text:
    LAND CONTRACT SIGNED BY MANAGER. OF A CORPORATION HELD VALID.
    Circuit Court of Cuyahoga County.
    Merchants Insurance Company of New Jersey v. Marcus M. Brown and The Mayfield Heights Realty Co.
    Decided, February 21, 1905.

      Corporate Entity, When Disregarded — Insurance of a Land Contract a Violation of Warranty of Unconditional and Sole Ownership.

    Where the owner óf a real estate allotment, who had organized a corporation to hold title thereto but in effect owned all of the capital stock of the corporation himself and was the president and sole manager of its business, entered into a land contract with a third party whereby he personally contracted to convey a certain parcel in the name of the corporation, stating in the application that it was the unconditional and sole owner of the property, a loss having occurred: Held, That the fiction of corporate entity would be disregarded and the land contract signed by the president-manager would be treated as the contract of the corporation, and that the unconditional and sole ownership was not in the corporation but in the vendee under the land contract.

      Garfield, Hoiue c& Westenhaver, for plaintiff.

      I-Iorr Loiventhal, contra.
   Henry, J.; Marvin, J., and Winch, J.,

concur.

This is an appeal from a decree of mortgage foreclosure. The evidence and the undisputed averments of the pleadings show that the defendant, Marcus M. Brown, being the owner of a real estate allotment, organized a corporation, the Mayfield Heights Realty Company, defendant herein, to hold the title and facilitate the sale thereof. Of this corporation, Brown himself owned, in effect, the entire capital stock. He was the president of the corporation, and he alone managed its business. In contracting for the sale of lots Brown made contracts in his own name rather than in the name of the corporation, in order that such contracts might not cause embarrassment relative to the mortgage indebtedness upon the property, or otherwise injuriously affect the record title by reason of their pendency, or in ease of breach by purchasers.

Of this sort was a certain contract which was entered into on July —, 1899, between Brown and one Wylie for the purchase by the latter of a house and lot. Wylie entered into possession of the premises so purchased, and continued therein during all the period under consideration. In September, 1899, Brown, in the name of his corporation, took out a policy of fire insurance upon the house, stipulating that loss, if any, should be payable to the mortgagee of the premises, one Rollin C. White, as his interest might appear. No mention in the policy was made of the outstanding contract for the sale of the premises to Wylie, but on the contrary it was stipulated that the interest of the insured in the said premises was that of “unconditional and sole ownership.”

After the insurance was effected, a lean-to, or shed, was built on the rear of the house, and Wylie kept therein a small amount of gasoline in a glass can partly covered with a tin envelope. The contents of this can having somehow escaped, a fire resulted from the lighting of a match by Wylie in the lean-to whereby the house was destroyed. The mortgagee, White, perfected proofs of loss; but Brown deeming that his corporation was not interested, save only to the extent of having the loss paid to the mortgagee in reduction of the mortgage debt, failed to present any proofs of loss on behalf of said corporation until after the time limited therefor in the policy had elapsed. •

By the terms of the mortgage the mortgagee was confessedly not affected by this and other defenses which the insurance company urged against Brown’s corporation. The insurance company therefore paid the- amount of the loss to the mortgagee; but instead of permitting the same to be applied in. reduction of the mortgage debt, it exacted from White, under the subrogation clause in the policy, an assignment to itself of the mortgage and debt which it secured. Brown’s corporation declined to pay to the insurance company the sum alleged to be due to the latter under the mortgage as thus assigned, save only a small margin in excess of the amount of the insurance, and thereupon this suit for foreclosure was commenced.

Brown’s corporation by answer claims that the mortgage debt was extinguished, having been paid with money belonging to it when the insurance loss was adjusted. Plaintiff by reply in sists that Brown’s corporation had no right to the benefit of indemnity under the policy, having violated its provisions in three particulars, namely:

First.- In that, by the contract between Brown and Wylie, Brown’s-corporation had at the date of the policy ceased to be the sole owner of the insured premises.

Second. In the manner in which the gasoline was kept on the insured premises, as already described.

Third. In that the insured did not seasonably perfect its proof of loss.

Concerning the first of these particulars, the controversy hinges upon the question whether Brown’s contract with Wylie qualifies the sole and unconditional ownership of the premises by Brown’s corporation. If so, the latter’s representation in that behalf is untrue, and renders the policy void as to it.

Was Brown’s contract with Wylie such that the latter would have been entitled, upon the performance thereof on his part, to a decree against Brown’s corporation in a suit for the specific performance of the contract ?

In First National Bank of Chicago v. Trebein Company, 59 O. S., 316, it is held that:

“In contemplation of law a corporation is a legal entity, an ideal person, separate from the real persons who compose it. This fiction, however, is limited to the uses and purposes for which it was adopted — convenience in the transaction of business and in suing and being sued in its corporate name, and the continuance of its rights and liabilities, unaffected by changes in its corporate members. But the fiction can not be abused; a corporation can not be formed for the purpose of accomplishing a fraud or other illegal act under the disguise of the fiction; and when this is made to appear, the fiction will be disregarded by the courts and the acts of the real parties dealt with, as though no such corporation had been formed, on the ground that fraud vitiates everything into which it enters, including the most solemn acts of men. ’ ’

In State, ex rel v. Standard Oil Company, 49 O. S., 137, it is held:

“That a corporation is a legal entity, apart from the natural persons who compose it, is a mere fiction, introduced for convenience in the transaction of its business, and of those who do business with it; but like every other fiction of the law, when urged to an intent and purpose not within its reason and policy, may be disregarded.”

It was perhaps on the principles affirmed in the decisions just quoted that the Supreme Court in the case of Bundy v. Iron Co., 38 O. S., 300, held that a mortgage upon corporate property made, through error, by the stockholders of the corporation in their own names, instead of by the corporation itself, Avhieh had received the consideration therefor, was a good equitable mortgage as against the corporation.

It follows that, in view of the relation between the two defendants here, a refusal by Brown’s corporation to carry ’out the. contract made by him with Wylie would, in case the latter were not in default, amount to a fraud by it, and that it would be effectually estopped from asserting, by way of defense to that contract, that it was not in fact a party thereto. Hence the contract must be viewed as having been to all intents and purposes made by Brown’s corporation.

With a valid contract for the sale of the insured premises outstanding, can it be said that the Mayfield Heights Realty Company was the sole and unconditional owner of the premises in question? A great number of authorities have been cited to us in support of the proposition expressed in 13 Am. & Eng. Ene. of Law, 2d Edition, 234, that:

“One who is in possession of real property under contract to purchase, and is not in default in the payments provided for in the contract, is in equity the owner of the land, and hence is entitled to insure as sole and unconditional owner. This is true whether the purchaser’s price has been paid or not, as, in effect, the unpaid portion of the purchase price is only an incumbrance.”

Lorrillard Fire Ins. Co. v. McCulloch, 21 O. S., 176, goes almost to the same length, and in the light of that decision we hold, that the Mayfield Heights Realty Company was not the sole and unconditional owner of the premises in question.

The authorities clearly indicate that when a policy of fire insurance contains a stipulation that the insured is the sole and unconditional owner of the premises, and the fact is otherwise, and the policy in such case is provided by its terms to be void, the courts will recognize and enforce the provision in this behalf, and deny any right of recovery, in case of loss, to the insured.

Our conclusion on this branch of the case makes it unnecessary to determine whether or not the other defenses urged by the insurance company as against the realty company are valid. We incline, however, strongly to the opinion, that the lean-to in which the gasoline was kept was an integral part of the insured premises, and that the can in which the gasoline Avas “stored can not be considered, in any just sense of the term, to be a metallic can as required by the policy. The fact that the fire orignated in consequence of the escape of the gasoline contained in this can points forcibly to the propriety of the provisions of the policy in this behalf; since if the gasoline had been stored elsewhere, or had been contained in an unquestionably metallic receptacle, no fire, Avould, it is probable, haAre ensued.

We do not, however, pass upon the question Avhether this Avasa violation of the policy, nor Aipon the further question whether, in view of the fact that the mortgagee White perfected proper proof of loss, it Avas necessary for the Mayfield Heights Realty Company to do the same.

It was conceded in the argument that if any of the defenses urged by „ the plaintiff insurance company as against BroAvn’s corporation and its right to indemnity under the policy is valid, the plaintiff is in that case properly subrogated to the rights of the mortgagee White, and can maintain this action. And we so hold.

A decree Avill be entered accordingly for the plaintiff.


source: Caselaw Access Project

author: Henry, J.; Marvin, J., and Winch, J.,

license: Public Domain

text:
    CONSTRUCTION OF THE GAME LAW.
    Circuit Court of Cuyahoga County.
    Martin Walter v. The State of Ohio.
    Decided, February 27, 1905.

      Sunday Lato — Hunting on Sunday on One’s Own Land — Game Law Constitutional.

    1. One is guilty of violating paragraph 4 of Section 15 of the game law (97 O. L., 463, 470), where he has implements for hunting or . shooting in the open air on Sunday, even though lie is on his own land and seeking birds or animals which have been injuring his crops.
    2. Such game law is not unconstitutional as depriving one of the right to bear arms and protect property, but is a valid exercise of the police power. .

      W. C. Rogers, for plaintiff in error.

      II. R. Keeler, contra.
   Henry, J.; Marvin, J., and Winch, J.,

concur.

The plaintiff in error was convicted in a justice court of having violated paragraph four of section fifteen of the game law, 97 Ohio Laws, 463, 470, in that he had, on Sunday in the open air, implements for hunting or shooting, to-wit, a shot-gun and cartridges. He proved that the offense, if any was committed, was committed on his own land and that, certain animals and birds not protected by law had been injuring his crops; but it was not expressly shown that he was then engaged in hunting the animals and birds aforesaid. The law provides that:

“No person shall hunt or shoot, or have in the open air for such purposes, any of the implements for hunting, or shooting on any Sunday.”

