text:
    CONTRIBUTORY NEGLIGENCE BY LAD OR SIXTEEN.
    Circuit Court of Cuyahoga County.
    Joseph Kolar, Guardian of Emil Kolar, v. The Erie Railroad Company.
    Decided, December 1, 1905.

      Negligence — Infants—Boy of Sixteen Guilty of Contributory Negligence in Striking a Torpedo.

    An intelligent boy of sixteen who has been employed in railroad shops for a period of six weeks, and who, in the course of his employment finds a torpedo upon the floor of an engine cab, which, through curiosity he struck with a coal pick, is, as a matter of law, guilty of contributory negligence.

      Hart, Canfield & Cro'ke, for plaintiff in error.

      Cushing & Clarke, contra.
    Marvin, J. (orally) ; Winch, J., and Henry, J., concur.
   The facts in this ease are that on the 8th day 'of January, 1903, Emil Kolar, who was then about fifteen years and eight months old, was in the employ of the defendant at its roundhouse in Cleveland. Ilis duties were to do odd jobs of painting and glazing. He was called a painter’s helper.

On the date aforesaid he was sent into the cab of an engine to do some repairing of windows. Upon entering the cab he noticed upon the floor three or four small round tin boxes -about three-fourth inches in diameter and perhaps one-half inch in depth. He did not know what they were. He picked them up and looked at them, and then took up a coal pick which was in the tender of said engine and struck a hard blow on one of the boxes. It was in fact a torpedo, containing a powerful explosive, such as are carried in engines to place upon the track of the railroad to give some kind of notice to employees operating trains. This torpedo upon being struck by the pick exploded and greatly injured the plaintiff’s ward, and. suit was brought to recover for such injury. At the close of plaintiff’s evidence, on motion, the court directed judgment for defendant.

The petition charged negligence on the part of the defendant, and avers want of knowledge of the dangerous character of the torpedo on the part of plaintiff. Without stopping to read from the petition, perhaps it is sufficient to state that a reading of the record in this case, whatever effect it may have as to establishing negligence on the part of defendant, can not fail to convince one that plaintiff was very negligent, and that his negligence contributed directly to his injury, unless by reason of his youth and inexperience he is to be relieved from the responsibility attaching to one of mature years. As already said, he was at the time of the injury about fifteen years and eight months old. He had been employed in the work of the company about six weeks. He put on the first coat of paint on box ears and on new strips of wood used in repairing such cars, painted smoke-stacks, pilots, etc., he attended to repairs of windows in engines, etc. He attended school until he was near fifteen years old; he worked for his father, a mason contractor, after he left school and in the absence of his father kept the time of his father’s employees. The reading of'his testimony shows that he was a boy of intelligence for one of his years. Certainly he is far from being a dullard. He did not know the character of this torpedo. Doubtless the great majority of intelligent men and women are equally ignorant about them.

The common law presumes a child over seven years of. age. to be able to distinguish between light and wrong in criminal matters,' but such presumption is disputable until he is fourteen years- old.

•The rule is well settled that a child of tender years is not to be held to the same rule of conduct as a person of mature years, but one would hardly speak of a boy nearly sixteen years oLd as of tender years. No definite age can be fixed which will m all cases mark the dividing line between tender years and mature years, but most of the cases which use the former term are speaking of those not more than twelve- years old.

In the case of Phillips v. Michael, 39 N. E., 669, Appellate Court of Indiana, this language is used:

. “ At the age o£ fifteen years any child ol ordinary intelligence must know that to place its hand upon a bar of iron heated to a great heat must burn, - or to place its fingers between two heavy rollers, where the space is too small to admit them, must result in their being crushed. It does not require the consideration and judgment of twelve men to establish this fact. Every sensible human being knows it, hence it is declared by law to be true because inevitable. That which is inevitable is always true.”

In Nagle v. Railroad Co., 88 Pa. St., 35, the syllabus reads:

“An infant of the age of fourteen years is presumed to have sufficient capacity to be sensible of danger, and to have power to avoid it, and this presumption will stand until overthrown by clear proof of the absence of such discretion as is usual with infants of that age.
“When an infant’s responsibility for negligence is presumed to commence is a.question of the court and not of the jury.”

In the ease of Reynolds v. N. Y. C. & H. R. R. R., 58 N. Y., 248, this language is used:

“In applying the rule that a person who «e 1-. to recover for a personal injury, sustained by another’s negligence, must show himself free from fault, the law ’ discriminates between children and adults, the feeble and the strong, and only requires of each the exercise, of that degree .of care to be reasonably expected in view of his age and condition,”

It was held in that case that the plaintiff’s intestate was not shown to have exercised such care. He was an intelligent boy, thirteen years old.

In Messenger v. Denver, 141 Mass., 335, a boy eight years and nine months old was held, as matter of law, to have been guilty of contributory negligence.

See, also, 1st Thompson on Negligence, p. 311, and eases cited.

In the case at bar we have a boy, an intelligent boy between the age of fifteen and sixteen years, nearer to sixteen, than fifteen. In the performance of his duties he says he was required to go into this cab. ITe there found these boxes, and, actuated by curiosity, he took this pick and struck a heavy blow on one box, and it exploded. We think as a matter of law, that this boy must be held to have been negligent; that a boy of that age should know and should be held to know that when out of idle curiosity he seizes a pick-axe and strikes upon a box such as he found there with which he knew he had no business, and doing what he knew he had no right to do, to be held to have contributed by his own negligence to his injuries, and the court was justified in directing a verdict for defendant.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    MISREPRESENTATIONS AS TO CHARACTER. OF CORPORATE STOCK.
    Circuit Court of Cuyahoga County.
    Harry S. Hill and Oliver J. Hill v. Pulaski B. Roper.
    Decided, December 1, 1905.

      Fraud — Parties—False Representations that Worthless Stock Sold Plaintiff is Treasury Stock not Actionable — Where Transaction is Joint Plaintiffs are Properly Joined.

    1. Where a fair construction of the language of a petition shows that what plaintiffs did in the transaction complained of was done by them jointly, there is no misjoinder of parties plaintiff.
    2. ' No action for damages for inducing plaintiff to purchase worthless stock through false and fraudulent representations can be main-tamed, where the only false representation was that the stock in question was treasury stock when as a matter of fact it was defendant’s own personal stock.
    W. E. Miller, for plaintiff in error.

      Johnson & Dunlap, contra.
    Marvin, J.; Winch, J., and ITenry, J., concur.
   The plaintiffs here were the plaintiffs below. The defendant here was the defendant below.

Plaintiffs filed their amended petition, and to this a general demurrer was interposed, on the ground that there was a misjoinder of parties, and also on the ground that the facts stated constituted no right of action in the plaintiffs against the defendant.

As to the misjoinder of parties, it is said as to the allegations of the petition that the plaintiffs had certain transactions with the defendant; that they purchased certain stock of him and paid money therefor; that they were defrauded in the transaction and thereby suffered damage. The claim is that it does not appear that they joined in the transaction; that they jointly paid their money and were jointly defrauded. The language of the petition begins in these words:

‘ ‘ The plaintiffs for their cause of action say: that on or about the 10th day of June, 1903, the defendant sold to these plaintiffs ten shares of the capital stock of the Krastin Automobile Manufacturing Company at the rate of fifty dollars a share. That the said ten shares were a part of said stock owned and held by the defendant.” I

And then follows averments that misrepresentations were made and that they were induced to part with their money, to their loss. We think a fair construction of the language of the petition shows that what the plaintiffs did in the matter they did together; that the transaction was joint as between them. We quoted from the petition,

“the defendant sold to these plaintiffs ten shares of the capital stock, etc., and again, “said defendant delivered the said certificate to plaintiffs, who paid therefor the’sum of $500,” etc.

So far as said demurrer was based on misjoinder of parties, it was not well taken. The cases to which our attention is called

by brief of defendant in error are Bartgers v. O’Neil, 13 O. S., 72. In that case suit was brought by O’Neil and wife to recover jointly for a wrong which by the allegations of the petition was affirmed and shown to have been perpetrated upon Mr. O’Neil alone. The court say as to this that a general demurrer to this petition should have been sustained because the facts alleged show no cause in the plaintiffs jointly.

The material difference between that case and the ease at bar is that by the allegations of the petition it affirmatively appears that but one of plaintiffs was injured.

In Masters v. Freeman, 17 O. S., 323, it is simply held that, where it appears upon the fact of the petition filed by two or more jointly, that whatever claim exists in favor of plaintiffs it is several as to each. Demurrer to the joint petition will be sustained.

This brings us to a consideration of the question of whether the general demurrer should have been sustained. It was sustained-in the court below, and the plaintiffs not wishing to plead further, judgment was thereupon entered for the defendant, to recover for which this proceeding is prosecuted. If plaintiffs 'are entitled to recover it is because defendant represented to them that something material was true which was not true, by reason of which they were induced to part with their money.

