text:
    NEGLIGENCE
    [Cuyahoga (8th) Circuit Court,
    December 19, 1910.]
    Henry, Marvin and Winch, JJ.
    F. H. Kramer v. George Blake.
    1. Instruction as to Contributory Negligence when Raised in Answer not Erroneous.
    In a personal injury damage case, when the answer of the defendant contains not only a denial of negligence on his part, but also alleges that the plaintiff was injured either by reason of an inevitable accident, or by his own negligence, it is not error for the court to charge the jury with regard to contributory negligence. Cincinnati Trac. Co. v. Forrest, 73 Ohio St. 1, and Cincinnati Trac. Co. v. Stephens, 75 Ohio St., 171, distinguished.
    2. Failure to Instruct as to “Inevitable Accident” Alleged not Fatal.
    No specific request being made thereto, it is not error to neglect to say to the jury that the plaintiff can not recover in case his injury was received as the result of an inevitable accident, though the answer alleges such to be the fact and there was some evidence tending to establish it, if the court distinctly charges the jury that there can be no recovery unless the evidence shows that the defendant was negligent and that his negligence, proximately caused the injury.
    Error.
   MAEVIN, J.

Blake was plaintiff below and Kramer the defendant and though the parties are here reversed they will be spoken of as they stood in the ease below.

On May 30, 1908, the defendant was operating an automobile upon the public highway in Springfield township, Erie county, Pennsylvania. At the same time the plaintiff was driving a horse hitched to a wagon, upon the same highway. This was a much traveled road. The vehicles, in which were these two parties, met at a place in this highway; the automobile going southerly and the horse and wagon northerly. The place of meeting was in a hollow, between a slight elevation of the road to the north, and another slight elevation to the south from such hollow; at the eastern side of the road, the side on which the plaintiff was driving, there was immediately at the east of the traveled road a steep declivity of eighteen or twenty inches. At the place where the two vehicles passed one another the road was wide enough so that by careful driving on the part of both' they could have passed without a collision. Indeed, there was sufficient room to the east of the easternmost part of the automobile, at the place of meeting, so that the wagon of the plaintiff could have passed the automobile without a collision. As a matter of fact, the horse of the plaintiff was turned so far to the right at the point where the vehicles met as that the wagon overturned and the plaintiff was severely injured.

Suit was brought by the plaintiff charging that his injuries were the direct result of the negligence of the defendant; that defendant was driving his automobile at a terrific rate of speed, and a speed that was greater than was reasonable and proper; that he came down in the valley from the hill at such speed toward the plaintiff that the plaintiff’s horse frightened and turned to the right, resulting in the accident. The plaintiff further alleges that when he saw the automobile approaching him, he raised his hand to indicate to the defendant that he, the plaintiff, was in danger from the automobile, and that this warning was wholly unheeded by the defendant, but that he came on without slackening his speed at all, thus forcing the plaintiff over the declivity.

The result of the trial was a verdict and judgment for the plaintiff. After the verdict a motion for a new trial was filed, alleging as ground for such new trial, among other things, that the verdict was not sustained by the evidence.

The evidence tended to show that the automobile was going at a very high rate of speed at the time it came in sight of the plaintiff from the top of the elevation at the north and that it continued at such very high rate of speed until it had passed the plaintiff; that the horse of the plaintiff, though a quiet horse, was somewhat frightened at the approach of the automobile, and that the plaintiff was also frightened at its approach.

On the part of the defendant evidence was introduced tending to show that the speed of the automobile was not high, but with the several witnesses produced on the part of the plaintiff as to such speed, against the testimony of witnesses on the part of the defendant as to such speed, we would not be justified in reaching the conclusion that the jury was manifestly wrong in believing tbe witnesses for the plaintiff that the speed was very high, np to twenty-five or thirty-five miles an hour. True, one witness on the part of the defendant testified that the speed was slackened as it went down the hill, the language used by her being: “We gradually got slower as we went down the hill; it was a gradual descent and we went down about five miles an hour. ’ ’ Then she was asked, how do you know you got down to five miles an hour, and she answered: “We looked at the speedometer. I thought that the machine had stopped, it was going at the rate of five miles an hour when we passed him.” It is not surprising that the jury should have regarded this testimony as being wholly mistaken. First, it is inconceivable that one riding in a vehicle at the rate of five miles an hour should have supposed that it was standing still until she looked at a device for indicating whether it was moving or not, and found it to be moving at the rate of five miles an hour. The only possible way of accounting for this is either that the witness was somewhat excited by the accident and its surroundings or somewhat confused at the time she gave her evidence, and so did not quite understand what she said, or that the automobile in which she was riding with the defendant had been traveling at such an excessive speed that when it got down to five miles an hour she thought it was not going at all.

The defendant testifies that he did not slacken his speed after he saw the situation of the plaintiff, but he says that he was not going at an excessive speed, and he says that he did not see the plaintiff raise a hand as a warning. The plaintiff and a number of other witnesses say that the hand was so raised, and so the most natural explanation of the fact that the defendant did not see it would seem to be that as he was driving at such speed that he did not notice what the plaintiff was doing. In short, from the evidence in the case, it is not surprising that the jury reached the conclusion that the defendant was driving at a high rate of speed, without giving due care to the danger which might result to the plaintiff from continuing at that high rate of speed, and yet he says he did not slacken his speed any, but only explains that by saying that he was going at a slow rate all the time.

If the defendant was driving at a speed of twenty-five miles or more per hour, with the surroundings as they are shown to be here, whether such rate was in violation of a statute or not, the jury might well reach the conclusion that it was a reckless and careless way of driving; that it injured the plaintiff, either because his horse was so seared that it turned out and overset the wagon, or else that the plaintiff, in the fear which might well be excited in his mind-by seeing the machine coming at such a rate of speed, did not estimate with exactness how near tó the automobile the defendant was driving at a reckless rate of speed, calculated to scare people or horses who might be apt to meet him. If the plaintiff in view of the surroundings exercised such care as one so situated might ordinarily be expected to use, then he would not be precluded from a recovery, even though, if he had calculated exactly the distance between the easternmost line of the automobile and the declivity over which his machine went, he would have known that he could avoid a collision without going over this declivity.

The jury probably wondered somewhat how one could drive an automobile 100 miles, or thereabouts, in less than four hours, without driving most of the way at an excessive rate of speed; the maximum rate allowed by law being twenty miles, both in Ohio and Pennsylvania. The statute of Pennsylvania was introduced in evidence.

The court did not err in refusing to sustain a motion for a new trial on the ground that the verdict was not sustained by the evidence.

But, it is urged, that the court erred in excluding certain evidence offered by the defendant. When the defendant was himself upon the stand, he was asked this question: “You may tell the jury and the court, if you can, at what rate of speed you were going when you were going down the hill just north of where this accident occurred; at what rate of speed you went further down past Mr. Blake?” This was objected to, and the court then said: “Cross-examine as to his means of knowing before he answers.” Thereupon counsel for the plaintiff examined the witness, as follows:

“Q. Mr. Kramer, anything you may say would be an estimate; you do not know the speed you were going, do you? A. Certainly.
“Q. How do you know it? A. From the way I was driving.
“Q. From the way jurar car ran ? A. Yes sir.
“Q. You did not look at your speedometer ? A. I do not say positively I did at that time. ’ ’

Whereupon the court said the objection is sustained. We think this was clearly erroneous. The witness said he could say how fast he was going although he could not say he looked at the speedometer. But he said he was accustomed to riding and driving an automobile. Surely one accustomed to driving a horse may say at what rate he was driving, though it would be an estimate, not determined by some exact means of measuring that he had, such as a speedometer. The fact that the witness had a speedometer before him and that he was not looking at it, did not disqualify him from stating the rate at which the machine was going when he says he knew that rate, even though he did not look at the speedometer. On cross-examination it would have developed that it was an estimate, but so it is ordinarily with evidence as to the speed of a railroad train, or the speed at which horses are going. However, since there is no statement as to what it was expected the witness would answer, there can be no reversal because of this error for, for all that appears, the witness might have answered in such wise as to help the plaintiff instead of himself. For all that appears by this evidence, he might have answered: “I was driving at thirty-five miles an hour.” In order to take advantage of the erroneous ruling made by the court, an offer should have been made or statement of what it was expected the witness would answer, and if it turned out that it would be to his advantage, and the court excluded it, there might be a reversal by reason of such action of the court, but not as the record here stands.

Without stopping to read what follows in connection with this same matter, it is sufficient to say that the court, after further statement on the part of the witness, that he had driven an automobile for seven or eight years, and that he had had lots of experience, and was able to judge of the speed, the court still sustained the objection to his answer. We think the action of the court was, as already stated, erroneous. The court seems to have been of the opinion, that unless one could fix exactly the speed at which he was going, he could not answer this question. For the court said, among other things “I say that it is not a matter of opinion evidence; it must be stated as a fact. ’ ’ However, there is another reason why this action of the court would not justify a reversal, and that is, immediately following this, the witness was permitted to answer the question: “You may state to the court and jury whether you were going at a rapid or slow rate of speed. ’ ’ He answered:

“I was going slow.
‘ ‘ How were you going in that respect when you came to Mr. Blake?
‘ ‘ Going very slow. ’ ’

No objection to either of the questions and the answers given by the defendant was made, and the defendant had all the benefit that he could have expected from any answers he could have given to the questions which were erroneously excluded.

