author: Dunlap, J.

text:
    CERTIFICATION OF STREET IMPROVEMENT ORDINANCES.
    Court of Appeals for Cuyahoga County.
    The Guardian Savings & Trust Company, as Trustee Under the Will of J. G. W. Cowles, Deceased, v. City of Cleveland et al.
    Decided, March 4, 1918.

      Municipal Corporations — Method of Levying Assessments for Street Improvements — Certification of Assessing Ordinance Directory Only— Provision for Five Per Cent. Additional from Date Assessment Falls Due — Not a Penalty But a Fixing of the Rate of Interest.

    1. The validity of an assessment ordinance for a street improvement of a municipality is not affected by its certification or lack of certification to the county auditor.
    2. Section 3893, General Code, providing that such certification shall be made on or before the second Monday in September each year is directory merely.
    3. Where a city charter provides that forty -days must elapse after the passage of ordinances in order to allow a referendum upon the same, before they become effective, and an assessment ordinance is passed fixing a date for the payment of the assessment earlier than -the date at which such ordinance becomes effective, such defect or inconsistency is cured both by the taking effect of the ordinance, and by the provisions of Section 3911, General Code, providing that such proceedings shall be liberally construed and formal objections disregarded.

      Maurer, Bolton & Wilson, for the plaintiffs.

      Wm. B. Woods, contra.
   Dunlap, J.

This -cause comes into this court on appeal from the court of common pleas.

Plaintiff’s petition recites that plaintiff is the owner as trustee of certain real estate described in the petition located in part on East 140th street, in part on East 141st street and in part on East 143d street; also the passage of three ordinances by the city of Cleveland, one of the defendants herein, to-wit: “An Ordinance Determining to Proceed with the Improvement of East 140th Street,” “An Ordinance Determining to Proceed with the Improvement of East 141st Street,” and “An Ordinance Determining to Proceed with the Improvement of East 143d Street,” copies of which containing their respective dates of passage are fully set out; said ordinances respectively fixing October 1st, 1916, November 1st, 1916, and November 1st, 1916, as the date for the payment of the assessment for said improvements, and reciting that bonds or notes of the city of Cleveland shall be issued in anticipation of the collection of assessments by installments. The petition recites that said ordinances were approved by the mayor on the following dates respectively: September 4th, 1916, October 19th, 1916, and October 19th, 1916, and that they became effective respectively, October 22d, 1916, November 26th, 1916, and November 26th, 1916. It then cites the amount of the assessments levied on each lot by virtue of these different ordinances, and that bonds or notes of the city of Cleveland have been issued in anticipation of the collection of said assessments and that after the second Monday in September of the year 1916, the city of Cleveland by its clerk of council caused to be certified to the auditor of the county said assessments, stating the times of payment and the amounts thereof as fixed by said ordinances, including five per cent, increased interest charges. The petition then charges that all of said ordinances are unconstitutional, illegal and void, in that they authorize a taking of property without due process of law, because each provides that interest at the rate of five per cent, payable annually in advance should be added and collected, unless the total amount of each assessment be paid on or before the date fixed for said payment in said ordinances which date by the ordinances is earlier than the date at which the ordinances become effective, thereby as it is claimed attempting to require the plaintiff either to pay an assessment not then lawfully imposed, or in default of such payment to suffer a penalty of five per cent, interest payable annually in advance after such default. Claim is then made that the action of the city of Cleveland in certifying and of the defendant Zangerle as auditor in accepting certification placing the assessment upon the county tax list was illegal and void, in that the same was not done prior to the second Monday of September of the year 1916; that in spite of such illegality the said auditor has placed all of said assessments as certified upon the tax list of the county; that the first half of the- first installment thereof was due and payable January 20th, 1917, and is now delinquent, and that the second half thereof will become due and payable July 20th 1917, after which it will be delinquent, and that the defendant O’Brien as treasurer will unless restrained collect said assessments which are now due and add penalties, etc.; that all of said assessments constitute a lien and incumbrance on plaintiffs’ property to his irreparable injury and that he has no adequate remedy at law. An injunction is prayed for and an order requiring the cancellation of said assessments upon the tax records. An amended and supplemental petition is also filed which, while not changing the allegations of the first petition, add to it the allegation that the plaintiff in its capacity as trustee deeded many lots during the year 1916 to various grantees, covenanting that said properties were free and clear of all incumbrances except taxes and assessments for the year 1916, which taxes and assessments the plaintiff agreed to pay, and that it will be required to pay some $23,000 which it had not contemplated paying unless the defendants are restrained and the taxes canceled, etc.

The city of Cleveland being the only real party in interest alone answers, admitting many of the allegations of the petition but denying the uneonstitutionality and illegality of any of its acts and alleging that all of the proceedings were in accordance with the charter of the city of Cleveland and the laws of the state of Ohio, setting out the sections of the charter deemed appropriate and the proceedings had thereunder.

The case was tried upon an agreed statements of facts, fully sustaining all the allegations of both of the petitions and the answer, which we regard as material in the determination of this ease, and also the following statement not contained in any of the pleadings:

“That the custom and practice is and has been in Cuyahoga county that assessments levied and certified to by officials of the city of Cleveland have been and are received each year for collection by the auditor after the second Monday in September, until such time as it is no longer possible because of bookkeeping necessities to include such assessments in the tax duplicate as made up for each year, and that in placing the assessment in this case on the tax duplicate for 1916 the city and county officials acted in accordance with such established custom.”

The plaintiff contends for a judgment on its behalf upon two main grounds or reasons, first, “that the certification not being made on the date required by statute failed to charge the properties with any lien such as could be enforced by the county treasurer by proceedings for the collection of taxes or assessments,” and, second, “that the ordinances themselves are invalid because they impose a penalty for failure to pay on or before a date when payments could lawfully be demanded. ’ ’

The case is important both on account of the amount involved and for the reason that future bond issues for the improvement of city streets must be largely controlled by a correct decision of this ease.

The first question to be considered is whether in the certification of the clerk of the council to the county auditor he must follow the provisions of Section 3892 of the General Code of Ohio, as contended for by plaintiffs’ counsel, which provides:

“When any special assessment is made, has been confirmed by council, and bonds, notes or certificates of indebtedness are issued in anticipation of the collection thereof the clerk of council ipn or before the second Monday in September, each\ year, shall certify such assessment to the county auditor stating the amounts, and the time of payment. The county auditor shall place the assessment upon the tax list in accordance therewith, and the county treasurer shall collect it in the same manner as other taxes are collected.” * * *

Or is it proper for him to certify as provided for in Section 3905 of the General Code as contended for by defendants’ counsel, which section is as follows:

“The council may order the clerk or other proper -officer of the corporation to certify any unpaid assessment or tax to the auditor of the county in which the corporation is situated, and the amount of such assessment or tax so certified, shall be placed upon the tax-list by the county auditor, and shall, with ten per cent, penalty to cover interest and cost of collection, be collected with and in the same manner as state and county taxes, and credited to the corporation. Such ten per cent, penalty shall in no case be added unless at least thirty days intervene between the date of the publication of the ordinance making the levy and the time of certifying it to the county auditor for collection.”

Or is it essential that either of these two sections be strictly complied with? The plaintiff prays to be relieved of the payment of the first installment of this assessment not for any illegality or informality in the levying of the same (except as we shall hereinafter note) but because of irregularity in the certification of the same to the county auditor. Our statutes relating to this subject of certification are somewhat confusing and perhaps inconsistent, and if the validity of assessments depended upon the actual compliance with the law relating to the certification we doubt if many valid assessments of property could be found. Indeed, the certification is not necessary at all. Municipalities are very much a law unto themselves. They have the power to levy an assessment and the power to collect the same wholly independent of the county auditor and county treasurer’s offices. From the very nature of things their action with regard to certification is a sort of private matter. It does not concern us much as to just what agencies the city uses to collect a valid assessment, but the Legislature of the state did see fit to legislate upon this subject. In a way it tendered to the cities of the state the services of the county auditor and treasurer. Some municipalities accept these services fully as is apparently done by the city of Cleveland; some do not. We are informed that Cincinnati, for instance, collects its own assessments through the city treasurer, and only certifies to the county auditor such installments of the assessments as are delinquent. There is no doubt but that it does not need to certify even these delinquent installments for the same may be collected by suit at law just the same as any other debt.

