author: Guernsey, J.

text:
    Blumenschien, Appellee, v. The Maccabees of Detroit, Michigan, Appellant.

      (No. 219
    Decided November 6, 1947.)

      Mr. William L. Coleman, for appellee.

      Mr. Paul R. Qingher and Mr. J. Paul McNamara, for appellant.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Union county, in an action wherein appellee herein, Emanuel Blumenschien, was plaintiff and appellant herein, The Maccabees of Detroit, Michigan, was defendant.

On the trial in the Common Pleas Court a jury was waived and the case was tried to the court upon, the pleadings and the evidence, and the court found that there was due to plaintiff from defendant, upon the cause of action pleaded in the petition, the sum of $4,718.40, with interest from May 1, 1944, amounting in all to $5,810.80, with interest computed to May 1, 1947; and further found that there was due defendant from plaintiff, upon the cause of action pleaded in defendant’s cross-petition, the sum of $756 with interest from October 30, 1942, amounting in all to $963.90, with interest computed to May 1, 1947; and further found that the defendant is entitled to have the amount of $963.90 credited upon the amount due plaintiff from defendant, upon the cause of action pleaded in the petition, leaving a balance due plaintiff of $4,846.90, with interest from May 1, 1947. The court rendered judgment in the amount mentioned, and for costs, in favor of plaintiff and against defendant.

That is the judgment from which this appeal is taken.

The petition states a single cause of action, in short, that Blumenschien purchased two contracts of insurance in 1936 through one Charles A. Buchanan as agent of the defendant; that Blumenschien paid the premiums on the contracts of insurance in 1936, 1937, 1938, 1939, 1940, 1941 and 1942; that Buchanan, in May 1943, represented “to plaintiff that if he would make a cash payment of $1,780 the company would accept the same in full settlement of the remaining premiums due on both said policies”; that Blumenschien paid $1,780 to Buchanan; and “that the defendant refuses to comply with the terms of the agreement made by their said agent, Charles A. Buchanan, to accept said $1,780 in full settlement of all premiums due on said policies and has by reason thereof violated said agreement. ’ ’

No allegation is made that the defendant had can-celled, or intended to cancel, the contracts of insuranee; and no allegations are made of any fraud or misrepresentation or wrongdoing by either Buchanan or the defendant in connection with the two policies of insurance issued by defendant to plaintiff.

The prayer of the petition is that plaintiff recover each annual premium on both policies, plus interest from date of payment, and also the $1,780 paid Buchanan by plaintiff in May 1943.

Three defenses are pleaded in the answer.

In the first defense the defendant admits the issuance of the contracts of insurance and the payment of the annual premiums thereon, as alleged in the petition. The other allegations are denied.

For its second defense the defendant alleges the legal character of the defendant and that as such it was without authority to make a contract such as is alleged to have been made by Buchanan with Blumenschien in May 1943.

For its third defense the defendant alleges that it did not authorize Buchanan to make the alleged 1943 agreement with Blumenschien.

Defendant’s cross-petition sets forth the facts in respect to certain loans made to Blumenschien by the defendant, and asks that such loans be declared a valid indebtedness from plaintiff to the defendant and a lien on the contracts of insurance, and for such other and further relief as it may be entitled to in the premises.

The answer of the plaintiff to the cross-petition denies the allegations thereof.

The case was submitted to the trial court upon an agreed statement of facts and additional evidence introduced at the trial.

From the statement of facts, the exhibits thereto and the additional evidence introduced, the following appears:

1. Defendant is a fraternal benefit society, organized and existing under the code of fraternal laws of the state of Michigan, and, at all times herein involved, was authorized to do business in Ohio as a fraternal benefit society.

2. On September 28, 1936, plaintiff made application to defendant, through Charles A. Buchanan, a representative of defendant, for a policy of insurance (known as a certificate) designated twenty-payment life, in the sum of $4,000. On November 1, 1936, defendant issued its certificate No. 1351726 to plaintiff.

3. On or about October 20, 1936, plaintiff made application to defendant, through Buchanan, for another policy of insurance (known as a certificate) designated twenty-payment life, in the sum of $4,000. On December 1, 1936, defendant issued its certificate No. 1354045 ~to the plaintiff.

4. At the time each of the aforesaid certificates was issued, plaintiff paid to defendant the sum of $196 as "the first annual premium or rate on each of the certificates. Thereafter, on September 1, 1937, October '29, 1938, October 1, 1939, October 1, 1940, October 1, 1941 and October 1, 1942, plaintiff paid to the defendant the sum of $212.20 as the annual premium or rate ■on certificate No. 1354045.

5. On May 2, 1943, plaintiff paid to Buchanan the sum- of $1,280. On May 2, 1943, Buchanan wrote and delivered to plaintiff, on stationery bearing the printed name of defendant at the top thereof and signed “Chas. A. Buchanan, Dist. Manager,” an instrument ■acknowledging the receipt by the signer from Emanuel Blumenschien the sum of $1,280 in full payment for $8,000 life insurance for the complete 20 years. No more was ever to be paid.

It appears from the evidence, and as found by the trial court, that the plaintiff had paid Buchanan the sum of $500 on May 1, 1943, to apply on the purchase price of the paid-up insurance referred to in the above-mentioned instrument.

6. Buchanan at the time of the payment on May 2, 1943, orally stated to plaintiff that it was necessary to send both certificates to defendant to have the final payments endorsed thereon. On such date plaintiff delivered both certificates- to Buchanan. Neither of the certificates have been returned to plaintiff.

7. At all times herein involved after October 20, 1937, and including May 2, 1943, Buchanan was employed by defendant under a contract in writing prescribing “that the services required in the said employment shall consist in writing new business for the association, and looking after its general welfaré in the district assigned” to him.

8. The defendant did not authorize Buchanan to accept the payment referred to in numbered paragraph 5, supra, or to issue and deliver the instrument purporting to be a receipt for the $1,780 above mentioned, or to make the statements referred to in numbered paragraph 6, supra.

9. The defendant did not receive the sum of $1,280 or the sum. of $500 referred to in numbered paragraph 5, or any part thereof. The defendant did not receive the two certificates which plaintiff gave to Buchanan and has at no time and does not now know where such certificates are.

10. Defendant had no knowledge of the facts referred to in numbered paragraphs 5 and 6 until on or about the first day of July 1943, at which time defendant advised plaintiff (a) that Buchanan was not authorized to do any of the things referred to in numbered paragraphs 5 and 6, (b) that Buchanan was not authorized to accept $1,280, $1,780 or any other sum in full settlement of the premiums thereafter to become due on tbe certificates, and (c) that the defendant was not liable, for the statements and acts of Buchanan, referred to in numbered paragraphs 5 and 6.

11. Defendant refuses to give to plaintiff paid-up insurance in the sum of $8,000.

12. Defendant refuses to repay to plaintiff all the amounts he paid to defendant as premiums on the certificates, plus the $1,280 paid to Buchanan on May 2, 1943, and to cancel such certificates.

13. Defendant did not authorize Buchanan to represent to plaintiff that the defendant would accept $1,280 or any other sum on May 2, 1943, or any other date in full settlement of all the remaining premiums due on the two certificates. Defendant did not authorize Buchanan to accept $1,280 or any other sum' from plaintiff in payment of all the remaining premiums due on the certificates.

14. The sum required by the terms of the certificates to be paid by plaintiff to defendant on May 1, 1943, to fully pay up the two certificates held by plaintiff is $4,803.49.

15. Attached to and made a part of the agreed statement of facts and marked, respectively, exhibits A, B, C, D, E, F and P-1, are a true and correct copy of the code of fraternal laws in full force and effect in the state of Michigan on May 1, 1943; a true and correct copy of the certificate mentioned in the above-designated paragraph 2; a true and correct copy of the certificate mentioned in the above-designated paragraph 3; the paper writing referred to in the above-designated 5; the written contract of employment of Buchanan, mentioned in the above-designated paragraph 7; a true and correct copy of the laws of defendant in full force and effect in 1936; and a true and correct copy of the laws of the defendant in full force and effect in 1943.

From the attached copies of each of the contracts issued by defendant to Blumenschien in 1936, it is shown that the annual rate of each contract of insurance is $212.20, the semi-annual rate $108.40, and the monthly rate $18.40. Each policy is designated “twenty-payment life.”

On the first page of each contract is the statement: “This certificate is subject to the conditions and privileges recited on succeeding pages hereof and of any riders attached hereto as fully as if recited herein over the signatures hereto attached.”

On the second page, under the caption, “Benefits, Conditions and Privileges,” in paragraph designated “10. Agreement,” it is provided:

“It is agreed by the member holding this certificate that the certificate, the charter or articles of incorporation, the laws of the association, * * * with all amendments to each thereto shall constitute the agreement between the association and the member * * *.”

The provision last mentioned is in conformity with the requirements of Section 9469, General Code, which provides:

“Every certificate issued by any such society * * * shall provide that the certificate,, the charter or articles of incorporation * * # the constitution and laws of the' society * * * and all amendments to each thereof, shall constitute the agreement between the society and the member * * *.”

The contracts above mentioned further provide in paragraph designated “12. Modification”:

“None of the terms of this certificate can be modified in any case unless by endorsement hereon, signed by the Supreme Commander, Supreme Record Keeper or Actuary * * *.”

17. The laws of the defendant, in force at the time the contracts here involved were issued, provided:

“Section 313. The association may issue life benefit certificates on the following plans: (e) twenty-payment life. * * *

“The rates for these certificates shall be computed on the American experience table of- mortality, with an interest assumption of not more than 4%. # * *

“All certificates issued under the sanction of the board of trustees shall have rates computed on such mortality basis and such interest assumption of not more than four per cent, as the actuary may recommend, and may provide such benefits as the laws of the state of Michigan from time to time permit.”

