author: Cushing, J.

text:
    WOMAN STRUCK BY AUTOMOBILE WHEN NOT ON DESIGNATED CROSSING OF STREET.
    Court of Appeals for Hamilton County.
    Luebbering, Admr., v. Whitaker.

    Decided, April 7, 1919.

      Negligence — In Failure by Pedestrian to Use Designated Street Crossing — Not Available to Defendant Automobile Owner Who Has Failed to Plead or Prove Ordinance — Photograph of Automobile Causing the Injury Admissible, When — Notice to Adverse Party of the Talcing of Depositions.

    1. In an action to recover damages for wrongful death resulting from the operation of an automobile in violation of a municipal ordinance, it is error to charge the jury that a verdict should be returned for defendant i-f the evidence showed that plaintiff violated a section of the ordinance requiring pedestrians to cross streets or highways at right angles and at regularly designated crossings, where such section of the ordinance was not pleaded or offered in evidence.
    2. A photograph correctly representing the condition of an automobile after an accident is admissible in evidence.
    3. The duty imposed upon a defendant, under the doctrine of last chance arises only after the discovery of plaintiff’s peril; but the doctrine does not apply where the negligent acts of the plaintiff are concurrent with the negligent acts of the defendant.
    4. A notice to the adverse party that depositions of witnesses would be taken “at Camp Hancock, Georgia, in the County of Richmond, in the State of Georgia,” is not a sufficient compliance with the provisions of Section 11534, General Code, which requires that the notice shall state “the place where” depositions are to be taken.

      W. H. Rucker and Thomas Usher, for plaintiff in error.

      DeCamp & Sutphin and Leo J. Brumleve, Jr., for defendant in error.

      Judgment affirmed by the Supreme Court, June 8, 1920.

   Cushing, J.

Heard on error.

The second amended petition, on which this case was tried, is indefinite and uncertain. Its allegations do not comply with the provision of Section 11305, General Code, requiring “a statement of facts constituting a cause of action in ordinary and concise language.”

It was charged thait plaintiff’s decedent, Mrs. Elizabeth Doeeker, was crossing Linn street, some distance south of Court street; that defendant, Abner L. Whitaker, was negligent in driving his automobile past a street car that had stopped on the north side of Court street to receive and discharge passengers; that in so doing he violated ordinances of the city of Cincinnati; that he failed to have his automobile under control, to sound a warning, to keep a proper lookout for pedestrians; and that at the point in question he drove said automobile at an unlawful rate of speed.

From the record it is undisputed that at the time Whitaker proceeded from the north side of Court street no street ear was stopped as claimed; that there was nothing to obstruct either Mrs. Doeeker’s or Mr. Whitaker’s view of each other, and that the accident happened south of the south line of Court street.

The question is, Did the accident happen on account of the automobile running into Mrs. Doeeker, or by her walking into the side of it?

There are many loose, irrelevant statements in the pleadings, evidence and briefs, so that a number of the assignments of error need not be considered.

The motion to reform the petition by striking out, and making other parts definite and certain, was well taken, and was properly granted.

It is claimed there was error in admitting in evidence the following sections of ordinances:

Section 680-11 (4). “Pedestrians shall not cross streets or highways except at the regularly designated crossings, and then at right .angles -only.”

Section 680-12. (1). “No owner or operator of any vehicle shall drive, operate or move or permit the same to be driven, operated or moved on any street, .alley or park driveway of the city of Cincinnati at a rate of speed in excess of eight (8) miles per hour within the territory bounded on the north by the center line of Eighth Street, on the east by the east line of Sycamore Street, on the south by the center line of Fourth Street, and on the west -by the west line of Elm Street; said territory being defined as the business and closely built up portion of the city; nor in excess of fifteen (15) miles per hour on any street, alley or park driveway in the city outside of said territory.”

Counsel cite McIlhenney v. Philadelphia, 214 Pa. St., 44, and Baker v. Close et al., 204 N. Y., 92. Neither of these cases is' in point. It was not pointed out in either that any statute or ordinance was considered by the court.

It is settled in Ohio that the regulation of traffic on highways is within the scope of the powers of the legislative branch of the state government. In the absence of any claim or authority that such legislation is unconstitutional or void, it will be held valid. In the case of Schell v. DuBois, Admr., 94 Ohio St., 93, the Supreme Court of Ohio settled the question of legislative authority and also the effect of a violation of such enactment.

Section 680-11 (4), above quoted, was' offered in evidence, and special charge No. 6, requested by defendant, was given. That part of the ordinance requiring the director of public service to designate street crossings and extensions of sidewalks was not pleaded or offered in evidence; nor was there any evidence as to where the crossing, designated or otherwise, was at or near the point in question. On this state of the record the giving of special charge No. 6 was error. That charge is as follows:

“The court charges that if you find that the plaintiff’s decedent attempted to cross Linn Street at any point other than a regularly designated crossing, or if you find that in attempting to cross Linn Street, she did not cross at right angles with Linn Street, in violation of Section 680-11, part 4, of the ordinance of the city of Cincinnati, she was guilty of negligence, and. if you further find that such negligence was the proximate cause of the accident, or that it combined with the negligence of the defendant, if you should find that the defendant was negligent, to produce the proximate cause of the accident, then your verdict must be for the defendant.”

It is also contended that the admission of Exhibits B and C. photographs offered in evidence, constituted error prejudicial to plaintiff. Benj. L. Hawkins testified that he had washed the automobile a short time before the accident, that he knew the condition of the same, and that the marks in question were not on it prior to the accident; that he examined it shortly after the accident, and the marks were then just as shown in the photograph. The rule of evidence is that if the photograph at the time correctly represents the condition of the article, Avhich can not be presented in court, it is admissible in evidence. The C., H. & D. Ry. Co. v. De Onzo, 87 Ohio St., 109.

.Plaintiff in eiror complains of the refusal of the court to give special charge No. 2, Avhich is as follows:

“If you believe by a preponderance of the evidence that the decedent, Elizabeth Doeeker, as a result of her own negligence, put herself in a place of danger in the street, nevertheless if the. defendant by exercising that degree of care which an ordinarily careful and prudent person would have exercised under the same or similar circumstances, could have dicovered the plaintiff’s danger and by the use of ordinary care aAmided injuring her, and failed to use that degree of care and she was thereby injured, the defendant is liable.”

