text:
    WILLS
    [Lorain (8th) Circuit Court,
    May 1, 1907.]
    Winch, Henry and Marvin, JJ.
    William White et al. v. Edgar M. Freeman et al.
    Life Estate and Expenses of Last Sickness and Funeral Granted Widows.
    The will of Jacob Henry White, after providing for the payment of his just debts and funeral expenses and one dollar to each of his three children, willed his property as follows:
    “Third. All the rest of my property and estate I give and devise and bequeath to my beloved wife, Frances S. White, giving her full right and power to adjust and settle all claims due me at my death.
    “Fourth. At the death of my said wife, Frances S. White, I will that all property and estate remaining after settling all claims due, such as expenses of last sickness and funeral expenses, and all that remains of my estate, to be divided equally between my son William White, Dora Stock, and the heirs of my son John White. That is to say, one-third of the remaining parts of my estate to William White, and one-third part of my estate to Dora Stock, and one-third part of my estate to the children of my son John White.”

      Held: The widow took a life estate in the fund left by her husband, from which should be paid the expenses of her last sickness and funeral expenses and the remainder to those named in her husband’s will.
    Error.

      C. A. Metcalf, for plaintiffs in error.

      W. B. Johnson,-for defendants in error.
   MARVIN, J.

The parties here are as they were in the court below. Plaintiffs sued to recover from defendants certain money which they claim under the will of Jacob Henry White, deceased, and which the defendants claim under the will of Frances S. White, deceased.

Jacob Henry White, a resident of Lorain county, Ohio, died testate. His will was admitted to probate in said county on July 21, 1900. He left a widow, Frances S. White, who died testate March 25, 1906.

His will reads as follows:

“In the name of the Beloved Father and of all, Amen:
“I, Jacob Henry White, of the township of Pittsfield, county of Lorain and state of Ohio, being about 70 years of age and being of sound and disposing mind and memory, do make and publish and declare this my last will and testament hereby revoking and making null and void all other last wills and testaments by me made heretofore.
“First. My will is that all my just debts and funeral expenses shall be paid out of my estate as soon after my decease as shall be found convenient.
“Second. I give, devise and bequeath to my son, William White, now residing in Pittsfield, Lorain county, Ohio, the sum of one dollar, $1.00. To my son John White, now living in Wellington, Ohio, I give to him the sum of $1.00. To my daughter, Dora Stock, now living in Grafton, Ohio, I give to her the sum of one dollar.
‘ ‘ Third. All the rest of my property and estate I give and devise and bequeath to my beloved wife, Frances S. White, giving her full right and power to adjust and settle all claims due me at my death.
“Fourth. At the death of my said wife, Frances S. White, I will that all property and estate remaining after settling all claims due, such as expenses of last sickness, and funeral expenses, and all that remains of my estate, to be divided equally between my son William White, Dora Stock, and the heirs of my son John White. That is to say, one-third of the remaining parts of my estate to William White, and one-third part of my estate to Dora Stock, and one-third part of my estate to the children of my son John White.
“Fifth. I nominate and appoint my said wife and William Stock, of Grafton, Lorain county, Ohio, executors of this last will and testament. I desire that no bond as such executors be required, and that no appraisal be made of my estate; and the probate judge of Lorain Co., Ohio, omit the same if it can be legally done.
“Dated June 23, 1898.
“Jacob Henry White.
“Witnesses,
“H. M. Pierce,
“R..N- Gorotj.”

By her last will the widow, Frances S. White, bequeathed her entire property to these defendants.

What transpired in relation to his property after the death of Jacob Henry White is found by the court of common pleas as follows:

“First. That the plaintiffs are the same persons named in the last will and testament of Jacob White, who died at the date set forth in the petition, as entitled to what remained of his said estate after the interests of said Frances White were disposed of. That the copy of the will attached to the petition is a true copy of said will.
“Second. That said Frances White made the application for the probate of his said will, and for letters, testamentary to be issued to the persons named as executors in said will in which she testified that his estate consisted of about $500 of personal property and that both she and said William Stock were appointed and qualified as executors under said will, under the terms of which she as such widow elected to take.
“Third. That the amount for distribution under said will was $314.22, all of which was paid over to the said Frances White under the terms of said will as such widow, in the fall of 1900, who mingled said money with her own, and kept it so mingled during her life, and died on the 25th day of March. 1906, having in her possession more than $314.22 in money and other property, all of which was so held under claim of right thereto by her, and she died leaving a will by the terms of which she devised and bequeathed to the said Amy Freeman all the property real and personal of which she should die seized. The said Amy Freeman and Edgar M. Freeman were during all said time and still are husband and wife, and said Amy was the nieee of said Frances White, whose sister was Amy’s mother. That said Freemans cared for said Frances for some years before her death in various ways, she living near them by herself. That if they are allowed for their care of her what it is reasonably worth, it would amount to said sum of $314.22 and more. That the expenses of her last sickness and funeral and burial amount to $75 and were paid by said Freemans. There was no evidence of any other or further claims against the estate of said Frances White or against her in her lifetime, either due, paid or owing to any one, either before or after her death.
“Fourth. That at the death of said Frances the said Free-mans took and appropriated to their own use all the property which the said Frances had in her possession and no part thereof has been paid to the other persons named in said Jacob’s will.
“Fifth. That said will was written upon the .ordinary will blank, and ‘Item I’ thereof is wholly printed as a part of such blank form, no part thereof being in writing.
‘ ‘ Sixth. There was no evidence that the said Frances promised to pay said Freemans for the care they bestowed upon her, but the court finds that said care was necessary for her comfort and support, and that she had told said Freemans of the said will to said Amy before said support and care were so bestowed upon her.
“Seventh. That said Frances was the second wife of said Jacob, and the step-mother of all his children, and said Free-mans were not related to him except through his marriage to her.
“Eighth. That the said Frances had and kept an estate separate from said Jacob. That at the time of their marriage the said Jacob was living upon a farm of fifty acres having a life use thereof, and having some personal property upon the farm, and possibly some money, just how much is impossible to ascertain, but the court finds that it did not amount to very much. Under these circumstances he married said Frances. Soon after their marriage said Frances began to receive payments upon a legacy of $1,000 due her, and up to 1900 all but $160 of the $1,000 had been paid either to said Frances or to said Jacob White, the greater portion having been paid to him. That at the death of said Jacob said Frances had certain debts due her, which aggregated $760 and which she collected and mingled with said $314.22, which she received under her said husband’s last will. That she used the money thus mingled together for her support for six years and died leaving $740 thereof, in her possession, which she willed to the said Amy Freeman. That the said Frances White used more than the said $314.22 for her support during the six years she lived after the death of her said husband aforesaid.”

The controversy here is as to whether at the time of the death of Frances any of the property then in her possession was held by her in trust for the plaintiffs. If so, how much?

If she became by the will of Jacob, the absolute owner of the residue mentioned in the third item of his will, then the plaintiffs were not entitled to recover. If she held all or any part of it in trust, then plaintiffs were entitled to recover the amount of such trust property.

The proper construction of the will of Jacob Henry White determines the entire controversy.

This will was executed by using a printed blank, and the first item is entirely in print and as already quoted reads:

“First. My will is, that all my just debts and funeral expenses shall be paid out of my estate as soon after my decease as shall be found convenient.”

The remainder of the will is in writing.

By the third item, as already quoted, it will be seen that the residuum of the estate is given to Frances, in such terms that, but for what follows, there could be no question as to her becoming the absolute owner under it, by accepting its provisions, as she did.

By the fourth item, however, he undertakes to say what shall become of certain property after the death of Frances and it is contended by the plaintiffs that the language of this item qualifies the ownership in Frances created by the third item.

This, as we hold, depends upon the meaning of the following language in this fourth item, viz. “Remaining after settling all claims due, such as expenses of last sickness and funeral expenses. ’ ’

If these words were intended as simply a repetition of the printed words of the first item, “My will is, that all my just debts and funeral expenses shall be paid out of my estate,” then this fourth item would be in effect a bequeathing of the same property twice. First to Frances and second to those named in the latter part of the fourth item, and the two bequests being repugnant the one to the other, it may at least well be doubted whether the first taker did not become the absolute owner of the property so that there could be nothing for those named in the later item. Steur v. Steur, 28 O. C. C. 145 (8 N. S. 71); Bodman German Widows’ Home v. Lippardt, 70 Ohio St. 261 [71 N. E. 770; 1 Ann. Cas. 875]; Stuart v. Walker, 72 Maine, 145 [39 Am. Rep. 311].

We are of the opinion, however, that the words last quoted from the fourth item were not intended as a repetition of the words last quoted from the first item, but that the testator plainly intended that out of the property named in the third item, the expenses of the last sickness and funeral expenses of Frances should be paid, and that what should remain of the property named in the third item, after such payment, should go to the parties named as takers after the death of Frances.

With this understanding of the words last quoted from the fourth item, we hold that the estate of Frances in this residuum was a life estate, with power to charge the same with the expenses of her last sickness and her funeral expenses, and that after these expenses are deducted the balance should go to the plaintiffs. We are not unmindful that there is room for doubt as to tbe legal effect of the bequests, even construing the words to mean as we construe them, but we feel that our holding is justified by the decision of the Supreme Court in Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. 61]; Baxter v. Bowyer, 19 Ohio St. 489, and other cases, and though some of the language used in the opinion in Bodman German Prot. Widows’ Home v. Lippardt, supra, may indicate that the learned judge, who prepared the opinion, entertained views not in conformity with our views, there is nothing in the syllabus which conflicts with this decision, nor was there anything in the case necessary to be decided, which would involve the question involved in this case.

The judgment is reversed, and as the court there found expenses of the last sickness and funeral expenses to be $75, this court will enter judgment for the plaintiffs for $314.22, less $75, or $239.22,.and interest.