The laws of defendant, in force in May 1943, are identical to Section 313 above quoted.

An examination of the code of fraternal laws of the state of Michigan discloses that the foregoing laws of defendant were adopted pursuant to and in conformity with such statutes.

18. Prom the evidence, it appears that each and every premium payment on both the contracts of insurance issued by the defendant to plaintiff were made by the plaintiff to Buchanan.

19. It further appears from the evidence that the defendant made the two loans to the plaintiff, mentioned in defendant’s cross-petition, under date of October 30, 1941, one in the sum of $389 on account of certificate No. 1351726 and on the security of such certificate, and one in the sum of $372 on account of certificate No. 1354045 and on the security of such certificate; that the loans bear interest at the rate of six per cent per annum from.the date thereof; and that nothing has been paid on the loans except interest from the year October 30, 1941, to October 30, 1942, and it was so found by the trial court.

Section 9466-1, General Code, relating to fraternal beneficial societies and applicable to societies such as the defendant, authorized to do business in the state, prescribes:

“No society shall grant to its members extended and paid up protection, or such withdrawal equities as its constitution and laws may provide, unless the society shall show by the annual valuation hereinafter provided for and by its annual statement that it is accumulating and maintaining the reserve necessary to enable it to do so, under a table of mortality not lower than the American experience table and three and one half per cent interest; provided, that such grants shall in no case exceed in value the portion of the reserve to the credit of such members to whom they are made. * * *”

Under his contract of employment by defendant, Buchanan had express authority to solicit contracts of insurance on behalf of the defendant; and the express authority of “looking after its general welfare in the district” assigned to him is broad enough in terms to authorize him to do any act the performance of which it may lawfully delegate to an agent.

In addition to the express authority mentioned, the defendant, by permitting Buchanan to collect successive premiums on the policies issued by the defendant to the plaintiff, clothed Buchanan with authority to collect, on its behalf, premiums on policies of insurance which he had solicited and which had been issued by the company, as well as policies which he might thereafter solicit on behalf of the company, so that he was clothed with both express and implied authority to act on behalf of the defendant in soliciting the plaintiff to enter into an insurance contract with the defendant for a paid-up life policy, and to collect, on behalf of the company, the premium for such policy.

Whether Buchanan had authority, as agent for the •defendant, to bind it to accept the sum of $1,780 in payment for the paid-up insurance, when the sum required by the terms of the certificates of insurance to be paid by plaintiff to defendant on May 1, 1943, to pay up, as paid-up insurance, the two certificates held hy plaintiff, is $4,803.49, is another and more difficult question.

The provisions of Section 24.320, Michigan Statutes, relating to certificates of insurance issued by fraternal benefit societies, are identical with the provisions of Section 9469, General Code, above quoted, so that under the laws of both states, the laws of the defendant, including its laws relating to rates for insurance, hereinbefore.quoted, constitute a part of any contract of insurance issued by the defendant, binding upon the defendant and any person to whom such certificates are issued.

A fraternal benefit society such as the defendant •cannot accumulate and maintain the reserve necessary for it to grant to its members paid-up protection required by the provisions of Section 9466-1, General Code, above mentioned, unless its rates for insurance are computed as prescribed by the laws of defendant, relating to rates, hereinbefore quoted.

As the laws of the defendant, relating to rates, are by statute made a part of any contract of insurance issued by it and such rates are required by statute to be charged by the defendant, it is inhibited by law from issuing or contracting to issue any certificate of insurance for a less rate.

Consequently the defendant could not lawfully issue or contract to issue the certificate of paid-up insurance to the plaintiff on the two certificates of insurance held by plaintiff, which its agent Buchanan agreed it should issue for the sum of $1,780 additional premium, when the lawful rate for such additional premium for such policy was $4,803.49.

The defendant being inhibited by law from issuing the paid-up policy upon the terms mentioned, Buchanan, as its agent, did not have either express or implied authority to bind it by his agreement with plaintiff to enter into the contract for the issuance of such certificates, no agent having authority to bind his-principal by a contract into which the principal is inhibited by law from entering.

Therefore, the contract entered into by Buchanan with plaintiff to issue the paid-up life insurance was not binding upon the defendant and it was consequently not liable for the breach thereof.

However, as above mentioned, Buchanan did have-express and implied authority to collect premiums,, on behalf of the defendant, on policies issued and proposed to be issued by it. As the defendant did not issue the paid-up policy which Buchanan agreed it should issue, it was legally obligated to return to plaintiff the money paid to Buchanan as premium on the proposed certificate of insurance.

Although the petition is predicated on a claimed breach of contract by the defendant in refusing to issue the certificate of insurance, sufficient facts are pleaded in the petition, and appear in the evidence, to warrant the recovery by plaintiff from defendant, of the amount paid by plaintiff as premium on such policy, with interest from the date such payment was received by Buchanan.

As the two policies issued by defendant to plaintiff were not cancelled by the defendant, and no fraud or wrongdoing on the part of the defendant or its agent Buchanan in securing the applications for such policies, or in the issuance of the same, are charged in the petition or appear in evidence, the plaintiff was not -entitled to recover the amount of premium paid by him on the insurance certificates even if the contract made by Buchanan for the issuance of the paid-up •certificate had been binding upon the defendant, as the breach of the contract to issue such paid-up policy would not, under the facts pleaded and in evidence, render the defendant liable to plaintiff for the return of the premiums paid on such policies.

We will turn now to the cause of action pleaded by defendant in its cross-petition.

The following provision, with reference to loan indebtedness of certificates of insurance, appears in each of the certificates mentioned in the cross-petition:

“Failure to pay such indebtedness or to pay interest will not void the certificate, provided that whenever the amount of the total indebtedness, however evidenced, equals or exceeds the cash withdrawal equity increased by all refund additions or accumulations, if any, the •certificate shall be void.”

Under that provision the loans of the defendant to plaintiff, pleaded in the cross-petition, have been paid or will be paid by offsetting the same against the cash withdrawal equity of plaintiff under the. certificates, so there is nothing due on such loans.

For the reasons mentioned, the Common Pleas Court erred in awarding to plaintiff as damages, the amount of the premiums paid by plaintiff on the two certificates issued to him; and also erred in awarding to defendant, on its cross-petition, judgment for the amount of its loans to plaintiff; but did not err in awarding plaintiff judgment for the sum of $1,780, the amount paid by plaintiff to Buchanan, as the premium on a proposed life certificate.

Those errors require a modification of the judgment so that the amount of recovery by plaintiff against the defendant is limited to and fixed at the principal sum of $1,780, with interest from May 1, 1944, to May 23, 1947, making a total of $2,107.22 bearing interest from May 23, 1947, and the costs incurred by the plaintiff in the Common Pleas Court, and defendant’s cross-petition is dismissed. The judgment is modified accordingly, and as modified is affirmed at the costs of defendant.

Judgment modified and, as modified, affirmed.

Jackson, P. J., and Middleton, J., concur.


source: Caselaw Access Project

author: Ross, J.

license: Public Domain

text:
    Bredwell et al., Appellees, v. Carter et al., Appellants.

      (No. 173
    Decided June 1, 1948.)

      Messrs. Nichols, Speiclel <& Nichols, for appellees.

      Messrs. Thorndyke & Becker, for appellants.
   Ross, J.

The appeal from the judgment of the Common Pleas Court of Clermont county is here considered on questions of law.

Judgment in the trial court was rendered on the pleadings, on the motion of the plaintiffs therefor.

The pleadings consisted of a petition, an answer and cross-petition, and a reply.

Upon the motion of the plaintiffs for judgment on the pleadings, all facts alleged therein are to be considered most favorably to the defendants and any factual allegation not denied by the defendants is to be taken as true.

From the allegations of such pleadings, so construed, it appears that the defendant Leslie Carter occupied certain premises under a written lease from the plaintiffs; that he used such premises for gaming purposes, and was convicted of such offense; that thereafter he left such premises and went to Florida, and his codefendant Lowell Behymer carried on the lessee’s business therein; that Behymer also carried on a gambling business in such premises and was convicted of such offense; that the plaintiffs accepted rent from Carter after his conviction of the offense of operating such premises for gaming; and that Carter made certain repairs and expended money, for which, under the terms of the lease, he was entitled to be paid by the plaintiffs.

Section 5972, General Code, provides:

“When premises are occupied for gaming or lottery purposes, the lease or agreement under which they are so occupied shall be absolutely void at the instance of the lessor, who may at any time obtain possession thereof by civil action, or by action of forcible detainer before a justice of the peace. If a person-lease premises for gaming or lottery purposes, or knowingly permits them to be so used and occupied, and fails forthwith to prosecute, in good faith, an action for the recovery of such premises, such lessor shall be considered in all cases, civil and criminal, as a principal in carrying on the business of gaming, or a lottery, on such premises.”

This section gives a lessor a remedy by civil action-in addition to and supplemental to any remedy such-lessor may otherwise have in law or equity. It makes it compulsory for such lessor to institute an action to-regain premises occupied by his lessee for gaming-purposes under a penalty for failure to institute the-action. The lease under such circumstances is absolutely void at the lessor’s option, and it is specifically provided, without qualification, that he may soregaba possession of the premises at any time. The-penalty for delay in bringing the action is in no way fixed as a modification of this right and duty to institute the action. It is obvious that the defenses of waiver and estoppel have no bearing on the duty so-imposed upon the lessor. In this connection, there is no allegation in the pleadings indicating that the defendant Carter, was in any way caused to change his-position to his disadvantage by reason of such delay.

