text:
    FRAUDS, STATUTE OF
    [Cuyahoga (8th) Circuit Court,
    November 6, 1907.]
    Winch, Henry and Marvin, JJ.
    Cleveland Brick & Clay Co. v. Edwin C. Garvin.
    Promise to Pay for Personal Services Being Rendered Another Must be in Writing.
    A promise by the officers of a corporation made, to a physician, who is treating an injured employe of the corporation, that the corporation will pay for the services of the physician, is a promise to pay the debt of another, within the meaning of the statute of frauds, and must be in writing.
    Error.

      Seaton & Paine, for plaintiff in error.

      Prank C. Scott, for defendant in error.
   MARVIN, J.

Garvin is a physician; Perry H. Miller was an employe of the Cleveland Brick & Clay Co., a corporation. On March 14, 1905, Miller received an injury, at the plant of the said brick company. Dr. Garvin was called to attend Miller professionally, and did give him the professional attention necessary on account of such injury during the time that he required such attention. He has not been paid. The bill for his services amounts to $50. For this amount on the said bill Garvin sued Miller and the brick company jointly, first, before a justice of the peace and then, on appeal, in the court of common pleas. No answer was filed by Miller, but the corporation filed an answer, denying the allegations of the petition. Upon a trial to the court and jury, judgment was recovered against this corporation, to reverse which this proceeding is prosecuted.

We have before us a bill of exceptions, containing all the evidence in the case, from which it appears that Dr. Garvin was called, on the day of the injury, to Miller’s house, to give him the requisite attention. It is not certain that the doctor was called by Miller or any member of his family, though the probability is very strong that such was the case. Miller testifies that he does not recollect that he directed him to be called, but says that he does not recollect much about it, only that he knew that he needed the doctor. The following questions were put to him on cross-examination:

“Q. Didn’t you send word to Dr. Garvin by some member of your family, that you wanted him to come? A. I can’t say. It don’t seem to me as if I did.
“Q. ,1 suppose it was a matter of entire surprise to you then when Dr. Garvin appeared? A. No, not surprise, but I couldn’t say positive whether I sent for the doctor by my wife, or not. I don’t mind much about it.”

From these and other questions, as has already been said, it is probable that the doctor was called by some member of Miller’s family. This is made still more probable by the testimony of Dr. Garvin himself, when he says in answer to the question, “Do you know who it was who called you?” A. “No, my recollection is it was a telephone message came from Miller’s house, giving the name and address.” In any event there is no evidence tending to show that he was called by the corporation, or by any person authorized in its behalf, nor is it claimed that he was so called, but the claim made against the corporation for these services is based upon what was said by Mr. Ring, who is claimed to have been a superintendent of the company and authorized to employ persons in its behalf. The testimony of Dr. Garvin in this matter is in substance that, on the third day after he was called to attend Miller he met Mr. Ring, either on the street or in the doctor’s office, when Ring said:

‘ ‘ I am very sorry for Miller; he is one of our best men; he has suffered intense pain; go ahead, take good care of him, do the best you can for him and then present the entire bill to the company.”

The doctor was then asked:

‘ ‘ Q. Did you have any conversation with Ring other than you have related, in regard to payment of the bill? A. Yes.
‘ ‘ Q. When was that ? A. At the same time.
“Q. What further did he.say? A. I asked Ring distinctly, ‘Do you have the authority to make this statement’? I asked him that, and he said yes, he was superintendent of the plant; that no bill went through unless it was referred to him; that while Mr. Nichols was general manager, he referred all the bills to him, and no bill went through unless it had his approval or disapproval.”

After the completion of the services the doctor handed his bill to Mr. Ring, and Ring then said the bill was very reasonable, present it to the company and they will pay it. After the bill had been presented to Ring and this conversation was had, the doctor tells of a conversation he had with Mr. Nichols, the general manager of the company, and he says that in that conversation which was over the telephone, Nichols said “Doctor, I got your bill in the Miller case for $50 and as regards the total amount, it is entirely satisfactory and we will pay it, but we must have an itemized bill.” He says that he thereafter rendered the itemized bill and that the company refused to pay it.

On the part of the corporation it is urged that whatever was said by Ring or by Nichols, and to whatever extent they were either of them authorized to speak for the company, and whatever promise either of them made, was clearly a promise to become answerable for the debt of another person, and not being in writing, it comes within the statute of frauds, and therefore is not binding upon the company. This is the real question in the case, and as bearing upon this, attention is called to the testimony of Dr. Garvin, where the following questions and answers appear:

11Q. Doctor, if you hadn’t met Mr. Eing at all on the morning you' met him, you would have continued to attend Mr. Miller, wouldn’t you? A. Certainly.
“Q. Just as long as he required your services? A. Yes, sir.
“Q. So your meeting with Eing and the conversation which you had with him didn’t affect in any way the rendering of the services which you were rendering to Miller. It simply affected the question of the party against whom you made your bill. Is that right? A. Yes.”

From this it appears that Doctor Garvin’s professional services were rendered not only in the first place, but all the way through, not because of any promise made to him on the part of the corporation, but because he was called upon professionally by. Miller to do so. He made no inquiry as to who called him, but having undertaken to do what he could for this man, he expected to and would have done what any good and conscientious physician would do under such circumstances, without reference to the party by whom he was to be paid.

It seems clear to us that whatever promise was made by either Eing or Nichols comes within the provisions of the statute of frauds, Sec. 4199 E. S., (Sec. 8621 G. C.), which reads:

“No action shall be brought whereby to charge the defendant upon any special promise, to answer for the debt, * * * of another person * * * unless the agreement upon which such action is brought or some memorandum or note thereof is in writing, and signed-by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized. ’ ’

The fact that the suit was brought against Miller and the company shows that the doctor did not understand that Miller had been relieved from the obligation which he was under to pay for these services. It is not like the case of Estabrook v. Gebhart, 32 Ohio St. 415, where, in consideration of the promise made by a third party the claim was given up against the original promisor. There it was held that in such case, that is, where in consideration of the promise on the part of the third party it was agreed that the claim against the original promisor should be released, the promise was not within the statute. This ease is very like the case of Birchell v. Neaster, 36 Ohio St. 331, the first proposition of the syllabus reading:

“A let a contract to B for furnishing materials and building a house for a stipulated sum. B employed C to furnish materials and to perform the labor of plastering. When the building was completed, except a small part of the plastering, C, in the absence of B informed A that he would not finish the plastering unless A would agree to pay him, and A replied, ‘Finish the plastering and I will see you paid.’ The obligations of B to complete the house and to pay C not being released, Held: That the verbal promise of A to see C paid was within the statute of frauds.”

In the opinion, at page 337, this language is used:

“It has been claimed that a new and distinct consideration passing between the creditor and the promisor will take the promise out of the statute, though the original debtor remains liable. This can not be the true test, as the statute can operate only on promises supported by a consideration; because promises, either in writing, or verbal, unsupported by a consideration, can not be enforced, either under the statute or independent of it, and certainly the statute requires a promise to answer for the debt, miscarriage or default of another, though supported by a consideration, to be in writing. It is unquestionably true, that whether or not the original debtor remains liable, is a very important fact in determining the nature of the new promise; but, after all, the controlling and ultimate question is, was the promise one to another for the debt, default or miscarriage of another, or was it an agreement to make the old debt the debt of the promisor?”

In the case of Crawford v. Edison, 45 Ohio St. 239 [13 N. E. 80], it is held:

‘•‘That a promise is not within the statute where the promis- or was notified that certain work which was to have been paid for by another party, but which was for the benefit of the new promisor, would not be done unless the new promisor would pay for it, whereupon the new promisor directed the promisee to go on with the work and he would pay for it. ’ ’

This was not within the statute because the promisee did work which he would not otherwise have done, and did it for the benefit of the new promisor; but in the case under consideration, as has already been pointed out, the work not only was being done when the promise relied on was made, but there was no intimation that the work would continue unless the corporation promised to pay for it, and there is the distinct testimony of the promisee that the promise in nowise affected him in the matter of performing the professional services sued for. From what has been said it follows that the first request made by the defendant below for a charge to the jury should have been given. That request reads:

That the jury be directed to return its verdict for the defendant, the Cleveland Brick & Clay Co. ’ ’

Of course, if this had been given, there would have been no occasion to give any of the other requests, but, if that were refused, the court should have given the second request which read:

“If the jury find from the evidence that the plaintiff, Dr. Garvin, was not employed by the defendant, the Cleveland Brick & Clay Co., to render the services performed by him prior to the time he commenced to render said services, and that the indebtedness of the defendant Miller, to Dr. Garvin for the services rendered to Miller, still exists, and did exist at the time of the making of the alleged promises of the Cleveland Brick & Clay Co. to pay said debt, then the court says to you that the alleged promises made by the defendant, the Cleveland Brick’& Clay Co. were promises to pay the debt of another, and not being in writing, plaintiff can not recover as against the Cleveland Brick & Clay Co.”

The refusal to give these requests constitutes error for which the judgment of the court below is reversed.

There is another error complained of, and this arises upon the introduction of evidence.

When Miller was upon the stand, he answered a question in this wise:

“Mr. Ring came to my place and he asked me about my foot, how bad it was, and I told him. Now, he says keep quiet and tell the doctor to take good care of it and the company will pay the doctor bill. He says, you tell Garvin that.”

