text:
    PROSECUTION FOR. PRESENTING A FALSE CLAIM.
    Circuit Court of Darke County.
    William H. Townsend v. State of Ohio,
    Decided, December 11, 1912.

      Criminal Law — Change of Tenue — Prejudice in Community Against Defendant — Impartiality of Jurors — Competency of Evidence as to a Conspiracy to Present False Claims Against County — Charge of Court.

    1. The examination of jurors on their voir dire affords the best test as to whether or not prejudice exists in the community against the defendant; and where it appears that the opinions as to the guilt of the defendant of those called for examination for jurors are based on newspaper articles, and that the opinions so formed are not fixed but would yield readily to evidence, it is not error to overrule an application for a change of venue.
    2. The court finds no evidence in the record that the defendant was prejudiced by proceeding with.the trial immediately after refusal to grant a change of venue, or that error intervened in admitting evidence of a conspiracy, or in the charge of the court to the jury, or in the finding of the jury that the defendant was guilty of presenting a false claim against the county in connection with a bridge contract.

      Martin B. Wainer, George W. Mannix and Bickel <£ Baker, for plaintiff in error.

      John F. Maher, Prosecuting Attorney, and David W. Bowman, contra.
    Allread, J.; Dustin, J., and Ferneding, J., concur.
   This case has been prosecuted and defended with unusual zeal and ability. Many exceptions have been taken to the rulings of the trial court and are now presented for review.

The objections to the indictment and the sufficiency of the pleas in abatement are identical with those considered in the ^urner and Fry cases heretofore decided in this court, and we rest upon the views there expressed.

The accused shortly before the day set for trial moved for a change of venue, supporting the motion by the affidavits of twenty-five citizens from various parts of the county supplemented by copies of newspaper articles appearing from time to time in newspapers circulating throughout the county.

The state offered in opposition to the change of venue twenty-five affidavits. ' The state also offered by way of affidavit evidence to the effect that competent jurors were readily secured in the four preeceding trials of indictments of the same general nature, and as evidence of fairness one acquittal is cited.

The trial court overruled the motion for change of venue and put the accused on trial.

After the jury was secured the motion for a change of venue was renewed upon the original evidence,- together with the voir dire examination of the veniremen, and was again overruled.

It has been repeatedly held that the question of change of venue is one addressed to the- sound discretion of the trial court and can not be made the subject of reversal, unless it appears from the record that the discretion has been abused.

It is urged that the affidavits tending to show prejudice should be considered as positive and direct testimony, and should preponderate over those tending to show absence of prejudice upon the theory that the latter are negative only.

We are unable to agree with this contention. The affidavits upon each side, so far as they are based upon fact, are equally positive. They refer to the general state of feeling and sentiment, among the citizens of the county. Upon this state of the evidence, we can not say that there was an abuse of discretion by the trial court in holding that the evidence for the accused did not preponderate over that for the state and require a change of venue.

It is contended, however, that the newspaper articles are of such character as to make it apparent that public sentiment was inflamed and passion and prejudice aroused to such an extent as to make a fair trial improbable.

Upon the whole we think these newspaper articles are not of such character as to justify the assumption that the body of citizens of the county were so far prejudiced against the accused as to be unwilling or unable to accord a fair trial. Some of them counsel moderation and appeal to the citizens to await judicial investigation.

We have considered the voir dire examination of the veniremen with care, as it affords the best test as to the existence of prejudice. The veniremen were drawn through the agency of the jury wheel and may, therefore, be considered representative. In addition, we have the benefit of direct and cross-examination to bring out the facts more fully than can be expected of ex parte affidavits. The examinations disclose nothing more than opinions based upon newspaper articles, and these opinions were not so fixed as to be incapable of readily yielding to the evidence. We find nothing to indicate that a fair-minded jury could not be secured capable of giving the defendant a fair trial.

We are, therefore, of the view that there was no error in refusing the change of venue.

Complaint is made of being forced into trial immediately following the decision upon the motion to change the venue, but we find nothing in the record to show that the accused was unable to secure the presence of his witnesses or was in any other manner prejudiced by being put upon trial at that time.

Upon the question of the qualification of the jurors and the rulings of the trial court upon the challenges, we find that the defendant’s challenges were sustained wherever there appeared any suspicion of prejudice against the accused personally. The objections of the plaintiff in error to the accepted jurors and to those challenged peremptorily by the accused are based largely, if not wholly, upon their having formed opinions from reading newspaper accounts, which they stated would require evidence to remove. It will be noted, however, that in all these cases, upon examination by the court, the jurors declared that they could render a fair and impartial verdict, based upon the evidence and the charge of the court. We think that under the authority of Lindsey v. State, 69 O. S., 215, there was no error in overruling the challenges for cause.

Counsel criticise the trial court for examining the jurors after ' having stated that they had formed opinions, but it will be noted that under Section 13653, Gr. 0., it became the duty of the trial court to examine the jurors, and, determine as to their impartiality.

Counsel also complain of the statement of the trial judge in deciding the motion for a change of venue that defendant had not shown sufficient interest to be present. We doubt the propriety of this remark, if it was actually made in the presence of the veniremen, but there is no certificate or statement of the trial judge to the effect that the veniremen were present, nor does it appear from the voir dire examination that any of the accepted heard the remark or were influenced thereby. The only statement in the record that any jurors were present is that of the counsel, but the fact is not verified by the certificate of the trial court. There is, therefore, no prejudicial error in this respect appearing upon the record.

Objection is made to the proof by the state of alleged conspiracy among Townsend, IT. J. Fry, Ed Fry, Lott, Holland and Sipple, and of their respective declarations. This objection is founded: (1) upon the absence of a charge of conspiracy in the indictment, and (2) upon absence of prima facie proof of conspiracy.

We think it is competent to prove a conspiracy although not alleged expressly in the indictment, where it is incidental and leading up to the crime charged. This doctrine is announced in the opinion in Goins v. State, 46 O. S., 457, where it is said:

“Counsel contend that to render the acts and declarations of a co-conspirator competent evidence, the indictment should have in express terms charged a conspiracy. This is true when the act of conspiracy is itself the crime charged; but when some other act is the real offense and the conspiracy is a common purpose leading to the commission of the main criminal act, a conspiracy need not be alleged in express terms, and if any allegation in respect thereto is at all necessary, the charge in the indictment that it was jointly done is sufficient for that purpose. ’ ’

The same question was involved in the ease of Diegle v. State, 14 C.C.(N.S.), 290, where it was held that the general averment of aiding and abetting was sufficient to admit the evidence.

It is urged that mere declarations of alleged co-conspirators can not be accepted as proof of the' conspiracy. The soundness of this principle maj^ be conceded, but it does not reach the present situation. The proof of conspiracy here rests, not upon mere declarations, but upon the direct testimony of witnesses having personal knowledge of the fact of conspiracy and whose testimony bears upon the res gesiae. That the witnesses were co-conspirators goes to the weight but not to the competency of the evidence. The testimony tended to connect the defendant Townsend with the conspiracy and show his participation in it.

The conspiracy was, therefore, sufficiently proven prima facie by the testimony of H. J. Fry, J. R. Holland and Noah Sipple to justify the court in allowing the evidence in relation thereto, including the acts and declarations of the co-conspirators, to go to the jury.

The evidence tended to show a conspiracy somewhat general in its nature and covering an extended period, to award contracts without competition and upon liberal terms with an agreement for secret commissions from the contractors to the commissioner having charge of the territory, and that in pursuance thereto commissions were paid to both Townsend and Sipple; that H. J. Fry was the favored contractor of Townsend in his territory, and that Ed Fry was in like manner favored by Sipple.

It is urged that the general conspiracy is not germane to the crime charged, to-wit, the presenting and reeiepting payment of false voucher of $168, and that the wide scope of the general conspiracy as allowed to go to the jury had a prejudicial effect.

We think, however, that the general conspiracy was properly allowed to go to the jury, because it constituted the main system of transactions out of which the special conspiracy sprung. The general and special conspiracies were so intimately connected as to make the proof of one incomplete without the other.

The evidence offered by the state tended to show that by reason of the general conspiracy and of IT. J. Fry’s connection therewith, he was called upon to advance $200 of the $400 which Lott was to pay back to the county for salary unlawfully drawn as tax map draftsman. This, it is claimed, H. J. Fry finally did and was repaid partly by the proceeds of the false voucher charged in the indictment.

It was, therefore, competent also to show the acts and declarations of Lott in respect to the $400 refunded, as that formed the subject of the conspiracy and was the first step in the special conspiracy and from which the $168 false voucher was evolved. The declaration of Lott to the deputy treasurer when he paid in the '$400, that he expected to get it back, was in harmony with the conspiracy and made while in the act of carrying it forward and was competent.

Special objection is made to the identification and description of the voucher in favor of George Beireis (pp. 194 and 256). No exceptions appear on page 194 and none on page 256 to the specific item of the Beireis claim. The epntract and voucher of Beireis was expressly ruled out, and we think that there was no prejudicial error in respect to the identification théreof.

The motion on page 256 to take from the jury evidence in regard to “paying him money right along,” referring to the secret commissions paid by Fry to Townsend was too indefinite to apply merely to payments subsequent to the offense charged’ in this indictment and was, therefore, properly overruled.

The evidence tending to prove the raising of money to bribe the grand jury and suppress the indictments was competent on the subject of guilty demeanor and entitled to go to the jury.

