my farm in Poland Township, on which I now reside, consisting of one hundred acres of land, to he to her and her heirs and assigns forever, providing she pay to the executor or executors of my estate, the sum of four thousand dollars. * * * The money arising from the sale of my farm, as hereinbefore bequeathed to my daughter, A. Y., * * * shall than be divided share and share alike. * * * I do hereby nominate and appoint my son J. Y. without bond, executor of- this my last will and testament, and give him full power to convey my farm to my daughter, A. Y.” creates and invests said daughter with an estate by “purchase” and not by “devise.”
    [Syllabus by the court.]
    Appeal.

      J. J. Boyle, for plaintiff.

      Craver & Diser, for defendants.
   FARR, J.

Adam Yarian, late of Poland township, this county, died testate August 31, 1910, and thereafter his last will and testament was duly admitted to probate in the probate court of this county. Said decedent was twice married; his first wife leit one child surviving her, Eebecca Yarian Beight, who, at her decease, left the following named children: Albert' J. Beight, Eolandus E. Beight and Mary C. Organ. By the second wife, whom testator survived, the following named children were born: John Yarian, Elizabeth Crum, Samantha Eummel, Anna Yarian and Jonas Yarian.

By the terms of said last will and testament it was provided, among other things, in*Item 2 as follows:

“I give, devise and bequeath to my daughter, Anna Yarian, my farm in Poland township, on which I now reside, consisting of one hundred acres of land, to her and her heirs and assigns pr-ever, providing she pay to the executor or executors of my estate the sum of four thousand dollars on or before three years from the date of my decease.”

And in the second paragraph of the same item the following language is used:

‘1 The money arising from the sale of my farm, as hereinbe-fore bequeathed to my daughter, Anna Yarian, and all my personal property, moveable property, household furniture and money and valuable papers, which I leave at my decease, shall be equally divided, share and share alike. ’ ’

And at the conclusion of said will it is provided as follows:

“I do hereby nominate and appoint my son, Jonas Yarian, without bond, executor of this, my last will and testament, and give him full power to convey my farm to my daughter, Anna Yarian, or if she should not elect to take the farm at the price mentioned, then my executor shall sell the farm to the purchaser or purchasers the same as I could have done if I were living. ’ ’

Jonas Yarian qualified as executor of said will and the said Anna Yarian, having elected to take said farm upon the conditions above named, paid to said executor the sum of four thousand dollars and received in turn from him a deed for said farm, dated April 3, 1911, which deed is now of record in this county. The said Anna Yarian died June 3, 1911, unmarried, intestate and without issue, and left surviving her the brothers and sisters above named of the full blood, her only heirs at law.

Jonas Yarian qualified as administrator and duly administered her estate. Said farm was sold and the proceeds distributed equally among her ’brothers and sisters above named.

Albert J. Beight, son of decedent Anna Yarian’s sister of the half blood, Rebecca Yarian Beight, filed a petition for partition in the court below on April 4, 1915, claiming to be a tenant in common of said Poland township farm; that it was an estate by devise, instead of by purchase, and therefore ancestral rather than non-ancestral property. To this petition general denials were filed by the brothers and sisters of Anna Yarian, deceased. Judgment was rendered for defendants in the court below and comes to this court on appeal.

The whole issue is whether the language of said will above quoted creates an estate by “devise” or “purchase”; if by devise it is ancestral property and Sec. 8573 G. C. applies; if by purchase then it is non ancestral property, and Sec. 8574 G. C. applies.

Counsel for petitioner, in a well prepare^ brief and in oral argument cites and relies upon Par. 3 of above See. 8573, which provides that if an intestate leave no husband or wife, an ancestral estate shall pass to and vest in the brothers and sisters of the blood of the ancestor from whom the estate came or their legal representatives whether of the whole or half blood, and it is urged that the foregoing, taken in connection with the fore part of said Item II, as follows:

“'I give, devise and bequeath to my daughter, Anna Yarian, my farm in Poland township,”

is sufficient to determine it to be ancestral property; that is, it is urged that in order that defendants prevail, it must be absolutely determined that said estate came to Anna Yarian, not by descent, devise or deed of gift, as provided in said Sec. 8574 G. C., or, in other words, counsel relies partly on the above wording, ‘ ‘ I give, devise and bequeath ’ ’ to determine the issue here.

The foregoing is and long has been the usual and customary language used as introductory to an item of a will, and might be determinative of the issue, if no other and different language were used; it must be observed, however, that to determine the meaning of a will it must be read and considered all together and tbe latter part, if different from that which, precedes, must prevail.

Counsel for appellant cites Patterson v. Lamson, 45 Ohio St. 77 [12 N. E. 531], which does not seem in point with the case at bar, unless it is Par. 4 of the syllabus, which holds that where a father purchased and paid for land for1 a wedding gift to his daughter, and the vendor conveyed directly to the daughter, and the daughter died intestate and without issue, that the title did not come to her by deed of gift from an ancestor. Nor is the ease of Brower v. Hunt, 18 Ohio St. 311, believed to be in point. The 27 Ency. of Law (2d Ed.), 300 and 303, is cited to support the contention that the character of the estate is determined by the legal title, and numerous Ohio cases are quoted as sustaining that view, which is correct but does not determine the issue here; for while equities are inheritable, the course of descent is controlled by the legal title. Many other Ohio cases are cited, together with 1 Rockel’s Probate Prac., Sees. 907 to 912, all of which discuss and properly define estates by “devise,” but do not clarify the mental atmosphere in the case at bar because the term “devise” is. defined only generally and abstractly, and by no means in a comparative sense with' “purchase, ” as it must be in the ease at bar. The foregoing authorities therefore must be held to apply to it in its generally accepted sense, which 1 Bouvier, Law Diet. p. 861, defines as follows:

“Devise. A gift of real property by a last win and testa-. ment.”

In 3 “Words and Phrases,” p. 2047, it is defined:

“The term ‘devise’ is the proper term to be used in a will to denote a gift of real property” and citing many cases in which it is so defined.