As to the cross-petition of Carter, he can make no-claim under a lease which by the terms of the -statute-is absolutely void at the option of the lessor. The-lessor by instituting the civil action provided for in the statute has rendered the lease void. The facts alleged bring the lease within those terms.

The Court of Appeals for Summit county reached .a similar conclusion in the case of Pinter v. Hantzsche, 26 Ohio Law Abs., 378. It is true that in the lease there considered there was a forfeiture clause for use •of the premises for any unlawful purpose. However, the court held:

“If a convenant in a lease which is violated relates to a matter as to which the parties have a right to contract in any manner they desire, there may be a waiver of the right of forfeiture based upon the acceptance ■of rent after knowledge of the breach of the covenant, but where the covenant relates to a matter as to which the Legislature has established a public policy and the enforcement of such waiver would violate the public policy, the acceptance of rent after knowledge •of the breach will not constitute a waiver of the right ■of forfeiture.

“The right of a landlord given by Section 5972, General Code, to forfeit a lease and obtain possession of his premises occupied for gambling purposes is not waived by his acceptance of rent after knowledge of the violation of a covenant in the lease not to use the ■premises for unlawful purposes.”

The provisions of Section 5972, General Code, are in no way dependent upon the covenants in the lease, nor is there any provision for waiver or estoppel, in -fact the provisions of the statute are to the contrary, as hereinbefore stated.

No error prejudicial to Carter appears in the judgment, which is affirmed.

Judgment affirmed.

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.


author: Wiseman, P. J.

text:
    Yendes, Appellee, v. Shaw et al., Appellees; Hall, Appellant.
    (No. 1955
    Decided April 9, 1948.)

      Messrs. Beigel é Mahrt, for appellee Harlan WYendes.

      Mr. T. L. Barger, for appellant.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county. Plaintiff’s demurrer to the second and third defenses in the answer and to the counterclaim of defendant C. W. Hall, the appellant herein, was sustained. The appellant not desiring to-plead further, the second and third defenses and the-counterclaim were dismissed.

The defendants Harley L. Shaw and S. Esther Shaw, appellees herein, executed their promissory note for $6,000, payable to Hall, in connection with the purchase of a restaurant. To secure the payment of the note a chattel mortgage was executed in favor of Hall on all the chattel property in the restaurant. A short time thereafter and before maturity, Hall'endorsed the note without qualification and transferred the chattel mortgage to the plaintiff, Harlan W. Yendes, an appellee herein, who paid Hall therefor the sum of $4,500. The Shaws defaulted in payment of the note according to-its terms and plaintiff instituted a suit on the note and asked for the foreclosure of the chattel mortgage. Default judgment was taken and the sale of the chattel1 property was ordered. Hall at this stage of the proceedings filed a motion to vacate the judgment against him. The court vacated the judgment taken on the note but proceeded to sell the chattel property at public auction. Hall filed an answer and counterclaim to which the demurrer was sustained.

Hall in his second defense alleges that “he sold to plaintiff the note described in plaintiff’s petition and received therefor the sum of $4,500 same having been discounted to that extent in order that said defendant receive cash.” The fact that Hall sold a $6,000 note for $4,500 before maturity and endorsed the note without qualification to the order of the plaintiff did not make Hall an endorser without recourse. The plaintiff became a holder in due course. Section 8157, General Code. There is no claim made of any infirmity in the note existing between the Shaws and Hall. Consequently, the plaintiff is not deprived of his right to enforce payment of the full amount of the note. Sections 8162 and 8171, General Code.

For a third defense Hall alleges that plaintiff’s agent informed Hall that, “under the manner and form of the transfer of the note and chattel mortgage, said defendant would not be liable to said plaintiff in any sum or sums whatsoever in ease of the failure of Harley L. Shaw and S. Esther Shaw to pay same or payments provided thérein; that no liability would attach to said Hall of any kind after the transfer of said note and mortgage; that said representations were false and that plaintiff’s agent knew them to be false; and that said defendant believing said representations and acting therein, transferred said note and mortgage to said plaintiff.” It is clear that the plaintiff’s agent misrepresented the legal effect of Hall’s endorsement and his legal obligation after the transfer. A misrepresentation of law as to Hall’s legal rights and obligations however erroneously and convincingly stated was but an expression of an opinion and does not constitute a defense on the ground of fraud. Everyone is presumed to know the law and, therefore, acts upon statements of that character at his peril. Not every erroneous representation will avoid a contract. To have that effect it must be a false representation of a material fact upon which the party who is injured had a right to rely and did rely. The misrepresentation alleged did not relate to a material fact. Aetna Ins. Co. v. Reed, 33 Ohio St., 283, 292.

In Yappel v. Mozina, 33 Ohio App., 371, 169 N. E., 315, the first paragraph of the syllabus is as follows:

“G-enerally, mere misrepresentations of what the law is cannot form basis for an action of deceit, even though representation was meant to be acted on and believed by parties to whom it was made and is acted on, since every man is supposed to know the law, and one believing statements made by another in that regard does so at his peril.” See, also, 19 Ohio Jurisprudence, 416, Section 128; 23 American Jurisprudence, 809, Section 45; 153 A. L. R., 538.

In Wicks v. Metcalf, 83 Ore., 687, 163 P., 434, 988, L. R. A. 1918A, 493, which is referred to in the footnote in 23 American Jurisprudence, ibid., the facts were similar to those presented in the ease at bar. The court held: “It is no ground for decree perpetually-enjoining suit on notes given by plaintiff that she signed them on defendant’s representing that her signature would not make her personally liable, since the misrepresentation or mistake was one of law against which relief will not be granted.”

Hall in his counterclaim alleges the failure of the plaintiff to co-operate with him in his effort to dispose of the business; and that a portion of the chattel •property was removed from the premises and sold causing a loss to Hall. There is no allegation that the plaintiff removed or sold the chattel property. On the other hand, it is definitely alleged that Shaw sold two ice cream freezers for less than the true value. There being no allegation to the contrary, it may be presumed that the sale was made by Shaw while he was in possession of the property and at a time when the plaintiff and Hall were out of possession. In our opinion the facts alleged do not show a cause of action against the plaintiff.

Hall did not allege facts constituting a good defense to the note in his second and third defenses of the answer. The counterclaim did not allege facts sufficient to constitute a cause of action. The demurrer was properly sustained.

As we find no error in the record, the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author:
By the Court.
      Ross, J.,

text:
    Struble et al., Appellants, v. City of Cincinnati et al., Appellees. (Six cases.)
    (Nos. 6911, 6912, 6913, 6914, 6915 and 6916
    Decided March 1, 1948.)

      Mr. David L. Shannon and Mr. Roy L. Struble, for appellants.

      Mr. Henry M. Bruestle and Miss Isabel Guy, for appellees.
   By the Court.

In these actions the plaintiffs sought injunctions restraining the collection of an assessment to pay the cost of a street improvement.

The trial court denied the injunctions and made separate finding of facts and conclusions of law.

The actions are before this court on appeals on questions of law. There are no bills of exceptions, and the only question is whether the findings of facts are sufficient to support the decrees.

It is .stated in the second paragraph of the syllabus of the case of Jack v. Hudnall, 25 Ohio St., 255, 18 Am. Rep., 298:

“Where the finding of facts by the court fairly admits of a construction which will support the judgment, that construction will be adopted rather than a ■different one which would render the judgment erroneous.”

However, we do not find it necessary to have recourse to that rule of construction to support the decrees in these cases.

A reading of the findings of facts discloses that the court found that all the procedural requirements of the law for the levying of the assessment were met, that there was no abuse of discretion, that there was no suggestion of fraud, and that there were benefits conferred upon the plaintiffs’ property by the improvement.

The court found also that “the assessment was in excess of the benefits conferred.” It is urged that such finding requires the granting of injunctions restraining the collection of the excess.

Plaintiffs’ counsel rely on statements contained in the opinions in Damar Realty Co. v. City of Cleveland, 143 Ohio St., 469, 55 N. E. (2d), 805; Domito v. Maumee, 140 Ohio St., 229, 42 N. E. (2d), 984, and Walsh v. Barron, Treas., 61 Ohio St., 15, 55 N. E., 164, 76 Am. St. Rep., 354, that special assessments have no legal justification except in special benefits, and that an assessment beyond special benefits has no legal justification. That rule may be conceded. However, that is not the question presented by these records.

The question here presented is as to the power of the court to set aside the finding of the city council that the plaintiffs’ property was benefited to the amount of the assessment. Does a mere finding by the court that the assessment exceeded the special benefits justify the court in granting an injunction against the collection of the assessment in whole or in part? We think not.

In 28 Ohio Jurisprudence, 795, Section 502, the Ohio cases are summarized as follows:

“The statute provides that when an assessment as reported by an equalizing board to the council is confirmed by the council, ‘it shall be complete and final.’ It is also well established, independently of statutory provision, that where the council of a municipality determines that the amount of an assessment does not exceed the value of the special benefits conferred, its judgment in the premises, in the absence of fraud or an abuse of discretion, is final and conclusive. And where an assessing board has made a finding as to the amount of benefits and has made an assessment on the basis thereof, there is a prima facie presumption in favor of the correctness of such finding, and it will not lightly be disturbed or inquired into, in the absence of allegations of some of the grounds usually invoking equitable intervention.”

