text:
    PHYSICIANS AND SURGEONS.
    [Hamilton (1st) Circuit Court,
    June 5, 1909.]
    Giffen, Smith and Swing, JJ.
    State ex rel. Gaines v. State Medical Board et al.
    Mandamus does not Lie to Compel State Medical Registration Board to Hold Examination at Places Designated by Statute and Times Fixed by Court.
    Act 99 O. L. 492 (Gen. Code 1273), prescribing the places for holding of examinations by the state board of medical registration for admission to the practice of medicine and surgery, being silent as to the time when examinations shall he held in the designated places, the duty of fixing times and places reposes in the board in the first instance; and, in the absence of abuse of discretion shown on the part of the board as to which, mandamus will not lie to compel the board to hold examinations in any place so designated and at the time prayed for by relator.
    The petition alleges that the relator, Benjamin Gaines, is a resident of the city of Cincinnati, in the county of Hamilton and state of Ohio, and is a duly matriculated student of the Ohio tyledieal College of the University of Cincinnati, where he has been pursuing his studies for ‘four years.
    That he has complied with all the rules of said college and university and with all the requirements of the law of Ohio relative to students of medicine and surgery, and is now entitled to enter upon his final examination for graduation from said college and university and for his professional degree, and to be examined for his certificate or license to practice medicine in this state, under the law of Ohio. .
    That the defendant, the State Medical Board of Ohio, is an official body of this state, whose duty among other things is to hold examinations for certificates or licenses to practice medicine and surgery within this state of all proper applicants for such examinations; such examinations to be held in the cities of Cincinnati, Cleveland, Columbus and Toledo.
    Eelator complains that said board and individual respondents have fixed and prescribed, under the laws of Ohio, an examination to be held in the city of Columbus solely and exclusively on June 8, 9, and 10, 1909, and have so notified the relator and other medical students in the said city of Cincinnati and vicinity thereto, and. have failed and refused to fix and prescribe such an examination under said law in the city of Cincinnati on such dates or any other date or dates reasonably near thereto and still fail and refuse so to do, although requested so to do by relator and others entitled to such/examination in the city of Cincinnati.
    Relator states that said action on the part of the board will entail upon him and many other medical students in the same situation with him in the city of Cincinnati and throughout the state of Ohio great vexation and expense, requiring the relator and them to journey to and from Columbus, Ohio, from great and unreasonable distances therefrom, and pass there several days in taking said examinations; that said action on the part of respondent is arbitrary and discriminating against the relator and others in the same situation with him under said law; that an examination held at Cincinnati, Ohio, under said law at any other time or times than on said dates June 8, 9 and 10, 1909, or other date or dates reasonably near thereto, would be an unjustifiable discrimination and hardship against the relator and others in the same situation with him under said law of Ohio, in that it would require him and them to present themselves for such examinations long after the close of their medical college course, and is without legal justification and is contrary to the law. .
    Relator further says that he is without any adequate remedy at law.
    Wherefore, your relator prays that a writ of mandamus may issue out of this court to the said board, and to the individual members thereof, requiring it and them to hold said medical examinations as required by the law, of Ohio, in the city of Cincinnati, on June 8, 9 and 10, 1909, or other date or dates reasonably near thereto, or to show cause to this court at a date to be fixed for refusing to do so.

      Sanford Brown, for relator.
   GIFFEN, P. J.

Section 30 of act 99 O. L. 492 (Gen. Code 1273), “To revise and consolidate the laws relating to the powers and duties * * * of the state board of medical registration and examination” provides as follows:

"The examinations of applicants for certificates to practice medicine or surgery shall be conducted in the cities of Cincinnati, Cleveland, Columbus and Toledo, under rules prescribed by the state medicine board.”

This provision needs no construction to determine that it is the duty of such board to cause an examination to be conducted in the city of Cincinnati as well as in Columbus; but the act is entirely silent as to when it shall be done, and hence a reasonable time will be implied, which must in the first instance be determined by the board from all the circumstances of the case. State v. Barberton (Bd. of Ed.), 76 Ohio St. 297 [81 N. E. Rep. 568; 10 Ann. Cas. 879].

It may be assumed that said section was intended to accommodate students of medicine completing the course of instruction in or about the respective cities-named — not a particular class, but the student body of each city and vicinity. There is no allegation in the petition when the current school year ends at the Ohio Medical College of the University of Cincinnati, or at any other college if there be such in or near the city. Nor is the pleader aided by the averment of the conclusion that, the relator and others in the same institution with him would be required to present themselves for examination "long after the close of their medical college course.”

The welfare of the majority is superior to that of a minority, and there is no allegation in the petition that all or a majority of the Cincinnati students are demanding or would be benefited by an examination on June 8, 9 and 10 or near thereto. How then can we say that the board has abused the discretion vested in it and grant relief, when the rule of law justifying interference by the courts requires that such abuse be clearly shown? Sycamore (Bd. of Ed.) v. State, 80 Ohio St. 133 [88 N. E. Rep. 412].

It may be that a majority of such applicants may prefer to and will attend the examination at Columbus on the days named, and while this result would not relieve the board from holding an examination in Cincinnati, it would have much weight in determining whether the board had abused its discretion in declining to hold it on or about June 8, 9 and 10.

We are constrained to hold therefore that the allegations of the petition fail to show a clear abuse of discretion and do sustain the motion to quash the alternative writ.

Smith and Swing, JJ., concur.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    WILLS — DESCENT AND DISTRIBUTION — WORDS AND PHRASES.
    [Pike (4th) Circuit Court,
    May Term, 1905.]
    Jones, Walters and Cherrington, JJ.

      Ethel McDaniels et al. v. Frank M. Hayes.
    1. “Heirs” not a Word of Limitation, when.
    A testator whose only issue was two sons, both of whom survived him, by “item 1” of his will devised to them certain real estate, and by “item 3” provided that “if either of my said sons should die before the decease of my said wife, then the share of said deceased son shall go to his heirs”; one of the sons died before the mother. Held, -«the word “heirs” in “item 3” is. not a word of limitation, and upon the death of the son his share of the realty went to his surviving brother. Whether such share would have gone to the children of the deceased brother under the rule in Shelly’s case, quaere.

    2. Vested Remainder under a Will Vests, when.
    A vested remainder in fee simple in each of the two sons of testator, which either may convey during his lifetime' subject to the life estate of the mother, under a will devising all the estate to the wife if she survives testator, and after her death the property to go to the two sons.
    8. Word “Shares” Refers to Residuary Estate, when.
    The word “share” as used by the testator m “item 3” of the will involved in this case, refers to the residuary estate mentioned in item 2, and not to the specific devises made in item 1.

      J. M. Sanderson, and J. D. Post, for plaintiff in error.

      F. E. Dougherty, L. B. Moore, and Eylar & Douglas, for defendant in error.

      Affirmed, no on. McDaniels v. Hays, 74 O. S. 515.

   JONES, J.

This case was brought on error into this court from the court of common pleas. The petition in the court below was filed by the three children of Isaac W. Hays, asking for the recovery of certain real estate claimed to set aside the deed that Frank M. Hays had received from Isaac W. Hays, or to have the court of common pleas pronounce it null and void.

The title of the defendant rests upon the construction of the will of one James W. Hays, who died in May, 1895, leaving a will that was executed in 1890, and a codicil thereto which was executed in 1895. The petition sets forth a portion of said will sufficient to have the court’s construction as ‘to the title of the property in question.

The petition alleges that by the terms of “item 1” of this will, James W. Hays gave to his wife, Aurilla Hays, certain real, and personal property during her life. That what is termed the home farm, consisting of two tracts of one hundred acres and ninety-three acres, respectively, was given by the provision of “item 1” to his two sons, Frank M. Hays and Isaac W. Hays, the petition setting forth the terms of that item, as well as the two following items of that will. ’

' The petition alleges that by “item 3” of the will, the testator provided that if either of his said sons should die before his said wife, then the share of said deceased son shall go to his heirs. It appears that Isaac conveyed the ninety-three acre tract, or attempted to convey the same, to his brother Frank, February 25, 1901. That on June 7, 1901, Isaac W. Hays predeceased his mother, who died in August, 1904, so that the question arises in this case whether or not under the terms of this, will Isaac W. Hays had such vested interest devised to him by “item 1,” that he could convey the same. Or if he died before his mother whether he had any interest that he could convey?

A demurrer was interposed to the petition in the common pleas court and was sustained, and it is to the action of the lower court in sustaining that demurrer that error is predicated here.

