text:
    LIABILITY OF DIFFERENT SETS OF SURETIES.
    Court of Appeals for Wood County.
    A. J. Steele v. D. J. Gonyer et al.
    Decided, May 8, 1913.

      Sureties—Guaranties to Bank for Payment of Loans—Action to Enforce Contribution from Sureties.

    1. An artion against co-sureties for contribution is not one in which there is a right to trial by jury and is therefore appealable.
    2. Where a guaranty is executed in favor of a bank to protect it in the making of certain loans, and subsequently a second guaranty is executed, and thereafter one who had signed both guaranties is compelled to make the loans good, and brings an action to enforce contribution from his co-sureties, the second guaranty will not be regarded as a novation, but recovery may be had from the signers of the first guaranty on the basis of the amount due to the bank at the time of its acceptance of the second, and from the signers of the second guaranty for indebtedness contracted after its execution and acceptance by the bank.

      Geo. H. Phelps, for plaintiff.

      B. F. James and McClelland & Bowman, contra.
    Richards, J.; Kinkade, J., and Chittenden, J., concur.
    Appeal from Court of Common Pleas of Wood County, Ohio.
   This action is being prosecuted for the purpose of enforcing contribution from co-sureties upon a certain bond executed by plaintiff and' defendants to the First National Bank of Bowling Green.

A motion was made and submitted to dismiss the appeal, but we are of the opinion that under the authority of McCrory v. Park, 18 O. S., 1, the case is appealable.

It appears from the evidence in the case that the plaintiff and the defendants were stockholders in a certain corporation, known as the Oil Well Salvage Company, with its principal place of business in the city of Bowling Green, and that said company desiring to obtain a line of credit at the First National Bank, it was agreed by the parties to this action that they would execute to the bank a written guaranty to protect the bank upon loans which should be made -by it to the salvage company, and that thereupon it executed on July 3d, 1905, a bond to said bank to secure such loans, not exceeding the sum of ten thousand dollars at any* one time. This bond was signed by all of the parties to this action, and under and pursuant to its terms sundry-sums of money were advanced at various times by the bank to the salvage company. During the existence of this bond a new cashier was chosen for the bank, and shortly after his induction into office he deemed it advisable to obtain a new bond of indemnity for loans made to the salvage company, and accordingly he requested the attorney for that company, who was also one of the signers of the bond of indemnity, to have a new indemnity bond executed to the bank. The matter was taken up with the salvage company and at a meeting of its directors held on September 5th, 1906, it was determined that they.should execute a new bond as requested by the cashier of the bank, which was accordingly done. A new bond in form precisely the same as the first bond was signed by the same persons, with the exception of the defendant, E. P. Bourquin, whose name was not attached thereto.

At the time this bond was executed the bank held the obligations of the salvage company in the amount of about six thousand five hundred dollars, and after the new bond was executed it advanced an additional amount in the sum of about twenty-five hundred dollars. On April 16th, 1908, the total indebtedness due from the salvage company to the First National Bank then remaining unpaid was the sum of $7,891.18, and on that date the plaintiff paid to the bank of his own funds the sum of $5,000 and the defendant H. J. Rudolph paid the sum of $2,891.-18. Subsequently to this date the bank delivered to the plaintiff both guaranties and the obligations representing the indebtedness from the salvage company to it, and it is now -sought by the plaintiff to enforce contribution among the several signers of the guaranties.

It is contended by counsel for Bourquin, that the new guaranty amounted to a novation or a substitution, and that it is the only guaranty in force and that therefore Bourquin is not liable to contribute in any amount.

On the other hand it is contended by plaintiff that the liability arises and exists entirely under the first guaranty, and that Bourquin is consequently bound to contribute his pro rata share of the entire indebtedness.

The record does not disclose why Bourquin failed to sign the new guaranty, but it does appear that the remaining signers were willing to execute the new guaranty without his signature, and that the. bank through its cashier was willing to and did accept of this guaranty.

Under these circumstances as disclosed by the' evidence we think that the plaintiff has the right to enforce contribution, and that the signers of the first guaranty are liable for the indebtedness existing at the date of the second guaranty, and the signers of the second guaranty are liable for the indebtedness contracted after its execution and acceptance, by the bank. This holds Bourquin for contribution as to all indebtedness unpaid at the time of the execution of the second guaranty, but for' no indebtedness thereafter contracted.

The principal seems to be in accordance with the rule announced in Corrigan v. Foster, Admr., 51 O. S., 225, and Buffington v. Bronson, 61 O. S., 231.

A decree may be drawn enforcing contribution in accordance with the views expressed in this opinion, excluding however from consideration D. J. Gonyer, who has at all times been beyond the jurisdiction of the court since the commencment of this action, and excluding also Edward Beverstock, who is insolvent; and it appearing to the court that uncertainty exists as to the financial responsibility of one or more of the other defendants, it is ordered that this cause be remanded to the court of common pleas to carry the decree into effect, and that jurisdiction be retained by said court for the purpose of making any further order that may be necessary.

It appears that no notice or demand was made on the defendant Bourquin, and he is not therefore liable for costs in the action. See Nelson & Churchill v. Fry, 16 O S., 552.


source: Caselaw Access Project

license: Public Domain

text:
    GUARANTY DISTINGUISHED FROM PUFFING OF WARES.
    Circuit Court of Mahoning County.
    Slocum-Bergren & Company v. The Limoges China Company.
    Decided, March 31, 1911.

      Guaranty—Puffing of Wares.

    A clause in a contract for the sale of two hundred packages of china whereby “the defendant agreed with and guaranteed to plaintiff that said two hundred packages of china should and would be -sold to customers of the plaintiff within ninety days from the date of said contract” is not a contract of guaranty, is a mere puffing of wares, and furnishes no basis for a law suit, if plaintiff fails to sell the china within the ninety days.
    Winch, J.; Marvin, J., and Norris, J., concur.
   This was an action for breach of contract of guaranty. The petition alleges that the plaintiff agreed to purchase from the defendant, and defendant agreed to sell to plaintiff, two hundred packages of coffee assortment china at the agreed price of $6 per package, and -as part of said contract, on condition that th'e plaintiff would pay the purchase price, the defendant agreed with and guaranteed to plaintiff that said two hundred packages of china should and would be sold to customers of the plaintiff within ninety days from the date of said contract.

The petition further alleges the delivery of the china,, payment therefor, and due diligence and effort of the plaintiff to sell the same to its customers, without avail; none of the china being sold within ninety days, it offered to return it and demanded its money back, which being refused, it brought suit.

A demurrer to this petition was sustained and we think very properly.

We find in this so-called guaranty no warranty of the quality or value of the china, or its' adaptability to any particular' purpose; we find no guarantj1: of anything to be done about it by the vendor; it is said that plaintiff should and would sell two hundred packages to its customers but it does not appear that the plaintiff had that many customers, or any.

It is alleged that the plaintiff used all due diligence and effort to sell the same to its customers, but at what price does not appear; nor was there any agreement that it should be sold at any particular price.

This was more like a gambling contract or a bet than a guaranty, and at that left the performance of the feat wholly within the power of the person guaranteed, as if I should say “I guarantee you can run a mile, if you try.” Does this guarantee yon against falling down, so that you can recover of me if you do?

A guaranty has been defined to be .the contract by which one person is bound to another for the fulfillment of a promise or engagement of a third party. There was no third party in this case. The so-called guaranty was a mere puffing of wares and should have been so understood by plaintiff; had it desired more, it should have so contracted that the defendant would take off its hands all packages not sold at the end of ninety days. A suggestion of this kind would have saved this lawsuit.

Judgment affirmed.


text:
    EMPLOYEE HURT BY FALLING OF WINDOW SASH.
    Circuit Court of Mahoning County.
    Andrew Serafino et al v. Ralph Antinello.
    Decided, March 31, 1911.

      Master and Servant—Negligence—Simple Device—Situation Known to Servant—Assumed Risk.

    A stick, with which a window is. held open, is a simple device, and a laborer who crawls through a window so held open, forty or fifty times, with the stick in plain view, and finally knocks it out with his hand or foot and is injured by the falling sash,, will be held to know the dangers attendant upon the situation and can not recover in an action against his employer for the latter’s alleged negligence in using the stick to keep th'e window open.
    Winch, J.; Henry, J., and Marvin, J., concur.
   In this case Antinello, who was a laborer, carrying mortar for bricklayers, recovered a judgment against his employers for damages sustained by reason of a heavy window sash falling upon him and cutting him upon the face, neck and arms.

Antinello mixed the mortar outdoors and carried it to the bricklayers who were working in the basement of a school house. He carried the mortar in a bucket to a large window, about four feet square, and set the bucket on the window sill, climbed through the window, .and then carried the bucket and emptied it on the scaffolding near the bricklayers. The window sash was held by a stick at the side ip the way cellar windows áre frequently held open. Antinello went through this window forty or fifty times in this manner, carrying mortar; the last time he climbed through the window with his arm or his leg he knocked out the stick supporting the sash and it came down and caused the injuries sustained by him.

The evidence shows that some five or six windows in this basement were all open, the sash being sustained by sticks, as in the case of this window, and the room inside was light; the accident happened about half past two o ’clock in the afternoon of the seventeenth' of July.

Antinello testified that he didn’t know how the sash was sustained; everybody else about the place knew that the windows were kept open by the use of sticks.

The jury was properly charged that the plaintiff could not recover if he had equal means with his employer of knowing how the sash was propped up, and yet it brought in a verdict for the plaintiff.

