author: Gorman, J.

text:
    STREET CAR PASSENGER GIVEN WRONG TRANSFER.
    Court of Appeals for Hamilton County.
    Diehl v. The Cincinnati Traction Co.
    Decided, June 21, 1918.

      Street Railways — Liability for Ejection of Passenger — To Whom a Wrong Transfer Had Been Issued — in Accenting Transfer Ordinary Care Required as to Its Correctness.

    A passenger on a street car who has paid his fare and is entitled to ride over another line of the same company, and who having asked for a transfer over such line, is given, by mistake of the conductor, a transfer not properly punched as to time, may nevertheless, if he has exercised ordinary care and prudence about the receiving and making use of such transfer, lawfully insist upon being carried over such other line without 'further payment of fare; and if such passenger, without fault on his part, is ejected from a ■car for refusing to pay fare other than by such transfer, he may recover damages for the tort and can not be restricted to damages for breach of the contract to carry him.

      Fulton & Woost, for plaintiff in error.

      Joseph Wilby, contra.
   Gorman, J.

Error to the Court of Appeals of Hamilton County.

In the common pleas court plaintiff in error, George S. Diehl, sought to recover from defendant in error damages for an alleged wrongful ejectment from one of the East End cars of the defendant in error. At the close of the plaintiff’s evidence, the court, upon motion to instruct a' verdict in favor of the defendant, granted the same, and judgment was entered in favor of the defendant upon the instructed verdict. This error proceeding is to reverse that judgment.

It appears in the record that on the morning of the 28th of June, 1912, plaintiff in error left his home on Hosea avenue about eight o’clock and boarded a south-bound Vine and Clifton car at the comer of Jefferson and Brookline avenues. He paid his cash fare of five cents and asked the conductor for a transfer to an East End car • going east. The conductor received his money and gave him a transfer slip. The slip was punched for the East End car going east, but the punching was marked fifteen minutes later than the time at which it .should have been properly punched. Plaintiff in error left the Vine and Clifton car at Fifth and Vine, hurried down Vine street to Fourth, one square boarded an East End car going east, and tendered his transfer to the conductor, who refused to receive the same because, as he stated, “the time of the punching was too late.” He ejected plaintiff in' error from the car upon his refusal to pay an additional fare, and put plaintiff in error as well as his suitcase or bag out upon the street. Plaintiff in error did not know that the transfer slip was punched at the wrong time, nor was there any evidence tending to show that he was in any wise negligent in accepting the transfer and in leaving the Vine and Clifton car and boarding the East End car, unless it may be that he was negligent in failing to notice .the time punched on the transfer slip.

We are of the opinion that this was a proper case to submit to the jury on the question of whether or not the plaintiff in error was negligent in not discovering that the transfer slip had the wrong time punched on it.

The rule, in a ease where the facts are similar to those above set out is stated in 1 Nellis on Street Railways (2 Ed.), Section 267. Among other tilings in this section it is stated:

“A rule with respect to the punching of transfers is reasonable', if due precaution be taken to insure its observance and application in such a manner as to. protect a passenger from the errors or mistakes of the conductor. If the passenger, by reason of the inattention of the company’s servants to its own rules regarding transfers, or to statutory requirement in that regard, is ejected, an action for the breach of the contract of transportation is not his only remedy. If it were, the carrier might be encouraged to employ negligent or incompetent conductors, to the serious annoyance and inconvenience of the traveling public, and passengers, would not be afforded reasonable protection or security in their rights. If a passenger entered the car believing his transfer was valid, and was not negligent in failing to discover that it had been punched erroneously, he was there lawfully, and is entitled to maintain an action for the wrongful ejection, and to receive compensating damages for the loss of time, fare on another car, and injury to his feelings because of the indignities suffered by him and his wrongful ejection from the ear.”

This doctrine appears to be supported by the case of Cleveland City Ry. Co. v. Conner, 74 Ohio St., 225, where it is stated in the first paragraph of the syllabus:

“A passenger on a street railway, who has paid fare and is entitled to ride over another line belonging to the same company, and who, having asked for a transfer ticket over such other line, is given, by mistake of the conductor, a transfer which is not good over such other line, may nevertheless, if he has exercised such care about the receiving and making use of the transfer ticket as persons of ordinary prudence are accustomed to exercise under the same or similar circumstances, lawfully insist upon being carried over such other line without further payment of fare; and if such passenger, without fault on his part, is ejected from a car for refusing to pay fare, other than by such transfer ticket, he may recover damages for the tort and can not be restricted to damages for breach of the contract to carry him.”

A passenger upon paying his fare and receiving a transfer which he has requested, and which transfer the street railway company is obliged to give under the law and the provisions of its charter, has a right to assume that the servant of the street railway company will perform' his duty in giving him a proper transfer properly punched as to time. 1 Nellis on Street Railways (2 Ed.), Section 273.

In the ease of Eddy v. Syracuse Rapid Transit Ry. Co., 50 App. Div. (N. Y.), 109, it was held:

“Where a passenger upon a street car receives from the conductor a transfer containing the following condition: ‘Good only at transfer junction — on first connecting car, after time canceled on the line punched, subject to the Rules of this Company,’ and, without knowledge that the time at which the transfer had been isued was erroneously punched, and without being negligent in failing to discover that fact, boards the first car on which the transfer would have entitled him to ride, if it had been properly punched, his ejection from such car because of the conductor’s refusal to honor the transfer, is wrongful and entitles him to recover from the railroad company compensatory damages for the indignity, humiliation and injury to his feelings caused by such wrongful ejection and the remarks of the conductor attending it.”

In the case of Memphis St. Ry. Co. v. Graves, 110 Tenn., 232, it is held:

“It is negligence on the part of a street car company for a conductor to give a passenger a wrong transfer ticket, and the passenger can accept the transfer ticket without question, and his acceptance of such ticket will not constitute nesdisrence on his part. The passenger -will not be required to scrutinize the "ticket, but he may assume that the conductor has given him the proper ticket; and if the conductor make a mistake, it is the fault of the company, for which it is liable. ’ ’

It is further held in the second paragraph of the syllabus of this case:

“When a passenger on a street car pays his fare, and is, by the conductor, thereon, given a transfer ticket, which the conductor on another car, to which the passenger properly changes, refuses to accept, and the passenger is forcibly expelled from the car, he can recover from the street car company all approximately resulting damages, including those for humiliation and mortification, if such were in fact sustained.’-’

The amount of damages which the plaintiff in error might be entitled to recover would depend upon the circumstances of the case, but that question is not presented by the record in this case, because the jury had no opportunity to pass upon the question of damages, but were precluded from considering the case by the ruling of the trial court in arresting the case from their consideration.

The judgment of the court of common pleas will be reversed and a new trial granted.

Judgment reversed, and new trial granted.

Jones, E. II., and Jones, Oliver B., JJ., concur.

      For second opinion in this case, see ante, page 369.


source: Caselaw Access Project

author: Jones (Oliver B.), J.

license: Public Domain

text:
    LIABILITY OF BROKER SELLING BY SAMPLE.
    Court of Appeals for Hamilton County.
    The Lippencott Company v. The R. A. Holden Company.
    Decided, January 24, 1916.

      Sales — Dried Apples Sold by Sample — Afterward Condemned as Unfit for Food — Brolcer Handling Said Goods not Liable to Purchaser.

    A broker who sells dried apples by sample, with opportunity to the purchaser to inspect them upon arrival, is not liable to the purchaser on account thereof, where it appears that the apples were accepted and paid for in due course, and a little later were condemned by a Federal inspector as unfit for food.

      Bentley <£ Mente, for plaintiff in error.

      Suire & Bielly, contra.
   Jones (Oliver B.), J.

The question in this case is whether a broker, who sold dried apples by sample, is required to repay the purchase price to the purchaser, when the dried apples transported in interstate commerce were seized by the Federal government as being in violation of the Federal food and drug act, and were condemned and destroyed by virtue of proceedings under a libel filed in the United States District Court.

The record shows that the sale was made by sample; opportunity was given the purchaser to fully inspect the shipment when it arrived July 25, 1913. The goods were accepted and sent by the purchaser to cold storage, and paid for to the broker July 28. Afterwards they were seized by the Federal inspector who first inspected them five days after their acceptance.

The proof fails to show that the goods were not up to sample, or that they were adulterated and unfit for food at the time of acceptance by the purchaser. It does not appear that the broker ever saw the goods, or that he was in any way responsible for the condition in which they were received, or that he made any representations whatever to the purchaser further than to exhibit to him the sample by which the sale was made and to notify him of the receipt of the goods in the railroad car.

No defense to the libel was made by the purchaser or by anyone in the proceedings in the Federal court. After the monition and attachment issued, notice by publication was made and mailed to the purchaser, the warehouseman, the broker, and the shipper. Final judgment was entered November 5, 1913, sustaining the allegations of the libel, and adjudging the dried apples under seizure adulterated, in violation of said food and drugs act, condemning them and ordering their destruction. A copy of these proceedings and judgment was relied upon by defendant as being conclusive proof of the unsalable condition of the goods when they were shipped and when they were accepted by the purchaser. This was an action in re to, and can only speak as to the condition of the goods at the time of the seizure. There •is nothing in the record except possible inference to show their condition previous to that time, either at the time of sale or delivery.

A careful consideration of the record fails to disclose any error to the prejudice of the plaintiff in error and the judgment is therefore affirmed.