Winch and Henry, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    WITNESSES
    [Cuyahoga (8th) Circuit Court,
    April 15, 1907.]
    Winch, Henry and Marvin, JJ.
    Agnes L. Hixson v. James W. Rabe.
    1. Refusal to Permit Recall of Witness Whose Answers Ambiguous.
    It is an abuse of discretion to refuse to permit a witness to be recalled for the purpose of re-examination on matters she has already testified to, when her original answers are ambiguous and it is desired to make them definite, if possible, so as to lay the ground for putting an hypothetical question to an expert witness.
    2. Refusal to Permit Witness to Express Opinion to Proper Hypothetical Question Erroneous.
    Upon the putting of a proper hypothetical question to a medical expert witness the court, before passing upon objections to the question said to the witness: “Could you answer that question, if under the law it were competent?” to which the witness replied: “It would be a very hard question to answer.” Whereupon counsel asked: “Have you an opinion — could you give an opinion, that is the question,” to which the witness replied: “I could possibly give my own personal opinion,” whereupon the court sustained the objection to the hypothetical question, not only as to this witness, but as to other expert witnesses, to whom it was afterwards put.

      Held: error.

      A. J. Wilhelm, and Grant & Sieber, for plaintiff in error.

      Allen, Waters, Yotmg & Andress, for defendant in error.
   MARVIN, J.

The parties here are as they were in the court below. Suit was brought by the plaintiff against the defendant, charging that on January 14, 1905, at about 7:30 p. m. she fell upon the ice on a sidewalk in the city of Akron, and that her weight came upon her hand in such wise as to cause a fracture near the wrist, which is called a “colies fracture”; that she employed-the defendant, who is a physician, to attend her on account of this injury to her arm; that he did attend her and undertook the management and care of her injury; that he did it carelessly and unskillfully, setting out the details in which she says there was such want of care and skill as should have been exercised, and that as a result, her wrist and hand became permanently disabled, and she prays for damages.

The defendant admits that she received the injury, and that he undertook her treatment, but denies that there was any want of skill or proper care, or that she has suffered injury by reason of any failure on his part to perform his whole duty.

The fact is that the doctor first adjusted the broken parts of bone in such wise as he thought and, we think, from the evidence, was proper. He then placed bandages and wooden splints upon the arm in such wise, as from the evidence, we think, was proper. The accident happened on Saturday evening. The Tuesday following the doctor put what is called a plaster of Paris cast upon the arm, extending from a point below the elbow to some place upon the hand. The plaintiff herself testifies that it came to “the first of the fingers.” And this cast was left upon the arm for five and a half weeks. The doctor did not call upon her or do anything further for her arm, though she called him twice by telephone, until five and a half weeks after the cast was put on, when he removed it, and her fingers are stiffened and the hand stiffened; the claim on the part of the plaintiff being that this resulted from improper treatment, and especially from the improper way in which the hand was left in this cast.

Medical evidence was introduced tending to show that a proper treatment of a case of this kind would be to have a “passive motion” of the fingers begun very early after the injury, and continued to some extent all the way through. By ‘ ‘ passive motion, ” it is explained is meant that either the patient with the other hand should move the fingers back and forth, or that some other person should so move them. The plaintiff testified that by reason of the way the cast was put upon her hand it was impossible to have this passive motion.

Counsel for the plaintiff having examined the plaintiff herself and other witnesses, including two medical men, a motion was made to direct a verdict for the defendant. Thereupon the plaintiff asked leave to reopen the case and to ask further questions of the medical witnesses, or at any rate of one of the medical witnesses, and he then called Dr. Cauffield, who had already been examined and the record shows the following took place:

‘ ‘ Q. Doctor, asuming that the plaintiff’s hand was placed in a plaster cast extending from the elbow to the tips of the fingers.
“The Court: I beg your pardon, Senator, I don’t think there is any such evidence. We might as well settle that right here. It is ‘down to the first of the fingers,’ is the language of and the testimony of the plaintiff. The court just looked it up, it is fresh in his mind — ‘Down to the first of the fingers’ is the language of the witness.
‘ ‘ Mr. Sieber : Then we will say to the—
“The Court: The court just'looked it up to be certain about it.
“Mr. Sieber.- If Your Honor please, then I will have to ask for the privilege of putting on the plaintiff to ask her one question.
“Mr. Waters (who represented the defendant) : I object to that. • I do not believe in patching up testimony in this way. The plaintiff spoke and deliberately spoke the truth.
‘ ‘ The Court : ■ In view of the answer given I think I will let the answer stand as it is.
“Mr. Sieber: If Your Honor please, I think that the record is not right in that respect. I- do not want to say anything in front of the jury here.
“The Court: The jury may be excused a moment.
“Thereupon the jury retired.
‘ ‘ The Court : I think I will not permit the recalling of the plaintiff on that matter.
“Mr. Sieber: I except, and I expect that the witness would testify, if it please Your Honor, that the cast was placed upon the arm and hand extending from pretty near the elbow to the ends of the fingers and thumb, of course, including the thumb. If Your Honor will not permit that, there is no use in putting the question, and in my judgment, Your Honor, it would result in a miscarriage of justice. I do not think Your Honor wishes that.
“The Court: No, I think it would be a great prejudice— an unwarranted prejudice, and this court could not justify it in view of the plaintiff’s own testimony, and from the very fact that counsel did not press the matter farther, except as to the hand being in, would tend to show at any rate that counsel understood it exactly as the court.
“Mr. Sieber: Your Honor please. * * #
The Court : I have ruled on that and we will not spend any more time on it. ’ ’

Other proceedings show the court took the position indicated in what has already been quoted.

In this we think the court erred. The discretion of the court as to the admission of evidence, after the plaintiff had testified, having been exercised.to the extent of allowing the medical witness to be recalled, in view of what it was stated it was expected the plaintiff would testify to, the court should have permitted the plaintiff to be recalled. We think there was sufficient indefiniteness in answer given by the witness, that the east came down to “the first of the fingers,” and her statement that because of the way in which the cast was on her hand there could not be the passive motion of the fingers, to justify the court in allowing this witness to be recalled and the court should have permitted this witness to be recalled.

Counsel for plaintiff then inquired of Dr. Cauffield as follows:

“Q. Doctor, suppose that this arm and hand were dressed in such a manner that passive motion was not possible, by being placed in a plaster of Paris cast, and left there for the period of five and a half weeks, without attention, what do you say, in your judgment as to whether or not, leaving the hand in that condition for the period of five and a half weeks, contributed to the stiffness that you now find in the plaintiff’s hand?”

This was objected to.

“The Court: Before I pass it let me ask the doctor this question:
‘ ‘ Q. Could you answer that question, jf under the law it were competent? A. It would be a very hard question to answer.
“Mr. Sibber: Have you an opinion — could you give an opinion, that is the question ? A. I could possibly give my own personal opinion.
“The Court: I will sustain the objection to the form of the question.”

The counsel for the plaintiff here stated, that if permitted he expected the witness would answer, that leaving the splints on in that condition for that length of time would contribute to the stiffness that he now finds in the plaintiff’s hand and fingers.

Another question of like import followed, and objection to it was sustained, and exception taken.

In this we think there was error.

Following these, other questions of like import were asked of Dr. Cauffield, and Dr. Fouser was also called, and similar questions asked of him, objections to which were sustained.

In this we think the court erred, and the court erred in directing the jury to return a verdict for the defendant.

Several of the hypothetical questions put to both Dr. Cauffield and Dr. Fouser, objection-to which were sustained, were within the description of the treatment of the case as described by the plaintiff, and answers should have been permitted thereto, and the plaintiff herself should have been given an opportunity to say, so that there could have been no misunderstanding about it, to what point on her hand the plaster cast reached, and for this error the judgment is reversed and the case remanded to the court of common pleas for new trial.

The presiding judge does not concur in the conclusion reached in this case.

Henry, J., concurs.

Winch, J., dissents.


text:
    INTOXICATING LIQUORS
    [Lorain (8tb) Circuit Court,
    May 1, 1907.]
    Winch, Henry and Marvin, JJ.
    In Re Intoxicating Liquors (Residence District).
    1. Designated Rail of Traction Line Boundary of Residence District, Sufficient.
    The east rail of an electric railway company is a sufficiently recognized line to serve as a boundary of a proposed dry district under the residence district’ local option law.
    2. Evidence Determining Qualifications of Signers of Residence District.
    In determining whether a petition for a dry district is signed by the requisite number of qualified electors within it, the judge with whom the petition is filed need not himself verify it from the pollbooks and registration lists, but may take the testimony of another who has done so.
    3. Street not “Cross or Intersecting Street.”
    A street which enters but does not cross another street, is not a cross or intersecting street,” within the intendment of the residence district local option laws.

      J. F. Strcmick, for plaintiff.

      G. A. Besek, for defendant.
   MARVIN, J.

On February 23, 1907, a petition was filed with the Hon. C. G. Washburn, a judge of the court of common pleas of Lorain county, Ohio, which was signed by a large number of persons representing themselves as qualified 'electors, within a certain described portion of the city of Lorain and said county. The object of the petition was to prohibit the sale of intoxicating liquors as a beverage in a described district in said city. To this petition certain parties filed an answer, denying that the petition was signed by a majority of the voters of the district described in the petition, averring that the district described in the petition was not bounded by well recognized lines or boundaries, and that the petition describes a district which contains the property abutting on a section of West Erie avenue, lying between Broadway and Joubert street, which are two consecutive cross and -intersecting streets, sixty-five per cent, of the frontage of which section of West Erie avenue is in the central or main business part of the city of Lorain.

This answer is signed by two parties, one of whom verifies it by affidavit.