The will of the testator, James W. Hays, has been attached to the petition as an exhibit, and made a part of the pleading. The first contention of the defendant’s counsel is, that the technical word “heirs” contained in “item 3” of this will is a word of limitation merely, and, that the property given to Isaac W. Hays, in the prior item of the will, is a vested interest. Without discussion it is sufficient to say that the word “heirs” used in “item 3” of this will, is not a word of limitation. It is true these technical words may be sometimes construed as words of limitation, but in this will there is no question in our minds, but that in the event of the death of Isaac W. Hays, before his mother, then the property referred to in “item 3” reverted to his heirs, or in this case, to his children. “Item 3” reads:

“If either of my said sons should die before the decease of my said wife, then the share of said deceased son shall go to his heirs.”

It was the devise of the testator in “item 3,” in the event of the sons’ dying before the mother, the property was to become the property of the children. Had this will been prepared prior to 1840 before the rule in Shelley’s ease was abrogated, as to wills, the claim of the counsel for the defendant in this case might probably be sustained.

It is claimed by the -plaintiffs, the children of Isaac W. Hays, that there is no vested remainder; or if so, that it was divested by “item 3.”

“Item 1” of the will gives to the testator’s wife, Aurilla Hays, all of his property wherever situate, and at his death or after her death, if she survives him, the testator devises the one-hundred acre tract to Frank M. Hays and the ninety-three acre tract to Isaac W. Hays. This would create a vested remainder. And if there is nothing else in this will divesting the property given in “item 1,” Isaac W. Hays and Frank M. Hays have such a vested interest therein that they could convey.

Now then in considering the will in view of what I have said, does “item 1” convey a vestéd remainder in these two tracts of land, or especially in the tract mentioned in this case, namely, the ninety-three acre tract of Isaac W, Hays; and does “item 3” take away or cut down such interest as may have been vested in Isaac W. Hays ? ‘ Item 1 ’ ’ reads as follows:

“At the death of my'said wife, or in the event she shall again marry, or if I survive her, then at my death, I give and devise the farm on which I reside, containing one hundred and ninety-three acres, more or less, being in two tracts, one of one hundred acres and the other of ninety-three acres, to my two sons, Frank M. Hays and Isaac W. Hays, in the following manner, to wit: the said one hundred acre tract, a part of said home farm as aforesaid, I give to my said son, Frank M. Hays, together with the right to use the cribs and stable standing on said ninety-three acre tract, in common with his brother, Isaac W. Hays. The said ninety-three acre tract being commonly known as the ‘Prather Tract’ and on which my residence: stands, I give to my said son, Isaac W. Hays, subject to the use of said cribs and stable given to his brother, Frank M. Hays.”
“I give the exclusive use to a certain granary in said crib on said farm of ninety-three acres to my said son, Frank M.. Hays; the rights hereby given to my said two sons, I wish them to have so long as they own said farms. ’ ’

Taking that item itself, we have no question but that this item gives a vested remainder to the two sons, and that under the ordinary rules governing the construction of wills, Isaac "W. Hays would have the remainder in fee simple. And having a vested remainder, he would have a right to sell the farm or-to deal with it as his own, subject to the life estate of his mother. It is claimed that the words “following manner,” referred to in this item, referred to the property given in “itemsi 2 and 3.” Evidently the testator intended to refer to the granary and the stables and the manner they should be used! “I give and devise the farm containing one hundred and ninety-three acres to my two sons, Frank M. Hays and Isaac W. Hays, in the following manner, to wit:” And then defining the manner in which they were to be used. Frank was to have the use of certain buildings upon the ninety-three acre tract devised to Isaac W. Hays. It is to this use we think these, words referred.

The contention arises upon “items 2 and 3” of this will. “Item 2” provides that at the death of the testator’s wife, or in the event that she should marry again, or if the testator survive, then at his death he bequeaths the real estate and chattels to his two sons, “share and share alike.” Or if he should thereafter make an advancement, then an account •should be taken of the advancement made to his sons, and that a balance should be struck, so that one should have a lien upon the undivided interest of the other provided in item 2.

“Item 3” reads as follows:

“If either of my said sons should die before the decease of my said wife, then the share of said deceased sons shall go to his heirs.”

The crucial point in the ease, the main and only question in the case in our judgment, is what was the intention of the testator when he used the word “share” in “item 3”? Did he refer to the entire bequests devised to his children, or did he refer to the residue named in “item 2” of the will?

Taking the will by the four corners, we have given to the will the construction that the word “share” must refer to the property described in “item 2.” The reading of “item 1” would bear this conclusion.

Now, he has devised specifically. The testator has given to Frank the one hundred acre tract, and the ninety-three acre tract to his son Isaac. The division of the one hundred and ninety-three acre farm has been consummated in “item 1.” ITe had disposed of that property.

The testator then takes up another matter, the residuum of the estate, the two farms, the “Hill Farm” and “Fayette County Farm” and a certain amount of personal property. He devises this residuum “share and share alike,” and in this Item is the only place that “share” is found excepting in “item 3” of the will. He refers to it as an “undivided interest,” but he cannot refer to the personal property, because he Is unable to say what would be the share upon distribution, because of the fact that advances on security debts may have .been made. So that it would be very proper to refer to the residuum — as the “shares” of the two sons in this property. Having made a specific division of the homestead into two farms, it is very evident that Isaac W. could have no “share” in Frank’s farm, and that Frank could have no “share” in the ninety-three acre tract of Isaac W. Hays. But a share could be had in “item 2” of this will, because the residuum could come under the provision that the other two farms should be sold for the payment, of the debts, and he might have had in his mind the “shares” that might come into the hands of the executrix.

Then if “item 3” had been stricken out of the will, or if we may consider it as a part of “item 2” (as it follows immediately after “item 2,”), there can be no doubt but that the “share” referred to is the share named in “item 2.” Their coming so closely together leads us to believe that they were considered as a part of one another. Again he referred to said share as “the share.” “If either of my said sons should die before the decease of my said wife, then the share of my said son shall go to his heirs.” What share was “the share” that he referred to, if not the share mentioned in the clause preceding, known as “item 2” of the will?

Then again, from the will it appears that the testator had set apart this home farm for his two sons. In the will he refers to the farm in the following terms: “that the rights .hereby given to my said two sons, I wish them to have so long as they own said farms.” And later in the codicil of the will, drawn five years after this will, he has referred to one of these farms bequeathed to Frank, as the one that he had “specifically devised to Frank M. Hays.” And necessarily he has provided, and has evidently thought, that he wanted to make a change of the stable for the convenience of his two sons, and has provided that a suitable stable shall be erected on that part of said farm “specifically devised” to his said son, Frank M. Hays. And’he has provided that a crib that stands on the ninety-three acre tract be removed, i. .e., “to remove thirty feet of the crib that stands on the east side of said 93 acre tract and place it on the most suitable location on the farm devised to my said son, Frank M. Hays.”

Throughout the will we think it was the intention of the testator when he used the word “share” in the way that he-did, to nse it in connection with the residuum alone. This is our construction, and we think that we are aided by the cases-, that have been cited from Connecticut and Virginia. In the case of Turner v. Balfour, 25 Atl. Rep. 448 [62 Conn. 89], there was a specific devise to the devisee of the real estate-known as the Geer house to a grandson, Robert Balfour. Item 10 following, provided that:

“After the payment of my said debts and funeral expenses; and the preceding legacies and devises, I give, devise and bequeath half the rest and residue of my estate, of whatever-kind and wherever situate, to my son, David Balfour, to have and to hold the same during his life, and at his death his share-goes to my grandson, Robert Balfour, to him and his heirs forever. The other half of said rest and residue of my estate I give, devise and bequeath to my son, Thomas Balfour, to him and his heirs forever.”
“Item 11. In ease my said grandson, Robert Balfour, dies leaving no issue, I give, devise and bequeath his share,, above indicated, to my six children, share and share alike.”

Now in that case, the court has held that it refers only to-the residuum, and does not relate back so as to include Robert Balfour’s. The judge in deciding this case lays down, as one of the rules of construction, that when in the contents of a will a word has been used in a particular manner as is found, to have been used by the testator, it is to have the same meaning when used in another part. To use the language of the judge, I will give a quotation as follows, page 449:

“It is a familiar rule of construction that when a word is; used in one part of a will with a certain meaning, it is to have-the same meaning in other parts of the will unless the context shows that it must have a different one. We are led, then, to believe that when the testator used the word ‘share’ in the eleventh paragraph of his will he intended precisely the same-thing that he had indicated by that word in the tenth paragraph, — that is, an undivided half of the rest and residue of his estate, — and that he did not intend the share mentioned in the eleventh paragraph to include the devise to Robert in the-ninth paragraph of the will. The meaning of the word ‘share/ the rule of construction, and the words of the will, all concur to bring us to the same conclusion.”

Now in the will of James W. Hays, he had taken the residue and created a “hotchpotch,” which he had given to his sons, or what would be left after his debts were paid. The word “share” immediately following in “item 3,” we think both on principle and authority, that the rule should apply that he used the word in a similar sense, as he did in “item 2”. of the will. Ordinarily the word “share” applies to personal property.