The petition says that the corporation whose stock they purchased was in need of money to finish four automobiles. There is no denial of this. It is further alleged that the company was solvent. This is not denied. It is averred that the stock was of no value and that three months or more after this transaction the company went into the hands of a receiver. A corporation may be solvent, that is, able to pay its debts, and have nothing over, so that its stock would be of no value. The petition avers that the defendant represented that the stock which he proposed to sell was treasury stock. This is denied, and the averment is made that the sale of stock was made from his personal ownings or holdings of stock in the corporation. There is nothing in this which would necessarily prejudice the plaint-ills. If the stock was of no value and is of no value, then it is immaterial whether it was treasury stock or stock owned by this mán alone who was making the sale. If the stock is of no value it will be equally of no value whether it was treasury stock or stock owned by some member of the corporation.

There are no other averments in the petition which indicates lhat the plaintiffs were defrauded except those to which attention has been called. They aver that they were induced to part with &500 for stock of no value. There is no averment in the petition that it was represented to be of value. It was represented that the. corporation was solvent and the stock treasury stock. If the other allegations of the petition are true, there was no error in sustaining the demurrer and entering judgment for the defendants.

The judgment is affirmed.


text:
    ACTION BY CHILD FOR. SERVICES AFTER. BECOMING OF AGE.
    Circuit Court of Cuyahoga County.
    Dr. H. L. Ambler et al v. Josephine Chapman.
    Decided, December 22, 1905.

      Domestic Relations — No Recovery can he had From One in Loco Parentis [or Services Performed hy Child After Becoming of Full Age.

    Where a child from an orphanage is taken into a home upon an agreement that she is to receive a good common school education, be cared for, and treated as a daughter: If, after she becomes of full age, she continues to reside in the family and perform the same household duties as before, without any agreement as to compensation, it will be presumed that it was a continuance of the earlier relationship and she can not recover for the value of such services.

      McMillm & Ingersoll, for plaintiffs in error.

      Gre.cn & Green, contra.
    ’.Marvin, J.; Wincii, J., and Henry, J., concur.
   • Josephine Chapman brought her suit in the court of common pleas agáinst H. L. Ambler, and his wife, designated in the petition as Mrs. II. L. Ambler, to recover for services as housemaid for the defendants from the 1st d ay of March, 1890, until the 1st day of Mlareh, 1899. No rate, per week, per month, or per annum is stated in tlie petition, but the aggregate sum claimed is $2,064, with interest from' the 1st day of March, 1899. The petition avers that this work was done at the special instance and" request of Dr. and Mrs. Ambler,» and that the services were reásonábly worth the amount claimed.

TÍie answer denies the allegations of the petition and also pleads the statute: of limitations as to all of said claim arising prior to the 25th of February, 1898. This suit was begun on the 25th-'day of February, 1904.

On the trial the' facts shown were that Miss Chapman entered the Ambler family on the 16th day of February, 1885, under a w'ritteh agreement then entered into or attempted to be entered into by Mrs. Ambler with an organization designated as “Baldwin Place Home for Little Wanderers,” located in the city of Boston in thé state of Massachusetts. This contract reads ás follows:

“Agreement.
“Stroeeord, Feb. 16, 1885.
“The undersigned agree to receive into my family Josephine Chapman, born in Cambridge Mass., Dec. 29, 1874, to be treated in all respects as a daughter; is to receive a good common school education, to attend church and Sunday School and. to be cared for in sickness and, in health. I will not dispose of the child in any way without the consent of the officers of the Baldwin Place Home for Little Wanderers, located in the city of Boston, state of Massachusetts. If I do not wish to retain the child, I promise to return the same to the above-named institution, 'within three months from this' date, at my own expense. Should circumstances arise which should make my home unsuited io the wants of the child,- or on proof being brought forward that the child was not properly treated or cared for, I will surrender the child to the officers of the home on their requisition.
“In consideration that I can have the full and entire control of the above named child until of age, I cheerfully subscribe to-the above conditions.
“Mrs. H. L. Ambler.
“Witness:’ Miss Anna Morrison.”

At the time this contract was entered into the Amblers resided in the state of New Hampshire. When this contract was entered into Josephine was about 10 years and 2 months old. She became of full age on the 29th day of December, 1892. From the time she went to live with the Amblers, as above stated, she continued to live with them until about the 1st of March, 1899, a period of about seven years. She was supported by the family during all of that time, being furnished with food and clothing and home. No claim was made on the trial that recovery could be had for the time prior to six years before the beginning of the action.

It will be noticed that under the contract Mrs. Ambler undertook to treat this girl as a member of her family; that she would give her a good common school education, have her attend church and Sunday School and be cared for in sickness and in health, and that she would treat her as a daughter.

The result of the trial was a verdict and judgment in favor of the plaintiff below in the sum of $275.60. Motion for new trial was made and overruled, and by proper proceedings the case is here on error. A bill of exceptions is filed showing all the proceedings in the court of common pleas.

The defendants below urge that the plaintiff was not entitled to recover for services rendered by her after becoming of full age unless there was an express contract between the parties that she should receive such wages. It was urged that the Amblers stood in loco parentis to this girl and that the well established rule that where a child after becoming of full age remains with the parents or with those standing in loco parentis and continues to live there with them in the same manner as such child lived with them while a minor, no recovery can be had for services on the one hand or for support on the other without an express contract to that effect.

On the part of the plaintiff below' it was urged that the evidence clearly showed that this girl had never been treated as a member of the defendant’s family in any such sense as their natural born children were treated; that, in short, she occupied the.position of a menial servant during all the time she resided with the Amblers, and much testimony was introduced tending to show that the Amblers did not treat her as they treated their own children. In our view of the case, however, it was not incumbent upon them to show as a defense that they stood in loco parentis. She was not in the family of the Amblers as an adopted child under any statutory adoption or under any such contract as would constitute an adoption. The contract or writing designated an “agreement” was more in the nature of a contract apprenticeship. It did not have all the requisites of a contract of apprenticeship as provided in our statutes, Section 3118, Revised Statutes, and following, but it was an agreement to take a minor into the family of Mrs. Ambler and take care of her and treat her as a daughter until she should become of full age. ' The child was probably never bound by this contract at all, certainly she was not bound by it after the family removed from the state in which they were living at the time it was entered into, which they did some three years after the date of the contract, but she did remain with them; she rendered certain service to them and they furnished certain remuneration to her in the way of food, home, clothing and some small sums of money. After she became of full age she remained with them, receiving exactly such treatment and such compensation apparently from the evidence as she received before. This she need not have done, and apparently she knew that she was under no obligation to continue with them, for she says in her own testimony that Mirs. Ambler told her she was not a hired girl. She says that Mrs. Ambler told her to say to other girls, if they asked her what compensation she was receiving, that she received $4 per week; that she said this a good many times. She says that Mrs. Ambler told her that she was putting money in the bank for her, but that she made no promise as to any amount that she was putting in the bank, nor did she make any promise as to any wages that she would pay her. We think the casé is one of a person who has been employed to render services for a certain compensation continuing in the employment after the expiration of the time originally agreed upon without any new arrangement as to compensation, and that, therefore, as she continued to live with the family as she had before lived with them and received the same kind of treatment and the same kind of support that she received while she ivas a minor, she must be held to have assented to that arrangement and consented while she remained to remain on the terms under which she lived with the family, prior to her arriving at full age. Her testimony shows that her treatment after arriving at majority was just what it was before; that her support, clothing and the like were substantially as before; that she talked with Mrs. Ambler about the matter of compensation but she made no demand for any change nor did Mrs. Ambler promise any change. She saw fit, knowing her rights as she must have presumed to have known them, and indeed her. evidence shows that she did know them, to remain with her former employers, receiving what she had before received. By this she must be bound, and it was error on the part of the court not to overnile the motion for a new trial, on the ground that the verdict was not supported by the evidence, and for that reason the judgment is reversed.


text:
    QUALIFICATION OF A WITNESS AS AN EXPERT.
    Circuit. Court of Cuyahoga County.
    Harry St. Clair Hathaway et al v. John H. Farley et al.

    Decided, March 23, 1907.

      Evidence — Witnesses—Expert Testimony — Testimony of a Witness Taken as a Whole May Qualify Him as an Expert — Not Error to Exclude Hypothetical Question which Gan Only he Answered One Way —Hypothetical Question Gan Not he Asked of Non-Expert Witness.

    1. Although the preliminary examination of a witness may not qualify him as an expert, all of his testimony in chief together with the facts brought out on cross-examination may have that effect.
    2. Where a hypothetical question is so framed that it could only be answered in one way and the jury without any assistance from an expert would know that it must be answered in that way its exclusion is not prejudicial error.
    3. Hypothetical questions as to a testator’s mental condition can not ' be asked a witness who is not an .expert, even upon cross-examination.

      ■Arnold Green and J. P. Hawley, for plaintiffs in error.

      Iligley & Maurer, F. W. Langin and T. II. Hog sett, contra.
    Marvin, J.; Winch, J., and ITenry, J., concur.