■ The purpose of the petitioners was to obtain the prohibition of the sale of liquors in the territory described, under the provisions of an act entitled an act “to further provide against the evils resulting from the traffic in intoxicating liquors, by providing for local option in residence districts of municipal corporations.” 98 O. L. 68.

Under this petition Judge Washburn proceeded to hear and determine the various questions necessary to be determined, before it could be said that the territory described should be such as is ordinarily denominated ‘ ‘ dry. ’ ’

The burden put upon the petitioners in this hearing was to show, first, that the petition described a district in the city and county of Lorain, which was bounded by street, corporation, or other well recognized lines or boundaries.

One of the boundaries of the district described in the petition is the east rail of the Cleveland & S. W. Elec. Ry. It is urged that this is not such a boundary as is required by the statute. Of course it is not a street line, nor a corporation line, but it is a line which, in a sense, may be said to be akin to a street line; it is a line easily discernible, easily ascertained, and although this rail may be changed, still the line upon which it now is, is certainly easily ascertained, and it would seem to be not difficult to ascertain substantially where that line was, even though the rails should hereafter be laid along some other line. There was no error in holding as .Judge Washburn did, that this was a sufficiently definite boundary line.

Second. The further burden was put upon the petitioners of showing that their petition was signed by a majority of the qualified electors, residing within the described district. The district described in the petition does not include any one full elective precinct of the city, making it manifest that it is a matter of some difficulty to determine whether a majority of the qualified electors within the district signed the petition.

R. J. Cowley was called as a witness on behalf of the petitioners, and it appears from his testimony that he had carefully examined the poll books and the registration lists of the several precincts, some part of each of which was within the district described in the petition. That he ascertained from these books the place of residence of the several signers to this petition, and that he ascertained by the same means the other voters within this residence district, and then by mathematical calculation it was shown that the signers constituted a majority of the qualified electors, as provided for in the statute.

It is urged that the clerk of the board of elections should have been called; that this would have been the better evidence. We do not understand that this would have been the better evidence, in the sense of that term as used in the law. It might have been stronger evidence, but it would have been of the same nature as that given by Mr. Cowley. It can not be supposed that it was contemplated by the Legislature that the judge before whom such a petition as this could be heard, would be required to count the names on the poll books and registration lists. He might well call upon some other person to do this, or the petitioners might well call upon some other person to do this. We think the testimony of Mr. Cowley was admissible, and from that testimony the judge was justified in finding that a majority of the qualified electors within the residence district signed the petition.

Third. The further burden was put upon the plaintiffs by Section 7 of the act referred to, to show that the described district did not contain property or premises abutting on a section of a street lying between two consecutive, cross, or intersecting streets, from street to street, whereon sixty-five per cent, of the foot frontage of such abutting property on each side of such street was occupied for and devoted to manufacturing, mercantile or other business purposes.

It is urged that this burden was not sustained by the petitioners, because included within the district is a section of West Brie avenue, bounded on the east by Broadway, and on the west (the defendants claim) by Joubert street, and that more than sixty-five per cent, of the abutting property on each side of this section of West Erie avenue is occupied for business purposes.

The situation is this: Broadway is a north and south street. West Erie avenue is an east and west street. These two streets cross each other. West of Broadway there is a street extending from the south line of West Erie avenue southerly; this is Joubert street. Joubert street does not cross West Brie avenue, nor does any street corresponding with it extend north from West Erie avenue. On the south side of that part of West Erie avenue, between the east line of Joubert street and the west line of Broadway, it is conceded that more than sixty-five per cent, of the property is business property and it is claimed by those protesting against the petition that more than sixty-five per cent, of the property abutting on the north side of West Erie avenue, between the west line of Broadway, and a point opposite the east line of Joubert street, is occupied for business purposes.

On the part of the petitioners it is said that it is a matter of indifference whether sixty-five per cent, more or less, of this part of the north side of West Erie avenue is occupied for business purposes. The language of the statute is: “Lying between two consecutive, cross or intersecting streets.”

It is clear that Joubert street is.not a cross street to West Erie avenue, lying consecutive to Broadway, but it is urged that it is an intersecting street, and that is next in order going to the west from Broadway.

The word “intersect” is defined in the Century Dictionary, as follows:

“To cut or divide into parts, lying or passing across; as, the elicptic intersects the equator. To cut apart, separate by intervening. 2. For example, ‘ Lands intersected by a narrow frith abhor each other.’ ”

Webster defines the word “intersect” in these words:

‘ ‘ To cut into or between; to cut or cross mutually; to divide into parts as the ecliptic intersects the equator. 2. To cut into one another, to cut across, as the points where two lines intersect. ” •

Our attention is called in the brief of counsel for the plaintiff to the case of Calhoun Gold Mine Co. v. Ajax Gold Mine Co., 27 Col. 1 [59 Pac. 607, 613; 50 L. R. A. 209; 83 Am. St. 17]. As this is reported in four different sets of reports, and counsel cites one of the four, it looks like rather a formidable array of authorities. However, it is but one case, and in that case the court seems to hold that leads'of miherals which come together at an angle, intersect. But this does not, as we think, bear upon the construction to be given to the word “intersecting,” as used in this statute. The property, sixty-five per cent, of which has to be used for business purposes, must be between consecutive streets. We take it that on the north side of West Erie avenue there can be no property lying between Broadway and Joubert street, unless such property lies between the west line of Broadway and the east line of Joubert street. It would be absurd to say that property lies between two streets, and yet does not lie between some boundary line of each of said two streets, and it is certain that there is no property on the north side of West Erie avenue that lies between any boundary line of Joubert street and a boundary line of -Broadway.

We reach the conclusion, therefore, that there was error in the finding of the judge before whom this matter was tried, and that finding is affirmed.

Winch and Henry, JJ., concur.


text:
    FENCES
    [Medina (8th) Circuit Court,
    May, 1907.]
    Winch, Henry and Marvin, JJ.

      John P. Beach v. Sharon Tp. (Tr.) and Simon Dressler.
    Fence Law Unconstitutional.
    Section 4243 R. S. (Sec. 5913 G. C.) providing for the building of line fences and the assessment of the cost thereof upon adjoining proprietors, is unconstitutional.
    Error.

      Affirmed no opinion, Roth v. Beach, 80 Ohio St. 746.

   MARVIN, J.

The only question involved in this case is whether Sec. 4243 R. S. (Sec. 5913 G-. C.) is obnoxious to the constitution. The section reads:

“If either party fail to build the portion of fence assigned' to him, the trustees shall, upon the application of the aggrieved party, sell the contract to the lowest responsible bidder, to furnish the labor and material and build such fence according to the specifications to be proposed by the trustees, after advertising the same for a period of ten dajrs by setting up posters in three public places in the township. As soon as the work shall be completed in conformity with the sale, and to the satisfaction of the trustees, they shall immediately certify the costs to the township clerk and if not paid within the thirty days, the township clerk shall certify the same to the auditor of the county, the amount such fence sold for, adding the proportionate amount of cost and expense of such sale, together with a correct description of each piece of land upon which same is assessed, and the auditor shall place the same upon the tax duplicate to be collected as other taxes are collected, and the trustees shall at the same time certify the amount due each trustees and clerk for their services rendered in such proceedings, and the auditor may anticipate the collections of same and draw orders for the payment of such amount out of the county treasury.”

This section read in connection with Sec. 4242 R. S. (Secs. 5910 G. C. et seq.), and other sections of Title 5, Chapter 3, of the statutes, authorizing the trustees of township to determine what line fences shall be built outside of the municipal corporations, and in ease the owners of the land bounded by the line where such fence is to be built, fail to build the portion of fence assigned to such land owner, the trustees may cause the fence to be built, and the land owner may be compelled to pay for the same, as taxes upon his land.

It is urged on behalf of the plaintiff that this is in contravention of Sec. 19 of the bill of rights (the first article of the Constitution); that section reads in part as follows.- “Private property shall ever be held inviolate, but subservient to the public welfare. ’ ’

It is said that under this section, the private property of one land owner may be subjected to appropriation to the extent necessary to construct a fence for the exclusive private use and benefit of an adjoining land owner,'and not only that, but that the property of the owner may be taken to pay the tax assessed for the building of a fence, when such fence is exclusively for the benefit of a single individual and adjoining land owner.

This claim seems to us to be sound. A farm may be owned by A, an adjoining farm is owned by B, and A is so situated that he has no occasion for a line fence for the purpose of controlling his own domestic animals, or for any other purpose, excepting it be to protect his lands from the domestic animals of B. The policy of the law of Ohio is that each owner of domestic animals must himself see that they are kept within proper boundaries. Why then, should A in the case supposed, be required to yield any part of his land,.or have his land subject to a tax, simply for the benefit of B ? It seems to us that it is a violation of the constitutional provision hereinbefore quoted, that “private property shall ever be held inviolate, but subservient to the public welfare.” Certainly no public welfare is to be subserved by the construction of a line fence in the case supposed.

In Shaver v. Starrett, 4 Ohio St. 494, 498, it is said by Judge Thurman:

“The constitutionality of the statutory provisions for the establishment of township roads, has lately been questioned, upon the ground that the land appropriated for such roads is not taken for a public use. If this were so, the invalidity of the statute would be manifest, since the constitution provides (Art. 1, Sec. 19), that ‘private property shall ever be held inviolate,’ and the only exception to this rule is, that it shall be ‘subservient to the public welfare. ’ It follows that it can not be taken for a mere private use; nor could it, I apprehend, were there no express constitutional provision upon the subject; and this for the plain reason, to say nothing more, that no such power has been delegated to the assembly. ’ ’

In that case the court held the statute, which provided for the taking of private property for a township road, to be constitutional, but upon the ground that such road was for a public use.

