author: Walters, J.

text:
    THE PRIMA FACIE CASE PRESENTED BY THE PROBATE OF A WILL.
    Court of Appeals for Hamilton County.
    Ida W. Gomien, Executrix, etc., et al v. Stanley E. Weidemer et al.
    Decided, March 23, 1917.

      Wills—Weight of Evidence on Motion to Direct a Verdict for the Contestees—Physical Ills, Age and Feebleness Not Sufficient to Overcome the Prima Facie Case, When.

    1. Where, at the close of the evidence for the contestants in a will case, a motion is interposed to direct a verdict for the contestees, the ■trial judge is not bound by the scintilla rule, but will determine whether the evidence which has been offered is sufficient to countervail the prima facie case made by the order of probate.
    2. The opinion of witnesses that the testatrix, a feeble old lady afflicted by a number of physical ailments, was of unsound mind at the time her will was executed is not sufficient to overcome the prima facie case arising from probate, where no facts were given by the witnesses which would support their opinion and it is in evidence that she always inquired about her children and grandchildren and exhibited affection for them and recognized her own afflictions and conversed in an intelligent manner.

      Bolle, Taylor, O’Bonnell cfc Ceisler, for plaintiffs in error.

      Charles W. Baker and Stephen ~W. Jones, contra.
   Walters, J.

Tlie court in considering the evidence contained in the record, as to whether the verdict is against the manifest weight of the evidence, is met with a different rule as to its guidance than that which is applied in the ordinary civil action of the code.

The procedure in relation to the contest of wills is regulated entirely by statute, and we may truly say is a special one, being contained in a separate chapter in the code. When the Legislature enacts special provisions in regard to procedure they alone govern and exclude from consideration all other. general pro visions on a related subject.

Section 12083, General Code, provides that:

“On the trial of such issue, the order of probate shall be prima facie evidence of the attestation, execution and validity of the will or codicil.”

Prima facie evidence of a fact, says Mr. Justice Story, is such evidence as in the judgment of the law is sufficient to establish the fact, and if not rebutted remains sufficient for that purpose. Crane v. Morris, 31 U. S., 598.

Prima facie evidence of a fact is such as establishes the fact, and unless rebutted or explained by the evidence becomes conclusive and is to be considered as if fully proved. State v. Burlingame (Mo.), 48 S. W., 72.

'The order of the probate court is in the nature of a judgment, and when that is produced the contestant must then introduce his evidence, and enough of it to countervail the prima facie case; and when a motion is made by the defendant, at the close ’of the evidence offered by the contestant, that the court direct the jury to find for the defendant because the contestant has not produced enough evidence to overcome the prima facie case made by the introduction of the order of probate, then the trial judge is at liberty, and it becomes his duty, to weigh the evidence, and in so doing he is not bound by the scintilla rule. The scintilla rule applies only to the civil actions of the code, and not to the special proceedings provided for in statute for the contest of wills. Schneider v. Retelbach, 17 N.P. (N.S.), 124; Kammann v. Kammann, 26 C.C.(N.S.), 60; Hall v. Hall, 78 O. S., 415; Strick v. Kiss, 26 C.C.(N.S.), 456.

Should the court have sustained this motion ? Lottie Weidemer and Mrs. McDonough testified that Mrs. Weidemer, the testatrix, was of unsound mind; Morris Weidemer says she was very feeble-minded. Mr. McQuillan says, “Well, I wouldn’t say thát her mind was either or there was something lacking. Yes, there was something lacking.” Stanley Weidemer was not asked his opinion. Roy Weidemer, Celia Weidemer, Mrs. Kampse, Mrs. Worthington and Mrs. Taylor were not asked for their opinion. There is no witness for the contestants who observed her just before or after the execution of the will or at the time of its execution.

The testatrix may have been of unsound mind and yet perfectly capable of appreciating her surroundings, her relations and their deserts, and of her property.

We quote here a synopsis containing all the material points in the testimony of Lottie Weidemer, for she appears to be the strongest witness for the contestants and the other witness chiefly follow in her foot-steps, and if the contestants make out a case to go to the jury it must be made out by this witness.

She states that:

“Grandma seemed to think a whole lot of us and was very affectionate, brought us presents, would kiss, etc. When grandma moved to Aunt Ida’s (spring 1906) grandma said: ‘Now I live near you and it is easy for you to come. You just take the Swing line. You children must come out to see me.’ Grandma was glad to see us and wanted us to come back again. Before the sickness of 1909 grandma had rheumatism, but was able to walk around, used cane and held on to things, peeled vegetables, wiped dishes. As long as I can remember her hands were awfully wrinkled, veins prominent.”

Grandma always.told her she had heart trouble and it was hard for her to breathe, especially after she had eaten. Sometimes grandma would say she had taken medicine or would ask Aunt Ida if it was time to take it; also she would say, “The doctor said he is going to give me this or that medicine.” She frequently put her hand to her heart and complained of a pain there. ITer hearing was always poor. She wore glasses. After sickness grandma said it was hard for her to read and she could not darn any more. Witness said her grandma had dropsy in her feet and limbs; would be bad for a day, and swelling go down and maybe it would occur in a few months again.

On the first visit during Mrs. Weidemer’s sickness in 1909 Lottie noticed grandma was propped up in a big easy-ehair and had gotten thinner. She had not slept for five or six days; did not talk much. She did not lie down in bed for five or six weeks. Doctors gave grandma sleeping powders and she became very drowsy and slept most of the time. After the six weeks she went to her bedroom, and with assistance walked to the kitchen or out on the porch. Asked as to her memory she said:

‘ ‘ Grandma could not remember things very well because when we went out there she would always ask us what we were doing, and if one of the boys were not there and she would ask about him, and she would ask about mother. And maybe we would go out there the very next week and she would ask the same questions over again.

“Then she would be telling us something and she would say, ‘I can’t get it there’ and then she would call Aunt Ida in for her to tell it to me. And then she would start to tell something and stop and say ‘I don’t even remember what I was saying.’ We would sit at her side (one and one-half years after the sickness) and talk to her and she would try to talk to us some, and then maybe we would be saying something to her and she would close her eyes and nod her head and go off to sleep sometimes. She would come back in a few seconds and look at us and ask us what she had said. Sometimes she would sleep over fifteen minutes. We would leave the room and grandma would drowse and wake up again. Grandma ate with the rest of the family in the dining-room, fed herself, and walked (some one taking her arm) from dining-room to kitchen. Grandma complained of being cold, and although there was a stove in the room where she sat she said,.‘The halls and bedroom were so cold. ’ She wanted a furnace put in so the whole house would be comfortable. Furnace was put in in 1910 or 1911, and grandma told Lottie she would help pay for the furnace because it was put in a good deal for her benefit.”

Witness present when grandma gave Maurice his father’s watch (after July, 1909). Then this occurs:

“Did your grandmother ever talk to you about any business matters of any kind ? ’ ’ Answer. “ Yes. ” “ What did she say ? ’ ’ Answer. “She would tell me that she had gotten her dividend check and that she'had given them to Uncle Lou to take down, that he was coming out perhaps that day and bring the money, or she would say she had just gotten them, he had brought them out the previous Sunday, something of that sort.”

She also remembers graduating from high school in June, 1909; that grandma then gave her a gold cross and Lottie presented, grandma with her picture and a bouquet of flowers, and that grandma said, “She was glad I had gotten through so well and she appreciated the flowers very much and liked the picture.” Grandma also gave her ten dollars in gold for her eighteenth birthday, September, 1909, and congratulated her. She also remembers talking to grandma about her school work at Delaware (1910). Also remembers grandma gave her an opal ring for Christmas, 1910; that grandma told her she wanted her to have a ring and that she (grandma) “had told Aunt Ida to buy it for me.” Lottie had not expressed a desire for an opal ring, but wanted grandma’s engagement ring, which grandma had given to her daughter Ida. Grandma also had this opal ring fixed for Christmas, 1911, as Lottie has lost the setting. About this time, Christmas, 1911, Grandma received a “postal card shower, ’ ’ and all relatives.and friends sending her birthday cards. Lottie sent her' one. Grandma was pleased with all the cards and showed them to Lottie. Lottie stayed two days at Gomien’s in the summer of 1910 and states grandma may have peeled some vegetables for the meal then, but does not remember grandma putting on all the things to cook. Lottie liked to go to Gomien’s because they were made at home. Grandma was pleased to see them and complained that they did not come oftener. She received letters from grandma usually at Christmas time and Lottie wrote grandma letters. Lottie also knows that grandma “took some papers.” Grandma did not read a good deal although she would have liked to. Lottie also stated that she saw her grandma peel vegetables, wash dishes and do light work about the house. Also remembers grandma telling about falling in the kitchen. Also remembers being there when Dr. Hier was there once, but Lottie did not stay to hear )the conversation between grandma and the doctor. Grandma always inquired as to brothers or mother when they did not come out. When they visited grandma they usually sat next to her and talked to her.

On cross-examination Lottie was shown one of her grandma’s letters to George (Lottie’s father). Lottie admitted it was her grandmother’s letter. This letter was written January 11, 1909.

