text:
    INSURANCE — MORTGAGES.
    [Franklin (2nd) Circuit Court,
    September 21, 1909.]
    Sullivan, Dustin and Allread, JJ.
    Ohio-German Fire Ins. Co. v. Emma Krumm.
    Mortgagee notwithstanding Failure to Present Proofs of Loss, mat Recover on Policy Containing Union Mortgage Clause.
    A mortgagee may recover upon, a fire insurance policy containing what is-known as the union mortgage clause of the standard policy of New York, New Jersey and Connecticut for a loss of the property by fire when neither he nor the mortgagor present proof of loss within sixty days-after loss, as required of “the insured” by a condition in the policy.
    [Syllabus by the court.]
    Error to Franklin, common pleas court.
    J. M. Sheets and F. R. West, for plaintiff in error.
    G. E. Bibbee, for defendant in error:
    Plaintiff’s contention is that as her action is based upon the mortgage clause attached to the policy that she by said mortgage clause is-not required to make proofs of loss and that the failure of proofs of' loss to be made by the insured, the mortgagor, does not defeat the plaintiff’s action. Hastings v. Insurance Co. 73 N. Y. 147; Eddy v. Assurance Corp. 143 N. Y. 311 [38 N. E. Rep. 307 ; 25 L. R. A. 686]; Syndicate Ins. Co. v. Bohn, 65 Fed. Rep. 165, 178 [27 L. R. A. 614]; Firemen’s Ins. Co. v. Boland, 30 O. C. C. 811 (8 N. S. 325), affirmed, no-report, Firemen’s Ins. Co. v. Agner, 73 Ohio St. 393.
    A mortgage is not required to furnish proofs of loss as a condition precedent to his right of action. 1 Clement, Insurance 208; Glens Falls-Ins. Co. v. Porter, 44 Fla>. 568 [33 So. Rep. 473] ; Northern Assur. Co. v. Building & Loan Assn. 98 111. App. 152, affirmed, Northern Assur. Co. v. Building & Loam, Assn. 198 111: 474 [64 N. E. Rep. 979]: Queen Ins. Co. v. Savings, Loan <& Bldg. Assn. 175 111. 115 [51 N. E. Rep. 717].
    A contract of insurance is strictly construed against the insurer, and in favor of the insured. 1 Clemens, Insurance 460.
   ALLREAD, J.

The question arising in this case is whether the mortgagee may recover upon a fire insurance policy containing what is known as the union mortgage clause of the standard policy of New York, New Jersey and Connecticut for a loss of property where neither he nor the mortgagor presented proofs of loss within sixty days as required of “the insured” by a condition in the policy. It is conceded that the mortgagee presented proofs of loss to the company before the suit was brought but not within sixty days after the loss occurred.

It is contended by the insurance company that the mortgage clause which contains a stipulation that the insurance of the mortgagee shall not be invalidated by any act or neglect of the mortgagor does not relieve the mortgagee from compliance with the conditions of the mortgage precedent to the bringing of the suit, namely, the giving of notice and proofs of loss.

The. courts of other states are divided upon this question and no decision of our own courts has been cited.

The cases of Southern Bldg. & L. Co. v. Insurance Co. 94 Ga. 167 [21 S. E. Rep. 375; 27 L. R. A. 844; 47 Am. St. Rep. 147], and Lombard Invest. Co. v. Insurance Co. 62 Mo. App. 513, support directly the contention of the insurance company. The text in Joyce on Insurance, lays down the rule as contended for by the insurance company, citing Southern Bldg. & L. Co. v. Insurance Co. supra, as authority. There are other cases cited by counsel for the insurance company in line with these cases but not directly upon the question of proofs of loss, or where the policy is not similar to the one at bar. On the other hand, the later case of Adams v. Insurance Co. 115 Mo. App. 21 [90 S. W. Rep. 747], is directly opposed to the former case in the same court and holds that the mortgagee under a mortgage clause similar to the one involved here is not required to present proofs of loss within sixty days as required of “the insured” by other conditions in the policy. This view is also supported by the cases of Glens Falls Ins. Co. v. Porter, 44 Fla. 568 [33 So. Rep. 473], and Northern Assur. Co. v. Building & Loan Assn. 98 Ill. App. 152.

Clement on Insurance in the text supports the proposition that the mortgagee is not required to furnish proofs of loss within sixty days, citing the cases above referred to as supporting that proposition. The author evidently from an examination of all the cases concluded to support the doctrine of Glens Falls Ins. Co. v. Porter, supra, and other cases supporting it rather than that of Southern Bldg. & L. Co. v. Insurance Co. supra.

We are also of the opinion that the cases supporting the view that the mortgagee is not required to furnish proofs of loss within sixty days as a condition of recovery are founded upon the better reason.

It is clearly the intention by the mortgage clause here to afford a higher degree of insurance to the mortgagee and to relieve him from many of those conditions which are imposed upon the mortgagor. The reason for this may be found in the fact that the mortgagor is ordinarily in possession and responsible for the care of the property and is more liable to have the opportunity for the imposition of fraud. This view was evidently in the mind of the insurance company when.it prescribed this form of policy and no reason is apparent why the court should construe this clause as against its express terms in favor of the insurance company, but in ease of doubt the mortgagee is entitled to a liberal construction in his favor.

It is, however, contended that the mortgage clause is not inconsistent with the conditions of the policy requiring notice and proofs of loss; that the term, “the insured,” as used in the condition requiring proofs of loss, includes the mortgagee as well as the mortgagor; and that, therefore, the mortgagee must see that these proofs are furnished within the period stipulated in the policy. Upon reading, however, the petition which shows that the owner of the property took the insurance and paid the premium, and also looking to the nature and character of the information to be given by “the insured” at the time of the fire, and the nature and character of the proofs of loss, it is fairly indicated that the term “the insured” relates to the owner and not to the mortgagee. This view is well stated and illustrated in the case of the Union Institution for Savings v. Insurance Co. 196 Mass. 230 [81 N. E. Rep. 994; 14 L. R. A. (N. S.) 459].

We think, therefore, that a reasonable construction of this policy is that the mortgagor is the insured and required to furnish proofs of loss within sixty days after the fire as a condition of his recovery, and that that clause does not apply to the mortgagee, and that he may recover notwithstanding the failure of either to furnish proofs of loss within sixty days.

It is also urged that the promissory clause of this policy only provides for payment of the loss within sixty days after proofs of loss according to the terms and' provisions of the policy, and that unless •such proofs of loss are furnished by someone, the promissory clause •does not obligate the company to pay. It will be observed from the record in this ease that the mortgagee did file proofs of loss at least sixty days before the suit was brought, and inasmuch as the terms and conditions of the policy do not require the mortgagee to file proofs of loss within sixty days, we think the promissory clause has been complied with by the filing of these proofs of loss after the sixty days from the loss and at least sixty days before the filing of the petition.

The judgment of the court below, therefore, sustaining the demurrer to the answer and rendering the judgment in favor of the mortgagee-, upon the policy, is consistent with our view of the law of the case, and' is, therefore, affirmed.

Sullivan and Dustin, JJ., concur.


source: Caselaw Access Project

author: SWING, J.

license: Public Domain

text:
    COUNTIES — PROSECUTING ATTORNEY.
    [Hamilton (1st) Circuit Court,
    May, 1909.]
    Giffen, Swing and Smith, JJ.

      Ireton et al. v. State ex rel. Hunt.
    .Commissioners are without Power to Employ Legal Counsel to Supplant Prosecuting Attorney.
    Prosecuting attorneys under Secs. 845 and 1274 Rev. Stat., in the absence-of appointment of legal counsel by the county commissioners, must prosecute and defend all suits to which the board of commissioners is a, party; hence, in an action in which the board is a party and the prosecutor is willing and able to act, the board is without authority to employ,such other legal counsel.
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    F. F. Dinsmore and Stanley Struble, for plaintiff in error.
    H. T. Hunt, Alfred Bettman and S. W. Merrell, Pros. Attys., for defendant in error:
    Cited and commented upon the following authorities: 2 Page,. Contracts See. 1015: Smith, Mun. Corp. Sec. 679; Ransom v. Mayor? 24 Barb. (N. Y.) 226; Clough v. Hart, 8 Kan. 487; Frederick v. Douglas Co. 96 Wis. 411 [71 N. W. Rep. 798]; Brome v. Cuming Co. 31 Neb. 362' '[47 N. W. Rep. 1050]; Waters v. Trovillo, 47 Kan. 197 [27 Pac. Rep. 822]; Logan Co. (Comrs.) v. Jones, 4 Okla. 341 [51 Pac. Rep. 565]; State v. Newton, 26 Ohio St. 265; Earnfit v. Winans, 3 Ohio-135; Brower v. Hunt, 18 Ohio St. 311; Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 621]; Little v. Seminary, 72 Ohio St. 417 [74 N. E. Rep. 193]; Morris Coal Co. v. Donley, 73 Ohio St. 298 [76 N. E.. Rep. 945].

      Affirming State v. Hamilton Co. (Comrs.) 20 Dec. 000; affirmed, no op., Ireton v. State, 81 O. S. 562.

   SWING, J.

Reading Secs. 845 and 1274 Rev. Stat., together, it seems clear that either the prosecuting attorney or legal counsel employed by the commissioners upon the request of the prosecuting attorney under Sec. 845, must prosecute and defend all suits and actions to which the commissioners are a party. No legal counsel having been employed by the commissioners under Sec. 845, the statute (See. 1274) says that these duties shall be performed by the prosecuting attorney. He cannot refuse to perform the duties imposed by this section, nor is it in the power of the commissioners to employ other counsel to supplant him in the performance of these duties without overruling the clearly expressed intention of the legislature.