In Reeves v. Wood Co. (Treas.), 8 Ohio St. 333, it is held that an act authorizing the trustees of townships to establish water-courses, etc., was in contravention of the constitutional provision referred to.

The statute under consideration authorized the construction of ditches, the language being:

“That the township trustees shall have power, on the application of any party, to enter upon any land in their township to view any water-course or proposed ditch for the purpose of draining any land held by more than one person, and to cause said ditch or water-course to be located and set apart to each person interested in such ditch or water-course, such portion of thé same to be by him opened, as shall be deemed by them right and just, according to the benefit to be derived by such person from the opening of said ditch or water-course; and also to assess against him such portion of the expenses and damage hereafter provided for, as according to right and justice he ought to pay.”

And in the opinion at page 347, Judge Brinkerhoff uses the following language:

“If the trustees had been authorized to locate and provide for the opening of a ditch only in ease they found the same to be demanded by, or conducive to the public health, convenience, or welfare, why then their action,,under legitimate authority, would be but an ordinary and legitimate exercise of the right of eminent domain. But this statute prescribes no such condition, no such rules of official duty or limit to official discretion; and a ditch may be located and opened upon the lands of individual property owners solely for purposes of private interest irrespective of the public welfare, without infringing any provision of this act, either express or implied.”
“Is this an infringement upon the inviolatability of private property, taking of private property for private use?”

The land occupied by the.ditch and its banks is not, it is true, wholly appropriated. The owner may still use the ditch itself for purposes of irrigation, for watering stock, or perhaps make it serve the purposes of a fence. He may grow timber and shrubbery on its banks. But his dominion over it, his power of choice as to the uses to which he will devote it, are materially limited; in short other parties acquire a permanent easement in it. An easement is property; and to the extent of such easement it is clear to us, that private property is taken, within the meaning and spirit of the constitutional prohibition.”

In McQuillen v. Hatton, 42 Ohio St. 202, Judge Follett uses this language in the opinion:

‘ ‘ The use that will justify the taking of private property by the power of eminent domain, is the use by or for the government, the general public or some portion of ,it; and not the use by or for particular individuals, or for the benefit of certain estates. The use may be limited to the inhabitants of a small locality, but the benefit must be in common, and not to a very few persons or estates.
“The prosperity of each individual conduces, in a certain sense, to the public welfare, but this fact is not a sufficient reason for taking other private property to increase the prosperity of individual men.
‘ ‘ The draining of marshes and ponds may be for the promotion of the public health and so become a public object but the draining of farms to render them more productive, is not such an object.”

See also Chicago & Erie Ry. v. Keith, 67 Ohio St. 279 [65 N. E. 1020; 60 L. R. A. 525], and following.

In Zigler v. Menges, 121 Ind. 99 [22 N. E. 782; 16 Am. St. 357], there is a very full discussion as to the distinction between the public use for which property may be taken, and the private use for which it may not be taken, and in the notes to this case, as reported in the volume referred to, numerous authorities are quoted, and among other things this is said:

“ It is not necessary, in order that a use may be regarded as public, that it should be for the use and benefit of the whole community, or any large portion of it. It may be for the inhabitants of a small or restricted locality; but the use and benefit must be in common, not to particular individuals or states.”

On the part of the defendants the case of Tomlinson v. Bainaka, 163 Ind. 112 [70 N. E. 155] is cited.

The act construed in that case was attacked on the ground that it was unconstitutional; the section providing that “private property shall ever be held inviolate,” was not construed, and whatever the holding in that ease (which was an Indiana case), we feel confident that we are following the decisions of our own Supreme Court in holding as we do that the act under consideration violates Art. 1, Sec. 19, of the constitution of Ohio.

It follows, therefore, that the plaintiff is entitled to the injunction prayed for in the case, and the same is allowed.

Winch and Henry, JJ., concur.


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    LIBEL AND SLANDER
    [Medina (8th) Circuit Court,
    May, 1907.]
    Winch, Henry and Marvin, JJ.
    Benjamin Lohr v. Lyman C. Buffington.
    1. Words to be Slanderous to Business Must Refer to Business,
    To make words actionable because of their effect upon one’s business or office, they must be said with reference to something connected with such business or office.
    2, Vile Name and Assertion “Tried to Cheat Brothers” not Slanderous per se.
    The words, “He was a son of a bitch; he had his farm given to him and then he tried to cheat his brothers out of everything they had,” are not slanderous per se.

    Error.
   MARVIN, J.

The parties here are as they were in the court below. Lohr sued Buffington for slander, alleging that Buffington said to him, in the presence of divers good people, the following words : “You put them clothes back in again; if you say you had a right to you are a God damn liar. You had your farm given to you, and then you tried to cheat your brothers out of everything they have. ’ ’

The petition also charges that the defendant said to and in the presence of divers good people, speaking of the plaintiff, the following words: “He was a son of a bitch; he had his farm given to him and then he tried to cheat his brothers out of everything they had. ’ ’

The plaintiff says that he was, at the time these words were spoken, an officer, to wit, a director of the Medina County Telephone Co., and that by reason of these words, he suffered in his official position.

To this petition a general demurrer was filed and sustained by the court below, and the only question here is, as to whether such demurrer should have been sustained.

We do not understand that the words spoken are such as could have affected in any wise the plaintiff in his 'position as such director of the telephone company. It is not alleged that it affected the business of the telephone company or that it interfered in any wise with his work as such director. Nothing is said in the words about his action as an officer of this company, and to make the words actionable because of their effect upon one’s business or office, they must be said with reference to something connected with such business or office.

In Newell, Slander, chapter 8, paragraph 2, it is said:

“ It by no means follows that all words to the disparagement of an officer, professional mail or trader will for that reason, without proof of special damage, be actionable in themselves. Words to be actionable on this ground must touch the plaintiff in his office, profession or trade. They must be shown to have been spoken of the party in relation thereto, and to be such as would prejudice him therein.
“It is true that words may be of such a character imputing dishonesty and fraud as necessarily would injure one in any position of trust or confidence, as in Sec. 37 of the chapter referred to in Newell, Slander, it is said:
“ ‘But when they convey only a general imputation upon his character, equally injurious to any one of whom they might be spoken, they are not actionable unless such application be made.’ ”

This is a quotation from the opinion of Andrews, Judge, in the case of Sanderson v. Caldwell, 45 N. Y. 398 [6 Am Rep. 105].

In Goldrick v. Levy, 8 Dec. Re. 146, (6 Bull. 20), it is said:

“Mere vituperative language of, general abuse of a professional man is not actionable, unless it has reference to his conduct in his profession. ’ ’

We think it clear that unless the words charged in this petition as having been spoken of the plaintiff are actionable per se, the demurrer was properly sustained.

We come then to consider whether the words are actionable per se.

In Hollingsworth v. Shaw, 19 Ohio St. 430, 432 [2 Am. Rep. 411], it is said:

“Words to be actionable, must either have produced a temporal loss to the plaintiff in special damage sustained or they must convey a charge of some act criminal in itself, and indictable as such, and subjecting the party to an infamous, more especially a corporal punishment; or some indictable offense involving moral turpitude. ’ ’

In Brown v. Myers, 40 Ohio St. 99, it is said in the syllabus:

“An action of slander can not be maintained for words which impute a crime, where, from all that was said at the time the words were spoken, it appears that the words had relation to a transaction that was not criminal, and that they must have been so understood by the hearers.”

In Hollingsworth v. Shaw, supra, it is said in the syllabus:

“An action of slander can not be maintained for calling the plaintiff a deserter, without averment and proof of special damage.”

And in the opinion in that case Judge Scott uses this language:

“These authorities and the general current of decisions, warrant us in saying that to render words actionable per se, on the ground that they impute criminality to the plaintiffs, they must first, be such as charge him with an indictable offense; and, high degree of moral turpitude or subject the offender to infamous punishment.”

From these authorities, and the -several cases cited, to which attention has been called, we come to the conclusion that the words charged in this petition are not actionable per se and having already found that they are not actionable by reason of any special damage alleged to have been sustained by the plaintiff, the demurrer was properly sustained, and the judgment is affirmed.

Winch and Henry, JJ., concur.


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    RAILROADS
    [Summit (8t'h) Circuit Court,
    1906.]
    Marvin, Winch, and Henry, JJ.

      Baltimore & Ohio Ry. v. Ernest S. Dickinson.
    1. Evidence that Railroad is Operating Trains.
    It is sufficient evidence that one railroad company is operating trains over the line of another railroad company, as lessee, or otherwise, that it issued a bill of lading for freight consigned to it at a station on the line, published and issued a time table of trains thereon, representing them to be its own trains, and hired and paid a doctor to treat a person injured thereon.
    2. Driving Noisy Wagon Preventing Hearing of Train and Knowing He Cannot See Trains Held Contributory Negligence.
    One who drives into a deep cut leading to a railroad crossing with a lumber wagon which makes so much noise that he can not hear an approaching train, and who knows that he can not see one while in the cut, is guilty of contributory negligence if he does not slow down his horses as he emerges from the cut upon the track, to see if a train is approaching.
    Error.

      Allen, Waters & Andress, for plaintiff in error.

      Rial M. Smith, for defendant in error.

      Affirmed no opinion, Dickinson v. Baltimore & O. Ry., 77 Ohio St. 639.

   MARVIN, J.