That a judicial conclusion that the amount found by the assessing authority was in excess of the special benefits, does not invalidate the assessment, is generally held. In Louisville & Nashville Rd. Co. v. Barber Asphalt Paving Co., 197 U. S., 430, 49 L. Ed., 819, 25 S. Ct., 466, the court said:

“There is a look of logic when it is said that special assessments are founded on special benefits and that a law which makes it possible to assess beyond the amount of the special benefit attempts to rise above its source. But that mode of argument assumes an exactness in the premises which does not exist. The foundation of this familiar form of taxation is a question of theory. The amount of benefit which an improvement will confer upon particular land, indeed whether it is a benefit at all, is a matter of forecast and estimate. In its general aspects at least it is peculiarly a thing to be decided by those who make the law.” See Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. City of Minot, 51 N. D., 313, 199 N. W., 875, 37 A. L. R., 211; annotation, 37 A. L. R., 226; and City of Cincinnati v. Board of Education, 63 Ohio App., 549, 27 N. E. (2d), 413.

For these reasons, the decrees are affirmed.

Decrees affirmed.

Matthews, P. J., and Hildebrant, J., concur.

Ross, J.,

dissenting. I dissent from the opinion and judgment because, when the trial court found the assessment exceeded the benefits, the assessment could not be sustained under the rules laid down in Damar Realty Co. v. City of Cleveland, 143 Ohio St., 469, 55 N. E. (2d), 805. It must be presumed there was evidence to sustain the court’s finding, in the absence of bills of exceptions showing the contrary. The decrees should be reversed and judgment should be here entered for the plaintiffs.


author: Hildebrant, J.

text:
    The Sisters of The Poor of St. Francis, Appellant, v. City of Cincinnati et al., Appellees.
    (No. 6894
    Decided May 17, 1948.)

      Messrs. Kunkel & Kunkel, for appellant.

      Mr. Henry M. Bruestle, city solicitor, and Miss Isabel Guy, for appellees.
   Hildebrant, J.

On retrial ele novo before this court, plaintiff seeks to enjoin the collection of a special assessment according to benefits for a street improvement along the rear of its abutting property for the sole reason that the service of notice made herein is fatally defective.

By stipulation the parties agree that the city took proper legislative action to make the improvement, and that proper legal notice was duly served on the sister superior, in charge .of the hospital property sought to be assessed, who accepted the same and signed a receipt therefor, on behalf of the corporation, although she is not and was not on that date an officer of the corporation.

It is stipulated further:

“The Sisters of the Poor of St. Francis, the plaintiff herein, is an Ohio Corporation with its principal place of business at St. Clare Convent, Hartwell, Cincinnati, Ohio, having been incorporated on the 21st day .of December 1859. Its property is vested in three trustees all of whom live at St. Clare Convent. The president of the corporation is and was on the date herein concerned the mother provincial; the vice-president- of the corporation is and was on the date herein concerned the superior of St. Clare Convent, and the secretary of the corporation is and was on the date herein concerned. Sister Paula. All are residents of St. Clare Convent, Cincinnati, Ohio. The three trustees are the president, vice-president and secretary of the corporation and were in the county on the date of service of notice to Sister Odorica.”

The hospital fronts on one street level situated at the base of a hill which rises so abruptly in the rear to its frontage on the improvement street level and to such a height that the improvement street is not visible from the top floor of the hospital. Its steepness is demonstrated by the fact that wooden steps; are required for the ascent from the lower to the upper level.

Additional testimony now before the court by way of deposition is that the sister superior in charge of' the hospital, deeming the notice for which she receipted of no importance, filed it away and never advised any officer of the corporation of the fact of receiving it. The secretary of the corporation testified' by way of deposition that none of the officers of the-corporation was ever served with notice or had actual knowledge of the pending improvement.

Was the service of the proper legal notice accepted' and acknowledged by the sister superior in charge of' the hospital so fatally defective as not to bind defendant corporation?

Section 3818, General Code, requires notice of council’s legislative intent and action to be served on the-owners of property to be assessed, in the manner provided by law for service in civil actions. Compliance-therewith is mandatory and jurisdictional. The pertinent part of Section 11288, General Code, providing-for the manner of service in civil actions upon corporations, is:

“A summons against a corporation may be served1 upon the president, mayor, chairman or president of' the board of directors or trustees, or other chief officer ; or if its chief officer be not found in the county,, upon its cashier, treasurer, secretary, clerk, or managing agent; or, if none of such officers can be found, by a copy left at the office or usual place of business of the corporation with the person having charge thereof.”

The stipulation and the evidence affirmatively show that no seryice of notice of any kind was had or attempted to be had on any of the officers, enumerated in the statute, who, in this case, were all within the county and living at the Hartwell convent, the principal place of business of the corporation. The alternative provisions for service in event a chief officer of the corporation is not found in the county are, therefore, not applicable to the facts before us here. We, therefore, conclude that the service of. notice on the sister superior in charge of the hospital was completely ineffective to meet the requirements of the statute.

On examination of Section 3901, General Code, relieving against technical irregularities and defects, and Section 3911, General Code, requiring a liberal construction in favor of the improvement proceedings, we find no cure for a failure in the jurisdictional requirement of service of notice according to law.

The injunction is granted and a decree may be presented accordingly.

Decree accordingly.

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.


author: Metcalf, J.

text:
    Willis, a Minor, Appellant, v. Wilson, Appellee.
    (No. 767
    Decided November 18, 1947.)

      Messrs. Corn, Byrne & Jefferys, for appellant.

      Messrs. Irish, Riley <& Riley, for appellee.
   Metcalf, J.

This appeal on questions of law arises out of a bastardy proceeding in the Court of Common Pleas of Lawrence county, wherein the defendant, appellee herein, was adjudged by a jury on the 27th day of February 1947 to be the reputed father of an illegitimate daughter born to plaintiff, appellant herein, on February 20, 1945.

The one assignment of error and the only question for solution is the ruling of the trial court on the motion of complainant for maintenance and support of the child from the date of birth to the date of adjudication, which motion the court overruled, saving exceptions to the complainant and fixing the date of April 19, 1947, from which time the defendant shall pay complainant the sum of $5 per week for the maintenance and support of such child.

This question calls for the construction of Section 12123, General Code, which section, as last amended, became effective September 5, 1941, the pertinent part reading as follows:

“If, in person or by counsel, the accused confesses in court that the accusation is true or, if the jury find him .guilty, he shall be adjudged the reputed father of the illegitimate child if said child is alive, and the court shall thereupon adjudge that he pay to the complain•ant such sum as the court may find to be necessary for her support, maintenance and necessary expenses, ■caused by pregnancy and childbirth together with costs of prosecution, and a reasonable weekly sum to be paid •complainant for support and maintenance of said child up to eighteen years of age. In the event said child is not born alive, or is not living at the time of said plea or finding of guilty, the court shall order the accused, to pay the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expense caused by pregnancy, including therein a reasonable amount for maintenance of said child until its death, and its funeral expenses. * * *■”

That part of Section 12123, hereinabove quoted, is identical with the statute as amended January 27,1938, ■effective May 17, 1938 (117 Ohio Laws, 808). Prior to the amendment of 1938 and dating from 1923, the law made no provision for any allowance to complainant for the maintenance and support of an illegitimate child but rather provided for the prosecution, after the adjudication, under the statutes for nonsupport of legitimate or illegitimate children. (See 110 Ohio Laws, 299, effective July 30, 1923.)

We call attention to the various amendments for the reason that it is apparent that the trial court in the instant case followed the pronouncement laid down in the case of State, ex rel. Griffin, v. Zimmerman, 67 Ohio App., 272, 36 N. E. (2d), 808, decided by the Court of Appeals for Hardin county, on March 22, 1941. That decision, by a divided court, indicates clearly that in holding that a reputed father is not liable for maintenance and support of his illegitimate child covering the period between birth and adjudication, the majority felt bound by the decision of the-Supreme Court in the case of State, ex rel. Beebe, v. Cowley, 116 Ohio St., 377, 156 N. E., 214.

This court feels the position taken by the majority of the court in the Griffin case is not supported by the-Supreme Court in the Beebe case. The Supreme Court had before it a statute which had been amended on-April 5, 1923, whereby the provision that a reputed father was charged with the child’s maintenance had' been eliminated, and, in lieu thereof, provisions were-made whereby he was charged only with the mother’s support, maintenance and necessary expenses caused by her pregnacy and childbirth. Therefore, a reputed father not being liable for the maintenance and support of the child under the bastardy statute but rather under the nonsupport statute, it follows that any judgment in the bastardy proceeding compelling him to pay maintenance and support from the time of birth to the time of adjudication is erroneous. That is what the Supreme Court held. But, since the amendment in 1938, the Beebe case has no application so far as it adjudicated the liability of the father for the care- and maintenance of the child.

The statute as it now exists makes provision that, in the event the child is not born alive or is not living-at the time of adjudication, the court shall make an order compelling the reputed father to pay the complainant a reasonable amount for maintenance and support of the child until its death, and its funeral expenses. This court cannot subscribe to an interpretation that will compel the reputed father to pay for the period in question only in the event the child is deceased at the time of adjudication. The Legislature never so intended. Rather it was the intent and purpose of the Legislature, as clearly set forth in the statute, that the father shall support the child from birth until the age of 18 years and provision was made that this maintenance and support shall be paid, although the child is dead at the time of adjudication, for that period that the child lived and for its funeral ■expenses.

