text:
    RAPE.
    [Knox (5th) Court of Appeals,
    October, 1914.]
    Shields and Powell, JJ.
    (Voorhees, J., not sitting.)
    Frank Zent v. State of Ohio.
    Criminal Intent and Knowledge by Accused not Material , Elements of Offense of Rape with Consent of Girl Under Sixteen Years.
    Neither criminal intent to commit the crime of rape upon a girl under sixteen years, with her consent, nor want of knowledge of the fact, express or implied, that the girl in question was less than sixteen years, is an essential or material fact of the offense provided by See. 12414 G. C.; proof that the prosecutrix was less than sixteen years, that the accused was eighteen years and that sexual intercourse was committed is sufficient to affirm a conviction.
    [Syllabus approved by the court.]
    Error to the common pleas court.

      Wm. M. Koons, for plaintiff in error.

      L. T. Gromley, for defendant in error.
   SHIELDS, J.

At the February 1914 term of the court of common pleas of Knox county, Ohio, the grand jury of said county returned an indictment against the plaintiff in error charging that “one Frank Zent, on or about the fifth day of December, 1913, a,t the county of Knox, being then and there a male person, of eighteen years and upwards, did then and there unlawfully and knowingly carnally know and abuse one Mabel Storey, with her consent, she, the said Mabel Storey, then and there being a female under the age of sixteen years, to wit: of the age of fifteen years,” to which said indictment a plea of not guilty was entered. Trial was had, resulting in a verdict of guilty as-charged in said indictment. A motion for a new trial was overruled, and the plaintiff in error was sentenced according to law. A petition in error, with a bill of exceptions containing the evidence taken upon the trial, was filed in this court for the review of the judgment of said common pleas court.

Counsel for plaintiff in error argued that proof of the crime charged was incomplete because it failed to show that it was committed with criminal intent, contending “that no-crime can be committed without a criminal intent, and a general deliberate purpose is at the foundation of criminal law, and it has been so announced over and over again by our highest courts.”

It is fundamental that in all cases where the statute makes, the intent .with which an act is done an ingredient of its criminality, such intent must be averred and proven, either by direct or circumstantial evidence, to support a judgment of conviction, but where the act is made' an offense by statute without reference to the intent, the intent with which such act is done is immaterial.

In support of this proposition of law it is laid down in 12. Cye. 148, that

“The legislature, however, may forbid the doing of an act and make its commission criminal without regard to the intent of the doer, and if such an intention appears the courts may give it effect although the intention may have been innocent,”1 citing with approval State v. Kelly, 54 Ohio St. 166 [43 N. E. Rep. 163].

In 3 Greenleaf, Evidence Sec. 21, it is also laid down that

“The rule — that ignorance of fact will excuse — would seem to hold good in all cases where the act, if done knowingly, would be malum in se. But where the statute commands that an act be done or omitted, which in the absence of such statute might bave been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute, it seems will not excuse its violation.”

In 1 Wharton, Crim. Law Sec. 108, it is also laid down that

“When a statute makes an act indictable, irrespective of guilty knowledge, then ignorance of fact, no matter how sincere, is no defense.”

Section 12414 G. C. upon which the indictment here is based, reads as follows:

“Whoever, being eighteen years of age, carnally knows and abuses a female person under the age of sixteen years, with her consent shall be imprisoned,” etc.

Here the wording of the statute admits of but one construction. It is a plainly expressed declaration, equivalent to a prohibition, against this species of vice, and its manifest purpose is to punish the act described therein, committed by persons of the ages named, and when such act is committed the crime denounced therein is complete. The same rule and reasoning also apply to other offenses defined by the statutes of this state, as well as to many federal statutes. The question of intent, therefore, is held not to be an essential or material element in the crime here charged.

It was also argued on behalf of the plaintiff in error that in order to sustain a conviction under said statute it must appear' that the party charged “knew or had reason to believe that the said Mabel Storey was less than sixteen years of age. ’ ’1 This proposition of law was put in the form of a written request on behalf of the plaintiff in error to be submitted by the trial court to the jury before argument, which request the said court refused, but said court did charge the jury, among other things, “that this law was passed for the purpose of protecting girls under the age of sixteen years, and a girl under sixteen years of age, regardless of her character, cannot consent to an act of sexual intercourse.” The action of said court in refusing to charge said request was proper for the reason stated in said charge.

As was said by Judge Shauck, speaking for the court in the case of State v. Carl, 71 Ohio St. 259, 265 [73 N. E. Rep. 463] :

“The effect of the statute is to nullify the consent of the female under sixteen years of age.”

Not unlike the question of intent, guilty knowledge is not an essential or material element of the offense here charged. The legislature by statute prohibits immorality of this character and visits severe punishment upon the offender. The object and purpose of the statute is aptly set forth by Judge Erice, speaking for the court, in announcing the opinion in the case of State v. Tuttle, 67 Ohio St. 440, 444, who says:

“The legislature concluded to come to the rescue of youthful females from the brutal assaults upon their virtue, and to-make it rape for the assailant to have carnal knowledge of one, who is either too young to forcibly resist, or whose ignorance of the wiles and blandishments of evil men may make her an. easy subject to their corrupt suggestions and persuasions. The provision was enacted for the protection of this class of our people from the lust and beguilement of designing men of maturer years and greater experience.”

Here the act of sexual intercourse was proven and the prosecutrix was shown to be under sixteen years of age, so that whatever the party charged may have been led to believe concerning her age, he knew he was over eighteen years and a married man also, and in addition to committing the crime of adultery, he was presumed to know the provisions of the statute in question, and daring to violate it, he is responsible criminally for the consequences of his act. To hold otherwise would be to put within the power of every man charged with a violation of this statute the means of defeating its object.

In Commonwealth v. Murphy, 165 Mass. 66, 70 [42 N. E. Rep. 504; 30 L. R. A. 734; 52 Am. St. Rep. 496], the Judge announcing the opinion in that case says:

“But there is a large class of cases in which, on grounds of public policy, certain acts are made punishable without proof that the defendant understands the facts that give character to his act. In such eases it is deemed best to require everybody at his peril to ascertain whether his act comes within the legislative prohibition.”'

This ease is cited with approval in State v. Kelly, supra.

Eliminating the question of force involved in the commission of rape, but as illustrating the immateriality of the assailant’s belief in the age of the party assailed, the following authorities hold, in substance, that

“One who has unlawful intercourse with a female under the age of consent is not protected by his belief as to the age of such female at the time, and he must know at his peril whether her age is such as to' make such act of intercourse rape.” Zachary v. State, 57 Tex. Cr. Rep. 179 [122 S. W. Rep. 263]; People v. Marks, 146 App. Div. [130 N. Y. Supp. 524] ; State v. Newton, 44 Ia. 45; People v. Ratz, 115 Cal. 132 [46 Pac. Rep. 915].

Without commenting on this shocking crime, we adopt the well chosen and appropriate language of the Judge announcing the opinion in People v. Ratz, supra, wherein he says-.

“The object and purpose of the law are too plain to need comment, the crime too infamous to bear discussion. The protection of society, of the family, and of the infant, demand that one who has carnal intercourse under such circumstances, shall do so in peril of the fact, and he will not be heard against the •evidence to urge his belief that the victim of his outrage had passed the period which would make his act a crime.”

The judgment of the court of common pleas is affirmed, and the case is remanded to said court for execution.

Powell, J., concurs.


source: Caselaw Access Project

author: RICHARDS, J.

license: Public Domain

text:
    BILL OF EXCEPTIONS — ERROR.
    [Lucas (6th) Circuit Court,
    December 7, 1912.]
    Wildman, Kinkade and Richards, JJ.

      Edward J. Searles et al. v. Arthur Cowdrick. Daniel C. Searles et al. v. Arthur Cowdrick. Daniel C. Searles et al. v. Augusta Cowdrick, Exrx.
    Death after Verdict.of Court Stenographer Preventing Preparation of Bill of Exceptions does not Justify Reversal.
    The death, after verdict, of the official stenographer who took in shorthand the testimony of the witnesses at the trial, and the fact that no other person is able to transcribe her notes, and the defeated party having relied on such stenographer and being unable to prepare a bill of exceptions which the trial judge will certify contains all of the evidence, does not justify a reversal of the judgment entered on such verdict.
    [Syllabus by the court.]
    Error to common pleas court.
    Appeal from common pleas court.

      Ray & Cordill, for Searles Brothers.

      Marshall & Fraser, for Arthur Cowdrick and Augusta Cowdrick, Exrx.

      Affirmed, by Supreme Court, no op., 59 Bull. 402; 91 O. S. 000.

   RICHARDS, J.

These three cases arise out of the same controversy and may be conveniently disposed of in one opinion. The original action out of which, the first ease arises was brought in common pleas by Cowdrick to recover of Searles Brothers the sum of $4557 which he claimed was due to him for services, on the percentage basis, in the erection of certain greenhouses for the defendants. The answer in that case denied the allegations o-f the petition, and set up by way of cross petition a claim for damages resulting by reason of the loss of the use of the greenhouses by delay m construction and for failing to construct them in accordance with the terms of the contract providing therefor. The claim presented in the cross petition aggregated as therein set forth $11,527.89, .The, result, in the first trial- in common pleas court was a verdict and judgment in favor of Cowdriek for $1285.20, which judgment was reversed by this court and the judgment of reversal affirmed by the Supreme Court. On a retrial in common pleas court Cowdriek recovered a verdict of $5094.80 upon which judgment was entered in that court, and the proceeding in error in the first above case is to reverse that judgment.

