text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Sept. Term, 1895.)
    ■ Before Haynes, Scribner and King, JJ.
    THE CINCINNATI, HAMILTON & DAYTON RAILROAD CO. v. THEODORE BRADHSAW.

      Question of negligence and contributory negligence under the facts of the case discussed.

    Error to the Court of Common Pleas of Lucas County.
   Haynes, J.

This petition is filed for the purpose of reversing the judgment of the court of common pleas, and to set aside a verdict, in a case wherein Bradshaw was the plaintiff and the railroad company the defendant. A demurrer was interposed to the petition, which was overruled, and an answer was filed, and the case came on for trial, and during the trial numerous exceptions were taken to the action of the court. A verdict being returned in favor of the plaintiff below, a motion was made for a new trial, which was overruled, and exception is taken to that. 'The evidence is embodied in a bill of.exceptions, and brought before us in that manner.

It is claimed that the petition did not set out sufficient facts to eonsitute a cause of action, and that the demurrer should have been sustained. The petition is not very closely drawn; but suffice it to say, we think the court did not err ■in overruling the demurrer.

The real test of the case comes upon the evidence of the plaintiff himself, and the question as to whether there is in fact a cause of action against the defendant below, the railway company; and that has occupied our time and attention quite closely.

It appears that Bradshaw was a brakeman upon the train of the defendant company, and that on a certain day he ran with his train from Lima to Deshler as a regular train, and then it started back as an extra. They proceeded south until they arrived at. Leipsic Junction, and at that point they were to take cars upon the train for the purpose of hauling them south. There are several tracks connected at that point, and there are also switches, or side tracks, or curves whereby the respective roads are enabled to take their cars from one road to the other; that is to say, from the C. H. & D. to what is called the Nickel Plate, and vice versa. A car had been brought north in some train of the defendant company, and had been set off on a side track to be delivered to the Nickel Plate; or, as some of the witnesses said, was billed to the Nickel Plate. It stood at any rate upon the side-track of the defendant company for a little time, and then was taken out and put in upon another side track of the company. In running the train upon wffiick the plaintiff below7 was employed in upon this side track, which they did, it became necessary to attach to it certain cars, including this car which had thus been set in, and the attachment was.madeto that car with four or five others, and the engineer started with his locomotive to take the car forward. The train parted at this precise car, wilich was soon discovered by the rear brakeman, who signalled to the plaintiff below, and he signalled to the engineer to back np. It was Bradshaw’s duty to attempt to couple that car again, and ns the car slowed up,he approached the car that -was standing upon the track, and. according to his testimony — which is given in various forms on direct and cross-examination, and at consid-' erable length — as he approached the car he saw that the pin was in the drawbar. He went up to the drawbar and took the pin out, and placed it in its proper position for making the coupling. As the car on the approaching train was being backed up and came near,he stooped down, took hold of the link, and attempted to guide it into the drawbar. About that time he discovered that a portion' of the draw-bar was gone — broken off, indeed, quite, a large portion of the under part of the drawbar was gone, and the absence of that portion of the drawbar, evidently, was what had caused the train to break asunder or pull apart. The plaintiff guided the link into the drawbar, and at that moment noticed thé broken drawbar and being fearful, as he states, that he would receive an injury, the moment he guided the link into the drawbar,he dropped his hand down, and as the parts of the train were coming together, he started back, fearing that there was some other defect from which he might receive an injury, as he states. He started suddenly and quickly, and as he did so, his hand was caught between the deadwoods of the two cars, and a portion of the hand was taken off. He says that he dropped his hand in about the same manner that lie would if the drawbar had been whole and the link had gone into it, but he claims that he raised up or started back quickly, under the influence, of some excitement and some fear that in the condition of the car it was probable there was some other defect in it, and he was in danger of being injured. That is substantially his testimony.

It is contended very strongly here on behalf of the plaintiff in error that there was no actionable negligence on the part of the railway company; and it is contended that the break inthe drawbar was not the immediate cause of the injury to the plaintiff below. That is very earnestly and ably argued by counsel for plaintiff in error. The liability of the railway company really turns upon this question. While it is denied that there was any negligence on the part of the company in regard to the drawbar, and while it is claimed that the car had been carefully inspected by the proper agents or inspectors of the railway company, still, we think the evidence tends to show negligence on the part of the company. The evidence certainly tends to show that when this car was put in upon the other tracks a day or two before, it was inspected by the chief inspector or one of the inspectors at that point. The testimony tends to show that the car was inspected by the chief inspector where it was set in upon the other track where it was found, and that he made the inspection within a short time prior to the accident; yet there is testimony tending to show that the broken pieces of the drawbar were found soon after the accident, lying where the car had stood a day or two before, indicating that the car had been broken at that point, perhaps, after the inspection as made upon that side track, and that it was brought around with a broken drawbar to the track where the accident happened, and that the inspection that was made by the inspector upon the afternoon or a short time previous to the accident was not a thorough and proper inspection; that while the inspector testifies that he made the inspection, and that the car was in sound condition, yet that the drawbar was in fact broken, and had been broken twenty four hours previously. We think, therefore, that the jury were warranted in finding that there was negligence on the part of the company through its officers and agents in inspecting the car.

It is claimed that the plaintiff was guilty of contributory negligence. (I speak of that before coming to the main question again, and partly in connection with it.) It was claimed that he should have seen the condition of that draw-bar when he went in to make the coupling, and that if he did not see it, it was negligence on his part that he did not, because he might have seen it, if he had used reasonable care and caution in looking, when he went in to make the coup•ling.

The cars belonging to the Delaware and Lackawanna Co,, and the evidence shows that they had double deadwoods. These deadwoods are very large — I suppose from eighteen inches to two feet through in one way, and six inches the other. They are formed on each side of the drawbar, and are made for its protection, as it was testified here, and made for use in a hilly country, where the cars are expected to go up and down steep grades and around sharp curves. It is claimed on behalf of the plaintiff below that he could not have seen by an ordinary observation the condition of the drawbar, and it was not practicable, in the ordinary course of his business and in the use of reasonable caution, for him to see it, until he had stooped down for the purpose of insertng the link, and then it was manifest to him that the drawbar was broken. It is in testimony that he went in between the cars in the ordinary way. He passed in, placed his hand up towards the stationary car,- drew up the pin and fixed it as the other car was approaching. As it approached, he had hold of the link. This is said to be the usual and ordinary way of coupling cars. Then he stooped down for the purpose of guiding the link into the drawbar, and then discovered the broken drawbar. The jury, of course, found that he was not guilty of any contributory negligence in that respect; and we do not see anything in the testimony that should lead us to disturb the verdict for that reason.

The main,- real, and in fact the only question in the case is whether or no he was guilty of any negligence or carelessness when he arose, having his hand caught,and whether the broken drawbar was the direct cause of the accident. The •point made by counsel for the railway company is, both as to the petition and as to the testimony, that the broken drawbar was not the. direct and natural cause of the injury, He sys:

‘‘But it is just as true that, although the defendant failed to perform its duty in this regard it would not be liable to' the plaintiff for the injuries he sustained, unless its failure to perform that duty is the proximate cause thereof. That is to say, that unless it clearly appears from the allegations of the petition, that ‘that which, in a natural and continuous sequence, unbroken by any new cause, produced the injury, and without which the injury would not have occurred,’ was the defective drawbar, the defendant is not liable.”