The record sIioavs that the conduct of the plaintiff, if it constituted negligence, was concurrent with-the acts of negligence claimed by plaintiff to have been committed by the defendant. Under such a state of facts the doctrine of last chance has no application. Besides it was not pleaded. See Taylor v. Ohio Electric Ry. Co. ,29 O. C. A., 401 (Motion to certify denied February 11, 1199, 16 O. L. R. ,507); Drown v. Northern Ohio Traction Co., 76 Ohio St., 234; Bejac v. The C., P. & T. Ry. Co., 23 C. C. (N.S.), 475, affirmed, 90 Ohio St., 409; Galati v. The Erie Railroad, 23 C. C. (N.S.), 63; Henry v. The C., L. & A. Elec St. Rd. Co., 23 C. C. (N.S.), 40; Harris v. The Mansfield Railway, Light & Power Co., 21 C. C. (N.S.), 209, 4 Ohio App., 108, and Goodman v. The Cleveland Electric Ry. Co., 16 C. C., (N. S.) 208.

Moreover, we are of opinion that the charge presented does not correctly state the law. It imposes on the defendant a liability for injuring a plaintiff who has been guilty of negligence, because of defendant’s failure to use care thereafter to avoid the accident, in the absence of actual knowledge of.the danger in the case of West, Recr., v. Gillette, Admr., 95 Ohio St., 305. of plaintiff. The precise point was not decided by the court The majority opinion on that point is not inconsistent with the opinion of Jones. J., who dissented, as the majority deemed it unnecessary to pass upon this question since the record showed that the defendant had actual knowledge. The dictum on page 316 states that the rule set forth in Thompson on Negligence “is well founded in reason and authority.” Cf. page 329. we can add nothing to what was said by Jones, J., in that case. The duty imposed upon a defendant under the doctrine of “last clear chance” becomes existent after the discovery of plaintiff’s peril. The court properly refused to give special charge

The trial court overruled a motion to strike the deposition of Charles R. Heeter from the files, and permitted it to be read in evidence over the objection of plaintiff. Notice of the taking of depositions was served on plaintiff’s counsel advising that defendant would take the depositions of sundry witnesses “at Camp Hancock, Georgia, in the County of Richmond, in the State of Georgia.” Section 11534, General Code, requires written notice of the intention to take deposition. Among other things, it must state “the time when and the place where it will be taken.” What did the legislature mean by the words “the place where”? Evidently it was a definite location of such description that opposing counsel'could locate it, and, if he desired. be present to cross-examination the witness.

In Lucas v. Richardson, 68 Cal., 618, it was held that a notice to take depositions before D. G. Craig, a notary public in San Francisco, Cal., was not sufficient as to place.

In Harris v. Hill & Relf, 7 Ark. (2 Eng.), 452, it was held:

“A notice to take them (depositions) ‘at the court-house in the city of New Orleans, in the State of Louisiana, ’ is not sufficiently definite as to the place — there being several courts held under the same roof, but in different apartments, above and below stairs.
“A party is entitled to such a description of the place as to distinguish it from all others.”

The same was held in Knode v. Williamson, 17 Wall., 587, 589, where the city of Guilford, state of Maine, was designated as the place. The court say:

“A party who attempts to use the deposition of an absent witness must show that he has given his adversary an opportunity to cross-examine by a notice that is definite and certain, unless the failure to give such notice has been waived. Such was not the notice given in this case, and the deposition was, therefore, erroneously received in evidence.”

Crozier v. Gano, 4 Ely., 257; Rodman v. Kelley, 13 Ind., 377, and Kinkead’s Ohio Civil Trial and Procedure, Section 447, page 366, are cited to the same effect.

The notice was insufficient as to the place and the deposition should not have been received in evidence. It contained important testimony on the most substantial points in the case. Its admission was prejudicial error.

The evidence is clear that the accident happened at a point south of the intersection of Court and Linn streets; that it happened by the deceased walking into the side of the automobile; that aside from the errors stated the questions of fact were submitted to the jury under proper instructions.

The judgment will be reversed and the cause remanded for a new trial.

Shoiil, P. J., and Hamilton, J., concur.


source: Caselaw Access Project

author: Chittenden, J. Kinkade, J.

license: Public Domain

text:
    SPECIFIC PERFORMANCE REFUSED BUT DAMAGES RECOVERABLE.
    Court of Appeals for Lucas County.
    Caple v. Crane et al.
    Decided, December 24, 1917.

      Breach of Contract to Sell Real Estate — Caused by Wives of the Owners Refusing to Sign — Action for Specific Performance Does not Lie — But Damages May be Recovered for Failure to Perform.

    1. Where the plaintiff enters into a written contract for the purchase of real estate with the owners thereof and knows that such owners are married, hut the wives of such owners do not sign the contract although it was. contemplated by the parties that the title should be conveyed free from the dower rights of the wives, and where the wives without fraud or collusion with their husbands' refuse to execute deeds conveying such real estate, a decree of specific performance will not be granted against the owners, with a provision for an abatement from the purchase price of the value of the inchoate right of dower of the wives, but the plaintiff will ■be remitted to his claim for damages for breach of the contract.
    2. Where an action is brought in good faith for specific performance and the court refuses to grant that relief, damages may be awarded to the plaintiff in the same action for a failure on the part of the defendant to perform the terms of the contract.

      Tracy, Chapman & Welles and L. W. Morris, for plaintiff.

      Geer & Lane, for defendants.
   Chittenden, J.

Heard on appeal.

This is an action brought by the plaintiff for the specific performance of a contract for the sale of real estate, and to reform such contract if the court finds that it does not, as written, obligate the owners of the property to convey the entire title, including the dower interests of the wives of the two owners, as claimed by the plaintiff. The prayer of the petition also asks, if it is found to be impossible for the defendants or either of them to comply with the terms of said contract by delivering full title to • said property, including the dower interests of their respective wives, that the court will ascertain the extent o£ plaintiff’s damage by reason of such breach of contract by the defendants, or either of the and in lieu of specific performance of said contract award plaintiff judgment against the defendants for his damages. There is also a prayer for all other and further relief to which the plaintiff may be entitled.