It appears from the record in these eases that on the last trial in common pleas of the original case, Mary Weinland, a duly appointed and regular court stenographer, .took shorthand notes of the evidence by direction of the court, and that within three days after the rendition of the verdict a motion for a new trial was filed which was overruled by the court on December 5, 1910. It appears from the record that counsel for Searles Brothers directed Miss Weinland about November 10, 1910, to get out a transcript of the evidence taken by her in said cause •which she agreed to do, and that on December 5, 1910, they again requested her, to immediately finish getting out a transcript of such evidence, but that on January 3, 1911, she died, after a short illness, without having completed said transcript, and that Searles Brothers had no knowledge of her illness. She had, at the time of her death, transcribed only some seventy-five folios of the testimony, and the whole of the testimony, if transcribed from her shorthand notes, would have made about nine hundred folios. From the peculiarity of the system which she used in writing shorthand, it was and is impossible for others to transcribe her notes. All due diligence was used by ■counsel for Searles Brothers to decipher her notes and thus procure a bill of exceptions, but because of the facts stated, it was impossible to procure a bill which the trial judge would certify to contain all of the evidence. The certificate, however, of the trial judge is that the bill of exceptions contains all of the evidence in substance produced on said trial, but it is conceded that the bill is incomplete and inaccurate and that by reason of the circumstances stated, Searles Brothers, are deprived of the right to present-to the court a true and complete bill of exceptions so as to have the case reviewed on the weight of the evidence.

The term at which this case was tried in the common pleas ended by final adjournment late in December, 1910, and on April 1, 1911, Searles Brothers brought an action in equity against Cowdriek in the common pleas court, the object and purpose of which was to set aside the verdict and judgment rendered against them, alleging as grounds therefor, the facts already stated. That case resulted in a finding and decree in the common pleas court in favor of Cowdriek to which finding Searles Brothers prosecute in this court both appeal and error. After the last trial in the court of common pleas, Arthur Cowdriek died and his widow, Augusta Cowdriek, was appointed as executrix of his last will and testament.

The cases are of more than usual interest and have demanded and received a great deal of attention by the court. Neither counsel nor this court has found any error to the prejudice of Searles Brothers in the original case, unless it arises by reason of the action of the trial court in refusing a new trial, solely on 'account of the death of Miss Weinland. ana the consequent inability of counsel to obtain a complete bill of exceptions, setting out all of the evidence. This question has been presented to us both orally and in briefs, and has been argued with much ability, the investigations of counsel having taken a wide range and their respective claims being supported by many authorities of more or less pertinency.

Any view which we take of the case may result in such a judgment as will produce an ' apparent hardship to the defeated party. If the plaintiffs in error shall be by the facts stated deprived of the right to prosecute error on the claimed ground that the verdict is not sustained by the evidence, then the judgment rendered against them in the court of common pleas is a finality. On the other hand, if the death of the stenographer and the consequent inability of the defeated party to procure a transcript of the shorthand notes shall, in and of itself be sufficient ground for granting a new trial, then Cowdrick will be deprived of tbe fruits of Ms judgment through no fault of his own, and this situation is intensified in this case by the fact that having died since the trial, his executrix would be deprived of the benefit of any additional testimony which he might be able to give on a retrial, and his presence at such trial.

The judgment rendered in the common pleas court is, of course, presumed to be regular and valid and must stand unless reversed in some method authorized by law. It is provided in Sec. 11564 G. C. that “The party excepting must reduce Ms exceptions to writing and file them in the cause, not later than forty days after the overruling of the motion for a new trial.” The general assembly in the exercise of its wisdom has provided this method for the review of a case on error wherein a bill of exceptions is necessary to raise the questions desired to be submitted to the reviewing court. By this section the duty of reducing the exceptions to writing and filing them in the cause within the time limited is imposed upon the party excepting, and not upon the stenographer. True, by a nearly universal practice followed for many years, stenographers have furnished transcripts of the testimony for use in preparing bills of exceptions, but before the statutes of Ohio provided for official stenographers, bills of exceptions were taken by the defeated party, and, as many of the older members of the bar will recall, written out in longhand in narrative form by counsel and settled as embodying all the evidence either by agreement of counsel or by decision of the court.

The right to review a ease by a proceeding in error may be granted or withheld by the legislature and on such terms as it may provide, and unless the defeated party brings himself within the provisions of the statute granting such right, he has no standing in the reviewing court. The rule is well stated in the opinion of the court by Price, Judge, in Canfield v. Brobst, 71 Ohio St. 45 [72 N. E. Rep. 459], and is again stated by Spear, Judge, in Mitchell v. State, 78 Ohio St. 347, 352 [85 N. E. Rep. 561]. The privilege of prosecuting an error proceeding does not exist as a matter of right, and can not be enlarged by tbe court, and ,a compliance with the statutory provisions, so far as the duty is imposed upon the litigant, is jurisdictional in its character. It is true that certain decisions in Ohio have granted relief against the failure to comply with certain statutory requirements in error proceedings where that failure was chargeable to the judge or clerk of courts. Such cases are Cincinnati Trac. Co. v. Ruthman, 85 Ohio State 62 [96 N. E. Rep. 1019] and Pace v. Volk, 85 Ohio St. 413 [98 N. E. Rep. 111]. It will be noticed, however, that in the last case cited, the court in the syllabus explicitly holds that the provisions of Sec. 11564 G. C., requiring that the party excepting must reduce his exceptions to writing and file them in the cause, is mandatory. In that ease the omission relieved against was a failure of the judge to sign the bill of exceptions, such duty being held .to be directory merely, so "far as the time of signing is concerned. It is argued in the ease at bar that the stenographer is an official of the court, and that the failure of the stenographer to furnish a transcript within such time as would enable the defeated party to prepare a bill of exceptions containing all of the evidence, is the failure to perform .a duty which is directory only. This argument overlooks the language of Sec. 11564 G. C. already cited in which the duty of reducing the exceptions to writing and filing them in the ■cause is east upon the party himself and not upon the stenographer, and this duty so imposed upon the party by the statute is, as held in Pace v. Volk, supra, one which is mandatory. While, in a sense, the stenographer is an official of the court and is required to furnish upon tender of fees therefor a transcript of the evidence to the party demanding it, yet the money so paid is the money of the party and becomes upon payment the property of the stenographer, and tjie transcript the property of the party ordering it. The only duty imposed by law on the stenographer is to furnish a transcript of the testimony as already stated; every other duty rests by statute on the litigant. By reason of the death of the official stenographer, the defeated party is unable to clothe this court with jurisdiction to review the case on the weight of the evidence, and the presumption being that the judgment rendered in the trial court is right, it must stand.

¥e will not undertake a review of the decisions of the various states where reversals of judgments have been sought by reason of the death of the stenographer or loss of the shorthand notes and the inability of the party, because of such facts, to procure a complete bill of exceptions. The decisions in other jurisdictions are not in harmony and frequently result from the peculiar language of the statutes or constitutional provisions. We have examined many of these decisions and find it impossible to reconcile all of them.

The course pursued by counsel for Searles Brothers in this case was the same as is pursued by counsel in other cases and the same as has been followed for many years past by attorneys throughout the state. The practice has been so universal that no criticism can arise because of the fact that they omitted to have the transcript prepared as the case progressed, nor by reason of their failure to take such notes as would make it possible to prepare a bill of exceptions without the aid of a stenographer. The trial of an action always subjects the defeated party to the possible hazard, arising out of an incident such as occurred in this case, of being unable to procure such a bill of exceptions as the trial judge will certify to contain all of the evidence and this situation could hardly be guarded against by human foresight.

Counsel for the plaintiffs have contended vigorously at every stage of this litigation that the claims of their clients, Searles Brothers, were meritorious in every’ respect, and with great industry they have exhausted every resource in an effort to avoid the serious results attending the case by reason of the death of the official stenographer. It is difficult to see how they could have protected the interests of their clients more effectually in any other way. This case makes quite pertinent the language of Johnson, Judge, in Michael v. Bank, 84 Ohio St. 370, 383 [95 N. E. Rep. 905; 38 L. R. A. (N. S.) 220], in which he says:

“It is insisted that this case presents a great hardship, and that in the result of the original 'action, injustice was done the defendants. That may be true. Courts at their best can only approximate exact justice. Where such hardships and imperfections seem to be apparent, courts would gladly redress them if a rule could be contrived that would remedy the evil without producing worse conditions.”

The judgment in the first case will be affirmed. In the appeal case there will be a finding and decree for the defendant. The last error case will be dismissed.

Wildman and Kinkade, JJ., concur.


author: JONES, O. B., J.

text:
    RAILROADS.
    [Hamilton (1st) Court of Appeals,
    March 21, 1914.]
    Swing, Jones and Jones, JJ.

      John T. Grunkemeyer, Admr. v. Pittsburgh, C. C. & St. L. Ry.
    Failure to See Woman Struck by Locomotive at Street Crossing does not Overcome Presumption of Her Stopping, Looking and Listening.
    In an action against a railway company for the death of a woman found dead near a street crossing, the failure of anyone to see her struck by a locomotive or observe the manner of her death, is not ground .for taking the case if the circumstances make probable the fact that she was struck by the locomotive which passed at about the time she would have reached the crossing, and the presumption of law is that she stopped, looked and listened before attempting to cross the track.
    Error to common pleas court.

      Littleford, James, Ballard & Frost, for plaintiff in error.

      Maxwell & Ramsey, for defendant in error.

       Affirmed, no op., P. C. C. & St. L. Ry. v. Grunkemeyer. 91 O. S. 000; 60 Bull. 184.

   JONES, O. B., J.