If there is any doubt existing by reason of the Legislature not specifically having said that the weekly payments commence at the birth of the child, that doubt must be resolved, if possible, with the thought in mind of avoiding an injustice, hardship or an absurdity. 37 Ohio Jurisprudence, 642 to 649, Sections 351 to 353, inclusive.

The child in the instant case was born February 20, 1945, and was more than two years of age when the court entered the order compelling the defendant to pay for its maintenance and support from and after April 19, 1947. It is conceded that, had this child died a few days prior to such adjudication, the defendant would not only have had to pay from the time of its birth but for the funeral expenses in addition thereto. Did the Legislature intend such an absurd thing that, if the child was fortunate enough to be alive at the time of adjudication, the father would be relieved of all responsibility for its maintenance and care during the past two years ? We think not.

We are not alone in finding ourselves in conflict with the Court of Appeals of the Third Appellate District. The Court of Appeals for Summit county had this same question before it in the case of Fisher v. Davis (unreported), decided November 6, 1944, and there held that the reputed father is liable for the care and maintenance for the time elapsing between the birth and adjudication. .That case was certified to the Supreme Court as being in conflict with the Griffin case, supra, but the matter was adjusted and the case was never taken to the Supreme Court.

It is our opinion that the trial court in the instant case committed prejudicial error in refusing to grant the motion of complainant to fix an amount for care, maintenance and support of the child from the time of its birth. Therefore, the judgment of the trial court so far as it relates to that phase of the case is reversed, and the cause is remanded with instructions to fix a fair and reasonable amount for such maintenance and support for the period in question.

Judgment accordingly.

Gillen, P. J., and McCurdy, J., concur.


author: Miller, J.

text:
    Cox, Appellant, v. State Medical Board of Ohio, Appellee.
    (No. 4151
    Decided May 25, 1948.)

      Messrs. Sanborn & Brownfield, for appellant.

      Mr. Hugh S. Jenkins, attorney general, Mr. E. G. Schuessler and Mr. Joseph F. Ford, for appellee.
   Miller, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas affirming an order of the State Medical Board, appellee herein, denying the plaintiff, appellant herein, a license to practice mechanotherapy, a limited branch ■of medicine. The ground for the refusal was that the plaintiff failed to make the required grade.

The first error assigned is that the court erred in holding that the plaintiff had not passed the examination required by statute. The record discloses that plaintiff submitted to two examinations. One was given by four doctors of medicine and one doctor of ■osteopathy, all being members of the State Medical Board. That examination covered the subjects of ■anatomy, physiology, chemistry, diagnosis and pathology. The grade received in that examination was 55.8. The other examination was given by Harry F. Gleim; a mechanotherapist of established reputation and known ability, who was designated by the "board to conduct such examination. This examination resulted in a grade of 77.5. The plaintiff was notified that he failed to pass the examination by reason of his grades in the “basic branches,” and that his application for a license was denied. Plaintiff is contending that the examination in the “basic branches” by the members of the board was not authorized by law, and that, since he passed the examination conducted by Harry F. Gleim, the license should be granted to him. The statutes relating to the limited practice of medicine and surgery are Sections 1274-1 to 1274-7, General Code.

Section 1274-1 provides that the State Medical Board shall establish rules and regulations governing mechanotherapy and shall examine persons desiring to practice in such limited branch of medicine.

Section 1274-2, General Code, provides as follows:

“For the purpose of establishing the practice of such limited branches the State Medical Board shall call to its aid the designated persons as provided in Section 1274-3 of the General Code, and such designated persons shall examine any person who has practiced any such branch in Ohio for a period of at least one year prior to June first, 1915, and who makes application prior to October first, 1915, on a form prescribed by the board in those subjects only which are appropriate to the limited branch of medicine or surgery, for a certificate to practice which his application is made. * * * The examination of all applicants- shall be conducted under rules prescribed by the board and at such times and places as the board may determine. Such examination shall be given in anatomy, physiology, chemistry, bacteriology, pathology, hygiene, diagnosis, and in such other subjects appropriate to the limited branches of medicine or surgery, certificate to practice which is applied for, as the board may require * *

Section 1274-3 provides as follows:

“For the purpose of conducting such examinations the State Medical Board shall call to its aid any person * * * of established reputation and known ability in the particular limited branch in which the examination is being held * * *.”

We are of the opinion that the purpose of the General Assembly was to have the examination, in tihe subjects appropriate to the limited practice, conducted by a person of established reputation and known ability in the particular limited branch in which the examination is held, and that the examination in the basic subjects shall be conducted by the board under rules prescribed by it pursuant to the authority of Section 1274-1, which provides that “the State Medical Board shall also examine and register persons desiring to practice any limited branch or branches of medicine or surgery, and shall establish rules and regulations governing such limited practice.”

The record discloses that the following rule was adopted by the board:

“The applicant for a license to practice mechanotherapy shall after submission and approval of his preliminary and professional credentials pass a licensing examination conducted by the State Medical Board in the subjects of anatomy, physiology, chemistry, bacteriology, pathology, hygiene and diagnosis, and before a special committee of licensed mechanotherapists appointed by the State Medical Board an examination in practice, symptomatology, diagnosis and therapeutics as applied to the practice of mechanotherapy # *

It seems to be the position of plaintiff that where the statute says that the board shall call the meehanotherapists to its aid this means that it shall turn the complete conduct of such examination to the person so called. With this contention we cannot agree. If the General Assembly had intended such a procedure, it could easily have so stated, but that body used the phrase, “call to its aid,” and it did not say that the person so called should be substituted for the board. “Aid” is defined by Webster as follows, “to help; to further. Syn. — One who * * # promotes or helps in something done.”

It is a cardinal rule of statutory construction that where a word of common use is employed, and it is not technical in nature, such word will, unless a contrary sense is specifically expressed, be deemed to have been used in its ordinary sense. It is our conclusion that it was the intention of the General Assembly that the examination in general subjects should be conducted by persons especially qualified therein, to wit, the State Medical Board, and to have the examination in the special subjects also conducted by specially qualified persons. This is what the board did and its actions met the legislative requirements.

The next error assigned is that the court erred in sustaining the constitutionality of the board’s order. It is contended that the examinations given to plaintiff were not reasonably appropriate to the purpose; that they constituted an “overexamination.”

This question has been passed upon by our Supreme Court in the case of Williams v. Scudder, 102 Ohio St., 305, 131 N. E., 481, paragraph seven of the syllabus of which is:

‘ ‘ The act of the General Assembly, passed April 27, 1915 (106 O. L., 202-204), now Sections 1274-1 to 1274-7, General Code, further regulating the practice of medicine and surgery by authorizing the- examination and registration of practitioners in the limited branches thereof, is a constitutional and valid exercise of legislative power.”

We therefore hold that there was no error in this assignment.

The next error assigned is that the board abused its discretion in grading the papers of the plaintiff, such contention being based on the statement that the board had no “approved solution to the questions.” There is no evidence in the record of any nature showing that the questions were improperly, arbitrarily or capriciously graded. We cannot substitute our judgment on these questions and answers for that of the board. The principle is well stated in the case of People, ex rel. Jones, v. New York Homeopathic Medical College and Hospital, 20 N. Y. Supp., 379, wherein it is said:

“The court cannot re-examine the relator as to his qualifications to practice medicine, nor go over the studies in which he is said to be deficient. If it attempted to do so, the relator’s road would be easy, for, with his experience, imperfect though it may be, he would no doubt pass a better medical examination than any court could be expected to give him. The law wisely intended no such result. It leaves the subject where it belongs — with those qualified to master it.”

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

Judgment affirmed.

Wiseman, P. J., and Hornbeck, J., concur.


author: Hornbeck, J.

text:
    Farmer, Admx., Appellee, v. The Pittsburgh, Cincinnati, Chicago & St. Louis Ry. Co. et al., Appellants.
    (No. 651
    Decided December 11, 1947.)

      Mr. L. E. Kerlin, for appellee.

      Mr. Baircl Broomhall and Messrs. Goubeaux & Goubeaux, for appellants.
   Hornbeck, J.

This appeal is on questions of law from a judgment of the Common Pleas Court for the plaintiff in the sum of $2,975 and costs.

The cause was tried to judge and jury. At the conclusion of the plaintiff’s case, during the presentation of which the defendants offered the testimony of witnesses out of order by agreement, later moved for a directed verdict and renewed the motion at the conclusion of the whole case. Motion for judgment notwithstanding the verdict and motion for new trial were filed, heard and overruled, and judgment was entered on the verdict.

Three errors are assigned here, two of which are, first, the refusal of the court to direct a verdict for the defendants on motion and, second, the refusal of the court to enter judgment notwithstanding the verdict, on motion, and in overruling the motion for new trial.

Plaintiff’s decedent, William H. Parmer, was, on the morning of December 18, 1945, operating a milk truck in a westwardly direction on the West Manchester-New Paris highway. When he reached the intersection of the highway with a railway crossing, owned by the defendant, The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, his truck was struck by a locomotive operated by defendant, the Pennsylvania Railroad Company, which locomotive was moving in a southwestwardly direction. It developed that The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company maintains and owns the right of way at the crossing, and that the Pennsylvania Railroad Company operates the trains along and over the crossing. We hereinafter refer to these defendants, without differentiation, as “defendants.” The truck with the body of Parmer in it was impaled on the locomotive, burst into flames and was carried a distance of from one-half to three-quarters of a mile before the locomotive and some 15 to 17 cars, constituting the train, were brought to a stop. The road, as it approaches the crossing from the east, and the railroad to the northeast make a rather sharp angle, and at a distance of about 1,000 feet the tracks of the railroad curve to the north.