Ireton and Schoenle were employed by the commissioners to defend the suit of Eberhardt v. Hamilton Co. (Comrs.), a suit pending in the court of common pleas.

Reading See. 1271 with Sees. 845 and 1274 Rev. Stat., it is manifest that the legislature intended in the first instance that the prosecuting attorney should be the legal, counsel of the commissioners, and perform the duties required to be performed by legal counsel under Sec. 845, and this is done in all the other counties of this circuit, and no doubt it is done in almost all the counties of the state, the prosecuting attorney being able himself to perform not only the primary duties pertaining to his office, which duties are of a criminal nature, but also to perform the duties of legal counsel for the commissioners, which duties are- of i civil nature.

Under the provisions of Sec. 1271 Rev. Stat., the prosecuting attorney may appoint such assistants as he shall deem necessary for the proper performance of the duties of his office. These duties primarily are to prosecute all complaints, suits and controversies on behalf of the state, but this provision does not contemplate that he is to appoint ^assistants to perform the duties of legal counsel for the commissioners. It is clear from See. 845 that if the prosecutor, himself, cannot perform the duties of legal counsel required by this section, he shall make this fact known to the commissioners and request them to employ legal counsel to act for them.

The reason for this is plain. The commissioners are the executive •officers of the county. They make all contracts and represent the county in all actions, and if the legal counsel, the prosecuting attorney elected by the people, cannot peform the duties, the expressed intention of the legislature is that the commissioners should choose whoever they may think best fitted to attend to the business pertaining to the "legal counsel” contemplated by the statute.

In this ease it does not appear from the record but what the prosecuting attorney is able and willing to perform the duties of legal counsel for the commissioners, nor does the record show that the prosecuting attorney has requested the county commissioners to appoint legal! counsel, and as the statute requires that all suits or actions for or against the commissioners shall be prosecuted by the prosecuting attorney or legal counsel employed by the commissioners as such, it follows that the employment of Ireton and Schoenle as counsel to defend the suit in question was not authorized by law, and the judgment must therefore be affirmed.

Giffen and Smith, JJ., concur.

Decision on Rehearing.

A rehearing in this case was granted on account of the Supreme-Court having decided Sec. 845 Rev. Stat. unconstitutional. After ,a full argument and careful consideration we are of the opinion that the unconstitutionality of this section does not make invalid the provision of' Sec. 1274 as to the powers and duties of the prosecuting attorney. We are further of the opinion that Sec. 1274 authorizes the commissioners-to employ counsel in cases where from any cause the prosecuting attorney cannot or will not act as counsel for the commissioners. But the-intention of the legislature seems clear that the prosecuting attorney shall act as legal counsel for the commissioners in all suits, since See. 845» is no longer valid.

In this case the prosecuting attorney says he is willing and able to-prosecute the ease in question, and the necessity for the employment of other counsel by the commissioners does not exist. The former judgment will therefore be adhered to.


author: GIFFEN, J.

text:
    ATTACHMENT AND GARNISHMENT.
    [Hamilton (1st) Circuit Court,
    January 25, 1908.]
    Swing, Giffen and Smith, JJ.

       Edwards Mfg. Co. v. Ashland Sheet Mill Co.
    1. Petition in Error and Undertaking for Retention of Attached PeopeetySufficiently Piled.
    Piling a petition in error and an undertaking for retention of attached property within the time required upon sustaining a motion to discharge-an attachment, sufficiently complies with Sec. 5563b Rev. Stat.
    2. Affidavit for Attachment against Nonresident Corporation Must Affirmatively. Show that it is not Doing Business in Ohio, etc.
    An affidavit in attachment, averring that “defendant is a non-resident of' the state” aided by the petition, alleging that defendant is a corporation-under the laws of another state, which is sworn to positively, is equivalent to a statement that it is a nonresident corporation; hut the affidavit must affirmatively show that the defendant is not within the exceptions prescribed by Subd. 1 of Sec. 5521 Rev. Stat.
    Error to Hamilton common pleas court.
    A. D. Shockley, for plaintiff in error.
    Maxwell & Ramsey, J. L. Lackner and J. S. Graydon, for defendant in error-:
    Cited and commented upon the following authorities: Hough v. Manufacturing Co. 66 Ohio St. 427 [64 N. E. Rep. 521]; Harrison v. King, 9 Ohio St. 388; Mansfield Sav. Bank v. Post, 12 Circ. Dec. 577 (22 R. 644), affirmed, Post v. Bank. 54 Ohio St. 629 [47 N. E. Rep. 1115]; Kerr, Prac. in Attach. Secs. 207, 209; Endel v. Leibrock, 33 Ohio St. 254; Fisk v. French, 114 Cal. 400 [46 Pac. Rep. 161]; Cook v. Engine Works, 10 Circ. Dec. 236 (19 R. 732) ; Duxbury v. Dahle, 78 Minn. 427 [81 N. W. Rep. 198; 79 Am. St. Rep. 408]; Forbes' Piano Co. v. Owens, 120 Ga. 449 [47 S. E. Rep. 938]; 'Butcher v. Leather Go. 148 Mich. 552 [112 N. W. Rep. 110]; Buchanan v. Edmisten, 95 N. ~W. Rep. 620 (Neb.) ; Munger v. Doolan, 75 Conn. 656 [55 Atl. Rep. 169]; Rasmussen v. McCabe, 46 Wis. 600 [1 N. W. Rep. 196]; United States Baking Co. v. Bachman, 38 W. Va. 84 [18 S. E. Rep. 382]; Taylor v. Tobacco Co. 107 Va. 787 [60 S. E. Rep. 132]; Delafield v. Armsby Go. 62 App. Div. 262 [71 N. Y. Supp. 14]; Mantón v. Poole, 67 Barb. 330; Cosner v. Smith, 36 W. Va. 788 [15 S. E. Rep. 977]; Driscoll v. Kelly, 4 Dee. 124 (5 N. P. 243) ; Rouss v. Wright, 14 Neb. 457 [16 N. W. Rep. 765]; Waples, Attach. & Gam. (2 ed.) Sec. 117; McCrea v. Russell, 100 Mich. 375 [58 N. W. Rep. 1118]; 1 Shinn, Attach. & Gam. Secs. 8, 90, 148; Iroquois Furnace Co. v. Manufacturing Co. 181 111. 582 [54 N. E. Rep. 987]; Bigalow Fruit Co. v. Armour Car Lines, 74 Ohio St. 168 [78 N. E. Rep. 267]; 1 Chitty, Pleading Parties to Actions (16 ed.) 246, 344; Gould, Pleading in Civil Actions (5 ed.) Chap. 4, Secs. 20, 22; State v. Stapp, 29 Iowa 551; Haskins V. Alcott, 13 Ohio St. 210; Buckeye Pipe Line Co. v. Fee, 62 Ohio St. 543 [57 N. E. Rep. 446; 78 Am. St. Rep. .743] ; Taylor v. McDonald, 4 Ohio 149; Crane v. Hibbard, 66 Ark. 282 [50 S. W. Rep. 503]; Brand v. Auto Service Co. 67 Atl. Rep. 19 (N. J.); Upp v. Neuhring, 127 Iowa 713 [104 N. W. Rep. 350]; Ladenburg v. Bank, 87 Hun 269 [33 N. Y. Supp. 821]; Pajaro Valley Bank v. Scurich, 95 Pac. Rep. 911 (Cal.) ; Bradley v. Interstate Land & Canal Co. 12 S. Dak. 28 [80 N. W. Rep. 141].

       Affirming Edwards Mfg. Co. v. Mill Co. 18 Dec. 413. Dismissed by consent, Edwards Mfg. Co. v. Mill Co. 54 Bull. 495.

   GIFFEN, J.

Where a motion to discharge an attachment is sustained, and the plaintiff, within thirty days thereafter, or sooner if so ordered by the court, ‘files a petition in error and an undertaking for the retention of the attached property, it is a sufficient compliance with the provisions of See. 5563b Eev. Stat.

An affidavit for attachment, which contains the statement that “the defendant is a nonresident of said state of Ohio,” when aided by the averment in the petition, which is sworn to positively, “that the defendant is a corporation duly organized under the laws of Kentucky,” is equivalent to a statement that the defendant is a foreign corporation.

An affidavit for attachment upon the ground that the defendant is a.foreign corporation must affirmatively show that such corporation is not within the exceptions contained in Subd. 1, Sec. 5521 Eev. Stat., and it is not aided by an averment in the petition, though sworn to positively, that the defendant is “doing business at Ashland, Kentucky,” as such statement does not exclude the fact that it may also be doing business in this state and owning or using a part of its capital or plant in this state.

Judgment affirmed.

Swing and Smith, JJ., concur.


author: MARVIN, J.

text:
    CONSTITUTIONAL LÁW — CORONERS.
    [Cuyahoga (8th) Circuit Court,
    November 15, 1909.]
    Henry, Marvin and Winch, JJ.
    R. C. Wright, Aud., v. Robert Droege.
    Statute Providing for Deputy Coroners in Cuyahoga County is Unconstitutional.
    Section 1209a Rev. Stat., providing for the appointment of deputy coroners in certain counties having a city of the first class, second grade, is unconstitutional in that it contravenes Art. 2, Sec. 26, of the state constitution requiring laws of a general nature to have a uniform operation throughout the state.
    Error to Cuyahoga common pleas court.
    J. A. Cline, Pros. Atty., and W. D. Meals, for plaintiff in error.
    Mooney & Mahon, for defendant in error:
    Cited and commented upon tbe following authorities. , Platt v. Craig, 66 Ohio St. 75 [63 N. E. Eep. 594]; Cass v. Billon, 2 Ohio St. 607; State v. Davis, 23 Ohio St. 434; State v. Covington, 29 Ohio St. 102; State v. Hoffman, 35 Ohio St.-435; State v. Kendle, 52 Ohio St. 346 [39 N. E. Rep. 947]; State v. Tates, 66 Ohio St. 546 [64 N. E. Rep. 570]; State v. Houck, 31 O. C. C. 15 (11 N. S. 414); Cricket v. State, 18 Ohio St. 9; State v. Spellmire, 67. Ohio St. 77 [65 N. E. Rep. 619]; Kelley v. State, 6 Ohio St. 269; Goshorn v. Purcell, 11 Ohio St. 641.
   MARVIN, J.