With this simple understanding of the matter in our minds it becomes apparent that the statutes with regard to certification are permissive merely. At most only directory. Of course if they are to be used they should be followed but the failure to observe them to the letter does not give the property owner whose property has been assessed the opportunity to destroy the assessments. Such a procedure would not be the direct attack which the law requires in such matters, but would be at best a collateral attack to which the law is most unfavorable. The proper method to make officials perform their duties according to statutes is by the action in mandamus. We are not therefore deeply concerned as to which one of the two Sections 3892 and 3905 of the General Code furnish the proper rule for certification. A contention of this kind can only becloud the real issue and tends to make us lose sight of the real questions in our zealous adherence to the merits of the one or the other section. Through all the fog thus raised wo must keep in view the main question, “Can cities levy assessments? They can. How do they do it? By the proper action of their councils. When are these assessments payable? At the time mentioned in the ordinance. Where are they payable? To the city treasurer. What is the function of the auditor and treasurer of the county in such cases? They are at most simply the agencies afforded by the Legisalture to municipalities for the speedy, effectual collection of these assessments. The answers to these questions clear away the fog. There is no longer any mystery. We see the process clearly; a lawful ordinance is passed levying an assessment; the amount of this assessment becomes a lien; a time is fixed for the payment; that time is in the instant ease under one ordinance October 1st, 1916, and under the other two ordinances November 1st, 1916. The obligations on the part of the defendant property holders concerned to pay at that time is complete and binding. Even if we took a narrow view of the situation and enjoined the county treasurer from collecting on the ground of faulty certification there would remain the binding obligation to pay to the city treasurer. The supplemental petition states that the plaintiff is largely interested because it has sold lots assessed by this ordinance with the agreement that it would pay any installment of any assessment falling due in 1916. For its information with regard to the assessments it was its duty to look to the proper authorities of the city of Cleveland. The law is plain and clear that such assessments are payable at the time fixed by the ordinance levying the same.

It is complained of in the petition, though not strongly insisted upon in the brief, that the ordinances are invalid because the due date or date when the assessment was payable was fixed •at a date prior to the date at which the ordinance became effective. Under the city charter ordinances do not go into effect until forty days after their passage. Until the forty days .are up they are subject to a referendum. In the absence of such a thing they immediately become effective. Strictly speaking this means that the whole ordinance as written goes into effect which of necessity includes the effectiveness of said due date. Such an ordinance while revealing an apparent inconsistency is not rendered thereby void. If it is an irregularity, we think it plainly falls within the provisions of Section 3911, General Code, which provides that:

“Proceedings with respect to improvements shall be liberally construed by the councils and courts, to secure a speedy completion of the work, at reasonable cost, and the speedy collection of the assessment after the time has elapsed for its payment, and merely formal objections shall be disregarded, but the proceedings shall be strictly construed in favor of the owner of the property assessed or injured, as to the limitations on assessment of private property, and compensation for damages sustained.” ¡

And in this view we are upheld by the decision in the case of Bolton v. City of Cleveland, 35 O. S., 319, the second paragraph of the syllabus of which is as follows:

“By an assessing ordinance, passed by the city council of the city of Cleveland, on the 31st day of July, 1866, under authority of the act of May 3, 1852, the abutting lot owners were required to pay the assessment on the 28th day of the same month: Hekl, That the defect in the ordinance was within the curative provisions of Section 31 of said act.”

In that case the curative provision was not as strong as we read it as the present curative section of the code quoted above.

This consideration practically disposes of all the claims of counsel in the case.

The additional claim that the' ordinance is invalid because a penalty of five per cent, is imposed from the due date we regard as not well taken, because the five per cent, is not a penalty but is a provision of the ordinance providing the rate of interest such assessment shall bear after the time that it is due or payable. It is an essential part of such ordinances. Without it the fund raised by the assessment would be insufficient to meet the bonds as they fall due. There being then no penalty there is no ground for the claim “that the ordinances are invalid because they impose a penalty for failure to pay on or before a date when payments could lawfully be demanded.”

The plaintiff in this case had every facility for complete knowledge of the probable action of the city council long before that action was taken. After the passage of the preliminary resolutions, but early in the year 1916, certain notices required by law to be served on the property owners interested were served upon it.- These notices were to the effect that objections to the improvement would be heard by the proper authorities. The plaintiff remained silent, thus tacitly consenting to the improvement. It had ample means of thus knowing that an assessment would probably be levied payable before the end of the year. If with this information it saw fit to warrant in its deeds to purchasers of lots in the manner set -out above, we think it has no ground to complain. It took its chance, and we are of the opinion that this court can grant no relief.

Judgment is entered for the defendants and the petition .is dismissed at plaintiff’s cost.

Grant, J., concurs; Lieghley, J., concurs in judgment.


source: Caselaw Access Project

author: Jones, P. J.

license: Public Domain

text:
    DETERMINATION AS TO THE CAUSE OF COLLAPSE OF A BUILDING.
    Court of Appeals for Hamilton County.
    The Hartford Fire Insurance Company v. The Cincinnati Ice Manufacturing & Cold Storage Company.
    Decided, April 15, 1918.

      Insurance — Policy Not Voided for False Swearing — Where a Loss Was Claimed Without Any Combustion Being Shown — Application of the Valued Policy Rule — Competency of Photographs Showing Buildings Damaged by Storm During Which Plaintiffs Building Fell— Finding of Jury Sustained as to Cause of Collapse of Building.

    1. When a policy of fire insurance, by attaching a so-called lightning-clause thereto had been extended to cover a direct loss occasioned by lightning, without otherwise stating or repeating contract stipulations for lightning as contained in the body of the policy in regard to fire, and during a storm the building so insured collapsed and was damaged but no combustion occurred and it was a question whether the fall of the building was caused by a stroke of lightning or by the force of the wind, liability under the policy can not be avoided for fraud and false swearing merely because the affidavit for proof of loss improperly termed the loss a “fire” loss, where there was no attempt to mislead or defraud the insurance company. .
    2. The valued policy rule, provided by' Sections 9583 and 9584, is applicable, under a policy covering an ice making plant, to the cooling tower and the machinery contained therein, where the machinery ■and buildings are used as an entirety and come within the terms of the valued policy act -both as to the amount of damages and pro rating of the loss.
    3. It is not error to exclude photographs of collapsed buildings which it is claimed were in the path of the storm prevailing at the time plaintiff’s building collapsed, where the buildings shown in such photographs were located many squares distant from plaintiff’s building and the record fails to show that they were in the path of the particular windstorm which the insurance company claims destroyed plaintiff’s building.
    4. An insurance company is not at liberty to refuse to name an appraiser in accordance with the provisions of the policy in suit, Where the only reason for so doing is that work has been done in the way of restoring the damaged property.
    5. Where the evidence is conjectural as to whether the collapse of a building was due to the force of the wind or to a bolt of lightning, and an explanation is offered as to how a bolt of lightning might have damaged a wall and thus caused the collapse without combustion occurring, a finding by the jury to the effect that the fall of the building was due to lightning will not be disturbed by a reviewing court.

      Black, Swing & Black, J. W. Mooney and R. M. Edmonds, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, Oscar Stoehr, Galvin & Galvin and J. L. Kohl, contra.
   Jones, P. J.

This is an action ¡brought by defendant in error, the Cincinnati Ice Manufacturing & Cold Storage Company, as plaintiff below, against plaintiff in error, the Hartford Fire Insurance Company, as defendant below (which parties will be hereinafter referred to, for convenience,' as plaintiff and defendant, respectively), to recover upon four policies of insurance for a loss to the buildings and ice manufacturing machinery of the plaintiff claimed to have been caused by lightning.

There is no question but that the cooling-tower situated upon the roof of the highest building did fall down during a storm, resulting in- serious damage and loss to plaintiff. No part of the property, however, was consumed by fire nor so far as the record shows was combustion started as a result of the lightning. The main contention between the parties is whether the fall of the cooling-tower and the damage occasioned thereby resulted from lightning or was caused by the severe windstorm.

Upon trial to a jury a verdict was rendered in favor of the plaintiff upon which judgment was entered. It is sought in this proceeding to secure a reversal of that judgment.

The first ground urged for a reversal by plaintiff in error is that defendant in error was chargeable with fraud and false swearing in the proofs of loss made by it to the insurance company, and that the court refused to give the insurance company’s special charges 9 and 10 which sought to make void the policy because of such false swearing.

The clause of the policy under which this defense is made is as follows:

“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”

Each of the policies sued upon insured plaintiff in stated sums “against all direct loss by fire, except as hereinafter provided” on certain buildings and structures; also upon certain boilers, engines,- ice. machines, machinery, shafting, belting, pulleys, pipes, etc., therein situated, occupied and used in manufacturing-ice and in refrigerating their cold storage rooms.

It is stipulated in a printed form in the body of the policies “that the company.shall not be liable for loss.caused directly or indirectly by invasion,” etc.; “or (unless fire ensues, and, in that event for the damage by fire only) by explosion of any kind, or lightning; but liability for direct damage by lightning may be assumed by specific agreement hereon.” “If'a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease. ’ ’

By a printed slip, however, attached to the policy and made part of it, designated as “Lightning Clause,” it is provided: “This policy shall cover any direct loss or damage caused -by lightning (meaning thereby the commonly accepted use of the term ‘lightning,’ and in no ease to include loss or damage by cyclone, tornado or wind-storm) not exceeding the sum insured, nor the interest of the insured in the property, and subject in all other respects to the terms and conditions of this policy,”

By these provisions it was undertaken to insure the property against damage by lightning, whether or not fire ensued, and any direct loss or damage caused by lightning although not the result of actual combustion. Nowhere in the policy outside of the two above references is loss resulting from lightning mentioned or provided for except by classing it as a fire loss. The proofs of loss submitted by the insured to the company used the word “fire” as it appears throughout the policy to describe the loss, and while they specifically refer to each policy of insurance against loss or damage by fire according to the terms and conditions printed therein, and specifically state that a fire occurred by which the property described in said policy was destroyed or damaged, said fire originating “from stroke of lightning,” and otherwise refer to fire as the cause of damage, there is no direct statement in the affidavits that the building or any part of the property insured was consumed by fire, or that ■any combustion ensued, but merely that loss and destruction resulted.