The cross-examination of Townsend as to subsequent transactions was in our opinion made competent by the scope of the direct examination. Townsend in direct examination sought to explain his approval of the contract and voucher for the repair of the Marshall bridge by the statement that he took no active responsibility for work in the territory assigned to Sipple but relied upon Sipple’s recommendation and approval. It was, therefore, competent for the state to rebut and discredit this di-^ reet testimony of Townsend by cross-examination, showing his active interest in Sipple’s territory, and also by rebuttal evidence to the same effect even though it tended to show transactions subsequent but closely associated with the transaction in controversy.

The state relied largely upon the testimony of accomplices to support conviction. The rule of law as to- its weight and the ■right of the jury to rest conviction thereon was correctly given by the trial court in special request No. 6. Special request No. 7 is not the law in this state but is favorable to the accused and not prejudicial.

Counsel for plaintiff in error insist that special charge No. 3 ought to have been given. This is based upon the proposition that although intent to defraud is not prescribed as an essential by statute, yet having been averred in the indictment, it was incumbent upon the state to prove it. Conceding for the present purpose this contention to be sound, it will be observed that the special charge is more extended than the averment of the indictment. The indictment charges generally an “intent to defraud” while charge No. 3 proposes to place upon the state the burden not only of proving a general intent to defraud but a specific “intent to defraud the county.” This is not required by the indictment and is expressly dispensed with by Section 13590, General Code. There was no error, therefore, in refusing this charge.

We find no such misconduct of counsel, either in the trial statement or final argument, as to justify reversal.

Upon the weight and sufficiency of the evidence, it is conceded that the verdict rests largely upon the testimony of accomplices. The case went to the jury upon special charge No. 6 and upon special charge No. 7, which was favorable to the accused. Under these charges, it must be assumed that the jury not only accepted the testimony of IT. J. Fry and the other accomplices, but found such testimony to be corroborated.

Before this court is- justified in reversing upon the weight of evidence the verdict must be found to be manifestly contrary thereto.

We have no difficulty in reaching the conclusion that the contract for the repair of the Marshall bridge was fictitious, and the bill of $168, therefore, was wholly false. The falsity of the bill was undoubtedly known by IT. J. Fry at the time he caused it to be presented and at the time the money was received. The principal offense was, therefore, clearly established.

Did Townsend aid and abet Fry in the commission of the offense? The positive testimony of IT. J. Fry that he did is consistent with the other evidence and in some measure corroborated by it.

H. J. Fry was Townsend’s favored contractor and received without competition substantially all the bridge contracts in his territory. Townsend signed both the contract and the voucher for the Marshall bridge. The fact that Townsend was the only commissioner who signed both the contract and voucher, taken in connection with the fact that IT. J. Fry was his contractor, is consistent with the state’s contention and may be said to be in corroboration of it. The relation of IT. J. Fry and Townsend was close and confidential to such an extent that Townsend by his own admission allowed Fry to receive contracts in the name of J. R. Holland to deceive the prosecuting attorney and one of the commissioners who objected to the Fry contracts.

When, in connection with these facts, it appeared that the bill presented was wholly false, there was evidence enough to put the defendant Townsend upon his defense. His testimony was to the effect that the Marshall bridge was in Sipple’s territory, and that he signed the contract after Sipple and upon his recommendation. Yet, the voucher, itself, which is most important, is not signed at all by Sipple. It is true that Townsend testifies that Lott advised him the bill was correct and asked him to approve it, yet the fact that Sipple did not sign the voucher is to some extent corroboration of the state’s claim that Townsend was active in this transaction and in connéetion with Lot tinspired it.

The testimony of IT. J. Fry is also corroborated by other circumstances connected with the alleged conspiracy by the testimony of Plolland and Sipple.

We have carefully considered the entire evidence and are of the opinion that the verdict is not contrary to the manifest weight of evidence.

There are other exceptions urged but we find upon the whole record that there is no prejudicial error,

Judgment affirmed.'


source: Caselaw Access Project

license: Public Domain

text:
    . CHARGE TO JURY IN PROSECUTION FOR. STABBING WITH INTENT TO WOUND.
    Circuit Court of Cuyahoga County.
    Antonio Campanario v. State of Ohio.
    Decided, March 24, 1911.

      Griminal Law — Reasonable Doubt.

    In a prosecution for stabbing with intent to wound a charge as follows, “A man put upon trial here charged with a crime, starts out in the trial with the presumption in his favor that he is not guilty. That presumption must be overcome by, evidence satisfying the jury to a reasonable certainty of guilt. You do not have to be absolutely certain of guilt in order to find a party guilty; you must be satisfied in such degree that you have no reason to doubt his guilt. Your minds must be so satisfied of his guilt that your conscience would be satisfied with a verdict of guilty; that you would feel you have not made any mistake. You could not be absolutely certain; that is not required. If you have an honest difficulty after you have considered the evidence; an honest, conscientious difficulty in believing the defendant guilty, then you ought not to convict. If you are reasonably certain of his guilt, then you ought to convict. You are not to have any hesitation about convicting if the evidence warrants it. You ought not to convict unless the evidence does warrant it,” while not commended, is not, as a whole, incorrect.

      F. H. Ewing, for plaintiff in error.

      John A. Cline, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   Campanario was convicted of maliciously stabbing one Michael Degidio with intent to wound. The prosecuting witness testified :

“Q. How soon after you fell to the floor was it he stabbed you? A. It was in the same moment; he slapped me, knocked me down and jumped on top of me and stabbed me.”

The state’s witness Rafael Picazzo testified that Ampanario “slapped Degidio in the face, hit him in the face, and he fell and he got on top of him.”

At p. 45 the following colloquy is set forth:

“Q. State whether or not between the time of the slap and the time Petriacco took him away, Campanario was on the floor at any time?
“State objects. It has not been stated he was on the floor but that he knocked him down and stabbed him. We don’t claim he was on top of him.
“Defendant: The testimony of Rafael Picazzo was he was on top of him..
“Court. If the state doesn’t claim he was on the floor there is no need of these questions.
“State. We don’t claim that.”

The' question was thereupon abandoned. No exception was reserved. It is claimed, however, that the state’s disclaimer here is necessarily a confession of the defendant’s innocence, since the evidence shows that if he stabbed Degidio at all, he did so while on top of him. We think this does not necessarily follow. “On the floor” is not the same as “on top of” Degidio. Even if it were, the ultimate fact of stabbing, etc., was for the jury.

At page 79, the court charged:

“A man put upon trial here charged with a crime starts out in the trial with the presumption in his favor, that he is not guilty. That presumption must be overcome by evidence satisfying the jury to a reasonable certainty of guilt. You do not have to be absolutely certain of guilt in order to find, a party guilty; you must be satisfied in such degree that you have no reason to doubt his guilt. Your minds must be so satisfied of his guilt that your conscience would be satisfied with a verdict of guilty; that you would feel you have not made any mistake. You could not be absolutely certain; that, is not required.
“If you have an honest difficulty after you have considered the evidence; an honest, conscientious difficulty in believing the defendant guilty, then you ought not to convict. If you are reasonably certain of his guilt, then you ought to convict.
“You are not to have any hesitation about convicting if the evidence warrants it. You ought not to convict unless the evidence does warrant it.”

Without qualification, the sentence, “If you are reasonably certain of his guilt, then you ought to convict,” does not require proof of guilt beyond a reasonable doubt. “Reasonably” in the connection in which it is employed, naturally means tolerably, moderately, measurably. In the phrase, “reasonable doubt” the word “reasonable” means according to sound reason. But as here qualified the entire charge on the subject is not incorrect, though we do not commend it.

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


text:
    DEGREE OF PROOF REQUIRED TO CONVICT OF EMBEZZLEMENT.
    Circuit Court of Cuyahoga County.
    J. T. Ottke v. State of Ohio.
    Decided, March 24, 1911.

      Criminal Law — Embezzlement—Evidence.
    The crime of embezzlement is not made out by evidence which might be sufficient to establish the crimes of larceny or obtaining money under false pretenses.

      M. P. Mooney, for plaintiff in error.

      John A. Cline, contra.
    Henry, J.; Winch, J., and Marvin, J.,'concur.
   Plaintiff in error was convicted of embezzlement. The first of the three counts of the indictment, under which alone Ottke was found guilty, charges that he “on or about the fifteenth of April in the year of our Lord nineteen hundred and ten, and from that date continuously until the present, to-wit, the twenty-eighth day of September, nineteen hundred and ten, at the county aforesaid, was then and there a partner in the firm of Ottke & Pulwitt, a partnership, then and there doing business' under the name and style of Ottke & Pulwitt, and the said J. T. Ottke, as such partner was then and there the agent of Mary Higgins; he, the said J. T. Ottke not being then,and there a person within the age of eighteen years, and not being then and there an apprentice, and while acting as agent for the said Mary Higgins, aforesaid certain money of the amount and of the value of seven hundred dollars of the personal property of and belonging to the said Mary Higgins did unlawfully and fraudulently embezzle and convert to his own use, without the assent of the said Mary Higgins, his said employer, and without the assent of any owner or owners of said property, which said personal property had then and there come into the possession and care of the said J. T. Ottke, by virtue of his employment as agent of the said Mary Higgins,” etc.