'Tbe letter refreshes Lottie’s recollection. She remembers about her aunt, Mrs. Winterhalter, dying and leaving a will. Part of the letter is read to Lottie about the division of the estate, as follows: “Lottie and the boys were here the day after Christmas and Lottie told us that they thought each one would get about $1,300.” Thereupon Lottie said “I don’t remember definitely about telling her that, but if she said' so it was true. ’ ’ Then question (reading from letter) “ ‘Celia comes in for that also, then she can pay for her house.’ Do you remember talking to your grandmother about that?” Answer: “I don’t remember but I evidently did.” Lottie was again cross-examined and shown another letter of her grandmother’s (Exhibits 23 and 24) page 896 (envelope postmarked Nov. 8, 1910). Lottie reads from this letter: “Lottie is going to the university here in the city.” Lottie then states that she started there in the fall of 1910. “Q. (Reading from letter.) It was pretty hard for Ida (picking tomatoes) going out every day and besides doing her housework, but she stood it fine. She said she could not have done the same work last summer and she got fleshy eating tomatoes. Do you know anything about that?” Answer. “I don’t. Q. (Reading letter) ‘She says she never ate so many in her life.’ ” (Counsel for plaintiffs objected.) “Q. She says Lottie Weidemer helped her to pick two days”; is that a fact? Answer: “It is.” And then reading from letter “Q. ‘I can tell you she (Lottie) is a worker and had grit enough to pull her through anything, she undertakes.’ Was your grandmother of unsound mind or not at the time she thought that about you?” (Counsel for plaintiffs objected.) Answer": “I said she was of unsound mind three or four years before her death.” “Q. That is not answering my question. Was she of unsound mind at the time she worte that about you?” (Objection overruled.) Answer: “I think she was.’’

From this evidence and that of other witnesses for the contestants it appears that the testatrix was variously afflicted. She had varicose veins, blue or white. She had rheumatism and indigestion. tier eyesight was bad and she wore glasses. She had an incipient cataract. She had heart trouble and would oecasionally gasp for breath. She was forgetful. She would droop her head and when she would waken would have forgot what the conversation had been. Her hearing was bad and she was very feeble, physically and mentally. She had dropsy; her limbs and veins would often swell. She would feed herself at the table but the victuals would fall off the fork or knife—and that would embarrass her. She sometimes would get out of a chair but oftener she would be assisted. She was on good terms with all her children and grandchildren, and would always inquire about them. For five or six days she could not sleep; the doctor gave her a sleeping potion-and then she slept practically all the time for five or six days and nights. She was always taking medicine.

When the last will was made Ida Gomien went ofit in the yard. Testatrix helped her son George with considerable sums of money. In 1909 she got hurt. The will was made the 30th of April, 1911. She died on the-day of-, 1912. She always met her grandchildren with a kiss, and was kind and considerate. On birthdays and at other times she made presents to her children and grandchildren.

There were three wills made, one on the 3d day of August, 1909, one on April 16, 1911, and the one now under consideration April 30, 1911. These will were offered in evidence and are all substantially alike.

At the time these chief witnesses give evidence concerning-their grandmother they were all minors and children, and their testimony in and of itself shows that the testatrix at all times knew her condition and would speak about it to these same witnesses. She knew she would drop off into a sleep or become drowsy-, and spoke to them about it. She would inquire about her relatives, asking how they were getting along. She said she did not sleep well at night and that is the reason “I am sometimes Sleeping in my chair.” She wrote intelligent letters during the time covered by these witnesses.

All these acts were the acts'of an old lady enfeebled by disease, but they all show that,she recognized her afflictions and her conversation was always of an intelligent character, showing that she knew what she was talking about.

We are unanimous in the opinion that there was not evidence enough introduced 'by the contestants to overcome or countervail the prima facia or presumptive case made by the introduction of the will itself; and we are of the opinion that the trial judge should have sustained the motion that was made by the defendants at the close of the evidence, and for this error the judgment is reversed.

We might say that there is no evidence in the record of undue influence, and all charges in that respect should have been excluded.* Outside of that the charge seems to contain the law.

Proceeding now to render the judgment that the court below should have rendered, judgment will be entered for the contestees.

Middleton, J., and Sayre, J., concur.


source: Caselaw Access Project

author: Hughes, J.

license: Public Domain

text:
    ERROR. IN SUBMITTING TO JURY ISSUES ELIMINATED BY ADMISSIONS IN PLEADINGS.
    Court of Appeals for Wyandot County.
    Raynard Boucher v. The Board of County Commissioners of Wyandot County.
    Decided, June 27, 1917.

      Construction of Section 7563, General Code—Meaning of the Phrase “Perpendicular Wash Bank”-—Charge of Court.

    1. When a wash bank is eight feet high in the perpendicular—that is, eight feet between the plane of its top and the plane of its base, —it is then a perpendicular wash bank within the meaning of the statute.
    2. The term “wash bank” is used to indicate a bank with its top lying adjacent to or connected with the surface of a road and running down tlierefrom to its base, in contradistinction from a bank whose base is in the plane of the surface of the road and running upward.

      Benjamin Meek, G. A. Meek and J. 8. Hare, for plaintiff in error.

      F. J. Stalter and D. C. Parket, -contra.
   Hughes, J.

On the 20th. day of September, 1915, plaintiff was severely injured while driving in his automobile along a public highway in Wyandot county. 'The machine in which he rode was traveling in a westerly direction along the north side of the highway, which was macadamized. There was about two feet of dirt between the macadamized portion of the road and the embankment hereinafter referred to. The roadway was about twenty or twenty-five feet wide and at this place was bounded on the south by a forty-five degree embankment, running above the surface of the road. The north side of the road was about a forty-five degree embankment, running down to a depth of about twelve to fifteen feet from the level of the road to the base of the bank. The south half of the roadway was in as good condition as the north half, and had plaintiff driven his automobile along the south half he would not have received the injury complained of. He did, however, drive his machine along the north -half and from some cause the right-hand wheels got over the edge of the bank, to the foot of which he and the auto were precipitated with great force.

Suit was brought for a recovery under and by virtue of Sections 7563 and 7565, General Code.

Section 7563 reads in part as follows:

“The board of county commissioners shall * * * also protect by suitable guard-rails, all perpendicular wash banks more than eight feet in height where such banks have an immediate connection with a public highway or are adjacent thereto in an unprotected condition.”

Section 7565 reads as follows:

“Failure to comply with the provisions of the next two preceding sections shall render the county liable for all accidents or damages as a result of such failure.”

The trial court submitted the ease to the jury at the close of the evidence with the statement that the issues made by the pleadings and the evidence were four. First, was the road in question a public highway; second, was there, at the time of the alleged accident, a perpendicular wash bank more than eight feet high immediately connected with or adjacent to said highway which was unprotected by suitable guard-rails at the place where it is alleged the injury was received by plaintiff; third, did the plaintiff sustain the injuries complained of in his petition, and, fourth, were the injuries caused or occasioned by the negligence of defendant.

This statement, together with other statements in reference to these particular issues, made by the court in its charge, are assigned as error.

From the undisputed evidence and the admissions in the pleadings, there was but a single issue left in this ease for the consideration of the jury, to-wit: was the plaintiff guilty of

negligence which contributed to the accident; and hence the trial court was wrong in submitting the four issues, since each and all of them were settled and determined by the evidence and admissions in the pleadings.

A careful and exhaustive reading of the authorities finds no definition of a perpendicular wash bank, but having in mind the intention of the Legislature at the time this statute was originally passed, we are of the opinion that the term “perpendicular” as used therein, is to be considered in connection with the element of 'height. That is to say, when a wash bank is eight feet high in the perpendicular, that is, eight feet between the plane of its top and the plane of its base, it is then a perpendicular wash bank eight feet high, within the meaning of the statute.

The term “wash bank,” we believe, is used to indicate a bank with its top lying adjacent to or connected with the surface of the road and running down therefrom to its base, in con tradistinetion from a bank whose base is in the plane of the surface of the road and running upward, and hence from the conceded facts and from the evidence offered by both sides, the bank in question was shown to be a wash bank more than eight feet high in the perpendicular and came within the meaning of the statute.

There was, therefore, no longer a question of negligence on the part of the defendant because the violation of a statute such as this, which was passed for the protection of the traveling public, is negligence per se, and the trial court should have so charged the jury. And where such act of negligence on the part of the defendant is the direct and proximate cause of an injury, the defendant is liable unless the jury should have found that the negligence of the plaintiff directly contributed to his injury. Schell v. Dubois, Admr., 94 O. S., —.

Without specifically enumerating the different paragraphs of the charge, it is sufficient to say that the trial court should have omitted in it all those paragraphs referring to the four issues referred to by him except in so far as it was his duty to charge the jury that they must take and consider these as established facts in the case by reason of the admissions made in the- pleadings and the uncontradieted evidence given in behalf of both plaintiff and defendant.

Witnesses were permitted to give as their opinions that the plaintiff could have driven his automobile over the opposite side of the road from which he did go with perfect safety, going at the rate of twelve to fifteen miles per hour. The condition of the road and all other facts supporting these opinions should have been given the jury, and not the opinions of the witnesses. In the language of Judge Owen in the -Schultz ease, 43 0. S., 270, the jurors were to be left to form their opinions from these facts unaided by the mere opinions of the witnesses.

The judgment is therefore reversed and the -cause remanded.

Kinder, J., and Crow, J., concur.


author: ITouck, J.

text:
    COMPENSATION FOR DEPUTY STATE SUPERVISORS OF ELECTION.
    Court of Appeals for Tuscarawas County.
    Robert H. Nussdorfer, as Auditor of Tuscarawas County, v. State of Ohio, ex rel Upsure D. Miller.

    Decided, July 11, 1916.

      •Elections—Construction of Section 4990—Fixing Compensation for Deputy State Supervisors of Elections—Action Agadnst County— Necessary Allegations With Reference to the Fund From Which Claim Sued on Should he Paid.

    1. In an action based on a claim against a county, the allegation that there is money in the hands of the county treasurer, to the credit of the proper fund and not otherwise appropriated sufficient to •satisfy the claim in suit, meets the requirements of the case without adding that it has been appropriated by the county commissioners for payment of the particular claim in question.
    2. The compensation provided for deputy state supervisors of elections for the holding of primary elections is two dollars for each and every election precinct in the county for each and every primary election held under ,authority of law.

      Edward G. Turner, Attorney-General, A. 0. Dickey and E. E. Lindsay, Prosecuting Attorney, for plaintiff in error.

