text:
    EXECUTORS AND ADMINISTRATORS.
    [Hamilton. (1st) Court of Appeals,
    July 26, 1913.]
    Swing, Jones and Jones, JJ.

      Isaac Bates, Admr. v. Jerome D. Creed, Admr. et al. (Three Cases.) Jerome D. Creed, Admr. v. Isaac Bates, Admr. (Three Cases.)

      1. Commissions Required to be Apportioned Between the Original and Succeeding Representatives of Intestate’s Estate.
    The commissions fixed by Sec. 10837 G. C. for executors and administrators is in contemplation of law in full payment for all ordinary services rendered; hence, when it becomes necessary that an administrator de bonis non should be appointed to complete the settlement of an estate, the commissions should be equitably apportioned between the original and succeeding representatives of the estate in proportion to the value of the services rendered by them respectively.
    2. Election not Presumed From Securing Riders to Policies to Protect Interest of the Dower of Testatrix.
    Election by a widower to take under the will of his deceased wife is not implied from his securing attachment of riders to insurance policies on properties of the estate, expecially since the riders were not in the nature of assignments of policies.
    3. Receiving Rents on Life Estate by Widower no Implication of Election to Take Under Will.
    Receiving rents on a building in which a widower is granted a life estate under the will of his deceased wife cannot be deemed, after his death, an election to take under a will by implication, there being no other person to make such collection. The fact that he signed rent receipts as executor and deposited the moneys in his individual account but used no part for his personal use does not change the conclusion stated.
    4. Acquiescing in Collection of Rents on Property by Agents of Devisee not Implication of Election of Widower Under Will.
    Acquiescing in the collection of rents by agents of a devisee under a will does not imply an election by a widower of testatrix to take under her will, especially since, regardless of the question of election, there was ample personal estate to meet all debts, and if he declined to accept the provisions of the will his only interest therein would be that of dower.
    5. Quitclaiming Interest in Property of Estate Precludes Implication of Election to Take Under Will.
    A widower’s execution of a quitclaim deed of property devised to a humane society by his widow argues an election not to take under her will rather than an election to take.
    Appeal and. Error.

      William Worthington, Willis M. Kemper and liohert 8 Fulton, for trustees for Colored Industrial School and for Jerome D. Creed, Admr.

      Healy, Ferris & MeAvoy, for Isaac Bates, Admr.

      W. C. Cochran, for National American Woman’s Suffrage Assn.

      Affirmed, Colored Industrial School v. Bates, 90 O. S. 288.

   JONES, O. B., J.

These six eases were heard together, as they all related to matters concerning the settlement of the estate of Sallie J. McCall. who died testate March 6, 1909. On March 25, 1909, her husband William A. McCall was appointed and qualified as her executor. In September, 1909, William A. McCall remarried, his second wife being Mary A. McCall, and upon September 9, 1909, he died intestate and childless. On September 16, 1909, Isaac Bates was appointed administrator of the estate of William A. McCall. On October 15,' 1909, Jerome D. Creed was appointed administrator of the estate of Sallie J. McCall with her will annexed. On February 21, 1910, Isaac Bates as administrator of William A. McCall filed an account of the latter as executor of the will of Sallie J. McCall. On March 12, 1910, exceptions to this account were filed by Creed as administrator, and by Frank J. Jones and others, legatees under the will.

On March 29, 1910, before these exceptions had been disposed of, Isaac Bates as administrator of William A. McCall filed his petition in Hamilton common pleas court, No. 145181, against Creed as administrator with the will annexed and the beneficiaries under the will of Sallie J. McCall, alleging that William A, McCall during his lifetime had made no election of record to take under the will of Sallie J.. McCall; that the debts of the estate had been paid by McCall during his lifetime and that it was ready for distribution which he, Bates, as administrator of the deceased executor, was willing and ready to make, and thereupon be asked the advice of the court as to how this distribution should be made.

On June 29, 1910, the probate court disposed of the exceptions' to the account filed by Bates as administrator of William A. McCall, the deceased executor, and settled that account. Bates took exceptions to this settlement and gave notice of appeal. Afterwards he perfected this appeal and that cause came into the court of common pleas as No. 146011. At the same time he filed a petition in error which was docketed in the court of common pleas as No. 146010. On December 30, 1912, judgment was entered in the appeal cause modifying the order of the probate court; on a motion for a new trial this judgment was modified on March 3, 1913. To the judgment as thus modified a petition in error has been filed by Creed as adminis trator, which is cause No. 49 ou the docket of the court of appeals.

Cause No. 145181, being that brought by Bates asking for instructions, resulted in a judgment rendered! by the court on March 4, 1911, instructing him that his only duty in the premises was to turn over the assets of the estate of Sallie J. McCall to Jerome D. Creed, the administrator of that estate, and that he, Bates, as the administrator of the deceased executor, had nothing to do with the distribution of the estate of Sallie J. McCall. To this judgment Bates as administrator prosecuted both error and appeal; the appeal case being docketed as No. 5368, and the error case as No. 5388, in the circuit court. Mary A. McCall, the widow of William A. McCall, also prosecuted an appeal in this case and her appeal is docketed as No. 5369 in the circuit court.

Ou June 3, 1911, Jerome D. Creed, as administrator of the estate of Sallie J. McCall with her will annexed, filed his petition in the court of common pleas, docketed there as case No. 148025, alleging that Mary A. McCall, the widow of William A. McCall, claimed that he had not elected to take under the will of Sallie J. McCall prior to his decease and therefore that she as the sole distributee of William A. McCall was entitled to one-third of the estate of Sallie J. McCall, his first wife, which claim was disputed by the legatees under the will; and that other questions had arisen upon which he needed the advice of the court, and thereupon he prayed the court to instruct him as to his duties. The Colored Industrial School, the principal legatee under the will of Sallie' J. McCall, filed a cross bill in this cause alleging that William A. McCall had as a matter of fact elected to take the provision made for him by the will of his first wife, Sallie J. McCall; and this claim was disputed by answer of both Isaac Bates as administrator of William A. McCall, and Mary A. McCall, his widow.

Judgment was rendered in it on December 16, 1912, declaring that William A. McCall had not elected to take under the will and giving instructions as to distribution. From this judgment Creed as administrator prosecuted an appeal, docketed as No. 5788 in the circuit court; and the Colored Industrial School also prosecuted! an appeal, docketed as No. 5795 in that court.

The first question that presents itself is, the duty of Isaac Bates as administrator of William. A. McCall, deceased, executor of Sallie J. McCall, with reference to her estate. Upon the death of an executor or an administrator it becomes the duty, by virtue of Sec. 10631 G. C., of the probate court to grant letters of administration with will annexed to some suitable person to administer the goods and estate of the deceased not administered, and by virtue of Sec. 10634 this administrator becomes at once entitled to the possession of the personal effects and assets of the estate unadministeredi, and it becomes his duty, under Sec. 10638, to file an inventory of such estate unless in the opinion of the probate court it should not be necessary, and he then proceeds to complete the adlninistration of such estate in accordance with law.

In the estate of Sallie J. McCall, Jerome D. Creed has been appointed such administrator de bonis non with will annexed, and upon his qualification he thereupon became charged with the duty to take possession of the assets of that estate then unadministered and to proceed with the final administration of the estate.

Under Sec. 10822 G. C., it becomes the duty of Isaac Bates as the administrator of William A. McCall to render a final account of said McCall’s administration as the executor of Sallie J. McCall, deceased, within six months after his appointment and it was his duty to turn over to Creed as administrator de bonis non all assets corning into his hands belonging to the estate of Sallie J. McCall subject only to the payment of proper commissions and fees to which decedent might be entitled as executor. In the opinion of this court the court of common pleas made an excessive allowance to said Bates as administrator of William A. McCall, deceased, on account of such executor’s fees. In contemplation of law the commissions fixed by Sec. 10837 G. C., for executors and administrators, are to be received by them in full compensation for all their ordinary services. When by reason of the death of the original executor or because of his resignation or removal, it becomes necessary to have an administrator de bonis non succeed him, or for any reason successive administrators are appointed to complete the administration of one estate, it is not intended that the costs of administration should thereby be increased, but the statutory commissions should be equitably apportioned between or divided among the successive executors and administrators in proportion to the value of the services rendered by them respectively in such administration. The ordinary rule is that where there are two such successive officers that the funds allowable for compensation should be equally divided unless the work performed is unequal, and the rule is that one claiming more than such equal proportion must show the reason for such allowance. The work performed by William A. McCall in the settlement of his wife’s estate was comparatively small but was all that any executor would naturally have done during the same period. He had secured the probate of the will, obtained letters testamentary thereunder, made publication and notice of his appointment, taken and filed an inventory of the estate, paid the funeral expenses and all claims against the estate except' one doctor’s bill, which is in the hands of the administrator de bonis non. He had himself filed no account, but Bates as his administrator has filed such an account for him and must make settlement with the probate court on his behalf.The duties of Mr. Creed as administrator de bonis non are correspondingly light considering the size of the commissions; he had already filed an inventory o.f the estate; will have to settle the income tax; pay the doctor’s bill if it is a valid claim against the estate; file his final account; and make distribution of the estate.