Now, we suppose it is true, that if the plaintiff, upon discovering this defect was, as he says, frightened — was disturbed or was excited — and that resulting from that excitement he so conducted himself that he received the injury; that the fact that the excitement was caused by the broken drawbar and his observation of it would in law make the broken drawbar the proximate cause of his injury. It is true that his hand was not injured at the time that he guided the link into the drawbar, but it was injured after he had dropped it, perhaps, as he said on cross-examination, in the usual maimer of dropping it, and was injured by being caught while he was retiring from between the cars, and perhaps while rising at the time of retiring. Hut it is claimed by his counsel — -and practically it is found by the jury — that at the time he was disturbed and excited, and that he didn’t quite know what he was doing at the time, or that he did not act with the same care that he would if he had not been excited. We must all concede that the injury occurred to the hand after it had been dropped from the drawbar, and I suppose, so far as the testimony is concerned, while he was rising.

We have discussed this matter a good deal, pro and con', and while it is a very close question, still, we think the testimony is such that the jury might draw a conclusion from the facts of the case favorable to the plantiff below, and might properly find that his injury resulted from the excitement that the was under at the time, caused by his discovery of the broken drawbar, and by his fear that there were other defects by which he was liable to be caught and injured. We think as a matter of law,that if the injury resulted from his excitement, and from his inability, by reason of that excitement, to use such care as he would if he had not been excited, then he is not chargeable with contributoiy negligence, and the company would be liable on account of its negligence. That is the whole case in a nut-shell, and we have come to the conclusion, upon the whole testimony, that we ought not to disturb the verdict.

There was a book of rules introduced in evidence in regard to the duties and obligation of this plaintiff below to look and examine the condition of this drawbar and these instru-. mentalities when he went in to make the coupling, or before he went in. There was evidence offered tending to show what the custom and habits of the employes were in regard to making such examinations; and evidence tending to show —not very strong, to be sure — -that it was known to the officers and agents of the company that these rules were not observed. And the court was asked to make certain charges. Certain charges were’given by the court, and certain charges were refused. These matters are too long to go through in detail; but we have, as a matter of fact, examined each of the requests, and examined the whole charge, and we think that the charge of the court was a fair and just statement of the law of the case. With the statement of the law made by the court we are. content to let the case remain. It is very probable that if we were to charge the jury ourselves, we might have varied somewhat the language; but we think the substance of the law is contained in the body of the charge and the various requests that were given, and that there is no ground for complaint that should cause this court to interfere in regard to the questions that were raised upon the charge.

Swayne, Swayne, Hayes & Tyler, for plaintiff in error.

Geo. B. Boone, F. H. Hurd, for defendant in error.

It is said here that the damages were excessive, and upon that there was some little discussion; but we do not feel called upon to disturb the verdict for that reason.

We hold that there is not sufficient gorund for the interference of this court and the reversal of the judgment of the court of common pleas or the setting aside of the verdict. The judgment of the court of commmon pleas will therefore be affirmed, but reasonable cause for filing the petition in error will be certified.


source: Caselaw Access Project

author: Caldwell, J.

license: Public Domain

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Sept. Term, 1895.)
    Before Caldwell, Hale and Marvin, JJ.
    JOHN DAYKIN, Adm’r, v. ROSE EMERY et al.
    1. Where an action is brought against a party, and the summons is returned “not found, dead, ” there is no suit which could be revived against the administrator of such deceased person.
    2. But where on an attempt to revive such case against the administrator, he without any service, voluntarily appears and files an answer of general denial, such administrator becomes a party to. the suit, and can not when the trial comes on amend his answer setting up for the first time such want of service on the deceased, and that there could be no reviver of the case against the administrator.
    3. Where a claim against an estate is of such a character that it should be presented to the administrator for allowance before suit can be brought thereon, yet such requirement may be waived by the administrator; and where such administrator enters appearance in the suit so brought, and proceeds to trial therein without objection, this amounts to a waiver, and such waiver can not be taken back by the administrator when the case comes on for trial, by taking permission to amend his answer, and then for the first time setting up the fact that the claim was not presented to him for allowance as a defense.
    Error to the Court of Common Pleas of Cuyahoga County,
   Caldwell, J.

This case is before us on error to the court of common pleas. George H. Emery died, and Honecker was appointed administrator of his estate. He brought an action in replevin against Rose Emery, to recover certain property, and J. Daykin and Honecker signed the bond, and the judgment in that suit was in favor of the defendant awarding her damages. In 1892, she brought this action on the replevin bond to recover her judgment for damages. In 1893 an alias summons was returned in court saying that John Daykin was not found — dead. Then an attempt was made to revive the case against John Daykin, Jr. administrator of the estate of his father, John Daykin, deceased. Without service of summons or any process he came in, entered his appearance, and filed an answer of general denial to this action on the bond, and the case thereafter came to trial. At the beginning of the trial he was permitted by the court upon his application to amend his answer, and he then set up want of service on J. Daykin, deceased, and that the claim had never been presented to him for allowance before the action was brought. At the trial the original bond could not be found, and a copy thereof was introduced in evidence, and it is now claimed that there is no evidence to show that the John Day-kin,who signed the replevin bond, was the John Daykin who was deceased, and whose administrator was a party to this action.

Some evidence was offered upon that issue in the case, and we think enough so that the court would be comp.e lied to let it go to the jury to be determined by them. It was properly submitted to the jury, and we think that the finding of the jury to the effect that the John Daykin, who signed the bond, was the John Daykin whose administrator was a party to the suit, was the proper one.

Next it is claimed that the claim was not presented to the administrator, and that this suit could not be revived as it stood. No action existed, simply a petition filed and summons issued with no service, an alias summons issued with a return not found, reported dead. That the case had not become a case in court, that it was simply a petition like any other petition filed without service. That the case could not be revived when the defendant was dead. That there was nothing to revive in the matter.

If that was all there was in this case, plaintiff in error would be wrongfully in court; but that is not all. All that was attempted by any one at the time, was to revive the case so that the administrator could, if he choose, enter his appearance. And thereupon the administrator did, of his own volition, enter his appearance in the case,and filed an answer of general denial. When the case went to trial then, for the first time, he raised the objection that there was no service on John Daykin, deceased, and that therefore he was not properly in court. We think that his entry of appoearance and filing of the answer pout him in that case as a party to it. Not by reason of any revivor, but by reason of his entry and answer, so that the attempt to get him - in by a revivor was entirely cured by his own actions.

It is further said this claim was not presented for allowance. It is true, it was not presented, but it is not necessary to present every claim for allowance before suit is brought on it.