The accused claims, first, that “such purposes” refers not to “hunting or shooting” generally but to the unlawful hunting or shooting of protected game. We do. not think so. True, prior sections of the game law prohibit the hunting or shooting of protected game; but this section prohibits any hunting or shooting whatever on Sunday, and it likewise prohibits the having in the open air on that day any implements for such purpose.

The accused claims, secondly, that these provisions- should not be so construed as to prohibit hunting unprotected birds or animals that are damaging crops on one’s own land on Sunday. We think, however, that the General Assembly plainly so intended. For it has in sections twelve and sixteen expressly permitted the killing of certain protected game by any one who finds it damage feasant on his own premises, at any time, “except on Sunday.” In the face of such manifest intention we can not read into the statute a contrary intent. Martin v. State, 70 O. S., 219, is not in point, for the question there decided was simply the grammatical construction of a statute.

It is claimed, thirdly, that if the construction of the game law be such as we have just held it to be, it infringes the constitutional rights to bear arms and to protect one’s own property. The right to bear arms is reserved to the people in our federal and state constitutions as a means of self-protection against tyranny or oppression and as a defense against certains forms of private aggression. This right is not infringed by reasonable police regulations designed to promote the peace and well being of society, such for example as those that prohibit carrying fire-arms into churches, court houses, theaters and polling places. Neither is it infringed by similar regulations prohibiting the use of such implements for purposes other than thost necessary to the enjoyment of this constitutional right of self-protection. The huntsman’s avocation is not within the purview of section four of the Bill of Rights.

The right of acquiring, possessing and protecting property guaranteed by section one of the Bill of Rights is not an absolute right maintainable by every means and under all circumstances; for section nineteen of the same article provides that private property, though it shall ever be held inviolate, is nevertheless subservient to the public welfare. The General Assembly possesses and has frequently exercised the power of regulating the enjoyment of the right of private property. Where such regulations are reasonably promotive of public peace, health or welfare, they have been upheld. It follows then that if Sunday quietude and rest, free from the noise and tumult of the hunt, constitute a lawful object for the exercise of the police power, a regulation so admirably adapted to that end as is the prevention of hunting and shooting on that day, must necessarily be held to be both reasonable and valid. The General Assembly having determined that this end is paramount, the right to protect crops from the depredations of birds and animals on that day must yield thereto, so far as the exercise of such right is prohibited.

The validity of Sunday laws in general is fully established by State v. Powell, 58 O. S., 324. It is urged, however, that Sunday laws are invalid unless they except from their operation eases of necessity and charity and those of persons who conscientiously observe the seventh day of the week as the Sabbath. City of Canton v. Nist, 9 O. S., 439. This decision does not support that contention. All that was there decided is that a municipal corporation to which is delegated the power to pass ordinances of this character must exercise such power subject to the' conditions upon which it is given. One of the conditions in that ease was that such ordinances should conform to the state laws. The state laws contained the recited exceptions but the ordinance in question did not, and it was therefore held void.

If the law here in question shall in practice be found to be oppressive, the remedy is a resort to the authority by which it was enacted. In the present case the accused failed to prove that he was actually engaged in protecting his property. We have, however, examined the objections urged to the constitutionally of the law under which he was convicted and we hold that it does not violate either section one or section four of the Bill of Rights, and that it is a valid enactment. We see no error in the record here, and the judgments below are affirmed.


author: Henry, J.; Marvin, J., .and Winch, J.,

text:
    ACTION FOR. RECOVERY OF REAL ESTATE AGENT’S COMMISSION.
    Circuit Court of Cuyahoga County.
    Emanuel Treuhaft et al v. Frederick L. Dambach.
    Decided, March 6, 1905.

      Evidence — Admissions—Contract of Indemnity.

    In an action by a real estate agent, for commissions earned, a contract by which the vendor indemnified the vendee against any claim for commissions is not admissible in evidence as an admission on his part that such commissions had been earned.
   Henry, J.; Marvin, J., .and Winch, J.,

concur.

In the court below Dambacli recovered a judgment against the defendants, Treuhafts, for agent’s commission on the sale of certain land by Treuhafts to a corporation known as the Girard Company. Of the various errors which the Treuhafts allege are shown by their bill of exceptions, we find but one that is deserving of serious consideration. Dambach had been concerned in the transaction, and at the time it was consummated it was known to both vendor and vendee tha't he claimed the agent’s commission thereon. This claim was repudiated by both parties to the sale, but inasmuch as it menaced the conclusion thereof the vendee, for the consideration of one dollar, was induced to indemnify the vendor against it, by an agreement, in writing, which was offered and received in evidence for the avowed purpose of disclosing the interest of the Girard Company in the outcome of the action and thereby affecting the credibility of the testimony of that company’s officers. The admissibility of the agreement upon this theory is not questioned. The court below, however, in charging the jury, shifted from this ground to another and said:

“It will not be within your province to render a verdict against the defendant Treuhaft simply on the grounds that they had taken an indemnity against any verdict that might be rendered, but as bearing upon the frame of mind in which they were at the time,' and how they regarded the claims of this plaintiff, and for no other purposes. ’ ’

The Treuhafts allege that this is ground for reversal, claiming that it erroneously allowed the jury to consider and eonstrue the indemnity agreement as in the nature of an admission that perhaps they owed Dambach what he claimed. Counsel for plaintiff in error have failed to aid us by any citation of authority in this behalf. On principle, however, we,think that the procurement of indemnity against loss from the threatened enforce, ment of a claim can not of itself be considered as an admission, or in the nature of an admission of liability on such claim. A case directly in point is Lucas v. Nicholas, 52 N. C., 32. Lawful efforts to buy one’s peace, whether by compromise or the procurement of indemnity or otherwise, if they do not amount to an express admission of a definite fact, ought in general to be privileged. In view of the proverbial vexations and uncertainties of litigation, any man may well dread being sued, even in a groundless action. May he not, therefore, without prejudice avail himself of any justifiable means to avert such jeopardy of his estate? It has been well said in an analogous case that “parties in danger of falling into litigation often do this with great propriety and prudence.” Waller v. Rossman, 45 Mich., 333.

No other theory is suggested by which the bearing of this indemnity agreement upon the frame of mind of the Treuhafts could be material, and we must conclude that the court below was understood by the jury to permit a finding that the procurement of the agreement by the Treuhafts was an admission of the latter’s liability to SDambach. . This, we think, was! error prejudicial to the defendants below, and for this error, and this only, the judgment of the court of common pleas is reversed.


text:
    ENFORCEMENT OF CONTRACT BY A SON AGAINST HIS FATHER..
    Circuit Court of Cuyahoga County.
    William F. Prechtel v. Martin Prechtel.
    Decided, March 27, 1905.

      Specific Performance — Statute of Frauds — Part Performance — Action for Specific Performance and Money Judgment Appealable.

    1. Where a father orally agreed with his son that if the latter would stay at home and work the farm until the father’s debts were paid, that the father would thereupon pay the son $100 per year for his work and convey to him the farm, with a reservation of a life estate to himself; the son having fully performed and having added many valuable improvements to the farm may maintain an action for specific performance.
    2. Where a party is to receive a conveyance of land and a sum of money upon a complete performance of his part of a contract, when he has fully performed he may maintain but one action, and there is but one cause of action for the money and 'conveyance, and such action is not triable to a jury and is appealable.

      L. B. Tanney, for plaintiff.

      E. L. Hessenmueller, contra.
   Henry, J.; Marvin, J., and Winch, J.,

concur.

This ease is here on appeal, and is an action for money and specific performance. The parties are father and son, and the latter sues the former upon a parol agreement by which the son promised to stay at home and work the father’s farm until the father’s debts should be paid, whereupon the son was to receive one hundred dollars per year for the time so consumed and a conveyance to him of the farm, subject, however, to a life lease to be retained by the father.

The amended petition in form embraces two causes of action, of which the first, after setting out the contract, alleges that there is a certain sum of money earned by and due to the ulaintiif. The second cause of action, by appropriate averment. makes the allegations of the first cause of action a part thereof, sets out improvements made by plaintiff upon the farm on the faith of said agreement, and alleges that plaintiff, after having fully performed the agreement requested a conveyance of the farm, which defendant however refused.

The court below sustained a demurrer to the second cause of action, whereupon final judgment was rendered and this appeal Avas perfected. Meanwhile, the first cause of action, being tried to a jury, resulted in a verdict for plaintiff. But on motion the court granted a new trial, so that no judgment for money Avas rendered; and that branch of the case is, in form, still pending in the court beloAV, awaiting such new trial.

The question thus arises at the outset here whether this appeal has brought up both causes of action, or neither, or the second cause only. At the oral hearing and before we had inspected the pleadings, Ave Avere of the opinion, and so stated, that the first cause of action Avas not before us. But on examination of the amended petition we find, as already stated, that the second cause of action by express averment embodies all the allegations of the first cause. This mode of pleading is- expressly sanctioned by the act of May 12, 1902 (95 Ohio Laws, 652). It follows therefore that if the tAVo supposed causes of action are of such a nature that they should or may be lawfully consolidated, the plaintiff has successfully accomplished that result. And if the single cause of action thus stated, is one wherein the right to demand a jury did not exist, the case is appealable (Section 5226, Revised Statutes). Nor is this rule varied by the circumstance that the defendant filed an answer in the court below under favor of Section 5066 et seq., wherein he demands affirmative relief to consist of a judgment for money only. Sallady v. Wall, 2 C. C., 553.