The word “fire” is evidently used as a generic term to cover all losses protected by the policy and can not be construed to refer to losses by combustion alone. The record contains much interesting testimony given by expert scientists as to the nature and manifestations of lightning and electrical discharges from the clouds during thunder storms, but it is apparent that exact rules can not be adduced from the phenomena collated as to what results follow when a building is “struck by lightning.” Lightning is always accompanied by some flash of light caused by incandescence or burning of gas, so to that extent fire is a usual manifestation. The damage caused by lightning, however, by a shock knocking down a tree or building, is not necessarily followed by or the result of combustion, yet it would be a direct loss or damage caused by lightning within the terms of the “Lightning Clause” in these policies, and the contrast between the terms of the lightning clause and the provision in the body of the policy above referred to which exempts such damage unless fire ensues is a recognition of this difference. While that may not be material it is shown by the record that the proofs of loss used in this instance were prepared on blank forms printed for the use of the insured in such cases of loss and conform to the language of printed policies used for fire losses which by the addition of the printed lightning clause stipulation have been adapted also to insure against lightning.

There is no question but that the ordinary fire policy such as was used in this case would cover damage from water or from smoke or from the collapse of a building which was the result of fire although actual combustion may not have entered into the particular loss itself, and undoubtedly these policies as enlarged by the addition of the lightning clause cover damage by lightning where combustion is not an element.

Placing this construction, therefore, upon the policy and proof of loss, and considering the testimony of Mr. Schell and Mr. Lippincott, called on behalf of the insurance company, and of the officer and employee of the insured, we can not find that there was any evidence of fraud or false swearing introduced which would require or justify the giving of special charges 9 and 10 — as they must be given or refused in the exact language in which they were presented' — and the court therefore was not in error in refusing them. Undoubtedly a provision in a policy avoiding liability under it for fraud or false swearing occurring in the proofs of loss is upheld and constitutes a complete bar to any recovery under the policy (Insurance Co. v. Beverly, 14 C. C., 468), but it is a general rule that misstatements in a proof of loss to forfeit the policy must be not only false, but unlawfully false. A mere innocent mistake will not amount to fraud or false swearing within the provisions of the policy. (4 Cooley Briefs on the Law of Insurance, 3415.) We also find that the part of the general charge as given by the court in relation to this claim of false swearing was a proper charge and all that the defendant was reasonably entitled to.

The plaintiff in error next urges as a ground of error that the verdict and judgment are excessive, and that the charge of the court in fixing the amount of recovery is erroneous because the pro rating clause in the policies in suit were disregarded, and because the other concurrent insurers were necessary parties to the action. It is particularly urged that even though the valued policy rule provided by Sections 9583 and 9584, General Code, might be applied to the first paragraph of the description of the property improved, limited particularly to the buildings,, it could not apply to the property constituting the cooling tower and ice making machinery as detailed and described in the second clause of the property insured for the reason that the latter must be deemed personal property or chattels, as distinguished from real estate.

A very lengthy and impressive discussion is furnished by counsel for plaintiff in error in numerous briefs to support this contention, but the correctness of their position depends upon a conclusion that the judgment of the Supreme Court in the case of Fire Ins. Co. v. Dennison, 93 O. S., 404, is not sound law and does not properly construe Sections 9583 and 9584. In our opinion, the decision in that case is correct; but if counsel are right in this contention they must address their argument to the Supreme Court rather than to the court of appeals, as this court is conclusively bound by the decision of the Supreme Court and it is useless for counsel to undertake to have us disregard or refuse to follow it.

The ease of Insurance Co. v. Luce, 11 C. C., 476, holds that property situated and used as was the ice machine property in this case constitutes fixtures, and whether technically a part of the real estate itself or not, the items enumerated in the second paragraph of the description of property in the policies all constitute “structures” within the terms of Section 9583. The testimony of Mr. Siegel giving the details of the items included in this property and the damage thereto, none of which testimony was challenged or disputed, shows that the building, fixtures and machinery were used as an entirety and came within the terms of the valued policy act and the authorities above mentioned both as to the pro rating and as to the amount of the damages. The court, therefore, did not err in refusing to give special instruction No. 11 or in its general charge instructing the jury that these items properly were “structures” within the contemplation of the law of the state of Ohio.

It is also urged that the trial court erred in excluding photographs representing damage by wind to other buildings in Cincinnati which were claimed -to have been in the path of the storm in which plaintiff’s -buildings- were damaged.

The admission of such evidence was largely in the discretion of the trial court. It appears that the two photographs offered represented collapsed buildings which were located many squares away from the property involved in this case, and the record fails to show definitely and conclusively that they were in the path of the particular wind-storm which defendant contends caused plaintiff’s damage. We can not say that the court erred in refusing to admit this evidence.

Nor do we find that the court erred in allowing questions to be asked of Mr. Lippineott, the insurance adjuster, as to the extent of plaintiff’s loss — especially so, as the witness failed to directly answer the question excepted to in such a way as to fix any definite sum.

There is no question but that under Weil v. Connecticut Fire Ins. Co., 23 C.C.(N.S.), 281, and other cases cited, the insurance company was entitled, upon its disagreement with the insured as to the extent of the loss, to have an appraisement by virtue of the terms of the insurance policy; but when the insured named its appraiser and requested the insurance company to also name an appraiser in accordance with the provisions of the policy, the insurance company could not refuse to do so merely because work had been done by the insured in the way of restoration of the property damaged.

As a part of its general charge, the court said:

“The first question you will determine when you retire for deliberation will be, what caused the loss and damage? If you find from all the evidence, facts and circumstances of this case that the loss and damage was caused by a stroke of lightning, then your verdict should be for the plaintiff.”

While it is true that this clause taken alone would be erroneous, though positive in its form, it must be taken in connection with all the remaining parts of the general charge which set out and discuss the different defenses of the insurance company and cover the entire ease. We can not therefore say, considering the charge as a whole, that the use of the language quoted, taken with the remainder of the charge, served to mislead the jury, or was so prejudicial to the defendant as to require a reversal.

The main contention, however, is that the verdict was contrary to the manifest weight of the evidence.

The record discloses very interesting testimony in regard to the cause of the injury and the character of the storm. It is argued on behalf of the insurance company that the evidence conclusively shows that the collapse of the cooling tower and the consequent damage to the building was caused by wind, and to support their contention they have produced the testimony of the United States weather reports and the observer as to the local record of the direction ,and velocity of the wind, amount of rain and general characteristics of the unusual storm which visited the locality at the time of the damage. They also argue that lightning would necessarily have shown some fusing or burning of the metals or wood showing the track taken by the electric current and that the lightning would have followed water pipes which extended higher and outside of the brick wall. On behalf of the plaintiff it is with equal force contended that the evidence submitted conclusively shows that the time of the actual collapse of the cooling tower and .the consequent damage coincided exactly with a stroke of lightning and severe thunderclap which was testified to by numerous railroad men and others who were in the immediate vicinity and that it preceded by some distinct period of time the strong wind which followed. It is insisted that this was absolutely shown by the fact that the dense ammonia fumes were blown from the collapsed building south and southeast under the Eighth street viaduct and as far as Pearl street down Eggleston avenue, upon which the railroad tracks were located and on which tracks and the adjoining switch tracks a number of witnesses were then engaged in shifting cars. It is also insisted on behalf of plaintiff that the brine pipe offered the best conductor for the electricity, so near the top of the building that it would -be preferred by the electric current to either the water pipe or the brick walls, and that the lightning might well have demolished enough of the brick wall to reach this brine pipe and follow it down to the earth without showing other evidence than the broken wall at the top which caused and was obliterated by the falling of the cooling tower.

While, of course, in the very nature of things a difficult question is raised as to just what caused an accident such as this, the issue is one which is peculiarly the province of the jury to decide. A careful consideration of all of the minute and interesting evidence and careful arguments of counsel submitted in this case fails to convince the court that the verdict of the jury can be held contrary to the manifest weight of the evidence; nor do we find in the numerous points suggested any prejudicial error which would require a reversal of the judgment, which therefore must be affirmed.

Hamilton, J., concurs.


author: Kunkle, J.

text:
    MUNICIPAL CONTROL OF GASOLINE AND OIL FILLING STATIONS.
    Court of Appeals for Franklin County.
    City of Columbus, State of Ohio, ex rel The Moore Oil Company, v. Joseph Dauben, as Building Inspector of the City of Columbus.
    Decided, November 7, 1917.