Jones (E. H.) P. J., and Gorman, J., concur.


author: Grant, J.

text:
    LIABILITY FOR THE DEATH OF ONE WHO WAS HIMSELF NEGLIGENT.
    Court of Appeals for Cuyahoga County.
    George K. Brierley et al, d. b. a. The Brierly Machine Company, v. Henry W. Burton, Administrator.
    Decided, January 13, 1919.

      Application of the Doctrine of Discovered Peril — Duty of Averting an Accident to One in Danger Through his Own Negligence — Limitation on Liability Based on Failure to Mahe the Utmost Use of the Last Chance.

    1. The humanitarian doctrine of last chance is not applicable in a case in which contributory negligence had first intervened, where the undisputed testimony tends strongly to show that the rescue of the decedent from his position of peril would have been physically impossible within the time-and under the circumstances presented at the moment his position of danger was discovered.
    2. Nor would the rule embodied in said doctrine be rendered applicable by; adopting the view of an expert, called on behalf of the plaintiff, that a quick and active man might have effected a rescue, where the work was not of a character requiring a man of that type, and had such a man been on the job he could only have effected a rescue by determining what to do and going through several motions within the space of two seconds' and at the risk of his own life or serious injury.

      Edward Eobday, for plaintiffs in error.

      Tolies, Eogseti, Ginn & Morley, contra.
   Grant, J.

Error to the court of common pleas.

The parties will be designated here as they were below.

Plaintiff’s intestate came to his death as a result of being crushed in an elevator located on premises owned and controlled by the defendant company.

The trial was to a jury. There was a verdict for the plaintiff, upon which the judgment brought here for review was rendered, after a motion for a new trial had been overruled.

At the end of the plaintiff’s case a motion was made by the defendant for a directed verdict in its favor, which was denied and an exception was taken. As this motion was not renewed at the end of all the testimony taken, the exception is not now in that particular form available to the complaining party.

In the view, however, that we have concluded to take of the case, the form of the objection to the judgment under review is not material. The substance of the complaint made to us here is that there is no evidence shown in the record that can be said to support the judgment, a question of course involved in the one raised by the overruled motion for a new trial.

The intestate at the time of his death was of full age. He was not then in the employ of the defendant, or engaged in its service in going into the elevator. He was not there upon any expressed invitation of the defendant. It is claimed in the brief for the defendant in error that there is evidence tending to show an implied invitation. But we do not regard that question, or any question as to the status of the decedent while on the elevator— whether as there by mere license or upon a supposed invitation— as material to the present consideration. It is allowed on all hands that if the plaintiff was entitled to recover at all in the action, it must be because his intestate came to his death while under the protection of the so-called rule of last chance, and by that rule his standing here is to be conclusively tested and ascertained.

The court below, upon the trial, limited the plaintiff’s right of recovery, if he had any, to the sixth specification of negligence of his petition, which was pleaded as follows:

“ Defendants failed and neglected to use reasonable care in stopping said elevator so maintained and operated as aforesaid, before decedent was killed thereon, after they saw decedent’s position of danger, and in this respect defendants were guilty of gross and wilful negligence which operated proximately to cause decedent’s death.”

This issue, thus formulated, manifestly called for the application of the rule mentioned and precluded the consideration of any Other. The law in Ohio upon this recognized doctrine of liability is settled, and will be discussed later. Our present concern is to gather from the record just what the matter of fact in the case is, and from thence deduce a conclusion as to whether, under the doctrine, the plaintiff has brought his intestate within the sweep of its shield of protection.

The sum total of the facts — making up the single controlling and decisive fact upon which our judgment will depend — is not, as we regard the whole case, in dispute. Its constituent evidence, so far as this is material here, is as follows:

The elevator in question was a freight elevator. It was operated in part by manipulation and partly automatically. The operator in charge was an employee of the defendant company, Joseph by name.

On the day of his death the decedent came to the premises with some material sent by his employer to the defendant company, which he delivered by carrying it up to the third floor of the building, using the stairway for that purpose. He was there told that there were some other materials there, to be taken back to his master — these then being on the third floor. They were already loaded on a truck. Joseph, the defendant’s elevator operator, was then told by one of his employers to take this truck load down on the elevator, which he proceeded to do by wheeling the truck to the shaft, lifted the gate and so manipulated the cable appliance as to bring the elevator platform up from the floor below. When it reached the third floor level Joseph did not stop it, although it seems he tried to do so, but the platform kept on ascending towards the fourth floor'. When it had so passed up to a distance of about five inches above the third floor, the plaintiff’s intestate, without invitation and unknown to Joseph, climbed upon the ascending platform. He at once attempted to get off- — the elevator platform being still in motion— a]id while doing so was caught between the rising platform and the descending elevator gate and was thrown down the shaft and killed.

The elevator was so arranged that the platform stopped at the fourth floor automatically. But the deceased apparently did not know this, and becoming frightened as he kept on moving upward, raised an ontcry, whereupon Joseph called to him to stay on the platform, as it would shortly stop; this warning was several times repeated.

Notwithstanding it, the deceased, frantic with what seemed to him impending danger — for such unquestionably was his state of mind at that time — continued his efforts to climb off the elevator floor, until the gate — then released and beginning to descend — striking the back of his neck, scraped his body from its position over the edge of the platform and hurled him down the shaft to his death.. This release of the gate and its beginning to come down took place when the platform or elevator floor had risen to twenty-one inches above the level of the third floor. The only way by which the ascent of the elevator could be stopped by manipulation was by the operator reaching around for a distance of nineteen inches and engaging a spring or dog which would have checked the upward movement of the platform, and there is evidence tending to show that Joseph attempted to do this as the elevator passed above the third floor without stopping, although it does not appear that this was in response to any cry of the deceased notifying Joseph of the state of peril he was in.

But, as we view the issue, this also is not material. Whatever attempt at stopping the elevator by the appliance named might have been made, it could not avail to save Burton for sheer want of time to make the effort available; the crash came simultaneously with making the attempt. Besides being altogether futile, the movement, carried any further, would have been at an extreme hazard of life or limb on the part of the manipulator.

According to the testimony of the experts, Mutton and Clark, offered by the plaintiff, and who were allowed over the objection of the defendant to testify as to certain experiments made by them with the same elevator after the accident, the following facts are established: The elevator opening above the third floor was substantially seven feet in heighth. The bottom of the gate was held, automatically, at about six feet above the level of the third floor, and as the elevator rose up the gate was released when the elevator platform reached a heighth of about twenty-one inches from the third floor level. .The speed of the elevator was substantially sixty feet to the minute. The only way by which the elevator could be operated, or its progress arrested by any one outside of it, was by manipulation of the cable, and in the case in hand this could have been done only by the operator reaching beneath the floor of the car after it had passed far enough above the third floor level to enable him to interpose and perform the necessary manipulation. One of the experts says that this could be done by proper manipulation of the cable after the elevator ear had passed a distance of three feet above the level of the third floor, but this is conditioned on the manipulator being an “active” man; in another place it would require a “quick active man” to do it, as he says. The other expert testifies that in an experiment made after the fact he stopped the elevator within a distance of four feet after it passed the thid floor level, and that a man could not begin to reach under the elevator ear to. do the manipulating of the cable until it had reached a heighth of two feet < and a half above the level of the third floor.

We assume the competency of this evidence, although under other circumstances we should regard it as of doubtful value in that respect. We make no present comment on the effect to be given to it, or as to the conclusions to be reached from it, leaving that consideration till we come to apply the law of the case to it and the other testimony disclosed by the record.

We have already characterized that law as belonging to the doctrine of the last clear chance. It is sometimes also called the law of discovered peril, and courts have referred to it as the humanitarian doctrine, as undoubtedly it in foundation is. For some time it went by the name of the rule of Davies v. Mann, from the ease in which it seems first to have been struck out. 10 Mees and W., 546.

Nevertheless, it is a rule of law, measured by the rigidity of law, and not a varying or flexible consideration to be swayed by the appeals of sympathy or pity or helplessness in misfortune, however creditable these may be upon the humane side of mankind, operating outside of courts.

The doctrine, in its application, has been pushed far beyond its first intendment, so far indeed, that it has been used to make a railroad company responsible to the heirs of a suicide — a result which has been characterized as abolishing the law of contributory negligence.

A halt, however, has been called on the extreme use, amounting to an abuse, to which this, in common with every beneficent rule, has been made subject, and in Ohio the application of the doctrine as one of “hit or miss,” to be indiscriminately used, has been clearly denied.

Some attempt at definition of the rule may aid in applying it to the facts of this case. In Quarterly Law Review, Vol. 2, p. 507 — cited with approval of Vizerrachero v. Rhode Island Co., 26 R. I., 392 — it is said:

“The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible.”

In Grand Trunk Rwy. Co. v. Ives, 144 U. S., 408, the rule is thus formulated:

“Although the defendant’s negligence may have been the primary cause of the injury complained of, yet an action for such injury can not be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured, subject to this qualification: That the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party’s negligence.”

For the purposes of the present ease and in view of the point upon which our conclusion must rest, it will be sufficient to state the Ohio rule from the negative side. That is to say, to state what will relieve from the operation of the doctrine as applied to the facts, or what found facts will, as matter of law, defeat its application to, and control of them. It is to be found in the second syllabus of Drown v. Traction Co., 76 O. S., 234, and is as follows:

“The doctrine of last chance’ as formulated in Railroad Company v. Kassen, 49 O. S., 230, paragraph one of syllabus, does not apply where the plaintiff has been negligent', and his negligence continues, and concurrently with the negligence of defendant directly contributes to produce the injury; it applies only where there is negligence of the defendant subsequent to, and not contemporaneous with, negligence by the plaintiff so that the negligence of defendant is clearly the proximate cause of the injury and that of the plaintiff the remote cause.”

