text:
    TENANT’S RIGHT TO PLACE SIGNS.
    Circuit Court of Cuyahoga County.
    The Goodyear Tire & Rubber Company v. The Loomis Realty Company and The B. F. Goodrich Company.

    Decided, January 22, 1912.

      Landlord and Tenant — Sign Rights — Covenant in Lease.

    1. The right to place signs upon the outside walls of demised premises, is appurtenant to the premises and belongs to the tenant.
    2. An agreement in a lease of part of a building that there shall be no signs placed on the building in the space for signs in front and except that the tenant is given the exclusive right to place its own sign on the west side of the building, is a covenant on the part of the lessor as well as a restriction upon the rights of the lessee.

      Ammerman & Thompson, for plaintiff in error.

      Hills & Van Derveer and Hoyl, Dustin c§ Kelley, contra.
    Winch, J.; Marvin, J., .and Niman, J., concur.

      Same judgment rendered in the Common Pleas Court, Goodyear Rubber Co. v. Loomis Realty Co.. 12 N.P.(N.S.), 433.

   The dispute in this case is about a sign on the west wall of a building on Euclid avenue, in the city of Cleveland, owned by the defendant, the Loomis Realty CompanjL

The plaintiff claims the exclusive right to exhibit its sign on said wall, under the terms of its lease with the realty company; the realty company says the lease should be reformed so as to show clearly that the plaintiff is not entitled to the exclusive privilege of a sign on said wall; the defendant the B. F. Goodrich Company claims a right to maintain a sign on said west wall under an agreement with the realty company later in date than the lease of plaintiff.

Plaintiff is tenant of the westerly store rooms in the building, which is two stories high, and, -without any agreement in the lease, it would have the exclusive right to place signs on the lower half of said westerly wall because it is appurtenant to the premises demised to it. 24 Cyc., 1047.

The Goodrich Company is tenant of storerooms further east on Euclid avenue. Having leased the westerly store to plaintiff, and plaintiff having taken possession thereof, the realty company had no right thereafter to give the Goodrich Company any sign rights on the first story of the west wall, unless it reserved said right under the'terms of the lease, the important clause of which reads as follows:

“It is agreed that there shall be no signs placed on the building, except in the spaces for signs on the Euclid front and that the party of the second part may desire to have lettered in gold or silver letters on the plate glass window or doors, except that the party of the second part is given the exclusive'right to place its own sign on the west side of the building occupying a space not exceeding 40 feet in depth from the front corner of the building, and the full height of the building, which wall sign may be illuminated at the expense of the party of the second part, should the second party so desire.”

This language is plain and requires no construction. The first clause, “It is agreed that there shall be no signs placed on the building, except in the space for signs on the Euclid front,” etc., is a covenant on the part of the lessor as well as a restriction upon the rights of the lessee, and would Eorbicl any sign on the west wall, were i1 not for the exception in the last clause, that the plaintiff “is given the exclusive right to place its own sign on the west wall of the building,” etc.

No evidence has been produced before this court that there was any mutual mistake in inserting said clause in the lease, and the cross-petition of the realty company, asking for reformation, is dismissed.

Plaintiff’s lease is dated March 3, 1911; it entered into the possession of its store rooms April 1, 1911; about the middle of the month it painted a sign forty feet wide and two stories high on the front end of the west wall; thereafter the realty company attempted to grant sign space on the west wall to the Goodrich Company, and on May 3, 1911, somebody started to paint ,a sign fifty feet long and two stories high next to the plaintiff’s sign.

The plaintiff immediately protested to the realty company, and two days later, it appearing that the sign would advertise the Goodrich Company, plaintiff, on May 6, 1.911, requested the Goodrich Company to remove its sign, which by that time was complete.

The Goodrich Company, while not claiming any prior contract rights, for the agreements of neither party were recorded at that time, still insisted that it should be permitted to keep its sign in place, because it spent some $150 in painting it, before plaintiff ordered it to stop.

There is no merit in this defense. The Goodrich Company, when it started to paint its sign, knew that the lower half of the west wall belonged to plaintiff, for it saw plaintiff in possession of the west store. This was notice enough of plaintiff’s sign rights on the lower half of the wall, and if the realty company represented to the Goodrich Company that the plaintiff had surrendered any part of said right, the Goodrich-Company might have advised itself of the exact terms of the contract, by inquiring of plaintiff. It was apparently a trespasser on this space, and acquired no more rights to the lower half of the wall than a trespasser.

The upper half of the wall is in like case:

Seeing plaintiff’s sign covering 40 feet of the upper half of the wall, the Goodrich Company was put upon notice and should have inquired of plaintiff, before painting the sign in question, what right the plaintiff had there.

No estoppel here arises; plaintiff did nothing to encourage the Goodrich Company to paint its sign, nor was it guilty of any laches which should now bar it of the relief prayed for.

Plaintiff immediately notified the lessor 'not to paint the sign and within three days, having found out who the aggressor was, it notified the Goodrich Company, which was reasonable dispatch in the premises.

Nor was there any waiver of rights on the part of the plaintiff.

Estoppel, laches and waiver are doctrines applied where the equities require it, but the Goodrich Company having failed to prove any legal right to maintain its sign superior to that of the realty company, growing out of lack of notice, and the realty company having convenated with regard to the matter, its covenant will be enforced.

Judgment for plaintiff as prayed for.


source: Caselaw Access Project

license: Public Domain

text:
    PAROL CONTRACT TO CONVEY LAND.
    Circuit Court of Cuyahoga County.
    Mary Thibodeau v. Barbara Kevern et al.

    Decided, January 22, 1912.

      Parol Contract as to Lands — Statute, of Frauds.

    Payment of the consideration money, possession taken and lasting improvements made by the purchaser of lands under a parol contract, will take the contract out of the statute of frauds.

      H. G. Gahn, for plaintiff in error.

      Kerruish, Kerruish, Hartshorn & Spooner, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.

      Affirmed without opinion, Kevern v. Thibodeau, 88 Ohio State, 603.

   This action was heard on appeal, the plaintiff claiming title to certain premises described in her petition, which she occupies and from which the defendants were seeking to remove her by proceedings in forcible entry and detainer. She asks that said proceedings be enjoined and that she have specific performance of a parol contract to convey said premises to her, and for such further relief as may be just and proper.

We find the facts of the case to be as follows:

Upwards of four years ago the plaintiff, who is a widow with four children, the oldest of whom was then about seven years of age, was living with her brother, John Kevern, and supporting herself and her children by working at Chandler and Rudd’s. Her brother William Kevern was a widower with no children and owned a piece of land at the corner of E. 91st street and Booth avenue in the city of Cleveland, on which there were then two houses fronting towards the west on E. 91st street, in one of which John lived and in the other, on the corner of Booth avenue, William lived.

Being desirous of a housekeeper, to take care of his house and cook his meals for him, and being desirous also of the company of his sister and her children, whom he desired to assist in their hard circumstances, he proposed to his sister Mary, the plaintiff that she give up her position at Chandler and Rudd’s and come and live with him, act as his housekeeper and be company for him, he agreeing to furnish five dollars a week toward the table board and if that was not enough to pay for all the food needed for himself and Mary and her four childre.n, then she should pay for all in excess of that amount, it being understood that she might have her spare time to work and earn money for that purpose. lie also agreed to pay her for her services, but the amount of her compensation was not agreed upon at the time.

So Mary and her children took up their home with William, and Mary gave up her regular position at Chandler and Rudd’s, but found it necessary to work there during noon, or rush hour, and to do sewing and take in washing so as to properly feed and clothe herself and children. In this she had help from William, from time to time, for he gave all of the children clothing and shoes, as did also their Uncle John and their grandfather Thibodeau. Indeed, the family in all its branches seems to have been loyal and worthy, understanding their duty to each other and especially to the widow Mary and her four little fatherless children.

This situation continued for about three years, during which time Mary, when she needed clothing for herself, would ask William for money and for payment for her services as his housekeeper, but he would put her off with a small payment of five dollars, telling her he would make it all right with her in the end.

These requests for payment and conversations about the matter occurred five or six times in the three years.

During these three years, William moved two small houses onto the lot, in the rear of his house, fronting them on Booth avenue; the most easterly of these houses he rented to a man named Chico. It was called the Chico place and is the premises now claimed by plaintiff. Chico had a garden in the yard back of his house and seems to have occupied all the land from the east line of William’s property, to the second little house immediately in the rear of the one on the corner, being twenty-six feet front on Booth avenue and extending back 132 feet to William’s south line.

Finally, about November, .1910, William told Mary that he was going to get married and bring his wife home, and that she would have to get out with her children and their relations-would have to cease. Naturally she wanted to know what was going to become of her and what settlement he was going to make with her for her services, and he said he would give her the Chico place; that it ought to be enough for her, and to this arrangement she assented.

He sent for Chico and told him he would have to get out, for he had given the place to his sister Mary. Chico demurred, said he had always paid his rent, didn’t want to get out and offered $1,000 for the place. William refused to sell, saying he had given the place to M-ary, and if he took the thousand dollars he would have to turn it over to her, and if he did she would spend it, and it was better for her to have the home.