      Municipal Corporations — May Prescribe Conditions Under Which Gasoline and Oil Filling Stations May be Operated — Use of Existing Plants Not Affected — But to Greatly Enlarge a Plant Subjects it to Regulative Ordinance.

    1. The Columbus ordinance regulating the location, construction and operation of public gasoline and oil filling stations or sales depots is not open to constitutional objection, but the provisions of this ordinance are prospective and are not applicable to the maintenance or operation of gasoline or oil filling plants in existence at the time the ordinance became effective.
    2. But an owner who undertakes to tear down an existing structure, used as a sales or gasoline or oil filling depot, and to erect a new .plant with greatly increased capacity and equipment can not claim exemption from the provisions of a regulative ordinance.

      Weber, McCoy & Jones, and H. S. Kerr, attorneys for Relator.

      Henry L. Scarlett, James M. Butler, E. E. Burns and L. L. Boger, attorneys for defendant.
   Kunkle, J.

This is an action in mandamus in which, the relator seeks to compel the defendant, the Building Inspector of the city of Columbus, to issue a building permit to relator for the reconstruction of a public oil and gasoline filling station, including tanks and buildings, at the corner of Broad and 21st streets in the city of Columbus.

Defendant refuses to issue such permit upon the sole ground that the relator has not complied with the provisions of section one of Ordinance No. 28932 of the city of Columbus, regulating the location, erection and maintenance of public oil filling stations, and which ordinance was passed by the council of the city of Columbus, July 1915, and approved by the mayor of said city July 3rd, 1915. The provisions of said ordinance are as follows :

“Section 1. That it shall be unlawful for any person, firm or corporation for themselves or as agents, renters, or lessees, to locate, build, erect, construct, maintain, or operate any public gasoline or oil filling station or sales depot on or within 187% feet from curb line of any street in the city, or to construct or maintain a driveway from the street over the curb and sidewalk to such station or depot, when three-fourths (%) of the buildings on both sides of the street for a distance of five hundred (500) feet in either direction from the proposed location of each wall of such oil filling station or sales depot are used exclusively for residence purposes, without first securing the written consent of two-thirds (2/3) of the owners of the property abutting on the street for a distance of 500 feet in each direction from the median line of such proposed oil filling station or sales depot, according to the frontage on both sides of the street.
Section 2. Any person, firm, or corporation, or any agent, renter, or lessee, of any such person, firm or corporation who shall violate any of the provisions of this ordinance shall be fined not less than $100 nor more than $500 for each offense, and each week of continued violation of this ordinance shall constitute a separate offense after the first prosecution has been begun. ;
Section 3. This ordinance shall take effect and be in force from and after the earliest period allowed by law, but shall not apply to or be operative against any owner or operator of any public gasoline or oil filling station or sales depot heretofore erected, unless two-thirds of the owners of the property for whose consent this ordinance makes provision file with the city clerk within thirty days after this ordinance takes effect their written protest against the further operation of such station or depot.”

When the said ordinance became effective, the relator was the lessee, and subsequently became the owner of the real estate situated at the corner of Broad and 21st streets in the city of Columbus and had erected and was maintaining a gasoline and oil filling station on said premises.

In April of the present year, with a view to enlarging its business, the relator tore down the original buildings on the said premises and prepared plans and specifications for the erection of a more elaborate building, with rest rooms for patrons and with greatly increased storage capacity and with increased facilities and equipment for the transaction of its business.

The original plant was conducted on the said premises by means of access thereto from an alley on the rear of the said lot and from 21st street.

The plans for the proposed structure involve an additional passageway over the sidewalk on Broad street.

Counsel 'for defendant claims that the proposed structure should be regarded as a new structure, and would therefore fall within the scope of section one of the ordinance above referred to.

The relator contends:

(1) That the said ordinance is unconstitutional.

(2) That if the ordinance is found to be constitutional, that the relator is exempt, by virtue of the provisions of Section 3 of said ordinance.

We have carefully considered the unusually exhaustive and helpful briefs which have been filed by counsel. We shall not attempt to analyze or distinguish the various authorities cited therein, but will merely announce the conclusion at which we have arrived after an examination of such authorities.

We have previously considered the question of the constitutionality of section one of the ordinance in question. Since our decision in the Speice care, the Supreme Court of the United States has affirmed the celebrated bill board case of Cusack Company v. City of Chicago, decided January, 1917, and upheld the constitutionality of the bill board ordinance in question, which ordinance involved a .principle' similar to the one in controversy.

In the Speice case the validity of Section one of the ordinance in question was conceded by the court to be constitutional, and we are confirmed in that opinion by the decision of the Supreme Court of the United States in the bill board case above referred to.'

This court also held in the Speice case that the ordinance should be considered prospectively, and that it did not apply to the maintenance and operation of a gasoline or oil filling plant in existence at the time the ordinance became effective.

The question now for consideration is, whether the said ordinance exempts an owner or operator of an existing business who tears down his buildings and undertakes to rebuild them with greatly increased facilities, including additional means of access to said premises and therefore including additional burdens upon the adjacent streets.

Construing Section 3 with the remainder of the ordinance, we have reached the conclusion that it was intended by said ordinance to exempt only the existing capital and business of public gasoline and oil filling stations, and to relieve the existing owner of such stations from being subjected to a possible loss of an existing investment and business.

We do not intend to hereby express an opinion as to the extent an owner of an existing property may go in the way of repairs Or improvements to an existing plant without subjecting himself to the provisions of section one of said ordinance.

We are of opinion, however, that when an owner tears down an existing structure and erects a new one with greatly increased storage capacity and equipment, with a new driveway and means of access thereto, and arranges to equip the new building with electrical displays such as are contemplated and so forth, that such person falls within section one of said ordinance.

We have carefully considered the plans, specifications and other evidence which has been presented and are of opinion that the proposed improvements do not bring the relator within the exemption provided in Section 3 of said ordinance.

In view of the conclusions above stated, it is apparent that the relator has not established a clear right to the relief sought.

Peremptory writ refused.

Allread and Ferneding, JJ., concur.


author: By the Court.

text:
    INVALIDITY OF STATUTES AUTHORIZING THE LICENSING OF TRANSIENT DEALERS.
    Court of Appeals for Wayne County.
    H. F. Evans v. City of Wooster.
    Decided, February Term, 1914.

      Constitutional Law — Statutes Giving Authority to Compel Transient Dealers to Take Out Lieenses Invalid for Indefiniteness — Reviewing Court Without Authority to Consider Validity of an Ordinance Not Incorporated in the Record.

    1. A court in reviewing tbe decision of a mayor upon demurrer to an affidavit of complaint, involving tbe validity of tbe ordinance under wbicb tbe affidavit is drawn, is not at liberty to consider tbe ordinance unless it bas been put into tbe record in tbe trial before tbe mayor and bas tbus become a part of tbe bill of exceptions.
    2. Sections 3673 and 3676, G. C., in so far as they purport to authorize tbe requirement of licenses from transient dealers as a condition of tbeir doing business witbin tbe municipality are unconstitutional and void, and ordinances based on these statutes are therefore without effect.
   By the Court.

The plaintiff in error was arrested on an affidavit sworn out before the mayor of the city of Wooster charging him with the violation of one of the city ordinances in that:

“On or about the 20th day of February, A. D. 1913, at the city of Wooster, county of Wayne and state of Ohio, opened up and conducted a store for the temporary sale of goods, wares and merchandise in a store-room on South Market street, in said city, which goods, wares and merchandise consisted of pianos. He, the said H. F. Evans being then and there a transient dealer in said goods, wares and merchandise without getting a. license or paying a license fee so to do. Said IT. F. Evans at said time and place not selling by sample only nor was he a producer offering or exposing for sale agricultural articles or products, nor a manufacturer of said goods, wares and merchandise nor were they products of his own raising, contrary to Sections 253, 254 and 255 of the Revised Ordinances of the city of Wooster, Ohio.”

After certain preliminary motions and demurrers to the affidavit had been filed a trial was had before the said mayor resulting in the conviction of plaintiff in error for the offense charged, and upon such conviction he was ordered to pay a fine of $25 and costs, and to stand committed until the fine and costs are paid. A bill of exceptions was prepared embodying the testimony that was offered before the mayor and the case was taken by a petition in error to the court of common pleas where the finding and judgment of the mayor were affirmed.

A petition in error was then filed in this court seeking to reverse the judgment of the court of common pleas and of the said'mayor. No copy of the ordinance appears in the record, and it is claimed that in testing the sufficiency of the affidavit under the ordinance of the city, the court is without authority to look to the ordinance itself, or to take judicial notice of its existence, and therefore that it must be presumed that the 'affidavit and ordinance were sufficient to sustain the conviction. And this seems to be the law in Ohio, so held in 21 C.. C., 761, which was afterwards affirmed by the Supreme Court of Ohio without report. But it is urged as error to this court that the statutes authorizing cities and villages to pass ordinances such as the ordinance must have been, under which this defendant was convicted, were and are unconstitutional by reason of being in conflict with the provisions of both the state and federal constitutions.