The only question in this ease is the constitutionality of so much of Sec. 1209a Rev. Stat. as reads:

“And the coroner in all counties having a city of the first class of the second grade may appoint a deputy coroner, who shall have power to do and perform all duties imposed by law upon the coroner of said county in his absence, at a salary not to exceed $1,500 per annum” * * *.

This statute was enacted prior to the enactment of the present municipal code, and at a time when by the statutes of Ohio there was a classification of cities. The only city of the grade and class named in this statute is the city of Cleveland, and therefore the only county affected by it is Cuyahoga county.

It is urged on behalf of the plaintiff in error that this enactment contravenes Art. 2, Sec. 26, of the constitution of the state of Ohio, which reads:

“All laws, of a general nature, shall have a uniform operation throughout the state” * * *.

The petition in this case sets out that the city of Cleveland has a population composed largely of foreign born people; that it is a large city; that crimes of violence are frequent therein; that deaths from violence are greater in number in said city than in other parts of the state, and various other facts, which, it is claimed on the part of the defendant in error, render legislation, in regard to the coroner’s office and assistants to the coroner, proper for Cuyahoga county, that would not be proper for any other part of the state.

We do not understand that these facts affect the question of whether the provisions of the statute under consideration are of a general nature. We have examined the carefully prepared brief of the defendant in error, but we are not in accord with the conclusion reached in such brief.

Especial attention is called to the language of the first clause of the syllabus in the case of the State v. Spellmire, 67 Ohio St. 77 [65 N. E. Rep. 619], which reads:

“Whenever a law of a general nature having a uniform operation, throughout the state, can be made fully to cover and provide for any-given subject-matter, .the legislation, as to such subject-matter, must be-by general laws, .and' local or special laws cannot be constitutionally enacted as to such subject-matter.”

Applying this doctrine to the case at bar, it seems clear that the-enactment under consideration is in contravention of this provision of the constitution. The subject-matter of conducting public offices is surely of a general .nature, and an enactment might very easily be made providing that in all counties-having such characteristics, as it is said in the petition - herein,. Cuyahoga county has, there should he, a deputy-coroner.

The result is that we reach the eonclnsion that there was error in the judgment.of the-court of common pleas, and-the judgment is reversed, and proceeding to enter the judgment here which the court of common pleas should have entered, the petition of the plaintiff below is'dismissed.

Henry and Winch, JJ., concur.


author: WINCH, J.

text:
    -BAIL AND RECOGNIZANCE — PRINCIPAL AND SURETIES..
    [Cuyahoga (8th) Circuit Court,
    November 15, 1909.]
    Henry, Marvin and Winch, JJ.
    Henry DuLaurence v. State of Ohio.
    Surety Desiring to Surrender Dependant is not Discharged until Court-Accepts.
    ' A surety on a hail' bond who desires to surrender the defendant and deliver him in open court, is not discharged from further responsibility an his bond until the court accepts said delivery, and the only evidence of the delivery is the record of the cour,t.
    Error to Cuyahoga common pleas court.
    F. C. Scótt and Henry DuLaurence, for plaintiff.
    -J. A. Cline-and George Hansen, for defendant.
   WINCH, J.

This was an action on a bail bond. DuLaurence admitted the due-execution of the bond but pleaded surrender of his principal. No record; evidence of the surrender was offered, but parol evidence on the subject was produced by both sides. Such serious errors were committed in the introduction of this evidence that the judgment must be reversed unless the record' is. the only competent evidence of the..surrender. If such is the law, the judgment is manifestly right and the rulings complained of are immaterial and without prejudice.

The statute, Sec. 7177, reads as follows:

“When a person who is surety in a recognizance for the appearance of a defendant before any court, desires to surrender the defendant, he' shall, by delivering the defendant in open court, be discharged from any further responsibility on said recognizance,” etc.-

We are agreed that if the delivery is complete without any' acceptance by the court, parol evidence is sufficient to prove it. If the delivery is not complete until the court takes some official action upon it, it would seem that such official action can only.be shown by the court’s records. A majority of the court is of the opinion that delivery is not complete until acceptance by the court and that-the record is the only evidence thereof.

A similar division of opinion is shown in the interesting case of Fitch v. Hall, Kirby’s Report 18 (Conn.), a case decided 125 years ago, and the argument is there stated on both sides with the brevity and dearness found in;the old reports.

As sustaining the conclusion here reached, reference is made to the following cases: State v. Este, 7 Ohio (pt. 1) 134; Whitton v. Harding, 15 Mass. 535; Rountree v. Waddill, 52 N. C. 309.

Judgment affirmed.

Henry, J., concurs.

Marvin, J., dissents.


author: WILDMAN, J.

text:
    INTOXICATING LIQUORS.
    [Fulton (6th) Circuit Court,
    October 30, 1909.]
    Parker, Wildman and Kinkade, JJ.

       August Walder v. State of Ohio.
    Sale or Nonintoxicating Liquors not Proscribed bt Rose Countt Locau Option Law.
    Nonintoxicating malt liquors are not within the proscriptions of act 99 O. L. 35, for the sale or furnishing of which in Rose county local option territory one may be prosecuted and convicted; intoxicating liquors, only, come within the inhibitions of the act.
    [Syllabus approved by the court.]
    Error to Fulton common pleas court.
    •J. P. Ragan, for plaintiff in error.
    F. H. Wolf, Pros. Atty., and W. B. Wheeler, for defendant in ■error.

      Reversed, State v. Walder, 55 Bull. 393; 83 O. S. 000; See also, Walder v. State, 82 O. S. 452.

   WILDMAN, J.

We have four cases, proceedings in error, presented to us, each entitled Walder v. State, numbered respectively 132, 138, 139, 140. The last three mentioned stand upon practically the same contentions, but the first one, No. 132, involves a different and very important question. These prosecutions are under the so-called Rose law (99 O. L. 35), the statute enacted providing for county local option in the state. Under its provisions a vote was taken in this county, and by a majority of -the electors it was made unlawful to sell intoxicating liquors within the boundaries of Fulton county.

The consideration of the first case mentioned, No. 132, relates to the character of a certain beverage conceded to have been sold by the defendant below, the present plaintiff in error. He sold what was called near beer; was convicted for its selling and sentenced accordingly by the ■court of common pleas of this county. He insists that this so-called near beer was a non-intoxicating beverage. That if it contained any alcohol, it was in a very slight quantity, not to exceed two-tenths of 1 per cent. There is perhaps some evidence indicating that it may have contained .more alcohol, but there is nothing very definite with regard to that. 'The affidavit or information upon which he was tried asserts that it eontained forty-nine hundredths per cent of alcohol and no more. The affidavit does, however, allege that it was an intoxicating liquor, to wit* a malt liquor, containing the percentage of alcohol mentioned.

The defendant in error contends that it is not necessary under the county option law, in seeking a conviction of an alleged violation of it® provisions to show that the malt liquor sold as a beverage was in fact, intoxicating.

This is the issue presented which has been deemed of sufficient importance to warrant at our hands very careful study of the argument» made orally and by brief of counsel both for plaintiff and defendant.

A very elaborate written argument is presented by counsel for defendant in error citing adjudications in several jurisdictions, holding therein not only that the legislative bodies of the different states have the power to prohibit the sale of nonintoxicants in furtherance of an effort to provide against the evils resulting from the traffic in intoxicant® and also that the legislatures have attempted to exercise such power. It is contended, so far as our statute is concerned, that the legislature in the Dow tax law as originally enacted provided for a tax upon malt liquor whether intoxicating or not, and that the case of State v. Kauffman, 68 Ohio St. 635 [67 N. E. Rep. 1062], sustains that contention; the decision being that Sec. 4364-9 Rev. Stat. applies to the business of selling a malt liquor as a beverage which contains less than 2 per cent of alcohol and is not intoxicating. The language of the statute as then in force was not very dissimilar to the language of the statute defining the liquors prohibited to be sold under the local option law, but the language is not precisely the same. The original act which has been since amended is found in 92 O. L. 34. Section 1 of that act provides that upon the business of trafficking in “spirituous, vinous, malt or any-intoxicating liquors” there shall be assessed a certain tax. The Supreme Court held that the legislature had thereby provided for a tax not only upon intoxicating liquors, but also upon spirituous, vinous and malt liquors even if they were not intoxicating. And the contention of the defendant in error here is, that the language of the present enactment as to county option is so nearly identical with the language found in the Dow law as originally enacted, the language of which I have just read, that our.present act as to prohibition in counties upon vote of the people is to be construed in the same way as an enactment that after a vote of the people to prohibit in the counties it is made unlawful to sell malt liquors even if they are not intoxicating.