Dickinson brought suit against the Baltimore & O. Ry. and the Cleveland T. & V. Ry. He sets out that a line of railroad extending south from, the city of Cleveland and through the township of Brecksville, in Cuyahoga county, is owned by the Cleveland T. & V. Ry.; that that road is leased to and operated by the Baltimore & 0. Ry.; that on April 24, 1903, the plaintiff below, Dickinson, was driving along a public highway in the township of Brecksville, which crosses the line of railroad already spoken of at what is known as Vaughan’s crossing, that by reason of the negligent manner in which a train was operated he was struck and injured while making that crossing over the road. He complains of three acts of negligence on the part of the railroad company: First, that it failed to keep gates or station a flagman or watchman at the crossing, which he says was a very dangerous crossing. Second, that the railroad company was negligent in that it ran its train at the rate of more than forty miles an hour at this place on its line, and that to run a train at that rate of speed at such a crossing was negligence. Third, the company was negligent in that it failed to sound the whistle and ring the bell in pursuance of the statute which requires the whistle to be sounded and the bell to be rung. Upon the trial of the case, however, the charges of negligence for failing to keep the gates and a flagman was dropped, and the charge of negligence for running the train at a high rate of speed was taken out of the case, so that there remained the charge of negligence that the company failed to give the signal which it should have given. The result of the trial in the court of common pleas was a verdict for the plaintiff below, Dickinson. A judgment was entered upon that verdict, and a motion to set aside the verdict and grant a new trial was overruled.

The Baltimore & 0. Ry. denied that it was the lessee of this line of road and that it was operating the road. Each of the defendants denied that there was any negligence on its part, and charged that there was negligence on the part of the plaintiff below contributing to or causing the injury which he sustained. The result, as I have said, was a verdict for the plaintiff below, and that verdict was against the Baltimore & 0. Ry. only. The jury returned a verdict for the Cleveland T. & Y. Ry., so that it is the Baltimore & 0. Ry. only that comes here claiming error to its prejudice in the trial in the court below.

It is urged on the part of the plaintiff in error that there was no evidence introduced in the trial tending to show that the Baltimore & 0. Ry. was the lessee of the line of road and operated it. In this we think the plaintiff in error is wrong. There was evidence that showed that and from which the jury might find that the Baltimore & 0. Ry. was operating this railroad under some contract with the Cleveland T. & Y. Ry. There was the evidence contained in Exhibit K, at page 211, which is a bill of lading issued by the Baltimore & 0. Ry. for freight consigned to it at Boston Mills, a station on the line of the Cleveland T. & V. Ry.

At page 138 of the bill of exceptions there appears Exhibit J, which is a time table folder shown to have been issued by the Baltimore & 0. Ry., and that time table gives as one of the lines on which the times are specified in the exhibit, this line of the Cleveland T. & V. Ry. There is the testimony of Doctor Jacobs that he was the surgeon in the employ of the Baltimore & 0. Ry., and that he attended the plaintiff below for the injuries which he sustained, and was paid for it by the Baltimore & 0. Ry. From this evidence the jury might well have found that the Baltimore & 0. Ry. was the lessee or was operating this line of road.

It is further urged that no negligence was shown on the part of the Baltimore & 0. Ry., or any company operating the train which struck and injured the plaintiff below. It is said that there is nothing in it to show that whoever operated that train was negligent. We think that that position is not well taken. The testimony of Mrs. Vaughan, who was at the north end of her house near this crossing, tends to show that no whistle was blown until the engine had reached a point within a few hundred feet of the crossing, a point much nearer to the crossing than the statute requires the whistle to be blown, and much nearer to the crossing than a train, running at the speed at which that train was running, should have blown it. Other witnesses testify to the same thing. The man who was in the corn field with his team, whose name at this moment is not recalled, testified tending to show that the whistle was not blown until the crossing was nearly reached. It is true that is contradicted. The engineer says that he blew the whistle at the whistling post. The fireman says that the custom was to blow it there, and thinks it was blown; he first says it was blown, but upon cross examination he says: “We always blew it there.” Really it is evident from his examination that he does not certainly remlember that the whistle was blown. In this conflict of evidence the jury might well have found that the signals were not given as required and as they should have been given, so that we think the jury were not clearly wrong in finding that there was negligence on the part of the railroad company.

But it is said that clearly there was negligence on the part of the party injured, Dickinson, which should prevent a recovery, and on this question there is no principle of law involved in this case that is not familiar to every lawyer. If Dickinson contributed by his negligence to this injury, or if his negligence alone caused his injury, then he was not entitled to recover. The situation as shown by his testimony is, that he was familiar with this crossing; that there was a cut in the highway leaving a bank on each side so high that when one was near to the railroad it was impossible to see a train on the track in either direction to the north or to the south for the line of railroad was north and south and the crossing was on an east and west road. At a point sixty or sixty-five feet back from the railroad it was possible to see along that track to the north for a little distance. Dickinson says that he looked there, and if he had thought, he might have known he could look well there and not see a railroad train that was not near to this crossing; it might be further away than his point of vision would reach along the track, or it might be nearer; the train might be coming at a point at which he could hot see or else had already passed his point of vision. When he got nearer to the track, within forty feet, he knew, he says, when he looked he could not see along the track, south; he did not hear anything and he continued to drive on. He was familiar with this crossing, he knew that trains passed there frequently. He knew that by exercising his faculty of seeing he would not be able to see a train, if it was coming, when he was forty, and from that on until he was perhaps twenty feet from the track, yet he did not stop his team; he drove right on. He was driving with a lumber wagon which made so much noise that Mrs. Vaughan, who was at a distance in the neighborhood of one hundred feet from that wagon, heard it. He knew his wagon was making that noise, he knew trains were liable to come along there, he knew he could not see them if he looked and that, therefore, he must depend upon his sense of hearing for knowledge of the approach of a train, if one was coming. He seems to have relied upon his sense of hearing, of hearing the whistle, presuming that the railroad company would whistle, and that he would hear that whistle, and that the distance of the train from the crossing when the whistle was given would be such that he would certainly hear it.

Now, can any man who exercises proper caution in the care of himself and his family and his property say.-that it would do for one under such circumstances knowing that he could not see a train if it was coming, and that his wagon was making so much noise that he would not hear, to drive on that way and then claim that he exercised ordinary prudence and care? It seems to us clear that the plaintiff below, by his negligence in not stopping his team, or at least holding his horses to such gait that the rumbling of his wagon would cease, directly contributed to his injury. We do not think that his negligence was the sole cause, but it contributed with the negligence of the Baltimore & 0. Ry., or whatever company was running that train, to bring about the injuries and that being so, the motion which was made at the close of the evidence offered on the part of the plaintiff to. take the case from the jury should have been sustained. It was not sustained, and there was error in that; and there was error in overruling the motion for a new trial on the ground that the verdict was not sustained by sufficient evidence and was against the weight of the evidence. That being so, we feel it our duty not only to reverse this judgment, but to enter the judgment which the court below should have entered for the Baltimore & O. Ry., and that will be done and an exception noted for the defendant in error.

Winch and Henry, JJ., concur.


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    INSURANCE
    [Summit (8th.) Circuit Court,
    April 21, 1905.]
    Winch, Henry and Marvin, JJ.
    Laura E. Walker v. Empire Life Insurance Co.
    Tender of Settlement Amount Prerequisite to Action for Recovery of Full Proceeds of Insurance Policy.
    A petition which recites that the plaintiff was entitled to receive the sum of $3,000 from an insurance company on a policy for that amount issued on the life of her father, but that by the fraud of the company she was induced to accept $2,000 in full for her claims under the policy, and asking judgment against the company for the balance of $1,000, does not present a case in tort, for damages arising from the fraud, but is on the contract of insurance and can not be maintained until the $2,000 paid by the insurance company has been returned or tendered to it.

      Tibiáis & Frank, for plaintiff in error.

      Grant & Sieber, for defendant in error.
   MARVIN, J.

This case comes here upon proceedings in error. Suit was brought in the court o£ common pleas by Laura E. Walker against the defendant, the Empire Life Insurance Co. To the petition the defendant filed an answer and to that answer the plaintiff replied.

The pleadings being in that situation, the insurance company filed a motion for judgment on the pleadings. The court sustained the motion, dismissing the plaintiff’s petition and entering judgment for defendant for its costs.

The petition sets forth that the defendant is a corporation, etc., doing a life insurance business; that on or about' April 14, 1897, in consideration of the payment of monthly premiums the exact amount of which is unknown to this plaintiff, but is well known to the defendant, said defendant did then and there execute and deliver to this plaintiff its written policy of insurance whereby it, the defendant, did insure the life of Samuel N. Shaffer, plaintiff’s father, for the sum of $3,000; and did then and there promise to pay this plaintiff said sum of $3,000 within three months after satisfactory proof of the death of said Samuel N. Shaffer was made out and furnished to the defendant upon its blank forms therefor provided. She says that she is unable to state the exact date and number of the policy for reasons which are set up later in the petition. She says that the contract of insurance had a provision written in it providing, in substance, that the representations, waivers and agreements contained in the written application made by said Samuel N. Shaffer for said contract of insurance were a part of said policy, and that the said representations, waivers and agreements in said written application were warranted to be true by the insured, and were binding not only upon him but upon his legal representatives, and every other person acquiring an interest in said policy, including this plaintiff to whom the same, by its terms, was payable; and all said statements, representations, waivers and agreements were to be regarded as material and to-be full and true warranties, and to be the only statements and conditions upon which said policy was issued. She says that Samuel N. Shaffer died about the 13th of March, 1902; that proper proofs of his death were made to the insurance company, that a representative of the company came to see her, and represented to her that certain of the statements made by Shaffer in his application for the insurance were not true. That it was not true, as represented in said application, that Shaffer had not within five years previous to his application therefor, been ill with rheumatism, pneumonia and grippe, and that he had not been treated by any physician for any such disease, but insisted to her that Shaffer had been ill from some of these diseases at least, and that a physician, Doctor Carter, the family physician, had treated him for grippe and pneumonia within five years previous to the date of the application, and that by the terms of his application for insurance the insured had represented and warranted that he had not been so sick, etc.; and, therefore, that the company was not liable in any sum to the plaintiff. She says that by reason of those representations made to her by Wilson she was induced to and did accept $2,000 in full payment of the amount coming to her under the policy and delivered the policy over to. the representative of the insurance company. But she says that these statements made to her by the representative of the company were not true; that a fraud was perpetrated upon her in that wise, and that she has been damaged and wronged in the sum of $1,000 by reason of these representations so made to her by the representative of the insurance company.