This action was brought to recover damages for the alleged negligent killing of plaintiff’s intestate, Frances Grunkemeyer. At the close of the testimony of plaintiff below- the court directed a verdict for the defendant because “the court is Of the opinion that no person knows how this unfortunate accident occurred; that there will be nothing left for the jury to do but to guess how this unfortunate girl was killed, and the .court can not permit the jury to do that, and therefore directs you to return a verdict for the defendant.”

The testimony in the case tended to show that the decedent with her uncle, John Scherrer, at 8:10 P. M., left her home on Gladstone avenue five doors west of Harrell street where it crosses the double tracks of defendant company’s steam railway, which are upon Gladstone avenue, the north track being for west bound traffic and the south track for the east bound traffic; that defendant’s engine No. 8964 backed, tender forward, aeross Harrell street at about 8:11 P. M., going on the south track; that at or about the same time a freight train crossed Harrell street on the west bound track, and that other trains crossed Harrell street on the west bound track at 8:12, 8:17 8:25 and 8:46 respectively; that a Norfolk & Western train crossed on the east bound track at 8:54 P. M.

Plaintiff claims that his intestate was killed by defendant’s engine No. 8964. Her body was found along the south side of the east bound track, several feet east of Harrell street. It was first seen by a boy, about 8:30 P. M.; and the remains of Scherrer were found badly mutilated on the-.track eastward from Harrell street at a distance of about 150 feet. This body was not found, nor was the girl’s body identified as such until after 9 o’clock. The man’s body was badly mangled, as though it had been passed over by a train of cars, and the girl’s body showed a wound on the head. The evidence is sufficient to reasonably sustain an inference that both were killed by engine No. 8964. They would naturally have passed along the north side of Gladstone street to Harrell street and south on Harrell street across the railroad tracks on their way. to Basten avenue, as the ordinary means of leaving the Grunkemeyer home, and they would have reached the crossing at just about the time this engine passed. -

The position of the bodies shows a strong probability that they were struck on the south track rather than the north track, and théy must have been struck by engine No. 8964 because it was the only train on the south track between the time they left their home and'the time the girl’s body was first seen, which was before the Norfolk & Western train had passed along the south track.

An' additional circumstance that is convincing upon this subject is that’ a fragment of flesh was found by the men at the roundhouse on' engine No. 8964, on the brace on the inside of the cow-catcher where it would naturally have lodged, when we consider that the engine was going backward.

Counsel for defendant have argued that the deceased may have been struck by one of the trains on the west bound track rather than by the train on the south track, and that they might possibly have been struck by the west bound freight and hurled against the east bound locomotive on the other track. The position and condition' of' the bodies will show that this theory is improbablé. ■ If they had been struck by a west bound train the bodies would naturally have been carried west of the crossing instead of as they were, east of the crossing, and the girl’s body would have been either between or upon the tracks and more nmtilated;

Wé recognize the rule urged by the defendant, that where one or two or more things may have induced an accident, for one of which the defendant is responsible and for the other of which he is not, it is not permissible to speculate between the several causes and’ to find that defendant’s negligence was the real' cause, in- the absence of satisfactory foundation in the evidence for that conclusion, Patton v. Railway, 179 U. S. 658 [21 Sup. Ct. Rep. 275; 45 L. Ed. 361] ; Smith v. Railway, 200 Fed. Rep. 553 [119 C. C. A. 33] ; Cleveland T. & V Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142]. But the evidence as already discussed convinces- the court that this caséis not within that- rule. • ' ■

There is evidence tending to show that - the railroad com-, pany was negligent in the operation of this engine; It was run-. ning backwards without a lookout and with no headlight in front, and nothing but an ordinary white lamp hanging on the tender. There is testimony from witnesses in the neighborhood that they heard no bell or signal when it crossed Harrell street. The evidence reasonably tended to show that it was running at a speed greater than the ordinance limit of ten miles per hour, showing that it ran a distance of two and a half miles, which included the crossing in question, at an average speed of from twenty-two to thirty miles per hour — although there was no testimony to show that it did not slow up at this crossing.

Contributory negligence was pleaded by the defendant in its answer, but there is no testimony to show it as a matter of law.

“In the absence of evidence to the contrary, there is a presumption that one who was killed while crossing a railroad track at night, stopped, looked and listened before attempting to cross the track.” Baltimore & P. Ry. v. Landrigan, 191 U. S. 461 [24 Sup. Ct. Rep. 137; 48 L. Ed. 262].
“In an action for negligent death, decedent is presumed to have used reasonable care for his own safety, in the absence of evidence to the contrary.” Rothe v. Pennsylvania Co. 195 Fed. Rep. 21 [114 C. C. A. 627].

The fact that the freight train on the north track went west at practically the same time that this engine went east on the south track undoubtedly confused plaintiff’s intestate and her companion in such a way as to account for the aeeident.

The rule to be observed by the trial court, upon a motion for a directed verdict, has been so well stated by Ranney, J., in the opinion of the court at pages 646 and 647 in the ease of Ellis v. Insurance Co. 4 Ohio St. 628 [64 Am. Dec. 610], that we quote the following words of the opinion:

“■When all the evidence offered by the plaintiff has been given, and a motion for a nonsuit is interposed, a question of law is presented, whether the evidence before the jury tends to prove all the facts involved in the right of action and put in issue by the pleadings. In deciding this question, no finding of facts by the court is required, and no weighing of the evidence is permitted. All that the evidence in any degree' tends to prove-, must be received as fully proved; every fact that the evidence and reasonable inferences from it, conduces to establish, must be taken as fully established.
“The motion involves not only an admission of the truth of the evidence, but the existence of all the facts which the evidence conduces , to prove. It thus concedes to the plaintiff everything that the jury could possibly find in his favor, and leaves nothing but the question whether, as a matter of law, each fact indispensable to the right of action has been supported by some evidence ? It it has, no matter how slight it may have been, the motion must be denied; because it is the right of the party to have the weight and sufficiency of his evidence passed upon by the jury — a right of which he can not be deprived, and involving an exercise of power for which without his consent, the court is incompetent. But where he has given no evidence to establish a fact, without which the law does not permit a recovery, he has nothing to submit to the jury; and the determination of the court, that the fact constitutes an essential element in the right of action, necessarily ends the ease.”

This rule has been repeatedly stated by the Supreme Court, in many cases, among which we cite: Stockstill v. Railway, 24 Ohio St. 83; Snell v. Railway, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276] ; Dick v. Railway, 38 Ohio St. 389; Gibbs v. Girard. 88 Ohio St. 34 [Ann. Cas. 1914 C.1082].

The case, therefore, should have been submitted to the jury on the evidence, under proper instructions by the court, and the court erred in granting defendant’s motion for an instructed verdict.

Judgment reversed, and cause remanded for a new trial.

Swing and Jones, E. H., JJ., concur.


text:
    ELECTRICITY — MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Court of Appeals,
    February 5, 1915.]
    Swing, Jones and Jones, JJ.

      Cincinnati v. Diamond Light Co.
    Council not Abutting Property Owners Have Control Over the Placing of Electric Wires In the Streets.
    Electric wires, or conduits for carrying such wires, can not be placed in the streets, alleys or public places of a municipality, for the purpose of distributing an electric current for commercial purposes, relying upon the consent of the owners of abutting property without obtaining the consent of council.
    [Syllabus by the court.]
    W. M. Schoenle, city solicitor, and Saul Zielonha, assistant, Miller Outcalt and Lawrence Maxwell, for plaintiff.

      Michael Muller and Joseph W. O ’Hora, for defendant.

      Motion in Supreme Court to certify record overruled March 9, 1915, Diamond Light Co. v. Cincinnati, 60 Bull. 79.

   JONES, O. B., J.

The city of Cincinnati by its solicitor under the direction of the city council brought this action in the court of common pleas against the defendant, seeking to enjoin it from laying, •constructing and maintaining wires and conduits in public streets and alleys for the purpose of conducting electricity for power and lighting for commercial purposes in said city.

The defendant, the Diamond Light Company, is a corporation organized and existing under the laws of Ohio, and has ■constructed and installed an expensive and effective plant, on the west side of Walnut Street, between Fifth and Sixth streets, in the city of Cincinnati, for the generation and distribution of electricity, and is engaged in the business of generating and supplying electric current for light and power for commercial purposes to consumers within that city.

In furtherance of such purpose, without any consent from the council or other officers of the city of Cincinnati, said company has laid wires, and constructed conduits across the following public ways in said city: Vine street, between Fifth and Sixth, streets; Hatters alley, between Walnut street and Lodge (Fountain) alley; Lodge alley, between Hatters and Thorp alleys ; and Thorp alley, between Vine street and Lodge Alley, below the surface of said streets and alleys without disturbing the pavements thereof. It also claims the right to use for such wires a conduit which had been constructed connecting premises on the west side of Walnut street with premises directly opposite on the east side of said street, known as the Commercial-Tribune building. It also claims the right to further extend its conduits and wires under the streets and alleys of said city for the purpose of supplying electrical current for commercial purposes to consumers.

Streets, alleys and public ways are held in trust for the public for the use for which they were dedicated or acquired, and subject to the. property rights of the abutting owners they are for such public use under the absolute control of the legislative power of the state, Louisville & N. Ry. v. Cincinnati, 76 Ohio St. 481 [81 N. E. Rep. 983], Electric, light companies,, in connection with telephone and telegraph companies, are authorized to use and occupy the streets and highways of the state, county or municipality, under the provisions of title 9, div. 2, sub-div. 1, chap. 2 of the General Code (Secs. 9170 to-9198).