Upon the question whether the cause of action is single- or plural in its nature, the language of Williams, C. J., in Hull et al v. Bell Bros. Co., 54 O. S., 228, 238, is directly in point. He says:

“The action brought by the plaintiff below was one for the specific performance of a contract, by the terms of which the defendants jointly bound themselves, for an entire consideration agreed upon, to convey to the plaintiffs certain designated lands, and pay a specified sum of money. It may be conceded that if, bpfore the bringing of the suit, the stipulations of the contract with respect to the conveyance of the lands had been performed, and no obligation of the defendants remained unfulfilled except that relating to the payment of the money, an action for its recovery would not .be one in which an appeal could be taken. But,, in the action brought, the payment of the money was sought to be enforced in connection with, and as a part of the contract for, the conveyance of the land. The plaintiffs were not required, nor permitted, to divide their action into as many separate ones as there were stipulations in the contract which the defendants were bound to perform; nor, in the same action plead each stipulation as a distinct cause of action. The petition properly states the facts as constituting one cause of action, which is for the specific performance of all the provisions of .the contract which the defendants had bound themselves to perform.”

And in the same case it was held, in the second paragraph of the syllabus, that:

“An action-to enforce the specific performance of a contract for the conveyance of land and the payment of money, is not an action for the recovery of specific property, nor for money only, within-the purview of Section 5130 of the Revised Statutes, and neither party is entitled to demand a jury trial. ’ ’

We hold, therefore, in the case before us, that the case is appealable, that the appeal is not premature, and that it brings the whole case into this court.

Proceeding now to the consideration of the demurrer to the petition, the defendant claims that every aspect of plaintiff’s cause of action is barred by the statute of frauds (Section 4199, Revised Statutes). With respect to the claim for wages it is enough to sajr that the contract was one which might or might not be performed within one year accordingly as circumstances should develop. Such a contract is not within the statute. Randall v. Turner, 17 O. S., 262; Blakeney v. Goods, 30 O. S., 350.

.As;'an. agreement to convey land, the contract is admittedly within the "statute, unless the allegation as to possession and part performance suffice to take it out. The defendant' very properly points out that, inasmuch as the plaintiff alleges that he was to work defendant’s farm and that even when the conveyance to him should be made it would still be subject to the father’s life estate, there would be no such possession by plaintiff as would of itself take the case out of the statute.

But the case is otherwise as to other aspects of the claim of part performance. The plaintiff alleges that he had expended much labor and money in the permanent improvement of the premises by putting in tile drains, a gas well, fruit trees; etc., all of which are manifestly referable to his prospective ownership of the land under this contract. These facts are almost identical with those in O’Hara v. O’Hara, 16 C. C., 367, wherein specific performance of a like contract was decreed by the court, it being held that improvements of a much more equivocal character than those herein alleged, were sufficient to take the case out of the statute of frauds. We are quite in accord with that view, and the demurrer is therefore overruled.


text:
    AS TO TRIAL OF MEMBERS OF COUNCIL.
    Circuit Court of Cuyahoga County.
    The Cleveland Electric Illuminating Company v. Edmund Hitchens et al.
    Decided, March 18, 1905.

      Municipal Corporations — Officers—Trial of.

    Section 225 of the municipal code has no application to the presentation and trial of charges against members of the city council.
   Henry, J.; Marvin, J., and Winch, J.,

concur.

This cause conies into this court on appeal and has been heard here on demurrer to the answers of the defendants. The object of the suit is to enjoin the members of council of the city of Cleveland from enforcing the production by plaintiff of its corporate books of account as evidence before council in the trial of charges presented by the mayor against certain members of council under Section 225 of the municipal code. The municipal code seeks to keep the legislative functions distinct from their executive functions. Section 116 provides that “the legislative power of every city shall be vested in, and exercised by, a council,” the members of which are forbidden by Section 120 to hold any other public office or employment. ’ ’

Section 123 provides that:

“The powers of council shall be legislative only, and it shall perform no administrative duties whatever, and it shall neither appoint nor confirm any officer or employe in the city government except those of its own body, except as may be otherwise provided in this act.”

Section 128 provides that:

“The executive power and authority of cities shall be vested in a mayor, president of council, auditor, treasurer, solicitor, department of public service, department of public safety, and such other officers and departments as are created by this act.”

The. code not only does not mean to grant, but on the contrary it expressly prohibits to council the exercise of administrative power. Hence the phrase “other officers,” in the section just quoted, can not be construed to include members of council. We think it is clear also that when in Section 225, the code provides for presentation by the mayor and trial by council of charges against “the head of any department or officers provided for in this act,” the heads of departments and officers meant are those mentioned in Section 128. It is true that the words “office” and “officer” are sometimes used in the code with the broader meaning, so as to include members of council. But the code’s express separation of the executive and legislative branches of city government seems to indicate a different construction of the provision of Section 225 making it “the duty of the mayor to have a general supervision over each department and the officers provided for in this act” and in proper cases to make charges against them.

This construction of Section 225 of the code does not result in exempting members of council from the presentation and trial of charges against them, for Section 121 of the code and Sections 1732 to 1736, Revised Statutes, make ample and express provision in that behalf. By every rule of construction we are bound to conclude that these provisions of law as applicable to members of council exclude the application to them of Section 225 of the code. The latter contains at most but a doubtful grant of corporate power in this behalf, and such a doubt must be resolved against the existence of the power. It is, moreover, a penal statute, and therefore it is to be strictly construed. Finally, express provisions of law covering the subject of the presentation and trial of charges against members of council must be held to exclude a resort to another similar statutory provision not clearly applicable to them.

Entertaining the view thus expressed we have not deemed it necessary to examine the other questions presented. The plaintiff may take a decree in accordance with the prayer of .the petition.


text:
    ACTION FOR. COLLECTION OF A JUDGMENT FROM AN EXECUTOR..
    Circuit Court of Cuyahoga County.
    Frank H. Ginn, Assignee of the Euclid Avenue Trust & Savings Company v. Alfred C. Hathaway and John H. Farley, Executors of the Last Will and Testament of Charles Hathaway, Deceased.
    Decided, June 4, 1905.

      Executors and Administrators — Creditor's Bill May Reach Funds of Devisee.

    Where a judgment creditor of a devisee seeks by way of creditor’s bill to reach funds in the hands of an executor, the fact that the judgment against the devisees was founded upon a promissory note upon which the testator was contingently liable as accommodation indorser, and that in his will he had directed that all debts or claims against the devisee should be canceled, is no defense to the action of the creditor..

      BlanMn, Bice (6 Ginn, for plaintiff in error.

      Higley ¡é Maurer, F oran l d¿ McTighe and Hogan & Parmely, contra.
   Henry, J.; Marvin, J., and Winch, J.,

concur.

This cause comes into this court on appeal. Frank IT. Ginn, as assignee of the Euclid Avenue Trust & Savings Company, seeks by way of a creditor’s bill to collect from John II. Farley, as executor of the last will and testament of Charles Hathaway, deceased, a judgment for $1,960.05, with interest from January 20, 1904, recovered by said assignee against Alfred G. Hathaway, a son of said decedent.

The action, wherein said judgment was recovered, was brought upon a promissory note of which Alfred G. Hathaway was the maker and Charles Hathaway was an accommodation endorser. It is conceded that there are funds in the hands of the executor of Charles Hathaway’s will, which will under the terms thereof be payable to Alfred G. Hathaway, to an amount sufficient to satisfy this judgment.

The latter claims, however, that under Item 9 of his father’s will, the executor is forbidden to deduct the amount in controversy from Alfred G. Hathaway’s share of the estate. Said item provides:

“I do hereby direct that any note, or notes, check or cheeks, or any written obligation which I may hold at my decease against any legatee in this my will and any indebtedness of any one of them to me shall by my said executor be satisfied and discharged and fully receipted to them and each of them. ’ ’

It is claimed that Alfred G. Hathaway, as maker of the promissory note before mentioned, was liable to his father as accommodation endorser thereof, in such a manner, at the date of the latter’s death, as that, in contemplation of law and within the intention of the testator, there was an indebtedness of the son to the father, and the same is forgiven and canceled by the will.

The liability of the maker of a note, to indemnify' or reimburse an endorser who is obliged to pay the same, is of course contingent until such payment by the endorser occurs. But it is claimed that even a contingent liability of this character is an indebtedness, or more accurately a debt, which the executor- is bound by the will here to satisfy and discharge. Authorities are cited pro and con upon the question whether the word debt is broad enough to include mere contingent liabilities. The Supreme Court of this state seems to have decided this' question in the negative. Boies v. Johnson, 1 C.C.(N.S.), 450 (25 C. C., 331); reversed without report in Supreme Court May 8, 1905.

However this may be, it is pointed out, on the other hand, that the liability of Alfred G. Hathaway thus to reimburse his father, rests upon an implied contract, which is distinct .from their contract with the payee as evidenced by the note. The implied liability is wholly independent of the promissory note. Conceding then that this implied liability must be and is, by the terms of the will, wholly satisfied and discharged, the result thus reached in no way affects Alfred G. Hathaway’s primary liability to pay the note to the payee. And there being funds in the executor’s hands belonging to Alfred G. Hathaway, applicable to the payment of his debt to plaintiff, no reason appears why they should not be so applied, and we so hold. The same principle governs another note of the same parties in the hands of another bank.

