text:
    LIABILITY FOR. GOODS LOST AT DESTINATION.
    Circuit Court of Hamilton County.
    Sig. & Sol. Freiberg v. Cleveland, Cincinnati, Chicago & St. Louis Railway Company et al.
    Decided, June 20, 1908.

      Carriers — Failure of Consignee to Take Goods — And of Railway to Notify Consignor of Such Failwre — Railway May Place Goods in Warehouse — And Change Its Relation from. Carrier to Bailee — But Consignor is Entitled, to a Tracer and Re-possession — Failure to Respond to Demand for Tracer — Goods Destroyed by Fire — Carrier Liable.

    It is the right of a shipper to demand that goods which have failed to reach the consignee be traced and reported back to him by the carrier; and where a carrier upon receiving demand from a shipper that goods be traced apparently acquiesces therein, but as a matter of fact takes no action for a long period during which the goods might have been traced, and they are finally destroyed in a burning warehouse, the carrier is liable to the shipper as a matter of law for the loss thus sustained.

      Cobb, Howard c& Bailey and Charles E. Tenney, for plaintiff.

      Harmon, Colston, Goldsmith & Hoadly, contra.
    Swing, P. J.; Giffen, J., and Smith, J., concur.
   This w.as an action in the Superior Court of Cincinnati, brought by the plaintiffs in error against the defendant companies for the value of five barrels of whiskey which had been shipped by the plaintiffs over the railways of the defendants to one Hanley at the city of Buffalo, N. Y. A jury was waived, and the cause was submitted to the court and judgment was rendered for the defendants. It is here on error to this judgment. The question is one of law as the facts are not disputed. The facts are in the main as follows:

On July 24, 1902, the plaintiffs delivered to the C., C., C. & St. L. Railway Co., commonly called the “Big Four Railway Company,” five barrels of whiskey consigned to James K. Hanley, Buffalo, N. Y., and received from .the railway company the usual bill of lading. The "Big Four” company transported the whiskey to the city of Cleveland, and there delivered the whiskey to the "Nickle Plate” Railway Company, a connecting line, defendant herein,. which said company transported said whiskey to the city of Buffalo, where it arrived about the 1st of August, 1902. ITanley was promptly notified of the arrival of the whiskey by the "Nickle Plate,” but paid no attention to the notice and did not receive the whiskey, whereupon within a few days the railway company placed the same, in a warehouse, where it remained until destroyed by fire on June 7, 1903. The plaintiffs were not notified by the railway company that Hanley refused to receive the whiskey. The plaintiffs-claim to have sold -the whiskey to Hanley on four months time. At the end of that time they drew on Hanley for the value of the whiskey. The bank through which the draft was drawn notified Hanley, and in reply he said: "never ordered nothing from them people and received nothing. ’ ’ This reply was sent to the plaintiffs on the 26th day of December, 1902. On the same day the plaintiffs wrote the Big Four Railway Company a letter as follows:

"Cincinnati, Dec. 26, 1902.
"Freight Agent, C., C., C. & St. L. Ry. Co.
“Dear Sir: Enclosed please find copy of bill of lading for our shipment of July 24, consigned to James K. Hanley, Buffalo, N. Y. We are today informed by consignee that he had never received these goods, and we will thank you therefore to kindly send -tracer after this shipment at once and report delivery to us here. Trusting you will give this your immediate attention, we remain,
“Very truly yours,
"Sig. & Sol. Freiberg.”

To this letter no reply was made by the railway company and apparently no attention' was paid to it. Afterward the plaintiffs wrote to Big Four as follows:

“Cincinnati, Jan. 21, 1903.
"Mr. F. P. Boisseau, Agent, C., C., C. & St. L. Ry. Co.
“Dear Sir: On December 26th, we sent you copy of bill of lading for our shipment of July 24th, consigned to James K. Hanley, Buffalo, N. Y., requesting you to have .this shipment traced and report delivery to us here. We have written you several times since that date in reference to this matter, but have no reply from you. Kindly trace this shipment immediately and report delivery to us here. Awaiting your reply, we remain,
“Very truly yours,
“Sig. & Sol. Freiberg.”
To this letter the following reply was sent:
“Cincinnati, Jan. 23, 1903.
“Messrs. Sig. & Sol. Freiberg.
“Gentlemen-. Replying to your favor dated January 2.1st, wherein you refer to your letter of December 26th, enclosing us copy of your bill of lading covering shipment of July 24th, consigned to James K. Hanley, Buffalo, N. Y., requesting that we have this shipment traced and report, delivery to you.
“Your letter with a copy of bill of lading was endorsed to Mr., George Metzger, our division freight agent, as this- office does not do any tracing whatever for shipments delayed in transportation. If hereafter when you desire a shipment traced you will address Mr. Metzger or Mr. N. R. Johnson, our general freight agent, at Fourth and Vine, it will receive prompt attention. I have referred your letter of the 21st to Mr. Metzger.
“Yours truly,
“F. P. Boisseáu, F. C. A.”

No further attention was paid by the railway company to this matter and the plaintiffs wrote the railway company as follows:

“Cincinnati, Feb. 19, 1903.
“Mr. F. P. Boisseáu, C., C., C. & St. L. Ry. Co., City.
“Dear Sir: Enclosed please find original bill of lading for our shipment July 24th, consigned to James K. Hanley, Buffalo, N. Y. Mr. Hanley informed us that he has never received this shipment, and we therefore instructed you several times to trace this shipment and report delivery to us here. As,you failed to comply with our request, we beg to make claim to this shipment and enclose herein copy of original invoice and our bill for the shipment. Kindly send us claim number at your earliest convenience.
■ ‘ ‘ Trusting this claim will be speedily adjusted, we remain,
“Very truly yours,
“Sig. & Son. Freiberg.”

On February 24, 1903, the C., C., C. & St. L. Railway, through Mr. F. P. Boisseau, acknowledged the receipt of this letter and gave the number of the claim and asked them to refer to the number given in subsequent communications. After-wards the railway company sent the following letter to plaintiffs:

“Cincinnati, Aug. 5, 1903.
“Messrs. Sig. & Son. Freiberg.
‘‘ Gentlemen: We respectfully return you herewith your claim presented against us for $335.76, account of loss on whiskey to James K. Hanley, Buffalo, N. Y. We have carefully investigated the handling of this shipment and find the same was delivered to the N. Y., C. & St. L. at Cleveland under date of July 29. Mr.' James Webster, of the N. Y., C. & St. L. has returned claim papers advising that repeated notices were mailed to consignee of the arrival of the shipment, but no responses were received by them. The shipment was finally placed in storage with the Buffalo Storage & Crating Company, where it was .destroyed by fire-on June 7th, and it is found that the storage company carried, no insurance whatever on any of the property stored by them. Under the circumstances the N. Y., C. & St. L. R. R. refuse to entertain your claim, and as we are in no way responsible would thank you to cancel your bill against this company and allow us to close our records.
“Yours truly,
“F. P. Boisseau, F. C. A.”

The defendants filed answers setting up five defenses. The N. Y., C. & St. L. Railway Co. said it was not asked to trace the goods by plaintiff, and that it had notified the consignee of the arrival of the goods and after four days it had. placed the goods in the warehouse, and that it had done all that in law'it was required to do.

The plaintiffs were not notified that the goods were delivered to the N. Y., C. & St. L. Ry. Co. by the “Big Four” until so informed by the letter of August 5, 1903.

We do not deem it expedient to consider here the question whether it is incumbent on a railway company to notify the consignor when the consignee refuses to take .the goods, for the reason that it does not determine any question in this case. Nor do we think there is here any question as to .the duty resting oñ a railway company .after the consignee refuses to -take the goods. We consider it settled law that .the railway company had the right to place the goods in a warehouse, and change its relation of carrier to that of bailee, and its responsibility as to the goods after that are such as the law places on a bailee. The rights of plaintiffs, if they have any, do not rest on the question whether the railway company wrongfully placed the goods in a warehouse.

We regard it as settled law that upon .the failure of the consignee to receive goods shipped to him the title to the goods is in the consignor, and that he has the right to repossess him of the goods and that it is the duty of the railway company to reship the goods to the consignor upon his demand, subject to reasonable regulations by the railway company as to the payment of charges, etc. According to the evidence in this case the goods were always the property of plaintiffs. Hanley says he never bought"' the whiskey. Upon receipt of knowledge by the plaintiffs that the goods had not been delivered to Hanley, the defendant was notified to trace the goods and return them to plaintiff, but it was more than seven months before the defendants informed plaintiffs as .to what had become of these goods. The goods had in fact been destroyed by fire more than five months after thé company had been asked to trace and return the goods.

Ordinarily questions as to what railway companies should do under circumstances of this kind are questions of fact to be left to the jury, but where they admit of but one conclusion they become questions of law for the court.

When plaintiffs informed the defendant that they wanted the goods traced and reported to them, the demand was a right they had. It was a duty resting oh the railway company to comply with this demand. It made no claim at the time that it was not a duty resting upon it. It received the request and apparently acquiesced in it, and apparently did nothing, although repeatedly urged by plaintiffs. It is not claimed by defendants that it was not within their power to trace the goods or to return them before they were destroyed.

We think the defendants had ample time in which to trace the goods and return them. The goods were destroyed long after they should have been returned to plaintiffs, and we think they should be held liable for their loss.

Judgment reversed and judgment for plaintiffs.


source: Caselaw Access Project

license: Public Domain

text:
    NECESSARY PARTIES TO FORECLOSURE IN OHIO.
    Circuit Court of Lucas County.
    United States Mortgage & Trust Company v. Anderson et al.

    Decided, March 10, 1908.

      Parties — Mandatory and Permissive Joinder of — Foreclosure—Outstanding Claimant a Necessary Party to, in Ohio — Pleading—Prior Encumbrancers — Contrary Policies of the Law — Protecting Purchasers O/f Judicial Sale — Constitutional Law — Right to Trial by Jury.