Error is further claimed by reason of the charge of the court. It should be said in this connection, that the answer admitted that the two vehicles met in the place stated in the petition, and that the plaintiff received an injury, such as he says he did, but denies all negligence on the part of the defendant, and then the answer says: ‘ ‘ That any accident or injury which plaintiff might have suffered at the time and place in said petition set forth, was the result of inevitable accident or the carelessness and negligence of the said plaintiff.”

It is ui’ged that this answer did not set up contributory negligence on the part of the plaintiff, and therefore, that the charge of the court on what would constitute contributory negligence was erroneous; that since the plaintiff said that he was not in any wise negligent and said that the defendant was negligent, that nothing should have been said on the matter of contributory negligence; that that brings into the case an issue not made by the pleadings.

What the court said on the matter of contributory negligence was this:

‘ ‘ It will be for you to say, from tbe evidence, whether or not the defendant was negligent, as charged, or whether or not the plaintiff was negligent; that his negligence contributed to the injury. The important question to be decided by you in this case is, whose negligence, if it is anyone’s, was the proximate cause of the injuries sustained by the plaintiff. Was it the negligence of the defendant or the negligence of the plaintiff that .caused the injuries directly?”

As to this the argument is made that not only did the court err in calling attention to the matter of contributory negligence, but also that there was error in not calling attention to the question of whether this was an accident brought about without negligence on the part of either party. As to matter of unavoidable or inevitable accident, for the moment we omit to discuss it until we have further called attention to what was said about contributory negligence. The court also said, in its charge:

“Notwithstanding any negligence of the defendant, if the jury should find that the plaintiff was in fact negligent, the plaintiff can not recover, for he himself is guilty of contributory negligence, as it is called, which contributory negligence was the proximate cause or direct cause of the injuries he received at that time and place.”

Up to this point it seems impossible to discover any possible errop to the prejudice of the defendant. The plaintiff asks the jury to determine, if they found there was negligence on the part of the defendant, whether the plaintiff was not also negligent, and if so, says to them that a recovery on his behalf would be barred. Suppose that is not true. Suppose that it is not law. Suppose that the plaintiff was being barred of a recovery here which under the pleadings would not bar a recovery. Can the defendant be heard to complain about it ? But further and immediately following what was last above quoted, the court said:

“The burden of proving contributory negligence on the part of the plaintiff rests on the defendant, with this qualification, however, that if the testimony introduced by the plaintiff as to the circumstances under which these injuries were received fairly raises a presumption in your minds, that the plaintiff himself was guilty of contributory negligence, then the burden is upon the plaintiff to remove that presumption.”

' Surely if the word “contributory” had been omitted from this language and the court had said the burden of proving negligence rests upon the defendant except where the plaintiff’s evidence tends to raise a presumption of his negligence, the defendant could not complain, and how is it possible for him to complain because the court said that the burden of proving contributory negligence was on tbe defendant. For, if the position taken here by the defendant is correct, contributory negligence on the part of the plaintiff, under these pleadings, would not avail the defendant at all. This seems to us wholly untenable. If the plaintiff showed that the defendant was negligent and that such negligence was the proximate cause of his injury, then the theory of the defendant here is that the plaintiff would have been entitled to recover without reference to whether he was himself negligent, because it is said that the answer did not charge the plaintiff with contributory negligence, and that, therefore, the logic of the argument is, that if there was negligence on the part of the plaintiff which only contributed to his injury, and was not the sole cause, such negligence would be no defense. Is it possible that if the plaintiff had shown under the pleadings like these that the defendant was negligent and that such negligence was a proximate cause of the injury, but it had been shown on the part of the defendant that the plaintiff ’s negligence was also a proximate cause of the injury, that the plaintiff could recover? The question seems to us to answer itself under the ■well known rules of law.

Our attention is called to the case of Cincinnati Trac. Co. v. Forrest, 73 Ohio St. 1 [75 N. E. 818]. In that case it is said in the syllabus:

“Where, in a suit to recover for personal injuries occasioned by the alleged negligence of the defendant, the petition, after stating the facts upon, which the plaintiff bases his action, avers that the plaintiff was free from fault and the answer is a general denial, there is no issue of contributory negligence, and where, in such case, the testimony introduced by the plaintiff does not tend to show contributory negligence, it is error for the court to introduce the element of contributory negligence in its charge to the jury and give instructions thereon. And where it is apparent that the jury may have been misled by such charge to the prejudice of the defeated party, the judgment will be reversed and a new trial awarded.”

An examination of that case shows that the defendant did not plead that the plaintiff was negligent, and so that is to be distinguished from the present case.

Attention is also called to the case of Cincinnati Trac. Co. v. Stephens, 75 Ohio St. 171 [79 N. E. 235], In this case the answer charged no negligence to the plaintiff, and like the case of Cincinnati Trac. Co. v. Forrest, supra, the case is distinguishable from the one under consideration. We do not feel justified in extending the rule, as stated in the two cases last cited, beyond cases coming practically within the facts of those cases. We can not believe that the Supreme Court ever meant to say that where an answer was filed to a suit for damages on account of negligence, in which answer it is charged that the plaintiff was negligent, there could be a recovery where the defendant is shown to be negligent, if it turns out upon the trial that the plaintiff was also negligent, and that the negligence of each, or the combined negligence of both, proximately caused the injury.

But it is said that the court omitted to charge specially on the matter of inevitable accident. The court did distinctly charge that there could be no recovery unless the evidence showed that the defendant was negligent, and that his negligence proximately caused the injury. Certainly that language distinctly precluded any recovery if the jury should find that the injury was the result of an inevitable accident. No exception' was taken at the time of the trial of the case and nothing was said on this subject, nor was any request or suggestion made to the court to charge on that subject.

The result is that we find no error in this record such as would justify a reversal and the judgment is affirmed.

Henry and Winch, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    EMINENT DOMAIN — RAILROADS
    [Cuyahoga (8th) Circuit Court,
    December 19, 1910.]
    Henry, Marvin and Winch, JJ.
    Schatzinger Realty Co. v. Cleveland Short Line Ry. et al.
    1. Pleading for Condemning Railroad Right of Way Need not State Termini.
    In appropriation proceedings by a railroad company for its original right-of-way, it is not necessary that the petition state the termini of the road, or that the parcels of land described in the petition are all the parcels within the county which are sought to be appropriated.
    2. Competency of Articles of Incorporation to Establish Railroad Right to Condemn.
    Articles and amended articles of incorporation of a railroad company are proper evidence of its incorporation and right to appropriate lands.
    3. Interest of Other Railroad in Appropriating Company not Competent.
    In an appropriation case brought by a railroad company it is not competent for the land owners to show that some other railroad company is interested in the appropriating company and will be benefited by the result of the proceedings.
    4. Belt or Terminal Railroad may Exercise Eminent Domain.
    A belt or terminal railroad company, duly incorporated under the laws of Ohio, may exercise the right of eminent domain.
    Error.
    P. G. Kassulker, for plaintiff in error.

      Kline, Tolies & Morley, for defendant in error.
   MARVIN, J.

The relation of the parties here is the reverse of that which they sustained to one another in the original action, which was brought in the court of insolvency. They will be designated, however, in this opinion as though the relation was as it was in such original action. Each of the parties is a corporation. The plaintiff is engaged in the construction of a railroad from a point easterly of the city of Cleveland to a point westerly of the said city. The defendant owns certain real estate through which the plaintiff seeks to construct its road. The plaintiff filed its petition in the court of insolvency, setting out that it was a railroad company; that it was constructing a railroad; that it was necessary for the construction of its road that certain real estate described in the petition, owned by the defendant and located in this county, should be used for the purpose of such road, that it had been unable to agree with the owner of such real estate and prayed for the appropriation of the 'property by proper proceedings.

It is claimed that this petition did not warrant any proceeding under it, because it failed to state such facts as authorize the proceedings to appropriate. The statute in force at the time regulating such matters was Sec. 6416 R. S. (See. 11042 Q-. C.), and reads:

‘ ‘ In such a case the corporation may file a petition with the probate judge, verified as in a, civil action, containing a specific description of each parcel of property, interest, or right, within the county, sought to be appropriated, the work, if any, intended to be constructed thereon, the use to which its land is to be applied, the necessity for the appropriation, the name of the owner of each parcel, if known, or if not known a statement of that fact, the names of all persons having or claiming an interest, legal or equitable, in the property, so far as they can be ascertained, and a prayer for its appropriation.”

It is objected that the petition was bad because it failed to state the termini of the road; that it did not state that the parcel sought to be appropriated was the only parcel in the county which it desired to appropriate. So far as the failure to state the termini of the road is concerned, it is sufficient to say that the statute does not require that the petition shall give such termini. So far as the other question as to the property sought to be appropriated is concerned, it seems enough to say that it did describe all the property which it sought to appropriate in that proceeding, and it seems a novel proposition that it should be required to contain the negative averment that it does not desire to appropriate any other real estate in the county. It does describe all it seeks to appropriate in this proceeding, and that we hold to be sufficient.

But, it is objected, that the court of insolvency was without jurisdiction, because it is said that the act conferring such jurisdiction is in contravention of the provisions of the constitution of the state. This is not an open question in this court, nor indeed in this state. Both this court and the Supreme Court Have held that the act is constitutional and that the court has jurisdiction.

It is further urged that the court erred in admitting the articles of incorporation and the amended articles of incorporation of the plaintiff. The plaintiff was required to show that it was incorporated as a railroad company, having the authority of eminent domain; the proper way to do this was by showing its articles of incorporation and any amended articles or incorporation which had been filed with the Secretary of State and certified by him, and there was no error in admitting this evidence.