The contract sought to be enforced, as originally drawn, reads as follows;

"We and each of us hereby give to Alva B. Caple the sole and exclusive right to purchase the land known as 104.52 acres more or less, reserving entrance to 20 acres on west of said tract to be not more than 100 feet wide along west side of 104 acres, all in Perrysburg Township, Wood Co., Ohio, lying west of land of Alva B. Caple and south of Whitmore tract c& Crane 40 acres with barns.
“Land shall be surveyed by Joe Hof man and price shall be $175.00 per acre cash, according to survey.
"Purchaser shall pay June, 1917, taxes and assessments and subsequent payments. Each party shall pay F. G-. Crane as agent one per cent, of purchase price.
"Sellers reserve right to cut off all timber if removed within 30 days.
"Deal to be closed and deed and abstract offered within 30 days if option accepted. Option offered for three days, unless accepted by February 3rd shall be void. Abstract shall not be continued nor sellers pay anything extra on costs of suit to quiet title.”

The option as finally signed by all the parties had been altered by erasing the words "for three days” in the last paragraph and changing the date "February 3rd” to February 28th. At the bottom of the option as finally executed was written: ‘ ‘ February 23rd 1917, above accepted, Alva B. Caple.”

Two principal defenses are interposed by the defendants:

First. That there was no authorized delivery of the contract to the plaintiff and that the option offer was not accepted within the time limit set forth in the option.

Second. That the option not having been signed by the wives of the defendants, and they refusing to join in the execution of a deed for the property, the contract is not subject to enforcement by decree of specific performance against the husbands, providing for an abatement from the purchase price of the value of the dower interests of the wives.

The evidence shows that shortly before January 31, 1917, Frank G. Crane, an attorney of the city of Toledo, was acting as the attorney and agent of the defendants. He inquired of Caple whether he would consider the purchase of the property, whereupon Caple advised him that if he 'would have a written option prepared and signed by the defendants that he would advise him at once whether or not he would accept their offer, but he declined to make any offer for the property himself. On January 31, after discussing the matter with Isaac Crane, Irving J. Crane called at the office of Frank Crane, and after a consultation Frank Crane wrote the option in question. Thereupon Irving took the option to the home of his brother Isaac, where it was read to Isaac by his wife. Irving then took the option with him to his home, and he testifies that he signed it at four-thirty a. m. on February 2, after which he laid it upon the clock shelf, where it remained for some days, until Isaac called at the house of Irving. As Isaac was leaving, Irving took the paper from the shelf and handed it to Isaac, saying. ‘ ‘ Here is that option. ” It is claimed that nothing further was said with reference to it at that time. Isaac took the option home where it remained on his mantel for some days. He finally took it to the office of Frank Crane, and there the words were erased and the date changed, as above indicated. After this was done Isaac signed the option, and it was on the following day presented to Caple by Frank Crane. Caple asked to have some modifications made in the option, which Frank endeavored to have made, but without success. Thereupon, on the next day, Caple signed his acceptance of the option. Shortly thereafter Irving Crane declined to go forward with the option, and thereupon his brother Isaac also declined to carry out the agreement.

Irving Crane claims that the option was not delivered by any authority from him; that the time limit had expired before the delivery to Caple; and that it was, therefore, not a valid option and the aceptance by Caple did not effect a contract.

In view of the evidence adduced, we are unable to acede to this contention. Irving Crane’s testimony is not at all convincing upon this phase of the ease. It is inconceivable that he should have handed the contract to his brother without any further comment than done with it to carry out the offer therein contained. It is evident that Isaac obtained no such impression from the occurrence, because he later took the option to Frank Crane, and, after having the date of the limitation changed, signed the option himself, and left it, as he says, to be submitted to Caple, with the understanding and belief that both himself and his brother were then making an offer to Caple for the sale of this property.

Mr. Frank Crane testifies that he talked with Irving Crane over the telephone, and that at that time Irving said, ‘1 It is all wrong, but I suppose we will have to go through with it.”

The conclusion is irresistable from án examination of the evidence that the determination on the part of Irving to repudiate the offer was formed after its acceptance by Caple, and when perhaps his wife had made a positive refusal to join in a deed of conveyance. "We find without hesitancy from the evidence that the option was signed by both the defendants and delivered to Frank Crane for the purpose of extending the written offer therein contained to Alva Caple.

The evidence shows conclusively that this option, which was hurriedly prepared, was intended by both defendants, and so understood by plaintiff, to provide for the sale and conveyance of the property and the giving of a good and complete title to the plaintiff, free from the dower interests of the defendants’ wives, and we hold that the option as accepted constitutes a valid contract between the parties, calling for the conveyance to the plaintiff of the property with that character of title.

With respect to the prayer of the plaintiff’s petition, that the court by its decree should reform the contract, we think it is only necessary to say that our construction of the contract gives it all the scope it would have if.it were reformed along the lines suggested by the plaintiff. (Moore vs. Moulton, 2 Weekly Law Bulletin 323, 325, 6 Am. L. Rec., 466, 5 Dec. Rep., 534.) We entirely approve the language of Judge Tilden found in his discussion under his subdivision five.

The defendants were both married and living with their wives at the time of the execution of this contract, and this fact was well known to the plaintiff, whose wife is a sister of the defendants. The option was not signed by the defendants’ wives and there is no evidence tending to show that they ever agreed to sign the option or to join in a deed conveying the property. There is some evidence indicating that the wife of Isaac would have been willing to join in a deed if the transaction had gone through without difficulty. The wife of Irving says that she positively refused to join in a deed when the option was shown to her on the evening of January 31, and that she has ever since maintained that attitude. At the time of the trial Isaac’s wife also said she would not join in a deed for this property.

This presents an important and somewhat difficult question, namely: Shall a decree of specific performance be entered against the defendants requiring them to execute a deed in which their wives shall join; or, if the wives refuse to join, a decree of specific performance against the husbands, with an abatement from the purchase price sufficient to cover the present worth of the contingent right of the dower of the wives?