Our Supreme Court has decided that a claim against an estate for the liabilities under the statute for subscrip)tion to stock by a pierson deceased, does not need to be presented for allowance before bringing an action against his estate. But admitting tliat this is a case where it is necessary to present the claim before bringing the action, our Supreme Court in 86 Ohio St. 454, and 7 Ohio St. 236, has decided that that is a defense that may be waived, and where a party enters appearance and proceeds to trial without objection, it is waived. The record shows that when John Daykin entered his appearance in this case, he filed a general denial not setting up that the claim had not been presented._ And that was a waiver. But not only that, he rested content with what he had done until the case came on for trial,then at the trial for the first time, taking permission to amend,he set it up in his answer. We think the court below was justified in holding that what he had already done was a waiver, and that he was estopped from taking back that waiver in the manner he attempted to do it.

Skeels & Bejeck, for plaintiff in error.

William C. Royei's and H. M. Bull, for defendant in error.

It is said that the court erred in its charge. A request was made to the court to charge that the administrator, in as much as this claim had not been presented and disallowed —the administrator would not be liable for costs, provided the jury found him or his estate liable on the bond. The court disposed of that request by saying that it was not a matter for the jury; that after the jury had returned its verdict, if necessary he would take care of that. We think that was proper. It was purely a legal question before the court, and one of discretion also to some extent. And the court did nothing further with it, and the court was not asked to do anything further with it. We think if any complaint is to be made, the court should first have been called upon to do something as to these costs, and we are sure now that the court was justified in leaving the question of costs until the jury found the verdict. The judgment is affirmed.


author: Allread, J.

text:
    (Second Circuit—Darke Co., O., Circuit Court
    Nov. Term, 1895.)
    Before'Shearer, Summers and Allread, JJ.
    RIES v. BANK.
    Where an assigneeTor the benefit of creditors, obtains' a judgment and order in the probate court to subject the real estate of the assignor to sale under^the insolvent laws of the state, in an action in which all partiesen interest are properly before the court, an attaching creditor”whose levy was made upon the debtor’s equity of redemption in such"real estate, prior to the assignment, can not by injunction prevent the sale of the attached real estate by the assignee.
    Error to tlie Common Pleas Court of Darke County.
    The action below was brought by the Farmers’ and Merchants’ State Bank of Muscatine, la., against Samuel M. Gray upon a transcript of a judgment rendered in the local courts of that state.
    An attachment, on the ground of the debtor's non-residence in Ohio, was issued and levied upon certain real estate in the city of Greenville.
    Service of process was attempted to be made upon Gray, and thereafter judgment was rendered in the action.
    Upon motion, the judgment was vacated upon the ground of irregularity in the service, and leave was given the plaintiff below to complete service.
    On April 15, 1895, five days after the commencement of the attachment suit and the seizure of the real estate by attachment, a deed of assignment under the insolvent laws of Ohio, executed by Gray, the attachment debtor, to Ries,the plaintiff in error, conveying the attached real estate, was filed in the Probate Court of Darke County, Ohio.
    At the time of the levy of the attachment there existed upon the real estate attached,two mortgages, which, together with the inchoate right of dower of the debtor’s wife, consituted superior incumbrances.

      Subsequent to The attachment and previous to .the'assignment a third mortgage was placed upon record. -
    On April 19, 1895, Hies, the assignee, commenced an action in the probate court of said' County to sell the real estate assigned. In this action, the assignee, his wife, all the mortgagees and other parties in interest,including the Farmers’ and Merchants’ State Bank, were made defendants.
    Service was made against the defendant in error by publication.
    The other defendants named in the probate court waived ■process, and consented to a sale of'the'real ést'áte 'in that action. - '
    On June 19, following, service against the bank being complete and said bank having- made default, the probate court proceeded to a hearing upon the petition, and ordered the sale of said real estate by the assignee as provided in the assignment act.
    On June 28, the defendant, in error filed in the attachment case a supplemental petition to enjoin' the assignee from attempting to make any sale or" conveyance of the real' estate.
    A provisional injunction having been granted and served, upon the assignee, a' motion was filed by him for the dissolution of the injunction upon the ground that -the probate court had obtained jurisdiction of the sale, which motion was overruled.'
    The facts as stated were embodied in the motion and incorporated in a bill of exceptions taken upon the hearing.
   Allread, J.

It has been settled by the Supreme Court, that error may be prosecuted to an order refusing to dissolve a temporary injunction. Burke v. Railway Co., 45 Ohio St. 631.

The question is, 'therefore, one of conflict of injunction, sphere.is no doubt that by the commencement of the action in the probate court, by the assignee against all the parties? in interest, if not indeed from the qualification of the assignee, the probate court was invested with full and ample-jurisdiction of the sale of the real estate,, unless prior to the-filing of such deed and qualification of such assignee the common pbas court had obtained such jurisdiction..

This brings us to the important question: what jurisdiction did the common pleas acquire by the attachment proceedings ?

The action below was for money. The attachment proceedings was auxiliary merely.

The main case, namely the money demand,must be tried' free from complicated issues made by third-parties as to their rights to the property seized in tile' auxiliary proceedings.' Gates v. Penn. Land and Lumber Co., 9 Ohio C. C. 378.

Upon the termination of the action by a judgment, the-creditor may enforce his attachment bya sale of the attached property. If, however, the property was incumbered at thetimé of the levy by mortgages or liens, other than attachments provided for in section 5559, Revised Statutes, the .property can not be sold -upom the attachment levy without an action. Section 5464, Rev. Stat.; Baird v. Kirtland, 8 Ohio, 23; Seymore v. King, 11 Ohio, 342; Stone v. Strong, 42 Ohio St. 53-55.

The mortgages can not properly intervene in the attachment case.

This was distinctly held in the case-of Endel v. Leibrok, 33 Ohio St. 234. There the mortgagee became a party bathe attachment case, and filed a cross-petition to foreclose his mortgage. It was said that such practice was not proper,, and that no jurisdiction to foreclose the mortgage could be obtained unless -the proper steps were taken as in an independent action, to secure such jurisdiction.

It must, therefore, be apparent that the comrnoh pleas ira the case below did not have full jurisdiction of the sale of the real estate of Samuel Gray at the time of the qualification of the assignee.

Devor & Devor, for plaintiff in error.

Knox, Martz & Rupe, contra.

Such attachment creditor could only acquire such jurisdiction after judgment, by an independent, action, or by a supplemental proceeding having the same effect.

The probate court having first acquired jurisdiction to ad- • minister full and complete relief, was entitled to proceed.

This principle is established by the authority of Dwyer v. Garlough, 31 Ohio St. 159. The mortgagee was entitled to foreclose his mortgage in the common pleas because the probate court did not then have jurisdiction to bar the contingent right of dower of the assignor’s wife. The court of common pleas alone could administer full relief.

There is another ground upon which the injunction ought to have been dissolved. The plaintiff below had an adequate remedy at law. It was its duty to defend in the action in the probate court.

At the time the supplemental petition for injunction was filed in the court below, it could have moved during the judgment term to set aside the judgment of the probate court, if taken without actual notice or if any ground existed which prevented it from defending before judgment.