It is one of the rules of construction, that when an estate has been devised clearly and explicitly by the devisor, then before that estate can be cut down, the clause cutting it down must be clear and unambiguous as the clause making the devise. And is that true here? There is some ambiguity in “item 3” of this will. There must be clear and unambiguous terms to cut down the interest conveyed by the testator; that hasn’t been done in this case, and we think that is one of the rules of construction that could be applied in the case here. In the ease of Barksdale v. White, 69 Va. (28 Gratt.) 224 [26 Am. Rep. 344], in his opinion, Judge Christian quotes this rule of construction, laid down by Judge Roane in Mooberry v. Wayre, 8 Va. (2 Munf.) 463, namely:

“After having dismissed one subject, and taken up another, he will not be construed to have resumed the former, unless his expressions to that effect be clear or unequivocal.”

By “item 1” of the will the testator had devised the home farm to his two children, and the subject was never again taken up either by “item 2 or 3” of the will. This rule of construction applies here, that the testator having devised the home farm and not again referring to it, had intended to dispose of a vested interest in the property, and hence it is not affected by “item 3” of this will.

We think that the court of common pleas in giving a vested interest to the defendant, Frank M. Hays, did not err, and. the judgment of the court will be affirmed without penalty, and the entry may be so made.

Cherrington and Walters, JJ., concur.


author: GIFFEN, J.

text:
    COURTS — GUARDIANS.
    [Hamilton (1st) Circuit Court,
    1908.]
    Giffen, Smith and. Swing, JJ.
    Ellis B. Gregg, Guardian, v. Ralph and Edith Klein, Minors, et al.
    Common Pleas Cannot Entertain Appeal on Partial Determination op Probate Court on Guardian’s Account.
    The common pleas acquires no jurisdiction on appeal so long as an item of an account of a guardian remains undetermined, that being within the exclusive jurisdiction of the probate court under R. S. 524, 6467 (Gen. Code 10492, 11206).
    Error to common pleas court.
    Ellis B. Gregg, as guardian, filed an application in the probate court for allowance of compensation as attorney for himself as guardian in defending litigation concerning real estate in which his wards had an interest, which litigation was not then and is not yet terminated. The probate court allowed him compensation for ordinary services, but'expressly continued so much of said -application as related to attorney’s fees in the real-estate litigation until the final result thereof. Appeal was taken to the common pleas court, which court, sua sponte, appointed a guardian ad litem, who filed a motion attacking its jurisdiction to entertain said appeal, for the reason that the order appealed from was not a finality, and if it were it was not the settlement of the guardian’s account. The motion was granted in part and overruled in part and the court retained for hearing so much of the appeal as related to the allowance for ordinary compensation.
    Error was prosecuted to this court, and at the hearing, which was more than four months after the final order on said motion in the common pl$as, the guardian ad litem on behalf of his wards asked leave to file a cross petition in error attacking the jurisdiction of the common pleas on the same grounds set forth in his motion to dismiss the appeal. Objection was made by the plaintiff in error to the filing of this motion on the ground that the four months had elapsed.

      Ellis B. Gregg and Wm. F. Fox, for plaintiff in error.

      Harry B. Wéber, guardian ad litem, for defendants in error.
   GIFFEN, J.

Upon application to the probate court by the plaintiff in error as guardian for an allowance for extraordinary services including those as attorney at law, the same was granted in part, and continued in part until the litigation in which the services were rendered was fully determined.

' On appeal by the guardian to the common pleas court, a motion by the guardian ad litem to dismiss the appeal was sustained as to so much of the application as was not finally determined by the probate court, and overruled as to the residue. To the judgment granting the motion in part the guardian prosecutes error, and the guardian ad litem asks leave to file a cross petition in error assailing the jurisdiction of the common pleas court.

There are two reasons for holding that the common pleas eourt acquired no jurisdiction:

First, there was no final determination of the application by the probate court.

Second, when finally determined the allowance or disallowance would not be a settlement of the guardian’s account within the meaning of R. S. 6407 (Gen. Code 11206).

Under R. S. 524 (Gen. Code 10492) the probate court has exclusive jurisdiction to settle accounts of guardians, and so long as any item of such account remains undetermined or for good cause should be continued, the account itself is not settled, and the common pleas court acquires no jurisdiction by appeal. The record discloses no abuse of discretion by the eourt, and if it did, the remedy would be by mandamus compelling the court to act.

Again even had the court finally passed upon each item of extraordinary services set forth in the application, and made' an allowance to the guardian, it would not have been a settlement of the guardian’s account within the meaning of the statute, but only a determination of certain items which could properly be stated in the account when filed, and subject to exceptions by others interested in the settlement of the estate. McMahon v. Ambach, 79 Ohio St. 103 [87 N. E. Rep. 1138].

The cross petition in error of the guardian ad litem, may be filed, the judgment of the common pleas court reversed, and the cause remanded to that court with instructions to dismiss the appeal for want of jurisdiction.

Smith and Swing, JJ., concur.


author: DUSTIN, J.

text:
    CARRIERS — DISCRIMINATION—INJUNCTION — RAILROADS.
    [Franklin (2nd) Circuit Court,
    January Term, 1905.]
    Dustin, Sullivan and Wilson, JJ.
    Quinn Coal Co. v. Hocking Valley Ry.
    Railroad must not Discriminate between Shippers in Laying Sidetracks and Making Switch Connections.
    Where a railroad company, operating as a common carrier of freight, adopts as a part of its business policy any advantageous facility for handling its freight, such as laying sidetracks and making switch connections for coal shippers whose mines are located along its line of road, it must not discriminate between different shippers with respect to such facility, but must afford it equally to all; and injunction will lie to prevent such discrimination, and to compel an equal service to all.

      M. B. Barnhart, for plaintiff.

      J. H. Hoyt, Boyle c& Lewis and C. O. Hunter for defendant:
    Cited and commented upon the following authorities:

      Harp v. Raihvay, 118 Fed. Rep. 169: Northern Pac. Ry. ' v. Washington Territory, 142 U. S. 492 [12 Sup. Ct. Rep. 283; 35 L. Ed. 1092] ; Atchison, T. & 8. F. By. v. Bailway, 110 U. S. 667 [4 Sup. Ct. Rep. 185; 28 L. Ed. 291] ; Missouri Pac. By. v. Nebraska, 164 U. S. 403 [Í7 Sup. Ct. Rep. 130; 41 L. Ed. 489] ; People v. Bailway, 57 111. 436.
   DUSTIN, J.

Plaintiff eommeneed its action by filing the following petition, to wit:

‘ ‘ The said plaintiff is a partnership formed for the purpose of doing business in the state of Ohio under the name of the Quinn Coal Company, and is engaged in the business of mining and selling and shipping coal, and in pursuance of its purpose and business has purchased and now owns in Wilkesville township, Vinton county, state of Ohio, a tract of 150 acres of coal lands underlaid with two veins of four and one-half foot coal, the said lands lying along and adjacent to the said defendant’s main line of railway, and right of way in said township, and upon the west side of said right of way.
‘ ‘ The said defendant is a corporation duly organized under the laws of the state of Ohio and as a railway corporation, for the purpose of operating a railway, and is so operating a railway, and moving freights between the city of Toledo, a municipal corporation of said state and the village of Pomeroy, a village of said state, its right of way, and transportation of freights and passengers extending across said state and through said township and county, the defendant being a common carrier of freight and passengers for hire over its said line, and connecting with, and transporting its freight and passengers over other railway lines.
“The said defendant along its right of way, and adjacent to said plaintiff’s land, has constructed, and now maintains and operates, a side track or spur track, west of its main track, of the length of about 150 feet, and said side track is used by the general public for the transportation of coal, lumber or other materials or products, and is now so used, the said main track and spur or side track along said plaintiff’s premises running northward and southward, but the grounds of said ■company, and those west of and adjacent to said side track are so raised and elevated that not to expeed two cars can be loaded at one and the same time, and said side track opens or is connected with the main track at a point, east and opposite the plaintiff’s lands, the said lands not extending but some few feet north of said point where said side track connects with said main track, the said side track connecting with the main track at its south terminus opposite the plaintiff’s lands and extending northward about 150 feet.
"Said plaintiff has opened said lands and mines at a point almost immediately west of said connection of main and side track and is able to ship two or more cars a day from said mine and is desirous of so doing, and has contracts with a firm called Maynard Bros, of Columbus, Ohio, on the line of said railway, and the Columbus Railway and Light Company, requiring the shipment over said line of from' one to two cars daily.
“The plaintiff says that said side track can be extended southward 200 feet upon said plaintiff’s lands or said defendant’s right of way without any injury to or interference with said main track or other property of said company.
“The plaintiff says it has opened its mine and has prepared for a tipple for the coal mined therefrom at a point about one hundred feet south of the south end of said side track, at which point by the aid and use of the tipple it can, without loss or danger or injury, to said defendant’s right of way or main track, load and transport its said ears.
“The plaintiff says by the said side track as now used by the defendant it is compelled in mining and transporting its coal to« load the same in wagons, haul the same to the said siding, and then load the same into the cars of said defendant company and is often hindere,d and delayed in this by reason of others, persons, firms and corporations, using said side track.
“The plaintiff says there are many mines along said defendant’s right of way and that thousands,of tons of coal are shipped therefrom, that the defendant company has placed sidings and tracks for their mines or their owner for the use of the coal operators, in shipping coal, these mines having lines, or side tracks, used only by the coal operators owning mines adjacent thereto and these various coal operators having tip-pies from which to unload their coal into the cars of the defendant company, the company setting in its cars and receiving the coal from these side tracks and tipples.
“The plaintiff says that by reason of the hauling by wagons, its said coal, said present short track and said raised land, and by reason of each of said facts, the expense of hauling its coal is very great. Greatly and increased off of loading from a tipple is rendered unprofitable, prevents the plaintiff with competing with others, and the coal companies along said right of way, that they have been provided with side tracks, and the use of tipples to the same, and is an unlawful and unjust discrimination against this plaintiff and in form of the other coal operators on said line. The plaintiff says that the unloading from tipples into cars is the common and well known method pursued by said company for its coal traffic and is safer, easier, less expensive and more expeditious and the said siding or side track, as now permitted and used, does not give equal or reasonable facilities for loading coal, and is an unjust discrimination against plaintiff.
“The plaintiff has requested said defendant to extend its said side track southward 200 feet and agreed to build, construct and maintain the same at its own expense but subject to the control, supervision, and requirements of said defendant, the plaintiff under like supervision to make all required connections with said main track without increased danger or connections with said main track and to pay all costs, but said defendant refuses so to do or to permit the plaintiff so to do.
“The plaintiff says the defendant is the only railway by which it can transport its coal, and that it is denied the proper facilities for shipping its coal, or those granted and extended by said defendant to the other coal operators similarly situated along said right of way, and if said side track was extended and said connection made with said main track at the north end of said track as now located the cars could be more readily moved as the grade is southward in slope, and if said extension was also made the plaintiff would be given facilities to operate its said mine, and similar or equal facilities given to the other coal operators upon the line of the defendant’s railroad.
"Plaintiff says if the said facilities are not given, it is delayed, hindered and deprived of the proper nse of its said property, and it suffers great and irreparable injury thereby, that cannot be properly measured in any action at law.
"Wherefore the said plaintiff prays said defendant by the orders and judgment of this court extend its said side track, and keep or make the proper connections with its main track, that it be required not to discriminate in the conditions of loading.
"That said plaintiff be allowed _ to load its cars from a tipple or other safe, usual or convenient mode upon said side track so extended, and for such other order in the premises as will prevent hindrances, delays and discriminations that are exercises against this plaintiff and not against said other coal operators, and other proper relief.”

A demurrer to the petition is filed, based upon the grounds that it does not state a cause of action against defendant, or, that if it does, that plaintiff had an adequate remedy at law.

The demurrer to this petition will be overruled, on the authority of Johnson Coal Min. Co. v. Railway, 14 Dec. 209 (1 N. S. 385).

Sullivan and Wilson, JJ., concur.


author: SMITH, J.

text:
    ROBBERY.
    [Hamilton (1st) Circuit Court,
    December 8, 1908.]
    Giffen, Smith and Swing, JJ.
    Prentice C. Tiller v. State of Ohio.
    Seizing Goods Exhibited for Purchase, Pursuit, Struggle and Escape of Accused Constitute Robbery.
    Seizing a tray of rings in a jewelry store exhibited under pretense of desire to purchase, pursuit and struggle by clerk and escape of accused with tray are concomitant and concurrent acts constituting robbery under Gen. Code 12432, as distinguished from larceny under Gen. Code 12447.
    Error to common pleas court.

      Raymond Ratliff, for plaintiff in error:

      Cited and commented upon the following authorities: McClain, Crim. Law Sec. 469; Shinn v. State, 64 Ind. 13 [31 Am. Rep. 110] ; Thomas v. State, 91 Ala. 34 [9 So. Rep. 81] ; Hanson v. State, 43 Ohio St. 376 [1 N. E. Rep. 136] ; Sherman v. State, 2 Circ. Dec. 691 (4 R. 531); Arehbold, Crim. Pr. & PI. 417; Bishop, New Crim. Law Sec. 1175; State v. John, 59 N. C. (5 Jones L.) 163; Chitte, Crim. Law p. 804; Hughes, Criin. Law & Proced. See. 763; 1 Hales, Plead, of the Crown 534; Clark, Crim. Law p. 285; Fanning v. State, 66 Ga. 167.

      G. O. Bose, for defendant in error:
    Cited and commented upon the following authorities: Turner v. State, 1 Ohio St. 422; Hale, p. 11, Chap. 44, p. 517; McClain, Crim. Law Sec., 469; Hanson v. State, 43 Ohio St. 376 [1 N. E. Rep. 136] ; State v. Miller, 53 Kan. 324 [36 Pac. Rep. 751] ; Shinn v. State, 64 Ind. 13 [31 Am. Rep. 110]; Thomas v. State, 91 Ala. 34 [9 So. Rep. 81] ; 3 Archbold, p. 417; 1 Wharton, Crim. Law (10 ed.) Sec. 854; 1 Russell, Crimes p. 874; Thomas v. State, 91 Ala. 34 [9 So. Rep. 81]; MoNeal v. State, 11 Dec. Re. 782 (29 Bull. 185) ; 2 Roscoe, Crim. Ev. (8 ed.) 1161; Rapalje, Larceny p. 637; 3 Greenleaf, Evidence (16 ed.) Sec. 225; Clark, Crim. Law p. 285; Sherman v. State, 2 Circ. Dee. 691 (4 R. 531) ; Long v. State, 12 Ga. 293; People v. Glynn, 54 Hun. 332 [7 N. Y. Supp. 555] ; State v. Carr, 43 Iowa 418; State v. John, 50 N. C. (5 Jones L.) 163; States. Broderick, 59 Mo. 318; Clements v. State, 84 Ga. 660 [11 S. E. Rep. 505; 20 Am. St. Rep. 385] ; State v. Calhoun, 72 Iowa 432 [34 N. W. Rep. 194; 2 Am. St. Rep. 252].
   SMITH, J.

At the April term of the court of common pleas of Hamilton county, the plaintiff in error was tried upon two counts in the indictment, one charging the offense of robbery and the other grand larceny. The jury returned a verdict finding him not guilty of larceny, but guilty of robbery. A motion for a new trial was interposed, upon the overruling of which judgment was entered for the state, and the prisoner sentenced to the penitentiary.

The sole ground of error urged is that the defendant below, if guilty at all, was guilty of larceny and not of robbery, as the prosecuting witness was not put in fear, and the violence-necessary to constitute the crime of robbery was not concomitant with, but subsequent to the talcing of the property.

The circumstances of the taking as detailed by the-prosecuting witness show that while examining rings in the store of Michie Bros., the plaintiff in error grabbed the tray containing them from the counter, placed it under his arm and ran to the door. The prosecuting witness immediately pursued him. The plaintiff in error succeeded in getting out of the door and proceeded to close it when the prosecuting witness attempted to prevent this closing, and after this struggle at the door the plaintiff in error escaped with the property.

The question is, does or not the evidence disclose that', such violence was used as the statute, contemplates and is essential in the crime of robbery?

In Hanson v. State, 43 Ohio St. 376 [1 N. E. Rep. 136], it was decided that the violence essential to the crime of robbery must be concomitant with the taking of the property. In other words, accompany the taking — be concurrent with it. This, therefore, raises the question of fact whether the violence used was or was not in contemplation of law concomitant with the talcing. Was the grabbing of the tray, the pursuit through the store, the struggle to escape at the door a part of the act by which the taking was effected? We think that they were. The taking of the property from the prosecuting witness or from his presence and under his contral was not effected until these various acts of violence were completed, for the reason that plaintiff in error did not succeed in his attempt to possess himself of the property until after all these acts of violence occurred.

In this respect the charge of the court correctly stated the law, and the judgment is affirmed.

Giffen and Swing, JJ., concur.


author: ICINKADE, J.

text:
    ARBITRATION AND AWARD — LIMITATION OF ACTION.
    [Lucas (6th) Circuit Court,
    June 12, 1909.]
    Kinkade, Parker and Wildman, JJ.
    William A. Leflet v. O. A. Browning.
    Positive Agreement to Forbear Suit Essential to be Shown Tty Stop Running of Statute of Limitations.
    Evidence of some conversation between the parties to the effect, that if they could not settle their differences they woulci arbitrate, does not constitute evidence of a positive agreement to forbear suit on a condition named, and does not preserve, the claim against the running of the statute of limitations.
    Error to common pleas count.