      Affirmed without report, Hathaway v. Farley, 76 Ohio State, 562;

   The parties here are as they were in the court below. The suit Avas brought in the court of common pleas by certain heirs at laAv of Charles Hathaway, deceased, to haAre set aside and held for naught a certain paper writing, purporting to be, and duly admitted to probate.as, the last will and testament of said deceased. Said writing will hereafter be spoken of in this opinion as the will of the deceased. The ground upon which it was sought to set aside the will Avas that the testator, at the time of its execution,'Avas wanting in testamentary capacity. The result in the common pleas court Avas a finding and judgment that this writing Avas the will of the deceased, and error is prosecuted here to-set aside the judgment. ' The original will was executed on the'8th day of December, 1896, at a time Avhen the testator Avas about 75 years of age, and codicil to such Avill was executed on the 4th day of February, 1897. A bill of exceptions is filed here which it is agreed does not contain all the evidence introduced in the case, but which, it is claimed on the part of the plaintiffs, presents errors for which the judgment below should be reA7ersed. These alleged errors occurred chiefly upon the rulings on the admission of evidence.

One of the witnesses examined on the part of the proponents of the Avill Avas Dr. A. B. Howard, Avho testified as appears on page 561 and following of the bill that he was superintendent of the"- Cleveland State Hospital, and had been such for six years last past; that prior to that he was engaged at a private institution for mental diseases at Cuyahoga Falls for six years; that he became acquainted with the testator in 1895, at a time when a son of the testator was a patient in the institution over which he had charge at Cuyahoga Falls; that this son died in 1897; that during tAvo years he frequently met the testator, and that after the death of the son he met him two or three times within the three months next after such death, and that he saw no evidence of mental unsoundness. On cross-examination Dr. Howard testified that he had charge of-the institution at Cuyahoga Falls, but he nowhere testified in direct terms that he was a physician, and that he had given special attention to the treatment of mental diseases. However, he is addressed constantly as Dr. Howard, and among other questions asked him on cross-examination is this:

“Q. And isn’t it true, doctor, that within your experience, long and extensive as it is, that you have known of patients and people who are insane to a marked degree, that were exceedingly acute when it came to the operation of the mind on certain subjects, and that they would display great mental acuteness and alchemy ? ’ ’

To which the doctor answered: “Yes, sir.”

Other questions of this sort were asked of him, so that although the questions asked upon the direct examination did not distinctly bring out that his connection with the two hospitals of which he spoke was that of chief medical officer, yet we think it fair to say that Dr. Howard’s testimony was such as to entitle the parties to consider him as a medical expert on the subject of insanity.

On the part of the plaintiffs it is claimed that there was error in the exclusion of answers to the following questions, asked of Dr. Howard by counsel for the defendants:

“Q. Supposing the ancestors, the mother of an individual to have lived to a healthy old age, to upwards of eighty years of age, strong and vigorous, physically and mentally, up nearly to the last, and that the parent on the other side, the father, was afflicted with insanity, and incarcerated in an insane asylum; that afterwards you find another member of the family, a sister’s daughter, afflicted with the same complaint; afterwards you find the son of the individual to whose attention I am calling your mind, afflicted with insanity, and dying in an insane asylum, from which side would you say that the person had inherited that malady; if it were inherited ? ’ ’

The objection to this question was sustained.

Then followed this question:

“Q. Does a person born of insane parents more naturally tend to insanity than one born of healthy minded parents?”

An objection to this question was sustained.

As to the first of these questions, it would seem that no error could be possible by the exclusion of. an answer to the question. It is assumed in the question thát one of the parents of the party under consideration was insane; that a descendant of the same parent was also insane; that the other parent was perfectly sane all of her life, having lived to a good old. age, and It is further assumed that the insanity asked about was inherited from somebody, and the question is from which parent- was it inherited ?

Since it is shown by the question that the party inquired about had inherited insanity, and that but one of his ancestors had any such insanity that could have been inherited, it would seem to follow that but one possible answer could have been given to the question, and that the jury without any assistance from an expert would know that if one parent had a heritable- thing and the other parent had no such heritable thing which the ■ party had inherited and which the one parent had and the other had not, he must have inherited it from the one who had it.. As-¡to the second of these two questions, several reasons seem: to us sufficient to justify the rilling of the court, most of which reasons apply as well to the first of these questions as to the second'. We think a sufficient answer as to both the questions is that in neither case did the counsel asking the questions make any statement as to what it ivas' expected the answers- would be: -' If it be said that this was not required because the questions were asked in cross-examination, that seems to be fully ahswered-by the case of Beam v. Green, 33 Ohio St., 445, where it is said that the proposed question which indicates the matter proposed to be proved was not proper cross:examination. - The rule ivhieh requires a showing as to what answer is expected in the casé of a direct examination is equally applicable to such cross-examination. Neither of the questions now under consideration was a proper cross-examination of any examination which the pro-' ponents of the will admitted of Dr. Howard, ITe was' not questioned by them as an expert, but only as any witness might have been examined as to what he had seen in the conduct of Mr. Hathaway. ' - ■ '

Another reason why the defendants were not prejudiced- by the exclusion of the answer to this last question is shown by a question which had been answered by Dr. Howard immediately preceding the rulings complained of. That question was as follows:

‘' Q. Doctor, is there such a thing known to the medical pro-' iession as hereditary insanity ? ’ ’

The answer was “Yes, sir.”

So that not only was the court justified in excluding the answers to each of these questions, but as to the second one, even if there was error in such exclusion, the defendant had obtained by the question and answer last quoted, all that they .could have expected by any answer to the second of which complaint is made.

On page 348 of the record, Mrs. Sarah Hathaway Robison, a daughter of the testator, testified that her grandfather Hathaway had been insane; that one of her brothers had been insane, and that a cousin of her’s had been insane: that all .of these parties had been patients in hospitals for the insane.

Mr. Frank DeHaas Robison, the husband of the witness last before spoken of, testified that the testator had told him, that his, the testator’s father, had been in an insane asylum.

The court said to the jury that this evidence given by Mrs. Robison and by Mr. Robison should be excluded from their consideration.

As to the testimony of Mr. Robison there can be no doubt that the court was right in taking such testimony from the jury as bearing upon the question of the insanity of the testator’s father; but we think that the court ivas wrong in excluding the testimony of Mrs. Robison on this subject. But that wrong was, as we think, righted by what the court said, as appears on pages 755 and 756 of the record. The court here said to the jury, speaking of these rulings, I will leave “such proof as has been offered and which I have once ruled out for your consideration, and give it such weight that you, under the instructions of the court, find it entitled to receive as bearing upon the question of the mental capacity of Charles Hathaway, -Sr., at the time of the making of the will, and of the making of the codicil, as you will find it entitled to receive in determining that question.”

Bearing in mind that this testimony had been given to the jury and that it was not until some days afterwards that the court had said to the jury that it was to be excluded and then' coming to this statement of the court made to the jury, we think that the plaintiffs received all the benefit which they were entitled to receive from the testimony of Mrs. Robison and indeed .were permitted to consider what we regard as incompetent testimony given by Mr. Robison.

Complaint is made of the ruling of the court as appears on page 49 of the bill of exceptions, where this question was asked of Mr. Harry St. Clair Hathaway, a grandson of the testator:

“Q. Well, the family of Charles Hathaway, Sr., including yourself, where did they meet, if at all, on holidays such as Thanksgiving days, Christmas days and birthdays of members of the family, including the birthdays of Mr. Hathaway, Sr.?”

The court sustained an objection to this question.

The next question propounded was permitted to be unanswered, and that question and answer are as follows:

‘ ‘ Q. Do you know where, if anywhere, he suent his holidays,that is Charles, Sr., such as Christmas day, Thanksgiving day, and birthdays, that is, after you came here in 1888 or 1889?
“A. Almost every birthday of grandfather, and almost every Christmas during that period,'up to his death, I was present with grandfather in the home of .Frank DeHaas Robison, first at 648 Superior street, and later at Glenville.”

And later on, speaking of these holiday gatherings this question was asked of this witness:

‘ ‘ Q. And who would be there on these occasions ? ’ ’

To which he answered:

“A. I would be there, Alfred, George, when he lived here, and. all the family, with the exception of Nellie Johnson.”

We do not undertake to say whether there was anything material or not in this question or answer, but surely all that could. have been obtained by an answer to this question was obtained by an answer to the preceding question, so there was no prejudice to the plaintiffs in the ruling complained of.

One Walter D. Sayle, who was not an expert, called by the plaintiffs, had testified that he was acquainted with the testator; that he transacted business with him, and that he regarded him as competent to transact business during the entire time that he observed him, and that from wbat he saw and knew of him he regarded him as of sound mind. ' This evidence was perhaps a surprise to the parties calling him,' and upon re-examination of this witness this question was asked of him:

“Q. Supposing Charles Hathaway, Sr., in the early part of his life should be married to an éstimable wife with whom he lived and x-aised a family of children in the city of Philadelphia, concerning whom he held the greatest feeling of friendship and affection; that he had purchased a cemetery lot in the eity of Philadelphia which is visible upon the photograph xvhieh I show you, and then afterwards he entirely forgot that lot, so that at the time you were talking with him he had forgotten that he had that cemetery lot in. Philadelphia, would that change your opinion as to his being of sound mind ? ”

Upon objection made by the proponents of the will to this question, the objection was sxxstained.

