author: GORMAN, J. GORMAN, J.

text:
    MANDAMUS — PENSIONS.
    [Hamilton (1st) Court of Appeals,
    May 17, 1915.]
    Jones, Jones and Gorman, JJ.
    State ex rel Jeremiah Delaney v. John R. Holmes, et al.
    1. Acquiescence, not Imputed in Unlawful Action of Official Board.
    Acquiescence in the action of a person or official board can not be charged where the person or board taking such action was without power or jurisdiction to act.
    2. Mandamus to Compel Pension Board to Issue Warrant for Pension Limited to Six Years.
    Where a member of the police force has been retired for disability and placed on the pension roll, and is thereafter suspended from said .roll by a board acting without authority, his right of action for a writ of mandamus to compel the issuance of a warrant for the pension of which he was thus deprived is by analogy limited to the six years from the time when his right of action accrued.
    3. Mandamus, Specific Remedy to Recover Policeman’s Pension Unlawfully Discontinued.
    A pension being in the nature of a gratuity there is no legal liability for its payment which can be enforced in an action for money, but the remedy for recovery of a pension, payment of which has been wrongfully discontinued, is by mandamus.

      Denis F. Cash and Henry T. Hunt, for relator.

      Walter M. Schoenle and Saul Zielonha, city solicitors, for respondents.
   GORMAN, J.

The relator brings this action in mandamus to require the defendants, trustees of the police relief fund of the city of Cincinnati, to draw their order on the treasurer of the city for the sum of $6,800 with interest, the amount of back pensions at the rate of $50 per month which he claims to be due him since September, 1903.

The pleadings, admissions and proof disclose that in 1887 the relator became a member of the police force of said city and continued actively in the service until 1898 when he was obliged to discontinue active service on account of two injuries received while in the service in the line of his duty; th'at on February 13, 1900, while a patrolman in good standing in said force, upon the recommendation of the mayor of said city and the approval of the police commissioners he was duly retired from active service by reason of physical disability, and placed on the pension rolls of said city, as provided by law; that at that time, under the rules and regulations of the trustees of the police relief fund, duly and legally adopted and approved, he was en- ' titled to a pension of $50 per month for life to be paid monthly on the orders of said trustees, drawn on the treasurer of said city, payable out of said fund; that said trustees thereupon duly and legally granted and allowed said pension of $50 per month pursuant to the rules of said trustees, and thereupon said pension was duly and regularly paid him, each and every month up to September, 1903, when said trustees of said fund refused, omitted and failed to pay him any further sums on account of said pension, and has since failed, refused and neglected to pay him anything whatsoever as and by way of a pension; that at the time of the retirement of Delaney and the granting of his pension he was in the state of Florida, and this fact was known to the mayor of the city and the police commissioner and trustees of said fund; and thereafter and up to the present time he was continued to be a resident and elector of the state of Florida. In August, 1903, the trustees of said fund adopted a resolution requesting each pensioner retired on account of physical disability to be examined by a physician as to his physical condition and furnish a certificate of such examination and that the committee to be appointed by September 1, 1903, ascertain what the pensioners are doing and if they are still entitled to pensions.

On September 8, relator was cited to appear before the board of trustees on September 11, and show good cause why his pension should not be discontinued. At that time Delaney was in Florida, and he testified that he received no notice to appear, and that he could not have reached Cincinnati on the eleventh of September if he had in due course received the notice. The minutes state that attorney Thomas Darby, claiming to represent Delaney, was present on September 11, but Delaney testified and his testimony is uneontradicted, that he never authorized Darby to appear for him.

Certain communications were received from Florida officials concerning Delaney’s alleged misconduct and violation of the laws of Florida which were ordered filed, and the trustees of said fund on that day suspended the payment of Delaney’s pension, and ordered an investigation to be made as to whether or not his pension should be discontinued. On October 9, 1903, the payment of Delaney’s pension was further suspended and a committee was appointed to confer with the mayor and chief of police, with a view to filing charges against him to cause his dismissal from the force and a revocation of his pension.

A committee was appointed, and on November 16, 1903, reported that they had requested an opinion from the city solicitor as to the proper method of procedure. The opinion of the solicitor is not in evidence. The committee recommended that inasmuch as Delaney failed to answer summons to appear before the board of trustees and show good cause why his pension should not be revoked, that his name be dropped from the pension roll. The committee’s recommendation was not adopted, but on that date further payment of his pension was again suspended until such time as he shows good cause why his pension should not be permanently discontinued.

On December 7, 1903, the trustees directed a communication to be addressed to county solicitor Bryan, of Duval county, Florida, stating that Delaney’s pension was suspended because he had forfeited his residence in Cincinnati by becoming a resident of Florida, thereby removing himself from the control oí the board of trustees; and that his alleged criminal act had nothing to do with the action of the board in the matter.

Nothing further occurred, as shown by the minutes of the trustees, until June 3, 1913, when Delaney made application for reinstatement as a pensioner, and bis application was then and there rejected. On October .1, 1914, he again applied-to the trustees for reinstatement, and on January 7, 1915, the trustees refused to reverse the action of the former board of trustees. Thereupon this' action was brought.

The law governing the police relief fund and the granting of provisions is found in Secs. 4616 to 4631 G. C. A copy of the rules of the trustees in force when Delaney was placed on the retired list and still in force and unchanged down to 1905, were attached to the reply, and were offered in evidence (“Ex. A,” Bill of Exceptions). The amount of pension to be granted is not fixed by statute but by the rules of the trustees.

The police relief fund is raised and maintained by a tax levy not to exceed three-tenths of a mill, by donations, fines imposed on the members of the force in disciplining them, contributions from members of the force, and the proceeds of the sales of unclaimed property and money in the police department.

The hoard of trustees had no power or authority, under the law or their rules, to suspend Delaney’s pension or to revoke the same. Their duties are and were purely ministerial, State v. Firemen’s Pension Fund (Tr.), 36 O. C. C. 501; (20 N. S. 13). The constitution and by-laws of the police relief association, which are attached to the bill of exceptions (Exhibit A) and which constituted the rules of the trustees of the fund when Delaney was placed on the pension rolls and when the trustees undertook to suspend the payment of his pension, contain no provisions authorizing such action, nor is there any warrant or authority under the statutes governing this fund, which would authorize the trustees of this fund to suspend or revoke any one’s pension. By rule 44 pensions in the police department were to be granted upon the recommendation of the mayor or board of directors, and the approval of the police commissioners, and when so granted it shall be the duty of the president and the secretary of the board of directors, together with the president of the board of police commissioners, to sign and attest monthly warrants for pensions. The official notification of the clerk of the.board of police commissioners shall give the proper authority.

By rule 45 it is provided that pensions may cease on restoration to duty and full pay. The police commissioners’ board under the law and the rules, was the only body authorized to recall a pensioner to duty and full pay; and whenever they did this the clerk of the commissioners under this rule 45 should notify the directors or trustees of the fund, of that fact, and thereupon the pension should cease and the officers of the directors or trustees should cease signing warrants for such discontinued pension.

By rule 46 any member of the police force who shall while in the performance of his duty, become, or be found upon examination by the board of police commissioners to be physically or mentally permanently disabled so as to render necessary his retirement from all service in the police department, upon the recommendation of the mayor, with the approval of the board of police commissioners, shall be allowed a pension of $40 a month, payable from the fund.

By rule 52 honorably retired members of the force shall have no interest in the fund other than that provided for them in the constitution and by-laws, and they shall not be subject to dues or assessments.

The mayor and the police commissioners were the only ones who had authority to grant, suspend or revoke pensions.

By the provision of Sec. 4699 G. C., the board of trustees shall administer and distribute the police relief fund.

By the act of April 23, 1902 (95 O. L. 223-229), paragraph (g) the rights of pensioned members were preserved, and under the law as then amended and by the act of April 20, 1904 (97 O. L. 241-251), paragraph (g),these rights were again recognized and preserved. On November 20, 1905, minutes of trustees, 362-363, the amount of the monthly pension of disabled retired members was raised to $50 per month, and'that rule continues in force to this day. Removal from the state of Ohio under the law and the rules did not constitute a forfeiture of the pensioner’s rights. While the police commissioners and the mayor might have made such a rule, and perhaps the trustees of the fund might also have promulgated such a rule, as a matter of fact no such ride was ever adopted by anybody having any connection with the police department or the fund. Neither the statutes nor the rules have made violation of laws or criminal acts or conduct on the part of the pensioner a cause of forfeiture of his pension; and no authority is lodged by statute or the rules of the trustees in the board of trustees of the fund, to deprive a pensioner of his pension, or to suspend or revoke the same.

Delaney’s pension was never revoked by any body. The trustees undertook to suspend it, from time to time, but their acts in this regard were -without authority and wholly null and void. Such actions of the trustees had no more effect on Delaney’s rights than if they had been taken by the city treasurer or any other person or body. There was no jurisdiction in the board of trustees to suspend Delaney’s pension.