“A ‘devise’ is a gift of real property by a last will and testament.” In re Daily’s Estate, 43 Misc. 552 [89 N. Y. Supp. 538] ; Hathaway v. Smith, 79 Conn. 506 [65 Atl. 1058; 9 L. R. A. (N. S.) 310; 9 Ann. Cas. 99]; 2 Words & Phrases (2d Series), 29.

And so' the authorities might be multiplied. Was the farm a gift to Anna Yarian or did the testator use the term “devise”' in a broader sense or inadvertently?

3 Bouvier, p. 2771, defines “purchase” as follows:

“Purchase. A term including every mode of acquisition of estate known to the law, except that by which an heir on the death of his ancestor becomes substituted in his place as owner by operation of law.” 2 Washb. on R. Prop., 5th ed., 401; Hoyt v. Van Alstyne, 15 Barb. (N. Y.) 568; McCartee v. Orph. Asylum Soc. 9 Cow. 437 [18 Am. Dec. 516].

A title by purchase is one that is vested in a person by his: own act or agreement. 2 Blk. Com. 241.

A title by devise is a title by purchase. Allen v. Bland, 134 Ind. 78 [33 N. E. 774].

In its more limited sense, purchase is applied only to such acquisitions of lands as are obtained by way of bargain and sale, ior money or some other valuable consideration. Cruise, Dig. title 30, Secs. 1-4; Hurst v. Rippo, 1 U. S. (1 Dall.) 2 [1 L. Ed. 19]; 32 Cyc. 1264-1265; Cobb v. Webb, 26 Texas Civ. App. 467, [64 S. W. 792] ; 32 Cyc. 1267; 8 Words & Phrases, p. 6983; Grant v. Bennett, 96 Ill. 535; 4 Words & Phrases (2d Series) 61.

In Carder v. Fayette Co. (Comrs.), 16 Ohio St. 369, it is said:

“Every lawyer knows that title by purchase is title by any means except descent, and, of course, includes title by devise.5 ’

The foregoing are partly common law definitions, but the common law is the basis of the Ohio statutes on the same subject, except the statutes limit or extend the provisions of the common law as the case may be, and the foregoing are principally for the purpose of comparison. The English common law has been so far modified in this state as to create the two classes by statute, -ancestral and nonaneestral property, and so Walker, -American Law (10th ed.) p. 392, defines it as follows:

‘ ‘ I am here speaking of the doctrines of the English law. In this country, or at least in this state, they have been so far altered, that ancestral property, as will be seen hereafter, includes all realty acquired from an ancestor, either by descent, devise or deed of gift, where blood is the only consideration; and purchased property includes realty acquired in any other way.”

And continuing the author very pertinently, at page 418, observes as follows:

“By ancestral property, then, is meant that realty which came to the intestate from his ancestor, in consideration of blood, and without pecuniary ‘ equivalent, ’ and which must have come either by descent or devise from a now dead ancestor, or by deed of actual gift from a living one. ’ ’

The foregoing is unmistakably to the effect that ancestral'property is property acquired where blood is the only consideration. And again the author observes as follows:

“And by nonaneestral property is meant all personalty, and that realty which came to the intestate in any other way, whether by purchase from his ancestor or from a stranger, for an equivalent paid, or by actual gift from a stranger, so that the consideration of blood is out of the question; for this makes the sole distinction. ’ ’

In the foregoing the author amplifies his definition, making his distinctions very clear. Therefore, “ancestral” property under the Ohio statute is property which comes from an ancestor, the only consideration for which is “blood” or relationship, and without a pecuniary equivalent. “Nonaneestral” property comprehends all other kinds and there is no refuge from that conclusion. The foregoing is supported by the above author at pages 391, 410 and 411, and by 27 Eney. of L. (2d ed.), p. 301, where it is said:

“New acquisitions and acquired estates. By new acquisition is meant an estate which the intestate acquired by his own exertion or industry, or by wall or deed from a stranger to his blood. In other words, it is an estate obtained by any means: other than by descent, gift, or gratuitous devises from an ancestor. ’ ’

The farm in question was not a gratuitous devise; it was, ■therefore, a “new acquisition.” West v. Williams, 15 Ark. 682; Frick Coke Co. v. Langhead, 302 Pa. St. 172 [52 Atl. 172]; Brewster v. Benedict 14 Ohio, 368.

In the case of Martin et al. v. Martin, 98 Ark. 93 [135 S. W. 348], it is held that land is considered a “new acquisition” if derived from any source other than by descent, devise or gift. from any relative in the parental line, as by a son from father or mother for a valuable consideration. Frauenthal, J., in the opinion observes, as follows:

1 ‘ If the estate is obtained by any means other than descent, gift or gratuitous devise, then it is a new acquisition. ’ ’

Other parts of said opinion are to the same effect. And the ease of Brown v. Whaley et al. 58 Ohio St. 654 [49 N. E. 479; 65 Am. St. 793], is cited, the syllabus of which reads as follows:

“A deed of real estate from a father and mother to their daughter, in consideration of our love and affection for our .daughter, and in consideration of the dutiful obedience and faithful services to us of our daughter, and in further consideration of one dollar to us in hand paid by our said daughter, is not a deed or gift, and the title acquired under such deed came to the daughter not by deed of gift but by purchase. ’ ’

And at pages 665 and 666, Burket, J., in the opinion quotes, with manifest approval, the above paragraphs from Walker’s American Law, and further observes as follows:

“how then shall it be solved when the considerations are thus mixed. The title came either by deed of gift or by purchase. It could not come by both; and legally speaking, it could not come partly by deed of gift and partly by purchase. The law as above quoted from Walker solves'the question. He says that to make ancestral property * * * there must be no other consideration than that of blood. Here there was other and additional consideration and therefore the title came not by deed of gift. As the title came not by deed of gift it came by purchase. * * *
“Moreover, the consideration of one dollar alone is sufficient to support the deed as between the parties, and to give it the character of being upon a valuable consideration, as contra-distinguished from a good consideration.”