Motion was made on the part of the corporation to take this answer from the jury, which was overruled. This ruling was erroneous. The fact that Ring told Miller to tell the doctor that the company would pay the bill did not tend to show that the company had promised Garvin that the bill should be paid.

For the errors pointed out the judgment of the court below is reversed and the cause remanded for further proceedings.

Winch and Henry, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    RAPE
    [Cuyahoga (8th) Circuit Court,
    October 21, 1907.]
    Winch, Henry and Marvin, JJ.
    Conrad Frey v. State.
    Evidence must Show Resistence of Woman to Constitute Rape.
    In a prosecution for rape, when the evidence discloses that the hands of the prosecuting witness were both free, and that people were in the room above that where the act occurred and no outcry was made; BelcL: Not sufficient to support a conviction.
    Error.

      Miller Linder and Boss & Klingman, for plaintiff in error.

      H. Burton Gott, Asst. Pros: Atty., for defendant in error.
   MARVIN, J.

The plaintiff in error was indicted, prosecuted and convicted of committing a rape upon Hazel Yeaton, by having carnal intercourse with her, forcibly and against her will, on January 9, 1907.

Error is prosecuted here to reverse the judgment of conviction. Complaint is made of the language used by the prosecuting attorney in his argument to the jury. An examination of that argument as it appears in the bill of exceptions, discloses nothing which would justify a reversal of the judgment.

The prosecutor referred to the appearance of the prosecuting witness in court, claiming that such appearance indicated both weakness of body and mind. If he thought this was so there was no impropriety in saying so to the jury. It is certainly a very common, and, as we think, an entirely proper thing to call attention to the appearance of witnesses, as entitling them to commendation or . condemnation.

He called attention to the appearance of the accused, as he sat in court, claiming that he was strong and robust, abundantly able by his physical strength to overpower this girl. This was following a practice long in vogue which never, so far as we know, has received judicial censure.

Complaint is made that the court failed to give in charge to the jury certain propositions of law, as requested by the plaintiff in error.

Without stopping to read them we deem it sufficient to say that the charge given by the court to the jury embodied all the good law contained in these several requests. The charge as given was clear, fair, and we find correctly stated the law applicable to the case. We should not be justified in reversing the judgment because of anything said or omitted in the charge.

There remains, however, to be considered the action of the court in overruling the motion made by the plaintiff in error for a new trial, one of the grounds of which was “that the verdict is not sustained by sufficient evidence.”

We reach the conclusion from the testimony of the prosecuting witness herself that she made no effort to avoid the sexual connection which she says took place between the parties. We will not enter into any details of this evidence, but it seems to us incredible that she could not easily have prevented Frey from accomplishing his purpose, considering the position in which she says they were when it was done; her hands were both free, there were people close by, Mrs. Ida Forest living immediately over the room where these parties were at the time and she must have heard had any outcry been made. The girl does not claim to have made any outcry, but she knew the premises and the surroundings, and therefore knew that she would be heard if she cried out, and she failed to do so. Taking all these things together, wé are forced to the conclusion that the court erred in overruling the motion for a new trial, on the ground that the verdict was not sustained by sufficient evidence, and this notwithstanding the contempt in- which the plaintiff in error must be held by all decent men and women, who believe, as the jury believed and might well believe, the story of this unfortunate girl. The result is that the judgment of the court of common pleas is reversed and the case remanded to that court for further proceedings.

Winch, J., concurs.

Henry, J., not sitting.


author: HAYNES, J.

text:
    ASSIGNMENTS — INSURANCE
    [Lucas (6th) Circuit Court,
    October 5, 1907.]
    Haynes, Parker and Wildman, JJ.
    Mechanics Banking Co. v. Equitable Life Ins. Co.
    Rights of Assignee of insurance Policy not Delivered.
    Where a party takes out a policy of insurance on his life, on the tontine savings fund plan, and thereupon borrows money, to secure which, he executes a third mortgage on real estate and assigns his policy as collateral security; the mortgage proving worthless, leaving the assignment of the policy as the only security, it is prior as against a later assignee having possession of the policy, as the first assignee stands in the shoes of the person making the assignment and is entitled to be first paid.
    Error,

      Stephens <& Losee, for plaintiff in error.

      Doyle.& Lewis, for defendant in error.
   HAYNES, J.

This is a petition in error brought by the Mechanics Banking Company to reverse the judgment of the court of common pleas. The case arises from, substantially, this state of facts:

George W. Dean took out a policy of insurance on his life, on the tontine savings fund plan, in the Equitable Life Assur-' anee Company. He had not held it a great while before he wanted some money, and, thereupon he proceeded to borrow from Horace N. Gilbert, his brother-in-law, $2,000, to secure which loan, he executed a third mortgage upon certain real estate which he had, and also assigned to the brother-in-law this policy of insurance, as collateral security for the amount of his loan. Subsequently a prior mortgage upon the real estate was foreclosed, and the third mortgage did not receive anything, and the only claim which Gilbert had remaining for his security was the assignment of the insurance policy.

Subsequent to the time of the assignment of the policy to Gilbert, Dean, who still had the policy in his possession and had not actually delivered it to his brother-in-law, went to the plaintiff banking company, in Fostoria, and borrowed $600 on the same tontine policy, made an assignment of the policy and delivered possession of it to the bank. The twenty years which the policy had to run expired in the meantime, the amount of the policy became due and payable, and this is a suit brought for the purpose of deciding who shall have the preference out of this fund, the bank claiming that it should have payment of its money first, and that the balance should go to Gilbert, and Gilbert claiming that he is entitled first to' the amount of his claim by virtue of the foregoing facts. The point that is made and relied upon, largely, by counsel for the banking company, is, that there was no delivery of possession of this policy of insurance to the brother-in-law, at any time, and they claim that in justice and equity and as a fair rule of law, that, the policy of insurance having been left in possession of Dean, and by him transferred to the bank, that, it therefore, acquired the superior right. The court below held in favor of the brother-in-law.

Counsel for plaintiff in error have cited some cases which he claims bear in his favor upon this question. On the other hand, counsel for defendant in error have cited a large number of authorities which, they insist, tend to support their claim. Without discussing those cases, or citing them, we simply say this: that it seems to us that, in an assignment of this kind, the assignee stands in.the shoes of the man who makes the assignment, and we think that the brother-in-law, to the extent of his claim, by this assignment stood in the shoes of Dean and is entitled to be first paid out of the moneys. There is, of course, apparently some force in the argument which is made, in which counsel for the banking company claim relief — that, because there was no delivery of actual possession- of this policy of insurance to the brother-in-law, therefore, the banking company who took the policy of insurance from Dean would be entitled to a preference, but we think that is not good law — in our opinion, it is not in accordance with the principles that properly govern that class of assignments. The bank, when it took this claim of Dean, took the interest that he had and was bound to know the extent of his interest. If he misled them or misrepresented the facts to them, that was their lookout; it was not a matter that bound the person who already had an assignment. We think this should be so: we think that under the authorities cited by the defendant in error, that the large weight of authority, if not almost the entire weight of authority, is in favor of the position that I have stated — in favor of the position claimed by the brother-in-law, and those authorities can be gathered from the written briefs filed by the respective parties. We, therefore, come to the conclusion that the judgment of the court below should be affirmed.


author: Per Curiam.

text:
    OFFICERS
    [Hamilton (1st) Circuit Court,
    July 1, 1905.]
    Giffen, Jelke & Swing, JJ.
    State ex rel Glazier v. Eugene L. Lewis, Aud.
    Increasing Salary of Election Officer during Tenure of Office Held Unconstitutional.
    The proviso of Sec. 2 of act 96 O. L. 13 excludes deputy state supervisors of elections in Hamilton county from the operation of Sec. 1 thereof fixing compensation of such officers, in order to give effect to act 95 O. L. 328, and, in so far as it affects the salary of such officers is unconstitutional.

      F. F. Dinsmore, for relator.

      I reton, Collins, Busch <& Schoenlc, for respondents.
   Per Curiam.

The proviso in Sec. 2 of act 96 O. L. 13, must be construed as excluding deputy state supervisors of elections in Hamilton county from the operation of See. 1 of the act in order to give effect to act 95 O. L. 328.

This construction is no more repugnant to Const. Art. 2, Sec. 26 than that which allows compensation to such deputy state supervisors under both acts, and limits deputy state supervisors in other counties to compensation under one.

The effect of such proviso is to increase the salary attached to a public office and contravenes Art. 2, Sec. 20, in so far as it affects the salary of the relator during the term he was serving when the statute was enacted. State v. Raine, 49 Ohio St. 580.

Judgment affirmed.


text:
    ACTIONS
    [Hamilton (1st) Circuit Court,
    December 9, 1905.]
    Giffen, Jelke and Swing, JJ.
    Otto Heinrichsdorf v. Keppler Brothers Co.
    Action on Injunction and Appeal Bonds Improperly joined.
    A cause of action upon a bond given in injunction and another upon an appeal bond is given in the same suit with different sureties do not affect all the parties within the provisions of R. S. 5059 (G. C. 11306) and are not properly joined.

      A. H. Bode, for plaintiff in error.

      Victor Abraham,, Paxton & Warrington and Theo. Kemper, for defendant in error.
   Per Curiam.