These laws were first enacted for telegraph companies and later were extended and applied to telephone companies by Sec. 3471 R. S. (Sec. 9191 G. C.), and afterwards were applied to electric light and power companies by See. 3471a R. S., which reads as follows:

“The provisions of this chapter, so far as the same are applicable, except section three thousand four hundred and sixty-one, shall apply also to any company organized for the purpose of supplying the public and private buildings, manufacturing establishments, streets, alleys, lanes, lands, squares and public places with electric light and power or automatic package carrier; and every such company shall have the same powers, except those given by said section three thousand four hundred' and sixty-one, and be subject to the same restrictions, as are herein prescribed for magnetic telegraph companies. Provided, however, that in order to subject the same to municipal control alone, no person or company shall place, string, construct or maintain, any line, wire, fixture or appliance of any kind for conducting electricity for lighting, heating or power purposes through any street, alley, lane, square, place or land of any city, village or town, without the consent of such municipality; and this inhibiton shall extend to all levels above and below the surface of any such public ways, grounds or places, as well as along the surface thereof; but this inhibition shall not be applicable to any rights which have heretofore been received and exercised through proceedings of any probate court. Any person or company violating any portion of the inhibition aforesaid shall be deemed guilty of a misdemeanor’, and shall, upon conviction thereof, be fined in any sum not less than one hundred and not more than five hundred dollars. The means thus created for enforcing said inhibition shall be held to be only cumulative to any other lawful means open to the municipality by way of injunction or otherwise; and this act shall apply to actions and causes of action or proceeding named in section seventy-nine of the Revised Statutes, except such as may be pending on error, and not on appeal, in any circuit court of the state.”

The substance of this section now appears in Sees. 9192, 9193, 9194 and 12644 G. C.

By force of these statutes, therefore, permission is given to an electric light company such as the defendant to use the streets and public ways in a city or village, but such use is placed under municipal control, and can be had only with the consent of the municipality, subject to such conditions as it may see fit through its council to impose.

Under the provision of Sec. 9178 G. C., which applies to telegraph or telephone companies, where the company fails to agree with the municipal authorities of the city or village as to the mode of use of the streets and public ways it is authorized to bring a proceeding in the probate court to procure from such court an order or judgment directing in what mode its line shall be constructed. This provision has been upheld in Zanesville v. Telegraph & Tel. Co. 64 Ohio St. 67 [59 N. E. Rep. 781; 52: L. R. A. 150; 83 Am. St. Rep. 725]. But by the express provision of Sec. 9192 G. C., this proceeding is not applicable to an electric light company. And it has been held in Queen City Tel. Co. v. Cincinnati, 73 Ohio St. 64 [76 N. E. Rep. 392], that such proceedings in the probate court could not be had for the purpose of authorizing the construction and maintenance of underground wires and pipes or conduits for a telephone company, but that the consent of the city was an essential condition for their construction. In the opinion of the court, at page 81, the following language is used:

“But taking the sections of the statute as a whol¿ and considering the conditions imposed on the exercise of such right, it is not to be inferred that the municipal authorities are stripped of all power to finally determine any matter relating to the general subject. It will be remembered that by section 2640 those authorities are given the control of the streets and are required to keep them open, in repair, and free from nuisance. It is to be noted, also, that by no statute is power given any tribunal to authorize permanent structures upon or in, or the use of any street, which will incommode the public, the-, dominant purpose being to facilitate public travel and transportation. Cincinnati Inc. Pl. Ry. v. Telegraph Assn. 48 Ohio St. 390; Lake Shore & M. S. Ry. v. Elyria, 69 Ohio St. 414. It seems, therefore, clear that there is no power in the probate court to authorize or direct the construction of conduits in subways under the streets of a city in the absence of consent by the municipal authorities. ’ ’

This principle has been recently re-affirmed in the case of Columbus C. Tel. Co. v. Columbus, 88 Ohio St. 466. The court in its opinion, at page 468, using the following language:

“It has been decided by this court that ‘the statutes of Ohio do not confer power on the probate court to grant to a telephone company the right to put its wires and apparatus in. conduits under the streets of a city in the absence of consent by the municipal authorities.’ Queen City Tel. Co. v. Cincinnati, 73 Ohio St. 64.”

It is contended, however, by the defendant, that the consents of abutting property owners provide sufficient authority for the defendant to lay, construct and maintain said wires and conduits in the streets. There is no question but that an owner of abutting property has a certain right to the use of the land in a public street for access, light and air to his property, and possibly other uses not inconsistent with the rights of the public for travel and other purposes of such highway. This interest of adjoining lot owners in the street on which their land abuts has been recognized as a property right which is protected by the Constitution, by our Supreme Court, in numerous oases. Crawford v. Delaware, 7 Ohio St. 459; Cincinnati & S. G. Ave St. Ry. v. Cumminsville, 14 Ohio St. 523; Lawrence Ry. v. Williams, 35 Ohio St. 168; Daily v. State, 51 Ohio St. 348 [37 N. E. Rep. 716; 24 L. R. A. 724; 46 Am. St. Rep. 578]; Callen v. Light Co. 66 Ohio St. 166 [64 N. E. Rep. 141; 58 L. R. A. 782].

The question of the right of the owner or owners of property, located on opposite sides of the street, to connect such property for their own purposes by an electric wire, has been considered in the cases of Henry v. Cincinnati, 25 O. C. C. 178 (1 N. S. 289), and Butler v. Cincinnati, 25 O. C. C. 772 (2 N. S. 376). But it is not necessary to consider or discuss that question in ibis ease, as no property owner is a party here, and the defendant does not claim on behalf of any property owner, or that in laying, constructing or maintaining any of the wires or conduits it represented any property owner as his agent, or acted for or on behalf of him, but insists that the wires and conduits were laid and maintained by it with the consent or permission of the property owners for the purpose of its business. The defendant, therefore, relies upon the consent of the abutting property owners, whch it insists can be taken instead of the consent of the municipal authorities. Whatever the rights of a property owner on his own behalf might be, there is no authority of law to substitute his consent for that of the city. The evidence that has been introduced goes only to the extent of a permission or consent on the part of the owners of property, to the construction and use of such wire but does not in any case pretend to operate as á grant or conveyance of property rights in the street or alley to such defendant.

■ Defendant also claims that the enactment by council of the general ordinance No. 4285, providing general terms and conditions regulating the business of electrical illumination within its corporate limits, has in effect provided a general consent to all such companies and exhausts the subject of regulations and conditions, and that any company can, by observing the terms of such ordinance in all particulars, carry on such business with all necessary rights in the public highways. This ordinance is found as See. 647 on page 265 of the Code of Ordinances of Cincinnati (1910-1913), and also appears at page 407 of the Code of Franchises of the city of Cincinnati (1914). It lays down general provisions which shall be applicable to all such companies and the first paragraph of the ordinance shows, in its terms, that it is not intended to be a' general grant to all •companies, but simply states general provisions that shall apply to special grants. The opening paragraph is as follows:

‘ ‘ That whenever permission is by ordinance granted to any person, company or corporation to engage in the business of electrical illumination, it shall be under the following express terms and conditions.”

This ordinance would not .prevent council, in making any particular grant, from imposing any other provisions and conditions not found therein, in addition to or different from those of the ordinance. This ordinance can not be construed as granting a consent to the defendant company within the terms of the statute.

Counsel for defendant have argued with great ability that the word “through,” as it appears in Sec. 9193 G. C., should be •construed so as not to include “across,” but rather to inhibit the laying of wires “along” the streets and alleys of the city, unless the terms of the section are complied with. In the interpretation of a statute words in common use are to be construed in their natural, plain and ordinary signification. And if the words are free from, ambiguity and doubt,, and ■ express plainly, clearly and distinctly, the. sense of. the .framers .of the instrument,. there .is no occasion to resort ,to other .means of interpretation. Slingluff v. Weaver, 66 Ohio St. 621, 627 [64 N. E. Rep. 574], The word “through” includes.both “along” and “across.” It is defined in the Century Dictionary: “from one side or end to the other side or end”; and in the Standard Dictionary: “from one end, side or surface to the other.” The statute must, therefore, be construed to apply to such wires and conduits as those which have been laid and constructed by the defendant.

It is further ar'gued on behalf of defendant that the city, by the refusal of its council to act upon the application of the defendant for its consent to the laying of the wires and conduits mentioned in the petition, has practically nullified the provisions of Sec. 9171 G. C., which prohibits exclusive rights, and that therefore the plaintiff does not come into court with clean hands; that the plaintiff has not shown any injury to itself or to the public; that the Union Gas & Electric Company is the moving spirit in this litigation and any damage to it should not be considered; and -that the plaintiff has entirely. failed to establish that clear .and unexceptional right necessary to entitle it to the extraordinary remedy by injunction which it seeks.

The answer of - the defendant- admits that the action was brought at the direction of the' council of the city of .Cincinnati, and- avers that the council has granted the right to. different firms, persons and corporations to cross.the streets, and alleys of said city, above and below the surface thereof, ..with wires and conduits for the conveyance of electrical current and for other purposes for their own and for commercial uses and.these facts appear from the evidence. • .

-. . The care, supervision and control of the streets is vested in . council by Sec. 3714 G. C., and Sec. 9194 gives express authority - to enforce the terms of Sec. 9193 by. way of in junction in,addition to the penalty provided by Sec. 12644 G. C., and other remedies that might be authorized by law. The fact that the Union Gas & Electric Company may have vital interest in the matter and may have exerted potent influence upon the members of council in refusing to grant the desired consent to the defendant company and also had its counsel assist the city solicitor in the presentation of this case, does not change the legal status of the city of Cincinnati in its right to insist upon the enforcement of this statute. The question • as to whether consent of the city should be given to the defendant is a matter of legislative policy to be determined by the council and officers of the city, and is not a judicial question for the determination of the court.