      J. Y. Todd, for plaintiff in error.

      Mulholland & Hartman, for defendant in error.
   ICINKADE, J.

The common pleas court withdrew from the consideration of the jury all claims in the answer and cross-petition except the failure of a part of the consideration of one of the note® sued on, for the reason that the claims were shown by the evidence to be barred by the statute of limitations. Leflet claimed in his cross petition that there was an agreement between him. and Browning that he should not bring suit, and that Browning would waive the statute of limitations, and hence the running of the statute was thereby suspended. The allegations of the cross petition are carefully drawn and present this issue., but a. careful reading of the record fails to disclose apy evidence to sustain the allegations in this regard.

A positive agreement to forbear suit on a condition named made before the statute has barred the claim, would no doubt preserve the claim against the statute, but nothing short off such an agreement will do so. Mere negotiating or general! talk between the parties to the effect that if they can not themselves settle their differences, then they will arbitrate, is not. sufficient. In some states it has been held that where the statute requires a new promise or acknowledgment to be in writing 3n order to sustain an action on a barred claim a promise to forbear suit if the statute is waived, will not be sufficient to suspend the running of the statute unless the latter promise be in writing. The supreme court of Maine has so held, and insists that to hold otherwise is to furnish an easy method of avoiding the provisions of law as to the new promise or acknowledgment being in writing.

But we do not find it necessary to pass on this point in the ease. We have read this record with care, ‘and in our opinion there is no evidence in the record tending to show that any agreement to forbear suit by Leflet in case Browning would waive the statute of limitations was ever made. We think the evidence clearly showed that the running' of the statute was never suspended, and that the trial judge was correct in his ruling in this respect. He is fully sustained by the authorities in the conclusion reached. We find no prejudicial error in the record and the judgment of the court of common pleas will .be affirmed.

Parker and Wildman, JJ., concur.


author: ■CIIFFEN, P. J.

text:
    CRIMINAL LAW.
    [Hamilton (1st) Circuit Court,
    July 2, 1910.]
    Giffen, Smith and Swing, JJ.
    William Coakley v. Cincinnati (City).
    In Prosecution for Being a Known Thief Facts upon which Charge is Based Need not be Averred. '
    In a prosecution for being a known thief, it is sufficient to charge the defendant with being then and there a known thief without averring facts upon which the charge' is based.
    Error to common-pleas court.

      Louis B. Sawyer, for plaintiff in error.

      Chas. E. Urban, for defendant in error.
   ■CIIFFEN, P. J.

The charge in the affidavit that the defendant “being then And there a known thief” is sufficient without setting forth the facts from which he is known as a thief. His general course; of conduct or reputation with respect to being a thief is hereby put in issue. .

The evidence of his conviction, imprisonment at St. Louis and subsequent parol by Gov. Folk was hearsay and erroneous; but there could be no prejudice, as it was also shown by his own admission.

The information conveyed by the police department of St. Louis concerning his general reputation was not hearsay, the rule as stated in Greenleaf, Evidence Sec. 101, and quoted in the case of Upfhegrove v. State, 37 Ohio St. 662, being as follows:

“Upon the same principle it is considered, that evidence-of general reputation, reputed ownership, public rumor, general notoriety and the like, though composed of the speech of third persons, not under oath, is original evidence, and not hearsay. ”,

We find no prejudicial error in the record, and the judgment will be affirmed.

Smith and Swing, JJ., concur.


text:
    LANDLORD AND TENANT — FORCIBLE ENTRY ANDDETAINER.
    [Hamilton (1st) Circuit Court,
    December 7, 1908.]
    Giffen, Smith and Swing, JJ.
    Harry F. Hopkins v. Bridget F. Carroll.
    1. Tenancy Undek Written Lease eor Term oe Years Extended by Parol is Year to Year.
    Tenancy begun under a written lease for term of years, with privilege of renewal for the same term, and extension of term, by verbal lease for another like term, makes possession referable to former written lease and becomes one from year to year.
    2. Jurisdiction op J. P. in Forcible Entry and Detainer Extends to-Tenancy prom Year to Year.
    Justices of the peace have jurisdiction in forcible entry and detainer under R. S. 6600 (Gen. Code 10449) in cases of tenancy from year to year.

      Error to common pleas court.

      Cogan & Williams and FI. A. Reeve, for plaintiff in error.

      E. O. Eapp and A. P. Foster, for defendant in error.
   SMITH, J.

The judgment of the trial court in sustaining the demurrer of defendant to the petition we think should be affirmed.

In Armstrong v. Kattenhorn, 11 Ohio 265, it was decided that a parol contract for a lease between landlord and tenant in possession under a prior lease is within the statute of frauds unless possession be held solely under, and in performance of, the parol contract, the terms of holding clearly indicating the possession to be under the subsequent parol lease. If the possession- can be referred to any other source than the parol contract the statute fails.

The petition sets out a tenancy for five years from January 1, 1891, under a written lease, containing a privilege of renewal for another term of five years at the expiration of the first term. It also sets out that plaintiff in error entered upon Ids fourth term (took possession) as lessee by virtue of a verbal agreement for another term of five years upon the «same terms and conditions as his former' tenancies. This possession it seems to us is referable to the prior mitten lease, and the plaintiff in error became a tenant from year to year and is holding over his term.

Justices of the peace by R. S. 6600 (Gen. Code 10449) having jurisdiction in cases of a tenancy from year to year, the demurrer to the petition was properly sustained by the «court, and the judgment is affirmed.

Giffen and Swing, JJ., concur.


author: <3IFFEN, P. J.

text:
    CONFESSIONS — CRIMINAL LAW,
    [Hamilton (1st) Circuit Court,
    August 2, 1909.]
    Giffen, Smith and Swing, JJ.
    Harry Kohn v. State of Ohio.
    1. Statements Made by Accused Restrained in Private Office Until Truth Told are Under Duress.
    Statements made by a person suspected of crime, upon his being taken to a private office and questioned for two days and nights in relation to circumstances surrounding the crime, and being repeatedly told that he would be allowed to go if he told the truth, cannot be regarded as voluntary, but they were influ'enced by fear of further restraint or hope of regaining liberty. Nor are such statements ad-missions, competent to establish charges against him.
    2. Conclusion . of Witness Without Facts Supporting it Held Prejudicial. .
    Admission, in a criminal trial, of the statement of a conclusion by a witness without stating facts upon which such conclusion is established, is prejudicial.
    Error to common pleas court.

      William Littleford and Harry L. Gordon, for plaintiff in error.

      Henry T. Hunt, Denis F. Cash and Coleman Avery, for defendant in error.
   <3IFFEN, P. J.

The plaintiff in error, Harry Kohn, was indicted, tried and convicted of unlawfully, wilfully and maliciously setting fire to and burning certain goods with intent to prejudice, damage and defraud certain insurance companies. One of the errors alleged is the admission as evidence of certain testimony given by Kohn before the State Fire Marshal, who was holding an official investigation of the origin and cause of the fire. He was taken by the fire marshal and two of his deputies, under a subpoena, to the Andrews building, in Cincinnati, duly sworn, examined and re-examined at intervals during two days and nights and continued under restraint until released upon writ of habeas corpus. During the examination he was repeatedly told by the fire marshal that if he would tell the truth about it (the fire) they would let him go. The evidence is plain that he was suspected of the crime, and he himself so understood it. How then can testimony given ‘under such circumstances be said to be voluntary as it must be to make it admissible? Spears v. State, 2 Ohio St. 584.

In the case of Schoeffler v. State, 3 Wis. 823, one proposition of the syllabus isias follows:

“Confessions or statements extorted from a person by duress, of made under circumstances which are equivalent to arrest or duress, or any other circumstances, which show that they are not voluntary, are inadmissible.”

The time and manner of detaining Kohn indicated that the fire marshal was not satisfied that he was telling the whole truth, and when he told him that if he would -tell the truth about it they would let him go there was an implied threat to restrain him until he did tell the truth, the fire marshal of course, being the final arbiter of what was the truth. The' statements were evidently induced by fear of being deprived of his liberty or by hope of being released so that he might obtain the advice of his relatives and counsel.

It is said, however, that these statements were not confessions but mere admissions which can not be excluded; but the admissions embraced the preparation of certain fictitious bills of goods presented to the insurance, companies as proofs of loss, which fact was conclusive evidence of intent to defraud, the essential element of the crime charged in the second count of the indictment, and of which he was convicted. The prosecutor admits that it was a most damaging admission, and we think its effect was the same as a confession of guilt. The prosecutor says in brief, if all the admissions were eliminated entirely from, the record, the fact remains that the Stuhlburg bill was forgery. This does not cure the error, as the accused is entitled- to have the jury determine his guilt or innocence upon competent evidence alone, and further shows that zeal for conviction should be subordinate to legal procedure. It was error to admit the statements as evidence and was prejudicial.