In the consideration of this question we have examined many authorities and find those authorities not in accord upon this subject. The defendants rely largely upon the case of People’s Savings Bank Co. v. Parisette el al., 68 Ohio St., 450, claiming that the present case comes 'within the second proposition of the syllabus in that case. Counsel for plaintiff seek to distinguish the facts in that, case from those in the ease under review, and assert that by reason of the difference in the facts the case is not an authority and is not controlling in this case. After a very careful consideration of the case of Saving’s Bank Co. v. Parisette we are unable to find a sufficient difference in the principal facts to justify us in declining to follow that case as an authority. The plaintiff knew that he was dealing with the husbands alone. He knew that they were married and that their wives could not be compelled to sign a deed, and that, therefore, the contract was impossible of execution if construed to include their dower interests. Such were also the controlling facts in the Parisette case. The court in the opinion in that case calls attention to the fact that the effect of making an abatement would result in an attempt to arrive at a sum to be deducted by a process admittedly speculative, or with an alternative of suspending a considerable portion of the purchase money to the seller during the joint lives of himself and his wife. The Supreme Court recognizes in its decision that a different rule prevails in a number of states, but we think it deliberately announced a rule in this state which precludes the specific performance of a contract for the sale of real estate executed by a husband whose wife does not join in signing the contract of sale and refuses to join in the execution of a deed. This rule is subject to the qualification that such refusal upon the part of the wife shall not be the result of fraud or collusion upon the part of the husband and the wife.

The Supreme Court, in the case above, cites many authorities in support of its conclusion. Among others are Riesz’s Appeal, 73 Pa. St., 485. The same rule is also announced by the supreme court of Pennsylvania in Burk’s Appeal, 75 Pa. St., 141, and in Burk v. Serrill, 80 Pa. St., 413. We also add the ease of Graybill v. Brugh, 89 Va., 895.

We therefore conclude that the case of Savings Bank Co. v. Parisette is a controlling authority in this case.

The evidence fails to show any fraud or collusion between the husbands and wives bringing about the refusal of the wives to join in the execution of a conveyance. The evidence also fails to show such knowledge and concurrence in the option on the part of the wives as to bind them in any way in the execution of the option. In any event the wives are not made parties to this action and therefore any decree made in this ease would not be binding upon them.

The failure of this court to give relief to the plaintiff by a decree of specific performance does not mean that the plaintiff is without a remedy in this court in this case. The evidence shows a breach of a valid contract to convey to the plaintiff the full title to the property described in the option, and the plaintiff is entitled to recover any and all damage that he may have sustained as a direct result thereof. The. authorities are numerous to the effect that where an action is brought in good faith for specific performance, and the court declines to grant that relief, damages may be awarded to the plaintiff for a failure upon the part of the defendant to carry out the terms of the contract. We call attention to Sternberger et al. v. McGovern, 56 N. Y., 12. In the code states where the distinction between actions at law and in equity is abolished it is unnecessary to dismiss the action and remit the party to a court of law to obtain damages. In this state there is but one form of action, namely, a civil action, and the same court administers the relief to which the pleadings and facts show the party to be entitled. The petition in this ease is broad enough to justify the court, if the evidence so warrants, in awarding damages.

No evidence has been introduced in this ease upon the subject of damage sustained by the plaintiff, it being agreed that if it became necessary to take testimony upon the subject it would be done later. It has been the practice of this court to remand causes to the court of common pleas for the purpose of ascertaining damages when that relief became necessary, and that will be the practice followed in this case.

A decree may therefore be drawn refusing specific performance of the contract and remanding the case to the common pleas court for the purpose of ascertaining the damages to which the plaintiff may prove himself entitled.

Judgment accordingly.

Richards, J., concurs.

Kinkade, J.

I concur in the conclusion reaehed, that the option as drawn, delivered and accepted constituted a contract between the owners and the purchaser for the conveyance of the full title to the land described in tbe option, including tbe inchoate right of dower of the wives of the two owners. The evidence offered in the case clearly established the fact that this was the intention of both the owners who signed the contract and of the purchaser who accepted it. This ma'kes the case one, in my opinion, very different from the case of Savings Bank Co. v. Parisette, 68 Ohio St., in which this language concerning the contract is used with respect to the purchaser and the owners, on pages 460 and 461:

“The company [the purchaser] knew, therefore, that it was dealing with the husband alone as to his right and title in the property; it knew that the wife could not be compelled to sign, and that, therefore, the contract was impossible of specific performance if construed to include her dower. It knew that it was accepting a contract which on its face did not purport to sell any interest but that of the husband, and especially did not purport to sell or agree to convey any inchoate dower of the wife.”

It will be seen from this language that the supreme court in the Parisette case found that the contract did not purport to convey the property free from claim of dower. In this case we hold this contract did obligate the owners to convey the property free from inchoate rights of dower held by their wives. I can not view the case of Savings Bank Co. v. Parisette as an authority against the right of the plaintiff in this court to have a decree of specific performance in his favor, and am of opinion that should have been the decree here, with an abatement to cover the present value of the inchoate dower interests.

A majority of the court having reached the conclusion that specific performance is not the proper remedy here, I concur-fully in the action of the court in remanding the case to the court of common pleas for the one purpose alone of assessing tbe damages that the plaintiff is there found entitled to recover.


author: Metcalfe, J.

text:
    LIABILITY FOR THE DEATH OF A SEAMAN BY BEING WASHED OVERBOARD.
    Court of Appeals for Cuyahoga County.
    Metcalfe, Pollock and Farr of the Seventh judicial district setting by designation in the Eighth District.
    Cleveland Transportation Co. v. Anderson, Admx.

    Decided, February 9, 1920.

      Negligence — In Failing to Make Ship Seaworthy — Unexplained Breaking of a Rail, Designed for Protection of Seamen, Sufficient Evidence of — Proximate Cause of Seaman Being Washed Overboard.

    1. The owner of a vessel engaged in carrying trade on the great lakes owes a duty to a seaman engaged on such vessel to make the ship seaworthy so that the ship and all its parts will render the service for which it was designated,
    2. The unexplained breaking of a part of the ship, — i. e., the rail running on the top of the bulwarks and designed as a protection to seamen — unless under extraordinary or unprecedented circumstances, is sufficient proof of unseaworthiness to entitle a seaman injured thereby to recover, if such breaking is the proximate cause of the accident.