If the action of council in refusing to grant consent to a company to lay wires and construct conduits for electric lighting, results to the disadvantage of the citizens and property owners of the community, that is a matter that can be rectified by a change in the personnel of such council and public officials. Where the legislative authority has exercised its power in a manner that might be considered unwise or against the interest of the city or its citizens, the judiciary are not for that reason authorized to intervene and substitute the views of the court for those of the municipal authorities. The determination of whether consent should or should not be given, is vested in the council of the city. It has refused such consent, whether wisely or unwisely, and no fraud or improper methods on its part having been shown by the evidence, it is within the power of the city to insist upon its authority under the statute, and rather than take the matter into its own hands by removing the wires and the conduits or undertaking to cut them off, it has very properly submitted the question of its rights in the premises to the court by asking for an injunction. The law having provided that no such wires and conduits shall be laid or constructed without the consent of council, the injunction sought must be allowed.

Swing and Jones, E. H., JJ., concur.


author: JONES, E. H., J.

text:
    DIVORCE AND ALIMONY.
    [Hamilton (1st) Court of Appeals,
    January, 1915.]
    Swing, Jones, E. H., and Jones, O. B., JJ.

      Lucile Lawson Baker v. Thorne Baker.
    1. Decree for Alimony Distinguished from Ordinary Judgments. ,
    Allowance of alimony is a matter entirely regulated by statute and, as to amount, time and manner of payment, calls for the exercise of sound discretion by the court in fitting its judgment to the facts in each particular case.
    2. Alimony Made to Wife Dependent Upon Support of Divorced Husband Modified Upon Her Remarriage.
    Alimony is an allowance, for her support out of the estate of her husband, upon her subsequent marriage to another husband, becomes unnecessary and its payment inconsistent and incompatible with accepted usages respecting the institution of marriage, hence, a decree for alimony in gross sum, payable in installments running over a period of four years, will be deemed ordered in contemplation of the wife’s remaining single and dependent upon her husband’s support, and as such is subject to modification upon her voluntarily remarrying.
    Modification of decree.

      Harmon, Colston, Goldsmith & Hoadly, for plaintiff.

      Healy, Ferris & McAvoy, for defendant.

      For former decree, see Baker v. Baker, 34 O. C. C. 376.

   JONES, E. H., J.

On February 2, 1914, a decree was entered in the above case by which there was awarded to the plaintiff as permanent alimony the sum of $7,500 to be paid in sixteen equal quarterly installments beginning on May 1, 1914, each of said installments amounting to the sum of $468.75.

The cause came into this court on appeal from the court of insolvency, which court some time prior to said February 2, 1914, had granted to the plaintiff a divorce for the aggression of the defendant. On December 22 last, the plaintiff was married to one James A. Atwood, Jr., and now resides with her husband in the state of Connecticut. On January 11, 1915, the •defendant filed an application or petition herein setting forth the facts above stated, and asking that the terms of said decree he modified and further payment of alimony as ordered therein be discontinued.'

The facts above stated appeared from the evidence, and .also that the plaintiff’s present husband, Mr. Atwood, with whom she is now living, is supporting her and is able to continue so to do.

It is important to note that the allowance to the plaintiff •was made solely for her support. There was no claim that she had brought anything in the way of property to the defendant upon her marriage to him, or that she had in any way con-tributed to the accumulation of any property by him. It has been argued with great ability that this court is without power to modify its former decree, which, it is claimed, was in effect a judgment in favor of plaintiff, with time of payment postponed for the convenience of the defendant. In any other kind of a •case except an action for alimony this claim could be urged with greater force and would be entirely convincing. But a •decree for alimony has not all the elements of an ordinary judgment. The matter is regulated entirely by statute in Ohio, and has ever been recognized by our courts as a subject which calls for the exercise of sound discretion on the part of the court in fitting its judgment, as to the amount, time and manner of payment, to the facts as they appear in a particular case.

Alimony is an allowance made to a woman upon a decree of divorce given her for her support out of the estate of her husband. This plaintiff now has another husband and is, presumably, happily living with him. While her remarriage is -entirely proper and may be regarded as highly commendable, she must have understood upon re-entering the matrimonial ¡state that such a step would make any further support, voluntary or involuntary, from hér former husband inconsistent and incompatible with accepted notions respecting one of our most sacred institutions, and that therefore the decree in her favor ¡against him might be affected by her new relations.

While not so expressed in the decree, the payment of the sum in installments running over a period'of four years was so ordered in contemplation of her remaining single and dependent upon her divorced husband during that time. The changed situation and relation into which she has voluntarily?" entered necessarily suggests and indeed requires, to our minds,, a change or modification of this decree.

In view of the fact that the sum allowed was made payable in sixteen equal installments, and that the payment of the first installment was postponed for three months after the entering of the decree, during which time she was compelled tersupport herself, and taking into consideration that the first": payment ordered should probably have been made greater than? the subsequent installments, and that at the time this application was filed an installment was almost due, we are of the opinion that in allowing this application and granting the prayer thereof we should do so upon the condition that the defendant pay to her the sum of $2,000,' and that upon compliance therewith he should be discharged from further payment.

The former decree may be modified accordingly.

Jones, O. B., J., concurs.

Swing, J., dissents.


text:
    NEGLIGENCE — TELEGRAPHS AND TELEPHONES. '
    [Lucas (6th) Circuit Court,
    June 29, 1912.]
    Wildman, Kinkade and Richards, JJ.
    (Wildman, J., not participating.)
    Lucas Co. (Comrs.) and Wood Co. (Comrs.) v. Claude D. English.
    1. Duty of Telephone Lineman on Walk Examining Wires on Poles to Consider Condition of Walk, Question for Jury.
    The fa,ct that a telephone lineman was performing a legitimate duty in looking up and closely watching the telephone wires to see whether they touched each other when swayed by the wind, did not excuse him from exercising ordinary care as to where he stepped and the condition of the walk over which he was passing; and where one so engaged stepped into a dangerous hole and was severely injured, a finding by the jury under proper instructions by the court that he was exercising proper care at the time, and the verdict and judgment based thereon, will not be disturbed by a reviewing court.
    2. Exhibits Offered in and Considered as Evidence on Trial, but not Marked as Exhibits Regarded as in Evidence on Review.
    Exhibits which were offered in evidence and as to which a witness was examined and cross-examined and which were shown to the jury and referred to by counsel on both sides as being in evidence, will be regarded by a reviewing court the same as if formally offered in evidence although not marked as exhibits in the case.
    [Syllabus approved by the court.]
    Error.

      Holland C. Webster, Pros. Atty., Lewis E. Mallow, Assist. Pros. Atty. of Lucas Co., and Charles Hatfield, Pros. Atty. of "Wood Co., for plaintiffs in error.

      Edgar M. Flowers and Marshall & Fraser, for defendants in error.
   RICHARDS, J.

In tbe court of common pleas Claude D. English recovered a verdict and judgment in tbe amount of $7,500 against tbe county commissioners of Lucas county and tbe county commissioners of Wood county for personal injuries claimed to bave been suffered by him by reason of the. negligence of the defendants. The injury occurred on January 3, 1911, between 4:30 and 5 o’clock P. M. as plaintiff was walking on the highway nearing the approach on the Wood county side, of the bridge crossing the Maumee river at the village of Maumee. The dividing line between the two counties is the center of the river at the place where this bridge is constructed, and the bridge and its approaches appear to have been constructed and maintained by joint action of the boards of county commissioners of the two counties. The level of the bridge is about eight feet above the level of the county road on the -Wood county side of the bridge, and the bridge proper is reached by a sloping approach constructed of earth. Along the up-river side of the bridge a wooden sidewalk or approach is constructed, perhaps twenty feet in length, being built over the up-river slope of the bank of earth. Several of the planks of which this walk was , constructed were missing on the occasion of the injury, and the approach to the bridge proper had been defective in that respect for a long period of time, some witnesses stating it as long as two or three years.

The plaintiff was a telephone lineman and upon the occasion of his injury was in the performance of his duty, walking along under the wires which were • strung on poles, the wires when they reached the bridge being strung on arms across the bridge. Trouble in the transmission of messages had been experienced and he was watching the wires to ascertain whether, in the high- wind that was blowing, the wires were being blown together so that they touched and thereby interfered with the use of telephones. Snow and sleet were falling at the time, and it was growing dark so that he could, with difficulty, see the wires but with the purpose mentioned, he was walking under the wires and approached the bridge. He reached the sidewalk where the planks were missing, stepping into the hole and falling in such a manner as to be very seriously injured. The hole into which he fell was several- feet square and perhaps ten inches deep at its shallowest place, growing much deeper at the. other side by reason of the sloping embankment over which the walk had been constructed. The stringers under the walk were two inches'thick and' ten inches wide, and were placed edgewise, being built of this heavy material for the purpose of supporting the walk along the side of the sloping embankment.

It is contended by plaintiffs in error that the verdict is excessive and is not sustained by sufficient evidence, and that the court erred in not directing a verdict for the county commissioners, and in overruling a motion for a new trial, and that the judgment should be reversed'by reason of misconduct of plaintiff’s counsel during the argument of the case in the trial court.