We do not think that a party properly notified by publication or otherwise, in an action in a court having jurisdiction of the subject-matter, can ignore the judgment rendered therein, and have a court of equity enjoin its enforcement.

The court of common pleas erred in overruling the motion to dissolve the temporary injunction.

Judgment reversed, motion sustained and temporary injuntion dissolved.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Sept. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    ANNA MEISSNER v. ADAM MEISSNER.

      Alimony — Modification of decree — Petition for, to be filed in common pleas'court', and not in appellate court. —It seems to be the established doctrine in Ohio that so far as a decree of alimony is concerned, the courts have power, not .to change the original order upon the facts that existed at the time the order was made, but to modify"it upon any changed conditions occurring after the original^deci-ee, which would authorize the court to interfere.
    And where the decree was on appeal entered in the circuit court, andA mandate~was issued to the court of common pleas to carry ) ’ that decree into effect, the Court is inclined to the opinion that L." such appellate court has no continuing jurisdiction, but the defendant ought to file his petition for a modification in the court of common pleas, make the proper parties, and have the case heard there.
    Appeal from the Court of Common Pleas of Lucas County.
   Haynes, J.

Mrs. Anna Meissner filed a petition for divorce and alimony against Adam Meissner in the court of common pleas, and a divorce was granted and alimony was allowed, and thereupon the defendant, Adam Meissner appealed to the circuit court upon the question of alimony. The matter came up in the circuit court upon application for alimony pendente lite, and alimony was allowed. Afterwards a final judgment entry was made by consent pf the parties, which was substantially the same entry as that made in regard to alimony by the court of common pleas. The substance of it was that the plaintiff was to have allowed her $1500 in alimony, payable in installments at certain times. Subsequently Anna Meissner died,le.av.ing a portion of the alimony unpaid, and it is claimed that she has assigned that alimony to her daughtei’, Emma Bergman. Now the defendant, Adam Meissner, comes into court by his attorney, and moves to re-docket the case, and to have Emma Bergman made a party to the suit, to the end that he may have modification of the original decree. The motion reads:

“Now comes the defendant, by James E. Pilliod, his attorney, and moves the court for leave to file a supplemental answer and cross-petition in said canse, and to make one' Emma Bergman party to said cause.”

'The motion briixgs up an interesting question of practice. We have heard counsel upon the subject, and we have ourselves given the matter quite full attention. Counsel for the motion cited several cases in Ohio in regard to the rights of the parties, to-wit: 15 Ohio St. 427; 28 Ohio St. 596; 43 Ohio St. 499; 45 Ohio St. 462; 38 Ohio St. 370; and it seems to be the established doctrine in this state, that so far as a decree of alimony is concerned, the courts have power, not to change the original order upon the facts that existed at the time the order w'as made, but to modify it upon any changed conditions occurring after the original .decree, which would authorize the court to interfere. The query is, how shall the question be raised. In this case the decree was entered here, and a mandate was issued to the court of common pleas to carry that decree into effect. Counsel for plaintiff assumes that this matter is one in which this court has a continuing jurisdiction, and that he has a right to come in by motion, and ask to have the case reinstated, and a right, to file his answer or cross-petition in this court, to have this court modify its original decree. On the other hand, it is contended that if any action can be taken, it must be by a pleading filed in the court of common pleas — an original •petition — for tbe modifying of that decree for reasons that have arisen since the trial of the case in this court.

J. JS. Pilliocl, for plaintiff in error.

Kinney & Newton, for defendants in error.

We think, upon a full discussion of the question, that the better opinion is that the defendant ought to file his-petition in the court of common pleas, make the proper parties, and have the case heard there; but we have concluded in order to save the rights of the parties and that no injustice maybe done by reason of any action of our own, to grant the motion to re-docket the cause, and to file an answer and cross-petition making Emma Bergman a party, but with the statement that we shall not hear the cross-petition or act upon it until such time as he has filed a petition in the court of common pleas,and pressed the case to final conclusion. If it then shall appear by the decision in that case that that is not the proper course to pursue, and that the hearing should be had in the circuit court, then we will be prepared to take up .and dispose of the cross-petition in this court.

We do not pass, of course, upon any suggestion that has been made as to the advisability or the propriety of making any change whatever in this decree. We did not -hear any ■evidence upon that question, and it is not adjudicated.


text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Sept. Term, 1895.)
    Before Haynes, Scribner and King, JJ.)
    THE HOPPE & STRUB BOTTLING CO. v. CASPER SACKS.
    "Where a party is offered by his debtor a check for a less sum than he claims is due him, with the requirement that he accept such sum in full satisfaction of his claim, and he refuses to accept the same, and the debtor on suit being brought offers to confess judgment for such less amount, in full satisfaction, which offer the creditor refuses to accept, and the jury find that the creditor is entitled to a larger amount than thus tendered, such creditor is entitled to interest on the whole amount thus found due him by the jury, from the time his claim became due' and payable.

      Error to the Court of Common Pleas of Lucas County.
   A petition in error is filed in this case for~the purpose of reversing the judgment of the court of common pleas and to set saide a verdict which was rendered in that case in favor of Casper Sacks against the Bottling Co. There are quite a large number of errors assigned in the petition in error, and quite a large number of grounds in the motion for a new trial, why the verdict should be set aside, and why the judgment should be reversed.

Briefly, the petition sets up that Casper Sacks, who is a contractor, entered into an arrangement or agreement with the Bottling Co., whereby he agreed to excavate a certain cellar upon a lot in the city of Toledo, upon which lot the Bottling Co. was about to erect a building. He’ avers that the price that he was to receive was $600, and he avers that he was to fill a small portion of the street near the building, and fill in somewhere around the building, and the remaining portion of the earth taken from the cellar he was to remove from the cellar and take away. In the second cause of action, repeating these statements, he further sets up that there was an invariable custom or usage among excavator contractors in Toledo, whereby the earth that was taken from a cellar under conditions and contracts similar to this, belonged to the contractor, and that that usage or custom was well known to both plaintiff and defendant, and they were both familia? with it. Then he proceeds to aver that, in excavating the cellar he did fill up the street, put some of the earth around the building, as he had agreed, to the satisfaction of the Bottling Co., and that the balance of the earth, which he avers, belonged to him, he took and carried away to the extent of a certain number of cords, to-wit: 110 cords; and that it was of the value of $220. He asks judgment for $600, the original contract price, and for $220, the value of the earth taken away.

It turned out, upon coining to excavate the cellar, that they found in the bed of the cellar' a very fine quality of building sand, said to be one-third in quantity of the earth that was to be taken from the cellar, and it is agreed that the building sand was of the value of $2-per cord in the Toledo market at that time.

It appears from'the testimony that in taking out the earth a portion of it was carried onto the adjoining lot, and perhaps a part of it on the Bottling Co. ’s lot and piled up. Soon after this occurred, a controversy arose between these parties as to who owned the sand, which resulted in some of the sand being taken away by the defendant in error, Sacks, and in a portion of it being used by-the Bottling Co. for the purpose of erecting their building — -mixing mortar — and the balance of it the Building Co. scraped back onto its lot, and sold or disposed of it as it was fit.