¥e think this verdict is not sustained by the evidence. A man couldn’t crawl through a window forty or fifty times without knowing about a stick at the side supporting the sash; lie would have to watch that stick every time he went through the window, to avoid striking it with his feet. If he used his eyesight he would see the stick and know what it was there for; he would also know at a glance what would happen if the stick was carelessly knocked out of place.

In view of the simple and common nature of this device for holding up this window sash and the numerous opportunities the plaintiff had of observing it, the jury was not warranted in finding, that the plaintiff neither knew of the stick nor’ had means of knowing about it, and the dangers of knocking it out.

Judgment reversed for error in overruling the motion for a new trial on the ground that the verdict was not sustained by the evidence. •


text:
    VALIDITY OF THE ROAD DISTRICT ACT.
    Circuit Court of Mahoning County.
    Ensign E. Harding v. Frank Agnue et al.
    Decided, March 31, 1911.

      Constitutional Law—Road Districts and Commissioners.

    Sections 7095, et seq., General Code, providing .for road districts and the ■ appointment of road commissioners and defining their duties, are constitutional.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This was an action to restrain the commissioners of road district No. 1 of Mahoning county from issuing bonds for the improvement of roads within said district. No fault is found with the regularity of the appointment of said commissioners or of any of their acts, but it is said that the acts under which they were appointed and are assuming to act, are unconstitutional.

These acts are now found in chapter 5, title .4, part 2 of the General Code, beginning at Section 7095.

The following are the various steps in the organization of a road district under the provisions of said chapter. Upon the filing of petitions from not less than two nor more than four townships in any county, signed by at least fifty tax-payers of each of said townships, asking for the improvement of the public roads of such township, the county commissioners pass .resolutions and spread .them upon their journal, and within ten days thereafter such townships become a road district. After the expiration of ten days the county commissioners notify the trustees of the townships composing the alleged road district to place in nomination the names of suitable persons for road commissioners; from these names so placed in nomination, the county commissioners select a board of road commissioners; said board forthwith meets at the county seat and organizes by electing a president and secretary; their term of office is four years; before entering upon their duties they take an oath of office and give bond in the sum of $1,500; within ten days thereafter said board' of road commissioners notify the board of deputy state supervisors of elections of the county of its organization and thereupon the board of elections of the county submit to the electors of the district the question of improving the roads of the district; if a majority of the votes cast at-such election is against improvement of roads, the road commissioners can not assess a tax, and their duties cease.

There are these constitutional objections raised:

First. It is said that this act contravenes Section 1, Article II, of the. Constitution, in that it confers legislative powers upon the electors of'a road district; authorizes them to legislate a duly appointed board of road commissioners out of office. This does not appear upon the face of the act. No duties are imposed upon the commissioners until the people have voted to charge themselves with a general tax for improvement of the roads of that district. Hence, the people can not legislate them .out of duties which they can- not exercise before a vote.

In this case a favorable vote is shown by the petition and the point does not appear to.be well taken.

Second. It is said that this law violates Article II, Section 20 of the Constitution in that it permits the electors of the district to fix the term of office of the commissioners, while said section requirés that the Legislature shall fix the term of office of all officers.

We think the law has fixed the term at four years; if it provides for removal within that term, it is no different from many other statutes which provide for removal of officers within their terms for various reasons.

Third. It is claimed that this law does not conform to Section 18 of the Bill of Rights, which provides that “no power' of suspending laws shall ever be exercised except by the General Assembly. ’ ’

We see no such vice here. It is a general enabling act, like the corporation statutes under which individuals may organize and dissolve corporations, and like the municipal code, under which municipal corporations may be created and dissolved.

Fourth. It is said that road commissioners are either township or county officers, and so must be elected, as provided in the second and fourth sections of Article X of the Constitution.

We hold them to be district officers, and so not under this provision. They are more nearly like the directors of public service, in cities.

Petition dismissed.


text:
    PROCEEDINGS IN ATTACHMENT.
    Circuit Court of Cuyahoga County.
    Tillie Benoski v. The C. F. Adams Company.
    Decided, May 8, 1911.

      Error from Common Pleas—Attachment—Motion to Dissolve—Service on Garnishee—Attachment Bond Signed by Corporation—Authority of Corporation Officer.

    1. Error lies to the circuit court from an order of the common pleas court overruling a motion to discharge an attachment appealed to the latter court from a justice of the peace.
    2. An attachment will not be discharged on the ground that there was no service upon the garnishee in the attachment proceedings.
    3. A judgment overruling a motion to dissolve an attachment on the ground that the attachment bond was given by a corporation, the name of which was signed by an officer who had no authority to ■ sign its name to such bond, will not be reversed where there is no bill of exceptions showing the evidence acted upon in sustaining the bond and attachment.

      Wing, Myler & Turney, for plaintiff in error.

      Albert Lawrence, contra.

      Winch, J.; Henry, J., and Jones, J. (sitting in place of Marvin, J.), concur.
   The Adams Company sued Miss Benoski before a justice of the peace and instituted attachment proceedings for the purpose of garnisheeing her wages.

She filed a motion to discharge the attachment specifying no grounds therefor; this motion being overruled, she appealed to the common pleas court, where it was again heard and determined adversely to her.

Thereupon she filed in this court a petition in error to reverse the judgment of the'common pleas court, together with a transcript of the docket and journal entries of said court and the original papers filed with the justice of the peace, but we have no bill of exceptions showing what, if any, evidence was heard on the motion in the common pleas court, and there is no transcript of the docket of -the justice of the peace, showing what, if any, orders were made by him in the matter.

In this court motion is made to strike the petition in error from the files, on the ground that error does not lie to the judgment of the common pleas court overruling a motion to dissolve an attachment. This motion is based upon a'ruling of the Hamilton County Circuit Court in the case of Lyon v. Phares, 9 C.C.(N.S.), 614; but we do not agree with that court upon this point; the practice in this circuit has been otherwise.

Said motion is overruled.

Two reasons are assigned as requiring a reversal of the judgment of the common pleas court:

First. It is said that there was no service upon the garnishee in the attachment proceedings.

Having no record of the proceedings before the justice, we do not know but what the garnishee appeared and answered; indeed, counsel for plaintiff in error suggests that the garnishee was cited for contempt, was brought in, examined and found to have no funds belonging to the judgment debtor.

In any event, the point is not well taken. See Cleveland Sierra Mining Co. v. Sears Union Water Co., 4 O. D. Rep., 208; Railroad Co. v. Peoples, 31 O. S., 537.

If the garnishee was not properly served, but owes Miss Benoski, there seems to be no reason why she should not collect what is due her from the garnishee without action.

. Second. It. is claimed that the attachment bond is defective because signed in behalf of'the Adams Company by a person who styles himself "manager” of the company, who also signs individually, as surety.

• It is said that it does not appear that the "manager” of this company had authority to bind it by signing the bond. Evidence may have been taken upon this point in the court below, which satisfied said court that the bond was good.

Having no bill of exceptions, we can not tell what The fact is, in this respect, so this point can not be intelligently passed upon.

Judgment affirmed.


text:
    VALIDITY OF THE CRUELTY TO ANIMALS STATUTE.
    Circuit Court of Cuyahoga County.
    J. B. Gibbs v. State of Ohio.
    Decided, May 8, 1911.

      Constitutional Law—Cruelty to Animals.'

    Section 13376, General Code, providing for the punishment of one found guilty of cruelty to animals, as therein specified, is constitutional.

      Spear, Mills é Godfrey, for plaintiff in error.

      T. H. Bushnell, contra.
    Winch, J.; Henry, J., and Jones, J. (sitting in place of Marvin, J.), concur.
   Gibbs was charged before a justice of the peace with cruelty to animals, tried without a jury, found guilty and fined ten dollars.

The common pleas court affirmed said judgment and the ease is here for review, without bill of exceptions, the only claim made-in this court being that the statutes under which Gibbs was convicted are unconstitutional.

Section 13376, General Code, as amended April 13, 1910 (101 O. L., 118), provides that one guilty of cruelty to animals as therein specified, “shall be fined not less than .two dollars and not more than two hundred dollars for the first "offense, and for each subsequent offense such persons shall be fined not less than ten dollars nor more than two hundred dollars and imprisoned not more than sixty days or both.

Sections 13432 to 13434, General Code, inclusive, provide for trial by jury in prosecutions before a justice of the peace, when imprisonment is a part of the punishment.

Section 13435, General Code, provides that:

“In such prosecutions, where a different punishment is provided for a second or subsequent offense, the information, or affidavit upon which the prosecution is based,’ must charge that it is the second or subsequent offense or the punishment shall be as for the first offense.”

The affidavit in this case did not specify whether the offense .charged was a first, second or subsequent offense.

It is urged that Section 13435, General Code, makes i’t possible for the person instituting a prosecution before a justice of the peace for an offense under Section 13376, General Code, to deprive the accused of trial by jury by neglecting to charge' a second or subsequent offense under the statute.

This is claimed to be a delegation of legislative or judicial power to the prosecuting witness, inhibited by the Constitution.

We hold, however, that it is a rule of practice and procedure, constitutionally enacted for the benefit of the accused, protecting him' against a sentence of imprisonment, unless the information or affidavit distinctly charge a second or subsequent offense.

Gibbs was tried as for a first offense; his punishment does not include imprisonment; had the law made no severer punishment for a second or subsequent o’ffense, no claim would be made that any of his constitutional rights were infringed.

We fail to see what difference it makes to him that if he had been tried for some other and different offense, he might have had a trial by jury.

Judgment affirmed.


text:
    NEEDS OF CHILDREN MUST BE KNOWN BY FATHER..
    Circuit Court of Medina County.
    Charles Moore v. State of Ohio.
    Decided, September 26, 1910.