Under Snbd. 3, Sec. 5058 R. S., the plaintiff may unite several causes of action upon contracts in the same petition, but under R. S. 5059, they must affect all the parties to the action.

A cause of action upon a bond given in an injunction suit and a cause of action upon an appeal bond given in the same case with different sureties in each, do not affect all the parties to the action, and hence are improperly joined.

Judgment affirmed.


author: GRANT, J.

text:
    STREET RAILWAYS
    [Hamilton (1st) Court of Appeals,
    May 28, 1915.]
    Carpenter, Meals and Grant, JJ., of Eighth District Sitting by Designation.
    Amy Louis Henry v. Cincinnati, L. & A. Elec. St. Ry.
    Nonperformance of Duty by Conductor not Shown by Woman Thrown from Car after Protesting on Back Platform Failure to Stop Car at Her Station. .
    A woman on an interurban car told the conductor she wished to get off at Stone’s crossing, a regular stop. The car ran past that stop at a very high rate of speed. The woman rose and went out on the back platform to protest to the conductor for carrying her past her station. He replied, “I did,” or “1 have,” and went forward in the car. The woman released her hold on the rail to turn and go back to her seat. As she did so a lurch of the car threw her off and she was badly injured. Her action for damages was based on nonperformance of an alleged legal duty arising from the fact that the conductor deserted her while in a place of peril and in extricating herself she received the injuries complained of. Held: That the testimony failed to tend to fasten upon the railway company an unperformed legal duty, and there was therefore no error on the part of the court below in arresting the case from the jury and giving judgment for the defendant.
    Error.

      Horstman & Horstman, for plaintiff in error.

      Peck, Shaffer & Peck, for defendant in error.
   GRANT, J.

By this petition in error we are asked to reverse the judgment of the court of common pleas in the cause thus entitled.

We adopt as our own the statement of the issues sought to be raised by the pleadings, made in the brief of the plaintiff in error, as follows:

“The amended petition says that on May 9, 1912, at about 7:45 A. M., plaintiff was a passenger on a ear operated by defendant; that she informed the conductor that she wished to get off the car at Stone’s Crossing, which was a regular stopping place for the cars of that line; that the conductor neglected to stop the car at that crbssing, whereupon plaintiff, after attempting to attract the attention of the conductor, but being unable to do so, left her seat in the car and went on to the rear platform where the conductor was stationed, for the purpose of reminding the conductor that she Avanted to get off the car at that station; that the conductor, when she told him he had carried her past the station, merely remarked ‘I did’ and immediately went for-AArard into the car, leaving her standing alone on the rear platform of the car, which was then moving at an extremely high rate of speed, and as plaintiff was in the act of turning around to re-enter the car, 'she was thrown off the platform to the ground and very severely injured.
‘ ‘ The answer denies negligence on the part of defendant and avers that plaintiff AAms injured through her own negligence.
“The reply denies negligence on plaintiff’s part.”

At the conclusion-of the evidence for plaintiff the court on motion arrested the testimonj' from the jury, and rendered judgment, in favor of the defendant beloAV.

Nor shall Ave be doing an injustice to the plaintiff by stating, as being substantially correct, her version of the evidence brought fonvard at the trial in support of her contention. It is as follOAA'S :

The plaintiff testified that she was 49 years of age and lived in Harrison, Ohio, at the time of the accident, May 9, 1912; that on that day at about 7:30 a. m., she entered the car which was going eastwardly at Harrison, and sat in the back end of the car on the first seat from the rear. “It was a side seat. As the car was coming towards the city I was on the right hand side. There was nobody on that side between me and the rear platform. I had been in the habit for two years last past of going on this ear to Mr. Simonson’s to clean house twice a year. When I paid my fare I said to the conductor ‘ I want to go to Mr. Zad. Simonson’s. Put mo. off at Stone’s Crossing.’ When I got to the crossing he didn’t stop the car, and when I saw those signs on the fence, after I passed those, I got up and I could not draw his attention, he was standing against this wheel looking off at a distance and I went out on the platform.

“Q. How did you try to attract his attention? A. Well, I stamped my foot and that is all the way, and he didn’t look around and of course I didn’t holler.
“Q. Which way was he looking? A. That way, looking across. I tried to attract his attention and could not. Before I got up he was a few steps from me. I suppose about the length of this crutch, maybe a little farther. When I failed to attract his attention I got up and I stepped out just like stepping off of this step. I says ‘you have carried me by my stop.’ Then he says ‘ I have ’ and that is all he did say.
“Q. What did he do? A. He just deliberately left me and went to the other end of the car and I supposed he was going to stop the car.
“Q. And what did you do then ? A. Well, I turned to go back to my seat and I fell.
“Q. And did you try to get off the ear? A. No, sir, I did not
‘ ‘ Q. How fast was the car going just prior to your falling ? A. Well, I suppose it was going at the rate of 60 miles an hour. It was going awful fast.
“Q. Did he say anything except ‘I did’ or ‘I have’? A. That is all he said.
“Q. How soon after that did he leave you? A. Just as quick as he could walk away.
“Q. And how quick did you turn to go into the ear? A. Just as quick as I could turn around. Stone’s Crossing is a regular stop on that road.
“Cross-examination. — When he came to me to collect my fare I paid him a nickel and I said ‘I am going to Zad Simon-son’s to clean house and put me off at Stone’s Crossing.’ He didn’t say anything. Instead of stopping the car though as I had asked him, he carried me past.
“I didn’t get up while the conductor was in front of the car. I am sure of that. He had collected all the fares and gone back to his post on the back platform. There was a step from the aisle of the car down on to this platform, a step of 6 or 8 inches. The door leading from the aisle to the platform was open. I tried to attract the conductor’s attention. I stamped my foot. I could not attract his attention. He was standing with his back against the wheel, but looking off, not in my direction though. I got up out of my seat. I got hold of the door as I went out. The car was going at the rate of 60 miles an hour. It was going so fast, that is how I judged it, and I heard several say it was going that way. It was going an unusual speed. It usually runs very fast there.
“Q. And you stepped out on the platform? A. Yes, sir.
“Q. And didn’t hold on to the door? A. No, I let go of the door. Of course I had to let go of the door to turn around and go back to my seat.
“Q. And when you stepped down on the platform there, you were right next to the conductor, were you not ? A. I was, 'well, in a distance of a foot, I suppose, about a foot.
“Q. And then, what did you say to the conductor then? A. I said to him ‘you have carried me by my stop,’ and he just looked up and says ‘I have,’ and deliberately left me and went to the other end of the car. He left me standing where I was talking to him, never answered, only said ‘I have.’ He didn’t ring the bell to stop the car.
“Q. How far in' the ear did he go? A. I don’t know, when I turned around enough to go back to my seat, I turned around as quick as I could,, he was standing there some place in-the car.
“Q. You had turned around then after he left you? A. Of course I turned around to go back to my seat when he left me.
“Q. There are handles on the door on each side? A. Yes.
“Q. You didn’t have hold of those? A. You thi-nk I could hold to those, turn around and go back to my seat ?
“Q. After' you turned around? A. Didn’t have time. It threw me over. The switch of the car threw me over.
“Q. You said you saw the conductor? A. When I turned around before I fell I looked for the conductor, supposed he would stop the car and he was standing back there and that is the last I remember.
“Q. Standing where? A. Well, in the rear of the ear, I don’t know where.
‘ ‘ Q. Looking at you ? A. No sir, he was not looking at me because he had his back to me. There were no push buttons on that car by which to attract the attention of the conductor. If the conductor had been looking into the car he could have seen me without looking through any window pane.”

Mr. George W. Bowlby, of Harrison, Ohio, was a passenger oh the ear. He did not see the accident happen, but assisted in picking up the plaintiff after the car came to a stop. He says the place where she fell was 3Ó0 yards distant from Stone’s Crossing stop.

Several other passengers on that car testified that as they were all facing forward none of them saw how the accident happened.

In the light of the issue thus tendered by the pleadings and the testimony addressed to it, what duty did the defendant owe to the plaintiff? That is, to our apprehension, the single question to be answered in this inquiry, as a matter of first instance. That would be a question of law upon which the court must pass without aid from a jury. If no duty was owing, then the matter was rightly resolved by the trial judge directing the verdict that was returned in the case. If the testimony produced tended to establish a legal duty, owing by the defendant to the plaintiff, then the resulting question of whether the duty was. performed and the obligation discharged, would have presented an issue of fact which it was the exclusive province of the jury to determine, upon such proper instructions as to the law of the case as the court should deem proper to give in charge.

There can be no impropriety in addressing our consideration to this inquiry of duty or no duty owing, at least so far as the plaintiff is concerned, in presenting, in Twee verba, her precise claim in this respect, as the same is contained in the brief of her counsel.