It is alleged that the train was being operated negligently at an excessive rate of speed; that warning, either by bell or whistle, was not seasonably given as the train approached the crossing; that because of obstruction to the northeast, consisting of a growth of brush and trees, and because of the curve in the railroad track, the view of one approaching the crossing from the east was impaired; that there were inadequate signs and precautions for the safety of the travelling public, and particularly plaintiff’s decedent, at the crossing; that the decedent, as he approached the crossing, stopped his truck before entering the right of way, looked and listened for any train that might be approaching; that he could not see or hear the approach of the train; and that, after taking due precautions, plaintiff’s decedent started his motor truck in an effort to pass over the crossing,. but was unable to do so and the truck was struck and he was killed. Finally, it is averred that after the employees on the ■ locomotive saw Farmer on the track at the crossing and in peril and after defendant had time within which to stop its locomotive, it failed and neglected to make any effort to prevent injury to him.

Upon the issues drawn the cause went to trial. The plaintiff, among other witnesses, offered Floyd Spitler, deputy sheriff of Preble county, George W. Flory, the coroner of Preble county, Martin M. Miller, through whose farm defendant’s railroad runs, and H. D. Armstrong, the fireman on the locomotive which struck the truck of Farmer. At the conclusion of plaintiff’s case and at the end of the whole case, defendants moved for directed verdict upon four grounds, namely, (1) failure to prove any negligent act on the part of the defendants as the proximate cause of the death of plaintiff’s decedent, (2 and 3) the evidence as a matter of law disclosed that plaintiff’s decedent was chargeable with contributory negligence, and (4) for other reasons apparent on the record.

To appreciate the questions presented, it will be necessary to set forth, as briefly as possible, the testimony of some of the witnesses, particularly those for the plaintiff. Spitler testified to the report of the sheriff as to the collision and Flory testified to the report which he made as coroner. They were permitted over the objection of defendants to testify to statements made to them by the fireman as to certain details of the accident. Miller was also interrogated respecting statements made by the fireman which he heard on the same subject matter. If this testimony was in conflict in any material fact with the testimony of Armstrong, we would be faced with the necessity of determining whether these statements were admissible as a part of the res gestae, and there would indeed be serious doubt if any of them could properly be so received.

Manifestly, the deputy sheriff and the coroner were notified after the collision and did not come on to the scene of the accident until they had travelled some distance, all of which took considerable time. Could it be said that the statements of the fireman then made to them'were anything more than a recounting of past events ?

Miller was the first person on the scene after the collision, but he lived 400 feet from the crossing and the train had moved a distance of from one-half to three-quarters of a mile before it came to a stop, all of which distance he had to traverse before coming to the locomotive, and, after the engineer had left to call the coroner, Miller was in the cab with the fireman and it was then that the statements to which he testified were made. No objection was interposed to this testimony of Miller. If the statements of the fireman to Miller were in conflict with anything to which he testified, even so, such statements would not be substantive proof of the subject matter of the statements. Their only effect would be to weaken or detract from conflicting statements thereafter made on the stand by the fireman.

An examination of the following cases is of value in determining whether the testimony of those witnesses was competent as a part of the res gestae. Liberty Highway Co. v. Callahan, 24 Ohio App., 374; Wade v. State, 2 C. C. (N. S.), 189, 15 C. D., 279; and the late case in this appellate district, Lyle v. Olentangy Cory., 80 Ohio App., 351, 70 N. E. (2d), 397. We do not, however, find it necessary to hold that the testimony of those witnesses on the subject matter under consideration was incompetent.

The plaintiff was put to the necessity of offering, or at least did offer, Armstrong as her witness after the court had refused to permit him to testify as upon cross-examination. From Armstrong’s testimony, it appears that he was on the lookout as he turned the curve, a distance of about 1,100 feet from the crossing; that when the locomotive was some 600 feet therefrom he saw Farmer drive slowly up to the crossing; that when the locomotive was about 200 feet from the crossing Farmer drove up to within about six feet of the track and stopped his truck and thereafter, when the locomotive was within 100 to 150 feet from the truck, started up and drove onto the track; that before Farmer was seen the first time, the engineer, who did not and could not see the truck because he was on the opposite side of the locomotive, was blowing the whistle, which he had begun to do at a distance of a quarter of a mile from the crossing, and continued to blow it until after the truck was struck; that when the fireman discovered that the decedent would, in probability, be struck he called to the engineer to whistle and he then gave three sharp blasts; and that the bell on the locomotive had been ringing continuously from the time the train left Dayton until after the collision.

Further, the witness said that in the distance between Farmer and the locomotive when he drove onto the track, namely, 100 to 150 feet, it was impossible to stop or materially lessen the speed of the locomotive. Thus, it is manifest that, from the testimony of Armstrong, there was no issue of fact whatever upon which the jury could pass. 'If, however, from testimony of other witnesses for a plaintiff, which is favorable to the plaintiff, a conflict arises, then the jury should be given the opportunity to resolve the conflict. Pope, Admx., v. Mudge, 108 Ohio St., 192, 140 N. E., 501. Upon the closest study of plaintiff’s witnesses, we find no conflict whatever with the testimony of Armstrong upon any material issue of last clear chance.

Spitler, testifying from his report, said:

“Mr. Armstrong (the fireman) said that he saw the truck stop and then it started to cross the track. He told the engineer to blow the whistle.”

Flory answered as follows:

‘ ‘ A. The fireman told me that the truck stopped and then started again. That is according to my notes.

“ Q. Did he make any statement as to how far he was away when he saw that truck start up to make that crossing after it had been brought to a stop? A. No,, don’t remember that he did.”

On cross-examination, Flory reiterated his statements made on direct.

Miller testified:

“Q. I will ask you whether or not you talked to the fireman at that time? A. Yes, I was up in the cab after the engineer went to call the coroner at the neighbors, I was up in the cab with the fireman and he told me that he saw the man drive up and stop and then he said that they was coming around the bend when they saw him when he drove up and stopped, why then it just started on—

“Mr. Broomhall: You said that he started what?

A. Crept right up on the track with the truck.

“Q. He said that at the time that he seen him the 'engine was back about the curve there some place, ■didn’t he? A. Yes, he said it was coming just around the curve when they saw him stop.

# # # # *

“Q. I want to ask you, Mr. Miller, at the time you talked to the fireman of that train did he say what, if ■anything, either he or the engineer did after they saw this man start the truck up and he told the engineer that that they — that he thought they was going to hit him? Did he say anything? A. Yes, he said .just as soon as they come around the curve there and saw him stop and start on, why he looked over to the ■engineer and he said, we are going to hit him.”

Paul Royer was, by consent of counsel, called as a witness for the defendants- before the plaintiff had •concluded her case. He testified, on direct examination, as follows:

“Q. Well, I will ask you, Mr. Royer, if you talked with the engineer or fireman yourself down there immediately after this crash? A. No, I don’t know that I just talked to them myself. I was around there when they were talking.

“Q. Well, I will ask you if you heard that fireman ■say he saw Mr. Farmer bring his truck to a stop and then started on again when they was several hundred feet away from the crossing? A. I heard him say that. ’ ’

No objection was offered to that testimony. Royer testified further:

“Q. Did he say anything — did you hear him make any statement as to what either he or the engineer did after they saw that Mr. Farmer was in danger and liable to be hit? A. I know they started stopping as soon as they hit; you could hear them throw off their steam.

“Q. But you didn’t hear them throw on the steam until after they hit, did you? A. Well, of course, you would that quick; you wouldn’t think nothing about it. I wouldn’t know.

“Q. Did the fireman say anything as to whether the engineer attempted to stop the train before they got to that crossing after he told him that that fellow was going to get hit? A. I didn’t hear anything about that, I don’t think. I didn’t get that question clear.

“Question read again.

“A. Heard him say that he told him that he stopped; that he had got stopped when he asked him if he got stopped, but then he pulled up on the track after that, I reckon.

* # # * *

“A. I don’t know as the fireman said that they was going to hit him that I even heard.

* # * • •

“Q. You did hear him (the fireman) say that he saw him stop and start up again? A. I didn’t hear him say that he started back up. I heard him say- he said he seen him stop.”

That answer cleared up the ambiguity in the answer hereinbefore quoted. The testimony of Royer, of course, could not be considered on the motion for directed verdict at the conclusion of plaintiff’s case because, offered before the plaintiff had rested, it was a part only of defendant’s case and should be so considered.

Upon a full consideration of all the testimony relating to the averment of the last clear chance doctrine in the petition, there is no support for the claim of plaintiff because there was nothing in the statements of the fireman as to the occurrences immediately prior to and attending the collision upon which reasonable minds could differ. Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246.

We give some consideration to the other principal issues in the case, namely, the negligence of the defendants and the contributory negligence of plaintiff’s decedent.

It is said that the crossing where the collision occurred was dangerous, and that there were inadequate warnings there. But this could not have particularly .affected Farmer who had regularly, for four or five weeks prior to the collision, traveled over this crossing and was thoroughly familiar not only with the fact that there were railroad tracks there, but with the general physical situation attending. Nor would ’the failure of the defendant to place additional warnings, barriers or protection at the crossing have relieved Farmer from his obligation to exercise due •care.

There was some testimony that there were trees in the line of Farmer’s vision as he approached the crossing, and that the railroad track made a curve to the north at a distance of approximately 1,000 feet, but there is not a scintilla of evidence from which any inference can be drawn that Farmer’s view was materially impaired, if he had stopped six feet from the crossing, and that was the place where, from the competent testimony it must be said, he stopped. At that point he could have seen the locomotive for a distance of at least 1,000 feet.