    1. A petition in an action by a mortgagee, asserting that a defendant claims to be owner in fee simple of the mortgaged premises and praying that defendants be required to answer and set forth their respective claims to the mortgaged property or be forever barre'd sufficiently complies with the provisions of Revised Statutes, 5006, as to joinder of such claimant of title.
    2. In Ohio, an outstanding claimant of title to mortgaged real estate is a proper party defendant in a proceeding to foreclose the mortgage.

      B. A. Hayes, for plaintiff.

      C. H. Trimble, B. P. Cary and C. A. Thatcher, contra.
    Wildman, J.; Parker, J., and Kinkade, J., concur.

       For other opinions in the same litigation, see Anderson v. Messinger, 4 O. L. R., 361; Anderson v. United Realty Co. et al, 9 C. C.—N. S., 473, and United States Mortgage & Trust Co. v. Anderson et al, 11 C. C.—N. S., 177.

   Opinion on demurrer.

The demurrer as presented to us is to .the petition of the United States Mortgage & Trust Company, the plaintiff, filed by the defendant, Peter Anderson, in the court below and re-urged here.

The allegation -of the petition as to the reasons for making him a party defendant is as follows: “Plaintiff further says that the defendant, Peter Anderson, claims to be the owner in fee simple of said premises.” And just before the prayer it is said, “the plaintiff therefore asks that they” (certain defendants) “be required to answer and set forth their respective claims or be forever barred. ’ ’ It may be a question whether this prayer refers to the defendants immediately before named, or whether it includes with the other defendants Peter Anderson. All are named in one paragraph, and as the statement in regard to the other defendants is similar -to that with regard to Anderson, my owh judgment is that this clause is intended to refer to all defendants who are so brought in.

In Bates’ work on Pleading and Practice and in the Kansas cases which he cites, it is indicated that an averment of this kind is hardly sufficient in some jurisdictions, or at least in those to which reference is made by Bates, without some further averment disputing the validity of the claims asserted by the parties so brought in. But in the ease of Winemiller v. Laughlin et al, 51 O. S., 421, our Supreme Court makes a little more liberal interpretation of Section 5006 of the Revised Statutes. It will be remembered that .that section provides that any person may be made a party who has or claims an interest in the controversy, and no special requirement is made in the statute as to the averments that are to be made as to the asserted rights of such claimants. In the case cited, Winemiller v. Laughlin et al, it was held in the syllabus, second paragraph, that:

“The plaintiff in an action to foreclose a mortgage is not required to set forth either the nature of or .the facts constituting the claim of another lienholder, in order to bar the latter by a decree against his claim if he should fail to answer. If for that purpose anything ,piore is required than to make him a party and serve him with legal process, i.t will be sufficient for the petition to state that such defendant claims some interest in the mortgaged premises, and advises him .that his claim or lien will be barred if he fails to appear and disclose it.”

It will be noticed that there is am implication here that possibly it will not be necessary to say anything about his claim; that it may .be necessary only to make him a party by summons, thereby giving him an opportunity to assert his claim by pleading it; in other words, that it may suffice ,to serve notice upon him that there is a suit in which the property in which he claims to have an interest is to be made the subject of a controversy and possible sale. But whether that is or is not permissible, the Supreme Court has definitely determined by this decision that it is not necessary to do more than say in the petition that he has or claims an interest in .the controversy, advising him that it will be barred if he fails to appear .and disclose it, and then serve him with summons, giving him an opportunity to ass.e.rt his rights and have them litigated.

We are unanimous in the opinion, derived from an examination of the numerous authorities cited, that the strong current of adjudications, outside of our own state is in support of the contention that prior encumbrancers or claimants, other than such as derive their titles or interests from the mortgagor of the mortgage which is sought to be foreclosed, are neither necessary nor proper parties in a suit of .this kind, and the important query with us, and the one to which we have devoted the most of our. attention, is as to whether that rule prevails in Ohio, whether it is the practice which has been adopted here, and whether it is the rule best supported by the adjudications and the statutes of our own state.

In Whittaker’s Annotated Code, in his annotation of Section 5006, and on page 106 (bottom paging), are references to some • of the same authorities which have been cited in argument, and also to Mr. Bliss’ work on Code Pleading, to which in our somewhat hurried examination of the question we have not had access. Pie cites Bliss on Code Pleading, Sections 100 and 101, in support of the proposition that in Ohio such prior encumbrancers or outstanding claimants are proper parties, whether or not they are necessary ones.

In Bates’ Pleading and Practice, Volume 1, page 583, is a discussion of the question very pertinent to the consideration of this demurrer, I read from the edition of 1881 which considered the authorities, or at least a number of them, bearing date prior to that time. There is no essential addition to the discussion of the question in the very recent edition of the same' work. On the page to which I have referred, Mr. Bates calls attention to the distinction between necessary and merely proper parties, and says that that distinction is very clearly shown in foreclosure cases. We have often had occasion to examine the distinction between mandatory and permissive joinder of parties. There are cases where persons must be brought in because they are essential to a determination of -the controversy, and others where they may be brought in, in order to permit adjudication of all controversies respecting claims relating to the same property in the same .action.

At the outset it may be said that the law might proceed upon either of two contradictory-policies. It might attempt to protect paramount . lienholders' against any disturbance of their' claims by contests between subsequent mortgagees and' persons owning the equities of redemption. It might by like reasoning and upon the same principle decline to embarrass or disturb outstanding claimants by bringing them into the litigation of controversies with which they have no concern. On the other hand, it may be the policy of the law to protect purchasers of property at judicial sales and to make more convenient the ascertainment of the value of properties sought to be sold. One state may adopt one policy, and another, another, and in determining which policies have been chosen in the different jurisdictions something may depend upon the nature of the foreclosure proceedings in the various states. In Ohio it necessarily involves a judicial sale, for the proceeds of the property are subjected to the payment of the mortgage claim. Not so in some of the states. In several of them the mortgagee takes' the property without any judicial sale at all.

Now manifestly, -in a state where no appraisal and sale is required, a very different rule might apply. Mr. Bates, in further consideration of this question, bases a large part of his reasoning upon the provisions of our statutes as to appraisal of the property and its sale to a purchaser. Omitting his language on this page until we arrive at paragraph 18, we find under caption, “Prior Encumbrancers, Whether Proper”:

“The very great authority of Mr. Pomeroy,” he says, “Sections 334 and 342, note 4, is that the incumbrancers whose liens are prior to 'that of the plaintiff, are in no way affected by the decree of foreclosure or the sale thereunder. Their rights are paramount, and they are neither necessary nor proper parties, and says it is generally so considered except in Iowa, citing a number of authorities, to which may be added Broward v. Hoag, 15 Fla., 370; Coy v. Downie, 14 Fla., 544, 563, and also the Kansas and Wisconsin eases cited below, as to the necessity of claiming the lien to be subsequent in order that a default may cut it off, the advice of which I have,followed in drawing the forms of petition.
“Nevertheless, his authority of Wright v. Bundy, 11 Ind., 398, seems to be rather the other way, and the later authority in New York of Brown v. Volkening, 64 N. Y., 76, holding prior mortgagees to be proper parties, would overrule contrary decisions in that state. The latest New York authority is that so far as mere legal rights are concerned, only the mortgagor and subsequent lienholders are proper parties, and they only are affected by the judgment, but that prior incumbrancers may be made parties for the purpose of having their interests ascertained and paid out of the proceeds, which purpose must be indicated in the petition. Emigrant Industrial Sav. Bk. v. Goldman, 75 N. Y., 127, 132.”
“It is also held,” he says, “that a prior incumbrancer is a proper party in Standish v. Dow, 21 Iowa, 363; Heimstreet v. Winnie, 10 Iowa, 430; Holland v. Jones, 9 Ind., 495; Warren v. Burton, 9 So. Car., 197; Adger v. Pringle, 11 So. Car., 527-545; Besser v. Hawthorn, 3 Ore., 129.
“In White v. Holman, 32 Ark., 753, he'is said to be not a necessary party, perhaps implying that he is a proper one.”

I have read these citations simply because I find them in Mr. Bates’ discussion of the matter, and without withdrawing the statement which I made a little while ago, that our court has concluded that the decided weight of authority outside of Ohio supports the contention of counsel contending for this demurrer and the doctrine of Mr. Pomeroy. Mr. Bates then addresses himself to the consideration of the question of the conflicting interests, or the conflicting policies, as I have called them, and says:

“Though the logic of -the position of prior incumbrancer, as a holder of a paramount right, who can not be dethroned or disturbed by those subject to-him, may be in favor of Mr. Pomeroy’s opinion, yet there is in Ohio a practical objection to the doctrine, which is insuperable.
“In Ohio a sale is always ordered in foreclosure cases (R. S., 5316). There must be an appraisement of the real value of the property in money (R. S., Section 5389) — for this section applies to mortgages, R. S., Sec. 5373 — and there can be no deduction in the appraisement for incumbrances, but the appraisement must be of the entire estate (Baird v. Kirtland, 8 Ohio, 21; Commercial Bank v. Western Reserve Bk., 11 Ohio, 444, 450; Fosdick’s Lessee v. Risk, 15 Ohio, 84, 106). And the sale can not be for'less than two-thirds the appraisement, Section 5391.
“The consequence is obvious,” continues Mr. Bates, “if prior incumbrances are not cut off, no bidders will give a minimnni of two-thirds the value of the entire estate, with several mortgages to pay off in addition, and the junior incumbrancer is helpless, unless he is able to pay up the earlier liens.
“Nor would it be possible for the appraisers to examine the title and allow for prior incumbrances, for their value could be determined often only after examining witnesses as to the amount of interest or principal already paid, and deciding questions of law as to the validity of possible defenses, and if such prior incumbrance happens to be an indemnity mortgage, its amount would be contingent on considerations inextricable except by a court.”