Upon consideration of these respective duties the court is of the opinion that the statutory commissions should be divided equally between the estate of William A. McCall and his successor in the administration of the estate of Sallie J. McCall. And in figuring this statutory compensation commissions are to be taken upon all of the moneys and personal estate coming into the hands of said executor and said administrator de bonis non.

The only services rendered by the counsel of Isaac Bates as administrator of William A. McCall, deceased, with relation to the estate of Sallie J. McCall, for which compensation can be paid out of said estate, are those relating to the preparation and the filing of the final account in such estate on behalf of William A. McCall, the deceased executor. The allowance fixed by the court of common pleas is considered by this court excessive. This court is of opinion that an allowance of court excessive. This court is of opinion that an allowance of seven hundred and fifty dollar's would be a sufficient and proper amount to pay for all the services rendered by said counsel to the estate of Sallie J. McCall, and that amount is allowed to be paid out of said estate. In fixing this amount the court is of opinion that the other valuable services rendered by distinguished counsel to Isaac Bates as administrator, have been with reference to the estate of William A. McCall, and should be paid from his estate and not from the estate of Sallie J. McCall.

The claim made by Isaac Bates as administrator, that he should retain all such part of the estate of Sallie J. McCall, deceased, as might be distributable to William A. McCall, can not be allowed. It might be in such an administration that all of the personal estate might be consumed in payment of debts and expenses of settlement. The amount of the estate for distribution can not be determined until final settlement of such estate, and for that reason it is provided by law, under the sections above referred to, that it is the duty of the administrator to take possession of the entire estate and make complete settlement before such distribution can be had.

The main question presented for determination is whether William A. McCall did elect by his conduct to take under the will of his first wife, Sallie J. McCall.

It is agreed that no citation was issued by the probate court as provided for in Sec. 10566 C. C. (R. S., 5963, as it stood at the time of the death of the testator), and he never made any formal election in accordance with the terms of Secs. 10570 G. C., et seq. The record shows that he had advised with Mr. Strunk, his attorney, in regard to the matter of election, and had it under serious consideration, but that he had expressed himself as unwilling to decide whether or not he would elect, just before taking the final journey which preceded his death. He had been advised that he had one year from the time of citation within which to decide as to his election, and that when he did elect his election would be made before the probate judge and record would be made thereof in the court, There is nothing in the record to show that he had been advised that any action he might take with reference to the property left by his wife might be construed to constitute an election under the will. It is urged, however, that certain acts did in fact constitute such an election by him. Those most, relied on are:

1. That he received rentals from the Fourth street property in which under the will he Aras given a life estate.

2. That he secured the attachment by agents for different fire insurance companies of “riders” upon the insurance policies.

3. That he occupied the Avondale homestead after the death of Sallie J. McCall, up to the time of his marriage..

4. That he acquiesced in the collection of rents of the Andover Building by the agents for the Colored Industrial School.

5. That be executed a quitclaim deed to the Ohio Humane Society for the Clinton street house.

1. As to the collection of the Fourth street rents there was no other person interested in the matter who would collect the rents if ho did not. He signed rent receipt's as executor and while he deposited the moneys in his individual account and not in an account as executor, he had in that account at all times a very much greater sum than the total of these rentals and it is not shown that he ever used any part of them either for his personal use or for the purpose of the estate.

2. As to the riders on the insurance policy. In the insuranee policy on the Andover Building at Plum and Longworth an endorsement or rider was attached to the policy as follows:

“Cincinnati, May 17, 1909.
“It is hereby understood and agreed?that the title of the within described property is now vested in the name of the Trustees of the Colored Industrial School.”
This rider was signed by the agent and marked with the number of the policy. This was secured by Mr. Stark acting for the trustees. It is questionable whether it would be construed as an assignment of the policy. It is not the form which should have been used for that purpose. The endorsement on the policy covering the Eighth street property was as follows:
“Cincinnati, 0., May 24, 1909.
“It is understood and agreed that William McCall has a life interest in the within described property, and loss, if any, shall be payable to him, as his interest may appear.”

This was marked with the policy number and signed by the agent. This was attached to the policy at the request of Mr. McCall who desired his interest protected. It is not in the form of an assignment of the policy, and was evidently prepared by the agent as a protective measure for the benefit of Mr. McCall, and was of doubtful value for that purpose. So. far as it relates to the matter of election, it can have little probative force.

4. There is nothing in the fact that the agent of the Colored Industrial School was permitted to collect the rents of the Andover Building without objection by Mr. McCall. He had no right to interfere in such collection whether he elected to take under the will or not, as there was an ample personal estate to meet all debts, and if he declined to elect to take under the will his only interest in that property would be a dower interest which would not entitle him to the management of the property or the collection of its rentals, but could only be asserted by him by proceeding? for assignment of dower under Sec. 12005 G. C.

5. As to the Clinton street property, his conduct in conveying it by quitclaim deed to the Ohio Humane Society argues against rather than for an election to take. He certainly must have been deemed to have some estate, which doubtless was his dower interest which was carried by this deed. Of course if he had elected to take under the will he would hold no interest whatever in this Clinton street property, and the record shows that the attorney who was passing on the title as to whether he should give a quitclaim which would carry all his interest by way of dower or instead file a formal election in the probate court to take under the will. He declined to do the latter, but instead gave the deed.

The court is therefore of the opinion that no act of "William A. McCall is shown in the record udiich would authorize it to find that he had in fact elected to take under the will. But under the terms of Sec. 10571 G. C., he must be deemed to have elected not to take under the will but to have that portion of his wife’s estate given to him under the law. The court therefore finds that William A. McCall is entitled to receive out of the estate of Sallie J. McCall one-half of the first $400, and one-third of the remainder of her personal estate. ■

Having found that William A. McCall has not elected to take under the will, his estate is not entitled to the rentals received from the Fourth street property, which amount to $2500, and the court is of the opinion that under the doctrine of acceleration the trustees of the Colored Industrial School became entitled to the Fourth street property at once upon the refusal of William A. McCall to accept the provisions of the will and said trustees are therefore entitled to receive the rentals thereof from the date of the death of Mrs. Sallie J. McCall. Macknet v. Macknet, 24 N. J. Eq. 449; Jull v. Jacobs, L. R. 3 Ch. Div. 711; Baptist Female University (Tr.) v. Borden, 132 N. C. 476 [44 S. E. Rep. 47]; Marvin v. Ledwith, 111 Ill. 144. This rule is recognized in Millikin v. Welliver, 37 Ohio St. 460; Holdren v. Holdren, 78 Ohio St. 276 [85 N. E. Rep. 537; 18 L. R. A. (N. S.) 272].

■ Having found that William A. McCall failed to elect to take under the will of Sallie J. McCall, the Avondale home and the household goods therein which had been given to him under the terms of the will, must be sold by the administrator de bonis non and the proceeds applied for the benefit of the disappointed legatees whose share might be reduced by reason of such nonelection.

The question remains as to what legatees are affected by reason of such noneleetion. The court is of the opinion that the intention of the testator under item 13 was that all of the specific bequests named in her will should be discharged and paid before the bonds owned by her and the remainder of the stocks owned by her at her death should go to the trustees for the Colored Industrial School, item 13 taking the form in that respect of a residuary legacy. The bequests therefore made to testator’s cousins, to the National American Woman’s Suffrage Association, and to the other beneficiaries other than said trustees for the Colored Industrial school should therefore be paid in full out of the proceeds of stocks belonging to said estate, provided such stocks are sufficient, as apparently they will be, to make up the full amount of said legacies after the estate of William A. McCall has been paid the amount that it will receive under the terms of this decision.

Bates v. Creed, Nos. 5368 and 5369, are appeal cases, and judgment will be entered therein to the effect that the administration of the estate of Sallie J. McCall must be completed by her administrator de boms non and not by the administrator of her executor.

Bates v. Creed, No. 5388, is an error case relating to the same matter, and should be dismissed.

Creed v. Bates, Nos. 5788 and 5795, are appeal cases in which' the decree should provide that William A, McCall did not elect to take under the provisions of the will of Sallie J. McCall, and her estate should be distributed as aboye decided.

Creed v. Bates. No. 49 Hamilton eourt of appeals, involves the settlement in the probate eourt, and the allowance of executor’s commissions and counsel’s fees should be ordered therein as above found.

Swing and Jones, E. H., JJ., concur.


source: Caselaw Access Project

author: GORMAN, J,

license: Public Domain

text:
    ERROR — PLEADING.
    [Hamilton (1st) Court of Appeals,
    November 15, 1915.]
    Jones, Jones and Gorman, JJ.
    P. C. Bertram v. Theobald Munford Co.
    Court Striking from Files Answer Filed by Leave Because Motion Pending for Default Abuses Discretion.
    A court abuses its discretion in striking from the files an answer which was filed by leave, where no ground for so doing was shown except that at the time the answer was tendered and leave to file granted, a motion was pending for a default judgment and the answer set up only a general denial.
    Error.

      Reece & Reece, for plaintiff in error.