It is true that the foregoing is merely dictum, but it clearly indicates by what process of reasoning a conclusion was reached, and is in point in. the case at bar.

Adam Yarian provided that his daughter should pay to his executor or executors the sum of four thousand dollars and upon that condition, and no other, she should receive a deed from his executor; and for sucb deed be bad a perfect right to make provision, and wbicb was in full beeping with bis own definitely expressed purpose as stated in tbe second paragraph of Item II:

“Tbe money arising from tbe sale of my farm.”

Adam Yarian regarded it as a sale, for be expressly so stated, and very properly so, for no process of reasoning could It be considered a gratuitous devise. No doubt tbe testator believed that bis daughter Anna was getting her own share of bis estate aside from tbe payment of said $4,000, but if' so, it is not determinable or devisable here. All that said will carried as gratuitous to Anna was tbe option in her favor to purchase a.t the price fixed. She elected to take under said option, paid the price, received a deed and beyond question took the estate by purchase, making it nonancestral property; but suppose it should be held to be ancestral propérty, tbe effect of sucb holding would be to divert $4,000 from the estate of Anna Yarian, deceased, from its proper channels of descent, to the estate of Adam Yarian, deceased, from which it must follow partly different lines of descent, thereby working injustice and injury to the heirs of Anna Yarian. Such is contrary to the spirit of the laws relating to such property in this state.

Judgment is therefore rendered for defendants and the petition dismissed.

Pollock and Metcalfe, JJ., eoneur.


author: KINKADE, J.

text:
    EVIDENCE — INFANTS—MASTER AND SERVANT.
    [Lucas (6th) Court of Appeals,
    January 26, 1914.]
    Kinkade, Richards and Chittenden, JJ.
    Toledo Railways & L. Co. v. Edward Poland, Gdn.
    1, Evidence of Suffering That With Reasonable Certainty Probably Will, not “May” or "Might” Result From Injury Competent.
    In an action to recover damages for personal injury, no recovery can he had for future pain and suffering except such as the evidence shows are reasonably certain to result from the injury, sustained. Evidence that pain or suffering “may” or “might” result is not competent. Evidence that such results will probably follow is competent, but to justify a recovery therefor the jury must find from all the evidence that reasonable certainty of results exists and- the jury should be so charged.
    2, Evidence that Defendant Kept no Record of Employe Competent to Explain Omission to Call as Witness.
    Where it becomes important for tho defendant to explain the omission to call a witness, who was in employ of defendant and present at the happening of a stated event, it is error to exclude evidence offered by defendant showing that no record was kept by defendant of the address of such employe.
    3, Instruction on Subject of Last Clear Chance Erroneous If not Presented by Pleadings or Evidence.
    The court should not charge the jury on the subject of the last clear chance when that issue is not presented in the pleadings or by the evidence.
    4. Unless Emancipated Minor Cannot Recover for Loss of Ability to Earn Wages.
    The charge of the court to the jury with respect to the recovery by a minor for loss of ability to earn wages, by reason of the injury sustained, should definitely exclude the period covered by his minority, unless the evidence shows the minor to have been emancipated.
    [Syllabus by the court.]
    Error.

      King, Tracy, Chapman & Welles, for plaintiff in error.

      AsMon E. Coldham, and Boggs & D’Alton, for defendant in error.
   KINKADE, J.

This is a personal injury case. Isadore Poland, a boy fifteen years of age, was a passenger on a street ear operated by the Toledo Bailways & Light Company, hereinafter designated as “the company.’’ As the ear approached Troy Street, Poland informed the conducter that he wished to leave the car at that street, and thereupon the conductor signaled the motorman by bell to stop the car at Troy street. The motorman in obedience to the signal slackened the speed of his ear for the purpose of stopping as directed, and while the evidence is in conflict as to whether he actually came to a full stop, and if he did, whether it was at the usual place of stopping to receive or discharge passengers at that street, the motorman testified that he did make a full stop and that it was at the usual stopping place. At or near Troy street, Poland left the car and went immediately around the rear end of the ear, intending to cross the parallel track which was some three feet distant, on his way to his home in that vicinity. As he crossed the space between the two tracks, and before he had stepped upon the other track, he was struck by another car of the company going in the opposite direction from that of the car on which he had been riding, and wa's seriously injured.

The negligence of the company alleged was excessive speed of the car which struck Poland, a failure to stop the ear before passing the other car which had stopped to discharge a passenger, the stop being required by ordinance of the city, and the failure to give warning, by bell or gong of the approach of the ear while crossing the street or when passing another car, as required by city ordinance. The company in its answer denied all acts of negligence and alleged contributory negligence on the part of Poland, which was denied in the reply. The jury returned a verdict in favor of Poland for three thousand dollars, upon which judgment was entered.

Our attention is called to a great many errors said to be manifest in the record' justifying a reversal of. this judgment, among which are the following: Poland called as witnesses two physicians who testified fully as to the extent and permanency of his injuries. Both of these expert witnesses were permitted, over the objection of the company, to state what “might” develop in the future from the injuries described. They stated that the injuries “might” cause epilepsy, paralysis or insanity. Neither of the doctors gave it as his opinion that either of the three things mentioned was reasonably certain to result, nor even that it wonld probably result, from the injury. The motion of the company to withdraw these statements from the consideration of the jury was overruled and exception saved. We think the evidence was clearly incompetent and prejudicial. Two decisions of our own Supreme Court establish the proposition that there can be no guessing or speculating permitted on the part of either the court or the jury, and that the only damages arising in the future for which recovery can be had are such as are shown by the evidence to be reasonably certain to follow from the injury received. We cite the case of Cleveland Term. & Val. Ry. v. Marsh, 63 Ohio St., 236 [58 N. E. 821; 52 L. R. A. 142], and Pennsylvania Co. v. Files, 65 Ohio St., 403 [62 N. E. 1047]. If there must be reasonable certainty as to damages accruing in the future, it is entirely clear that to justify a recovery the evidence should be such as will enable the jury to find that there is reasonable certainty that those things will result from which such damages must arise. The two decisions cited settle the question, but we call attention to the following authorities to the same effect: Lentz v. Dallas, 96 Tex. 258 [72 S. W. 59]; Turner v. Coal Min. Co., 156 Ill. App. Ct. Rep., 60; Briggs v. Railway, 177 N. Y., 59 [69 N. E. 223; 101 Am. St. 718]; Collins v. Janesville, 99 Wis. 464 [75 N. W. 88] Cross v. Syracuse, 200 N. Y. 393 [94 N. E. 184; 21 Ann. Cas. 324].