With much force, this last argument of Mr. Bates might be applied to the case of an outstanding but disputed claim of title; one which for the determination of its validity might require the examination of many witnesses and the taking of much evidence, a matter, of course, of almost insuperable difficulty to appraisers attempting to determine the value of the equity of redemption merely or the value of the interest of a party in possession, where his iflght'to the possession is controverted by some person not in court. '

Directly pertinent to this inquiry is the ease of Jonathan Thatcher et al v. Joshua M. Dickinson et al, decided by the Putnam Circuit Court of this state at. the April Term, 1888, 2 Cir. Dec., page 82. The third, fourth and fifth paragraphs of the syllabus read as follows:

“3. In a suit to foreclose a mortgage and to marshal liens, an order to sell can not be made subject to a certain undetermined indebtedness set forth in the answer and cross-petition of a defendant lienholder.
“4. Under the statute the appraisers are sworn to appraise the property at its cash value. A 'court is not authorized in such a suit to order an appraisement of-the property ‘subject to a certain undetermined indebtedness,’ and an appraisement in accordance with such an order is irregular.
“5. in such an action the court should see to it that all lien-holders- and parties interested should be made parties, and it is error iq the count to dismiss, without prejudice, a defendant lien-holder, "and order a sale of the property subject to his undetermined. lien.” . . /

The opinion in 'the case is -by Judge Seney. I will not' stop to read it, but will say that the discussion of the matter is very much along the same line as -the reasoning embodied in Mr. Bates’ work on Pleading and Practice.

-•The case of Doan v. Biteley, 49 O. S., 588, has been largely relied upon by counsel for the plaintiff to sustain their contention that Anderson is a proper party here, because of his assertion or clairn of being the owner of these premises which are sought to be sold in the foreclosure proceeding; and we think that there is much force in the claimed application of this decision. It is true that it was not the case of the foreclosure of a mortgage against a living mortgagor. But can it be said that when an administrator attempts to sell a decedent’s real estate for the purpose of paying debts, his right to sell has a larger scope than that which is possessed by the sheriff upon a judicial sale of mortgaged property. In the case of the mortgage, the mortgagor owns an equity of redemption; where a man dies, he leaves to those who succeed to his interests only that which he owned. It does not seem to us that the .rights conveyed at an administrator’s sale can rise higher than those which were owned by the decedent at the time of his death, if the rights conveyed by the sheriff or master at a judicial sale in a mortgage foreclosure can rise no higher than those which were owned -by the mortgagor at the time of foreclosure. In either case by the adjudication in Ohio in the case of Doan v. Biteley it would seem that it w.as the policy of the law to have an end of litigation; to avoid a multiplicity of suits; to bring in all persons who might be interested in the sale or in having clouds removed from titles and, having determined the controversies, to protect the interests of possible purchasers by giving to thém unclouded titles, titles free and clear of the claims of all persons who may be brought within the jurisdiction of the court to assert them. I have not been able to see any distinction of substance between the ease which was' heard in Doan v. Biteley and that which we have in the case at bar. True, the administration law makes more specific provision as to the making of parties defendant in proceedings to sell land; but the ultimate intent of the foreclosure proceeding to sell the land instead of a mere equity of redemption is made equally apparent by the legislative requirements already referred to..

The case of Stewart v. Johnson, 30 O. S., 24, decided by the Supreme Court Commission, has some bearing, we think, upon the question before us. The second paragraph of the syllabus is:

“It is the right of a mortgagee, 'as against his mortgagor, to foreclose the mortgage; but under the statute, he can foreclose only by a sale of the mortgaged premises; a junior mortgagee may therefore maintain an action for the foreclosure of his mortgage against those having an interest in the premises, to subject the same to the payments of the liens thereon, without having first paid off the prior mortgage. ’ ’

There had been in that ease a foreclosure by the senior mortgagee and a purchase at judicial sale, and it was held that the rights of the junior mortgagee remained unaffected, he not having been made a party, and when he subsequently sought to foreclose his mortgage, it was held that it might be done.

In 53 Ohio State, 151, is the case of Stewart, Administrator, v. Railway Company et al, which went up from my own county of Huron in the year 1895. I will not stop to read very much of the case, but simply invite attention to the language of Judge Williams as found on page 167:

“It is the duty of a mortgagee to make all persons who appear of record to have a lien upon or interest in the mortgaged premises, parties to his action of foreclosure, and if he does not, their lien or interest remains unaffected thereby; and any such encumbrancer, whether prior or subsequent to the mortgage, who has not been made a party, may maintain an action to enforce his lien, and have a re-sale of the property for that purpose. ’ ’

Citation is made of several earlier eases in Ohio, and also Vanderkemp v. Shelton, 11 Paige, 28.

Our conclusion of the whole matter is that a demurrer to the petition ought not to be sustained, but in announcing that result of this discussion, we do not wish to be understood as going any farther than the necessities of the question demand; in other words, we are not passing upon what would be the rule in the case of an' effort to bring into court a prior encumbrancer whose indebtedness has not yet matured. We are not disposing of a case as against a mortgagee having a mortgage which he may desire to preserve in force upon property for a term of years perhaps, and wherein, if the land were forced to .sale as against him, i,t might interfere with his just rights. We leave that question as an open one, to be determined when the question properly arises. The demurrer to the petition will be overruled.


text:
    CIVIL ACTION TERMINATED BY UNLAWFUL DISCHARGE OF JURY.
    Circuit Court of Hamilton County.
    Franciska Rau, Executrix, v. L. Risiden.
    Decided, May 16, 1908.

      Trial — Discharge of Jury — -Unauthorized, When — Cause Terminated, Thereby — Discretion of Court — Res Judicata — Sections 5195 and 5196.

    The power to discharge the jury in a civil cause during trial or after the cause is submitted and before verdict is not discretionary in a court, but must be based on a finding that some necessity exists for such action, or upon consent of both parties; and where the record discloses no necessity for such action beyond a bare request by the plaintiff, and no consideration by the court of the necessity for so doing, the discharge is unauthorized and deprives the court of further jurisdiction, and a motion to dismiss the action should be granted.

      Cormcmy & Gormany and John J. Gasser, for plaintiff in error.

      Stanley Matthews and Burch, Peters & Matthews, contra. ,
    Gieeen, J.; Swing, P. J., and Smith, J., concur.
   It is apparent from Sections 5195 and 5] 96, Revised Statutes, that the power to discharge a jury during the trial or after the cause is submitted and before verdict is not discretionary in the court, but must be based upon a finding of some necessity for such action, or upon the consent of both parties. In the case of Dobbins v. State, 14 O. S., 493, the third proposition of the syllabus is as follows:

“To justify holding the accused to a further trial, after such discharge, the record must show that an obstacle which the law will recognize as a necessity, did in fact exist, that it engaged the attention of the court, and that the order was based thereon, and was the result of consideration and decision; but it need not show all the facts and circumstances which influenced the decision, unless made part thereof by bill of exceptions.”

Although that was a criminal case the same rule would seem to apply here in a civil action. In the case of State v. Behimer, 20 O. S., 572, in discussing the constitutional provision that no person shall “be twice put in jeopardy for the same offense” it is said at page 576:

‘ ‘ The constitutional provision extends the common law maxim, which was limited to ’felonies to all grades of offenses; and it is but the application to the administration of criminal justice, of a more general maxim of jurisprudence, that no one shall be twice vexed for one and the same cause. On this maxim rests the whole doctrine of res judicata. The object of incorporating it into the fundamental law, was to render it, as respects criminal causes, inviolable by any department of the government.”

The record in this case discloses no reason for the action of the court, nor that anything engaged the attention of the court other than a bare request by-the.plaintiff that the jury be discharged and the case continued. If the unauthorized discharge of the jury in a criminal case legally ends the prosecution, there seems good reason to hold that such discharge in a civil action works, under the maxim above referred to, a like termination. We are of opinion, therefore, that the court had no jurisdiction 'to further try the case and the motion to dismiss the action should have been sustained.

Judgment reversed and cause remanded to be dismissed for want of jurisdiction.


text:
    POWER OF THE GENERAL ASSEMBLY TO INVESTIGATE LOCAL GOVERNMENTS.
    Circuit Court of Hamilton County.
    The State of Ohio, on the Relation of Hiram M. Rulison, Prosecuting Attorney of Hamilton County, Ohio, v. Benjamin F. Gayman et al.
    Decided, July 27, 1908.

      Constitutional Law — Investigation of Corruption in Local Governments — Power of the General Assembly to Order — Justification for —Procuring Information for a Future General Assembly not Sufficient — Real Purpose of the Resolution, not Its Declared Purpose, Will be Sought — Revolutionary Procedure not Permissible.

    1. The Senate joint resolution passed by the General Assembly February 14, 1908, providing for the appointment of a committee to investigate charges of corruption in the government of the city of Cincinnati and county of Hamilton, is an exercise of judicial power not expressly conferred by the Constitution, and a gross violation of Section 32 of Article II thereof, unless it can be justified on the ground of seeking information in aid of intended legislation.
    2. But the intemperate language in the resolution and the.license and revolutionary procedure proposed, together with the declaration that all laws are being violated by an organized band which no one dares to oppose, make it clear that hope is not based on additional legislation which obviously could not be rendered effective under such circumstances; but these considerations cause it to be evident that the resolution was not adopted in good faith for the purpose of providing remedial laws, and places it beyond the pale of the Constitution.
    3. And were this not true, the fact that the General Assembly has adjourned sine die renders it impossible that information which might be obtained by such an investigation shall be used by the body seeking it for the purpose proposed, or that it will be so used by a body over which the recent General Assembly will have any control, and therefore deprive the investigation of the purpose announced, and leaves the matter in the same situation as though no purpose had been declared by the resolution.

      Hiram M. Rulison and Frank F. Dinsmore, for plaintiff.

      Theodore Horstman, contra.

      Giffen, J.; Swing, P. J., and Smith, J., concur.
   The.pleadings in this case raise the question of the validity of a joint resolution of the General Assembly and of the power of the committee appointed thereunder to investigate charges of corruption existing in the government of the city of Cincinnati and the county of Hamilton.