The facts, in brief, are these:

Mrs. Higgins being desirous of purchasing a house and lot, was introduced by her friend, Margaret Payton, a clerk in the real estate office of Pulwitt & Ottke, to the members of that firm, who thereupon negotiated the sale to her for $2,800 of a house and lot belonging to a Mrs. Kirk.

The sale of this property had been entrusted to Pulwitt & Ottke by one Herman Durre, who acting on behalf of and pursuant to instructions from the owner, Mrs. Kirk, had authorized Messrs. Pulwitt and Ottke to sell the same for $2,600 or. more, with the privilege of retaining as their commission whatever in excess of that amount' they might be able to obtain. The terms of sale were to be one-half cash down and the remainder secured by mortgage. Mrs. Higgins being shown the property by Ottke, decided to take the same and pay therefor the sum of $2,800, of which $700 was to be cash down, and $2,100 secured by mortgage.

Thereupon, Mrs. Higgins paid to Ottke, in three several payments, a total sum of $700, $400 of which was paid by the firm of Pulwitt & Ottke, through the former, to Durre, for Mrs. Kirk. Durre, however, declined to receive the same, because the down payment was not in accordance with the terms stipulated by Mrs. Kirk to him, and by him in turn to Pulwitt & Ottke.

The $400 haying been left on his desk or table, against his protest, he subsequently deducted $10 which Pulwitt owed him and drew his check for $390, in favor of Pulwitt & Ottke, who endorsed it with their respective names and cashed it at the bank, where they were identified by Durre for that purpose.

The defendant below testified in his own behalf that the entire $700 including' the $390 returned by Durre, was taken by Pulwitt, who decamped with the same. He also testified that Mrs. Kirk had meanwhile authorized Pulwitt & Ottke to close the sale on the terms proposed by them and agreed to by Mrs. Higgins.

Be this as it may, Mrs. Higgins testifies:

“Q. Were you to pay any commission to these men on the purchase of this property? A. Why no, I was not.
“Q. What? A. No, I was not to pay them anything.
“Q. Did you agree to pay them any commission?
A. Certainly not.
‘ ‘ Q. Did you know who was to pay any commission that was paid? A. Why the lady that owned the property. I understood that way. They told me.”

And again at page 35, she testified:

‘ ‘ Q. Did you have any agreement with Pulwitt or Ottke that you were to pay them a commission for buying this property? A. I did not.
‘ ‘ Q. Did either of them say anything to you about your paying them a commission for services rendered to you? A. No.”

From this and all the testimony offered on behalf of the state it is perfectly evident that Pulwitt & Ottke were not her agents, either to buy the property for her, or to receive the money from or for her. She all the while supposed them to be, and they all the while represented themselves to be the agents of the seller. If their representations in this regard were false, they obtained Mrs. Higgins’ money by false pretenses, or possibly one or bo.th of them was guilty of the larceny of the money belonging to her, or some part of it. It is clear, however, that they did uot embezzle any money entrusted by her to them as her agents or servants in the transaction.

We have grave doubts whether, from the facts in the case, Ottke was guilty of any criminality whatsoever. In any event the verdict and judgment in this case are clearly not sustained by the evidence and the judgment is reversed.


text:
    COLLISION OF AUTOMOBILE AND PEDESTRIAN.
    Court of Appeals of Hamilton County.
    Samuel Shott, Administrator, v. Edna Farrin Korn.
    Decided, July 23, 1913.

      Negligence — Pedestrian Killed at Street Grossing by Automobile — Accident Due to Failure of Both the Deceased and Chauffeur to Use Gare.

    It is not error to instruct a verdict for the defendant owner of an automobile in an action for the death of a pedestrian, where it - appears that the deceased attempted to cross a well lighted street in front of the approaching machine, which was in full view with its lamps burning.'

      Horace A. Reeve and Joseph L. Meyer, for plaintiff in error.

      Worthington & Strong and Albert Bettinger, contra.
    Swing, J.; Jones, E. IT., J., and Jones, O. B., J., concur.
   This case is here on error to the judgment of the Superior Court of Cincinnati. In that court it was an action for the wrongful death of Benjamin Shott. The trial court at the conclusion of plaintiff’s testimony on motion of the defendants, directed the jury to return a verdict for the defendants.

The accident occurred at 8:37 o ’clock on the evening of May 5, 1912. Benjamin Shott was killed by being struck by an electric automobile, the property of Edna Farrin Korn, at the intersection of Rockdale avenue and Reading road in this city. Shortly before the accident it had been raining, but it was not raining at the time. The automobile was coming south of Reading road and the decedent, Shott, was preparing to cross Reading road from the east to west. The automobile had its lights burning and the street at that point was lighted by electric lights, so that Shott could have seen the automobile and the driver of the automobile could have seen Shott. There were no obstructions in the street. One witness alone saw the accident; this was Mr. Downing who was standing at the intersection of the two streets. He testified:

“I saw a pedestrian half across the street and a machine coming from the northern intersection of Rockdale and Reading road. I paid only casual attention to it at the time, but when I saw neither the pedestrian nor the machine slacken of course that was a realization that there was an accident imminent. I didn’t see the actual contact of the machine and the body because of the automobile, the machine coming between my line of vision and the decedent, but I heard him strike the ground. I judge the car ran in the neighborhood of seventy-five or eighty feet after striking the man.”

Downing further says:

“Well, he was crossing the street from the east to the west. I thought he hestitated, and when I first saw the machine I judged he was waiting for the car to pass. I saw Mr. Shott and the machine probably at the same time. Upon hearing the bell I thought he slackened his pace, but barely paused to let the machine go by, and afterwards he continued to go across the street.”

From the evidence it seems clear to us that Shott was guilty of contributory negligence, and that his death was caused by it. The machine was in plain view for quite a distance before he started to cross the street. There was- nothing to obstruct his view, and there was nothing to distract his mind or prevent him from exercising the prudence which he should have exercised in looking for approaching vehicles when about to cross the street. He seems to have deliberately walked in front of the approaching machine. And under the evidence, we think, the court was justified in directing the jury to return a verdict for the defendants. The facts were really not in dispute and it became a question of law for the court.

There are other questions in the case, but with this view that we have taken, the other matters are immaterial and it is not necessary to consider them.


text:
    FRAUD IN THE SALE OF OIL STOCK.
    Circuit Court of Mahoning County.
    John J. Hamilton v. William M. Carr et al.
    Decided, March 31, 1911.

      False Representations in Sale of Stoclc — Laches.
    A sale of oil stock under the false representation that it was treasury stock and that other named stockholders had paid par for their stock, will not be rescinded where the buyer waits six months after learning the truth about the stock and until a well i's drilled which turns out to be a dry hole.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This is an appeal of an action for the rescission of a fraudulent sale of certain shares of stock in an Arizona oil company operating in Illinois. Without rehearsing the facts in detail, we are convinced that the sale was consummated by and through the false and fraudulent representations of Carr to Hamilton that the stock was treasury stock, offered for sale in order to finance the company by payment of the purchase price into the treasury of said company, and that other named stockholders to whom Carr had sold stock were paying or had paid therefor dollar for dollar the same as Hamilton. In truth the stock was owned, not by the company but by Carr and his associates; the proceeds of this and other sales went not into the treasury of the company, but into the pockets of Carr and his associates; and some of the other purchasers of stock so named by Carr to Hamilton had not paid and were not to pay for their stock at all, but had received it as a gift.

Some months before this suit was brought a directors’ meeting was held, which Hamilton attended. Carr and his associates testify that at that meeting the minutes contained in the company’s record book were read in full in Hamilton’s hearing. These minutes disclose thn facts. Hamilton, swears he did not hear them read. Two witnesses, not hostile to Hamilton, testify that they were present and that they can not swear that the minutes were not read in Hamilton’s presence. One of them says that much was read from the minute book but he can not tell what it was. On the whole we find that the preponderance of the evidence is in favor of the defendants on this point. Carr and his associates testify- that the minutes were so read; Hamilton is the only man that denies1 it. The other two witnesses’ testimony is not decisive, but on the whole ]we find that [the minutes were read in Hamilton’s presence.

Hamilton is a lawyer of some experience in reference to such corporations. He had $5,000 invested in this enterprise. He then had abundant opportunity and incentive to learn just how this corporation was being financed, but he waited six months until a well was drilled and found to be a dry hole, before he sought to rescind. He speculated and lost. We hold that his laches was such as to bar the equity which he invokes.


text:
    WHEN A MUNICIPALITY IS LIABLE FOR. TRAVELLING EXPENSES OFJITS OFFICIALS.
    Circuit Court of Cuyahoga County.
    The State of Ohio, ex rel Virgil G. Marani, v. Hiland B. Wright, Auditor of the City of Cleveland.
    Decided, May 5, 1911.

      Municipalities — Traveling Expenses of Official.

    A municipality is not liable for the traveling expenses of one of its officials incurred in attending a convention of like officials of other municipalities.

      Newton D. Baker, for plaintiff in error.

      Wing, Myler & Turney, contra.
    Henry, J.; Winch, J., and Jones, J., concur.
   By this proceeding in mandamus the relator, who is the building inspector of the city of Cleveland, seeks to compel the city auditor to allow for payment by the city the necessary traveling expenses incurred by him on a trip to Columbus, to attend, by direction of his superior officer, the director of public safety, a convention of building inspectors of various municipalities.