It is urged further that the evidence on the principal hearing as to the necessity of the appropriation and the failure of the plaintiff and the defendant to agree upon a compensation for the land to be used was not sufficient. This objection is not well taken. It was shown by the testimony of Mr. Hopkins that the line had been located where it would be necessary to have it. However, a sufficient answer to this proposition is that the evidence is not all in the bill of exceptions. There was presented in evidence a blue print, which is spoken of by Hopkins and other witnesses, and it is said shows the line of the road. The bill of exceptions says that such blue print is attached to the bill marked “Exhibit B” and made a part of such bill, and there is no such blue print with the bill, and we are therefore left without that evidence on which the court acted in determining the question of the necessity for the appropriation and the failure to agree with the owner, and this failure of the bill to give us all the evidence disposes of the whole question of our passing Upon this case upon the weight of the evidence. We can not do it, because we have not all the evidence.

But it is said that there was error on the part of the court of insolvency in refusing to permit evidence to show that the Lake Shore & M. S. Ry. was interested in this railroad and was the real party in interest. It is enough on this point to say that this railroad company, the plaintiff in this action, was under the laws of Ohio authorized to appropriate lands necessary for the construction and operation of its road. If it had any contract with another company which would make it unlawful for it to operate its road after it was constructed, that right could be tested in a proper case. Not only that, but if this railroad company had obtained its franchise for any unlawful purpose, a proceeding in quo warranto would have been the proper action in which to determine that question. It would have been erroneous for the court to have admitted evidence showing what it was sought to be shown, that there was a contract as to the use of this road between the plaintiff and the Lake Shore & M. S. Ey. The articles of incorporation of the plaintiff, as already said, established that it was a corporation organized under the laws of Ohio pertaining to the incorporation of railroad companies, and the law authorizes such a company to exercise the right of eminent domain; therefore, it would have been incompetent for the court of insolvency to have held that it had not such right because of some contract it had made with somebody else. However, the court did allow a cross-examination of Mr. Hopkins, an officer of the plaintiff, to a very considerable extent, in which it appeared that no such contract existed as could by any possibility have interfered with the rights of the plaintiff in the matter of this appropriation. Our statute, Sec. 3300 E. S. (Secs. 8806 G. C. et seq.), authorizes one company to aid another in the construction of its road, by means of subscription to its capital stock, or otherwise, for the purpose of forming a connection of the roads of the companies, if the road of the company so aided will not when constructed form a competing line. There was no evidence here tending to show that this road, when constructed, would be a competing line with the Lake Shore & M. S. Ey. The real claim on the part of the defendant was and is that because this proposed road would connect at each terminus with the track of the Lake Shore & M. S. Ey., it was really an adjunct of such company, and that for some reason that deprived it of its right of eminent domain. We think this is completely answered by the case of State v. Toledo Ry. & T. Co., 24 O. C. C. 321 (1 N. S. 513). That was an action in quo warranto, asking to prevent the railway company from appropriating a right-of-way upon which it proposed to construct a track to connect its main line with certain industries, and it was held that the company had a right to make such appropriation.

In the case of State v. Martin, 51 Kans. 462 [33 Pac. 9], it is held that under the general law providing for the incorporation of railroad companies, a circular or terminal railroad might be projected and constructed for the purpose of switching cars from one part of the city to the other, and of affording terminal facilities to other railroad companies, and that a company organized for that purpose might exercise the power of eminent domain. And in a note to Bridwell v. Gate City Term. Co., 127 Ga. 520 [10 L. R. A. (N. S.), 909], this language is used:

“It is a well-settled fact and principle of law, and one supported by all the decisions that can be found, that belt or terminal railway companies and union passenger station companies, that is, companies organized for the purpose of furnishing connecting terminal and depot facilities to other railroad companies, are companies organized for a public use, and are lawfully entitled to exercise the power of eminent domain. ’ ’

The result reached in the court of insolvency was that the land sought to be appropriated was necessary for the construction and operation of the road; that the defendant had failed to agree upon the compensation therefor, and then a jury was impaneled for the purpose of having the damages assessed.

Upon proceedings in error being prosecuted to the court of common pleas, this judgment of the court of insolvency was affirmed, and the present proceeding brought to reverse the judgment of the court of common pleas in so affirming the judgment of the court of insolvency, is here affirmed.

Henry and Winch, JJ., concur.


text:
    WILLS
    [Cuyahoga (8th) Circuit Court,
    December 30, 1910.]
    Michael J. Walsh, Exr. et al. v. James A. Walsh.
    1. Rule of Expert Evidence In Will Contest in Direct and Cross-Examination Distinguished.
    The rule which requires that one in putting hypothetical questions to his own expert witness must confine his hypothesis to matters upon which evidence has been introduced, does not extend in its full force to the cross-examination of such witnesses. In cross-examining such expert witness questions may be put based upon some other hypothesis which the cross-examiner hopes to establish by evidence.
    2. Expert Limited to Opinion of Testator to Make Will.
    An expert may not be called upon to say whether one was competent to make a particular will, but only whether, in his opinion, his mental capacity was such as the law requires for the making of a valid will.
    3. Instruction that Probate of Will is Unimportant In Will Contest is Erroneous.
    In a will contest case it is misleading to charge the jury that it is of no importance what the probate judge did in probating the will, and that they are not to be influenced by what he did.
    Error.

      Green, Zmwnt & Zmunt, for plaintiffs in error.

      Estep & Gott, for defendant in error.
   MARVIN, J.

James A. "Walsh filed his petition in the court of common pleas setting out that he, together with Michael J. Walsh and Alice Carey, were the only children and heirs at law of John Walsh,- deceased; that Mary Walsh is the widow of said decedent; that said'John Walsh died on March 21, 1908, and that a- paper writing purporting to be his last will and testament was admitted to probate in the probate court of Cuyahoga county, Ohio, on April 9, 1908, and averring that the said paper writing is not the last will and testament of the said John Walsh, and praying that an issue be made up, that such paper writing may be set aside as the will of the decedent. The defendants named in the petition are Michael J. Walsh, as executor of said purported will, Michael J. Walsh, Mary Walsh, Alice Carey, Howard J. Carey and Philip Rayner, guardian of said Mary Walsh.

Upon the trial the jury found that the paper writing was not the will of the decedent; and the parties interested in the establishment of this writing as the will of the deceased, who were made parties in the original proceeding, bring this proceeding in error- to set aside the judgment of the court below, which judgment was entered, upon the finding of the jury, as already stated, it developed on the trial that the decedent was severely injured in a railroad accident'in the early part of the day on which he.died; that.immediately after such-injury he was taken to St. Alexis Hospital, where he remained until his death, about half past seven o ’clock on the evening of the same day; that the purported will was drawn by Frederick Green, Esq., an attorney at law; that the decedent signed by his mark such writing; that such signature was attested by the signature of two witnesses, and this occurred about 5 o’clock in the afternoon of the day of the injury, a little more than two hours before the decedent’s death.

The defendant, as required by Sec. 5864 R. S. (Sec. 12085 G. C.), offered the paper writing, purported to be a will, together with the order of probate, and rested his case. This was sufficient to 'make a prima facie case, as provided in Sec. 5862 R. S. (See. 12083 G. C.) which reads: “On the trial of such issue the order of probate shall be prima facie evidence of the due attestation, execution, and validity of the will or codicil.” Thereupon this evidence having been offered, as already stated, the plaintiff below proceeded to introduce evidence tending to show that by reason of the injury^ which the decedent received on the morning of this day, and from which he died in the evening, he had not mental capacity sufficient to make a valid will.

We are asked to reverse this case on the weight of the evidence. This we can not do. The evidence was conflicting; there was a great amount of it, both expert and other evidence, and we are not prepared to say that the jury clearly went wrong in reaching the conclusion that the writing was not the will of the decedent, because of mental incapacity on his part at the time of its execution. But there was error in this trial which requires a reversal. Among the witnesses called on the part of the contestors was Dr. Wm. F. Golling, who qualified as an expert, and testified as such, and in answer to hypothetical questions put to him, testified that he did not regard the decedent as competent to make a will at the time this was executed. Dr. Golling saw the decedent where he was in the hospital, after, the injury and before the execution of the writing. On cross-examination he was asked a number of questions, as appears by reference to page 52 and following, up to 54, in the bill of exceptions, which he was permitted to answer. Among these, are the following:

“Q. Suppose for instance, that he (speaking of the decedent) should say that he wished his daughter to hold a particular piece of property in a certain manner during the lifetime of her husband, after the husband’s death to own it absolutely, what would such directions of his indicate as to his mental condition?”

The answer was:

‘ ‘ That would be all right; I would think that he was able to do business as far as that goes.”

That was followed by the question “That he was possessed of sound and disposing mind and memory, ’ ’ which was answered by “Yes, sir, that his memory was very good.” Another question was as follows: “Your conclusion, doctor, was based upon your observation of the patient?” And the answer was-“Yes, sir.” This was followed by several questions and answers to wit:

‘ ‘ Q. And the fact that he died within several hours after-wards? A. Yes, sir.
‘ ‘ Q. Although it is true that persons retain control of their mental faculties somewhat up to within practically the moment of their death.? Is that not true ? A. But this is not sickness, disease.
“Q. But in cases of shock, I take it, from what you say? A. I don’t think it would wholly come from things which you have been asking me about, that is something I can’t tell. I only saw him from the time he left Bedford. I don’t think he was able to make a will at the time I saw him, and he got worse and died soon after I saw him, and so far as these little questions you have been asking me, I am not competent to answer those questions because I didn’t see the man; I don’t know when he made the will; I don’t know anything about it.”