There was no gas in tbe house, and Mary wanted gas pipes run in and two stoves and gas fixtures- installed, but William refused to make repairs or improvements, saying the place was hers and she would have to take it as it was — he had done enough for her. So her brother John put in the pipes and stoves and fixtures, Mary paying for the materials. She also did some papering and painting.

On November 16, 1910, Mary and her children moved into the Chico place and have lived there ever since.

In August, 1911, William was suddenly killed in an accident, never having given Mary a deed of the premises in question. She doesn’t seem to have understood what a deed was, or that she needed one.

William left one child, the defendant, Elizabeth Kevern, and a widow, the defendant, Barbara Kevern; he left no will. About a month after her husband’s death the widow instituted the proceedings in forcible detainer which are sought to be enjoined.

The question is whether the foregoing facts will fake the case out of the statute of frauds.

It will be noticed that the consideration here claimed was the services of the plaintiff rendered to her brother as his housekeeper and companion for three years. There was never any agreement between the parties as to the value of said services; indeed, on account of the relationship of the parties, it is almost impossible to put a value upon them.

ITow far the five dollars a week went to feed the children, we do not know; with the high prices prevailing in the last few years, It could not have gone very far. If for the board of himself and his housekeeper he had to pay only five dollars a week, he got off very reasonably, and if the children of Mary during these three years had a roof over their heads and he paid something towards their food and clothing, it is to be ascribed, in this family at least, to his bounty, rather than to compensation in part for Mary’s services.

Considering the house worth $1,000 it may be perhaps, very liberal to pay for Mary’s services, but the parties having come to an agreement with reference to a matter which is difficult for others to estimate, we conclude that Mary paid full consideration for the premises.

She was also put in possession of the premises.

In 23 Cent. Dig., 2422, pp. 318, it is said:

"Payment by a purchaser of land by parol, of the consideration money, and possession by him, will take the contract out of the statute of frauds.”

Many eases are cited sustaining the text.

Mary also made lasting improvements upon the premises, which though slight, are entitled to consideration.

Tn the case of Shahan, exr., et al v. Swan, 48 O. S., 25, Judge Bradbury, on page 40 of the opinion says:

"Notwithstanding that it is the established rule in Ohio that the payment of the consideration, even in the personal services of the party seeking relief, does not ordinarily constitute such part performance as will take a ease out of the operation of the statute of frauds, we do not wish to be understood to hold that eases may not arise wherein specific performance of a contract in parol may be had on the ground that the consideration had been paid in personal services, not intended to be and not susceptible of being measured by a pecuniary standard.”

In this ease, of course, the services were not rendered on a contract for the purchase of the premises; when rendered Mary expected to be compensated in money, but when she accepted the premises in payment for her services, made improvements upon them of lasting benefit to the freehold and took possession, it would seem that the contract to convey then entered into was completely executed, on both sides, the proper evidence of the transaction, in other words, a deed, only, being lacking, to protect her in her possession.

We have examined the opinion.of this court in the case of Schaefer v. Schultz, decided in June, 1901, and later affirmed by the supreme court without report, 68 O. S., 690, and believe that the principles there announced warrant a judgment in this case in favor of the plaintiff. Indeed, the evidence in this case is clear and uncontraclicted, while the difficulty in the case referred to was in determining who was telling the truth.

In the case of Steinberger v. Hanna, 42 O. S., 305, the court held that possession under the verbal contract, and payment of part of the consideration, took the ease out.of the statute of frauds.

As said in the case of Sites v. Skinner, 6 Ohio, 484, 489:

“The fact of the vendor’s looking on and seeing improvements made, when he intended to avoid the agreement, amounts to a fraud, and it is upon that ground that relief ought to be afforded.” See also Kelley v. Stanberry, 13 Ohio, 408.

The relief prayed for in the petition is granted.


text:
    INJURY RECEIVE!) WHILE OILING MACHINERY.
    Court of Appeals for Mahoning County.
    The National Coal Company v. Earl L. Potts.
    Decided, December Term, 1913.

      Law and, Fact — Determination as to Whether Certain Parts of Machinery Are “Shafting” a Question of Law and not for the Jury, When — Piston Rod, Connecting Rod and CranTe are not Shafting— Section 1027.
    1. Whether certain parts of machinery are shafting within the provisions of Section 1027, General Code, there being no conflict in the testimony as to the character, appearance and operation of such parts, is not a question for the jury but a question of law for the court.
    2. It is reversible error for the jury to find that such parts of machinery are shafting within the provisions of Section 1027 of the General Code, and to return a verdict based in part thereon in favor of the plaintiff in a case charging negligence in respect to the same.

      Charles S. Turnbaugh, for plaintiff in error.

      J. H. Mackey, contra.
    Norris, J.; Metcalfe, J., and Pollock, J., concur.
   This is an error proceeding to reverse a judgment for damages rendered in a personal injury case. The defendant in error, Potts, in his petition in the court of common pleas, after alleging the corporate organization of the plaintiff in error, hereinafter called the coal company, alleges further that on the 27th day of April, 1909, he was in the employ of the coal company operating an engine which was used for the purpose of driving a fan in connection with a coal mine. He further alleges that in the “operation of said machinery the piston rod, the same being about twenty-seven inches long, was fastened at its east end with an iron connecting rod about three feet long, which in turn was connected at its east end with an iron crank about fifteen inches long, the other end whereof was fastened to the south end of said fan shaft, and all the same so fastened together was a shaft operating horizontally near the floor to drive said fan shaft and the fan, and was a part of said engine and an appliance thereof; that when the engine was in operation the movement of the piston rod forward and backward, which in turn drove said crank, causing the crank to move in a revolving manner in a circle having the end of the fan shaft for its center, all the, same together in this matter operating horizontally near the floor, as heretofore alleged, and all of which in operation revolved said fan shaft and the fan attached to the north end thereof;- that in operation the said shaft, consisting of said piston rod, connecting rod and crank, moved in a line parallel with and only about one-quarter of an inch south of the south side of the foundation and the end of the crank whereto the iron connecting rod was attached, at the farthest point to which it was driven in operation, went beyond the southeast corner of the piece of iron resting crosswise on the foundation at the east end about thirteen inches, and went beyond the east edge of the foundation about three inches, and at its farthest point downwards went below the south end of the cross piece of iron and the top of the foundation about eleven inches.”

He further alleges-that the said machine and its appliances were in a defective condition in the following respects: Said revolving fan shaft and the piece of iron whereon its bearings rested was set so near the east edge of the foundation that the crank in its revolution passed beyond the southeast corner of said piece of iron about thirteen inches, and passed beyond the east edge of the foundation about three inches; that the fan shaft extended beyond the south line of the foundation but three inches, because whereof said shaft, consisting of said piston rod, connecting rod and crank, worked on a line within one-quarter of an inch of the south line of the foundation and south' thereof; that the fan shaft and its bearings lay within siy inches of the top of the foundation, by reason whereof the crank in its revolution went beyond the level of the top of the foundation: that the condition of the machine was further defective in these several-respects, to-wit:

“Said shaft consisting of said piston rod, connecting rod and crank fastened together and operating, as hereinbefore alleged, horizontally near the floor of the building, and not eased or boxed, said crank was too long and in revolution described a circle about thirty inches in diameter and passed beyond the southeast corner of said piece of iron whereon the shaft rested, and beyond the east edge of the foundation and passed below the level of the top of the foundation, and in operation was liable to jerk, anything coming in contact with it down between it and the foundation.”

While greasing said machinery plaintiff says that in the exercise- of due care some of the rags in his hand caught in the said crank which suddenly jerked his right hand down between the south end of a piece of iron lying crosswise and said' crank as it descended in its motion, injuring his hand by crushing and cutting off the first three fingers thereof.

The defendant, for answer, denies all charges of negligence and alleges that plaintiff’s injuries were caused by his own negligence. The case was tried to a jury, who returned a verdict in favor of the plaintiff for $2,200, and also, at the request of defendant, returned the following special verdicts:

“Special verdict No. 1. Do you find that said piston rod and connecting rod and crank fastened together was a shaft or shafting? Answer, Shafting.
“Special verdict No. 2. If you find by your general verdict in favor of the plaintiff, state whether or not you find in favor of plaintiff upon all or part of the negligence alleged in plaintiff’s amended petition? Answer, Part.
“If your answer to above question is that you find for plaintiff upon part of the negligence alleged in his amended petition, then state which negligence or negligences you so find in his favor, and also state whether you find that operating alone or together plaintiff’s injuries were caused thereby. Answer, Deficient in construction of foundation ,and lack of boxing or casing of shafting together.”

The first error alleged is that the special verdict No. 1, as submitted by counsel for defendant to the court, did not contain the words “or shafting” ,at the end thereof, and that the court committed error in adding those words to the special verdict.

Without discussing the question as to the right of the court to amend a special verdict, we think the addition of the words “or shafting” were in no wise prejudicial to the defendant.

It is now urged that whether or not this engine piston rod and the connecting rod and crank which turned the shaft were “shafting,” w,as a question of law for the determination of the court and not a question for the jury, and that the court erred in submitting it to the- jury, but this question was submitted to the jury at the request of defendant and if it was error defendant can not now complain. But this still leaves the question as to what it was, and as to whether or not the finding of the jury upon that question was manifestly against the weight of the evidence. It may be said at the start that there was no conflict in the evidence as to the description of the piston rod, connecting rod and crank. Photographs of these appliances were brought into the record showing views of them from different standpoints, and there is no controversy as to how they operated.