It is urged that Delaney had misconceived his remedy and that he has an adequate remedy at law in an action against the city to recover the amount of his withheld pensions. We think that the pension being a gratuity, there is no legal liability' which could be enforced in an action at law to recover either damages for breach of contract or for moneys due. His remedy is in mandamus, and he is properly before this court. State v. Firemen’s Pension Fund (Tr.), 36 O. C. C. 501, (20 N. S. 13); Karb v. State, 54 Ohio St. 383 [43 N. E. Rep. 920]; Wood Co. (Comrs.) v. State, 41 Ohio St. 423; State v. Keefer, 36 O. C. C. 204, (20 N. S. 366; 3 App. 426).

Mandamus is now held to be a civil action and may therefore be subject to the statute of limitations, if there be facts to show that the statute operates. State v. Philbrick, 69 Ohio St. 283 [69 N. E. Rep. 439].

We do not think that Délaney is chargeable with laches or acquiescence in the suspension of his pension, because the board of trustees having no power to suspend his pension their action was null and void and there was no legal action in which he could acquiesce. Before one can be charged with acquiescence in a wrongful action, the person or body taking the action must have had power to act, but acted wrongfully, unjustly or without proceeding properly. There can be no acquiescence where the action taken is without jurisdiction or power. Where there is no power to act, the ease stands as though no action had been taken.

We think this case is ruled by the case above cited, State v. Firemen’s Pension Fund (Tr.), supra.

. We are of the opinion, however, that by the failure and neglect of Delaney to assert his rights, his claim is subject, by analogy, to the rule that would apply to a ease where the statute of limitations could be invoked. This statute which might be invoked if it were an action to recover the money, is Sec. 13224 —Sub. 4 — the four years statute. An action shall be brought within four years after the cause thereof accrued. 4. For an injury to the rights of the plaintiff not arising on contract nor hereinafter enumerated. His right to bring mandamus .would accrue or arise each month. When- his pension became payable, a refusal to issue a warrant in liis favor by the trustees, would give him a right to sue in mandamus; so that part of his claim which ante-dates four years from the commencement of this action should not be allowed, but he will be entitled to a writ commanding the defendants to issue a warrant upon the city treasurer for a sum equal to $50 per month for the four years preceding the filing of the petition herein, and from that date, together with interest on each installment of $50 from the date the same should have been paid,- up to the date of the decree herein.

Judgment accordingly.

Jones, E. H., and Jones, O. B., J„ concur.

REHEARING.

GORMAN, J.

Both parties filed motions for a new trial in this case.

Defendants set out several grounds upon which they claim the motion should be granted. The court does not consider any of the grounds well taken by defendants, and does therefore overrule their motion for a new trial.

The plaintiff’s motion for a new trial is based upon the ground that the decision of the court is contrary to the law and the evidence and against the weight of the evidence. In the argument to the court on this motion plaintiff’s counsel claimed that the court erred in holding that the plaintiff could not recover bis pension beyond a period of four years prior to the commencement of this action, and in holding that although the statute of limitations does -not apply to this case, nevertheless by analogy the rule laid down in Sec. 11224 limiting the recovery to four years, when the action is a civil one for an injury to the rights of the plaintiff not arising on contract nor hereinafter enumerated.

The court was in considerable doubt as to whether or not the plaintiff would be barred from a recovery by reason of his laches, and if so what rule of the statute of limitations by analogy should be applied to this case. Upon further consideration we are of the opinion that the better rule to apply is the one laid down in See. 11222 G. C., which limits actions upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture of penalty, to a period of six years after the cause thereof accrued.

In a case somewhat similar to the one at bar, entitled Merrill v. Board of Education, 2 Circ. Dec. 441 (4 R. 97), the circuit court of this county held that where there had been such conduct on the part of the relator as amounted to a waiver on his part of compensation for a part of the time he acted as a school examiner, in analogy to the statute of limitations the court should now refuse a writ of mandamus requiring the board of education of the city of Cincinnati to fix the compensation of the relator for any period prior to six years before the commencement of this proceeding.

In that case the court by analogy applied the rule laid down in Sec. 11222 G. C. We therefore conclude that the rule laid down in the above entitled case should be followed by us, and there will be a modification of the opinion heretofore rendered herein limiting the right of the plaintiff to recover to a period of six years prior to the date of the commencement of this ac* tion.

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


source: Caselaw Access Project

author: DUSTIN, J.

license: Public Domain

text:
    PROCESS.
    [Franklin (2nd) Circuit Court,
    December 2, 1912.]
    Dustin, Allread and Femeding, JJ.
    State, ex rel, Atty.-Gen. v. Hocking Valley Ry., et al.
    1. Service upon Agent of Railway Company Defective if Return Falls to Show Railroad in County or Persons Served Agent thereof.
    A return of service of summons upon an agent of a railway company is defective, if it is does not show that the agent served was the agent of the company in the county in which the service was made and that the road runs into or through that county.
    2. Optionabie to Fix Return Day on Summons to Other County on Third or Fourth Monday.
    A party causing a summons to issue to another county has the option to fix the return day on the third or fourth Monday, when he has reason to believe the usual return day will not allow time for service'.
    Motion to quash service.

      Timothy S. Hogan, Atty.-Gen., M. A. Dmgherty and Frank Davis, for plaintiff.

      Lawrence Maxwell, for 0. & 0. Ry.

      Wilson & Rector, for H. V. Ry.

      Doyle & Lewis, for L. S. & M. S. Ry.

      T. P. Linn, for K. & M. Ry.
   DUSTIN, J.

We are of the opinion that the third point urged in behalf of the motion to quash the service on the Chesapeake & Ohio is well taken, viz., that the return does not show service upon defendant’s agent in a eounty through or into which such road passes; or that the agent served was an agent in said county.

Nor does the fact appear in the petition that the said defendant operates its road in Hamilton county; and we can not take judicial knowledge of it.

We construe See. 11283 G. C. as permitting the ■ party causing a summons to be issued to another county to have it returnable on the third or fourth Monday, at his option, if he finds or believes that the fixing of the usual return day will not allow sufficient time for service.

It is entirely for the benefit of the party issuing the service, and the party served can not complain if the earlier and usual day is selected.

Motion to quash service sustained.

Allread and Ferneding, JJ., concur.


author: MEALS, J.

text:
    COURTS — OFFICE AND OFFICERS.
    [Holmes (5th) Court of Appeals,
    October Term, 1913.]
    Meals, Voorhees and Shields, JJ.
    In re, Appointment of Grace E. Etter.
    (Judge Meals of the 8th district sitting in place of Judge Powell.)
    1. Official Court Stenographers Appointed by Common Pleas Court for Statutory Term Beginning at Qualification of Appointee.
    Under Sec. 1546 G. C. giving common pleas courts authority to appoint official stenographers for the court and fixing the term thereof at three years, the appointment must be for the statutory term and for no other period, and the appointment become final upon qualification of such appointee.
    2. Ministerial Acts of Courts Appointing Official Stenographers not Controlled by Rule of Control as to Judgments and Orders During Term.
    The rule which gives to a court control over its own orders and judgments during the term in which they are made is limited to orders and judgments in judicial proceedings, and does not extend to ministerial acts performed by the court as the agent of the state or county.
   MEALS, J.

Section 1546 G. 0. provides:

“When in its opinion the business requires it, the court of common pleas of a county may appoint a stenographic reporter as official stenographer of such court, who shall hold the appointment for the term of three years from the date thereof, and until a successor is appointed and qualified, unless removed by the court, after good cause shown, for neglect of duty, misconduct in office, or ineompeteney. ”

In pursuance of the authority given by this act, Grace E. Etter was, on January 14, 1913, appointed official court stenographer by the court of common pleas of Holmes county.

Was her appointment legally made? And if so, what is the duration of her term? An answer to these questions will, in our opinion, determine this controversy.

On January 14, 1913, Miss Etter, who had been the official court stenographer of Holmes county for a number of years, resigned her position to take effect immediately, which resignation was on the same day duly accepted by the court. The resignation of Miss Etter having been accepted, the position became vacant. The court thereupon undertook to fill the position by making a new appointment to it. This it did on the same day by appointing Miss Etter at a salary of $600 a year, whereas she had previously received $500 a year for her services.

Can there be any reasonable doubt as to the court’s authority in the premises?

That the court had the power to make an appointment to the position, it being vacant, can not possibly be questioned.

Section 1546 G. C. amply clothes the court with such power. That the court had the power to appoint Miss Etter seems equally certain. From anything that appears in the record, she was not disqualified to hold the position. That she had previously held it at a smaller salary and had resigned, probably because she was dissatisfied with the salary which she was receiving, did not disqualify her. In contemplation of law her right to the position and its emoluments was equal to that of any other person; and the court had full power to appoint her to the position. In our opinion, therefore, her appointment was legal.

Miss Etter having been legally appointed to the position, what is the duration of her term ?

The appointment purports to be for a term of three years, but this fact is of no avail, as the court had not the power to fix the duration of such term; that is fixed by the statute itself. The only power given the court by the statute is the power to appoint; the statute fixes the length of the term at three years from the date of the appointment and until a successor is appointed and qualified. This, therefore, must necessarily be the term for which Miss Etter was appointed, unless, as claimed, the power of the court to appoint was limited to the unexpired portion of the term from which she resigned, in which event her term under the appointment of January 14, 1913, expired June 14, last.