We think that the proper practice is to first ask the expert witness whether he is able to state what results will probably follow, or are reasonably certain to follow, before permitting him to give his opinion as to what the results will probably be. Expert witnesses may not be wiling to state that designated results are reasonably certain to follow. They may desire to go no further than to say that such results will probably follow. We think the evidence in this form is competent, but when the evidence is all before the jury the court must instruct the jury in accord with the law as laid down in Pennsylvania Co. v. Files, supra, viz., that only such damages occurring in the future can be recovered as are shown by the evidence to be reasonably certain to follow.

During the trial it became important for the company to explain its failure to produce the evidence of a nurse who was present at the hospital when Poland signed a written statement as to how the injuries occurred. The company offered to prove by the house physician of the hospital that there was no record kept there of the names or residences of nurses such as the one in question. This evidence was excluded and exception saved. We think the evidence was competent ánd a majority of the court are of opinion that its rejection was prejudicial error.

In the general charge the court instructed the jury as to the duty of the servants in charge of the car after they saw, or by the exercise of ordinary care might have seen, Poland approaching the track. We think the language employed was equivalent to stating the doctrine of the “last chance," and as there was nothing in the pleadings or evidence presenting such a situation, the giving of this instruction constituted prejudicial error.

In the general charge the court instructed the jury with respect to the right of Poland to recover for loss of ability to earn wages in the future. This part of the charge is erroneous in so far as it covered the period of his minority, there being no evidence in the ease tending to show that Poland is entitled to receive and use his own wages during his minority. This question was decided by this court in the ease of Standard Steel Tube Co. v. Prusakicueicz, 33 O. C. C. 133, 139 (15 N. S. 21), decided November 25, 1911, and affirmed, no op., in Standard Steel Tube Co. v. Prusakicueicz, 87 Ohio St. 472.

We can not sustain the claim of the company that the evidence so clearly established contributory negligence as that a verdict should have been directed in its favor. In view of the conflict in the evidence we think the trial court was right in submitting the case to the jury on all questions of negligence and contributory negligence. We do not see the difference urged by counsel for the company between the principles announced in the case of Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. 207; 32 L. R. A. 276], and the case of Cleveland Elec. Ry. v. Wadsworth, 25 O. C. C. 376 (1 N. S. 483), affirmed, no op., Wadsworth v. Railway, 70 Ohio St. 432. It was for the jury to find under proper instructions from the court what the facts were and whether the ease was one falling within the law as stated in the Snell case or the Wadsworth case.

The contention of counsel for the company that there was prejudicial error in permitting one of the physicians to state that Poland’s facial nerve was paralyzed as this was not set up in the pleadings, we think is untenable. The petition alleged a fracture of the skull, concussion of the brain and an impaired and diseased mind, and stated further that the injury was permanent. The physician who stated that the facial nerve was paralyzed testified that that was a direct and natural result of the injury. Even without this last statement of the physician we think the evidence was competent under the pleadings. We cite the following authorities to sustain this position: Stevenson v. Morris, 37 Ohio St. 10 [41 Am. Rep. 481]; Denver & R. G. Ry. v. Harris, 122 U. S. 597 [7 S. Ct. 1286]; B. Shoninger Co. v. Mann, 219 Ill. 242 [76 N. E. 354; 3 L. R. A. (N. S.) 1097]; Tyson v. Booth, 100 Mass. 258, 266; Sloane v. Edwards, 61 Md. 89; Lake Shore & M. S. Ry. v. Ward, 135 Ill. 511 [26 N. E. 520]; Hoyt v. Street Ry. 73 App. Div. 249 [76 N. Y. Supp. 832].

We also cite the case of Hocking Val. Ry. v. Backus, decided by this court February 17, 1912, which was afterwards affirmed, no op.; Hocking Val. Ry. v. Backus, 87 Ohio St. 508.

As the case is to be remanded for a new trial we call attention to requests to charge before argument, numbers 8, 12 and 14, presented by the defendant and given by the court, and also to similar language used by the court upon the same subject in the general charge. These instructions are to the effect that if Poland’s negligence contributed in any degree to produce the injury he can not recover. The words “in any degree” are not used, but the language we think is broad enough to be so construed. Poland was required to use ordinary care for his own safety. Slight negligence on his part might exist consistent with the exercise of ordinary care, and such negligence would not bar his recovery. The contributory negligence that bars recovery must not only directly and proximately contribute to the injury, but it must be such negligence as shows that the party so negligent was not exercising ordinary care for his own safety.

We think the language of the general charge should be more specific as to the care due from Poland. He was fifteen years of age and was required to exercise such care only as boys of his age of ordinary care and prudence are accustomed to exercise under the same or similar circumstances.

We find no errors manifest in the record prejudicial to the plaintiff in error other than as above set forth. The judgment of the court of common pleas will be reversed and the case remanded for a new trial.

Richards and Chittenden, JJ., concur.


author: SHIELDS, J.

text:
    NEGLIGENCE.
    [Richland (5th) Court of Appeals,
    January Term, 1917.]
    Powell, Houck and Shields, JJ.