After answering this and other questions upon cross-examination the doctor was re-examined by counsel for the contestants, and then the court said to the jury:

‘ ‘ Gentlemen of the jury, the doctor was permitted to answer some hypothetical questions put to him by Mr. Green and I take it from your consideration. The questions were misleading, I think, and therefore you are not to consider them. ’ ’

To this action of the court counsel for the contestees excepted. The Mr. Green spoken of by the court was such counsel. This action of the court was erroneous for two reasons: One that it was indefinite as to what was taken from the jury, and it was also erroneous because the contestees had a right to an answer from this expert witness on these hypothetical questions. The writing was already in evidence. That writing purported to make bequests such as were spoken of in the hypothetical questions.

That writing was prima facie the act of this decedent, hence there was evidence tending to show that the decedent had done the things suggested in the hypothetical questions. But even if that were not true, the rule which requires that one in putting hypothetical questions to his own expert witness must confine his hypothesis to matters upon which evidence has been introduced, does not extend in its full force to the cross-examination of such witness. In cross-examination, questions may be put to the witness based upon some hypothesis other than that which the party producing the witness has introduced evidence tending to support. If this were not true a party might introduce evidence in chief tending to support certain propositions of fact, and then introduce an expert witness and ask him hypothetical questions based upon the facts which the previous evidence has tended to establish, and the adverse party would be left without the opportunity to know what the evidence of the witness would be upon another set of facts, which it may be that this adverse party hopes to establish. Such cross-examination, too, is permissible to test the witness who has been offered as an expert. Examining the bill of exceptions at page 116 we find that Dr. Thomas A. Burke, as a witness called on the part of the eontestors, was being examined. He had qualified as an expert and then various hypothetical questions were put to him, and among them the following:

“Now doctor, suppose the case as I have stated it to you, and in the case I have stated to you it is claimed that about five o’clock that same afternoon this man was claimed to have made a will, substantially as follows in its material aspects. Item 2 of the will he undertook to give to his daughter, one of his daughters, during the life of her husband the place in which he then lived, situated in Bedford township, in this county, except the gas well located on the place, and another parcel of land, owned by him in the village of Newburgh, consisting of ten acres of land, and then on the death of her husband he said the place in which he then resided was to go to his daughter absolutely and she was also to have the place in South Newburgh, subject to the following conditions: Should she desire to dispose of the said piece of land, his son, Michael J. Walsh, was to have the right to purchase it for the sum of $1,000. That Michael Walsh was to have the use of the gas well on the place where John Walsh resided, and as long as he lived and if he should die' leaving lawful issue, such issue shall have the use of it during their lives, then in the next item he gives to his son Michael Walsh the farm where he resided in South Newburgh, then in the next item he undertook to make a trust estate providing that all the rest of the household goods and farming implements shall be bequeathed to his son Michael in trust for the following'provision: Converting all the goods into money and pay the income from $3,000 annually to his daughter Alice Carey during the life of her husband, the income of the balance of the property to be paid to his wife during her natural life. Then he provided that on the death of her husband, he shall pay Alice Carey $3,000,-then he provided that on the death of his wife, he shall. pay one-half of the balance to the son James, and retain the-other half himself. Then, he provided in another item his daughter Alice was to have the use of the farm implements and, stock, and should she not desire to use them, they shall be sold to the son Michael Walsh, and the proceeds become a part of the trust fund. Then, his wife was to have the household goods. Now, doctor, what do you say as to a man in the condition I have already described to you in my previous question, having a sound and disposing mind and memory to such an extent as to enable him to make this will I have outlined to you?”

This question was objected to by counsel for the defendant and the objection overruled, and exceptions taken, and the witness answered: “I think it is covered in my previous answer. It is impossible to have a sound and disposing mind and memory; it would apply to that as well.” The objection to this question should have been sustained. It assumes too much, and the answer of Dr. Burke both to this question and to the question following, showing that he understood it, and that the question involved not necessarily the capacity of the party spoken of to make a will, but that it would require, as the doctor put it, in answer on page 118 (bill of exceptions) “A wonderful mind.” He says on the same page, that to make such- a will as that would require a better mind than the ordinary man possesses. A remarkably clever mind. It was not necessary that the defendants should show here that the decedent was a man of extraordinary mind or that he was competent in making a given kind of will so far as mental capacity was concerned; it was sufficient for them to show that he had such.a mind and memory as the law makes sufficient for the disposition of his property by will. It is not to be supposed that this man, who was an uneducated-man; or than any uneducated man would be able to express in proper terms just how he would want trust estates held, and plan it ail out by means of various things that he might want done with his estate in the way of being held for parties during minority, or being held for charitable purposes for a time, or the like, and for that reason, lawyers are called on to do the writing for one’s will. It is true that if what they write does not express what the testator wants, it is not his will, but if he learns that the testator wants property held, as suggested in this question, that the income from a certain $3,000 should be paid annually to a daughter during the life of her husband, the income from the balance of such property to be paid to his wife during her natural life, and that he wanted Alice Carey to have the $3,000 if she outlived’ her husband, and the like, then the words to be used to carry out these various desires of the testator might be the words of .the lawyer who might be called .upon to write the’ will. It may very well be that the testator did not know how to' use the words. It may be very well said that he did not know just how trusts may be created, and the like, and as Dr. Burke very well says, it would require a remarkably clever man to properly express all these things. But is it possible that a man of sound and disposing memory, though not a remarkably clever man, is not competent to execute a valid will because he is not able for want of education and for want of knowledge of the law to know how his wishes shall be carried out, and is thereby incompetent to make a will? ¥e know of no authority for the proposition that an expert may be called upon to say whether one was competent to make a particular will. It is only a question of whether his mental capacity was such as the law requires for the making of a valid will, as has already been stated. The experience of the lawyers in courts justifies the saying that a will which simply provides ‘ ‘ I give and bequeath all of my property of every kind and nature to my beloved son John,” is one likely to be other than the real will of the testator, as the most complicated will that one can think of.

Again, the court erred in its charge to the jury in the use of these words (the court was speaking of the effect of the order of the probate court, the incumbent of which was Judge Hadden, admitting this will to probate):

“So that what Judge Hadden, as probate judge, did with this will is of no importance, except'that by force of the statute it became prima facie evidence of the due attestation, execution and validity of the will, and cast the burden upon the contestor of showing that it was invalid. Except for that, this ease is heard anew, and you should not be influenced by what Judge Hadden did. Counsel may not have been present, and, if present, had no absolute right to be heard, whereas in the contest here, all parties have a full right to be heard. The proceeding here is in the nature of an appeal from the order of the probate court, and all the material facts are produced, just as if Judge Hadden had not made such an order, except as the statute directs that such an order is prima facie, evidence of the will’s due attestation, execution and validity, the burden being upon the contestants to invalidate it.”

This language is calculated to mislead the jury, for two reasons. He has said that what Judge Hadden did is of no importance. True, he follows that by saying:

‘ ‘ Except by force of the statute, it became prima fade evidence of the due attestation, execution and validity of the will, and cast the burden on the contestor of showing that it was invalid * * * and you should not be influenced by what Judge Hadden did.”

Now that may be so analyzed as to mean that except establishing the fact that the burden of showing the invalidity of the writing as a will was upon the contest or, the order of probate was of no account, or it may be construed to mean, and was very likely so construed by the jury, that the fact that the will had been admitted to probate was not to be considered by them as establishing any proposition. The danger that it may be so understood follows from the language “and you should not be influenced by what Judge Hadden did” and then the court goes on to give the reasons why they should not be influenced by what Judge Hadden did, and states that they should be influenced to the extent that such order made by the probate judge by force of the statute established prima facie evidence of the due attestation, execution and validity of this writing, as a will.

For errpr in the rulings on evidence, and because of the misleading character of the charge, in the words pointed out, the judgment of the court of common pleas is reversed, and the cause remanded.

Henry and Winch, JJ., concur.


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    CHATTEL MORTGAGES
    [Stark (5th) Circuit Court,
    February 21, 1910.]
    Taggart, Donahue and Marvin, JJ.
    Judge Marvin of Eighth Circuit sitting in place of Judge Craine.
    Assignee of J. R. Smith v. O. C. Volkmore.
    1. Mortgage of Goods with Right to Sell Reserved by Mortgagor, and Accounting for Proceeds to Mortgagee.
    A provision in a chattel mortgage on a stock of merchandise that the mortgagor may make sale of the merchandise in the usual way, making an accounting of such sales to the mortgagee at the end of thirty days, intends that at the accounting the morgtagor shall pay over the proceeds of the sales to the mortgagee, and as such, is not void per se as to other creditors. Kleine v. Katzenberger & Go., 20 Ohio St. Ill, followed.
    2. Chattel Mortgage Condition for Accounting of Sales of Merchandise not Observed by Parties Invalid as to Creditors.
    Notwithstanding such provision in a mortgage of merchandise, it will be considered void as against creditors of the mortgagor, if the circumstances and conduct of the parties shows that such accounting was never acted upon by the parties, or intended to be acted upon.
    Error.