      Holding, Mast en, Duncan $ Decide, for plaintiff in error.

      Snyder, Henry, Thomsen, Ford & Seagrave, for defendant in error.

       Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, June 8, 1920.

   Metcalfe, J.

Heard on error.

The plaintiff below, defendant in error here, recovered a .judgment 'against the defendant below, plaintiff in error here, for alleged negligent acts of the defendant in causing’ the death of plaintiff’s decedent, Jens Anderson.

Anderson was mate on the steamship Lewiston, a vessel owned by the defendant company, engaged in carrying passen gers and freight on the great lakes. The Lewiston sailed from the port of Marquette on October 1, 1917, bound for Cleveland, with a cargo of iron ore. In a storm oceuring during the voyage Anderson was washed overboard and drowned.

All grounds of negligence alleged in the petition were eliminated from the case during the trial except the one charging that the death of Anderson was “caused by the defendant’s unlawful conduct and negligence, of which decedent neither knew nor had the means of knowing, in causing said steamer to clear and sail from Marquette while said steamer was unseaworthy. ’ ’

The unseaworthiness claimed was in a defective rail which gave way during the storm. The rail in question was described by the captain of the ship as an “oak rail fastened to an angle-iron which runs on the top of the bulwarks with the flange in board. The oak rail is bolted through this angle-iron with three-quarter inch bolts and screwed fast with nuts in under the angle-iron. The sections are fastened to one another by scarfs thirty-two inches long. These scarfs are bolted with two-by-two bolts right through the scarf through the plank edgewise, and at the end of each scarf there is an eight-inch spike driven to hold the end of each scarf.”

The rail was two to three inches thick and eight inches wide. During the storm a heavy wave washed over the vessel, and after it subsided the rail was found to be gone and the mate had disappeared and was not seen again.

The rail was put in by the Bufflalo Dry Dock Company the year before, and the ship had been inspected by Government inspectors about four months before, and passed as seaworthy. There was no direct evidence showing ,want of ordinary care in constructing the rail, or in its inspection, and there is no evidence that the storm, though heavy, was greater than the vessel would be expected to meet and stand in an ordinary voyage. It was not .unprecedented, so that the question here presented is, whether the breaking of the rail, if unexplained, sufficient proof of unseaworthiness to entitle plaintiff to recover, provided, of course, that such unseaworthiness was the proximate cause of the accident?

The decisions of the various courts upon the questions here .considered are not altogether harmonious and we shall not attempt to discuss them at length, for out of the great mass of authorities cited some recognized principles are fairly deducible, which are decisive of the questions before us,

First, the owner of the vessel is liable to an indemnity for injuries received by a seaman in consequence of the unseaworlhiness of the ship. Osceola, 189 U. S., 158. and Chelentis v. Luckenbach Steamship Co., 247 U. S., 372.

Second, the rule that the ship must be seaworthy is for the protection of the seamen.

“The seaman is entitled to safe appliances.” Corvado v. Pederson, 249 Fed. 165.
“It is the duty of a shipowner, for the purposes * * * of a voyage # * * to furnish a vessel with the usual and necessary appliances in such condition and repair as reasonably to attain the objects intended; in a word, the vessel as an entirety must be seaworthy; and the owner’s duty in this behalf is positive and non-assignable. ” Warrington, J., in Thompson Towing & Wrecking Assn. v. McGregor, 207 Fed., 209-211.

Third, no exact definition of seaworthiness can be made; but as applicable to the instant ease it may be said to mean, failure of the owner of the vessel to use ordinary care in the construction or care of the rail in question, so as to render it of a degree of efficiency required for the purpose for which it was designed under ordinary circumstances.

Fourth, whether or not ordinary care was used was a question for the jury.

Fifth, the fact that the rail broke under the impact of the wave under the circumstances calls for an explanation on the part of the owners of the vessel, and whether that explanation was sufficient to relieve them was a question for the jury. The Globe Steamship Co. v. Moss, 245 Fed., 54; Corrado v. Pedersen, 249 Fed., 165; Schooner Robert Lewers Co. v. Kekauoha, 114 Fed.. 849, and Yoxford, 33 Fed., 521.

It is needless to bring into requisition the somewdiat overworked doctrine of res ipsa loquiLir in support of the last proposition. In the face of the fact that the rail did not answer the purpose for which it was constructed, that it broke under a test which it was required to withstand, it would be putting' an altogether onerous burden on the plaintiff to require him to go further and show that some workman of the Bufflalo Dry Dock Company the year before had failed to do his duty, or that some seaman had not properly cared for the rail. These facts were not within the knowledge of the plaintiff, but if they existed should have been within the knowledge of the defendant. It was the duty of the. defendant to its seamen to make the ship seaworthy. If, as a matter of fact it was not seaworthy, the defendant was the only one who could explain that fact. Admitting the presumption of sea worthiness when the vessel sailed, that presumption must fall when the fact appears otherwise.

If our statement of the law is correct, was the plaintiff entitled to recover? To entitle her to a recovery the jury were required to find that the evidence offered in explanation of the broken rail was insufficient; that is, such evidence was not at least equal in weight to the evidential value of the fact itself (Klunk v. Hocking Valley Ry., 74 Ohio St., 125), and to find by a preponderance of the evidence that the breaking of the rail was the proximate cause of the accident.

Can this court say that the finding of the jury on these questions was clearly and manifestly against the weight of the evidence? The testimony is to the effect that the rail was renewed in the usual way about a year before; that it had been eared for in the usual way; that it was inspected by Government inspectors and passed as seaworthy. The witness MeQuain testifies that on the morning of the accident the captain ordered him to go below and get some wedges to be used in fastening down some of the hatches. "When he came up with the wedges, to quote his own language, “I see somebody tying along the rail and then there was another sea boarded her-and after she cleared up I didn’t see anybody.” The witness. McGovern, says that he and Anderson were fixing number six hatch at the time the waves struck the ship, and adds, “I see a big wave coming and I started on the run and jumped on a lifeboat. The sea filled her up and swept right over her and as soon as I got on top I looked aft to see where he was and I didn’t see him.”