One of the witnesses for the state in describing the condition of the rooms after the fire testified as follows:

“Room 3 didn’t seem to have any remnants of anything; everything was quite clean. The shelves were scorched, but there didn’t seem as if there ever had been any stock on those shelves. ’ ’

A motion to rule out “there didn’t seem;” etc., was overruled and exception taken.

The witness had recited no facts from which the conclusion could be drawn, and if he had, the jury were quite as competent and should have been allowed to draw their own inference. The question of what stock was in the room and whether consumed by fire was vital. Hence the error in overruling the motion to strike out was prejudicial. A like statement and erroneous ruling appear on page 999 of the bill of exceptions. The same objection may be urged against the question: "State whether or not’ she came back willingly if you know?” put to one witness concerning another who had gone out of the jurisdiction of the court and was returning.

On pages 158 and 845 witnesses were permitted to testify that the fire started in a certain cupboard, although their investigations were made after the fire, and the facts upon which the opinion was based could have been and were partly submitted to the' jury.

The answer given at page 845 was objectionable' also because not responsive to any question put to the witness.

Counsel says in his brief that there was no evidence that, the place was set .on fire. Of course there is no direct evidence, but there are circumstances and admissions besides those made before the fire marshal that fully sustain .the verdict, and we therefore hesitate in reversing the judgment, but as said by Price, J., in Geiger v. State, 70 Ohio St. 400 [71 N. E. Rep. 721]: “The law of a fair trial must be upheld.”

Many other errors are assigned in the record, but we find none requiring special notice or that would justify' a reversal.

Judgment reversed and cause remanded for a new trial.

Smith and Swing, JJ., concur.


text:
    EXPLOSIVES — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    April 3, 1909.]
    Giffen, Smith and Swing, JJ.
    Sarah Armstrong v. Cincinnati (City) et al.
    Highest Degree op Care Required in Use op Explosives por Blasting Purposes.
    Use of explosives for blasting is not negligence per se; hence, an instruction that users of such materials, knowing their explosive power and destructive tendency are hound to exercise the highest degree of care in their use, states the proper rule in an action for damages resulting from blasting in the neighborhood.
    Error to common pleas court.

      A. B. Huston and H. H. Williams, for plaintiff in error.

      Jonas B. Frenkel, for the City of Cincinnati.

      J. W. Heintsman, for the W. J. Gawne Company.
   SMITH, J.

The negligence complained of by plaintiff .is that the defendant in error, W. J. Gawne Company, having contracted with the city of Cincinnati to construct for it a tunnel for the purpose of supplying water to said city, in the course of the excavation for the same, wrongfully and negligently caused the loosening and removal of earth and rocks by means of blasts and explosions of dangerous and powerful explosive substances, producing great concussion and disruption of the earth, thereby causing her house, cistern, etc., to tremble and become disintegrated, cracked and broken, which resulted to her damage.

It is apparent that a proper complaint of this kind supported by relevant and competent evidence would entitle the plaintiff to recover for damages to her property because of concussions, and the two questions raised upon this issue are:

First: Whether or' not the verdict and judgment are sustained by sufficient evidence.

Second. Whether or not plaintiff’s right to recover depended upon the work being done negligently and the injury was the result of negligence, or upon simply showing that her property was injured.

Upon the first contention we are not prepared to say that the verdict is against the weight of the evidence. '

From an examination of the record in this respect, we think the jury might well find that the injury, if any, to plaintiff’s property, was not caused by the work of the defendants, and having so found this court would be slow to set aside this verdict unless the second ground of error complained of is well taken.

The court charged the jury as follows -.

“It is difficult to lay down a hard and fast rule regarding the use of explosives of high power under any and all circumstances.
“However, the users of such materials, knowing their high-explosive power and their destructive tendency, are bound to exercise the highest degree of care in their use.”

Counsel for plaintiff in error contend that this charge is erroneous for the reason that the use of explosives by any person does not depend upon the question of care, and in .support of this question of care, and in support of this contention rely upon the two cases of Tiffin v. McGormack, 34 Ohio St. 638 [32 Am. Rep. 408], and Bradford Glycerine Co. v. Woolen Mfg. Co. 60 Ohio St. 560 [54 N. E. Rep. 528; 45 L. R. A. 658; 71 Am. St. Rep. 740].

The first case is one where, in blasting in a stone quarry with powder, fire was thrown upon the property of the injured party which resultéd in its destruction.

The second case is where nitroglycerine, a substance usually recognized as highly explosive and dangerous, was stored at a place which was a constant menace to the property in the vicinity and damage resulted from its explosion.

The first case was decided upon the authority of Hay v. Cahoes Co. 2 N. Y. 159 [51 Am. Dec. 279], and Tremain v. Cohoes Co. 2 N. Y. 163 [51 Am. Dec. 284].

In such cases the injury sued for was connected with a trespass as when stone or inflammable materials were hurled on adjacent property, and the defendants were usually held liable without regard to care or carelessness in doing the work.

In Benner v. Dredging Co. 134 N. Y. 156 [31 N. E. Rep. 328; 17 L. R. A. 220; 30 Am. St. Rep. 649], it was held that injuries to a house from blasting caused merely by the shaking of the earth or pulsation of the air, or both, gave no right of action, in the absence of negligence in doing the blasting; and in Holland House Co. v. Baird, 169 N. Y. 136 [62 N. E. Rep. 149], it was held that injury to another’s house by a mere concussion without throwing rock or other material on the premises occasioned by blasting on one’s own premises in oraer to adapt them to a lawful use, when that mode is the only proper one and the work is transacted with due care and diligence, creates no liability. The language of the court in this last ease is applicable to the present, in that this action is not one of a technical trespass upon the property of another, where proof of negligence in the defendant is unnecessary, but one of consequential injury, where proof of negligence in performance is essential to a cause of action for damages.

This same rule was adopted in the case of Simon v. Henry, 62 N. J. L. 486 [41 Atl. Rep. 692], where it was held that a charge to the jury ‘ ‘ that blasting close by a building necessarily would require a high degree of care — perhaps the highest degree of care — to protect the building from injury” was not erroneous, and if the defendants exercised reasonable care and skill in the use of explosives, they were not responsible for the damage alleged. See, also, Booth v. Railway, 140 N. Y. 267 [35 N. E. Rep. 592; 24 L. R. A. 105; 37 Am. St. Rep. 552].

In the recent case of Thurmond v. White Lime Assn. 125 Mo. App. 73 [102 S. W. Rep. 617], this same rule in regard to negligence is upheld.

We do not think the rule in Ohio in such cases as the one at bar is different, as the cases relied upon in this state by counsel for plaintiff in error are such as where the blasting amounted to a trespass upon the property of the party injured or where a highly explosive or dangerous substance was stored upon one’s property which was a constant menace to the property in the vicinity. We think, therefore, that the charge of the court in this regard was eminently proper.

We do not think the other objections urged by counsel for plaintiff in error appear to have been prejudicial as, under the evidence and the charge of the court, we believe the jury was justified in the determination of the case as reached by it.

Judgment affirmed.

Giffen and Swing, JJ., concur.


author: GIFFEN, P. J.

text:
    NEGLIGENCE — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    July, 1909.]
    Giffin, Smith and Swing, JJ.
    Cincinnati Trac. Co. v. Maggie Durack, Admrx.
    1. Defect in Appliance on Uncontrolled Cab Assumed Cause of Death of Conductor on Car Collided With.
    The negligence of fellow-servants in charge of a runaway car having been eliminated, and no other reasonable inference as to why the car started down the grade can' be drawn from the testimony, it may be assumed that a brake shoe shown to have been loose was the proximate cause, and a judgment for damages recovered by the administratrix of the conductor of the car in front who was killed in the resulting collision will not be set aside for insufficient evidence.
    2. Instruction Excluding Consideration of Contributory Negligence Pleaded Reversible Error.
    But an instruction to the jury, which excluded all consideration of contributory negligence, although pleaded as a defense and supported by some evidence, constitutes prejudicial error requiring a reversal of the judgment.
    Error to common pleas court.
    This action originated .in the death of a traction ear conductor who was killed by a runaway car coming down the grade behind him and colliding with his car while he was adjusting the trolley thereon. On a former trial plaintiff recovered a judgment against the traction company; this judgment was reversed by the circuit court and error was prosecuted to the Supreme Court for error by the circuit court in refusing to render judgment for the traction company. The Supreme Court affirmed the circuit court in Cincinnati Trac. Co. v. Durack, 78 Ohio St. 243 [85 N. E. Rep. 38; 14 Ann. Cas. 218]. Another trial has been had, judgment rendered for plaintiff below and error is prosecuted again to the action of the common pleas.