It will not be necessary to dispose separately of all the claimed grounds of error. The ease merits and has received a very careful examination of the entire record. Some conflict exists in the evidence as to the extent and permanency of the injuries suffered by the plaintiff, and much expert evidence was introduced bearing upon that matter. The evidence is such that a jury would be entirely justified in finding the injuries to be permanent, and of a very serious character. We do not feel justified in disturbing the verdict on the claim that it is excessive, nor are we able to find from the record that the verdict is not sustained by the evidence. Much insistence is placed by counsel for the county commissioners on the claim that the plaintiff was guilty of contributory negligence, directly producing the injuries suffered by him, in that he was following the wires with his eyes instead of watching the walk in front of him, as he proceeded toward the bridge. He was, of course, in the performance of a legitimate business, but was not relieved thereby from the duty to exercise ordinary care under all the circumstances of the case. Whether he did do so was left fairly to the jury, under appropriate instructions from the trial court, and we do not, therefore, feel at liberty to disturb the verdict on the ground that it is not sustained by sufficient evidence. It may be noted that no doubt whatever exists that this defect was one which was extremely dangerous to pedestrians, and the walk had clearly been in this defective condition for a long period of time so that the defendants had or should have had, in the exercise of ordinary care, full notice of the same.

Another ground upon which it is sought to have the judgment reversed is the claimed misconduct of counsel for plaintiff in the argument of the case to the jury. It appears from the bill of exceptions that a witness, named Dr. Rhonehouse, had been subpoenaed on behalf of the plaintiff, and was not used by him, and that later this witness was used by the defendants, and upon his attempted cross-examination by counsel for the plaintiff, certain of his evidence was excluded as not being a proper examination at that stage of the case. This exclusion of his evidence occurred by reason of the objection of counsel for the county commissioners. These facts were alluded to by counsel for the plaintiff in his argument to the jury, to which body he propounded the question “Who is responsible for him not testifying?” Counsel was thereupon stopped by the court but proceeding further stated that if counsel for the defendants had not objected, Dr. Rhonehouse would have answered. The court stopped any further reference to this matter, and it nowhere appears in the record that the jury were informed what the testimony of Dr. Rhonehouse would have been if he had been allowed to answer. It does appear that he had been subpoenaed by the plaintiff and placed upon the witness stand by the defendants. It further appears that he had treated the plaintiff as a physician for some considerable time following his injuries. The orderly administration of justice would have been better served if counsel had omitted any reference to this matter in his argument to the jury, but no prejudicial error resulted from what was said.

We have examined this case and passed upon the material assignments of error as if the bill of exceptions contained all of the evidence. It may be doubted, however, whether the condition of the record is such that we would be entitled to pass upon the weight of the evidence, by reason of the fact that certain exhibits referred to during the trial are not attached to the bill. Much evidence was offered relating to certain X-ray plates taken of various portions of the plaintiff’s body by a witness, Harry W. Dachtler, who describes his profession as that of a Roentgenologist. He had taken numerous X-ray pictures, some at the request of the plaintiff and some for the defendants, and while upon the witness stand and under examination in chief by counsel for plaintiff, stated these facts and referred to the plates taken at the request of the plaintiff as Nos. 5732, 5733, 5734 and 5855. . He then stated that he had plates which he took for the defendants but did not have them with him. Counsel for plaintiff then said “We offer those plates in evidence.” If the record stopped at this point, some doubt might well exist as to the plates referred to in the offer made by counsel ■ for plaintiff. The cross-examination of the witness, however, was immediately commenced, and during that cross-examination at various places the plates taken upon the request of the plaintiff were, referred to as being in evidence and were shown to the jury, who examined the same by means of an illuminating box with lights behind a ground glass, for the purpose of having a more accurate and thorough examination. This witness, after having been fully qualified as a,Roentgenologist testified in detail as to the facts shown by these plates, and the bearing they had upon the extent of the injuries suffered by the plaintiff and the condition of his body. He was also permitted to state his opinion on these matters. The plates thus became evidence of a very material character, and we think in view of the fact that the plates taken at the request of the plaintiff were referred to by counsel for both sides as being in evidence, and shown to the jury and examined by them, they must be treated as if formally offered in evidence although not marked as exhibits in the case. While the absence of these exhibits would perhaps prevent this court from considering the question of the weight of the evidence, we have, as already stated, examined the entire record and find no prejudicial error manifest therein.

The judgment of the court of common pleas will be affirmed.

Kinkade, J., concurs.
      Affirmed, no op., Lucas Co. (Comrs.) v. English, 88 O. S. 561.


author: JONES, T. A., J.

text:
    SCHOOLS.
    [Pike (4th) Court of Appeals,
    June 26, 1913.]
    Jones, Walters and Sayre, JJ.
    Benton Twp. (Bd. of Ed.) v. Parker, an Infant, etc.
    Teacher cannot Recover for Janitor Services Quantum Meruit nor for Excess Days Taught in Place of Holiday Vacations.
    Without any agreement with the board of education therefor, a teacher performed service as janitor in connection with his school duties. Having dismissed school on certain holidays during the school term he substituted and taught other days, upon requirement of the board, “to make up for said holidays.” Held: He can not recover as upon a quantum meruit for the janitor service; nor for the prorated amount of his stipulated monthly salary for the excess days taught. (The second proposition of syllabus in Reid v. Board of Education, 16 Dec. 414, disapproved.)
    [Syllabus by the court.]
    Error.

      John A. Eylar, for plaintiff in error.

      Daugherty & Moore) for defendant in error.
   JONES, T. A., J.

This action is in the court of appeals on both petition and cross petition in error from the court of common pleas.

The petition of the infant, Earl Parker, contains two causes of action. In the first he alleges he was employed to teach school for the school year of 1911-1912 and that he taught the same for eight months; that defendant failed and neglected to employ a janitor, and that he was compelled to and did the janitor work in connection with his school duties. He seeks judgment for the reasonable value of such janitor work.

The second cause of action alleges the employment, for the term of eight months, at the rate of $40 per month; that he dismissed school during. the term of five holidays, and that thereafter the defendant compelled him to teach, and that he did “teach school for five days to make up for said holidays.” He asks judgment for $10. This cause of action contains no allegation of reasonable value. The defendant interposed a general demurrer to the petition and filed an answer which alleged that plaintiff presented no bill for his services and that he waived his claim of compensation for services. •

The case was tried to the court upon an agreed statement of facts. The agreed statement substantially contains the facts alleged in the petition; it, however, states that the contract did not require the teacher to render janitor services; that the contract was “for the actual time he was employed in the school room and that plaintiff did not present his claim before bringing his suit.”

The court below found for the teacher as to the janitor service, and against him for the extra service in the second cause of action set forth.

Section 7690 G. C., empowers boards of education to employ janitors and to fix their salaries.

Section 7707 G. C., provides that no teacher shall be required to do janitor work, except as mutually agreed upon by special contract, and for compensation in addition to that received by him for services as teacher.

The contract in question was silent as to the janitorship.

The claim for services is founded upon a quantum meruit arising from an implied contract. This claim is not well founded. The statute expressly provides that contracts for janitor services must be mutually agreed upon by special contract, and thereby excludes the application of implied contract in this particular case.

Counsel for the teacher rely upon the case of Reid v. Board of Education, 16 Dec. 414 (6 N. S. 526). We agree with the learned judge in that case in the application of a liberal construction in order to carry out the evident policies of our school laws and to conserve the interests of the school youth of our state. But in the application of this rule of construction the learned judge failed to consider other important considerations in the ease.

In the first place, it may be said, if the statutes were open for construction, the interests of the public are safeguarded in cases of this kind by Sec. 7610 G. C. This section provides that if..a board, of education of any. district .fails to provide school privileges for the youth of the district or to provide equitable school advantages for the youth, the county commissioners, upon being advised thereof, ■ “shall perform any or all of such duties and acts, in the same manner as the board of education by this title is authorized to perform them.”

In the making of contracts and in administering public funds the legislature has seen fit to restrict its various agencies by acts limiting their powers. While the rule of liability upon implied contracts may be generally conceded, it needs no citation of authorities in our own state at this time to support the proposition that not only are the powers of boards of this character strictly construed but that when their exercise is required to be performed in a certain manner that manner must be strictly followed.

Not only does the statute particularize that contracts of this kind, between teacher and board, must be mutually agreed upon, thus excluding all idea an implied contract, but another i*estrictive statute is met in the making of certain enumerated contracts and employments by boards of education. This section is 4752 G-. C., providing that in resolutions employing janitors a public roll call and a record of the yea and nay votes must be made; that “in all cases such roll call and record shall be complied with.” In an unreported case of the Supreme Court from Hocking county a teacher was not allowed to recover for his services, though fully rendered, because that feature of the statute had not been complied with. Green Tp. (Bd. of Ed.) v. Brown, 81 Ohio St. 528.

In holding a right of recovery on this issue the lower court erred.

Section 7687 G. C., provides that teachers may dismiss their schools on holidays without forfeiture of pay.

The second cause of action is not based on the reasonable value of the services, but on a right to recover for five days’ services as teacher that he was compelled to teach in lieu of the holidays. Much of what was said as to his right of compensation as janitor applies here. Between teacher and board, contracts of employment are by statute express and are to be made in compliance with its provisions.

The teacher was not required to teach the five extra days and he had a right to recover his full salary without any substitution therefor. The agreed statement is that the “Plaintiff’s contract was for the actual time he was employed in the school room.” This statement is rather confusing; but when taken into connection with the other facts agreed on, it appears that the board construed it as a requirement to teach the full time, and under their compulsion he taught the extra five days.

It is apparent that there was no express agreement or understanding that the board was to pay for these services, and it is evident that the plaintiff knew that the board did not expect to pay therefor. Under the facts stated, there was no contract, either express or implied, but the services rendered were gratuitous. Columbus, H. V. & T. Ry. v. Gaffney, 65 Ohio St. 104 [61 N. E. Rep. 152].