The testimony of Captain Nelson and othe)r witnesses Is not materially different and they all concur that after the heavy wave had struck the ship Anderson had disappeared and the rail was gone. No witness other than McQuain testified to séeing any one lying by the rail, and his testimony may be somewhat discredited on that point, but the concurrence of all the witnesses as to the disappearance of Anderson and the breaking of the rail occurring about the same time must have led the jury to connect the two facts as cause and effect, and we do not feel that we are justified in saying that thejr were wrong. The rail broke and contemporaneously with that fact Anderson disappeared.

The charge of the trial court is excepted to and our attention is called to the following language as especially .objectionable :

“In this connection I say to you that the breaking of the rail in question and the circumstances under which it occured, is some evidence tending to prove that the defendant was negligent in the respects that I have stated and submitted to you. It is for you to determine how much, if any, weight such evidence is entitled to.”

Tt is objected to this language that the effect was to indicate to the jury that the rail was insecure and that the defendant had failed to use ordinary care to provide a secure rail.

We do not think that that is the effect of the language used. The trial judge might well have said to the jury that the breaking of the rail, if unexplained, was sufficient proof of unseaworthiness. Instead of that, however, he left it to the jury to determine the weight and effect of that evidence. The charge properly placed the burden of proof on the plaintiff and left it to the jury to determine the weight and effect of the evidence. This could not have been prejudicial to defendant, and the judgment is affirmed.

Farr and Pollock, JJ., concur.


text:
    DOCTRINE OF LAST CHANCE AND ITS LIMITATIONS.
    Court of Appeals for Hamilton County.
    Notkin, Admx., v. Bardes, Exr.
    Decided, April 7, 1919.

      Negligence — Where Concurrent the Doctrine of Last Chance Without Application Until Plaintiff’s Peril is Discovered.

    The doctrine of last chance has no application in a case where the negligence of plaintiff was concurrent with that of the defendant, but applies only after the discovery by defendant of plaintiff’s peril.

      Howard Bevis and Peck, Shaffer & Williams, for plaintiff in plaintiff in error.

      Robertson, Buchwalter & Oppenheimier, for defendant in error.
   Cushing, J.

Heard on error.

This is an action for wrongfully causing the death of Israel Nothin, a minor ten years of age. The petition charges that defendant’s automobile was being driven south on Elm street, between Eighth and Seventh streets, without a warning of any kind; that it was driven at a high, dangerous and excessive rate of speed; and that it was being so driven when the driver saw, or, in the exercise of ordinary care, should have seen, Israel Nothin, in time to have avoided striking him.

It is established that the automobile was proceeding south on the west side of Elm street; that at least two automobiles were parhed on that side of Elm street, about halfway between Seventh and Eighth streets; that the boy had a scuffle with a larger boy on the sidewalk; and„that on leaving the sidewalk on the west side of Elm street, after the scuffle, he went east between the parhed automobiles and was injured before he reached the west rail of the street car tracks.

The evidence is conflicting as to the location of defendant’s automobile at the time, and as to whether the boy walked, ran or darted out between the parked automobiles; also as to whether or not the accident happened on account of such darting out, or whether the boy was walking across or standing in the street at the time of the accident. The verdict was for the defendant. The jury must have found that the boy ran or darted out, that the driver of the automobile did not and could not have known of the boy’s movement, and that it was an inevitable and unavoidable accident so far as the driver of the automobile was concerned. On the facts stated it can not be said that the verdict was against the weight of the evidence, unless there was error as charged. Counsel for plaintiff in error rely on the following assignments of error for a reversal:

1. The verdict (in view of the last-chance doctrine) was against the weight of the evidence.

2. Refusal to give special charge number six, stating the doctrine of last chance as applied to this case.

3. Errors in the general charge relating to proximate cause and last-chance doctrine.

4. Refusal to give special charge number five, to the effect that it was not unlawful for the deceased child to attempt to cross the street in the middle of the block.

The first, second and a part of the third assignments of error relate to the last-chance doctrine.

Special charge number six is as follows:

“If you find from the evidence that after Israel Notkin had reached a place of peril in the street in front of the automobile where he was in danger of being struck by it, and could not thereafter save himself, the chauffeur could then, in the exercise of ordinary care and watchfulness, have seen Israel Notkin in such position of peril, and that there was then sufficient space between the automobile and Israel Notkin to have permitted the chauffeur in the exercise or [of] ordinary vigilance to stop or check the automobile without striking Israel Notkin, and if you further find from the evidence that the chauffeur failed to use such ordinary care and watchfulness to discover said Notkin or stop or check the automobile, and as a result thereof the automobile struck and killed Israel Notkin, the plaintiff is entitled to a verdict in this case.”

The doctrine of last chance has' no application In a case where the negligence of plaintiff was concurrent with that of the defendant. Drown v. The Northern Ohio Traction Co., 76 Ohio St., 234; Bejac v. The C., P. & E. Ry. Co., 23 C. C., (N. S.), 475, affirmed, 90 Ohio St., 409; Galati v. The Erie Railroad, 23 C. C., (N. S.), 63; Henry v. The C., L. & A. Elec. St. Rd. Co., 23 C. C., (N. S.), 40; Harris v. The Mansfield Railway, Light & Power Co., 21 C. C., (N. S.), 209, and Goodman v. The Cleveland Elec. Ry. Co., 16 C. C., (N. S.), 208.

The special charge contains the same error as that passed upon in the case of Luebbering, Admr., v. Whitaker, ante. The doctrine of the last chance is only applicable after the discovery by defendant of plaintiff’s peril. The special charge was properly refused.

Plaintiff in error requested special charge number five as follows:

“It was not unlawful for Israel Notkin to attempt to cross the street in the middle of the block.”

This charge was refused. The question presented by this charge was not an issue in this case, made by either the pleadings or proof. The refusal to give it does not require a reversal.

It is claimed that the court erred in its general charge in stating the -law of proximate cause. That term has been defined in so many eases that it need not be repeated here. It is the law that a charge should be a plain, distinct and unambiguous exposition of the law applicable to the case, as made by the pleadings and proof. Therefore courts should refrain from stating what is not included in .proximate cause, nor should they point out or emphasize any particular facts in defining proximate cause.