      D. F. Beinohl, for plaintiff in error.

      J. W. ATbaugh, for defendant in error.
   MARVIN, J.

The facts in this case are briefly as follows: Smith was a merchant doing a small retail business in this county. On Deeember 10, 1903, be borrowed from Volkmore, $115; on March 6, 1906, he borrowed the further sum of $274 from Volkmore; on March 20, 1906, he borrowed the further sum of $245.29; on April 3, 1906, he borrowed the further sum of $275 from Volkmore, and on May 12, 1906, the sum of $342. For each of these several loans he gave to Volkmore his promissory note at the time of the loan, to secure the payment of which at the time of the giving of the first note he executed a chattel mortgage on his stock of merchandise and the fixtures in his store. In this first mortgage it was provided that Smith might go on with the sale of the merchandise in the usual way, making an accounting of such sales to Volkmore at the end of thirty days. Upon the giving of each of the other notes, he executed and gave to Volkmore a chattel mortgage on the stock of merchandise, and each contained the provision that Smith might continue to sell the merchandise in the usual way, making an accounting to Volkmore at the end of sixty days. Nothing was ever paid upon either of the notes, nor was any accounting ever made by Smith to Volkmore of his sales. Smith continued to do business and sell goods from his store in the usual way, up to May 19, 1906, when he made a general assignment for the benefit of his creditors in the probate court of this county. Volkmore made an application in the probate court for an order upon the assignee to pay him out of the avails of the sale of the property, so assigned, the amount of his several claims, and the court refused to make the order. Thereupon, the case was appealed to the court of common pleas. The result of the trial in that court was an order on the assignee to pay to Volkmore the amount of his several claims, as evidenced by the promissory notes, already mentioned. To this order error is prosecuted here.

On the part of the plaintiff in error it is urged that each of these several chattel mortgages, expressly giving to Smith authority to go on in the usual way and sell the merchandise covered by the mortgage, renders the mortgage void. The general proposition that a chattel mortgage executed upon a stock of merchandise, when the mortgagor is permitted to retain possession of the mortgaged goods and sell the same in the usual course of business, is void, is admitted by the defendant in error, and indeed is so well established by the authorities, that it could not with any force be denied. But it is urged that the provision contained in each of these mortgages that the mortgagor shall account to the mortgagee at a fixed time in each case, takes these mortgages out of the general rule.

So far as Ohio authorities are concerned, the ease of Kleine, Hegger & Co. v. Katzenberger & Co., 20 Ohio St. 111 [5 Am. Rep. 630], is relied upon.

The syllabus in that case reads:

“1. A stipulation in a mortgage of goods, that the mortgagor shall retain possession and sell the goods in the usual retail way, paying over the money received therefor to the mortgagee, as the goods are sold, does not render the mortgage, per se, fraudulent and void as against other creditors of the mortgagor. The question of good faith arising upon such stipulation is one of fact, for the determination of the jury.
“2. The true rule is that a chattel mortgage, which reserves to the mortgagor possession, with a power of disposition for his own benefit, is void. This latter qualification must be inserted in the previous cases.”

This proposition is not denied by the plaintiff in error, but on his behalf it is urged that the facts here show that it was not the understanding between the mortgagor and the mortgagee that the mortgagor should continue to sell the mortgaged goods and account for such sales to the mortgagee and pay over to him the avails of such sales at stated time. Indeed, it is urged in argument, that the language used in the stipulation as to accounting, does not include the paying over the money, arising from the sales to the mortgagee.

If this contention is sound, it results that, applying the law as announced in the case just cited, these mortgages are void. But we think a more liberal construction may be given to the words used in the stipulation, and hold that in and of themselves they would constitute a provision that would require of the mortgagor not only to render a statement of his sales to the mortgagee, but to pay over to him the avails of such sales; that all this might fairly be included in a provision that he should account to the mortgagee for such sales. But from the conduct of the parties in this ease we may well infer that neither of them understood that the latter was the construction put upon the contract by them. The first mortgage was dated in 1903. No accounting in any sense was ever made under this contract, either by report of sales or by paying over any avails, although the business was continued by the mortgagor for two and a half years or thereabouts, after the execution of the mortgage.

It is urged as a reason why no accounting was ever insisted upon under this mortgage, that it covered not only the' merchandise but the store fixtures as well, and that such store fixtures were practically sufficient to secure the indebtedness which this mortgage was given to secure, and that as the fixtures were not to be sold, the mortgagee might safely rely upon his security upon such fixtures, and so safely waive the provision for accounting. As to the others, it is urged that the sixty days had not elapsed between the giving of the last three mortgages and the time of the general assignment; that as to the giving of the mortgage of March .6, 1906, and the time of the general assignment, but little more than sixty days had elapsed, and that the defendant in error called upon Smith several times to make an accounting on that mortgage, but was put off by the statement that he would make such accounting shortly, but was too busy just at the time required by the terms of the contract.

If the mortgagee in good faith intended that the avails of the sale of these goods should be paid to him, it seems very extraordinary that even though sixty days had not elapsed after the giving of the mortgage of March 6, 1906, when he made the loan on March 20, 1906, he should not then have insisted that what had up to that time been received from sales made between the 6th and the 20th of March should be used as a part of the loan of March 20, 1906. He says that at the time of each loan Smith said to him that he must have the money to pay for merchandise which he had in the store. Smith had no right to use any of the money received from the sale of merchandise for the payment of debts other than to this mortgagee, if the avails of the sales were to go to the mortgagee, and so the natural thing for the mortgagee to have done on the 20th of March, when Smith applied for the loan on that date, was to require of him (Smith) to take what money he had received, and then loan to him such an amount, in addition to that, as would pay the $245.29 o£ indebtedness, which he said he needed to borrow to pay for merchandise. This same reasoning applies equally to the loan made on April 3, 1906, and applies with much greater force to the loan made on May 12, 1906, because at the time of this last loan, an accounting was due under the terms of the contract for the loan made on March 6, 1906, more than sixty days having elapsed between these two dates. If Volkmore understood that all the avails of the sale of the goods made after the giving of the mortgage of March 6, were to be applied in payment of the debt secured by that mortgage, it is incredible that he should have loaned Smith $342 after the time when that money was to be paid over to him, without requiring that whatever money had been received for sales should be used as a part of this loan. We regard the conduct of Volkmore as completely negativing the idea that it was the intention of the parties that the avails of the sales should be used in the payment of the notes secured by these several mortgages, and that, therefore, we must hold Smith not only was not required, but that it was never understood between the parties that he should be required to keep the avails of the sales made by him of these mortgaged goods, to be used for the one purpose of paying off the mortgage debt.

It is said that the amount of business done by Smith was very small; that the amount of money received by him, as he stated to Volkmore, for goods sold, was but a little. It is said further, that all of the money received on these several loans was used by Smith in the payment of debts for this merchandise, but that Volkmore was so informed by Smith at the time of the several loans. Volkmore must have known that it required some money for Smith to support himself and family, and that it must have required some money for Smith to carry on the business, and that if he used all the money that Volkmore loaned to him each time to pay debts upon this merchandise, he must have used some of the money that he received on the sale of the goods for his support and the carrying on of the business. Especially must Volkmore have so understood when Smith reported to him as he says, at each time when he made a loan, that the money received on such loan would pay the debts which he owed, outside of the debt to Volkmore, and then when he came to make another loan, reported that he found he owed other debts which he had overlooked. It will be noticed that he borrowed a larger amount on April 3, than he had borrowed at any one time before then and that the loan of May 12 was considerably in excess of the loan of April 3.

We reach the conclusion that neither of the parties understood in good faith that the avails of the sales would be devoted strictly and entirely to the payment of the debts undertaken to be secured by these several mortgages, and that therefore, as against the other creditors of Smith, each of the mortgages is null and void, with the exception of the first mortgage covering the fixtures in the store, and that is sustained, to the extent of the avails of the sale by the assignee of the property, included in that mortgage, other than merchandise; and except to this extent, the judgment of the court of common pleas is reversed.

Taggart and Donahue, JJ., concur.


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    DIVORCE AND ALIMONY
    [Stark (5th) Circuit Court,
    February 21, 1910.]
    Taggart, Donahue and Marvin, JJ.
    Judge Marvin of Eighth Circuit sitting in place of Judge Craine.
    Vasti A. Carr v. William A. Carr.
    Wife Granted Small Alimony on Separation when Both Guilty of Ill-Treatment.
    Small alimony will he decreed a wife on the ground of “separation in consequence of ill-treatment on the part of the husband” when it appears that ill-treatment on her part equals his.

      William, Roach, for plaintiff in error.

      Craine & Snyder, for defendant in error.
   MARVIN, J.

The parties to this action are husband and wife. The plaintiff sues for alimony only, and relies upon certain ill-treatment which she says she has received from the husband, as her cause of action. The action is brought under Sec. 5702 R. S. (See. 11997 G. C.), which reads in part as follows:

‘ ‘ That there is a separation in consequence of ill-treatment on the part of the husband.”