This contention is founded on the assumption that the legislature intended to divide time into terms so far as it related to the operation of Sec. 1546 G-. C., and that the first term commenced immediately upon the first appointment being made under the statute, and that subsequent terms were reckoned accordingly. If the legislature intended that this construction should be given the act, we should think that it would have said so in the act and not have left it to the uncertainties of interpretation and construction. Moreover, the act seemingly contemplates that a person appointed in pursuance of its authority should hold the appointment for a term of three years and until a successor was appointed and qualified. Nothing is said in the act about terms or parts of terms in the sense in which these words are usually employed. It states that when the “business requires it, the court of common pleas of a county may appoint a stenographic reporter as official stenographer of such county, who shall hold the appointment for a term of three years from the date thereof and until a successor is appointed and qualified, unless removed by the court, after good cause shown, for neglect of duty, misconduct in office’or incom-peteney. ’ ’

The word “term” is obviously used in the statute in the sense of “period of time,” and doubtless it was the intention,of the legislature to empower the court, when in its opinion the business of the court required it, and the position was vacant, to make a contract on behalf of the county with a stenographic reporter to serve as official stenographer of such court for the period of three years and for the convenience of the court, until a successor was appointed and qualified. The duration of such appointment would not be affected by any previous appointment under tbe act or be determined by it, but would continue for the time prescribed by the aet.

We conclude, therefore, that by virtue of her appointment as stated, Miss Etter holds a contract with Holmes county as official court stenographer for the period of three years from the date of her appointment and until a successor to her is appointed and qualified.

But it is said that the court, within the term, to wit, on April 5, 1913, made an order modifying the order of appointment of January 14, 1913, so that Miss Etter’s term would expire on June 14, 1913.

As we have pointed out, the statute fixes the duration of the term and not the court. The legislature did not see fit to give to the court the power to fix and determine the length of the term. It simply designated the court of common pleas as the appointing power, as the agent of the county, in making a contract with a stenographic reporter as the official stenographer of such court. So it makes no difference whether the order of April 5, 1913, modifying the order of appointment was made within the term or not. It could not legally have been made at any time after Miss Etter had accepted the appointment by qualifying in conformity with the statute.

The question resolves itself wholly into one of power in the court of common pleas to make the appointment. There being a vacancy in the position, and the business of the court requiring it, the court is clothed with power to make the appointment, and, in the absence of fraud, having made the appointment, its action is final and conclusive upon everybody, at least so soon as the person so appointed qualifies. A contract is then made between the county and the person so appointed which the court is powerless to destroy or impair by order made in term or otherwise.

It is said further in this action that the court of common pleas had control over its own orders and judgments during the term at which they are rendered, and the power to vacate or modify them in its discretion.

This is true as a general proposition within certain limitations, but it is equally true that the court may not, with impunity, commit harakiri upon the records of the court in term or at any other time. The court, we think, may not properly upon its own motion and without cause, unreasonably and unnecessarily disturb its orders and judgments even in term. Besides, the control of the court over its own orders and judgments in term is limited to orders and judgments rendered in judicial proceedings, and does not extend to ministerial acts performed hy it as an agent of the state or county in making contracts on their behalf. The court having acted under such authority, its power is exhausted, and in the absence of fraud, its action is final.

The appointment of an official stenographer having been legally made, the person holding such appointment can not be removed except for neglect of duty, misconduct in office or in-eompetency. Before such person can be removed the existence of one or the other of these grounds must be established. We will not, however, consume time in a discussion of this matter, as it is not claimed that the order of April 5, was made in pursuance of the power of the court to remove, nor under the record could any such claim be made with any reasonable expectation that it would receive favorable consideration at our hands.

In our opinion the judgment of the court of common pleas should be and is affirmed.

Voorhees and Shields, JJ., concur.


author: JONES, E. H„ J. Jones, O. B., J.,

text:
    WILLS.
    [Hamilton (1st) Court of Appeals,
    June 3, 1914.]
    Swing, Jones and Jones, JJ.
    Elizabeth C. Hammel v. William Robert Gould.
    1. Devise During Widowhood and Additional Term of Minority of Youngest Child.
    A devise to a widow to “have and hold * * * so long as she continue my widow, and until my youngest child shall be of age,” gives her the estate during the term of her widowhood and an additional term, if she marries during the minority of such youngest child.

      2. Conflict between Disposition Clause and Succeeding Item of Will.
    Under a will devising in one item an estate to the widow to “have and hold * * * so long as she continue my widow, and until my youngest child shall be of age” and in another item providing for distribution according to law in intestacy “wheD the youngest child arrives at full age, or in case my wife * * * should again marry,” the first item is the dispositive clause and the second item, though conflicting, should be reconciled therewith by reading “and” for "or” thereby postponing partition rights in the estate.

      S. B. Hammel, for plaintiff.

      F. II. Reppert and J. J. Acornb, for defendant.
   JONES, E. H„ J.

Plaintiff filed ber petition for partition of tbe property described therein. Her right to partition depends npon a construction of the will of Richard Gould, deceased. Richard Gould died in the year 1879 leaving a widow and six children, several of whom were minors. At the time of his death he was seized in fee of the property of which partition is sought. The widow still lives and has never remarried. Five of the children “are living and are of full age.

Items I and II of the will to be construed are as follows:

“I. I hereby give, and bequeath to my beloved wife, Martha Gould, all the property, both real and personal, of which I die possessed, she to pay all just debts that I owe, and have and hold the property hereby bequeathed, so long as she continue my widow, and until my youngest child shall be of age.
"II. When the youngest child arrives at full age, or in case my wife Martha should again marry, it is my will that my real estate and whatsoever personal property may be remaining be divided between my wife and children, according to the law for the distribution of estates where no wills have been made.”

These two items of the will are conflicting. Item I gives to the widow Martha Gould the right to “have and hold the property hereby bequeathed, so long as she continues my widow, and until the youngest child shall be of age.” This item standing alone is clear and gives to the widow a life estate in the property provided she does not remarry.

The verbs “have” and “hold” as used in this clause are modified by the two adverbial clauses “so long as she continues my widow” and “until my youngest child shall be of age.” These clauses are joined in the will by the conjunction “and.” There is nothing in the language to indicate that they are intended as conditions upon which she can hold the property as claimed by plaintiffs. They are not conditions but adverbs, and state how long she shall hold the property. The testator first says she shall hold it so long as she continues his “widow.” This clause followed by the conjunction “and” indicates an addition to the time fixed in the provious modifying clause, and not a subtraction from or shortening of that time, so that she under this item holds the property not only so long as she continues his widow, but in ease she had remarried prior to the time the youngest child became of age she would have continued, under the terms of the will, in possession of the property until that time. Had the testator transposed the adverbial clauses and said “until my youngest child shall be of age and so long as she continues my widow” it would not be claimed that her estate terminated upon the youngest child’s becoming of age. How. can it be claimed that by changing the order of two adverbs the meaning can be changed? Such a claim is contrary to all rules of eostruction.

Such being the clear meaning of the language used in the first item, we find that item II is inconsistent with this provision and can not be reconciled with it, accepting, the ordinary meaning of the language there used. But so far as the widow is concerned item I is the dispositive clause of the will. The manifest purpose of item II is to provide what shall be done with the property at the termination of the estate given to the widow by the first item.

It is the duty of the court, where provisions of a written instrument are repugnant and irreconcilable, to attempt to reconcile them if possible.

The youngest child long since became of age and the widow is now old and has never remarried. Under the provisions of the first item the only restriction upon her right to a life estate in the property is her remarriage, which is a very remote possibility. But according to the terms of item II, the youngest child having arrived at age and the two clauses being connected by the word “or,” the property is now to be sold and the proceeds divided according to the statutes of descent and distribution.

Since the first item states clearly the time during which Mrs. Gould chalí continue to hold this real estate, and since in our view the purpose of the second item is primarily to provide what shall be done with the estate when this time arrives, it is the duty of the court to so construe the second item that it will not defeat the devise made to the widow in the first item. In other words, where same can be done, it is the duty of the court to reconcile two conflicting portions of a will. We find that we can so reconcile these provisions by substituting in the first line of the second item the word “and” for “or” so that it will read “when the youngest child arrives at full age, and in ease my wife Martha should again marry, it is my will,” etc. This makes the two provisions of the will entirely consistent and carries out, as we think, the intention of the testator. It certainly carries out the intention as clearly expressed in the first item as before stated, and its language should control in the determination of the rights of the widow, because it is in that item the testator provides for her.

There is abundant authority for the substitution of the word “and” in order that the language of the two parts may be reconciled. Ely v. Ely, 20 N. J. Eq. 43, 48; Courter v. Stagg, 27 N. J. Eq. 305; East v. Garrett, 84 Va. 523 [9 S. E. Rep. 1112]; Sayward v. Sayward 7 Me. 210, 216 [22 Am. Dec. 191].

The petition is dismissed.

Swing, J., concurs.

Jones, O. B., J.,

dissenting.