On consideration of the record we conclude ' there are no prejudicial errors. The judgment will therefore be affirmed.

Shohl, P. J., and Hamilton, J., concur.


author: Hamilton, J. Shohl, P. J.,

text:
    RECOMMENDATIONS OF MERCY BY JURIES.
    Court of Appeals for Hamilton County.
    Shelton v. State of Ohio.
    December 15, 1919.

      Criminal Law — Recommendation of Mercy is a Privilege of the Jwry— May Not be Made the Subject of Argument by Counsel.

    Tbe question of mercy as provided in Section 12400, General Code, defining first degree murder, is not a proper subject for argument by counsel at tbe trial of the case to the jury, but is a privilege to be exercised by the jury only after they have found defendant guilty of murder in the first degree.

      M. C. Lyhins, and Janies G. Stewart, for plaintiff in error.

      Louis H. Cwpelle, Prosecuting Attorney, and Charles S. Bell, Assistant Prosecuting Attorney, for defendant in error.
   Hamilton, J.

Heard on error.

Plaintiff in error, Ludie Clifford Shelton, alias James Shelton, was convicted in the court of common pleas 'of Hamilton county of murder in the first degree on a count in the indictment charging him with the killing of William IT. Dieters, while said plaintiff in error was prepetrating or attempting to perpetrate a robbery.

It appears from the record that the decedent, Dieters, a police officer, while on duty as such, was killed on Freeman avenue in the city of Cincinnati about 11:30 p. m., on the night of August 28, 1918. It appears that the plaintiff in error, Shelton, together with a man named Chandler, were on the west side of Freeman avenue, acting in a suspicious manner; that Dieters, the police officer, met them and stopped them, inquiring as to where they were going and what they were doing at that time of the morning. Not giving a satisfactory answer, the officer made some examination of Shelton, but did not discover a revolver tvhich Skelton had in Ms trousers on the right side of the waist band. Thereupon the officer turned his attention to Chandler, and, while searching Chandler, Shelton drew his revolver, pointing it at the officer and ordering him to throw up his hands, which the officer did, and then he, Shelton, ordered Chandler to take from the officer his gun. Chandler, in obedience to the order of Shelton, put his hand in the pocket of the officer, but instead of getting his revolver took his flashlight. At that time the officer moved for some purpose, wherupon Shelton fired the shot which struck the officer near the heart, passing through the diaphragm, resulting in his death while on the way to the General Hospital. Shelton and Chandler ran, and were at liberty for some time, but were later apprehended and brought to trial.

The only defense offered at the trial was Shelton’s claim that he did not intend to shoot the officer, that he wanted to take the officer’s revolver from him so that he could get away, but that his, Shelton’s revolver was accidentally discharged.

During the argument of the case to the jury counsel for defendant undertook to argue that under certain conditions a jury had a right to consider mercy, but was interrupted by the trial court and was denied the right to argue the question of mercy to the jury.

Plaintiff in error urges that the verdict and judgment are against the weight of the evidence. It would serve no purpose to enter into an analysis or discussion of the evidence, as the facts are briefly above set forth. We have carefully read the record, keeping in mind the importance of the case before us and we find the verdict and judgment to be fully sustained by the evidence.

The question raised by counsel for plaintiff in error on the refusal of the court at the trial to allow counsel for defendant to argue the question of mercy to the jury is not without difficulty. The statute of Ohio ('See. 12400 G. C.) provides:

“Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson,-robbery or burglary, kills another is gnilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life.”

This question has never been passed upon directly by the courts of the state of Ohio, nor by the courts of other states having like provision of law on their statute boobs. It was held by the supreme court of Ohio in State v. Ellis, 98 Ohio St., 21, that the question of mercy was not a proper subject upon which to examine a prospective juror upon his vow dire.

In the case of State v. Thorn, 39 Utah, 208 (117 Pac. 58), the supreme court held it to be improper for the trial court to charge the jury in such a way as to instruct its members .how to consider the question of mercy. The court used the following language:

“It undoubtedly is the law, that the jury, in the event they found the prisoner guilty of murder in the first degree, had the absolute right to recommend a punishment of life imprisonment, and that the making or withholding of the recommendation was a matter entirely within their discretion to be exercised in any manner and for any reason they saw fit, and that they should be left free to dispose of the question without any intimation of the court as to what should control or influence them in reaching a conclusion upon it.”

In the ease of People v. Kamaunu, 110 Cal., 609 (42 Pac. 1090), on the question of the discretion of the jury to recommend mercy, the court in the opinion used the following language :

“This discretion is given to the jury, and the court can not direct or advise them upon the subject further than to inform them of their function.”

In the ease of Newton v. State, 21 Fla., 53, at page 101, the court say in the opinion:

“But after stating to the jury that the recommendation to mercy is in the discretion of the jury, where the law has placed it, it is improper to attempt to control them in its free exercise according to their own judgment of the merits of the case. The law is positive. If a majority of the jurors recommend to mercy, by whatever motives they may be actuated (and these motives are not circumscribed), the court is bound to heed their verdict, and pronounce sentence accordingly.”

In the case of Winston v. United States, 172 U. S., 303, at page 313 of the opinion, the court say:

“The instructions of the judge to the jury, in each of the three cases now7 before this court, clearly gave the jury to understand that the act of Congress did not intend or authorize the jury to qualify their verdict by the addition of the words loithout capital punishment, unless mitigating or palliating circumstances were proved.
“This court is of opinion that these instructions were erroneous in matter of law7, as undertaking to control the discretionary power vested 'by Congress in the jury, and as attributing to Congress an intention unwarranted either by the express words or by the apparent purpose of the statute.”

In the ease of State v. Ellis, supra, the court make use of the following language:

“The decisions of course are quite uniform that the trial judge may not advise or direct the jury touching a recommendation of mercy; and, if the judge may not do so, why should counsel be permitted to commit the jurymen in advance, either one way or the other, touching such recommendation? The jury should be left entirely free to consider that question after they have agreed upon a verdAct of murder in the first degree.”