The parties were married in June, 1892. Ten children have been born of this marriage, six of whom are' still living, four having died. Five of these children were born within the first three years' and three months of the marriage. The children now living are: Elizabeth, 17 years old; Mary, 13 years old, and the four younger ones aged respectively, 11, 10, 7 and 6 years. The plaintiff is a better woman than her husband thinks she is, but not as good, and. certainly not as good a wife as she thinks she is. The defendant is a better man than the plaintiff thinks he is, but not as good a man as he thinks he is. The statement already made as to the birth of children in this family shows that this plaintiff has a great burden upon her, in the matter of bearing and caring for children. Not on that account, however, should her husband be censured, but attention is called to it as showing that in tbi condition in which she must’have been the greater part of the time from the date of the marriage up to six years ago, she was entitled to tender treatment on the part of her husband. This large family also put a heavy burden on the husband, for which the wife is not to be blamed; but he is a man of small means and of course it was a burden to him; one which it was his duty to bear and bear patiently, to care for this large family. The parties have lived on a small farm of about thirty-eight acres, and of course close economy and untiring industry would be necessary on 'the part of each to care for this family. Each seems to have been rendered exceedingly irritable by the conduct of the other, and undoubtedly that was accelerated by the burden placed upon each. We listened to the testimony of those acquainted with the parties, and from it we have no doubt that the husband many times used profane language when talking to his wife, and unreasonably blamed her for things which she ought not to have been blamed. We think she makes a sufficient case to show ill-treatment such as would entitle her to some alimony. But we can not overlook the fact that she sometimes used abusive language to her husband and that she said unseemly things to him in the presence of their children. The two older children, Elizabeth and Mary, are witnesses. Their appearance on the witness stand was such as to produce on the part of the members of the court a high opinion of their intelligence and of their desire to be entirely truthful. Each of these girls says (and we think the whole evidence shows it) that this family can not get on together, and that the absence of the mother from home has made it happier and pleasanter. That the household is fully as well cared for without the presence of the mother as with it, is also shown; indeed, from what the witnesses say, we are inclined to the opinion that the cleanliness of the persons and clothing of the children, and the keeping of their clothing in repair, making them look suitable for school, etc., is improved by the absence of the mother. She left her husband’s home on January 5, 1909. She has been back to see the children four times; twice before the case was tried in the court of common pleas, and twice since. It is urged that she should be given the custody of at least the two younger children, because of her affection for them. She undoubtedly loves all of them, but situated as she is, we very much doubt whether even, the youngest of the children would be as well off with her as she will be remaining with the father. And the plaintiff does not seem to have worried very much about it, considering that she has been but a few miles from them, and has made no greater effort to see them than she has. She left home several years ago for some cause unexplained to us, leaving a baby less than two years old, and was gone two months, evidently making no effort to see the children. We have the feeling that she ought not to have their custody at present, and the order of the court will be that the custody of the children shall remain in the defendant.

The defendant has a farm worth probably about $3,500; he owns a lot in the city of Alliance, worth probably $500. There is a mortgage on this farm for $2,200 and he owes other debts amounting to about $800. He will have a hard struggle to support this family and keep up the interest on his indebtedness. It will be hard for him to raise money to pay alimony. The plaintiff is not in first rate health, bnt she is a woman of some education. She is shown to have been a successful teacher prior to her marriage, and it is probable that she may still obtain employment as a teacher and be able to comfortably support herself.

The order of the court will be that the custody of the children shall be in the defendant, and that he shall pay to the plaintiff on or before April 1,1910, the sum of $100, and that on or before April 1, 1911, another $100, with interest thereon from April 1, 1910, until such payment is made, and that on or before April 1, 1912, he shall pay another $100 with interest from April 1, 1910, until such payment is made. This is to be in full of alimony. This amount is small, because from the amount of property and the family which the defendant has to support, it must necessarily be small, and furthermore, because the plaintiff still has her inchoate right of dower in all of his real estate, except to the extent that she may have deeded it away by the execution of the mortgage already mentioned.

Taggart and Donahue, JJ., concur.


text:
    APPEAL
    [Stark (5th) Circuit Court,
    February 21, 1910.]
    Taggart, Donahue and Marvin, JJ.
    Judge Marvin of Eighth Circuit sitting in place of Judge Craine.
    Alliance Monumental Co. v. S. Ellen Wells, Admr.
    Petition on Appeal Stating Different Cause of Action from That before J. P. Stricken from Files.
    Plaintiff sued before a justice of the peace for the agreed price of a monument sold and delivered to the defendant at her request; on appeal he filed a petition setting forth a contract between the parties for the monument, alleging that the defendant repudiated the contract and ordered work upon the monument to be stopped, which was done, and claiming damages for the breach of the contract. Held: The cause of action stated in the petition in the common pleas court varied so from the cause of action stated in the bill of particulars filed with the justice, that the common pleas court was justified in striking said petition from the files.
    Error.

      John W. Craine, for plaintiff in error.

      David Fording, for defendant in error.
   MARVIN, J.

The parties here are as they were in the court below. The plaintiff brought a suit against the defendant before a justice of the peace, setting out in his bill of particulars that the plaintiff had sold and delivered to the defendant, at her request, a certain monument, at the agreed price of $220. Before the justice of peace the plaintiff recovered. The case was then appealed by the defendant to the court of common pleas, and the plaintiff filed a petition, setting out that the defendant entered into a contract with the plaintiff, wherein the plaintiff undertook to erect at the grave of the deceased, a monument for $220. That before the monument was completed the defendant repudiated the contract and ordered work to be stopped upon the monument, which was done; that the plaintiff had expended in labor and material upon the monument the sum of $210; that such labor and materials were of no value, except the monument should be accepted, and it prayed judgment for the sum of $210. On motion of the defendant the petition was stricken from the files. The plaintiff then moved for leave to file this same petition, which was refused, and then, the court ordered (the plaintiff not offering to file any other petition) that the cause be dismissed at the costs of the plaintiff. The ground upon which the court acted was, that the petition set out a different cause of action from that set out in the bill of particulars before the justice of the peace. There was no error in this action of the court. This is supported by numerous decisions.

Attention is called to the case of Nichols v. Poulson, 6 Ohio 306. In this case attention is called to the fact that when an appeal is taken from a justice of the peace “the justice shall transmit the bill of particulars,” etc.; this provision is still contained in the statute, and the court in discussing it, uses this language on page 308:

1 ‘ Inquiry may well be made for what purpose is this bill of ■particulars required to be certified to the common pleas unless the plaintiff is to be confined to it on the trial? The law does not intend to compel the performance of a vain, idle or foolish thing, and this would certainly be such if the plaintiff was not confined to it by the trial in the court of common pleas. The object of this statute was undoubtedly to confine the plaintiff to the same cause of action on the appeal that he litigated below and there is reason in this construction. It puts it out of the power of the plaintiff to commence his suit for one cause of action before the justice, and to entrap a defendant by proving another, as he might, in the common pleas, under a declaration containing the common counts in assumpsit, or in almost any other form of action.”

In the case of McCoy v. Thompson, Wright 649, the court says, after calling attention to the fact that the statute requires that the transcript be certified up with the appeal, where an appeal is taken from the decision of a justice of the peace:

“Why require the justice to send up the bill with the other papers when the case is appealed, if not intended to be used when sent up? What other use could be made of it, than to confine the evidence to it at the trial?”

In the case of Van Dyke v. Rule, 49 Ohio St. 530 [31 N. E. 882], the second paragraph of the syllabus reads:

“Where an action begun before a justice of the peace is appealed to the court of common pleas, the latter court has no power to substitute, by amendment, another cause of action not within the jurisdiction of the justice of the peace, though it is within the original jurisdicton of the court of common pleas, unless the defendant consents to the substitution, or waives his right to object to the action of the court.”

This language, taken by itself, might apply to the amendment which stated a cause of action other than that set out in the bill of particulars, where by such change the cause is made one in which the justice of the peace did not have jurisdiction. But in the opinion, at page 535, it is said, ‘ ‘ And it is equally certain that the appeal confers on the appellate court jurisdiction only of the cause of action appealed,” showing that the reason why a change may not be made is that it is only the case which was tried before the justice which can be tried on the appeal.

In the case now under consideration the cause of action stated in the petition was wholly different from that set out in the bill of particulars. Before the justice the action was upon a contract which the plaintiff said existed between the parties, and which, on its part, had been completed. That set out in the petition filed in the court of common pleas was a denial of the claim made in the bill of particulars that the contract had been completed.

Before the justice of the peace the plaintiff, in order to recover, must have shown that he performed all that by the terms of the contract was required to be performed; whereas, if his cause had been tried upon the petition, it would have been required to show that it never did complete the contract; that the defendant wrongfully prevented it from completing the contract. The suit before the justice was for liquidated damages, an amount fixed by contract between the parties. The petition claimed judgment for unliquidated damages, growing out of the repudiation of the contract by the defendant. The evidence necessary to establish the action before the justice would have defeated the action brought in the court of common pleas. The evidence necessary to sustain the petition would have defeated the action brought before the justice. The departure was a substantial one, and the court below was right in refusing to allow such petition to be filed and was right in dismissing the action at the costs of the plaintiff, and the judgment is affirmed.

Taggart and Donahue, JJ., concur.


text:
    MUNICIPAL CORPORATIONS
    [Lorain (8th) Circuit Court,
    April 29, 1910.]
    Henry, Marvin and Winch, ■ JJ.
    Harry A. Pounds v. Elyria (City).
    Ordinance Approved by Vice-Mayor when Mayor Temporarily Absent not Valid.
    An ordinance of a municipality which the mayor thereof vetoes and returns to the council before its next session, is not rendered valid by the approval of the vice-mayor and his signature to it, given in the interim on a day when the mayor is temporarily absent from the city.
    Error.

      TI. A. Pounds and P. H. Boynton, for plaintiff in error.

      PL. A. Pounds, for defendant in error.
   MARVIN, J.

Suit was brought by Pounds, as solicitor, on behalf of the city of Elyria, at the request of a taxpayer. The purpose of the suit is to enjoin the city authorities from paying certain officers of the city salaries to which these several officers claim to be entitled. Unless restrained by order of the court the city authorities will pay the salaries, it is claimed on the part of the plaintiff, to several officers to which salaries it is claimed the several officers are not- entitled.

The whole question depends upon the validity of an ordinance passed by the council of the city of Elyria on December 14, 1909, fixing the salaries of these several officers. If that ordinance is valid, the petition in this case must be dismissed. If invalid, the injunction must be granted. On the date last mentioned, one David S. Troxel was mayor of the city of Elyria, and F. N. Smith the president of the council of said city. On the evening of that date the ordinance referred to was passed.