While we can not look to the ordinance itself we can look to the statute that authorizes a city or village to pass such an ordinance, and as the ordinance itself defining certain acts as offenses against the municipality can not rise higher than the source which authorizes it to be passed as part of the law of the municipality, if the statute or source from which it is derived is violative of the provisions of the Constitution, the ordinance itself must be so.

The statutes authorizing cities and villages to pass ordinances making such offenses as the plaintiff in error was charged.with, punishable are Section 3673-3676 of the General Code. These sections provide that municipalities shall have the general power to license transient dealers or persons who temporarily open stores or places for the sale of goods, wares or merchandise, and in granting such license may exact and receive such sum of money as it may think expedient and delegate to the mayor thereof authority to grant, issue and revoke such licenses.

Certain exceptions are made to the authority thus given, such as that the provisions of these sections shall not apply to persons selling sample only, and excusing persons from being required to have a license to sell their own product. It is held in the 14 C. C. Rep., at page 592, in the second clause of the syllabus that the act of March 25, 1890, authorizing the licensing of transient dealers in cities and villages violated Sections 1 and 2 of the bill of rights and is therefore invalid. It was further held by the Circuit Court of Licking County that the statute authorizing the passage of an ordinance similar in its provisions and making the same acts complained of in this proceeding criminal and punishable by fine, Avas unconstitutional and void. This judgment of the Licking county court was afterward affirmed by the Supreme Court of Ohio. These two judgments having been given by the circuit court of this appellate district of which this court is the successor, we feel that these decisions are the law so far .as this district is concerned, and that we are bound by them and therefore bound to hold that the sections of the statute referred to authorizing the ordinance under which this prosecution is held are at least unreasonable in the authority granted, and for that reason the ordinance passed under the provisions of such statute are unauthorized and void. Further the matters and things which are held in the 34 C. C., to render the ordinance under discussion in that ease void apply with equal force to any ordinance such as would authorize the prosecution of an offense such as is prosecuted in this case, that is, there is no provision either in the statute authorizing municipalities to license transient dealers and those who temporarily open stores for the sale of goods, wares and merchandise, or defining what is meant by opening a store for the temporary sale of goods, or what constitutes a transient dealer. That is, there is no limit fixed in the statute, and therefore no limit could be fixed by ordinance under the statute which defines what length of time shall constitute a temporary sale of goods or the temporary opening 'of a store for the sale of goods, and because these things are so held to be unconstitutional we feel that any ordinance such as the one under which this plaintiff in error was persecuted, would ibe an unreasonable exercise of the .authority granted by the Legislature to municipalities and would therefore be void. 49 O. S., 536.

It will therefore be the judgment of this court that the judgment of the court of common pleas affirming the judgment of the Mayor of Wooster shall be reversed and the prisoner will be discharged. The defendant in error will pay the costs. Exceptions.


author: Gorman, J.

text:
    DETERMINATION AS TO WHETHER. A PARTNERSHIP EXISTED.
    Court of Appeals for Hamilton County
    August Herrmann, Individually and as an Alleged Partner of Louis Werk and Charles E. Bultman, v. E. Bruce Rohn and Charles S. Geisinger et al.

    Decided, April 30, 1917.

      Partnership — Contract Which Constituted a Partnership — Noiwithstanding a Declaration that a Partnership was Not Intended— Agreement in Writing Providing How a Possible Judgment in a Pending Cause Against the Parties ShoiUd be Liquidated — Admissible in Evidence as an Admission Against Interest.

    1. The existence of partnership liability is not affected by stipulations in the contract between the parties that no partnership relation is to exist between them, and that one of the said parties is to have the absolute control and management of the business and be liable for the debts. Wood v. Toilette, 7 O. S., 172, followed.
    2. Where W and B enter into a contract whereby W lends B a sum of money with no stipulation for interest or 'repayment, B agreeing to turn over to W a percentage of the profits of his business and not to transfer the business without the consent of W and first giving him a privilege of purchase, and thereafter W actively engaged in securing credit for B and advises persons having dealings with B that he (W) is financially interested, liability for the debts of the business is incurred by W.
    3. In an action against B, W and H as a partnership, upon cheeks of B and for money advanced to B as trustee to protect his account as broker, where partnership liability is denied by W and H and H’s contract with B was oral, an agreement signed by W and H a short time before the trial, provided fsr payment of any judgment which might be rendered against them and division of the amount of the judgment between them and that neither should settle without the consent of the other, is admissible in evidence as an admission against interest and a circumstance tending to show that they felt equally bound.

      Cogan, Williams & Ragland, for plaintiffs in error.

      Victor Heintz, Geoffrey Goldsmith, Froome Morris, Litileford Hunemeyer, Bayly, Simmons & DeWitt, for defendants in error.

      Charles Case and Carl Lehmann, contra.

      Motion to require the Court of Appeals to certify its record in this' case overruled by the Supreme Court, October 9, 1917.

   Gorman, J.

In the Superior Court of Cincinnati the defendants in error, Rohn iand Geisinger, who were partners in Allentown, Pennsylvania, brought an action against August Herrmann, Louis Werk and Charles E. Bultman, to recover money on four causes of action set out in their petition. The first three causes' of action were upon checks issued by C. E. Bultman as trustee, and the fourth cause of action was for moneys .advanced to Charles E. Bultman, trustee, to protect said Bultman’s account as a broker. The total amount claimed was $13,703.43.

Upon the trial of the cause below to a jury, a verdict was returned in favor of plaintiffs and against all the defendants in the sum of $10,425.32.

Thereupon August Herrmann prosecuted error to this court and has filed his petition in error herein, and the defendant Louis Werk has filed a cross-petition in error, each seeking to reverse and set aside the verdict and judgment which was entered thereon in the superior court. The defendant Charles E. Bultman has not prosecuted error to the judgment.

The claim of plaintiffs was that these three defendants, August Herrmann, Louis Werk and C. E. Bultman, were partners doing business as brokers under the name of C. E. Bultman. A great mass of evidence was heard in the court below, and the cause having been fully considered by the court a motion to set aside the verdict was overruled and judgment entered thereon against all of the defendants.

It is claimed by plaintiff in error Herrmann: first, that there is not sufficient evidence in the record to show that he was a partner of Bultman; second, that the verdict is against the weight of the evidence; and, third, it is claimed that there was error in the admission of evidence and in the charge of the court and the failure to give certain special charges.

An examination of the record satisfies us that there was sufficient evidence to submit this ease to the jury so far as Herrmann is concerned. As to the defendant in error, Louis "Werk, we think that it is established by a preponderance of the evidence that Werk was a partner of Bultman.

It .appeared upon the trial that Louis Werk had entered into a written agreement with Charles E. Bultman on or about the 10th day of June, 1914, and we think the evidence warranted the jury in finding that Herrmann had entered into a similar contract at the same time with Bultman, although the evidence fails to show that Herrmann’s contract was in writing. This contract in substance provided that Werk was to loan $10,000 to Bultman. There was no time stipulated when this money was to be repaid or returned; no evidence of indebtedness taken; no interest to be paid upon the loan; nor was there any promise, whatsoever to repay the money. In the agreement the parties stipulated that they were not to be partners. It was further agreed that Werk .was not to be liable for any of the debts of the business, but that the business should be conducted by Bultman, and that he should have absolute control of the management thereof and be liable for all the debts. It was further stipulated that Bultman w.as not to transfer his business to any one without first obtaining the consent of Werk; and that Werk should have the'first privilege of purchasing the business. It was further stipulated that Werk was to receive fifteen per cent, out of the profits of the business. After the business was opened up, both Werk and Herrmann took an active part in securing credit for Bultman .and in advising persons who had dealings with Bultman that they were financially interested. Bultman at their request employed a friend of Herrman and Werk, who remained in the office of Bultman and was paid by Bultman, but who, as Bultman expressed it, was the most expensive piece of bric-a-brac he ever had about the office. This man made reports to Herrmann and to Werk as to the manner in which the business was conducted by Bultman. While the evidence does not disclose that Herrmann ever signed any written agreement such , as did Werk, it is in evidence that Herrmann agreed orally to sign a similar agreement.

Both Herrmann and "Werk .advanced the amount of money which each agreed to advance, and it can not be doubted, we think, that the evidence adduced was sufficient to warrant the jury in returning a'verdict against both Herrmann and Werk as well as .against Bultman.

However this may be, we can not say that the verdict is so manifestly against the weight of the evidence as to require us to set aside the judgment and return the cause to the superior court for a new trial. The trial court heard the evidence, saw the witnesses face to face, observed their demeanor and their conduct. The jury also had the same opportunity as the trial court. They returned this verdict and the trial court refused to set it aside upon the ground that it was manifestly against the weight of the evidence, or upon the ground that there was insufficient evidence. A reviewing court under such circumstances should hesitate to set .aside a verdict and judgment on the ground that the same is against the weight of the evidence.