It proceeds thus — up to the point where cases are cited in maintenance of the position taken:

“Plaintiff, by reason of the conductor’s failure to stop where he had been directed to stop, was compelled to act quickly. When Mrs. Henry noticed that she was being carried past Stone’s Crossing, she stamped her foot and otherwise tried to attract the conductor’s attention, but he was looking in another direction, so that Mrs. Henry was compelled to go towards him. The car was running at a high rate of speed and necessarily making noise. She was obliged either to step out on the platform to him or wait an indefinite length of'time until he should look in her direction. - We submit that under those circumstances almost any man or woman passenger would have stepped on to the platform to talk to the conductor. Did she under these circumstances exercise ordinary care on her part? We contend that circumstances were such that' it presented a question of law for the court. This is not analogous to a case where a passenger deliberately rides on the rear platform when there is accommodation inside the car. The conductor’s neglect caused Mrs. Henry to be on the platform and he was negligent in abruptly leaving her there unprotected. Considering the duty of the company to exercise the highest degree of care towards passengers and the fact that this passenger was a woman and that the car was going.at such a very high rate of speed, the conductor surely was not acting humanely in leaving her exposed to that danger which she suffered. If he had remained on the platform she probably would not have fallen, and if she had lost her footing, he probably would have saved her from serious injury. Answering her abruptly and immediately going into the ear without signalling for the car to stop or giving her any asurance that it would stop, he made it necessary for her to loosen her hold of whatever she had hold of and to turn around to go into the ear again, and while in the act of so turning around she was thrown off the car. Any ordinary man seeing an aged woman on the rear' platform of an interurban car going at such speed, would almost involuntarily assist the woman to a place of safety and yet- this conductor deliberately, hurried away from her. Can it be said that that is in law the exercise of the highest degree of care towards a passenger? And can it be said as a matter of law that because a woman who is carried beyond her destination and who can not otherwise attract the attention of the conductor, steps out on the platform to talk to him briefly, is guilty of negligence? She was called upon to act very quickly, by reason of the failure of the conductor to do his duty, and she could not be expected to weigh the question of how best to act as if she had had time to reflect and consider. Being a working woman she could not be expected to sit in the car patiently and be carried an indefinite distance beyond her destination, perhaps without means to get back, or at least not able to get back in time to do her day’s labor. It seems to ns a very harsh judgment to accuse her of negligence in doing the only thing she could do to remedy the mistake of the conductor. As long as the conductor was within a foot of her on the platform there was not much danger to her because she had her protection and also the hand-hold of the door post, but when he left her abruptly he deprived her of both of those protections and made it necessary for her to let go in order to turn around to get into the car again. A passenger going to the conductor on the platform under those circumstances would naturally expect him to forthwith pull the bell rope and slow up and stop the car. If he had done that she would have been safe. He did not do that, but on the contrary acted in a way which naturally added to her embarrassment and doubt as to what he was going to do next. She had a right to wait a few moments to learn what he would do and then to turn around and see what he would do when he entered the ear.”

We must give, of course, and do give, credence to whatsoever the evidence in terms states, so far as it bears upon the issue to which it is addressed, and we are also to deduce all proper inferences flowing from the facts thus brought to bear.

Allowing these, and still how stands the case? Whatever may have been the obligation of the defendant, whether contractural or imposed by law, not to carry its passenger beyond the designated stopping place, it is certain in this case that, after that default was complete, the plaintiff, for whatever reason, left a place of safety within the car and voluntarily went to a place which, or in leaving which, turned out to be, under the circumstances, a place of danger, where she came to her injuries sued for.

It is quite possible, we think, to give too much importance to the alleged abruptness of the conductor when the plaintiff told him her stopping place had been passed, or to put an unnecessarily unfavorable construction on what he then said to her. His tone of voice can not be reproduced on the record: that is certain. But we are inclined to think, under the circumstances, that his words, “I did,” or “J have,” were interrogatively meant. If this is so, and as a conjecture it is as good a one as one that would impute a want of feeling and derision of a poor woman’s just claim to considerate treatment at a conductor ’s hands, then it is not unreasonable to conjecture further that he in going forward in the car at that time, did so from a purpose of seeing whether the motorman still could not do something to allow the passenger to alight as near to her point of destination as was then practicable, and so save her day’s work to her. We rather think this may have been the fact of the matter. But even so, or even otherwise, we can not regard this point as decisive of the breach of any legal obligation of duty from the defendant to the plaintiff, at that exact moment of time, or on account of that matter, in any light in which we may look at the conductor’s act or conduct. Certain it is that when the conductor left the plaintiff and went forward, she having theretofore left a place of safety, was still in a place of safety, so far as appears, and which, had she not left that place of safety, for aught that is shown, would have continued to be a place of safety for her. When she changed that — when she abandoned her hold upon the door jamb of the car, and turned to resume her seat and place of safety, which she had in the first instance abandoned, and in so doing came to her hurts, the conductor was no longer where he could render to her the duty of humanity to safeguard her from an impending peril, and the absence of which seems to be imputed to him, and through him to his employing company, as a possibly actionable fault.

It is to be remembered that this is not an action to recover for the breach of a contract to carry a pasenger to her point of destination and to deliver her there safely, the violation of which resulted in her bodily harm. Something, perhaps, might be said for that kind of a claim. But this is not a suit so founded. It is an action for the nonperformance of an alleged legal duty, arising, so far as we can gather from the averments of the petition, from the charged fact that the conductor deserted the plaintiff while she was in a place of peril, and in extricating herself from which she received her injuries, as she says. The ex-, cessive speed of the car, acting in conjunction with the abandonment of her by the conductor, is not pressed in argument, and seems to have been pretty much non-existent, so far as to being a contributing factor in the injury is concerned.

The consideration of humanity alone, as such, however commendable in ethics and fireside law, is a matter of no significanee in a ease where obligations imposed by positive law are alone to be dealt with and enforced.

The most, we think, that can be said, if so' much, is that perhaps the fact that the conductor saw his already wronged passenger, that is, wronged by being carried by her contractural point of stopping, in a place which might by her leaving it, as she afterwards did leave it, become a place of danger, nevertheless left her there without warning, safeguard or precaution, this, we say, might, possibly, be assimilated to the rationale' underlying the doctrine of last chance, so as to make the defendant amendable to the remedy which in such a case, properly, such a case, the law undertakes to advance and administer to effect, in accordance with the rights of the parties, issuably presented and proved.

We are not saying that this case, upon its own facts, is within the purview of the principle of the last chance rule. We say only that at most it could amount to no more in any view and when properly invoking the aid of that remedy. We are not called upon to say more.

The doctrine of last chance is not to be applied unless it is pleaded Drown v. Traction Co., 76 Ohio St. 234 [81 N. E. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. 844], It was not pleaded in this case.

The authorities cited in the plaintiff’s brief, are marshalled under two heads. The first is “Province of the Jury.” Upon that we have said all that we care to say.

The second is “Duty of Conductor to Protect and Assist.”.

These terms suggest the considerations upon which we have been remarking. No authority, it is supposed, can be brought forward to support the claim that it was the conductor’s duty to prevent a passenger from leaving a place of safety of his own. will, and going to one which may prove to be dangerous, the passenger being of full age, compos mentis, and not disguised by drink. A-conductor is not charged with the duty of being the advisor of the passengers riding in his ear, at his peril for giving bad advice, or for giving none at all in case it turns out through the act of the passenger alone that advice should have been given. Nor, under what we conceive to have been the circumstances of this case, do we think he was charged with a duty of protection to the plaintiff, unless, as we already have 'intimated, seeing her in peril his duty was not to recklessly or wantonly allow it to be visited upon her, he having it within his power to prevent the foreseen and impending danger. In this case, if that duty was violated, it was because the conductor deserted his passenger when he saw her in a place of danger. But it is at least questionable whether she was in a place of danger when the conductor left her, although the place in which she afterwards exposed herself became so, but not to his then knowledge. If, on the other hand, the facts were unquestioned, as we have found already, the debt of duty, if due and unperformed, in this case, which we do not say, the consideration is not before us or to be regarded, because the issue is not raised by the pleadings.

Upon a painstaking review of the record and all that has been said or printed by way of argument in the case, we can not say that there was any testimony fit to go to the jury upon the trial, because none of it tended to fasten upon the defendant an unperformed legal duty toward the plaintiff.

So finding, we find also that no error appears to have intervened in the case, and the judgment complained of is, therefore, affirmed.

Carpenter and Meals, JJ., concur.


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    APPEAL — DISMISSAL AND NONSUIT
    [Cuyahoga (8th) Circuit Court,
    November 6, 1907.]
    Winch, Henry and Marvin, JJ.
    E. Talamini v. Solomon Ulmer.
    Court may Dismiss Case Appealed from Justice by Defendant When Plaintiff is in Default for Petition.
    When a defendant has appealed from a judgment rendered by a justice of the peace, and the plaintiff has failed to file his petition within the time prescribed by law after the filing of the transcript from the justice, the court may enter a judgment • of dismissal.
    Error.

      II. Koblitz, for plaintiff in error.

      Fred. Desherg, for defendant in error.
   MARVIN, J.

Talamini recovered judgment before a justice of the peace against Ulmer. Ulmer appealed to the court of common pleas perfecting such appeal by doing all things necessary for that purpose.

By Sec. 6583 R. S. (See. 10382 G-. C.) it is provided that the justice, in case of an appeal to the court of common pleas from a judgment rendered by him, shall deliver a transcript and all original papers used on the trial before him, on or before the thirtieth day after the rendition of such judgment, and that the appellant shall, on or before such day file a transcript of the proceedings had before the justice.

The judgment in this case was rendered on the 4th day of February, 1907.

The transcript and original papers were filed within the thirty days.