      Cogan, Williams & Raglamd, for defendant ip error.
   GORMAN, J,

The record in this case discloses that an action was commenced by defendant in error before a justice of the peace to recover for goods sold and delivered, that judgment was rendered in favor of defendant in error and an appeal from said judgment was taken by plaintiff in error and a transcript filed in the common pleas court on December 26, 1913. On February 4, 1914, the defendant in error being in default filed a petition on appeal. On June 27, 1914, the plaintiff in error being in default asked and obtained leave to file an answer which was a general denial. Two days later, on June 29, 1914, defendant in error filed a motion to strike the answer from the files and for judgment. No grounds are set out in the motion for this action. On July 2, three days after the filing of said motion, the court granted the same, and the entry recited that it appeared to the court that at the time defendant tendered his answer and asked leave to file the same, a motion was pending on behalf of plaintiff for a default judgment, and it appearing to the court that said answer is a general denial, the court finds said motion to be well taken.

The entry granting leave to file the answer was set aside, and the answer stricken from the files.

On the same day, by a separate journal entry, the court entered judgment by default against plaintiff in error, defendant below. Exceptions were taken by plaintiff in error to these proceedings, hnd the cause is here on error to said judgments.

We think the court of common pleas erred in striking the answer of plaintiff in error from the files. No cause is ,shown for such a proceeding. The defendant below had secured leave of court to file his answer, a general denial, and no claim was made that there had been any impropriety or misconduct in securing leave to file the pleading. The record fails to show that there was a motion pending for a default judgment; but if there had been such a motion pending it was within the sound discretion of the nisi prius court to grant leave to defendant below to file an answer. ' There was no claim made that the answer was false or frivolous or filed as a sham pleading for the purpose of hindering or delaying plaintiff in the collection of his claim. Even if the court of common pleas in the exercise of a sound discretion could have stricken the answer from the files, the facts in this case show that there was an abuse of its discretion.

Judgment reversed and cause remanded for such proceedings as are authorized by law.

Jones, O. B., and Jones, E. H., JJ., concur.


author: WALTERS, J.

text:
    INSURANCE.
    [Brown (4th) Court of Appeals,
    December 12, 1913.]
    Sayre, Jones and Walters, JJ.
    A. R. Watson et al. v. Norwich Union Fire Ins. Soc.
    1. Insurance Policy on Manufacturing Plant Voided by Factory Remaining Idle.
    Where a pplicy of fire insurance covering a manufacturing establishment contains the provision that the entire policy shall be void if the establishment cease to be operated for more than thirty consecutive days unless consent thereto shall be endorsed on the policy, and a fire occurred after the establishment had been idle for more than thirty consecutive days, the insured is not relieved from this contractual provision by a rider attached to the policy, reading: “privilege of temporarily ceasing operations, not exceeding thirty days at any one time, without notice to the company.”
    2. Rider to Fire Policy Permitting Closing of Factory not Exceeding Thirty Days no Waiver of Policy Conditions unless Endorsed.
    Nor does it avail the insured that the agent who wrote the policy knew that the establishment was idle at the time the policy was written and remained idle until the occurrence of the fire, where there was a further provision in the policy that no agent should have power to waive any condition of the policy except as such waiver is endorsed thereon.
    Error.
    O. E. Young and J. W. Bagby, for plaintiffs in error.

      J. W. Mooney and J. B. Moore, for defendant in error.
   WALTERS, J.

This was an action brought by the plaintiffs in error in the court below to recover of the defendant upon an insurance policy alleged to have been issued to them, insuring certain property therein described, which property had theretofore been de stroyed by fire.

The insurance company, in its third defense, alleged that there was a provision therein that:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if the subject of insurance be a manufacturing establishment and it be operated, in whole or in part, at night later than 10 o’clock "v if it cease to be operated for more than thirty consecutive days.”

It is also alleged in said third defense that said policy also contained the following:

“No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire. * * *
“This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

It is further alleged that the subject of insurance was a manufacturing establishment, and the same was not being operated at the date of the fire and had ceased to be operated for more than thirty consecutive days prior thereto, and that no agreement was endorsed upon said policy or added thereto consenting that said manufacturing establishment should cease to be operated for more than thirty days, or providing that said policy or added thereto consenting that said manufacturing estained in said policy of insurance, be void.

The reply of the plaintiffs to the third defense alleges that they deny the policy contained the provisions as therein set forth, and they deny that no agreement was endorsed upon said policy or added thereto consenting that said manufacturing establishment should cease to be operated for more than thirty days or providing that said policy should not become void.

The case proceeded to trial, and at the close of plaintiffs’ testimony- the defendant moved the court to direct the jury to return a verdict for the defendant, which the court did. Thereupon, a petition in error was filed in the court of appeals, to which was attached a bill of exceptions containing all of the evidence and proceedings in the court below, asking a reversal of the case chiefly because the court erred in directing a verdict on the issues presented by the third defense and the reply thereto.

The evidence, pleadings and record show that the insured property was a manufacturing establishment; that at the date of'insurance it was not running, nor was it at the date of the fire, nor had it been in operation at any time from the issuance of the policy up until the fire.

The question presented is: Does the language set up in the third defense constitute a bar to the right of the insured to recover at the time plaintiffs rested their ease?

There was a slip or rider attached to the policy which is as follows:

“Privilege of temporarily ceasing operations, not exceeding thirty days at any one time, without notice to the company.”

Counsel for plantiffs in error contend that no proof was in evidence that a notice had not been given.

The policy itself was in evidence and it provided that—

“ * * * nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

No written permission to cease operations during the time of the fire was written on or attached to said policy.

It is further stated in the policy that:

“* * * no agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto.”

The policy, itself, provided how permission should be given to cease operations and required that it should be endorsed on the policy or added thereto; and the policy not disclosing any such privilege entered thereon or added thereto, it follows that as no notice was legally given to the company, as disclosed by plaintiffs’ evidence, the policy became void and the defendant was not required to do any affirmative act declaring a forfeiture. Betcher v. Insurance Co. 78 Minn. 240 [80 N. W. Rep. 971]; Johnson v. Insurance Co. 41 Minn. 396 [43 N. W. Rep. 59]; Kansas City Life Ins. Co. V. Blackstone, 143 S. W. Rep. 703 (Tex. Civ. App.); El Paso Reduction Co. v. Insurance Co. 12.1 Fed. Rep. 937; Day v. Insurance Co. 70 Iowa 710 [29 N. W. Rep. 443].

The fact that the establishment was not in operation to the knowledge of the agent at the time the policy was issued can not deny to the company the right to provide by contract that it should become void if it ceased to operate for thirty consecutive days thereafter unless privilege attached to the policy or endorsed thereon .should be granted.

It is contended by plaintiffs in error that the rider or slip attached, being a part of the contract, so modified the clause in the printed or body part of the same as that it overcome the clause of forfeiture and it did not become void, by its terms, as it did in the body of the contract.

This contention we can not subscribe to. The language of the slip is:

“Privilege of temporarily ceasing operations, not exceeding thirty days at any one time, without notice to the company.”

The words, “without notice to the company,” must be held to apply to the privilege of cessation of operations within the thirty days and not that the nonoperation in excess of thirty days should be without notice to the company.

The words “cessation of operation” means a “period of idleness — wanting in operation,” and these words, and also the following, “cease to be operated,” which is prohibited by the provisions of the policy, is a condition of idleness or nonoperation of a manufacturing establishment beyond the period permitted. El Paso Reduction Co. v. Insurance Co. supra.

The court in this case holds:

“Upon April 20 the first permit was issued: ‘Privilege is hereby granted to cease operations for one month from date.’ The effect of that was simply to extend the time of permitted idleness from ten days to one calendar month. In other words, instead of being allowed to have the plant idle for ten days plaintiff was allowed to have it idle for thirty days.”

Nothing is said in the privilege rider about the effect which nonoperation beyond thirty days should have upon the policy; that is contained in the policy contract proper, which provides it shall be void if the plant ceases to be operated for more than thirty consecutive days.

The printed provision in the body of the policy must be construed together with the same subject in the rider; to do otherwise would render meaningless a part of this contract. Whenever there are two constructions to be placed upon a writ- ' ten contract, one of which will give force to all of its provisions that one must be observed and followed.

Counsel for defendant in error has cited the case of Happ v. Insurance Co. 85 Ohio St. 473, which was an affirmance of the circuit court, without opinion. In that case, however, the conditions of the policy violated were:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if illuminating gas or vapor be generated in the described building, or adjacent thereto, for use therein.”

And also:

“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void if there be kept, used or allowed on the above described premises * * * gasoline. ’ ’

The insurance company in that case contended that there could be no recovery because illuminating gas was being generated and used therein. The plaintiffs in error contended that because illuminating gas was being generated when the policy was written and the soliciting agent knew that fact, and because, in addition, the policy in that case expressly covered “gas and heating apparatus,” the above quoted conditions were not violated. But the Supreme Court, in affirming the circuit court, repudiated that contention.