Certain other sums of money, aggregating with interest $2,-720.23, were paid by the testator in his lifetime upon obligations similar to the notes before mentioned, and as to these the relations of the parties is manifestly different. The son’s liability to the father had become absolute. But the peculiar circumstances under which those payments were made are claimed to be such as to indicate a breach of trust by the son, which should preclude him from any benefit under his father’s will until he has made full restitution. But the evidence shows that these transactions in the father’s lifetime were so acted upon by him, as shown by his book of accounts, that he must be held to have treated the payments thus made for his son as mere debts of the latter to him. And as to these wre hold that they are cancelled by the will.

There are certain cross-petitioners here whose rights are conceded by all parties, and no discussion thereof now is necessary.

•A decree may be taken in accordance with this opinion.


author: PIenry, J.; Marvin, J., and Winch, J.,

text:
    ERROR. IN CHARGE AS TO CONTRIBUTORY NEGLIGENCE.
    Circuit Court of Cuyahoga County.
    Harry H. Brinkman v. The Cuyahoga Lumber Company.
    Decided, May 29, 1905.

      Negligence — Burden of Proof of Contributory Negligence.

    Contributory negligence is ordinarily a matter of defense and a charge “that before the plaintiff can recover he must show that he was not to blame himself and that his own negligence did not contribute to his injury” was error.
   PIenry, J.; Marvin, J., and Winch, J.,

concur.

The action below was for damages for personal injuries, and the judgment of the court of common pleas must be reversed for error in the charge as follows: “It is his (the plaintiff’s) business to show that the injury which he sustained was because of the negligence of the defendant, or of his teamster, and that it was not because of his own negligence.” And again: “The •first thing that you will have to determine, before you can find a verdict for the plaintiff, is that he was injured through the negligence of the defendant company by its teamster, and that he was not to blame himself, and that his own negligence did not contribute to his injury.”

The burden of disproving contributory negligence was thus cast upon the plaintiff, where it does not ordinarily belong. There was nothing in this case to take it out of the ordinary rule, nor is there anything else in the charge curative of the error thus committed. Reversed and remanded.


author: ITenry, J.; Marvin, J., and Winch, J.,

text:
    DUTY OF RAILWAY EMPLOYEES IN CROSSING TRACKS.
    Circuit Court of Cuyahoga County.
    The Lake Shore & Michigan Southern Railway Company v. Charles Brooks.
    Decided, June 26, 1905.

      Railroads — Contributory Negligence — Duty of Employe, to Look and Listen Before Going upon Tracks.

    It is the duty of employes whose duties require them to cross the tracks in the yards or at the depots of railways to observe a strict lookout, and they are required to look just before going upon the track, or so near thereto as to enable them to get across before a train within the range of their view of the track, going at the usual speed of fast trains, would reach such crossing.

      Brewer, Cook (& McGowan, for plaintiff in error.

      Wm. T.. Clark and W. JZ. Boyd, contra.
   ITenry, J.; Marvin, J., and Winch, J.,

concur.

This proceeding in error is brought to reverse the judgment of ihe court of common pleas. The parties stand here in the relation opposite to that in which they stood below.

Defendant in error, while employed in the repair shops of the plaintiff in error, was struck by a backing engine and seriously injured, while in the act of crossing a track in the railroad yard right in front of the shop door. He brought an action for damages and recovered a large judgment. The only question that we need consider is whether Brooks is chargeable with contributory negligence, for we have no difficulty in coming to the conclusion that the company was negligent and that Brooks did not assume the risk of such negligence.

The facts were presented to us very vividly by means of diagrams and photographs. It is doubtful whether any useful purpose will be served by our attempting here to translate those pictures into words. Suffice it to say that Brooks had long been employed in the shop. At the time of the accident, however, he was repairing a locomotive on one of tbe tracks in the yard, sixty or seventy feet diagonally from the shop door. He had expressed the opinion that the job ought to be done in the shop; but we attach no importance to that utterance. In order to obtain the tools which he needed from time to time for his job, he was obliged to go back and forth between his place of work ^and the shop many times a day, the tools being let out only two or three at a time by means of a check system. One of the yard tracks ivas close to and parallel with the front of the shop. Engines and ears passed along this track frequently, and Brooks had to cross the track in going backwards and forwards with tools. On this track, in the same general direction as Brooks’ place of work, but farther on, there was a turn-table 110 feet distant from the shop, door in front of which the accident occurred. From this turn-table many tracks radiated. Brooks noticed a large locomotive tender standing apparently alone on the turn-table when he started from his place of work towards the shop for a tool on the occasion of his injury. As a matter of fact a small engine was behind the tender, but obscured from view. He looked around once or twice as he walked in the wide space between the tracks towards the shop door, and saw the tender still standing on the turn-table. When opposite the shop door he started to step across the track and Wets struck by the tender which had come silently up behind him. The engine and tender started and ran 110 feet after he had last looked. It came up behind him at least twice as fast as he was walking. Was Brooks under all these circumstances excused from looking just before lie started across the track? In his behalf it is claimed that he was excused because his workshop must be held in effect to have included bis place of work and the intervening spaee, over which, in the course of his work, he was obliged to pass and repass.

It is claimed that he was entitled to a safe place to work, without the necessity of dodging engines and cars while intent upon his work. Defendant in error has at once aided and embarrassed us with a brief so voluminous that we can not discuss it in 'detail. There are however three recent decisions of the Ohio Supreme Court on which he relies. They are: Railroad Company v. Margrat, 51 O. S., 130; C., C., C. & St. L. v. Kernochan, Admr., 55 O. S., 306; Snyder, Admr., v. C., C., C. & St. L. Ry. Co., 60 O. S., 487.

The Margrat case, so far as the syllabus goes, decides nothing but a question of fellow-servant. On the facts as disclosed by the opinion it appears that Margrat, a brakeman, was by the% nature of his duties and surroundings obliged to walk on the track at the time he ivas injured. lie was overtaken' by an engine which he had seen on another track a long distance away and which he had no reason to suppose would come on his track at all. And Margrat was at the time obliged to hurry with his mind intent upon his work. It was a close case and it does not govern this one.

The Kernochan case is another one wherein a railroad man in the performance of his duties was necessarily on a track. His hearing was obscured by the noise of the train passing on another track. His sight was obscured by darkness. Cars were backed down upon him, with no warning light or warning noise. Without these he had not the means of protecting himself. That case is not like this.

The Snyder case is that of a station agent who was obliged to stand on the main track while unloading a car on the adjacent track. He was necessarily relying on the others to keep a lookout for his safety while he was intent upon his work. That case is to be distinguished from the one in hand.

Plaintiff in error relies upon two later decisions of the same court. First of these is The Wabash R. R. Co. v. Skiles, 64 O. S., 458. The first paragraph of the syllabus in that case is as follows:

‘ ‘ The rule of law which excuses passengers from the obligation to observe a strict lookout for tráins and locomotives when alighting from or getting upon trains over the tracks of a railway company, does not apply to employes whose duties require them to cross the tracks in the yards or at the depots of the railway.”

We are totally unable to distinguish this case from the one at bar. We think it necessarily refutes the theory that Brooks was in contemplation of law in his employer’s workshop and under no necessity to observe a strict lookout.

The other case is that of The N. Y. C. & St. L. R. R. Co. v. Kistler, 66 O. S., 326. True it is not the ease of an employe; hut, as we have just seen, the rule as to lookout is the same for employes, except under special circumstances, as it is for anyone else not a passenger. The fifth paragraph of the syllabus is:

“The looking required before going upon a crossing, should usually be just before going upon the track, or so near thereto as to enable the person to get across before a train within the range of his view of the track, going at the usual speed of fast trains, would reach such crossing.”

Manifestly, Brooks did not look “just before going upon the track.” If he had, he would been able to have seen the tender approaching. There was absolutely nothing to obscure his view. We can not escape the conclusion that he is as a matter of law chargeable with contributory negligence.

The judgment below must therefore be reversed, and inasmuch as the facts are conceded and admit of but one conclusion, we deem it not only proper but logically necessary that we should proceed as we do now, to render the judgment which the common pleas court should have rendered, and enter judgment for the plaintiff in error here.


text:
    FRAUD ON THE PART OF AN AGENT.
    Circuit Court of Cuyahoga County.
    The Salem Iron Company v. Leonard B. Miller.

    Decided, June 26, 1905.

      Agency — Agent’s Liability to Principal for Fraud and Failure to Defend Suits. ...
    An agent who enters into a contract on behalf of his principal with another company for whom he is sales agent for merchandise at an exorbitant price and in unreasonable quantities, and who fails to defend an action instituted against his principal in another jurisdiction, and by false testimony in that action aids the selling company to obtain a judgment against the principal, is guilty of fraud for which his principal upon the discovery thereof may maintain an' action against him for damages.

      Billingley cb Clarke and Kline, Tolies ■& Goff, for plaintiff in error.

      Goulder, Holding .cb Maslen, contra.

      Reversed without opinion, Salem Iron Co. v. Miller, 76 Ohio State, 586,

   Henry, J.; Marvin, J., and Winch, J.,

concur.

This proceeding in error is prosecuted-to reverse the judgment on the pleadings, rendered by the court of common pleas, in favor of defendant below. The parties here stand in the same relation as they stood there.

The petition alleges that Miller while secretary of the Salem Iron Company, and while he was also a member of the firm that were sales agents for the Lake Superior Consolidated Iron Mines, acted as agent for both parties in negotiating the sale of iron ore by the latter to the former company at an exorbitant price, and in a quantity far beyond the needs of the Salem Iron Company.

It further sets out that when this came to the knowledge of the board of directors of the Salem Tron Company'they repudiated the contract as unauthorized and void. The mining company thereupon brought an action against the Salem Iron Company in the federal court in Pennsylvania. The latter company then called upon Miller to defend that action, which he failed to do, but instead, as is claimed; assisted the mining company with false testimony and otherwise,, so that it prevailed. This action was thereupon begun by the Salem Iron Company against Miller to recover the amount of the judgment which it paid in the .former action.