      Neglecting Minor Children—Duty of Father to Know Children’s Condition—Misconduct of Counsel.

    1. A father is bound at bis peril to know when his minor children need further provision for their home, care, food or clothing, and to see that such provision, when needed,' is made, if he is able to make it, and it is no defense in an action fpr neglecting minor children, that the father did not have notice from the mother or person having the custody of the children that they required his assistance.
    2. A judgment of conviction in a criminal case will be reversed for misconduct of counsel, though the jury he cautioned with respect ■■ 'thereto, if on the whole record it is not clear that the defendant was guilty beyond a reasonable doubt.

      William, Gordon and G. N. Bussell, for plaintiff in error.

      N. H. McClure and C. H. Curtiss, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   At tbe April, 1910, term of the'Medina county common pleas court Charles Moore was convicted of neglecting and refusing to provide his minor children, 12 and 6 years of age, with necessary clothing, food and proper home, between May 1, 1908, and April 4, 1910. Motion for new trial was overruled and he was sentenced to be imprisoned in the county jail of Medina county at hard labor for the term of six months, and to pay the costs of his prosecution. He afterwards entered into a bond to the state of Ohio in the sum of $500 in accordance with the statute, to pay or cause to be paid to Zaidee Rasor, the mother of said child (who was appointed by the court a trustee for that purpose), the sum of $1.25 per week for each of said children, until it shall become sixteen years of age.

To this judgment error is prosecuted upon the grounds of misconduct of counsel in argument to the jury; misdirection of the jury by the court, and the refusal of divers requests to charge.

The evidence discloses that the parents of these children were divorced by decree of the Court of Common Pleas of Portage County at its January term, 1907, upon the petition of the wife and upon the ground of habitual drunkenness of the husband. This decree, which was put in evidence, confided the custody, care, education and control of said children- to their mother, and enjoined the father “from interfering in any manner with either of said children or with plaintiff in the custody, care, education and nurture of them, until further order of this court.”

The mother thereafter removed to Medina county where she supported herself and the said children until her marriage to one Rasor, and since that time she and the said Rasor have supported them.

December 28, 1909, the mother of the children, through her attorney, wrote the defendant below as follows:

“There are two children of yours in this- town residing with their mo.ther who is divorced from you. You have done nothing as to the support and maintenance of these children for years. It is true that an allowance of alimony was given your former wife, but no provision was made in decree of divorce as to support of children, and you are accordingly still bound to support them. You are requested to do so. There is a criminal statute as to non-support of which you may be aware. However, we desire that you do what is lawful and proper without resort to extreme measures. You should make reasonable payment for board and clothing for your children. You are requested to take the matter up with me further.”

Meanwhile the defendant below, Charles Moore, has also remarried and has removed from Portage to Summit county, where he was arrested and brought to Medina county for trial.

We find upon consideration of the record and of the.precedents that the decision of our Supreme Court in the State of Ohio v. Banner, 81 Ohio St., 393, fully answers the intimation from the bench on the hearing that the next to the last clause of Section 10 of Article I of the Constitution of Ohio, providing that an accused person shall have “a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed” might preclude the trial for this offense in Medina county of one who had not at any time been in that county and whose children were brought there without his procurement.

The syllabus in Slate v. Sanner, supra, is as follows:

“As to some crimes, the physical presence of the accused at the place where the crime is committed, is not essential to his guilt.
“A parent may be guilty of the crime of failing'to provide for his minor children, defined by the act entitled an act to' compel parents to maintain their children, passed April 28, 1908 (99 Ohio Laws, 228), although he is a resident of another state during the time laid in the indictment and the venue of the crime is in the county where the child is when the complaint is made. ’ ’

It is also established in this state that:

“The obligation of the father to provide reasonably for the support of his minor child, until the latter is in a condition to provide for his own support, is not impaired by a decree which divorces the wife a vinculo on account of the husband’s misconduct, gives to her the custody, care- and nurture of the child, and allows her a sum of money as alimony, but with no provision for the child’s support. The mother may recover a reasonable compensation from the father- for necessaries furnished by her to the child after such decree, and may maintain an original action for such compensation against the father, in a court other than that in which the divorce was granted.” Pretzinger v. Pretzinger, 45 Ohio St., 452.

Nor is it a defense to a prosecution, .under the act here invoked, that an agreement of separation was entered into by the accused and his wife, by which the latter," who was given the custody of their minor children, agreed, for a valuable consideration, to furnish them with proper support, and that after the mother became unable to support-the children, the accused offered to support them, if she would surrender their custody to him, which she refused to do (Bowen v. State, 56 Ohio St., 235). In the per curiam opinion at page 239 it is pointed out, that the duty which a father “owes the public of saving it from the expense of supporting his children, is personal and continuing, and can not be affected by any agreement he may make with another. He must answer to the state for his omission of that duty, and look to the other contracting party for any .breach of the contract. ’ ’

So in State v. Stouffer, 65 Ohio St., 47, it is held:

‘ ‘ The father is not absolved from his obligation to support his minor child under sixteen years of age, because his divorced wife, having its custody, has provided it with sufficient support; and his refusal and neglect, after demand, to furnish the child with proper support, he being able to do so, renders him amenable to the provisions of Section 3140-2 of the Revised Statutes.”

In State v. Teale, 77 Ohio St., 77, it is held that:

“In the prosecution under Section 3140-2, Revised Statutes, against a father for failure to support his child, he being able to do so, it is not necessary for the state to prove that a demand was made upon the father for the performance of the duty enjoined by the statute.”

Not all of these cases are entirely in point here, but they serve to indicate the principles which our Supreme Court has applied in construing this salutary act.

It is evident that the requests of defendants below, numbered 1 and 2, for a verdict of not guilty, upon the ground that the duty of maintaining the children had been cast upon the mother by the decree of divorce, were properly refused. The same is true of the third request, based upon the absence of evidence showing that the children had been actually neglected. The fourth request proceeds upon a theory directly contrary to that announced in State v. Teale, supra, and was, therefore, properly refused.

• The fifth request is as follows:

“You are instructed that by the decree of the Court of Common Pleas of Portage County, the defendant is enjoined from interfering with the care, custody and nurture of said children by their mother and that he would be liable to punishment for contempt of court if he disregarded or disobeyed the terms of said decree.”’

It will be observed that this request is not addressed to the issue of guilt or innocence to which the jury in the court below were confined. It is unnecessary for us to consider whether the request is abstractly correct or not, for it could not have aided the jury had it been given.

The sixth request is as follows:

“Before you can find the defendant guilty in this case, you must find from the evidence, beyond a reasonable doubt, that the defendant, Charles Moore, was able by reason of his having means, or of his ability to work, and earn money, to provide said children with proper home, care, food or clothing, and that he has knowingly and wilfully refused or neglected so to do, after knowledge or notice to him, from the mother or person having the custody of said children, to do so.”

We think the defendant is bound at his peril to know when his children need further provision for their home, care, food or clothing, and to see .that such provision, when needed, is made.

In the course of the argument to the jury by Mr. Curtiss on behalf of the state, several improper observations were made, culminating in this statement, wholly unwarranted by the evidence :

“The defendant had not contributed one cent to the support of the children before the divorce was granted. ’ ’

To this the defendant below objected and the court by way of admonition to counsel said: ■

111 would disregard all reference as to what had preceded the divorce. On your side of the ease, I will say this, that you need to go no farther into that, any more than on the other side they should go into the grounds.”

There was clearly misconduct of counsel in the statements above quoted, and in other statements disclosed by the record, and the rulings of the court thereon are not such as to correct the prejudice, if any there was, resulting therefrom.

We have thoroughly canvassed the suggestion that the defendant’s guilt being apparent from the whole record, he can not be deemed to have been prejudiced by counsel’s misconduct. We are not prepared to acquiesce in this view. The children’s stepfather testifies that he furnished them with food between the serving of the notice upon the accused to provide for their support and the time of the latter’s indictment and trial some three or four months thereafter, and that he has no bill against the accused therefor. It does not anywhere appear that the children were during that interval in need of, or that they received from any source, any clothing. As regards home and care, it was obviously impossible, in the nature of things, for the husband to afford either to his children who had been confided to the custody of the former wife. While we are not prepared as a matter of law to say that the injunction forbidding him to interfere with the “custody, care, education and nurture of the children” absolved him from criminal liability for failure to provide them with proper “home, care,- food and clothing,” it is by no means clear upon all the facts in the case, that the defendant below was guilty of a violation of the statute.

Moreover, there is some evidence tending to show that the defendant was not physically and pecuniarily able to maintain his children; and while this evidence is far from conclusive, it, too prevents us from saying, as a matter of law, that he is guilty beyond a reasonable doubt, and therefore not prejudiced by counsel’s misconduct.

For the reason noted, to-wit, the misconduct of counsel for the state in argument to the jury, the judgment of the court of common pleas is reversed and the cause remanded.

We feel disposed, in this connection, to add that the final arrangement in which the trial below resulted undoubtedly provides for the performance by the defendant below of his natural and legal duty to his children, as in the end he will have to perform it, no matter how this litigation may terminate.


text:
    INVALIDITY OF THE MOTOR. VEHICLE LICENSE LAW.
    Court of Appeals for Franklin County.
    Charles H. Graves v. Charles C. Janes and The Ohio Automobile Association.

    Decided, February 7, 1914.

