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    WILLS.
    [Circuit Court of Lucas County.]
    Bertha Kettemann, Executrix, Etc., et al v. Katie Metzger.
    Decided, November 1, 1901.

      Will — Questions in Suit to Set Aside — Undue Influence and Mental Unsoundness — Evidence Based Upon Facts in Decedent’s Life at Time of Making of the Will — Competent, Though It May Be of Little Weight — Charge of the Court — Where the Will is Unjust, Jury may Consider Reasons Therefor — Reviewing Court may Weigh the Evidence — And Set Aside a Jury’s Finding Where Manifestly Wrong— A Fair and Natural Disposition of Property.

    1. • In a suit to contest a will involving a claim of undue influence, any testimony tbat will shed light on the question of whether the will as made was the will of the testator is competent.
    2. And so as to mental unsoundness. Non-expert witnesses who were acquainted with the testator may be called, and their testimony received for what it may be worth.
    3. The affidavit of a witness to the execution of a will, made in connection with the admission of the will to probate, is not oompetent in a suit to break the will, where it does not appear that the witness is prevented by death or otherwise from being present to testify.

      4. For the court to charge the jury that “it is the right of every man, which right can not be taken from him, to do what he desires with his own, unless the disposition he makes violates some law,” is misleading for the reason that it leaves undue influence or mental capacity entirely out of the question.
    5. Where an unjust will has been made, it is the province of the jury to consider whether the testator would have made such a will, had he been of sound mind or free from undue influence.
    6. A reviewing court has power to review the testimony in a will case, and if the verdict is clearly and manifestly against 'the weight of the evidence, it has the power to set aside the verdict and order a new trial as in other cases.
    7. Where the weight of the testimony clearly indicates that the testator had sufficient mental capacity to make a will, .and in view of all the circumstances the will which he did make was a fair and natural one, a finding by a jury that such will was not the decedent’s last will and testament should he set aside.
    Hull, J.; Haynes, J., and Parker, J., concur.
    Heard on error.
    This action is brought to set aside the will of John Kettemann. It was heard in the court of common pleas before the court and daughter of John Kettemann deceased, was the plaintiff below; setting aside the will. Katie Metzger, defendant in error, the daughter of John Kettemann, deceased, was the plaintiff below; plaintiffs in error were the defendants. It is to set aside the judgment entered upon the verdict that these proceedings in error are brought in this court.
   Plaintiffs in error claim that the court below erred in admitting evidence and in ruling out certain testimony; erred in its charge to the jury and in its refusal to give certain requests, asked; and further, that the verdict of the jury was against the weight of the evidence and not sustained by sufficient evidence, and that the court erred in overruling the motion for a new trial on that ground.

A large number of witnesses were called upon the trial — altogether about thirty — the plaintiff below calling twelve and the defendants nineteen.. The petition asked to have the will set aside on the ground that John Kettemann was mentally incapacitated to make a will at the time' it was made, and upon the further ground that the will was brought about by the undue influence of Bertha Kettemann, his wife, and certain other persons not named in the petition. John Kettemann at the time of his death, which occurred in August, 1900, was sixty-seven years old. The will was made on March 4, 1880, when he was forty-seven years of age, and gave all of his property to Bertha Kettemann, who was then his wife by a second marriage, which occurred October 23, 1879, a few months before the making of the will. Katie Metzger, the plaintiff below, was John Kettemann’s only daughter by his first marriage, and only surviving child at the time the will was made. John Kettemann and George Kettemann, two of the plaintiffs in error, are the sons of Bertha Kettemann by her marriage with John Kettemann. John Kettemann left an estate, according to the testimony, amounting to between $15,000 and $16,000 in real estate and personal property, the real estate being valued at between $13,000 and $14,000, lie having $2,000 in a bank at the time of his death. Katie Metzger’s mother, the wife by the first marriage, had some property, and as that cuts some figure in the case, I will mention it. She died leaving an estate of perhaps $5,000 or $6,000, most of which in the end, as will appear in the discussion of the case, went to Katie Metzger, the only daughter.

After John Kettemann’s death the will in question was found in his safe. The evidence does not disclose who wrote the will. They were unable, apparently, to find out in whose handwriting it was. He referred to it in the last days of his life, or rather referred to his papers, stating to those around him that his papers would be found in his. safe; and among them was found this will. The record does not disclose that His widow or either of his two sons had any knowledge of the existence of this will until after his death.

The will is very short, and was drawn substantially after the form given in Swan’s Treatise, where a testator gives all of his property to his wife. On the face of it, it was duly executed and witnessed by two witnesses. It covers altogether about a page of “legal’cap.” It was duly admitted to probate by the probate court of this county, and not long thereafter the petition was filed Fy Katie Metzger, his daughter, to set aside the will.

The testimony in the trial of the ease took a wide range, as is usual in will cases, covering the last twenty-five or thirty years of John Kettemann’s life; and his relations with his daughter and his first wife, his second wife, his relations with Ms neighbors; his conduct; his peculiarities and his characteristics; his habits; his expressions of affection or want of affection .for his daughter and first wife, and many other matters were gone into in the testimony, to bring before the jury as nearly as possible a sort of word photograph of the testator in all of his relations in life, particularly his relations with those who might be the proper objects of his bounty; and testimony as to his mental capacity, his peculiarities, eccentricities, his habits of drinking, so far as that affected Ms mental capacity, was given by witnesses called on both sides.

After hearing all the testimony and the charge of the court, the jury returned a verdict that the paper in question was not John Kettemann’s will. A motion for a new trial was overruled, and by the judgment of the court the will was set aside.

Plaintiff in error claims that at the trial of the case the court erred in admitting certain evidence offered by the plaintiff. The first of this evidence to which I will refer was testimony relating to the habits of his first wife for frugality and industry and his relations with her, showing that he and she lived happily together, that he had affection for her; testimony as to the habits of Katie Metzger, the plaintiff below, of frugality; the work that she did after her mother died, which was in 1873, and before her father’s marriage with the plaintiff, which was in 1879. There was considerable testimony of that kind introduced over the objection of the defendants below, and to which they excepted, and the admission of it is claimed as one of the errors in the trial.

Before discussing that I may as well speak of another class of evidence that was allowed to be introduced, and that was testimony as to what John Kettemann said about his wealth' before he made this will — the amount of property that he was worth;, some of the witnesses testifying that he said he was worth $60,-'000 to $70,000, and some of them said $75,000; testimony as to conversations between him and Katie, and his demeanor toward her and his conduct toward her. He finally came to dislike her for some reason, and indicated it by harsh language toward her about the time she left her father’s house. This was objected to, and exception taken. In a general way this was the character of this class of evidence to which objection was made.

It is urged that the fact that John Kettemann’s first wife was frugal or industrious, or the fact that Katie worked in her father’s house for some years after her mother’s death, did not prevent his making a will which disinherited Katie, the daughter of his first wife. As a proposition of law, that is, of course, correct, but where the question is whether a will has been produced by undue influence, in connection with the question whether the testator had sufficient mental capacity to make a will, any testimony that might or would shed any light iipon the question as to whether the will as made was probably his will or not, or whether brought about by any undue influence, is competent. The weight of the testimony is properly left to the jury, considering all the testimony in the end that has been offered, and determining the question whether the paper writing is in fact the will of the testator or not. If the testimony was entitled to any weight in the consideration of this question, it was properly admitted. In our judgment this testimonv was properly admitted by the court. The plaintiff was entitled to show all these things in connection with all the other testimony that she had, bearing upon the question of John Kettemann’s capacity, and of undue influence, and have it all go to the jury, and there was no error in admitting this testimony.

Several non-expert witnesses were called by the plaintiff below, and over objection were permitted to testify that in their judgment John Kettemann was of unsound mind. This testimony was objected to, and its admission is claimed to be error, on the ground that non-expert witnesses should not be permitted to give their opinion as to a man’s mental capacity, unless based upon facts showing that they are competent to give an opinion that would .be entitled to some weight.

The rule is laid down in Ohio in Clark v. State, 12 Ohio, 483, where the Supreme Court say in the syllabus: “ On the question of insanity, witnesses, other than professional men, may state their opinion, in connection with the facts on which ' it is founded.” This is perhaps the leading case in Ohio on the question, which is fully discussed in the opinion. The case has always been followed.

The testimony of these witnesses discloses that they did in each ease state some facts on which they based their opinion. In some cases there were more facts than others. In the case of some witnesses the facts which they stated were quite meager, but yet in each case the witness showed some acquaintance, and in most of the eases quite a long acquaintance with John Kettemann, and testified to some peculiarity or eccentricity on which they based their opinion that he was of unsound mind, and we think that there was no error in admitting the testimony of these witnesses. Where their testimony disclosed that they had but little opportunity to observe him, and Were not able to state facts that shed very much light upon his mental condition, the opinion would not be entitled to a great deal of weight with the jury. But' it was a question of weight rather than competency, each witness testifying to some facts and to an acquaintance with Kettemann which, in our judgment, under the rule, entitled the plaintiff to have his opinion as a non-expert witness. I will say in passing that there were no “experts” called in this case on either side to testify on the question of mental capacity.