This contention might be based upon one of two or three grounds» It might'be treated as a claim that the legislature had made by law a conclusive presumption that all malt liquors are intoxicating or,' second, that the legislature, in the effort to provide against the evils resulting from the traffic in intoxicating liquors, in order to prevent shifts, devices, subterfuges, enabling guilty persons to escape from the consequences of the law, had provided against sales of all malt liquors because of the usual fact that malt liquors do contain alcohol in sufficient quantities to produce intoxication. In some jurisdictions the principle upon which it has been held that laws can prohibit the sales of nonintoxieants is that they so nearly resemble some of the intoxicating liquors that the buyers are liable to be deceived; or in other cases that they may be led into the habit of indulgence in intoxicating liquor even' when there is not sufficient percentage of alcohol in the liquor to cause intoxication, but some alcohol which might induce the habit of drinking. It is perhaps not necessary to review the various reasons upon which this claim has been in some jurisdiction sustained, because a careful examination of our county option law, the Rose law, as it seems to us, disposes of the question without dependence upon the adjudications in other states. We may arrive, we think, at an understanding of the intent of the legislature by a critical examination of the statute which that legislature has enacted. We do not deem it necessary and will not attempt to pass upon the question whether the legislature of Ohio may, either under its broad general power to pass láws not prohibited under the constitution of the state or under that provision of the state constitution that the legislature may enact laws to provide against the evils resulting from the liquor traffic, prohibit the sale of liquors bearing some resemblance to alcoholic and intoxicating liquors which are not such in fact; but we will address ourselves to the query as to whether under this Rose law the legislature has attempted to do anything of the kind.

This act is entitled, “Further to provide against the evils resulting from the traffic in intoxicating liquors by providing for local option in counties.”

Upon the theory of counsel for defendant in error that the legislature may provide against the evils resulting from the traffic in intoxicating liquors by prohibiting the traffic in similar liquors not intoxicating under some circumstances, the matter in question is not determined by the title of the act because the title of the act would have application to any other kind of sales, either to sales of intoxicants or sales of other things deemed by the legislature necessary to be prohibited in order to make effectual the provision against the evils resulting from the traffic. But there is other language in the law, which, it seems to us, points moré clearly to the specific intent of the legislature.

In See. 1 of the act it is provided, that whenever a certain percentage of the qualified electors of a county shall petition for the privilege to determine by ballot whether the sale of intoxicating liquor as a beverage shall be prohibited within the limits of such county, that then certain proceedings shall be followed, and it is provided that if the record of the ■ election which is taken shows that a majority of t,he votes cast at said election was against the sale of intoxicating ■ liquors as a beverage it shall be prima facie evidence that selling, furnishing or .giving away of intoxicating liquors as a beverage or the keeping of a place where such liquors are sold, etc., was then and there prohibited and unlawful.

Sec. 2 of the act provides for the form of ballot submitted to the voter upon which they are to exercise their choice in the issue which is to be submitted to them at the election. On the one side they are furnished with ballots providing in terms that the sale of “Intoxicating liquors as a beverage shall be prohibited”; on the other that the sale of “Intoxicating liquors as a beverage shall not be prohibited.” Then it is said in the same section that if the majority of the votes cast at such election shall be in favor of prohibiting the sale of intoxicating liquors as a beverage that after a certain time it shall be unlawful for any person, personally, or by agent, within the limits of such county, to sell, furnish or give away intoxicating liquors to be used as a beverage or to keep a place where such liquor is kept for sale, given away or sold. It is provided further, that whoever from and after the date mentioned, the lapse of time mentioned from the election, sells, furnishes, or gives away, or otherwise deals in intoxicating liquors as a beverage or does certain other things, shall be punished in the way prescribed by statute; then comes the section that throws the doubt or has thrown doubt in the minds of contending parties as to the real meaning of the legislature, It is Sec. 3:

“The phrase intoxicating liquors as used in this act shall be construed to mean any distilled, malt, vinous, or any intoxicating liquor whatever.” And the question is, does the term “any intoxicating liquor” apply to something of a different kind from that which has been included in the previous expression, or is it a generic term meant to enlarge what has been said before, — so as to make the section, properly understood, read, The phrase intoxicating liquor, as used in this act shall be construed to mean any distilled malt, vinous or any other kind of intoxicating liquor? In the Dow law, as it reads at present, the word “other” has been inserted by the legislature, that is to say, the act, 92 O. L. 34, which I have already read, has received subsequent amendment, evidently to meet the construction which had been put upon it by the Supreme Court in State v. Kauffman, supra, so as to relieve the traffic in nonintoxicating malt, vinous and spirituous liquors from the burden of taxation.

In See. 4 of the Rose law, the-county option act, we have this provision, that “when any person, company or corporation has discontinued such traffic in accordance with the provisions of this act, within the time specified by Sec. 2 of this act, and has paid or is charged upon the tax duplicate with an assessment upon such traffic, the county auditor, upon being satisfied of such fact, shall issue to such person, company or corporation a refunding order of an amount proportionate with the unexpired time for which said assessment has been paid.

Now in reading Sec. 4 of this local option law which provides for the refunding order of a proportionate amount of the tax which has been paid when the person discontinues the traffic, it seems impossible to avoid the conclusion that the legislature deemed that they were dealing with the same kind of traffic in the local option law that had been dealt with in the tax law. The Rose law was passed after the amendment of the tax law which had been changed, as I have said, so as to place its burden upon intoxicating malt liquors, spirituous, vinous, and other liquors only, relieving traffic from any burden upon nonintoxicants.

We greatly appreciate the force of the argument that to permit the sale of liquor bearing close resemblance to intoxicating liquors in a county which has voted to prohibit under the provisions of this law, may oftentimes make convictions difficult; may sometimes afford loopholes for escape by tricky and cunning device; but notwithstanding that fact, it is our duty under the law to do justice, not forgetting rules of construction of penal enactments. Whatever the consequences may be, without regard to the power of the legislature, without regard to the policy of the legislature, whether the law has been wisely enacted or whether it has not, it is the duty of the court to construe the laws as they find them. And construing the law as well as we have been able to do it, from an examination of its terms in the light of the authorities and the other enactments on the liquor question in the state of Ohio, we have been forced to the conclusion that this local option law does not permit the conviction of a person for selling a liquor which is not intoxicating.

There is no claim that the evidence in this first case at bar which I have been considering discloses any sale of liquor which is intoxicating. The affidavit, the complaint, does charge, to be sure, the sale of intoxicating malt liquor; but the evidence, as conceded by counsel for the state, does not show the malt liquor called near beer to have been intoxicating at the time when it was sold as charged in the complaint. Indeed, the trial court, the judge to whom the case was submitted without the intervention of a jury, substantially held that the evidence did not disclose that the liquor was intoxicating. Perhaps he expressed himself a little more strongly in the other direction, but he took the position evidently that it was not essential to a conviction that the intoxicating character of the liquor should be shown.

,Our judgment is that the conclusion was not justified and upon thi« ground it will be reversed.

Another point was raised in the argument of counsel for plaintiff in error and that is that the law itself is unconstitutional, for certain reasons, especially that it deprives or may deprive a person accused of a crime of a trial by jury. This question we think has been fully settled in favor of the validity of the law in the case of Carey v. State, 70 Ohio St. 121 [70 N. E. Rep. 955], as shown by the reading of the syllabus on page 121 and the language of the court on page 124. The entire opinion is per curiam.

The other three cases against Mr. Walder, below, were also based upon claimed violation of the Rose law. He is charged with selling and furnishing beer, lager beer, in this county and the evidence clearly discloses that the liquor which was sold or furnished was of that character. We think that the evidence in this case sustains the conviction. His claim is, that when the Rose law went into effect, he was in a sense left stranded here in Fulton county with a stock of liquor on hand of which it was necessary he should in some way rid himself, and that in order to do so he attempted to sell them in another county, and that the sales of which the complaint was made were really not sales in this county at all. Hut it seems that after the transporting of the beer from his establishment in this county to the sister county it was retransported to Fulton county and there distributed or delivered to buyers. We think that the sales were completed in this county by the delivery, that the procedure was but an evasion of the law, and that he was rightly prosecuted and convicted in Fulton county.

It is urged that the sentences are excessive but we have repeatedly! held that no power is given under our statutes for setting aside sentences upon the motion that they are excessive where the trial court has confined itself, within-the limits provided by law and has exercised only that discretion which-the law has given it. It perhaps is not necessary in this ease to decide whether or not there might be an extraordinary sen-fence imposed such as to be an abuse of discretion,, but at any rate we. are not disposed in this case to set aside .this sentence as excessive,

The judgment will be affirmed in these three cases, Nos. 138, 139,. 140, or rather motion for leave to file petition in error will be overruled in these three cases.

Parker and Kinkade, JJ., concur.


author: WILDMAN. J.

text:
    MUNICIPAL CORPORATIONS — STREETS.
    [Lucas (6th) Circuit Court,
    January 16, 1909.]
    Wildman and Kinkade, JJ.
    (Parker, J., not sitting.)
    In re Vacation of Part of Michigan Street, Toledo.
    Vacation of Streets Granted only upon Satisfactory Proof of the Necessity.
    Under the statute of Ohio a court should not vacate a public street unless satisfied that such vacation will conduce to the general interests of the municipality. The court is not in error in refusing such vacation upon a mere showing that the street is not demanded by the present needs of travel. Sec. 2655 Rev. Stat. construed and applied.
    [Syllabus by the court.]
    Error to Lucas common pleas court.
   WILDMAN. J.

Case No. 2212 is entitled, In the Matter of the Vacation of Michigan Street. It is a somewhat peculiar title for a proceeding in error, which this is. An application was made in the court of common pleas under Sec. 2655 (Lan. 3940; B. 1536-148) of the Revised Statutes to vacate that part of Michigan street extending from Cleveland street to Troy street in the northern part of the city of Toledo. The application was refused by the court below, and to reverse the judgment of dismissal, ©f the petitioner’s application, this proceeding was instituted here.