The preamble recites the appointment of a former committee for the same purpose, which disclosed many abuses subversive of government by the people, one of which was corrected by a subsequent act of the Legislature; charges in general terms of usurpation of power belonging to the people, bribery, corruption in office, wholesale -election frauds and other forms of misgovernment. The resolution provides for the appointment of a committee of six, three from each house, with full power to investigate all said matters and charges and all matters and things in any way pertaining thereto; empowers the committee to compel the production before it of any books and records, letters or documentary evidence of any character, which, in the judgment of the committee or a majority thereof, pertains to any matter or thing under investigation and wherever found, and also to. compel the attendance of any witnesses; and directs the connnittee to make report to the General Assembly if in session, and if not to the Governor for .transmission to the succeeding General Assembly, of its proceedings with full transcript of testimony taken by it together with its findings in writing with such recommendations 1 for further legislation and amendment to existing legislation as the disclosures of said committee may warrant.

The distrust of our institutions, laws and men expressed by the Legislature in this resolution is unbounded and deplorable, extending even to its own ability to provide a remedy, as it imposes'the burden upon'its successors. The very nature of the power granted as well as the persistence in asserting it after the decision of the case of State v. Guilbert, 75 O. S., 1, calls for a determination. of the question whether the right to exercise it exists at any time independent of the adjournment of the Legislature.

The claim is made first -that the power conferred is judicial and not legislative, the exercise of which would contravene Section 32, Article II of the Constitution, providing, “The General Assembly shall grant no divorce, nor exercise any judicial power not herein expressly • conferred. ”

The power to subpoena witnesses, to send for books and papers, to hear and determine charges of crime, is certainly judicial in its nature; but whether so in the sense of this constitutional inhibition is not as clear. If the right to punish were added the power would be complete and embrace every act that could be done by the courts1; but the very absence of this power shows how barren of good results such proceedings would be, and on the other hand no one can measure the harm that would follow.

The General Assembly had, prior to the adoption of the present Constitution, not only assumed power not delegated to them, but had usurped a power expressly conferred upon the judiciary, by granting divorces. Bingham v. Miller, 17 Ohio, 447.

This abuse of power, existing for a period of more than forty years, was the occasion of emphasizing the inhibition against granting divorces, and in no sense lessens the force of or in any way qualifies the general provision against the exercise of judicial power not expressly conferred.

The special as well as the general inhibition existed by implication from the distribution of the powers of the state, by the Constitution, to the three departments of government (The City of Zanesville v. Telegraph & Telephone Co., 64 O. S., 67), but owing to the growing temptations to exercise power not conferred it was deemed wise to deny the right in positive terms. The resolution empowers 'the committee in effect to frame indictments, hear ex parte evidence, and determine the guilt or innocence of the accused, who would thereby be exposed to all the censur .and disgrace attending a legal trial without the privilege of making a defense, and .without exempting them from subsequent trial for the same offense. It was intended to avoid such confusion of power and protect the personal and property rights of the citizen by adopting this provision of the Constitution, and unless this investigation ca.n be justified upon the ground of seeking information in .aid of intended legislation it is a gross violation of such provision. Kilbourn v. Thompson, 103 U. S., 168.

This brings us to an inquiry of the purpose the Legislature had in-granting such extraordinary power to a special cqmmittee — not the expressed but the real purpose. The resolution-declares the purpose to be “for further legislation and amendment to existing legislation as the disclosures of said committee may warrant”; -but the constitutional rights -of citizens of this state can not be invaded by either branch of the government upon a mere declaration of good faith. A present intention to do -an act in -the future, when brought in question can -only be determined -by existing conditions. In this -case the conditions relied on are expressed in -the preamble to the resolution and are little sh-or-t of anarchy itself. There is no suggestion of any defect in the criminal statutes thus violated, either in definition or penalty; but the chief complaint is that an organized band of law breakers are defying all laws and no one dare restrain them.

What legislation is proposed to meet a situation like this if found to exist ? None whatever,' and none could under such conditions be suggested -that would be more effective than the present statutes. The efficiency of all law .and especially criminal law lies in the certainty of its enforcement, and it would be a fruitless task to pass numerous criminal statutes when 'existing statutes upon the same subjects with ample penalties are violated with impunity. We might with propriety suggest the mode of procedure-under the Constitution and the statutes, were it n-ot-that the resolution as a whole forecloses every avenue of escape from the dire calamity by declaring all the instruments for -the enforcement of law to be tainted with corruption. Such charges might not be unexpected from irresponsible agitators in the heat -and excitement of a political campaign, but so far as we are .advised have no precedent in any adjudged case or even in any legislative body.

The language -of the preamble is intemperate, ill-timed and revolutionary. If- sanctioned by the courts the .dominant political party will be licensed to prefer, at each recurring election, charges of crime against the citizens of any community .of which its adversary has control and to hear and determine the same. __

We are persuaded -that however gross may be the abuse of power, and however flagrant may be the violation of law, the people are not ready nor willing to abandon -orderly and legal procedure in the exposure, conviction and punishment of crime; and that even .the authors of this injustice will, when released from political strife and turmoil, condemn their own production. We are of opinion therefore that the resolution itself shows that it was not, in good faith, passed for the purpose of remedial legislation, and that an attempt was made to exercise judicial power contrary to- the Constitution.

If we are wrong in this conclusion the question still arises] whether the committee can act after the final adjournment ofj the General Assembly. The right -to investigate and gather in-' formation in the manner here proposed exists, if at all, as an' incident of and by implication from -the power -to legislate con-j ferred by the Constitution. An act duly passed by''the Gen-! eral Assembly is a complete exercise of the power to legislate; but a resolution to investigate for the purpose of. further legislation, passed by the same body, is the exercise of a right incident to that power, and if the power itself be surrendered the incidental right goes with it.

When the General Assembly adjourned sine die its purpose’ to use the information in aid of legislation could no longer be carried out; and while it could order the information to be transmitted to its successor, it could not form or express a purpose for nor impose its own upon its successor. The latter, would vise the information as it saw fit, without regard to the intention of the former.

It is the same as if no purpose were expressed, and the result is that an investigation is proposed, without any legislative purpose or any other acknowledged purpose, with authority in the .committee to roam over the -entire field of governmental functions and report its discoveries to the next General Assembly fresh from the people who alone have power to instruct. Such power to investigate is not conferred by the Constitution in express terms nor by implication. Cushing’s L. & P. of Leg. Assemblies, Section 496; In re Pac. Ry. Co., 32 Fed., 241.

Demurrer to answers sustained.


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    EVIDENCE ESTABLISHING A GIFT CAUSA MORTIS.
    Circuit Court of Hamilton County.
    Galbraith v. Sutton et al.

    Decided, June 15, 1908.

      Gift of Bonds in Expectation of Death — Necessary Conditions to Bender Legal — Evidence Establishing Validity of Gift.

    Bonds given by an invalid to her sister in expectation of death, but with the condition that they be returned to her in case she should need them, are a, valid gift causa mortis.

      David t)avis and John Q. Martin, for plaintiff in error,

      G. 8. Hawke, contra.
    Smith, J.; Swing, P. J., and Gieeen, J., concur.

       Affirming Sutton, Executrix, v. Galbraith, 7 N. P.—N. S., 293.

   A gift causa mortis is a gift of personal property made in the immediate apprehension of death subject to the conditions, express or implied, that if the donor should not die as expected, or if the donee should die first, or if the donor should revoke the gift before death, the gift shall be void. Am. & Eng. Enc., Vol. 14, page 1052.

We think .the evidence in this case shows that the gift to defendant in error as claimed by her was a gift causa mortis from Elizabeth L. Galbraith, .and particularly when the donor used this language: ' ‘ Oh, Mary, I .am sick; I am very sick. I do not think I am going to live very long; I am going to make you a present; I am going to give you some of my bonds,” and afterwards when the donor said: '‘Mary, I am going to give you some of my bonds-. I talked to you about it .last fall. I did not do it. I will put it off no longer. The doctor tells me in all probability T will not live a year. • I want you to have them. You have a right to them'. You know where the money came from.”

The evidence shows that all the elements of a gift causa mortis were present in this case. It was made in expectation of death; the bonds were delivered, and the donee retained possession. There was no revocation of the gift and the 'donor subsequently died without recovering from the sickness mentioned by her.

The gift therefore being legally consummated, the bonds to recover which this suit is brought belonged to the defendant in error, Mary L. Sutton, and not to the estate of Elizabeth L. Galbraith.

Judgment affirmed.


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    VALIDITY OF EXTENSION OF A STREET RAILWAY FRANCHISE.
    Circuit Court of Montgomery County.
    State of Ohio, ex rel Herman, City Solicitor of Dayton, Ohio, v. The Oakwood Street Railway Company.
    Decided, June 22, 1908.

      Municipalities — Extension of Street Railway. Grant — Passage of Ordinance Delayed Beyond Expiration of Original Grant — Extension Ordinance a Temporary Act, When — Failure to Publish — Presumption — Consents—Mistahe as to Name of Company — Change in Judicial Construction — Effect of, on Contracts not Retroactive— Overthrow of Doctrine of Classification — Irregularities in Passage of Ordinance — Waiver—Proceedings for Ouster — Section 2502.