An answer was filed denying the main portions of the contract as set up by the plaintiff and the custom and various other matters set forth in the petition. A reply was filed, to that answer.

Upon the issues thus joined between the parties the case came for trial in the court of common pleas, and a jury was impaneled, the case was' heard, and a verdict was rendered for the plaintiff below — the defendant in error here — for the sum of 1751.65. Thereupon a motion for a new trial was interposed, was argued and overruled, a bill of exceptions was taken embodying the testimony, and the case was brought here for review.

It is quite evident that there has been a good deal of feeling in this case; that is to say, as between the parties, it has been fought with a good deal of zeal, and it has been argued with great earnestness and ability by the respective counsel for the plaintiff in error and. the defendant in error. ■Sacks testifies that seeing a notice that the Bottling Co. desired to have a cellar excavated for that building, he went to see the parties, was referred to one Johnson, who was a contractor, and some interviews took' place between thein.1 Johnson and he went to see the ground and looked ■it over, after which Sacks put in a bid for $6á8. Other "parties put in bids; and after the bids were in Sacks saw Mr. Hoppe, the president of the Bottling Oo. A conversation was had between them, and. Sacks claims and . testifies that as a result of that conference, it was agreed that he was to do the work'for $600; that he was to fill in around , the street and around the buildings as I have already stated, and that the residue of the earth that should be taken from the cellar should belong to him. Sacks offered testimony tending to prove that after the sand was discovered, statements were made by Mr. Hoppe, the president of the company, that the sand belonged to Mr. Sacks, and he detailed some other conversation tending to show that up to the time of those alleged conversations, at least, it was understood between them, and, agreed between himself and the Bottling Oo., through its agents, that the sand belonged to him, and he was to have it. On the part of the defense it is claimed that in these conversations it was arranged that some of the earth should go into the street and around the building', and that the Bottling Oo. should find a place to put the balance of the earth; that Sacks was then to take the earth to a place that it should provide; and it claims that its officers saw-some of the officers of the city, and obtained the consent of those officers that the earth might be put in certain streets of the' city.

At the opening of the case, and perhaps in the testimony of Sacks himself, the plaintiff below offered testimony tending to prove the existence of the custom and usage which was set up in his petition, and sundry witnesses were permitted to testify in regard to that custom against the objection of the defendant, and its exceptions were taken and duly-noted. After the testimony was admitted by the court, fin■ally it came in the testimony of one of the witnesses to a point where this question was asked, which was substantially a question which had been put to several of the witnesses:

“Q. Where a contract for excavating in the city of Toledo provides that the contractor shall do certain filling from the ■excavated material, and that he shall remove the balance of ■the surplus form the premises, without saying to where, teil us whether or not there is any uniform or universal custom in Toledo in the excavating business with reference to the •ownership of such material. (Objected to.)
“The Court — I would like to ask counsel on the other side if they propose to offer testimony on this subject?
“Mr. Pilliod — 'We say that it is rulable and in practice among the building trades in Toledo, that when no reservation is made as to the earth excavated, it is then the privilege of the excavator contractor to deliver the earth excavated wherever he sees fit, and to dispose of it as he sees fit; and it is only where the dumping ground is found by the owner that the rule does not apply.
“The Court — In that view of the case, the testimony is immaterial.
“Mr. Pilliod — In view of this, the testimony should be withdrawn from the jury.
“The Court — In view of the statement of counsel the testimony in regard to the subject will be disregarded.
“Mr. King' — It is simply all waived by reason of their admission.
“The Court — It becomes immaterial in view of the admission.
“Mr. King — I don’t see any necessity to withdraw if from the jury.
“The Court — I don’t see that -it matters one way or the other.
“Mr. Pilliod — We desire to except.
“The Court — I have said the matter of custom is immaterial and unimportant. ”

Nothing more was said about the custom until it came to ,the charge of the court. After stating the case, the court stated the issues in this manner to the jury:

“The sole dispute between the parties — and which you must decide from all the evidence in the case — relates to the ownership of the sand and to the alleged appropriation of it by the defendant. It is claimed by the plaintiff that it was agreed between him and the defendant that some of the material excavated from the cellar should be used by him in filling a certain part of the lot upon which the excavation was made, and also the street in front of the lot, and that the balance of material so excavated should be removed or taken away by him from the premises. The plaintiff alleges that under the contract he became the owner of the material which was not used in the filling of the lot and the street; that the defendant refused to allow him to take this surplus material away, and wrongfully appropriated it to its own use, and for these reasons the plaintiff asks in this action that he may recover of the defendant the value of the material that was so appropriated.
“The defendant denies that the contract between them for the excavation was such as is alleged by the plaintiff. On the contrary, the defendant alleges that by the contract the defendant agreed to furnish a dumping ground where the material to be excavated was to be placed, and that it did not furnish such dumping ground, and that the excavated' material was placed thereon, and that no part of such material belonged t® the plaintiff; and for these reasons the defendant says that the plaintiff is not entitled to recover in 'this action for any part of said material.
“These are the claims of the parties upon the one side and the other. If you find from the evidence in the case that the contract was such as is alleged by the plaintiff, then the plaintiff was the owner of the surplus excavated material. If by the contract the plaintiff was required to take away the surplus material, and deposit or dispose, of it however or wherever he saw fit, thereby the defendant relinquished all its rights or title to such surplus material. But, if you find from the evidence that the contract was such as is alleged by defendant, then the plaintiff did not become the owner of the excavated material. If by the contract the plaintiff was required to deposit the excavated material at a place or places designated by the defendant, then the plaintiff had no right to appropriate the material to his own use.
“During the trial of this case the plaintiff offered evidence as to a custom prevailing here in Toledo at the time of this contract, that under such a contract as the plaintiff claimed this contract was, and in accordance with the course of dealings among parties engaged in the excavating business, the excavated material belongs to the excavating contractor. This evidence as to a custom, as I have already said, during the course of the trial, has become immaterial and unimportant, because it is admitted by defendant in the case, that in case such a contract was made as is claimed by the plaintiff, the sand in controversy belonged to the plaintiff, and he had the right to it. Therefore evidence as to a custom is entirely out of the case; and the question which you must determine from the evidence in the case is, What was the' contract that was made between the parties? Was it such a contract as is alleged by the plaintiff, or was it such a contract as is alleged by the defendant?”

And thereupon the court proceeds to state that the plaintiff has the affirmative of the issue,and that the jury should decide from the whole of the evidence.

This chterge of the court was not excepted to, nor, I believe, were any requests made by either party to the court to-make a charge in the case. It is alleged, however, in the petition in error, as one of the grounds for reversal, that there was error in the charge of the court. It was also alleged in the motion for a new trial as a ground for setting aside the verdict, that there was error in the charge of the court. We have read the charge through very carefully, and it seems to us that the presiding judge upon that trial submitted the case fairly to the jury, and that the questions of fact that were in issue between the parties in the case -were fairly and properly submitted to the jury, with proper and appropriate statements in regard to the law, by the trial court.