The rule for the construction of a will in Ohio is well stated in the syllabus of Townsend v. Townsend, 25 Ohio St. 477, as follows:

“1. In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.
“2. Such intention must be ascertained from the words contained in the will.
“3. The words contained in the will, if technical, must be taken in their technical sense, and if not technical in their ordinary sense, unless it appears from the context that they were used by the testator in some secondary sense.
“4. All the parts of the will must be construed together, and effect, if possible, given to every word contained in it.
“5. If a dispute arises as to the identity of any person or thing named in the will, extrinsic facts may be resorted to, in so far as they can be made ancillary to the right interpretation of the testator’s words, but for no other purpose.”

The purpose of making a will is to express the intention of the testator and the object of construing it is to ascertain that intent, but this must be gathered from the words as used. The inquiry is not, what thought did the testator wish to express, but, what thought has he here expressed by the words of his will. Sec. 1 Redfield, Wills 433:

‘ ‘ The first and universal qualification of this rule is, that it is the intention of the testator expressed in his will which is to govern, and this must be judged of exclusively by the words of the instrument as applied to the subject-matter and the surrounding circumstances. ’ ’

Items I and II of the will of Richard Gould, which are quoted in the majority opinion, swpra, dispose of his entire property, and in my opinion contain no ambiguity, but are perfectly clear in their meaning without any necessity for changing the position of clauses or substituting any word for another. They must be read together in order to effect the disposition of the property.

The first clause gives to the wife all the property to “have and hold * * # so long as she continues my widow, and until my youngest child shall be of age.” The two final clauses of item I are adverbial in character and modify or fix the time which she is to have and hold the property. She is to hold it during her widowhood until the youngest child shall be of age.

When Richard Gould died all of the children were minors. This language entitled the widow to hold the property until the youngest child became of age unless she should marry before that period. Item I does not go beyond fixing the time of her holding, but item II clearly terminates such holding, (1) “when the youngest child arrives at full age,” or (2) “in case my wife Martha should marry again.” Upon the happening of either of these events item II directs that the “real estate and whatsoever personal property may be remaining be divided between my wife and children according to law,” etc. It seems therefore clear that upon the remarriage of the widow she would cease to hold all of the property and it should be immediately divided between the wife and children according to the law for the distribution of estates of intestates. In case she did not marry during that time, this division is provided for upon the date of the youngest child arriving at majority.

To my mind the language of this will admits of no other construction. The disposition made by Bichard Gould of his property was possibly not favorable to his wife in putting upon her the payment of his debts and the rearing of his family of young children and giving to her an estate in his property only until the youngest child became of age, or until her remarriage if she remarried before that time, but if she was not satisfied with the provision made for her, she had under the law the right to refuse to take under the will, and to take the provision fixed for her by law in such cases. She did, however, take under the will, and in my opinion, her children had the power to demand partition in accordance with the second item of the will at any time they saw fit after the majority of the youngest child. The fact that they did not seek partition for a number of years after that date, does not in any way take away their right to ask it whenever they may choose, and no act is shown by the evidence that would amount to an estoppel against such right.

The rule as to changing words of a will is laid down in I Jarman, Wills (6 ed.) 599, in the following language:

“To alter the language of a testator is evidently a strong measure, and one which, in general, is to be justified only a clear explanatory context. It often happens, however, that the misuse of some word or phrase is so palpable on the face of the will, as that no difficulty occurs in pronouncing the testator to have employed an expression which does not accurately convey his meaning. But this is not enough; it must be apparent not only that he has used the wrong word or phrase, but also what is the right one; and, if this be clear, the alteration of language is warranted by the established principles of construction.”

I do not think that the context in this case warrants the court in changing the language as is done by the majority of the court in order to support their construction, and to uphold my opinion I take the liberty of quoting the syllabus in each of two cases relied upon by the majority, as follows:

Ely v. Ely:, supra:

“1. After making a bequest to his wife, the testator added these words: ‘ In ease she should lose any part of her property before mentioned, and need more than she has of her own to support and maintain her comfortably, then, and in that case, so much of this money deposited and accumulated as shall need for her comfortable support, I order my executors to draw and pay to her, yearly or half yearly.’ The widow needing more than she had of her own to support herself comfortably, though she had lost none of her property, filed a bill for the construction of this clause. Held-. That having lost none of her property, she was not entitled to any part of the bequest.
“2. ‘And’ will be construed ‘or,’ only to effect the evident intent of the testator, never to gratify the wishes or desires of a legatee, or to effect what might, in itself, seem more just or reasonable.
‘ ‘ 3. There is no power to change the words in a will unless such change is necessary to effect the intent of the testator, apparent on the face of the will or from surrounding circumstances.
“4. The legatee seeking a construction of the will to gratify her own wishes, and against the obvious intent of the testator bill dimissed; legatee to pay her own costs.”

Courier v. Stagg supra:

‘ ‘ 1. Testatrix devised her residence to her daughter, for her sole use and benefit, for so long a time as she might remain single and unmarried, or until such time as in her judgment she might deem it advantageous to sell and dispose of the same. The daughter is married. Held, upon bill filed for construction of the will, that the intention was that the daughter should have the residence until she either married or deemed it advantageous to sell, whichever should first happen; and the daughter having married, the executors have power to sell, and it is their duty to exercise it.
“2. Plain, clear words, read in their ordinary sense, must always govern, in searching for the intention of a testator, unless repugnant to other words, equally plain and clear, in another part of the same will.
“3. Courts sometimes, in attempting to give effect to a testator’s intention, displace ‘or’ and substitute ‘and,’ and also put ‘or’ where the testator has written ‘and,’ but such departure from the words of the will are never made except it is clear they are necessary to give effect to a clear purpose of the testator.
“4. All doubts must be resolved in favor of the testator’s having said exactly what he meant. ’ ’


author: JONES, O. B., J.

text:
    OFFICE AND OFFICERS.
    [Hamilton (1st) Court of Appeals,
    September 26, 1914.]
    Swing, Jones and Jones, JJ.

      Edward S. Keefer, et al. v. State ex rel. Fitzgerald.
    Tenure of One Appointed to the Municipal Service to Meet an Emergency.
    Under the rules of the civil service commission of Cincinnati the tenure of one appointed to the municipal service to prevent the stopping of public business or to meet ah extraordinary emergency, continues until such time as the commission certifies suitable persons from an appropriate eligible list to fill the vacancy.
    Error.

      Walter M. Schoenle, city solicitor, and Charles A. Groom, Assist, city solicitor, for plaintiff in error.

      MouUnier Betiman & Hunt, for defendant in error.

      Affirming, State v. Keefer, 25 Dec. 642.

   JONES, O. B., J.

By virtue of Sec. 4488 the mayor had the power and it was his duty to make temporary appointment such as that of the relator below, if it were necessary, to prevent the stoppage of public business or to meet extraordinary exigencies; he had no other right to make such an appointment, and under the general rule of law his official acts must be presumed to be legal. Under Sec. 74 of the rules of the civil service commission of Cincinnati such temporary appointment continued until such time as the commission could certify persons from an appropriate eligible list to fill the vacancy. It is conceded by both sides that no such list has been certified. The name of the relator was therefore properly upon the pay roll, and it was the duty of the civil service commission to give the certificate required by statute to enable the payment of his weekly wages.

The questions raised in the case have been fully discussed in the opinion of the court below, and we agree with the conclusions therein stated and do not deem it necessary to enter upon further discussion of same.

We find no error in the judgment of the court below, and the judgment is therefore affirmed.

Jones, E. H., J., concurs.

Swing, J., dissents.


text:
    COURTS — DIVORCE AND ALIMONY.
    [Hamilton (1st) Court of Appeals,
    June 14, 1915.)
    Jones, Jones and Gorman, JJ.
    E. S. Lawton v. Lulu Van Benschoten.
    1. Refusal of Trial by Jury upon Demand In Municipal Court Erroneous.
    Where a jury is demanded in the municipal court, before inquiry has begun into the merits of the cause, it is error to refuse trial by jury.
    2. Alimony Decreed In Other State Recoverable In Ohio Full Faith and Credit Clause.
    Recovery may be had under the full faith and credit clause of the federal constitution of installments of alimony which have become due under a judgment rendered in another state, notwithstanding the judgment is subject to possible modification by the court in which it was entered.
    Error.

      Howard D. Burnett, for plaintiff in error.

      A. M. Spiegel, for defendant in error.
   JONES, O. B., J.

The action below was a suit in the municipal court to recover a judgment upon two installments of alimony past due and unpaid under a judgment rendered in the district court of the state of Oklahoma.

The judgment, as stated at the hearing, must be reversed because of the refusal of the municipal court to grant to the defendant a jury trial. The right to such jury trial, notwithstanding the then existing rule of the municipal court, was decided by this court in Brodbeck v. Talley, 36 O. C. C. 000.

The other question raised in the case, upon which counsel desired this court to pass, was the right of the plaintiff to recover upon the judgment set up in her petition; it being contended by the defendant that no vested right existed under said judgment because it was subject to possible modification by the court which rendered the decree.

In the opinion of this court upon the record submitted, the judgment set up is one which is entitled to the protection of the “full faith and credit” clause of the constitution of the United States (Art. IV, Sec. 1), and under the doctrine as laid down in the case of Barber v. Barber, 62 U. S. (21 How.) 582 [16 L. Ed. 226], and Sistare v. Sislare, 218 U. S. 1 [30 Sup. Ct. Rep. 682; 54 L. Ed. 905], plaintiff would be entitled to recover a judgment in this state based upon the allegations of her petition below properly supported by evidence.