      J. C. Mil'-ckell and Grahamv & Stafford, contra.

       Motion to direct the Court of Appeals to certify its record in this case overruled by the Supreme Court, November 21, 1916.

   ITouck, J.

Error to the Court of Common Pleas of 'Tuscarawas County. The defendant in error was the relator in the court below, and the plaintiff in error was the respondent.

'The record discloses that the action below was based on a petition in mandamus seeking to compel the county auditor of Tuscarawas county, Ohio, to issue his warrant on the county treasurer of said county for the sum of $148 in favor of Upsure D. Miller, the relator, one of the members of the deputy state supervisors of elections of said county; the said sum alleged to be due him being for services rendered in conducting the primary election held on the 25th day of April, 1916.

The plaintiff in error, the defendant below, filed a general demurrer to said petition which was heard by the trial judge and overruled, and the defendant below, the said plaintiff in error, not desiring to plead further, a judgment was entered for the plaintiff below, granting to him all the relief prayed for in his petition and directing that a peremptory writ of mandamus issue ordering and directing said respondent, Robert H. Nussdorfer, as the county auditor of Tuscarawas county, Ohio, to issue his warrant on the county treasurer of said county for the sum of $148 in favor of Upsure D. Miller, the relator.

To the overruling of the demurrer and the entering of the judgment in' favor of said relator the plaintiff in error prosecutes error to this court, asking for a reversal of the judgment of the common pleas court.

Counsel for plaintiff in error urge a reversal of the judgment below upon two grounds:

1. That the following allegation in the petition is not sufficient in law:

“There is money in the county treasurer’s hands to the credit of the proper fund, and not otherwise appropriated, to pay the full amount of relator’s claim for compensation.”

2. That there is no provision of law authorizing the compensation claimed by the relator, or the payment of same from any source.

Coming now to the first ground of alleged error, the plaintiff in error contends that the language in the petition is not sufficient in law to impose upon the county auditor the duty to issue a warrant on the county treasurer; that it can not be properly claimed that it is the duty of the county auditor to issue a warrant to pay money out of the county funds, unless it affirmatively appears by allegations in the petition that there is money in the treasury to the credit of the fund from which the claim is payable, and that it has been by the county commissioners appropriated for the payment of the particular claim in question.

We can not agree with learned counsel as to their contention in this respect. From our examination of the language used we feel that the allegation in the petition “that there is moiiey in the county treasurer’s hands to the credit of the proper fund, and not otherwise appropriated,” etc., is sufficient. All that is required in this regard is that the petition should affirmatively show that the money necessary to pay the claim is in the county treasury, and that it is available for the purpose for which it is sought to be used.

As to the second ground of alleged error, the plaintiff in error insists that deputy state supervisors of elections are to be paid a compensation of two dollars for each election precinct in the county for their services in conducting all primary elections held during any one year, and the defendant in error as strongly insists that they are to be paid two dollars for each election precinct in the county in conducting each and every primary election required or authorized by law to be held in such county.

'The parties to this suit, in support of their respective claims, rely upon the provisions of Section 4990' of the General Code, which is as follows:

‘ ‘ For their services in conducting primary elections, members of boards of deputy state supervisors shall each receive for his services the sum of two dollars for each election precinct in his respective county-, and the clerk shall receive for his services the sum of three dollars for each election precinct in his county, and judges and clerks of election shall receive the same compensation as is provided by law for such officers at general elections.”

The real question presented for our determination is, What is the proper and correct interpretation of and construction to be placed on said Section'4990 of the General Code?

It is the duty of courts in construing a statute to give effect to the intent of the law-making power, and seek for that intent in every legitimate way. But, first of all, this should be sought in the words and language used; and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly the sense of the framers of the statute, there is no occasion to resort to other means of interpretation. In other words, the statute itself, and the words and sentences contained therein, furnish' the very best means for its own interpretation. If the sense in which words were intended to be used can be clearly ascertained, the intention thus indicated will and must prevail.

We think there can be no doubt that the primary and general rule of statutory construction is that the intent of the law-maker is to be found in the language that he has incorporated in the statute. Pie is presumed to know the meaning of words and the rules of grammar; and courts have no function of legislation, but must construe and interpret a statute by means of the words and sentences contained therein.

Counsel for plaintiff in error maintain that the construction of Section 4990, G-eneral Code, which must be adopted in this ease, is that deputy state supervisors of elections are entitled to an annual salary of two dollars for each voting precinct in the county for conductiing primary elections, and it is not changed in amount by reason of more than one primary election being required to be held.

We can not conceive how counsel arrive at such a construction. They are assuming that the statute provides for an annual compensation, which it does not do.

It is conceded that whatever compensation, if any, deputy state supervisors of elections receive for the holding of primary elections is under the provisions of Section 4990. We feel that it would be just as reasonable for counsel to claim that under the language used in this section the compensation they concede for one year should be for two years, because the statute—so far as language is concerned—is silent as to whether or not the compensation shall be for one, two, or three years, and we certainly have no right to read into a statute, for the purpose of construction, any language that is not contained therein.

It seems clear to us if the Legislature had intended that the compensation provided in said Section 4990 was to be for all primary elections held within the year, that it would have inserted therein the same or similar language as is used in Section 4822, General Code, to-wit, “during any year.”

Again, it will be observed from a careful examination of the language used in the statute before us for construction that the law-makers had in mind, as the basis for fixing the compensation to be allowed for services rendered by deputy state supervisors of elections, in conducting primary elections, the number of voting precincts in the county, and that the compensation was fixed at two dollars for each precinct, and it was so made without any reference to time. Therefore, in view of these facts, .and giving to the language used its plain and simple meaning, we hold that it was intended by the- Legislature that deputy state supervisors of elections for holding primary elections should be paid two dollars for each election precinct for each and every primary election held under authority of law.

The section of the General Code under consideration is not as clear and explicit as it might be, but we are to construe the language therein, giving to the words therein their ordinary and popular meaning, and thereby give a sensible and intelligent construction to every part of the same, to avoid absurd and unjust consequences, and, if possible, so as to make it valid and effective, thus carrying out the intention of the Legislature.

When the Legislature, within its powers given it by our Constitution, has enacted a statute, and fixed the rights of the people thereunder, it is not within the province of a court to declare a different policy or attach different rights. In this matter the law-making body is supreme, and it is presumed that it will pass no unjust or unwise laws. If the statute under consideration is unwise, unjust, or does not meet with popular approval, the remedy is with the people and the Legislature, and not with the courts.

It therefore follows, from what we have already said, that we are of the opinion that the judgment of the common pleas court is right, and should be affirmed.

Judgment affirmed.

Shields, J., and Powell, J., concur.


author: Richards, J.

text:
    DESCENT OF PROPERTY TO CHILD OF ADOPTED DAUGHTER..
    Court of Appeals for Lucas County.
    Kroff v. Amrhein et al.

    Decided, June 21, 1915.

      Descent and Distribution—Child of Adopted Daughter—May Inherit by Representation from Intestate Adopting Qrand-parents.

    If an adopted child die during ¡the lifetime of the adopting parents, leaving a child as survivor, such surviving child stands in t'he place: of the parent and inherits by representation from the.adopting parents who die intestate, the same as if a grandchild.

      Alle-n J. tieney, for plaintiff in error.

      Amos L. Conn, contra..

       Affirmed, Kroff v. Amrhein et al, 94 Ohio State, 282.

   Richards, J.

The action is one in partition and involves the determination of but one legal question. This question of law was .raised by a demurrer to the petition, which was sustained by the court of common pleas, and a final judgment rendered against the plaintiff. The facts, so far as necessary-to a determination of the question, may be briefly stated.-

On November 4, 1876, Simon Fearsettle and Otilley Fearsettle duly adopted a female child named Mattie Stein. ’ In the course of time Mattie married one Fred Hamley, and to them a child, named Hester Hamley, was born as the issue of such marriage. On February 22, 1912, Mattie died intestate, leaving, surviving her, a husband and said- child and her foster parents, Simon and Otilley Fearsettle. The foster parents died intestate in 1914, leaving certain real estate to which the plaintiff, Frederick C. Kroff, a half-brother of Simon Fearsettle, claims title by descent.

The sole question in this ease is whether this real estate would descend to the child of the adopted daughter, Mattie, or pass to the brothers and sisters of the adopting parents.

If Mattie had survived her adopting parents, doubtless no question would have existed but that she was the heir under and by virtue of the provisions of Section 8030, General Code. That section, referring to an adopted child, contains the following provision:

“Such child shall be the child and legal heir of the person so-.adopting him or hex;, entitled to all the rights and privileges and subject to all the obligations of a. child of such person begotten in lawful wedlock.”

■' 'It is-said; however, that by reason of the fact that the adopted daughter Mattie died before the adopting parents; her child can not inherit from the adopting parents. This precisé question has not been determined by any reported decision in Ohio axid we find but five decisions in other states.

The earliest of these is by the Supreme Coui“t of Geoi’gia in 1874, in Pace, Admr., et al v. Klink, Admr., et al, 51 Ga., 220, where it was held'that in a case where the adopted son died before' the- -adopting parents, leaving children, his children htoód-iii the-place of and -represented the father and took the éstate which he - would have taken if living.

The question" next arose in Kentucky in 1887, and the decision may be found in Power, etc., v. Hafley, 85 Ky., 671, where -it"is: Held, that if an adopted child dies, leaving children, before -*the '-adopting'- parent, these children inherit as if they were ^r'áhdehildreii-.'óf the ¿doptiug parent.