The answer here denies the fraud, admits the other essential facts, and alleges that the Pennsylvania case was tried and determined upon the issues whether the contract between the two companies was authorized or ratified by the Salem Iron Company. No reply was filed to his answer.

It is manifest that this is not a case of an agent binding his principal by a contract apparently within, but really without, the agent’s authority. In such a case the agent might be 'liable over. Hiere Miller was admittedly agent for both parties, so that his real and apparent authority were equal. If he did not have authority from the SaLem Iron Company to enter into this contract, then the former action must have been determined as it was, because of a subsequent ratification of the contract by that company. And that being time, it follows that whether Miller did or did not have authority this action seeks to hold him responsible, not for his own act merely, in contracting on behalf of the Salem Iron Company, but for an act which that company either antecedently or subsequently made its own. This it can not do.

It is clearly bound by the adjudication in the former ease, even though Miller was not a party thereto. See Atkinson v. White, 60 Maine, 396.

But it is claimed that Miller fraudulently obtained an unjust adjudication of that issue by his own false testimony, and therefore this action can be maintained upon that ground alone'. We do not concur in this view. The clear weight of authority is that perjury and subornation under such circumstances are not actionable civilly. See 3 Encyc. of Pleadings and Practice, 630, and cases there cited. Also. Taylor v. Birdwell, 65 Cal., 489. To hold otherwise would be to foster endless .litigation over the same subject-matter. The judgment below is affirmed.


text:
    NATURE OF ESTATE GIVEN TO THREE PERSONS.
    Circuit Court of Cuyahoga County.
    S. M. Neville et al, Executors, v. Eugene Lucien Carlet and Marcus de la Rozierre, Guardian, et al.
    Decided, June 26, 1905.

      'Wills — Interpretation—Bequest to Trustees for the -Benefit of Three Persons in Certain Proportions Creates Only One Estate — Payment of Annuities When Income Insufficient.

    1. Where testator gave the residue of .his estate to trustees, to hold one-third part, with all the income therefrom, for the use of his widow for her life, one-third for the use of his son for life, and one-third for the use of his daughter for her life, and after the death of his wife the property given for her use, to be held for *he use of his son and daughter in equal shares; Heló,-. Not to create separate trust estates but that the whole trust estate should be kept as one entire fund and the income divided .among the legatees. ...
    2. Where the income from property upon which an annuity is charged, is for several years insufficient to pay the full amount of the annuity, but in later years leaves a surplus after the payment of the annuity, the annuitant, is entitled to have such surplus applied to the satisfaction of deficiencies in the annuity for the .years it was not paid in full.

      Olds & Willeb, for plaintiff in error.

      M. B. & E. E. Johnson, contra.
   Henry, J.; Marvin, J., and Winch, J.,

concur.

This is an appeal from the court of common pleas in an action to construe a will. Of the questions presented below, only three are again urged here. The last of these questions is premature, and we do not feel justified in undertaking to decide it now. This question is the one relating to-the executor’s duty when one or more of Amanda M. Neville’s children shall die. They are all alive now, and may survive for 'many years. When the exigency arises, the executor may then confidently seek the assistance of the courts in ascertaining his duties in the-premises. It is now an academic question which we must decline to entertain.

On both the other questions our view accords with that of the court below, as expressed in the learned opinion of Judge Lawrence. We find confirmation of this view on two several decisions not cited by him or by counsel. In Bell, Trustee, v. Towner et al, 55 Conn., 364, the syllabus is:

“A testator gave the residue of his estate to trustees, to hold one-third part, with all the income therefrom, for the use of his widow for her life, and one-third for the use of his son T for life, and one-third for the use of his daughter.M for life; and after death of his wife the property given for her use, to be held for the use of his son and daughter in equal shares for their lives. Held not to be the intent that there should be three separate trust estates during the life of the wife and two afterwards, but that the whole trust estate should be kept as one entire fund and the income divided equally among the legatees.”

We think that case is very much in point with the case before us.

On the other question, In the Matter of the Judicial Settlement, of the Accounts of George W. Chauncey, Trustee, etc., 119 N. Y., 77, the syllabus is:

“The will of K gave her residuary estate to her executors in trust, to receive rents, profits and income and after paying therefrom certain specific annuities, among them one of $500 to D, her adopted son, for his support during minority, and $1,000 thereafter during the life- of her husband during his life. After his death to pay to D $2,000 per annum during his life. D survived the husband, and for a number of years after the death of the latter the annual income was insufficient to pay the said annuity in full. Subsequently it exceeded that amount. Upon a settlement of the accounts of the trustee, held, that, in the absence of any language in the will showing a different intent, D was entitled to have the surplus applied in the first balance to the satisfaction of defieiences in the annuity for the years it was not paid in full.”

There are some eases cited in the opinion of the court in this case, the syllabus of which I have just read, which are, perhaps, even more in point than is this one. but I will not stop to read them now, ■ ■

Counsel will see that the journal entry is drawn in accordance with the holding of the court below, excepting as to the one question which we find is prematurely presented here.


author: Henry, J.;'Marvin, J., and Winch, J.,

text:
    MORE THAN ONE MOTION FOR A NEW TRIAL.
    Circuit Court of Cuyahoga County.
    The Independent Coal Company v. C. N. Quirk and P. F. Waltham, Partners Under the Name of Northern Ohio Coal & Coke Company.

    Decided, October 27, 1905.

      Neto Trials — Second Motion for, May Be Filed — Name of Pleading Immaterial — Time for Filing Bills of Exceptions.

    1. A second motion for a new trial may be filed within the three days allowed for filing such motions, when it is based upon a different ground and one not known at the time of filing the first motion.
    2. It is immaterial that a second motion asking for a new trial, upon a different ground from that set forth in the first, is designated by the pleader as an amendment to the first motion.
    3. : Where there has been a second motion for a new trial filed in season, the 'forty days allowed for filing a bill of’ exceptions will : date from the overruling of the second motion, notwithstanding the. overruling of. the first motion and entering of .judgment oh ’. ■’: the sanie day upon which the second motion was filed.

      Kerruish, Chapman Kerruish, for plaintiff in error.

      Hamilton & Hamilton, contra.

       Affirmed without opinion, Independent Coal Co. v. Quirk, 80 Ohio State, 746.

   Henry, J.;'Marvin, J., and Winch, J.,

concur.’

. • -This proceeding in error was. brought to reverse a judgment •for $333.67, recovered at the January, 1905, term-of the Court of Common Pleas of Cuyahoga County, b'y’C. N. Quirk and P. F. .Waltham, partners under the. firm name of Northern Ohio Coal & Coke, Supply Company, an Ohio corporation, in an action upon a contract for tlie sale and delivery of coal by said partnership to said corporation. The parties here thus stand in the relation opposite to that in which they stood in the court below.

After this proceeding in error was commenced, a motion was interposed by the defendants in error to strike the bill of exceptions from the files, upon the ground that the record shows it to have been filed after the expiration of the time limited by law for such filing. Upon diminution of record being suggested by the plaintiff in error, in this, to-wit, that the certified transcript of docket and journal entries filed herein failed to contain the entry of the order made by the court of common pleas, refusing an amendatory motion for new trial, filed by the defendant below. AVe entertained this suggestion and permitted the plaintiff in error to procure a correct transcript. Defendant in error’s objection that the transcript could not thus be amended, after the expiration of the four months period allowed by statute for the commencement of a proceeding in error, was subsequently withdrawn, in view of the rule laid down in Falconer et al v. Martin et al, Admrs., 66 Ohio St., 352. The motion to strike the bill of exceptions from the files was, however, still urged, upon the ground that the time for filing the same was begun, not from the date of the overruling of the amendment to the motion for a new trial but from the prior date when the original motion for a new trial was refused; .and that, on this view, the forty days had expired when the bill was filed. .

The transcript discloses this state of facts, namely: verdict rendered March 25, 1905; motion for new trial filed March 27; amendment filed March 28: motion overruled and judgment entered March 28; amendment to the motion for a'new trial overruled May 12; bill of exceptions filed May 16. It will be observed that both the motion for a new trial and the amendment thereto were filed within the three days allowed by law; that the motion was overruled before that period had expired; that the overruling of the motion took place on the same day as the filing of the .amendment, and that if we consider the order in which they .are recorded in the' transcript as indicating the order in which the events occurred, the amendment, was filed before the motion was overruled. It should be noted, furthermore, that the amendment alleges a ground for new trial not averred in the original motion, and that it was alleged by the mover and found by the court that this new ground was unknown to the former when the original motion was filed. On this state of facts it is cl aimed that the motion and the amendment must be deemed to have been acted upon together, and that the subsequent action of the court, in overruling the amendment alone, was therefore vain and nugatory. Or, if we take the view that the order of events, as recorded in the transcript, is not conclusive with respect to actions which took place in a single day, and that the amendment may therefore be deemed to have been filed after -the overruling of the original action, it is still urged that the court below could not make a valid order overruling it, for several reasons, viz: first, because it is not competent to file an amendment' to a motion which is no longer pending. Secondly, there is no authority for filing within term, a second motion for a new trial, however styled, after a first motion has been disposed of. Thirdly, the ruling, on the first motion, especially when coupled, as it was, with the entry of judgment on the verdict, as required by the present' statute, renders the asserted right to a new trial res judicata, and hence a bar to entertaining a subsequent motion in the same behalf. And if the court, in the exercise of its proper control over its own orders and 'judgments during term, might have vacated its first order overruling the motion for a new trial' and also the judgment that was entered thereon, in order that it might entertain a second motion to the same end. it is argued that no such procedure was observed in this case, and the judgment that was first rendered therein still stands, despite the fact that no judgment could lawfully be entered by the clerk until after the motion for new trial, if any, was finally overruled.