The insurance company admits the issuing of the policy, admits that Shaffer died and that proofs were made. Admits that one Willson, and not Williams, as alleged in the petition, came to Akron; that he met the plaintiff; that he offered to pay her $2,000 on said policy and no more, and that she then and there accepted the sum of '$2,000 in full satisfaction of all claims made by her on account of said policy and duly surrendered the same to this defendant.

The company further says that the application upon which the said policy of insurance was issued, and which, by the terms of said policy, was made a part thereof, in answers to questions •;therein contained, that the said insured did say that he had not Ibeen ill and that he had not been treated by a physician, and the .like, and they say that the representations that he made were not true, and that they were thereby relieved from payment, but that they paid $2,000 in compromise of the claim.

Then by cross-petition they set out the payment of $2,000 taken and kept by the plaintiff, and they pray to have that restored to them.

To that the plaintiff replied, denying all the new matter set out in that answer.

Then the defendant made this motion:

“The said defendant hereby dismisses, for the purposes of this motion, its cross-petition herein, and thereupon moves the court for judgment dismissing the plaintiff’s petition, and for its own costs in this b.ehalf made, upon the pleadings on file herein, to wit, the petition of the plaintiff, the answér of the defendant, and the reply of the.plaintiff to this answer.”

Of course, the claim made on the part of the defendant is that there was a dispute between these parties, the plaintiff claiming that the defendant was indebted to her in the sum of $3,000; the defendant denying that it was indebted to her in any sum whatever; that a compromise of that dispute was made by.payment to the plaintiff by the defendant the $2,000;.and that this action must either be in effect a suit to set aside that contract of settlement so made, or a suit upon this policy of insurance. If it is made for the purpose of setting aside the contract so made, then that the plaintiff, before she is entitled to any such relief, must tender back to the insurance company the money that it has paid and let them start out anew upon the dispute that there was between them, and that if she chooses to affirm and hold on that by holding on to the $2,000 she affirms the contract that was made; refuses to give anything back, but says: “I want something more.’’

Counsel on both sides seem to recognize that the case of Manhattan Life Ins. Co. v. Burke, 69 Ohio St. 294 [70 N. E. 74; 100 Am. St. 666], at least has a bearing on the question here; and on the part of the defendant it is claimed that it settles the controversy and settles it against the defendant, and we think that view is correct. The first paragraph of the syllabus reads :

“Where at the time of a compromise of a claim founded on a contract of life insurance, a dispute exists between the parties as to the liability of the company in any sum whatever, it denying that anything is owing, and an amount less than the claim is paid to the claimant in settlement of the controversy, and he executes a full acquittance and release, and surrenders the policy, and an action at law on the policy can not be maintained, without a return or a tender of the amount received, and even though the party’s assent to the settlement was obtained by the fraudulent representations of the other party, and the'amount received as the settlement is in the petition credited to a payment on the policy.”

The opinion in this case was prepared by Judge Spear. Of course, it is conceded on the part of the plaintiff here that if this is a suit on this policy, the case of the Manhattan Life Ins. Co. v. Burke, supra, must apply and must settle it against her. But she says: I have brought a suit for a fraud perpetrated upon me; that is to say, I have been damaged in the sum of a thousand dollars because of the misrepresentations made by Willson to me. But really is that the substance of it ? Is there anything in the claim that this is not a straight suit upon this policy? The only reason in the world why the insurance company owes this plaintiff anything, if it does owe her anything, is that it entered into a contract by which it agreed to pay her three thousand dollars, and it failed to pay it. It it does not owe her because of that contract it does not owe at all. If it owes because of that contract, or if there is an open question as to whether it owes upon that contract, then it must not be permitted to the plaintiff to retain what she has received upon it and prosecute her action for more.

We think the case of Manhattan Life Ins. Co. v. Burke, Supra, is directly in point, and that it disposes of this case in favor of the defendant, and that the judgment of the court of common pleas was right, and is affirmed.

Winch and Henry, JJ., concur.


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    RAILROADS
    [Summit (8th) Circuit Court,
    April 21, 1905.]
    Winch, Henry and Marvin, JJ.
    Cleveland A. & C. Ry. v. Patrick Brown.
    Jury Declaring Inability to Determine If Train Crew Used Reasonablé Effort to Prevent Accident to Person Walking Track Defeats Recovery.
    In an action for damages against a railroad company for negligently running down and injuring a person walking on the track, when the case turned upon the question whether the crew in charge of the engine, after they discovered that the plaintiff was in danger of being struck by the engine used all reasonable efforts to prevent the accident to him, or not, and that question was submitted to the jury for a special finding thereon and the jury answered, “We can not tell,” the plaintiff is not entitled to a recovery.
   MARVIN, J.

The defendant in error was severely injured on September 21, 1901, by being struck by an engine of the plaintiff in error at a point a short distance south of the city of Akron. At the same time one Jenkins, who was with Brown, was killed; the two men were together. Suit was brought by the administrator of the estate of Jenkins; a recovery was had and judgment entered for the administrator. Upon proceedings in error prosecuted by the railroad company in this court that judgment was affirmed; to that judgment of affirmance the railroad company prosecuted error to the Supreme Court, where the judgments of both this court and the court of common pleas were reversed and judgment was entered for the plaintiff in error. In the mandate issued by the Supreme Court, this language is used:

“It is considered and adjudged that upon the special finding of the jury and the conceded facts appearing of record, the plaintiff in error was entitled to a judgment in the court of common pleas against the defendant in error.”

The special finding referred to consists of the following interrogatory submitted to the jury, and its answer :

“After the crew in charge of the engine discovered that Jenkins was in danger of being struck by the engine, did they use all reasonable efforts to prevent the accident to Jenkins?
“Answer. Yes, but too late on account of not keeping a proper lookout.”

Substituting the name “Brown” for “Jenkins” the same interrogatory was submitted to the jury in the present case, and this was answered in these words: “We can not tell.”

It can hardly be claimed that this was more favorable to the plaintiff below than the answer in the Jenkins case was to the plaintiff in that ease. Here the jury were unable to say that the engine crew did not use all reasonable care to prevent the accident after they knew of Brown’s danger, and Brown was not entitled to recover on account of the negligence of the crew, after discovering his perilous condition without an affirmative finding that it failed to use such care.

In the Jenkins case they found such care was used but that the discovery came too late for want of a lookout.

As has been said, before a recovery could be had, on account of negligence of the crew, after discovery, the jury must have found that there was such negligence; this they said they could not do.

In the Jenkins case the jury said the discovery came too late, for want of proper lookout; this finding is not made in this case.

Whatever facts were conceded by the plaintiff in the Jenkins case which are not conceded by plaintiff here, we find none which can aid the defendant in error.

It is urged that the evidence here shows that the engine could be stopped in a very short distance and that the testimony of Hillier found on page 98 as to what the engineer said after the accident, are items of evidence which were not in the Jenkins case. The testimony of Hillier is that he heard the engineer say after the accident that he, the engineer, saw two men on the track; that he slackened up a little and then supposing that they left the track, he put on a little more steam. These two items bear only on the question of whether the crew on the engine did their duty after they knew of the peril of Brown, and the jury have said that they could not find that the crew failed to do its duty.

The case is so exactly parallel with the Jenkins case that we feel that the judgment can not be affirmed without wholly disregarding the judgment of the Supreme Court in that case, and this, of course, we are not at liberty to do.

We also feel that it would be idle to reverse the judgment and remand the case for further proceedings, but that our plain duty is to follow the example of the Supreme Court and reverse this judgment for error in overruling the motion for a new trial, and enter final judgment for the plaintiff in error, which will be the order.

Winch and.Henry, JJ., concur.


text:
    INTOXICATING LIQUORS
    [Lorain (8th.) Circuit Court,
    April 30, 1908.]
    Winch, Henry and Marvin JJ.

      Thad H. Rowland v. State.
    1. Necessary Averments to Impeach Sale, of Intoxicating Liquor on Prescription.
    In the prosecution of a druggist for violating the municipal local option law of 1902 (95 O. L. 87), it is not sufficient to charge that he sold intoxicating liquor upon a written prescription and that the sale was not made by him in good faith for medicinal purposes, without alleging that it was known to him that the liquor would be used for other than the purpose the prescription called for, or some other fact tending to show that it was not sold in good faith.
    2. Repeating Prescription for Intoxicating Liquor.
    In such a case, where the charge is that the druggist sold the liquor upon a prescription which had been used before, it must also be stated that he knew the prescription had been used before and liquor obtained upon it.
    3. Failure to Cancel Prescription.
    In such a case, where the druggist is charged with failure to cancel the prescription upon its first use, it must be stated that it was first used with him.
    4. Act 95 O. L. 87, Municipal Local Option Law, Held Constitutional.
    The municipal local option law of 1902 (95 O. L. 87), is constitutional.

      Affirmed no opinion, Rowland v. State, 80 Ohio St. 711.

   MARVIN, J.

Rowland was- prosecuted before tbe mayor of tbe village of Oberlin upon charges made in an affidavit, to wbicb particular attention will be later given in this opinion. As a result of this prosecution he was found guilty and sentenced to pay a fine of $150.

Proceedings in error were prosecuted in the court of common pleas, resulting in an affirmance of the judgment of the conviction and sentence.