      S. N. Ford, Recr. v. A. F. Reamsnider.
    1. Evidence of Shortening of Leg Admissible in Action for Mangling and Breaking Same Leg.
    An averment that the plaintiff was injured permanently, his right limb mangled and both bones broken between the ankle and knee, is sufficient to warrant admission of evidence to the effect that as a result of the accident his right leg was shortened.
    2. Erroneous instruction Cured by Subsequent Correct Instruction.
    An erroneous instructoin to the jury that if they find for the plaintiff they will assess his damages at such, a sum as “in their opinion” would be reasonable and -just, is cured by a subsequent instruction which directs the jury, in estimating the amount of damages to be awarded, to take into consideration the nature of the injury sustained and any impairment in earning power.
    [Syllabus by the court.]
    Error.

      McBride & Wolfe and W! S. Kerr, for plaintiff in error.

      Reed & Beach, for defendant in error.

      Motion to certify record overruled, March 6, 1917, Ford v. Railway, 62 Bull. 128.

   SHIELDS, J.

This action was brought in the court of common pleas by A. F. Reamsnider, defendant in error, to recover damages of S. N. Ford, as receiver of the Mansfield Railway, Light & Rower Company, plaintiff in error, for injuries received by him through the alleged careless and negligent operation of one of the cars of the plaintiff in error.

In his petition below the said Reamsnider alleges, in substance after obtaining leave of court to bring suit against the said receiver:

“that on or about October 5, 1914, said receiver was operating the cars of the defendant company on the tracks of said company on South Main street, in the city of Mansfield; that said South Main street is entered at right angles from the east by Granite street in said city, and that both of said streets are public thoroughfares and much used and traveled by vehicles and pedestrians’; that said city at said time had a city ordinance in operation prohibiting the running of street cars in said city at a rate of speed not to exceed eight miles per hour ; that'on said date the said Reamsnider was assisting in hauling large sewer tile with a team and wagon, and proceeding west on said Granite street wúth a load of said tile he observed on reaching said Soüth Main street the north bound car of said defendant company about 500 feet distant; that he did not know and had no means of knowing the speed of said approaching car and believing that those in charge of the same were observing and would observe said speed limit and that said car was not running and would not run at an unusual rate of speed, and the plaintiff having ample time to cross said track with said team and wagon, and while exercising due care and precaution, started to cross the same. That said car thus approaching from the south in charge of the conductor and motorman of the defendant company was running in violation of said city speed ordinance at a high, reckless and dangerous rate of speed, to-wit, from 20 to 25 miles per hour; that said motorman could see said team and wagon crossing into said South Main street from said Granite street and starting across the tracks in ample time to check the speed of said car or stop it and thus avoid collision, but tbe plaintiff says that the said defendant company;, through its agents, carelessly and negligently failed to do so ; that the said defendant company by its agents so negligently drove, run and conducted said car that the same was thereby run and driven against his said wagon, upsetting the same, violently throwing the plaintiff to the street under said tile, whereby he was seriously and permanently injured, to his damage in the sum of eight thousand dollars, for which judgment is prayed. ’ ’

To this petition an answer is filed by the defendant, the first defense being in the nature of a general denial, and, secondly, contributory negligence is averred in this that the injuries, if any were received by the plaintiff, were due to his own fault and negligence directly contributing thereto; that he did not look or listen for the approach of said street car, that he went directly in front of said car without looking or listening and that he took no precaution whatever for his own safety. To which answer a reply was filed by the plaintiff denying the contributory negligence charged. .

Upon trial had the plaintiff recovered a verdict and judgment against the defendant and a petition in' error is filed for the reversal of said judgment.

At the close of the evidence offered by the plaintiff below it appears that a motion Avas submitted by the defendant below, and renewed at the close of the ease, for a directed verdict in favor of the said defendant, which said motion was overruled, and which action of the court below is assigned as error. A reading of the evidence as found in the bill of exceptions fully satisfies this court that under the rule of law making it the duty of the trial court to submit to the jury all disputed questions of fact arising upon the trial of a ease, no error was committed by that court in overruling said motions.

Exceptions were taken to the action of the trial court'in respect to the admission and rejection of certain evidence upon the trial, particularly in relation to the evidence offered by the defendant in error tending to show that as a result of said collision and. accident his one leg was shortened. This evidence was admitted over the objection of the plaintiff in error, and it is eon-tended that the action of the trial court in. so admitting it was prejudicial error. It is certainly not an open question as to wbat the rules of pleading require in stating a cause of action, and that a recovery, if any is had, should be based upon the cause of action stated as a ground of recovery; and where the pleader fails to state his cause of action properly or definitely, the statute furnishes a remedy for relief in such cases. (By referring to the plaintiff’s petition we find that the allegations therein covering his injuries are as follows:

‘ ‘ Th’at said defendant by its' said servants so negligently drove, run and conducted said car as aforesaid; that the same was thereby run and driven against said wagon, upsetting the same, violently throwing plaintiff to the street and under said tile; that the plaintiff was thereby seriously and permanently injured; that his right limb was mangled and crushed, both hones between the ankle and knee were broken and a compound fracture sustained; that plaintiff was confined to his bed six weeks, suffered and is still suffering physical pain and anguish.”

In the foregoing we find the averment that 'the plaintiff was injured permanently, with the added- description of the injury to his right limb. True, the effect of said injury is not expressly stated, but is not the averment that the injury is permanent, sufficient to warrant the evidence offered ? We think it is, but if counsel thought otherwise, it was their privilege, by motion before trial, to have sought further and fuller information of the character and extent of this injury; but having failed to do so and having answered said petition, did not such answer constitute a waiver of any objections thereto because of a want of definiteness, and sufficiency of allegation? We think it did. Further, it would appear that the resultant injury to the right leg, as described in said petition, could not be otherwise through any natural process of reasoning than as described by the defendant in error as the same appears on page 45, and as described by the physician in charge as the sanie appears on page 60 of the bill of exceptions, in describing the effect of said injuries. Taking this view, we hold that thle action of the trial court in admitting said evidence was not prejudicially erroneous, nor do we find any substantial or tenable ground for any other exceptions taken to the admission or rejection of evidence which prejudicially affect the legal rights of the plaintiff in error.