. The whole question thus presented is, so far as we have discovered, a novel one. Two of the points made, may, however, be brushed aside at the outset. There is, we think, no significance in the mere name “amendment to motion for new trial,” which need hinder us from treating this as an independent motion, if the ends of justice shall so require. Compare Klonne et al v. Bradstreet et al, 7 Ohio State, 323. Neither is there anything conclusive about the order in which independent events are recorded in the transcript, if they took place on the same day and the record contains no express recital as to the order of their occurrence.

We have then this question, whether a party may, within three days after the return of a verdict against him, and after the overruling' of his first motion file a second motion for a new trial upon a new ground that was not known by him to exist when his first motion was made. The sections of the Revised Statutes, relative to applications for new trial within term, are 5305 to 5308 inclusive, and they contain no express provision forbidding the practice here in question. Nor does the doctrine of res judicata apply strictly to mere motions even where such motions result in orders that are reviewable. We entertain no doubt that the trial court has full power to permit the filing of a second motion under these circumstances, and while it did not expressly give such permission in the present instance, the fact that it entertained the second motion, by hearing and disposing of it, on its merits, conclusively implies such permission (14 Ency. Pl. & Practice, 176, 183, 184 and 191, and cases cited). The fact that judgment was meanwhile entered by the clerk upon the verdict, whether prematurely or otherwise, under the provisions of Section 5326, Revised Statutes, is not of itself a bar to an application for á new trial. Applications of that nature may be made even after term under Section 5309, Revised Statutes, if th,e ground alleged therefor was not previously discovered by the party applying. It is true 'the application, if made after term, must be made by petition; but in cases where judgment is entered by the clerk, after three days have elapsed without any motion for a new trial having been filed, it can not be doubted that under 5307 the application for a new trial may still be made at the same term by the mere motion of a party who has been “unavoidably prevented from filing the same within such time.” In this case the motion was filed within three days, and having been heard on its merits by the court below, we hold that the evidence introduced respecting the ground of new trial therein asserted, might be, and in this case was, incorporated into a valid bill of exceptions filed within forty days after the overruling ox said motion. Whether the grounds for a new trial, that wore asserted only in the original motion, can be thus reviewed, we do not now decide.

The bill, which we have thus determined to consider; avers that it contains all the evidence adduced on the hearing of said motion. It is claimed, however, that this averment is plainly untrue, for the reason that the court found as a fact that the ground alleged in the motion was unknown to defendant below when his original motion was filed, whereas there is no evidence in the bill upon the subject. The record is perhaps silent as to the evidence, if any, heard by the court upon the question whether the motion vras filed under circumstances which would permit it to be heard at all;. but the court having affirmatively found that question in favor of ‘the plaintiff in error, we can not in the present status of this ease, and on the mere suggestion of the defendant in error, review that finding. And with respect to the evidence heard concerning the ground asserted for a new trial, we must treat the averment of the bill as conclusive in the absence of any disclosure to the contrary.

The bill exhibits the affidavit of the bailiff temporarily acting as such in the trial court when this cause was tried and who was also a witness for the defendant. No other evidence was introduced on the hearing of the motion. He says that, during the progress of the trial, members of the jury discussed with him, and he with them, at intermissions, the general merits of the case, and particularly the meaning of the term “local trade,” which was in issue therein. It is true that he was a witness for the defeated party; but his affidavit avers his familiarity with the coal trade, and we can not presume that the interchange of opinions between him and members of the jury was not prejudicial. Such conduct is grossly improper, and its inevitable tendency is in subversion of justice. We think it showed such conduct of the jury as not only to warrant but to require a new trial. The judgment below is accordingly reversed and the cause remanded.


author: "Winch, J.; Marvin, J., and Henry, J.,

text:
    FAILURE TO INSTRUCT EMPLOYE ENGAGED IN DANGEROUS WORK.
    Circuit Court of Cuyahoga County.
    Jennie Hawkins, Administrator, v. The Lake Shore & Michigan Southern Railway Company.

    Decided, February 21, 1905.

      Master and Servant — Death 6y Wrongful Aet — Failure to Instruct as to Hazard of Employment — Failure of Evidence.

    Evidence that the employer failed to instruct employe as to hazard of employment, and that the employe was killed by an accident in the discharge of his duty, is not sufficient to go to a jury where there is no evidence that the failure to instruct caused the accident.

       Affirmed without opinion, Hawkins v. Railway, 74 Ohio State, 424.

   "Winch, J.; Marvin, J., and Henry, J.,

concur.

Plaintiff in error was plaintiff below and brought her action against defendant to recover damages for the death of her son, which she alleges was caused by the negligence of defendant. The case has been twice tried by jury. The first trial resulted in a verdict for the plaintiff, which this court set aside on the ground that the verdict was not sustained by sufficient evidence and remanded the cause for a new trial. The opinion of the court at that time sufficiently set forth the facts of the ease and the conclusions of the court, rendering extended comment upon the case at this time unnecessary.

Attention, however, is called to what was then said that:

11 The testimony fails utterly to show the manner of his (Hawkins) death. * * * The testimony fails to show that the accident was caused by peril of which it was the duty of the company to instruct the decedent, or that a failure to give such instructions was the proximate cause of his death. ’ ’

The case was tried a second time in the common pleas court and at the close of plaintiff’s testimony the trial judge directed a verdict for the defendant, to review which ruling the cause is here a second time.

While .some additional evidence was introduced at the second trial, it is all along the line of establishing a basis for the presumption that the deceased was upon the top of the car just before the accident occurred which caused his death. With all this additional evidence, after able and exhaustive arguments by skillful counsel and a careful consideration of the evidence, we are unable to come to any other conclusion than that quoted from the former opinion of this court.

The only facts established at the last hearing were: that 'George Hawkins was a brakeman of little experience; an accident happened; Hawkins was killed. There was also evidence tending to show that defendant failed- to fully instruct decedent as to the perils of his occupation, but as to the cause of Hawkins ’ death and that it was due to failure of the company to instruct him of the peril which came upon him and killed him, there was no proof. The negligence complained of was this failure to properly instruct.

The trial court evidently followed the last ruling of this court and 'was justified in so doing. The mere fact of the accident did not raise a presumption of negligence on the part of the defendant. Huff v. Austin, 46 O. S., 386.

There is no presumption that neglect to instruct as to hazards of the employment was the cause of the injury in the absence of proof as to the physical cause of the accident. The theory upon which the case was presented is that a car upon the top of which Hawkins was standing became uncoupled by reason of a defective coupler, collided with another car backed into it by the engineer and precipitated Hawkins between the two ears, because he was uninstrueted as to what to do under the circumstances and for that reason did not know how to save himself.

Circumstances were shown in evidence from which it might be deduced that Hawkins was on top of the ear just as the accident occurred, but they are not conclusive of that fact. A noise was heard “as of cars coming together,” from which it might be inferred that the two cars came together violently; one of them was knocked off the center of its rear tracks — but that they had been uncoupled without Hawkins’ knowledge or active participation therein, there was no proof. They were properly coupled before and after the accident. There was no defect in the couplers shown. That Hawkins was precipitated between the two ears may be presumed from circumstantial evidence in the case, but other circumstances shown, particularly the position of the body when found, would lead to an equally natural inference that he was on the ground, stepped between the two cars, to climb to the top of one of them, and slipped or stumbled and fell under the wheels. Nor is it to be inferred from the evidence, seeing that the evidence as to the physical cause of the accident is largely inferential, that the company could have given Hawkins any amount of- instruction as to the peril he actually encountered, which would have saved his life.

Such being the character of the evidence at the last trial, it would have been error for the tidal judge to submit the case to the jury for its speculation as to the cause of the accident and the negligence of the defendant. Railway Co. v. Andrews, 58 O. S., 426; Railway Co. v. Marsh, 63 O. S., 236; United States v. Ross, 92 U. S., 281; Gerwe v. Consolidated Fireworks Co., 12 C. C., 420; Connell v. Miller, etc., Mfg. Co., 19 Bull., 22.

Judgment affirmed.


author: AVinch, J.; Marvin, J., and Henry, J.,

text:
    [RIGHT OF APPEAL WHERE LAND IS APPROPRIATED FOR PARK PURPOSES.
    Circuit Court of Summit County.
    Mary V. Miller v. The City of Akron.
    Decided, April 15, 1907.

      Eminent Domain — Appeal to Common Pleas from Frótate Court.

    An appeal under Section 6408, Revised Statutes, may be had to. the common pleas court from a decision of the probate court assessing compensation to be paid by a municipality for land appropri- . ated by it for park purposes. • •
   AVinch, J.; Marvin, J., and Henry, J.,

concur.

The sole question raised by these proceedings in error is whether an appeal lies to the common pleas court from a verdict and judgment in the probate court, assessing the compensation to be paid for land appropriated by a municipality for park purposes.

Previous to the enactment of the municipal code in October, 1902, the right of appeal in such cases was granted by Section 2254, Revised Statutes, and the manner in which such appeal might be perfected was prescribed by Sections 2255 to 2259 inclusive. The new municipal code re-enacted the provision of Section 2254, granting the right of appeal (Section 1536-114, Revised Statutes), but repealed the other sections specifying the manner in which the appeal' might be perfected. From this situation the city solicitor concludes that such cases no longer be appealed, and he is right in his conclusion and sustained by a former ruling of this court in the case of State, ex rel, v. Hanousek, unless other sections of the statutes provide the method of bringing such cases into the appellate court. Manifestly the Legislature did not intend to take away the right of appeal, and was of the opinion that other sections fully provide the procedure in appeal, for otherwise it would not have reenacted Section 2254. Having in mind this intention of the Legislature and its judgment, we are called upon to examine Sections 6407 and 6408, Revised Statutes, which, plaintiff in error claims are applicable to this case.