It is claimed that the court erred in ruling out the affidavit of one of the witnesses to the will; that is, the affidavit, or rather what is called the testimony of the witness to the will which was filed in writing in the probate court in the form of an affidavit, the statute providing for the admission of the will and its probate on the part of the defendants in opening the trial of a will contest. In this case, not only the order of probate was read, but the written testimony of one of the witnesses, Valentine Braun, as it appeared in his affidavit filed in the probate court, which was short, and in the usual form, in which he makes oath that he subscribed his name as a witness “at the request of the testator, and in his presence, and in the presence of Franz Holzemer, and that he saw said testator sign said instrument at the end thereof and heard him acknowledge the same to be his will, and that said John Kettemann, at the time of executing the same, was of full age, and of sound mind and memory, and not under any restraint. ’ ’

A printed form was used for this affidavit. It was said in argument that the affidavit was read during the absence of counsel for the plaintiff at the trial of the ease, though that does not appear in the record.

Section 5862, Revised Statutes, provides:

“On the trial of such issue, the order of probate shall be prima facie evidence of the due attestation, execution, and validity of the will or codicil. ’ ’

Section 5863 and 5864, Revised Statutes, provide as follows:

“Section 5863. A certified copy of the testimony of such of the witnesses examined upon the probate as are out of the jurisdiction of the court, dead, or have become incompetent since the probate, shall be admitted in evidence on the trial.
‘ ‘ Section 5864. The party sustaining the will shall be entitled to open and close the evidence and argument; he shall offer the will and probate, and rest; the opposite party shall then offer his evidence; the party sustaining the will shall then offer his other evidence; and rebutting testimony may be offered as in other cases. ’ ’

Section 5864, Revised Statutes, provides that the party sustaining the will shall offer the will and probate, and rest, and, as we understand that statute, that means the order of probate, the judgment and decree admitting the will to probate, and does not cover the affidavit of witnesses filed; but Section 5863, Revised Statutes, seems to provide for the admission of the affidavits in case of the death or absence or incompetence of the witnesses. It says a “copy of the testimony of such of the witnesses examined upon the probate as are out of the jurisdiction of the court, dead, or have become incompetent since the probate, shall be admitted in evidence on the trial. ’ ’

In this trial there was no evidence that either one of these witnesses was dead or incompetent or absent, and we are of the opinion that the affidavits were not proper evidence upon the trial, and there was no error in excluding the one read. There would seem to be no reason why such a piece of testimony as this should be admitted upon the contest of a will in a trial before a jury. If the witnesses were living and competent, they should have been brought into court and subjected to cross-examination like other witnesses. It is to be presumed that the probate court acted upon sufficient evidence when the will was admitted to probate, and the judgment of that court admitting it to probate and the will itself are competent evidence; and that makes a case for the defendants until it has been overcome by the plaintiff.

It is claimed that the court erred in refusing to charge as requested by the defendants below. Several requests were made. Some were given, but most of them refused. I will speak only of one, request No. 7, which was refused, and which is especially relied upon as error:

“It is the right of every man, which right can not be taken from him, to do what he desires with his own, unless the disposition he makes violates some law; and after his death, neither court nor jury have the power to make for him a disposition of his property different from the disposition which he intended to make, upon any theory that such intended disposition was unjust and wrong. ’ ’

This request was perhaps taken from the charge of a court as reported in one of the law bulletins, or substantially so. With some qualification it would state the law correctly, but in our judgment, given in this form, it would be misleading to the jury, and is not a correct statement of the law. It begins: “It is the right of every man, which right can not be taken from him, to do what he desires with his own, unless the disposition he makes violates some law. ’ ’ That leaves out entirely the question of the mental capacity or incapacity of the testator, and the question of undue influence. It is only a person of sound mind and memory — of testamentary capacity — who is under no restraint, who can make a will, as the statute, Section 5914, Revised Statutes, in substance provides. And to say to the jury that “it is the right of every man, which can not be taken from him, to do what he desires with his own, unless the disposition he makes violates some law,” where the two chief questions in the case were whether the testator was of unsound mind or not, and whether he was acting under undue influence at the time he made his will, would be misleading, because it leaves out entirely the question of undue influence and mental capacity. The will of John Kettemann was to be sustained if he had sufficient mental capacity to make a will when he signed it, and if he was not under undue influence of such a character as would make the will not his will, but the will of some other person.

The request, after what I read, proceeds, “And after his death, neither court nor jury have the power to make for him a disposition of his properly different from the disposition which he intended to make, upon any theory that such intended disposition was unjust and wrong. ’ ’ That part of the request is probably a correct statement of an abstract proposition of law. The whole request is really an abstract proposition of law, and is not made to apply directly to the case on trial. But while the latter part is abstractly correct, still the jury would have the right to consider in a will contest, along with all other facts and circumstances, whether the will was unjust or wrong, in determining whether or not it was in fact the will of the testator. While a man has a right to make an unjust will, or one which in the common judgment of mankind is called wrong, still, in determining the question whether the paper writing is in fact the will of the man, the jury have the right to consider whether he would, if he was sound mentally, make such a will. On the whole, we think there was no error in refusing this request; and we find no error in the refusal to give the other requests which were refused.

The principal question in the ease is whether the verdict of the jury was sustained by sufficient evidence. It is contended by the plaintiffs in error that the verdict was manifestly and clearly against the weight of the evidence, and for that reason that the judgment should be set aside. It is urged by defendant in error that the question of mental capacity and undue influence in a will contest is one peculiarly for a jury, and that where there is any testimony, or any considerable amount of'testimony, tend-' ing to sustain either of these propositions, a reviewing court should not set aside the judgment of the court below affirming the verdict on the ground that the verdict is against the preponderance of the evidence only. The statute (Section 5861, Revised Statutes) itself is quoted, which provides that the question of the validity of the will must be submitted to a jury, and that the verdict shall be conclusive, unless a new trial be granted or the judgment be reversed or vacated. While' it is true that the issue in a will contest can only be tried by a jury, in our judgment this means trial by a common law jury, as all cases that are tried to juries are tried. The court presides, and passes upon the questions of law. He instructs the jury as to the law, and the trial is conducted in all respects as any other trial. And the Supreme Court has held in Wagner v. Ziegler, 44 Ohio St., 59, that where there is no evidence offered by the plaintiff to overcome the testimony in favor of the will — no evidence tending to show that the paper was not the will of the testator — the judge may so instruct the jury and direct a verdict. The second paragraph of the syllabus is as follows:

“In the trial of the contest of a will, where the testimony introduced does not tend to prove the issue on the part of the plaintiffs showing incapacity of the decedent to make a will at the time the will was made, it is not error for the court, at the conclusion of the plaintiff’s testimony, to direct the jury to find a verdict sustaining the will. ”

The question of the respective duties of the jury and the court in a will contest are quite fully discussed in the opinion.

It is true that in will contests these questions of mental incapacity and undue influence are peculiarly questions for the jury, as many other questions are; as, for instance, questions of negligence ; they are peculiarly addressed to the jury, and a jury is better able, probably, coming from all the walks of life, and familiar with the motives that actuate men in general and their conduct, to pass upon such questions than any other tribunal which could be constructed. But the statute simply provides that the verdict of the jury shall be conclusive unless a new trial is ordered or the judgment be reversed or vacated. So that we hold that a reviewing court has the power to review the testimony in a will case, and if the verdict is clearly and manifestly against the weight of the evidence, it has the power to set aside the verdict and order a new trial, as in other cases.

It is not possible, within the limits of this opinion, to review even briefly the testimony of each witness that was called in the trial below upon the question of mental capacity or undue influence.

John Kettemann, at the time he made his will, was forty-seven years of age. He had lived in New York and came to Toledo about the beginning of the civil war, and had lived in Toledo at the time he made the will, about twenty years. He had accumulated property worth about $20,000.. He was a merchant tailor, and a dealer in ready made clothing, and for a long time had a place of business on Summit street, near the Steadman monument. About the time the will was made he moved into Broadway. Prior to that time he had had his place of business in different parts of the city. He did quite an extensive business, and accumulated this property all by his own industry and frugality and' shrewdness in business. At the time he made the will he had several houses and lots. At the time of his death in 1900 he had some thirteen houses and lots which he rented, collecting the rents from the tenants. It is claimed that his mind had become affected by the excessive use of intoxicating liquor, and further, that he was afflicted with epileptic fits, which affected his mind, and that his mind was so affected at the time this will was made that he was incapacitated from making a will.

Some of the witnesses called by the plaintiff testified that in their judgment he was mentally unsound about the time this will was made. Katie Metzger, the plaintiff, her husband, Conrad Metzger, and his brother, testified to that effect; and perhaps three others, including one of the name of Sass. These, when called, testified, after stating certain things upon which they based their opinion, that in their judgment he was unsound. According to their testimony he was at times in the habit of drinking or at times drank excessively, and became intoxicated; that he was a man of excitable temperament, and sometimes became very angry and used profane language, and swore at people generally, and sometimes called his customers thieves and robbers and rogues, especially when they attempted to beat him down in the price that he asked for his clothing; and sometimes, not very many times, but a few times, had fallen in one* of these fits, as they were called. No witness testified that it was epilepsy that affected him, bnt the testimony shows rather that it was a heart trouble. On the other hand, some of the witnesses called by the plaintiff below testified that in their judgment Kettemann was of sound mind at and about the time the will was made.