It is vigorously contended that the plea of contributory negligence interposed by the plaintiff in error, and sustained by the evidence, as claimed, should have resulted in a judgment, for the plaintiff in error on the trial in the lower court, and that, the judgment of said court is therefore contrary to law and against the manifest weight of the evidence. In connection with this alleged error is also the claim made by the plaintiff in error that the court below erred in its charge to the jury, especially, on the subject- of damages as the same appears in the last paragraph of said charge on page 116 of the record, wherein said court charged the jury as follows:

“If you find for the plaintiff, you will assess his damages at such a sum of money as, in your opinion, will be reasonable and just compensation for the injuries he sustained. And in assessing his damages if you so find, you are not to take into consideration the fact that he received part pay from the state for his time under the workmen’s compensation law.”

Duty on the part of the jury in fixing damages was certainly not to be determined by the opinion of the jury, but by the evidence. The charge in this respect, if standing alone and without further explanation, would be erroneous, but in the following paragraph on page 117 of the record we think such error was cured by the further and following instruction:

“In estimating his damages, you will take into consideration the loss of time, the physical and mental pain, if any, he has sustained by reason of such injuries, if any, and if you believe from the evidence that plaintiff has not recovered and that his injuries are permanent, and that he will thereafter suffer pain therefrom, and that his ability to labor and earn money will be impaired by reason thereof, the* you will taire that into consideration in estimating his damages.”

Considering said charge as a whole, we do not think it open to the criticism made and we therefore hold that said instruction as the same appears on page 116 of the record when read in connection with the paragraph following is not such error as to justify a reversal of said judgment.

Some little confusion, if not inconsistency, appears in the testimony of the defendant in error in relation to the speed • of the car just before and at the time of the collision and accident. Referring to his testimony on cross-examination, as the same appears on page 47 of the record, it appears he testified as follows:

“Q. Isn’t it a fact that you knew that car was running beyond the speed limit before you drove on the track, and knowing that you drove right in front of it, isn’t that so? A. I can’t say that I knew it was running faster than the speed limit at that time. '
“Q. Will you say that, when you drove on the street ear track, it was running faster than the speed limit? A. I say I thought it was running faster than the speed limit.
! ‘ Q. How long before you drove on the track did you know that it was running faster than the speed limit? A. I knowed it when I first saw it.
“Q. That it was running faster than the speed limit? A._ When we drove on the street.
“Q. You knew them that it was running faster than the speed limit? A. I seen the car coining but I didn’t know whether it was running .faster than the speed limit o<r not.
“Q. Will you say it was running faster than the speed limit or not? A. No.
‘‘ Q. Was it running as fast as the speied limit? A. I don’t know.
“Q. You are not willing to say that it was running faster than the speed limit ? A. No. ”

Whatever the fact concerning the speed of said ear at the time he drove out of Granite on South Main street, to cross the tracks of the plaintiff in error, whether iit was running in excess of the speed limit or otherwise, it was a fact for the determination of the jury, and the fact is undisputed that said car at that time was some 500 feet distant from Granite street where the motorman in charge of said car had an unobstructed view of the track between that point and said street, and where the defendant in error testifies he first saw said car, and at that time anticipating that the motorman in charge of said car would observe the provisions of said speed ordinance, and supposing and believing that he could safely cross the tracks of the defendant ■company before said car approached and reached Granite street, he proceeded to cross the tracks of said company, and was struck and injured by said ear.

Without stopping to analyze the evidence in respect to the speed said car was running, it will be sufficient to state that under the law the defendant in error had a right to suppose, as he was about to cross said tracks, that the motorman in charge of said ear, was running the same within said speed limit, that he would operate the car in an ordinarily careful and prudent manner and that the same was under proper control. The jury were so instructed and properly so, in our judgment, in accordance with the principles of law laid down in the cases of Steubenville & Trac. Co. v. Brandon, 87 Ohio St. 187 [100 N. E. 325]; Mansfield Ry. L. & P. Co. v. Kiner, 35 O. C. C. 175 (17 N. S. 431); affirmed, no op., Ford v. Kiner, 89 Ohio St. 463; Harris v. Electric Ry. 36 O. C. C. 582 ( 19 N. S. 410).

Oounsel for plaintiff in error contend that the eases cited are to be distinguished from and are unlike the ease at bar because the facts appearing therein are different from the facts appearing in the case before us, and therefore the rule of law declared in said cases does not apply here, but in this contention we disagree with counsel.

The facts in the/case were before the jury, they were passed ■on by the jury,- under instructions by the trial court, and while technical errors may have occurred in the proceedings of the trial as well as in the charge of said court, after reviewing the evidence and the circumstances appearing- in the record in said) case, including said charge, We are of the opinion that no such error intervened as to work injustice to the legal rights of the plaintiff in error and that substantial justice has been done between the parties hereto. Way v. Langley, 15 Ohio St. 392; Northern Ohio T. & L. Co. v. Jenkins, 36 O. C. C. 30 (19 N. S. 602).

It follows that the judgment of the court of common pleas will be affirmed. Exceptions.

Powell, and Houck, JJ., concur.


text:
    SALES — WORDS AND PHRASES.
    Hamilton (1st) Court of Appeals,
    February 5, 1917.]
    Jones, Jones and Gorman, JJ.
    Romeo & Company, Inc., v. Elias Nassif and George Nassif, Partners Under the Firm Name of Nassif Bros.
    1. Affidavit Under Bulk Sales Law Requires All Creditors Listed.
    Sections 11102 G. C., et seq., the bulk-sales law, require a list of all creditors to be furnished to the purchaser, or an affidavit that the seller has none.
    2. “Creditors” in Buik Sales Law Comprise Ail Creditors.
    The term “creditors,” as used in Sec. 11102, G. C., refers to no-particular class, but to all creditors of the seller.
    Appeal.