      Constitutional Law—Invalid Sections of the Motor Vehicle License Act —Repealing Sections Void and Former Sections Restored—103 0. L., 763.
    1. Section 6294, General Code, as amended (103 O. L., 763), providing for graded license fees for the use of motor vehicles upon public highways, and Section 3609 (6309), General Code, manifesting the legislative purpose, are unconstitutional- and void.
    2. These sections being unconstitutional, the repealing clause is to that extent void, and the former sections are therefore revived.
    3. Section 6294, General Code, and Section 6309, General Code, as they existed prior to .the act of 1910 (103 O. L., 763), are constitutional and therefore operative.

      Timothy. 8. Hogan, Attorney-General, and James I. Boulger, for plaintiff in error.

      G. D. Saviers, H. L. Gordon and B. L. Lee, contra.
    Allread, J.; Fbrneding, J., and Kunkle, J., concur.

      Affirming, with modifications, Janes v. Ohio State Automobile Co. et al, 15 N.P.(N.S.), 193.

   This .action involves the constitutionality of the Automobile License Act of 1903 (103 O. L., 763), providing for a system of identification and registry of motor vehicles and the annual payment of certain graded license fees.

The act under consideration is an amendment to an act upon the same subject passed in 1908, amended in 1909 and embodied in the General Code as Sections 6290 to 6310 inclusive.

The main features of the act of 1913 are to bring in motor-bicycles and motorcyles, increase the license upon gasoline and steam cars according to horse.power, increase the flat rate upon electrics and upon manufacturers, dealers and chauffeurs; and to leave substantially two-thirds of the total receipts in the general revenue fund of the state.

The constitutionality of the act under consideration is challenged chiefly upon the following grounds:

(1) Want of legislative power upon the general subject-matter.

(2) Unlawful discrimination, and

(3) Illegality and unreasonableness in the amount and the purpose of the fee exacted.

We think the power of the General Assembly to prescribe a license fee for vehicles using the highways of the state or those whose use thereof creates a special burden, is clearly supported by reason and authority.

From the foundation of our state the public highways have been largely maintained by general taxation. The general principle underlying this system of road improvement was the general public welfare and the approximate equality of the benefits. .as represented by the taxable property of individuals. The condition in the earlier history of the state especially exemplifies the appropriateness of that form of taxation. In the development of the state a more expensive system of roads was demanded in the populous centers and the necessity or at least advisability arose^ of imposing a portion of the expense of- maintaining the highways of the larger municipalities upon the owners of vehicles whose use of such highways was specially burdensome. The constitutionality of laws enacted for the purpose indicated was challenged and the power of the Legislature to enact such laws was sustained in the leading case of Marmet v. State, 45 O. S., 63.

In recent years new problems of road building and repair have arisen by the prevalent use of motor vehicles and this problem-has been increased by the skill of the inventor and the manufacturer in building practical cars of high power and speed. The state is, .therefore, confronted with the necessity or expediency of building better roads for the accommodation of this new method of travel, of providing for the- increased expenses of repairs upon highways by reáson of this new use, to preserve the highways in repair for all kinds of travel, and of establishing proper police regulation.

In the case of Cincinnati v. Bryson, 15 Ohio, 625, where the right of the state to authorize cities to charge a- license fee upon the use of drays, hacks, omnibuses and.other heavy vehicles was involved, Birchard, J., says:

“It is manifest to every one, that, in a large city, vehicles of this description cause great destruction to the public ways—far greater than the usual ordinary travel of citizens otherwise employed. There is, therefore, no injustice in exacting a reasonable portion of the expenses which such special occupations cause to the community; and those who enjoy the special privilege, can refuse to bear a reasonable portion of the burden but with an ill grace.”

In the case of Marmet v. State, supra, the general legislative authority in respect to vehicle license tax is defined as follows:

“The General Assembly has power * * * to regulate -occupations by license and to compel by imposition of a fine, payment of a reasonable fee where special benefit is conferred by the public upon those who follow an occupation or where the occupation imposes special burdens on the public or where it is injurious to or dangerous to the public.”

While there is an intimation of doubt expressed by Price, J., in the ease of Pegg v. City of Columbus, 80 O. S., page 383, yet we think the right to enact a license law including a reasonable charge as a privilege tax is clearly established in this state.

It is also claimed that the act is discriminatory and in violation of the uniformity clause of the - Constitution. This contention is founded upon the general exemption of horse drawn vehicles and certain motor vehicles.

The uniformity clause of the Constitution does not prevent reasonable classification of the subjects of legislation. Motor vehicles are a just subject of classification in respect to the use of public highways as distinguished from horsé drawn vehicles. No better statement of this proposition can be made than that found in the opinion of Spear, J., in the case of Allen v. Smith, 84 O. S., 283, as follows;

“Doesn’t everybody know that the automobile is a new machine of travel; its use a new use of the highways; that it is dangerous to other travelers; that its power, its capacity for speed, the temptation it affords the reckless driver to operate it at a dangerous rate and in a careless manner, all distinguish the automobile from- all other vehicles. Surely it can not be necessary to further elaborate this fact so patent to every observing and reading person. The automobile is, therefore, a class by itself, the users of such machines a class by themselves, and legislation in recognition of this condition is based upon solid easily recognized distinctions. ’ ’

This classification deals more especially with the necessity oi police regulation. The burden of highway maintenance as between motor vehicles and horse drawn vehicles 'is as clearly pronounced.

Reference is made in the briefs to the burden of the heavier of the horse drawn vehicles as compared with automobiles. Even this comparison does not eliminate a reasonable foundation for distinction. Horse drawn vehicles move slowly and are necessarily confined to a limited mileage, so that the total of the wear upon the highways and the amount of necessary police regulation of horse drawn vehicles is materially less than that of motor vehicles. It is, however, contended that there is unjust and unfair discrimination in the special exemptions of certain motor vehicles. The reason for the exemption in favor of fire engines, fire trucks and police patrol wagons which are governmental agencies, maintained by general taxation is manifest. Road rollers which are used largely by public authority for road purposes, may be exempted for the same reason. Public ambulances includes those owned by public authorities as well as those privately owned, but may legitimately be excepted because of the public welfare involved in their use. It would be strange, indeed, if not an anomaly ‘in the administration of government if a tax be imposed upon vehicles so used.

The exemption of traction engines is particularly complained of. The court will take judicial notice that these engines are generally used for power purposes in threshing grain and the like and that their use of the highways is merely incidental. The speed is low and the total mileage of travel small. A touring car will travel almost as many miles of highway in a single day as the traction engine will travel in the course of an entire season. Besides the very useful purpose of the traction engine and its relation to the production of food supplies for the citizens of the state may furnish grounds for legislative classification. This feature is fully discussed by Spear, J., in the case of Marmet v. State, supra.

Street ears and vehicles operated upon fixed tracks are already specially taxed and may therefore be exempted from this act.

There is complaint of the uncertainty and inaccuracy of the basis of horse power rating established in the act in respect to steam and gasoline cars. While this is a subject for judicial notice, yet the court has been favored with evidence bearing upon-this feature. From the evidence we are advised that the basis of horse power rating adopted by the act is well recognized and has been employed by leading manufacturers, and while in the recent development of engine making there may be some inaccuracy, still we think this basis is sufficiently definite to justify legislative adoption. The standard adopted is a formula. There is no delegation of power. The formula existing at the time of the enactment continues until changed by the Legislature. There is also sufficient reason for the flat rate charges upon electrics. The electrics in general use are comparatively slow moving and of low horse power. While it may be true that electrics of high speed have been constructed, yet it is equally true that they are not in general use. Should they become so, it will be ample time for the Legislature to act.

This brings us to a consideration of the amount and legality of the license charge. This feature is the most difficult of solution., The identification and registry of motor vehicles has a legitimate purpose, but it is clear that the charge provided for in the act under consideration goes far beyond this purpose. The act clearly contemplates other purposes and such purposes must be ascertained and their legality determined by constitutional limitations. It is apparent from the entire act that in addition to identification and registry, the privilege of the use of the roads by motor vehicles and of police regulation thereon is contemplated.. The imposition of' a reasonable charge for reimbursement for road maintenance and repair and for policing the road in view of the special uses contemplated by the act is warranted by the general grant of legislative power. This is not a property tax but a privilege tax. The reasonableness of a privilege tax is confided largely to the discretion of the General Assembly, but for the abuse of such legislative power, a final review is in the courts.

The opinion of the court in reviewing the power to levy excise taxes in the ease of Southern Gum Company v. Laylin, 66 O. S., 578, is illustrative. But the case of Pegg v. City of Columbus, supra, where the whole scope of the reasonableness of the act then under consideration was reviewed is analogous and directly in point. The right of the use of the public ways of the state is in a measure inherent in every citizen, but clearly that right may be regulated to subserve the interests of the public welfare. When, therefore, the Legislature clearly exceeds the limit of reasonable taxation for the privilege conferred or the burden resulting or when the charge imposed is clearly founded upon an improper basis for an unwarranted purpose, it is the duty of the courts to declare the act invalid.

Section 3609 requires the revenue derived from, registration fees to be applied to the expenses of the registry department and the surplus paid into the state treasury. The act provides that one-third of'the revenue paid into the state treasury

‘ ‘ Shall be used for the repair, maintenance, protection, policing and patrolling of the public roads and highways of this state under the direction, supervision and control of the state highway department. ”

No special provision having been made for the other two-thirds of this revenue, it remains in the general revenue fund. It is true that the general revenue fund is subject to special appropriation for any lawful purpose. But we, can not escape the conclusion that the manifest purpose of the General Assembly in appropriating expressly for highway purposes, including both maintenance and policing but .one-third of such revenue and leaving the other two-thirds in the general revenue fund of 'the state clearly discloses an intention upon the part of the General Assembly to raise the larger portion of this fund for general revenue purposes. The act is therefore, to that extent, a general revenue measure.