One witness,. Henry Schweibald, testifies on page 14 of the record, that he could not say that he was of unsound mind. Philip Hassenzahl, who was at one time county commissioner of this county, was called by the plaintiff. He testified that he had known Kettemann for thirty years, and dealt with him to a considerable extent; was often in his place of business; and that in his judgment he was sound. John N. Hauser, who had known him for many years, testifies that in his judgment he was sound. On page 42 of the record another witness testifies that he was “all right” so far as drinking was concerned, and did not drink to excess, so far as she knew. Another witness called by the plaintiff, Louis Wacker, testified that he never saw him drunk. Mr. Court Brown was also called by the contestant. He testified that he sold the deceased, in the later years of his life, bonds on different occasions; that he had bought them for himself and for others. On page <53 of the record he testifies, on cross-examination, as follows:

‘ ‘ Q. What kind of a business man was Mr. Kettemann at that time?
“A. Pretty shrewd, I should think.»
“Q. Did he understand how to buy bonds?
“A. I think he did.
“Q. During all the time that you knew him he was a good, shrewd, practical business man?
“A. Why, yes; I considered him a very good business man.”

I call attention to this witness as one called by the contestant when putting in her case. There were six of those called by the contestant, the substance of whose testimony was that Mr. Kettemann was of sound mind, and in fact, that he was attending to his business in the ordinary way during all those years.

The defendants below called altogether nineteen witnesses. There were some sixteen or seventeen of these who testified as to Kettemann’s mental condition and capacity, and testified that in their judgment it was sound, many of them having known him for a great many years. One of them knew him in New York when he was a poor journeyman tailor, working there by the day, before the war. Pie knew him when he came to Toledo about 1860, and knew him and associated with him all the time up to his death. So we have altogether about twenty-two or twenty-three witnesses whose testimony is that during all these years, so far as they knew him, including about the time he made this will — 1880—and after he made the will, John Kettemann was of sound mind. On the other hand, we have the testimony of Katie Metzger, her husband and his brother, and three other witnesses who were called, making six in all, that in their judgment he was of unsound mind. So that, so far the witnesses considered numerically are concerned, those who testified that in their judgment John Kettemann was of sound mind by more than three times outnumbered those who testified that he was of unsound mind.

But these questions are not to be determined entirely by the number of witnesses. The jury had an opportunity to see them; but still it is a proper thing for consideration by the court, and it should be given great weight, that of all these people who were called, who had an opportunity to see him, and who talked with him, dealt with him, ate with him, and drank with him, twenty-three of them gave their judgment to the jury that he was of sound mind, and only six, three of whom may be called interested witnesses, testified that he was unsound. We should, however, consider in connection' with this testimony incidents in John Kettemann’s life and the lives of those who attack his will.

The plaintiff!, Katie Metzger, lived with him after her mother’s death in 1873, and in June, 1878, she was married, and she lived with her father at his request, according to the testimony, after her marriage to Conrad Metzger. Kettemann was acquainted with Bertha, his second wife, for some time before he married her, and, according to the testimony, received letters from her, and the courtship was going on apparently about a year. Before he married her, which was October 23, 1879, he ordered Katie Metzger, his daughter, and her husband, out of his house for some reason. He had conceived a dislike to Katie’s husband, and did not care to have them live there any longer, and, according to the testimony, he had conceived a dislike, and a very great dislike, for some reason, to Katie Metzger, his daughter. The cause of this does not very clearly appear from the record. It does appear that Katie’s marriage with Conrad was p, hasty one, and, for some reason, Kettemann disliked Metzger. A child was born in Kettemann’s house before they left. According to Conrad Metzger, the husband of Katie, Kettemann said to him about a week before he (Kettemann) married Bertha that he wanted him to get out of the house, and threatened if he did not get out, he would put him out; and he testifies that Kettemann threatened to shoot him, and raised a chair to strike him, calling him opprobrious names. Conrad then asked his wife whether she intended to stay or go with him. She said that she would go with her husband. Thereupon Katie, the plaintiff in the case, left the house of her father with her husband. A week after that he married Bertha Sacke, now his widow. Soon after Katie left she procured the administrator of her mother’s estate to bring suit against her father to make him account for the property of her mother’s estate. Her father was very much grieved by this suit, and, according to some of the testimony, wept that his daughter should sue him. He married Bertha within a week after the daughter left the house, and in the following spring — February, 1880 — he made a settlement with his daughter Katie, the plaintiff in this case, of all matters in difference and dispute between them, and a paper writing was drawn up and signed by Katie and her husband, setting forth that settlement. It covers about a page of legal cap, and closes as follows:

“We do hereby forever release and discharge and acknowledge the full payment and satisfaction of all claims of every nature and description we or either of us have against said John Kettemann.
“E. P. Raymond,
“Administrator of Barbara Kettemann.
“Conrad Metzger,
“Katie Metzger.”

That is dated February 9, 1880. There was in the paper originally, at the end of it this: “Growing out of the administration or heir of Barbara Kettemann.” These words were erased, so that it appears that some one, presumably John Kettemann, insisted upon making this paper a full and complete release and satisfaction of all claims of every kind, without any limitation whatever. And in consideration of this settlement, John Kettemann paid to Katie at that time in money °or its equivalent, about $2,700, and gave her notes amounting to about $1,000, out of which, however, she did not realize much, if anything. There was real estate in which he had curtesy, and which he continued to occupy during his life, and whicho at his death went to Katie, which was valued at about $3,000; so that she got altogether about $6,000 out of her mother’s estate. After this paper was signed, John Kettemann said he had settled with his daughter forever, and wept, and said: ‘ ‘ Sued by my own daughter. ’ ’ From the time that Katie Metzger left her father’s house in the fall of 1879, she never entered it again, or visited him, or spoke to him, not even when he was in his last sickness; and he never visited her, or spoke to her, or had any relations with her of any kind. They were the same, as the witnesses said, as though dead to each other. The date of this settlement is February 9, 1880, and on March 4, following, he made the will in question, by the terms of which he gave all of his property to his wife, whom he had married the week following the departure of his daughter from his house.

That will stood as he then wrote it for more than twenty years,'by the terms of which he gave all his property to the woman who bore him two sons, who survive him, and are parties to this suit. It appears, then, that between John Kettemann and his daughter there was a bitter quarrel. He was undoubtedly a man of strong prejudices, of high temper or passion. He was a man of a rather miserly character. After his death $2,000 in money was found in the bank. He was parsimonious, stingy, somewhat, with his tenants and with those who dealt with him; and to be required by this suit to pay over to his daughter $2,700 in money or its equivalent undoubtedly made a deep impression upon John Kettemann, and embittered him, to a great extent, toward his daughter. That she was embittered toward him is evidenced from the fact that she never visited him or spoke to him after she left his house during the twenty years that he lived. It is evident, as her conduct discloses, that in February, 1880, she regarded her father as a man of sound mind. She had this suit commenced against him shortly before that; she carried on negotiations with him through her attorney; she signed this paper of settlement releasing her claims against him. There was nothing in her treatment of him or conduct toward him then that indicated that she regarded him as of unsound mind.

According to all the testimony, Kettemann carried on his business until the day of his death. In the latter years of his life he did not do very much business. His store became somewhat dilapidated, and his stock of goods depreciated. But from the time he made this will until his death, covering a period of twenty years, he associated socially with men in general; he bought lands and built houses, and repaired houses; he rented them and collected the rents; he bought bonds and sold bonds; he ran his merchant tailoring establishment; and in all those transactions there is no evidence that he ever made a bad bargain; that he ever showed any mental incapacity to cope with the men with whom he dealt; that he ever failed to collect his rent or any other debt due him; the testimony shows that he collected promptly, and complained if he was not paid promptly. During this time, occasionally he became intoxicated, and an instance is testified to by witnesses showing his excitable character, when a dog that belonged to his former wife was lost, and he complained to the police, and threatened to kill himself if the dog was not found, and perhaps at that time flourished a pistol. He was excitable, undoubtedly, and sometimes became intoxicated, although he drank but.very little away from his own home, but he had beer, and some witnesses testify, sometimes whisky in his own house. Taking all this testimony together, that offered by the plaintiff and by the defendants) and considering John Kettemann’s life as testified to by his neighbors and acquaintances, down to the time of his death, we were of the opinion that the testimony shows that he had at the time this will was made sufficient mental capacity to make a will. In fact, if the testimony of the interested witnesses should be disregarded, there is very little, if any, testimony in the record tending to show that he had not such capacity. It does not require the highest degree of mental capacity to make a will, as is said in 25 Enc. Law (1st Ed.), 970:

“A person who, at the time of making his will has an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who have a claim upon his bounty and the manner in which it is to 'be distributed, has sufficient mental capacity to execute a will.”