It is alleged that the verdict is not sustained by the evidence. Indeed, it is claimed that it is directly contrary to the evidence. We have, listened to the 'reading of the evidence, and have read a great deal of it ’/ourselves. It is one of that class of cases where the jury might find one way or the other; that is to say, you might .expect them to find one way or the other. In other words, .the testimony was quite closely balanced, and it is a very ; proper case for the determination of a jury, under all the circumstances of the case — they seeing the witnesses, hearing them testify, having the parties before them. And while it , is possible we might have come to a different conclusion, ■ though I don’t know that we should, nevertheless, the case having been submitted to a jury, it is certainly one of that ■ class of cases where the court is not authorized to interfere. "We cannot say from the evidence that there is manifest error in the action of the jury in that respect; that either the weight of the evidence was against the verdict, or that the verdict was not sustained by sufficient evidence. We therefore decline to interfere with the verdict of the jury.

. . It was claimed here that the damages were excessive. There were computations made at the time of the hearing of the case which, it seems to us, were such as show that the find,ing of the jury was substantially correct. It was agreed before us that at the time the sand was taken, the prevailing price in Toledo was $2 per cord, and that it was worth that. That price would amply cover the amount allowed by the jury for the sand, and probably would exceed it.

It was suggested that in the verdict that was given inter-' est was allowed, and it was claimed by counsel that such interest ought not to have been allowed by the jury upon the amount that they found to be due. We do not agree with .counsel in that respect. There was testimony tending to prove that at the time Mr. Sacks went to the office to get his pay, a check was drawn, but that check was drawn for $600 only, and the clerk or person in charge at the time, who transacted the business, required of Mr. Sacks that he should give a receipt for $648, the amount of his original bid, in full of that debt and of all claims that he had upon the d'efendant company. He refused to do that. The check laid on the table. Tender was never made of the full amount; that the jury found to be due, and the tender ■ that' was' made, if there was a tender, was never kept up.; I believe • there was an offer to confess judgment, but that offer was-for $600 only. We see no reason why the statute should not apply which allows interest upon sums which become due. and unpaid.

T. J. McDonnell, J. E. Pilliod, for the plaintiff in error.

King & Tracy, for defendant in error.

There was considerable argument about this question of custom, and many authorities were cited by counsel on both. sides; but it looks to us as though, in the light of the ; admission by one of defendant’s counsel, in open court, that there was such a custom, and in view of the contract such as plaintiff claimed that he made, it would entitle the plain-, tiff to the surplus earth.

There were questions arising in this case that were not, made in the pleadings that were discussed at some length • by ourselves; but inasmuch as they were not made in the. pleadings, nor argued by counsel, we will not refer to them...

The judgment of the court of common pleas will be af- ■ firmed, but without any penalty. Exception will be noted.;


author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1893.)
    Before Smith and Swing, JJ.
    LOUISA E. AYDELOTT et al. v. THE CITY OF CINCINNATI et al.

      Street railway legislation — Publication of notice — Aline may “fork” . ivithout becoming tivo routes — The making of an existing line , part of a new route.

    Appeal from the Court of Common Pleas of Hamilton ■ County. ............
   Smith, J.

The question submitted to us is; whether an injunction should now issue in this case against- the city of Cincinnati, restraining it until the further hearing of the case from taking any action in the proceeding now pending for the estab- ■ lishment of street railroad route, No. 25.

One of» the claims of the plaintiff is, that the ordinance under which said proceeding is being prosecuted, and which purports to have been passed December 20, 1892, was wholly invalid, for the reason that no proper and legal notice of an application for said route had been published for three consecutive weeks prior to the passage of such ordinance, as it is claimed is required both by the general ordinance of the city, passed February 7, 1879, (Coppoek & Hart’s Ord. 528) and by sec. 2502, Rev. -1 t.

It is conceded, as we understand, by the corporation counsel, that an application was made by Johnson and his associates to the city authorities, for the establishment of a street railroad route to be known as No. 25, on a particular line therein named, and due and legal notice was given of this application; that subsequently this application was amended and changed as to some part of the route, and due notice was given of this amended application, and as-'to a second amendment to the original application. But then followed another amendment to the application, and as to this no notice whatever was given prior to the passage of the ordinance of December 20, 1892, which is the ordinance in question in this case, and which purported to establish route No. 25, as applied for in the several applications, and on the route as shown by them as finally amended, and which further prescribed where the tracks were to be constructed, and where said route should be operated upon tracks already constructed, and prescribing also the manner in which said tracks were to, be constructed, and the terms and conditions upon which said route should be operated; and said ordinance further provided, that sealed proposals should be advertised for to construct and operate said road at the lowest rates of fare," in accordance with the terms, conditions and stipulations of s.uch ordinance. Such advertisement has been duly made,' and bids under the same are' to be received until March 3,1 1893.

. It is manifest, from what has been said, and from a read-1 ing of-the general ordinance of February 7, 1879, that its provisions as to the publication of the notice of the application in this case as finally made, have not been complied' with. But as the board of administration and the board of legislation of this city constitute the legislative body of the city, and can at pleasure alter or repeal any ordinance merely providing for the manner in which this legislative power is to h; i-vorcised, they were authorized, as we think, to waive1 or ignore such regulations, and by special legislation in a par-' ticular instance, enact a legal and valid ordinance which they have power to enact, though the same may not have been done in the particluar mode or manner .prescribed by an existing ordinance, which they might at any time have repealed. As was said by Judge Longworth, in the decision of the case of the State v. Henderson, 38 Ohio St. 649, “The ordinance is passed by council under a self-imposed rule contained in their own general ordinance, which they are at liberty to change or repeal at any time.”

' But a more difficult and troublesome question arises when we come to the consideration of the construction to be placed on sections 2501 and 2502, Revised Statutes, and whether, under those, it was absolutely necessary to the legality of the ordinance of December 20, 1892, that notice of the application for the establishment of this route should have been published for three consecutive weeks prior to the passage,thereof. If it was, and it is conceded that it was not so done, it would seem to follow that all of the proceedings based on such application would fall. ^