This was followed by a similar hypothetical qxxestion to the samé witness, and it should be said that evidence had been given tending to show some, pei-haps all of the assumed facts in the question; notwithstanding which, we think, the ruling of the court was clearly right.

We are not aware of any ruling which will permit the asking of’Sueii hypothetical question to one not an expert, and-in the case of Hayes v. Smith, 62 Ohio St., 161, if is clearly held that such question's can not be'asked.

One John Koch was called as a witness on the part of the plaintiffs and testified, that lie was acquainted xvith the testator, and showed, such acquaintance with him as to make his opinion admissible as to whether or not from what he had observed, Mr. Hathaway was of sound mind. Then this question was asked hipa-: -

“Q. Now Mr. Koch, during the latter part of his life'you may state what, if anything, you observed of the conduct and speech of Charles Hathaway, Sr., indicating a lapse of memory.”

The objection to this question was sustained.

There was no statement made as to what answer was expected, but on page 198, this question was asked of him. and he was permitted to answer it:

“Q. You may state what you observed, your own observation of him, beginning with what you first observed and relate the incidents that occurred, as near as you can, down to the time that I have mentioned.”

To this, he answered:

“A. In 1887, at the time Mr. Hathaway was president of the St. Clair Street Railroad, there arose a controversy about the paving of St. Clair street, in -which there was an investigation and Mr. Hathaway -was called as a witness; at that time he stated thfit I was the owner of stock in the St. Clair Street road.”

He then follows with a statement that he was not at that time the owner of stock in the St. Clair Street road, that Mr. Hathaway explained to him afterwards that a mistake was made, because he confused his ownership in the St. Clair Street road with his ownership in the Superior Street road, in which last named road, or rather in the street railroad operating on the last named street, he was an owner of stock.

Prom this it appears that all that could have been obtained from Koch by an answer to the question to which the objection was sustained was obtained in answering the latter question, and so no prejudice resulted to the plaintiffs.

While Prank DeHaas Robison was upon the stand on the part of- the plaintiffs he -was asked:

‘‘Q. What, if any change did you observe in Charles Hathaway, Sr., after the death of his son Charles and after his becoming insane, and after his death!”

The question is not very clear, but presumably it meant after Charles Hathaway, Jr., became insane, and after the death of Charles Hathaway, Jr.

This question was objected to by the defendants, and that objection was sustained, and it was stated on the part of the plaintiffs that if the answer was permitted, it was expected that the answer would be, that he became moody, would sit brooding by himself for some time and became fretful and morose.

Perhaps the answer should have been permitted. Indeed we think it should, but no error came to the plaintiffs by the ruling on this question, because of the action of the court in permitting an answer to a similar question, as appears on page 411 of the record. That question reads:

“ Q. After Charlie lost his mind and was taken to Cuyahoga Falls, what was there in the conduct of Charles Hathaway, Sr., that drew your attention particularly to him, state as fully as you can. Describe and tell what you observed up to the time of the making of the will, September, 1896 ? ”

The answer given, is as follows:

“A. He would come into the office to tell me something and in the middle of a sentence he would forget what he was talking about, and he would often ask me what he had said to me. He would repeat the same thing to me as often as four or five times during the morning.”

Similar answers were made later on by Mr. Robison in answer to similar questions.

Besides the hypothetical question put to Mr. Sayle already discussed in this opinion, similar hypothetical questions were put to other non-expert witnesses, and upon objection of the defendants, answers were excluded.

What has been said in reference to the ruling of the question put to Mr. Sayle applies with equal force to the ruling on these questions, and nothing more need be said on that subject.

We find nothing, in our examination of this case, which would justify a reversal of the judgment of the court of common pleas, and such judgment is affirmed.


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    LIABILITY OF LANDLORD FOR INJURY TO TENANT FROM EXPLOSION ON ADJOINING PREMISES.
    Circuit Court of Cuyahoga County.
    Isaac Brudno v. Jennie F. Miller.
    Decided, February 23, 1907.

      Landlord and Tenant — (Explosives—When Landlord is Liable to Tenant for Injury Caused by Explosives of Another Tenant,

    Where a landlord knows, or ought to have known, that a tenant is engaged in the manufacture of dangerous explosives, and rents adjoining premises to plaintiff as a residence, representing the business carried on in the adjoining building as of a harmless character and of a totally different nature from that which he knows it to be, he is liable for damages to plaintiff caused by an explosion in the adjoining premises.
    Marvin, J. (orally) ; Taggart, J.. and Donahue, J. (sitting in place of Judges Winch and Henry), concur.
   Jennie F. Miller brought suit against Isaac Brudno for injuries which she sustained on the 2d day of May, 1903. At that time Brudno was the owner of real estate in this city fronting on Case avenue, and also on Orange street. On the Case avenue front were some old buildings, at the rear of which he erected an apartment house, and on the Orange street property was an old building on the Orange street front, which was used as a factory for the manufacture of torpedoes, such as children use for Fourth of July celebrations. Mrs. Miller became a tenant of this property on the 27th day of April, 1903; that is, she became a tenant of the apartment house by taking or renting a suite of rooms in it. The apartment house is situated but a few feet from the torpedo factory. On the 2d of May, an explosion occurred in the torpedo factory which wrecked the building in which Mrs. Miller was a tenant and by which she received bodily injury.

Thereafter, Mrs. Miller instituted an action against Brudno, charging that he maintained a nuisance in this factory; that is to say, that he carried on. a dangerous business in the factory, and she charged also that she was induced by the fraud and deceit of Brudno to lease the apartment which she did lease in the apartment house, and that fraud and deceit, she says, existed in his representing to her that the business there carried on was the manufacturing of candy.

Brudno denied that the factory was a nuisance or that the business was in itself .dangerous; that is, he made a general denial, after admitting the ownership of the property and the explosion; but he shows that he purchased this property where the factory is, the fall before the explosion occurred, and he erected the building in which Mrs. Mailer became a tenant shortly before she moved into the suite which she had rented of him, so that the building was quite new at such time. The deed to the property on which the factory was, he received, as I remember, in January1} 1903, and prior to that time he had had a preliminary conversation, of course, with the owner of the property, and had been notified by him that the Thor Manufacturing Company were carrying on a business in this factory and that they must be permitted to remain, or ought to be permitted to remain, and he agreed that they might remain, if he could arrange with them on the terms which he desired, or that would be satisfactory to him. But he says that he had no thought that the business was a dangerous business and that he did not know what the business was.

Upon the trial the evidence on the part of the plaintiff was, first, there was no question about the explosion taking place, as charged, and that the plaintiff was injured by the explosion, for when the explosion took place in this factory it was a very forcible explosion and injured the buildings around and injured this woman. But the men who carried on the business, known as the Thor Manufacturing Company, to-wit, one Silas H. Cole, and one Joseph G-. Raquette, say they did not know that the business was dangerous, and they give the ingredients used in the manufacture of these torpedoes, the ingredients being sulphur, potash, sand and a glutinous substance, the name of which I do not recollect, none of which ingredients in and of itself is an explosive substance, and it is urged that it was not known that the combining of these ingredients in any particular ratio would result in making the substance thus made up of these ingredients an explosive substance. But upon that the evidence is that the very purpose of the manufacture of these torpedoes for the use for which they were to be put, or known to be put was, that they would explode in coming in contact with a hard substance. They are those torpedoes we have seen boys use in connection with canes made for the purpose, to strike upon the sidewalk when celebrating the Fourth of July, and so it was known that these ingredients, when combined, would produce a substance that would explode and though they may not have 'known what the chemical result of the combining would be, yet that they did know that under certain conditions it would be explosive, is very apparent, so that one might well conclude that if the small pellets which were made for the use above referred to in connection with Fourth of July celebrations would explode with a loud noise, that in greater quantities the explosion would be greater. ■ But Mr. Brudno says that he did not know even what the business was. But he was often near the factory and about the factory. Perhaps I ought to say before I come to this, that the agreement made between the party then owning the premises and Brudno was not a distinct and definite agreement that the Thor Manufacturing Company was to remain there under any lease with the vendor, but they were to remain there for the summer, if the terms could be agreed upon beiween Brudno and the Thor Manufacturing Company, which were satisfactory to Brudno, and they did carry on their business during that following summer, and there was an interview in the court house, or perhaps two or three, between the parties, with the result that the company might remain there at $25 a month, although under an agreement with their previous owner, the amount was much less. And, from, the 1st day of January, 1903, they paid rent to Brudno at the rate of $25 per month, but Brudno says he did not know what their business was, and he made no effort to find out.

The evidence of Cole and of his partner Raquette is, that they exploded some of these torpedoes every day in the factory to see if they exploded right, and that Brudno was (Raquette says), in the factory a good many times, but he is not sure that they ever exploded any in his presence. Brudno says that is not true.

Mrs. Miller, the plaintiff below, and a Mrs. Cooper testified that on the day that Mrs. Miller rented these apartments they went together to the apartments, that they met Brudno on Orange street, and they gave the direction in which they traveled to reach the apartment house. To do that, they passed by the factory, and they say that they then saw these little pellets, which are explosive, some of them lying out to dry; at least out in the sun, and Mrs. Miller says she asked what business was there carried on, and that Brudno said, “ it is a candy factory. ’ ’ Mrs. Cooper says that Mrs. Miller asked her what the business was, and she said, “it looks like candy,” and that Brudno said, “Yes, it is a candy factory.”