      Kinkead, Rogers <& Ellis, for plaintiff in error.

      D. Y. Sutplvin and W. A. DeCamp, for defendant in error.
   GIFFEN, P. J.

Although the plaintiff in her amended petition sets forth several acts of negligence, the only one relied upon at the last trial is stated as follows:

“Through the negligence of the defendant company or of some of its employes whose duty it was to inspect, repair and see that the machinery and appliances of such car were in proper condition, the brake, brake-shoe or shoes of said car No. 9 had become out of repair and worn so as not to be fit for the purpose for which such brake or brake-shoes are applied; that by reason of said defect in said brake, brake-shoe or shoes, said car No. 9 broke away and caused injury to plaintiff’s intestate in the manner above described.”

In support of the alleged error in overruling defendant’s motion at the conclusion of the evidence for an instructed verdict, counsel for plaintiff in error say in their -brief:

“There was a failure on the part of plaintiff below to prove that the loose brake-shoe was the proximate cause of the injury.”

The charge of negligence was not thus limited to a loose brake-shoe, but embraced any and all defects of the brake itself; and the experts called by the defendant were careful to assume that the other essential parts of the brake were in good order before stating that one defective brake-shoe would not lessen the efficiency of the brake on a so-called McGuire truck. No one will deny that the natural laws upon which they based their conclusions are invariable, or that a brake designed and constructed in accordance with such laws will work in obedience thereto; but it must be admitted that the practical application of these laws in the construction of a machine is as variable and erring as human judgment itself. Hence the principle upon which a certain type of trucks is constructed may insure efficiency in braking apparatus, and yet a particular truck may, because of tbe human factor in its construction, be faulty and variable in its operation. "When, therefore, the motorman of car No. 9 reported ,to his superintendent that the car was a little hard to-stop and that the brake was bad, it does not necessarily follow that his testimony is of no value, because “the only apparent defect is one loose shoe, and because the laws of physics prove that this defect in a type, not in the particular brake, is immaterial. The superintendent himself apparently approved the judgment of the motorman that the brake was bad, when after three warnings at intervals of a half hour or more, consented to give him another car; biit whether this be so or not, it was his duty to inspect or cause to be inspected the defective brake and ascertain whether it was safe for further use.

The question of negligence of a fellow servant being eliminated by the testimony of the motorman and conductor of car No. 9, the probability that the defective brake caused the car to start down the grade on which it was standing is stronger than any other that has or can be suggested from the evidence. It is not a mere conjecture, but a reasonable inference from all the evidence. Schoepper v. Chemical Co. 113 Mich. 582 [71 N. W. Rep. 1081]; Cincinnati Trac. Co. v. Holzenkamp, 74 Ohio St. 379 [78 N. E. Rep. 529; 6 L. R. A. (N. S.) 800; 113 Am. St. Rep. 980].

This view of the case was probably entertained by the Supreme Court when they said in Cincinnati Trac. Co. v. Durack, supra:

“From this statement of the case we are inclined to think that the plaintiff in error obtained from the circuit court more than its dues.”

Whether this be true or not the law and evidence of the case as now presented convinces us that the court below did not err in overruling the motion or in refusing a new trial for insufficient evidence.

The court did err, however, in giving special instruction No. 1 requested by plaintiff, because it excludes all consideration of contributory negligence, although pleaded as a defense and supported by some evidence. The very place where the decedent was standing, while adjusting the trolley wheel, was necessarily one of danger, and required of him proportionate care to avoid injury. Whether his failure, if any,' to exercise ordinary care contributed directly to his injury was an issue that should have been submitted to the jury. The same error occurs in the general charge.

The special instruction was faulty also in assuming that the company was negligent in failing to take the ear out of service when it was discovered that the brake-shoe was defective. The same error appears in special instruction No. 4 and in the general charge. The general charge contains the following instruction:

“Every employer must giye his employes reasonably safe appliances with which to work and a reasonably safe place wherein to work. The company however is not an insurer of the lives of its employes.”

This instruction violates the rule stated in Cincinnati, H. & D. Ry. v. Frye, 80 Ohio St. 289 [88 N. E. Rep. 642; 131 Am. St. Rep. 709], notwithstanding the qualification that the com-' pany is not an insurer. The court erred also in defining “burden of proof.” The first special interrogatory which the court refused to submit to the jury is indefinite as to the time, and the refusal was not prejudicial.

We are not unmindful of the gravity and importance of the case especially to the widow and orphans; but the errors pointed out are of that -substantial nature which prevents a fair trial, and we are constrained therefore to again reverse the judgment and remand the case for a new trial.

Smith and Swing, JJ., concur.


text:
    PLEADING — RESCISSION.
    [Hamilton (1st) Circuit Court,
    December 7, 1908.]
    Giffen, Smith and Swing, JJ.
    Kate Klein v. Ellis B. Gregg, Guard. et al.
    Failure of Consideration for Wife’s Release of Interest in Husband’s Lands not Ground for Rescission.
    Failure of consideration for a wife’s release of interest in ber husband’s lands is not ground for setting aside deeds thereof; inadequacy of consideration at time deeds were executed, her reliance upon misrepresentation, mutual mistake, fraud or undue influence must be averred to effect rescission.
    W. A. Hicks, for plaintiff.

      E. B. Gregg, for defendants.
   GIFFEN, J.

The failure of the plan or design of David Klein in executing and delivering the deeds in question to provide a home and support for his wife and children after his death is no legal ground for setting aside such deeds, unless such plan or design was disclosed to the plaintiff and induced her to part with her interest in the property. The statement that “she would be taken care of and be amply provided for under said deeds” is not a representation of an existing fact, nor of the legal effect of such deeds, but a mere opinion of her future wants as well as those of the children, and the sufficiency of the means provided. Her real complaint is, not that the property conveyed is insufficient of itself to provide a home and support for herself and his children, but that they do not receive what the deeds purport to convey, to wit, a clear and unincumbered title. One conveyance is made subject expressly to a mortgage of $3,000, and there is no allegation in the second amended petition that he promised or represented to her that he would pay or cause to be paid such mortgage.

The other conveyance contained a covenant of warranty that the property is clear and unincumbered, and plaintiff avers that her husband represented to her at the time the deed was executed that the $2,500 mortgage was satisfied and no longer a lien on said property, whereas in fact it was unsatisfied of record; but she nowhere avers that such representations were relied upon by her. Aetna Ins. Co. v. Reed, 33 Ohio St. 283.

There is no pretense that the misrepresentation was intentionally made, and if it be treated as a mistake there is no averment that it was mutual.

"While the pleading contains the averment that “the .consideration upon which she released her rights in said property has wholly failed, and if said deeds are permitted to stand she will receive no part of the consideration upon which such release was founded and intended for her by her husband,” yet there is no averment that the consideration was wholly inadequate at the time the deed was executed, September 19, 1901. The presumption would rather be that it was adequate, else she would have begun her action long ago.

Her right of action depends upop the failure to receive what her husband intended she should receive, although not expressed in the deed, but upon fraud, mistake or undue influence.

There was no intentional misrepresentation of fact, nor undue influence, and the only apparent ground for rescission is mistake, which, to be available, must be mutual. If the facts warrant, the plaintiff may amend accordingly.

Demurrer sustained.

Smith and Swing, JJ., concur.


text:
    INSURANCE.
    [Hamilton (1st) Circuit Court,
    May 8, 1909.]
    Giffen, Smith and Swing, JJ.
    John Leverone v. Sanford Brown, Rcvr.
    Liability oe Members oe an Insolvent Mutual Insurance Company to Assessment.
    A former decision by this court, as to defenses a member of a mutual insurance company ma. set up against an assessment, does not militate against the findings of a trial court or the conclusions that may be reached in an action to enforce payment of such an assessment.

      Error to’ common pleas court.

      M. F. Galvin, for plaintiff in error.

      W. T. Porter, for defendant in error.
   SMITH, J.

We are of the opinion that the judgment as rendered by the court below should be affirmed and the petition and cross-petition in error should both be dismissed.

Under the evidence and by virtue of by-law 16 of the Chamber of Commerce Mutual Insurance Company, plaintiff in error was a member of the company up to thirty days after September 1, 1904; this being so, he would be liable for assessments made up to that period.

It had therefore been decided by the superior court of Cincinnati in general .term and affirmed by the' Supreme Court, that the company was insolvent and that certain death claims had accumulated for which those who were members during said interval were liable.