What further special burden or benefit than that provided for in the special appropriation for road purposes is involved in the use of highways by motor vehicles upon which to found a legitimate right to tax them for general revenue? Increased litigation in the criminal and civil courts would probably support an allotment of some share to the general revenue fund. But that consideration would not of itself justify the large portion of this tax devoted to general revenue. Nor, can we conceive of any other reason justifying it.

The eases of State, ex rel v. Ferris, 53 O. S., 314, and Ashley v. Ryan, 53 O. S., 504, are cited to support the contention that the power to levy an excise tax involves by implication the right to appropriate the tax to the general revenue fund.

The vehicle tax involved in the act under consideration, does not rest upon the same basis as the excise tax involved in the cases cited.

The authorities in this state do not attempt to classify vehicle tax as an excise tax, but it is rather considered to be a special privilege tax imposed as compensation for special burdens and inconveniences.

In all cases involving vehicle license taxes brought before the Supreme Court the revenues were appropriated to highway Uses and this case brings up for the first time, so far as we are advised, before the courts of this state the question of the right to impose a yehiele tax wholly or partly for general revenue.

We are, therefore, forced to the conclusion that the act under consideration so far as it applies to the owners and users of motor vehicles is, in large part, a general revenue measure and to that extent is unconstitutional and, void. The unconstitutional or revenue features of the act not being separate, vitiates the entire provision of the act to owners andmsers.

In view of our finding as to the unconstitutionality of the act we do not feel justified in expressing an opinion as to whether the schedule of fees therein provided is so clearly excessive as to warrant a court in declaring the same invalid, if the Legislature had expressly declared it necessary to raise such entire fund for the purpose of maintaining, repairing and policing the public highways and had appropriated the entire amount so raised less the cost of maintaining the department to such uses.

The main and controlling object of the amendment of 1913, being void, the repealing act to that extent is void and the corresponding sections of the former act are revived. All the main features of the present act except the general revenue feature are involved in the former act. Having that in view, we have considered the general features applicable to the former act and find no constitutional infirmity. The section of the former act defining motor vehicles includes among the exceptions motor bicyles and motorcycles in addition to those of the present act. That motorcycles and motor bicycles may be separately classified, we think is apparent.

Section 6302 of the act of 1913, in respect to license for chauffeurs is clearly constitutional.

Section 6301 of the act of 1913, imposes a flat rate upon manufacturers and dealers in motor vehicles. This rate is not apparently excessive and no particular argument has been made against it. It is also more in the nature of an occupation tax and we therefore sustain that section, notwithstanding the provision as to the application of the fund.

The injunction allowed in the court of common pleas should be modified and limited so as to conform to this opinion and as so modified will be affirmed.


text:
    TEST OF LIABILITY UNDER. THE WORKMEN’S COMPENSATION ACT.
    Court of Appeals for Mahoning County.
    Barnhart Gerthung v. The Stambaugh-Thompson Co.
    Decided, December 8, 1913.

      Workmen’s Compensation Act—Takes from Employer Certain Defenses —But Does Not Enlarge Basis of Recovery Beyond Common Law Rule—Test as to LiaMlity.

    1. The Workmen’s Compensation Act, General Code, Section 1465-60 (102 O. L., 529, Section 21-1). which provides that an employer of five or more workmen, who has not paid the premiums prescribed by said act, shall be liable in damages to any employee for injury caused by “the wrongful act, neglect or default” of such employer, his officers, agents or other employees, take away the defenses of - the fellow-servant rule, contributory negligence and assumption of risk, but does not enlarge the basis for recovery on the grounds of negligence beyond what it existed at common law, and the employer is only required to exercise ordinary care under all the circumstances of the case.
    2. The only test of liability under such sections is whether the employer exercised the degree of care that ordinarily prudent persons are accustomed to exercise under the same or similar circumstances.
    :."W. B. Stewart, for plaintiff in error.

      Arrel, Wilson, Harrington & DeFord, contra.
    Norris, J.; Pollock, J., and Metcalfe, J., concur.
   Plaintiff in error was plaintiff below and brought suit against the defendant in error for personal injuries which he claims to have sustained while in the employ of the defendant in error, by reason of its negligence in not furnishing a proper horse for him to drive. The petition further states that 'at the time of receiving the injuries the defendant had not availed itself of the compensation act or paid into the insurance fund qf the state -'any premium or money, as provided hy statute, although defendant employed regularly more than-five workmen in and about its establishment. ,

The answer admitted the employment of the plaintiff and set up other defenses, and further denied that it was one of the employers contemplated under the compensation act and denied that it was in any way controlled by said act, or that in so far as the defendant is concerned it has any force, value or application.

The ease was tried to a jury and evidence offered tending to support the allegations of the petition, and that the defendant did at that time employ more than five men in and about its establishment. At thé close of the evidence the plaintiff requested the court to charge the jury before argument certain propositions of law separately. The first which was given was as follows:

“The court instructs you, as a jury, if you find from a preponderance of the weight of the evidence that the defendant, at the time of the occurrence of the injury to the plaintiff, had in its employ, five or more workmen regularly in the same business, or in and about the same establishment, and further that the defendant, at that time had not paid any premium into the state insurance fund of Ohio, then, as a matter of law, the defendant is liable to the plaintiff for any injury sustained by him in the course of his employment by the negligence of the defendant, or any of the defendant’s officers, agents or employees.”

The plaintiff also asked that the following instruction be given to the jury, which was refused and exception noted:

‘ ‘ The court says to you in this aetign, if you find that the defendant has not availed itself of the Workmen’s Compensation Act, the test of liability is not whether the employer exercised ordinary care in the situation complained of, but whether said employer, the defendant, was guilty of any wrongful act, neglect or default which caused plaintiff’s injuries.”

The refusal of the court to give this last request is the only error assigned in the record. It is claimed on the part of the plaintiff in error that by virtue of Section 1465-60 of the General Code, known as part of the Workmen’s Compensation Act, that a different and higher degree of care is required of employers who are within the province of that act and do not pay into the state insurance fund the premium provided for by said act.

That section reads as follows:

“All employers who employ five or more workmen or operatives regularly in the same business, or in and about the same establishment, who shall not pay into the state insurance fund the premiums provided by this act, shall be liable to their employees for damages suffered by reason of personal injuries sustained in the course of employment caused by the wrongful act, neglect or default of the employer, or any of the employer’s officers, agents or employees, and also to the personal representatives of such employees, where death results from such injuries, and in such action the defendant shall not avail himself or itself of the following common law defenses: The defense of the fellow-servant rule, the defense of the assumption of risk or the defense of contributory negligence.”

The expressed purpose of that section seems to be to take away from employers who do not avail themselves of the act, the common law defenses of the fellow-servant rule, the defense of the assumption of risk, and the defense of contributory negligence.

Does the act in addition to that require a higher degree of care than was required at common law? Or, in other words, is the employer, failing to pay the premium required by the act, required to exercise more than ordinary care under the circumstances of the particular case? It will be noticed that this clause, making the employer liable for personal injuries sustained in the course of employment caused by the wrongful act, neglect or default of the employer, is taken substantially from the wrongful death statute, which is Section 10770, which reads in part: ' ” ' 1T’“>

“When the death of a person is caused by wrongful act. neglect or default such as would have entitled the party injured to maintain an action and recover damages in respect thereof, if death had not ensued, etc., a recovery may be had.”

It has always been held under that statute that the want of ordinary care under the circumstances was the test of liability when a question of negligence was involved in the case. It nowhere appears .in the compensation act that the Legislature intended, in using those words, that they should have any different meaning than that which has heretofore been given them by the courts of the state. Indeed, we do not think the courts of Ohio have given any sanction to the attempted fine distinction- between the degrees of negligence which are sometimes named as grounds as slight, gross or ordinary.

‘Commencing in the ease of Railroad Company v. Terry, 8 O. S., 570, reading from page 581 from the opinion of the court, it is said:

“It is obvious from this definition that the ordinary care required by the rule, has not only an absolute, but also a relative signification. It is to be such care as prudent persons are accustomed to exercise,' under the peculiar circumstances of each case. If called into exercise under circumstances of peculiar peril, a greater amount of care is required than where the circumstances are less perilous; because prudent and careful persons, having in view the object to be obtained, and the just rights of others, are in such cases, accustomed to exercise more care than in cases less perilous. The amount of care is indeed increased, but the standard is still the same. It is still nothing more than ordinary care under the circumstances of that particular case. The circumstances, then, are to be regarded in determining whether ordinary care has been exercised.”

To the same effect is Wiser v. Railroad Company, 6 Cir. Dec., 215, in which the court quotes from the case in the 8 O. S. Again, in the case of Railway Company v. Elliott, 28 O. S., 340, reading from the opinion of the court on page 357, it is said:

“A large amount of learning is developed in the boobs, upon the subject of the various degrees of care and their corresponding phases of negligence. It may perhaps be doubted whether the elaborate attempts to define the exact distinctions between the adjectives slight, ordinary and gross do not tend, not only to mislead juries, but sometimes to result even in judicial confusion.”

And further the court say:

“There is pertinency in the remark of Baron Rolfe, Wilson v. Britt, 11 M. & W., 113, and Willis, in L. R., 1 C. P., 640, that gross negligence is merely negligence with the addition of a vituperative epithet. When it is said that a person must exercise ordinary care, the statement is so plain in its language and so simple in the idea to be conveyed, that if the proposition is not comprehended in this form, mere words will probably occasion less intelligence.”