Tbe two members of this court who heard the application, for the injunction are not entirely.'agreed as to the construe- - tí on which should be. placed on these two sections. Judge Swing is of the opinion that, under the provisions of section-2502, that “no ordinance for the purpose specified'in said preceding section (2501) shall be passed until publication of the application therefor has been given’-’ as provided, contemplates such publication before any attempt is made by the officers of the city to point out the route contemplated, of to invite proposals for the construction thereof; that such has been the practice hitherto, and seems to be sanctioned by the decision of the Circuit Court of Sixth Circuit, in 7th Circuit Rep. 84. Such unquestionably has been the former practice. Indeed, it was provided for by the general ordinance of this city, as we have seen, and may have been the requirement of the statutes of the state as they were before the law was enacted in its present shape, March 20, 1884. But I incline to the view that under the statutes as they now read the publication referred to is not an essential prerequisite to the passage of an ordinance like that of December 20, 1892, but that it is to be made after bids therefor have been obtained and the lowest bidder ascertained, and application is made by the successful bidder for the grant and leave to proceed with the work. Such an application is expressly provided for by section 2501; and section 2502, after expressly providing that “no ordinance or resolution,” (for this preliminary action may be by resolution, while the final grant must be by ordinance), “to establish or define a street railroad route, shall be passed, and no action inviting proposals to’ ’construct and operate such railroad shall be taken by thelconucil except upon the recommendation of the board of |public^works in cities” — (in this city now by the board of administration) — which recommendation' was duly made for this ordinance of December 20, 1892, and the only requisite*to the passage. Of such ordinance complied with ;-for tbe further and following provision of section 2502 is, “that no ordinance for the purpose specified in said preceding section” (2501) — that is, making the final grant to the lowest bidder, fixing the terms and conditions, etc., and the route thereof — shall be passed until public notice of the application therefor has been given, as. specifically provided for. And it would seem that a notice then given, when all the terms and conditions and the route itself are definitely established, and it is known who is the lowest bidder, would better accomplish the object contemplated by the statute than one given at an earlier stage of the proceeding, and allow all persons interested in the matter to present to the city authorities their reasons for or against the passage of the final ordinance.

But whether the one, or the other, of these constructions is correct, (and it must be conceded that the statutes are vague and ambiguous), we agree as to this: that if the notice of the application is to be given before the passage of the first ordinance or resolution, to merely establish or define a route, and inviting proposals for the construction thereof, on certain terms, that it is not so far jurisdictional in its character as to make the first ordinance or resolution invalid if notice is not given, and that if such notice is given before the passage of the final .ordinance, that this will be sufficient; and if not so given, the final ordinance would be invalid.

It is further claimed by counsel for the plaintiff, that the provisions of section 6 of this original ordinance, passéd December 20, 1892, as to a percentage to be paid to the city by the lowest bidder, of 2-| per cent, of the gross earnings of such grantee, of other lines operated by such grantee in connection with this line, makes an unfair and unjust discrimination against persons or corporations who might wish to be bidders for route No. 25 in this: that if such person or corporation should be tbe lowest bidder therefor, and the grantees of such route are now or should hereafter be .the .owners of or engaged in operating other lines of. street railroad, and should operate this route in connection with any other line so operated by such grantees, for the fare authorized by the ordinance granting said route No. 25, that such gantees would be bound to pay to the. city not only the 2-|- per pent, of its gross earnings from any source of route No. 25, but also, in addition thereto,, (except in a certain contingency. provided for,) 2|-per cent, of the gross earnings of .all their connecting lines at any time operated in connection with said route No. 25 for the fare authorized to be charged over route No. 25.

It is argued by the corporation counsel that this is not the meaning to be given to the language used in the ordinance. As to this, it may be said that, in our judgment, it is open .to this construction, and if the ordinance had required that the grantee of route No. 25, if the operator of other lines that might be used in connection with this route, should be so used, and for the one fare provided for route No. 25, it would seem clear that this, in effect, would make distinctions between bidders, and would impose burdens on those operating other lines which might be used in connection with this, which could,not rightfully be thrown upon them, and that it would be against public policy to allow this to be done.

. But it seems to us that a sufficient answer to this claim of the plaintiff is, that the ordinance does not require such .other lines as might be used in connection with this to be so used, and for the same fare. If the grantee of route No. 25 should now or hereafter, operate such other lines and see proper, of his own accord, to operate them in connection with this and .for the one-fare, this is voluntary, on his part,, and jt. would seem that no one is authorized to complain of such .a*provision..,,.,■ i , . „ .- , ,

Many other objections are made to this. proceeding. Among them are these:

1. That the boards of the city exceeded their jurisdic'i tion in establishing said route over private • property not a highway.

2. That they exceeded their jurisdiction in attempting to establish a railway system of more than one route in this one ordinance, and in making provisions therein in violation of law in the matter of the part of the route, which, when constructed, could thereafter be used in the establishment and construction of new routes: and,

3. That the ordinance was not signed by the mayor, as is required by law, and that it was not passed in conformity with the statute of the state.

In view of the fact that, under the circumstances of the case, there should be an early decision of the question submitted to us, we can not discuss these objections fully. We are of the opinion, however, that the claims made are not well founded. We think the ordinance in question was valid without the signature or approval of the mayor, and that it was regularly and legally passed; that the ordinance was not invalid as establishing or proposing to establish, more than one route; that the fact that at a certain point it forked and one branch took a westerly and the other a northwesterly direction did not destroy the unity of the route, or make it two diverse and different routes; that the fact that for a part of the way the line may not have run over many of the' streets or alleys of the city did not make the route illegal, particularly in view of the fact shown by the evidence that since the passage of the ordinance a grant has been made of the private ground proposed to be used for a right of way for such street railroad over the same, and that, like consents of the owners of the property, may be made at any time before the passage of the granting ordinance.

The' petition, as we' understand it, is filed by plaintiffs'’as owners of property abutting on some part of the liiié ' proposed for the route, and as taxpayers; to enjoin the city from the abuse of its corporate powers. As to some of the objections urged, it is doubtful whether these plaintiffs, either as owners of abutting property or as taxpayers on behalf of the city, have such interest or'rights as to entitle them to maintain the action, but the decision is not put upon this ground.

Kittredge, Wilby & Simmons, Paxton & Wa.rrington and J. J. Glidden, for plaintiff in error.

Theodore Horstman, for the city.

We feel constrained, therefore, to refuse the injunction as prayed for at this time. Should the city authorities attempt to adopt the final ordinance making a grant and finally establishing the route without the publication found to be essential, an injunction would be granted against such action. Of course, the case stands on the docket of the court, and further application for an injunction can be made if it becomes necessary.


author: Scribner, J. '

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Sept. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    FRANK E. WEBER and G. ALEXANDER WEBER v. ANNA WIGGINS.
    1. A motion for a new trial, based upon the ground of newly discovered evidence, is addressed largely to the discretion of the trial court; and the judgment of that court overruling such motion will not be disturbed unless it clearly appears to be erroneous.
    2. Ordinarily, a general exception to a charge of the court given upon the trial of a cause to a jury, will not avail the party excepting. The exception should specifically point out the portion of the charge excepted to.
    3. Where partners are prosecuted under sections 4357 and 4358 of the Revised Statutes, by a wife for furnishing liquor to her husband in violation of the statute, a person not in fact a partner is not liable to the plaintiff, although he may have permitted himself to be held out as a member of the partnership.
    Error to the Court of Common Pleas of Lucas County.
   Scribner, J. '

On the 27th of December, 1893, Anna Wiggins, the defendant in error, commenced an action in the Court of Common Pleas of Lucas county against Alexander Weber, G. Alexander Weber and Frank E. Weber, under secs. 4357 and 4358 of the Reyised Statutes of Ohio. I will read the material portions of those sections bearing upon the questions presented:

“Sec. 4357. Every * * wife * * injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall, after the giving and during the existence of the notice provided for in the next section, have a right of action in * * her own name * * against any person or persons who, by selling or giving intoxicating liquors, have caused the intoxication, in whole or in part, of.such person. * * '*
“Sec. 4358. Such * * wife * * liable to be so injured by any sale of intoxicating liquors to any person, and desiring to prevent the sale of intoxicating liquors to such person, shall give notice either verbally or in writing, before a witness, to the person or persons so selling or giving the intoxicating liquors, * * or file with the township or corporation clerk in the township or municipal corporation wherein such intoxicating liquors may be sold, notice to all liquor dealers not to sell to such.person any intoxicating liquors from and after ten days from the date of so filing such notice.”