The ease of Gump v. Insurance Co. 34 O. C. C. 36 (15 N. S. 428), seems, by the second syllabus therein set out, to hold a contrary view to this opinion. This case was decided" by the circuit court of the fifth circuit, and appears to have been affirmed by the Supreme Court in National Union Fire Ins. Co. v. Gump, 86 Ohio St. 325, without opinion. The facts, as disclosed by the opinion of the circuit court, do not clearly show what the conditions and circumstances were; and, therefore, we may surmise that the facts and circumstances' in that case, when fully disclosed, would not warrant the second syllabus therein reported. It would seem at least, from the case in Happ v. Insurance Co., supra, which was also an affirmance of the circuit court without opinion, that that case would be in direct conflict with the affirmance in the Gump ease.

At least, we are persuaded by the current of authority that - the rule laid down here is the one that has been followed and should govern this action.

What we have said in respect to this proposition dispenses with a further examination or discussion of the other questions made in the case; and,

The judgment of the common pleas court will be affirmed.

Sayre and Jones, JJ., concur.


author: JONES, O. B., J.

text:
    EVIDENCE — PEDIGREE.
    [Hamilton (1st) Court of Appeals,
    February 7, 1916.]
    Jones, Jones and Gorman, JJ.
    Charles McCune et al. v. Hannah Hartnett Larkin.
    1. Finding as to Pedigree not Disturbed if Elimination of ail Branches Originating in Given Country Required.
    A reviewing court will not disturb a finding of fact as to pedigree, where to have made a different finding would have required the elimination of all the members of all the branches of a family originating in a foreign land.
    2. Finding as to Pedigree not Reversed for Hearsay Evidence Admitted or Jury Trial Refused in Partition Suit.
    Nor will the finding with reference to pedigree be disturbed because of the introduction of hearsay evidence, or refusal of a demand for trial by jury where the action was in the form of a suit in partition.
    Error.

      Mansion Allen, Jas. 8. Robinson and Otto Pfleger, for plaintiffs in error.

      B. 8. Murphy and Galvin & Galvin, for defendant in error.
   JONES, O. B., J.

The real question to be determined in this ease is to whom the real estate of William H. Seymour passed by descent. He died without issue, after the death of his wife. The brother of his wife by the full blood claimed to be the sole owner. The three half-sisters and the son of a deceased half-sister claimed to each be entitled to a share with this brother in this inheritance. All of said relatives of the deceased wife claim under the provisions of Sec. 8576 G. C., which casts the descent upon the heirs of the wife only on the entire failure of heirs of her husband under the three pre'ceeding sections of the General Code.

The court below found that the defendant in error was the grandchild of a sister of the mother of William H. Seymour, and was his only living heir at law, and next of kin. The record develop es an interesting inquiry into the family history of William H. Seymour, and shows the descendants of his maternal grandparents, Jerry and Kate Murphy of Kilbruin Parish, County of Cork, Ireland. Plaintiff is clearly shown to be thq sole survivor of this branch of the Murphy family. As the entire Murphy family of County Cork must be eliminated before any of the parties to the suit, other than defendant in erroi-, could establish an interest in this property, the improbability of their success is manifest. In our opinion the findings of fact as made by the court are fully sustained by the evidence.

Numerous objections were made as to the admission of evidence. The rule as to the admission of hearsay evidence to established pedigree is stated in 2 Jones, Evidence Sec. 312, in which is found the following language:

“The law resorts to hearsay evidence in cases of pedigree, upon the ground of the interest in the declarations of the person from whom the descent is made out, and their consequent interest in knowing the connections of the family. The rule of admission is therefore restricted to the declarations of deceased persons who were related by blood or marriage to the person, and therefore interested in the succession in question. From necessity, in cases of pedigree hearsay evidence is admissible. But this rule is limited to the members' of the family, who may be supposed to have known the relationship which existed in its different branches. The declarations of these individuals, they being dead, may be given in evidence to prove pedigree; and so is reputation’ which is the hearsay of those who may be supposed to have known the fact, handed down from one to another, evidence. As evidence of this description inust vary by the circumstances of each ease, it is difficult, if not impracti-. cable, to deduce from the books any precise and definite rule on the subject. It is not every statement or tradition in the ■ family that can be admitted in evidence. The tradition must be from persons having such a connection with the party to whom it relates that it is natural and likely, from their domestic habits and connections, that they are speaking the truth, and that they could not be mistaken”

It is also well stated in the opinion of the court in Fulkerson v. Holmes, 117 U. S. 389, 397, as follows:

“The proof to show pedigree forms a well settled exception to the rule which excludes hearsay evidence. This exception has been recognized on the ground of necessity; for as in inquiries respecting relationship or descent, facts must often be proved which occurred many years, before the trial, and were known to but few persons, it is obvious that strict inforcement in such cases of the rules against hearsay evidence would frequently occasion a failure of justice. * * * Traditional evidence is, therefore, admissible. The rule is that declarations of deceased persons who were de jure, related by blood or marriage to the family in question may be given in evidence in matters of pedigree. A qualification of the rule is that before a declaration can be admitted in evidence, the relationship of the declarant with the family must be established by some proof independent of the declaration itself. But it is evident that but slight proof of the relationship will be required, since the relationship of the declarant with the family might be as difficult to prove as the very fact in controversy.”

We fail to find any error prejudicial to plaintiffs in error regarding the admission of evidence.

It is also urged that the court erred in refusing the demand of plaintiff below for a jury trial.

It was practically conceded by the parties that the party having title to the land must be considered as in possession of it, a receiver having been oppointed by the court to care for the property until the determination of the title. The action was brought as an action for partition. Partition is a civil action not triable by a jury. McRoberts v. Lockwood, 49 Ohio St. 374 [34 N. E. Rep. 734]; Swihart v. Swihart, 4 Circ. Dec. 624 (7 R. 338.) The fact that the title of plaintiff was' denied by the answer did not oust the court of jurisdiction. Perry v. Richardson, 27 Ohio St. 110. The answer and erosspetition of Hannah Hartnett Larkin was in the nature of an action to quiet title, which is a civil action under the code, in which the parties are not entitled to a jury. Under the pleadings, therefore, it was not error in the trial court to refuse the demand for a jury. Nor do we find any other errors to the prejudice of plaintiff in error.

Judgment affirmed.

Jones, E. H., and Gorman, JJ., concur.


author: PER CURIAM.

text:
    SALES.
    [Hamilton (1st) Court of Appeals,
    January 31, 1916.]
    Jones, Jones and Gorman, JJ.
    Charlotte T. Brown, In re, et al.
    Assignee Obtains no Title to Goods Sent without Selection by or Price Given to Possible Buyer though not Rejected for Eight Days after Bill Sent.
    A sale of goods is not complete within the provisions of Sec. 8399 G. C. when they are placed in the house of a possible buyer without being selected by or any price being given to the buyer, even though they are retained without notice of rejection for eight days after a bill is sent, accordingly the title remains in the seller and the assignee of the buyer has no claim thereon.

      Samuel Wolfstein and Dempsey & Nieierding, for W. H. Davis.

      Worthington, Strong & Stettimus, for Loring Andrews.

      Thomas Bentham, for trustee.
   PER CURIAM.

After a consideration of the facts in this case and applying thereto the law of Ohio with regard to sales we reach the conclusion that on May 9, 1913, the title to the personal property •in question was in the Loring Andrews Company and did not pass to the assignee.

Section 8399. G C.. provides:

“Buies for ascertaining the intention of the parties as to the time at which the properly in the goods is to pass to the buyer” and by the language of the section said rules do not apply where a different intention appears.

Tbe goods were sent to Mrs. Brown’s house on approval, and hence the second subdivision of rule 3 of Sec. 8399 would apply here. It provides:

(2) When goods are delivered to the buyer on approval or on trial or on satisfaction, or other similar terms, the property therein passes to the buyer—
‘ ‘ (a) When he signifies his approval or acceptance to the seller, or does any other act adopting the transaction.
“ (b) If he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of such time, and if no time has been fixed;- on the expiration of a reasonable time. ' What is a. reasonable time is a question of fact.”

Mrs. Brown had not signified her approval or acceptance of the goods, but she had retained them without notice of rejection. As no time was fixed for the return of the goods, the sale would be complete on expiration of a reasonable time, and what is a reasonable time is the question of fact in this case.

The time may vary owing to the circumstances of each -case. Here no price was given Mrs. Brown on the goods. Most of the articles had not been selected by her, but were placed in her home during her absence. She had no intimation of the price or that the goods were charged to her as sold until eight days before the assignment. At that time and for months before, she was ill, insolvent and much worried over business affairs of a different nature, of greater magnitude and “nearer consequence.” The fact that she let eight days elapse after receipt of this bill when . she was obviously contemplating bankruptcy is not conclusive evidence that she accepted the goods. She could have returned the bill received by her with notice of rejection and would not have been indebted to the firm for same.