-- -In-3895--thd-'question was detennined-in-Kansas in .the ease -of Gray v. Holmes, 57 Kans., 217, 33 L. R. A., 207. In that "casé; where'the adopted-daughter died before the adopting.pai’- : ent,'it'was- held that the heirs of the adopted daughter would inherit-through hdi-a share of the estate of the deceased adopting-'-parent; jxxst as if she were a daughter of such parent'.bv blood. - • . - • • - '■

The question arose in,the,.Sqpreme Court of Vermont in. 1.911, and was similarly decided, in the case of In re Walesworth’s Estate, 85 Vt., 322; 37 L. R. A. (N. S), 849, The court.reviews all the earlier decisions, finding there, were but the three already, cited and reaches a conclusion that in no other reported case has a like question been determined; and that there is- ho diversity of decision. The statutes of the various states.where the above decisions were rendered, relating to the descent and distribution of property to adopted children, are quite similar in all material respects, to the statutes on that subject in Ohio.

Since the decisions just cited, the question has come before the Court of . Civil Appeals of Texas, and was there determined in 1914, a eoxielusion being reached which is entirely in accord with the ones above cited: The Texas case is that of Harle et al v. Harle, 166 S. W. Rep., 674.

We cite also 109 Am. St. Rep., 676, and 118 Am. St. Rep., 684. In both of these latter citations extensive notes may’ be found in which the editor reaches the same conclusion' as was arrived at in the cases cited. ’

The interesting question is very clearly and convincingly discussed in 1 Ruling Case Law, 614, and the conclusion there reached is expressed in-the following language: -■

“If an adopted child dies during the life of its adopting parent, leaving children, such children are for most; if not all, purposes regarded as natural grandchildren of the adopting- parent, and are entitled to represent their parent and to receive from the estate of his adopting parent what he would have been entitled to receive had he lived until after such parent’s death.,”

To the’same effect- is the- conclusion of the learned editors as found in 1 Corpus Juris, 1401, and notes. .. ■

It is provided in Sections-8573 and 8574, General .Code, which .covers the descent of real estate, however the title .may have.been derived, that it shall go first to the .children of- the intestate or their legal representatives, and Sections 8029 and.8030,.General Code, make the adopted child the child and legal heir óf the adopting parent; it is.perfectly clear then that under these sections of the statutes of our state the child of the adopted daughter, Mattie, is entitled to take the same estate by representation that her mother would, have received had she been living--at the time of the death of her adopting, parents. • ■ . - •

' It was held in Smith et al v. Hunter, Trustee, 86 Ohio St., 106, that the devise of a remainder to the “heirs at law” of a beneficiary for life, would include an .adopted child of the benerficiary.

Counsel for plaintiff relies on Lathrop et al v. Young et al, 25 Ohio St., 451; Upson, Admr., v. Noble et al, 35 Ohio St., 655, and Phillips, Exr,, v. McConica, Gdn., 59 Ohio St., 1. We find nothing in; these cases in conflict with the conclusion herein reached.

• The first case did not in any sense involve the descent of property to or from an adopted child, nor the children of an adopted child.

The second case involved the descent of property of an adopted child, and it was held that, if such child die intestate, the property of the child would pass to the natural mother to the exclusion of the adopting parents and their children born in lawful wedlock.

The last case decides only that where a. legatee dies before the testator the legacy lapses unless the legatee was a child or other relative of the testator and left issue surviving, and that an adopted child is not such issue. The case further holds that an adopted child can not inherit through the adopting parent, from the ancestors of such adopting parent. The conclusion reached by the court necessarily follows from the fact as stated in the, opinion on page 9, that the statute does not make the ádoptecí child the heir of the ancestors of its, adopter, and the right of the adopted child, to inherit can not be extended beyond where the statute has fixed it. The vital distinction between that case and the one at bar is that the statutes do make the adopted' child a child and heir of the adopting parent, and do provide that property shall descend not only to children but to their legal representatives. We are entirely in accord with the following statement from the opinion of the learned trial judge in the instant ease:

“It can not.be denied that if the adopting parents had, at the time of the adoption, natural children who survived them, or had children bom to them after the adoption who survived them, that the adopted child would, be co-heir with such natural children, with like and equal power of inheritance from her adopting parents, for the reason that the jus representationes attaches as fully, under our statute of adoption, to the adopted child as to the natural children.”

By force of the statutes above cited the child of Mattie became the grandchild of the adopting parents, and as such was entitled to take by representation the estate which her mother would have taken if she had been living at the time of the death of the adopting parents.

Judgment affirmed.

Chittenden, J., and Kinkade, J., concur.


author: Lieghuey, J.

text:
    ILLEGAL EXPENDITURES BY CANDIDATE INVALIDATES HIS ELECTION.
    Court of Appeals for Summit County.
    James J. Baker v. Lewis D. Slusser.

    Decided, April 27, 1917.

      Elections—Construction of Section 29, Corrupt Practices Act—Election of Probate Judge Rendered Void by Violation of Said Act—Conviction Not Necessary for Invalidation of Election.

    1. The provision of the corrupt practices' act, which permits an. expenditure of five dollars for each one hundred votes cast in excess of five thousand at the last preceding state election, is not supplementary to the fixed maximum sums named earlier in the act as the amounts which may be expended by candidates for the several offices designated, and the expenditure by a candidate for probate judge of a sum in excess of five hundred dollars is in violation of that act.

      2. A prior conviction under the corrupt' practices act is not requisite to a judgment invalidating the election of one shown to have been guilty of expending an unlawful amount of money in promoting his candidacy, but the fact of such violation itself renders the election void,, and a court will so declare.

      8. A. Decker, for plaintiff in error.

      Musser, Kirnber & Huffman, contra.

      Reversing Balter v. Slusser, 19 N.PJN.S.), 523.

      Judgment of the Court of Appeals reversed and that of the Common Pleas affirmed by the Supreme Court without opinion, July 3, 1917.

   Lieghuey, J.

Error to the court of common pleas.

At the August, 1916, primaries, defendant in error, Slusser, • was a candidate, with others, for the office of probate judge of said county. He received the highest number of votes and was declared to be the nominee.

Subsequently and within the required time, he filed his statement of expenditures with the deputy state supervisors of elections, showing an outlay of $746.47.

His name appeared upon the ballot used by the voters at the November, 1916, election as a candidate for probate judge, with others. At said election he received the highest number of votes. Subsequent to the election, but not within the required time, he filed his verified statement of expenses of said election with-the board of elections, showing an additional outlay of $251.09. Thereupon the board of elections declared him elected probate judge and issued to him a certificate of election. From this action of the board the plaintiff in error, as contestor, under favor of Sections 5148 to 5153, General Code, perfected an appeal to the common pleas court, with the object of contesting the election of defendant in error, the eontestee, upon the' claim that the amounts expended. by said eontestee aré in excess of the. amount allowed by law to be expended for the purpose of promoting and securing his election as probate judge, under Section 5175-29, General Code.

'The trial of the appeal in the common pleas court resulted in a dismissal thereof, from which judgment of dismissal error is prosecuted to this court. . '

It is claimed by the-contestor that the court below erred in the following particulars:

1st. In sustaining the claim of eontestee that the expenditure of said sums was not a violation of Section 5175-29, 'General Code.

2d. That under the provisions of the act itself a judgment to the effect that his election was invalidated could only be predicated upon a prior conviction under Section 13323-1, General Code. ...

.. Section 26 clearly has for its purpose the enumeration of the various things for which money may be expended by a candidate, directly or indirectly, in promoting his candidacy. Section 29 of the act, by .its express terms, refers to Section 26 and clearly has for its purpose the limitation of the amount which may be expended by a candidate directly or indirectly upon the matters and things enumerated in Section 26. Said Section 29 reads as follows: ‘

“The total amount expended by a candidate for a public office, voted for at an election, by the qualified electors of the state, or any political subdivision thereof, for any of the purposes specified in Section 26 of this act, for contributions to political committees, as that term is defined in Section 1 of this act, or for any purpose tending in any way, directly or indi- , rectly, to promote or aid in securing his - nomination and election, shall not exceed the amount specified herein; by a candidate for governor, the sum of five thousand dollars; by a candidate for other state elective offices the sum of two thousand five hundred dollars; by a candidate for the office of representative in Congress or presidential elector, judge of the court of appeals, the sum of two thousand dollars; by a candidate for the office of state senator, the sum of three hundred dollars in each county of his district; by a candidate for judge of common pleas, probate or insolvency court, the sum of five hundred dollars; by a candidate for the office of state representative the sum, of. three hundred and fifty dollars; by a candidate for any other "public office to be voted for by the qualified electors of a county,-city, town or village, or any part thereof, if the total number- of votes east therein for all candidates for the office -of governor at the last preceding state election, shall be five thousand or less, the sum of three hundred dollars. If the total number of votes cast therein at such last preceding state election .be in excess of five thousand, the sum of five dollars for'each one hundred in excess of such number may be added to the .amounts above specified. Any candidate for a public office who shall expend for the purpose above mentioned an amount in excess of the amounts herein specified shall be guilty of a corrupt practice.”

Certain public offices, state, district and county, are specifically mentioned and a limitation of the sum of money that may be expended by any candidate therefor placed opposite each. It is claimed, however, that although the sum fixed for a candidate for the office of probate judge is $500, that the provision permitting the expenditure of $5 per one hundred when the total vote was more than 5,000 at the last preceding state election, is supplementary to the specific provision. After offices and amounts are named, it will be noticed that the section reads “all candidates for any other public office to be voted for by the qualified electors of a county, city, town or village, etc.' ’ This language can convey no other meaning than it would if it had after the word “other” the words “than those above mentioned.”