We hold that in the absence of any specific statutory provision for such cases, the test of the city’s liability must be deemed to be: is the trip or journey in which the expenses were incurred necessarily implied in- or reasonably and directly incident to the prescribed duties of the municipal officer who undertakes such journey?

It has been pointed out in argument that a municipal officer may properly undertake a journey at the city’s expense to inspect material or supplies for the purchase of which, on behalf of the city, he is authorized to negotiate, if .such journey is reasonably necessary for that purpose.

This is upon the ground that the object of the journey is directly related to the duties of his office. Here, however, the purpose of the journey was to acquire such information in regard to the duties of his office as the building inspector might reasonably acquire while in attendance upon a convention of officials holding like positions,’in various cities. We are unable to see how such an object relates itself either directly or with reasonable necessity to the duties of the relator’s office. He was presumably appointed to his present position because of his fitness by experience and education to discharge the duties of the place, and the salary paid him is presumably adapted to secure the degree of efficiency in these respects which the city resires that its building inspector shall possess. If a-person relatively uneducated, inexperienced and inefficient in the discharge of the duties of the position of building inspector were appointed at a salary proportioned to his fitness, it might as well be argued that his deficiencies may thereafter be supplemented at the charge of the municipality which he serves by directing him to attend an architectural school and to render his bills for board and tuition to the city. The salary attached to the office of building inspector is presumed to be sufficient to enable him to maintain his professional or official efficiency at proper standard.

The petition is dismissed at the costs of the relator.


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    INVALID NUNC PRO TUNC ENTRY IN A DIVORCE PROCEEDING.
    Circuit Court of Richland County.
    Linton L. Stark v. Elizabeth W. Stark.

    Decided, September Term, 1911.

      Probate Court Calendar — Not a Public Record — Nunc Pro Tunc Entry Can Not be Based Thereon — Error—Evidence.
    A memorandum made by a probate judge in his court calendar does not constitute a public record, but is in the nature of a private memorandum and is not competent as evidence for the purpose of establishing a judicial finding in a hearing before the successor in. office of the judge who made it.

      Jesse E. LaDoiv, fpr plaintiff in error.

      Douglas Hutchison, contra.
    Shields, J.; Powell, J., and Voorhees, J:, concur.

       Affirmed without opinion, Stark v. Stark, 88 Ohio State.

   This cause is submitted on the petition in error seeking to reverse a judgment of the court of common pleas of this county. The case presented had its origin in an action for divorce and alimony-commenced by the defendant in error against the plaintiff in error in the probate court of this county. The transcript and journal entries of said probate court show the following state of facts:

That on January 26, 1907, the defendant in error filed her petition against the plaintiff in error in said probate court for divorce and alimony and the latter was personalty served with summons in said proceeding; that he filed no answer or other pleading in said proceeding, and that on August 10, 1909, said probate court on motion of the defendant in error dismissed said proceeding. That on October 27, 1910, the plaintiff in error filed an application in said probate court for a nunc pro tunc entry to be entered in said probate court, granting a decree of divorce to said defendant in error as of November 9, 1907, supported by the affidavits of S. S. Brieker, probate judge of said county at the time said petition was filed in said court, and for some months thereafter, including the month of November, 1907; of John A. Dalton, who was the deputy clerk of said probate court during the month of November, 1907, and R. E. Hutchison attorney, including a certain memorandum alleged to have been made by the said probate judge on November 9, 1907, which said affidavits and memorandum will be more fully referred to hereafter.

That on December 1, 1910, said defendant in error filed an answer in said proceeding denying the right of said probate court to cause said nunc pro tunc entry to be entered of record in said probate couyt; that on December 7, 1910, after a hearing upon said application and said answer, said probate court granted said application, to which ruling and action of said court the defendant in error excepted.

That the defendant in error thereupon filed a motion for a new trial, which motion was by said probate court overruled, The defendant in error then tendered and perfected a Dill of exceptions embodying all the evidence offered and heard upon said application, and prosecuted error to the common pleas court of said county, which court reversed the action and judgment of said probate court, and error is now prosecuted to this court to reverse the judgment of the common pleas court.

The following errors are principally relied upon for such reversal: First. That the holding and ruling of said court in reversing the probate court was contrary to law. Second. That the ruling, judgment and orders of said court should have been affirmed in the common pleas court, and not reversed.

An examination of the record shows that the application of the plaintiff in error for an order that said mine pro tunc entry be entered of record in said probate court, was based principally upon a memorandum claimed to have been made by Probate Judge Brieker, November 9, 1907, in a certain memorandum book belonging to him, wherein the following memorandum appears: “Stark v. Stark; divorce granted, gross neglect of duty; for alimony, see entry; judgment vs. defendant for costs.”

Judge Bricker in his affidavit says that he was probate judge of Richland county, Ohio, during the year 1907, that on or a Pout November 9, 1907, he heard the ease of Elizabeth W. Stark v. Linton L. Stark, wherein the plaintiff asked divorce and alimón v from the defendant, that at the time of said hearing it was stated to him that the defendant had agreed to pay the plaintiff the sum of $1,200 alimony, in the event she secured a divorce; that after said hearing was completed affiant as probate judge, granted a divorce upon condition that said $1,200 alimony was paid by the defendant to plaintiff. The affidavit of John A. Dalton is to the effect that he is acquainted with the handwriting of Judge Bricker and knows that the memorandum referred to was made by Judge Bricker. The affidavit of R. E. Plutchinson is to the effect that he made an examination of certain records in the case of Elizabeth W. Stark v. Linton L. Stark.

It appears by the affidavit of Judge Bricker that a decree for divorce was granted to the defendant in error, upon condition that the plaintiff in error pay to her the sum of $l,200-as alimony, which according to the uncontradicted statements of counsel in open court has not been paid to her. This alleged decree for divorce was a conditional one, and, under the law, was invalid.

The memorandum in question, we think, was improperly admitted in evidence upon the hearing of the application as to what, if any, judicial action was had thereon. True, the memorandum was undoubtedly made in the handwriting of Judge Bricker, but it was not made in any public record, or in any record authorized by law to be kept in his office. Hence it appe'ars to have been made as a private memorandum and for his convenience only, for in this state a court calendar is not required to be kept in the probate court. Lucas Co. Comrs. v. Millard, 4 N. P., 53; affirmed, Millard v. Lucas Co. Comrs., 13 C. C., 518. The memorandum thus made was incomplete at most. If such memorandum was not a matter of public record, then can it be claimed that it has any more weight than any other private memorandum which may be used to refresh the recollection of a witness? As a matter of evidence tending to show that any official action was taken in said action in said court on said day, we think it could add no weight to the testimony of Judge Brieker, .and that its admission was improper to establish any judicial finding. Watts v. Shewell, 31 Ohio St., 331.

Taking the view that the question at issue resolved itself into one of fact, we think that the evidence in support of said application is not supported by sufficient evidence, and that the action of the probate court in this behalf was unwarranted, especially when we consider that a nunc pro tunc entry only performs the office of supplying what actually took place in a judicial proceeding fully and finally determined. Jones, Evidence, Section 620, and cases cited.

We have examined the several alleged grounds of error urged on behalf of the plaintiff in error and find each one of them untenable. For the reasons stated the judgment of the court of common pleas will be affirmed at the costs of plaintiff in error. Exceptions will be noted.


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    KNOWLEDGE BY A DIRECTOR. OF THE TRUTH OF STATEMENTS MADE BY HIM.
    Circuit Court of Cuyahoga County.
    Sam Degraw v. Emma R. Lampert, Executrix.
    Decided, May 8, 1911.

      False Representations in Sale of Stock by Director — Director’s Knowledge of Facts — Directing Verdict for Party Bolding Burden of Proof.

    1. In an action for damages for false representations as to the rate of dividends paid on stock which plaintiff was induced to buy of or through a director in the company, it is error to charge that if the jury found defendant to have been a director, knowledge of the truth or falsity of his assertions as to the dividend rate are conclusively'imputable to him.
    2. It is error to instruct the jury to find on any point in favor of a party holding the burden of proof as to such point, unless the same is admitted by the opposing party in such wise as to dispense with proof, or unless the law attaches to such evidence as is produced the quality of being conclusive proof.

      31. B. t& II. II. Johnson, for plaintiff in error.

      Ford, Snyder & Tilden, contra.
    Henry, J.; Jones, J., and Dustin, J. (sitting in places of Judges Winch and Marvjn), concur. •
   The action below was begun by the decedent, Joseph R. Lampert, in his lifetime to recover damages for fraudulent representations alleged to have been made to him by the plaintiff in error about the rate of dividends that had been and was being paid upon certain shares of stock which Lampert subscribed for or purchased in an oil company whereof plaintiff in error was a director. Many errors are alleged, but we deem it necessary to mention but two, remarking merely that we regard the others unfounded.

The court charged that if the jury found plaintiff in error to have been a director, knowledge of the truth or falsity of the assertions made by him in regard to the dividend rate was conclusively imputable to him. This is defended upon the theory that a declaration of dividends is a function of the board of directors of a corporation exclusively, and therefore, the subject being peculiarly within their knowledge, directors must be conclusively held to have knowledge of the facts. Against this contention is' cited the case of Mason v. Moore et al, 73 Ohio St., 275, wherein it is held that, “The directors,of a bank are not held as a matter of law to know all its affairs or what its books or papers would show, and such knowledge can not be imputed to them for the purpose of charging them with liability.” A majority of the court think the case at bar is within the principle of this rule. So far as third persons are concerned a director is under no duty to know or ascertain the facts concerning the business transacted by the board of which he is a member. And it often happens that he is in fact ignorant of transactions which it was his province to have participated in with the other directors. It must be borne in mind that for the purpose of examining the correctness of this part of the charge, we. are concerned not with what the plaintiff should have known, nor yet with’what he actually knew, but simply with what he knew by conclusive presumption or imputation in virtue of Ms office, and we hold that the charge as given was erroneous.