    " 1. A grant extending a street railway franchise is not rendered invalid, because while awaiting certain enabling legislation, under an amicable arrangement between the municipality and the company, the passage of the ordinance extending the grant was deferred for some months beyond the termination of the life of the original grant.
    2. An ordinance extending a street railway grant, which relates to but one road and involves no expenditure of money belonging to the city, hut is simply a contract between the railway company and the city, is not of a general or permanent nature, and is not rendered invalid by reason of failure to read it on three different days or to suspend the rules requiring this to' be done.
    3. The duty of publishing an ordinance rests upon the city, and in an action brought by the city solicitor to oust a street railway company from its franchise, it is encumbent upon the city to establish such an omission, and in the absence of proof to that effect a presumption arises that publication was regularly made.
    4. Whether consents from abutting property owners were secured for such an extension is a matter which concerns the property owners only, and in the absence of complaint from them can not be used by the city as ground for an ouster proceeding; and, moreover, such an objection will be deemed to have been waived where many years have intervened.
    5. The fact that the extension was granted to the Oakwood Street Railroad Company, instead of the Oakwood Street Railway Company, does not afford ground for an ouster, where it is admitted that it is one and the same company, and the city accepted the bonds of the company and all the bridge and street improvements made by it under the ordinance.
    6. Inasmuch as judicial construction with respect to a statute is given the same effect in its operation on contracts and existing contract rights that would be given by legislative amendment, subsequent adjudications which seem to render Section 2502 unconstitutional will not be construed as having a retroactive effect upon a franchise founded on a good consideration and granted at a time when this statute would have stood the constitutional test; and particularly will such retroactive effect be denied in view of the curative provisions of Section 31 of the municipal code.
    Sullivan, J.; Wilson, J., and Dustin, J., concur.
   Quo warranto.

This action was brought originally in this court and submitted at its last term; it is an action to oust the railway company from its franchise. The issues are plain and well put, and there is little or no conflict in the testimony upon the main facts, and the questions of law arising upon the issues made and the facts presented have been so fully settled in our opinion that it does not seem necessary to do more than state the conclusions we have reached.

From the facts stated in the petition, taken in connection with the testimony submitted, we find that the action is properly brought.

The gravamen of the relator’s complaint is that the railway company is exercising and enjoying the privileges and rights claimed by it in contravention of law. There is no complaint against the company that it is not exercising its franchises in in the interests of the public, or furnishing all the facilities for its patronage that are required by law and the terms of its contract with the city. The plain, simple question presented is whether it is exercising these privileges in contravention of law.

The railway company, in its response to the petition, sets forth in substance the ordinance granting to it the right and privilege of occupying the streets named for its tracks, and the operation of its cars thereon, and the agreement between the parties relative to the company continuing in possession and operation of its route until the negotiations looking'to a renewal of its former grant were terminated; and in addition it sets forth the considerations that' moved the city through its officials to apply to the Legislature to amend Section 2502, authorizing cities of its grade and class to grant originally, or extend grants, to street railway companies’ franchises for a period of fifty years. That, relying upon the validity of the act as amended .and of the ordinance enacted by the city in pursuance thereof, and'upon the good faith of the city, it fully complied with and discharged the obligations to the city placed upon it by the city ordinance, and in addition expended large sums of money in the improvement and equipment of its road, etc., to keep pace with the demands of the public using its road.

The answer further sets forth that its route at the time of the passage of the ordinance was and is composed of two separate routes, which by proper proceedings under the statute were consolidated; and the consolidated route was known interchangeably as the Oakwood Railroad Company and the Oakwood Railway .Company; that before consolidation the separate routes were known as Nos. 2 and 3. It sets forth the various expenditures of large sums of money. All were made on faith of the grant of fifty years. That for the improvement of the streets required of the company, the grant for that period was the chief consideration offered by the city. It has been continuously subject to the valid ordinances of said city under its police power; that it has since on demand by the state paid one per cent, of its gross receipts.

The reply of the plaintiff, .after denying many of the allegations of the answer of the company, sets forth in detail wherein the company is exercising rights and privileges in contravention of law; that the right and franchise claimed by the company began in 1891; that it does not and has not claimed any such rights except under the ordinance of that date; that the grant for route No. 2 expired March 17, 1891; that no ordinance or resolution was legally passed'renewing said grant; that the ordinance of July 10, 1891, under which the company claims, was never legally passed; that the franchise for route No. 2, which expired March 17, -1891, could not be renewed unless renewed during the life of the original grant or, as expressed by the statute, at its expiration; that the ordinance of July 10, 1891, was not read upon three different days before its passage, and the rules requiring this were- not suspended, and hence the ordinance is not valid; and that Section 2502 as amended, and under which the grant was attempted to be given, was unconstitutional.

The testimony produced shows that prior to the expiratidn of the original franchise for route No. 2, to-wit, March 16, 1891, the city council passed an ordinance extending the franchise for a period of twenty-five years from and after that date. Because of the burdens imposed upon the company by this ordinance the railroad company declined to undertake the burdens with a franchise for only twenty-five years-. It seems to have been satisfactorily apparent to both the city and the railway company that to assume and undertake the burden imposed 'would result in financial embarrassment to the company. By an amicable arrangement between it and the city it continued in the operation of its road, and also in negotiations with a view of a renewal of said franchise, and having Section 2502 amended authorizing the city to extend the grant for a period of fifty years and this amicable arrangement continued until the amendment was secured, and the passage of the ordinance of July 10, 1891, in pursuance thereof, extending the grant to the company for the period of fifty years from and after the date of the expiration of the respective grants. But relator claims because the statute provides that grants may be renewed at their expiration and that such statutes must be. strictly construed, therefore, the grant for route No. 2 having expired March 16, 1891, it could not be renewed July 10, 1891, as stated above.

The testimony if not directly, still by inference, clearly shows that a renewal was sought at the expiration of the former grant, although its completion was not fully accomplished until July • 10, 1891. During this period the parties were endeavoring to get together upon terms, and at' no time were the negotiations looking to its completion abandoned. Each party was desirous to arrive upon terms, and the delay was not .because either had abandoned the purpose to renew.

We think, in view of these facts, and that now for the first time this claim is being made by the city, and the ordinance finally passed itself treating and designating it as a renewal, that the ordinance of July 10, 1891, should now be recognized and treated as a compliance with the statute.

The ordinance of July 10, 1891, was not read on three different days, nor were the rules suspended requiring this to be done; and hence relator insists that the railroad company has no grant or authority to maintain and operate its road upon the several streets composing its route; that it is an ordinance of a general or permanent nature, and unless- it was read on three different days, or the rules dispensed with, it-wás a nullity. In our opinion it was neither of a general or permanent nature. It related to but one road, involved no expenditure of the city’s money, nor did it relate to the government of the city, .and the limitation of the grant extended by it was absolutely fixed. At the time there was and now is a general ordinance of the city, passed long prior to the 'date of this one, relating to all street railways within the limits of the corporation. Furthermore, the ordinance was simply a contract between the city and the railway company. We think, under the authority of Railway v. Horstman, 72 O. S.,-, it was a special act and temporary.

It is claimed by the relator .that the ordinance was not published as required by 'the statute, and for that reason it is void. It was not incumbent upon the railway company to discharge this duty; it was upon the city. It seeks now to avail itself, to the prejudice of the company, of its own omission. Being incumbent upon the city, the burden of establishing this omission is upon it. We are of the opinion it has not discharged it; and in the absence of testimony on .the point the presumption is that the ordinance was published.

The relator claims there is no proof of consents. Whether any were given as to the extension should not .avail the city here, as that is a matter of the -abutting land owners alone, and no one of that class is here complaining. The lapse of so many years after the extension was granted, without protest, we are inclined to the view that in law it constitutes a waiver.

The charter title of the defendant is the Oakwood Street Railway Company and the grant in the ordinance is to the Oakwood Street Railroad Company. It is therefore claimed by the relator that the respondent has no grant. The relator does not deny the allegation of the railway company that it is the same company. It negotiated the renewal with the Oakwood Street Railway Company. It acted upon the acceptance of the ordinance by that company, accepted its bonds and all the bridge and street improvements made by that company under the ordinances, concedes there is no Oakwood Street Railroad Company; that the respondent has since 1871 operated the route and .that it is called interchangeably Oakwood Street Railroad Company and Oakwood Street Railway Company. Certainly under these facts the relator does not seriously contend that the railway company should be ousted for this reason.

In our .opinion the ordinance contains but one subject.

It is claimed by the relator that Section 2502, as amended April 24, 1891, contravenes the Constitution and thex'efore the grant of tlie city, July 10, 1891, .to the .railway company is invalid. At the time of the amendment Dayton was the only city in the state of the second grade of -the second class. • The classification by which it was placed in a class by itself was based upon a substantial difference in population, viz., below 30502 and above 20,000. This court upheld the classification of Dayton in what is known as the crematory case. Its judgment was .affirmed by the Supreme Court.

Our attention has not been called, neither have we been able to find, any other case in which classification as applied to this city has been assailed; and whether it' would, be upheld when invoked under conditions disclosed in this case it is unnecessary we think for this court to venture an opinion. Upon the point, however, it may not be out of place here to call attention to the expression of the Supreme Court, made since the cases in 66 Ohio State, understood to overthrow the entire doctrine of classification, found in the second syllabus in Gench v. State, 71 Ohio State, 151:

“Within the legitimate purposes of general legislation not relating to the organization of cities and villages a bona fide classification on the basis of real and substantial difference in population, and out of conditions growing therefrom, may be valid.”

Whether the section under consideration is repugnant to the Constitution under the 66th Ohio Sta.te cases is not the question that must determine the controversy here. A change in judicial opinions respecting the constitutional validity of legislative enactments can not have retroactive operation upon contracts entered into pursuant to statutory provisions and in reliance upon former adjudications respecting their validity. To give them such operation- would violate another provision of the Constitution equal in importance to the one urged here.

“The true rule -is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights -that would be given to legislative amendment; that is to say, making it prospective but not retroactive. After a statute has- been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is to all intents and purposes the same in its effect on 'Contracts as on amendments of the law by means of a legislative enactment. Lewis v. Auditor Sims, 61 O. S., 471; Douglass v. County of Pike, 101 U. S., 677.”

So that if, in view of adjudications since the amendment to Section 2502, April, 1891, • the section is probably unconstitutional, yet as simitar laws, including the same or similar constitutional defects, had been judicially determined valid theretofore and at the time oUthe grant to the railway company, the subsequent adjudications could not have a retroactive effect upon the grant, because it is a contract founded upon a good consideration. Shoemaker v. City of Cincinnati, 68 O. S., 603.