We do not think the holding of this court in Swing v. Crane, 32 O. C. C. 000 (11 N. S. 297), that a decree by the Supreme Court in a suit for ouster of a mutual insurance company would not conclude any stockholder or member from questioning his liability for, an assessment, or from setting up any other defense he might have in a suit to collect any such assessment, militates against the findings of the trial court or the conclusion reached herein.

In the suit at bar, plaintiff in error set up such defenses as he had, and the court held that as against the amount claimed defendant in error was entitled to recover only a part thereof.

In Swing v. Crane, supra, one of the defenses was the statute of limitations.

In view of the entire evidence showing plaintiff in error to have been a member of the company as hereinbefore set forth, we think the judgment of the court below is correct and the same will be affirmed.

Giffen and Swing, JJ., concur.


text:
    NEGLIGENCE — PARTIES.
    [Hamilton (1st) Circuit Court,
    May, 1909.]
    Giffin, Smith, and Swing, JJ.
    Cincinnati, D. & T. Trac. Co. v. William G. Holbrock.
    1. Duty of Motorman Crossing Railroad Tracks Requires Him to ■Stop, Look and Listen.
    The provisions of R. S. 3443-6 (Gen. Code 9125) do not relieve a motorman from the duty of exercising case for the safety of passengers; hence, it is his duty on approaching each of the separate tracks of a railway company to look and listen before proceeding with his car upon the railway tracks.
    2. Covenant not to Sue one Joint T6rt Feasor does not Release Other Tort Feasor.
    A covenant by a plaintiff that he will not sue one joint tort feasor is not a bar to an action brought by him against another joint tort feasor.
    3. Request for Instruction to Release Joint Tort Feasor Sued if Negligence was That of Tort Feasor not Sued, is Improperly Refused.
    A special instruction asked for by the defendant to the effect that if the jury found that the injury was due to the negligence of the tort feasor who was not a party to the action, and the defendant was not negligent, the verdict should be for the defendant, is improperly refused.
    Error to coifrmon pleas court.

      W, C. Shepherd and Murray Seasongood, for plaintiff in error:

      G. M. and E. W, Gist, for defendant in error:
    Cited and commented upon the following authorities: Bailey v. Berry, 3 Dec. Re. 483 (8 Am. L. Reg. 270) ; Button v. Eyre, 6 Taun. 289; Willis v. Be Castro, 4 Com. B. 216; Price v. Barker, 4 Ell. •& Bl. 777; Bateson v. Gosling, 7 L. R. C. P. 9; Cooley, Torts (3 ed.) Sec. 161, p. 237; Chicago v. Smith, 95 111. App. 335; Chicago v. Babcock, 143 111. 358 [32 N. E. Rep. 271] ; West Chicago St. By. v. Piper, 165 111. 325 [46 N. E. Rep. 186] ; ElUs v. Esson, 50 Wis. 138 [6 N. W. Rep. 518; 36 Am. St. Rep. 830] ; Snow v. Chandler, 10 N. H. 92 [34 Am. Dee. 340] ; Bean v. New Ball, 8 Term. 168, 170; O’Shea v. Railway, 105 Fed. Rep. 559; Carey v. Bilby, 129 Fed. Rep. 203 [63 C. C. A. 361] ; Line v. Nelson, 38 N. J. Law 358; Ellis v. Bitzer, 2 Ohio 89 [15 Am. Dec. 534].
   GIFFEN, P. J.

The admission of evidence of the defective brake and the condition of the track was proper as tending to prove the negligent act complained of, which, although charged in broad and comprehensive terms, comes within the rule stated in the case of Davis v. Guarnieri, 45 Ohio St. 470 [15 N. E. Rep. 350; 4 Am. St. Rep. 548].

We think the court erred in sustaining the objection to the following question put to the attending physician:

"Wasn’t it possible at the time to have removed the oil and other substance that is now shown there,?”

But by subsequent questions and answers the error is, shown to be not prejudicial.

There was no error in permitting the plaintiff to describe the effect of the scar on his face in his business relations.

Special instruction number ten .given at the request of plaintiff is as follows:

"It was the duty of the motorman on approaching each of the separate tracks of the railway company to look and listen before proceeding with his street car upon said track, and if you find his failure to perform this duty directly contributed to cause the collision between the street car and the locomotive- and the injury to the plaintiff, then the defendant, the traction company, is liable in this ease, and it will be your duty to find a verdict for the plaintiff.”

The provisions of R. S. 3443-6 (Gen. Code 9125) do not relieve the motorman from the duty of exercising care for the safety of the passengers, and unless he did look or listen he could not hear or see the signal from the person sent forward to ascertain if the way is clear. There was therefore no error in giving the instruction.

The first special instruction requested by the defendant to be given in writing before argument was as follows:

"The fact that the railroad company was negligent will not excuse the traction company if it also was negligent; but if you find that the railroad company was negligent and that the plaintiff was injured by reason of its negligence and that the traction company was not negligent, your verdict will be for the defendant.”

This instruction required the jury to first find that the defendant traction company was not negligent, and is so plain and simple that it is difficult to conceive upon what theory the court refused to give it.

Special instruction number three excludes all negligence other than that of the motorman and was properly refused. The error, if any, in refusing to give instructions four and five was cured by giving number nine. So likewise the subject-matter of number eight is fully covered by numbers six and .seven.

Exhibit number three offered in evidence by the defendant is only a covenant on the part of plaintiff not to sue the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, and as such is not a bar to an action against the defendant, an alleged joint tort feasor. Cooley, Torts Sec. 161; Chicago v. Babcock, 143 Ill. 358 [32 N. E. Rep. 271].

The apparently harsh rule of the common law as expressed in the case of Ellis v. Bitzer, 2 Ohio 89 [15 Am. Dec. 534], should not be extended beyond its terms. In that case the court found that Williams and Adkins were by the compromise to be wholly discharged from liability on account of the trespass, and hence all the other trespassers were discharged.

The defendant was clearly negligent and the verdict is fully sustained by the evidence. In the absence of any opportunity to observe the plaintiff — the scars on his face and his general condition as the result of the collision — we are not warranted in holding the amount of damages excessive.

The refusal to give special instruction number one in writing before argument as requested by defendant was certainly prejudicial, because it was important for the jury to know that the negligence of the railway company would in no way bind the defendant unless by its own negligence it contributed and besides, as said in the case of Monroeville v. Root, 54 Ohio St. 523, 527 [44 N. E. Rep. 237]: “the courts can not .say that there is no substantial error in a denial of the right.”

Judgment reversed and cause remanded for' a new trial.

Smith and Swing, JJ., concur.


text:
    ERROR.
    [Hamilton (1st) Circuit Court,
    July 3, 1909.]
    Abraham Scheinesohn v. Simon Lemonek.
    Record on Prosecution of Error to Charge to Jury Should Show Entire Instructions on Subject Complained of.
    Record on error prosecuted to charge to jury should show that the charge as embodied therein embodies all'that the court said to the jury on the subject complained of.
    Error to common pleas court. '

      Hoffman, Bode & LeBlond, for plaintiff in error:

      Frank Seinsheimer, for defendant in error:
   SMITH, J.

The record does not show that the charge complained of was all that was said to the jury by the court upon the subject in litigation. For aught that appears the errors claimed to exist may have been corrected.

However; the court is of the opinion that in the charge, in its entirety, there is nothing prejudicial to plaintiff in error and the judgment is affirmed.

Giffen and Swing, JJ., concur.


text:
    MUNICIPAL CORPORATIONS — PRINCIPAL AND SURETY.
    [Hamilton (1st) Circuit Court,
    1908.]
    G-iffen, Smith and Swing, JJ.
    Cincinnati (City) v. J. H. Baumer et al.
    Sureties of Defaulting Contractor Compelled to Pay Difference Between Bids of Principal and Next Lowest Bidder Estopped to Complain.
    Sureties of f. defaulting contractor for public work, in the absence of abuse of discretion shown, cannot complain that the contract was relet to next lowest and best bidder and the loss thereby sustained taken as the measure of their liability.

      Error to common pleas court.

      Jonas B. Frenkel, for Water Works trustees.

      Edward M. Ballard, for the city.

      D. F. Cash, for defendants.
   GIFFEN, J.

The bond m suit is statutory (Cincinnati water works; act, 92 O. L. 606), and in determining its effect reference should be 'had to the statute which authorizes its execution and prescribes its objects. Secrest v. Barbee, 17 Ohio St. 426.

The damages could be easily ascertained in two ways, either by reletting the contract to the next lowest and best bidder, or by readvertising and reletting to the lowest and best bidder. The commissioners of waterworks in the exercise of the discretion conferred by statute, relet the contract to the next lowest and best bidder at a loss of more than twice the amount of the bond, and there is nothing in the record showing ■any abuse of discretion, or that a readvertisement would have-resulted in less loss to the city.

Judgment reversed and judgment for plaintiff in error.

Smith and Swing, JJ., concur.