There is likewise some testimony, negative in character, to the effect that no whistle was blown until a very short time before the collision. But the failure to sound warnings could not absolve plaintiff’s decedent from the obligation to use his senses, particularly of sight, at a time when such looking would have been seasonable. That he was contributorily negligent must be found as a matter of law, under the .case of Columbus, Delaware & Marion Electric Co. v. O'Day, Admx., 123 Ohio St., 638, 176 N. E., 569. In that case, an interrogatory was submitted to the jury the answer to which established the fact that plaintiff’s decedent, the driver of an automobile in which he was riding when struck, had he looked, would have seen an interurban car in time to have stopped his automobile in a place of safety, and that he did not look in the direction of the oncoming car when he was far enough from the railroad track to stop his automobile before reaching the crossing.

• Like answers must have been made to such interrogatories if presented in this case.

There is no escape from the conclusion that without respect to any negligence which may have been established against the defendants, which is very meager indeed on this record, it conclusively, and as a matter of law, appears that plaintiff’s decedent was chargeable with contributory negligence which would have precluded any recovery on the part of the plaintiff upon all averments of the petition save only that of last clear chance.

We have discussed the factual development on last clear chance. West, Recr., v. Gillette, Admr., 95 Ohio St., 305, 116 N. E., 521; Ross v. Hocking Valley Ry. Co., 40 Ohio App., 447, 178 N. E., 852, and Cleveland Ry. Co. v. Masterson, 126 Ohio St., 42, 183 N. E., 873, 92 A. L. R., 15, all announce the law of last clear chance in Ohio. As we have said, from the evidence before the jury upon this question, it must be resolved against the plaintiff because it does not appear, nor can it be inferred, that anything the engineer could have done after he discovered the peril of the plaintiff’s decedent could have prevented the collision.

It follows then that the motions of the defendants, particularly for directed verdict at the conclusion of all of the evidence and for judgment non obstante veredicto, should have been sustained, as well as the motion for a new trial.

The third assignment is directed to the general charge. We find the instructions of the court, as embodied in the charge, complete and correct and if the facts adduced had warranted their submission to the jury, its members would have had proper instructions as to the law controlling their deliberations.

The judgment is reversed, and judgment is entered in this court for the defendants.

Judgment reversed.

Wiseman, P. J., and Miller, J., concur.


text:
    Spidel et al., Appellees, v. Warrick et al., Appellants.
    (No. 653
    Decided January 31, 1948.)

      Mr. Wilbur D. Spidel, Mr. Richard E. Hole and Mr* Webb R. Clark, for appellees.

      Mr. T. A. Billingsley, Mr. O. J. Myers and Mr* Jesse K. Brumbaugh, for appellants.
   Miller, J.

This is an appeal on questions of law from a judgment setting aside the purported will of' John W. Spidel, upon the ground of mental incapacity and undue influence. The jury returned a general verdict in favor of the plaintiffs which must be taken as a finding in favor of the plaintiffs on both issues, no special interrogatories having been submitted to the jury. Sites v. Haverstick, 23 Ohio St., 626.

John W. Spidel was born in 1865. His education was very limited, he not being able to either read or write except to sign his own name, although one of the witnesses testified that he attended the public schools with him, that he went as far as the fifth grade, and that he heard him read numerous times in school. He resided in the family homestead as long as his parents lived, and after their death he and his sister Sarah resided there until her marriage to Dale R. Warrick in 1921. This marriage did not meet with his approval at first, so John moved out of the family home when the husband came in. Some of the witnesses testified that John became very angry over this marriage, as he thought that Dale Warrick was marrying his sister for her money and he stated on several occasions that Dale Warrick would never get any of his money. However, after the lapse of approximately six months he became reconciled and moved back into the home of his sister Sarah and her husband and lived with them' up to' the time of his death, he having been a bachelor all his life. Upon the death of his mother who survived his father by some 20 years, the estate was divided among the five children, John and his brother Dan acquiring several farms which they held, jointly and operated until Dan’s death, after which Dan’s widow, Margaret Jennie Spidel, who will hereinafter be referred to as Jennie, continued to operate the farm on a partnership basis and acquired more land.

The record discloses also -that Dan operated a livery stable in Greenville and that John worked there, sleeping on blankets in the office at the stable at night for a period of time, the length varying from six months to several years. The nature of the business was such that an attendant was required to be on the job at all hours. Some of the testimony showed that Dan was the boss and that John always took orders from Dan. Oftentimes when John would be engaged in conversation with other loafers around the barn, Dan ■would tell John to “shut up” or that he was “crazy.” Likewise in the operation of the farms the testimony showed that Dan, who was better educated, having-been a country school teacher, looked after the business and after his death his widow, Jennie, assumed this responsibility. After her death his sister Sarah and her husband assisted him, keeping his records and helping in the management of the properties. The record is undisputed that he attended practically all the public auction sales conducted on farms in the community; that he purchased livestock, farm machinery, tools and equipment, being especially interested in job lots of small trinkets which were mostly junk and which he purchased for practically nothing. In these dealings he always had a partner who assisted him, although he did most of the bidding himself. The property thus acquired was resold or traded for other things of value. Several witnesses testified that he always carried cheap pocketknives, jewelry and small trinkets which he enjoyed trading- in.

In September 1931, Jennie Spidel died leaving a will in which she bequeathed some of her property to the Missionary Society of the Presbyterian Church and the balance of the estate was to be divided into four parts, one-fourth going to each of Dan’s four brothers arid sisters if living- or their children, if deceased. On January 9, 1932, Francis G-rise and Forrest G-rise, who were beneficiaries under Jennie’s will,, filed a partition suit asking for a partition of the ancestral real estate, formerly in the name of Dan Spidel. In one of these farms John had a one-half interest and by inheritance had acquired a one-fourth interest in the :share of Dan Spidel.

The record shows that John attempted, without success, to persuade the plaintiffs, who were his nephews, to refrain from partition and from forcing- the land to sale at a time when the country was experiencing a most severe economic depression.- The record discloses further that on March 5, 1932, John filed a suit for several thousand dollars against his brother Jacob on several alleged lost notes and that in this litigation Jacob was represented by his son Wilbur Spidel who was a practicing lawyer. This suit was pending, with the defendant’s denial of the execution of the notes at the time that John executed his will.

The record shows further that on April 8, 1932, Jacob C. Spidel, through his son Wilbur, and without, consulting or advising John, filed a partition suit to-par tition all the land devised under the will of JennieSpidel. A similar suit was filed on the same day by the Stoltz heirs. That suit involved approximately 1,000-acres of land and several town properties in which. John' was the owner of a one-half interest. John bitterly resented the filing of such suit which would force-the larger part of his'real estate holdings on the market under the then existing depression.

The record discloses further that on May 20, 1932, a suit was filed by the executor to construe certain provisions of Jennie Spidel’s will, and on June 17, 1932, the Grise members of the family instituted an action to contest some of the provisions of the will. This was resented by John as it was his desire that the terms of the will be carried out according to her wishes. All these aforementioned suits were pending on July 6,1932, when John Spidel made his will. All his interests in approximately 1,000 acres of land and several town properties were the subject of these various suits. The country was in the midst of a great depression and all his relatives, except his sister Sarah and her husband, were attempting to force a sale of this real estate. Also prior to the making of the will John had endeavored to effect a settlement with his brother Jacob and the Stoltz heirs, bnt his efforts failed. It was under these conditions that on July 6, 1932, John W. Spidel executed his will, giving to Sarah and her husband, Dale Warrick, a life estate in all his property and after the death of the life tenants, all the property to be reduced to money and the proceeds divided equally between the Church of the Brethren and the Presbyterian Church, both of Greenville, Ohio. His mother had been a member of the Brethren Church to which Sarah and Dale belonged.

The evidence showed that John anticipated his will would be contested, so he had prepared the following instrument which he circulated and had signed by 34 acquaintances and friends who were bankers, businessmen and farmers:

“Greenville, Ohio, July 2, 1932

4 4 To Whom Concerned:

“This is to certify that we, the undersigned, are well acquainted with J. W. Spidel and have talked to him and associated with him for a number of years and that we are absolutely certain that said J. W. Spidel is now and always has been fully capable, in every way, to make a will and to transact any kind of ordinary business. We also, certify that we consider him in every way able to properly transact business and we would be willing to enter into any kind of a transaction with him knowing him to be absolutely capable of understanding the minutest details of such transaction. That he is capable of making a will and is of sound mind and knows his relatives and his obligations to them and their obligations to him and knows the nature and extent of his property is a fact ¡beyond dispute in our opinion.

44 J. J. Roth Chas. Deubner

H. M. Albright C. O. Westfall

G. G. Hildebrand E. E. Kester

E. G. Reigle Paul C. Brown

W. F. Norris Ora Wyan

Pierre V. Coppess F. H. Clark

W. H. Brokaw L. E. Peirson

J. E. Boyer G. H. Rehmert

Dan H. Brown Wm. H. Grewe

E. G. Iiusted Dr. W. E. Guntruin

Cbas. Nisebwitz B. F. Metcalfe

J. W. Mendenhall C. Fouremán

S. R. Hiatt J. Ed. Williams

Jos. Menke Geo. S. Werner

D. H. Wheeler H. D. Stephens

J. E. Kline W. H. Tillman

W. F. Straker E. A. Goubeaux.”

That instrument was found with the will, but was not admitted to probate with it. It was offered in evidence as ‘ ‘ defendants ’ exhibit No. 34,” but was rejected although it was read in full to the jury. The will was prepared by Thomas J. Hughes, a lawyer, who died many years before John who on one occasion performed legal services for Dale Warrick.