To this affirmance error is prosecuted in this court.

There are four charges in the affidavit; the first reads:

“First. That on or about the 6th day of August, A. D. 1907, in the village of Oberlin, Lorain county,- Ohio, Thad H. Rowland being then and there a regular druggist, did then and there unlawfully sell intoxicating liquors to one Paul Long upon a written prescription. That the sale of intoxicating liquor by the said Thad H. Rowland was not then and there made in good faith for medicinal purposes, and that the selling of intoxicating liquor as aforesaid by the said Thad H. Rowland was then and there prohibited and unlawful and contrary to an act passed April 3, 1902 (95 Ohio Laws, p. 87), known as the Municipal Local Option law, and against the peace and dignity of the state of Ohio.”

On the part of the plaintiff in error it is urged that no facts are here stated which constitute an offense under the laws of Ohio. The affidavit sets out the holding of an election under the statute of 1902, in the village of Oberlin, resulting in favor of prohibiting the sale of liquor within the municipality and then the charge as hereinbefore, quoted.

Section 4364-20c R. S. (Secs. 6004 G. C. et seq.) makes exceptions in favor of druggists in these words:

“But nothing in this act shall be construed to prevent the selling of intoxicating liquors at retail by a regular druggist for exclusively known medicinal, pharmaceutical, scientific, mechanical or sacramental purposes; and when, sold upon written prescription issued, signed and dated in good faith by a reputable physician in active practice and the prescription used but once.”

How it can be claimed that anything is set out in this charge which is in violation of the statute, it is difficult to understand. The language is that liquor was sold upon a written prescription, but that the sale was not'made in good faith for medicinal purposes. It is not sufficient to say that the sale was not made in good faith, without some allegation that it was known to the seller that it would be used for other than the purpose fie prescription called for, or some other fact tending to show that it was not sold in good faith. It is not sufficient to simjly state the conclusion that it was not sold in good faith; so, as to this charge, we find that it does not set out facts that consttute an offense under the statute.

The third charge is in these words:

“That on or about the 8th day of August, A. D., 1907, in the village of Oberlin, Lorain county, Ohio, one Thad H. Sow-land, being then and there a regular druggist, did then and there sell intoxicating liquor to one Paul Long, upon a prescription wlieh had been used theretofore, and intoxicating liquor secured theretofore by the means of said prescription. ’ ’

The charge here sought to be made is under the same statute. It will be noticed here that the charge is that the liquor was sold upon a prescription which had already been used.

The exception in favor of the druggist provides that the prescription shall be used but once, but there is nothing in the charge to indicate that Rowland had any knowledge that this, prescription had ever been used, and intoxicating liquors obtained thereupon, so that everything in the charge may be true and Rowland be entirely innocent, for except he had knowledge that the prescription had already been used and liquor obtained upon it, surely it was not a crime in him to furnish liquor upon the prescription. The party using the prescription has right to use it once. Except,that the druggist has knowledge that the prescription has already been used, it would be a great hardship to say that he should be punished for furnishing liquor upon it, and such was not the intention of the legislature.

The fourth charge is like the third, except that after averring that the liquor was sold upon a prescription which lad been used theretofore, the words follow: “and was not canceled ty the said Thad H. Rowland when said prescription was first used.” It is provided by the act of February 23, 1906, under which this charge is made that a record shall be kept of the sales made, and that the prescription when used, shall be canceled, and a penalty is provided for failure to make such cancellation. However, in the charge now under consideration for aufht that appears it was some other person than Thad H. Rowland who should lave canceled the prescription when it was first used. The alligation simply is that the liquor was furnished upon a prescripion which had before that time been used and that it was not janceled by Thad H. Rowland when it was used the first time. lut it could be said of a druggist who, had never seen the prescription at all that it was not canceled by him just as well as to say that it was not canceled by Rowland. Rowland may never have seen the prescription at all before this and still all that is contained in the charge be true. We think that there is nothing in this charge showing a violation of the statutes of Ohio.

The second charge, however, in the affidavit is in these words:

“ That on or about the 6th day of August, A. D. 1907, in the villaje of Oberlin, Lorain county, Ohio, in which village the sale of intoxicating liquor was then and there prohibited, one Thad H. Rowland, being then and there a retail druggist and pharmacist, did then and there sell intoxicating liquor upon prescription to one Paul Long; that the said Rowland did not then and ¿here make any record in a book of said sale, as required by law.”

This we hold, to be a distinct violation of the statute of February 23d, 1906, which provides that whenever a pharmacist or druggist sells liquor under a prescription, a record shall be kept of the ^.le in a book provided for that purpose. Here the charge is distinctly made that the statute was violated. Indeed this is not seriously denied by the plaintiff in error but it is urged that the statute is unconstitutional in that it, in effect, by tke exceptioi in favor of druggists and pharmacists, permits a license tí be given to traffic in intoxicating liquors. Without entering into a discussion of this question, we feel that though it is not tree from doubt we are by no means clear that the constitution is infringed. We have, in a case involving this question in Cuyahoga county, held the statute to be constitutional, and we understand that it has been so held in two of the other circuits of the state, and we have no information that it has ever been bdd otherwise. We adhere to our former holding, therefore, tint the statute! is not in violation of the constitution.

The penalty imposed is, as has been stated, a fine of $150. This is not in excess of the fine allowed for the offense of failing to make record of the sale, as contained in the second charge. In the ease of Bailey v. State, 4 Ohio St. 440, 444, the last clause of the syllabus reads:

“Where the defendant is found guilty on several distinct counts of the indictment, some of which are bad and some good, a judgment and sentence in general terms, on such a verdict, is not erroneous, provided the sentence be proper, and warranted by the laws applicable to the good counts.”

The concluding part of the opinion in that case reads, at ■.page 445:

“In the case before us, the judgment and sentence of the court would have been proper under either the third or the fifth count of the indictment, the sufficiency of either of which is unquestioned. Inasmuch, therefore, as the verdict was equivalent to a general verdict of guilty on the five first counts of the indictment, and the sentence was warranted by the law applicable to the offense charged in the good counts, the presumption of the law prevails that the. court awarded judgment on the good counts. ’ ’

It follows since the facts upon which the conviction was had are not before us, that the judgment of affirmance in the court of common pleas must be affirmed.

Winch and Henry, JJ., concur.


text:
    FRAUDULENT CONVEYANCES — HOMESTEAD
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.]
    Marvin, Winch and Henry, JJ.
    John H. Lees v. Frank H. Kennedy et al.
    Fraudulent Conveyance Not Exceeding Homestead Exemption Not Set Aside. Equity Courts Will Not Decree a Vain Thing.
    In an action to set aside a conveyance, alleged to be in fraud of creditors, a decree will not be granted when it appears that the interest of the judgment debtor in the property does not exceed the amount to which he would be entitled in lieu of a homestead, and when the only result of such a decree would be to increase the costs in the case.
    Appeal.

      D. B. Carpenter, for plaintiff.

      F. B. Bruml, for defendant.
   MARVIN, J.

Lees, the plaintiff, is a judgment creditor of Frank H. Kennedy. He is unable to obtain anything to satisfy his judgment upon execution, and he seeks to have certain conveyances of real estate set aside, to have such real estate decreed to be the property of said Frank B. Kennedy, and that such orders may be made as will subject it to the payment of his judgment.

We find as a fact that before December 26, 1898, Frank and his wife jointly owned a parcel of real estate known as 84 Walnut street, in the city of Cleveland, worth about $5,000 on which was a mortgage of $3,000. Most of the purchase money for this property was furnished by Frank, though a small part was furnished by the wife. When the deed was taken to the two, Frank was not in debt and had a perfect right to have it deeded in all or part, to his wife as he saw fit.

On the date last named Frank deeded his one-half interest in this property to his wife for the nominal consideration of $500, but in fact without any valuable consideration whatever. Before this last conveyance was made the plaintiff had obtained the judgment which is the basis of his present action.

In April, 1899, Frank and his wife deeded this Walnut street property to the Curtis-Ambler Co., receiving as consideration the assumption by the Curtis-Ambler Co. of the mortgage debt already mentioned and the conveyance to Mrs. Kennedy of seven lots of land on the west side of the river in this city. These lots were immediately thereafter mortgaged by Kennedy and his wife for the sum of $2,000 for a loan of that amount made to them.

This was all the money ever obtained by them for said lots, they having been afterwards subjected by foreclosure proceedings to the payment of such mortgage. Of said sum of $2,000 so obtained on said mortgage loan, one-half was the property of Frank and one-half the property of the wife. Frank took $800 of this $2,000 so received on the mortgage and used it for the payment of debts which he owed; Mrs. Kennedy deposited $1,200 of the said $2,000 in the bank; $1,000 of this was hers; $200 of it was Frank’s.

This sum of $1,200 Mrs. Kennedy put with money of their son Arthur Kennedy in purchasing a lot and building a house where the family now live, on North Perry street, in Cleveland. The title to this is in Arthur. We find these facts from the testimony produced to us, and the witnesses impress us as telling the truth. Their story is a natural one. Frank had become involved ; his son Arthur from the time he was sixteen (he is now 24 or 25) has been earning money and living with his parents, saving his money and putting it in with that his mother had in the bank for the purpose of procuring this home. The evidence shows that the father was consulted about the lot before the purchase; $200 of his money went into the purchase; indeed, it was the most natural thing in the world that the father should have been consulted about the purchase of the lot. The evidence shows that this property, encumbered as it is, is worth only about what it cost. The title to it is in Arthur. Frank has an equity of not more than $200 in this property. At the outside his equity can not exceed $300. He is a resident of Ohio and is a husband living with his wife. He has no homestead other than his equity in this property. He makes claim of exemption in lieu of homestead.