And in the opinion, p. 248, the negative of the rule is amplified thus:

“Now it must be apparent upon even a slight analysis of this rule that it can be applied only in cases where the negligence of the defendant is proximate and that of the plaintiff remote; for if the plaintiff and defendant both be negligent and the negligence of both be concurrent and directly contributing to produce the accident then the case is one of contributory negligence pure and simple.”

Now, let us apply the rationale of the doctrine as thus made manifest by our Supreme Court, to the undisputed facts, or to the most favorable view for the plaintiff that can be taken of them, as this record shows them to be. If his own witnesses are to be believed, it was about seven feet from the third floor to the top of the shaft. AVhen the elevator platform was about 21 inches above the third floor the gate became disengaged and began to drop. The deceased was sitting — or we are assuming that he was sitting — on the edge of the platform floor, trying to get off. The descending gate struck him on the neck at not more than four and a half or perhaps five feet above the level of the third floor, when he was forced off and into the pit. The gate, therefore, travelled in the neighborhood of two- feet in order to reach his neck. It dropped about 15 feet to the second. This would require less than a half second of time for the gate to come to the point of contact with Burton’s neck. The ascent of the elevator platform was at a speed of about a foot per second, and as it had to travel only about two feet more upward, in order to have the iron fire door of the elevator intercept the view of Burton’s body — this being about seven feet above the third floor level — it follows, demonstrably, that his body became wedged in between the falling gate and the edge of the rising platform and lie was in consequence forcd off and down to his death, while the elevator ear was traversing some part of the two feet still remaining. This was the distance within which only he could by the exertion of any possible diligence of effort, have been rescued from his peril,' by any manipulation whatever of the appliance for that purpose at the time and place available. And the time within which alone the rescue could have been effected, was less than two seconds — because there was only that interval between the time when the intestate was seen trying to get off the platform and when he was thrown down the shaft and killed; all took place between the level of the third and fourth floors— it must have done so.

The decisive question then is, could Joseph, the operator of the elevator, within these limits of space and time, have discharged any duty he is shown to have known was owing by his master to the now dead man, to the effect of saving his life? We have no difficulty in finding that he could not. He-could not have done so by not only the exercise of any reasonable care, but he could not have acted to that end effectually within the limits of a physical possibility. The deceased could not have been saved, within the time and under the undisputed circumstances of the case, by any manipulation of the elevator which Joseph could have put in operation.

Nor does the testimony of the experts enlarge the scope of the possibility of rescue to any practicable purpose, in our opinion, so far as the matters of fact testified to by them are concerned. Giving what they say its utmost weight, still, the conditions considered, the stooping posture into which Joseph must have gotten himself before he could even begin the work of rescue, the narrow space beneath the elevator floor within which he must have worked when he once was down and in a position to work at all, and the distance he must then reach out in order to manipulate the only appliances there were for stopping the elevator— taking all these things into the account, we say, and the plaintiff’s contention of an unperformed duty owing by the defendant, is neither made out nor aided by the experts, granting the propriety of receiving what they had to say at all, and having regard to the time at which all that they testified took place.

In respect to the opinion vouchsafed by them as to the time within which a rescue could have been effected, while we do not think that in that time even a physical possibility of saving of the man was shown, we do not, aside from that, regard the testimony as having any legal value. Its force is destroyed by the annexed condition that the rescuer must be an “active man,” or a “quick active man,” which condition was not allowable in this case. In other words, the hypothesis did not square with the requirement of the law.

The defendants were called upon to employ for their freight elevator service a man fit for their work in that respect, and not a Harvard graduate. They were not bound to furnish a man-“quick” enough and “active” enough to insure getting a man out of trouble in their freight elevator, after he had by his own fault gotten himself in trouble, but only a mam-capable to operate the elevator in its ordinary and proper uses. We must reject this line of testimony altogether, not only for the reason we have now given, but also because the hypothesis takes no account of the rule of law that Joseph was under no obligation to act, if by acting he put his own safety in peril- — which we think would have been the case here. The opinion also ignores the question of proof .of the time when Joseph first knew of Burton’s danger and the consequent necessity for his acting at all.

We consider that the testimony of these two men — Mutton and Clark — was all that in any view of the ease could have sent it to the jury, or that could be used later to support the judgment. And we think it has no probative value.

The burden was on the plaintiff; it at no time shifted. Has it been borne? We think it has not.

The undisputed, mathematical evidence is to the effect that the elapsed time between the earliest moment when Joseph’s attention could have been challenged to the impending peril of the plaintiff’s intestate and when the latter was forced from the elevator’s edgi-into the shaft and to his death, was insufficient and inappreciable to form a judgment of rescuing him and making it effective by any mode or manipulation within that interval .either practicable or possible. The entire transaction, both as to the negligence of Burton in putting himself in a place of peril and any possible call of duty which could have been imputed to Joseph, and through him to his master, the defendant, was simultaneous, and not a separable transaction. If there was. negligence on both sides — on the one side apparent and admitted, or at least proved beyond dispute — and on the other sought to be imputed — it was a concurrent, abiding and continuing negligence. There was no ■ interval of time or circumstance, at which a jury could properly interpose a bar of separation between where the negligence of one party ended and that of the other could have begun. At most — if indeed so much — the two negligences — if two there were, which we tbimc is not proved or properly to be imputed — shaded into each other so imperceptibly as to result in a twilight zone, covering both alike with its mantle of legal consequence. Such negligence — admitting its dual character — is not to be, can not be, apportioned by a jury, or an attempted partition of it allowed to stand by a reviewing court.

In Anderson v. Mo. Pac. Rwy. Co. et al, 145 N. W., 843, the Supreme Court of Nebraska says:

“The doctrine of the last clear chance has no application to the case where a section foreman in a railroad company’s yards suddenly goes upon the track in front of a moving train of cars, at a point so near the engine that it was impossible to stop and avoid injuring him.”

We think this case is that case — exactly, in that it involves, as the determining consideration, the impossibility of avoiding injury to one in the first instance himself negligent, and that in this view — the impossibility appearing clearly, no room is left for the application of the only rule of law upon a recovery is, or indeed can be, claimed.

We find and hold that upon the undisputed testimony this ease is within the rule which by Drown v. Traction Co., supra, denies a recovery to the injured party or his representative — in this ■ case, the plaintiff below. It follows that the court below should have sustained the motion for a new trial. It was error to refuse it, as was done.

For that reason, the judgment complained of is. reversed.

As this determination proceeds upon the footing that the material facts in the record are not in dispute, in regard to which diverse' conclusions could not have been reached by different persons, and that the question remaining is one of law only, our opinion is that final judgment for the plaintiff in error should be entered by this court,- which is accordingly done.

We have been materially aided in our examination of this matter by the thoroughgoing briefs of counsel which have most industriously brought before us both the facts of the record and the law of the' case.'

Dunlap, J., and Washburn, J., concur.


author: Richards, J.

text:
    ACTIONS FOR DIVORCE AND ALIMONY.
    Error to the Court of Appeals for Wood County.
    Shaw v. Shaw.
    Decided, October 27, 1917.

      Divorce and Alimony — Failure of Jurisdiction as to Divorce — Not a Bair to Action Continuing for Alimony.

    It is error to sustain a general demurrer to a petition praying for a divorce and alimony, where the petition sets forth facts constituting a good cause of action for alimony alone, although it is-fatally defective as one for divorce in that it appears from the allegations of the petition that the plaintiff had not been a resident of the state for the -full period of one year before filing her petition. .

      B. F. James, for plaintiff in error.

      Edward Beverstoch, for defendant in error.
   Richards, J.

Error to the Court of Appeals for Wood County.

The plaintiff, Jeanette E. Shaw, commenced an action in the court of common pleas against Frederick A. Shaw, praying for a divorce and alimony, making The Wood County Savings Bank Company and The H. J. Heinz Company, defendants, and asking an injunction against them. This petition was met by a demurrer based on the grounds that the court had no jurisdiction of the subject-matter and that the petition did not state facts sufficient to constitute a cause of action. The common pleas court, on consideration, sustained this demurrer and dismissed the plaintiff’s petition, to which action of the court this proceeding in error is brought.'

The judgment rendered in the court of common pleas is evidently based on the contention that the action is not one for alimony alone and that it appears from the petition that the plaintiff at the time of filing the same had not been a resident of the State of Ohio for the period of one year before the filing thereof.

The pertinent provisions of General Code, Section 11980, as amended 106 O. L., 339, which control the question are as follows:

“Except in an action for alimony alone, the plaintiff must have been a resident of the state at least one year before filing the petition. Actions for divorce or for alimony shall be brought in the county of which the plaintiff is and has been for at least thirty days immediately preceding the filing of the petition, a bona fide resident or in the county where the cause of action arose. ’ ’

It appears from the petition in this case that the plaintiff had been at the time of filing her petition a resident of Wood County for more than thirty days immediately preceding the filing of the petition, and that the cause of action arose therein, but it also appears that she had not been a resident of the state of Ohio for one year before the filing of such petition. An examination of the petition discloses that it contains no averments other than those which are appropriate to set forth a cause of action for alimony alone, but that in the prayer the plaintiff asks for' alimony an injunction and a divorce.

It is perfectly manifest that the petition is wholly insufficient as one for divorce for the reason that it appears therein that the plaintiff had not been a resident of the state for the period named in the statute as a pre-requisite to the right of filing such a petition. If we are to read and give due weight to every allegation in the petition, and also to the language of the prayer, there is but one cause of action set forth, to-wit, that for alimony. If we are to treat the prayer for divorce as mere surplusage there still remains a good petition for alimony and a petition containing no averment inappropriate therefor.