If that is true and the jury believed that to be true, it is some evidence tending to show that Brudno knew that there, was something carried on there that he did not w^ant to tell about. For, if he knew nothing about it then he would not be justified in saying that it was a candy factory and if he knew what the business was, he was telling an untruth when he said that it was a candy factory, which tended to show that there was something there or some business carried on there that he did not want to disclose. But, it is said that it can not be true, that is the story told by Mrs. Miller and Mrs. Cooper, because there was a fence which obstructed their view of these pellets, a high fence that was between them and the factory, and they could not see these pellets, which they testify they were told was candy; and it is true that there was a fence there, which they passed to go over to the building in which the apartments were; at least the evidence is pretty strong that that fence was there. But the jury evidently believed that whether there was a fence there or not, these women had the talk they say they had with Brudno, and he told them that there was a candy factory being carried on there, and they believed, from the evidence, that he liad knowledge of what the business was that was carried on there. It is said, however, that since this was not known to be a dangerously explosive substance that he (Brudno) ought not to be held responsible, but that if he knew that it was an explosive substance in small quantities, it would produce more noise than is produced by these torpedoes, it was evidence that ought to have put him on his guard, if he knew that much about it, to find out whether in larger quantities it would be dangerous. The court gave the jury a perfectly fair charge as to the defendant below, guarding his rights so well that complaint is not made of what the court said, and we think the jury might well have reached the conclusion that they did, that this was very dangerous business, and that torpedoes were made at that factory for the purpose of exploding, and a knowledge of these facts was sufficient to put upon guard the owner who rented the premises immediately adjacent to this factory, and we believe if they did, and they might well have believed the story of MI’S. Miller and Mrs. Cooper, that Brudno representing it to be a candy factory indicated that he intended and that he recognized there was that about the business which he would not disclose, or did not want to disclose.

We find no error in the record of this case, and the judgment is affirmed.


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    WIFE SUBROGATED TO RIGHTS OF MORTGAGEE.
    Circuit Court of Cuyahoga County.
    Edwin R. Date v. Joseph P. Imhof et al.
    Decided, January 14, 1907.

      Subrogation — Homestead—Doctrine of Subrogation Applies where One Pays Debts of Another to Protect Her Own Rights — How Homestead Rights in Property Owned Jointly by Husband and Wife Determined.

    1. When a wife who is a joint owner with her husband of property and has with him executed a joint note and mortgage upon the property, pays the note and mortgage to protect her interest in the property, she is .thereby subrogated to the rights of the mortgagee.
    2. Where a husband is the owner of a threo-eights interest and his wife the owner of a five-eights interest in property from which it is impossible to set off a homestead by metes and bounds, the rights of the parties must be worked out under Section 5439, Revised Statutes, the rental value of the property appraised, and if it exceeds one hundred dollars per annum, then three-eighths of the excess above that sum will be subject to the demands of the husband’s creditors.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Joseph P. Imhof is a bankrupt; Eva is his wife; Edwin R. Date is the trustee in bankruptcy of the estate of the said Joseph P. Imhof. This suit is brought by the trustee for the purpose of setting aside a certain deed made by the said Joseph to the said Eva, through the instrumentality of the trustee. Prior to the 23d day of October, 1901, the said Joseph P. and Eva Imhof had purchased a house and lot, which from the time of said purchase up to the present time, has constituted their family homestead. They are residents of Ohio, and during all the time since the purchase of said homestead, have been living together as husband and wife. At the time the home was purchased there was paid on the purchase price out of the money owned equally by the two parties, the sum of $1,000; the balance of such purchase price, viz., $700, was secured by a mortgage for that amount, executed upon this property by the said Joseph and Eva. On said 23d day of October, 1901, Joseph conveyed his interest in said property by deed, to a trustee, who on the same day conveyed the same to the said Eva. There was no valuable consideration for these conveyances. Át the time of such conveyance Joseph was in debt to such an extent that he did not have sufficient property, after such conveyance, to pay his debts. Subsequent to the conveyance of Eva, and while the legal title to the entire premises was in her, there was paid of money belonging to the two, the sum of $200, on the debt secured by said mortgage. Thereafter the said Eva paid the remainder of said mortgage debt, amounting to $500. This she paid partly with money borrowed by her from her son, and partly with money borrowed by her from a friend. By so paying said mortgage the said Eva, if the title had still remained one-half in her and one-half in her husband, would have been subrogated to the rights of the mortgage to the extent of onelialf'of such payment; that is, to the extent that in so paying said sum she paid one-half thereof upon the debt of Joseph, secured by the mortgage.

In the ease of Warner v. York), 25th Ohio C. C. Reports, at page 316. this court said:

“Authorities are numerous, that where a grantor pays all or a part of a mortgage debt the payment of which is in terms assumed by the grantee of the mortgagor, such mortgagor is subrogated to the rights of the mortgagee in the mortgage to the extent of such payments. ’ ’

The authorities cited in support of the proposition are: Sheldon on Subrogation, Section 3; Kinnear v. Lowell, 34 Me., 299; Henson v. Reed, 71 Tex., 726; Baker v. Terrell, 8 Minn., 195.

In -the syllabus of the last named case, this language is used:

“A mortgagor who conveys the land subject to the mortgage and who afterward, even voluntarily, • pays the mortgage debt, is entitled to be subrogated to the rights of the mortgagee against the land.”

■ Again this court said in the same case:

“Where the vendee of mortgaged premises assumes the payment of the mortgage debt, the relation between him and the mortgage is that of principal and surety.” Citing numerous authorities in support of the proposition.

Again it is said in the same opinion:

“A surety being required to pay the debt of his principal is subrogated to the rights of the creditor in any securities pledged for the payment of the debt.”

In the case of Ohmer v. Boyer, 89 Ala., 273, this language is used in the syllabus:.

“2. Subrogation or equitable assignment of mortgage on payment by assignee of equity of redemption. — Lands being .conveyed by the husband on a nominal consideration, besides love and' afféetion,' in trust for the wife for life, with remainder in one-half to the heirs or devisees of each of them respectively, and the lands being at the time subject to an outstanding mortgage executed by the husband, the wife has a right to pay .off and discharge, the mortgage, for her own benefit and protection, either before' or after her husband’s death: and such' payment being made by her after his death, by allowing the mortgagee to retain and appropriate the rents, she is entitled, as against the heirs of the husband or any one claiming under him, to be subrogated to the rights of the mortgagee, or to stand as an equitable assignee of the mortgage.”

In Cole v. Malcolm, 66 New York, 363, it was held that the doctrine of subrogation applies where a party is compelled to pay the debt of. a third party to protect his own rights or to save his own property.

This was clearly the case here. The property of Eva was mortgaged for the payment of this debt, one-half of which was owing by her husband. The property was liable to be sold upon foreclosure of this mortgage. To protect herself she would have been compelled, if suit had been brought to foreclose, to have paid off the mortgage, for the purpose of saving her own interest in the property, and surely she could as well protect herself by paying the mortgage before suit was brought, as to wait until suit was brought, when she would be compelled to pay both the debt and the costs in court in..such-foreclosure proceedings.

The conveyance by Joseph to his wife, being without any valuable consideration, as between Eva and the creditors of the said Joseph, was void, but the fact of such conveyance did not deprive Eva of her right to be subrogated to the rights of the mortgagee to the same extent as she would have been entitled to be subrogated if the legal title had not already been cony eyed to her. The.legal title being in her at the time of her payment of this debt, her equitable right to be subrogated was merged in her legal title, so that her ownership of the property, as against the creditors of Joseph, was represented by the one-half which she owned before Joseph conveyed to her, and the $250 which she paid for Joseph on the mortgage debt.

From the evidence we find the value of the property to be $2,000. It follows that the ownership of Eva, as against the creditors of Joseph is twelve hundred and fifty two thousandths of the 'property. This 'fraction- reduced to its lowest terms is five-eighths... The-equitable ownership, therefore,’in .Eva ,w.as five-eighths of the entire property, leaving Joseph the equitable owner of three-eighths of the entire property.

As has already been said, this property is the homestead of this husband and wife and their family.

It is claimed on the part of the plaintiff that since Eva is the owner of a fractional part of this homestead, it must be held that she is the owner of a homestead, and that, therefore, there can be no homestead exemption out of the equitable ownership of Joseph. If this be so, it is because Eva being the owner in common with her husband of a homestead property, she is to be held to be an owner of a homestead. If this be so, it is manifest that the ratio of ownership between the two could cut no figure, and if her ownership were but one-eighth instead of five-eighths of the entire property she must still be held to be owner of a homestead.

Indeed if instead of one-eighth her ownership was but one-fiftieth of the entire property, she must be held to be the owner of a homestead, and so no exemptions could be cláimed by either her or Joseph in his interest in the property.

This is manifestly unjust and would seem to be absurd.