The question arises under Section 1027 of the General Code, which provides:

“The owners and operators of shops and factories shall make suitable provisions to prevent injury to persons who use or come in contact with machinery therein, or any part thereof as follows:
“1. They shall case or box all shafting operating horizontally near floors, or perpendicularly between, from or through floors, or traversing near floors, or when operating near a passage way or directly over the heads of employees.”

Now, is the definition or meaning of the word “shafting” as used in that section and applied to machinery, a question of fact for the jury or .a question of law for the court ? And, whichever it is, does the piston rod of an engine, cross head, connecting rod and crank come within the provisions of that statute? There being no dispute as to the exact character of these appliances, we think it was clearly a question of law for the court to determine whether or not these pieces of machinery taken together came within the provisions of that statute. Pa. Co. v. Rothgeb, 32 Ohio St., 66; L. S. 66 M. S. Ry. Co. v. Liidtke, 69 Ohio St., 400; Gas Company v. Archdeacon, 80 Ohio State, 38.

The ordinary meaning is to be given to words used in the statute. Slinghuff v. Weaver et al, 66 Ohio St., 621-627; Smith Brewing Company v. Bowman, 41 Ohio St., 52; Tyler’s Ex’rs v. Winslow, 15 Ohio St., 366.

Two witnesses, both called by plaintiff, who were engineers, testify'in substance that these appliances referred to were not generally understood to be or'called “shafting.” We do not think any definition can be found of the word “shafting” which would include a piston rod of an engine and the connecting rod and crank. We do not think they are ever called shafting by people who describe machineíry, but again, as stated in Rohdes v. Weldy, 46 Ohio St., 324, reading from the syllabus:

“Where the same word or phrase is used more than once in the same act in relation to the same subject-matter and looking to the same general purpose, if in one connection its meaning is clear and in another it is doubtful or obscure it is in the latter case to receive the same construction as in the former, unless there is something in the connection in which it is employed, plainly calling for a different construction. ’ ’

Now, in this same section, Section 1027, sub-division 3, we find the word “shafting” used as follows:

“They shall cover, cut off or' countersink keys, bolts, set screws and all other parts of wheels, shafting or other revolving machinery projecting unevenly beyond the surface of such revolving machinery.”

Clearly the Legislature in the use of the word “shafting” in that section, used it as it is generally understood, as a revolving shaft connecting the power to machinery, and did not use it in the sense of a piston rod and connecting rod. To the same effect is Raymond v. Cleveland, 42 Ohio St., 522-529, and Norris v. State, 25 Ohio St., 224.

So that we find as a. matter of law that the piston rod, connecting rod and crank were not shafting within the meaning of that statute, and that the special finding of the jury is manifestly wrong. It follows from that, that inasmuch as the jury found or based their verdict in part because of lack of boxing or casing of shafting, that their verdict is manifestly .against the evidence.

The judgment of the court of common pleas will be reversed and the case remanded for a new trial.


text:
    WITNESS PROTECTED AGAINST ACTION FOR. DAMAGES.
    Court of Appeals for Jefferson County.
    Edward J. Bickerstaff v. William Hingsley and Edward Bertell.
    Decided, May Term, 1913.

      Privilege — Action Does Not Lie Against Witness for Slander — Not Subject to Givil Action Even Though it be Alleged the Testimony Was False.

    Where a witness in a judicial proceeding testifies to matters pertinent to the issue, an action can not be maintained against him by the party against ■whom such testimony is given, on the ground that ' the testimony is false and was the cause of the judgment rendered against such party.
    Metcalfe, J.; Norris, J., and Pollock, J., concur.
   Plaintiff in error was plaintiff below. A demurrer was filed to the plaintiff’s petition in the common pleas court. The demurrer was sustained by that court and the plaintiff not desiring to plead further judgment was rendered against him on the pleadings. The petition avers, in substance, that in an action in which the plaintiff herein was defendant, an injunction was issued against him prohibiting him from trespassing upon a certain coal mine; that he was arrested upon an order issued in a contempt proceeding for a violation of said order of injunction, and that upon a hearing of such charges in contempt both of the defendants testified that at certain times they had seen him upon the premises doing acts which were in violation of the order of the court. He avers that such testimony was false, and that by reason of such false testimony judgment was rendered against him in the contempt proceeding and he was thereby greatly injured.

The only question presented by the • demurrer in this ease is whether statements pertinent to the issue on trial made by witnesses called upon to testify in a judicial proceeding are privileged, or if a witness having testified to a fact which is pertinent to the issue can be subjected to an action for damages on the ground that such testimony is false. It can readily be seen that if an action can be maintained against witnesses on account of pertinent statements made by them upon the trial of causes in court how very much the administration of justice would be hampered, and what a drag there would be upon the testimony of witnesses. If the rule prevailed that when a witness testifies in good faith in the ordinary course of justice, as they are reqxúred to do, that if they testified against the interest of one of. the parties they could be subjected to an action for damages, how loath they would be to testify at all, and wh,at a great temptation there might be in many cases to obscure or avoid the truth altogether. An examination of the law upon this subject leads us to the conclusion that the rule is an inflexible one that witnesses who testify to pertinent facts can not be subjected to a civil action even though it be alleged that-such testimony is false.

Tn the case of Liles v. Gaster, 42 O. S., 633, it is held that such action can not be maintained. In the opinion on page 635 it is said:

“The general rule is that language used in the ordinary course of judicial proceedings, whether by the judge, a party, counsel, jurors or witnesses is protected if it be relevant to the matter under consideration, and the court have jurisdiction, the privilege accorded to a witness under such circumstances is founded upon public policy. The due administration of justice requires that a witness should be perfectly free to speak according to his belief without regard to consequences. He is sworn to tell the truth, the whole truth, and nothing but the truth concerning the matter in trial. While doing so in good faith he is absolutely privileged, and can not be found guilty of perjury nor is he liable to a civil action; thus far all the authorities agree.”

The question is ably and thoroughly discussed is the case of Hunckle v. Voneiff, 69 Maryland, 169, also reported in 9 Am. St. Rep. 413. I quote from the opinion on page 414, 9 Am. St.:

“The case now before us is not that of an advocate, but of a witness, and in our opinion it is of the greatest importance to the administration of justice that witnesses would go upon the stand with their minds absolutely free from .apprehension that they may subject themselves to an action for slander for what they may say while giving their testimony.”

And again on page 415, after citing ,a number of cases he says:

“Willes, Coleridge, Cockburn, Blackburn, Kelley, Creswell, Lord Cairns, and other eminent jurists have again and again expressed the opinion that the privilege of a witness should be absolute, have pointed out the great benefit of such privilege to the administration of justice, and have deprecated in strong terms the evil consequences tl:ey thought would ensue if witnesses were placed under any intimidation or the fear of being involved in litigation by reason of what they might say when under examination.”

This case holds that a party who utters slanderous words of another while upon the witness stand was not liable to an action for damages for those words. In the note on page 421, quoting from the case of Henderson v. Broomhead, 4 Hurl. & N., 577, it is said: “The rule is inflexible that no action will lie for words spoken or written in the course of giving evidence.” The note in this case in 9 Am. St., supra, contains a very able exposition of the doctrine, and see also 22 Am. & Eng. Ency. of L., 698 (second edition).

It was said in argument that if a judgment be procured by false testimony, if the party can have no redress against the offending witness by way of ,an action for damages that he is without remedy at law, but this is not so. Under the statutes of Ohio, if it be afterwards found that the judgment has been procured in whole or in part by false testimony, and the party giving the false testimony has been convicted of perjury, the judgment may be set aside on the application of the party aggrieved, and an action can be sustained for that purpose. G-enerál Code, Section 11681.

We think the judgment of the court below was right and the same is affirmed.


text:
    DUPLICATE MOTION MAY BE STRICKEN FROM FILES.
    Circuit Court of Cuyahoga County.
    The Poplowsky Plumbing Co. v. D. H. Rosenstein.
    Decided, February 5, 1912.

      Striking Motion From Filos — Duplicate Motion.

    A court is not required to pass upon the same matter more than once; hence there is no error in striking from the files a second motion to vacate a default judgment identical with one overruled five days before.

      Harry Koblits, for plaintiff.

      J. Mendelson, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
   The error here complained of is striking from the files a motion to vacate a default judgment. Such action was taken by the trial court because five days before it had overruled a similar motion made by plaintiff in error.

We see no error in this ruling; the court is not required to pass more than once upon the same matter; otherwise there would-be no end to litigation.

Judgment affirmed.


text:
    NOT BOUND TO ANTICIPATE THE NEGLIGENCE OF ANOTHER.
    Circuit Court of Cuyahoga County.
    Ferdinand Ziganek v. The Cleveland Railway Company.
    Decided, February 5, 1912.

      Contributory Negligence — Automobile Grossing Track in Front of Gar.

    While one about to cross a street car track with an automobile in front of an approaching car is bound to use his faculties for his own protection, yet ordinary care does not require of him that he anticipate negligence on the part of those operating the car, and whether or not he did exercise ordinary care in the light of all the circumstances, in attempting to cross the tracks in front of the approaching car, is a question which he has a right to have submitted to a jury.