A general demurrer to a petition should not be sustained because the prayer of the petition is broader than is justified by the law or warranted by the facts pleaded. In any aspect the petition must in law be regarded as one for alimony alone, the prayer for injunction being a mere incident thereto.

It follows that the judgment rendered in the court of common pleas must be reversed and the cause remanded with directions to overrule the demurrer to the petition.

Chittenden and Kinkad'e, JJ., concur.


author: Ferneding, J.

text:
    CHILD STRUCK BY AUTOMOBILE.
    Court of Appeals for Franklin County.
    Edwin O. Decker v. Doris A. Mitchell By John Mitchell Her Next Friend.
    Decided, February, 1919.

      Negligence — -Child Struck by Car Mid-way Between Street Crossings— In the Absence of an Ordinance to the Contrary Pedestrian May Use the Street at Other Points than Crossings — Relative Negligence of. Car Driver and Victim a Question for the Jury.

    1. For a pedestrian to attempt to cross the street at a point other than where there is a regular crossing for pedestrians is not negligence as a matter of law in the absence of an ordinance forbidding such use of the streets.
    2. Whether reasonable care was used by a child ten years of age who was struck by an automobile while attempting to cross a street mid-way between crossings is a question for the jury; depending somewhat on the age, intelligence and experience of the one so injured.
    3. While the driver of an automobile is bound to use special caution at street crossings to avoid striking pedestrians, he is bound at all times to keep within the speed limits and to use due care to prevent striking persons who may be in the street.
    4. To admit testimony to the effect that school children were in the habit of taking a short cut across the street at the point where the accident complained of occurred is not prejudicial to one whose machine struck a child at that point, where the jury are charged that such testimony was without effect upon him unless the practice of children so to d-o had been brought to his knowledge.

      Clayton A. McCleary, attorney for plaintiff in error.

      Taylor, Williams, Cole (& Harvey, contra. ‘
   Ferneding, J.

The original action in the court of common pleas ivas brought by Doris A. Mitchell by her next friend against Edwin O. Decker for injuries received in an automobile accident which occurred in East Eleventh avenue near the Ohio State Fair Grounds in the city of Columbus. The defendant was the owner of the automobile in which he was riding at the time of the accident. The car was being driven by the defendant’s son. The plaintiff at the time of the accident was between ten and eleven years of age. She approached Eleventh avenue, across vacant lots, and attempted to pass into Eleventh avenue at about the middle of the block and immediately in the rear of the street ear. After passing the street car and reaching a point some ten or twelve feet from the south rail of the north track she was struck by the defendant’s car and seriously injured. The negligence assigned in the petition was that the automobile was being operated at an excessive and unlawful rate of speed and that the driver of said automobile failed to use ordinary care to avoid the collision. It was claimed by the defendant that the plaintiff was negligent in attempting to cross the street at that particular place, it not being a regular street crossing; also that said plaintiff did not use proper caution to avoid the injury. There was a conflict of evidence as to the negligence of the defendant and as to the contributory negligence of the plaintiff. While the evidence on these subjects was conflicting we think these questions were properly submitted to the jury.

Counsel for plaintiff in error contend as a matter of law that the plaintiff below was guilty of contributory negligence because she undertook to cross Eleventh avenue at a point other than where there was a regular crossing for pedestrians. It does not appear that there was any traffic ordinance making it unlawful for pedestrians to cross a street in this section of Columbus at a point other than at regular crossings; consequently plaintiff was not guilty of any illegal act or chargeable with negligence per se. It therefore, became a question of reasonable care. This depended to some extent upon the age, intelligence and. experience of the plaintiff and was a question for the consideration of the jury, Mill Co. v. Corrigan, 46 O. S. 288, Railway Co. v. Mackay 53 O. S. 370; Railway Co. v. Wright, 54 O. S. 101. The plaintiff, because of her tender years, is not chargeable with that same standard of care and caution as would be expected of a person of mature years. Many of the cases cited by counsel for plaintiff in error, therefore, are not applicable.

It is also contended that the driver of defendant’s car was not bound to contemplate that a pedestrian would be crossing a street between regular crossings and was therefore not bound to be on the lookout for such pedestrians. We think, however, that while the driver of an automobile would naturally be required to exercise a.greater degree of caution at a regular crossing than' at points between crossings, nevertheless it at all times became the duty of such driver to keep the speed of his ear between crossings within the legal limit and to use due care and caution to discover pedestrians, particularly children, who may be found using the street. This is a question of fact to be determined from all the evidence and circumstances of the case. There was evidence tending to prove the custom on the part of children and others in that neighborhood to cut across lots and over Eleventh avenue at the point of the accident. The trial court distinctly stated that this evidence would not affect the defendant unless it was shown that he had notice, and we think that the introduction of such evidence under the circumstances was not prejudicial.

The jury returned a verdict in favor of the .plaintiff in the sum of $4,500; this the trial court reduced to $2,900. We are not prepared to find from the record that the verdict was the result of passion and prejudice on the part of the jury, nor do we find that the verdict as reduced by the trial court is excessive. Finding no prejudicial error the judgment will be affirmed,

ICunkle, and Allread, JJ., concur,


author: Middleton, J.

text:
    LIABILITY OF ENDORSER ON NOTE PAYABTE IN INSTALLMENTS.
    Court of Appeals for Cuyahoga County.
    (Middleton, Walters and Sayre, JJ., of the fourth district, sitting by designation in the places of Grant, Dunlap and Lawrence, JJ., of’ the eighth district).
    The Elworthy-Helwick Company v. Charles N. Hess, as Executor and Trustee of William G. Amor, Deceased.
    Decided, May 17, 1918.

      Promissory Notes — Rights of <m Endorser — Where Note is Made Payadle in Installments — Efect of Failure to Give Notice as Each Installment Becomes Due.

    1. When a promissory note is made payable in installments, the promise to pay each installment is a separate note in itself.
    2. Under favor of Section 8194, General Code, an endorser of a note payable in installments is entitled to notice of the non-payment of each installment, and if such notice is not given he is discharged from all liability in respect to such installment.

      Messrs. White, Breiver & Curtis, for plaintiff in error.

      Messrs, Hoyt. Dustin, Kelley, MeKeeha-n and Andrews, for defendant in error.
   Middleton, J.

The parties stood in reverse order in the court below and for convenience we will refer to them here in that order.

The plaintiff filed his suit as executor and trustee of the last will and testament of William G. Amor, deceased; against one Holberger and his wife as makers, and the Elworthy-Helwick Company as endorser, of a certain note for the sum of $1,600, dated at Cleveland, Ohio, April 8,1912 with interest at the rate of six per cent, payable semi-annually on the 15th day of June and December of each year. Said note provided that the makers thereof should pay a sum of not less than twenty dollars each and every calendar month from and after date until the principal and the interest of the obligation were fully paid. It was further provided that if the makers of said note should fail to make any two of said monthly payments when due the whole amount or balance due on said note should become due and payable at the option of the holder thereof.

The petition contained two causes of action, one in the usual form on a promissory note, by which plaintiff claimed judgment against the makers and against the Elworthy-Helwick Company as endorser; and in the second cause of action the plaintiff sought to foreclose a mortgage given as security for the payment of said promissory note.

To the petition of the plaintiff the Elworthy-Helwick Company filed an answer containing two defenses, which are substantially as follows: First, that the Holbergers failed to make the monthly payments called for in the note from the month of June, 1912, to the 11th day of September, 1914, except a payment of one hundred dollars in December, 1912, and a payment of thirty dollars in July, 1914; and that the plaintiff failed to present the note for payment as the other installments came due, and failed to notify said the Elworthy-Helwick Company, the endorser, of the dishonor of said installments as they fell due until about the 11th day of September, 1914, for which reason the said endo^er claimed it is not liable for any of the unpaid installments which fell due prior to said September 11, 1914, and alleging that if it is liable for anything it is only liable for the sum of the installments falling due after said date. This is termed a “partial defense.” The second defense is that the plaintiff failed to exercise his option to declare due the balance remaining unpaid on said note until long after two monthly installments were due and unpaid, and for an unreasonable period, during which time the premises described in the mortgage were vacant and were depreciating in value, thus impairing the security and thereby discharging the endorser.

The plaintiff filed a general demurrer to both defenses, which was sustained, and the defendant endorser not desiring to plead further judgment was rendered against it as such- endorser for the sum of $1,939.25, being the full amount of the unpaid balance on said note, including the unpaid installments falling due before September 11, 1914. Error is now prosecuted in this court to reverse said judgment on the ground that the court erred in sustaining said demurrer.

The chief contention, however, now made by the defendant endorser is as to the sufficiency of its first or partial defense. This defense presents the question as to when a note is dishonored which contains a provision for payment by installments, with a further condition that upon the failure to pay two or more installments the whole unpaid balance due on said note shall become due and payable at the option of the holder.

It seems to be conceded by both parties that when a note is dishonored by non-payment, notice thereof is necessary to hold the endorser. It is contended by the plaintiff that the note in question must be regarded as an entirety, and that as an instrument for the payment of money it did not become due and payable until the holder exercised his option to declare it due and made presentment and demand for payment. Upon the other hand, the defendant company urges that the obligation to pay the installments named in said note amounted in law to a separate and independent promise to pay each of said installments when the same became due by the terms of the instrument, 'and that upon non-payment of any installment when so due the note as to that particular installment was dishonored and notice of non-payment was necessary to hold it liable for that particular installment.