Next it is claimed that the next to the last sentence of the section beginning with the word “if,” in view of the fact-that the word “amounts” is used, indicates that the intention of the Legislature was to permit the additional sum of $5 per hundred to be expended for election purposes over and above the sums specifically named. If this claimed construction is right, necessarily the sentence qualifies the entire preceding sentence. That method of calculating would permit a candidate for Governor to expend about $37,000; a candidate for this court over $10,-000; a candidate for secretary of state, a two-year term, about $35,000, which is several times his salary for the term; a candidate for common pleas judge in Cuyahoga county over $6,000. Can it be possible that the Legislature intended to put such sinews of war in the hands of a non-partisan judiciary for the purposes of political strife which would necessarily attend the expenditure thereof by the various candidates for judge? We think that this construction is in conflict with the apparent intention of the Legislature in enacting the corrupt practice act, viewed with reference to the trend of public sentiment of late years which eventuated in the enactment of the non-partisan judiciary laws.

We think the sentence of Section 29 last above referred, to qualifies only the language after the last semicolon and only those offices and the amounts that may be expended by candidates for those offices which have not been specifically mentioned and opposite which no specific amount has been fixed by the Legislature in the act. In short, we think that by law the. contestee was obliged to confine his expenditures at or below the sum of $500.

The act-was upon the statute books at all times while contestes promoted his candidacy. It was then the law of the state and he was obliged to observe its provisions. His attention was expressly called to the act a short time after, the primaries. He then prepares a brief and mails a copy to the voters seeking' to justify the violation. Can he be permitted to take advantage of his own wrong? He then proceeded to expend a further sum at the election in the promotion and furtherance of his candidacy. We regard the expenditure of the total sum of over $1,000 at the election before mentioned as constituting a viola- . tion of the corrupt practice act. ■ • '

It is urged, however, that even though the expenditure of this sum amounts to a violation of the corrupt practice act, it does not work an invalidation of his election, for the reason that Section 29 which he violated does not expressly provide that a violation of it invalidates the election; that Section 26 only provides for invalidation of the election for a violation of its pro-* visions.

It will be observed that Section 29 expressly refers to Section 26 of the act. Section 26 enumerates for what money may be spent. Section 29, expressly referring to Section 26, provides how much may be spent. Section 29 must be read with reference to Section 26. And one who admits expending a sum in excess of that amount permitted under Section 29 for the purposes expressed in Section 26, is guilty of corrupt practice, and under the provisions of Section 26, invalidates his election.

It is1 further urged that proceedings must be had under Section 13323-1, resulting in conviction of corrupt practice, as a condition precedent to the invalidation of the election therefor. We think that all claims made in respect to this assignment of error are completely answered in the case of Prentiss v. Ditmer, 93 O. S., 314, at page 323, et seq.

This section, 'now a part of- the criminal code, was in fact Section 32 of the corrupt practice act, and; as stated in the opinion in Prentiss v. Ditmer, supra, the Legislature evidently intended to provide two distinct remedies. If a; candidate violates Section 29 in and about the promotion and furtherance of his candidacy and election, he thereby invalidates his election, and the remedy is a contest of the election, the proceedings had in the instant case. In this case it is admitted that over $1,000 was spent, and we.hold that that expenditure amounted to a corrupt practice on the part of the contestee; that the same invalidated his election; that he was not and is not the duly elected pz’obate judge of Summit county, Ohio; that under the circumstances in this case no prior conviction is necessary as a condition precedent to a judgment of invalidation of the election.

For the reasons given, said election is held to be invalid; that said contestee, Lewis D. Slusser, has no right and title to the office of probate judge, and a judgment of ouster is hereby entered. 'The costs are assessed against contestee, defendant in error.

Grant, J., and Carpenter, J., concur.


author: Allread, J.

text:
    LIABILITY FOR. INJURY FROM AUTOMOBILE TRAVELING AT EXCESSIVE SPEED.
    Court of Appeals for Fayette County.
    Allen v. Smith.
    Decided, May 17, 1916.

      Negligence per se—Where Speed Law Was Violated-by Automobile and Accident Occurred—Provisions of Section 8490, Revised Statutes, Applied—Charge of Jury—Duty of Vehicles Meeting on Roads.

    1. Violation of the state law limiting the rate of 'speed for motor vehicles to twenty miles per hour upon public highways, is negligence per se.

    2. Section 3490, Revised Statutes, requiring automobiles and motor vehicles when meeting carriages and vehicles to give two-thirds of the road, is valid and should be applied at least in' all cases where the roadway is of sufficient width to permit its application with safety.
    3. In a case where the evidence shows ample width of road to permit the passage of- vehicles, a charge to the jury that it was the duty of the defendant on meeting plaintiff to give the statutory portion of the road, “if he could do so with safety to himself and the others then traveling with him,” is misleading and erroneous.

      John Logan and H. U. Sanderson, for plaintiff in error. • Post & Reid, contra.
   Allread, J.

On February 5, 1910, Frank M. Allen brought the original action for damages for personal injuries alleged to have been caused by the negligence of the defendant, T. T. Smith, in operating his automobile. The accident complained of occurred upon the public highway December 2, 1909. Plaintiff with a horse and buggy approached from one direction and defendant with his automobile from the opposite direction. Plaintiff’s horse took fright as the automobile passed, resulting in the upsetting of the buggy and the injury to plaintiff. ■

Before issues were joined by tbe pleadings tbe case was taken to the Supreme Court, which reversed the judgments of the lower courts and remanded the case for trial, accompanying its decision with the opinion appearing in 84 Ohio St., 283.

The negligence charged against the driver of the automobile, briefly stated, consisted of:

1. Speed in excess of twenty miles per hour.

2. Failure to give two-thirds of the road.

3. Excessive speed and failure to use due care under the circumstances.

The answer contained a denial of negligence and a charge of contributory negligence.

The case was tried to the court and jury, resulting in a verdict and judgment for the defendant.

N motion for a new trial having been overruled, a bill of exceptions was taken and the case brought to this court upon petition in error.

'The trial court, in the. general charge, gave the following:

“While the driving of an automobile at a greater rate of speed than twenty miles an hour is in violation of the statute of this state and would subject the offender to criminal prosecution, still driving above the prescribed rate of speed is not negligence of such character as of itself to create a liability in damages ; proof of driving a motor vehicle at a greater rate of speed than allowed by statute is competent to be considered by the jury in connection with all the other proofs as tending to show negligence. So that if you find from the evidence that at and immediately before the instant of passing Allen’s vehicle, Smith was driving in excess of the statutory rate- of speed, you should consider and give the fact such weight toward establishing the charge of negligencia against Smith as you deem it entitled to in view of all the testimony in the case.”

This instruction is erroneous in view of the recent case of Schell v. DuBois, Admr., 94 Ohio St., 93.

The violation of the statutory regulation as to speed is now considered negligence per se, and it only remained for the plaintiff to prove that such negligence was the proximate cause of the injury.

The court further charged the jury as follows:

.“It was the duty of the defendant on meeting plaintiff to turn his automobile to his—defendant’s—right of the center line of the road, that is, in the direction of and towards the westerly side of said road so as to afford the plaintiff sufficient passageway for plaintiff’s horse and buggy if -he could do so with .safety to himself and the other’s then traveling with him.-”

;-Tliis may be considered in connection with special charge No. 4, to the same effect, given before argument.

Section 3490, Revised Statutes, provides: . . .

“All persons driving carriages or vehicles'of any description on any public turnpike, road or highway of this state, shall, on meeting. carriages or vehicles of any description keep to the right so as to leave half of the road free, and all persons riding on horseback, or on bicycle, tricycle, tandem bicycle, locomobile, automobile, or motor vehicle, shall, on meeting carriages or vehicles of any description, keep to the right so as to leave two-thirds of the road free.”

The trial court evidently took the view that the concluding clause above quoted, requiring automobiles to give two-thirds of the road, was invalid, as the charge proceeds upon the theory that the driver of the automobile was required to give only one-half of the road. Counsel for defendant in error defend the court’s charge upon the theory that it would be impracticable and impossible in many instances to give two-thirds of the road, and that the statute in that respect is for that reason invalid. We can not, however, bring ourselves to that conclusion.

'The control of the highways is largely legislative. Automobiles are of recent origin, and their use - adds greatly to the dangers of travel. There is no such inherent right in the owner of an automobile to the unrestricted use of a highway as would prevent the Legislature from requiring the user of an automobile-in passing vehicles to give two-thirds of the road.

•It is a matter of common knowledge that automobiles are generally driven at a higher speed than horse-drawn vehicles, and are more easily controlled.

The noise and appearance of the - automobile being liable to frighten horses, it is important that the automobile be kept at a reasbnable distance, so as to give the driver of the horse a better chance to pass in safety.

It is urged,-however,, as the highways of the state are at some points so narrow as to interfere with the application and enforcement of the statute, that the law itself should be held invalid.

The court will, however, take judicial notice that the highways of thb state are generally so constructed as to permit the enforcement of the statute. The contention .of counsel, that the entire act should be held void because at some places the roadway may be too narrow, could as reasonably be extended to a provision requiring the giving of half the road, and thus the law .of the- road, would be left to' the will and pleasure of the driver of the more powerful vehicle.

It is customary at.points where the' roadway is too narrow for safe passage of vehicles, or of a vehicle and an automobile, for the driver of one to slow down, and, if need be, stop, so' as to allow the other to pass over the narrow place. It is also customary in cases where there is a considerable stretch of narrow road-to adopt a somewhat similar method to facilitate the safe passage of both vehicles.

While it is probable that the strict letter of the statute could •not be followed, and would not be enforced by the courts in a case where the roadway was too narrow to permit the rigid enforcement of the statute, yet we are clearly of the opinion that the statute requiring automobiles to give two-thirds of the road as against the driver of a vehi.ele should not be ignored - or held invalid, but' should be enforced in all cases where the width and condition of the road make it practicable and safe. - .. Mere inconvenience in-the application and enforcement of a statute is not a sufficient reason for- declaring it invalid. .-The wisdom and policy of a statute is for‘the Legislature to determine, although the question of the inconvenience of its application .maj^ affect its - construction. Moore v. Given, 39 Ohio St., 661.