Section 6592 R. S. (Sec. 10392 C4. C.) provides that:

“If the defendant appeal from any judgment rendered in favor of the plaintiff, and after having filed his transcript and caused such appeal to be docketed, the plaintiff shall fail to file a petition, or otherwise fail to prosecute the same to final judgment, the defendant in such action may file his answer setting up whatever claim or demand he may have against such plaintiff, and prosecute the same to final judgment, in which case, if the defendant shall recover judgment against the plaintiff, all costs which have accrued before the justice and in the appellate court, shall be adjudged against such plaintiff, or he may, on motion to the court, ■ suffer judgment to be entered against him for the amount of judgment below, in which case all costs which have accrued before the justice and in the appellate court, shall be adjudged against such defendant.”

Section 6598 R. S. (See. 10398 G-. C.) provides that:

“The rule day for filing petition in the court of common pleas in a case appealed from a justice of the peace shall be the third Saturday after the expiration of the time limited for filing the transcript; and the subsequent pleadings shall be filed within such times thereafter as is provided for the filing thereof in eases commenced in that court after the return day of the summons. ’ ’

The time for perfecting the appeal upon a judgment rendered by tbe justice of tbe peace February 4, 1907, was March 6, < 1907, and the third Saturday thereafter would be March 23. On March 25, which was the Monday next after the time for filing the petition the court entered the following order:

“The defendant comes and the plaintiff is in default of a petition and has failed in any manner to further prosecute this suit, it is therefore considered that said defendant go hence without day and recover of said plaintiff his costs herein. Judgment is rendered against the plaintiff for his costs herein.”

On April 19, 1907, plaintiff filed a motion to vacate said judgment of dismissal. This was heard on May 14, 1907, and refused, and it is this order of refusal to which error is here prosecuted.

The contention on the part of plaintiff in error is that the court should not have dismissed the original action without notice to the adverse party. It is said that there is some rule of the court of common pleas which requires notice to the adverse party before such cases be dismissed for want of prosecution. As we can not take judicial notice of such rules we can not say whether or not any rule of the court was violated. Certainly no statute was violated in entering the judgment which was entered.

Section 6592 (10392), provides for the case where the defendant having appealed, if plaintiff fails to file a petition within the time fixed by law, the defendant may file his answer, setting up any claim or demand which he may have against the plaintiff, and prosecute the same to final judgment.

Surely it would be most unsound reasoning to hold that there is any suggestion in this statute that, where the defendant has no claim against the plaintiff, he may not as well take advantage of the default of the plaintiff as he could where he had an affirmative claim against the plaintiff. The course pursued by the court in entering judgment of dismissal was in violation of no statutory or other right of the plaintiff. He had his right to file a petition; he neglected to take advantage of it.

It is not claimed that if the court was warranted in entering the judgment of dismissal, the motion to set it aside could be insisted upon as matter of right, but that it would be addressed to the discretion of the court. A bill of exceptions is here, from which nothing appears showing any abuse of discretion, and the judgment of the court below is affirmed.

Winch and Henry, JJ., concur.


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    JUDGMENTS AND DECREES
    [Cuyahoga (8th) Circuit Court,
    October 21, 1907.]
    Winch, Henry and Marvin, JJ.
    A. B. Katz v. J. Friedman.
    Sufficiency of Affidavit to Support Motion to Set Aside Default Judgment.
    An affidavit, filed with a justice of the peace in support of a motion to set aside a judgment rendered in the absence of the defendant, which states that the defendant could not be present at the time set for trial and had instructed his attorney to be present and attend to the matter and that the attorney was actually engaged in the trial of a case in another court at that hour and could not be present, is sufficient to support an order setting aside said judgment.
    Error.

      Feniger & ICastriner, for plaintiff in error.

      C. W. Noble, for defendant in error.
   MARVIN, J.

Katz brought a suit against Friedman before a justice of the peace — summons made returnable at 2 p. m., October 11, 1905. On that day the defendant failed to appear, and the justice proceeding to act under authority of Sec. 6577 R. S. (Sec. 10375 G. C. et seq.) took the testimony of one witness on behalf of the plaintiff and rendered judgment in his favor.

On October 13, 1905, the defendant filed a petition to set aside the judgment thus rendered in his absence and in support of said motion filed the affidavit of defendant’s attorney. The hearing of this motion was continued once or twice, and finally the plaintiff filed a motion with the justice to overrule the said motion of the defendant. This was of course unnecessary. The defendant’s motion was on file and the conrt had it to rule upon, and if error was committed in this case it would have been com-' mitted in the same way without the filing of this last motion of the plaintiff. The result of the hearing of the two motions was that the judgment taken by the plaintiff against the defendant on October 11, 1905, was set aside and the case set down by the justice for hearing at a later day. The case is still pending before the justice.

The plaintiff prosecuted error to the court of common pleas from the order of the justice setting aside the judgment of October 11. The court affirmed the action of the justice, and the plaintiff has now prosecuted error here to this judgment of affirmance.

The authority for the setting aside of a judgment by a justice of the peace taken before him in the absence of the defendant against whom the judgment is rendered, is found in Sec. 6578 Rev. Stat. By this section all the steps to be taken and things to be done in order to have such judgment set aside, are specifically pointed out, and it is conceded that all these things were done, except the provision that the motion shall show under oath of the defendant, his agent or attorney, a good and sufficient reason for the absence of the defendant at the time of the trial.

The only affidavit filed in support of the motion in this case reads as follows:

"The state op Ohio, Cuyahoga county, ss.
‘1 Conway W. Noble being duly sworn says that he is the attorney of J. Friedman, the defendant in the above case, and was such attorney at the return day in said case and on the day and at the time the same was set for trial, and was instructed by said J. Friedman to attend to the cause for him, as he could not be present; that at the hour set for trial, to-wit, 2 o’clock p. M., October 11, 1905, he was actually engaged in the trial of a criminal case in the police court of the city Cleveland, and could not be present before said justice.
‘ ‘ Conway W. Noble.
"Sworn to and subscribed before me October 12, 1905.
"Vernon L. Sanford,
‘ ‘ ( Seal. ) Notary Public. ”

A fair construction of this affidavit is that the defendant was absent because he had entrusted the matter to his attorney, with information that he could not be present. He relied upon his attorney, who gives the reason for his absence, and, if we have fairly construed the affidavit, gives a reason for the defendant’s absence.

The justice held the reason for the absence good and sufficient. We are not prepared to say that he erred in reaching this conclusion; the result is that the judgment of affirmance by the court of common pleas is affirmed.

At the hearing of this case it was suggested from the bench that there might be doubt as to the right to prosecute error in a ease like this, and this judgment does not commit us on this question. Had we found that the justice erred in setting aside the judgment, we should have felt bound to determine this question, but as the plaintiff loses his case whichever way we might decide that question, we do not care to consider it.

Winch, J., concurs.

Henby, J., not sitting.


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    APPEAL
    [Cuyahoga (8th) Circuit Court,
    October 21, 1907.]
    Winch, Henry and Marvin, JJ.
    C. F. Dreher v. W. M. Pattison Supply Co. et al.
    Action to Cancel Stock Appealable.
    An action by a stockholder in a corporation against the corporation, its officers and other stockholders, wherein one relief asked is the cancellation of stock alleged to have been wrongfully issued, is not an action for money only and is appealable.
    Appeal.

      Frank Rigley, for plaintiff.

      Smith, Taft & Arter, for defendants.
   MARVIN, J.

This case is here on appeal from the judgment of the court of common pleas, and a motion is made by the defendants to dismiss the appeal on the ground that the case is not appealable.

The statute fixing what cases may be appealed from the court of common pleas to the circuit court is See. 5226 R. S. (Sec. 12224 G. C. et seq.) and reads, so far as it need here be considered, as follows:

“* * * an appeal may be taken to the circuit court by a party or other person directly affected, from a judgment or final order in a civil action rendered by the common pleas court and of which it had original jurisdiction, if the right to demand a jury therein did not exist.”

Section 5130 R. S. (Sec. 12229 G. C.) which provides what cases may be tried to a jury reads in part, as follows:

“* * * issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial be waived, or a reference be ordered as hereinafter provided. ’ ’

Section 5131 R. S. (Sec. 12230 G. C.) reads:

“All other issues of fact shall be tried by the court, subject to its power to order any issue to be tried by jury, or referred. ’ ’

It is clear from these sections that unless there is an issue of fact in the case now under consideration wherein a recovery for money only, or specific real or personal property is sought, neither party was entitled of right to a trial by jury. There was in this case no claim for the recovery of specific real or personal property, so that the question to be considered is whether any part of the case was for the recovery of money only. The case-was tried upon a second amended petition and answer to such petition and a reply. The petition upon which the case was tried was very lengthy, and sets out many facts, which, taken by themselves, would require the exercise of equity powers on the part of the court, and which would raise such issues as are not of right triable to a jury. It is urged, however, on the part of the defendants, in support of their motion to dismiss the appeal, that there are issues of fact involving the right to recover a judgment for the payment of money only, and that by reason of that fact the case is not appealable.