"We have in the statute alternative proceedings for ..the vacation of streets. Section 2655 provides for the seeking of the vacation of the street by a proceeding in the court of common pleas, the remedy being by the section of the statute made cumulative to like procedure before the municipal body, the city council, as provided in Sec. 2652 (Lan. 3337; B. 1536-145) Rev. Stat. The present proceeding in the court below was based upon Sec. 2655, which reads as follows:

“On petition filed in the court of common pleas by any person owning a lot in any city or in an incorporated or unincorporated hamlet •or village, for the establishment or vacation of a street or alley in the immediate vicinity of such lot, the court, upon hearing, and being satisfied that it will conduce to the general interests of such city, hamlet, or village, may declare such street or alley established or vacated; but the remedy shall be in addition to those prescribed in this title.”

The present proceeding was started by what is known as the Toledo Boiler Works Company, which owned property on both sides of the part of the street sought to be vacated. The claim is made that the evidence disclosed in the court below was sufficient to require the court, proceeding under this statute, to vacate this part of the street.

The statute requires as a prerequisite to the vacation of a street that the court shall be satisfied that such vacation will conduce to the general interests of the municipality. Until so satisfied the court should refuse its judgment in favor of the petitioner.

It appears that this part of the street named has received no improvement at the hands of the city; that it is in a marshy region, the part of the street referred to being not directly upon marshy land or across it, but closely adjacent to it; and perhaps it sufficiently appears that at the present time there is no very practical demand for the use ■of this street by the public. The court, however, is not altogether apprised of the general purposes and plans of the city in the extension of its avenues, its thoroughfares, its streets and alleys. It is something like a condition which may arise where a city under the authority given by law establishes a general system of sewerage, and works towards it, making sewers from time to time according to the necessities of the public and the means available. To say that such a plan should be abandoned because there are no present means for the carrying out of some of its details, might be an interference with wise action of the municipal body.

The claim is made here in behalf of this application that it will be •conducive to the general interests of the city to vacate this street because it is in a locality where it is of no special use to the traveling public or to adjacent property; that it is an ideal spot for the establishment of such factories as the one owned by this applicant, the Toledo Boiler Works Company, and that it is to the interest of the city to encourage manufacturers. It may be altogether true that it is to the general interest of the city to encourage them. It is not made to appear to us, however, by the record before us, nor was it, apparently, to the court below, that any-general interest of the city of Toledo would be subserved by maintaining this particular spot of ground as a place for the putting up of factory buildings or the maintenance of a manufacturing plant, nor does it appear that if the street is not vacated the factory will be lost to the city in any way. There seems to be an abundance of territory owned and controlled by the Toledo Boiler Works Company for the maintenance of their plant without their intruding upon the territory comprised within the street boundaries. There was much plausibility in the arguments made to us by counsel for the applicant, the present plaintiff in error, but we have not been able to arrive at the conclusion that the evidence adduced upon the hearing in the court below is of such character as to make it manifest and clear that the court should have been satisfied that the public interests would be subserved by the vacation of the street.

Our judgment, therefore, is that the order dismissing the plaintiff’s application be affirmed at the costs of the plaintiff in error.

Kinkade, J., concurs.


author: DONAHUE, J,

text:
    INSURANCE.
    [Richland (5th) Circuit Court,
    1908.]
    Taggart, Donahue and McCarthy, JJ.
    Bankers Casualty Co. v. Richland Co. Banking Co. et al.
    :No Recovery of Premium can be had by Unlicensed Foreign Insurance Companies.
    A foreign insurance company, not complying with Sec. 3656 Rev. Stat., requiring a license to be issued to do business within this state, having evaded this requirement by issuing policies outside of the state on property located in this state, cannot prosecute an action in this state for the recovery of premiums on such policies; but it may maintain an action therefor within the jurisdiction of the state within which the insurance was issued, jurisdiction having been obtained therein over the person of the policy holder.
    [Syllabus approved by the court.]

      Error to Richland common pleas court.
    Kerr & La Dow, for plaintiff in error:
    Cited and commented upon the following authorities. Lamb v. Bowser, 7 Bis. 315 [14 Fed. Cas. 980]; Jackson v. State, 50 Ala. 141; Marine Ins. Co. v. Railway, 41 Fed. Rep. 643; New Orleans v. Insurance Co. 33 La. Ann. 10; Insurance Co. v. Simons, 96 Pa. St. 520; 1 May, Insurance 109, 110, Sees. 66, 66a ; State v. Mullin, 78 Ohio St. 358 [85 N. E. Rep. 556; 18 L. R. A. (N. S.) 609; 125 Am. St. Rep. 710]; State v. Ackerman, 51 Ohio St. 163 [37 N. E. Rep. 828; 24 L. R. A. 298]; Pennypacker v. Insurance Co. 80 Iowa 56 [45 N. W. Rep. 408; 8 L. R. A. 236; 20 Am. St. Rep. 395]; Clay Fire, etc., Ins. Co. v. Salt Co. 31 Mich. 346; Union Mut. L. Ins. Co. v. McMillen, 24 Ohio St. 67, 79; Manhattan Ins. Co. v. Ellis, 32 Ohio St. 388,' 396; Berry v. Indemnity Co. 46 Fed. Rep. 439. 442; Behler v. Insurance Co. 68 Ind. 347; Ehrman v. Insurance Co. 1 McCrary Rep. 123; 1 Joyce, Insurance 417, Sec. 332; Allgeyey v. Louisiana, 165 U. S. 578 [17 Sup. Ct. Rep. 427; 41 L. Ed. 832] ; 1 Joyce, Insurance 225, Sec. 163; Crown Point Iron Co. v. Insurance Co. 127 N. T. 608, 615 [28 N. E! Rep. 653; 14 L. R. A. 147],
    Cummings, McBride & Wolfe, for defendant in error.
   DONAHUE, J,

The question in this ease is whether the Bankers Mutual Casualty Company, plaintiff in error, is entitled to prosecute an action for the recovery of premiums in the courts of this state, it not having complied with the laws of Ohio in respect to obtaining a license to do business within the state (Sec. 3656 Rev. Stat.).

This policy of insurance was issued by the casualty company, in the city of Detroit, insuring property within the state of Ohio. The premiums on this policy of insurance not having been paid, an action was brought in the courts of Richland county to recover the same.

Upon the trial in the court of common pleas, on the issues made in the pleadings, the plaintiff sought to introduce certain testimony which was objected to on the ground that the plaintiff was not entitled to do business in the state. The court sustained the objection and plaintiff excepted. The court refused to allow the introduction of any other evidence and directed the jury to return a verdict for the defendant.

The general law in force at the time, and the statutes subsequently, enacted, prohibited this class of insurance from prosecuting, business within the state until the company shall have obtained a license to do so.

The courts cannot inquire as to .the justness or equity of this requirement. If companies are not permitted to transact business within the state, and by the evasion of issuing the policy outside of the state-the courts within the state should enforce these contracts, it would nullify all legislation on the subject. The purpose of the courts is to enforce contracts, but not to nullify properly enacted laws of the state. This policy was not void, nor was the liability of the defendant in any way determined by the action of the court. The policy could be enforced-within the jurisdiction of the state where the same was' issued, if issued according to law. The premium could be collected within the jurisdiction of the state in which the policy was issued, provided jurisdiction-of the person was had. The mere faet that the jurisdiction of the person is difficult to secure is not material.

Finding no error in this record to the prejudice of the plaintiff in-error, the judgment is affirmed with the costs without penalty and the cause remanded.

McCarthy and Taggart, JJ., concur.


text:
    CRIMINAL LAW — JUSTICE OF THE PEACE — SENTENCE.
    [Cuyahoga (8th) Circuit Court,
    June 7, 1909.]
    Henry, Marvin and Winch, JJ.
    George Yocheim v. State of Ohio. And 35 other cases.
    On Remand fob Resentence Justice mat Resentence Accused Notwithstanding Time fob Judgntent Has Elapsed.
    Upon reversal by the common pleas court of the judgment of a justice-of the peace in a criminal case for error in the sentence alone, and remand for resentence, the justice has authority to resentence, notwithstanding the time has elapsed, after the trial, within which judgment must he rendered. Derby v. State, 24 O. C C 304 (6 N. S. 91), overruled in part.
    Error to Cuyahoga common pleas court.
    E. J. Albl, E. Sutherland and J. C. Bloch, for plaintiff in error.
    U. G. Denman, Atty. Gen., and C. P. Hine, for defendant in errorr
    Cited and commented upon the following authorities. Williams v. State,, 18 Ohio St. 46, 47; Picket v. State, 22 Ohio St. 405; Carey v. State,-70 Ohio St. 321 [70 N. E. Rep. 955]; Hamilton v. State, 78’Ohio-St. 76 [84 N. B. Rep. 601]; State v. Hutchinson, 55 Ohio St. 573 [45 N. B. Rep. 1043] ; Marvin v. State, 7 Dec. 204 (5 N. P. '209); S,tedie v. Karb, 78 Ohio St. 376 [85 N, E. Rep. 580]State v. Bansick, 62 Ohio St. 283, 286 [56 N. E. Rep. 1024]; Nickel v. State, 3 Circ. Dec. 605 (6 R. 601); Blackburn v. State, 22 Ohio St. 581; Miller v. State, 73 OM® St. 195 [76 N. E. Rep. 823]Hdlrymple v. State, 26 O. O. O. 562 (5 N. S. 185); Derby v. State, 24 O. C. O. 304 (6 N. S. 91) ; .1 BishopOrim. Proced. Sec. 1291; United Slates v. Harman, 68 Fed. Rep.i-472; Cross, In re, 146 U. S. 271 [13 Sup. Ct. Rep. 109; 36 L. Ed. 969] 5 Bonner, In re, 151 U. S. 242, 258 [14 Sup. Ct. Rep. 323; 38 L. Ed.. 149]; Baum v. Hartmann, 238 IE. 519 [87 N. E. Rep. 334]; State -v. Bohn, 55 Ohio St. 555 [45 N. E. Rep. 707] y State v. Budd, 65 Ohio Sfe. 1 [60 N. E. Rep. 988],
   WINCH, J.