Jones, E. H. and Goman, JJ., concurs.


author: JONES, O. B„ J.

text:
    CARRIERS
    [Hamilton (1st) Court of Appeals,
    April 12, 1913.]
    Swing, Jones and Jones, JJ.
    Robert J. Bonser v. Pullman Company.
    Negligence Resulting in Money and Jewelry Being Stolen From Sleeping Car Passenger, Company Held Not Liable.
    A sleeping car company is not an insurer of the safety of property belonging to its passengers although held to a high degree of care in its protection; hence, where the evidence goes to show that a passenger was himself negligent with reference to the care of money and jewelry which was stolen from his berth during the night, a judgment in favor of the company will not be set aside.
    Error.

      Louis B. Sawyer and Wm. A. Roudebush. for plaintiff in error:
    Cited and commented upon by the following authorities: Beal Sleeping Car Co. See. 387; Pullman Palace Gar Go. v. Adams, 120 Ala. 581 [24 So. Rep. 921; 45 L. R. A. 767; 74 Am. St. Rep. 53]; Pullman Palace Car v. Hunter, 107 Ky. 519 [54 S. W. Rep. 845; 47 L. R. A. 286] ; Carpenter v. Railway, 124 N. Y. 53 [26 N. E. Rep. 277; 11 L. R. A. 759; 21 Am. St. Rep. 644] ; 25 Am. & Eng. Enc. Law (2 ed.) 1122; Thompson, Negligence See. 3606; Florida v. Car Co. 37 Mo. App, 598; Kroll v. Close, 82 Ohio St. 190 [92 N. E. Rep. 29; 28 *L. R. A. (N. S.) 571] ; Pennsylvania Co. v. Alburn, 13-23 O. C. C. 130 (3 N. S. 104).

      Mortimer Matthews, for defendant in error.
   JONES, O. B„ J.

Plaintiff brought this action to recover the value of a diamond ring and money which was lost or stolen out of his trousers pocket while he was a passenger in defendants’ sleeping car. Before retiring plaintiff took his valuable diamond ring from his finger and placed it in his trousers pocket, in which he also had $220 in money in bills. As he was somewhat disabled by lameness and had therefore taken a whole section he caused the porter to hang up his trousers with these valuables in the pockets, on a hook next to the aisle within the curtain of his section and against the partition between his berth and the adjoining one. 'When he secured his trousers in the morning while dressing, he discovered that his ring and money were gone.

It appears that the trousers could have been reached, by the occupant of the adjoining birth, where they hung through the night, and the pockets could have been rifled without being seen from the aisle, and for that reason the place selected was an unusual or dangerous place for the deposit of plaintiff’s money and diamond ring, and plaintiff had reason to know that it could not be as effectually guarded there as in some other place he might have selected in his berth.

Plaintiff claims that the trial court erred in refusing to give the following special charge requested by him, to-wit:

“I charge you that defendant was bound to use ordinary care to prevent the theft of plaintiff’s money and ring while he was asleep, if plaintiff placed it anywhere in his berth, and plaintiff cannot be held guilty of negligence contributing to the loss of his property by placing his money and ring in one place rather than in another in the berth.”

This charge if given would remove all possibility of plaintiff being guilty of contributory negligence so long as he places his money and valuables any place within the limits of the berth he is occupying regardless of how or where they might be placed or how accessible they might be to others in the car. It would seem to relieve plaintiff from all duty of exercising ordinary care regarding the safety of his own property. The law of this state does not recognize so lax a rule as to the duty of a passenger.

The law in Ohio requires such a passenger to take ordinary care for the safety and protection of his property and while the sleeping ear company is held to a high degree of care in the protection of plaintiff’s property, it does not become an insurer, nor does its duty to relieve the passenger from taking ordinary care for the preservation of his property. The question of whether the company was negligent is for the jury.

The charge of the court below correctly states the law submitting the question of defendant’s negligence under the circumstances of the case to the jury and its verdict in favor of the defendant is sustained by the evidence. The judgment is therefore affirmed.

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


author: SHIELDS, J.

text:
    EXECUTORS AND ADMINISTRATORS.
    [Knox (5th) Court of Appeals,
    April Term, 1913.]
    Powell, Voorhees and Shields, JJ.
    (Yoorhees, J., not sitting.)
    Mary Evers v. John F. Gardner, Exr.
    Claim Based on Services by Member of Family, not Relative or Adopted, Denied in Absence of Contract to Pay.
    Relationship to a family is established without formal adoption hy one who becomes a member of the family in childhood and so continued for many years after reaching maturity, and an action for services will not lie where brought by such a member of the family against the estate of the mother of the family where no agreement was made either by parol or in writing that the services should be paid for.
    Error.

      Waigfit & Moore for plaintiff in error.

      Owen & Carrfor defendant in error.
   SHIELDS, J.

This action was commenced by the plaintiff in error, plaintiff below, in the court of common pleas to recover from the estate of Caroline Skillings, deceased, the sum of $1,654.65, for work and labor performed by her for the said Caroline Skil-lings, in her lifetime, and at her instance and request, from January 28, 1905, to July 15, 1910, at five dollars per week. She further says that no payments were made on account of said services so performed by her, and that she presented her said claim, duly verified, to the executor of the estate of said decedent for allowance as a valid claim against said estate, which said claim was by said executor rejected. Judgment was therefore prayed for the amount of said claim with interest.

Answering said petition, the defendant in error, defendant below, for a first defense denied the averments in said petition, except that he is the duly appointed and acting executor of said estate.

For a second defense to said petition the defendant averred:

“That the plaintiff when about six or eight years of age went to live with the said decedent, Caroline Skillings, and remained and lived with her until her death, where she was cared for, educated, clothed and maintained during all of said years in and as a member of the family of said decedent. That the plaintiff never made any charge against said decedent, and never intended to make any charge against said decedent, and never intended to make any charge for the services described in her petition, or for any other time during which she lived with the said decedent, and asks to be dismissed with costs.”

To the second defense in said answer the plaintiff filed a reply in the nature of a general denial.

Upon the issues made by the foregoing pleadings, trial was had, and at the conclusion of the evidence offered by the plaintiff a motion was submitted to the court to direct the jury to return a verdict for the defendant, which motion was by the court sustained, and the jury was by the court thereupon directed to return a verdict for the defendant, which was accordingly done, to all of which the plaintiff excepted. A motion for a new trial was overruled, and judgment was rendered upon said verdict. A petition in error was filed, including a bill of exceptions containing all the evidence, to reverse the judgment of the court of common pleas, and while the petition in error filed for such reversal contains numerous assignments of error, the error principally relied upon by the plaintiff in error is that the court below erred in directing a verdict of the jury in favor of the defendant.

An examination of the bill of exceptions leaves no room to question the claim made in the plaintiff’s petition that she rendered the services to and for the decedent for the time therein stated, and as therein stated, and if the issue was simply one of liability between strangers for services rendered by one to another the duty of the court would be clear. But we are here met with the inquiry, not whether the services charged for were rendered by he plaintiff in error, but is the estate of Caroline Skillings legally liable therefor? This is the sole question made by the action of the court below in directing a verdict for the defendant. Ordinarily where one performs services for another, in the absence of any contract therefor, and the person for whose use such services are rendered accepts the benefits thereof, such person is liable therefor, for the law implies a promise to pay and a recovery may be had for such services. But a different rule of liability is recognized and fixed by the law in a case where family relationship exists, as where one of such family renders services to another of the same family, no obligation to pay for such services will be implied, and no recovery can be had for such services unless the same were rendered under an express contract therefor. Hinkle v. Sage, 67 Ohio St. 256 [65 N. E. Rep. 999]; Hawthorne v. McClure, 2 Circ. Dec. 390 (4 R. 11),

Nor is this rule limited to blood relationship, but extends to cases where the family relation exists in the absence of proof of some understanding, agreement or promise of compensation.

How was it in the case at bar ? The plaintiff, when a child of tender years, was received into the family of the decedent, where she lived, and was supported, and was treated as a mem-bor of the family until the death of the said Caroline Skillings a period of some thirty-five years. She took the family name and was recognized by the outside world as a member of the family. The relation of in loco parentis by the decedent, and by her husband until his death, was sustained toward the plaintiff in error, not only until she reached her majority, but ever afterward until said decedent’s death. And after attaining her majority she continued in the service of the decedent, without any change of relation whatever, neither demanding nor receiving any compensation for her services under any contract made therefor. Can she now recover as upon a quantum meruit for services so performed for the time mentioned in her said petition ? True, there is no blood relationship shown to have existed between the plaintiff and decedent, but an examination of the record clearly shows that there was a family relation existing between them for about thirty-five years, including the period for which suit is here brought, during which entire period no intention appears to have been shown by the plaintiff in error to charge for the services sued for, or any part thereof, and during which time there is an entire absence of proof of any contract having been made either in parol or in writing for said services, the burden of establishing which rests upon the plaintiff in error. Finch v. Finch, 7 Dec. Re. 673 (4 Bull. 908).