The plaintiff in his second amended petition alleges that he is a stockholder of the defendant corporation and complains that the defendant, W. M. Pattison, and the other defendants who are natural persons, are the officers of the defendant corporation; that these natural persons, having the control of a large majority of the stock of the corporation, have so managed the affairs of the corporation as to pay to themselves salaries much in excess of such salaries as should have been paid; that they have so used the property of the corporation as to prevent the payment of dividends to the stockholders; that they have borrowed money from the corporation and used it for the purchase of other property, for which they have not accounted, and various other matters are set up in this petition, one of which is:

“That on January 2, 1898, certificate number four for seventy-five shares of stock in the W. M. Pattison Supply Co. was issued to defendant, Pattison; that on the same day certificate number 11 for twenty-five shares of said stock was also issued to said Pattison; that is all the stock that was ever issued to said defendant, Pattison. That said Pattison on January 4, 1898, paid $5,000 in money to the company, and on December 31, 1898, gave his note to said company, for $4,785.76 and charged his personal account with $214.24. That on said date, to-wit, December 31, 1898, said Pattison charged his personal account with $5,000. That said note for $4,785.76 has never been paid, and no interest has ever been paid or charged thereon since 1900, the year the dividend was passed as hereinafter set forth. That said defendant, Pattison, was paid a dividend of six per cent, on stock standing in his name for the years 1898 and 1899, and interest was charged against his note of $4,785.76 at the rate of six per cent, for the year of 1898 and at the rate of five per cent, for the years 1899 and 1900.”

Similar allegations are made as to the other natural persons who are defendants in the action, and then follows this allegation :

“Plaintiff says that the stock issued to these different defendants without payment therefor, as hereinbefore set forth, was thus issued for the purpose of giving them the control of said the W. M. Pattison Supply Co., and for the purpose of obtaining the dividends thereon and to cheat and defraud this plaintiff and deprive him of his interest in said treasury stock.”

Later this allegation appears in the petition:

“That fifty shares of stock now standing in the name of the defendant, W. M. Pattison, has never been paid for, and was and is treasury stock, and no authority was ever granted by the board of directors of said the W. M. Pattison Supply Co., to dispose of any of said treasury stock, but was issued by said defendants to themselves to obtain and control a majority of the stock of said defendant company and for other reasons herein-above set forth.”

It is urged on behalf of the motion to dismiss the appeal that these allegations about treasury stock relate only to stock issued to the defendants Smith and Jones, but it will be noticed that the allegations are made directly as to all the defendants, including W. M. Pattison.

It is urged that with these allegations in the petition all tnat could be recovered under this claim would be recovery against Pattison for the amount due upon his said promissory note. If that be true, then there would be here in this branch of the ease, a straight suit for the recovery of money only; but if the allegations of the petition are true, that is not what the plaintiff, suing for himself and other stockholders, is entitled to, but to give him the relief which his allegations would seem to entitle him to and for which he prays, would require the cancellation of fifty shares of the stock which now stand in the name of Pattison, and hence, this part of the case is not a suit for the recovery of money only, and therefore, it is not a suit in which either party would have a right to a trial by jury, but a suit in which an appeal may be taken from the judgment of the court of common pleas to the circuit court.

The allegations in reference to the other natural persons, defendants, are similar to those in reference to the defendant Pattison, and unless the defendant Pattison, under the allegations to which said attention has been called, was entitled to have his case tried to a jury, then none of the defendants were entitled to have theirs tried to a jury.

Holding as we do, the relief to which plaintiff would be entitled, would be the cancelling of this stock.

Without taking up in detail the other allegations of the petition, it being conceded that the allegations are such as that the issues would not be of right triable to a jury, the result is that the motion to dismiss the appeal is overruled.

Winch, J., concurs.

Henry, J., not sitting.


text:
    EMINENT DOMAIN — ERROR
    [Medina (8th) Circuit Court,
    September 28, 1907.]
    Winch, Henry and Marvin, JJ.
    Wadsworth & Western Traction Co. v. John Hutchinson, Sr., et al.
    View of Premises Treated as Evidence Precludes Review upon Weight of Evidence.
    When all parties acquiesce in a court’s instructions that the view of the premises is evidence in an appropriation case, it is impossible to include all the evidence in a bill of exceptions and a reviewing court can not therefore pass upon the weight of the evidence.
    Error.

      Rogers, Rowley & Rockwell, for plaintiff in error.

      Andrew & Woods, for defendants in error.
   MARVIN, J.

The action below was an appropriation proceeding in probate court, which resulted in an award and judgment of $600 for one-half acre taken and $1,250 damages to the residue of a mining leasehold estate. This award is complained of as excessive, but the point is made that we can not weigh the evidence on this or any other issue herein, because the bill of exceptions fails to exhibit all the evidence which was submitted to the jury’s consideration.

A view was had under the statutes; and, following a former decision of this court, all parties acquiesced in the court’s instruction to the jury to consider such view as evidence in making their award. The Supreme Court has since overturned this doctrine, in Zanesville, M. & P. Ry. v. Bolen, 76 Ohio St. 376 [81 N. E. 681; 11 L. R. A. (N. S.) 1107; 10 Ann. Cas. 658], declaring in the opinion that—

‘ ‘ Counsel is surely right in assuming that if the impressions obtained by the jury from the view are themselves evidence in the case, there is no way by which that evidence can be carried into a bill of exceptions, and hence it inevitably follows, as he insists, that there is not power in a reviewing court to pass upon the weight of the evidence.”

Here, where the view was expressly made evidence, not indeed by force of the statute, but by what is equivalent to an express stipulation of the parties, it is manifest that the evidence before us in the bill of exceptions is incomplete and hence incapable of review.

The witnesses of the plaintiff railroad company should have been permitted to answer the questions put to them on direct examination, at pages 158 and 159, asking what was the fair value of the acre of land taken, and for error in sustaining objections to said questions (and for no other error, for we find no other in the record), the judgment of the courts below are reversed, and the cause remanded to the court of common pleas for a new trial.

Winch and Henry, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS — WILLS
    [Cuyahoga (8th) Circuit Court,
    June 11, 1907.]
    Winch, Henry and Marvin, JJ.
    Bailey Co. v. Morris A. Bradley et al.
    Executors can not Contract to Sell Land Except In Manner Provided in Will.
    When a will directs the executors to have an appraisal made of all the property belonging to the estate at a certain date and gives to any devisee the right to take any one parcel of property, not exceeding his share in the estate, at its appraised value, the executors can not at a date subsequent to that fixed in the will contract to sell a certain parcel to a third person, without first having the appraisal made and offering the property to the devisees.
    Appeal.

      Wm. R. Hopkins and White, Johnson, McCaslin <& Cannon, for plaintiff.

      E. J. Blandin, T. H. Hogsett and H. D. Goulder, for defendants.
   MARVIN, J.

In this case a petition and an amendment and supplement to such petition were filed. To these petitions a demurrer is filed by several of the defendants and the question, therefore, here presented is whether under said petition with the amendment and supplemental petition the plaintiff is entitled to any relief which a court of equity can give.

The facts set out in these petitions are substantially as follows: The plaintiff is a corporation. One Alva Bradley, formerly a resident of this county, died on November 28, 1885, leaving a large amount of both personal and real estate. • He left a will which was duly admitted to probate, by the terms of which all the property of the said Bradley was bequeathed to the executors named therein, and their successors.

The defendants, Morris A. Bradley, George H. "Warrington, Norman S. Keller and Lester A. Cobb, are now the executors and trustees under said will; the other defendants in the action are beneficiaries under said will, and three of said beneficiaries are minors.

Item No. 20 of said will reads as follows:

“ It is my will, and my executors are directed at the end of twenty (20) years from and after my decease, or as soon thereafter as may be possible, to make a final distribution of my estate, of every kind and description, by causing an appraisal of each and every parcel of real and personal property to be made by three disinterested freeholders to be selected by my executors, and to cause the same to be sold at public or private sale in such reasonable time after said twenty years have expired, and on such terms as they shall deem best for my heirs, and so far as necessary and practicable to reduce all choses in action to cash, and to make a final distribution as follows:
‘1 To pay each of my children who shall then be alive at such final distribution, One-tenth (1-10) of the total net proceeds of such estate; and that the residue of my said estate be divided between the children then living of my children Elizabeth M, Keller, Eleanor F. Grover, Minetta Morehouse and Morris A. Bradley, said grandchildren sharing equally in said division.
“And I direct that my said executors shall, before offering any part of my estate for sale to others, give to my own children then living, and to my grandchildren then living, the privilege of purchasing any part of said real estate at the appraisal, to an amount not exceeding the share that they may be entitled to respectively receive, and to have the same charged to such devisee as part of his or her share; but, if the same piece of'property is desired by two or more of them, then the same shall be sold and disposed of at public auction, and all public sales shall be upon public notice in a newspaper published in the city of Cleveland, for not less than thirty (30) days, and for' not less than two-thirds (2-3) of its value as so appraised. And I authorize my executors, as such trustees, to make to the purchasers and to my children and grandchildren respectively, all proper conveyances in fee simple of the real estate so sold and taken by them as fully as may be deemed necessary to carry out this will and without order or intervention of any court.”

One of the parcels of real estate left by the testator is described in the petition, and it is averred that this described parcel is much less in value than the share of any one of the several beneficiaries, and on December 4, 1905, the trustees and executors under the will (there having been a change of one of the trustees since the date last named, which, however, in no wise affects the question here under consideration), entered into a contract of sale of said described parcel of real estate with one V. C. Taylor for the sum of $230,000, of which $5,000 was paid in hand; and that thereafter said Taylor assigned his interest in the contract to this plaintiff; the terms of the contract of sale are not set out in the petition, and it is averred that the plaintiff is now ready and willing to perform on its part all the stipulations of said contract to be performed by the vendee, and has demanded of the executors and trustees that they carry out such contract of sale, which they refuse to do.