Attention is directed by both plaintiff and defendant to the provisions of Section 8194, G. C., being Section 89 of the Negotiable instrument act, which provides as follows:

“Except as herein otherwise provided, when a negotiable instrument has been dishonored by non-acceptance or non-payment, notice of dishonor must be given to the drawer and to each indorser. Any drawer or indorser to whom such notice is not given is discharged.”

This section appears to be the only provision that may be found in the negotiable instrument act reflecting in any way on the question at issue. It must be conceded that this section does not expressly cover a situation like tbe one under consideration. It does, however, by positive terms, require notice to all drawers or endorsers of the dishonor of the instrument by non-payment or non-acceptance in order to hold them liable thereon. The necessity of notice, therefore, obtains in all cases save those named in the exceptions, which exceptions have no application to the instant case. This being so, we are unable to conceive of any substantial reason why such notice of dishonor is not required as to each installment provided for in the instrument under consideration when such installment became due and was not paid. This instrument is the equivalent in law to a number of separate and independent instruments, each conditioned for the payment of twenty dollars at the times named. When, therefore, an installment became due and was not paid, the note to the extent of such installment became and was dishonored by nonpayment. No subsequent act of the holder in the exercise of his option could add in any degree whatever to the liability of the'maker in respect to the payment of that particular installment. It was due and payable, and an action would lie for its collection by the holder regardless and independent of the exercise by him of the option to declare the whole unpaid balance due. The instrument having definitely and unconditionally provided for the payment of twenty dollars each and every calendar month after its date,, the non-payment thereof in any month was a dishonor, of the instrument to the extent of such amount, and thereafter the instrument as to such installment was overdue and unpaid. The argument advanced that more than one hundred such payments are required to fully discharge this note, and therefore an equal number of notices would be required in case of non-payment, can not affect the principle of law involved. If notice was necessary to charge an endorser in the event of non-payment in a case in which the aggregate amount was fifty thousand dollars, payable in installments of ten thousand dollars each, it is necessary in the instant case.

We do not question the soundness of the argument that if notice is not required by the provisions of Section 8194, supra, we may not refer to the common law for authority. Under the common law, however, it seems to be well settled that notice is required as to each default in the payment of any installment. It is said in Daniel on Negotiable Instruments, Section 599:

“If a note be payable in installments the presentment should be made on each consecutive installment as it falls due, as if there were (as in fact it is legally considered) a separate note in itself.”

In 7 Cyc., page 96, it is said:

“If commercial paper is payable in installments, demand of each installment must be made to preserve the liability of the endorser.”

Many other authorities might be cited in support of the common law rule but, as before observed, they may not be considered here for it is now definitely settled that the negotiable instrument act in this state is exclusive as to all matters actually pro-, vided for therein. (Banking Co. v. Walker-Bin Co., 92 O. S., 406).

It would seem that the question presented here would be one of frequent occurrence, but we have not been cited to a case in which it appears to have been presented, nor have we been able by our own investigations to find any adjudication of the precise question here under consideration. In the case of Hopkins v. Merrill, 69 Conn., 626, an action was brought against the endorser of a promissory note, payable in monthly installments, to recover the amount due on three of such installments, due notice of the non-payment of which had been given to the endorser. The court ruled that a failure of the plaintiff to notify the endorser of the non-payment of other installments did not affect her right to recover the three installments which were the subjects of the suit. While the court does not in terms say so, it may be inferred from its discussion of the question that if suit had been brought upon installments past due, of the non-payment of which notice had not been given, judgment would have been for the endorser upon such installments. While in this ease the note did not contain an option enabling the holder to declare the whole sum due for the non-payment of an installment or installments, that difference can not affect the principle involved.

We conclude, therefore, that under favor of said Section 8194, supra, the defendant endorser in the instant case was entitled to notice of the non-payment of the installments falling due between the dates named in its answer, and that by reason, of the failure of the plaintiff to give such notice the defendant company endorser is discharged from any liability as to such installments.

We affirm the judgment of the lower court in its ruling on the demurrer to the second defense. (Section 8225, General Code.)

Judgment reversed and cause remanded for further proceedings according to law.

Walters, J., and Sayre, J., concur.


author: Allread, J.

text:
    CONSTRUCTION OF WILL WITH REFERENCE TO DISPOSITION OF LAPSED ESTATE.
    Court of Appeals for Pickaway County.
    George M. Leopold, Executor of the Last Will and Testament of John Shock, etc., v. Elizabeth Shock Weaver et al; on Appeal; and Elizabeth Shock Weaver et al v. George M. Leopold, as Executor of the Last Will and Testament of John Shock, etc.; on Error.
    Decided, December 6, 1918.

      Wills — Devise in Full of all Interest Does Nat Bar Participation in a Lapsed Estate.

    1. A devise in a will to a daughter “to -be her full share and interest in all my estate” does not bar such devisee from her share of property not disposed of by the will.
    2. This construction is not affected by the fact that the property in controversy had -been disposed of by a legacy which had lapsed by reason of the death of the legatee in the lifetime of the testator.

      D. W. & A. S. Iddings and George M. Leopold, for plaintiff.

      Hunger c§ Kennedy, for Flora Shock ITern.
   Allread, J.

This action was brought to obtain a construction of the will of John Shock. The material parts of the will are as follows:

“Item 1. I hereby devise and bequeath unto my beloved wife, Amanda Shock, all the real estate of which I may die seized to be hers for and during her natural life, and at her death, I desire that my executor hereinafter named shall proceed to sell my said real estate under the order of the Probate Court, legally obtained, and that he divide the proceeds of such sale equally among the following named persons to-wit: Elizabeth Shock Weaver, Frank Shock, Harvey Shock and Wilbert Shock — they being my children — all my children except Flora Shock Hern, and I desire that my said children above named and to whom I have given the proceeds of my said real estate as set forth above shall give to my said daughter, Flora Shock Plern, the sum of One Hundred Dollars, the same to be her full share and interest in all my estate.
“Item 2. I give and bequeath unto my said wife all my personal estate to be hers absolutely. And it is my further will that, should my personal estate and the income from said realty 'be not sufficient to keep, my said wife after my decease,in a comfortable manner, then that my said real estate may be sold in whole or in part as my said executor may deem advisable, and the proceeds from such sale be turned over to my said wife as she may need it for her comfortable support. ’ ’

After the execution of the will and before the death of the testator, the wife of the testator died and the legacy provided for her benefit in Item 2 of the will lapsed. The chief question arises as to the disposition of the personalty. It is contended on behalf of the executor and the heirs exclusive of Flora Shock Hern that the personalty as well as the realty was intended by the will to go to • the children exclusive of Flora Shock Iiern; and that Flora Shock Hern was to be disinherited as to all of the estate of the testator • except the $100 mentioned

Counsel representing each side of the controversy have presented unusually exhaustive and able briefs. We have also been furnished with-a copy of the opinions of the trial court which contains a careful and fair annalysis of the ease at bar and a full review of the authorities from our own as well as other jurisdictions.

We think that by an almost unbroken line of decisions beginning in the common law and recognized and followed in most of the states including our own it is established that property undisposed of by a testator descends to the heirs and distributees under the statute of descents and distribution, and the right of an heir to inherit property not disposed of by the will is not affected by a clause in the will attempting to disinherit him. This doctrine was established in the ease of Crane v. Doty, 1 O. S., 279, in which the following syllabi are announced:

“A testator can not, by any words of exclusion used in his will, disinherit one of his lawful heirs, in respect to property not disposed of by his will.
“Such words can not be used to.control the course of descent, so as to carry the property to his other heirs.
“They can not be used to raise an estate by implication in favor of his other heirs; there being no attempt in the will to dispose of the property or to create any interest therein.”

The opinion in this ease was written by Judge Ranney and contains a full review of the authorities in England and this country.

It was there contended as it is in the case at bar that the English doctrine is contrary to the reason and spirit of our own laws and rules of inheritance. This argument was overruled by Judge Ranney and the English doctrine approved., We think the doctrine of the Crane v. Doty case is too firmly established in this state to permit its being questioned. See Mathews v. Krisher, 59 O. S., 574.

It is argued that the Crane v. Doty ease does not apply to the case at bar, for the reason that in that case the property which the heirs took was not mentioned in the will while in the case at bar the testator made a disposition of all his property including the property -in controversy, and that upon the face of the will the intention, would appear to exclude the heir in disfavor from any share in the whole estate.

We think, however, that the same rule applies to the property which becomes undisposed of property by the lapsing of a legacy as in the case of property not mentioned in the will. The testator is presumed to anticipate that a legatee may die during his lifetime and that the legacy may lapse, and if the testator does not provide for that contingency in the will the property would be undisposed of and would descend according to the statute. Gorgas Estate, 166 Penn St., 269; Gallaher v. Crooks, 132 N. Y., 338; Tea v. Millan, 257 Ill., 624; 40 Cyc., 1943.

Counsel cite the case of Moon v. Stewart, 87 O. S., 549, as starting a new doctrine and a modification of Crane v. Doty. It is true that Crane v. Doty was distinguished, hut we find no criticism or modification of the doctrine of Crane v. Doty. The Moon v. Stewart case invoked a will the terms of which were crude, yet it was held to be dispositive and all parties took under the will. There was no undisposed of estate.

It is contended that the special devise to Flora Shock Hem was expressed by the will “to be her full share and interest in all my estate.” Particular emphasis is placed upon the word “all.” But it will be observed that there is no residuary or other devise to carry the personalty to the four children; it would therefore follow that the testator in the contingency of the death of his wife left the estate to descend as intestate property.