Such being the case the assignee or trustee has no claim upon the goods' and the Loring Andrews Company are entitled to the proceeds of the sale of the property, to-wit, $1,200.


author: HOUCK, J.

text:
    NUISANCE — WATERS AND WATERCOURSES.
    [Perry (5th) Court of Appeals,
    November 19, 1915.]
    Shields, Powell and Houck, JJ.'
    Standard Hocking Coal Co. v. Mary A. Koontz
    Actual Damages Only Recoverable in Action for Pollution of Running Stream by Pumpings From Coal Mines.
    Where water pumped from a coal mine and discharged into a running stream is so impregnated with sulphuric acid as to pollute the stream and a neighboring well to such an extent that live stock will no longer drink therefrom and the water from the well is rendered unfit for domestic purposes, the damage sustained by the riparian owner is measured by the permanent injury to his land as shown by its diminished rental value or the cost of installing another sufficient water supply.

      T. M. Potter and George A. Fairbanks, for plaintiff in error.

      C. A. Donahue and T. B. Williams, for defendant in error.
   HOUCK, J.

This is a proceeding in error prosecuted from the common pleas court of this county, asking that the court below be reversed in a judgment rendered in favor of the defendant in error, the plaintiff below, against the plaintiff in error, who was the defendant below. The suit was for alleged damages to the farm of the plaintiff below.

The petition in substance avers that the plaintiff is the owner of <a farm of 158 acres, located in Perry county, Ohio; that running through said premises is a Natural stream of water and that prior to the grievances complained of, as hereinafter set forth, this stream had been used by her for the purpose of watering stock and that it was the only available stream for that purpose; that on said premises were dwelling houses and a barn; that there was a valuable well of water which was used for domestic purposes; that the defendant owned and operated a coal mine north of said plaintiff’s premises and nearby said stream of water; that defendant made an opening into said mine through which water was pumped therefrom and found its way into said stream above referred to, and that said water so pumped into said stream was highly impregnated with sulphuric acid, and that it polluted the water in said stream flowing through the land of plaintiff and it found its way into said well on the premises of plaintiff and rendered the water therein useless for domestic or any other purposes, and by reason thereof said farm had become less valuable and her rents and income therefrom had decreased; that she expended large sums of money in an effort to secure suitable water and by reason of the same has been damaged in the sum of $2,000, and for which sum she prays judgment.

The defendant filed an answer to the petition which was in the nature of a general denial. Upon the issue joined the cause was submitted to a jury and a verdict rendered for the sum of $280 in favor of the plaintiff. A motion for a new trial was filed, heard and overruled, and a judgment rendered on the verdict. The plaintiff in error seeks a reversal of this judgment and in its petition in error sets forth a number of grounds of alleged error, but its counsel in oral argument urge but two of them, namely: first, that the court erred in not giving to the jury requests Nos. 2 and 3, which were in writing, and were requested to be given by-defendant below before argument; second, that the court erred in its general charge to the jury.

Taking up the first ground of alleged error, to-wit, that the court erred in its refusal to give requests Nos. 2 and 3 before argument, will say that we have examined these requests and while we are of the opinion that as abstract propositions of law they are sound and should be given in such a case, where the facts involved in the case warrant the application of such principles of law as are contained in said requests Nos. 2 and 3 but on an examination of the record and the evidence disclosed therein, we are of the opinion that the facts in the case at bar do not warrant the application of the principles of law as set forth in said special requests Nos. 2 and 3, and that the court below did not err in refusing to give the special requests hereinbefore referred to.

Coming now to the second ground of alleged error, that the court erred in its general charge to the jury, will say that counsel for plaintiff in error complains and contends the court’s charge to the jury with reference to the measure of damages was not the law applicable to the case at bar. That part of the charge to which special objection is made is as follows:

“Now the claim here is that the stream was polluted; that the stream in a state of nature was uncontaminated, but by the discharge of sulphur water from this particular mine of defendant the stream was contaminated, and as it passed the place where it passed over her land it was rendered useless for the purpose of watering the herds of cattle she may have had and the well was totally destroyed for domestic purposes.
“That allegation the defendant denies and the burden of proof then is on the plaintiff. If you find that the well was polluted, that the well was in fact destroyed, and if you go further and find that it was done and contributed to either in whole or in part on the part of the defendant, you will go further and inquire what, if any, damage has been sustained upon the part of the plaintiff.
“Now, the plaintiff can only recover, if she recover at all, her actual damages, and she can only recover upon the claims specifically set forth and complained of in this petition. Now, she claims that the rental values of her premises were diminished and that the value of her farm for rental purposes was largely reduced. You have the evidence upon that proposition. This action was commenced on April 4, 1914, and she sues for diminished rental value for the three years before the commencement of this action. In addition to that, gentlemen, the plaintiff is entitled to recover for any inconvenience and for any actual and necessary expenses incurred by her by reason of the pollution of this stream and the pollution of this well, as set out in the petition, by the defendant, if you in fact find that the defendant did so pollute the well.
“Now, when I say she is entitled to actual and necessary expenses incurred by reason of the pollution of this stream and by reason of the well, that does not mean that she could extend beyond what was necessary to install water on the land.”

We think it will be conceded as a fundamental and a well established principle of law that an owner of land has the right to enjoy the soil itself and the incidents thereto in its natural state unaffected by the tortious acts of a. neighboring landowner, and where the land is located in such a way that a natural stream of water passes through it, the owner of the land, as a riparian owner, is entitled, as an incident to his estate, to the natural flow of the water off the stream in its accustomed channel, undiminished in quantity and unimpaired in quality.

We further think that it is a sound principle of law that in an' action for damages to real property testimony is admissible to show the exact character of the injury suffered, whether of a permanent or irreparable nature, or of the sort susceptible of repair, so that the property may be restored to its original condition. If the testimony shows the former to be the nature of the injury, the measure of damages is the difference in value of the property before and after the injury. If an injury susceptible of repair has been done, the measure off damages is the reasonable cost of restoration plus the reasonable compensation for any loss of the use of the property between the times of iujury and restoration, unless such cost of restoration exceeds the difference in values of the property before and after the injury, in which case the difference in value becomes the law.

The court is of the opinion that the principles 'of law hereinbefore referred to are well established in this state and we think we need refer to but one case, Straight v. Hover, 79 Ohio St. 263 [87 N. E. Rep. 174; 22 L. R. A. (N. S.) 276]. The second syllabus reads as follows:

“An upper owner of lands upon a running stream who operates them for underlying petroleum by pumping it and the salt water with which it is commingled into tanks, and, after the petroleum rises, withdrawing the salt water from beneath and discharging it by gravity into the stream is liable in compensatory damages for such substantial injuries as may be sustained by a lower proprietor in consequence of the water in the stream being thereby rendered unfit for the use of live stock and destructive of the grass with which it comes in contact, although such operation is conducted with care and in the only known practicable mode of developing the mineral resources of his lands.”

It is urged by the plaintiff in error that under no rule of damages was the plaintiff below entitled to recover for anything, save and except the diminution in the market value of the property. We do not agree with counsel for plaintiff in error in this claim. We think that the measure of damages in the present case includes the permanent injury to the land, the diminution in rental value and the cost of installing another supply of water. In other words, the recovery is limited to the actual damages incurred in the premises as shown by the evidence.

We have examined, with some care, the charge óf the court, and we have no hesitancy in saying that we find it to be a clear and concise statement of law governing the facts pertaining to the issues in the case, and that it fully and completely covers all of the qiiestions involved therein.

Viewing the case as we do, and finding the recovery to be the result of proof offered, tending to show the actual damages sustained by the plaintiff below, and finding no error in the record prejudicial to the rights of the plaintiff in error, there is but one thing for the court to do; and that is to affirm the judgment below, which we now do.

Powell and Shields, JJ„ concur,


author: GORMAN, J.

text:
    LICENSES — INTOXICATING LIQUORS.
    [Hamilton (1st) Court of Appeals,
    January 31, 1916.]
    Jones, Jones and Gorman, JJ.
    Julius Theurkauf v. Rogers Wright, et al.
    Liquor License Board not Answerable for Refusal to Grant License.
    Liquor licensing boards perform quasi judicial functions, and can not be held answerable in damages for errors or mistakes, if any are made, in the exercise of their functions.
    Error.

      E. P. Earch, for plaintiff in error.

      EUis G. Einhead, John A. Deasy, Timothy S. Hogan, for defendants in error.
   GORMAN, J.

The action below was brought in the superior court of Cincinnati by plaintiff in error against Rogers Wright and William Marscheusser as the Hamilton County Liquor Licensing Board, and Charles L. Allen, Byron M. ClenDening and J. IT. Secrest as the Ohio State Liquor Licensing Board, to recover $20,000 damages for their alleged wrongful refusal- and neglect to grant to plaintiff a license to traffic in intoxicating liquors in Cincinnati for the year beginning November 24, 1913, upon his application therefor duly filed in writing as provided by law; and plaintiff averred that although he possessed all the qualifications requisite in law to entitle him to a license, said boards rejected his application solely on. the ground that the number of licenses which could be issued under the constitution and the laws had been exhausted and there were no more licenses to grant. Plaintiff averred that he was one of those favored under the laws as entitled to a license because of his good standing and the length of time he had been engaged in the business prior to November 5, 1913. He claimed that as the direct result of the refusal of defendants to issue to him a license he was damaged in the sum above stated and prayed judgment therefor.

A demurrer to plaintiff’s second amended petition was interposed by defendants and sustained by the trial court and the plaintiff not desiring to plead further, his petition was dis missed.