The only 'question in these eases is whether in a criminal case triedf before a justice of the peace, upon reversal by the common pleas court for error in the sentence alone and remand for resentence, the magistrate has authority to so resentenee, the time having elapsed after the trial within which judgment must be rendered.

"We consider discussion of this question foreclosed by the precedent set by the Supreme Court in the case of Carey v. State, 70 Ohio St. 121, 127 [70 N. E. Rep. 955], where the judgment entered reads:

“Judgments of the circuit court and the court of common pleas, and of the mayor’s court, reversed and cause remanded to the latter court for sentence.”

The common pleas court in these cases did exactly what the Supreme Court did in Carey v. State, supra, and in following the practice thus established we cannot say that it was wrong.

So far as the case of Derby v. State, 24 O. C. C. 304 (6 N. S. 91), is in conflict with this conclusion, it is overruled.

Judgments affirmed.

Henry and Marvin, JJ., concur.


author: KINKADE, J.

text:
    ERROR — NEGLIGENCE—SIDEWALKS.
    [Lucas (6th) Circuit Court,
    June 26, 1909.]
    Wildman and Kinkade, JJ.
    Toledo v. John Strasel.
    1; Objection that Pleading is Indefinite Comes too Late on Error.
    An objection that a petition does not state a cause of action because indefinite in allegation, deferred until the case reaches the reviewing court comes too late.
    2. Juror’s Having Obtained Verdict against Municipality not Ground for Reversal of Like Action.
    The fact that one of the jurors in a similar action for damages against a municipality had recovered a verdict, does not constitute ground for a reversal of the judgment in the present case, where it appears that counsel for the municipality made no examination of the juror before goirig into the trial.
    3. Charge that Plaintiff Knowingly and Voluntarily Went upon Defective Sidewalk Distinguished from Negligently Going Thereon.
    Where there is an allegation in the answer of the city that the plaintiff having full knowledge of the condition of the walk voluntarily went upon and used it and thereby contributed to his alleged injury, the city is entitled to a more definite charge as to the plaintiff’s negligence in so doing than is found in the statement that if he wag negligent in going upon the walk he could not recover.
    4. Overruling Motion for New Trial,.- Error. ■ ■
    The evidence being evenly balanced as to whether there was a walk at the point where the plaintiff claimed to have been injured, affidavits to the effect that on the night of the accident and while he was being helped home he had stated that the place where he had fallen was more than a block distant from the point alleged in the petition are a sufficient warrant for granting a new trial, and the overruling of the motion was error of a character that makes it necessary to reverse the judgment.
    C. S. Northup, city solicitor, C. H. Masters and Ralph Emery, for plaintiff in error:
    H. W. Frazer and J. A. Price, for defendant in error.
   KINKADE, J.

The errors presented and relied upon in this case were: First, that the petition did not state a canse of action; second, excluding evidence on cross-examination of the plaintiff as to where he got acquainted with Mr. Burt, etc.; third, the charge of the court with reference to notice, and the charge of the court in its definition of ordinary care; fourth, misconduct of Juror Duden; fifth, matters relating to the juror Logee; sixth, that the verdict is against the weight of the evidence; and seventh, overruling a motion for a new trial, and particularly on the ground of newly discovered evidence.

Taking up these alleged errors in their order, the first being that the petition did not state a cause of action, we think it is reasonably apparent that this is a recent discovery. It would be doing violence to the intelligence of counsel who tried the case on behalf of the city, to assume that they discovered it during the trial or before the trial and failed to fortify the situation in the manner in which they could easily have fortified it by a motion to exclude all evidence, on the ground that the petition did not state a cause of action, and further by a motion to direct a verdict at the close of the plaintiff’s testimony on the same ground, neither of which was filed. And it would be doing violence to their integrity to assume that they knew it all through the trial, and when they were presenting the motion for a new trial and never called the court’s attention to it in any other way than to state that the verdict was contrary to law, which, of course, does- state it, but does not state it as openly as counsel would formally state it if they had then apprehended it.

It is said that this petition does not state a cause of action for the reason that it only states that the defect alleged in the sidewalk had existed for “a long time,” and it is claimed that the term “long time” does not mean anything and that it is not helped out because the petition also states that it was negligently and carelessly permitted to exist for a long time. This might be a question of great importance in this situation had a motion been made to exclude all evidence and the court’s attention been directed to the fact that the petition did not state a cause of action other than merely stating it in the motion for a new trial in the form it is. ¥e call attention in this regard to the case of Pepper v. Sidiuell, 36 Ohio St. 454, which cites Hammerle v. Kramer, 12 Ohio St. 252, which is a similar case, and in the Hammerle v. Kramer, it is held that a petition against an administrator which does not allege that the proper statutory time has elapsed before the bringing of an action is demurrable in that form, that it does not state a cause of action, but it is also held that this defect may be waived by going to trial. "We think in this case that although the language that the defect had existed for a long time is very indefinite, and some decisions are to the ■effect that it is without very much meaning, that the city, having gone to trial on this petition without any motion to make it more definite and certain, without any objection to the petition or evidence under this petition, without calling the court’s attention to it in any way, should not now be permitted to take advantage of the.fact that the petition did not state with more care the cause of action. As . Judge Wildman says, the language used in the petition that it had been negligently permitted to remain in this condition for a long period of time wé think was sufficient, not being attacked by motion as we have indicated.

The second error complained of was the excluding of evidence in cross-examination of the plaintiff himself. It was said in argument that this evidence was sought to be put in without disclosing to the plaintiff just what counsel was leading up to, in order that they might test .his habits and his whereabouts and thereby bring out what he knew about this ease and what his own condition was on this evening of the accident, without apprising the witness directly of what they were at, and that the court should have admitted the evidence in that regard. We have examined this part of the record referred to with care and without commenting on it further we think, in the form! that it is, there were no' prejudicial errors in the rulings of the court in that regard.

It is now said that there was error in the charge of the court as to the notice, that the court did not tell the jury in plain terms that the city must not only have notice, but that after it received notice, either actual or constructive, such time must elapse as in the exercise of ordinary care the city would have an opportunity to repair the walk. There is no doubt about that being a correct proposition of the law as stated by our circuit court sitting in Cincinnati, to which our attention has-been called. But we think when the charge is read as a whole that no* j”ry could misunderstand the language of the trial court in that regard. We think that the jury must have understood the language of the trial court, taking the charge as a whole, that the city was to have notice, and was to have an opportunity after notice to make the repair within a reasonable time, and we find no error in the charge, considering it as; a whole in that regard.

It is now said that the charge is erroneous in this: that it stated the definition of ordinary care entirely wrong. We are cited to Clev. C. & C. Ry. v. Terry, 8 Ohio St. 570, in this regard, to the language found on page 581:

“Ordinary care is not defined in the charge copied in the bill of exceptions, but it is well known to mean that degree of care which persons or ordinary care and prudence are accustomed to use and employ, under the same or similar circumstances, in order to conduct'the enterprise in which they are engaged to a safe and successful termination, having due regard to the rights of others and the objects to be accomplished.”

It is said that in this case the charge of the court is wrong because' the court did not define ordinary care as the care used by any class of persons, but defined it as the care used by a prudent person, putting it in the singular, and that that is clearly erroneous. There are some circuit court decisions tending to sustain this proposition, but we call eounsel’s attention to Lake Shore & M. S. Ry. v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403], which is a later decision than any of the circuit court decisions cited, and of course considerably later than Clev. C. & C. Ry. v. Terry, supra. The language to which I now call attention is on page 144, opinion by Judge Spear:

“Fault is found, also, that what the court said as to ordinary care, and especially with the statement that ‘no general rule can be given as to what in law constitutes ordinary care.’ * * * ‘A general definition of ordinary care is such care and vigilance as a person of ordinary prudence and foresight would usually exercise under the same or similar circumstances. ’ Taken as a whole, we see no valid objection to this part of the charge. Had the company desired a more definite instruction, it was its privilege to ask it.”

We think that under this authority of Lake Shore & M. S. Ry. v. Murphy, we would not be justified in this case in holding that the language used by the trial court was prejudicial error in this ease, there being no request from the city for any more specific instruction in this regard.

It may be a question, as Judge Wildman suggests, whether any change should have' been made by the court in its charge in this regard had the attention of the court been called to it. It is evident that the expressions of the Supreme Court are not altogether uniform in this definition of ordinary care; neither are the expressions used in the text books uniform in this regard. We would not feel justified, as I have said, in reversing the ease in that regard.

I call attention to another matter at this point in the general charge, not because we find it prejudicial error, but because we think attention should be- directed to it in its present form. The answer in this case, which seems to be considerably out of its place in this record, but it is here, says:

“For its second defense to the petition defendant says that at and prior to the date of the alleged injury complained of said plaintiff had full knowledge of the condition of said sidewalk, and with this knowledge voluntarily went upon and made use of the same, thereby directly contributing to his alleged injury.”