It frequently occurs that children and those who stand in the place of children entertain the notion that after attaining their majority they thereby become emancipated from parental control, and that any services rendered by them thereafter, while continuing to reside in the family, and supported as during their minority, entitle them to compensation therefor, upon the assumption that the law implies an obligation that the same be paid for. This is a mistaken notion, for in such case the law implies no contract; on the contrary the existence of such relation repels the presumption that such services rendered are in expectation of payment, and hence, in the absence of a contract, no recovery can be had therefor. It would seem that the continuance of the relation does not abrogate the rule of the reciprocal obligation between parent and children. Moore v. Sladden, Wri. 88; Pollock v. Pollock, 1 Circ. Dec. 408 (2 R. 143).

Counsel for plaintiff in error call the attention of the court to the occasion when it was brought to the knowledge of the plaintiff in error that she was not then and never had been legally adopted by the decedent, nor by her husband, and that this was the first intimation the plaintiff in error had of her relation to the decedent. Conceding this, and conceding further that the decedent in her lifetime knew that the plaintiff in error never had been legally adopted as her daughter, we do not see how such fact could or would in any wise affect the right of the plaintiff in error to recover against said decedent’s estate in the absence of a contract for the services sued for. It may be that such revelation tended only to increase the hardship that the plaintiff in error may have been called upon to bear in the light of her many years of labor spent in the interest of the decedent in her lifetime and upon her farm, but withal it appears that she thereafter continued in said decedent’s service until after her death, without demanding or having any contract for her services. Under the rule of law referred to, we feel constrained to bold that the court below, in sustaining said motion to direct a verdict for the defendant, and in so directing the jury, did not err.

We have also examined the record with reference to the other assignments of error contained in the plaintiff’s petition in error, and we find no such error therein for which the judgment rendered in the court below ought to be reversed.

The judgment of the court of common pleas is therefore affirmed at the costs of the plaintiff in error.

Powell, J., concurs.


text:
    AUTOMOBILES — ERROR—NEGLIGENCE.
    [Hamilton (1st) Court of Appeals,
    June 21, 1915.]
    Jones, Jones and Gorman, JJ.
    Charles Farrell v. Roche-Bruner Bldg. Co.
    1. Employe Riding on Chain Driven Motor Truck, Injured by Allowing his Legs to Hang Near Sprocket Wheel on Side, Denied Recovery.
    No negligence attaches to the use of a chain driven automobile truck, and where an employe riding on the truck sits with his legs hanging over the side in such a position that one of his feet is caught in the sprocket wheel, the proximate cause of the injury was his own negligence in so placing himself as to make the injury possible.
    2. Failure to Amend Petition to Aver Defect in Sprocket Wheel on Motor Truck Precludes Admission of Evidence to Show Defect.
    In the absence of an allegation of a defect in the sprocket wheel, the plaintiff can not be heard to complain of the refusal of the trial court to receive evidence as to such condition, where leave to amend so as to make the testimony competent was affered plaintiff and he failed to avail himself of the privilege.
    3. Direction of Verdict Affirmed Where Bill of Exceptions Does not Show Evidence on Defense Asserted.
    Where one of the defenses set up is a release in bar, and there is nothing in the bill of exceptions to show what evidence was introduced upon that issue, the presumption in favor of the ruling of the court below requires that its action in directing a verdict for the defendant be affirmed.
    [Syllabus by the court.]

      ERROR.

      Shuey & Anderson, for plaintiff in error.

      Robertson & Bucliwalter and T. C. Jung, for defendant in error.
   JONES, O. B., J.

; Plaintiff was in the employ of the defendant and was engaged in loading brick upon an automobile truck at the railroad yards and unloading same from the truck at a building which w'as being constructed by defendant on Main street. He and other men engaged in the same task were permitted to ride on the truck from the building to the railroad yards, and while so riding at the time of the injury, March 17, 1913, he sat upon the side of the truck with his feet hanging over the side directly over the sprocket w'heel and chain by which said truck was propelled, other men sitting on either side of him. When the truck arrived at the railroad yards it was driven within a few feet of an approaching wagon, and plaintiff fearing for his safety instinctively drew back his leg which was thus caught in the sprocket and chain and was crushed so that amputation was necessary.

The defendant at the time employed more than five workmen in the same line of business, and had not then availed himself of the protection of the employer’s liability law.

At the close of the evidence the court, upon motion of defendant, directed the jury to return a verdict for the defendant upon which a judgment was entered; and error proceedings are here prosecuted to set aside that judgment.

Two grounds of negligence were alleged in plaintiff’s petition:

1. That the defendant “negligently and carelessly permitted and suffered the said sprocket and chain on said automobile to remain exposed and uncovered.”

2. That the defendant “negligently and carelessly ran and moved said automobile truck dangerously close to a passing wagon, and that plaintiff reasonably anticipated bodily injury from collision from said wagon and sought to withdraw himself from said apparent danger, that in so doing his leg became entangled in said sprocket and chain.”

• The bill of exceptions does not purport to contain all the evidence, but on the contrary it is certified that it is a “narrative form of the evidence produced by the parties and heard by the court on the question of negligence and the injury.” The evidence in the bill of exceptions, however, shows that 70 per cent of all truck automobiles known to the business are chain driven, and that the sprocket and chain is in all makes exposed and uncovered.

It appears also that the sprocket and chain is in a measure protected by the wheels and the edge or bed oif the truck. These trucks are made for the purpose of hauling freight, and it is not intended that people riding upon them should extend their legs down over the side in the vicinity of the sprocket and chain.

It appears in this case that plaintiff had a choice of position upon the truck and there was ample opportunity for him to have placed himself where he would have been in no danger whatever from the sprocket wheel and chain.- Had he .so placed himself, no injury could have resulted from his fear of contact with the passing wagon and there would have been no reason for his thrusting his leg in contact with it because of fear of such collision.

It therefore appears that no negligence can be attributed to defendant from the use of such chain driven automobile track, and that the proximate cause of the plaintiff’s injury was his own act- in placing himself upon the truck at such point as to be in danger.

Error is urged, on the part of the plaintiff, in the court’s refusal to allow him to prove that “a cotter pin in the sprocket wheel had been lost and defendant had replaced it with a ware, which extended some distance beyond the axle.”

The refusal to admit such testimony is shown in the bill of exceptions, as follows:

“The court sustained the objection for the reason, that there was no allegation in the petition as to any negligence on account of a defective construction or condition of the sprocket wheel except that it was exposed, and the court offered to allow the plaintiff to amend his petition, which the plaintiff refused to do.”

A careful consideration of the petition shows that the trial court was correct in its statement that no allegations of defective construction or condition of the sprocket wheel appeared in the petition, and plaintiff having refused to avail himself of the opportunity offered by the court to amend his petition in that respect, can not now be heard to complain of the refusal to receive such testimony.

The second defense of the answer of defendant set up a payment in full and a settlement and a release in bar, by the plaintiff. There is nothing in the bill of exceptions to show what evidence was introduced in that respect, and under a presumption in favor of the ruling of the trial court, it must be held that a directed verdict was justified under that defense.

The court finding no prejudicial error, the judgment below is affirmed.

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


author: JONES, E. H., J.

text:
    COURTS — JURY.
    [Hamilton (1st) Court of Appeals,
    1914.]
    Jones, Jones and Femeding, JJ.
    (Judge Femeding of the 2nd district sitting in place of Judge Swing.)
    Joseph W. Brodbeck, et al., v. Frank F. Talley, et al.
    Demand for Jury Trial Fixed by Statute not Court Rule.
    A rale of municipal court fixing a time other than that provided in the act creating the court when demand for a jury may be made is repugnant to the act; hence, it is erroneous to refuse a demand for a jury within the time fixed by the statute.
    Error.

      Louis P. Link, for plaintiffs in error.

      Campbell 8. Johnson and James B. Swing, for defendants in error.
   JONES, E. H., J.

The action below was upon a promissory note, and was tried in the municipal court of Cincinnati and resulted in a judgment against the defendants who are plaintiffs in error here.

Several assignments of error are made, but the case was advanced for argument in this court because it involves the validity of Rule 16 of the code of rules of the municipal court of Cincinnati. This rule is one of a code of rules adopted by the judges of that court to govern the procedure therein.

It appears from the record in this case that before the trial the defendant below demanded a jury, which demand was denied by the trial judge on the ground that it had not been made at the time nor in the manner provided by said Rule 16 which reads as follows:

“On the second day after rule day for filing statement of defense in cases where the same is required, and on appearance day in other eases, at 9 o’clock A. M., the judge assigned to that duty shall call all cases in which service either by summons or publication has been duly made, and the clerk shall prepare for delivery to said judge a list of all such cases for call whether issue has been joined or not. When the cases are called default judgment shall be rendered on the bill of particulars when no appearance is made or statement of defense filed, or leave to plead granted. If the issues are made up, the ease shall then be assigned for trial, as hereinafter provided. Extension of time to plead may be granted by the court in its discretion, in which case the case shall again be called by the same judge on the second day after the expiration of the leave. A second extension of time to plead will be granted on showing of cause by affidavit. When the claim is for unliquidated damages, default judgment will be rendered, but the case assigned to the trial calendar for assessment of damages.