Notwithstanding the fact that both ILerrmann and Werk testified that they did not intend to be partners, and notwithstanding the fact that in Werk’s agreement and in the .agreement which Herrmann was to sign — if he did not sign it — they were not to be partners, the question as to the partnership was not to be determined by their declarations.

It was held in Wood v. Vallette, 7 O. S., 172, that notwithstanding the fact that the parties stipulated they were not to be partners, the question as to the partnership was to be determined by the acts a^d conduct and the agreements of the parties.

The case of Wood v. Vallette, supra, was under consideration in the later ease of Harvey v. Childs, 28 O. S., 319, and in that ease the court distinguished the case of Wood v. Vallette from the ease that was under consideration. The case of Harvey v. Childs was a single transaction and not involving a series of transactions or a business enterprise. But the ease of Wood v. Vallette was approved in Harvey v. Childs.

It was also held in the case of Cox v. Hickman, 99 E. C. L., 27, decided by the House of Lords, that a partnership could be implied in law by the acts and conduct of the parties, and the .agreements entered into by them, notwithstanding the fact they had stipulated they were not to be partners.

In the case at bar there is no question but that Bultman was authorized to act for Werk and Herrmann. Their agreement was that they were to participate in the profits. The advancement of the money which each was to make to Bultman does not bear any of the ear-marks of a loan, but has the characteristic indicia of .advancements in the business.

As was well said in the case of Beecher v. Busch, 45 Mich., 189:

“It is nevertheless possible for parties to intend no partnership and yet to form one. If they .agree upon an arrangement which is a partnership in fact, it is of no importance that they call it something else, or that they even expressly declare that they are not to be partners.”

This statement of the law is in line with the rule laid down in Wood v. Vallette, supra.

It is objected by counsel for Herrmann that a certain agreement entered into between Werk and Herrmann, three days before the case was tried in the court below, was improperly admitted in evidence. This agreement was in writing, signed by Herrmann and Werk, and in substance provided that in the litigation pending against Herrmann and Werk in the Superior Court of Cincinnati, if a judgment should be rendered against either or both, or it should be necessary to pay any claims in those actions, Herrmann would pay all sums up to $10,000| with interest, that being the amount which W.erk had contributed as a loan to Bultman; and for all sums above $10,000 and interest, each of the parties, Herrmann .and Werk, would be liable and pay in equal proportions or fifty per cent, thereof. The parties further agreed not to settle or compromise any suits or claims involved in said litigation without the consent of the other. Each of the parties agreed to furnish his own attorney to defend the actions and the claims, and to p,ay one-half of the costs and expenses, if any.

We think this paper was admissible in evidence against both Herrmann and Werk, as admissions against interest and circumstances tending to show that they both felt equally bound, each for one-half of any judgment that might be rendered against either.

Upon a careful consideration of the entire case and the record, we have come to the conclusion that there is no error in the record prejudicial to either plaintiff in error or the cross-petitioner in error, Louis Wert. It appears to us that substantial justice was done by the court and jury in the trial below, and the judgment is therefore affirmed.

Jones, P. J., and Hamilton, J., concur.


author: By the Court

text:
    DETERMINATION AS TO LIABILITY FOR. AN AUTOMOBILE ACCIDENT.
    Court of Appeals for Crawford County.
    Queenie Place, by Bert E. Place, Guardian, v. Lewis H. Berry.
    Decided, December 1, 1916.

      Negligence — As Between Two Occupants of an Automobile in Collision With Another Machine — Where there Are Two Plausible Theories of an Accident the One Adopted by the Jury Will be Upheld.

    A young lady accompanied by her escort, both of whom were minors, rode to the next county seat in an automobile belonging to the girl’s father. For a time the car was run by her, but during the journey its operation was surrendered by her to the young man. As they approached their destination their machine collided with another automobile, causing injury to the plaintiff below. The mechanism of the car was such that either of its occupants could have stopped it without changing position, had ordinary care been exercised. .The jury found in favor of the young man, and assessed damages against the young lady. Held:

    That while it would have been competent for the jury to have found the couple were engaged in a joint enterprise, yet the theory that, at the time of the accident, the young man was operating the car as the agent of his companion is tenable, and the rule that all reasonable presumptions should he indulged in favor of the validity of the judgment requires that it be affirmed.

      H. R. Schuler and C. E. McBride, for plaintiff in error.

      William C. Beer, contra.
   By the Court

(Crow, Kinder and Robinson, JJ.).

Plaintiff’s action in tbe court of common pleas, which resulted in a verdict and judgment thereon in the amount of $1,-500, was for personal injuries sustained by him from contact with an automobile occupied at the time by plaintiff in error, Quenie Place, who was a defendant below with Bert E. Place, who was her father, and one Paul D. Sweney.

In an early stage of the action it was dismissed as to the defendant Bert E. Place.

On the trial, verdict and judgment were rendered in favor of Paul D. Sweney.

The undisputed evidence shows that Queenie Place and Paul D. Sweney, both of whom were minors, started in an automobile owned by the young lady’s father, the said Bert E. Place, for a drive which commenced in G-aliori. Miss Place was operating, the ear at the time they started from Galion, but on the trip to Bueyrus, where plaintiff’s injuries occurred, she gave over the operation of the car to Mr. Sweney, who continued to drive until they reached the latter city and until after plaintiff sustained his injuries. At a point in Bueyrus just off the public, square the car struck plaintiff below and carried him some distance until it collided with the rear of another automobile standing ahead of it in the street.

The evidence introduced in behalf of plaintiff below tends to show that the position of Miss Place at the side of Mr. Sweney was such that by the exercise of ordinary care she could, because of the mechanism with which the ear was provided, have caused it to stop in time to have avoided colliding with the standing car.

Plaintiff’s evidence also tends to show that by the exercise of due care on the part of Mr. Sweney, he could have stopped the car before the collision, not only by turning tbe switch, but also by the application of a brake, neither of which he attempted t® do.

While the theory of counsel on behalf of defendant in error is that the liability, if any, of Queenie Place arose from her negligence in failing to personally exercise the claimed requisite care to avoid the injury to plaintiff below, and while that contention is not without support, the province of the court in reviewing the case is, of course, not limited to such consideration.

All reasonable presumptions in favor of the judgment’s validity must be indulged, and if upon any proper view the record is in such state as to sustain the verdict and judgment, the latter must be affirmed.

Under all the circumstances, Miss Place and Mr. Sweney could, by the jury have been found to have been engaged in a joint enterprise, in which status each would be answerable for the tortious acts of the other. Sherman & Redfield’s Law of Negligence, Sixth Edition, page 317; 57 L. R. A. (N. S.), 436-439, and cases cited in note.

Another view of the transaction is worthy of consideration, namely, that the jury may have concluded that Mr. Sweney was the agent of Miss Place at the time of the injury. And it can not be said that such conclusion is entirely without warrant. Assuming Miss Place to have been in rightful possession of the car, Mr. Sweney was either her agent in its operation or voluntarily assumed with her the management of the car, or wholly superseded her in its operation. If the latter, then the contention of the plaintiff that she was personally negligent when she saw the position of peril of plaintiff below, which his evidence tended, to show she saw or could have seen, and failed to exercise due care, would be correct.

The consistent view, inasmuch as the jury found in favor of Mr. Sweney, is that they regarded him as the agent of Miss Place at the time plaintiff received his injuries.

Counsel for plaintiff in error argue that, upon that theory, the judgment should be reversed because Mr. Sweney was not a proper party. *

So far as that contention affects plaintiff below it is a sufficient answer, that she can not in the first instance raise it in the reviewing court. The proper practice is that employed in the ease of 76 Ohio State, 509.

Numerous reasons are urged for reversal of the judgment. All have been examined, and none found of such character as to afford that relief to plaintiff in error.

The charge is not wholly free from inaccuracies. Much might have been omitted, and the jury left adequately informed of the issues and their duty in respect to them. But the charge does sufficiently set forth the various material questions for the jury’s determination, and does also adequately inform them of the rights and liabilities of the parties to the suit, and does fully acquaint them respecting their province. Possessing these attributes, and containing nothing prejudicially erroneous, the charge can not be deemed an improper one.

If the duty rested on this court to determine the facts, it might not have done so as did the jury. But the court’s duty is to review and to reverse only where there is error substantially affecting a right of the complaining party. The record is not in that condition, and consequently the judgment must be affirmed.


text:
    AS TO WHETHER. A WILL WAS SIGNED AT THE END.
    Court of Appeals for Madison County.
    Alice C. Chandler et al v. Minnie Dockman et al.
    Decided, December 5, 1917.

      Wills — Pages so Put Together as to Place the Sheet Containing the Testimonium, Clause on Top — Orderly Construction Shown hy Shifting the Sheets and Instrument Held Valid.