      B. Pearce and C. N. Sheldon, for plaintiff in error.

      Squire, Sanders & Dempsey, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
   Tbe plaintiff in error brought suit in the court of common pleas against the defendant in error to recover damages for personal injuries suffered by him when he was struck by street car, operated by the defendant, as he was in the act of crossing to street car track in an automobile.

The pleadings and the evidence shoiv that the plaintiff, between 8 and 9 o’clock in the evening of August 12, 1908, was going westward on St. Clair avenue, in the city of Cleveland, driving an automobile, on the northerly side of the street; that as he approached East 45th street he turned the automobile to the southward for the purpose of going up said 45th street; that as he was turning across the street a suburban oar, owned by the Cleveland, Painesville & Eastern Railway Company, and operated by the defendant, was approaching from the west on the south track in St. Clair avenue; that as the plaintiff was going upon the track on which this suburban car was running, he discovered the ear almost upon him and tried to reverse the automobile, and while so doing the front part of the automobile was struck by the ear and he was severely injured.

It appears further that the car had bright headlights which the plaintiff: claims were so dazzling as to be confusing to the eye and misleading to one not accustomed to viewing the same; that the plaintiff had seen the eár approaching a considerable distance away, and at the time he turned to cross the track for the purpose of going into 45th street, it was opposite East 43rd street, a distance of between 300 and 400 feet from the point where the plaintiff attempted to cross the street; that according to the testimony of certain witnesses the car was running at a high rate of speed, estimated by one witness to be from twenty-five to thirty miles an hour; that after striking the automobile, the car ran a distance of about 125 feet before coming to a stop.

When the plaintiff had rested, the court on motion of the defendant, instructed the jury to return a verdict for the defendant, and it is the correctness of this action that is called in question by this proceeding in error.

The motion was based upon the ground that the undisputed and controlling facts produced in evidence by the plaintiff showed no actionable negligence on the part of the defendant, and that the plaintiff had not' overcome the presumption of contributory negligence.

There was evidence in the case that tended at least to show negligence on the part of the defendant in the operation of the car, and the action of the trial court must lie sustained, if at. all, on the ground that the undisputed and controlling facts showed contributory negligence on the part of the plaintiff.

The rights and duties of those about to cross the tracks of a street railroad at a street crossing are discussed and defined in Cincinnati Street Railway Company v. Snell, 54 O. S., 197, and it was there held:

“A person about to cross the track of a street railway at a street crossing is bound to exercise care proportioned to the danger to 'be avoided, and the consequences which might result from want of it, conforming in amount and degree to the particular circumstances surrounding him; but it is only ordinary care which is required, that which might reasonably be expected of persons of ordinary prudence. Ordinary care does not require him to anticipate negligence on the part of those operating the railway, and while he should use his faculties for his own protection, it is not negligence per se for him to omit to look in both directions for the approach of a car; whether it is or not negligence depends upon the circumstances.”

Applying the principle laid down by the Supreme Court in this case to the one under consideration, it may be said that the plaintiff was bound to use his faculties for his own protection, but ordinary care did not require of him that he anticipate negligence on the part of those operating the car, and whether or not he did exercise ordinary care in the light of all the circumstances, in attempting to cross the track in front of the approaching car, was a question which he had a right to have submitted to the. jury.

There was evidence which tended to show, in some degree, that if the suburban ear had been operated with reasonable care, it might have been stopped after the plaintiff had started across the track, and before the accident occurred. The plaintiff had a right to assume that such reasonable care would lie exercised by the defendant.

The facts in this case are very similar to those in Toledo Street Railway Company v. Westenhuber, 22 C. C., 67, in which parts 1 and 2 of the syllabus read as follows:

“It is negligence in the motorman of an electric street car, when the car is from 150 to 200 feet from a crossing, and he sees a wagon about to cross the track, not to try to stop or slacken the speed of the car until almost at the crossing, when by so doing the collision which ensued might have been avoided.
“It is not negligence in the driver of a wagon to attempt to drive across a street car track ahead of an approaching electric car, when the car is so far away that by the exercise of reasonable care, it might be stopped before reaching the place of crossing.”

It was contended in that case the driver was guilty of contributory negligence in entering upon the tracks, because before his horses came upon the track he distinctly saw the car approaching, nor more than two hundred feet away; that he saw it approaching at a rate of speed that would run Mm down, unless the speed of the team should be very much accelerated' or the speed of the car should be restarted; yet he entered upon the track to cross over, and was struck. • •

In answering this contention the court used language that is pertinent to the circumstances of this case. On page 69 the court said:

"To-attempt to drive across a track ahead of a street ear when 'the ear is so far away that by the exercise of reasonable care on the part of the operators it might be stopped before reaching the place of crossing, is not negligence in our opinion. The rights of the street car company and of the driver of the team being equal at the crossing, he had a right to go over the crossing ahead of the car, nothwithstanding the fact that his doing so would require that the speed of the ear must be retarded to prevent a collision. The one first at the crossing had the right to precede the other in going over the same. It is plain, the driver of the team must take into consideration the fact that the street car can not turn out, it must remain upon the rails, and he must take into consideration the fact that it can not stop instantly, that if it is going at a high rate of speed it may require considerable distance for it to stop; but taking all these things into consideration, if he enters upon the track when the car is so far away as that it may, by the exercise of reasonable diligence on the part of the operator be stopped, he is not, in our opinion, guilty of negligence in thus entering upon the track. ’ ’

The decision of the circuit court in that case was affirmed by the Supreme Court, without report, in 65 O. S., 567, and upon its authority, if no other existed, we would be compelled to reach the conclusion announced.

The-Judgment of the court of common pleas is reversed and the cause remanded for further proceedings.


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    PROPER. CONSTRUCTION OF REPRESENTATIONS DESCRIPTIVE OF OCCUPATION.
    Court of Appeals for Darke County.
    American Fidelity Company v. Maggie A. Patty.

    Decided, January 6, 1913.

      Accident Insurance — Stipulations of Policy Willi Reference to Hazards of Different Glassifications — Overlapping of Occupations and Isolated Acts Involving Greater Hazard.

    In the absence from a policy of accident insurance of an exception based, on specific acts, an isolated act by the insured commonly • connected with a more dangerous occupation than that named in the application for insurance does not reduce the amount of the policy to the basis of the more hazardous risk.

      Dale & Kusworm, for plaintiff in error.

      Bickel & Baker, contra.
    Allread, J.; Ferneding, J., and Kunkle, J., concur.

      Writ of certiorari applied for and refused by the Supreme Court.

   The original action was brought by the beneficiary upon a policy of insurance issued to one W. O. Patty, insuring against loss of life from bodily injury caused by external, violent or accidental means. It is averred that the assured while in the performance of the duties of his occupation as set out in said policy fell from a moving car and was fatally injured.

A number of defenses are set forth in the answer. These defenses, excepting the first, relate to a claim of the insurance company that Patty, at the time of his injury,, was engaged in an extra hazardous occupation which by virtue of the policy itself reduced the claim to the sum of $300.

The case was tried before the court and a jury and resulted in a verdict and judgment in favor of the plaintiff for $6,000, the full amount of the policy. Motion for a new trial was overruled and the case was brought here upon petition in error.

The defense rests upon the following representation in the application and made a part of the policy, to-wit:

“The duties of my occupation are as follows: secretary and manager, office duties and superintendent. No manual labor.”

And also upon the following condition in the policy:

“If the insured is injured fatally or non-fatally while engaged in an occupation or employment, classed by the company as more hazardous than that written in the .application for this policy, the company’s liability shall be only for such amount as the premium paid by him will produce at the rate fixed for such increased hazard in the manual of the company.”

The evidence shows that W. O. Patty, the assured, was a member of a partnershp engaged in mining, washing and shipping gravel and while so engaged, in an emergency as an isolated act, he boarded a small dump car for the purpose of braking it as it descended to the hopper, fell and was injured. The evidence as to these facts is not conflicting, but all the evidence tends to support the facts as stated.

The controversy, is largely, if not wholly, a question of law.

Counsel for the insurance company contend that the company is not liable for the full amount of the policy, but only for the amount provided for in the exception for the extra hazardous o.ccupation. Counsel for the plaintiff below contends that the company is liable for the full amount although the injury grew out of an isolated act involving a more hazardous occupation. The controversy must be determined from the language employed in respect to the occupation and in connection with the general scope and purpose of the insurance contract.

The representations of the assured as to the duties of his occupation were undoubtedly material and a controlling element in the contract of insurance. The condition above recited may be construed as an exception. It was undoubtedly the main purpose of both parties to the insurance contract to stipulate for the full amount of insurance, and that the reduced amount should apply only in the special cases specified in the exception.

In reading and construing the so-called exception, we are justified in following the principle .announced by Spear, J., in the case of The U. S. Mutual Accident Association v. Hubbel, 56 O. S., 516, 527, as follows:

‘ ‘ But it must be borne in' mind that language of exceptions in such policies limiting the liability of the company are to be construed favorably to the insured and doubts and ambiguities resolved against the insurer.”

The representation of the assured’s occupation should not be construed as an absolute guarantee by the assured that “no manual labor” would be performed. In the very nature of occupational insurance such a construction would limit the scope of the policy to a very narrow range. This representation is merely descriptive of the occupation and should be construed with the condition above quoted which contains the stipulation controlling the liability and reducing the amount. The exception is based upon occupation rather than upon single acts involving hazard.