The court in its general charge seems to have said nothing to the jury as to. this particular defense set up in the answer in the form that it is here. True, the court charged the jury if plaintiff was negligent while going over the walk he could not recover, but there is nothing in the charge that he might be defeated of a recovery for the reason that he elected to take this walk if there was another safe way, convenient, that he could have used. We direct attention again to the case of Smith v. Toledo, 30 O. C. C. 454 (11 N. S. 167), from which Judge Wildman has quoted in deciding another case. We think it would be well in cases of this kind for the court to keep this in mind.

Another thing about the charge that we find needs attention, and that is, it is said in the charge that the plaintiff could not recover if he knew of the dangerous condition of the walk, and so forth, but nothing is said as to his inability to recover if he by the exercise of ordinary care would have known of its condition. We think this should be in the charge, as has been mentioned by Judge Wildman in another case decided this morning, citing the case of Smith v. Toledo. But in these matters, there being no request for any more definite instruction than was given, we do not find any of the omissions which I have mentioned as prejudicial error in this case.

This brings us to the charge of misconduct of juror Duden. We have examined the record fully in all that it presents in this regard, and while it may bo that the juror would have been more in accord with correct proceedings in court had he not made the statements at the time that he did make them, we fail to see anything in this that would justify disturbing the decision below.

The next matter complained of is the fact that there was upon this jury a juror by the name of Logee who had himself prior to this time recovered a judgment for a personal injury somewhat of a like nature to the injury of plaintiff in this case, but that is not disclosed during his examination as to his fitness as a juror. In addition to this it is said that a member of the firm of -Kohn & Northup, Mr. Boey, had prosecuted a case against Mr. Logee, and that that was not made known by Logee when he was examined as to his qualifications. We have read all that has been said in this record, and we think there is nothing in this transaction that should disturb this verdict. No examination seems to have been made by counsel for the city of Mr. Logee as to whether he ever had a personal injury case, or failed in it if he had, or recovered. There is nothing of this kind in his examination. Of course it was entirely competent for counsel to make that examination, and whether it furnished a ground of challenge for cause or not is a matter of no moment, because counsel might make it the basis of a motion to disqualify the juror for cause and if not allowed they might have dismissed him on a peremptory challenge. We think the omission to examine the juror as he might have been examined disposes of the contention with reference to Mr. Logee. '

The sixth matter to which our attention is directed is that the verdict is against the evidence. We have examined the evidence in this case with very great care. It is very greatly and positively in conflict. The city in this case contends that no walk existed at this point and asked the instruction of the court and secured it to the jury that if no walk existed the plaintiff could not recover. The city offered its evidence tending to prove that in the year 1907, long before this accident, that the walk had been taken up preparatory to putting down a cement walk, and that at the time of this accident there was no board walk on the north side of Starr avenue between Plymouth and Willard streets where the man claimed to have been hurt, and particularly immediately adjacent to the corner property. The plaintiff on the other hand offered his evidence on the subject, and we have examined the evidence in this record on both sides. We think it is fairly evenly balanced, but the evidence in behalf of the city that no walk was there we regard as very strong. However, we do not think it is so clearly against the weight of the evidence as. to justify reversing the judgment of the court of common pleas on that ground.

This brings us then to the only other matter that was urged upon our attention seriously for the reversal of this judgment, and that is the overruling of the motion for a new trial on the ground of newly discovered evidence. Much that was put in on the hearing of the motion for a new trial might well be said to be purely cumulative, but in the evidence presented in support of this motion is found the affidavits of parties to the effect that the plaintiff in this case immediately after the accident on the same night and while he was being helped to his home, at the solicitation of a friend of his, stated positively that he fell upon the walk more than a block from the point where it is alleged in the petition and where plaintiff testifies in the case he fell. In response to this, affidavits are offered by other parties to the effect that they were present at those times, that they did not hear this conversation, and that they would have heard it had it taken place. We have read these affidavits, each of them, with care and compared their statements, and in view of the fact that the evidence upon the question as to whether a walk was there or not at this time is as strong as it is in behalf of the city’s claim, and is so evenly balanced as a whole, we are of opinion that this evidence as to plaintiff’s own statements as to where he fell would have justified the court in sustaining the motion for a new trial on this ground. We think the overruling of the motion is such error in this case as makes it necessary to reverse the judgment of the court of common pleas, and that will be the decision.

Wildman, J., concurs.


text:
    ASSIGNMENTS — MORTGAGES.
    [Hamilton (1st) Circuit Court,
    February 5, 1907.]
    Jelke, Giffen and Swing, JJ.
    Emeline L. Williams v. Queen City Homestead Co.
    Record of Assignment of Mortgage not Necessary to Give Mortgage Priority.
    A record of an assignment of a mortgage is not required by Sec. 4135 Rev. Stat., in order to give the mortgage priority over subsequent liens.
    W. H. Pugh and G. E. Pugh, for plaintiff.
    A. B. Dunlap and H. R. Weber, for defendant.
   GIFFEN, J.

The question whether the defendant company assumed and agreed to pay the mortgage claim affects only its personal liability, and in either event the mortgage remains a lien on the land.

The mortgage was given for a valuable consideration paid by the plaintiff, but was by mistake executed and delivered to Sarah S. Alford, who voluntarily assigned it, together with the note secured thereby, to the plaintiff, by which the latter acquired a good title. Hitesman v. Donnel, 40 Ohio St. 287.

Section 4135 Rev. Stat. does not require a record of an assignment of a mortgage in order to give priority of same over subsequent liens.

No answer was filed to the cross petition of J. B. Meifeld setting up a lien for taxes, hence the allegations thereof are admitted to be true. The transcript shows that he was made a party and filed his cross petition, not after, but before the decree of distribution was entered.

Decree accordingly.

Jelke and Swing, JJ., concur.


author: HIFFEN, J.

text:
    STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    May 1, 1909.]
    Griffen, Smith and Swing, JJ.
    Darwin Stephens, Admr., v. Cincinnati Traction Co.
    1. Duty of Traction Company as to Warning and Speed of Car Approaching Public Crossing Towards which Children were Walking.
    A traction company, without warning, running a car at full speed while approaching a public crossing, although not a street intersection, is negligent, especially since deceased and several other children were walking on the sidewalk toward the crossing with their backs to the car and in full view of the motorman.
    2. Reasonableness of Speed of Street Car at Crossing a Question for Jury.
    If a child struck by a street car at a public crossing might have-passed over the tracks in safety and escaped collision by the car’s running at a reasonable speed, a greater speed may be deemed the proximate cause thereof. Whether the rate of speed was reasonable or unreasonable at that particular place and under all the circumstances, is a question for the jury.
    3. Instruction Fixing Liability for Negligent Operation of Street Car at Instant Child Killed Attempted to Cross Track at Public Crossing, is Erroneous.
    An instruction in an action against a traction company for the wrongful death of a child killed by a street car while on a public crossing, that requires a verdict for defendant regardless of any act of negligence on the part of the motorman' in the operation of the car prior to the instant the child attempted to cross the track, is erroneous.
    Error to Hamilton common pleas court.
    E. S. Aston, and T. L. Michie, for plaintiff in error:
    Cited and commented upon tbe following authorities: 2 Thompson, Negligence Secs. 1392, 1395, 1401, 1424, 1425; Cincinnati St. By. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276]; West •Chicago St. By. v. Stoltenberg, 62 111. App. 420; Bosenberg v. Bailway, 168 Mass. 561 [47 N. E. Rep. 435]; Evansville St. By. v. Gentry, 147 Tnd. 408 [44 N. E. Rep. 311; 37 L. R. A. 378; 62 Am. St. Rep. 421]; Eunican v. Bailway, 39 App. Div. 497 [57 N. Y. Supp. 326].
    Outcalt & Hickenlooper, for defendant in error.
   HIFFEN, J.

The negligence charged in the petition is running one of defendant’s cars at a dangerous rate of speed, omitting to keep a proper lookout, omitting to give proper signal, and omitting to apply brakes and •check the speed of the car while the deceased was crossing the highway at a public crossing. The jury returned a verdict for the defendant, and the only error relied on is the giving of the following instruction in writing before argument:

“If the jury find from the testimony in this case that the deceased, Emily Stephens, so suddenly left the sidewalk on the north side of Liston avenue and ran into the street diagonally toward the car tracks, that the motorman of said car could not, in the exercise of ordinary care, have anticipated the action of the child, in so leaving the sidewalk and running into the street, in time to avoid a collision, and that a collision did occur between said car and said child, resulting in injuries to the child from which she subsequently died, then I charge you that such collision was an accident for which the defendant traction company would not be liable, and your verdict must be for the defendant.”

It is claimed by counsel for plaintiff in error that this instruction takes from the consideration of the jury all questions of negligence of the defendant in operating its car prior to the time that the little girl left the sidewalk. While on the other hand, counsel for the defendant in error claim that it is immaterial at what rate of speed the ear was. running, as the collision would have occurred although the ear was running at a reasonable rate of speed, and that therefore the speed of the car was not the proximate cause of the collision.

The evidence does not warrant the latter assumption, as plaintiff’s, testimony tended to prove that the ear was running at the rate of twenty miles an hour, and the motorman called by defendant testified that the speed was the highest at which the car could be operated.

Plaintiff’s evidence tended to prove further that while the child ran from the curb to the point of collision, a distance of about seven feet, the car moved 180 feet, and that if the car had been running at the rate of ten miles an hour the child could have run seven feet further to a place of safety before the car reached the point of collision.

The distinct qualification of the special instruction is contained in the clause “in time to avoid a collision.”