It is claimed that in this ruling the court be'low erred.

This court is of the opinion that the court below did not error in sustaining the demurrer.

In 23 Cyc. 125, this rule is laid down:

“Licensing officers are' not to be held answerable for mere mistakes or errors of judgment; But they are subject to indictment when their action in granting or refusing licenses was prompted by corrupt motives amounting to a gross abuse of discretion at a plain dereliction of duty. They are not personally liable in an action at law against them to recover damages alleged to have been sustained by their refusal to grant a license to plaintiff; the latter if clearly entitled to a license, may enforce his rights by mandamus, but the proceeding on his application is so far judicial as to protect officers from civil actions for damages,” etc. Citing Halloran v. McCullough, 68 Ind., 179.

Under the law (103 O. L. 216-242 inclusive) the county licensing board has something more than ministerial duties to perform; it has quasi-judicial functions to perform; it must look into the character and qualifications of applicants for licenses, grant licenses, which shall not exceed in number one for every five hundred inhabitants of the county and perform many other acts calling for an exercise of discretion and judgment. They can not be held answerable in damages for errors or mistakes made by them in the exercise of such functions.

- Most of the questions raised in this case were decided adversely to the contention of plaintiff in error by the Supreme Court in the case of Meyer v. O’Dwyer, 90 Ohio St. 341 [107 N. E. Rep. 759].

Judgment affirmed.

Jones and Jones, JJ., concur.


author: GRANT, J.

text:
    NEGLIGENCE — ICY SIDEWALKS.
    [Cuyahoga (8th) Court of Appeals,
    February 7, 1916.]
    Meals, Grant and Carpenter, JJ.
    Agnes Fagins v. Bloch Realty Co.
    Permitting Sidewalk to Become Icy in Violation of Ordinance, Does not Impute Wantonness or Wilfulness, Cutting off Defense of Contributory Negligence.
    An inference of wantonness or wilfulness, cutting off the defense of contributory negligence, cannot be imputed from a property owner’s permitting the sidewalk in front of his premises to become covered with ice in violation of municipal ordinances, from which a pedestrian, injured while voluntarily and knowingly attempting to pass over such icy sidewalk, is excused from the exercise of ordinary care to avoid the injury; the failure to obey the ordinance and permitting the ice to accumulate in the first place were coincident but not different things, and do not introduce the rule of wilfulness.
    Error.

      A. H. Martin, for plaintiff in error.

      Ford, Snyder & Tilden, for defendant in error.
   GRANT, J.

In this proceeding we are asked to reverse the judgment of the court of common pleas, following a verdict directed by that court, upon the conclusion of the plaintiff’s testimony.

As being substantially correct, we adopt, as our own the statement of the plaintiff’s brief as to the issue» joined by the pleadings in the case, as follows:

“Agnes Fagins, as plaintiff in the common pleas court, brought her action against the Bloch Realty Company, as defendant, and 'charged in her petition that the said defendant, being the owner and in possession of a certain tall brick building abutting on .Walnut Avenue, Cleveland, 0., on January 26, 1915, had constructed and maintained a certain down spout on said building which was inadequate to and which failed to properly conduct the water from the roof of said building to the sewer, but permitted the water accumulating on said roof to overflow and flow down the outside of said 'down spout and to be discharged on the surface of the sidewalk on Walnut avenue and to flow across the sidewalk eastwardly therefrom to the gutter, and so flowing to freeze and form an accumulation of ice in ridges on said sidewalk, — causing the same to be dangerously obstructed, all in negligent, wanton disregard of the laws and ordinances of said city. That on said date she, the plaintiff, while lawfully proceeding 'along said sidewalk as a pedestrian, in the exercise of due care, slipped and fell on said sidewalk, because of said icy obstruction and defect and suffered serious permanent injury to her right knee rendering her a permanent cripple. And charged that the defendant thereby had wantonly, negligently and in violation of the laws and ordinances of the city, inflicted said injuries upon her to her damage, and prayed judgment accordingly:.”

The defendant in its brief says that the plaintiff’s statement of the facts which the testimony offered at the trial tended to prove, is also correct in substance; wherefore we adopt that also as ours, as follows:

“On January 26, 1915, at about 11:30 A. M., Agnes Fag-ins, plaintiff in error, a woman in her 57th year of age, was walking westward ,on the sidewalk on the North side of Walnut avenue, Cleveland, Ohio, ‘as carefully as she could’ in the business, of collecting washings, — she being a washerwoman — on her way to the Hanna Flats. Water accumulating on the roof of the Hanna Flats had backed up, — the down spout being clogged and overflowed and instead of being conducted down the inner side of the down spout to the sewer, ran down the outside of the easterly down spout and was discharged upon the surface of the sidewalk and ran across the sidewalk to the street. In so doing it froze on the down spout and upon the sidewalk from time to time and caused an accumulation of ice, forming in ridges and unevenly across the sidewalk, being almost a foot thick or high at the side of the building at the end of the down spout and ranging from that thickness to three or four inches thick at the curb and extending entirely across the sidewalk from the building to the curb, and extending of the same width, eastwardly toward E. Twelfth street, from the down spout about eight or twelve'feet. The sidewalk from the building and down spout to the curb is about ten feet. wide. A pedestrian, in order to avoid the ice, passing along said sidewalk going to said Hanna Flats would have to leave the sidewalk at a certain drive about twelve feet east of the down spout on the southeasterly end of said flats and pass into the street outside of the curb and travel about eighteen feet before returning to the sidewalk to enter the building. This accumulation of ice which made the sidewalk unsafe and dangerous was permitted to remain for about five days after the attention of the defendant’s manager was called to it and before plaintiff was injured by falling thereon.

The attention of the defendant’s manager was called to this accumulation of ice which made the sidewalk unsafe and dangerous about five days immediately prior to the day of the plaintiff’s injury, but nothing was done to remedy said condition.

"When within a very short distance, — ‘four or five steps’— or about ‘three feet’ of the Hanna Flats, the plaintiff slipped and fell on the accumulation of ice. She had gathered washings from the “Hanna” for several years. She had passed over this sidewalk on the day before (Monday) several times. At the time of her injury observing the icy, uneven, rough, slippery condition of the sidewalk, she walked as best she could, — being compelled to go after her work and being unable to stop. On Tuesday, the day of her fall, it was a little warmer than it had been, causing some thawing and a larger flow of water than on the preceding days. There was no other equally direct and convenient way to her destination open, to plaintiff. She sustained, as a result of the fall, a very painful injury to her right knee and foot, rendering her prostrate, helpless and unable to walk. Also a painful, persistent swelling and inflamation and a fluid effusion in the bursa about the knee joint. A severe sprain and a tearing of the ligiments about the knee joint, a displacement of the two cartileges of the knee and a latent, quiescent, congenital, syphilitic taint in the blood was revived and rendered active and a necrosis of the head of the tibia ensued, — rendering said plaintiff a helpless cripple, permanently-incapacitated from using her right leg and from following her usual vocation.

The defendant, The Bloch Realty Company, owned and was in possession and control of the building, the Hanna Flats, and maintained the down spóut from which the water came, which frozen caused the said icy condition on the sidewalk on which plaintiff fell.

Section 670 and 241 of the Building Code of Cleveland, making it a misdemeanor, punishable by a fine and imprisonment to, in any ease, permit the discharge of water from the roof of a building upon and across the sidewalk.”

The judgment complained of was entered after a motion by the plaintiff for a new trial had been made and overruled.

A single question, therefore, arises upon this record for our determination — having a proper regard for all that the testimony relevantly tends to prove, when brought to bear upon tbe issue joined, and allowing all proper inferences to be deduced from it, still was there anything fit to go to the jury in support of a verdict for the plaintiff f Whatever the trial may have remarked as to the controlling state of the law in Ohio upon which he took the case from the jury, the justification for doing so is to be found, if at all, in the admitted facts that the plaintiff came to her injuries from going into a place of danger plainly visible to her at the moment and which she might without difficulty have avoided. And this is no more than saying that her hurts were brought upon herself as the result of her own negligence, causing or materially contributing to them.

And, if such is the rule, we thing she fairly brought herself within its application, concretely, to her case. She testified that the icy condition of the sidewalk was plainly to be seen when she went upon it and was injured, and that it was so to her knowledge the day before, when also she had occasion to pass that way several times.

Such being the admitted fact, the case seems to be governed by Schaefler v. Sandusky, 33 Ohio St. 246 [31 Am. Rep. 533], ef which the syllabus is as follows:

“A person who voluntarily attempts to pass over a sidewalk of a city, which he knows to be dangerous by reason of ice upon it, which he might easily avoid, cannot be regarded as exercising ordinary prudence, and, therefore, cannot maintain an action against the city to recover for injuries sustained by falling upon the ice, even if the city would otherwise have been liable. ’ ’

There is nothing more in the facts of the case at bar that should have sent it to the jury than there was in the one just cited. In that case the controlling facts were disclosed by the answers of the jury to certain special interrogatories sent to them, as follows:

“Q. Did plaintiff see and know the nature and character of this obstruction before and at the time of passing over it? And did he, knowing this, voluntarily pass over it?
“A. He did.
“Q. Could he have easily avoided it, either on the same work, in the street, or on the opposite side, or on any other sidewalk, and reach his destination?
“A. He could have avoided it.”