Section 6408 provides what steps shall be taken by “the person desiring to take an appeal, as provided in the preceding section. ’ ’

Section 6407 provides: “In addition to cases specially provided for, appeals may be taken to the common pleas court,” from the probate court in eight classes of cases, to no one of which this case belongs.

In addition to cases brought in the probate court by municipalities for the appropriation of land, there are several other statutes which provide the right of appeal in special eases. Some of these statutes provide that the appeal shall be perfected “as in other cases,” undoubtedly referring to Section 6408 et seq., and some set forth the procedure.

From this we conclude that the general procedure on appeal is regulated by Section 6408, for all cases where special procedure is not provided. To hold otherwise, and to limit the aplieation of the provisions of Section 6408 to the eight classes of cases as to which the right of appeal is “provided in the preceding section, ’ ’ i. e.} Section 6407, would be to take away the right of appeal in many cases by a strict and literal reading of a legislative act, without regard to the manifest intention of the Legislature. We see no necessity for so holding, and thus nullifying not only Section 1536-114 which governs this case, but many other statutes of like import.

The Hanousek case is not in point. When the Legislature created the insolvency court in Cuyahoga county, and provided that appeals might be taken to it from judgments of justices of the peace, without providing how such appeals should be taken, there were no other statutes applicable to the case, and the court properly held:

“If the jurisdiction is conferred by statute, then the court, if no method is prescribed for bringing a case before it on appeal or error, is powerless to prescribe any method by rules or regulations, either in matters of appeal or matters of error, and such court acquires no jurisdiction of such cases.”

In the case at bar the only question is whether the general procedure as prescribed by statutes in force, regulating appeals from the probate court to the common pleas court, apply where the intention of the Legislature is manifest that they should apply, but the wording of the law is doubtful.

The right to appeal being plain, a liberal construction should be put upon the law providing the remedy.

We therefore hold that plaintiff in error was entitled to appeal her case to the common pleas court, and that the said court erred in dismissing her appeal.

Judgment reversed, and cause remanded to the common pleas court for further proceedings.


text:
    ACTION FOR CANCELLATION OF A SUBSTITUTED BENEFIT CERTIFICATE.
    Circuit Court of Cuyahoga County.
    Lena Strauch v. Simon Strauch, Carrie Strauch and the Supreme Council of The Royal Arcanum.
    Decided, May 20, 1907.

      Mutual Benefit Societies — Change of Beneficiary — Ante-nuptial Contract — Premature Action.

    Where a husband and wife, who had entered into an ante-nuptial contract in which he assigned all his property to her, later separated and he took out a second certificate in a mutual benefit association, which, by the by-laws of the association changed the beneficiary; in an action by the wife who was the first beneficiary against the husband, the association and the new beneficiary to compel the cancellation of the new certificate and the recognition of the plaintiff as beneficiary, it was Held: That the action was prematurely brought.

      J. C. Bloch and David B. Stone, for plaintiff.

      C. W. Fuller and Laubscher :c& Kees, contra.
   Henry, J.; Marvin, J., and Winch, J.,

concur.

The defendant, Simon Strauch, is the husband of the plaintiff, and father of the defendant, Carrie Strauch, and a member and certificate holder in the Supreme Council of the Royal Arcanum.

Simon Straueh and his wife were married August 20, 1893; prior to that time they entered into an ante-nuptial contract in writing, whereby he assigned all of his property to her. Hi’s business and health failing, he became unable to support his wife, and they have lived apart since April, 1900; he now lives with one of his daughters by a former marriage, Carrie Straueh.

The ante-nuptial contract makes no specific mention of his death benefit certificate in the Royal Arcanum, but that certificate and a policy of insurance in another company were made payable to Mrs. Straueh in September, 1897. Upon their separation the wife kept the custody of their two children, and by agreement with her husband, kept up the assessments on said certificate, payable, as aforesaid, to her. Some time afterwards, while living with his daughter by the first marriage, Simon Straueh wrote his wife, requesting her to send him said certificate. This request she did not comply with; whereupon, pursuant to- the regulations of the Royal Arcanum in such case provided, he caused a new certificate to be issued to him in place of the former one, with his daughter Carrie as the designated beneficiary. Prior to that time the wife had paid the assessments; since then, the daughter has paid them. They have increased from about $4 ajnonth during the prior period to about $16 per month at the present time.

Mrs. Straueh now brings her action for a cancellation of the substituted certificate and for the recognition of herself as the true beneficiary.

The regulations of the order permit members to change beneficiaries at pleasure, negative the existence of any vested right in a beneficiary, and provide that assignments of death benefit certificates shall be void. The Royal Arcanum is incorporated under the laws of Massachusetts, whose statutes and decisions have recognized and enforced these provisions. The Royal Arcanum is here resisting the granting of the relief prayed for by plaintiff. It insists that the alleged agreement between Mr. and Mrs. Straueh is void and creates no vested right in the latter.

In Tisch v. Home Circle, 72 Ohio State, 233, Davis, C. J., delivering the opinion of the court says at page 260:

“But prior to the death of the insured what enforcement of rights can accrue to the beneficiary ? That is the question which is presented in this case. The insured may acquire rights in his or her lifetime which may be protected by law, but before the death of the insured the contract is in general executory as to the rights of the beneficiary. It may be rescinded by the parties or it may be defeated by failure of the insured to perform. ”

Without assuming to say that Simon Strauch and his wife might not enter into a contract valid as between themselves, whereby he divests himself of the right to change the beneficiary in his certificate, we think this action is prematurely brought. The wife and daughter are contesting about a mere expectancy. There is no fund in existence, for the death benefit, if and when it shall become payable, will be derived from assessments upon the members of the order who shall then be in good standing. It is as if two purchasers of a future catch of fish should litigate the question of their respective rights therein before the fish are caught.

The plaintiff’s petition is therefore dismissed without prejudice to a future action after the death of Simon Strauch.


author: Henry, J.; Marvin, J.,

text:
    TIME WITHIN WHICH A PETITION IN ERROR. MUST BE FILED.
    Circuit Court of Cuyahoga County.
    R. T. Price et al v. John S. Hathaway.

    Decided, May 20, 1907.

      Appeal and Error — Petition in Error — Time Within Which to File.

    Where' parties have waived a jury and submitted their cause to the court the petition in error must be filed within four months from the rendition of the judgment and not from the overruling of the motion for a new trial.

      G. L. Gates and Smith, Taft & Arter, for plaintiff in error.

      James F. Wilson, contra.

       Affirmed without opinion, Price v. Hathaway, 79 Ohio State, 478.

   Henry, J.; Marvin, J.,

concurs.

The petition in error in this cause was filed after the expiration of four months from the rendition of the judgment, but within four months from the overruling of the motion for a new trial. In the trial of the action below the parties waived a jury and submitted their cause to the decision of the court. Section 5326 of the Revised Statutes has no application, therefore, so as to postpone the rendition of the judgment until after the overruling of the motion for a new trial. That section provides, '•‘that when a trial by jury has been had,” this procedure is proper. Here there was no trial by jury, nor can it be said that when the right of trial by jury is waived there is anything analogous to a verdict as distinguished from a judgment to be rendered by the court. Section 5326 can not apply by analogy to the case before us. The petition in error having been filed too late is therefore dismissed for want of jurisdiction.


text:
    ERROR OF ARCHITECT AS TO COST OF BUILDING.
    Circuit Court of Cuyahoga County.
    The Brooklyn Savings & Loan Association Company v. Charles E. Tousley.

    Decided, May 27, 1907.

      Architects — Building Contracts — Architects Plans Must Conform, to Contract,

    Where the contract of an architect called for plans for a building which would cost as nearly as possible $46,088, and the plans prepared were for a building that would cost $50,000, the architect is not entitled to any fees therefor.

      M. W. Cope, for plaintiff in error.
    Smith, Taf t Arter, contra.

       Affirmed without opinion, Tousley v. Brooklyn Savings & Loan Association, 80 Ohio State, 737,

   Henry, J.; Marvin, J.,

concurs.

The judgment of the court of common pleas is reversed and final judgment entered for the plaintiff in error upon the conceded facts in this case. The plaintiff in error contracted in writing with the defendant in error, for the preparation of plans of a building to cost as nearly as possible $40,000. The plans as prepared were for a building that would admittedly cost $50,000. This was not in compliance with the contract, and no fees are recoverable by the architect therefor.

Reversed, and judgment for plaintiff in error.


text:
    EFFECT OF DEMURRER FOR DEFECT OF PARTIES DEFENDANT.
    Circuit Court of Cuyahoga County.
    Myers Heller and Moses Mayers v. Harry Greenberg.
    Decided, May 27, 1907.

      Pleading and Practice — Parties Defendant — Substitution of, Not Cause for Demurrer After Pleading to Merits.

    Where the original defendant is dismissed from a case and another substituted, who answers to its merits, he can not afterwards raise the question as to whether he was properly brought into the case, by demurring to the second amended petition on the ground that there was a defect of parties defendant, when the petition states a cause of action.

      Benesch (& Kornhauser and B. IS. Bruclno, for plaintiff in error.

      Myler c6 Turney, contra.
   Henry, J.; Marvin, J.,

concurs:

The petition in error prays a reversal of a judgment upon the pleadings rendered against the plaintiffs below. The original action was begun February 9, 1905, under the title of Myers Heller and Moses Mayers, as plaintiffs, vs. Jennie Greenberg, defendant, and prayed for the specific performance of a contract for the sale of real estate made by A. Greenberg, alleged to have been acting for and on behalf of the said Jennie Green-berg.