This is an important distinction to be kept in mind 1» reviewing and harmonizing the decisions upon this subject.

The exception under consideration is limited to cases where the insured is injured “while engaged in the occupation or employment classed by the company as more hazardous than that written in the application for this policy. ’ ’ To reduce the company ’s liability to the smaller sum the insurance company contends that the company’s liability is graduated by the hazard and fixed by the classification as applied to the occupation of an ordinary brakeman.

A single act does not determine an occupation. Occupations often overlap and a person clearly within a certain occupation is sometimes called upon in an emergency to perform an act naturally appertaining to a different occupation. Yet in common parlance, the person exercising the isolated act does not change his occupation. The application in the case under consideration notified the insurance company that W. O. Patty was a member of the firm operating this plant, and that in addition to office duties he was superintendent of the plant. It would only be reasonable to assume that while his occupation did not call for manual labor, yet more or less manual labor in connection with the management of the plant would be expected of its superintendent in cases of emergency.

In the ease of The Union Mutual Accident Association v. Frohard, 134 Ill., pages 228, 234, this definition is found:

“The word occupation as found in these by-laws, must be held to have reference to the vocation, profession, trade or calling which the assured is engaged in for hire or for profit, but not as precluding him from the performance of .acts and duties wdiich are simply incidents connected with the daily life of men in any or all occupations, or from engaging in mere acts of exercise, diversion or recreation.”

In Hess v. Preferred Masonic Mutual Accident Association of America, 112 Mich., 96, it is held:

“A provision in an accident policy that it shall be void as to all accidents occurring to the insured when engaged in ,any profession, employment or exposure not rated as preferred, does not apply to the casual performance of an act pertaining to an accepted risk if in the particular ease it pertains incidentally to the regular employment of the insured.”

Niblack on Accident Insurance, Section 409, holds: .

“A change of occupation means an engaging in another employment as a usual business. It does not apply to temporary employment during leisure hours, to acts done outside of one’s usual and ordinary business, or the casual employment in a different business. ’ ’

We find the same principle maintained by the following eases cited by counsel for plaintiff below: Administrator of Stone v. Casualty Company, 34 N. J. Law, 371; N. A. Life Insurance Company v. Burroughs, 69 Penn. State, 43; Tucker v. Insurance Company, 50 Hun., 50; Berliner v. Travelers Insurance Co., 121 Cal., 458; Standard Life Insurance Co. v. Fraiser, 76 Fed., 705; Brink v. Guarantee Mutual Accident Association, 55 Hun., 606; Johnson v. London Guarantee Company, 115 Mich., 86; Kentucky Life & Accident Insurance Association v. Franklin, 102 Ky., 512; Wildey Casualty Company v. Shepard, 61 Kans., 351; Schmidt v. American Casualty Accident Association, 96 Wis., 304; Holliday v. American Mutual Accident Association, 103 Ia., 178; Huffman v. Standard Life & Accident Company, 126 N. C., 337.

The eases chiefly relied upon by counsel for plaintiff in error are founded upon exceptions which are specific as to the act from which the injury resulted. The exception in those eases relates not merely to the occupation but to the classification of the particular act or hazard from which the injury resulted.

Counsel for plaintiff in error especially rely upon the unreported case of Gotfredson v. German Commercial Accident Company, tried before Judge Angel of the United States District Court of Michigan in 1912, wherein there was an instructed verdict for the insurance company upon the basis of an extra hazardous risk.

The application contained the following statement:

“My occupation and duties are fully described as follows; proprietor; no manual labor.”

The exception clause of the policy was as follows:

“If the assured is injured after having changed his occupation for one classified by the company as more dangerous than that herein stated or is injured while doing any ,act or thing pertaining to any more hazardous occupation, the liability for any loss specified shall be such an amount as the premium paid by him will purchase at the rate fixed by this company for such more hazardous occupation.”

An examination of this exception clause will disclose that it is based not only upon a change of occupation, but also upon the “doing any act or thing pertaining to any more hazardous occupation.” This is, in our opinion, a clear distinction between that case and the one at bar wherein the exception is based upon occupation and not upon specific acts. We have examined the following eases cited by counsel for plaintiff in error. Lane v. Insurance Company, 113 Southwestern, 324; Moody v. National Masonic Accident Association, 92 Northwest, 613; Eggenberger v. Guarantee Mutual Accident Association, 41 Fed., 172; Metropolitan Accident Association v. Hilton, 61 Ill. App., 100; Railway Officials & Employees Accident Association v. Bradley, 97 Ill. App., 355; Loesch v. Union Casualty Co., 176 Mo., 654.

These eases have a stipulation or exception very similar to the one involved in the Gotfredson case.

We have examined the other citations made by counsel for plaintiff in error and we find that most, if not all of them, are eases where there was an actual change of occupation, and not involving isolated acts. See Standard Life & Accident Insurance Co. v. Cartoll, 86 Fed., 567; Employers Liability Co. v. Back, 102 Fed., 229; Aldrich v. Mercantile Accident Association, 149 Mass., 457.

In Thomas v. Masonic Fraternal Accident Association, 64 App. Div. (N. Y.), 22, the exception related to injury in any occupation, temporary or otherwise, involving extra hazard as classified. The exception was held to apply to the case of a lawyer injured while engaged in hunting.

In Estabrook v. Union Casually & Surety Co., 74 Vt., 473 (52 Atl., 1048), the assured classified as “proprietor of gist mill, supervision only” was injured while using a hay rake, upon his father’s farm. Held-. Liability reduced to basis of more hazardous occupation, but distinguishing the case upon the ground that the assured’s temporary occupation was not incidental to that represented in the policy.

In Knapp v. Preferred Mutual Accident Association, 53 Hun., (N. Y.), 84, the operation of the buzz saw, which occasioned the injury, was not a mere isolated or emergency act, but more or less a feature of the assured’s occupation.

So far as we have been able to ascertain there are no cases except the Thomas and Estabrook .cases where it is held that an isolated act involving a more hazardous occupation reduced the amount of the policy to the basis of the extra hazardous risk in the absence of an exception based upon specific acts.

We, therefore, hold that the engaging by the assured in an isolated act outside of his represented occupational duties, but incidental thereto, does not violate his policy nor under the general terms of his policy reduce the company’s liability to that based upon a more hazardous occupation.

Tt follows that the trial court correctly instructed the jury rs to the basis of liability, and that the evidence justified recovery of the full amount of the policy.

Tlie-re is an objection to the charge of the court as to the burden of prooí. AVe are inclined to think that this charge is in harmony with the opinion of Judge Spear in the Hubbel case above cited. Still if the charge as to the burden of proof is erroneous, wc would be required to ignore it under .Section 11364, and sustain the verdict and judgment because in harmony with the substantial justice of the case. AVe are greatly indebted to counsel for the aide presentation of the questions represented by the record and the thorough research and review of the many authorities bearing upon the law of the case.

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


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    MAINTENANCE OF CHILD BY DIVORCED HUSBAND.
    Court of Appeals for Hamilton County.
    Emil Gebert v. Joseph Howard.
    Decided, April 12, 1913.

      Parent and Child — Claim of Husband of a Divorcee for an Additional Amount for Support of Her Child Will Sot be Upheld, When.

    Where a divorced woman remarries, and her first husband contributes to the support of her son who remains in her custody, the second husband can not, after a lapse of five years or more, maintain an action against the first husband on a claim then for the first time asserted for a balance due for the boy’s maintenance.

      M. C. Lykins, for plaintiff in error.

      H. H. Hosbrook, contra.
    Jones, O. B., J.; Jones, E. H., J., concurs; Swing, J., not sitting.
   Plaintiff married’ the divorced wife of defendant, who was the mother of defendant’s son then about eleven years of age. The boy was brought by his mother into the household of plaintiff and became a member of his family. Under successive arrangements between the boy’s mother and the defendant weekly sums were paid to her by defendant for the maintenance of the boy, being first at the rate of $2 per week for a period of 86 weeks; then $4 per week for 88 weeks, and then $5 per week for the remainder of the time. When these sums were received by the mother she turned them over to the step-father, plaintiff herein, who admits that he knew she was receiving them from the boy’s father, defendant herein, but denies that he knew the terms of any contract or contracts for same made with him by the mother.

Plaintiff, however, made no objection to defendant as to the amounts that were being paid by him, and appears to have made no demand for any additional payment until the bringing of this suit, in which he claims for the full period -from June 27, 1906, the date of his marriage, to January 6, 1911, at the rate of $4.50 per week for board and clothing furnished the boy and allowed a credit for the total amount paid of $820 — claiming a balance of $246.50.

There is no evidence that the amount claimed was the value of the necessary board and clothing or that the father had failed to supply same. .

Under the facts shown by the evidence, it is a question whether plaintiff has not placed himself in loco parentis with relation to the boy, and whether he could make a claim against the boy’s father for maintenance after it had been furnished without any arrangement or contract with him, and without showing demand upon him to furnish such necessaries and failure oh his part to do so. But the continued receipt by plaintiff, without objection, of the weekly payments as made by defendant to the mother, leads to the belief that he must have been informed of the contract with the mother and assented to it, or if not fully informed that he must have been satisfied at the time with the amounts paid.