The charge is further complained of in that it directed the jury, in case they found for the plaintiff, to assess his damages at the full amount paid for the stock, with interest. This instruction is sought to be justified upon the ground that it was conceded that the corporation which issued the stock had been dissolved and that the stock was therefore worthless. But a corporation may be dissolved without its stock becoming valueless. Whether there were or were not assets of this corporation distributable among or recoverable by its stockholders does not distinctly appear; but whatever the facts, it was incumbent upon the plaintiff to prove his damages. It is immaterial, therefore, whether plaintiff offered some or no evidence on the subject of his damages in support of the burden which thus rested upon him to prove the same. For it is elementary that a court can not instruct the jury to find on any point in favor of a party holding the burden of proof as to such point, unless the same is admitted by the opposing party in such wise as to dispense with proof, or unless the law attaches to such evidence as is produced the quality of being conclusive proof. Generally speaking a verdict can not be directed either wholly or in part in favor of the party chargeable with the burden of proof. We hold, therefore, that it was erroneous, upon the state of the evidence in this case, for the court to charge the jury unconditionally to assess damages in any specific S3im, in case the3r found for the plaintiff.

For these two errors in the charge, to-wit, that a director is conclusively presumed to know what his corporation paid or is paying by way of dividends, and that the measure of damages was in the sum stated by the court, the judgment is reversed and the cause remanded.


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    RECOVERY FOR. INJURIES TO A POSTAL CLERK.
    Court of Appeals for Hamilton County.
    The Pittsburg, Cincinnati, Chicago & St. Louis Railroad Company v. William Pool.
    Decided, July 17, 1913.

      Jurisdiction■ — Of the Superior Court of Cincinnati — Degree of Care for Which a Railway Company is Bound to Safely Carry a Postal Cleric.

    1. Tlie Superior Court of Cincinnati lias jurisdiction in the case of a postal clerk suing a railway company, whose line enters Cincinnati, for damages for personal injuries, due to his being thrown violently to the floor of the car in which he was at work by the bumping of the car in being switched from one train to another.
    2. A railway postal clerk is entitled to the same degree of care from the railway company over whose line he is being transported in the course of his employment as is accorded to ordinary passengers for hire.

      Maxwell Ramsey, for plaintiff in error.

      Thos. L. Michie, for defendant in- error.
    Jones, O. B., J.; Swing, J., and Jones, E. IT., J., concur.
   The action below was for personal injuries suffered by plaintiff while acting in his duty as postal clerk in a mail car that was being transported by defendant company. Plaintiff was engaged in distributing mail, and at the time of the injury the car in which he was working and in which he had been transported from Cincinnati to Columbus, was in the Union Depot at Columbus, and in the course of its regular operation was shifted' from one train to another for the purpose of taking it to Dennison, Ohio, where plaintiff would disembark and return thence to Cincinnati. The injury was caused by a severe shock to the car in this shifting operation, which jarred the car in such an extreme way as to throw' plaintiff six or eight feet, backward 'upon his back and elbows upon the concrete floor of the car, causing a dislocation of one of tlie vertebra of the spine and a fracture of a small piece of bone in tbe right arm at the elbow, producing injuries more or less serious in their nature.

Plaintiff in error seeks reversal chiefly upon the ground that the Superior Court of Cincinnati in which the ease was tried below was without jurisdiction; that the evidence did not sufficiently show that the shock to the car was caused by the defendant company; and that the charge of the court did not sufficiently discriminate as to the duties of the railroad company with reference to a postal clerk as a passenger as contrasted with the same duty towards a regular passenger within defendant’s coaches. Plaintiff in error further suggested in argument that the medical treatment had by plaintiff below was in part responsible for his suffering, and his slow and unsatisfactory recovery.

It appears that plaintiff was transported from the city of Cincinnati on the train of the defendant company to Columbus and beyond, and the court is of the opinion that the evidence is sufficient to establish the jurisdiction of the Superior Court of Cincinnati in the ease under the terms of Section 1571, General Code. And as the defendant rode in the same car from Cincinnati until after he was injured, and the testimony showed that in the regular course of business this car was shifted by the defendant’s employes in making up its train, we think the jury was justified in determining that the defendant company was responsible for the injuries received.

There seems to be no question under the decisions- but that a postal clerk, whether performing his duties or while riding on a railroad train to enter upon such duties, is considered a passenger upon the railroad and is entitled to all of the rights and immunities- due from a carrier of passengers to an ordinary passenger for hire, and the same degree of care is owing to him as to other passengers, and if he is injured through the negligence of the carrier or its employes it is liable for the damage sustained. In support of this. defendant in error has cited numerous authorities in his brief, among which are the following. Lindsey v. Penn. R. R. et al, 26 App., Cas. (D. C.), 503; Gulf, etc., R. Co. v. Wilson, 79 Tex., 371; Southern Pac. R. Co. v. Schuyler, 135 Fed. Rep., 1015; Gleeson v. Midland R. Co., 140 U. S., 435.

The charge of the court fairly set out the duty of a railway company carrying passengers and while it properly did not attempt to differentiate the general duty toward a passenger from its duty toward a particular class- of passengers such as mail agents, the jury was instructed to take into consideration all the circumstances and surroundings as they appeared in the evidence and determine whether the defendant has been guilty of negligence to the plaintiff in the particular case.

The question as to the extent of the injury and as to the proper treatment of it by the physicians was all properly submitted to the jury, and upon a complete review of the record we find no error to the prejudice of plaintiff in error.

The judgment will therefore be affirmed.


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    CLAIM OF MODIFICATION IN ORIGINAL CONTRACT.
    Circuit Court of Cuyahoga County.
    The Findlay Brothers Company v. L. W. Eiser.
    Decided, May 8, 1911.

      Charge — Burden of Proof in Suit cm Contract.

    When plaintiff sues upon a contract and defendant answers that the terms of the original contract had been modified by a new contract entered into between the parties, it is error to charge: “It is claimed here by the defendant that a new contract was entered into between the parties, modifying the old one in a certain particular. The burden upon that subject, gentlemen of the jury, is upon the defendant.”

      E. A. Couse, for plaintiff in error.

      'Albert Memdelsohn and Theodore L. Slrimple, contra.
    Henry, J.; Jones, J., and Dustin, J. (sitting in places of Judges Winch and Marvin), concur.
   Eiser sued the Findlay Brothers Company for balance due as traveling salesman under contracts dated August. 1, ■ 1906, and March 20, 1907. Under the first contract covering the period from September 1, 1906, to March 1, 1907, he was to have “10% commission on the net proceeds of his sales, as per ledger footings. ’ ’ Under the second contract covering the period from July 1, 1907, to July 1, 1908, he was to have “$1,000 per year, to be paid monthly, and 2% commission on all goods sold” by him and shipped by his employer. Shortly after the date of his first contract he was given certain written instructions, providing, among other things, three sets of prices. The “A” price, to be quoted to those dealers who were “A1 pay and can buy at least $2,000 worth of goods during the season;” the “B” price might be quoted to any dealer buying outright at least $500 worth of goods, and the “C” price might be quoted to anyone, being “the. price which the majority of our goods should be sold at. ’ ’

These instructions further provided that on goods sold at the “A” price “we can not afford to pay but one-half the regular commission to you.” On August 31st of the following year, Eiser was given a copy of another document likewise entitled ‘ ‘ Instructions to Salesmen. ’ ’ As therein revised the corresponding provisions were: “The A price, which is about our cost price, is to allowed on $2,000 orders taken from good parties only; the B price for orders of $500 or over, to well rated parties; and the C price is the road price at which the majority .of the goods should be sold; ’ ’ and ‘ ‘ one-half of regular commission will be allowed on goods sold at A price. ’ ’

Eiser testifies that when the instructions to salesmen were first handed to him, he was told that many of the provisions thereof did not apply to him. This is denied, and the denial is supported by a letter of October 31,' 1906, written to Eiser by his employer, and containing the following clause: “Your goods are almost all sold a,t the A price and if you will refer to your letter of instructions, you are only entitled to 5% on goods sold at the A price. ’ ’

« The answer and cross-petition of the Findlay Brothers Company alleges a modification of the original contract in accordance with said instructions to salesmen so as to provide for half commissions on sales at the “A” price. The reply denies such modification. There is no direct evidence of Eiser’s express consent thereto, except this paragraph in Eiser’s letter of February 5, 1907, to his employer:

‘ ‘ Enclosed find a small order for Schmipf T have been carrying in my pockets for sometime, on account of making error in price of 460 pattern.' I expected to see him shortly to explain the error and try to get'larger order. You will also note I gave A price on your goods, as that is about price York sells him at. They generally get bulk of his business. I intended to tear up order if I did not see him as there is nothing in it for your-” self or me. It may however help for next season. ’ ’

True, Eiser makes frequent apologetic references1 in his letters to his selling so many goods at the “A” price but he nowhere else makes any reference which can be construed as bearing upon the size of his commissions on goods sold at that price. Even the paragraph quoted above from his letter, is by no means a conclusive reference to the percentage of his commission, for it may refer only to the unprofitableness of his 10% commission on so small an order.