By a fair construction of the petition it appears that there had been no appraisement of this parcel at the time said contract of sale was entered into, but said parcel has since been appraised at the sum of $225,000. It is further averred in the petition that this contract of sale was made under and in pursuance of authority and approval of all of said defendants, except said minors. We think a fair construction of this allegation is that the parties whose authority and approval is spoken of, simply consented and agreed that so far as they were individually interested in said property, such sale might be made by the executors.

Prior to entering into the contract of sale set out in the petition no opportunity had been given to any one- of the beneficiaries to make an election, as is provided in the twentieth item of the will, whether to take said parcel at its appraised value or not. Indeed, no such election could have been made until after an appraisement.

It appears, however, from the supplemental petition, that Alva B. Keller, one of the beneficiaries, has elected to take the real estate described in the petition, to apply on his share of the estate, at its appraised value, and that Alva Bradley and Charles L. Bradley have together elected to take the same parcel at its appraised value, under the provisions of the item already quoted from the will. This election necessitates the sale of this parcel at public auction, and it is manifest that the executors and trustees as such, can not carry out the provisions of the contract of sale. Their authority is fixed by this will, and under it they could make no sale as trustees without first having an appraisement, and next an opportunity on the part of the beneficiaries to elect, and when two or more beneficiaries have elected to take the same parcel their only course, so far as they derive their authority from the will, is to sell each parcel at public auction. It is said, however, that in the making of this sale they acted as the agents of those who assented to and authorized the sale. We have already said in this opinion how far we think that consent and authority made these trustees the agents of the parties authorizing and consenting. We hold that the allegation does not show that the parties thus assenting undertook to have a sale made which should be binding upon them, beyond a consent to have their several interests thus sold. It did not put upon them the obligation of securing a title such as would enable them to convey a complete title to the vendee. It may be conceded that if they had bound themselves, through their agents, or otherwise, to convey to the vendee a complete title, the obligation might have been put upon them to obtain at the public sale which must be made of this property, such complete title, and so enable them to carry out the contract, but construing the allegation as we do, no such obligation was put upon them. It is certain that the executors and trustees can not purchase this property at their own sale when it shall be made, as it must be, because of the election which has been made. They, therefore, can not obtain a good title which they can convey to the plaintiff.

If it should be claimed that since seven-tenths of this entire property is represented by the defendants who authorized the sale, they can be required to convey an undivided seven-tenths interest in this property to the vendee for á like fractional part of the agreed purchase price, the answer to this is that thereby great injustice might be done and probably would be done to the minors. They are entitled, under the will, to have this parcel sold as a whole and can not be compelled to have it sold in undivided fractional parts. It may well be said, if this plaintiff should have a complete title to seven-tenths of this property, that the remaining three-tenths would sell at public auction for much less than three-tenths of what could be obtained at public sale of the entire property.

The result of this reasoning is that the several demurrers are sustained.

Winch and Henry, JJ., concur.


text:
    DEATH — NEGLIGENCE—RAILROADS
    [Cuyahoga (8th) Circuit Court,
    June 11, 1907.]
    Winch, Henry and Marvin, JJ.
    Francisci Galati v. Erie Ry.
    1. Facts Establishing “Last Chance" Must be Pleaded.
    Plaintiff can not recover for negligence which warrants the application of the rule of “last chance” without alleging it in his petition.
    2. In Death by Wrongful Act Suggestion of Contributory Negligence must be Removed.
    In an action for death by wrongful act if the evidence of the plaintiff suggests contributory negligence on the part of the deceased, then it becomes the duty of the plaintiff, before he can recover, to remove that suggestion of contributory negligence.
    3. Laborer on Adjoining Railroad Track Required to Exercise Greater Diligence because of Noise from Passing Train.
    When one is engaged in labor upon a railroad track, the fact that a long noisy freight train is passing upon an adjoining track would make it necessary for him to be more careful in keeping a lookout for trains approaching on the track upon which he is working.

      J. M. SJialleriberger and Harry F. Payer, for plaintiff in error.

      Gushing & Siddall, for defendant in error.
   MARVIN, J.

Salvatore Galati was a laborer working on the line of the Brie Railroad near Hiram, Portage county, in this state. On May 25, 1905, he was working with a gang of laborers near the place specified, when he was directed by his foreman to leave the gang with which he was working and go to work on a ditch a few hundred feet away from the rest of the gang. This ditch came up very near to the railroad track and was some four feet in width and about a foot deep. Shortly before five o’clock, which was quitting time for the gang, a passenger train going east on the line of the road struck and killed Galati, and it is to recover for this death that the action below was brought. The result in the court below was a verdict and judgment for the defendant; to reverse the judgment the present proceedings are prosecuted.

There was a double track along this part of the railroad, trains going east taking the south track and those going west, the north track. At the time of the accident which killed Galati, a long freight train was moving noisily along the north track to the west. The allegations of negligence in the petition are that the defendant was negligent in failing to warn Galati of the approach of the passenger train, and was negligent in the operation of this freight train, and in fading to warn or caution him of the danger of working between and near said tracks; that the defendant was grossly careless in omitting to maintain a lookout to warn Galati and other workmen working upon said tracks of the approach of the passenger train, and in neglecting to furnish Galati with a safe place in which to work and in failing to apprise the said decedent of all the dangers of the then existing situation; that it was negligent in operating its passenger train at a high and dangerous speed and in failing to give a sound or warning or give a signal of its approach.

The place where Galati was working was in a cut, and the banks on either side were so high that one looking to the west from his place of work could see a train at a distance of not more than 350 feet, there being a curve at this point in the road. It is claimed that these allegations of negligence are such as to authorize the plaintiff to show that the engineer saw Galati and that after he saw him he could have prevented the train from striking him, and that if this were shown, then, even though Galati was wanting in proper care on his part, still a recovery might have been had.

An effort was made on the part of the plaintiff to introduce evidence on this subject, and though, perhaps, no inquiry was made of any witness which exactly raised the question, still the court held substantially, as appears at page 85 and following of the record, that this line of inquiry could not be gone into. In this, the court committed no error. In the case of Drown v. Northern Ohio Trac. Co. 76 Ohio St. 234 [81 N. E. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. 844], it is held:

“Since the plaintiff can recover only upon the allegations of his petition, he can not recover upon negligence which warrants the application of the rule of ‘last chance' without alleging it in his petition.”

So that one can not recover on the last chance doctrine, that is where the plaintiff has negligently put himself in peril and that peril becomes known to the defendant in time to save him, and it fails to do so, unless the fact be distinctly pleaded that the defendant, after knowing of the plaintiff’s peril, neglected an opportunity to save him.

Complaiht is made of the charge of the court in which this language is used:

‘ ‘ The fact that a freight train was passing on a west bound track and making a loud noise at the time Galati was killed, would not excuse him from looking and listening for approaching trains, but on the contrary, since the noise of the freight train would to a certain extent prevent his hearing the noises of the bell or the whistle of the passenger train, it became Galati’s duty to be all the more careful in looking for trains, which might approach on the track near or upon which he was killed. ’ ’

It is said that this ought not to have been given, because the very nature of the work in which Galati was engaged would prevent him from keeping a lookout for approaching trains, and to a degree, this is true. He could not beep a constant lookout for approaching trains and successfully perform his work in the ditch, and only such look-out as he might be able, without failing to perform his work properly, could be required of him. But this- did not relieve Mm from caring for Ms own safety; lie was near to the railroad track; he knew that the purpose of the railroad track was to afford a place for trains to travel upon, and that a train was liable to pass at that point, and if he knew nothing of the times of trains, he knew that such train was liable to pass at any moment, and the ditch being four feét wide, it would seem that he might have worked in the ditch and been at a safe distance from the track to have avoided the injury, and since he knew that a train was passing which made so much more noise than a passenger train would be likely to make, it was certainly not requiring too much of him that he should have taken greater precautions at such time than when no such extraordinary noise was about him.

Complaint is further made that the court erred in the use of the following language to the jury, when treating on the subject of contributory negligence:

“If the evidence of the plaintiff suggests contributory negligence on the part of the deceased in this case, then it would be the duty of the plaintiff, before he could recover, to remove that suggestion of contributory negligence.”

It is said that no burden is properly placed upon the plaintiff to overcome any suggestion of contributory negligence, unless such suggestion goes to the extent of raising the presumption of negligence on the part of the party injured, and the language used in most of the cases is that where a presumption of negligence is raised by the evidence offered on behalf of the injured party the burden is put upon him to overcome it. But we find in the ease of Robison & Weaver v. Gary, 28 Ohio St. 241, this language used in the syllabus :

“3. It is only when the injury is shown by the plaintiff and there is nothing that implies that his own negligence contributed to it, that the burden of proving contributory negligence can properly be said to be cast on the defendant; for when the defendant’s own case raises the suspicion that his own negligence contributed to the injury, the presumption of due care on his part is so far removed that he can not properly be relieved from disproving his own contributory negligence by easting the burden of proving it on the defendant, the same as if the presumption in favor of the plaintiff was unquestioned in his case.” •

This fully justifies the language in the charge complained of, providing there were facts in the case which justified the application of the principle. We think there were facts which justified it. . The decedent in broad daylight was struck by a passenger train. This, of itself, without some explanation suggests to the ordinary mind that there must have been negligence, until some explanation of how he came to be thus struck is made. It is not here intimated that explanation was not made that tended to overcome the suggestion, but we think there was enough to raise the suggestion by the evidence, and therefore the charge was not erroneous in that regard.