    Where a will, written on two sheets of paper, is so pinned together as to put the sheet containing the testimonium clause on top and the sheet manifestly intended as the first page on the bottom, but by reading the last page first and the first page last continuity and •an orderly construction of the instrument is shown, it should be treated as signed at the end as required by law, and not as invalid because of the evident mistake in fastening the sheets together.

      Murray & Emery, for plaintiffs in error.

      C. R. Hornbeck and Huggins, Pretzman & Davies, contra.
   Kunkle, J.

This is a proceeding to contest the will of Harriett Stouffer, deceased. The will consists of two typewritten sheets of paper, which were fastened together by brads or paper fasteners.

This instrument was presented to the Probate Court of Madison County, and an application was made to probate the same as the valid last will and testament of Harriett Stouffer. The probate court refused to probate the same. An appeal from the judgment of the probate court was taken to the court of common pleas and that court admitted the will to probate as being the valid last will and testament of the said Harriett Stouffer.

Plaintiffs in error then filed a petition in the Common Pleas Court of Madison County to contest the said will. The case was submitted to the court upon the pleadings and an agreed statement of facts. Upon the undisputed facts, the trial court instructed the jury to return a verdict finding that the said instrument was the valid last will and testament of said deceased. From such judgment, error is prosecuted to this court.

In brief, it is contended that the instrument in question is not the valid last will and testament of said deceased because the same is not signed at the end thereof, as required by Section 10505, General Code.

This contention is based upon the fact that the signature of the testator and of the attesting witnesses is upon the first or upper page as the sheets are fastened together.

The following is a copy of said will as it appears in the record, marked Exhibit No. 1, namely:

(Top Page.)
“Fift, I hereby appoint my husband, Abram J. Stauffer and J. R. Woods of Plain City, Madison County, Ohio, as Sole Executors of this, my last Will and testament.
“In Witness whereof, I hereunto set my hand at Plain City, County of Madison, this 12th day of June 1914.
“Harriett Stouffer.
“Signed and Sealed by said Harriett Stauffer, who at the same time published and declared the same, as and for her last will and Testament, in the presence of us, who, in her presence, and in the presence of each other, and at her request, have hereto Subscribed our names as witnesses.
“John H. Shultz.
“Jos. Nunamaker.”
(Bottom Page.)
“The last will and testament of Harriet Stouffer?
“In the Name of the benevelant Father of all.
“I, Harriet Stouffer of the village of Plain City, County of Madison, in the State of Ohio, being in good health of body, and of sound ,and Disposing mind and memory, and 'being desirous of settling my wordly Affairs while i have strenght and capacity so to do, do make, publish, and declare this my last will and testament.
“First. I give and bequeth to my beloved husband, Abram J. Stouffer, all my real Estate and personal Property that i may possess at my dead in fee Simple, and at his head if there is any left to be distrubed as follows to-wit, tó my sister Marry Bowers, the sum of One Dollar, to my Neisses Effie Converee, Alliee Chandler, Roby Beach and Charles Guy the Sum of one dollar each.
“To Minnie Dockman and Ettie Dockman two hundred Dollars each.
“To the Presbyterean Church of Plain City, Two Hundred Dollars.
‘ ‘ Second. It is my wish that wen the above bequeths are paid that my Executors herein after named shall see that John Guy my Brother if in need shall hold in trust for him whatever they may deem sufficient for his wants before any distribution is made of' the remainder of my estate that may bé left at the death of my Husband Abram J Stauffer,
“Third. Whatever property both personal or real that may be left after Clouse first and Second in this will has been complied with shall be devided as follows, to-wit, to Ellen Shank the one Eight of the estate Left, to Marry Ann McKinneys Children, one Eight, Thurman Guy one third and to Rhoda Fraham and her Heirs Two Thirds?
“Fourth. If any of the witnin named Parties herein should become dissatisfied with the distribution made by me or .attempt by law or otherwise to set this will aside, they shall forfeit all rights to share there under and their interest whatever it mays' be shall revert to the other Iieirs herein mentioned. ’ ’

It clearly appears from an inspection of the original will that the lower or second sheet as fastened together was intended to be the first part of the will and that the first or upper sheet as fastened together was intended to be the concluding portion of the will.

The lower or second sheet of the will begins as follows:

“The last will and testament of Harriet Stouffer?
“In the Name of the benevelant Father of all.
“I, Harriet Stouffer of the village of Plain City,” etc.

This instrument then proceeds with regular continuity down to the bottom of said page and ends with paragraph No. 4, and commences at the top of the first or upper page with paragraph No. 5 and proceeds with regular continuity down to the testimonium clause thereof, which was clearly intended to be the end of the will.

The signature of the testator immediately follows such testimonium clause.

The attestation clause appears to the left of the testator’s signature upon said sheet and is immediately followed by the signatures of the subscribing witnesses.

A careful examination of the will convinces us that the end of the will, within the meaning of Section 10505 of the General Code, is the blank line evidently intended for signature immediately following the testimonium clause. This is the place dt which the will in question is signed.

We think this holding is not inconsistent, but in harmony with the rule announced by our Supreme Court in 71 O. S., 395; 77 O. S., 104, and 80 O. S., 691.

In the ease of Irwin v. Jacques, 71 O. S., p. 395, Judge Price, in announcing the decision, says:

“There should be some continuity in the expression of the testator’s wishes, and if a part of the will is aside from the continuity of the language, such as the marginal matter in this ease, there should be some word or character used as reference to the place it should occupy in relation to the other provisions, so that the end of the will may be ascertained.”

Under the rule of continuity of expression so announced, we think the beginning ,and end of this will can be definitely fixed by an examination of the context.

In the Sears case, 77 O. S., 104, the court in substance held: That the end of the will was the blank line for signature immediately following the testimonium clause, and the will in that case was held invalid because the testator did not sign at such place, but wrote her name as a part of the testative clause immediately following.

In the Mader case, 80 O. S., 699, the will was held valid, where the testator signed upon the blank line immediately following the testimonium clause, notwithstanding the fact that there was a considerable blank space between the testimonium clause and the dispositive part of the will.

In this case, Judge Crew, among other things, employs the following language:

“While the leaving of a blank spaee'sueh as found in this will was imprudent in that it afforded an opportunity for fraudulent practice, nevertheless, the leaving of such blank is not of itself sufficient to invalidate the will. By usage and custom, in every orderly constructed will, the testimonium clause is universally recognized and adopted as the formal conclusion ,and end of such will, unless from the instrument itself a contrary intent appears.” * * *

In the case of Stinson’s estate, 228 Pennsylvania, p. 475, the court, commencing at the bottom of page 477, states :

“His written declaration is his animus testandi; when it is fully expressed his will is finished .and the end of it reached. It is there that his signature must appear as evidence that it is his will. What he regards as the end of his will and that must manifestly be regarded as the end of it from an inspection and reading of the writing is the end of it under the statute, which contains nothing about the spacial or physical end of it.”

From a careful consideration of the authorities pertinent to this issue and of the instrument in question, we have reached the conclusion that the instrument under consideration was signed by the testatrix at the end thereof, and that the trial court upon the undisputed facts correctly instructed the jury to return a verdict in favor of the validity of the will.

Finding no prejudicial error in the record, the judgment of the lower court will be affirmed.

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


author: Chittenden, J.

text:
    AUTHORITY OF JUSTICE OF THE PEACE TO GRANT A NEW TRIAL.
    Court of Appeals for Lucas County.
    Adolph Brand v. Michael Murray et al.
    Decided, June 7, 1916.

      Justice of the Peace — Exemptions to the Overruling of a Motion for a New Trial Not Based on Statutory Grounds.

    The authority of a justice of the peace to grant a new trial is not limited to the grounds named in Section 10352, General Code, hut since the amendment in 1902 of Section 6565, Revised Statutes, as now contained in Section 10361, General Code, a justice of the peace may also grant a new trial on the grounds named in that section.

      C. S. Curtis, for plaintiff in error.

      Lawton & Saalfield and J. I. O’Connor, contra.
   Chittenden, J.

Application for rehearing of motion to strike bill of exceptions from the files.

This cause is being considered on an application for rehearing of a motion to strike from the files the bill of exceptions for the reason that the same was not signed within the time required by statute. The cause was tried before a justice of the peace wbo rendered a decision and entered judgment on the 7th day of December, 1915. On the 10th day of December, 1915, a motion for a new trial was filed. The hearing on this inuiion was adjourned from time to time, and the motion was heard on December 20, 1915, and was overruled, exceptions noted and ten days allowed for the filing of a bill of exceptions. The bill of exceptions was signed and filed on December 29, 1915. The motion for a new trial was based upon several grounds, among others, that the judgment rendered is contrary to law, that it is not sustained 'by sufficient evidence, and because of error in the admission of evidence.