Had the wife survived the husband, the four favored children would have taken nothing from the personalty. The personalty would in that event have been taken absolutely by the wife, and the portion unconsumed by her would have been subject to her disposition or pass by the statute of descent and distribution to her heirs or next of kin.

The four children of the testator can not claim the personalty under a dispositive term of the will. They can only claim under the statutes of descent and distribution. In doing so they invoke relief under a statute which confers title equally upon all the children. The children can not invoke the statute of descent and distribution so far as it favors them and deny the title in favor of Flora Shock Hem conferred by the same statute. Judge Ranney in Crane v. Doty says:

“The property must be disposed of .upon the death of the owner. It may be disposed of by will; but if it is not, the law disposes of it to all the children' alike. All dominion of the owner over it ceases with his life. To allow a testator to leave his property undisposed of, and by will to control the course of descent and distribution, would be to allow him to repeal the law of the land. It must go by devise or descent; and it is impossible to conceive of an estate .created by a mixture of the two.”

The claim that there is a devise by implication in favor of the four children to the exclusion of the fifth in the case at bar is also met by the opinion of Judge Ranney in Crane v. Doty.

It is also contended the construction that the property involved in the lapsed legacy should go to all heirs should apply only to the personalty existing at the time of the execution of the will and not to real estate subsequently converted.

It appears that Mr. Leopold prepared the will of the testator on April 7th, 1911. He testifies that he drew the will and the three affidavits found in the record and that John Shock made oath to his affidavit before him — the affidavit of John Shock being dated April 7th. It appears that on April 8th John Shock and his wife 'executed a deed to John H. Shock for the 26 acre tract of land before A. W. Somers, J. P.,- ■and that John IT. Shock and wife executed notes and mortgage for unpaid purchase money. John H. Shock testifies that he agreed to pay $4,000 for the tract of land, that he paid $1,000 cash, gave notes and mortgage for $2,000) and gave an unsecured note for $1,000. The deed was filed with the recorder on April 18th at 10:35 a. m. We think the evidence establishes the inference that the deed must have been taken on April 8th.

The will although drawn on April 7th was not executed until April 18th. Whatever might have been the intention of the testator on -April 7th, the time the will was drawn, his ultimate intention must be ascertained when he signed and executed the will on April 18th. At that time his personalty had been augmented by the conversion of the 26 acre tract of land into money and notes. The testator must therefore have intended that his wife should have the entire personalty held by him on the date of the execution of the will. This would include the money and notes received ten days previously from the sale of the 26 acre tract of land.

No intention appears in the will that any portion of the property devised to the wife upon her death to pass under the terms of the will to any other person, and the personally therefore became undisposed property and passed under the law and not under the will.

Considerable stress is laid upon the use of the word “proceeds” as used in both Items 1 and 2 of the will.

In Item 1 the testator provides for the conversion by the executor after his death of the real estate of which he died seized. In Item 2, the word “proceeds” in like manner refers to that derived from a sale by the executor for the support of the wife. We find no reasonable basis for the claim that the term “proceeds” was intended to apply to real estate that he, himself, had converted into personalty prior to the time of the execution of the will.

It is also urged that Flora Shock Plern, by making a claim for the $100, waived her right to participate as heir in the undisposed of property. The doctrine of election applies only where there are inconsistent rights. In the case at bar under the will, as we construe it, it is not inconsistent for Flora Shock Hern to claim the $100| under the will and also to claim as heir in the undisposed of property. The doctrine of election does not, therefore, apply.

Counsel for plaintiff urged that the court should construe the will broadly and accomplish the purpose of the testator as reflected in his affidavit which he desired to be placed with the will.

There is no reference in the will to the affidavit and no dis-positive clause in the affidavits can therefore affeet the provisions of the will. We have considered the affidavits and the other 'evidence as circumstances throwing light upon the testator’s intention, but we can not consider dispositive terms or expressions de hors the will for the purpose of adding to or controlling terms of the will. It, therefore, follows that Flora Shock Hern is entitled to participate with the other children in the distribution of the personalty arising from the lapsing of the legacy to the testator’s wife.

We think the whole case is brought here by the'appeal and that the petition in error should be dismissed.

Decree accordingly.

Kunkle, J., and Ferneding, J., concur.


author: Washburn, J.

text:
    COMPETENCY OF TESTIMONY BY CHILDREN OF TENDER YEARS.
    Court of Appeals for Cuyahoga County.
    W. C. Crouch v. Irene Fishbein, by, etc.
    Decided, February, 1919.

      Evidence — Error in Admitting Testimony of a Young Child — Duty of the Court When Such Testimony is Profered — Abuse of Discretion.

    1. When a child of tender years is offered as a witness, and objection is made to the competency of such witness, it is the duty of the court to examine or cause the witness to be examined, and to determine as a matter-of law whether or not the witness ha's sufficient ability to receive impressions and relate truthfully facts and circumstances connected with the -transaction. The question of whether or not the witness is competent to testify is left to the sound discretion of the trial judge, but such discretion is a legal discretion and subject to review in error proceedings duly prosecuted.
    2. Where the incompetency of such a witness is apparent from a consideration of the testimony of the witness, the question of such competency may be raised at the close of the examination of the witness by a motion to exclude the testimony of the witness, although no objection was made at the time the witness1 was offered1.
    3. In this case the witness was five and one-half years- of age and she testified to a transaction which occurred when she was four and one-half years of age; it is apparent that she knew nothing of the nature of an oath and the record discloses that at the time of the trial she was incapable of relating truthfully impressions received a year previous. Held, the trial court -abused its discretion in overruling the motion to exclude her testimony.

      Hoyt, Dttstin, Kelley, McKeehan & Andrews, for plaintiff in error.

      Harry C. Gahn, contra.
   Washburn, J.

Error to tbe municipal court.

Defendant in error, when four and one-half years of age, was , injured in a collision with the automobile of plaintiff in error in one of the public streets in the city of Cleveland. She was crossing the street not at a crossing, and the' evidence of negligence on the part of plaintiff in error, if any such there was, was very slight indeed. She recovered a judgment, and the matter is before this court for review on error.

As has been said, plaintiff was a little girl, four and one-half years old at the time of the accident, and the trial was had a year later. At the trial she was offered as a witness. At the close of her testimony a motion was made to exclude her testimony on the ground that she was not old enough to be a competent witness. That motion was overruled and exception taken.

There was no examination of the witness at any time to ascertain her ability to receive impressions, or her ability to relate facts and circumstances truthfully, and nothing was said -in the charge of the court as to the duty of the jury in weighing and considering the testimonjr of a small child, andjihat, too, when the only other witness to the transaction on behalf of the plaintiff was a child five and one-half years old at the time of the accident and six and one-half years old at the time of the trial.

' It is true that no request for such charge was made, and it is time also that when the youngest child was offered as a witness no objection was made to her testimony and no request was made for an examination to ascertain her qualifications. There was, however, as I have said, a motion to exclude her testimony at its conclusion, which was overruled and to which exception was noted.

At two places in her testimony, she said she did not know how old she was, and in another place she said her age was five and one-half years. At one place in her testimony she said that she was hit by the automobile, and in another place she says she did not know what hit her. She says that the accident occurred in in the summer time, and that there was no snow on the ground, when it is admitted that it occurred in the winter time when there was a heavy fall of snow. She testified that she attended a kindergarten school, but she could not tell how long she had been going to a kindergarten, or what month she started, or whether it was in the fall.

Most of the questions put to her were leading questions which could be answered by yes or no, and at no place in the record does it appear that she was ashed to relate what occurred so that anyone hearing the testimony would have a better opportunity to form a judgment as to her ability to receive impressions and relate facts and circumstances truthfully.

The statute provides that:

“All persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.”

It is well settled that when a child under ten years of age is offered as a witness, and objection is made to the competency of such witness, it is the duty of the court to examine the witness and determine as a matter of law whether or not the witness has sufficient ability to receive impressions and relate facts and circumstances connected with the transaction.truthfully, and that the question of whether or not the witness is competent to testify is largely in the discretion of the trial judge.

While there are no reported cases on the subject in the Supreme Court of Ohio, there are such cases in other states, and no doubt the question has arisen many times in the lower courts of Ohio. There are reported eases where a child as young as six years of age has been held to be competent to testify. In the case at bar the child was attempting to relate impressions which were received when she was four and one-half years of age, and from an examination of the record we think that it appears that the plaintiff was incapable at that time of receiving just impressions of the facts and transactions respecting which she was examined, and at the time of the trial she was ineapabfe of relating truthfully impressions received a year previous, and for that reason she was not a competent witness. We are not unmindful of the fact that no objection was made as to her competency at the time she was offered, and that no request was made of the court to charge the jury on the subject of the-weight to be given to the testimony of witnesses of such tender years, but this was a trial conducted by a court charged with the duty of seeing that justice was administered, and when a kindergarten witness of such tender years was offered, who manifestly knew nothing about the nature of an oath, it was the duty of the court to at least ascertain whether she new right from wrong, and whether she knew that it was wrong to tell an untruth, and what was likely to happen if an untruth was told, and then to have her relate what took place in a narrative way in the first instance, and not' have her testimony given almost entirely in answer to leading questions.

Considering the very tender years of this child, this was a duty which the court owed to the administration of justice, but as no objection was made by the plaintiff in error, he can not now complain because the court did not discharge that manifest duty. However, at the close of her testimony after her incompetency had been made apparent by the answers she gave to the questions propounded to her, the court should have granted the motion of the plaintiff in error to exclude her testimony on the ground that she was not a competent witness, and the plaintiff in error by his exception to that ruling placed himself in a position to take advantage of the error committed by the court.