■ There was evidence in the case at bar tending to show that the improved and usable roadway was in the neighborhood of twenty feet.wide, at the point where the plaintiff’s injuries were alleged to have occurred.

One-third of the roadway reserved to the use of the automobile would be six and two-thirds feet, which was ample under the evidence to allow for the safe passage of the automobile.

We think, under the circumstances, therefore, the trial court was not justified in ignoring the statute requiring the driver of the automobile to give two-thirds of the road.

There was evidence tending to prove that the defendant in passing the plaintiff’s vehicle failed to give two-thirds of the road, and on the contrary so kept the main part of the road as to crowd the plaintiff with his horse off the improved roadway, in such manner that the horse, frightened by the sudden and close passage of the automobile and the cloud of dust following the1 automobile,'jumped sidewise into the ditch and overturned the buggy in which plaintiff was riding.

There was evidence introduced by plaintiff tending to- prove that the plaintiff’s horse was gentle, thoroughly broken and used do automobiles. It is claimed on behalf of plaintiff that the fright of the horse was due to the excessive speed of the defendant and the driving of his'automobile-so near to the horse that the plaintiff was unable to control the horse in the narrow portion of the roadway which the driver of the automobile had allowed' him. . ' '

■ The' petition having charged as a ground of negligence that the defendant failed to' give two-thirds of the roadway, - this issue should have been submitted to the jury under proper instructions.

We-think'the court was also in error in instructing the jury, in substance, that'the'driver of the automobile was required to give only one-half of the roadway, “if he could do so with safety to himself and the- others then traveling with him.” This instruction would give the driver and the occupants of the automobile a superior right of safety, even though the condition of danger.might have been caused exclusively by the negligence of the driver of the automobile. ■ \ . ......■

The driver and occupants of the automobile, and the driver of the vehicle', in the case at bar, had equal rights.- The safety .of .the former could not be -made a paramount consideration. The.driver of the automobile must, exercise reasonable- care, not only for the benefit .of the occupants of his own car but as well for the.driver and occupants of other vehicles upon the roadway. We think that it was erroneous, therefore, to instruct the jury that the driver of! the automobile was bound to give one-half the road .only -in ease he could do, so. in safety to himself, and the occupants of his car. 1

; . It is!contended -on. behalf of defendant in error that notwithstanding the-errors in the 'charge; -the judgment of the court of common pleas should:be affirmed under Section' 11364, General.Code. We. have-carefully considered this-contention. 'The evidence tending to prove negligence on.the part of-deféndant Avas, in our judgment, sufficient to require the case to go to the jury upon that issue.

There, is evidence tending to show contributory negligence upon the part .of ■ plaintiff. This evidence was not uncohtradicted. Upon the contrary, there .was-a sharp'conflict of evidence upon the subject of contributory negligence. We think that the case, both as to contributory negligence and contributory negligence, should have been submitted to the jury, and Avas of such a nature that this court would not be justified in holding affirmatively that the substantial justice of the case was so clearly in favor of the defendant in error as to require an affirmance of the -judgment notwithstanding the errors in the charge.

We find no other prejudicial errors except those specified.

Judgment reversed, and cause remanded for a new trial.

' Ferneding, J., and Kunkle, J.; concur.


author: Kunkle, J.

text:
    REQUIREMENT OF CERTIFICATE THAT MONEY IS IN THE TREASURY AND UNAPPROPRIATED.
    Court of Appeals for Clark County.
    Mad River Township v. The Austin-Western Road Machinery Company.

    Decided, May 19, 1916.

      Toivnship Trustees—Application of Section 5600 to Purchase of Road Machinery—All Contracts Controlled by It's Provisions Unless Excepted Therefrom by .Statute or Pair Inference.

    1. A petition which attempts to state a cause of action based upon an alleged ' indebtedness incurred by township trustees lor the pur- • chase of road-building machinery, is subject to demurrer, in the absence of an averment that the provisions of Section 5660, General Code, have been complied with.
    2. The provisions of Section 5660, General Code, apply to road-building machinery purchased by township trustees, under authority of Section 3275, General Code.

      Zimmerman & Zimmerman, for plaintiff in error.

      Keifer & Eeifer, contra.

       Motion for an order . directing the Court of Appeals to certify its'record in this case overruled by. the Supreme Court, October 13, 1916,

   Kunkle, J.

Defendant in error, the Austin-Western Road Machinery Company, brought suit in¡ the court of common pleas to recover judgment against plaintiff in error, Mad River township, Clark county, in the sum of $2,400, with interest, upon a contract for the purchase of a. road roller.

Such contract was entered into August 1, 1913, and is evidenced By two promissory notes of $1,200 each, one payable March 1, 1914, and the other March 1, 1915, both bearing "interest. .

The notes were signed A. H. Smith, trustee; J. H. Lindermut-h, trustee, and S. E. Dunevant, trustee. 1 •

The petition, among other things, contains the following averments, viz:

"The said trustees who, for said township, so purchased said road roller and executed the so-called notes as aforesaid, and also their successors, have for said township, retained and used and have continuously since said purchase, held and enjoyed and still hold and enjoy the possession of the same; and they have, continuously since, neglected and refused, on demand, to pay for said road roller the said $2,400, with interest as aforesaid, or any part thereof, though there has been ample money in the treasury of said township belonging to it and to the credit of its several funds, not otherwise appropriated, applicable to the payment thereof; and said trustees have neglected and refused, on demand, to apply the same, or any part of it, to pay said indebtedness.

"Prior to the 1st day of August, 1913, there had been taxes levied by the trustees of said township in and for the year 1913 which were thereafter collected, and there was, also, on said last-named date and since, in process of collection, moneys arising from taxes and from other sources, belonging to said township then in or thereafter came into said treasury to the credit of its several funds, not otherwise appropriated, and sufficient to pay plaintiff for said road roller, purchased as aforesaid, and, on demand the said trustees of said township have refused and neglected, and will still refuse and neglect to apply the same to pay, in whole or in part, the said indebtedness to plaintiff.

“The plaintiff further says that since August 1, 1913, the trustees of said township have contracted other indebtedness on its behalf and they have appropriated money and caused the same to be paid, from time to time, from funds belonging to and in the treasury of said township,, applicable as aforesaid and sufficient to pay the said indebtedness to plaintiff in full; and taxes were levied and collected for the year 1913, for the express purpose of paying for said road roller, and the same, thus levied and collected, was paid into the treasury of said township as follows: $791.49, February —, 1914, and $790.62, September —, 1914, an aggregate sum of $1,582.11, all of which has. been and is now withheld by said trustees from being applied toward paying plaintiff for said road roller. The said aggregate sum so levied and collected is still in said township treasury unappropriated, subject to be used to pay the said indebtedness to p’airtiff unless’the same, or part thereof, has been diverted by sai cl trustees to other uses.”

To the petition, defendant below filed a general- demurrer, which was overruled by the trial court.

Defendant thereupon filed an answer in which it admitted that it was a political subdivision of the county and state, as averred in the petition; that A. H. Smith, J. PI. Lindermuth and S. E. Dunevant were trustees of said township in 1912 and 1913; and that said Smith, Lindermuth and Dunevant signed an alleged contract as averred in the petition and gave the notes as set' forth in the petition. The answer also contained the following averments:

“Defendant admits that prior to August 1, 1913, there had been levied by the trustees of the said township in and for the yem.’ lulo, certain taxes to be collected m said years 1913 and 1914, to be used for the payment of said notes, and that there was collected thereon the sum of $1,582.11, and that the same is now on deposit, unappropriated, subject to be used by the trustees of the said township.

“Defendant further says that at the time of making the alleged contract, as set forth- in the plaintiff’s petition, the said trustees were not in session and that no resolution had been passed authorizing said alleged contract to be made; and that the said alleged contract was signed by the several persons named at their respective homes, they not having been authorized so to do at any regular meeting of said board of trustees of said township.

“Defendant says further that at the time of entering into said alleged contract there was only twenty-nine dollars and thirty-eight cents in the hands of the treasurer of said township, unappropriated, and that in order to pay for said roller under said alleged contract, the said A. H. Smith, J. H. Lindermuth and S. E. Dunevant, gave the two notes as set forth in plaintiff’s petition at the dates named on said notes, and said notes were accepted by «aid Austin-Western Company, Limited, as full payment of said account of twenty-four hundred dollars, as claimed by it against said Mad River township; that in order to pay said notes said trustees levied a special assessment known as The Road Repairing Machinery Fund, and that if said contract was legal or said trustees had the legal right to execute said notes, that amount might be applied to the payment thereof.

“Defendant says that said road roller was used for a period of about thirty days in the fall of the year 1913, but that the same, since said date, has been stored in the township house of said township, and not used by the defendant or any other person or persons, and that said road roller is now and has been since 1913, there subject to the order of the said plaintiff.

“Defendant further says that there has not been sufficient money in the hands of the township treasurer, unappropriated, which could be used for the purpose of paying said notes, given for said road roller, at any time since said notes were given.

“Defendant further says that at the time of entering into said alleged contract between the plaintiff and the defendant, the clerk of said township did not first certify that the money required for the payment of such obligation or appropriated was in the treasury to the credit of the fund from which it was to be drawn, or had been levied or placed on the duplicate, and in process of collection and not appropriated for any other purpose. .

“Defendant denies each and every other allegation in said petition contained and not herein specifically admitted to be true.”

Plaintiff below filed a general demurrer to the answer, which demurrer was sustained by the trial.court.

Defendant below declining to plead further, the case was submitted to the court upon the petition and its exhibits, and judgment was rendered in favor of the plaintiff in the sum of $2,708, being the contract price for the sale of the said road roller, together with interest thereon. From such judgment plaintiff in error prosecutes error to this court.

The principal question presented both by the demurrer to the petition and the demurrer to the answer relates to the applicability of Section 5660, General Code, to contracts of this nature.