The statute (See now, Sec. 4234 G. G.) in force at the time provides that:

“Every ordinance or resolution of council shall, before it goes into effect, be presented to the mayor for approval, the mayor, if he approves the same, shall sign it, and return it forthwith to council; but if he does not approve it, he shall, within ten days after its passage or adoption, return the same with his objections to council, or, if council is not in session, return it to the next regular meeting thereof, which objections council shall cause to be entered upon its journal.”

Another section of the statute in force (See Sec. 4256 G. C.) at the time reads:

“When a mayor is absent from the city, or is unable for any cause to perform his duties, the president of council shall be the acting mayor.”

The council having passed the ordinance, as already stated, on the evening of December 14, 1909, it was left with the clerk, or deputy clerk of the city, in the clerk’s office, and on the morning of December 15, the mayor’s attention was called to it by the clerk or deputy clerk. He took no action whatever in regard to the matter at that time except to say that he would look into the matter. On the next day, December 16, the mayor went to Cleveland in the early part of the day and returned home to Elyria in the evening, after business hours. Before the .next meeting of the council, which was December 21, the mayor had prepared a message vetoing the ordinance, which was sent to the council and read at its meeting on December 21. Meanwhile, however, on December 16, while the mayor was in Cleveland, the president of the council had signed this ordinance, approving it, claiming to act under the statute as mayor, the mayor being absent from the city. If the action of the president of the council in signing this ordinance, as approved by him, constitutes it a valid ordinance, the affairs of the several municipalities in this state are in a most remarkable situation, and are very little, if any, protected in any wise by any vetoing power conferred upon the mayor. In the city of Akron the present mayor has a summer residence where he spends with his family, probably half of the year, some five miles out of the city. An electric railway passes his country home, which affords him means of going between the city and such home every thirty or forty minutes, but still, while he is at that home he is outside the city, and if it is to be held that the moment the mayor is outside of the city limits the president of the council, or vice-mayor, as we call him, can act, all that it is necessary at Akron for the vice-mayor to do, if he knows that his views and those of the mayor do not correspond, is to watch until the mayor shall get beyond the boundary line of the municipality and then approve an ordinance which has been passed, and which he knows the mayor intends to veto. Indeed, if the claim of the defendant here is sound, the mayor might have prepared a veto message on the 15th ready to be delivered to the council; the vice-mayor might have known that such a message was already prepared and would be presented to the council at its next meeting, and yet he might, by simply signing his name to this ordinance, make it valid. The claim is unsound. It is not a fair construction of the statute which provides that the president of the council shall be the acting mayor when the mayor is absent from the city, nor to say that this means that every time the mayor gets outside of the lines of the municipality the vice-mayor may at once take up the duties of the mayor and perform them without reference to what length of time the mayor is expected to be absent. It is true that the mayor was absent when this ordinance was signed. It is equally true that neither the vice-mayor nor the city clerk nor anyone else had a right to suppose that he would be absent beyond the evening of December 16, and it is absurd to say that the legislature intended that in a temporary absence like that and on a matter that the mayor had a week in which to act, the vice-mayor might take it up and act on it and thereby prevent any action of the mayor from having any effect on the legislation. The reason given in the argument for the hurry of having this ordinance approved does not commend itself to the court. It is said that in order to get the publication of this ordinance in one of the newspapers, in which by law such publication must be had, and so have the ordinance become valid to be of benefit to the incoming officers, it was necessary that it be approved that day, but this was as well known long before, as on that particular day, and the council could have passed the ordinance at an earlier day, or those interested in it could have seen the mayor on the 15th, and if they found that he would approve the ordinance, could have obtained his signature on that date, but as it turns out that the mayor would not approve the ordinance, it is perfectly manifest that it would have been of no avail to these officers to have presented the matter to the mayor on the 16th, because he would not have approved it.

The injunction prayed for is allowed.

Henry and Winch, JJ., concur.


text:
    WILLS
    [Medina (8th) Circuit Court,
    September 26, 1910.]
    Winch, Henry and Marvin, JJ.
    J. Andrew, Exr. v. Ernest Kling et al.
    Devise of “All My Personal Property * * * except * * * Disposal to Other Parties” does not Carry Money in Bank in Devise to Churches Named Falling because Testatrix Died within Year.
    A bequest of “all my personal property of every kind whatsoever, except what is hereinafter by this will disposed of to other parties,” does not carry with it money in the bank bequeathed by a subsequent clause of the will to two churches, which by reason of the statute against bequests within a year of testator’s death, can not take thereunder.
   MARVIN, J.

The plaintiff filed his petition under the statute, setting out that he is the executor, duly appointed, qualified and acting, of the last will and testament of Mary Johnson, deceased; that a considerable amount of money is in his hands for distribution as such executor, and his prayer is that the court construe the will of the deceased and direct him in the disposition of this money. The facts are not in dispute and are substantially these:

Mary Johnson died in Medina county, Ohio, on June 8, 1909. On June 5, 1909, she executed a last will and testament, which has been duly admitted to probate, and of which the plaintiff is the executor.

The first, second, third, fourth and fifth items of said will are in the following words:

“First. It is my will that all my just debts and funeral expenses be first paid.
‘ ‘ Second. It is my will and I hereby give and bequeath to my beloved friend, Mary Yocum of Medina, Ohio, all my personal property of every kind whatsoever, except what is hereinafter by this will disposed of to other parties.
“Third. It is my will and I hereby bequeath to my beloved friend Lizzie Miller my family Bible, the one that I brought from England.
‘1 Fourth. It is my will and I hereby give and bequeath to my beloved friend Martha Marbach my gold ring, the one that I wear and also my silk quilt.
“Fifth. It is my further will and I hereby give whatever money I have in the bank (after paying my funeral expenses and all other debts and valid claims against me) as follows: one-half thereof to the Church of Christ (formerly known as the Disciple Church) of Brunswick, and the balance to the Baptist Church of Medina; that is I want my money in said banks equally divided between said Disciple Church of Brunswick and the Baptist Church of Medina, share and share alike. ’ ’

The only heir at law of the deceased at the time of her death was the defendant, Clara E. Kling. She is a great-granddaughter of the testator and is now some two or three years of age. Shortly before the death of the testator, Clara May Kling, who was the mother of the said Clara E. Kling, and who was herself a granddaughter of the testator, died. In April, 1909, while Clara May Kling was still alive, the testator purchased, paid for, and caused to be deeded to the said Clara May Kling and her husband, Ernest J. Kling, a home in the village of Medina, for which she paid $2,400.

The property of the % estator at the time of her death consisted exclusively of about $50 and about $3,800 which was deposited in one or more of the banks of the village of Medina. It will be noticed that the will was executed much less than one year before the death of the testator, indeed only three days before her death; by reason of this the attempted bequests to the two churches named are invalid, under Sec. 5915 R. S. (Sec. 10504 G. C.) and the question to be determined here is to whom shall the executor make payment of the money remaining in his hands, the chattels being disposed of, as directed in the will? The executor makes no claim as to either of the parties, but simply, as already said, asks the direction of the court.

Mary Yokum was represented by counsel on the hearing, as was also the infant, Clara E. Kling. The claim made on behalf of Mary Yokum is that the second item of the will is in effect a general residuary clause, and that by reason of the language there used, to wit, “I hereby give and bequeath to my beloved friend Mary Yokum, of Medina, Ohio, all my personal property of every kind whatsoever, except what is hereinafter by this will disposed of to other parties” is to be read as though the word “effectually” followed the word “is,” so that it would give to Mary Yokum all that is not effectually bequeathed elsewhere. This claim is, as we view the case, entirely in accord with the holding of this court in the case of Davis v. Hutchings, 8 Circ. Dec. 52 (15 R. 174). The holding of the court in that case was in accordance with authorities cited and quoted in the opinion. The judgment in that case, however, was reversed in the Supreme Court, Davis v. Davis, 62 Ohio St. 411 [57 N. E. 317; 78 Am. St. 725].

When this ease was being heard it was suggested that the Supreme Court had itself reversed itself or its holding in this case in a later case. On examination, however, it is'found that this is a mistake, and that in a later case growing out of the settlement of the same estate, under the same will, in which the Supreme Court also reversed this court, it later in another case in effect reversed that holding. The question, however, involved in the case last mentioned, is in no wise affected by the question involved in the case of Davis v. Hutchings, supra. We regard that holding as settling the question raised here, in favor of Clara E. Kling, and we might content ourselves with saying nothing more. However, we are disposed to give some of the reasons why this case should be decided as already said rather than to leave it upon the decision of Davis v. Davis, supra.

With some reason it can be said that the testator evidently felt that she had done what she ought and all that she ought for her granddaughter, Clara May Kling, by presenting to her the home, of which mention has already been made, and that the infant child of her granddaughter could have no greater claim upon her than the mother of such infant. That she did not therefore intend to make any further provision for the Kling family is perfectly clear by the terms of the will. She made no further provision for them in the will, nor did she intend to make any further provision for them, and she doubtless thought that she had done for them all that she reasonably ought to do. But .it seems equally manifest that she did not intend to make any provision for Mary Yocnm other than to give her the household furniture, not so much for its money value, as a token of the friendship which she entertained for her. She gave to her all of her personal property, except something. What did she except? What did she mean to except? Clearly the Bible, the ring and the silk quilt mentioned in the third and fourth items of the will. It seems to us equally clear that she meant to except the money in the bank. If she did mean to except it and the will is to be carried out in accordance with her clear in-, tention, then Mary Yocum is not entitled to this money and it leavps this situation:

That as to the money, since it can not go to the churches as the testator desired that it should, there is nothing in the will to indicate what she did desire to have done with it in the event that the churches could not take it.