We recognize fully that the decision of such matters should be left almost exclusively to the sound discretion of the trial judge, but in this case the witness, being so very young, and her incompeteney so apparent, and her testimony so important (there being but one other witness to the transaction in her behalf, and she was only a year older), we feel that the court abused its discretion in permitting such child to testify, and for that reason the case ought to be, and is, reversed. '

Grant, J., and Dunlap, J., concur.


author: Shohl, P. J.

text:
    PRIORITY OF A MORTGAGE GIVEN FOR FUTURE ADVANCES.
    Court of Appeals for Hamilton County.
    Oscar W. Kuhn, Trustee, et al, v. The Southern Ohio Loan & Trust Company.
    Decided, March 24, 1919.

      Mortgage — Proceeds of Loan to be Paid in the Form of Future Advances — Priority of Lien not Destroyed — By the Filing of a 8ub-sequent Mortgage before the Advances have been Paid.

    Where a mortgage embodied the agreement that the funds which it secures are to be paid in the form of future advances, as provided in Section 8321-1, General Code, the priority of the lien thus secured is not defeated by -the recording of another mortgage of subsequent date but -before payment of the promised advances.

      Oscar W. Kuhn for plaintiff in error.

      George D. Harper and James B. Swing for defendant in error.
   Shohl, P. J.

The Southern Ohio Loan & Trust Company brought an action in the court of common pleas to foreclose a mortgage for $3,000 given by Luella C. Bagley and her husband. Oscar W. Kuhn, trustee, filed an -answer and cross-petition alleging that he hejd a mortgage for $2,000, which was prior in right to the mortgage of the loan and trust company and asked to be paid first out of the proceeds of any sale. The court adjudged the mortgage of the loan and trust company to be the first and best lien, and stated its findings of fact separate from its conclusions of law.

Plaintiff in error contends that the judgment is not supported by the findings of fact. The court found that on May 2,1916, the Bagleys executed and delivered to the plaintiff a note for $3,000¡ with interest and a mortgage to secure the sarro. The mortgage was duly recorded on May 6. It recited that it was given:

. “to improve the premises described herein and pay off prior incumbrances thereon, and the mortgagor hereby consents and agrees with the mortgagee that the funds may be paid out by the mortgagee as provided in Section 8321-1 General Code.”

That section among other things, provides that the mortgagee shall not be required to pay out any of the mortgage fund for fifteen days after filing said mortgage. It also provides for the manner in which payments shall be made which are considered the same as if paid to the mortgagor. It contemplates turning over the money to the mortgagor, or persons for him, at the time subsequent to the recording of the instrument.

The consideration for the note and mortgage was paid by the Trust Company to the Bagleys, $1,200 on May 8th, 1916, and the balance, $1,800 on June 23rd, 1916. On the 8th day of May, subsequent to the payment of the $1,200 and approximately six weeks prior to the later advances, the Bagleys gave Kuhn, trustee, their note and mortgage for $2,000 which was recorded in the afternoon of that day.

Bagley was a contracting builder and erected a dwelling house on the property, for and under agreement with his wife who was the owner. The dwelling house was erected on the property and the money loaned by the loan and trust company was paid over to the Bagleys for the erection of the dwelling house.( Kuhn, trustee, had knowledge of the erection of the dwelling house as aforesaid.

It will be seen, therefore, that the ease is one in which a first mortgagor, who is obligated to make a further advance of $1,800 in addition to $1,200 already paid, makes the later advance after a second mortgage has been recorded.

The law permits and enforces mortgages to secure future advances. 1 Jones on Mortgages, Section 365, note 166. It is common practice in Ohio and elsewhere to arrange for mortgage loans, the proceeds of which are to be used for the construction, of improvements on land, on terms whereby the lender agrees to advance specified amounts at certain stages of the progress of the work. If a later mortgagee by taking and recording his mortgage on an incompleted building acquires a better right than that of the first mortgagee as to the later advances, the first mortgagee is in a predicament. If he carries out his agreement and lends the money, he has lost his right to he secured on it. If he breaks his agreement and no more money is supplied to complete the structure, his security as to the advances already made is impaired.

One of the leading cases on the general subject of priority between consecutive mortgages is the decision of Spader v. Lawler, 17 Ohio 371. In that case a mortgage was made to secure future advances. A later mortgage was recorded prior to the making of the future advances. It was held that the second mortgage prevails. as against the advances made on the prior mortgage subsequent to the recording of the second mortgage. The ease has been followed in Ohio and is the settled law of the state. See Choteau v. Thompson, 2 O. S., 114; West v. Klotz, 37 O. S., 420. If the rule is of universal application it would compel the abandonment of the practice of financial institutions of advancing the amounts loaned, in instalments. Either they would have to give the borrower the full amount of his loan at once and trust him to improve the land, which in its unimproved state is not worth the amount of the mortgage, or they must risk the possibility of later mortgages, with the unhappy result above referred to. In Spader v. Lawler, the mortgage was to secure the loan — 1 ‘ and any other sum, or sums of money which the said Bonsai may be owing to the said Lawler,” but Lawler was under no obligation to make any further advances.

While the question has never arisen in Ohio, there is a well established exception to the general rule. Where the mortgagee is bound by his contract with the mortgagor to make advances in the future, he will take precedence over any subsequent incumbrance given by the mortgagor, even if he knows of it at the time the advance is made.

The doctrine is stated in Boswell v. Goodwin et al. 31 Conn., 74:—

“Where a mortgage is given to secure future advances or liabilities, and the mortgagee has definitely agreed to make such advances or to assume such liabilities, the mortgage when recorded is a valid and fixed security, not affected by a subsequent mortgage of the same property, though the advances may be vanees madc-a-f-t-cr notice of ■ auch" later-mortgage.’’ made or the liabilities assumed after the record of such later mortgage.
“Where, however, it is optional with the mortgagee to make the advances or not, and he has actual notice of a later mortgage upon the same property for an existing debt or liability, such later mortgage will take precedent of the prior one as to all advances made upon notice of such later mortgage. ’ ’

This rule is also supported by the following:—Tompkins v. Little Rock, etc. R. Co., 15 Fed., 6; Board of Commissioners v. Wills & Sons, 236 Fed., 362, 374; Crane v. Deming, 7 Conn., 387, 398; Rowan v. Sharps Rifle Mfg. Co., 29 Conn., 282; Schimberg v. Waite, 92 Ill. App., 130; Brinkmeyer v. Browneller, 55 Ind., 487; Schmidt v. Zahrndt, 148 Ind., 447; Nelson v. Iowa Eastern R. Co., 8 Am. R. Rep., 88; Robinson v. Consol. Real Est. Co., 55 Md., 110; Platt v. Griffith, 27 N. J., Eq., 207; Hyman v. Hauff, 138 N. Y., 48; Blackmar v. Sharp. 23 R. I., 412, 419; Alexandria Sav. Inst. v. Thomas, 29 Gratt. (Va.), 483, 489; 1 Jones on Mortgages, 375; 11 Amer. Law. Reg. n. s., 273.

By the arrangement between the Southern Ohio Loan & Trust Company and the Bagleys, the Loan & Trust Company was bound to make advances in the future. They had a right, therefore, to carry out their agreement regardless of the later recorded mortgage. The judgment of the court below awarding priority to the Southern Ohio Loan & Trust Company for the full amount of the $3,000 mortgage was correct and should be affirmed.

Hamilton and Cushing, JJ., concur.


text:
    REVERSAL FOR LACK OF JURISDICTION.
    Court of Appeals for Cuyahoga County.
    D. C. Meck v. Henrietta D. Grauel.
    Decided, February 7, 1919.

      Jurisdiction — Objection to, First Made in the Court of Review — Reversal Granted and Cause Remanded.

    Under the rule that objection to the jurisdiction of the court in which the action was instituted may be made at any time before judgment is actually entered, an action brought in the municipal court of Cleveland on two causes of action — for $2,000 based on tort and $500 on contract — will be reversed for lack of jurisdiction as to the first cause of action and an order made remanding the case for further proceedings.

      H. Hughes Johnson, Esq., and H. W. Woods, for plaintiff in error.

      John A. Cline Esq., contra.
   Grant, J.

Error to the Municipal Court of Cleveland.

In the view we take of this case we need discuss only one question — that of jurisdiction in the court below.

The plaintiff there — defendant in this proceeding — declared on two causes of action, one in tort, in which she laid her damages at two thousand dollars, and the other on contract, in which the amount claimed was five hundred dollars.

The law limiting, or bounding, the jurisdietion of that court, as to amounts — Section 1579-6, par, 2 — General Code — is as follows :

“In all actions and proceedings at law for the recovery of money or personal property of which the courts of common pleas of the County of Cuyahoga, have, or may be given, jurisdiction, when the amount claimed by any party, or the appraised value of the personal property sought to be recovered, does not exceed one thousand dollars, and in such actions judgment may be rendered for over one thousand dollars when the excess over one thousand dollars shall consist of interest or damages, or costs'accrued after the commencement of the action. ’ ’

It will be observed that the limitation thus provided, has to do, not with the amount recovered, but with “the amount claimed.”

Having regard to the nature of the action, we must find that the jurisdiction of the municipal court is clearly denied by the statute; we see no escape from that conclusion.

Perhaps this is not disputed. But it is said that the point has been waived, or that the objection comes too late to defeat the action now — not having been asserted or mentioned up to the argument at the bar.

The suggestion is not allowable. The jurisdiction denied by the statute quoted is of the subject of the action — not of the parties to it.