We are impressed with the soundness of-much of the reasoning of Judge Blandin in the case of Prosek v. Kuchia, reported in 11 Weekly Law Bulletin, 65.

Although we reach a conclusion less favorable to the wife than was reached in that case, we think, however, it is clear that the wife here can not be said to be the owner of a homestead. The two together are the owners of a homestead, and it is provided in Section 5436, Revised Statutes, that husband and wife living together, may claim a homestead exemption. Here they maybe then claiming it out of their joint property. This joint property, as has already been said, consists of a home worth $2,000, of which the wife is the owner of five-eighths.

It is manifest that no homestead can here be set forth to anybody by metes and bounds, and so the rights of the parties must be worked out under Section 5439, Revised Statutes, which provides that: In case a homestead can not be set off by .metes and bounds, the rental value of the property shall be appraised and the rent, “over and above one hundred .dollars shall be payable in quarterly payments, commencing three months from the time of the levy of the execution.”

Since the wife is the owner of five-eighths of this property, it is manifest that that fractional part of the rent can not be applied in payment of the husband’s debts. This results in holding that the rental value of this property shall be appraised in pursuance of the provisions of Section 5439 of the Revised Statutes, that the annual rental shall be appraised, and if such rental exceeds $100, then three-eighths of such excess shall be subjected to the payment of the debts of Joseph, and therefore shall be paid to the plaintiff in this action, and a decree shall be entered accordingly.


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    EXCEPTIONS TO AN APPRAISEMENT.
    Circuit Court of Cuyahoga County.
    James R. Sprankle v. Arthur Odell et al.

    Decided, February 18, 1907.

      Probate Law — :Exceptions May be Taken to Appraisement.

    An appraisal where one is made, is an essential part of an inventory filed by an executor or1 administrator, and under the provisions of Section 6024, Revised Statutes, exceptions may be taken to that, as well as to any other part of the Inventory.

      J. J. Hogan and Goulder, Holding & Hasten, for plaintiff in error.

      Squire, Sanders & Dempsey, Wallace I. Knight and Walter C. Ong, contra.
    Marvin, J.; Winci-i, J., and Henry, J., concur.

       Affirmed without opinion, Sprankle v. Sprankle, 78 Ohio State, 404.

   James Sprankle died in this county in 1904, leaving a will in which James R. Sprankle, Jr., was named as executor. Letters testamentary were issued to the executor so ■ named, ivithout bond; the will provides that no bond need be given. Appraisers of the estate were appointed in pursuance of the statute, and an inventory including an appraisal made by such appraisers, was filed in the probate court, by said executor. Later this executor resigned his said trust, and the defendant in error, Arthur Odell, was appointed administrator cle bonis non with the will annexed of the estate of the testator. Still later, to-wit, on the 15th day of May, 1905, James R. Sprankle, Jr., who had been executor of the will, and who was a legatee and devisee under such will, filed in the probate court a paper writing designated “Exceptions to Inventory,” which writing reads as follows :

“In the Probate Court of Cuyahoga County, Ohio.
“No.- In Re Estate of James R. Sprankle, Deceased. Exceptions to Inventory.
“Now comes James R. Sprankle, Jr., and represents to this honorable court that he is the son of James R. Sprankle, deceased, and one of his heirs and a legatee under his will in this court, and files this his exception to the inventory of the estate of James R. Sprankle, deceased, filed in this court on or about the 2d day of March, 1905, and says that the appraisement of the personal property of said estate Avas made on or about September 3, 1904, by appraisers appointed by this court, who proceeded to appraise the personal property o£ said decedent in compliance Avith law; that before the time of said appraisement, this exceptor and Angela M. Sprankle, the Avidow of said deceased, agreed that said personal property should be appraised very 1oa\t, and represented to the appraisers that they had made said agreement, and that with the exception of a daughter of said deceased they Avere the only persons interested in said estate, Avhereupon said appraisers made appraisement of said property and gwe heed to the request of said two persons, and your exceptor represents that said personal property Avas appraised very low, and much beloAv the actual value thereof. Your exceptor further represents that since said time, as he understands and believes, the said Angela SI. Sprankle has concluded not to take under said will.
“Your petitioner further represents’that if said appraisement be allowed to stand, that it will be a great loss to said real estate and to the legatees mentioned in said will and the heirs of said decedent.
“Wherefore, your petitioner and exceptor prays that the appraisers since appointed by this court be directed to appraise all of the personal property of said estate, and to file an invcntory containing the appraisement of all ihe personal property, and that the court make such further order with regard to the appraisement of the personal property of said decedent as the facts and law require.
“James R. Sprankle, Jr.,
“By Gotjlder, Holding & Masten,
“Mis Attorneys.”

These exceptions were, as wil] be seen, exceptions to the appraisement contained in the inventory filed by the exceptor Avhile he ivas' acting as executor. Proper notice was green to the parties interested in the estate, including the administrator de 'bonis non; on the 26th day of August, 1905, these exceptions were heard in the probate court, and sustained as to the appraisal of some of the items of the imrentory, and overruled as to others. From the judgment a.nd order of the probate court made upon these exceptions, the exceptor did all things necessary to perfect an appeal to the court of common pleas, providing the probate court had jurisdiction to hear and determine such exceptions. Such appeal is provided for in the section which provides for the filing of exceptions to the inventory, viz., Section 6024, Revised Statutes, which reads:

“At any time within one year after the return of an inventory any person interested in the estate may file exceptions to the inventory; and thereupon, the court shall set a day for the hearing thereof, and cause Avritten notice of such filing and of the time so fixed for the hearing to be given to the executor or administrator not less than five days before the time so fixed for the hearing; and for good cause the hearing may be continued for such time as the court shall deem reasonable; and at the hearing the executor or administrator, and any witnesses subpoenaed by either party may be examined under oath, and the court shall enter its findings on the journal and tax the costs as may be equitable; and on appeal may be taken to the court of common pleas, by either party, from the finding, order, judgment or decision of the probate court on the hearing of said exceptions to the inventory, as in other cases.”

In the court of common pleas a motion Avas made to dismiss this appeal, and this motion Avas sustained. The action of the court in sustaining this motion is complained of in this proceeding in error, and it is that order of dismissal, and no other, which is here for consideration.

The court was right in sustaining this motion, if the probate court was without jurisdiction to hear the exceptions; otherwise the order of dismissal was erroneous. As will be seen by the reading of Section 6024, Revised Statutes, "any person interested in the estate may file exceptions to the inventory” and on the part of the plaintiff in error it is urged that this included all that by law is required to be contained in the inventory. While on the other hand the contention is that the appraisal of the property is not a part of the inventory in such sense that exceptions may be taken to such appraisal.

It wrill be noticed that the exceptions filed complain only of the appraisal. By Section 6023, Revised Statutes, it is provided that the. word "inventory” in this chapter shall include an appraisement. It is said that this part of Section 6023 was enacted after the enactment of Section 6024, but, it is provided by Section 6025, that:

"If the court at the time of granting letters testamentary or letters of administration shall think fit, it may order the executor or administrator to also include in the inventory an appraisement of all the real estate of the deceased.”

Section 6031, Revised Statutes, provides:

"The executor or administrator shall, with the aid of the appraisers, if an appraisement is made, make the inventory herein directed.”

This language clearly implies that the appraisement is a part of the inventory.

Again in Section 6035, Revised Statutes, it is provided that the inventory shall contain a particular statement of all bonds, etc., belonging to the deceased, and the sum which, in the judgment of the appraisers can be collected oh each claim, so that it would seem from this section that the Legislature understood the appraisement to be a part of the inventory and similar provision is made in Section 6036:

"The appraisers shall not include in the inventory the provisions, property or money set off and allowed by them to the widow or children, but the same shall be stated in a separate schedule signed by them and returned with the inventory, to the court by the executor.”

Section 6044 provides that:

"Upon the completion of the inventory it shall be signed by the appraisers and a copy thereof shall be retained by the executor or administrator, and he shall return the original to the probate court.”

We think it clear from these several provisions,, that the appraisement, where' one is made, is an essential part of the inventory, and that exceptions may be made to that part of the inventory as well as to any other part of it, and so the exceptions filed in this case are properly denominated "Exceptions to the inventory” and come within the provisions of Section 6024, Revised Statutes, unless it be as urged by counsel for the defendant in error, that because of the language used in the writing denominated "exceptions to the inventory.” it is not in any proper sense an exception.

In the argument- of the case to us it was urged that the ex-ceptor ought not to have been heard, because of the inconsistency of his filing exceptions to the inventory which had been filed by himself as executor, and that no proper reason was in these so-called exceptions for a correction of the appraisal. It is said in the so-called exceptions that the appraisal was two low, because of suggestions made by the widow of the deceased and by the executor himself that it was desired that the property should be appraised low. However weighty this contention may be, it does not come to the question of the jurisdiction of the probate court to pass upon the exceptions.