Each party desiring a jury shall upon said call, demand the same in writing. All applications for extension of time to plead must then be made,” etc.

The act creating a municipal court and prescribing its duties is found in 103 O. L., 279. Section 14 of that act authorized a municipal court "to adopt and publish rules governing practices and procedure not otherwise provided for in this act. ’ ’ Section 15 of the same act provides that “all causes, both civil and otherwise, in the municipal court shall be tried to the court, unless before the court shall proceed to inquire into the merits of the cause a jury shall be demanded by either party to the action.”

A reading of Rule 16 in connection with this general provision of the act shows beyond any question that the rule is repugnant to the provisions of the act in that it fixes a time other than that provided therein when the demand for a jury must be made. The language of See. 14 above quoted only gives a municipal court authority to make rules upon matters which are not specifically provided for in the act. The legislature has clearly fixed the time within which a demand for a jury may be made, and hence from the language of the law itself any rule of the court in conflict with that provision must be held to be invalid. The demand for a jury in this case was made by defendants below within the time prescribed by the general assembly, and it was error for this court to refuse such demand.

The bill of exceptions fails to show that this case was “called” at any time before trial. But counsel in presenting the case proceeded as if a statement to that effect was contained in the bill, and on account of the importance of the question argued, and the certainty that it must eventually be adjudicated, we have complied with the manifest desire of all parties concerned in passing upon the rule in this case.

It will be noticed that the rule imposes no penalty for failure to comply with it, nor does it say that a jury will be deemed waived unless demanded at the time therein fixed. It therefore might well be considered as merely directory and as a guide to counsel and litigants, and if so considered we see no necessity for expunging it from the rules of the court. The request which its words import can and doubtless will be complied with in many eases without inconvenience to the parties or their counsel, and thus it may aid in the dispatch of business and serve to some degree the evident purpose of its authors. But a failure to observe it by a litigant should not bar him from the right to trial by jury demanded within the time fixed by statute.

It is not necessary to pass upon the other errors assigned.

Judgment reversed, and cause remanded for new trial.

Jones, O. B., and Ferneding, JJ., concur.


author: GORMAN, J.

text:
    COURTS — CRIMINAL LAW — JUSTICES OF PEACE.
    [Hamilton (1st) Court of Appeals,
    March. 22, 1915.]
    Jones E. H., Jones, O. B. an® Gorman, JJ.

      In re, George Hesse, (Habeas Corpus.)
    Criminal Jurisdiction of Municipal Court in Cincinnati Township not Affected by Act Giving Special Jurisdiction to Justices of Peace.
    The special jurisdiction given to justices of the peace, police judges and mayors in criminal cases, conferred by Sec. 13423 G. C., as amended April 28, 1913, in no way modifies the Cincinnati municipal court act which gives to that court exclusive jurisdiction in Cincinnati township.

      E. C. Bolsinger and Pogue, Eoffh&imer & Pogue, for plaintiff in error.

      Max Levy, far defendant in error.

       Affirmed, Hesse, In re, 93 Ohio State, 000 (91 Bull. Supp. 265).

   GORMAN, J.

This is a proceeding in error to reverse a judgment of the court of common pleas discharging George Hesse from the custody of George L. Timberlake, a constable of Millcreek township, who held said Hesse under a warrant issued June 5, 1914, by Charles T. Dumont, a justice of the peace of Millcreek township.

The record discloses that Hesse at the time of his arrest was a citizen and a resident of Cincinnati township, and was charged with the commission of a misdemeanor in Cincinnati township — cruelty to animals. The sole question before this court is whether or not the justice of the peace had jurisdiction to issue the warrant.

Counsel for the complainant, Hesse, contend that under the provisions of the act creating the municipal court of Cincinnati, 103 O. L. 27, See. 41, no justice of the peace outside of Cincinnati township had jurisdiction to issue the warrant under which Hesse was arrested. The section in substance provides, among other things, that no justice of the peace in any township of Hamilton county, outside of Cincinnati township, shall have jurisdiction in any criminal proceeding in which a warrant, order of arrest, summons, order of attachment or garnishment or other process except subpoena for witnesses, unless the offense charged shall be alleged to have been committed within said township where the warrant is issued. Section 43 of said act deprives justices of the peace of Cincinnati township of all criminal jurisdiction.

Counsel for the constable, Timberlake, maintain that by virtue of the act passed April 28, 1913 (103 O. L. 539, 540), the jurisdiction of justices of the peace in Hamilton county in criminal cases was fully restored; that inasmuch as the act creating the municipal court was passed April 17, 1913, 11 days before the act of April 28, 1913 (103 O. L. 539), to the extent that it affects the jurisdiction of justices of the peace in criminal matters, the municipal court act has been repealed or modified by implication. There was no express repeal. The act of April 28, 1914, was an amendment to Sec. 13423, which had been a part of the General Code and the Revised Statutes for several years.

This Section 14323 prescribed the jurisdiction of justices of the peace throughout the state as to many eases therein enumerated. Prior to the amendment of April 28, 1914 there was embraced in this section under sub-head thirteen classes of cases in which justices of the peace, police judges and mayors of villages were authorized to act. The act of April 28, 1914 (103 O. L., 539, 540), added to this list of cases by amendment two additional classes of cases, sub-heads 14 and 15, to-wit, offenses for violation of the laws relating to weights and measures and short-weighing and measuring. Section 13423, as it existed before its amendment in April, 1914, was and still is of a general nature and applies to all justices of the peace in the state, and it is therefore claimed by counsel for the constable that, being a later law than the municipal court act, Sec. 43, it in effect, because of the conflict between the two laws, operated to impliedly repeal or modify See. 41 of the municipal court act. Now justices of the peace are no longer constitutional officers by virtue of the adoption of the new constitution in 1912. See Art. 4, Sec. 1 and 9, and schedule. State v. Redding, 87 Ohio St. 388 [101 N. E. Rep. 275],

The office, since January 1, 1913, is purely statutory, and the legislature has power to create or abolish the office, enlarge or limit the jurisdiction thereof. The act creating the municipal court of Cincinnati and prescribing its jurisdiction is a special act authorized by the constitution, Art. 4, Sec. 15. See State v. Block, 65 Ohio St., 370 [62 N. E. Rep. 370].

There is, therefore, no question of the validity of the two acts under consideration, the only question being whether both can stand because of their apparent conflict, and if they both can not stand, then has Sec. 41 of the municipal court act been repealed by implication? We are of the opinion that these two laws are not irreconcilable or in conflict, and that both are in full force and effect as valid expressions of the sovereign will of the legislature.

The rule is well settled that repeals by implication are not favored, and this proposition is admitted by counsel for defendant in error to be true, and so true that no authorities need be cited in support thereof.

It is the duty of the courts to uphold and sustain all laws passed by the legislature unless they are palpably and manifestly unconstitutional or in irreconcilable conflict with some other legislation on the same subject. It is also the duty of the courts, if possible, to reconcile any and all apparent conflicts, differences and inconsistencies in the laws so as to permit all the acts of the legislature to stand and render none nugatory. See Columbia Street Ry. v. Peace, 68 Ohio St. 200 [67 N. E. Rep. 490]; Dodge v. Gridley, 10 Ohio 178.

In this latter case the Supreme Court said:

“Where two affirmative statutes exist, one is not to be construed to repeal the other by implication unless they can be reconciled by no mode of interpretation.”

This language was expressly approved in the case above cited.

The act creating the municipal court of Cincinnati is special, and applies only to Cincinnati and Hamilton county whereas, Sec. 13423 as amended April 28, 1914, is general in its operations and applies to all justices except where the act is limited by some special act. The legislature having the power to limit the jurisdiction of justices of the peace either by general or special legislation, has expressly limited their jurisdiction in Hamilton county in the manner specified in the special act creating the municipal court of Cincinnati Sec. 41. The provisions of this special act, even though enacted prior to the amendment of See. 13423, G. C., a general statute, modifies the provisions of that section so as to make part of the jurisdiction therein conferred on justices of the peace in general applicable to justices of the peace in Hamilton county outside of Cincinnati township. It stands as though Sec. 41 of the municipal court act were added on as an exception to the general Sec. 13423, G. C. J;

The legislature, when it amended Sec. 13423, will be assumed and presumed to have had knowledge of the passage of the act creating the municipal court, and if it had intended to repeal or modify Sec. 41 of that act, doubtless it would have done so in unequivocal terms. It did not expressly repeal this See. 41 of the municipal court act, and we are of the opinion that the provisions of this special act Sec. 41, in Cincinnati township supersedes and takes the place of the more general provisions of Sec. 13423. See Detroit So. Ry. v. Lawrence County, 71 Ohio St. 454 457 [73 N. E. Rep. 510]; State v. Borham, 72 Ohio St. 358 [74 N. E. Rep. 220], where the court on page 363 in Commenting on a case similar to the one under consideration said:

“We are constrained to the conclusion that Section 1817 was intended by the general assembly as an exception to the general provisions of 7146, ”

Furthermore it appears that the amendment to Sec. 13423, simply added two additional subdivisions to the statute and was not the enactment of new legislation. If this amendment had not been made, it would scarcely be claimed now that Sec. 41 of the special municipal court act had been repealed by implication. How, then, can it be claimed that a minor amendment to the section which had been in force for a long time, had the effect of repealing a special act which by fair interpretation may stand as an exception to the general provisions when it is apparent that the legislature had no intention of repealing it?