The judgment of the common pleas court as to the first, cause of action is reversed, and judgment will be rendered in favor of plaintiff in error.

Judgment reversed.


text:
    CORPORATIONS — EXECUTORS—INFANTS.
    [Hamilton (1st) Court of Appeals,
    July 21, 1913.]
    Swing, Jones and Jones, JJ.
    State ex rel. Wm. L. Voight v. Susanna M. Voight et al.
    1. Proxy for Voting Stock cannot be Given by an Infant.
    An infant has not authority or right to give a proxy for the voting of his or her stock in a corporation.
    2. Executor’s Proxy no Discretion to Vote Stock other than Specifically Directed.
    To render valid a proxy given by an executor it must be accompanied by a specific direction as to the manner in which the vote is to be cast, with no discretion whatever in the holder of the proxy, but authority only to perform the purely ministerial function of voting the stock as directed.
    [Syllabus approved by the court.]
    Quo Warranto.

      Wm. Thorndyke, for relator.

      Herman P. Goebel, for respondent.
   JONES, E. H., J.

This is an action brought under Sec. 12303 G. C., against the defendants, who claimed to have been elected as directors of the United States Wall Paper Company, a corporation organized under the laws of the state of Ohio, at an election held in January, 1913.

The petition alleges that said election was illegal and void for certain reasons therein stated, and asks that this court will so declare, and that a judgment of ouster from the office of director of said corporation be entered against each and all of the defendants above named, and that an order be made inducting William L. Voight into office as one of the directors of said company.

Without entering' fully into a statement of the facts and circumstances upon which relator relies, and proceeding to determine the points in controversy, we find, first: Upon the evidence adduced, that, for the purpose of voting at least, the one hundred shares of stock which had been hypothecated to Lewis' Voight, Sr., and then endorsed by him over to the United States Wall'Paper Company to secure the payment to'it of three notes given by the Lewis Voight Wall Paper Compapy, are the property of said Lewis Voight, Jr., and that the presiding officer at the meeting of the stockholders in January, at which said alleged election took place, was hot warranted in refusing to permit said Lewis Voight, Jr., to vote said one hundr'ed shares of stock. We base this conclusion upon the memorandum which Lewis Voight, Sr., on January 12, 1912, caused to be made on the books of the company, and also upon the fact that in his will probated in October 1912, he forgave all the indebtedness due him from Lewis Voight, Jr.

Having held that Lewis Voight, Jr., had a right to vote these one hundred shares of stock, the other questions in the ease became immaterial so far as the legality of the election of directors is concerned. But, there being the necessity for another election, for the guidance of the parties in the future we deem it our duty to say that an infant has no right to give a proxy to another to vote his or her stock in a corporation, and that in rejecting such votes no mistake was made at the January, 1913. election.

We are also of opinion that the executrix was without power power to give a proxy such as given to Mr. Edwards to be exercised by him at said election. A proxy given by an executor containing express directions for whom the votes shall be cast, might be, and indeed we think would be, valid and binding, but the proxy attempted to be given here was a complete delegation of the authority of an executrix and contrary to the spirit and letter of the law. The discretion lodged in an executor must he exercised by him alone and can not be delegated. See Bocock v. Pavey, 8 Ohio St. 270; Allen v. Insurance Co. 10 Dec. Re. 204 (19 Bull. 198). After such discretion is exercised, the purely ministerial act of recording that discretion or announcing it by way of a vote may, we think, be exercised by another.

• The ' prayer of the petition ■ ousting the five defendants named from .the.- office of directors of. said United States 'Wall. Paper Company will be granted, and no order of induction will be made.

Swing and Jones, JJ., concur.


text:
    STREET RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    July 19, 1913.]
    Swing, Jones and Jones, JJ.
    Owen W. Grubbs v. Cincinnati, L. & A. Elec. St. Ry.
    1. Passenger Stepping Off Last Step of Electric Car After Seeing Signal not per se Guilty of Contributory Negligence.
    One having left his seat in an electric car and being about to step off the last step when he saw the signal by the conductor given for the car to start forward, is not guilty of contributory negligence, as a matter of law, in not abandoning his purpose to alight.
    2. Testimony on Former Trial Reversed by Reviewing Court Explained in Second Trial Making Arrest from Jury Erroneous.
    In an action against an electric street railway company for injuries received in alighting from a car, plaintiff’s evidence on a former trial that he saw the signal to start when he “started to leave the car,” upon which the reviewing court held him guilty of contributory negligence, being explained to mean that he was about to step off the car instead of leaving his seat, states a fact for the jury to determine and arresting the case was erroneous.
    [Syllabus approved by the court.]
    Error to common pleas court.

      George B. Goodhart, C. B. Matthews and James B. Swing,. for plaintiff in error.

      Stanley Shaffer, for defendant in error.
   JONES, E. H., J.

Tbe plaintiff in error, Owen W. Grubbs, filed bis petition in tbe common pleas court praying damages against tbe defendant for personal injuries sustained by bim while alighting from one of defendant’s interurban cars. Tbe negligence complained of was tbe sudden jerking or starting of tbe car while be was in tbe act of stepping to tbe ground from tbe rear platform.

Upon the first trial of the case in the court below the plaintiff recovered judgment in a substantial sum, which judgment was reversed by this court for lack of sufficient evidence to sustain it and the cause was remanded for a new trial. This court in its former opinion found that the plaintiff was negligent in attempting to leave the car while it was in motion and at a time when, according to his own evidence, he had warning that the speed of the car was likely to be accelerated at any moment. The fiurHug of this court at that time was based upon the evidence of the plaintiff, which was quoted in the court’s opinion as follows:

“ Q. And you saw him there (the conductor) when you started to leave the car; is that it? A. Yes, sir.
“Q. And you saw him or somebody there waving a lantern? A. Yes, sir.
“Q. For the car to go ahead? A. Well, I suppose it was xo go ahead.”

The theory upon which the former judgment was reversed, therefore, was that plaintiff had testified that when he left his seat upon the inside of the car he saw the conductor ahead waving his lantern as a signal for the ear to advance.

At the second trial of the case in the court of common pleas, which is now under review, plaintiff explained this evidence, and stated that it was when he was on the rear platform and about to leave the same that he first saw the lantern and the signal therefrom for the car to advance.

We quote from the bill of exceptions as follows:

“Q. Can you say where you were when you first saw this lantern? A. Well I was stepping down, or on the last step to leave the car.
“Q. Was it after you turned to leave the car? A. Yes sir. I didn’t notice the motion of the car until I got on the lower step and saw the shadows slightly moving — the shadows from the windows.”
And again:
“Q. What were you doing when you saw that lantern waving? A. I was on the last step or the next to the last step.
“Q. Going forward? A. Going forward, yes, sir.
“Q. Was there a lurch then and a sudden starting of the car? A. There was.”

The court below in the second trial directed a verdict in favor of the defendant, and did so upon the theory that the evidence was the same as at the former trial and that following the decision of the circuit court the plaintiff as a matter of law could not recover.

We think the court was in error in proceeding upon this theory. The explanation given by the plaintiff of his former evidence and the circumstances as related by him in the second trial make a case that should have been submitted to the jury. The construction placed upon his testimony as first given was a re’asonable and proper one-, and when so construed the evidence was such as would bar recovery on the ground of contributory negligence. But he now says that what he meant by the words “when I started to leave the car” was not when he left his seat within the car, but when he was about to step off the car. Under the state of facts as he now gives them we can not say as a matter of law that he did not act as a person of ordinary prudence would have acted under the circumstances. It appears to us that this is a question upon which reasonable minds might differ, and is therefore one to be determined by a jury.

The judgment of the court below will therefore be reversed and the cause remanded for a new trial.

Swing and Jones, JJ., concur.


author: WILDMAN, J.

text:
    CHATTEL MORTGAGES — INSOLVENT DEBTORS— RECEIVERS.
    [Lucas (6th) Circuit Court,
    March 19, 1910.]
    Parker, Wildman and Kinkade, JJ.
    George A. Graydon v. Atlantic Phonograph Co. et al.
    3. Debtor Privately Placing Property in Trust Preventing Creditor's Satisfying Claims not Valid.
    The private placing of the property of a debtor in trust in such a manner as to leave the grantor insolvent and prevent his creditors from exercising their right to pursue the property for the satisfaction of their claims can not be given validity by an honest intention to preserve the interest of the creditors by so doing and ultimately pay them off in full.
    .2. Unverified, Unrecorded Chattel Mortgage not Validated by Agree.ment to Treat Property as Realty.
    .An unverified and unrecorded chattel mortgage can not be rendered valid by an agreement between the parties to treat the property as real estate, where it is not in fact attached to the -realty.
    3. Receiver of Corporation Executing Unverified and Unrecorded Chattel Mortgage May Attack Validity.
    The validity of an unverified and unrecorded chattel mortgage may be attacked by the receiver of the corporation executing the mortgage.
    Appeal from common pleas court.

      H. J. Chittenden, for plaintiff.

      Kohn & Northup and Aaron Slagle, for receiver of the Atlantic Phonograph Co.

      King, Tracy, Chapman <& Welles and Smith & Baker, for the Citizens Safe Deposit & Trust Co.
   WILDMAN, J.

One George A. Graydon, a creditor of the corporation known as the Atlantic Phonograph Company, brought a suit in the court of common pleas against that company, and upon the petition of the plaintiff a receiver was appointed. Subsequently other parties were brought into the litigation and the contest finally become' one substantially among' tbe corporation which I have named, another corporation known as the Talk-O-Phone Company, the receivers of both companies, and the Citizens Safe Deposit & Trust Company.