Jurisdiction as defined in Anderson’s Law Dictionary, is the power "to hear and determine a cause.” And, in the case of Rhode Island v. Massachusetts, 12th Peters, 657, this definition is given in the syllabus:

"Jurisdiction is the power to hear and determine the subject-matter in controversy between parties to a suit. ’ ’

When this writing was filed with the probate court, that court was given power to hear and determine whether the exceptions were well taken, and indeed power to hear and determine whether if all what was stated in the exceptions as shown to be true it would invalidate any part of the appraisement. The moment the court was clothed with power to determine these questions it was clothed with jurisdiction, it would have power under Section 6024, “to enter the findings on the journal and tax the costs as may be equitable,” and when such order was made, whatever it was, a party interested was entitled to appeal to the court of common pleas.

From this it follows that the order of dismissal of appeal made by the last named court was erroneous, and that judgment is reversed, and the case remanded for further proceedings to that court.


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    INSTRUCTIONS TO JURY MUST BE TAKEN AS A WHOLE.
    Circuit Court of Cuyahoga County.
    The Hollenden Hotel Company v. Lulu Jackson, Administratrix of the Estate of Albert Jackson, Deceased.

    Decided, January 23, 1907.

      Trials — When Judgment Not Reversed on Weight of XJnconiradicted Evidence — Charge to Jury to he Token as a Whole.

    1. Where the evidence of a witness as to the instructions he had given plaintiff’s decedent, although uncontradicted by any other witness, is in other particulars so contradictory and inconsistent with itself as to indicate that his testimony is from impressions rather than from distinct recollections, a judgment will not be set aside as against the weight of the evidence.
    2. A charge to a jury is to be construed as a whole, and if, construing the whole charge, the law of the case appears to nave been correctly given to the jury, and in a way that will reasonably enable them to understand the> rules of law which they are to apply to the evidence before them, the charge will not be held erroneous simply because every condition to a recovery or a defense is not embraced in each paragraph, and the paragraph excepted to is not in itself calculated to mislead.
    Marvin, J. (orally); Taggart, J., and Donahue, J. (sitting-in place of Judges Winch and Henry), concur.

       Affirmed without opinion, Hollenden Hotel Co. v. Jackson, 78 Ohio State, 440.

   The parties are reversed here from the standing which they had in the court below; suit being brought in that court by the administratrix of Albert Jackson, deceased, against the ITollenden Hotel Company, a corporation, conducting a hotel in this city, and recovery was had for the alleged wrongful death of Albert Jackson.

The Hollenden Hotel Company in carrying on the business of a hotel has four steam boilers in the basement and a corps of men to do the work attendant upon the keeping in operation those boilers. Three of the boilers are kept in commission, as it is called, one being out of commission all of the time, or substantially so.

On Saturday night, the steam is taken off from some one of the boilers, and that boiler is cut off from operating, and it is left in that condition until the Tuesday morning following, when the boiler thus out of commission is washed out, and again made ready for being put into commission, and that was done at the time when Jackson was killed by scalding steam let in a boiler which he was undertaking to clean, on the 12th of April, 1.904.

It is said in the petition below, that the defendant below was negligent in that it had no rules for the conduct of the business of handling the boilers; that it was a dangerous business; that is was a business which required that there should be some fixed rules for its management. It is said on the part of the plaintiff below that not only was there negligence in the failure to provide rules, but on the occasion of Jackson’s death he was ordered to go into a boiler, steam was turned into the boiler while he was in there washing it out, and he was scalded to death.

The defendant says it had proper rules which, if they had been observed, would have saved this man from the accident which resulted in his death, and that on the occasion of his going into the boiler he was distinctly ordered by his foreman, Samuel A. Schad, who was the assistant engineer, to stay out of the boiler, until he (Schad) should return. The situation was about this: that this Tuesday morning, the 12th of April, 1904, Jackson, who was a laborer, and whose duty, among other duties, was the washing out the boiler, went, by the direction of Schad, on top of one of the boilers. The manhole on the top of the boiler was open. Schad went away while Jaekson was on top of the boiler with a hose in his hand, through which water was coming, and during the absence of Schad, Jaekson went into the boiler, and while in there somebody turned the stop-cock on and let the steam into the boiler. The evidence as to the rules is such that surely the jury could not have found that there were any such rules published to these men employed about the boilers as there should have been. Schad said, it was my rule that nobody was to go into the boiler without first reporting to the fireman that he was going in, and he considered the rule to be that men were not to go into the boilers without first reporting, but nowhere does he say that there were any rules established by anybody who had authority to enforce them. He says that he told the men who were there, employed about the boilers, that they were not to go into the boilers until he told them so to do, but he does not seem quite sure about it being a rule, indeed he is very indefinite himself as to what the rules were, and the jury certainly would not have been justified in finding that there were proper rules in force. But, if Jaekson finding the instructions given to him at that time to be such as they were claimed to be, then- his administratrix was not entitled to recover in this case. Now the evidence on that point is not quite clear. Schad, who was Jackson’s superior, says that Jaekson went upon the top of the boiler, and the boiler was some eight feet high; that he took a step ladder to get up there, and that he (Schad) handed him the hose, so that he could connect it there, and that he had the hose in his hand, and he (Schad) then said, “I am going away, don’t go into the boiler until I get back.” Carr, who was, as Schad says, ten, twelve or fifteen feet away, testifies that he did not hear Schad give this direction to Jackson not to go into the boiler until he came back. Nobody is able to say that that is not true, and in the nature of things it is quite possible that no one heard any order given, even if it was given to Jackson. Schad said he did, but Schad is evidently testifying from an impression rather than from a distinct recollection; for Schad says in one place that Jaekson was doing nothing. In another part of his testimony Schad says that Jackson was turning water into the boiler with the hose at the time he left, and that he was bending over to see where to place the hose, while he says in another place in his testimony, that the water had not yet been turned on; yet in another part of his testimony he says that the water was being forced in. Now that does not indicate that he was testifying from recollection, but it does indicate that he is reasoning it out. If he recollected that he told him to do a certain thing, he would have had a clearer recollection of what Jackson was doing when he left; Jackson was put up there to clean up the boiler; if he had no instructions and if there were no such rules as ivould require that some orders be given when one was to go into the boiler so that the steam would not be turned on, then he was not negligent, and it Avas negligent for the company to be without rules and to allow that steam to go in there. And so we would not reverse the case on the weight of the evidence.

But the charge is complained of because it is said that under the charge a recovery might have been had, even though Jackson was negligent in going into the boiler, without giving notice that he was going in, or for any other reason that he was negligent. The court at the request of the defendant, below, gave this in its charge:

“If the jury find from the evidence that plaintiff’s intestate was instructed by his superior officer not to enter the boiler in question until said superior officer should return to said boiler room and that in violation of said instructions plaintiff did enter said boiler and receive the injuries which resulted in his death, then his administrator could not recover. ’ ’

Now of course no complaint is made on the part of the hotel company to that; it was law applicable to the case. It is said, however, that another rule inconsistent to that was given in the general charge of the court when this was given:

“It is claimed by the defense, that he (Jackson) ivas directed not to enter the boiler without informing the fireman. I say to you that if the deceased was directed not to enter the boiler until he, the assistant engineer, returned, by the assistant engineer, and in violation of that direction he entered the boiler, and one of the fireman without knowledge of his presence in iliere turned on the blow-off cock, and the steam backed up into the boiler and scalded him to death, his testatrix could net recover, for the reasgn that if such and the facts found by you, that is, if you find the fact to be that he was directed not to enter until the assistant engineer returned, then he failed in his duty, to himself and to his employer, and his failure would be the cause of his death, and he would be guilty of contributory negligence, and a recovery would be barred by that fact.”

Now, it is not denied that that is the. law. It is telling the jury of certain circumstances under which the plaintiff below could not recover, and it is not insisted that it is not true, as here stated, but -it is said that the implication is that if the-decedent had in violation of instructions gone into the boiler and the steam had been turned on by one of the employees of the liollenden Hotel Company with knowledge of the presence of Jackson in the boiler, there could have been a recovery; that is, there could not be a recovery if this steam was turned on without knowledge, and it implies that notwithstanding the negligence of Jackson in going into the boiler in violation of express instructions, that there could be a recovery, if the steam had been turned on with knowledge of his presence, and that if the same was turned on by a fellow-servant with knowledge, still there ought to have been a recovery. We doubt every much whether that would be so, because the circumstances might be such, that it might be wanton. Rut, however, it may be there is an implication in this; that there could be a recovery notwithstanding the negligence of Jackson in going into the boiler in violation of the instructions he received, and the steam was turned on with knowledge of his presence there. We suppose it would be wrong if the court had so charged. It would hardly seem possible, however, that the jury could have gone wrong and misunderstood the language of the. court, especially after being instructed in this wise:

“I say to you, gentlemen of the jury, that if he (Jackson) was directed not to enter the boiler until the assistant engineer returned, by the assistant engineer, and in violation of that direction he entered the boiler, and one of the firemen, without knowledge of his presence in there turned on the blow-off cock, and the steam backed up in the boiler and scalded him to death, liis administratrix could not recover, lor the reason that if such are the facts found by you, that is, if you find the fact to be that he was directed not to enter until the assistant engineer returned, then he failed in his duty to himself and to his employer, and his failure would be the cause of his death, and he would be guilty of contributory negligence, and a recovery would be barred by that fact.”