The faster the speed the less time the motorman had to avoid the-collision; and if by running the car at a maximum reasonable rate of .speed the child could and would have passed over the track in safety, then the greater rate of speed was undoubtedly the proximate cause of the collision. The question of what was a reasonable or unreasonable-rate of speed at this place and under the circumstances was properly for the jury. We cannot say as matter of law that any speed greater than ten and less than twenty miles an hour would be unreasonable and dangerous; but it is clear that the defendant was not justified in running its car at full speed, without warning, when approaching a public? crossing, although the same was not a street intersection. The very fact that several children with their backs to the car were walking on the-sidewalk toward the crossing, although not indicating an intention to-cross, called for a warning from the motorman.

The jury were bound, under this instruction, to return a verdict for the defendant, regardless of any alleged act of negligence except not. keeping a proper lookout prior to the time when the motorman, in the-exercise of ordinary care, could anticipate the action of the child in leaving the sidewalk.

While it is true that the child was not on the flag-stones forming-the crossing, yet she was so near to the same that the ordinary precautions required at street crossings would probably have protected her. At all events the jury were not permitted to determine such questions... We think the court erred to the prejudice of the plaintiff.

Judgment reversed and cause remanded.

Smith and Swing, JJ., concur.


author: NORRIS, J.

text:
    NEGLIGENCE — RAILROADS.
    [Crawford (3rd) Circuit Court,
    September 30, 1904.]
    Day, Mooney and Norris, JJ.

      Thomas Barton v. Cleveland, C. C. & St. L. Ry.
    Negligence of Section Hand in Failing to See Approaching Train on Straight-Track Precludes Recovery.
    Failure of a section band working beside a railroad track in full light of day, without obstruction of view for more than a mile, to see or hear a train approaching and being struck and injured by it, notwithstanding a movement on his part would have avoided the accident, precludes, recovery of damages therefir; the fact that he was given no warning of the train’s approach by either the engineer or section boss does not relieve him from his own negligence.
    Error to Crawford common pleas court.
    Finley & Gallinger and C. F. Schaber, for plaintiff in error:
    Cited and commented upon the following authorities: Dick v. Bail-way, 38 Ohio St. 389; Lake Shore <& M. S. By. v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403]; Snyder v. Bailway, 60 Ohio St. 487 [54 N. E„ Rep. 475]; Eñe By. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571]; Lake Shore & M. S. By. v. Lavalley, 36 Ohio St. 221; Cincinnati, H. & D. By. v. Kassen, 49 Ohio St. 230 [31 N.. E. Rep. 282; 16 L. R. A. 674]; New York, C. & St. L. By. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130]; Bailway v. Margrat, 51 Ohio St. 130 [37 N. E. Rep. 11]; Krause v. Morgan, 53 Ohio St. 26 [40 N. E. Rep. 886]; KerwhacUer v. Bailway, 3 Ohio St. 172 [62 Am. Dec. 246]; Beach, Contr. Neg. 53; Cincinnati & Zanesville By. v. Smith, 22 Ohio St. 227 [10 Am. Rep. 729]; Toledo, etc., By. v. Beggs, 85 111. 80.
    Daniel Babst, Jr., and Cummings, McBride & Wolfe, for defendant in error.

      Affirmed, no op., Barton v. Railway, 74 O. S. 479.

   NORRIS, J.

This is an action' in error. The suit below was for recovery for damages for personal injury. The plaintiff below was a section hand working for defendant on its railroad at Crestline. When injured he was engaged in removing fish plates from rails which were lying outside the ties of defendant’s tracks. While so engaged, he was struck by one of defendant’s trains moving along said track and by this sustained the injury for which he seeks to recover. He was under the control of defendant’s section boss, who stood near when the accident occurred.

The negligent acts laid to defendant which are claimed to sustain plaintiff’s action and fix defendant’s liability, are that the section boss stood close and saw the approaching train, knew of plaintiff’s dangerous position and gave him no warning of his danger, though he might have warned him in time to have saved him from injury; that the accident was on a portion of plaintiff’s road where the view from the approaching train was unobstructed and plain for a long distance, and with plaintiff in full view of the engineer in charge of said train for nearly a mile, the engineer ran the train against plaintiff, and sounded no whistle and rang no bell, and gave no warning signal to plaintiff, which might have apprised him of the train’s approach and of his danger, and did not make any effort to stop the train and save plaintiff from injury; that the section boss and the engineer knew all this, and knowing plaintiff’s danger and knowing that he did not see and did not hear the approaching train failed to do the things they ought to have done to save plaintiff from injury, and that their failure amounted to wanton negligence, and by reason thereof defendant is liable as one guilty of reckless disregard of plaintiff’s rights which amounts to.bad faith.

The answer denies .and says that if plaintiff was injured, his injury was caused by his failure to care for his own safety and not by negligence of the defendant.

This reply is a denial. Upon the issues joined by the pleading and the evidence, the case came on for a trial to a jury in the common pleas court, and after the plaintiff had introduced his evidence and rested his •case, the court upon motion on the behalf of the defendant arrested the further trial of the issues and directed the jury to return its verdict for the defendant, which was done accordingly. The plaintiff filed his motion for judgment notwithstanding the verdict, which was overruled. Plaintiff’s motion for a new trial was interposed and. overruled, and jury rendered a verdict for the defendant.

To reverse this judgment and proceeding of the trial court, plaintiff filed his petition in error here and assigned for causes of error:

1. Error in sustaining the motion to direct a verdict for defendant.

2. Error in directing the verdict,‘and in overruling plaintiff’s motion for judgment notwithstanding the verdict, and in overruling plaintiff’s motion for a new trial.

3. That the judgment is for the defendant when it should have been for the plaintiff.

We find no error in the proceeding of the trial court which warrants reversal. There is no evidence in the record tending to show that the defendant was negligent as alleged in the petition, or was negligent at all. This accident occurred about 11 o’clock in the forenoon. The plaintiff was removing fish plates from rails which had been moved from the track outside of the ties to a distance of about two and one-half feet from the track rail. He was far enough away from the track, and only placed his head in such position as that it might be struck by a passing train by assuming a stooping position; if. he had stood straight he would not have been injured. He had been in the employ of the railroad company for several years; he says that while he was ordered to do the work by the section boss, he had no instruction except to “take the wrench and remove the plates.” He had been warned to look for approaching trains. The view was unobstructed for nearly a mile; it was the middle of the day; others working with him heard the train approach, yet he says he did not hear and did not see and did not try to hear or see and did not think about the train. The engineer could see him, and no doubt did see him, and saw others working with him arise and assume a position of safety, though he rang.no bell and sounded no whistle. The engineer had good right to believe that plaintiff would do the same, and so did the section boss — that plaintiff would straighten up and save contact with the train.

All these facts refute the hypothesis that defendant through its servants, the engineer and section boss, or either of them was guilty of such negligence as amounted to wantonness and bad faith toward the plaintiff.

Upon the other hand, the evidence does show that the plaintiff refused to exercise every effort, either physical or mental, to care for his own safety, when by the exercise of the least care whatever, he might have saved himself from injury.

We are of the opinion that the trial court was warranted in arresting the testimony and directing the verdict for the defendant and so-do affirm the judgment.

Day and Mooney, JJ., concur.


author: GIFFEN, P. J.

text:
    PARTNERSHIP — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    November 6, 1909.]
    Giffen, Swing and Smith, JJ.
    Cincinnati Traction Co. v. William Hulvershorn.
    1. Permitting Car to Strike Wagon Unable to Clear the Track Evidence of Negligent Control.
    Evidence that a motorman saw that the space between the track and curb of the street was so narrow that a wagon in front of him could not get out of his way is sufficient to sustain a verdict for damages resulting from his permitting the ear to strike the wagon; all the acts of negligence alleged were not required to be proven.
    2. Action for Tort by Partnership Having Fictitious Name not Barred by Failure to File Certificate.
    Failure of a partnership, doing business under a fictitious name, to file its certificate with the county clerk within four years of bringing an action for damages for a tort, the action being brought within the time prescribed by statute, does not bar the action under Sec. 3170-6 Rev. Stat.
    .Error to Hamilton common pleas court.
    This action was brought in the court below by William Hulvershorn, doing business as the Ingels Forwarding & Transfer Co. Plaintiff alleged that in September, 1902, while one of plaintiff’s teams, attached to a coal wagon, was being driven along Spring Grove avenue, Cincinnati, at a point where the space between the street car track and the curb was narrow, a traction car came rapidly up from behind and without warning to the driver of the coal wagon and in attempting to pass struck the hub of one of the wheels of the wagon with such force as to break the wagon and harness and kill one of the horses. A verdict was recovered below of $275.50.
    Kittredge, Wilby & Stimson, for plaintiff in error.
    Scott Bonham, for defendant in error.
   GIFFEN, P. J.

The plaintiff below was not required to prove each and every act of negligence charged in the petition, and it was sufficient that although the motorman saw that the space between the track and the curb was narrow, and that the wagon was too close to the track to pass in safety, he did not have his car under control, but allowed it to move forward with great force against the hub of the front wheel of plaintiff’s wagon. This much is clearly shown by the evidence and is sufficient to sustain the verdict.

That part of the general charge complained of required the jury to find substantially every act of negligence charged before returning a verdict for the plaintiff, and was more favorable to the defendant than the pleadings and evidence required.

There was no prejudicial error in admitting testimony in rebuttal.

Although the certificate of partnership was not filed with the clerk of the court until more than four years after the right of action accrued, yet the action was commenced before expiration' of that period, and under the proviso of See. 3170-6 Rev. Stat., the plaintiff could lawfully maintain the action.

Judgment affirmed.

Swing and Smith, JJ., concur.