Again, to the same effect is Telegraph Company v. Griswold, 37 O. S., in which the Supreme Court quoted from Lord Denman:

“When we find gross negligence made the criterion to determine the liability of a common carrier who has given the usual notice, it might perhaps have been reasonably expected that something like a definite meaning should have been given to the expression. It is believed, however, that ip none of the numerous cases on this subject is any such attempt made, and it may well be doubted whether between gross negligence and negligence merely, any intelligible distinction exists.”

To the same effect is Harriman v. Railway Company, 45 O. S., 11, and Railroad Company v. Webb, 12 O. S., 475-496.

The doctrine of the Ohio cases cited is supported by the Supreme Court of United States in the case of Railway Company v. Arms, 91 U. S., 489-494.

From these authorities we are lead to the conclusión that the rule which has prevailed in Ohio as to the amount of care required, may be different in and under different conditions, but that the degree required is that of ordinary care under all circumstances. As said in one of the cases, the degree of care where a person operates a railroad train going through the country at a high rate of speed is greater in amount than that of a person who runs a stage coach, but in both instances it is the degree of care that ordinarily prudent persons are ordinarily accustomed to exercise under the same or similar circumstances. But we find this question is settled by our own Supreme Court in the ease of State, ex rel, v. Creamer, 85 O. S., 349. Reading from the opinion on page 386, it is said in construing this statute:

“Employers of five or more who do not pay premiums into the fund are deprived in actions in actions against them of the common law defenses of the fellow-servant rule, the assumption of risk and of contributory negligence.”

It is not intimated that they are also held to a higher degree of care. Again, on page 392:

“All employers who shall not pay into the insurance fund, etc., shall be liable to their employees for damages, etc., caused by the wrongful act, neglect or default of the employer, his agents, etc., and in such, cases the defenses of assumption of risk, fellow-servant and contributory negligence are not available. So that, an' employer who elects not to come into the plan of insurance may still escape liability if he is not guilty of wrongful act, neglect or default. His liability is not absolute as in the case of the New York statute hereinafter referred to. And it can not be said that the withdrawal of the defenses of assumption of risk, fellow-servant and contributory negligence, as against an employer who does not go into the plan, is coercive, for withdrawal is in harmony with the legislative policy of the state for a number of years past.”

Now, if this act also held the employer to a higher degree of care because of his failure to go into the plan of insurance, it seems to us that the Supreme Court would have referred to that fact, and such finding might have led the court to a different decision as to the constitutionality of the act.

Again, on page 393:

£ £ As to the employee, if the parties do not elect to operate under the act, he has his remedy for the neglect, wrongful act or default of his employer and agents as before the law was passed, and is not subject to the defenses named.”

Our attention has been called to the case of Schafer v. C. B. T. Company, 13 N.P. (N.S.), 553, where the Superior Court of Cincinnati reached a different construction ,of that' section'.. Ye think the.decision in that case is in conflict with the author-ties we have cited and many others that might be noted, and that the section in question if the employer does not pay the premium required in the insurance act, is only held to the exercise of ordinary care under the circumstances as heretofore defined in Ohio.

The judgment will be affirmed.


text:
    ACTION AGAINST RAILWAY COMPANY FOR. FIRE LOSS.
    Court of Appeals for Wood County.
    The Hanover Insurance Company et al v. The Cincinnati, Hamilton & Dayton Railway Company.
    Decided, May 8, 1913.

      Railways—Failure to Show that Building Was Fired by Passing Locomotive—Character of Proof Required to Establish Such an Allegation.

    In an action against a railway company for loss of property by fire, alleged to have been started on land adjoining the right-of-way-by sparks from a passing locomotive, in order to establish a prima facie case of negligence under the act of April 26th, 1894, 91 O. L., 187, it must be shown by affirmative evidence that the fire was caused by sparks from a locomotive which was being operated on the defendant company’s road, and this evidence must be sufficiently convincing to warrant the jury in finding that the fire was so caused.

      Benj. F. James,'for plaintiffs..

      N. R. Harrington, contra.
    Chittenden, J.; Kinkade, J., and Richards, J., concur..
    Error to the Court of Common Pleas of Wood'County, Ohio.
   This action was begun in the common pleas court to recover damages alleged to have been sustained by the burning of a building belonging to one of the plaintiffs, F. M. G-. Séibert, and which building was alleged to have been fired by sparks emitted by an engine of the defendant company while passing along the property of said plaintiff adjacent to the right-of-way of the defendant company. The fire is alleged to have occurred on or about April 25th, 1909. The defendant claims not to have caused the fire, and further that its engines were equipped with the most effectual device for preventing the escape of fire and sparks therefrom. There were joined in this action as plaintiffs two insurance companies who had paid to the plaintiff Seibert the amount of insurance carried by their respective companies. The plaintiff Seibert claims a loss in excess of his insurance indemnity.

Upon trial of the action the jury returned a verdict in favor of the defendant. A motion for a new trial filed by the plaintiffs was overruled and judgment entered upon the verdict. This proceeding is to secure a reversal of such judgment.

The principal errors complained of are that the verdict and judgment are against the weight of the evidence, and that the court erred in its charge to the jury, especially in giving the written charges requested by defendant before argument.

In order that the plaintiffs might recover in this action it was incumbent upon them to prove that'the fire was caused in whole or in part by sparks from an engine upon or passing over or along the railroad while the defendant was operating it. Such proof when made, establishes a prima facie case of negligence upon the part of the defendant, but such prima facie case is only made by the proof of such fact by affirmative evidence that would justify the jury in finding that the fire was so caused.

The Supreme Court of Ohio in Cleveland Terminal & Valley Railroad Company v. Marsh, 63 O. S., 236, holds:

“To establish negligence there should be either direct proof of the facts constituting such negligence or proof of facts from which negligence may be reasonably presumed. There should be no guessing by either court or jury.” •

A careful examination of the evidence as disclosed by the record in this case shows that the jury would be entirely justified in finding that the plaintiffs did fail to prove by a preponderance of the evidence that the fire was caused by sparks escaping from a passing locomotive. In fact we are of the opinion that the evidence would not justify any other finding upon this issue of fact.

The plaintiffs having failed in the proof in this essential fact, we find no error in the record prejudicial to the plaintiffs, and the judgment of the common pleas court is affirmed.


text:
    FUNDS WRONGFULLY DISTRIBUTED BY AN ADMINISTRATOR..
    Court of Appeals for Wayne County.
    Mary Harbeson, Administratrix of the Estate of Sarah C. Fair, Deceased, v. William M. Mellinger and The American Surety Company of New York.
    Decided, February Term, 1913.

      Estates of Decedents—Rights of a Widow Who Elects Not to Talce—Administrator Liable for Illegal Distribution.

    11 Costs connected with tbe administration of the estate of a decedent and other obligations incurred in that connection are “debts” of the estate.
    2. The fact that, upon the filing of his account, the probate court discharged an administrator from all further .liability on his bond as such administrator, does not release him or his surety from liability for wrongfully or illegally distributing ’ any part of the personal estate.
    3¡ A widow who elects not to take under the will of her deceased husband is entitled to only so much of the personalty belonging to the said'estate as would have passed to her had her husband died intestate. •

      Frank Taggart, for plaintiff.

      Kean & Adair, and Mahlon:Bouch, contra.
    Shields, J.; Vooreees, J., and Marriott, J., concur.
   This ease is in this court on appeal from the judgment of the court of common pleas of this county and is submitted upon an agreed statement of facts. It is a suit brought by the plaintiff as administratrix of the estate of Sarah C. Fair, deceased, vs. William M. Mellinger and the American Surety Company of New York, defendants, to recover of the said defendants the widow’s share of the personal estate of her husband,• Christian Fair, deceased, who died June 14, 1903, leaving a last will and testament, containing, among other provisions, the following: '

“Item 2. I hereby direct that after my death my children or their legal representatives shall pay my funeral expenses and all my other debts, and the residue of my estate not hereby bequeathed to my wife herein mentioned shall be equally divided among my children or their legal representatives.” ,

Said will also contained a provision devising to Sarah C. Fair, his wife, certain real estate therein described and the household effects together with certain other personal property therein referred to. It appears that said will was duly probated and that the said Sarah C. Fair as such widow did not elect to take the provisions of said will. She died February 1, 1904.

It also appears that the defendant, William C. Mellinger, was appointed administrator of the estate of said Christian Fair, deceased; that the defendant, the American Surety Company of New York, became surety on his bond as such administrator, and for the purpose of paying the debts of said decedent and the costs of administering his estate, the said Mellinger as such administrator sold the personal property and certain real estate of said decedent; and that the balance of the real estate of said decedent was divided between Malinda Ryland, Elizabeth Hyle and Sadie Piper, children of the said Christian Fair, deceased, in certain, partition proceedings, with the knowledge of said administrator. That after paying all of said debts and the costs of administration, the said Mellinger as such administrator had in his hands of the personal estate of said decedent the sum of $523.05, which said sum said administrator distributed to the legatees named in said will, but no part of which was paid or distributed to said widow. It also appears that among the assets of said estate was an insurance policy of $1,000 on the life of one Dr. Lerch, which the said Christian Fair in his lifetime had become the owner of, and which said policy of insurance said administrator procured an order of the probate court to distribute in kind among said legatees who accepted the same. That no part of said insurance policy was paid or distributed to said widow. That afterward said administrator filed partial accounts in the probate court showing the distribution of said sum of money above referred to, and also his account showing the distribution of said insurance policy in kind among said legatees, which said accounts were by said probate court approved.