For the reasons stated we are of the opinion that the justice of the peace, Charles T. Dumont, had no jurisdiction to issue the warrant in this ease, and the judgment of the common pleas court is affirmed.

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


author: SAYRE, J.

text:
    BUILDINGS — CONTRACTS—GUARANTY.
    [Hamilton (1st) Court of Appeals,
    March 9, 1916.]
    Sayre, Merryman and Walters, JJ.
    (Judges of the 4th court of appeals sitting by designation.)
    Love, Picket & Nulson, Co. v. Estella Jerome.
    Compliance with Specifications of Building Contract Insisted Upon Waives Guaranty Thereby Rendered Impossible.
    Where a building contractor proposes to comply with his guaranty, but in order to do so must disregard an impossible provision of the specifications, the owner by insisting on compliance with the specifications waives the guarantee.
    ERROR.

      LittleforcL, James, Ballard & Frost, for plaintiff in error. Carl Lehman, Pogue, Hoffheimer & Pogue, for defendant in error.
   SAYRE, J.

Plaintiff in error, after the contract had been made and entered into and the work commenced, discovered that the rooms could not be heated to the required temperature if the plans and specifications were complied with. So it undertook to install a heating system not in accordance with the plans and specifications. Upon discovery of this change the owner demanded to know the reason therefor, and was informed of all tbe facts and that the change would not be any more expensive to her. She thereupon directed the contractor, to furnish the heating system called for, according to the plans and specifications, which was done:

We have no quarrel with the principle announced in Cameron-Hawn Realty Co. v. Albany, 207 N. Y. 377. [101 N. E. Rep. 162], Lake View City v. MacRitchie, 134 Ill. 203, [25 N. E. Rep. 663],

The plaintiff in error having agreed to heat the rooms to a temperature of seventy degrees F. H. during the coldest winter weather with water not over one hundred and eighty degrees was bound to do so under the contract.

If the heating apparatus had been installed, without question between the owner and contractor, in strict compliance with the specifications and it would not have heated the rooms as required, then the case would have been clearly controlled by the rule announced in the two cases above referred to. But beyond question there is in the case under consideration a different state of facts from those reported in those cases. In our case the contractor undertook to furnish the equipment which would have supplied the required temperature. It undertook to comply with its guaranty, notwithstanding the specifications. This important fact is not found in the cases referred to.

The plaintiff in error had undertaken to comply with the specifications and to furnish the required temperature — an impossible task. It could not do both. It must do one or the other. It chose to do the essential thing, to-wit: to install a heating system which would furnish the required temperature. Here the owner interfered. The same question was then before her. She could not require of the contractor an impossible thing. She must elect to require either a strict compliance with the specifications and take the chances of the heating equipment, constructed according to the specifications, being able to furnish the required temperature or to require that the heating system be installed so as to furnish the required temperature, the plans and specifications to the contrary notwithstanding. She chose the former. By such choice she waived the latter.

It has been said that the contractor, when it discovered that the contract could not be complied with, should have refused to go on with it, or have secured a modification of it. But the contractor was bound to go on with the contract and had no right to refuse to go on with it, and the only modification which it could have secured was with the consent of the owner and she ordered a compliance with the specifications, which was a refusal to modify the contract.

The judgment of the court of common pleas will be reversed, and this cause remanded to that court for a new trial.

Merriman and Walters, JJ., concur.


author: HOUCK, J.

text:
    INSURANCE — LIMITATIONS.
    [Mahoning (7th) Court of Appeals,
    October Term, 1915.]
    Pollock, Metcalfe and Houck, JJ.
    (Houck, J., of the fifth appellate district, sitting in place of Spence, J.)

      Joseph Cortesi, et al. v. Firemen’s Fund Insurance Co.
    New Action on Fire Insurance Policy not Barred by Lapse of More than Year after Fire, Former Action Having Been Dismissed Otherwise than Upon Merits.
    A clause which shortens the statute of limitations, as to the time for bringing suit on the contract in which said contract is incorporated, can not be enforced in the face of the provision of Sec. 11233 G. C., having reference to the time within which suit may be brought in cases which have failed otherwise than on the merits.
    [Syllabus by the court.]
    Error.

      T>. J. Hariwell and E. H. Moore„ for plaintiffs in error.

      J. W. Mooney, for defendant in error.

      Motion to certify overruled. Fireman’s Fund Ins. Co. v. Cortesi, 93 O. S. 000; 61 Bull. 783.

   HOUCK, J.

This is an action in this court on error to the judgment of the common pleas court of Mahoning county, Ohio.

The original action arose out of a policy of insurance issued by tbe Firemen's Fund Insurance Company on tbe property of tbe plaintiffs in error, tbe policy covering a building located in tbe city of Youngstown, Ohio, and in an amount not to exceed $1,200.

Tbe petition contained two causes of action; the first seek’ ing a reformation of tbe contract of insurance, and the second praying for a judgment on tbe reformed contract for tbe sum of $1,200.

Tbe cause was beard, and tbe contract of insurance was reformed as prayed for in tbe petition. Thereafter tbe cause came on for trial on the second cause of action, and tbe same was dismissed by tbe court for want of prosecution.

Thereafter, and within one year after the dismissal of tbe second cause of action, as aforesaid, but not within twelve months next after tbe fire, tbe plaintiffs in error filed their petition in tbe common pleas court, alleging therein that by a decree of said court tbe contract of insurance bad been reformed; the loss by fire of tbe building;‘the failure otherwise than upon its merits of tbe second cause of action in tbe former suit; a full compliance with all the terms and conditions of said policy, and prayed for judgment against tbe defendant for tbe sum of $1,200.

Tbe defendant filed an answer to said petition, alleging, among other things, that said policy of insurance contained tbe following provision:

“No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance, by tbe insured, with all tbe foregoing re- - quirements, nor unless commenced within twelve months after tbe fire. ’ ’

Tbe cause was submitted to a jury, and after tbe plaintiffs bad submitted their evidence the defendant moved tbe court to direct tbe jury to return a verdict for the defendant, upon the ground that the evidence disclosed the fact that the suit at bar had not been brought within twelve months after the fire; and thereupon tbe court sustained the motion, and tbe jury returned its verdict for the defendant. A motion for a new trial was filed, beard, and overruled, and judgment was entered on tbe verdict.

Error is prosecuted to tbis court seeking a reversal of tbe judgment of tbe court below for sustaining tbe motion for a directed verdict, and in overruling plaintiffs’ motion for a new trial.

Tbe question presented for determination is, Does tbe stipulation in tbe policy of insurance that “suit must be commenced within twelve months after tbe fire” abrogate and set aside tbe provisions of Sec. 11233 G. C., which provides:

“In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff be reversed, or if tbe plaintiff fails otherwise than upon the merits, and tbe time limited for tbe commencement of such action at tbe date of reversal or failure has expired, tbe plaintiff, or, if be dies and the cause of action survives, bis representatives, may commence a new action within one year after such date.” * * *

Tbe stipulation in the policy that no suit could be maintained to recover on the policy, unless brought within twelve months after tbe fire, was intended to shorten tbe statute of limitations with reference to the time of bringing tbe action; but bow can it be properly claimed, or tbe contention of defendant in error sustained by any reasonable principle of law or justice, in the face of the provisions of Sec. 11233 G. C. ? Such a contract between tbe parties could not in any way abrogate, set aside and bold for naught tbe provisions of said section, stating as to when actions may be commenced unless they have been determined upon their merits.

Tbe action at bar was not determined upon its merits in the former suit, and after tbe dismissal of the former suit a new action was brought — tbe one at bar — within the year, and we think properly so. The plaintiffs never bad their “day in court” until tbe filing of the action and its trial in tbe present case.

The stipulation in tbe contract that “no action could be maintained on the policy unless commenced within twelve months after the fire, ” in no way waived or abrogated the rights of plaintiffs under Sec. 11233 G. 0. When the parties herein entered into the stipulation or agreement contained in the policy they must have, or at least should have considered it in the light of the provisions of said statute. It is presumed they knew the law, and that it was their intention to make their contract in conformity thereto, and if they did not do so the defendant in error can not now complain because it was in violation of and not in conformity with the provisions of the general statute governing the same. A contract for a shorter limitation does not control in face of the general statute, which must gov-, ern in such cases.

We have made a careful examination of the authorities cited by counsel in this case, and have examined many other authorities and decisions of courts, not only in our own but other states, bearing on the proposition before us, and we feel that the rule herein laid down is applicable to the case at bar. The case of Pittsburgh, C. C. & St. L. Ry. v. Bemis, 64 Ohio St. 26 [59 N E Rep. 745], while not directly in point, was a material aid to us in arriving at our conclusion.

A majority of the court is of the opinion that the judgment of the common pleas court should be reversed.

Judgment reversed, and cause remanded to the common pleas court for a new trial.

Metcalfe, J., concurs.

Pollock, J., dissents.