We find no testimony in this record that shows that John Kettemann did not understand, in 1880, the property that he had or its nature; that he did not know, and was not able to carry in his memory at that time, the persons who might be the proper objects of his bounty. And the question always is, had he sufficient capacity, not to make a will in general, but to make the will. And we find that the will which he in fact signed as I have said, was of the simplest character — simply giving to his wife all the property that he had. And we are unable to find in this record — I think I would perhaps be justified in say ing — any testimony, even taking the. testimony of his daughter, the contestant, that establishes, if it stood alone, that John Kettemann did not have sufficient mental capacity to make this will in question. Taking the testimony offered by the contestant alone and her witnesses, in connection with the story of John Kettemann’s life, as disclosed by their evidence, we think the weight of it clearly is against the proposition that he had not sufficient capacity to make his will.

Upon the question of undue influence no direct testimony is offered. There is no testimony that his wife ever spoke to him in regard to this will. One witness testifies that her father said to him shortly after the marriage, that he ought to make a will so that Katie would not get anything; but undue influence must be of such a, character that the act is not the act of the testator, but the act of some other person. I cite authorities without reading: Schouler on Wills, Sections 228, 229; also Monroe v. Barclay, 17 Ohio St., 302, and all authorities there cited along that line;

The court charged the jury that they might infer undue influence from facts and circumstances. We do not think there was any error in the court’s charge on this question of undue influence. Undue influence is usually shown by proving certain facts, and the question as to whether undue influence existed or not is to be determined from the facts as proven, the will itself, and all the facts and circumstances. It is seldom you have a witness testifying directly to acts of undue influence. In determining whether there was undue influence, the facts and circumstances surrounding John Kettemann when he made this will, his feeling toward his daughter, to‘which I have referred, his trouble with her, the lawsuit, the settlement, his feeling of affection toward his wife, were all to be taken into consideration.

The evidence shows that his daughter got from the estate of her mother about $6,000. John Kettemann left an estate when he died of about $15,000 to $16,000, a widow and two children besides Katie; so that out of the common fund, the property of John Kettemann, and that of his first wife, Kettemann probably thought that Katie had really had her share of the general property of her father and mother. And taking all the things into consideration, we think the will which John Kettemann made in March, 1880, was a natural will for him. to make at that time. He had settled with his daughter; he had paid over this money to her; he knew she would have this piece of real estate; she had brought this suit against him, and it was evidently his purpose to settle with her then and there for all time to come. And after he had done that, he made this wdll disposing of his property. We find nothing in the evidence to show that this will was the result of undue influence. I have gone over the testimony in this case at some length, for the reason that it is claimed these are peculiarly questions for the jury, and that their finding should not be disturbed, unless clearly and manifestly against the weight of the evidence; and we are of that opinion. But in the judgment of tbe court, the finding of the jury is clearly and manifestly against the weight of the evidence. And when that appears, it is the duty of the court in a will case, as in any other case, to set aside the verdict and judgment and remand the case for-a new trial. We find no other errors, but, in our judgment, for the reason stated, the court of common pleas erred in overruling the motion for a new trial, and the judgment will therefore be reversed.

Harry E. King, J. J. Waldvogel and Elmer E. Davis, for plaintiffs in error.

Hamilton & Kirby, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    DEDICATION OF STREETS.
    [Circuit Court of Lorain County.]
    Anna J. Wright v. Oberlin.
    Decided, May 2, 1902.

      Streets — Dedication of — XJnachnowledged Map Binding,"When — Statute of Limitations — Does not Run Against a Municipality as to its Streets — Or in Favor of a Trespassing Lot Owner — Except Where Based Upon Equitable Estoppel.

    1. A property owner may make a dedication for street purposes by a map or chart on which he marks the streets and its width, or by allowing the public to use the ground for street purposes.
    2. A map of a village which appears to have been followed, in all conveyances by the original grantors and by the authorities, and is of record among the deeds, is effectual to bind the parties making the dedication, though not acknowledged by them. Such a map is competent evidence for determining the width of a street.
    3. Moreover, if it be shown that this map was before the Legislature when the village was incorporated, every property owner within the village is bound by it.
    4. The statute of limitations does not run against a municipality as to its rights in the streets; nor does it run in favor of a trespasser upon a street or a highway.
    5. Cases where it has been held that the statute runs against a municipality as to its streets, are cases where property owners would otherwise suffer a great hardship, and are based on the ground of equitable estoppel.

      Caldwell, J.; Hale, J., and Marvin, J., concur.
   This is a controversy in this court on appeal, over the width of a street, and as to whether the plaintiffs are occupying any part of the street as laid out and dedicated; and they bring this action to enjoin the village of Oberlin from laying its sidewalk further in upon this land, or further from the center of the street than it now is.

The county commissioners of Lorain county opened a country road, east and west through Oberlin, known as "West Lorain street. This was before Oberlin became a village. And the plaintiffs claim—

First. The street is only sixty feet wide, as laid out in 1837.

Second. The land in question was never in the street.

Third. Adverse possession.

It is admitted that at the time the county commissioners established this road, that it was done regularly as the statutory laying out and establishing of a highway which passes through what is now the village of Oberlin.

That being ascertained, the street sixty feet wide and its location upon the ground is all that is to be determined in this case, unless, thus establishing the street, it takes in some of the plaintiff’s land, and if it does then the question of the statute of limitations comes in, as to whether the land can be claimed after the persons owning this property have occupied it or had it within their premises for so long a period, from 1887, or on or about that time; not quite so long as that.

Now this is true, unless there has been a dedication of a street wider than that since. It is not claimed that there is any other statutory dedication than the one I have already named; but it is claimed there was a common law dedication of a street not only sixty feet wide but sixty-six feet wide, and it has been s& used and accepted by the public and that that street is now of that width, and the village of Oberlin, or city of Oberlin I guess it is now, has a right to have the full width of that street, and hence has a right to lay its walks where it is contemplating, and the plaintiff has no right to the restraining order in this case.

There are various ways in which an owner may dedicate his property. He may dedicate it by allowing the public to use it, or may dedicate it by a chart or map in which he marks his streets, and their widths and the public grounds intended by him as such. And where there is a user, and where the public can be said to have accepted the street, that is sufficient to make a street.

In order that the defendant may overcome the establishment of this street by the county commissioners, it introduced in evidence here a map, which has been received by this court subject to exceptions to be passed upon at this time, as to whether it is proper evidence in the case or not. That map was made by Freeman, a surveyor, and it is on record; not among the maps of the county, but in the volumes of deeds. It is recorded, and a certified copy of it is brought into this case.

No objection is made by reason of the certified copy; the objection is that it is not competent in the first place. And the principal reason urged why it is not competent is, .that it is not shown in this case that the original proprietors of these lands, the college, the owners who obtained them in large tracts and divided tl¡em up and sold them out in lots, that those owners ever in any way recognized this map. It is claimed the evidence shows it is not their map. That is, it don’t show that they ever acknowledged it, that they ever required it to be put on record; that they ever made it or had it made for themselves. Well, if that is true, unless more than that can be shown, it is not entitled to go in evidence in this case as establishing the boundaries and the width of these streets.

Now to show that while the original proprietor may not have had this map made, may not have acknowledged it, may not have had it put on record, it is shown that a map known in the evidence as “Exhibit C,” was made, which is exactly like this map, only showing more of tbe territory divided into lots, made at a later time, and which is really the same map. Evidently two maps could not be made independent of each other and made just alike as they are; one must be a copy of the other; and that in deeding all these lands in question and other lands of the college, the college and the public authorities there went by that map, consulted it as to lots, as to boundaries, as to streets, and everything that pertained to the location of these different parts of lands upon the ground.

Now, that is one ground on which it is claimed the first map becomes competent, and the second is competent because that clearly under the evidence was recognized as the map of this ground by the original proprietors.

It has been said that that map “C,” was made at too late a time to bind these parties, while the map purports to be made a month or two perhaps after the deed of this property was originally given (the first deed in 1857 that was) and evidently the data was taken either from that map or from the first map I have referred to, the map made by Freeman, a copy of which is introduced into this case.

Now, it don’t make much difference whether a party makes a map himself and acknowledges it and puts it on record — those are the steps necessary for him to make a dedication, where it is had by map — or whether he acknowledges a map that some one else has put on, and follows it in his conveyances, it being shown clearly not only that this map has been followed or used in all these conveyances, but it is shown that it is the only map of the village of Oberlin when it was a village. That being true, it being the only map, and being a map followed, it is just as-effectual to bind the parties who originally dedicated these streets and lands and public grounds as though they had acknowledged it in the first place for that purpose.

In the second place, this first map, the map of Oberlin, was evidently the only map that was before the Legislature when it passed the bill creating or establishing the village of Oberlin. And that act referred to a map that was evidently before the Legislature. And it is shown that this is the only map that was then in existence, and it was the only map that could have been referred to. That being true, that map being there established, and the Legislature incorporating the village according to that map, and the village agreeing to that map, everybody owning property was bound by it.