Section 5660, General Code, is as follows:

“The commissioners of a county, the .trustees of a township and the board of education of a school district, shall not enter into any contract, agreement or obligation involving the expenditure of money, or pass any resolution or order for the appropriation or expenditure of money, unless the auditor or clerk thereof, respectively, first certifies that the money required for the payment of such obligation or appropriation is in the treasury to the credit of the fund from which it is to be drawn, or has been levied and placed on the duplicate, and in process of collection. and not appropriated for any other purpose-; money to be derived from lawfully authorized bonds sold and in process of delivery shall, for the purpose of this section, be deemed in tlie treasury and in the appropriate fund. Such certificate shall be filed and forthwith recorded, and the sums so certified shall not thereafter be considered unappropriated until the county, township or board of education, is fully discharged from the contract, agreement or obligation, or as long as the order or resolution is in force.”

Plaintiff in error contends that the provisions of Section 5660 apply to the contract in question, and that the absence of an averment in the petition that the certificate provided for in such section has been made, renders the petition subject to demurrer.

This question is also raised by an express averment in the answer admitted by the demurrer thereto, to the effect that no such certificate was made.

Defendant in error claims that such certificate is not necessary for the following reasons:

1. Because Section 3275, General Code, supersedes Section 5660, General Code, and authorizes the contract in question.

2. Because the contract in question has been executed by the delivery, retention and use of the said road roller.

Section 3275, General Code, reads as follows:

“The trustees may purchase such number of plows and scrapers and any other road building or road repairing machinery they deem necessary, for the use of the township, which shall be used exclusively for that purpose. The cost and expenses thereof shall be paid on the order of the trustees, from moneys in the township treasury not otherwise appropriated. They shall take possession of such plows, scrapers or machinery, or may authorize an employee of the township or other person, to take charge thereof who shall take care of and preserve them when not in use. ’ ’

The questions raised by the demurrer to the petition and the demurrer to the answer are both interesting and important.

In arriving at a conclusion we have been greatly aided by the exhaustive briefs which have been filed by counsel.

We shall not attempt to review or distinguish all of the authorities so cited, but will merely refer briefly to a few of the Ohio decisions bearing upon the questions involved.

Section 5660, General Code, is the outgrowth of what is commonly known as the Burns law, which law was originally applicable only to municipal corporations.

The Legislature in adopting Section 5660, General Code, evidently intended to apply the general provisions of the Burns law to the commissioners of counties, the trustees of townships and the boards of education of school districts, and this section would, therefore, be subject to the same general rules of construction as have been applied to the Burns law, which, as above stated, applied only to municipal corporations.

The Burns law has been held to be remedial legislation, intended to restrict expenditures to funds actually available at the time a contract is made, for the purpose of preventing the creation of floating indebtedness.

It was found by experience that the purpose of the Burns law could be best subserved by a strict enforcement thereof.

Judge Burket in the case of City of Wellston v. Morgan, 65 Ohio St., at page 229, says:

“A strict adherence to the provisions of the restrictive statutes of the state will be for the general good; and it devolves upon those who deal with public officers to see for themselves that the statutes have been complied with. ’ ’

Paragraphs three and four of the syllabus in the above case are as follows:

v'3. To state a good cause of action against a municipality in matters ex contractu the petition must declare upon a contract, agreement, obligation or appropriation made and entered into according to statute. A petition on an account merely, or quantum meruit, in such cases, is not sufficient.

;‘4. Persons dealing with officers of municipalities must ascertain for themselves and at their own peril that the provisions of the statutes applicable to the making of the contract, agreement, obligation or appropriation have been complied with. ”

See also reasoning of Judge Burket in the case of Buchanan Bridge Co. v. Campbell et al, Com’rs, 60 Ohio St., 406, at page 425.

Judge Bradbury iu discussing such remedial statutes in the case of City of Lancaster v. Miller, 58 Ohio St., 558, says at page 575:

‘1 The evils against which these restrictive statutes are directed are municipal extravagance and the negligence and indifference of municipal officers. 'They were designed for the protection of municipal taxpayers generally, as well as to guard against excessive special assessments against property to pay for local improvements. The mischief arising from municipal prodigality and the growth of municipal debts that attended thereon, called loudly for an efficient remedy. These restrictive statutes are the answer to that call. They embody that principle of sound public policy which seeks to enforce economy in the administration of public affairs. The judicial tribunals of the state should administer these laws so as to advance the purpose thus sought to be accomplished. Contracts made in violation of these. statutes should be held to impose no corporate liability. Persons who deal with municipal bodies for their own profit should be required at their peril to take notice of limitations upon the powers of those bodies which these statutes impose.

“The corporation should not be estopped by the acts of its officers to set up these statutes in defense to contracts made in disregard of them. It would be idle to enact those statutes, and aterwards permit their practical abrogation by neglect or other misconduct of the officers of the municipality. If such effect should be given to such acts of municipal officers it would defeat the operation of the statutes. The strict enforcement of these provisions may occasionally cause instances of injustice; it is possible that municipal bodies may secure benefits under a contract thus declared void and refuse to make satisfaction.”

As stated above, we think the general rules of construction which have been applied to what is known as the Burns law should be applied in construing Section 5660.

Section 5660, General Code, is general in its terms and therefore applies to all contracts made by township trustees, unless such contracts are expressly or by fair inference excepted therefrom by some other statutory provision.

In the case of Comstock et al v. The Incorporated Village of Nelsonville et al, 61 Ohio St., 288, the first paragraph of the syllabus is as follows:

“Unless a valid-exception is made by some provision of statute, Section 2702, Revised Statutes, is applicable to so much of the cost and expense of a street improvement as is to be paid by the municipality out of funds arising from a levy on the general tax list.”

Does Section 3275, General Code, exempt the contract in question from the provisions of. Section 5660, General Code?

If Section 3275, General Code, is construed as an enabling statute authorizing the township trustees to purchase road machinery and pay for the same out of moneys in the township treasury not otherwise appropriated, it is then, clearly not inconsistent with the restrictions of Section 5660, General Code.

It is claimed, however, by defendant in error, that the provisions of Section 3275, to the effect that the trustees may purchase such machinery and pay for the same from moneys in the township treasury not otherwise appropriated, are inconsistent with the provisions of Section 5660, and therefore evidence an intention upon the part of the Legislature to exempt contracts such as the one in question from the provisions of Section 5660, General Code.

Section 5660 affects the validity of all contracts, and was intended to prevent the official bodies therein enumerated from contracting indebtedness in excess of the funds then on hand or in process of collection.

The mere power conferred in general terms to contract should not, we think, be construed as an exemption from the provisions of Section 5660, General Code, but should be construed in harmony with such section.

Various municipal statutes confer power, in general terms, upon different municipal officers to make contracts, but such statutes have not been held to be inconsistent with the limita, tions of the Burns law, and we- think the same construction should be placed upon Section 5660, General Code.

If there is any inconsistency between Section 3275 and Section 5660, General Code, then we think the provisions of Section 5660 should govern, as they represent the latest expression of the Legislature upon the subject.

Section 5660 was re-enacted by the Legislature as late as 1910, whereas the section which now constitutes 3275, General Code, was enacted in 1906.

While we have not thoroughly examined the statutes for exemptions from the provisions of Section 5660, yet we recall that Sections 2413, 2435-1 and 2436 expressly exempt certain contracts of the commissioners from the provisions of Section 5660.

In respect to the contention of defendant in error that the contract in question has been executed, the doctrine is well settled in this state that sueh execution even if admitted is no protection where the suit is brought upon the contract itself. In the ease of Comstock et al v. The Incorporated Village of Nelsonville et al, 61 Ohio St., 288, the third paragraph of the syllabus is as follows:

“Whether the certificate required by said Section 2702 has been filed and recorded or not, must be ascertained by each contractor for himself at his peril. In the absence of sueh certificate, when required, no liability arises against the municipality, even though the contractor has fully performed his contract.”

The same principle is announced in Buchanan Bridge Co. v. Campbell et al, 60 Ohio St., 406.

In view of the rule so announced it does not become important to consider the averment of the answer to the effect that the road roller in question is now and has been since 1913 subject to the order of defendant in error.

The answer avers that at the time of entering into the contract there was only $29.38 in the hands of the treasurer of said township unappropriated, and that taxes had been levied and were in process of collection to the amount of $1,582.11.

The contract called for $2,400, with interest.

If Section 3275, General Code, is construed as a limitation, it would follow that the amount of the contract price was neither in the treasury unappropriated nor in process of collection, and the answer would, therefore, be good against a general demurrer.

The petition does not aver that the entire amount required to meet this contract was either in the treasury or in process of collection when the contract was entered into.

Commencing at the last paragraph of page 2 of the petition there is this averment:

“Prior to the 1st day of August, 1913, there had been taxes levied by the trustees of said township in and for the year 1913 which were thereafter collected, and there was, also, on said last-named date and since, in process of collection, moneys arising from taxes and from other sources, belonging to said township then in or thereafter came into said treasury to the credit of its several funds, not otherwise appropriated, and sufficient to pay plaintiff for said road roller.”

This averment of the petition not only refers to taxes levied prior to August 1, 1913, but also includes those since levied, and the averment must, therefore, be read as of the date of the filing of the petition, namely, May, 1915, and not as of the date August, 1913, when the contract was entered into.

We think-the absence of a certificate of the clerk is fatal to the cause of action of the plaintiff below and that the demurrer to the petition should have been sustained.

We think the decision of the Supreme Court in the ease of State, ex rel Hunt, Pros. Atty., v. Fronizer et al, 77 Ohio St., 7, which case defendant in error relies upon to some extent, is not in conflict, but in harmony, with the conclusions herein reached.