An amended petition was filed July 14, 1894, and on the 25th- of September, 1894, this amended petition was again amended by interlineation. The plaintiff averred in her petition so amended that ever since the 13th of July, 1871, she had been the wife of one William L. Wiggins; that on or about the 9th day of October, 1893, and on several occasions afterwards, the defendants sold or gave to her husband quantities of intoxicating liquor, whereby her said husband became intoxicated; that he was a person in the habit of becoming intoxicated at the time he was furnished with said liquors; that the defendants then had knowledge of his hab it in this regard, and that they- thereby kept' 'her said husband intoxicated. She averred that omthe 21st of September 1893 she filed 'with the city clerk of ¡the city of Toledo a' notice in writing, which is still on file with said' clerk, to all' liquor dealers in said city'of Toledo,- not to sell to her said' husband intoxicating liquors; that by reason of said habit' her hu.sband squanders all, or nearly all, .of his earnings in intoxicating liquors, leaving the plaintiff and her children wholly.destitute of the necessaries of life; that he can and. does 'earn good wages, sufficient' to provide comfortable support for himself and his family; that' by reason of his said habit she is compelled to go. out to -service to earn the means of supporting herself and her children. She also alleges that when her husband is intoxicated he is brutal and abusive to her and his family, and uses abusive and profane' language in the presence of herself and their children; and. that by reason of the premises she has been injured in her means of support. She further alleges that she gave personal notice to the defendants about November 14, 1893,. similar in character to that above mentioned.

The defendant, Alexander Weber, by separate answer denied each and every allegation-in the petition. The defendants, G. Alexander Weber and Frank E. Weber, admit that they were partners in business under the firm-name of Alex.' Weber’s Sons,- engaged in the business of selling groceries, tobaccos and -liquors, and were so- engaged on the 21st day ef October, 1893, and have been ever since said time; but they deny all the other allegations of said petition.

■The case was tried to the court and a jury at the January term, 1895, of the court of-common pleas, and resulted in a verdict for the- plaintiff of'$300. A motion for 4 new trial-was-filed by the defendants, alleging numerous grounds-' for -setting aside the verdict;- ■ Upon the- hearing of this-motion- at the same January term, dhe -court, being of 'the opinion -that the verdict was 'excessive' and -should be modi'•fied in part, the plaintiff by her counsel entered a remittitur ■of the sum of $195, .and the court thereupon overruled the 'motion as. to Alexander Weber and G. Alexander Weber, ■and rendered judgment upon the verdict as to these defendants for the sum of $105, and interest thereon from- February 11, 1895, and plaintiff’s costs. As to. the defendant, Frank B. Weber, a new trial .was granted. .The defendants, Alexander Weber and G. Alexander-Weber, excepted to the ruling of the court, and in- due time took and filed their bill -of exceptions.

Among the grounds- alleged in support of the motion for a new trial was this: ‘ ‘ For newly discovered - evidence material to the defendants’ cause, which could not have been discovered with reasonable diligence and produced at the trial.” In support of this allegation numerous affidavits were filed and read upon the hearing of the motion. These were met by counter affidavits. These affidavits are attached to the bill of exceptions, but it is quite doubtful whether they can be regarded as part thereof. The language of the bill of exceptions, so far as these affidavits are -concerned, is as follows: “In.support of said motion (for a new trial) defendants filed sundry affidavits, which are hereby made a part of said motion, and plaintiff by her counsel filed other affidavits to maintain.the issues on her part with reference to said motion, which are likewise made a part of said proceeding.” This is all the bill of exceptions contains on the subject. Ordinarily, we would understand this language to imply that the affidavits -were made a part- of the motion filed for a new trial, and not a part of the bill of exceptions. However this may be,: motions for- a new trial based upon newly discovered evidence are usually addressed largely to the discretion - of the trial court, and - that .court having passed upon ,t-he.. case' in all-its aspects,->-we are.not disposed to interfere, with its action, especially as we s.ee no ground for such interference. , a ¡,, .

These defendants also assigned in their motion for a new trial this ground: “The court erred in charging the jury.’’ We find no exception noted to the charge of the court except one in this general form: “To each and every of which defendants, Alexander Weber and G. Alexander Weber, by their counsel, then and there severally and separately excepted.’’ This is to be regarded as an exception to the charge as a whole, and not an exception to any particular or specific part of a proposition given to the jury by the court. We have carefully examined the charge, and find that it contains no error.

It has been before stated that the defendant, Alexander Weber, by his answer positively denied all the allegations of the petition. An examination of the record satisfies us that the allegations of this answer are true; and that the plaintiff entirely failed to make a case against him. There was testimony tending to show that his name appeared upon one of the signs attached to the building in which the firm was doing business, as a partner; there was also evidence tending strongly to negative this claim. But even if he had permitted his name to be used, and so held himself out as a partner when in fact he was not a partner, this would not create a liability in this case as to him as a partner. As to him, therefore, were it not for the difficulty hereinafter mentioned, the judgment should be reversed and a new trial granted. The defendants, G. Alex. Weber and Frank E. Weber, who were the partners carrying on the business, do not in their testimony deny that the husband was at their place of business. They admit that they were advised of the filing of the notice with the public authorities by the plaintiff, as by her alleged; but they claim that they did not know that the person who obtained liquor from them as charged was the person named in the notice. This cannot avail as a defense. It does not appear that the defendants made the slightest ef1-ort to obtain information on this point. Under these circumstances, ignorance affords no sufficient excuse. The defendants acted at their peril. Besides, it sufficiently appears from the record that the jury were warranted in finding from the testimony that the defendants knew the husband, and were acquainted with his habits.

James K. Pit Hod, for plaintiff in error.

C. S. Curtis, for defendant in error.

The petition in error in this case was filed by Frank E. Weber and G. Alex. Weber. The record shows that as to Frank E. Weber a new trial was granted by the court of common pleas. He is not therefore a proper party to the petition in error, as no judgment was rendered against him; and as to him the petition in error must be dismissed, leaving it to stand as to G. Alex. Weber. Alexander Weber is not a party to the proceeding in error. We are of the opinion, as before stated, that as to him the judgment should be reversed and a new trial granted; but we are powerless to act in his behalf, for the reason before stated; that he is not before us as a plaintiff in error. We would permit him by amendment to join in the proceeding, did not the record show that final judgment was rendered by the court of common pleas on the 18th day of March, 1895, more than six months since. The period within which a petition in error may be filed has therefore expired, and it is too late for him to seek relief by petition in error.

It follows that the judgment of the court of common pleas must be affirmed, with costs, but without penalty; and such is the judgment of this court.