In the case of the State, ex rel Seymour, Prosecuting Attorney, v. Gilfillen, this court held the tax inquisitor law unconstitutional, 19 Circuit Decisions, 709.

But we held that rights acquired by the inquisitor by virtue of contracts entered into according to the provisions of said act when that or similar acts were held by the highest court of the state to be constitutional were valid and subsisting rights and could be enforced. - This judgment was affirmed by the Supreme Court.

The ordinance is a contract between the railway company and the city, and hence the controversy here involves the above rule.

The overthrow of the doctrine of classification in the 66th Ohio State cases necessarily- involved in doubt numerous rights acquired by citizens whilst the doctrine was upheld. AVhether feared'or expected, yet so great was the surprise when it came that a special session of the Legislature was deemed imperative and it was called. Rights similar in character to those involved in this case the Legislature evidently apprehended would be seriously affected, involved in doubt and become at once a source of serious litigation; and hence it.fixed rights arising out of contracts by legislative enactment. To avoid any question as to the rights of parties acquired by contract theretofore it passed a curative act — Section 31 of municipal code of 1902.

Whilst tve have seen that the relator, under the common law, is not entitled to the decree it prays for here, yet the Legislature has wisely removed all doubts that might arise.

Judgment for defendant.


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    PROSECUTIONS FOR. EMBEZZLEMENT.
    Circuit Court of Hamilton County.
    Austin W. Tidd v. State of Ohio.
    Decided, June 6, 1908.

      Criminal Law — Indictment for Embezzlement — Time Laid Immaterial, When — Ownership of Property — Evidence.
    The time laid for the receiving of the money in an indictment for embezzlement is immaterial, when it appears that at the time the embezzlement occurred the ownership of the property was as alleged in the indictment.

      Thomas L. Michie, for plaintiff in error.

      Froome Morris, contra.
    Smith, J., Saving, P. J., and Gippen, J., concur.
   The plaintiff in error was convicted of embezzlement in the common pleas court of this county and sentenced to the penitentiary, to reverse which judgment this suit in error is brought.

The only ground of error complained of is, that while the indictment charges Tidd with embezzling money, the property of the Smith Envelope Company, a corporation, on the 14th day of March, 1907, which money came into his posession and care as treasurer and manager of such corporation at the time of the embezzlement, yet he can not be held under the indictment, for the reason that at the time of the embezzlement is alleged to have occurred -no such corporation existed, and therefore he should be discharged.

We do not think the time laid in the indictment as to the embezzling of the money is material.

The record shows that at the time of the delivery of the money from Ellerhorst to Tidd, there was talked over the formation of the corporation to be known as the Smith Envelope Company; that soon afterward such a company was duly incorporated; that certificates of stock were issued by the company, signed by Ellerhorst, as president, and Tidd, as treasurer; that Tidd expended a part of the money entrusted to him in fitting up the office of the company, and for sundry necessary expenses, and when the jury found him guilty of embezzlement, it was for the embezzlement of money after the incorporation of the company, and necessarily found that the money belonged to the Smith Envelope Company.

The record further discloses that the defense made to the jury at the trial of the case was that the money alleged to have been embezzled was not the money of the Smith Envelope Company, but belonged to the Standard Pay Envelope Company. The jury were called to pass upon this question of fact, and found in their verdict that the money entrusted to him, for which he was convicted, was the money of the Smith Envelope Company. As has been said in cases cited by counsel for State, if a man has received a thing of another under a claim of agency, he should not be allowed to turn around, after having embezzled it or any part of it, and claim that he was not the agent in taking it.

From all the evidence in the case we are of the opinion that the verdict of the jury is sustained, and believe that the plaintiff in error had a fair trial

We find no errors in the record, and the judgment will be affirmed.


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    THE LICENSING OF CHATTEL MORTGAGE AND SALARY LOAN BROKERS.
    Circuit Court of Hamilton County.
    William F. Chambers, a Tax-Payer, v. City of Cincinnati et al.
    Decided, November 30, 1907.

      Municipal Corporations — Licenses Regulating Chattel Mortgage and Salary Loan Brokers — Provision Requiring SignaUire of Wife Invalid — Penalties for "Violation of Ordinance — License Fees — Records a Loan Broker May he Required to Keep.

    An ordinance requiring brokers engaged in making chattel mortgage •or salary loans to secure a license as a condition precedent to doing business within the municipality is not invalid because the license fee is fixed at as high a figure as $250, or because said brokers are required to keep records of the name of each pledgor, the amount of the loan, the rate of interest charged, the date when the loan is payable, and a description of the articles pledged, which record shall be filed in the office of the city auditor and be open to inspection by the mayor and chief of police; but a provision requiring that if the pledgor is a married man his wife must sign the application for the loan is of no effect.

      W. F. Chambers and Fyffe Chambers, for plaintiff.

      John-B. Schindel, Assistant City Solicitor, contra.
    This case involved the validity of the following ordinance of the City of Cincinnati:
    “An ordinance, No. 1671, to regulate and license chattel mortgage and salary loan brokers.
    “Be it ordained by the Council of the City of Cincinnati, State of Ohio:
    “Section 1. No .person, firm or corporation shall, within the city of Cincinnati, engage in the business of a chattel’mortgage loan or salary loan broker, or engage in -the business of loaning money secured by mortgage, bills of sale or other contracts involved as security the forfeiture of rights in personal property, or upon assignments, bills of sale or other conveyance of salary or wages, without first having obtained a license from the Auditor of said city so to do.
    “Section 2. The auditor of said city shall issue to any person, firm or corporation a license as provided for in Section .1, for the period of one year, upon the payment to the city of Cincinnati of the sum of two hundred and fifty dollars ($250), upon condition that the books and accounts of such licensee shall be open at any time to inspection by said auditor; provided, however, that said license shall expire on the 31st clay of December of the year in which issued; but said auditor may issue a license to any such person, firm or corporation who engages in business after the first of January, for a period less than a year, upon payment of a proportionate amount of said sum.
    ‘ ‘ It shall be the duty of the auditor to examine the books and accounts of such licensee at least once every year.
    “Section 3. Every such person, firm or corporation so licensed, shall give to each pledgor, mortgagor or assignor, a card upon which shall be written in ink, typewriter or printed, the name of the person, firm or corporation making the loan, the name of the pledgor, mortgagor or assignor, the article or articles pledged, mortgaged or assigned, unless there be more than fifteen of said articles, in which case a general description thereof be sufficient; the amount of the loan, the amount of interest charged, the amount of expense charged, exclusive of interest, and the time for which each of said’charges are made; the date when the loan is made and the date when payable; and shall also give the pledgor, mortgagor or assignor a receipt for each payment of principal, interest or any other charge made on said loan, by or .in behalf of said pledgor, mortgagor or assignor, and if any payment shall consist of principal and interest, or any other charge, said receipt shall specify the amount of eaeh.
    “Section 4. No such person, firm or corporation so licensed shall receive as security for any indebtedness any Chattel mortgage, bill of sale or assignment, or any other conveyance of any personal property, salary or wages, signed in blank, but all blank spaces shall be filled in with ink or typewritten, with the proper words and figures, and if said conveyance shall be for salary or wages, the name of the person, firm or corporation by whom the person making the conveyance is employed, and shall also appear on said paper.
    “Section 5. Every such person, firm or corporation shall, on or before 10 o’clock a. m. on each and every Wednesday, file with the auditor of said city of Cincinnati, a -true record of each and every loan made during the calendar week immediately preceding. Said record shall be made upon cards or blanks furnished by said auditor and shall consist of the name of'the person, firm or corporation making the loan, the name of the pledg- or, mortgagor or assignor, a specific description of the article or articles pledged, mortgaged or assigned, the amount loaned, rate of interest, the amount charged for interest and the time for which said interest charged is made, the amount of expense charged, exclusive of interest, and the time for which said expense charged is made, and the date when said loan is payable; such record so filed with the auditor of said city shall remain in the office of said auditor as a permanent record, open to the inspection of the mayor or chief of police of said city.
    “Section 6. No such person, firm or corporation shall make a loan to a married man upon the security set forth in Section 1 unless the application for said loan and the conveyance of the chattels or salary shall be signed by the wife of said applicant.
    “Section 7. Any person or persons either as principal, agent, officer or employer who violates any of the provisions of this ordinance, or any person or persons, firm or corporation who shall carry on the business of a chattel mortgage or salary loan broker, or loan money as set forth in Section 1, without obtaining a license as provided herein, shall for the first offense be fined not less than twenty-five ($25) dollars, nor more than two hundred ($200) dollars and the cost of the prosecution, and for the second and any subsequent offense shall be fined not less than one hundred ($100) dollars, nor more than five hundred ($500) dollars, and it shall.be the duty of the auditor, upon the second conviction of any such person, firm or corporation holding a license issued under this ordinance to forthwith revoke .said license.
    “Section 8. That Sections 22 and 23 of Ordinance No. 468, entitled, ‘An ordinance to provide for licenses on certain trades, businesses, professions, etc., passed July 13th, 1904,’ be and the same are hereby repealed.
    “Section 9. This ordinance shall take effect and be in force from and after the earliest period .allowed by law.
    “Passed December 3d, A. D. 1906. Frank L. Pfaff, President of Council. Attest, Edwin Plenderson, Clerk.”
    Smith, J.; Swing, J., and Gtkfen, J., concur.
   In this case, heard on appeal, we are of opinion that ordinance No. 3671 of the city of Cincinnati, to regulate and license chattel mortgage and salary loan brokers in said city, is -valid. We do not think the sum required to be paid is unreasonable, or .that the condition relating to the inspection of the books and accounts of the parties affects the validity of the ordinance.

It'is evident that the ordinance is intended solely to regulate, as its title sets forth, chattel mortgage and salary loan brokers, and does not extend to others engaged in the loaning of money, as banks, brokers, etc.