The court below instructed a verdict for defendant. On consideration of the testimony set out in the bill of exceptions and the record of the case below the court finds no error to the prejudice of plaintiff and the judgment is affirmed.


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    DAMAGES FOR. WRONGFULLY ATTACHING PROPERTY.
    Circuit Court of Cuyahoga County.
    Glenn E. Griswold and The Bankers Surety Company v. Helen Tucker.
    Decided, February 5, 1912.

      Bond of Justice of the Peace — Surety Liable for Misconduct of Special Constable — Statute of Limitations.

    The obligation on the part of a surety on the official bond of a justice of the peace to respond in damages to one who has been injured by the misconduct and illegal acts of a special constable arises out of the bond on which he is surety, and the limitations on an action brought to enforce such obligation is ten years.

      C. A. Dille, for plaintiff in error.

      Harry F. Payer and H. A. Cummings, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
   ‘On the 8th clay of August, 3902, the plaintiff in error, Glenn E. Griswold, was a justice of the peace in and for the township of Collinwood, in Cuyahoga county, and the plaintiff in error, the Bankers Surety Company, was surety on his official bond. On the day mentioned, the said Glenn E. Griswold, in a certain action pending in the court of said justice appointed one R. A. Hudson special constable for the purpose of attaching certain property of the defendant in that action, under an order of attachment issued therein. Hudson, acting as such special constable, wrongfully attached and held property belonging, not to the defendant in said action, -but to Helen Tucker, the defendant in error, who in another suit begun in the court of another justice of the peace against Hudson recovered a. judgment against him on the 20th day of August, 1902, for the value of the property wrongfully attached and damages- for its illegal detention. This judgment not being satisfied, the defendant in error, on May 26. 1909, brought suit against the plaintiffs in error in the court of common pleas to recover the amount adjudged her in her action in the justice court, and other damages suffered by her on account of the misconduct and illegal acts of the said special constable. In the court below the defendant in error recovered a judgment against the plaintiffs in error, which the latter seek in this proceeding to have reversed.

The plaintiffs in error contend that the cause of action sued upon was barred by the- statute of limitations, and that the trial' court erred in not so holding.

This contention is based upon the claim that the cause of action set forth in the petition is governed by the limitation prescribed by Section 11222, General Code, which contains- a provision, in substance, that an action upon a liability created by statute, other than a forfeiture or penalty, can only be brought within six years after the cause of action accrues.

The defendant in error contends that Section 11226, General Code, controls the time within which her action could be brought. This section is as follows:

“An action upon the official bond or undertaking of an official, assignee, trustee, executor, administrator or guardian, or upon a bond or undertaking given in pursuance of a statute, can only be brought within ten years after the cause of action accrues; but this section shall be subject to the qualifications in section forty-nine hundred and seventy-six.”

A determination of the nature of the cause of action contained in the petition of the plaintiff- in the court of common pleas will decide which of the sections- of the statutes referred to should -govern. Tf the cause of action is one founded upon a liability created by statute, it would be barred in six years; if the action is upon the official bond of the plaintiff in error, Glenn E. Griswold, the time would be ten years.

■ The authority for the appointment of a special constable by a justice of the peace is found in Section 3333, General Code, which, after conferring the power upon the justice to make such appointment in certain eases, provides:

11 Such justice shall stand as surety, and shall be -in that character liable, he and his sureties, for any neglect of duty or any illegal proceedings on the part of such constable so by him -appointed.”

The only obligation of the sureties on the bond of a justice of the peace must be based upon the bond itself. Their liability arises by reason of their having signed the bond. In executing that instrument as sureties they would be held, however, to have acted in contemplation of the law making them liable with their principal for the neglect of duty, or illegal proceedings on the part of any special constable. The law fixing this liability would, in legal effect, become a part of the terms of the bond itself, whether written therein in express terms or not. The obligation on the part of a surety to a justice of the peace to respond in damages to one who has been injured by the misconduct and illegal acts of a special constable would, therefore, arise out of the bond on which he is surety, and the liability of his 'principal, the justice of the peace, would be of the same nature.

Tn reaching this conclusion we are supported by the authority of Dummick v. Howitt, 40 O. S., 646, where it was held:

“Under a bond given by a justice of tbe peace conditioned as required by Section 579 of the Revised Statutes, the sureties are liable for any neglect of duty or any illegal proceedings on the part of a constable appointed by said justice under Section 6685, by virtue of Section 6687.”

The liability of the plaintiffs in error to answer for the wrongful acts of the special constable is founded on the official bond, given by one of them as principal and the other as surety, and Ihe petition itself shows' that the bond is made the basis of the action. Section 11226, General Code, therefore, fixes the time within which the action must he brought, which is ten years, and since that time had not elapsed when the action was started, the claim sued upon was not barred, and the court below committed no error in so deciding.

We find no error in airy of the other matters complained of in the petition in error, and the judgment of the court of common pleas is affirmed.


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    SUBMISSION OF REQUESTS TO CHARGE AS AN ENTIRETY.
    Circuit Court of Cuyahoga County.
    The Schatzinger Consolidated Realty Company v. E. M. Stonehill et al.
    Decided, February 5, 1912.

      Damages for Breach of Land- Omití act — Special Damages — Request to Oharge Before- Argument Presented as Series.

    1. Where a series of requests to charge before argument is properly presented, but the submission of them is as an entirety, or as a series, if one or more of the requests does not correctly state the law applicable to the facts submitted to the jury, it is not error to refuse to give the entire series.
    2. When special damages are alleged to have resulted from the breach of a contract to convey lands, the plaintiff is entitled to a charge sufficiently comprehensivo to enable him to recover such damages as arose naturally and proximately from the breach of the contract and such as the parties to the contract at the time it was made must reasonably have contemplated as a probable result of the breach.
    3. In an action for the breach of a land contract, plaintiff is not entitled to compensation for expenditures made before the contract was entered into, looking towards its consummation.
    P. G. Kassullter, for plaintiff in error.

      White & Grossner, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
   Tlie order of the parties to this proceeding was reversed in the court of common pleas. When the terms “plaintiff” and “defendant” are used reference is made to the parties as they stood in the original action.

The plaintiffs’ amended petition filed in the court below sets up a cause of action for damages for breach of a parol contract for the sale of certain real estate in the city of Cleveland, possession of which, it is claimed, had been given to them by the defendant pursuant to such parol agreement.

It is urged that there was error in the refusal of the trial court to grant the defendant’s motion to direct a verdict in its behalf and to arrest the testimony and evidence from the jury.

In support of this position, the defendant contends that while the contract sued upon in the amended petition is averred to be a parol contract, the evidence discloses'a. contract in writing with parol modifications, and that the plaintiffs therefore failed to prove the contract declared upon.

The writing which the defendant claims constituted the contract between the parties was offered in evidence, and an inspection of this writing discloses a written application signed by one of the plaintiffs, in which he applies to the defendant for the purchase of the real estate in question upon certain terms that are specified in the writing. There was a conflict of the evidence as to whether or not this constituted the contract which Avas entered into by the parties, or whether the contract actually entered into AAras a parol contract, and the question was properly submitted to the jury under adequate instructions from the court, to say what the contract ¡between he plaintiffs and defendant in fact was, and we find no error in the action of the trial court in refusing to direct a verdict for the defendant.

It is also contended that the court below committed error in refusing to instruct the jury before argument, as requested by the defendant. After the plaintiffs and defendant had rested, and before argument, the defendant submitted to the court eight requests to charge. These requests were written on separate sheets of paper and separately numbered. The court refused to give these requests on the ground that the defendant had not complied with the statute, Section 11447 of the General Code, AAdiich provides that "When the evidence is concluded, either party may present written instructions to the court on. matters of law, and request them to be given to the jury, AAdiich instructions shall be given or refused by the court before the argument to the jury is commenced.” Some of these separate propositions of law were correct and applicable to the facts in issue; others were not. The manner in which the request was made indicates that the court considered that the defendant had asked to have the eight different requests to charge before argument given as -an entirety and not separately! In this view of tlie matter, the trial court was justified in refusing to comply with the request made. While the position of the court was perhaps somewhat technical, we are of the opinion that the position assumed was not erroneous, since the charges to be given before argument must be given as submitted without submitted to be given as an entirety, or as a series, did not cormodifieation, or entirely refused. If any one of the requests submitted to be given as an entirety, or as a series did not correctly state the law applicable to the facts submitted to the jury, they should all have been refused, and this is apparently the view of the court in the matter.

Another ground of error is said to exist because of the rule adopted by the trial court for the measure of damages, the defendant contending that the court misconceived the proper measure of damages to be applied to the facts- in the case should the jury find for the plaintiffs.

The question of what was the true measure of damages to be adopted was raised by objection to the introduction of evidence in support of certain items of damage claimed by the plaintiffs, by exceptions to the instructions of the court on this subject, and by the refusal of the court to give certain instructions requested by the defendant in which a different rule was set forth than that adopted by the court. To determine what damages the plaintiffs were entitled to have -awarded them by the jury, if the verdict should be in their favor, a brief reference to the facts will be necessary.