      Matthews <& Matthews, for plaintiff.

      Cogan, Williams & Ragland, for defendant.
   JONES (O. B.), J.

This is an action to have a purchaser of a stock of goods sold in bulk declared a trustee, and for the appointment of a receiver and. the sale of said property for the benefit of the creditors. The case is predicated upon Secs. 11102, 11103 and 11103-1 G. C., as amended 103 O. L. 462. It was brought into this court by appeal.

A motion has been filed to dismiss this appeal on the ground of want of jurisdiction. Defendants contend that, as the cause of action arises because of the statutes alone, it was entirely unknown to the'English chancery practice and therefore is not appealable. They rely particularly upon the case of Hollowell v. Schradin, 38 O. C. C. 597 (26 N. S. 97), in which the-majority of the court hold an action to foreclose a mechanic’s-lien not to be appealable.

The bulk-sales statute, however, is based upon and is an outgroytb of the equitable doctrine of fraudulent conveyances, long known in equity jurisprudence and always the subject of' chancery jurisdiction. Like the matter of partiitiota. it may be providéd for by statute and yet not lose its equitable character.

The Supreme Court has fully considered and discussed the jurisdiction of this court in appeal cases in Wagner v. Armstrong, 93 Ohio St. 443 [113 N. E. 397], and Manning v. Lakewood, 94 Ohio St. 85 [113 N. E. 661]. Under these eases, we are of the opinion that this action is appealable, and the motion to dismiss the appeal is therefore overruled.

The constitutionality of the bulk-sales law was upheld in Steele, H. & M. Co. v. Miller, 92 Ohio St. 115 [110 N. E. 648].

The only question presented here is the sufficiency of the affidavit made by the seller, Dominick Sgro. It is in the following terms:

“Dominick Sgro, of lawful age, being first duly cautioned and sworn, deposes and says that he is the owner of the store and the stock, fixtures, etc., contained therein, located at the northwest corner of Richmond street and Central avenue, Cincinnati, Ohio; that this affiant at the present time has no creditors on account of any goods sold, supplied or delivered to said place of business; that said store, stock, fixtures, etc., are free from mortgages, liens and all .claims whatsoever; that this affiant in and about the conduct of said business has no creditors and that all indebtedness against him on account of the conduct of said business has been settled and satisfied,”

Section 11102 G. C., as amended, provides:

‘ ‘ The sale * * ° in bulk, of any part or the whole of a stock of merchandise * ° * otherwise than in the ordinary course of trade and in the regular and usual prosecution of the business of the sellers * * ;s shall be void as against the creditors of the seller * * * unless the purchaser * * * demands and receives from ' the seller * * * a written list of names and addresses of the creditors of the seller *" * * with the amount of the indebtedness due or owing to each and certified by the seller * * * under oath- to be a full, accurate and complete list of his creditors, and of his indebtedness; * *

Strict compliance with this statute is necessary.

It will be observed that the parties to the sale made an attempt to comply ivith it. The affidavit, however, is not in broad terms that the affiant has no creditors, but is only to the effect that he “has no creditors on account of any goods sold,” etc., and that affiant “in and about the conduct of said business has no creditors, ’ ’ etc. This limits the affidavit to trade creditors, to those connected with that business. This fails to comply with the statute which puts no such limitation as to the “creditors” of the teller. At the bottom of page 127, Johnson, J., in the opinion of the court in Steele, H. & M. Co. v. Miller, supra, says:

“It affects all within the class of creditors of such merchants.”

It is clear that creditors outside of the particular trade are interested in the subject, as they well might give credit because of the existence of that business.

As stated by the court in Steele H. & M. Co. v. Miller, supra, the Ohio statute is a substantial copy of that of Michigan. There the law has frequently been considered by the Supreme Court, In People’s Sav. Bank v. Van Allsburg, 165 Mich. 524 [131 N. W. 101], it was held that this statute “applies to no particular class ■of creditors, but to all of the creditors of the seller.” Another case where the affidavit was helol insufficient is that of Interstate Shirt & C. Co. v. Windham, 165 Mich. 648 [131 N. W. 102].

The seller having failed to comply with the requirements of the statute in this case,- the defendants must be held to be trustees for the benefit of the creditors:

A decree may be taken, and the case will be remanded to the common pleas court for its execution.

Jones (E, H.), and Gorman, JA, concur.


author: RICHARDS, J.

text:
    CRIMINAL LAW — OBSCENE PICTURES.
    [Huron (6th) Court of Appeals,
    December 18, 1916.]
    Richards, Kinkade- and Chittenden, JJ.

      Wilbur J. Charville v. State of Ohio.
    1. Necessary Averments of Indictment for Sale of Obscene Photograph.
    The rules of criminal practice require that an indictment charging the sale of an obscene, lewd and lascivious photograph should set forth a copy thereof, or give such a description as; decency permits and aver that the photograph is too obscene for further description or recital.
    2. Failure to Give Copy or Proper Description of Obscene Photograph While Defective, is Defect Within Curative Provisions not Requiring Reversal.
    An indictment for this offense which does not give a copy of the obscene photograph, nor an excuse for its omission, is defect- ' ive, but such defect is within the curative provisions of Sec. 13581 G. C., and a judgment of conviction will not be reversed where such defect does not prejudice the substantial rights o£ the defendant on the merits,
    [Syllabus by the court.]
    Error.

      A. M. Beattie, for plaintiff in error.

      Irving Carpenter, Pros. Atty., for defendant in error.

      Motion for leave to file petition in error overruled. 62 Bull. 80.

   RICHARDS, J.

At tbe April term, 1916, "Wilbur J. Cbarville was indicted by the grand jury of Huron county, the indictment containing two counts. The second count of this indictment charged him with unlawfully and knowingly having in his possession on March 15, 1916, for the purpose of selling, and with then selling to one Arthur C. Link, eight obscene, lewd and lascivious photographs. The first count of this indictment was the same as the second except that the charge described the articles as pictures instead of photographs.