While we are of opinion that Section 6 relating to the wife of a man signing the application for a loan, or the conveyance of the chattels or salary is of no effect, yet this would not invalidate the other provisions of the ordinance.

The petition, therefore, for an injunction will be dismissed.


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    CONSTRUCTION OF WILL.
    Circuit Court of Stark County.
    Nicholas Youngblood et al v. Harry Youngblood et al.

    Decided, February Term, 1908.

      Wills — Devise' of Residuary Estate to “Legal Heirs” — Distribution to Grandchildren of Deceased Brother — Heirs of Deceased Devisee Take by Virtue of Section 5971 — Intention of Testator — Descent and Distribution.

    Where a testator bequeathes his residuary estate to the “legal heirs” of a deceased brother without other or further designation as to who are intended as his beneficiaries, and by his will directs that such residuum “shall fall to and be divided in equal shares among the legal heirs of my deceased brother, and I hereby bequeath and devise the same to them”; and at the time of making said will one of the sons of the testator’s deceased brother was dead, leaving heirs — Held:
    1. That all persons who. at the time of the death of the “deceased brother” of those who answer the description of “legal heirs” of said deceased brother at the time of spch brother’s death are entitled to share in such a residuary estate in equal' proportion, and if at the time of making of the will any of such “legal heirs” had died leaving issue surviving the testator, that such issue shall take the share which would have otherwise gone to such- “legal heir,” had he survived the testator. Revised Statutes, 5971, controls such distribution.
    2. The expression “legal heirs” as used by a testator has a well known, definite meaning in the law, to-wit: Those upon whom the law would cast the estate if the testator had died intestate; the expression “to be divided in equal shares” merely points out how such persons are to take their interests.

      Willison & Day, for plaintiffs in error.

      D. F. Beinoehl and A. N. Kaley, for defendants in error, cited:
    Mooney v. Purpus, 70 Ohio St., 57; Woolley v. Paxson, 46 Ohio St., 307; 30 Am. & Eng. Enc. Law (2d Ed.), 705, 718, 725, 729; Thurston v. Bissell, 13 C. C., 293; Huston v. Crook, 38 Ohio St., 328; Bunnell v. Evans, 26 Ohio St., 409; Wiley v. Bricker, 21 C. C., 109; McKelvey v. McKelvey, 43 Ohio St., 213; 15 Am. & Eng. Enc. Law (2d Ed.), 322; Underhill, Wills, 814; Richey v. Johnson, 30 Ohio St., 288; Weston v. Weston, 38 Ohio St., 473; Campbell v. Clark, 5 New Eng. Rep., 66 (N. H.); Hall v. Smith, 61 N. H., 144; Farmer v. Kimball, 46 N. H., 435; Sears v. Russell, 74 Mass., 86; Denny v. Kettell, 135 Mass., 138; McCartney v. Osburn, 6 West. Rep., 793 (Ill.); Howard v. Fenkell, 10 West. Rep., 671 (Ohio); 2 Jarman, Wills, (5d Ed.), 156; Morrell, In re, 4 Paige, 44; Wickers v. Clarke, 8 Paige, 161; Birney v. Hann, 10 Ky., 322; Chapman v. Chapman, 2 Conn., 347; Thompson v. Garwood, 3 Whart. (Pa.), 287; Loockerman v. McBlair, 6 Gill (Md.), 177; Ward v. Stow, 2 Dev. Eq. (N. C.), 509; Kean v. Hoffecker, 2 Har. (Del.), 103; King v. Beck, 15 Ohio, 559; Collier v. Collier, 3 Ohio St., 369; Jarman, Wills, 204; Paige, Wills, 545, 547; Sinton v. Boyd, 19 Ohio St., 30; Stewart v. Powers, 9 C. C., 143; Delaney v. McCormack, 88 N. Y., 174.
    Donahue, J.; Taggart, J., concurs; McCarty, J., not sitting.

       Affirmed by the Supreme Court, without report.

   This proceeding in error is brought to reverse the judgment of the common pleas court in an action brought by Harry Young-blood against Nicholas Youngblood and others, to construe the will of Peter Youngblood, deceased, by the terms of which will Peter Youngblood devised certain real estate and personal property to his widow for her life with the right to consume thereof all that might be necessary for her support, and at her death such real estate if unsold, and all personal property or proceeds thereof that should remain unconsumed, he directed “shall fall to and be divided in equal shares among the legal heirs of my deceased brother, John Youngblood, and I hereby bequeath and devise the same to them.” This latter provision of the will is the one sought to be construed, and the question arising thereon is as to' who are the heirs of his brother, John Youngblood, deceased. The common pleas court made a finding of fact covering the questions in this case at length and .about these facts there is no dispute. The question is as to the conclusion of law from these facts. It is not necessary to give in detail all of the finding of facts; it is sufficient for the purpose of this review to note the controlling ones.

Peter Youngblopd executed this will on the twenty-sixth day of September, 1893; he died September 30, 1894; that his wife died July 1, 1906; that his brother, John Youngblood, died in 1855, leaving four children surviving him as his only heirs at law.. .These children were John, Joseph, Frank and Nicholas; that the son Joseph died in September, 1888, leaving six children —Mary, Clara, ITarry J., Cora, Joseph and Blanch. Some of the other sons have died since the death of the testator but there is no contention between the parties here that their death makes any difference in the construction of this item of the will; the controversy is as to the interest these children of Joseph Youngblood take under the will of Peter Youngblood. It is insisted that these .six grandchildren were and are heirs of John Youngblood, the deceased brother of the testator, and that therefore they come within the class of heirs of John Youngblood named in Peter Youngblood’s will; that the directions of the will.are that these heirs shall share equally and’ that therefore each of said grandchildren shall take .an equal share with the living sons of John Youngblood, deceased. That is to say, that this residue of, Peter Youngblood’s estate must be divided into nine parts, one of each, of said parts given to the living sons of John Young-blood and one of these parts given to each of the children of Joseph Youngblood. In view of the doctrine announced by the Supreme Court of Ohio in -the ease of Mooney v. Purpus, 70 Ohio St., 57, if these grandchildren are heirs of John Young-blood, deceased, then they each share equally with their uncles in -this devise. That is to say, each will take an equal part as heir of John Youngblood and not simply the share of their father had he survived the testator.

While it is true that in the construction of a will the main object to be arrived at is the intention of the testator, yet, a court is not authorized to say, that the testator intended other .than the clear .and manifest meaning of the words used to express his intention. He is supposed to have known the legal effect and import of the words used, and to have intended that which they express, notwithstanding it might seem that he had inadvertently used these words.

It is only where there is an ambiguity, an uncertainty in the words used, or a contradiction in the terms that a court is justified in attempting to determine the intention of a testator in order to determine the purpose and construe the language of the will. So in this case we must conclude that he used the word “heirs” advisedly, and if the effect of that be to give to these.six children six shares instead of one, although we might personally think that the testator did not so intend, yet we must nevertheless give full effect to the language used, for a court has no power to make wills for people, but -only to construe them. In the ease before us the words used are plain, certain and unambiguous, and have a well-known, definite legal meaning, .and full effect must be given to them without regard .to consequence.

The only thing left for the court to determine is who are the heirs of John Youngblood, deceased, and this question must be determined by reference to the statute of descent and distribution, for it is only by force of this statute that any heirs of deceased persons exist. In construing these statutes we must keep in mind the fact that no living person has heirs. The legal -definition of the word “heirs” is, “those who take the estate of an intestate under the statutes of descent and distribution,” and all persons who do take any portion thereof under this statute, no matter how small it- may be, is an heir in the legal contemplation of the word, so that an hour before John Youngblood’s .death he had no heirs- — they were simply heirs apparent, nothing more; but at his death, then .they became his heirs, and that class became fixed and certain and can never be changed by any subsequent event no matter of what nature or extent it may be. That is to say, when a man dies the law determines who his heirs are, and except for the one exception of posthumous issue, there is n.ot and can not be any change in those heirs. To illustrate this let us consider the descent of property owned by John Youngblood at his death. ‘His four sons living would be his only heirs, and if one of them died the day after, his children would inherit not from John Youngblood but from their father, and-the estate would first be vested in the legal representatives of Joseph Youngblood and would be applied to the payment of his debts and legacies, and the residue would pass to them if he died intestate, but they would not inherit from the grandfather if their father survived -their grandfather by so much as one moment of -time; but if the father died an hour before the grandfather then they would inherit directly from the grandfather. True, they would only take -their father’s share but they would take'ás heirs of the grandfather and- not as heirs of the father; so that in order for a grandchild to become the heir of the grandfather, the father must die before the grandfather; otherwise any interest they take in the grandfather’s estate is taken" as the heir of the father and hot as .the heir of the grandfather. Joseph Youngblood lived thirty-three' years or more after his father’s death. All that time he was the heir of the father, and if John Youngblood had had an inheritable interest in any property the enjoyment of which was delayed for a half century, Joseph Youngblood would inherit his share of that property, and any part of it that his children would take, they would take through him, as his heirs, and they could never take as heirs of their grandfather. This being true, notwithstanding the death of Joseph Youngblood before the death of -the testator, Peter Youngblood, and even before the execution of his will, it in no wise changed the heirs of John Youngblood. ■ They were fixed and certain at the time of his death, and except for posthumous issue would forever remain fixed and certain. These grandchildren no more become his heirs than the most absolute stranger to him; they never were his heirs and never can be his heirs. Their father, Joseph Youngblood, having survived the grandfather forever precluded the possibility of these grandchildren becoming the heirs of the grandfather, and any intestate property of which the grandfather died seized would pass to, and vest in, their father’s estate, and if they derive any benefit therefrom of any kind or character it would be because they inherit the same from their father immediately, and not because ¡they inherit anything from the grandfather.