Now taking this charge altogether we find that the court had properly instructed the jury as to the law applicable to the ease, as will be found in the case of The Ohio & Indiana Torpedo Company v. Fishbern et al, 61 O. S., 608.

We find no error in this record and the judgment is affirmed.


text:
    STATUTE OF FRAUDS NOT APPLICABLE TO CONTRACTS TO BE PERFORMED WITHIN A YEAR.
    Circuit Court of Cuyahoga County.
    The Bohemian Mission Board of Cleveland v. Charles L. Fish et al.
    Decided, November 24, 1905.

      Statute of Frauds — Contract which May he Performed Within a Year Not Within Statute of Frauds.

    1. Contracts “not to be performed within one- year,” only include agreements which by a fair and reasonable interpretation of the terms used by the parties and in view of all the circumstances existing at the time do not admit of performance according to the language and intention within a year from the time of the making.
    2. Where the promisor agrees to furnish money to pay the salary of a person for a period of two years and thereupon hands the promisee an amount sufficient to pay the first year’s salary accompanied with a statement that she will pay a like amount “next year,” such promise is not within the statute of frauds.

      Allison Gibbons, for plaintiff in error.

      Calhoun & Guenther, contra.

      Marvin, J. (orally); Winch, J., and Henry, J., concur.
   This is a proceeding in error. The case below was brought by this plaintiff against the defendants as executors of the will of Abigail L. Olney, deceased. The facts upon which the case was. tried are agreed to. The case was submitted to the court without the intervention of a jury upon an agreed statement of fact. That agreed statement shows that the plaintiff is a cor poration, not for profit, and that its work is the carrying on of mission work for the spread of the gospel in the city of Cleveland; that for the purpose of carrying on its work it leases ground, erects chapels, employs teachers and preachers; that that work has been carried on for many years by the plaintiff. Further the agreed statement of fact says that on or about the 2d day of October, A. D. 1903, Dr. A. G-. Hart and Dr. H. A. Schauffler, as agents for plaintiff, called at the residence of Abigail L. Olney, No. 137 Jennings avenue, Cleveland, Ohio, to obtain a contribution, gift or pledge from her to help the plaintiff in its said work on East Madison avenue. They Stated to her that plaintiff needed a preacher for that work, but that plaintiff had no funds with which to pay and that they could not hire a man unless they knew where the funds to pay him were coming from; that they knew of a fit and suitable man for the work — one Rev. Philip Reitinger: that he would come for a salary of $1,000 a year but would not make a contract for his services for a shorter period of time than two years; that he was a desirable man for the place, but that he had an offer of another position; also that plaintiff must employ him at once, if they desired him at all. Thereupon said Abigail Olney said that she would furnish the $2,000 needed to pay the cost of the preacher. She then and there gave them a check for $1,000 for plaintiff and said that she would give them, the other $1,000 “next year” for plaintiff’s use in paying the salary of said preacher. Before the end of the year Mrs. Olneyq died. Plaintiff acted upon the strength of this promise of Mrs. Olney and relied upon it for the money with which to pay the cost of said preacher, and thereupon and at once and upon the same day entered into a contract with the said Rev. Philip Reitinger to employ him as minister in the said work on East Madison avenue and to pay him the sum of $1,000 per year for two years, ending September 20, 1905. Then it goes on to state that the Rev. Philip Reitinger is performing his part of the contract that he made with them; that they would not have hired him but for the promise of Mrs. Olney, and a suit was brought against the executors of her will to recover the $1,000 to be paid next year.

The trial in the court below resulted in a verdict for the defendants, the defense being that the promise is within the statute of frauds, which reads:

“Section 4199. No action shall be brought whereby to charge the defendant, upon any special promise, to answer for debt, default or. miscarriage, of another person; nor to charge any executor or administrator upon any promise to answer damages out of his own estate; nor to charge any person upon any agreement made upon consideration of marriage, or upon any contract or sale of lands, tenements or hereditaments, or any interest in, or concerning them; nor upon any agreement that is not to be performed within the space of one year from the malting thereof; unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith, or some other-person thereunto by him or her lawfully authorized.”

What was the intention here of the parties? Certainly that not later than a year from the date of the promise she would pay the second $1,000, the money sued for in this action, and she might pay it earlier if she would. It can hardly be doubted that the promisor and the promisee both understood that the second $1,000 was to be paid as early as the anniversary of the day of promise. Clearly it could be paid before, but assuming that a fair construction of the language is that the payment should be made on the first anniversary the promise would not then fall within the statute of frauds.

In the ease of Cawthorn v. Cordrey, 13 C.C.(N.S.), 406, it is said:

“A contract for hiring made on the 24th of March for a year’s service, to commence on the 25th is not void by the fourth section of the statute of frauds for want of a memorandum,”

In Dixon & Co. v. Frisbee, 52 Ala., 165, the syllabus reads:

“A verbal contract entered into on the 21st daj7 of December, 1870, whereby plaintiff agreed to serve as a clerk > for defendants for a year, commencing on the day thereafter and ending on the 22d day of December, 1871, is a contract to be performed within a year and therefore not within the statute of frauds.”

In the opinion on page 166,' this language is used:

“This construction is in accordance wdth the ordinary rule for the computation of time which excludes fractions of a day.”

In the case of Sands v. Lyon, 18 Conn., 18, a paragraph of the syllabus reads:

“Where a testator devised land to his son B, on condition that he should pay to A $100 within one year next after, the testator’s decease; the testator died on the 2d day of October, 1841; the 2d day of October, 1842, was Sunday; and B tendered the money to A on Monday, the 3d day of October, 1842; it was held: 1, that in the computation of the year within which the money was to be paid, the day of the death of the testator should be excluded; and 2, that the expiration of the year, according to that mode of computation, occurring on Sunday, the tender made on the following day was made in sufficient season.” -

On page 27 this language is found in the opinion of the court':

“We do not entertain a doubt that, by the language of the testator, in the present instance, it would be generally known and understood that the payment mentioned in the devise, was to be made within a year after the day of the testator’s decease; excluding that day in the computation. * * *
“The money was to be paid within a specified period after his decease; and it would be generally understood, therefore, that that event must take place before the time from which the payment was to be made, is to be computed; and as the maxim which has been mentioned, would exclude the remaining portion, •after his death, of the day on which it occurred, the computation of the year must commence with the beginning' of the succeeding day.”

Of course, what is said in this case as to its being a sufficient compliance to make the tender on the 3d of October because the 2d was on Sunday has no application to the case under consideration, but the court distinctly holds that the provision of the will that the devisee should pay $100 within one year next after the testator’s decease is fully complied with by tendering payment on the first anniversary of the death of the testator.

To the same effect is the case of Weeks v. Hull, 19 Conn., 376.' The following language is used in the syllabus of this case:'

“The day of the act from which the future time is to be-.ascertained, is to be excluded from the computation.
This rule is applicable not only to contracts, wills and other instruments, but to statutes and proceedings under them. ’ ’

In the opinion in this case the court referred to Sands v. Lyon, supra, and used this language in reference to that ease:

“This was in accordance with the acknowledged rule for the construction of mercantile contracts; and the court proceeded to say, ‘that instruments shall be so construed, if possible, as they and the rights depending upon them, shall be upheld, and not destroyed; the presumption being, that instruments are designed to be effectual, and not futile. ’ This language and course of reasoning is not confined to any specified instance, but embraces every instrument or contract, as well as wills, and applies as forcibly to the construction of statutes, and all proceedings under them, as to other .papers, without an allusion to any of the distinctions before mentioned. The case also recognizes another conservative principle, which ought to govern both that case and this, and all others to which it is applicable — that the computation of time should be so made as to protect a right and prevent a forfeiture, if this can be done without violating a clear intention or a positive provision.”

Brown on the Statute of Frauds, p. 273, says:

“Setting out of view the questions, what is the performance of such an agreement, and what the meaning of the limitation as to time, we are first to ascertain the force of the words 'to he performed’ And on these words much reasoning has been expended. The result seems to be that the statute does not mean 1o include an agreement which is simply not likely to be performed, not yet one which is simply not to be performed, within the space of a year from the making but that it means to include any agreement which by a fair and reasonable interpretation of the terms used by the parties and in view of all the circumstances existing at the time, does not admit of performance according to its language and intention, within a year from the time of its making.
“Suppose that the parties make no stipulation as to time; but the performance of the agreement depends either expressly or by reasonable implication upon the happening of a certain i.-ontingency which may occur within the year. In such case it is settled upon authority and reasonable in principle that the statute shall not apply. The agreement may be performed entirely within the year, consistently with the understanding and rights of the parties.”

We think this might consistently with the understanding and rights of the parties have been performed within a year from the date of the promise. The minister was hired on the day of the "promise. She, said, ‘ ‘ I will furnish you $1,000; I will .give this $1,000 now, and $1,000 next year.” We think this might very well have been performed within a year without violation of the understanding of the parties, and it was therefore error on the part of the court below to enter judgment for the defendant.

The judgment is reversed.