February 17, 1905, an amended petition was filed, under the title of Myers Heller and Moses Mayers, plaintiffs, vs. Harry Greenberg', defendant, thus changing the title of the cause,, in violation of the requirement of Section 4972, Revised Statutes, that ‘"'the title of a cause shall not be changed in any of its stages except when the defendant prosecutes error.” This irregularity, however, seems to have been ignored. No leave of court had been obtained to make Harry Greenberg a new substituted party defendant,' but on May 31, 1906, he answered to the merits, thus waiving this irregularity also.

On 'November 8, 1906, Emma Seidman, Sarah Hammer and Henrietta Greenberg were made new parties defendant, and were subsequently served with summons. Thereafter, various interlocutory proceedings were had, culminating finally in the filing of a second amended petition against Harry Greenberg alone, and an entry of dismissal as to all other parties defendant. Upon the same day Harry Greenberg filed his demurrer in the following words (omitting caption and signature) : “Comenow the v defendant; ■ Harry Greenberg, and demurs to the second amended petition of the plaintiffs herein filed, on the following ground, to-wit: defect of parties defendant.”

On April 25, 1907, this demurrer was sustained, and on April 29. judgment on the pleadings rendered for the defendant, as already stated..

The various changes of defendants in this action seem to have been due to uncertainty on the part of the plaintiffs as to the person or persons on behalf of whom, as owners of the property “A. Greenberg, trustee” was acting when he signed thé contract in question.

The second amended petition alleges that on the date of said contract, Harry Greenberg was the owner in fee simple 'of the real éstate described therein, and that he, “by his agent, A. Greenberg, entered into an agreement in writing with said plaintiffs, whereby in consideration of the sum of nine thousand dollars ($9,000) to be paid to him by the plaintiffs' * * ’ * said defendant was to give said plaintiff a warranty deed” of said premises.

The petition further alleges that plaintiffs tendered the price stipulated and demanded a conveyance of the premises, but that defendant refused to make the- conveyance.

There, is no suggestion in this petition that any other, persons tlian the plaintiffs, the defendant and the latter’s agent, are in any way parties to this contract, or that any other persons tlian .the"principals "named are necessary parties to this action; it 'follows, therefore, that the demurrer for" “defect of parties defén'dañt” should have been overruled.

The contention urged by the defendant, who is also defendant in error here, is that the “defect of parties defendant” comp'ia’ned of consists in the dropping of the original defendant for whom the present defendant is substituted. ITe urges that a complete substitution of parties defendant in this manner is not permissible and that although new parties defendant may be added, a defect of parties arises when the original defendant is dismissed. We think, however, that this is at most a mere irregularity, warranting in the discretion of the court a dismissal of the action, or the striking from the files the pleadings, by which the substitution was, without leave, effected, provided the objection is seasonably made. Under the ample power of amendment given by the code of civil procedure, such an irregularity may, however, be waived, by the substituted defendant pleading to the merits, as in this case was done, when the defendant, Harry Greenberg, filed his answer to the first amended petition.

As said in Becker v. Walworth, 45th Ohio St., 169, 175:

“Our practice encourages great liberality in pleading, and the code enjoins the duty of allowing amendments at all stages of a ease in furtherance of justice. The commencement of the action by the filing of an original petition against defendant as ■executor worked no prejudice to him, and it is not easy to see why such commencement of the action should preclude amendment on the part-of the plaintiff in order to charge him personally. It was no more than the discontinuing of one action and the commencement of another, and this may have been induced by the discovery that the one Avould prove wholly fruitless. ’ ’

Also see L. S. & M. S. Ry. Co. v. Elyria, 69 O. S., 414; McAlpine v. Finsterwald, 57 Ohio St., 524, and Hanna & Finely Co. v. International Petroleum Co., 23 Ohio St., 622.

For error in sustaining the defendant’s demurrer to the second amended petition and for error in rendering judgment in his favor upon the pleadings the judgment.below is reversed, and the cause remanded.


text:
    INJURY TO ONE ALIGHTING FROM TRAIN AFTER ESCORTING PASSENGER ON BOARD.
    Circuit Court of Cuyahoga County.
    The Lake Shore & Michigan Southern Railway Co. v. Selig Dallet.

    Decided, May 27, 1907.

      Railroads — Negligence—Duty to Licensee Alighting from Moving Train.

    Where one who has gone aboard a train to assist another is injured . in alighting from the train after, it is in motion, the railroad company is not liable, if it had not misled him by any false appearance of safety and had not put him Under any compulsion in respect to leaving the train.

      Form, Pearson cO Poioell, for plaintiff in error.

      Neff & McTigue, contra.

       Affirmed without opinion, Dallet v. L. S. & M. S. Railway Co.. 80 Ohio State, 735.

   Henry, J.; Marvin, J.,

concurs.

The sole question is this case is whether one who sustains injuries under the following circumstances, can recover damages therefor from a railroad company.

Dallet, an elderly but vigorous man, assisted his niece to board and find a seat in a Pullman car in the1 evening. The train stopped at that point three minutes. The station was' well lighted. Just before the train started Dallet told the Pullman conductor that he expected to get off. The conductor thereupon told him that the train was about to start; Dallet then followed the conductor to the door.

The door of the car and the vestibule doors over the steps were opened either by the conductor or the porter, or both. Dallet went down the Car steps and got off before the train had gotten away from the station, although it had been in motion from the time he parted company in the car with his niece. Dallet,.however, did not realize it was in motion, bnt the electric lights and the supporting posts of the train shed were directly before his eyes as he left the car, so that, before he stepped off, he could not fail to have known that the train was moving: There was no conversation between Dallet and the trainmen on the platform, but the jury found that their conduct in opening the doors gave Dallet confidence that he could alight from the train safely. This, the jury found specially.

Apparently Dallet stepped off with his back or side to the engine and in such a way that he fell and broke both ankles.

Upon the cpiestion of contributory negligence we are not prepared to disturb the jury’s verdict.

The question of the company’s negligence in prematurely starting the train is by a special charge of the court below to the jury, eliminated from the case presented to us by the record.

In support of the judgment reliance is placed upon the ease of Pittsburg, Chicago & St. Louis Railroad Co. v. Christian Krause, 30 Ohio St., 221, which is also a ease of injuries sustained in getting off a moving train by one who, though not a passenger thereon, was in the position of a licensee or person invited upon the train. It was held in that case that if the conductor ordered or directed the plaintiff to get off the train while it was in motion and thereby induced him, without contributory negligence to do an unsafe thing, the railroad company would be responsible for such injury as resulted therefrom. So, in the case before us, the inquiry is whether or not the conduct of the trainmen amounted to a requirement, command or direction that Dallet leave the train.

Some jurisdictions repudiate the doctrine of Railroad v. Krause, but inasmuch as we feel bound by this decision, we have confined our scrutiny of the case, cited by counsel, and others that we have found for ourselves, to those that 'have been de7 eided in jurisdictions where the doctrine of Railroad v. Krause is recognized.

It is impossible to review all the eases cited and examined, but among them we find two from Iowa, which have seemed to us to be peculiarly applicable,, namely: Vimont v. Chicago & Northwestern Railway Co., 71 Ia., 58, and Galloway v. Railway Co., 87 Ia., 458.

In the latter ease the plaintiff went on the defendants vestibnled train to assist his wife and child, who were about to take passage thereon in the night time; when he went to get off the door was fastened and the brakeman told him he could not get off, that it would break his neck. Whereupon the plaintiff stated that he would pay his fare to the next station; the brakeman then opened the door and, after looking back, told plaintiff he could step down on the lower step and jump far enough so that the train would not hit him, and that he would be alright. The plaintiff asked the brakeman to pull the bell, and he answered that either he could not or would not, and said to the plaintiff— "get off” and closed the door and left him in the dark; he could not tell whether the train had more than left the depot and it seeming not to be going fast, he jumped and was injured. This was held sufficient to support a verdict for the plaintiff.

In Vimont v. Chicago & Northwestern Railway Co., supra, the brakeman told the plaintiff to get off quickly if he was going to, and the court held that this did not amount to a requirement or order to jump from a moving train, and the plaintiff, therefore, could not recover.

The case before us certainly involves no more compulsion than was involved in the Vimont ease, and we think that although the circumstances were such as to impose upon the railroad company the exercise of ordinary care for Dallet’s safety, it was under no obligation to do anything more in this behalf, than to see to it that he was not misled by any false appearance of safety, and that he was not put under any compulsion by it in respect to leaving the train. The • circumstances were such as already shown, that Dallet must have seen that the train was moving. There was absolutely no other danger present. The platform where he alighted was clear, unobstructed and sufficiently lighted.

Unless, therefore, the conduct of the trainmen was of a nature to induce him to believe that he was under some compulsion to leave the moving train, the risk of accident from his so doing was upon him and not upon the company.

The jury eau only have, concluded by their special findings that Dallet was aided or encouraged in the prosecution of his own design, not that any course of conduct was imposed upon him by the trainmen.

For error in submitting the question of the railroad company’s negligence in this behalf to the jury, the judgment is reversed.

We can not comply with the request to enter final judgment here, because the other aspect of the company’s negligence in prematurely starting the train is one which we have not examined, and can not, therefore, affirmatively say to have been correctly decided by the court below. Upon that point we intimate no opinion whatever. It is moreover possible that a new trial of this cause will bring forth other evidence from bystanders which will throw more light upon some of the obscure matters of fact in this ease.