The plaintiffs, in their second amended petition, allege that the contract on which their action was founded was entered into on the 25th day of March, 1909, and that it was to be consummated upon the terms set forth on or before 'the 15th day of April, 1909. They further allege that they were to be given immediate possession of the premises purchased, and were to erect an apartment building thereon; that they paid to the defendant $100 of the purchase price of the premises -and entered into possession of the same; that they had plans and specifications prepared for the apartment building to be constructed on said premises; that they entered into contracts for the construction of said apartment building and brought to the premises stone, brick and other materials', and made the necessary excavation for the building.

The evidence shows that the payment of $100 was made by the plaintiffs to apply on the purchase price; that they entered into possession of the premises and did some work toward the erection of an apartment house on the premises; that on the 13th day of April, 1909, the premises claimed to have been bought by the plaintiffs were conveyed by the defendant to third parties. The right of the plaintiffs to take possession of the premises in question was denied by the defendant, but on this issue the verdict shows that the jury found with the plaintiffs.

The court instructed the jury on the measure of damages in this language:

"I say to you then, and you may appfy the law as here given to the facts in this case, that where two parties have made a contract which one of them has broken, the damages which the other ought to receive for such breach should be such as may fairly and reasonably be construed as arising naturally, that is, according to the usual course of things from such .breach of contract itself, or such as may fairly and reasonably be supposed to have been in the contemplation of the parties at the time they made the. contract as a probable result of the broach of that, contract. Now, if the special circumstances, if any such you find there were in this case, under which the contract was actually made if you find that such a contract was in fact made, if these special circumstances were known to both parties, the damages resulting from the breach of such contract which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under the special circumstances so known to each party and communicated fo each other in the. negotiations; but on the other hand, if these special circumstances, if any you find, were wholly unknown to the party breaking the contract, that would be the defendant in this case, if you find that he broke it, he could at the most be held only for such damages as would arise and flow naturally and proximately from such a breach of contract. The general principle of compensation is that it should be equal to the injury in every case.”

The charge enlarged upon this general principle somewhat at length, and certain features of the charge will be referred to hereafter.

There is much diversity among the authorities as to what the true measure of damages for .breach of contract 'for the sale of real estate is. In an ordinary contract for the sale of real estate, where the vendor at the time of making the contract has title and afterwards refuses to convey, or puts it out of his power to do so by conveying the title to another, we believe the true rule of damages to be laid down in Dustin v. Newcomer, 8 Ohio, 50, which is as follows:

“When a vendor has a title and refuses to convey, or when he disables himself from conveying by parting with the title, the rqle of damages to be enforced in equity is the value when the conveyance ought to have been made. ’ ’

In Sedgwick on Damages, Section 1012, the subject is dis»cussed in the language following:

“If the defendant fails to convey because he has not a good title, he is always liable in substantial damages. This is commonly called the United States Supreme Court rule, and repre^ sents one extreme of the series of principles of which the highest English court has adopted the other extreme. It seems to be the correct one on principle. It may be said in its favor that it is unjust to bold the vendee to bis contract to pay, if, before the contract is to be performed, the land decreases in value, while if it increases in value, the vendor is liable only for nominal damages; that it is the object of courts of justice to carry out the contracts of the parties as far as possible, and that the specific act agreed to be done should be performed. If the party omits to do what he stipulated, it is just, as a reasonable substitute, that he should pay the precise value of the thing which he contracted to do; .and such value to be estimated at the time when the act in question should have been executed.”

It will be seen that the trial court did not, in express terms, charge according to the rule laid down in Dustin v. Necomer, supra, but it will farther lie noticed that this action involved certain special circumstances. Tt was claimed by the plaintiffs that the premises involved were bought for the express purpose of building thereon an apartment house; that this fact was known to the defendant, and that the plans for such a building were discussed with the officers of the defendant, and that the defendant knew of the commencement of the work, of building the apartment. There was evidence tending to support the plaintiffs ’ claim in this respect, and the jury would have been justified in finding that the special purposes to which it is claimed the real estate was to be devoted were in contemplation of the parties at the time the contract was entered into, and that the defendant was aware of the steps taken by the plaintiffs to achieve these purposes. No evidence was introduced as to the value of- the premises at the time the alleged contract was to be carried out, and we think that the plaintiffs were entitled to a charge sufficiently comprehensive' to enable them to recover such damages as arose naturally and proximately from the breach of the contract, and such as the parties to the contract must reasonably have contemplated as a probable result of the breach of that contract when it was made, in case the jury should find that there ivas a contract and that it had been broken by the defendant.

We think there was no error in the charge as given insofar as that portion of it hereinbefore quoted is concerned.

The court, however, during the progress of the trial, had admitted evidence in support of an item of damages claimed by the plaintiffs amounting to $275 for certain plans for the proposed apartment house, which were obtained by the plaintiffs while the negotiations for the purchase of the premises were being carried on. It appears that the obligation to pay this $275 had been incurred befor the contract claimed by the plaintiffs to have been made, had been entered into. The court in its charge used language -authorizing the jury to take into account this item incurred for the plans and specifications. In the admission of evidence in support of this item of damages, and in instructing the jury that they might consider this in assessing the damages, if they should find for the plaintiffs, we think the court erred. The plaintiffs were not entitled to recover any damages for any expenditures m-ade by them looking toward the consummation of the contract, and the argument that such expenditures have proved useless expenses by reason of the breach of the contract, is of no avail. Sedwich on Damages, Section 1017.

The jury returned a verdict for the plaintiffs for $1,200. The evidence submitted to the jury tended to establish items of damage suffered by tbe plaintiffs in addition to the $275 item already referred to, in the following amounts: $85 paid to the architect for services rendered after the contract claimed to have been entered into was made; $119.20 paid to the contractor who was given the contract under which the work on the apartment house was done; $150 also paid to this contractor, and another amount of $41. paid to him; $100 on the payment of the purchase price, on which interest amounting to $14.82 might and doubtless was figured by the jury. If all of these various amounts, including the $275, are added together, it will be seen that the aggregate is $785.02. The remainder of the verdict, amounting to $414.98, if arrived at in view of any evidence submitted at all, must have been allowed on the basis of compensation to the plaintiffs for the time spent by them in preparing to build the apartment house which they designed to erect on the premises, and in carrying out such work as was done before the controversy arose. There was no evidence given as to the value of this time or the value of this class of services, although there was evidence bearing on what was done by the plaintiffs and the amount of time.spent by them.

It is doubtful whether, under the -charge of the court, the jury could have understood what rule they were to follow in making allowance, if at all, for this particular part of the plaintiff’s damages. Under proper instructions they would have been justified in making some allowance, but the amount of $414.09 under any possible instructions, in the light of the evidence introduced on this subject, seems to be excessive, and it is our opinion that $100 would be a liberal allowance for this particular part of the plaintiff’s damages.

As we view the matter, therefore, the erroneous admission of evidence in support of expenditures made previous to the entering into the contract between the plaintiffs and the defendant, and made for the express purpose of trying to secure such a contract, coupled with the erroneous features of the charge to which we have referred, is responsible for a verdict of $589.98 in exceas- of what, under proper instructions, the jury might properly have assessed as damages.

• We find no errors assigned by tbe petition in error to exist other than those to which we have called attention and if the plaintiffs will consent to remit from their verdict the sum of $589.98, the judgment of the court below will be affirmed; but if they do not so consent, the judgment will be reversed and the cause remanded for further proceedings, for error in the admission of evidence and in the charge of the court.


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    DUTY OF MOTORMEN AT STREET CROSSINGS.
    Circuit Court of Cuyahoga County.
    Angela M. Harris v. The Cleveland Electric Railway Company.
    Decided, February 5, 1912.

      Street Railway Grossing — Rights oí Public — Motorman's Duty — Runaway Horse.

    1. A street car company has only equal rights with the driver of a horse, or a pedestrian, at a street crossing, and therefore it is the duty of the motorman as he approaches a street crossing, to have his car under control and to keep a constant lookout, not only ahead, but also to the right and left, so as to discover persons upon the track or approaching it without noticing or heeding the approaching car, so that he may allow ’them to pass over in safety.
    2. A motorman can excuse himself for not seeing a person in danger at • a crossing when in the exercise of proper care he ought to have seen him, only by showing that at the moment, his attention was attracted by some other matter in the line of his duty.
    2. Although plaintiff’s horse was running away and she could not control it, yet if the motorman saw her and could have slowed up sufficiently to let her pass, it was his duty to do so, and if he failed in this duty, that failure was the proximate cause of the accident.

      A. Lawrence and H. F. Payer, for plaintiff in erron

      Squire, Sanders & Dempsey, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
   . This was a personal injury damage case, verdict for the defendant being diercted at the close of plaintiff’s evidence.

The accident happened at the junction of Riverside avenue with Detroit avenue, in the city of Lakewood, toward the close of the afternoon of the 12th day of October, 1906. The plaintiff was driving northerly on Riverside avenue, when her horse became unmanageable and ran away with her. As she approached Detroit avenue she saw a car of the defendant company approaching from the east at a high rate of speed and realized that she was apt to be struck by it, unless it slackened its speed. She held tightly onto the lines and managed to turn her horse toward the west at the corner and had got about fifteen or twenty feet from the corner when the ear struck both the horse and buggy on their right side and she was thrown out and seriously injured.