The numerous misunderstandings disclosed in his letters regarding his alleged overdrafts and the balance due for commissions are likewise inconclusive, because, without a detailed statement he could never know how many of the orders sent in by him were "filled. In fact, only about 75% of his orders appear to have been filled during the year and a half of his employment. When detailed statements were finally furnished Eiser by his employer, they did clearly discriminate the one-half commissions on goods sold at the “A” price from full commissions on goods sold at the “B” and “C” prices. But it appears that he never expressly assented to these statements of account as rendered by his employer.

On the whole, we can not reverse the judgment below upon the weight of the evidence; nor, for a like reason, do we think the court erred in refusing to permit the defendant on the trial to amend its answer and cross-petition by setting up an account or accounts stated. The comments made by plaintiff’s counsel in argument to the jury upon this attempt by the defendants to shift their ground is not objectionable for counsel expressly disclaimed any' significance in the court’s refusal to allow such amendment as bearing upon the merits of the case.

The charge of the court is complained of in several parts'.

First. At page 96 the court said:

“I suggest that you first ascertain -what, if anything, is due the plaintiff under these contracts, then ascertain what, if anything, is due the defendant under its- counter-claim, and strike a difference, and in whose, favor your difference. is, so .will be your verdict. ’ ’

Inasmuch as the plaintiff had been either underpaid or overpaid, according as his view of the contracts or the view of the defendant should prevail, it is claimed that the charge was misleading in allowing the jury to suppose that there could be' a recovery on both petition and cross-petition at the same time. We have not made any nice computations to see what the situation would be if the plaintiff were right as to his view of the first contract and wrong as to the second. Suffice it to say, we are not prepared to reverse the judgment because of the alleged error in this part of the charge. . .

At page 92, the court, speaking of the defendant’s claim that the original agreements had been modified, charged the jury that: “the respect in which it is claimed they were modified was with reference to the percentage under the written contract he was entitled to. ” The main issue in the case was whether the written contracts were modified, not as to all commissions, but merely as to commissions on goods sold at the “A” price; and the court nowhere clearly stated this to the jury. We think, however, that in the absence of a request, the charge was not erroneous for failing further to particularize the issues.

At page 94, the .court charged:

“The plaintiff was entitled to rely on the rates of commission named in his written contracts with the defendant company until he had consented to a change therein; and was not warranted in assuming that the defendant company did not intend to carry out the terms of its contracts in writing by reason of the defendant company’s statements of sales, under the classification of sales at A price, B price and C price. ’ ’

The court evidently intended to refer to the instructions for salesman on the subject of half commissions on “A” price sales, and we think the jury must so have understood the language employed. But whether the jury understood the court’s reference to be to the instructions to salesman given to Eiser, or to the statements of his accounts that were rendered to him, it was misleading to charge that Eiser was not warranted in assuming that the defendant company did not intend what those documents imported. The question for the jury was, did Eiser’s language or conduct import his acceptance of the modified terms of commission on “A” price sales?

On page 97, the court charged, by request of Eiser’s counsel:

“It is claimed here by the defendant that a new contract was entered into between the parties, modifying the old one in a certain particular. The burden upon that subject, gentlemen of the jury, is upon the defendant.”

The first paragraph of the syllabus in the ease of The List & Son Company v. Chase, 80 Ohio St., 42, is as follows:

“Where a plaintiff sets forth in his petition a contract with the defendant, and avers that he has performed all of the conditions on his part, and the defendant for answer denies the allegations of the petition and alleges a contract differing in material conditions from that alleged by the plaintiff, the burden remains with the plaintiff to prove the contract and his performance as alleged in his petition; and it is error for the court to charge the jury that as to the claim made in the defendant’s answer the burden is on the defendant, and that the contract as alleged in the answer and denied in the reply must be made out by a preponderance of the evidence.”

The rule thus laid down by the Supreme Court is inconsistent with the charge, as given.

For these two errors in the charge, namely, as to the significance of the documents given to Eiser by his employer, and as to the burden'of proof of modification of the contract, the judgment below is reversed and the cause remanded.


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    INSUFFICIENT DEFENSES UNDER. A POLICY OF FIRE, INSURANCE.
    Court of Appeals for Hamilton County.
    The Central Trust & Safe Deposit Company v. The Dubuque Fire & Marine Insurance Company.
    Decided, July 11, 1913.

      Pvre Insurance — Manure to M'ite Proofs of Loss Within Prescribed Time — interest oj mortgagee Pot M'orfeited Oy Violation of Uonutuons of Policy.

    1. 'lire provision in a policy of ñre insurance that proois of loss must oe presented to the company within sixty days alter the occurrence of a loss oy fire in the premises insured, does not render the policy void Dy reason of failure to file proois within the prescrioed time, where there is no provision in the policy which renders it void by reason of such failure.
    2. The violation of conditions of a policy, such as are relied upon as a defense in this case, do not release the.company from liability to a mortgagee whose interest in the property was obtained by virtue of a slip of paper attached to and made a part of the policy, making loss, if any, payable at the request of the insured to the party therein named as his interest may appear unless expressly made applicable to said mortgage by reference in said mortgage clause or by being written upon, attached or appended to said policy notwithstanding the contract as between the owner of the property and the insurance company might be invalidated by reason of such disregard of the conditions of the” policy.

      DeCamp & Sutphin, for plaintiff in error.

      J. L. Kohl, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   This was an action for tbe recovery of tbe amount of a fire insurance policy on certain premises upon which plaintiff held a mortgage. Tbe policy sued upon was orginally issued by tbe German National Insurance Company, and tbe defehdant company was claimed to be liable under an agreement for re-insurance made by it with said German National Insurance Company whereby it agreed to adjust and pay all losses by fire occurring after November 19, 1906, on the buildings described in the policy sued upon herein. There is no dispute about the facts. The fire occurred within the life of the policy, on September 2, 1907. The loss was practically total and far exceeded the amount of the insurance. The agents of defendant company were promptly notified of the loss the day following the fire, and adjustment of same was turned over to an adjustment company who acted for the insurance company. The plaintiff as mortgagee took the matter up with said adjustment company but formal proof of loss was not filed with the insurance company until December 13, 1907. No final action was taken by the insurance company until January 23, 1908, when it notified the mortgagee by letter denying any liability under the insurance policy upon this property. Suit was filed by said mortgagee July 31, 1908, which resulted in a directed verdict in favor of the defendant.

The questions presented in the record are purely questions of law. The fifth defense relied upon by defendant in its answer averred that proofs of loss had not been rendered with sixty days after the fire, and that the insured did not extend in writing the time for the rendering of such proofs of loss, all as required by the terms of the policy, which are set out in the answer. The question raised by this defense is the same as that passed on in the case of Eureka, etc., Ins. Co. v. Gray, 2 C.C. (N.S.), 265. In the policy under consideration here, just as in that case, there was no provision which made the policy void or provided that no action could be brought if proofs of loss were not rendered within sixty days as provided for in the policy. That case was.affirmed without report by the Supreme Court in 69 O. S., 542.

Three other defenses relied upon by the defendant and separately set up in the second, third and fourth defenses of the answer are respectively: .(2) that the subject of insurance was a manufacturing establishment and it ceased to be operated for more than ten consecutive days; (3d) that with the knowledge of the insured, foreclosure proceedings had been commenced and notice given to sell all property covered by this policy by virtue of a mortgage; and (4th) that the building described in the policy became vacant and unoccupied and so remained for ten days. Clauses rendering the policy void upon the happening of either of these conditions were quoted from the policy and urged as complete defenses. Plaintiff denied that these conditions however applied as against it as mortgagee, by reason of the language found in the policy contained within lines 56 to 59 inclusive, as follows:

“If, with the consent of this company, an interest under this policy shall exist in favor of a mortgagee or of any person or corporation having an interest in the subject of insurance other than the interest of the insured as described herein, the conditions hereinbefore contained shall apply in the manner expressed in such provisions and conditions of insurance relating to Such interest as shall be written upon, attached, or appended hereto.”

The interest of plaintiff in the company is obtained by virtue of a provision contained on a slip of paper attached to and made part of the policy of insurance at the time it was written, which read as follows:

“At the request of the assured, loss under this policy, if any, is hereby made payable to the Central Trust & Safe Deposit Company, as their interest may appear.”

Whether these conditions, which as between the owner and the insurance company would clearly have invalidated the policy, have such effect as to the mortgagee depends upon the construe7 tion placed upon the language above quoted found in lines 56 to 59 of the policy. .

This language has been directly construed in the case of Farmer’s National Bank v. Delaware Ins. Co., 83 O. S., 309, in which it is held that such violation of the provisions of the policy by the insured will not release the insurance company from liability to the mortgagee. This ease is directly in point and controls the ease at bar.

Other courts have put the same construction upon this language. Insurance Company v. Bank of Commerce, 47 Neb., 717; East v. Ins. Co., 76 Miss., 697; Boyd v. Ins. Co., 23 Wash., 447; Welsh v. Ins. Co., 148 Cal., 223; Secor v. Ins. Co., 181 Mo., 164; Christenson v. Ins. Co., 117 Iowa, 77; Ins. Co. v. Building Assn., 175 Ill., 115; Edge v. Ins. Co., 20 S. D., 190.