We are therefore clearly of the opinion that these grandchildren never were the heirs of John Youngblood; could not become so because of the death of their father after the death of the grandfather, but could only become the heirs of John Young-blood by the death of their father before the death of their grandfather; and that being true they do not come within the class designated in -the will as the heirs of John Youngblood, deceased, and could take no interest whatever under this will, were it not for the provisions of Section 5971, Revised Statutes,-which provides that when a devise of real or personal estate is made to any children or other relative of the testator, if such children' or other relative shall have been dead at the time of the making of the will, or shall die thereafter leaving issue surviving -the testator, in either ease such issue shall take the estate devised in the same manner as the devisee would have done, etc. So that we think the word “heirs” in the will of Peter Youngblood does designate a class and that that class was fixed and certain immediately upon the death of John Youngblood, and that they were his four sons; that these four sons were relatives of the testator; that Joseph died before the making of the will, and that under the provisions of Section 5971, Revised Statutes, his children take his share, no more and no less. So that this residuary estate under this will passes to said four sons of John Youngblood, deceased, who were his only heirs at law, in equal proportions, share and share alike, that is, each shall take one-fourth thereof, and that the children of any of these deceased sons shall take their father’s interest therein.

The conclusion of law of the common pleas court upon the facts found and the judgment entered therein was erroneous and should have been as hereinbefore stated, and for such error, which we find prejudicial -to the rights of plaintiffs in error, the judgment of the common pleas court is reversed, and the judgment may be here entered that should have been entered in the common pleas court upon these findings of fact. Exceptions of defendants in error noted. Costs of this proceeding in error adjudged against the defendants in error, and cause remanded for execution.


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    REQUIREMENTS IN AFFIDAVIT IN ATTACHMENT.
    Circuit Court of Hamilton County.
    George F. Gilbert v. Stephen J. Burke.
    Decided, March, 1908.

      Attachment — Requisites of Affidavit for — Statement on Belief Only as to Non-Residence of Defendant not Sufficient — Section .5522.

    1. An affidavit in attachment under S'ection 5522, Revised Statutes, where the defendant is a non-resident, in order to give jurisdiction must contain statements showing: nature of plaintiffs claim; that it is just; the amount which the affiant believes the plaintiff ought to recover; and that the defendant is a non-resident of this state.
    2. An affidavit for attachment which avers that "Stephen J. Burke, plaintiff, being first duly sworn, says that the claim sued upon is for money paid by him for the use and benefit of the defendant and upon contract, and that said claim is just;” and “affiant believes that he ought to recover the sum of $105, together with interest, from the 17th day of August, 1895, and that the defendant is a non-resident of-this state,” is in' compliance with the-first three provisions of Section ,5522,- but as 'to the question of non-residence is upon affiant’s belief merely, and is therefore not a sufficient statement under the statute of the fact of non-residence; and it follows that the proceedings -in attachment founded on such affidavit are void.

      Samuel B. Eammel, for plaintiff.

      C. M. Thompson and F. M. Gorman, for defendant.
    Swing, P. J.; Giffen, J., and Smith, J:, concur.
   This action is here on appeal. It is an action to quiet title. Gilbert was the owner of certain real estate in this‘county, and at no time was a resident of the city of Chicago, state of Illinois, when the defendant in this action brought an action against him in this county, got a judgment against Gilbert and sold the land belonging to Gilbert. Burke was the purchaser at the sheriff’s sale, and he now claims to be the owner of the land in controversy, by virtue of the sheriff’s deed.

In order to get jurisdiction, Burke was compelled to sue out a writ of attachment. He filed the following affidavit:

“Stephen J. Burke, plaintiff, being first duly sworn, says that the claim sued upon is for money paid by him for the use and benefit of the defendant, and upon contract, and that said claim is just.
“Affiant believes that he ought to recover the sum of $105, together with interest from the 17th.day of August, 1895; and that the defendant is a non-resident of this state. ’ ’

Does his affidavit contain the necessary statements required by the statute? If not the proceedings under it are void. The first proposition of the syllabus in Endel v. Leibrock, 33 O. S., 254, is as follows:

“A writ of attachment under the code without the requisite affidavit is void.”

In Dunleavy v. Schwartz, 17 O. S., 640, the Supreme Court say:

“An affidavit stating the plaintiff’s belief that the defendant has absconded, with intent to defraud his creditors, without setting forth any acts justifying such beliéf, does not lay a sufficient ground for issuing a writ of attachment,”

This decision was followed by the Supreme Court in 23 O. S., 192.

Proceedings in attachment are purely statutory, and the provisions of the statutes must be strictly complied with,-in order to give jurisdiction.

In this case, in order to give jurisdiction, it was necessary that the affidavit should contain, under Section 5522, Revised Statutes, statements showing: ■_

(1) . Nature of plaintiff’s claim.

(2) . That it is just..

(3) . The amount which affiant believes that plaintiff ought to recover, and

(4) . That -the defendant is.a non-resident of this state.

There is no question but what the first three provisions have been complied with. But, is there an allegation that the defendant is a non-resident of the state? And is, “and that the defendant -is a non-resident of this state, ’ ’ a statement that he is a non-resident of this state by the affiant? What does the affiant say? Grammatically, the verb next preceding this clause must govern, which is “affiant believes.” It can not be connected with the verb “says” in the first part of the affidavit. The sentence in which the verb is used is complete in itself, and there is nothing to'show in the composition of the sentence, .or the punctuation, that it was intended to cause any subsequent allegation of a fact. If it has any verb, therefore, it must be “believes.” Therefore, if it has no verb, it is no statement of a fact, and if it is the verb “believes,” it is not a sufficient statement of a fact as required by statute. If we are correct in this view, it follows that the proceedings in attachment were void, and Burke got nothing by it.

Decree accordingly.


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    ELEMENTS ENTERING INTO THE QUESTION OF NEGLIGENCE.
    Circuit Court of Hamilton County.
    The Cincinnati Traction Company v. Dorenkemper, Administratrix.

    Decided, November, 1907.

      ;Negligence — Questions as to — Where a Butcher Drove upon a Oar Track and was Run Down — Charge of Court — Darning Power— Damages — Pleading.
    1. Special charges to the jury in an action for damages on account- of wrongful death from the running down of a wagon by a street car are erroneous if conditions are omitted therefrom which are necessary to a determination of the question of negligence.
    2. The belief, of the decedent that he had time to clear the tracks and its reasonableness must be determined, not from the direct testimony alone, but from all the circumstances surrounding him at the time.

      Kitiredge c6 Willy, for plaintiff in .error.

      Horstmcm & Horslman, contra.
    G-ieeen, J.; Swing, P. J., and Smith, J., concur.

       Reversing Dorenkemper, Admrx., v. Cincinnati Traction Co., 5 O. L. R., 173, which see for the facts of the case.

   The negligence charged in the petition is—

1st. The car was at the time operated at an excessive and dangerous rate of pseed.

2d. Without any warning or signal having been given of its approach towards said point of intersection.

3d. That prior to the approach of said car to said point of intersection defendant caused the lights and head light of said car to be extinguished so that plaintiff’s intestate was unable to see its approach.

The second special instruction requested by the defendant and refused by the court is as follows:

“If the preponderance of the evidence shows that the motorman gave the signal by ringing this gong, and as soon as the deceased started to cross the track applied his brake and used every effort to stop the car, your verdict should be for the defendant. ’ ’

This charge ignores the question of speed, lights of the car and the time and place of ringing the gong, hence properly refused.

The eighth special instruction requested by the defendant and refused by the court is as follows:

“If the jury find that the deceased started to go onto the track when the car was so near that it was impossible for the motorman,. by the exercise of ordinary care, to stop the car without, a collision, the verdict should be for the defendant, provided that the jury find that there was nothing to indicate to the motorman that the deceased intended to attempt to cross until he started to go onto .the track.”

Under -this charge the defendant could be guilty of every act of negligence charged in the petition, and yet be released from liability, provided it was impossible for the motorman to avoid a collision, after he became aware of Dorenkemper’s peril. It ivas properly refused.

The general charge of the court contained the' following:

“The court charges you that if you find from all the evidence that the motorman who had charge of the car which struck the plaintiff’s intestate could, by the exercise of ordinary c^re, have seen the plaintiff’s intestate after he started upon the tracks, and in time to stop the car before it struck him. and that by reason of the failure to stop the car said plaintiff’s intestate was injured, it would be-'such negligence on the part of the defendant as would enable the plaintiff to recover, provided that the plaintiff’s intestate was free from negligence on his part.”

This was clearly erroneous and prejudicial because' no such negligence is averred in the petition. Drown v. Traction Co., 76 O. S., 234.

The general charge contained also the following:

“You have a right in making your estimation of the damages, if you so do, to look to the pecuniary benefit that the wife and children would probably have derived from Henry Dorenkemper, if he had hot lost his life, and in assessing such damages you may look to the manner of man that Henry Dorenkemper was, his occupation and ability to earn money and to acquire property.”

His occupation was that of a butcher, and the evidence tended to prove that he was a strong healthy man capable of doing the work of a butcher and earning money at such work if well directed ; but the decedent had for many years conducted his own butcher shop, and the record is silent as to his thrift of success in such business except as may be inferred from the length of time he continued it. Nor does the evidence show to what extent he provided for his family except by inference only. We think, however, -that the evidence was sufficient to justify the charge given, but not the verdict for such a large sum as $6,000.

The general charge contained also the following instruction:

“Yf you find from the evidence that plaintiff’s intestate could have seen the car and would have seen it in the exercise of ordinary care, then you should find for the defendant, unless you find further that he had reason to believe that he had sufficient time to clear the tracks before the car reached the place where he was attempting to cross.”

His belief that he had sufficient time to clear the tracks and its reasonableness must be determined, not only from the direct testimony, but from the situation of the parties and the circumstances surrounding. We think, therefore, that the evidence warranted the charge, although the pleading did not, as no issue of contributory negligence was tendered, hence not' prejtidicial to plaintiff in error (Traction Co. v. Parrish, 73 O. S., 1). The absence of such issue prevents us also from weighing the evidence in support of it.

Judgment reversed and cause remanded for new trial. '