For these reasons we think that both of these maps are admissible' in evidence.

Now these maps say, both of them, that this street in question is a street sixty-six feet in width — one hundred links. It is marked on the large map, which is the last one made in 1857— on the east end is marked one hundred links; on the north side of the college green it is marked one hundred links east of the campus; and it is marked one hundred links west of the campus. This establishes it, this map does, as a street sixty-six feet wide; the first map established it the same way.

As we have stated, the acknowledgment of these maps after-wards, and deeding according to them and following them, if they were so far adopted by the original proprietors, then that was a dedication of those streets sixty-six feet wide — one hundred links.

That being true, the only thing further is to see whether there has been an acceptance on the part of the public, and when we say on the part of the public we do not mean on the part of the lot owners. If the street was dedicated and the public has accepted it, that is all that is required.

The street was opened on the north side as a sixty-six foot street, and on the south side along by the college grounds or college green as it is called, it is a sixty-six foot street; then there is a jog in the street just beyond the college green of five or six feet, perhaps six feet, and that jog continues on the south side with the distance varying, growing less as Prospect street is approached, and beyond Cedar it grows less all the way out, but the narrowest place is in front of the property in question — of Miss Wright’s property — which is only about twenty-five feet.

The witnesses testified that it is easy to be seen that there is a curve in the sidewalk, that it projects at this point along there, a long bend in it, that the west end of the sidewalk lies in on the lots and the east end also lies in on the lots further than the other, and the measurements confirm this testimony.

Now the monuments of this street are thoroughly established by the evidence of the surveyor and by those who have seen the monuments. There is a monument on the northeast corner of the college green; then there are monuments at the intersections of streets from that on, four monuments establishing the center line of this street, and this street as laid out in the first piaee was laid out as being on the original lot lines; but it is impossible now, the surveyor tells us, to tell where the original lot lines are.

The description of the original lots included monuments that have long since perished and been obliterated and no trace of them can be found. Therefore there is no way of establishing the original lot lines, except to establish them by the streets that are laid upon them. This street being laid upon the original lot lines it must now be conclusive under the facts and the facts that are absent and can not be had by the court — it must now be conclusive that those monuments in West Lorain street are on the lot lines; and that lot line and those monuments we can not change. If the court could upset long established monuments and surveys of that character we would soon get landholders into great confusion. It would be impossible. As I stated, this street along the north side has been occupied as thirty-three feet; the line of occupancy has been thirty-three feet, uniform from the center as is established by those monuments; on the south side it has varied. We think, therefore, it is conclusive in this ease that there has been a user of this street as a sixty-six foot street sufficiently to make a complete dedication of it for all uses, and we therefore say that this is a sixty-six foot street lawfully.

The question remaining is as to the statute of limitations. We are pointed to three cases (Cincinnati v. Church, 8 Ohio, 298; Williams v. Presbyterian Socy., 1 Ohio St., 478; Cincinnati v. Evans, 5 Ohio St., 594), wherein the Supreme Court of this state has held that' the public may be estopped, or the statute of limitations may run against the public in its use of a street.

Then we are pointed to cases, an equal number, a greater number we will say of the latest cases, where the Suprme Court has held that the public can not lose its rights in the street.

By some authorities it is held to be a nuisance to occupy any part of the public highway, and that repeating a nuisance from day to day and time to time, the statute can never run against a public nuisance; and if that is the law, if that is the ground, why it is well taken, for that doctrine is well established in the law of nuisances.

Then it is claimed by some that the Supreme Court has never yielded this doctrine; for it has come to be thoroughly conceded, except in cases where it would work an extreme hardship by reason of the owner of the adjoining lands having built out upon the street very expensive buildings, and he may be greatly injured by having to cut them down, and the public good stood by and did not interfere; and some authors put it upon the ground of equitable estoppel; and it is claimed by some that this marks the distinct difference between the two classes of cases in this state.

Now in this case *it has been argued that the real difference between these two holdings in this state, these two opposite holdings — apparently opposite — is this, that a county is only a quasi corporation representing the state, and the statute never can run against the state, and the county so representing the state as it does, the statute of limitations can not run against the county, and therefore a highway out in the country is distinguished from a street in the city; that no rights can be gained in it, on the ground it is the state that is being interfered with through its agent, the county commissioners of the county.

But a municipal corporation has two existences; one its individual rights and another its public rights. In its private rights and obligations it has always been held that the statute of limitations will run against it, but in its public rights, wherein it represents the state, it is held that the statute of limitations does not run against a city any more than it would run against a county or against ,the state.

Now in so far as the city exercises its dominion and jurisdiction over the streets of the city, it is one of its public duties; it is a duty that is placed upon it as the agent of the state, and not in its private right, or by reason of its private existence. That being true as to its streets, it stands in precisely the same situation that the county does to the highway. Hence the argument don’t hold good.

We believe that some of the cases in this state that have held that the statute of limitations may run against a municipality do cause a great hardship, and while they have not been overruled, and have been recognized in later decisions, yet I believe for one, and have so stated heretofore from the bench, that the real ground of those cases is on the ground of equitable estoppel, and that the doctrine to-day is in this state, thoroughly established outside of these cases, as an independent principle of'law from those, that where any one trespasses by reason of fences or shrubbery or trees or anything of that nature upon the highway, whether it be a street or highway in the country, that the party can not plead the statute of limitations.

D. J. Nye, C. A. Metcalf and A. Z. Tillotson, for plaintiff.

E. G. Johnson and W. B. Bedortha, for defendant.

Now it is said this is going to work a great hardship, but the evidence in this ease shows that the plaintiff has more land than the land she purchased, aside from the street claimed by the village or by the city. If the city gets all the land it claims there, she still has two feet more from rear to front than her deed calls for; she loses nothing; it seems like losing something, but it is really losing nothing, and the shrubbery that is along there as shown by the evidence amounts to mere nothing. That part of it -that is prized at all can be easily set back. There are trees there; if they establish this as a sixty foot street that brings those trees right in the center of the walk, more nearly in the walk than it would to make it the width claimed by the city.

In establishing it by the claim of the city it would seem hardly necessary to destroy the trees, from the evidence here, because while they will lie in the walk, it will only be in'the edge of the walk. You can not go into any town or city hardly that you do not see trees standing in that way; it is a common thing, and no one objects to it; they think more of the shade than they do for that little bit of walk.

¥e think, therefore, the plaintiff has not shown any right to recover in this case, and her petition is dismissed. A decree may be taken accordingly.


text:
    NUISANCE IN A STREET BY PERMISSION OF COUNCIL.
    [Circuit Court of Lorain County.]
    Elyria v. Lake Shore & Michigan Southern Railway Co.

    Decided, May 27, 1902.

      Municipal Corporations — Control of Council Over Streets a Continuing Power — Agreement by Council to an Obstruction Seriously Interfering with TJse of Street Invalid.

    Municipal authorities can not contract in such wise that a nuisance may be maintained in the street, and notwithstanding it may have been erected in accordance with an agreement entered into with council, injunction will lie against the further maintenance of an overhead railroad bridge abutment, which occupies a part of the street and is seriously interfering with the use of the street.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
    The case of the city of Elyria against The Lake Shore & Michigan Southern Railway Company is tried to us on appeal from the judgment of the court of common pleas.
    The action is brought by the city of Elyria against the defendant railroad company, the purpose of which, and the prayer of which is for an injunction to restrain the defendant from further continuing and maintaining certain abutments which it has built at the crossing by the railroad of West River street in the city of Elyria, the point being where West River street is intersected by Huron street and West Rridge street, and for an order requiring the railroad commpany to remove those abutments.

       Affirmed by the Supreme Court, January 19, 1904 (69 Ohio State).

   The plaintiff, the city of Elyria, is the successor of the village of Elyria, and is, as the village was, a municipal corporation, poration.

The defendant is a corporation owning and operating a railroad; its tracks pass through what is now the city of Elyria. The railroad company for more than fifteen years last past has maintained its railroad track passing through this municipality, and its track during all that time has crossed West River street at the intersection of West River street with IiuroD street and West Bridge, street. The general direction of thé railroad track is east and west, crossing the street, which runs north and south. Up to about February 20, 1890, the track-of the railroad was maintained at the street grade. At the date last named the defendant changed its crossing at the point to an overhead crossing, to do which it put in large stone abutments on both the east and west sides of the street. These abutments narrow the street at this point to a width of forty feet; that is to say, it narrows the available traveled way of the street to a width of forty feet. The width of the street as it existed prior to "this time was sixty-six feet.

There was some evidence introduced tending to show, or it was claimed tending to show that the street was but sixty feet, but we find from the evidence that the street, at the time to which attention has been called, was sixty-six feet in width. Each of these abutments from north to south is about twenty-nine feet in length.

There is a sidewalk along the easterly abutment above mentioned six feet in width. The easterly abutment above mentioned extends into the street as it existed prior to the making of such abutment but a little more than five feet at one point, and at the point where it encroaches least upon said street the encroachment is considerably less. The entire encroachment, except as made by the easterly abutment already mentioned, is of course made by the abutment on the west side of the street.