It is claimed on behalf of the widow that having declined to accept the provisions of said will by taking under the law she is entitled, under the laws of this state, to recover her share of the personal estate of the said Christian Fair, deceased, after said debts and costs of administration are paid, including her share as widow out of said insurance policy, while the defendant William M. Mellinger claims that he distributed said estate under the order of the probate court and is therefore discharged from all liability growing out of the administration of said estate.

The first inquiry which arises is, did said decedent leave any personal estate ? The ^rst item in said will indicates that he did, for he therein bequeaths certain personal property to his wife, and in addition to this, the agreed statement of facts shows that said administrator received from the sales of personal property the sum of $523.05. As. stated, the widow declined to accept the provisions of said will; hence in taking under the law she can only avail herself of the provisions of the law in respect to her rights as widow in the personal estate of the said Christian Fair, had he died intestate.

Section 10571, General Code, provides that:

‘ ‘ The election of the widow or widower to take under the will shall be entered upon the minutes of the court. If the widow or widower fails to make such election, she or he shall retain the dower, and such share of the personal estate of the deceased consort as she or he respectively would be entitled to by law in case the deceased consort had died intestate, leaving children. ’ ’

But it is claimed that inasmuch as the widow elected not to take the provisions of said will, she is barred of distribution in any of the moneys remaining in the hands of the administrator as personal property after the payment of the debts of the said decedent. Having elected not to take under said will, the widow of course is remitted alone to the provisions of the law, for she can not invoke the benefit of both. She must rely upon one or the other.

Item 2 in said will directs that ‘‘ out of my estate my children shall pay my funeral expenses and all my other debts.”

It is contended by the defendants that the term “debts” as used here does not include .the payment of costs of administering said estate. In this contention we can not agree, for it is held that the term “debts” includes not only the debts that the testator was owing at the time of his decease, but also all that might accrue thereafter in the settlement of his estate. 14 O. S., 505-514.

Hence we are of the opinion that the costs of administering said estate, including all other estate obligations arising out of the same—obligations created by law—are debts payable by said estate within the meaning of the term “debts” used in said item.

Is the personal estate of the said decedent liable for the debts of the decedent ? Ordinarily the personal estate of a decedent is primarily liable for the payment of his debts, unless in a case where there is a will the testator by express words or by manifest intention, excepts it. 34 W. S., 461-470; 14 O. S., 505-506; 8 Pa. St., 290-292.

From the first item of said will which gives to the widow certain real estate, and in substance his personal estate, it is apparent that the intention of the testator was that his personal estate should not be applied in discharge of his debts. ' In answer to this the defendants say that the widow having declined to take under the will, the case does not fall within the exception referred to in the authority cited, but does it not follow that the legatees named in said will having accepted the benefits thereunder, must likewise assume the burdens? As stated by the learned judge announcing the opinion in the case of Case v. Hall’s Administrator, 52 O. S., 24-32 “that he who takes a benefit under a will must take it subject to its provisions; any other construction would necessarily defeat the intention of the testator.”

In the case at bar it appears that the administrator, with the consent of the children, caused the personal property and certain portions of the real estate to be sold to pay the debts of the said decedent, and that after the payment of such debts and the costs and expenses of administering said estate, there was a balance of $753.08 remaining in his hands, of which said sum the sum of $523.05 was received from the sale of personal property belonging to said estate. This sum of $503.05 is exclusive of the $1,000 insurance policy on the life of Dr. Lerch, which it.appears the said Christian Fair in his lifetime had become possessed of. It is claimed on behalf of the defendants that an application was made by tbe administrator Mellinger to the probate court for an order authorizing him to distribute said insurance policy to said legatees in kind, and that after a hearing had said court granted said order, and upon report made by the administrator of such distribution, said court confirmed the same. It is claimed that the widow is concluded by these proceedings, and to sustain such claim, among others, counsel for defendants cite us to the case of Eichelberger v. Gross, 42 O. S., 549, and quote therefrom as follows:

‘ ‘ The judgments and orders of the probate court, including the approval of partial and final accounts of guardians, import absolute verity, between the parties thereto, and they can not be contradicted or questioned collaterally.”

We have, no hesitancy in recognizing the probate court as to matters coming within its jurisdiction as a court of record, and that its judgments are of the same binding force as judgments in other courts, but such court must have jurisdiction of the parties to enable it to enter judgment. How was it here ? The agreed statement of facts signed by the parties hereto shows that the administratrix of the estate of the widow was not a party to these proceedings; hence she could not be, nor was she bound thereby. 14 O, S., 424-433.

The mere fact that the probate court made an order discharging said administrator from all further liability on his bond as such, upon the filing of his final account, is immaterial and of no legal effect, if distribution of the personal estate of said decedent was wrongfully made, and under the facts as we find them in this case, we are of the opinion that such personal estate was illegally and wrongfully distributed, and that the widow of the said Christian Fair, deceased, is entitled under the law to her distributive share in the personal estate, that is, that the plaintiff as administratrix of Sarah C. Fair, is .entitled to recover a judgment against the defendants William M. Mellinger and the American Surety Co. of New York for one-half of the present value of said insurance policy up to $400, and one-third of the balance in excess of $400, including also one-third of said sum of $523.05, with interest on the sum so found to be due, from May 7, 1910. Exceptions noted.


text:
    VALIDITY OF ELECTION OF OFFICERS OF A CORPORATION.
    Circuit Court of Cuyahoga County.
    The State of Ohio, ex rel Harry S. French, v. J. B. Clough.

    Decided, October 21, 1912.

      Corporations—Failure at Annual Meeting to Fleet New Directors—Authority of Hold-over Board to Fleet New Officers—Notice of Directors Meeting for that Purpose Not Necessary, "When—Section 8664.
    1. In the event of failure at the annual stockholders’ meeting to elect a new board of directors, the hold-over board bas authority to proceed with the election of officers of the corporation, where the code of regulations of the company provides that officers and directors shall be elected for one year.
    2. Where there is a fixed time for the holding of the annual .meeting of the board of directors of a corporation, each director will be assumed to have notice thereof, and failure to notify all the directors that a meeting is to be held does not invalidate action taken at such meeting.

      Wing, Myler <& Turney, for plaintiff.

      Smith, Taft & Arter, contra.
    Niman, J.; Winch, J., and Marvin, J., concur. .

      Affirmed without opinion, State, ex rel French, v. Clough, 88 Ohio State, —.

   This is an action in quo warranto, begun in this court, for the purposes of ousting the defendant, J. B. Clough, from the office of president and treasurer of the Machinery Forging Company, and having the relator, Harry S. French, adjudged entitled to said office.

The Machinery Forging Company is an Ohio corporation. By its code of regulations the annual meeting of the stockholders is held on the second Monday of August of each year. The number of directors is fixed at five.

At the annual meeting of stockholders held on the second Monday of August, 1912, there was a failure to elect a new board of directors by reason of an equal number of shares of stock having been voted in favor of six different persons. At the time of this meeting the board consisted of H. S. French, the relator, H. C. Kumraus, S. M. Sloan, J. B. Clough, the defendant, and B. L. Tappingden. At the time of the holding of the stockholders’ annual méeting of 1912, the relator was the duly elected and qualified president and treasurer of said company.

Immediately after the adjournment of the stockholders’ meeting, three of the old directors, Clough, Kumraus and Tapping-den, constituting a quorum under the by-laws, having requested the relator to call a meeting of the board, and their request having been refused, met and proceeded to organize. They elected the defendant to the office of president and treasurer, and filled the other offices of the company. One director, S. M. Sloan, was given no notice of the meeting. The relator was aware of the fact that the three members of the board mentioned were holding a meeting. He was in the front of the office where the meeting was held part of the time, but refused to participate in the meeting, and denied the right of the three directors .to hold such a meeting.

The defendant, after being elected president and treasurer of the company, and the other officers chosen took possession of the manufacturing plant and the other property of the corporation, and have since retained possession of the same.

The relator contends that the old board, having held over on account of the failure of the stockholders to elect a new board, was without legal authority to disturb him in his office of president and treasurer, and that the election or attempted election of the defendant to that office vested no right in him to exercise or enjoy the rights and privileges of such office. He contends, also, that if it should be held that the old board had power to elect new officers, the attempted exercise of that power was of no effect because no notice of the meeting was given to one of the directors, S. M. Sloan, who was not present at the meeting and had no actual knowledge of it.

In our opinion, if the members of the old board had power to elect new officers, the want of notice to a director of a meeting held at that time would not invalidate the action of the board. It is provided in the regulations of the company that the annual meeting of the stockholders shall be held on the second Monday in August, and in the by-laws of the board of directors it is provided that the regular annual meeting of directors shall be held at the office of the company on the second Monday of August. The time of the annual meeting of the board being thus fixed, and no actual notice thereof being required, each director must be assumed to have notice by reason of the time fixed in the by-law, itself. The rule on this subject is stated in Thompson on Corporations (Second Edition), Section 1131, in this'language :

“There has been some controversy and doubt,” says Mr. Cook, “as to the necessity of giving notice of directors’ meet ings. Many cases apply to directors’ meetings the same rules that apply to stockholders’ meetings. Other eases hold that less formality and strictness are required in calling a directors’ meeting. The decisions are quite uniform, however, in holding that as to all special meetings of the board of directors notice must be given. The law is inclined to tolerate more freedom in the notice and the calling and holding of directors’ meetings, inasmuch as the meetings are more frequent, the absentees more common, the acts less fundamental, and ratification by acting on the contracts more certain and easy. The general rule may be said to be that where the meeting is a stated one, the time and place of which are fixed by some by-law, or regulation, no notice is necessary, unless required by statute.”

The question, therefore, which we must decide is whether the board of directors-of this company holding over, after the failure to elect a new board at the annual meeting, had power to elect new officers, and specifically, power to supplant the relator by electing the defendant to the office of president and treasurer.