Of course the testator supposed that the churches could and would take it: In this she was wrong, dying as she did within the year, and so this part of her property is left without any indication by the testator as to what she wanted done with it under the circumstances as they now exist, and which she did not foresee. That being so, the law determines where it shall go, to wit, to the next of kin. The defendant, Clara E. Kling, is such next of kin, and the order of the court is that as to what there is of this money for distribution, it be paid to Clara E. Kling, or rather to the duly appointed guardian of her property.

The costs of this proceeding will be paid by the executor out of the estate.

Henry and Winch, JJ., concur.


text:
    MUNICIPAL CORPORATIONS
    [Summit (8th) Circuit Court,
    April 8, 1910.]
    Henry, Marvin and Winch, JJ.
    August Merzweiler v. Akron (City).
    Municipality Liable for Damages Caused by Backing Up of Sewer.
    A municipal corporation is liable for damages to a lot owner by the flowing back into his cellar of filth from a sewer with which it is attached, by reason of the negligent overloading of said sewer by the municipality.
    Error.
   MARVIN, J.

The relation of the parties here is as the relation was in the court below.

The plaintiff brought suit against the city to recover damages which he claims to- have sustained by reason, of the action’ of the city .in connection with a sewer in North Forge street, in said city, upon which his premises abut, and which premises he claims were greatly injured-by reason of what the city did and failed to do in connection with such sewer. ■

Before the case was ready for trial numerous pleadings by both parties had been filed, and the issues were finally made up by a second amended petition and answer thereto, and a reply to such answer. After the impanneling of a jury in the case the defendant objected to the introduction of any evidence by the plaintiff, which objection was sustained, and the court directed the jury to return a verdict for the defendant, which was done accordingly. Judgment was entered upon this verdict. All of this was objected to by the defendant and exception taken to the action of the court. Judgment having been entered, such proceedings were thereafter had that the case is properly here for review.

The only question presented by the record is as to the sufficiency of the second amended petition; whether it alleges facts which entitle the plaintiff to any relief.

The plaintiff charges that all the sewer work and construction mentioned in the petition was done by the city without any regard to any plan or system of sewerage; that in 1897, the defendant constructed ■ a sewer 8 inches in diameter along said North Forge street; that the same was constructed for and was sufficient only for the proper drainage of the property abutting upon Forge street. That down grade in the sewer is to the east, and is much greater west of the premises than it is east of the same, causing a much more rapid flow therein from the west than the flow to the east and overburdens that part with a tendency toward filling the sewer to the east. After the construction of said 8 inch Forge street sewer, the plaintiff says, the said defendant from time to time constructed the several sewers hereinafter mentioned, without any reference whatever to any plan or system of sewerage, and without any plan or system whatever; all of which sewers drain into said Forge street sewer west of plaintiff’s said property. And said defendant has thereby unlawfully, carelessly, recklessly and negligently attempted to use said Forge street sewer as a main sewer, and has thereby unlawfully, carelessly and negligently overcharged said Forge street sewer, so that the same is wholly inadequate to safely carry the great volume of additional water and sewage discharged therein; said Forge street sewer itself being at no time more than sufficient in size to drain the abutting property on said street.

And the plaintiff further says that the sewer so unlawfully added to and carelessly drained into Forge street sewer and connected therewith, are all 8 inch sewers, and are described as follows (and then he follows with a description of three sewers, which he says are discharged into the Forge street sewer west of his premises where the grade to the east is steep, whereas east of his premises it is much less steep); and he says that after the construction of all of said sewers, said Forge street sewer being overcharged and overloaded, that on or about August 15th, 1906, by reason of the wrongful acts and negligence and carelessness of said defendant as aforesaid, the water, filth and sewage in said Forge street sewer backed up and was forced back through the connections of plaintiff’s property therewith, so that said plaintiff’s property and the cellars of his said dwelling-house, he having described therein the dwelling-house on his property, were filled with sewage, etc., whereby, he says, they were greatly injured; and he says the defendant unlawfully, carelessly and negligently failed and refused to relieve said Forge street sewer from its overcharge of water and sewage so unlawfully and negligently forced therein. He goes on then further and says that the plaintiff became aware of this condition of his property by reason of the acts already charged, and that it undertook to repair the sewer, failed to make such repairs as would cause the sewer to properly discharge, but that it backed up and broke the traps, and that the water and sewage again flowed back into his premises and upon them, and thereupon caused noisome smells from the sewage in the cellar of the plaintiff’s house and greatly injured the plaintiff, rendering the property unfit to use.

The defendant claims, first, it was not required by law to adopt a system of sewerage before constructing said Forge street sewer, and, hence, the charge in the petition in that regard can not render it liable for damages resulting for such want of a system. This contention of the city is borne out by the statute, Sec. 1536 subsec. 251, E. S. (Sec. 3882 G. C.). The caption of the section reads:

“Council may provide for the construction of sewers without adopting any plan of sewerage, or dividing such city into districts. ’ ’

The reason and application of this is well pointed out in the ease of Hartwell v. Cincinnati, H. & D. Ry., 40 Ohio St. 155.

The second claim on the part of the defendant is that it is not liable in damages because the sewer constructed by it is inadequate to the uses to which it is put. In support o£ this proposition it cites the case of Springfield v. Spence, 39 Ohio St. 665. I think I will not take up the time to read that case or any part of it. Counsel in the case are entirely familiar with it, but, as Ave think, it is not parallel or near akin to- the case now before us. In that case the matter under discussion and that for which damages was claimed Avas the failure of the city to properly dispose of surface water, but that the property of the plaintiff had been inundated by the surface water, his lot being lower than the grade of the street and the surrounding lots. So also in the ease of Hamilton v. Ashbrook, 62 Ohio St. 511 [57 N. E. 239], The circumstances of that-case were altogether different from this. There it was the use of a natural stream, water being thrown into it. An examination of that ease, we think, will satisfy one that it is not applicable here.

If the plaintiff is entitled to recover in this case it is because of the acts of the city, not in the construction of the Forge street sewer, but in the overloading of such sewer by constructing other sewers leading into it to provide for the sewering of other territory not contemplated in its original construction, and in making its repairs on such sewer in so faulty a manner that the seAvage Avas thrown xipon the plaintiff’s premises, bringing about the injuries of which he complains. That it is liable for these injuries seems so thoroughly in consonance with right as to commend it to the judgment of the court; and, as we see it, is supported by high authority. See Hart v. Neillsville, 125 Wis. 546 [104 N. W. 699, 1 L. R. A. (N. S.) 952, 4 Ann. Cas. 1085], I will not stop to read it. Counsel are familiar with that, as it was cited to us. We think it is thoroughly in point. See 2 Dillon’s Municipal Corporations, Sec. 1042-1051. Section 1049 reads:

“In accordance Avith the above distinction between legislative or judicial duties on the one hand and ministerial duties on the other” (a distinction plain in theory, but oftentimes difficult of application to particular cases).

And I may stop here to say that the allegation in the petition to which attention has already been called that the city adopted no system of sewerage, and the proposition further stated, that under the statute, it is not bound to do it, is applicable here to this extent, that the very fact that it did not do it, shows that it was not acting in a judicial capacity. It is when it acts judicially by the' adoption of a system, it is when it acts by the adoption of a system that it is said to act judicially, and that, therefore, an action can not be maintained because of a judicial mistake.

“A municipal corporation is liable for negligence in the ministerial duty to keep its sewers (which it alone has the power to control and keep in order) in repair, as respects persons whose estates are connected therewith by private drains, in consequence of which such persons sustain injuries which would have been avoided had the sewers been kept in proper condition. If the sewer is negligently permitted to become obstructed or filled up, so that it causes the water to back-flow into cellars connected with it, there is a liability therefor on the part of the municipal corporation having the control of it, and which is bound ‘to preserve and keep in repair erections it has constructed, so that they will not become a source of nuisance’ to others. The work of constructing gutters, drains and sewers is ministerial, and when, as is usually the ease, the undertaking is a corporate one, the corporation is responsible in a civil action for damages caused by the careless or unskilful manner of performing the work.”

I will not stop to read Sec. 1051, but it will be found in point, and as we think, sustaining the claim of the plaintiff here.

From what has been said and from the authorities cited, we reach the conclusion that the second amended petition in this ease states a cause of action in this — it avers that the city had not adopted a system of sewerage, and therefore, could not escape liability because it had acted judicially in adopting such system, and the allegation of the failure to adopt a system, though as already pointed out, it constitutes no ground for complaint, it removes from the city the defense that it was acting under a system, and therefore, acting judicially, or rather that it acted judicially in adopting a system, and therefore, can not be liable because of its judicial mistake. It would have been probably as well to have omitted this from the ■■ petition, and then left the defendant, if it could do so, to have plead as a defense that its work was done under an adopted system. If the averments of the. petition are true, it had turned into the Forge street sewer from three other sewers, which it was entirely unable to take care of and for which it was not intended it should care for, and thereby had brought about an injury to the plaintiff which the defendant should have foreseen. In addition to this, when knowledge was brought home to it of the evil effects of this action, it wholly failed to remedy the defects in any adequate manner. The result is we find that there was error in the action of the court as hereinbefore stated, and the judgment is reversed and the case remanded to the court of common pleas.

Henry and Winch, JJ., concur.