It is urged that the evidence in the case is such that the verdict is clearly against its weight. We are not prepared to say this is so. On the evidence the case was perhaps very close, but the jury under proper instructions, found for the defendant and we are not prepared to say that such finding was clearly against the weight of the evidence.

The result is that the judgment of the court of common pleas is affirmed.

Winch and Henry, JJ., concur.


text:
    ACTIONS
    [Cuyahoga (8th) Circuit Court,
    May 27, 1907.]
    Winch, Henry and Marvin, JJ.
    Alfred G. Thompson v. Edwin Treat.
    Defendant may Maintain Independent Action on Subject for Counterclaim.
    When a defendant has a counterclaim against the plaintiff, he is not obliged to set it up in that action as a defense, but may institute an independent action upon it.
    Error.

      Farquharson & Euggett and Foster & Foster, for plaintiff in error.

      J. A. Fogle and J. G. Eeald, for defendant in error.
   MARVIN, J.

Suit was brought in the court of common pleas- by Thompson against Treat, setting out that the plaintiff had employed the defendant as his agent to negotiate the sale of a farm owned by the plaintiff in Summit county; that the defendant acting as such agent represented to the plaintiff that he could exchange said farm for a certain residence property in the city of Cleveland, and could obtain for the farm, which the plaintiff says he had authorized the defendant to sell for the sum of $10,000, in addition to such residence property, the sum of $5,000 in money. The plaintiff says that he authorized the defendant to make such exchange, providing some good judge of the value of the residence property, residing in the vicinity, would pronounce it worth $5,000; that the defendant reported to the plaintiff that a man residing in the vicinity of the residence property, and well qualified to know its value, pronounced it to be worth $5,000, by reason of which .the plaintiff was induced to convey his farm to the owner of the residence property and accept in payment said residence property and said sum of $5,000. Plaintiff says, as a matter of fact, the representation made by the defendant that a person residing in the vicinity of the property and competent to judge of its value had pronounced it to be worth $5,000, was not true, nor had any such person been called upon to fix any value upon this residence property, and that as a matter of fact the residence property was worth not more than $3,500, and so he says that he was damaged in the sum of $1,500 by the wrongful conduct of the defendant and he prays to recover judgment for that amount.

To this petition the defendant answered, admitting that he had acted as agent for the plaintiff in the sale of his farm and that through his agency the exchange of properties, that is, the farm and residence property and the money consideration of $5,000 was made; he denies all other allegations in the petition.

For the second defense he says that he (the defendant in this action) brought a suit against the plaintiff for money, and that one of the items claimed in that suit by him was commissions for the sale of this farm; that he recovered a judgment against the plaintiff in that action, and so he says plaintiff is barred from prosecuting this action, because the validity of the claim made by the plaintiff here was involved in the action brought by this defendant against the plaintiff.

To this answer the plaintiff replied, denying that the matter involved in this action was litigated in the former action.

On this state of the pleadings the court of common pleas, on motion of the defendant, entered judgment in his favor on the pleadings, and to reverse that judgment this proceeding in error is brought.

On the part of the plaintiff in error it is urged that whether the matters involved in this action were in fact litigated in the former action, they could have been there litigated, and that being so the defendant in that action, if he had any claim against the defendant in this action growing out of this transaction, was bound to have pleaded it.

On the part of the defendant in error it is admitted that this would be true, but for the fact that the claim set out in the present action constitutes a counter-claim against the plaintiff in the former action, and that the rule which requires a defendant to set up all the defenses which he has to a claim made in an action against him does not apply where such defense consists of a counter-claim. That the claim set out in this action would have been a counter-claim to that set up in the former action seems clear, from the definition of a counter-claim, as given in Sec. 5069 Rev. Stat., which reads:

“A counter-claim is a cause of action, existing in favor of a defendant, and against a plaintiff, or another defendant, or both, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.”

Surely the claim set up in this action grows out of the same transaction and is connected with this same subject-matter as that involved in the original action, and it remains, therefore, only to consider whether, where a defendant has a counter-claim against the plaintiff, he is bound to set it up as a defense, when suit is brought against him by the party against whom he has such counter-claim.

This seems to be settled in this state in Witte v. Lockwood, 39 Ohio St. 141, the first clause of the syllabus reading:

“The general rule is that a defendant is bound to set up every defense, legal or equitable or both, which he may have to the action, and waives those not pleaded, but where the facts claimed to afford a defense are sufficient to constitute a counterclaim, there is an exception to such general rule. ’ ’

This proposition is sustained by the ease of Covington & C. Bridge Co. v. Sargent, 27 Ohio St. 233, and by Swensen v. Cresop, 28 Ohio St. 668.

That this was the intention of the statute seems plain from the provisions of Sec. 5089 R. S. (Sec. 11337 G. C.), which reads:

“The court, at any time before the final submission of the cause, may, on motion of the defendant, allow a counter-claim or set-off to be withdrawn and the same may become the subject-matter of another action; and on motion of either party, to be made at the time such counter-claim or set-off is withdrawn, an action on the same shall be docketed and proceeded in without process, and the court shall direct the time and manner of pleading therein; and if an action be not so docketed, suit may be brought as in other cases.”

We reach the conclusion, therefore, that the court of common pleas erred in rendering judgment for the defendant upon the pleadings, and for this error the judgment is reversed and the cause remanded.

Henry, J., concurs.

Winch, J., not sitting.


text:
    BILLS AND NOTES
    [Cuyahoga (8th) Circuit Court,
    May 27, 1907.]
    Winch, Henry and Marvin, JJ.
    Peter F. McGuire v. Kennedy Co.
    Liability of irregular Indorser Similar to Regular Indorser.
    Under Secs. 3173ft, 3173i and 31737c R. S. (Secs. 8168, 8169, 8171 G. C.) of the uniform negotiable instruments law, the liability of an irregular indorser is the same as that of a regular indorser, and he can not be held without demand having been made upon the maker and notice of dishonor given.
    Error.

      J. F. Herrick and Frank Higley, for plaintiff in error.

      Smith, Taft & Arter, contra.
   MARVIN, J.

But one question is necessary to be considered in this ease and that is, the relation to a promissory note of one who is not the payee, who endorses the note upon the back while it is in the hands of the maker, the note being thereafter delivered to the payee.

Without question, before the recent legislation upon the subject, such endorser would be liable as a maker of the note.

In 1902, however, the legislature of this state enacted a statute in reference to negotiable paper, consisting of several sections, one of which, See. 31737;, R. S. (Sec. 8168 G. C.), reads:

“A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicates by appropriate words his intention to be bound in some other capacity.”

Section 3173i R. S. (Sec. 8169 G. C.) reads:

“Where a person not otherwise a party to an instrument places thereon his signature in blank before delivery, he is liable as indorser in accordance with the following rules:
“1. If the instrument is payable to the order of a third party, he is liable to the payee and to all subsequent parties.
“2. If the instrument is payable to the order of the maker or drawer, or is payable to bearer, he is liable to all parties subsequent to the maker or drawer.
“3. If he signs for the accommodation of the payee, he is liable to all parties subsequent to the payee. ’ ’

Section 31737c R. S. (Sec. 8171 G. C.) provides:

“Every endorser who indorses without qualification * * * engages that on due presentment, it shall be accepted or paid or both as the case may be, according to its tenor, and that if it be dishonored and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it.”

This legislation has been enacted in a considerable number of states, and the manifest purpose of it is that the rule governing commercial paper shall be uniform in the several states in which this legislation is enacted. Rockfield v. First Nat. Bank, 28 O. C. C. 720 (8 N. S. 290) [Reversed, Rockfield v. First Nat. Bank, 77 Ohio St. 311. (83 N. E. 392; 14 L. R. A. N. S. 842)] held that this statute made no change in the law as to the relation sustained by the irregular endorser to commercial paper. The court of common pleas in the present case held in accordance with this holding of the circuit court. In this we think there was error.

Sections 80 and 81 Massachusetts Rev. Stat. are in the exact words of our Secs. 3173ft and 3173i, and their Sec. 83 is in the exact words of our Sec. 3117ft.

Under this Massachusetts legislation it is held in the ease of Thorpe v. White 188 Mass. 333 [74 N. E. 592].

‘ ‘ But after the negotiable instruments act became operative this distinction was abolished, and the effect of her signature was to make her an indorser as to all parties. ’ ’

The word “she,” as used in the opinion, refers to one who endorses a note, not being otherwise a party to it before delivery.

The state of New York has adopted the same legislation, and in the case of Moran v. Lange, 25 N. Y. App. Div., 11, the court say that the new legislation has changed the rule of such an endorser to the instrument.

It seems to us clear that the intention of the Legislature was to so change the relation of an irregular endorser as that he should be treated exactly as any other endorser, and that such being the case no recovery could be had against him except upon demand being first made of the maker and notice of dishonor served upon the endorser.

Entertaining these views the judgment of the court of common pleas is reversed, and the case remanded.

Henry, J., concurs.

Winch, J., not sitting.