Section 3 of the code of regulations of the company contains a provision as follows:

‘ ‘ Officers and directors shall be elected for one- year, unless elected at a meeting succeeding the annual meeting, and in that event such officer shall serve out the unexpired term. All officers duly elected shall serve until their successors are duly elected and qualified.”

By this provision the regular term of office of the officers of the corporation is fixed at one year, and ends with the annual meeting o'f the board of directors. This is in harmony with General Code, Section 8664, which contemplates an annual 'election of officers.

By virtue of said Section 8664, and the provision of the regulations above quoted, if a new board had been elected at the annual stockholders’ meeting, it would have been the right and duty of its members, as soon after taking their oaths of office as convenient, to select a president and other officers. The stockholders having failed to elect a new board of directors, the old directors, by virtue of General Code, Section 8647, continued in office: They continued in office for all the purposes for which a new board might have been' elected. Their power and duties were the same as the powers and duties of a new board would have been. The term of office of the president and treasurer being fixed at one year, and that year having expired, the board of directors, although composed of members holding over on account of the failure to elect new members, had power to select a new president and treasurer. If the board had not acted, the old officers would have continued to hold office at the pleasure of the board until the election of a new board, and action taken by it.

It is urged, however, that the language of said Section 8664, which directs the directors “chosen at any election” as soon after taking an oath of office as is convenient, to select one- of their number to be president thereof, and unless the regulations otherwise provide, also to appoint a secretary and treasurer of the corporation, impliedly restricts the right to elect the officers mentioned, to a newly elected board.

We do not think that this is the effect of the section under consideration. It does not operate to deprive the board holding over of the right to elect new officers when their term of office expires, but in our opinion the officers so. elected will hold their offices subject to the right of any new board that may át any time be legally chosen to act under said section in the election of new officers. The old board will be served by officers of its own choosing, and if a new board is elected, it. will have the power to act under this section and elect officers of its own choice. '

The conclusion we have reached, therefore, is that the election of the defendant was within the power of the hold-over board, and that this, power was exercised in a regular and valid manner. This result arrived at from a consideration of the statutes and the code of regulations of the corporation, is supported by the only authority cited to us bearing directly on the main question involved in this action, the case of State, ex rel, v. Guerton, 106 Minn., 248, the first and second paragraphs of the syllabus of which are as follows:

“The articles of a corporation provided that a board of di-rectors should serve for one year, and until their successors were elected and qualified, and that the officers of the corporation should be chosen by the directors at their first meeting after their appointment or election, and hold office for one year, or until their- successors are elected and qualified.
“Held: The stockholders having failed to elect a board of directors at the annual meeting, the hold-over directors were authorized, at a meeting called for that purpose, subsequent to the annual meeting, to elect new officers as the successors of those holding over.”

The petition will be' dismissed.


text:
    ASSESSMENT OF EXPENSE OF LAYING WATER MAINS.
    Circuit Court of Cuyahoga County.
    Frank F. Stranahan v. J. P. Madigan, as Treasurer.
    Decided, May 8, 1911.

      Constitutional Law—Assessing Cost of Water Pipes Upon Abutting Property.

    Section 3812, General Code, which provides that municipal corporations may assess upon the abutting lots any part of-the entire cost and expense connected with the improvement of any street by constructing water mains or laying water pipe, is constitutional.

      A. B. Odell, for plaintiff.

      E. G. Guthrey, contra.

      Winch, J.; Henry, J., and Jones, J. (sitting in place of Marvin, J.), concur.
   This action was heard on appeal. The plaintiff seeks to enjoin the collection of cértain assessments upon his property in the village of Lakewood levied to pay for the laying of water mains in the street upon which said property abuts.

The case was heard upon an agreed statement of facts, from which it appears that the water mains in question were of the usual and ordinary construction, and were laid for the purpose of furnishing water to the abutting property owners and had the usual hydrants for municipal fire protection.

It was also admitted on the hearing that plaintiff’s lands were specialty benefitted by the improvement and no question was made that the assessment was excessive.

The sole question submitted to the court is whether the municipality has power to levy assessments upon abutting property to pay for water mains laid in -the street for the purpose of supplying abutting property with water. Plaintiff claims that the cost of extending water mains should be borne by the municipality from the city’s general fund.

That plaintiff’s contention would have been sustained before the amendment of Section 50 of the Municipal Code, April 14, 1904 (97 O. L., 98), now found as Section 3812, General Code, may be conceded, for the general policy of the state theretofore was to require municipalities to pay for the extensions of their water works systems out of the revenues of the same, or by the issue of bonds.

But on the date and by the amendment mentioned the Legislature provided that the council of any municipal corporation may- assess upon the abutting lots in the corporation any part of the entire cost and expense connected with the improvement of any street by constructing water mains or laying water pipe.

This, we think, was within the power of the Legislature to provide, though a decided change from the general policy with regard to the payment of the cost of laving water pipes theretofore prevailing.

The petition is dismissed.


text:
    DEFENSES WHICH MAY BE RAISED AGAINST A COUNTER-CLAIM.
    Circuit Court of Cuyahoga County.
    George A. Williams v. Leo Ederer.
    Decided, May 8, 1911.

      Counter-Claim—Objection to, How Raised.

    1. in an action on an account for goods sold and delivered, the defendant can not set up as a counter-claim, a cause of action in tort, growing out of the sending of a letter by plaintiff’s attorney to defendant’s employer, whereby the defendant lost his job.
    2. Objection to such a counter-claim may be taken at the trial, by objection to the introduction of any evidence under the counterclaim, even though no demurrer was filed to it and an answer was filed.

      Weed, Miller & Bothenberg, for plaintiff in error.

      Howland, Moffett (& Niman, contra.
    Winch, J.; Henry, J., and Jones, J. (sitting in place of Marvin, J.), concur.
   Lederer sued Williams on an account for goods sold and delivered. Williams filed an answer and cross-petition, and Lederer then filed a reply. The case ivas tried to a jury, with verdict and judgment for Lederer.'

In this court the main contention of Williams is with regard to the charge and certain requests to charge, all as bearing upon the first cause of action set up in his cross-petition. That cause of action was for a tort growing out of the sending of a letter by Lederer’s duly authorized attorney to A¥illiams’ employer, whereby he lost his job.

There was no prejudicial error in the charge if this counterclaim was not properly before the court.

It is not every cause of action which a defendant claims against the plaintiff that may be set up by him as a counter-claim. While Section 11315, General Code, says that the defendant may set forth in his answer as many grounds of counter-claim as he may have, Section 11317. General Code, defines a counterclaim as “a cause of action existing in favor of a defendant against a plaintiff or another defendant or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.”

Manifestly the sending of the letter to Williams’ employer a long time after he had purchased the goods, had nothing to do with the purchase of the goods, nor was'it connected with the subject of the action, which was on an account due from Williams to Lederer.

Indeed, the learned counsel for plaintiff in. error does not seriously contend that the cross-petition pleads a counter-claim proper to be set up in this action, but, he says, objection thereto should have been taken by demurrer and was waived by filing a reply containing an answer to said counter-claim.

That demurrer would lie to this counter-claim appears from Sections 11323 and 11324, General Code. Among other grounds for demurrer to a counter-claim these sections mention: that on its face it is insufficient in law; that the facts stated do not constitute a counter-claim, and that the counter-claim does not state facts which entitle the defendant to the relief granted.

There is a provisiou of law (Section 11311, General Code) to the effect that if a defendant does not raise an objection to a. petition by demurrer, the ground of the objection appearing on the face of it, he shall be deemed to have waived it. except only that the court has no jurisdiction of the subject of the action and that the petition does not state facts- which show a cause of action.

There is no such provision with regard to a plaintiff’s failure to demur to a counter-claim and we see no reason why any application of the rule governing ’failure to demur to a petition should be made to a failure to demur to a counter-claim. Other- provisions of law take care of the latter case and the statutes are so specific on the subject of demurrers, that no. effort should.be made to extend them by implication to take in eases not thus specifically provided for.

There is no question that had no objection been raised by the plaintiff to the trial of the counter-claim in the same action with his claim on the account, though it would be an improper intermingling of two separate and independent suits in one action, still a reviewing court would not reverse a judgment thus obtained by the parties’ acquiescence.

But the plaintiff objected in time to the introduction of any evidence under the counter-claim. We think that he thereby saved his rights. The practice of answering over and objecting to the introduction of any evidence under a petition, on the ground that it does not state facts which show a cause of action, is common and approved, and we think the statutes regulating demurrer to a counter-claim authorize the same practice.

There are authorities strictly in point on this subject cited by counsel for defendant in error. McDougall v. McGuire, 35 Cal., 374, and Smith v. Hall, 67 N. Y., 48.

We have examined the statutes of both-'of said states- and find them almost identical with the statutes of this state on the same subject.

It is urged that by holding as.indicated an injustice is done plaintiff in error in that the finding against him in this action on his counter-claim may be pleaded against him as res adjudicada should he hereafter desire to sue upon the cause of action stated in said counter-claim.

We express no opinion upon this subject, but call attention to the privilege accorded a party in such situation by Section 11337, General Code, which Williams might have taken advantage of.

The only other error complained of is a ruling on evidence.

We think it was perfectly proper for Williams to meet the point sought to be made by Ledérer that the former had done nothing whatever to arrange for settlement of the latter’s claim. This he was permitted to do by showing that he turned thé matter over to his attorney, and that his attorney wrote a letter to Lederer’s attorney. The letter itself, however, was inadmissible, being of a self-serving nature.

Judgment affirmed.