The record shows that at the time of the execution of the will no one was present except the lawyer and two attesting witnesses. The will was left at the lawyer’s office until his death, after which John secured it and deposited it with the Probate Court. On December 3, 1942, he removed it from the Probate Court and deposited it in a lockbox in The Citizens State Bank where it remained until his death. He was accompanied by Dale Warrick when he removed the will from the Probate Court to the lockbox. His physical condition appears to have been good up until the time of the execution of the will, with the exception that in July 1933, he had a kidney removed which had been bothering him somewhat for several years prior thereto. One witness testified it had caused him to have occasional fainting spells.

As a result of the partition suit, the land was sold on September 23, 1933, John having bid some of it in at the sale price of $42,850. The sale was confirmed on September 29, 1933. John had difficulty in raising the immediate cash, and, on October 5, 1933, Wilbur D. Spidel, acting on behalf of his father, Jacob, filed a motion for an order requiring all purchasers to comply or show cause why they had not complied with the terms of the sale. Upon hearing, the court fixed the date for compliance as October 16, 1933. Upon noncompliance with this order a citation for contempt was filed by Charles A. Stoltz. A loan was finally secured through the Federal Land Bank by means of which he was enabled to pay off several short-term loans which enabled him to complete the purchase. It seems that the plaintiffs are contending that Sarah misrepresented to John that Jacob was going to have him put in jail because of the motion he filed on October 5, 1933. This, if true, could have had no'effect on influencing John as to the terms of a will which had been made over a year previous. As it later turned out, the partition suit was not harmful to John, but, as a matter of fact, was beneficial, as he secured the land at depreciation prices and it had practically doubled in value at the- time of his death.

The record shows also that John’s relationship with all the members of the family had been friendly up until the time of Jennie’s death and the filing of the various lawsuits.

It is useless to recite the chaotic conditions existing in this country at the time the suits were filed, and any normal person could readily understand why John did not want his farms sold at forced sale under such conditions. Our General Assembly took cognizance of this fact by enacting laws .restricting foreclosures on real estate.

The first assignment of error relates to error in the admission of evidence offered by the plaintiffs. Objections were directed to certain hypothetical questions propounded- to the medical experts as not being based upon facts contained in 'the record. We find such objections well taken in the following instances:

In the record is the following language' contained in a hypothetical question:

“Now doctor the testimony has been that John was suspicious of his relatives — of various of his relatives —made so by what his sister told him. ’ ’

We find ;io evidence in the record of any suspicious conduct on the part of John Spidel nor is there any evidence that his sister Sarah told him any untruths which resulted in his treating his relatives with suspicion.

The language of another hypothetical question objected to was improper for the same reason.

The following was objected to:

“And that Jacob Spidel and the other members of the family, and the heirs were willing at all times to co-operate with John Spidel.”

That question was not based upon the evidence for we find no evidence in the record that the heirs were at all times willing to co-operate.

Another objection to a question was well founded for the reason that the partition suit was referred to as a friendly procedure and the record discloses that it was not a friendly procedure. Jacob Spidel testified that he did not discuss that suit with John before the same was filed, and when he did tell John about it and tried to explain it, he said, “Oh, John just raired and got mad and was going to whip me.”

An objection was made to a hypothetical question which requested the witness to consider “all the facts you have heard here today.” Such question was too broad as it did not limit the witness to expressing himself upon the facts which were propounded to him by counsel. The witness could have answered the question based upon any information he might have received in the office of counsel for the plaintiffs or around the corridors prior to his testifying.

In the fifth paragraph of the syllabus of Manley v. Coleman, 19 Ohio App., 284, it is said:

“A hypothetical question must fully and fairly reflect the facts, and the omission of facts which are in evidence renders such a question improper where what is included manifestly fails to present the facts in their true relation.”

See, also, Cincinnati Mutual Ins. Co. v. May, 20 Ohio, 211.

We find the errors hereinbefore referred to were prejudicial to the rights of the defendants, as improper evidence was permitted to go to the jury.

The next assignment of error is that the court erred in rejecting evidence offered by the defendants. This assignment relates to the refusal of the court to admit defendants ’ exhibit. 34 which . is the instrument circulated by John and signed by 34 of his acquaintances. We think this evidence was improperly rejected, and should have been admitted under proper instructions to the jury, not as substantive proof of the facts therein contained, but as possibly throwing some light upon his state of mind at that time. If the evidence was competent for any purpose it was admissible. Adams, Exr., v. Foley, 36 Ohio App., 295, 173 N. E., 197. Issues relating to undue influence are generally determined by circumstantial evidence and inferences drawn from a full presentation of facts which may be inconclusive when taken separately. A wide range of inquiry is, therefore, permitted to bring before the jury facts and inferences bearing upon the preparation of a will. Board of Education v. Phillips, 103 Ohio St., 622, 134 N. E., 646; Koch v. Meyers, 7 Ohio App., 306; Fox v. Lynch, Jr., 43 Ohio App., 305, 183 N. E., 177; 41 Ohio Jurisprudence, 488, Section 346.

We recognize the fact that the instrument was read to the jury, but we do not believe that this is determinative of the question. The jury was entitled to inspect the instrument and by its rejection may not have given to it the weight to which it was entitled. The rejection of defendants’ exhibit 34 was prejudicial error.

An objection is made also to special charge No. 2 submitted by the plaintiffs and given by the court to the jury. The objection is made that this charge refers only to “delusions” and that it should have been “insane delusions.” It should be noted, however, that the charge referred to defined the word, “delusions,” as follows: “* * * that is false beliefs not founded upon fact or reason and which beliefs could not be removed by argument or persuasion.”

That is a correct definition of an insane delusion. See 41 Ohio Jurisprudence, 318, Section 86. We find no error in this charge as given.

The next assignment of error relates to the alleged misconduct of a juror and was submitted to the court by affidavits and counter-affidavits relating to the conduct of one of the jurors during the course of the trial. The sufficiency of those charges was a matter resting within the sound discretion of the court and unless there is an abuse of discretion the same will not be disturbed. Phillips v. Board of Education, 21 Ohio App., 194, 153 N. E., 119. We find no abuse of discretion in the court’s ruling.

The last assignment of error relates to the sufficiency of the evidence and to the failure of the court to direct a verdict for the defendants, throughout the ■various stages of the trial. To review the testimony of the various witnesses would not be practicable, as the bill of exceptions contains over 2,000 pages, the trial having lasted approximately four weeks. The issues in' this case must be directed to the date of the execution of the will in question, to wit, July 6, 1932. In an .action to set aside a will on the grounds of undue influence or testamentary incapacity, the burden of proof is upon the contestants of the will and before the jury would be justified in setting aside the will the evidence adduced against- it must outweigh both the evidence adduced in favor of the will and the presumption .arising from the order of the Probate Court admitting the will to probate as the valid last will and testament •of the testator. Now did the evidence offered by the contestants meet these requirements? We do not think it did.

The evidence taken in its most favorable light towards the plaintiffs shows that John Spidel was uneducated, had the mind of a ten or twelve year old child, enjoyed trading in livestock, farm equipment .and similar items, and that he invested all his income in farm lands which he was able to successfully manage with the assistance of others. He was on friendly terms with all his relatives until the various suits were filed against him and those attacking the will of Jennie Spidel. He then became angry at all his relatives who were active participants in those suits, with the exception of his sister Sarah who did not participate. Many of the hypothetical questions propounded to the medical experts were based upon the fact that he was suspicious of his relatives and that the partition suits were friendly proceedings, which is not supported by the record. He became angered at them because of these suits. Jacob testified that after the-litigation he and John never spoke when they met on the street. John’s anger was based upon a reason and,, therefore, it could not be the basis of an “insane delusion” as was testified by several medical experts. Their testimony was based upon the wrong premise.. Practically all the witnesses, with only a few exceptions, testified that his mental condition was such as-to satisfactorily meet the requirements laid down in Niemes v. Niemes, 97 Ohio St., 145, 119 N. E., 503.

Relative to undue influence this evidence showed that John enjoyed confidential relationships with his sister Sarah and her husband, two of the beneficiaries of the will, from which the suspicion of influence might arise, but there is nowhere in the record any direct evideneeof influence by either of those persons.

One witness testified that Sarah said in John’s presence that “we fixed it so they won’t get any of our money, didn’t we, John?” This was no direct evidence of influence. An inference might be derived' from it but certainly of very little weight. Also, on several occasions,.Sarah said John was leaving all his money to them and then to the church. This would indicate that Sarah was cognizant of the contents of' the will, but certainly throws no light upon the question of undue influence. The record shows that Sarah hated her relatives as much as John did, and that she took no active part in the partition suits. It also-appears that she became angered at the other members of the family for their attitude toward John. It is contended that she made false statements to John-about his relatives for the purpose of influencing him, but we find no evidence in the record to support such charges.

After viewing all this testimony in the light most favorable to the plaintiffs, we are clearly of the opinion that the jury was not warranted in finding for the plaintiffs on either one of the two issues raised by the pleadings. The will of a person found to be possessed of a sound mind and memory and acting without restraint should not be set aside on evidence tending to show only a possibility or suspicion of undue influence. The expressed intentions of the testator should not be thwarted without clear reason therefor.

The judgment is, therefore, reversed for prejudicial error in the record and also as being against the manifest weight of the evidence. The cause is ordered remanded for a new trial.

Judgment reversed.

Wiseman, P. J., and Hornbeck, J., concur.