The defendant filed motions to quash the different counts of the indictment, and, on these motions being overruled, he excepted and filed demurrers to the several counts of the indict-went, and, on these demurrers being overruled, he was placed on trial and was convicted under the second count of the indictment and sentenced thereunder.

He now prosecutes error to this court, contending that- the court erred in overruling the motions to quash the indictment, and likewise in overruling the demurrer thereto. No bill of exceptions was taken and the case is submitted to this court solely on the exceptions to the judgments rendered on the motions and demurrers as aforesaid.

It is claimed that the indictment is bad for duplicity, and because it fails to show how the articles mentioned were sold, and because'it does not contain a copy of the photographs nor any facts showing that they were either obscene, lewd or lascivious.

We have no hesitancy in reaching a conclusion that the in-, dictment is not objectionable on either of the first grounds stated. It is not justly subject to the charge of duplicity; nor is it lacking in certainty for failing to state in detail how the photographs were sold.

The criticism on the indictment that it contains neither a copy of the photographs nor any averments showing how the same are obscene, lewd or lascivious, and no excuse for failing to make such an averment, is not so easily disposed of. It is quite true that the rules of pleading in criminal cases of this character justify omitting from indictments obscene allegations, but it appears to be equally true that the necessity for such omission should be set forth in the indictment in order to make the same technically in compliance with the law. If a copy of the photographs is not given, good pleading would require that such a description should be given as decency permits, and then the indictment should contain an averment that the photographs are too obscene or lewd or lascivious for further description or recital. This rule, in substantially this form, has been the almost uniform practice for many years in this country, and is stated so recently as 1913 in Bishop’s New Criminal Procedure (1913 Ed.) Sec. 496. See also, 8 R. 0. L. 317, Sec. 344.' Occasionally here and there may be found a case which has broken over tbe rule as stated, but tbe great current of authority is in accordance ydth tbe principle announced.

It was under consideration by tbe Supreme Court in State v. Zurhorst, 75 Ohio St. 232 [79 N. E. 238; 116 Am. St. 724; 9 Ann. Cas. 45], Tbe indictment in tbat case contained an averment tbat tbe printed matter was so indecent and immoral that it would be offensive to tbe court and improper to be placed upon tbe records thereof, and the indictment was sustained by tbe Supreme Court.

Tbe indictment in tbe case at bar fails to contain any such averment. We must therefore reach tbe conclusion that it is defective and justly subject to tbe criticism made against it.

Having reached this conclusion, it does not necessarily follow tbat tbe judgment mu&t be reversed and tbe defendant discharged. Tbe records of the courts contain cases.where violators of tbe criminal law have gone unwbipped of justice because of technicalities which in no wise affected the substantial merits o£ the case or resulted in prejudice to tbe defendant. To avoid this evil tbe general assembly of Ohio, as early as 1869, in adopting the code of criminal procedure for the state, enacted in See. 90 of act 66 O. L. 301, a provision intended to obviate the evil mentioned. This section as then enacted is substantially the same as is now known as Sec. 13581 G-. C. It enumerates a large number of defects which shall not be deemed to make an indictment invalid, and contains in addition the general statement that the indictment shall not be held invalid “for other defects or imperfections which do not tend to prejudice the substantial rights of the defendant upon the merits.”

Therefore, even though the indictment is defective for the reason already stated, the question remains whether such defect is one which tends to prejudice the substantial rights of the defendant. No question is or could be made but that the indictment would be valid if it contained an averment that the obscene, lewd and lascivious photographs were too obscene to set out or to further describe. Is the omission of that averment in the indictment so prejudicial to the substantial rights of the defendant as to require a judgment of reversal? We are unanimously of the opinion that it is not. If the averment .were in the indictment, it necessarily would not advise the defendant of anything which he did not already know. The indictment mentions eight particular photographs which were obscene, lewd and lascivious and were on a specific day named sold by the defendant to Arthur C. Link. In view of the substantial sentence-in this case of a fine of one thousand dollars and imprisonment for not exceeding five years, it is evident that the trial court believed'the photographs were of such a character as would have merited the averment.

The section of the General Code under consideration has been many times cited and construed. It, will only be necessary to refer to. one or two of the cases. In Lynch v. State, 37 O. C. C. 189 (23 N. S. 230), the nature and character of the instrument with which the- homicide was committed were not particularly described and it was held that this defect did not prejudice the substantial rights of the accused and did not invalidate-the indictment.

In Tingue v. State, 90 Ohio St. 368 [108 N. E. 222], the-section was quoted in full in the opinion of the court, the Supreme court, announcing in the syllabus that a mistrial should not be ordered simply because some error had intervened, but that the error, to justify such holding, must prejudicially affect-the merits of the case and the substantial rights of the defendant.

Whether the substantial prejudice statute could be applied to a ease where the indictment charges the use of obscene and licentious language and an infirmity exists therein similar to-that in the case at bar, need not be determined. An indictment charging such offense without setting out the language and without giving an excuse for the omission, was held bad by the common pleas court in Hummel v. State, 10 Dec. 492 (8 N. P. 48), apparently without giving consideration to the section of the general code to which reference has been made. The certainty and precision manifest in photographs and the uncertainty of the human memory in recalling oral statements are facts patent. to all.

In view of the fact that no bill of exceptions was taken, an interesting question has arisen which we deem it unnecessary to-decide, namely, whether the court might not be justified in assuming, in favor of the regularity of the judgment, that on the trial of the case the defendant himself may have made such admissions or statements, or offered such evidence, or permitted the state to prove, without objection, such matters as would have cured the defects in the indictment.

We hold that while good pleading would have required that the indictment contain a copy of the photographs, or such description of the same as decency would permit, or an averment that the same were too obscene for recital, yet such failure was not in this case prejudicial to the substantial rights of the defendant.

The judgment will, therefore, be affirmed.

Chittenden and Kinkade, JJ., concur.