Since the construction of these abutments a street railroad has been laid along said West River street, under a franchise granted by the city of Elyria, and said street railroad is now in full operation, running cars at frequent intervals along said street and between said abutments.

The change of the crossing of defendant’s road at the point named from a grade crossing to an overhead crossing became necessary for the proper use and operation of said railroad, but there was no imperative necessity for placing the abutments nearer to each other than the full width of the street, sixty-six feet.

Before the railroad company made the change at said crossing it entered into what is' in terms an agreement with the municipal' authorities as to the manner, terms and conditions upon which said change might be made, and the construction of the abutments heretofore mentioned, and the way in which they are now maintained, is in substantial compliance with the terms of said agreement.

If the municipal authorities had the lawful right to make this agreement in such wise that the municipality should forever be bound by it, then the petition must be dismissed.

It is said on the part of the railroad company that such authority is vested in the municipal officers by Section 3283, Revised Statutes, which reads:

“If it be necessary, in the location of any part of a railroad, to occupy any public road, street, alley, way or ground of any kind, or any part thereof, the municipal or other corporation, or public officers or authorities* owning or having charge thereof 'and the company, may agree upon the manner, terms and conditions upon which the same may be used or occupied; and if the parties be unable to agree thereon, and it be necessary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals.”

Without reading further, that includes so much of the section as it is claimed authorized the making of this contract by the municipal authorities with the railroad company; and that the agreement constitutes a binding contract between the municipality and the railroad company.

This section has been construed in numerous eases. In Railroad Co. v. Defiance, 52 Ohio St., 262, the section was construed, and the seventh clause of the syllabus of that case reads:

“An ordinance which in terms authorizes a railroad company to erect new bridges of a specified description over the track of its railway where it crosses designated streets, the bridges to be kept in repair by the company, does not divest the municipal authorities of their control over the streets, nor impair their power to improve the same, nor entitle the railroad company to perpetually maintain the bridges so constructed; but the ordinance and privilege granted by it are subject to a proper exercise by the municipal body of its* power to improve the streets, and make such changes in the grades as may be necessary to subserve the public interest. ’ ’

In the opinion in the case pronounced by Judge Williams this language is used, beginning on p. 308:

“It may be observed that the extent of the authority conferred by this statute on municipal corporations is to agree with railroad companies upon the manner, terms and conditions upon» which a street, etc., may be used and occupied by a railroad, ‘if it be necessary in the location’ of the railroad for any part of it to occupy said street, etc., and then they may agree for the use of so much of the street only as is necessary for the purposes of the railroad. This limitation is manifest from the provision that if the parties are unable to agree, the company may appropriate so much of the street as is necessary for the purposes of its road. The object of the appropriation is to acquire such use of the street, etc., as could have been granted by agreement; and no greater use can be obtained in the one mode than in the other; the right acquired is either limited to the use of so much of the street as may be necessary for the purposes ‘of the railroad.’ The statute, we think, does not contemplate the destruction of the street, or the cessation of its use by the public, or its withdrawal from the control and supervision of the proper municipal officers; nor is authority found in it for any agreement having such results. On the contrary, the statute recognizes the street so burdened with a railroad as a ‘public street,’ with all that term imports.”

Then attention is called to the next section, Section 3284, Revised Statutes, which requires when a street or stream, etc., shall be crossed by a railroad, by the track of a railroad, and it becomes necessary to divert the same, that is the street or stream, whatever it is that is crossed, that the company shall restore the street or alley or stream that is diverted to its former state of usefulness. That is, it shall be required to place the road or stream or whatever it has thus crossed or diverted from its location without unnecessary delay in such condition as not to impair its former usefulness. And in the opinion Judge Williams holds that this is to be' read in connection with the other section.

The same case, the case to which attention has just been called, of Railroad Co. v. Defiance, went to the Supreme Court of the United States, and is reported in Wabash Railway Co. v. Defiance, 167 U. S., 88. On p. 486 in the opinion of the Supreme Court, delivered by Mr. Justice Brown, commenting on two Sections 3283 and 3284, Revised Statutes, he uses this language:

“Reading these two sections together, it is open to doubt whether Section 3283 is not confined to eases where the railroad runs along and upon the street, road or* alley, in* which ease some kind of contract or agreement with the municipality would seem to be almost necessary for the mutual accommodation of the railroad and the public, who desire to retain the use of the street for ordinary travel. The matter of crossing the street, however, is treated by Section 3284 as one of the necessary incidents of railroad construction; and all that is required is that the company, after having made the crossing, shall replace the road in such condition as not to impair its usefulness. ’ ’

A further discussion of the two sections is found in Zanesville v. Fannan, 53 Ohio St., 605. On p. 614 the court say, speaking of the duty imposed by the statute upon the municipal authorities to keep the streets open and free from nuisance:

“And those powers»and duties continue when a railroad company has placed its tracks in a public street, whether they were so placed under permission granted by the municipality or under an appropriation for that purpose. In neither event are the municipal authorities divested of their powers, nor absolved from the performance of their duties. Nor does Section 3283 contemplate that a railroad company, in the use of a street for the purposes of its road, under a right acquired in either of the modes provided, may destroy the same or create nuisances therein. ■ On the contrary, it contemplates that the company shall exercise its rights with proper regard to those of the public in the street, and that the street and its uses by the public shall be preserved and protected, with such additional use as may be necessary in the proper operation of the railroad, which is itself a means of public use. If the permission to occupy the street be granted by the municipal authorities, they may and should prescribe such reasonable regulations and conditions as will prevent the creation of nuisances and preserve and best protect the free and full use of the street by the public.”

W. W. Boynton and F. M. Stevens, for plaintiff.

E. G. Johnson, for defendant.

Without reading further authorities, though there are many in line with these which are cited by counsel in their briefs, and quoted from, we hold that by0this agreement entered into between the municipal authorities of Elyria and the railroad company, the municipal authorities were not relieved from the obligation to keep the streets open and free from nuisance, nor did the railroad company acquire the right to so occupy the street as to constitute a nuisance to the public.

In one of the eases it is said that the public authorities could not make such contract as to take away from the municipality the right to have the streets used for the purposes of a street.

The evidence is such that it can not be doubted that the construction of these abuments, as they are, constitutes serious interference with the use of the West River street or the streets which there intersect. And under the statutes which require the municipal authorities to keep the streets free from nuisance, and the proposition that the city can not contract in such wise that nuisances may be permitted in the street, it seems clear that the plaintiff is entitled to the relief here sought to the extent that it is necessary to relieve the street from such obstruction as seriously interfere with the use of the street by the public.

The encroachment, as has already been stated, is chiefly on the west side of the street, and if the abutment there should be removed to the line of the street, the street would probably be sufficient for all the present needs and rights of the public, and we have come to the conclusion, therefore, to require the railroad company to' remove that abutment which is on the west side back to the line of the street, and a decree may be entered here as in the court below.


text:
    BENEFICIAL INSURANCE.
    [Circuit Court of Hamilton County.]
    Grand Lodge of A. O. U. W. v. Mary J. Bunkers.
    Decided, April 24, 1902.

      Insurance — In the Ancient Order United Workmen — Officers of Can Not Waive Constitutional Provision — Denying Membership to One Engaged in the Sale of Intoxicating Liquors — Modification of Special Charges — Estoppel or Waiver, Though Not Pleaded, Available, When.

    1. Where the constitution of a fraternal order provides that no person shall be admitted to beneficial membership who is engaged in the sale at retail of intoxicating liquors, the officers of the order are without power to waive this provision.
    2. In a reviewing court a party may avail himself of the legal effect of facts which, though'not pleaded, constitute an estoppel or waiver, and which appeared in the trial below.
    8. Complaint can not be made of the modification of special charges, where the only reference to such modification in the bill of exceptions is the exception of counsel thereto, and his statement as to wherein they were modified.
    Giffen, J.; Swing, J., and Jelke, J., concur.
    Heard on error.
   The original petition of the defendant in error stated a cause of action upon a certificate of membership issued by the plaintiff in error to George E. Bunkers. The first defense was that said member, being a saloonkeeper, was ineligible, under Section 74 of the constitution, to membership; that he stated in his application that he was a painter, by occupation; that said statement was willfully false and fraudulently made; that the certificate would not have been issued but for such statement, and that the local lodge and the grand lodge had no knowledge of the falsity of such statement. A verdict and judgment were rendered in favor of the defendant in error.

1. The first alleged error that we will notice is the refusal' of the court to allow the witness, Fred. Dhonau, the grand master of the grand lodge of Ohio, to answer the following question:

“State to the jury, if you know, when you signed the particular certificate which was subsequently delivered to the husband of plaintiff in this case?”

It is sufficient to say that, although counsel for plaintiff in error attempted to state what he proposed to prove by the witness, the record does not disclose any definite time which the witness would say was the date of signing.