On these findings the court in that case rendered judgment for the defendant, although the general verdict was for the, plaintiff. And the Supreme Court upheld the judgment.

Here, the same facts were established by the admissions of the plaintiff, a result certainly no.t less satisfactory than the findings of a jury.

The rule stated has been followed by the Supreme Court in Conneaut v. Naef, 54 Ohio St. 529 [44 N. E. Rep. 236], and in Norwalk v. Tuttle, 73 Ohio St., 242 [76 N. E. Rep. 617], as well as in numerous affirmed circuit court cases. It must, therefore, be regarded as the settled law of the state in this respect, conclusive in the ease before us, and properly applied by the trial court.

In the case at bar the negligence of the plaintiff, contributing to her injury, was so far the efficient cause of that injury that but for it she would not have been injured, and by the exercise of ordinary care for her own safety she could have avoided the injurious consequences of the initial negligence of the defendant company. See .remarks of Williams, J., in Schweinfurth v. Railway, 60 Ohio St. 215 [54 N. E. Rep. 89], at p. 222, quoting with approval Thompson, Negligence to the effect we have just stated.

It is, however, claimed by the plaintiff that the doctrine has no application where the circumstances are such that a jury might find from them that the conduct of the defendant in permitting the sidewalk to become covered with ice contrary to law should raise an inference of wantonness or wilfulness and bring that as a dominating issue of fact into the controversy. The contention at 'this point is that the unlawful negligence of the defendant amounted to a reckless disregard of the plaintiff ’s right to a safe passage over the sidewalk, which made wilfulness the controlling ingredient of legal wrong and took the ordinary doctrine of contributory negligence as a decisive factor out of the case. Such is the argument, which is fortified by extensive citations o'f authorities.

This doctrine is shortly but completely stated in 7 Am. & Eng. Enc. Law 443 (2 ed.) thus:

“The doctrine of contributory negligence has no application in cases where the injury is inflicted by the wilful act or omission of the defendant; in such cases contributory negligence is not a defense and, in its legal sense, cannot exist.
“Wilfulness and negligence are the opposites of each other, the one signifying the presence of intention or purpose, the other its absence.”

And in 1 Sherman & Redfield, Negligence, 64, it is said: “It is universally conceded that the greatest contributory fault, including a wilful trespass, is no defense in an action for wilful injury.” And it is contended that when the efficient cause of the injury — in this case an iceeovered sidewalk — is brought about by the disobedience of an ordinance on the part of the defendant, wilfulness is thence to be imputed to it as matter of law, conclusively to the effect of cutting off the defense it might otherwise have of contributory negligence on the plaintiff’s part. At least, it is said, it was a question for the jury. An examination of the authorities brought forward to support this contention, leads us to the conclusion that the doctrine, applied to the case in hand, is unsound. The rule seems to be limited to cases where the initial fault of placing himself in a place of peril was that of the plaintiff, and where the resulting injury arose from the defendant’s reckless and wanton act or omission— amounting in law to wilfulness — then first coming into the situation and bringing about the hurts complained of. Here, the failure to obey the ordinance did not come into the case as the direct cause of the injury as an intervening agency primarily responsible for it; it was there in the first instance, as a usual and ordinary manifestation of negligence, and the fact that it at the same time was a violation of an ordinance was a coincidence and not an independent basis of recovery. Because the omission to obey the ordinance and the permitting of ice to accumulate in the first place were coincident but not different things, does not, as we think, introduce the rule of wilfulness in the case. The line of distinction seems nebulous at first glance but it exists and is perceivable from an analysis of the cases cited in the briefs.

Upon the plaintiff’s testimony we think there was nothing to go to the jury and that the verdict was properly directed.

No error having intervened, the judgment complained of is affirmed.

Meals and Carpenter, JJ., concur.


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    PARENT AND CHILD.
    [Columbiana (7th) Court of Appeals,
    April 8, 1915.]
    Houck, Pollock and Metcalfe, JJ.
    (Judge Houck of the 5th district sitting in place of Judge Spence.)
    William Elem v. State of Ohio.
    Knowledge of Child’s Need Imputed to Parent and Demand for Maintenance not Prerequisite to Prosecution for Failure to Provide for Child.
    A parent who is able by reason of property, labor or earnings to provide care or maintenance of his or her child under sixteen years of age, may, under Sec. 13008 G. C. be convicted of failure so to do without proof of notice that the child is in need or of a demand or request that such care or maintenance be provided.

      George T. Farrell, for plaintiff in error.

      William H. Vodrey, Pros. Atty., for defendant in error.
   HOUCK, J.

This cause is here on error from the common pleas court of this county, seeking to reverse a judgment of conviction, wherein the plaintiff in error, the defendant below, was convicted upon an indictment in which he was alleged to have failed, neglected and refused to furnish food, clothing, proper care and maintenance, to and for his bastard child, the indictment and conviction being under favor of Sec. 13008 G. C., which is as follows:

“Whoever, being the father, or when charged by law with the maintenance thereof, the mother, of a legitimate or illegitimate child under sixteen years of age, or the husband of a pregnant woman, living in this state, being able by reason of property, or by labor or earnings, to provide such child or such woman with necessary or proper home, care, food and clothing, neglects and refuses so to do, shall be imprisoned in a jail or workhouse at hard labor not less than six months nor more than one year, or in the penitentiary not less than one year nor more th~n three years. ’ ’

The defendant below was tried and convicted. A motion for a new trial was filed, heard and overruled, and to the overruling of the same the defendant prosecutes error to this court, seeking a reversal of the judgment below.

Counsel for the accused contends that the evidence offered in the case does not show or prove that the accused is the father of said bastard child; and, further, that no demand or request was made at any time by any one for him to support or maintain said child, and therefore the verdict of the jury is against the weight of, the evidence, and contrary to law.

The statute in question was enacted by our legislature for a purpose, and we think it is a proper and humane one, and is for the purpose of aiding and protecting communities and society to bring about the proper care and support of children by parents, whether they be born in or out of lawful wedlock, if the parent has the means and property for so doing, which the record shows the defendant possessed at this time.

Speaking from the record in this case, the accused associated with and kept the company of the prosecuting witness He had sexual intercourse with her, and gratified his passions and desires, and is therefore not only morally, but legally responsible for his acts and conduct, which, in this ease, resulted in bringing into this life a bastard child, and is chargeable for its maintenance and support if he is proven, under the evidence, applying the proper rules of law thereto, to be the father of said child. We have examined the record and the testimony. The defendant below was represented by able counsel, and he had a fair and impartial trial.

It is the claim of counsel for the accused that the judgment below should be reversed. We think there is but one proper and reasonable answer to this, in the face of the record and the law applicable to the case at bar.

It is a well established principle of law in this state that a father is bound to know when his child is in need of food, clothing, care and support. He, being the father, is not only required to, but in law is bound to know it, and the law does not require him to be notified of that fact. The father owes to himself and the public the duty of taking care of and supporting his child, and the fact that no one called his attention to the needs of the child does not remove his moral, and his legal obligation as well, to his offspring, under the section of our statutes heretofore referred to.

It will be noticed that the statute under favor of which the accused was tried and convicted does not, by any terms therein, require that.a demand or request shall be made upon tbe father for the performance of the duty enjoined and required of him in said statute. Nor, if effect is given to all the terms thereof, does it appear that such demand, or notice, or request, is required by implication.

We believe that these principles of law are sound; and applying them to the facts and evidence as disclosed by the rec. ord in this case, so far as this court is concerned, we are of the opinion that the defendant was properly and legally convicted, and that the verdict of the jury and judgment of conviction should stand, and that the defendant must atone to the offended law.

The judgment below is affirmed.

Pollock and Metcalfe, JJ., concur.


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    ASSESSMENTS — SEWERS.
    [Hamilton (1st) Court of Appeals,
    November 29, 1915.]
    Jones, Jones and Gorman, JJ
    Horatio W. Burkhardt, et al. v. Cincinnati (City), et al.
    Acreage Tract Subject to Assessment for Sewer Notwithstanding Present Buildings cannot be Connected.
    Where an acreage tract can be so subdivided into lots fronting on a street in which a sewer has been laid as to render the sewer available for said lots, an assessment for the cost of the, sewer will be sustained to the extent of the average depth of such lots, notwithstanding the buildings at present on the tract could not be connected with the sewer.

      Black, Swing & Black, for plaintiffs.

      Walter W. Schoenle, Frank K. Bowman, city solicitor, for defendants.
   JONES, O. B., J.

Plaintiffs own a tract of land of about seventeen acres, not subdivided into lots, lying on the northwesterly side of Madison road. It is now improved with but one dwelling house thereon which is located south of the center and fronts towards Madison road, and which has no sewer connections, the house drainage being carried into a cess pool. The eastern boundary is Vista avenue which runs northwardly from Madison road, the natural drainage of the land is to the west and south.