There was evidence tending to show that there was a view across the corner from a point on Detroit avenue 250 feet east of Riverside avenue to a point on Riverside avenue 150 feet south of Detroit avenue, unobstructed except by a small office building directly at the corner.

The plaintiff testified:

“I could see the Detroit avenue car approaching, and I screamed to warn the motorman that I could not help myself, I first saw the Detroit avenue car when I was about one hundred and fifty feet from the corner. The car was about two hundred and fifty feet away, if not more. There was nothing by which my view was obstructed. I looked at the motorman in charge of the car, and he was looking at me. I could see across the corner there. He was facing towards me. I tided to hold my horse and I could not, so I tried to warn the motorman of my condition so that he would give me time to pass. I tried to stop the horse and when I could not, of course, the only place for me to turn was west. I turned the corner just as sharp as I could, say about- fifteen or twenty feet, when the car struck me.”

Two passengers on he car testified that at a point 200 feet be-' fore the car reached Riverside avenue they saw the horse running away and unmanageable, when it was at a point 150 feet south of Detroit avenue. One of them rang the bell when the car was 100 feet from Riverside avenue, but the motorman did not slacken the speed of the car, which was running at a rate of from twenty-five to thirty miles an hour. •

There was no evidence introduced to show within what distance a car running at that rate of speed might be stopped.

The plaintiff claimed that the accident ivas due to the excessive rate of speed at which the car was running, the neglect of the motorman to have it under control as he approached the crossing and his negligence in not noticing her danger in time to save her.

It is said that the trial judge took the case from the jury because he thought the running away of the horse and not the high rate of speed and negligence of the motorman, was the proximate cause of the injury.

It is well settled law, in this state at least, that a street car company has only equal rights with the driver of a horse, or a pedestrian, at a street crossing, and therefore it is the duty of the motorman as he approaches a street crossing, to have his car under control and to keep a. constant lookout, not only ahead, but also to the right and left so as to discover persons upon the track or approaching it without noticing or heeding the approaching ear, so that he may allow them to pass over in safety.

Thus, it was held in the ease of The Toledo Street Railway Company v. Westenhuber, 22 C. C., 67, that:

“It is negligence in the motorman of an electric street car, when the car is from 150 to 200 feet from a street crossing and he sees a wagon about to cross the track, not to try to stop or slacken the speed of the car until almost -at the crossing when, by so doing, the collision which ensued might have been avoided. ’ ’

This case was affirmed by the Supreme Court without report in 65 O. S., 567.

In the same ease it was said:

“If the driver could go upon and move more than half over the crossing 'before the arrival of the car, when the car was going at full speed, obviously the car might have been controlled by the motorman; so that the driver could have passed entirely over without a collision.”

So here, though there, was no evidence as to the distance within which a car going at the rate of twenty-five to thirty miles an hour could be stopped, yet, as the horse got fifteen to twenty feet to the west of the crossing before the car struck the front wheel of the buggy, obviously the collision would not have occurred if the motorman had slowed up his speed the least appreciable amount. It took no expert testimony to advise the jury of this fact. Any person of ordinary intelligence can figure it out.

While there was evidence introduced by the plaintiff showing that the motorman actually saw her and her danger in plenty of time to avert the collision, for she says she saw him looking at her, still it Avould be sufficient if her evidence merely tended to piOTe that, in the exercise of care coihmensurate to the occasion, he ought to have seen her, and the evidence of the two passengers, as well as her own tends to prove that.

The rule, as understood and seA^eral times applied by this court, is that the motorman can excuse himself for not seeing the person in danger at a crossing when, in the exercise of proper care he ought to have seen him, only by shoAving that at the moment, his attention Avas attracted (by some other matter in the line of his duty.

It Avould seem, therefore, that the plaintiff introduced evidence tending to show negligence on the part of the motorman. Was that negligence the proximate cause of the accident ?

Although the plaintiff’s horse was running away, and she could not control it, the collision Avas not inevitable if the joo.torman saw her and could have slowed up sufficiently to let her pass. It was then his duty to sIoav up, and if he failed in this duty, that failure of duty Avould be the proximate cause of the accident.

The same is true though he did not see her, if, under the circumstances, in the performance of his duty to keep a lookout, he failed to see what he ought to have seen.

So, too, his negligence is not less, but greater, if his car was1 running at an excessive rate of speed and was not under control.

As tending to show that a speed of from twenty-five to thirty miles an hour is excessive speed at this place, the ordinance of the city of Lakewood, limiting the speed of such cars to eighteen miles an hour, Avas introduced. This was some evidence to be considered in determining the defendant’s liability. “It served to give character to the act causing the injury.” Meek v. Pennsylvania Co., 38 O. S., 638.

There was sufficient evidence in this case to go to the jury and put the defendant upon its defense.

For error in directing a verdict for the defendant, the judgment is reversed and the cause remanded for further proceedings.


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    PROHIBITION AGAINST LIQUOR TRAFFIC IN RESIDENCE DISTRICT.
    Circuit Court of Cuyahoga County.
    In Re Petition Against Prohibiting the Sale of Intoxicating Liquors in a Certain Residence District in the City of Cleveland.
    Decided, February 5, 1912.

      Local Option — Residence District — Part Again Petitioned Dry — Balance Can Not Become Wet.

    Under Section 6142, General Code, a wet petition can only be filed and allowed for the same residence district previously petitioned dry; hence, if meanwhile part of the district has been cut off and added to another dry district the -balance of the district can not become wet.

      A. W. Lamson, C. M. Earhart and G. E. Hartshorn, for plaintiffs.

      E. K. Wilcox and Geo. W. Shaw, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
   In this case we are called upon to review the decision of the mayor of Cleveland holding a wet petition, so-called, sufficient and permitting the sale of liquor in certain territory which, more than two years before had been petitioned dry. ,

The petition held sufficient by the mayor was filed April 3, 1911, under the provisions of Section 6142 of the General Code, which says that:

“When a majority of the qualified electors of a residence district of a municipal corporation in which the sale of intoxicating liquors as a beverage has been prohibited under the provisions of the next two preceding sections, sign a petition against prohibiting the sale of intoxicating liquors as a beverage in the same residence district and file such petition with the mayor-of the municipal corporation or with a judge of the court of common pleas in the county, such mayor or judge shall examine the petition at. a public hearing and decide upon the sufficiency thereof, and cause a copy of his decision to be filed with the clerk of the municipal corporation or council. Such petition shall not be filed until after two years or more have elapsed after the filing of the petition provided for in-section sixty-one hundred and forty.”

The petition filed April 3, 1911, was in all respects regular and in conformity to the law, and was properly held sufficient, unless defeated by proceedings subsequently brought, under another section of the statutes, for that specific purpose.

Under favor of Section 6157, which provides that, “At any time after two years from the filing of a petition under sections sixty-one hundred and forty and sixty-one hundred and forty one, another petition may be filed under the provisions of such sections, covering part or all of the territory included in the first petition, with or without other continguous territory,” another petition was filed on April 13, 1911, with one of the judges of the common pleas court of Cuyahoga county, in which the city of Cleveland is situated, and this petition covered the northerly one-third of the territory described in the first petition and much more contiguous territory to the north of it, and prayed that the territory therein described be made dry.

This dry petition applied to territory containing a greater number of resident electors than the wet petition filed with the mayor, and covered territory common to both. At the time it was filed with the judge, the mayor had not passed upon the wet petition filed with him.

Such proceedings were had on the dry petition filed with the judge that it was later held sufficient by him, and thereafter the mayor made the ruling on the wet petition which is here under review.

Section 6145 provides:

“When there are pending two or more petitions under the next five preceding sections, including territory common to all, that petition shall have precedence which applies to the territory containing the greatest number of resident electors,” etc.

The plaintiff reading of this section entitled the dry petition (before the judge to be heard before the wet petition was heard by he mayor, for they were both pending at the same time, they included terrieory common to both, and the dry petition applied to territory containing the greater number of resident elecors.

The dry petition was first heard and held sufficient, and thereby the wet petition was displaced and rendered obsolete. It was error, therefore, for the mayor to thereafter allow the wet petition; it had, by operation of law, become of no validity, for part of the territory covered by it had meanwhile been cut off aud made dry, and under section 6142, a wet petition can only be filed and allowed Por the sama residence district previously petitioned dry. It was no longer the same.

Tt is claimed that this construction of the statutes, produces an unjust result; fosters political trickery; disfranchises the electors in the southern two-thirds of the original dry territory, so far as the liquor .question is concerned; brings about a process of “shingling” so-called, on the part of the drys; that is, enables them, by taking a very small portion of a district once petitioned, dry and including it with other contiguous territory, to destroy the- autonomy of the original district and prevent the remaining and greater portion of it from ever becoming wet again.

This argument should be addressed to the Legislature and not to the court. An amendment to Section 6157, giving the Avets and the drys equal privileges in forming new districts, would the more fair, if the question of fairness is to be considered.

Under the Constitution however, it seems that the Legislature has plenary powers in the regulation of the liquor traffic, and can wholly prohibit the traffic if it desires to do so. Any injustice in the exercise of these poAvers by the Legislature, can not be remedied by" the courts.

The order complained of was contrary to law and is reversed, and, on the conceded facts, the petition is dis-allowed.