2. It is 'claimed that the court erred in striking out the answer of the witness, Burton R. Kob, that “Geo. E. Bunkers, on the evening of his initiation, said that he did not remember to whom he had sold his saloon,” but the answer so stricken out is as follows:

“Why, who did you sell your saloon to, George?” He thought for a while. I put the question a second time, and he couldn’t remember the man’s name he said he sold out to.”

It will be observed that this is hot a statement that George E. Bunkers said he couldn’t remember, but merely an impression or opinion of the witness that Bunkers couldn’t remember.

3. The grand master also testified that he knew at the time the certificate was issued that Bunkers was a saloonkeepér, and had been for several years prior thereto, but that he did not know until September, 1899, that the certificate was issued to Bunkers, although he himself had signed the certificate dated 'July 13, 1899.

The court, upon motion of the defendant in error, struck out that part of his testimony relating to his knowledge when Bunkers became a member. This was not error, as the testimony would vary and contradict the terms of the very instrument signed by the grand master, and upon which the action was based.

4. The facts tending to prove an estoppel or a waiver first appeared in the trial of the case and from the evidence offered by the defendant below. It was competent therefore for the plaintiff below to avail himself of their legal effect, although not having pleaded them in her reply. Bank v. Flour Co., 41 Ohio St., 552, 559, 560.

McKenney & Belville and Patterson A. Reece, for plaintiff in error.

Bromwell & Bruce and Wm, R. Medaris, for defendant in error.

5. It is claimed the court erred in modifying the four special charges requested by plaintiff in error, before giving them to the jury; but the bill.of exceptions contains the following recital: “And the following charges asked by the defendant are given. ’ ’

While it is true that counsel for plaintiff in error excepted to the charges given and as modified by the court, and also stated in what particulars they had been modified, there is no other statement in the bill showing that the court modified the charges. This court is bound by the record made, and can not therefore consider the exceptions to the special charges given at request of plaintiff in error.

6. The court charged the jury in a special charge as well as the general charge in substance that although they found that at the time of the issuance of the certificate Geo. E. Bunkers was engaged in the saloon business, if the lodge or its agents waived that fact, plaintiff could recover.

Section 74 of the constitution provides that—

“No person shall be admitted to beneficial membership in the order * * * unless he be of good moral character * * * and not engaged in the sale of intoxicating liquors at retail. ’ ’

To admit one engaged in the sale of intoxicating liquors at retail to membership would be a violation of this fundamental provision of the order, which is of the substance of the contract, and although the chief officer had knowledge of the fact he was without power to waive such provision. McCoy v. Insurance Co., 25 N. E. Rep., 289 (152 Mass., 272).

The plaintiff in error being a fraternal order, is exempt under Section 3631-11, Revised Statutes, from the provisions of Section 3625, Revised Statutes.

Judgment reversed and cause remanded.


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    MEASURE OF LOSS THROUGH MISTAKE IN A TELEGRAPH MESSAGE.
    [Circuit Court of Summit County.]
    Postal Telegraph Cable Co. v. Akron Cereal Co.
    Decided, January Term, 1902.

      Contract — Can Be No Breach of — Where Never Fully Entered Into Because of a Misunderstanding of Terms — Due to a Mistake in a Telegraph Message — Measure of Damages Against the Telegraph Company.

    There can be no breach of a contract which, because of a misunderstanding between the parties as to its terms, was never made; and where the misunderstanding was due to a mistake in the transmission of a telegraph message, the measure of damages against ■the telegraph company is not the amount of loss sustained by the sender of the message through failure to fix prices as he had intended, hut the amount of loss actually sustained by him in connection with the negotiation.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
    Heard on error.
    The case of the Postal Telegraph Cable Company against the Akron Cereal Company comes into this court upon a petition in error, seeking to reverse the judgment of the court of common pleas.
    Suit was brought in that court by the defendant in error against the plaintiff in error upon this state of facts:
    One N. A. Bosch, of Maastrich, Holland, had some correspondence with the Akron Cereal Company, of this city, in relation to the purchase by the former from the latter of certain goods known as distillers’ grits. This correspondence was prior to November 29, 1898. By such correspondence it was known to the cereal company that if Bosch wanted to wire it asking price for such grits he would use the word “eotation” (spelled a little after the Holland way), meaning “quotation,” but the word “eotation” was used. But, further, it was known by both parties that the word “sack” meant a certain quantity of the grits. With this knowledge on the part of both, Bosch, on November 29, 1898, cabled the cereal company in these words: “Cotation 5,000 sacks.” This meant to both the sender and the cereal company, “At what price cart you furnish five thousand sacks of distillers’ grits?”
    To this, on the next day, November 30, the cereal company sent to the Postal Telegraph Cable Company for transmission by cable to Bosch the following: ‘ ‘ 63dx4 guilders cif Rotterdam December January.” This meant to the sender that it would furnish five thousand sacks of distillers’ grits, including cost of insurance and freight, at Rotterdam, Holland, at six and three-quarters guilders per sack, to be delivered in December, 1898, and January, 1899; and if it had been sent as it ought it would have meánt this to Bosch. The letters “dx” between the figures “3” and “4” meant, both to the sender and to the telegraph company, that a hyphen was to be placed between these two figures.
    The telegraph company undertook to transmit this as received ; by it to Bosch at Maastricht. Instead, however, of sending it as delivered, it sent a message to Bosch in these words: “634 guilders cif Rotterdam December January.” This was, and might well be, understood by Bosch as offering to send the five thousand sacks at the price of 6.34 guilders per sack instead of six and three-fourths, that is, 6.75 per sack, so that by the . mistake of the telegraph company the price given to Bosch was 41-100 guilders less than that given by the cereal company to the telegraph company. This, on each one thousand sacks, would make a difference of four hundred and ten guilders, or, under the evidence in this case that a guilder is worth forty cents of our money, it would make a difference of $164 per thousand sacks.
    Assuming that the telegraph company was the agent of the cereal- company in such wise that what it said to Bosch should be held to be the act of the cereal company, and, in our view of the case, that'assumption can be made and do no prejudice to either party; no discussion is had as to an argument made here upon the question of whose agent the telegraph company was.
    An unconditional acceptance of this proposition would have constituted a contract binding the cereal company to furnish to Bosch five thousand sacks of grits at $164 less per thousand sacks than the price it really fixed for the goods; that is to say, that would be true if the figures “634” meant (and they properly meant) 6.34. Some discussion was had here as to whether Bosch was justified in understanding the figures “634” to mean 6.34 guilders. As has already been said, it was agreed between the parties, or, if it has not been stated, it was agreed between the parties that the price should be given in guilders.
    Now, since six hundred and thirty-four guilders would be certainly so much that Bosch must have known it did not mean that, there can be little doubt that it was properly understood by Bosch as meaning 6.34 guilders. That being true, what has already been said, that if there had been an unconditional acceptance of this offer, and assuming that the telegraph company is the agent of the sender, the cereal company would have been bound to furnish five thousand sacks at 6.34 guilders per sack.
    On December 3, 1898, Bosch cabled the cereal company in these words: “Accept 1,000 each month.” This meant to each of the parties that Bosch would take one thousand sacks of grits in December, 1898, and one thousand in January, 1899, at an agreed price. To Bosch it meant at 6.34; to the cereal company it meant 63.4, or seventy-five hundredths. If this modified proposition to take two thousand sacks instead of five thousand sacks in December and January had been accepted without explanation or condition, assuming, as before, the agency of the telegraph company, the cereal company would have been bound to deliver the goods at 6.34.
    The cereal company did not have the grits on hand, but decided to furnish the two thousand sacks at 6 3-4 guilders, which it understood to be the agreed price. Thereupon it ordered them from the Cumberland Mills, at Nashville, Tennessee; and at once, on the day of this last cable message, it wrote Bosch a letter, put it into the mail at Akron, and in that letter the cereal company said: “We beg to confirm our cable to you quoting 6 3-4 guilders per hundred kilos in one hundred kilo bags for our choice white brewer’s grits cif Rotterdam; also to confirm your acceptance received this morning of one thousand bags each month, meaning December and January shipments. We have, therefore, entered your order for one thousand sacks, ’1 etc. That letter was received by Bosch on December 15, 1898. Whatever notice then Bosch ever received that the cereal company had accepted his offer for one thousand sacks each for the months of December and January, he got by this letter notified him that the acceptance was at 6 3-4 guilders instead of 6.34.
    It is said that when the cereal company mailed that letter it thereby accepted the modified order for two thousand sacks instead of the proposition to furnish five thousand sacks, and that there was no change in the price, and that, therefore, it should be held that the cereal company became bound to furnish the two thousand sacks at 6.34.
    Suppose, instead of mailing that letter, the agent of the cereal company, by some means, could have talked with Bosch on that day, and said to him: “Mr. Bosch, we had notified you we would furnish you five thousand sacks at a price; we have now got your order for two thousand sacks at a price, and we will let you have them, that price being 6 3-4, ’ ’ all in one conversation, all at the same time, is it possible there would have been any binding contract on the cereal company to furnish at 6.34, when at the very time they say to Bosch, we propose to furnish you the two thousand sacks that you want at the price that we have heretofore offered you, to-wit, 6 3-4 ? It seems clear that Bosch would not have been able to enforce that contract, that he could not have recovered damages if the cereal company refused to furnish those goods at less than 6 3-4.
    Bosch wrote a letter on December 3 to the cereal company. That letter is found in the bill of exceptions. It is somewhat difficult to read, and it is not necessary to read it. It is a letter in which he, on that same third of December, stated to the cereal company that he begged to confirm his order by cable for two thousand sacks at 6.34. That was received by the cereal company on December 17.
    Now, if there was ever a contract between the cereal company and Bosch, it seems very difficult to fix any time when that contract was completed. First, Bosch says, “What will you furnish me five thousand sacks for?” The cereal company said — what was received by Bosch said (giving the most favorable interpretation to the cereal company) — “6.34.” Bosch said, “I will not take five thousand sacks at that price, but I will take two thousand sacks at the price you have fixed,” Bosch having got it that the price fixed was 6.34. The cereal company said, We have your order for two thousand sacks, and we will let you have them at our price, 6 3-4. Bosch said, “I won’t take them at that price, but I insist on the 6.34. ’ ’ When was the contract completed between Bosch and the cereal company? We think it clear there never was a contract completed between them. There never was a time when Bosch could have held the cereal company under a contract to furnish two thousand sacks at 6.34. Up to this time, although the cereal company had determined that it would furnish, supposing it was to get 6 3-4 for the goods, and had ordered them, no goods had been shipped at all.
    Several days after both parties knew of this mistake. The cereal company sent on the goods, and it thereafter settled with Bosch at 6.34, Bosch insisting that he had a right to them at that price; although, if we are right, no contract had been made by which it was bound to do it, it did it; furnished the goods at 6.34, and now sues the telegraph company for the difference, and recovered just the amount, $164 per thousand sacks, which, under this evidence, would be the difference between the price at 6.34 and 6 3-4.
    This case was tried to the court without the intervention of a jury, but the measure of damages allowed by the court is determined by the difference between the price of these goods at 6.34 and the price at 6 3-4.
    The law is well settled, that for its negligence to send messages as delivered to it, a telegraph company is liable in damages, if damages are thereby occasioned. Of course, this does not mean it is an insurer, but it means it puts upon the company the burden of showing a suitable and good reason why it did not send what was furnished it; as is said in Western Union Tel. Co. v. Griswold, 37 Ohio St., 301, it may show possible that by act of God or the public enemy it was unable to send, atmospheric conditions may have rendered it impossible but, prima facie the company is liable for the mistake it makes; but it is liable only for the damages which result naturally, proximately and necessarily from such mistake as is made.
    In this case there is no question about the negligence of the telegraph company. It was clearly negligent, for it is shown here that it understood that the message as it reached it meant 6 3-4, and it did not send it that way.
    The cereal company here was damaged at least to the extent of what it paid for the message which was sent. It may have been damaged beyond that for something else it did, but, if so, there is no evidence as to anything about it. We don’t know, it might not have been, and possibly there is something else by which it was damaged, possibly the expense of negotiating with the Cumberland Mills for the goods. However, there is no evidence about that here.
    The court was in error in its measure of damages. The measure of damages was not to be determined by the difference between the price that Bosch understood the goods to be and the price the cereal company understood the goods to be, because there never was any contract between the cereal company and Bosch that it should deliver those goods at that price of 6.34. •
    Our attention is called to the case of the Western Union Tel. Co. v. Griswold, supra. Counsel in this case are very familiar with that case. It is clearly to be distinguished from this. In that case a message was sent by the agent of Griswold & Company from Canada asking if he should purchase flaxseed, a certain number of bushels at $1.50 per bushel. The telegraph company, instead of putting that $1.50 made it one five. Gris-wold & Co. immediately notified their agent to buy the goods. Here is the answer. “Yes, if seed is prime; and we can hold at London until spring.”
    Attention is called to that in the argument of this case, suggesting that here was- not an unconditional acceptance of an offer. This was an instruction by Griswold & Co. to their own agent, in answer to a dispatch which their agent had sent them, and on which, of course, he was authorized to act. We think it is very clearly to be distinguished from this case. In that case the telegraph company was held liable.
   Judge Boynton, in delivering the opinion for the majority of the court, announced three propositions — perhaps four.