A different construction has been put upon this clause by the federal courts in Delaware v. Grove, 120 Fed., 919; Vancouver Bk. v. Ins. Co., 153 Fed., 440; and the court below seems to have relied up'on this construction instead of being controlled by our own Supreme Court.

The judgment below will be reversed and judgment entered here for plaintiff in error.


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    AUTHORITY TO REMOVE SANITARY POLICEMAN.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel Henry Gollwitzer, v. Herman C. Baehr, as President of the Board of Health of the City of Cleveland.
    Decided, May 8, 1911.

      Municipal Corporations — Sanitary Policeman — Tenure of Office.

    A sanitary policeman appointed in 1910, not from any list of eligibles furnished by the Civil Service Commission or as an emergency employee of the mayor, is removable at the pleasure of the board of health.

      F. W. Treadway and Mathews & Orgill, for plaintiff in error. Neivlon D. Balter, contra.
    Henry, J.; Jones, J., and Dustin, J. (sitting in places of Judges Winch and Marvin), concur.
   This is an error proceeding to reverse the judgment for defendant rendered upon the sustaining of a demurrer to a petition in mandamus, begun on the relation of Gollwitzer to compel the defendants, as the board of health of the city of Cleveland, to restore him to his position as sanitary policeman, to which he •was appointed February 1, 1910, and from which he'was discharged April 13, 1911.

He founds Ms alleged right to reinstatement upon the tenure fixed by the act approved March 27, 1911, entitled “An act to amend Sections 4411, 4418 and 4484 of the General Code, and to repeal said original sections, extending the merit system to employes of the board of health in municipal corporations. ’ ’ Section 4412, as thus amended, provides among other things that, “the board may suspend but not remove any member of the sanitary police, now serving or hereafter appointed for cause authorizing the dismissal of any person in the classified service, and shall certify such fact together with the cause of such suspension to the civil service commission,” etc.

The main question before us is'whether Gollwitzer, at the time of his discharge was, within the meaning of this section, “a member of the sanitary police now serving.”

The Paine law (99 O. L., 562), passed April 29, 1908, effective in part on August 1, 1909, and in its entirety after January 1, 1910, provides in Section 158 that the unclassified service embraces a large number of municipal officers and employes including “the head or chief of any division or principal department of any city relating to health;” and the classified service shall comprise officers and places not included in the unclassified service.

We think this means that Gollwitzer’s place as sanitary policeman was within the classified service, notwithstanding the provisions of Section 4411, General Code, prior to the recent amendment, that the health “board may also appoint, with the consent of council, as many persons for sanitary duty as in its opinion the public health and sanitary condition of the corporation require,” etc., and of Section 4479 that “the unclassified service shall include the positions of officers whose appointment is subject to confirmation by the council.”

It is not necessary, however, to decide whether Gollwitzer was iff the classified or unclassified service, for, in either -case, he was irregularly appointed. If he was in the unclassified service because his appointment was “subject to confirmation by the council,” then his appointment was irregular because he was not so confirmed. If, on the other hand, his position was as We are inclined to believe, within the classified service, he was not appointed from any list of eligibles furnished by the civil service commission; nor did he, as an emergency appointee, receive his appointment from the mayor.

We hold, therefore, that Section 4412, as amended March 27, 1911, has no application to him as a “member of the sanitary police now serving,” because the Legislature must be presumed to have meant only such sanitary police as were then lawfully serving by virtue of appointments legally made in accordance with statute.

In the case of State, ex rel Sipp, v. Stoble, 2 C.C.(N.S.), 293, it was held that the incumbents of the office of superintendent of police and chief of the fire department of the city of Hamilton, Ohio, at the time the new municipal code went into effect March, 1903, were officers de facto, within the protection of Section 167, notwithstanding that the act creating the offices in and under which they were acting is unconstitutional. But that case is not like this for there all the municipal offices and their incumbents were only de facto such, and the Legislature in extending the tenure of the incumbents could have had in mind no one else in the city of Hamilton to whom such legislation could apply. Here, however, it was the duty of the board of health to displace all sanitary policemen irregularly appointed as fast as the civil service commission provided eligible lists from which to appoint their successors. It can not be and is not claimed that Gollwitzer’s successor might not long ago have been lawfully appointed. Before and at the time of his discharge there was no legal restraint whatever upon the board of health from taking that action, but, on-the'contrary, there was an imperative duty resting upon them so to do.

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


text:
    APPLICATION OF PAYMENTS MADE.
    Circuit Court of Ashtabula County.
    Orwell Banking Co. v. Hattie L. Pelton et al.

    Decided, September Term, 1911.

      Payments — Money Furnished by Wife to Pay Husband’s Debts Applied to Those Upon Which She Was Surety.

    Where a wife furnishes her husband with money to make a payment on his indebtedness to a creditor to whom he owed two overdue debts on one of which the wife was surety, equity will require the creditor to apply the payment on the debt on which the wife is surety, if he knows that payment was made with money of the wife, notwithstanding the husband at the time of payment neglected to direct that the payment be so made.

      McGiffert & TJllman, for plaintiff.

      Warren Thomas and H. E. Starkey, contra.
    Pollock, J.; Norris, J., and Metcaee, J., concur.
    Appeal from common pleas court.

       Affirmed without opinion, Orwell Banking Co. v. Pelton, 88 Ohio State,

   The plaintiff is seeking to foreclose two mortgages given by the defendants, Plattie L. Pelton and her husband, W. H. Pelton, on the real estate described in the petition. The second mortgage was given to secure the payment of a promissory note executed by W. IT. Pelton and his wife in favor of plaintiff, for $2,719. The defendant, Iiattie L. Pelton, in her answer, claims a credit of $1,950.10 on this note. This credit is denied by the reply, and the issue raised between the answer and the reply is the only question submitted to this court 'in the trial of the ease.

The facts in this case show that the plaintiff for many years past had been conducting a general banking business at Orwell in this county; that W. H. 'Pelton, the husband of Hattie L. Pelton, for some years prior to the giving of this note had an open deposit account with plaintiff, and that from time to time prior to January 25, 1906, he had made overdrafts on. the plaintiff.

These overdrafts were paid by giving to plaintiff from time to time as they occurred, the joint note of himself and wife. At the date above mentioned these notes amounted to over $2,000, and in November of that year were all past due.

After the giving of these notes and prior to November 19, 1906, W. IT. Pelton had incurred a further overdraft with plaintiff of over $2,000. About that date the plaintiff was insisting upon W. H. Pelton reducing his indebtedness to it. Either the, bank or W. IT. Pelton suggested that a mortgage be made on the premises described in the petition. The title to these premises was in Hattie L. Pelton; they were her separate properties,- and this fact was at that time known to plaintiff. On November 19, 1906, a loan of $2,000 was made from one Kent, Hattie L. Pelton securing this loan by a mortgage on these lands executed by herself and her husband. Kent gave Hattie L. Pelton his check, payable to herself and husband, for $1,950.10, being the proceeds of said loan after deducting the expense of securing the same.

This check was then endorsed by Hattie L. Pelton and given to her husband to be by him applied, as she intended, on his indebtedness to plaintiff, upon which she was surety. When W. IT. Pelton went to the bank he made out a deposit slip of this cheek, and another small check of'his own, handed the cheeks and deposit slip over the counter to the cashier of plaintiff, who gave W. IT. Pelton credit on his personal account for the proceeds of these checks, and in this way applied the check of Mrs. Pelton to the payment of the overdraft of W. IT. Pelton. and not on his notes upon which Hattie L. Pelton was surety. At the time plaintiff applied this check to the. payment of the overdraft, it knew that the check represented the proceeds of a loan that Hattie L. Pelton had made by encumbering her property which she held separate and apart from her husband, for the purpose of paying on the indebtedness of her husband to the bank.

On September 12, 1908, Hattie L. Pelton and her husband were called by plaintiff to its bank and her indebtedness on the notes which she had signed for her husband was called to her attention, resulting in her taking up the notes upon which she was surety and giving" her note for $2,719, secured by mortgage, which is the second mortgage set up by plaintiff in this action. At this time no mention was made of the application which the bank had made of the proceeds of the Kent check, and ITattie L. Pelton did not know of its application until just prior to the bringing of this action. She: had not kept any account of the number or amount of the notes that she had signed for her husband, and was not aware of the amount- of her indebtedness to plaintiff. Prior to this visit to the bank Hattie L. Pelton had no business relations with plaintiff, except signing the notes as surety for her husband. Until shortly prior to the bringing of this action, Hattie L. Pelton had no knowledge of any indebtedness of her husband to plaintiff except the notes upon which she was surety.

Mr. Chamberlain, the cashier of plaintiff, and W. H. Pelton do not agree in their testimony as to the conversation that occurred at the time he was asked to reduce his indebtedness to plaintiff or pay the overdraft. Mr. Pelton claims that he told Mr. Chamberain that Sirs. Pelton was willing to give a mortgage on her property to raise money to secure the indebtedness to plaintiff on which she was surety, and that when he made the deposit of the Kent check, he told the cashier that that was the money of Mrs. Pelton. Mr. Chamberlain denies that these statements were made to him, but is not able to state the conversation further than to say that he asked Pelton to pay his overdraft.

We have then for our consideration the question whether the plaintiff had a right to apply the proceeds of the Kent check to the payment of the indebtedness of W. IT. Pelton on the overdraft, or was plaintiff required to apply it to the payment of his indebtedness upon which Mrs. Pelton was surety?