The law controlling the question and covering all the points relied on to takp off the effect of the statute, is stated in Volume 7, Ruling Case Law, pp. 1042-3 as follows:

“Where judicial tribunals have no jurisdiction of the subject-matter on which they, assume to act, their proceedings are absolutely void in the strictest sense of the term; and a court which is competent to decide on its own jurisdiction in a given case may determine that question at any time in the proceedings of the cause; whenever that fact is made to appear to its satisfaction, either before or after judgment. Accordingly, an objection for want of jurisdiction, if it exists, may be raised by answer, or at any subsequent stage of the proceedings; and in fact it may be raised for the first -time on appeal. A court will recognize want of jurisdiction over the subject-matter, even if no objection is made, and therefore whenever a want of jurisdiction is suggested, by the court’s examination of the case or otherwise, it is the duty of the court to consider it, for if the court is without jurisdiction it is powerless to act in the case. A plaintiff against whom judgment went in the lower court may on appeal raise the question of the jurisdiction of the trial court and have the judgment reversed if the court did not have jurisdiction of the subject-matter, though the assumption of jurisdiction was to his advantage. As heretofore shown, the jurisdiction of a court over the subject-matter of a cause of action must be conferred by law, and it can not under any circumstances be conferred on a court, as such, by the consent of the parties. It naturally .follows that if jurisdiction can not be conferred by consent, the want thereof can not be waived by any act of the parties.”

This statement of the law applicable to, and decisive of this ease, fits it like a wedding garment. It is backed by an ample line of authorities.

Indeed, to decide the main question of contention here, one need not go outside of this state or this court, to reach a like conclusion.

The case of the State, ex rel Lander, v. Prestien, was in mandamus. It was begun in the common pleas court of this county, from whose judgment the relator took an appeal to this court. It was fully heard by us, argued and submitted for final determination. While it was being thus held under advisement, the respondent moved to dismiss the appeal for want of jurisdiction under the then new constitution — the writ of mandamus not being of chancery cognizance.

The motion was granted. A rehearing was allowed and a bill of exceptions was taken, showing the facts of trial, argument and final submission, without objection or suggestion on the part of the respondent.

Again the motion to dismiss was sustained and judgment went against the relator for costs.

The Supreme Court reviewed the case and held that a motion to the jurisdiction, made at any time before judgment was actually entered, was not too late, and affirmed us. The case is reported in 93 O. S., 423.

It decides this case. The judgment is reverséd — the trial court having no jurisdiction of the first cause of action.

The cause is remanded to the court from whence it came, for such further proceedings as may be in accordance with law.

Dunlap, J., and Washburn, J., concur.


author: Sayre, J.

text:
    TESTIMONY ESTABLISHING A LOST WILL.
    Court of Appeals for Scioto County.
    Henry Egbert v. Russell Egbert et al.
    Decided, December 11, 1918.

      Wills■ — Instrument Lost which had been Deposited with the Probate Court — Admission of a Copy to Probate — Testimony Establishing the Contents — Presumption as to a Will Proven to have once Existed.

    1. The contents of a lost or spoilated will may be established by the testimony of one witness.
    2. When no evidence was offered on the trial to show when the will was lost or destroyed, whether before or after the death of the testator, the order of probate admitting the will to record is sufficient evidence of the existence of the will after such death to justify a verdict sustaining the will.
    3. The presumption that, when a will once proven to exist and to have been in the custody of the testator can not be found after his death, it was destroyed by the testator animo revocandi, does not arise when such will was deposited in the office of the probate court and was never called for thereafter by the testator and could not be found a few days after his death or at any subsequent time.-

      Bannon & Bcmnon and Edgar Q. Millar, for plaintiff in error.

      Milner, Miller & Searl, for defendants in error.
   Sayre, J.

Error to tbe Court of Appeals for Scioto county.

April 1, 1913, Daniel Egbert, Sr., at that time temporarily residing in Columbus, Ohio, executed a paper writing porporting to be his last will and testament. July 28, 1913, the instrument was, according to the statute, deposited in the probate court of- Scioto county, Ohio. September 4, 1917, Daniel Egbert, Sr., died. A few days after his death, perhaps the fourth, search was made for such paper writing and the same could not- and never has been found. Upon application the probate court of Scioto county established the contents and admitted to probate and record the will of Daniel Egbert, Sr., on the theory that he had made and executed a last will and testament which had been lost or destroyed.

January 14, 1918, an action was commenced by Henry Egbert, one of his heirs, in the court of common pleas, in which it was averred that the contents of the alleged last will established and admitted to p/obate is not the last will of Daniel Egbert, Sr., deceased, and that he died leaving no will.

In the action to contest the will the proponents thereof offered a copy of the last will and testaihent as certified by the probate court, the order of probate, and rested.

The plaintiff then offered evidence showing that the will was never seen by anyone connected with the office of the probate judge after it was deposited there in 1913, and the deposition of Fred Geischel, who testified that he had no recollection of ever having signed the purported will of Daniel Egbert, S'r., or having been present at the time it is claimed the same was signed by Daniel Egbert, Sr.

Harford A. Toland, a witness for the proponents, testified that he drew the alleged will, saw it executed by the testator, and that he signed as a witness and that he saw Fred Geischel also sign the same as a witness; that the testator signed in the presence of the witness- and Geischel, and that the testator acknowledged the signed instrument as his will in the presence of both witnesses. Mrs. Louise Johnson, a daughter of the testator and at whose home the will was drawn, testified that Geisehel was called and came into her house to be a witness to the will, and that her father’s mind at the date of the execution of the will “was just as clear as a bell.”

Evidence was also introduced of declarations of the testator as to the contents of the will, and Toland produced his office copy of the will, which is the form of the will probated and recorded.

Further evidence was admitted that testator was never at the court house in Portsmouth after the will was deposited there in 1913, and that the testator declared on more than one occasion that his will was at that place. Other declarations of the testator were admitted to the effect that his intention in the distribution of his property corresponded to the disposition of the same as appears in the paper writing admitted to probate and recorded as his last will and testament.

The verdict in the court of common pleas was in favor of the contestees.

.We are convinced from the record that the evidence adduced on the trial in the court of common pleas to establish the lost or destroyed paper writing signed by Daniel Egbert, Sr., as his last will and testament, was of the character required by Cole v. McClure, 88 O. S., 1. The evidence of its execution and contents was “clear, strong, positive, free from bias, and convincing beyond a reasonable doubt.” While the witness Geischel does not remember the transaction, Mrs. Louise Johnson testified he was present at the time of the execution of the will, and the testimony of Mr. Toland is convincing that the will was signed at the end thereof by the testator, and that it was attested and subscribed iñ his presence by Toland and Geischel, and that they saw the testator subscribe and heard him acknowledge the same as his last will and testament.

While there must be at least two witnesses to a will, the contents of a lost or spoliated will may be proved by the testimony of a single witness. Cyc., Vol. 40, p. 1299.

It is contended that the court omitted to state two vital issues in the charge to the jury: one, that before the will could be sustained the jury must find that the contents of the copy offered for probate is practically identical with the original; and the other, that the testator acknowledged the will to be his last will. But as the court’s attention was not called to the omission or a request made to give such charge, we can not reverse the • case for such omission. State v. McCoy, 88 O. S., 447.

The plaintiff in error claims that the judgment must be reversed because there is no proof that the will was in existence subsequent to the death of the decedent, on the authority of Cole v. McClure, 88 O. S., 1. But it will be observed in the last named case that there was evidence upon which the Supreme Court relied that the will admitted to probate and record was destroyed by decedent before he became insane. In our ease it is undisputed that the will of Daniel Egbert, Sr., was deposited in the office of the probate court four years before his death; that it was never returned to him or anyone for him; that he referred to his will as being on deposit in the court house at Portsmouth, and that a few days subsequent to his death it could not be found; but there is no evidence as to when it was lost, spoliated or destroyed, whether before or after the death of the testator.

In suits to contest lost or spoliated wills the law of procedure is the same as in the contest of other wills (Section 10548). ‘£ On the trial of such issue the order of probate shall be prima facie evidence of the due attestation, execution and validity of the will or codicil.” (Section 12083, Behrens v. Behrens, 47 O. S., 323.)

Whether or not the will was properly admitted to probate and record can not be inquired into in a suit to contest a will. (Converse v. Starr, 23 O. S., 491; Stacy v. Cunningham, 69 O. S., 176.)

In view of these propositions, there being no evidence in the ease outside the order of probate as to when the will was lost, spoliated or destroyed, such order of probate is sufficient evidence of the validity of the will, and hence of its existence subsequent to the death of Daniel Egbert, Sr. When there is not such other evidence the order of probate is equivalent to evidence that is “certain, satisfactory and conclusive” that the will was in existence subsequent to the death of the decedent.

The court charged the jury as follows:

“It is the usual presumption that a will which had remained in the testator’s custody, or to which he had access after its execution, and which can not be found after his decease, has been destroyed by the testator himself, with-the intention of revoking it; but this presumption is entirely overcome and rebutted when it appears that such will was deposited by the testator, or by some one for him, according to law, with the probate judge, and that the testator did not thereafter have it in his possession or have access to it.”

This instruction is not erroneous. The presumption referred to arises from the fact that ordinarily and usually when wills known to have been in the custody of testators can not be- found after their decease, they were destroyed by such decedents with the intention of revoking the same. Destruction of wills in the possession of decedents, animo revocandi, usually attends the'fact that the same can not be found after their decease. Bur when a will' is deposited with a public officer in accordance with a statute of the state and is never seen afterwards by testator or anyone acting for him, no presumption could arise that lie destroyed it.

The judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Middleton and Walters, JJ., concur.