First. That the verdict was sustained by sufficient evidence. That he held as a fact.

Then, as propositions of law, he held that the special agreement that is shown in the case, whereby the company says it will not be liable unless the message is repeated, was not binding; that the company could not relieve itself from its own negligence by that agreement; that did not relieve the telegraph company from the consequences of its own negligence.

Second. As a matter of law, Judge Boynton announces that the failure to transmit the message as delivered is prima facie evidence of negligence.

Third. As a matter of law, he holds that that message was not obscuré; that is all the propositions of law.

Judge Okey dissented in this case, and he sáid that the verdict was not supported by sufficient evidence, and taking that view of it, he then discusses what the law would be in case the verdict was not supported by sufficient evidence.

Claim was made that Cowpland, the agent of Griswold^ Company, had notice of the erroneous message, or of the fact that the message was erroneous before he bought a bushel of flax-seed. That was denied on the other side. Judge Okey says that it is clear that Cowpland did know before he bought any seed, and then he goes on and discusses what the law would be in that ease, and nothing he announces in that regard is at all at variance with the opinion of the court as delivered by Judge Boynton.

Attention is called to Ayer v. Telegraph Co., 79 Me., 493 (21 Am. & Eng. Corp. Cases, 145), where there was a mistake made in a message about some lath. Without stopping to read the case, it shows there was a contract completed between the parties, and that being true it was held that the telegraph company was liable for the mistake it made in its message.

The ease referred to in 25 Enc. Law (1st Ed.), page 890, Western Union Tel. Co. v. Shotter, 71 Ga., 760, shows that there was a contract complete between the parties; that the contract was different from what it would have been, because of the negligence of the telegraph company.

Allen & Cobbs, for plaintiff in error.

Slabaugh & Seiberling, for defendant in error.

It is true that in neither of these cases was there a performance until after the mistake was known, but there was a complete contract between the parties, and that being binding, the party who lost by it held the telegraph company.

As being applicable as well to cases of this sort involving telegraph messages as to any other contracts, the rule of law seems to be such as is stated in 2 Townsend on Negligence (2d Ed., 1886), 858, par. 20, where it is said that the law, for wise reasons, imposes upon the parties subjected to injury for the breach of a contract the active duty of making reasonable exertions to render the injury as light as possible. Public interests and sound morality accord with the law in demanding that, if the injured party through negligence or willfulness, allows the damage to be unnecessarily enhanced, the increased loss justly falls upon him.

Applying that principle here, although it was not a contract as between the parties, yet there was to be some loss, at least the expense of the message, and certainly a loss to the cereal company if it was mistaken or had been led into making a contract at $164 per thousand sacks less than what the property ought to have brought, but before any contract was made and before any goods were delivered it knew of that.

Now, neither good morals, it seems to us, nor sound reason, would allow the company to go on and furnish those goods and charge it up to the telegraph company.

We think there was error in the judgment of the court below, and it is reversed, and the case remanded to the court of common pleas.


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    LANDLORD AND TENANT.
    [Circuit Court of Hamilton County.]
    Shinkle, Wilson & Kreis Co. v. Robert J. Birney et al.

    Decided, February 8, 1902.

      Landlord and Tenant — Damages Resulting from, Collapse of Building— Knowledge of Latent Defects — Doctrine of Caveat Emptor Applicable.

    Where a tenant has equal opportunity with his landlord for discovering latent defects in the building he is occupying, the doctrine of caveat emptor applies, and knowledge of such defects can not be charged to the landlord more than to the tenant.
    Giffen, J.; Swing, J., and Jelke, J., concur.
    Heard on error.

       Affirmed by the Supreme Court without report, May 25, 1903.

   Conceding the law to be as stated by counsel for plaintiff in error that “if there is a concealed defect that renders the premises dangerous, which the tenant can not discover by the exercise of reasonable diligence, of which the landlord has or ought to have knowledge, it is the landlord’s duty to disclose it, and he is liable for the injury which results from his concealment of it,” still there is no finding by the court of common pleas that the defendants in error had or ought to have had knowledge of the defects causing the damages, nor does it find that they knew how long the defective timbers had been in the building, which, together with other facts, was necessary to show that by the exercise of ordinary care they would have discovered the defects camplained of.

If the plaintiff in error had equal opportunity with the defendants in error to discover latent defects, the rule of ca/oeat emptor applies.

There being no more definite knowledge of defects on the part of defendants in error than that possessed by plaintiff in error, there was no greater duty imposed on the former to make the prescribed tests by “tapping or boring.”

Judgment affirmed.

Robert Ramsey, for plaintiff in error.

John S. Conner and Harrison & Aston, contra.

The relief asked in the cross-petition in error can not be granted, for the reason that the bill of exceptions is incomplete, and for the further reason that this court is not authorized to amend the findings of fact.