The rule, without doubt, is, that where a debtor owes two or more debts to a creditor, and they are all due, the debtor may, at the time he makes the payment, direct its application, but it he neglects to do so, the creditor has a right to apply the payment to either debt, at his election. But there are some exceptions to this general rule, and one of them is where the money to make the payment comes from a third party' who is liable upon one of the debts and not upon the others, and the creditor knows at the time the payment is made the source from which it comes, he must apply the payment upon the debt for which the third party is liable. Crane Bros. Mfg. Co. v. Keck, 35 Neb., 683; Lee v. Brewing Co., 75 Neb., 212; Crossley v. Stanley, 112 Iowa, 24; Thacker v. Lumber Co., 131 S. W., 271 (Ky.) ; 30 Cyc., 1237.

Abbott, C. J., in Thompson v. Brown, Moody & M., p. 40, says:

“The general .rule certainly is, that when money is paid generally, without any appropriation, it ought to be applied to the first item in the account; but the rule is subject to this qualification, that when they are distinct demands, one against persons in partnership and another against one only of the partners, if the money paid be the money of the partners, the creditor is not at liberty to apply it to the payment of the debts of the individual, that would be allowing the creditor to pay the debts of one person with the money of another.”

From the facts in this case we have this condition existing between the plaintiff and Mrs. Pelton at the time .plaintiff applied the proceeds of the Kent check to the payment of the overdraft of her husband. W. H. Pelton was indebted to the plaintiff for more than $2,000 on notes upon which. Mrs. Pelton was surety, and which were then past due; he was further indebted to plaintiffs for more than $2,000 upon overdrafts upon which plaintiff had no security; Mrs. Pelton had no knowledge of this latter indebtedness of her husband; after requesting W. IT. Pelton to pay his overdrafts the bank received the cheek for $1,950.10 from him, knowing that it was the property of Mrs. Pelton, the surety on the notes, and applied the proceeds of the check to the payment of the overdraft, without receiving any directions as to the application of the check from either Mr. or Mrs. Pelton.

The plaintiff knew at the time the cheek was handed to it by W. IT. Pelton that the proceeds of the check were thé funds of his wife, which she had obtained by’ mortgaging her separate property, and it was required by good conscience and equity to give credit on the note of her husband, upon which she was obligated as surety. To do otherwise would be taking the property of one person to pay the debts of another, without the consent of the owner of the property and this can not be done.

- The plaintiff makes the further claim that even if this check was the property of Mrs. Pelton, that she had endorsed and given it to her husband, making him her agent, and if he made an unauthorized use of the check, the bank was not a party to the wrongful acts of the husband, and when he made out an ordinary deposit slip in his own name, and handed it to the officers of the bank without any instructions, that plaintiff had a right to treat the check as an ordinary deposit and place it to his credit, which the bank did, and in that way it reduced his overdraft.

The bank at this time knew that this check was not intended as an ordinary deposit, but was intended to reduce the indebtedness of W. IT. Pelton to it. The husband could not appropriate the proceeds of his wife’s check to his own use, and if ■ he did, and the bank received it, knowing that the check was the property of the wife, the bank could not retain the proceeds of the cheek against the wishes of the wife.

“The general rule is that the principal may recover his property or its value from a third person, where it has been wrongfully transferred by his agent, contrary to instructions or or in excess of authority. Unauthorized payment of money made by an agent may as a rule he recovered by the principal as money had and -received, and where an agent without apparent authority uses property of his principal to liquidate his own indebtedness to a third person, or otherwise disposes of it, such property or its value may ordinarily be recovered by the principal by an action of replevin or other appropriate action.” 31 Cyc., 1605.

To the same effect is Mechem, Agency, Sections 778, 780 and 781. •

In the case of Van Alen v. Bank, 52 N. Y., 1, it was held that:

“An agent instructed to sell his principal’s property and use the proceeds, if necessary, to protect notes on which the principal was endorser, and meanwhile deposit the proceeds in bank to his own credit, sold the property, but substituted other money for the proceeds and deposited such substituted money to his own credit. Held: That the bank was liable to the principal on the agent’s check for the amount so deposited.”

Again, 2 Clark avid Skyles, Law of Agency, page 1184:

“But while in such case the principal, in order to recover must show that the creditor knew that the' agent was acting in violation of his authority, in so using the money to pay his own debt, knowledge that the money was held by him as agent is sufficient to establish its prima facie case, as the legal presumption is that an agent has no authority- to dispose of the property of the principal in payment of his own debt; and one therefore who receives such payment with knowledge that the money was held by his debtor as agent, does so at his peril, and to defeat a receovery must show authority in the agent to so dispose of the money.”

At the time Mrs. Pelton gave the check to her husband to apply on his indebtedness, she knew of no indebtedness of her husband to the bank, except that upon which she was bound as surety; she procured this money to apply on this indebtedness, and if her husband caused the proceeds of this cheek to be placed to his credit, it was an unauthorized use of the check for his own benefit, and the bank at that time having knowledge that the check was not his own, but the property of his wife, it can not now retain her property wrongfully used, but she has a right to have the proceeds of her check applied to reducing the indebtedness of her husband upon which she was surety.

Under either theory of this case we think that Mrs. Pelton should have her credit of $1,950.10 made on her note, and made as of the date at which that deposit was made in the bank. There will be a decree of foreclosure of the mortgages for the amount remaining due. If plaintiff desires to file a motion for new trial it may do so, and if filed, the motion will be overruled and proper exceptions noted thereto.


text:
    WHEN A FORMER. ADJUDICATION WORKS AN ESTOPPEL.
    Circuit Court of Cuyahoga County.
    Edward Pokrandt, Administrator, v. Ferdinand Konorski et al.
    Decided, May 8, 1911.

      Revivor of Action — Notice Presumed — Former Adjudication Must be Pleaded.

    1. When the record discloses nothing either way about notice to or consent of a defendant to the revivor of' an action against him, jurisdiction of his person upon which to base a default judgment against him will be presumed.
    2. In order that a former adjudication may work an estoppel, it must be pleaded.

      Robert E. McKisson, for plaintiff in error.

      H. H. Anderson and T. Truhlar. contra.'
    Henry, J.; Jones, J., and Dustin, J. (sitting in places of Judges Winch and Marvin), concur.
   Konorski’s answer and cross-petition directly attacks the validity of the judgment which was obtained by Pokrandt, as administrator, in a previous action in the court of common pleas and upon which the action below was founded. It alleges that in said prior action, after the death of the plaintiff therein and the appointment of Pokrandt as the administrator of his estate, a revivor of the action was held without either the consent of, or notice to, the defendant, as provided by statute, and that subsequently a default judgment was rendered by the court without’ any jurisdiction of the person of the defendant in the action as revived.

The plaintiff’s reply to this answer and cross-petition is a general denial merely.

Upon the issue thus joined the defendant first produced his evidence, the first item of which was the record of the prior action. This record disclosed nothing either way about notice to or the consent of the defendant to the revivor had therein. It must therefore be presumed that the court had jurisdiction of the person of the defendant at the time the default judgment was rendered. Reynolds v. Stansbury, 20 O. S., 344.

The record of the prior action further disclosed that after the default judgment was rendered the defendant interposed a motion to set it aside upon the same grounds as he asserts by his answer and cross-petition now. That motion was- denied and it is contended that the matter then became res adjudicata. It is held, however, in Meiss v. Gill, 44 O. S., 253:

“When a party claims a former adjudication of matter set up in an action to be an estoppel, such judgment should be pleaded; and where the same is not pleaded when it can be, it is not evidence conclusive of an estoppel and testimony may.be given to show the truth.”

As'already stated, the reply contains no averment of the prior adjudication. The court below, therefore, properly admitted parol testimony of the absence of notice to or consent by the defendant to the revivor in the prior action, and decided that no jurisdiction of the person of the defendant was acquired.' Judgment was rendered against the plaintiff below upon the ground that the default judgment in the prior action was without validity and afforded no foundation for the new action. Having read the bill of exceptions, we think this finding was correct, and perceiving no error in the record before us, we affirm the judgment below.


text:
    CONTRIBUTORY NEGLIGENCE AS A MATTER OF LAW NOT SHOWN.
    Court of Appeals for Hamilton County.
    Owen W. Grubbs v. Cincinnati, Lawrenceburg & Aurora Electric Street Railroad Company.
    Decided, July 19, 1913.

      Negligence — Passenger Injured in Alighting from Gar in Motion— Testimony at Former Trial so Explained as to Render Arrest of Case from Jury Erroneous.

    It can not be said as a matter of law that one who left his seat in an electric car and was about to step off the last step when he saw a signal given for the car to come forward, was guilty of contributory negligence in not abandoning his purpose to alight.

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

      Stanley Shaffer, contra.
    Jones, E. H., J.; Swing, J., and Jones, O. B., J., concur.
   The plaintiff in error, Owen W. Grubbs, filed his petition in the common pleas court praying damages against the defendant for personal injuries sustained by him while alighting from one of defendant’s interurban cars. The negligence complained of was the sudden jerking or starting of the ear while he was in the act of stepping to the ground from the 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 finding 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 to 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 ear he saw the conductor ahead waving his lantern as a signal for the car 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 reasonable 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 ear, but when he was about to step off the ear. 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.