Under certain proceedings of the council of the city of Cincinnati, commenced by the resolution declaring it necessary to improve by sewering passed December 27, 1910, sewers were constructed in certain streets including that part of Vista avenue abutting 280 feet along the northern part of plaintiff’s property, and an assessment was- levied on each front foot of the lands abutting thereon of $1.60 to pay the cost and expense of such improvement, by an ordinance passed November 13, 1911.

Under a contract dated April 11, 1913, plaintiffs granted to the city of Cincinnati the right to construct and maintain a trunk sewer through the western part of their land, which should carry off the surface drainage and storm water of the adjoining lands, and plaintiffs were given the right to tap such sewer without assessment or charge to them for the purpose of connecting such tributary sewers as they might thereafter see fit to build in accordance with city specifications, for the sewering and drainage of their property as it should be developed. Madison road was also improved by the construction of a sewer therein.

Plaintiffs seek in this action to enjoin the collection of the assessment for the Vista avenue sewer on the ground that it can be of no benefit to their property because it is only three to four feet below the basement of the present residence, and that their premises do not need local drainage and are otherwise sufficiently provided therewith See. 3819, G. C.

It would probably not be practical to use this sewer in Vista avenue for the house drainage of the present residence because of its depth and the fact that it is so far from the residence, and the natural topography would make a sewer connection preferable either with the sewer in Madison road or with the trunk sewer in the ravine in the western part of the premises. But the property might be so divided as to lay out lots on Vista avenue fronting that part in which the sewer is laid, and houses built thereon could be so constructed as to tap and use this sewer; and Under the doctrine of Cincinnati v. Bickett, 26 Ohio St. 49, and Ford v. Toledo, 64 Ohio St., 92 [59 N. E. Rep. 779], the assessment for this sewer should be sustained. In'levying the assessment against this property council should have fixed the depth to which the lien would attach to the fair average depth of lots in the neighborhood, (Sec. 3813 G. C.) If so desired, that may be fixed now in the decree.

It appears to the court that if the present arrangement for the sewerage of these premises had been in existence at that time, so far as this property ,is concerned that part of Vista avenue abutting it might have been omitted; but there is nothing before the court to show that it may not have been necessary for the drainage, of property on the opposite side of Vista avenue.

This improvement had been made and the assessment levied some time before the sewerage contract was entered into between plaintiffs and the city, and the fact that it was not mentioned in that contract ieads to the belief that it was not intended by the parties that the arrangement made therein should in any way affect the validity of the Vista avenue assessment. It must therefore be held legal, and plaintiff ’s' petition is dismissed.

Jones, E. H., and Gorman, JJ., concur,


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    ATTACHMENT AND GARNISHMENT.
    [Stark (5th) Court of Appeals,
    February 8, 1916.]
    Shields, Powell & Houck, JJ.
    John Haas v. George Haas.
    1. Voluntary Payment, Upon Written Demand, to One Creditor for Necessaries no Bar to Garnishment by Another Creditor,
    Voluntary payments made by a debtor from his personal earnings on a claim against him for necessaries, even though a demand has been made on him for such payments, but where such voluntary payments, were made to his creditor without any suit in attachment being filed against him, do not, under Secs. 10271 and 10272 G. C., preclude a subsequent attaching creditor upon a claim for necessaries from reaching and subjecting ten per cent of such debtor’s personal earnings.
    2. Purpose of Statute to Reach Personal Earnings of Debtor not to Voluntary Payments.
    Voluntary payments made after such demand, relieve the debtor from the consequences of a contested suit and costs; but construing Secs. 10271 and 10272 G. C. together, it appears that the provisions thereof were intended to apply to and become effective in cases where action is brought to reach the personal earnings of the debtor, and not to cases where voluntary payments are made without pending or prior attachment proceedings.
    .Error.

      J. W. Burris, for plaintiff in error.

      Fisher & McCuskey, for defendant in error.
   PER CURIAM.

Proceedings in attachment were instituted before a justice of the peace to reach 10 per cent of the personal earnings of the debtor for necessaries. It appears that at the time such proceedings were commenced, the debtor was making voluntary payments of his personal earnings to another creditor for necessaries, and who had threatened to sue and garnishee his wages upon written demand made therefor. Such attachment was discharged by the said justice of the peace, and on an appeal taken to the court of common pleas,' said court reversed the judgment of the said justice of the peace discharging said judgment and ordered said case remanded to the said justice of the peace for further proceedings. Error proceedings are prosecuted to this court to reverse the judgment of said common pleas court.

By. Sec. 10233 G. C., a remedy is afforded for the attachment of the personal earnings of a debtor when an affidavit is filed with a justice of the peace conforming to the requirements therein stated. This is the general provision provided by statute. Section 10271 G. C., as amended, 103 O. L. 567, provides that:

“The personal earnings now exempted by law, in addition to the 10 per cent for necessaries, shall be further liable to the plaintiff for the actual costs of any proceeding brought to recover a judgment for such necessaries, in any sum not to exceed two dollars and, the necessary garnishee fee. Such garnishee may pay to such debtor an amount equal to ninety per cent of such personal earnings, less the sum of two dollars and the necessary garnishee fee of not to exceed fifty cents, if the same is demanded by the garnishee, for actual costs as herein provided, due at the time of the service of process or which may become due thereafter and before trial and be released from any further liability to such creditor, or to the court or any officers thereof, in such proceeding, or in any other proceeding, brought for the purpose of enforcing the payment of the balance of the costs due in said original action. Both the debtor and the creditor shall likewise be released from any further liability to the court or any officers thereof in such proceeding or in any other proceeding brought for the purpose of enforcing the payment of the balance of the costs due in said original action.”

Section 10272, G. C., provides that:

“The person bringing an action for necessaries first must make a demand in writing for the excess over and above 90 per cent of the personal earnings of the debtor, and such demand shall'be made at least three days and not more than thirty days before such action is brought by delivering such demand to the debtor personally, or by leaving it at the debt- or’s usual place of residence. No cost or expense shall be chargeable to the defendant debtor in such action if upon such demand he tenders payment in money or duly accepted order, Within three days after such demand, for the excess of his personal earnings above 90 per cent thereof.

Section 10273 G. C., provides that:

“More than one such demand by the same creditor shall not be made at closer periods than thirty days. The amount demanded may be for the excess above 90 per cent earned during the interval of thirty days. Any voluntary payment or payments made by the debtor during such interval shall be deducted from the amount which might be demanded had no payment or payments been made.”

Other statutory provisions follow with reference to the duties of the garnishee, but the foregoing sections will suffice for the purpose of this ease. Related as they are to the same subject-matter, we may well assume that these several sections of the statutes are to be construed together to ascertain the object of their enactment, and when so construed the legislative intent, in our judgment, will not be difficult of solution.

The foregoing legislation was obviously passed in the interest of creditors furnishing necessaries to persons whose personal earnings were theretofore protected by the exemption laws of the state, and while not saving to the debtor’s family' the full benefit of his labor, a small proportion of it is exacted by the law to be applied towards satisfying the claims of the grocer or other person who may supply necessaries for his table and household. Legislation of this character has gradually found place upon our statute books from time to time until now it is provided by said See. 10271 that in addition to the per cent of such earnings heretofore held liable for necessaries, such earnings shall be liable for costs in a sum not to exceed two dollars in an action brought by a creditor on a claim for necessaries.

The demand mentioned in said Sec. 10272 G. C. is held to be jurisdictional, hence unless such demand is made as therein required, if suit be brought, the attachment can not be maintained, for said section recites that “no cost or expense shall be chargeable to the defendant debtor in such action, if upon such demand he tenders payment in money or duly accepted order, within three days after such demand, for the excess of his personal earnings above 90 per cent thereof.” It would seem that this latter provision of said section was intended to relieve the defendant debtor from the consequences of a contested suit by the creditor. As will b'e seen said Sec. 10273 provides that not more than one demand by the same creditor shall be made at closer periods than thirty days. Grouping said sections together, then, we find that after written demand is made within the time stated, and in the absence of payment being made or tendered, or an accepted order given for the excess of the debtor’s personal earnings above 90 per cent thereof, suit may be brought therefor and a recovery had, together with the further sum of two dollars as costs, provided that no more than one such demand by the same creditor shall be made at closer periods than thirty days.

Here we have the question made whether one can make voluntary payments under a demand made for necessaries, in the absence of suit, and thus absolve himself from complying with compulsory process issued by another creditor upon a claim for necessaries furnished to the same defendant debtor while such voluntary payments are being made, at intervals of thirty days, or in other words, can such voluntary payments so made defeats creditor from enforcing payment of his claim for necessaries furnished in an action commenced by the latter while such voluntary payments are being made? Construing Secs. 10271 and 10272 together it appears that the provisions of said sections were intended to apply to and become effective i-n cases where action is brought to reach the personal earnings of a debtor for necessaries furnished, and not to cases where voluntary payments are made. Voluntary payments may be made but not so as to defeat the rights of an attaching creditor under the statute, for if it were otherwise the provisions of the statute and what seems to have been the purpose of this legislation would be rendered ineffective and nugatory.

It follows that the judgment of the court of common pleas will be affirmed.