Were we to appoint a trustee under the statute to work out the rights of the parties in this property, it is clear that there would be nothing which the plaintiff could get toward the payment of his claim. We should aid nobody; we should increase the costs needlessly, without any benefit to the plaintiff.

We feel that to appoint such a trustee would be a vain thing, which we are not called upon to do.

The petition of the plaintiff is dismissed.

Winch and Henry, JJ., concur.


text:
    CONTRACTS — WORDS AND PHRASES
    [Cuyahoga (8th) Circuit Court,
    October 27, 1905.]
    Marvin, Winch and Henry, JJ.
    Reuben Aronson v. Frankfort Chair Co.
    1. Ambiguous Word's in Contract May be Explained by Parol Evidence.
    Ambiguous words used in a written contract may be explained by parol evidence as to what was said at the time the words claimed to be ambiguous were used.
    2. “Ship at Once,” “Rush” on Printed Order Stating “Orders Filled at Earliest Possible Date,” Held Ambiguous.
    When a printed order form provides that orders will be filled at the earliest possible date, writing on the order “ship at once,” “rush,” indicates a special agreement as to shipment and creates ambiguity.
    Error.

      B. A. Castner, for plaintiff in error.

      White, Johnson, McCaslin <& Gannon, for defendant in error.
   MARVIN, J.

The plaintiff below brought suit before a justice of the peace and the case was appealed to and tried in the common pleas. The petition sets forth that the plaintiff is a corporation; that the defendant was doing business as “Auction Storage & Loan Co. ’ ’ and that he was indebted to said plaintiff on an account, a copy of which is attached to and made a part of the petition, and prays for judgment for the amount of said account. The account reads:

“Frankfort, Ky., Oct. 1st, 1901.
“Auction Storage & Loan Go., Cleveland, Ohio.
‘ In account with
“Frankfort Chair Co.
“6 doz. 5436 chairs
“1 doz. 165 chairs $46.75.”

The defendant answers, admitting that he was doing business as “Auction Storage & Loan Co.” and denying all other allegations of the petition, except that the case came into the common pleas court by appeal from the judgment of the justice of the peace.

On the trial the plaintiff offered in evidence, among other things, the deposition of one Augustus F. Boshe, from which it appears that he took an order for goods from the defendant on September 18, 1901; that he mailed the same to the Frankfort Chair Co. on the morning of the 19th. Though it is made probable from his testimony that he took an order in writing from the defendant, it is not distinctly said so by him. In any event the plaintiff did not offer any such writing in evidence, nor does the witness anywhere state that the goods ordered are those charged for in this account. He says he shipped all the goods ordered except one-half dozen rockers, which the plaintiff did not have in stock and for which no charge is made, and that the shipment was made on October 1, 1901.

Plaintiff also took the deposition of one Charles "W. Ilinnan, who testifies that he is manager of the shipping department of the Frankfort Chair Co. He says he received the defendant’s order in his department September 30, 1901, and shipped the chairs ordered, except one-half dozen rockers, on October 1st. He nowhere says that he shipped the goods charged for in the account sued upon.

The bill of exceptions does not set out all of the evidence, but states that in addition to the two depositions already mentioned, evidence was given on the part of the plaintiff tending to show that the defendant had admitted the claim of the plaintiff, and that evidence was given on the part of defendant tending to disprove such admission. Of course, with the bill in this condition, the court can not say that the verdict is not supported by the evidence, though such incompetent evidence as appears in the deposition is certainly very weak.

The plaintiff rested its case without introducing, as has already been said, any written order given by the defendant for goods.

To make the defendant’s case, both he and his wife went upon the stand, and before the written order was introduced by anybody, and when there had been no evidence introduced about it, except as shown by the deposition to Boshe who took the order, it was sought to show by each of them what was said betAveen the parties at the time the order was given. Boshe had testified, t-hát he took the order and mailed it to the plaintiff and that the goods were shipped in accordance with the order, except that one-half dozen chairs had not been sent because the plaintiff did not have them in stock, that the goods were shipped as promptly as possible and as promptly as is the custom with such orders in the trade. Then this question had been asked of Boshe:

“Was there any request made by the defendant out of the ordinary at the time he made this order in regard to getting the chairs to him, and did you understand from him that if he got the chairs in the regular manner and in the regular course of business that that was all he demanded! ’ ’

To that Boshe answered:

“No extraordinary request was made and he understood that the chairs would be shipped to him as quickly as possible. ’ ’

For the purpose of showing that the goods ordered were for a particular purpose and that the agent who took the order agreed to deliver them within one week, this question was asked the defendant when he was on the witness stand:

“What was said by you at the time the order was given, to the agent who took the order for the chairs, as to the time when they should be shipped?”

This was objected to, the objection sustained and a proper exception taken.

When the defendant's wife was upon the stand she testified that she was present when the order for the goods was given; that she heard all the conversation pertaining to such order, and plaintiff offered then to prove by her that defendant’s agent agreed to have the chairs in Cleveland within one week; that defendant told him that the chairs were to fill a contract made by defendant with one M. M. Rahy, who was about to open a restaurant and that they must be ready for delivery to Rahy before the 28th day of September, 1901, or the order should not be taken. To this end she was asked by counsel for plaintiff the following question:

“What was said by the defendant to the agent of plaintiff at the time the order was given as to the time when the order should be delivered in Cleveland?”

Objection to this question was made by plaintiff, and sustained, and proper exception taken. Bearing in mind that up to this time no written order had been offered by either party and that plaintiff’s agent had answered that no extraordinary request was made, we are unable to discover any ground upon which the objection was made to the testimony of either of these witnesses should have been sustained. The plaintiff was not relying upon any writing but upon oral testimony as to having received an order and having complied with it. The defendant undertook by the same kind of evidence to show that what was said at the time the order .was made varied the order from that which the plaintiff claimed. The case was argued, here, however, upon the theory that the written order was already in evidence, though it had not then been offered, but immediately thereafter it was put in evidence and is on a printed form evidently prepared by the plaintiff, and reads as follows:

At the top of the order appeared the words in print “Frankfort Chair Co., Frankfort, Ky.” Printed on the left hand side of the paper are words “Order No.” Under that “Ship to,”; under that the word “When” and under that the word “Terms.” Then further down and across the order from left to right and so separated as to indicate that columns are to be filled in under the several headings, the following words appear in print:

“Doz. Number.....White or Wood finish....., K. D. or S. U., Per Doz.......Amount......Description........”

Then there appears in writing these words: ‘! Cleveland, 0., Sept. 10, 1901. ’ ’ Extending along the line of the printed words “ship to” appear in writing the words “Auction Storage & Loan Co., 187 Ontario St.” Then after the printed word “Address is written “Cleveland, Ohio.” Then on the line with “When” in writing “At once,” and then in parenthesis the word “Rush” in writing. Then after the word “Terms” is written the terms of payment that were made. Then under the printed words “Numbers” and “Wood” are words indicating the number and kind of chairs that were ordered.

Then at the bottom of the order in printing are these words:

“Unless otherwise constituted, all balance orders will be filled at the earliest possible date. "Will make no freight allowance or allowance for breakage on goods in transit, as we hold transportation company’s receipt that chairs will be delivered in good order.”

As has already been stated, the case was argued to us as though that writing had already been introduced in evidence, and then it was urged that any testimony which could be given by this husband or wife as to what was said at the time the order was received would be to permit evidence to contradict or vary the terms of the written contract.

It is said that there is nothing in this contract that is ambiguous or requires any explanation. It is recognized by lawyers that parol evidence will not be received to vary the terms of a written contract, but a written contract the terms of which are ambiguous, may be explained by the circumstances under which the writing was made. It is said, as I have already said, that there is nothing ambiguous in any of the words used here, and it is said that all of the words have a meaning distinctly understood in the trade and so well understood by everybody that they must have known, if they had this writing, just what they meant. After “When” are the written words “At once.” But it is said the words “At once” have a fixed meaning among business men in an order for goods, and that they mean, with all convenient speed; they mean within a reasonable time. As used in this order, is it possible that they meant that? If so, they need not have written them in at all. “Unless otherwise constituted all balance orders will be filled at the earliest possible date.” If they didn’t mean to change that at all the writing of the words “at once” was entirely unnecessary. But it must be assumed that they wrote them in there for some purpose. They didn’t need to write them in to indicate that goods would be furnished at the earliest possible date, for they had already said that in print. But that is not all. Then follows the word “Rush.” That has a fixed meaning in business. I find by the dictionary that word means: “with great haste and violence.” It has other meanings. It clearly did not mean that here, but it has meant something or they would not have written it in. Now, what do these words mean as used by the parties at the time this order was made? If we can find just what was said at the time, and if that was said which it is claimed was said would be shown by the answer of this defendant and his wife, that would have aided very materially in determining what was meant.

The authorities are uniform that you may introduce parol evidence to explain ambiguous words, and you may introduce such evidence to show the circumstances under which the ambiguous words are used. Barrett v. Allen, 10 Ohio 426; Elliott Evidence, 597; Leonard v. Stickney, 131 Mass. 539; Tuttle v. Burgett’s Admr., 53 Ohio St. 498 [42 N. E. 427; 30 L. R. A. 214; 53 Am. St. 649]; Baker v. Jordan, 3 Ohio St. 439; Wigmore, Evidence, 2430-2465.

The case of Quarry Co. v. Clements, 38 Ohio St. 587 [43 Am. Rep. 442], is especially in point in this case, where what was said by the parties at the time the words were used which it is claimed were ambiguous was affirmed.

For error in sustaining the objection to the question put to defendant below and the question put to his wife, the judgment is reversed and the ease remanded to the court of common pleas.

Winch and Henry, JJ., concur. -