The first feature of the controversy which invites attention is the character of a transfer made by the Talk-O-Phone Company to the phonograph company in December, 1906, of all of its assets, except certain unsettled claims, accounts and bills, receivable. The property, real and personal, attempted to be conveyed to the phonograph company was encumbered by a. mortgage which at the time of the litigation was sought to be foreclosed by the Citizens Safe Deposit & Trust Company. The1 case was tried in the court of common pleas and brought by appeal to the circuit court. The appeal was perfected by the' receiver for the phonograph company, and some question has been made before us as to whether this appeal was properly made, inasmuch is it is said that it attempted to bring up only a part of the controversy. If that were true, the law expressly' provides for the appealing of. such part of a divisible controversy as affects some of the parties to it, leaving the judgment' of the trial court to abide so far as it affects other parties who' are eoutent with it and whose interests are not involved in the matter appealed from.

The phonograph company is directly interested of course in the character of the transfer to it, and if that transfer was a-valid one so as to convey title, it would be further interested tc some extent in the character and scope of the lien obtained by the mortgagee, the mortgage having been given by the Talk-O-Phone Company prior to the transfer or attempted transfer in. December, 1906, to the phonograph company.

Upon motion to dismiss the appeal, we having heard the-arguments of counsel, overruled the motion, and we have since carefully considered the issues presented to us in the evidence offered by the parties to support their respective claims.

Without discussion of this evidence, it suffices to say that so far as the controversy relative to the transfer to the phonograph company is concerned we are united in our view that that transfer operated to hinder the creditors of the Talk-O-Phone Company in the collection of their claims, and there is no question in our minds that the transfer was made at a time when by the transfer the Talk-O-Phone Company was left entirely insolvent; indeed, it was insolvent before the transfer was made, the amount of accounts and bills receivable owned by the Talk-O-Phone Company and which had not been pledged to the mortgagee to secure the bonds of the Talk-O-Phone Company being entirely inadequate to pay .the unsecured indebtedness of the company. This transfer then should be held invalid under the familiar statute relative to transfers giving a preference to creditors and transfers for hindering and delaying and defrauding creditors. We do not base our conclusion as to this phase of the controversy upon any holding that fraud was contemplated by the parties. It may be entirely true that by the ■tying up of all the assets of the Talk-O-Phone Company in the control of the officers of the phonograph company or a trustee, the parties intended that the indebtedness of the company should in time be taken care of in the manner provided in the conveyance and in the contract between the two corporations. But the law will not permit the placing of property in trust in such a manner as to leave the grantor insolvent and so as to prevent creditors from exercising their right to pursue property pursuant to the provisions of law. This property was placed in such form that it would be no longer subject to execution against the Talk-O-Phone Company, and so as to compel the receiver of the Talk-O-Phone Company, when one was appointed, to have recourse to that property only by proceedings in equity to obtain a decree invalidating the transfer.

We hold then that this transfer was invalid and that the phonograph company derived no title therefrom, as against the creditors, as represented by the receiver of the Talk-O-Phone Company. And this holding removes any need of considering, so far as the phonograph company is concerned, the matter of the claimed invalidity of the bond issue,- the bonds supporting the mortgage held by the Citizens Safe Deposit & Trust Company or the other question as to whether that mortgage covered chattel property and should have been filed and verified as a chattel mortgage. If these claims were not urged by any other party than the phonograph company, we might have no further question to trouble our minds. These matters are, however, urged by the receiver of the Talk-O-Phone Company in behalf of the company represented by him and its creditors.

The statute as to filing and verifying of chattel mortgages provides in substance that where a chattel mortgage is given and there is not a transfer of the possession of the property to the mortgagee, it shall be void as against certain persons, including creditors, if not filed and verified in the manner by law provided. This mortgage was not so filed and verified. It did describe certain property and attempted by its terms, evidencing the intent of the mortgagor -and mortgagee, to stamp certain personal property with the character of realty so as to avoid the necessity of such verification. As held by numerous authorities, the intent of parties to a mortgage or parties to a lease may affect oftentimes the character of property attached to real estate so as to constitute it a fixture or fixtures or otherwise. Sometimes property may be so attached to the real estate and treated by the parties as affixed thereto as to become a part of the real estate, and to go with it upon any conveyance, lease, or mortgage; but we are not presented with authorities, and we have not found them, that personal property, pure and simple, unattached, may be so turned into real estate by the mere agreement of the parties, as to take it out of the requirements of the statute that a mortgage of it shall be filed and verified in accordance with the statute. A man, for instance, can not give a mortgage upon a horse or a wagon and in that mortgage say “we will treat this, and it is intended by the parties to be treated, as a real estate mortgage,” and so file and place it upon the record of real estate mortgages without that verification which the law requires as to mortgages of chattels. The parties could not thereby create a lien upon the propérty, valid against those persons as to whom the statute says an unverified chattel mortgage shall be void. This mortgage we think did describe some property of that character. To the extent that it describes fixtures or machinery attached to the real estate, we think the parties might properly stamp upon it the character of fixtures so as to make it realty and pass it with the mortgage; but as to the other property we think that it is not properly included in a real estate mortgage, and that no lien was created ■upon it by the instrument given in this case. I will not stop to specify the particular articles to which this ruling will apply. They are specifically defined in the finding of the trial court, the court of common pleas, and a full statement will be found in the journal entry, and our holding in this respect is precisely the holding which was made by the court below.

A little question is made in one of the briefs before us, as to the validity of the bond issue to secure which the mortgage was given, and which is now held by the Citizens Safe Deposit & Trust Company. I will not stop to discuss this question further than to say that the contention of invalidity in these bonds can not avail. It is not sustained by the evidence in the record. It is urged that there is a sort of estoppel here, in that the parties rested for some time after' the mortgage was made and even after the attempted transfer was made to the phonograph company, and that there is no right now to dispute either the transfer or perhaps to raise this question as to the chattel mortgage. We are not, however, in accord with this view. We \ think that no sufficient evidence to justify the claim of estoppel has been presented.

The question is suggested whether this mortgage is invalid as to creditors who have not obtained liens in some way, and whether the invalidity can be asserted by a receiver of the Talk-O-Phone Company. We have examined various authorities bearing directly or indirectly upon this question. I will not stop to read from the ones which I desire to cite, but will simply invite attention to several cases in which it was held by our Supreme Court that questions of this character may be raised by the assignee under a general/ assignment for the benefit of creditors, an officer who stands in a relation some- ' what similar to that of a receiver so far as involves his power to ' represent creditors who may complain of the invalidity of the chattel mortgage because of its nonrfiling and nonverification. The eases to which I refer are: Hanes v. Tiffany, 25 Ohio St. 549; Blandy v. Benedict, 42 Ohio St. 295; Westlake v. Westlake, 47 Ohio St. 315 [24 N. E. Rep. 412], and Betz v. Snyder, 48 Ohio St. 492 [28 N. E. Rep. 234; .13 L. R. A. 235.] A case having some bearing upon the matter is that of Bayne v. Pottery Co. 12 O. F. D. 301 [90 Fed. Rep. 754].

In 5 Am. & Eng. Enc. Law (2 ed.) pp. 1016 and 1019 are found statements concerning the right of receivers to raise this question as to the invalidity of chattel mortgages where the chattel mortgages have not been filed or verified according to law, and the notes in support of the text cite Pillsbury v. Kingon, 33 N. J. Eq. 287 [36 Am. Rep. 556], and Graham Button Co. v. Spielman, 50 N. J. Eq. 120 [24 Atl. Rep. 571]. I am not entirely clear that the authorities conclusively establish that a receiver might make this sort of claim, so far as the New Jersey cases are concerned, by reason of some variance in the New Jersey statute from that of Ohio. Another case to which I will make reference merely for its interest in bearing upon some of these controversies, and without reading from it, is that of Cheney v. Maumee Cycle Co. 10 Circ. Dec. 717 (20 R. 19), decided by this court, the opinion being rendered by Judge Haynes.

Our conclusion is that the transfer to the phonograph company should be set aside; that the bonds are valid; that the mortgage does not cover the personalty as described specifically in the journal entry of the court below, and indeed I may say that the various paragraphs beginning with paragraph 6 in the somewhat extended journal entry of the court below substantially express the views at which we have arrived, and may be used as a suggestion for a journal entry of our decree. The paragraphs up to paragraph' 6 are as to matters upon which findings were made by default, no pleadings having been interposed to raise certain issues.

I made a suggestion of the possibility that an appeal might bring up only the controversy between the phonograph com-party and the receiver of the Talk-O-Phone Company, or rather the controversy between tlie receiver of the phonograph company and the receiver of the Talk-O-Phone Company, as to the validity of the transfer, and that when the issue was decided against the phonograph company, it might possibly leave all the other issues in the case standing as in the court below. The statute to which reference was made at the time that the argument was had, before us on the motion to dismiss the appeal provides that a party may appeal a part of a case in which he is especially interested. There is, however, a further provision that the court from which the appeal is taken may make orders for the separation of the papers and defining the part of the ease which is appealed from. No such order was made in this case. The only party appealing, it is true, was Mr. Holland C. Webster, the receiver of the phonograph company. But it is a matter after all of no moment now whether the other controversies, among the other parties, are appealed from or not, since our decree, as I have said, is substantially that made by the court below, and for safety it is probable that counsel should embody in the journal entry a full statement of the conclusions at which we have arrived, covering everything that the decree below covered.

Parker and Kinkade, JJ., concur.