It is contended by defendants in error that the exceptions should have been prepared, allowed and signed within ten days from the entering of the judgment, and that the motion for a new trial filed by the defendant below, not being based upon statutory grounds, can not operate to extend the time for the signing of such bill of exceptions. It is contended that the authority of a justice of the peace to grant a new trial is limited by the terms of Section 10352, General Code, which, in substance, provides that a. new trial may be granted when the justice is satisfied that the verdict was obtained by fraud, partiality or undue means, and that the causes mentioned are the only grounds for a new trial, and apply only when the case is tried by .a jury.

Reliance is had upon the case of Thompson v. Ackerman, 21 C. C., 740, and that decision does sustain the proposition contended for by defendants in error. That decision was rendered in 1901 when there were no grounds for a new trial except those, contained in Section 6560, Revised Statutes, now Section 10352, General Code. At the time of that decision Section 6565, Revised Statutes, now Sections 10360, 10361,10362 and 10363, General Code, was in the form found in-93 O. L., 104. Section 6565, Revised Statutes as there enacted, referred to no grounds for a new trial in addition or supplemental to Section 6560, Revised Statutes, and the same situation is true in relation to the decision of the Supreme Court in the State v. Langenstroer, 67 O. S., 7, the facts in the latter case bringing it under the act found in 93 O. L., 104.

In 1902 Section 6565, Revised Statutes, was amended, and by the terms of the amendment additional grounds for a new trial were incorporated therein, as found in Section 10361, General Code, its provisions now 'being that if the "exception is to the decision of the court, on a motion to direct a non-suit or to arrest the testimony from the jury, or for a new trial because the verdict, .or if the jury- is waived, the finding of the court is against the law and the evidence, or on the admission or rejection of evidence, the party excepting musí reduce his exceptions to writing” and present them to the trial justice within the time limited by the same section (now Section 10360, General Code), which is within "ten days from the date of overruling the motion for a new trial, ’ ’ if such motion be made, etc. It will be seen that a radical change in the terms of Section 6565, R. S., was made by this amendment, and that the decisions cited by defendants in error were rendered with reference to the law as it stood before the amendment. The wording of the section as now found in the General Code is, we think, plain and unambiguous, and we hold that the bill of exceptions was filed within the time .provided by statute.

The application for rehearing will be denied.

Richards, J., and Kinkade, J., concur.


author: Houck, J.

text:
    LEGAL EFFECT OF LANGUAGE USED IN A DEED NAMING THE USE TO BE MADE OF THE PROPERTY.
    Court of Appeals for Wayne County.
    John Fawcett Larwill et al v. John P. Farrelly.
    Decided, March 22, 1918.

      Deeds — Declaration as to Purpose of the Grant Without Effect, Unless— Presumption that the Whole Title Passed — Conditions Lessening the Estate Conveyed Must he Strictly Construed.

    The use in a deed of general warranty of the words, “for the use and sole benefit of the Catholic church and such other erections as may be needed for the use of the said Catholic church,” does not constitute a condition subsequent or engraft a limitation upon the title, but at most is a mere suggestion or unenforcible request or desire.

      L. R. Critchfield, Sr., and A. D. Metz, for plaintiffs in error.

      John McSweeny and M. P. Mooney, contra.
   Houck, J.

Proceedings in error.

The error complained of in this case is in quieting the title to certain real estate located in the city of Wooster, Ohio, claimed to be owned in fee simple by the defendant in error here, who was the plaintiff below.

The trial judge in the common pleas court granted to the said Farrelly all the relief prayed for in his petition, thereby holding that John Fawcett Larwill and the other defendants below, the plaintiffs in error here, had no interest either legal or equitable in and to the real estate in question.

The contention in this lawsuit is as to the legal effect of the following words, “for the use and sole purpose of the Catholic church and such other erections as may be needed for the use of said Catholic church.”

This language appears in the granting clause of a deed made on the 27th day of May, 1857, by Joseph H. Larwill and his wife, Nancy Q., to the Reverend Amadeus Rappe and others. These grantees and all subsequent grantees by .a series of deeds conveyed all their interest in and to said lands described in the said Larwill deed to the said John P. Farrelly, who is now in possfes^ sion of same, claiming to'be the owner thereof in fee simple.

The granting clause in the Larwill-Rappe deed reads:

"That the said. Joseph IT. Larwill and Nancy Q. Larwill, his wife, for and in consideration of the just sum of $1,100 in hand paid, the receipt whereof we do hereby acknowledge, have given, granted, bargained, sold, released and conveyed, and do by these presents give, grant, bargain, sell, release, convey and confirm unto the said Reverend Amadeus Rappe, Frederick.Buchholtz and Michael Carroll, and their heirs and assigns forever, for the use and sole purpose of the Catholic church and such other erections as may be needed for the use of said Catholic church, a certain tract or parcel of land situate in said Wayne county, and described as follows:” (Here the premises are described.)

The habendum clause reads:

"To have and to hold the said described premises hereby sold as aforesaid, or meant or intended so to be, with all the privileges and appurtenances thereunto belonging or in any wise pertaining unto the said Amadeus Rappe and Frederick Buchholtz and Michael Carroll, and unto their heirs and assigns forever, for the sole use and benefit of said Catholic church and said other erections as aforesaid, and the said Joseph H. Larwill and Nancy Q. Larwill, his wife, for themselves and for their heirs, executors, and administrators, do covenant, promise and agree to and with the said Reverend Amadeus Rappe and Frederick Buchholtz and Michael Carroll, their heirs and assigns, that they, the said Joseph H. Larwill and Nancy Q. Larwill, his wife, are lawfully seized of the premises aforesaid, and that the said premises are free and clear of and from all encumbrances whatever, and further that the said Joseph H. Larwill and Nancy Q. Larwill, his wife, will well and truly warrant and forever defend the premises herein and hereby granted unto the said Reverend Amadeus Rappe and Frederick Buchholtz and Michael Carroll, and to their heirs and assigns, from the lawful claims and demands of all and every person whomsoever.”

The conceded facts are that-.the property described, in said deed ig-not used .by.the Catholic church for: .church-.purposes, but its use:for same-has;.entirely. ceased.:;. .ThatoJoseph-.H. Larwill; and.' Nancy Q. Larwiil, his wife, have departed this life, and that the plaintiffs in error are their only surviving heirs at law.

The proper solution of one question will determine the rights of the parties to this controversy, namely: What is the legal effect, as used in said deed, of the language, “for the use and sole purpose of the Catholic church and such other erections as may be needed for the use of said Catholic church,” and, does it constitute a condition subsequent?

A condition will not be raised by implication from a mere declaration contained in an instrument that the grant is made for & particular or certain purpose, unless it is coupled with words clearly showing upon their face such a condition.

In a warranty deed, such as the one now before us for construction, which contains the usual words of warranty and alienation of title of grantors, the law presumes that all of the grantor’s title and interest in the real estate described in said instrument passes to the grantee, unless by some plain language used therein the contrary is shown.

Conditions which in any way have a tendency to destroy or lessen estates are hot favored by the law, and thus are strictly construed, and all doubts are resolved against restrictions. •

While it is true that no precise form of words is necessary or essential to create a condition subsequent, nevertheless it must be created if in a deed by such terms as to leave no doubt of the intentions of the grantor so to do.

The language used by the grantors in the deed in the case at bar is clear, plain and unambiguous, and there is no doubt about its meaning, but as we interpret and construe it, falls far short of being sufficient to create a condition subsequent.

So far as creating limitations upon the title conveyed, it certainly does not. In legal effect it has no force, and the most that can be claimed for it is that it might be construed as a mere wish or desire on the part of the grantors to have the property used for the purposes indicated by the language; but in effect it is a mere suggestion, an unenforcible request or desire.

An examination of the deed nowhere discloses any language that could be construed as intended to create any limitation upon tbe fee simple title in the grantees, their heirs and assigns, and we find no reservations or limitations contained in said deed.

It is generally known that when an estate granted is intended to be terminated or forfeited that certain terms are used in the granting clause, or somewhere in the deed, declaring that the estate conveyed is to be forfeited “in the event that” certain conditions are not complied with. But in the deed now before us there is an utter absence of any such provisions.

Courts, in construing deeds and like written instruments, must be guided by the intention of the parties to them, and this must be determined by the language used in the instrument, the question being not what the parties meant to say, but the meaning of what they did say, as courts can not put words into an instrument which the parties themselves failed to do.

The deed in this case is regular upon its face. It conveys certain lands, for a valuable consideration, to the grantees, their heirs and assigns forever, and warrants the title to same against the claims of all others. It contains no words of forfeiture or limitation, nor is there any provision for re-entry. Thus it follows that the mere fact that the present owner of the lands has ceased to use same “for the use and sole purpose of the Catholic church,” etc., would not in law vest the plaintiffs in error with the title to said real estate.

It follows from what we have already said that the judgment below is right. We have examined all of the alleged errors, as claimed by plaintiffs in error, and we find none of them of that substantial nature as would warrant a reversal of the judgment below.

The judgment of the common pleas court is affirmed and the case is remanded to that court for execution.

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