On page 18 the court clearly reaffirms the invalidity of a contract made in disregard of the statutes and merely holds that the court will leave the parties where it found them. In that ease the prosecuting attorney attempted to recover the contract price from the bridge company. The court refused to grant any relief. In the present ease defendant in error relies upon the contract, and upon the failure to show that the contract was a valid one the court would be required to leave the parties where it finds them.

In view of the conclusions reached as to the necessity of the clerk’s certificate, we have not found it necessary to consider whether a contract made separately by the trustees, instead of at a meeting of the trustees, would be valid.

Tbe judgment of the lower court both in sustaining the demurrer to tbe answer and in overruling the demurrer to tbe petition will be reversed.

Unless plaintiff below can amend its petition, it would follow that this court should render tbe judgment which the lower court ought to have rendered, namely, that the petition of plaintiff below be dismissed.

Judgment reversed.

Ferneding, J., and Allread, J., concur.


author: . Lieghley, J.

text:
    SECOND REVERSAL ON WEIGHT OF THE EVIDENCE.
    Court of Appeals for Cuyahoga County.
    Modern Brotherhood of America v. Katie Nyiry.
    Decided, July 2, 1917.

      Judicial Interpretation of Section 11577 Unchanged—Courts of Appeals May Grant More Than One Reversal on Weight of the Evidence—Failure of Jury to Apprehend Substance of Interrogatory.

    1. The authority of courts of appeals to reverse a case the second time on the weight of the evidence, as held ,by the Supreme Court in Railway v. Pace, was in no sense modified by the later opinion in Railway v. Santoro.

    2. Section 11577, in which it was sought to deprive reviewing courts of this authority, is part of a chapter relating to the trial court, and in the absence of express words or of words creating the inference, said section can have no application to courts of appeals.
    3. The right of reversal by courts of appeals is jurisdictional, and not procedural, and is granted by the Constitution, and so far as said section has application to courts of appeals it is in conflict with the Constitution.

      G. W. Collister and Jas. T. Walsh, for plaintiff in error.

      T. S. Dunlap, contra.
   . Lieghley, J.

The parties stood in reverse order in the court below, and for convenience will be mentioned herein as they were below.

The plaintiff brought suit in the common pleas court upon a benefit certificate of the defendant company for the sum of $1,000, which covered the life of her husband, John Nyiry. Trial was had in the court of common pleas, which resulted in a judgment for plaintiff, from which judgment error was prosecuted to the court of appeals, and upon due consideration there-^ of the court of appeals reversed the judgment on the weight of the evidence and entered final judgment. Error was prosecuted to the Supreme Court of Ohio, which resulted in an affirmance of the judgment of the court of appeals reversing the ease ’on the weight of the evidence, and a reversal of that part of the judgment of the court of appeals in which it undertook to render final judgment. The case was remanded to the court of common pleas for further proceedings. The .cause again came on for trial, and resulted in a verdict for plaintiff upon which judgment was entered, from which judgment error is prosecuted to this court to reverse the same.

It appears from the record that the deceased was examined in August, 1910, by Dr. Evans, who found him suffering from enlarged spleen and liver. Again by him in March, 1911, at which time he found him afflicted in the same manner but with the disease somewhat progressed. The deceased took sick about January 26, 1911, afflicted with cirrhosis of the liver and a general dropsical condition. He was taken to the hospital and there examined by other doctors who diagnosed his condition the same. The doctor who examined him in January declared that he was in the tertiary stage; that the disease is divided into three stages, primary, secondary and tertiary, and that the disease had progressed to the most advanced stage. The doctors agree that considerable time is required for the development of this disease to the stage they found in him upon examination. In the early part of March he was in Lakeside Hospital and examined by the house physicians. Those doctors were called who testified as to the advanced stage of his disease and that the deceased told them that he had been suffering for over eight months therefrom. The proof is'overwhelming, when the testimony of the doctors and those who are presumed to know is considered, that the deceased in December, 1910, and theretofore was afflicted with the disease of which he died about May-29, 1911.

In the early part of December the deceased was an applicant to membership in the society of defendant. The application is a part of the policy and contains questions to be propounded to the applicant and his answers thereto recorded, which are made warranties of the truthfulness thereof by the terms of the contract.

In the answer of defendant it is claimed that said application contains the following question-: ‘ ‘ When and by what physician were you last attended and for what complaint?” and that the answer recorded thereto is “No.” The defendant claims that •the answer to this question was false and untrue, and being a warranty defeats plaintiff’s right of recovery.

A reply was filed thereto by the plaintiff in which facts are plead to the effect that said question was never propounded to the applicant and the answer not given. Facts are plead in the reply which it is claimed constitute an estoppel.

Plaintiff sought to verify her position and more solidly establish her right to recover by calling a larger number of witnesses to testify as to the physical appearance and condition of the applicant at or about the time the certificate was issued. However, these witnesses could only testify as to appearances at that time aud were not such as were thoroughly qualified to pass upon the fact of whether or not the applicant was diseased in the manner overwhelmingly established by the medical proof in the case and the circumstances and facts developed by the proof.

The state of the evidence has not been changed in any respect from what it was when the case was here before for review, with this exception, that the jury was requested by interrogatory to answer the following question: “Did the examining physician for the defendant when he prepared the application of John Nyiry, ask of him the following question: ‘When and by what physician were you last attended and for what complaint?’ ” "The answer of the jury was: “John Nyiry was not asked the following question: ‘When and by what physician were you last attended and for what complaint?’ ” ■

The force of this interrogatory and answer thereto is rendered negligible by the state of the proof. The physician who examined him as an applicant testified that he did not ask that exact question; that he used the word “doctor” for “physician” and the word “sickness” for “complaint,” in order that he might the better reach the understanding of the applicant. He gave the exact substance of the question but not the exact words. In short, the request for special finding submitted to the jury was not.based upon the state of the proof in the case, and the jury could only truthfully answer “No,” for tbe defendant was not claiming that the question in the exact words was submitted, but claimed at all times and proved that the whole substance and the exact meaning of the question was put to the applicant, so that the special finding of the jury after all presents a new fact but one of little or no probative value.

We have therefore reached the conclusion that the state of the evidence is the same now as it was when the case was here before for review, and that the judgment of the court below should be reversed on the weight of the evidence, unless the established law of the state precludes us from a judgment of reversal.

Section 11577, General Code, reads as follows:

“The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case, nor shall the same court grant more than one judgment of reversal on the weight of the evidence against the same party in the same case.”

This section was formerly Section 5306, Revised Statutes, and received judicial interpretation in the case of Columbus Street Railway Co. v. Peace, 68 O. S., 200, the syllabus of which reads as follows:

“The provision in Section 5306, Revised Statutes, that: ‘The same court shall not grant more than one new trial on the weight of the evidence against the same party in the same case,’ has special and exclusive application to trial courts, and such provision does not operate as a limitation upon the power of the circuit court, as a court of error, to reverse a case any number of times, on the ground that the verdict of the jury in the trial court was against the weight of the evidence.”

In the opinion Crew, J., at page 209, says as follows:

“It was doubtless the design and purpose of the Legislature by the enactment of Section 5306, Revised Statutes, to thereby restrain the unlimited discretion of trial courts over verdicts of juries, whose peculiar province it is under our system of jurisprudence to determine the facts. But in the absence of any such expressed intention, or irresistible implication arising from the language employed in the statute itself, we think it could not have been intended by the Legislature by this act to limit, or take away the jurisdiction, or to restrict and limit the power of the circuit court to but a single reversal, on the ground that the verdict of the jury in the court below was against the weight of the evidence. To give this act a construction that would thus restrict the power of the circuit court, would, we think, be far more calculated to injure than to preserve, the usefulness of the trial by jury. ”

Section 11577, General Code, will be found in the chapter relating to the jurisdiction and procedure of trial courts. Presumably the Legislature had in mind only and was dealing solely with the subject about which it was legislating. Neither by express words nor by words that will reasonably bear the implication is this section made referable to any other court than the trial court. In the absence of such the presumption is strong that the application of the section is limited to the subject-mat-' ter being dealt with.

We are not unmindful of the case of Mahoning Valley R. R. Co. v. Santoro, Admr., 93 O. S., 53. If the syllabus states the law of the case, it is silent upon the subject of'the right of a court of appeals to reverse a case a second time upon the weight of the evidence. However, the opinion by a majority of the court deals with the subject. So far as the language of this case is concerned, the case of Railway Co. v. Pace, supra, was not considered, referred to nor disapproved. The dissenting opinion by Judges Donahue and Jones held that Section 11577, General Code, has no reference to courts of appeals; that the right of reversal is jurisdictional and not procedural: that the court of appeals now obtains its jurisdiction from the Constitution, where .formerly it was granted by statute, and that so fay as said section may be claimed to be applicable to the courts of appeals, the same is in conflict with the Constitution.

So that we hold that this court has jurisdiction to reverse the same case a second time on the weight of the evidence against the same party, for the following reasons:

1. Said section is a part of the chapter relating to the trial court, and in the absence of express words or of words creating the inference, said section has no application to courts of appeals.

2. That the right of reversal is granted to the court of appeals by the Constitution, is jurisdictional and not procedural, and if said section may be said to apply to this court to that extent it is in conflict with the Constitution.

We are supported in this opinion and we derive our authority for it from the case of Railway Co. v. Pace, supra, in which judgment all members of the court concurred. Also by the dissenting opinion of Judges Donahue and Jones in the case of Railroad Co. v. Santoro, supra.

Our opinion in this matter is opposed by the majority opinion in the case of Railroad Co. v. Santoro, supra, in which case, however, the syllabus is silent in respect to the subject-matter under consideration.

In this unsettled state of the lav/ as to what our jurisdiction is and what our right is in respect to reversing the same case a second time upon the weight of the evidence, we adhere to the opinion that we have jurisdiction to do so, and the judgment of the lower court is reversed and the cause remanded at the costs of the defendant in error.

Grant, J., and Carpenter, J., concur.