While, as above stated, the cases cited and quoted from do not decide the precise question, they do show the interpretation of the statute to mean that the jury should be left alone to determine within their own conscience, without rhyme or reason, the recommendation of mercy. The question of mercy is not one to be considered until after the agreement of a verdict of guilty. Any discussion, therefore,, by counsel or bv the court would necessarily be predicated upon the proposition that the defendant was to be found guilty. When counsel for defendant present an argument to the jury appealing to them for a recommendation of mercy, the question immediately presents itself as to why, if the defendant is innocent, such a proposition should be presented at the time. The defendant would be immediately placed at the disadvantage of having counsel, who are there to defend, conceding by their argument a point against him. We again refer to the Ellis case, supra, as supporting this conclusion. The language used by the court is;

“The jury should be left entirely free to consider that question after they have agreed upon a verdict of murder in the first degree.”

If we are to be guided by the general rules relative to arguments to the jury, it becomes clear at once that the argument on the question of mercy would be improper. The rule is that counsel may argue to the jury only from the evidence submitted in the case and the reasonable deductions to be made therefrom. Appeal to the passion and prejudice of the jury has no place in the trial of a case. It has been uniformly held that the recommendation of mercy is not based upon mitigating or palliating circumstances, nor the evidence in the case. Under this rule the only purpose an argument on the question of mercy would serve would be to appeal to the passion and prejudice of the jury, without regard to the evidence or the reasonable deductions to be made therefrom. If counsel for defendant is permitted to make an appeal to the sympathy of the jury on the question of mercy, eonusel for the state would have the right to make an argument as to why mercy should not be extended, and the arguments of counsel, instead of serving their lawful purpose, would degenerate into an appeal on the one hand to the sympathy of the jury and on the other hand to their prejudices.

We are, therefore, of opinion that the question of mercy as provided in the statute is a privilege to be exercised by the jury, only after they have found the defendant guilty of murder in the first degree, and the question has no place for consideration until after this has taken place. It has been held that the court may call their attention to this provision of the statute, but can go no farther, and that it is not error to omit any mention of this provision of the statute.

We are, therefore, of opinion that the question of mercy is not a proper subject for argument by counsel at the trial of the case to the jury, and that the court did not err in refusing to permit counsel for defendant to so argue.

Finding no error in the record, the judgment will be affirmed.

Cushing, J., concurs.

Shohl, P. J.,

dissenting.

The plaintiff in error is under a sentence of death based upon the verdict of a jury finding him guilty of murder in the first degree without recommendation of mercy.

During the course of the final argument of the cause to the jury his counsel undertook to argue to the jury that the accused should be accorded a recommendation of mercy. The court, in substance, forbade him to talk about mercy to the jury, and counsel excepted.

Section 12400 G-. C., provides:

“Whoever, purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery or burglary, kills another is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life.”

It will be noted that in the trial of a case wherein a defendant is charged with murder in the first degree, the jury may have a twofold function. They must determine the guilt or innocence of the accused. If they find the accused guilty, they must fix the penalty by their form of verdict. The form of verdict alone determines whether the offense shall be punishable by death or by imprisonment in the penitentiary during life. While under the Ohio Criminal law the jury has ordinarily nothing to do with the determination of the amount of the punishment, the law in some states gives them the power. See 16 Corpus Juris., 933, 1111. In Ohio the jury have the function of fixing the penalty in first degree murder cases only. The legal effect of the recommendation of mercy is to fix the punishment. State v. Schiller, 70 Ohio St., 1.

One charged with' a capital or otherwise infamous crime has secured to him by both the federal and state constitutions the right (1) to a trial by jury; (2) to compulsory process for obtaining witnesses in his favor; and (3) to the assistance of counsel upon trial. See Article 3, Sec. 2, and Arts. 5 and 6 of the amendments to the Constitution of the United States, and Art. 1, Secs. 5 and 10, Constitution of Ohio. Important as the right to a trial jury is, its purposes would not be fully accomplished without the concomitant rights of compulsory process and the assistance of counsel. It is our duty to see that none of these rights is impaired, or denied to any one entitled to the benefit of them. They are the product of the wisdom and humanity of the founders of this government.

How far the considerations of age, sex, ignorance, illness or intoxication, of human passion or weakness,- of sympathy or clemency, or the irrevocableness of an executed sentence of death, or an apprehension that explanatory facts may exist which have not been brought to light, or any other circumstances whatever, should be allowed weight in deciding the question whether the accused should or should not be capitally punished is committed to the discretion of the jury and of the jury alone. The authority of the jury to decide that the accused shall not be punished capitally is not limited to cases in which the court, or the jury, is of the opinion that there are palliating or mitigating circumstances; but it extends to every case in which, upon -a view of the whole evidence, the jury is of opinion that it would not be just or wise to impose capital punishment. Winston v. United States, 172 U. S., 303, 313, and United States v. Williams, 103 Fed., 938.

The right to defend with counsel includes the right to have counsel argue fully such matters as may be favorable to the accused. Dille v. State, 34 Ohio St., 617, and 16 Corpus Juris., 887.

Since the jury have the power to “change the punishment,” the accused has the right to have presented to their attention any matters that they might properly consider in forming a judgment.

The effect upon the right of the prosecution to reply to such argument in kind, we need not now decide.

Counsel for the state rely upon the decision of State v. Ellis, supra. The fact that counsel are not permitted to inquire of a prospective juror whether he would be willing to consider recommendation of mercy, and thus “commit the jurymen in advance,” is not inconsistent with the right to have presented to the juror at the proper time such matters as might warrant him to consider whether mercy should be recommended. The jury must 'be left free in the determination of that question, but this function is vested in them as a protection to the accused.

I am of opinion that in refusing to permit counsel for the accused to argue to the jury on the subject of mercy, the court abridged the constitutional right of the defendant. I therefore dissent from the decision of the court.


author: Kunkle, J.

text:
    COMPETENCY OF TESTIMONY WHEN ADVERSE PARTY IS ADMINISTRATOR.
    Court of Appeals for Knox County.
    Judges Allread, Femeding and Kunkle of the Second Appellate District, sitting by designation in place of Judges Shields, Houck and Patterson of the Fifth Appellate District.
    W. W. Walkey, Admr., v. Elva Loney.
    Decided, November 13, 1919.

      Evidence — Making Children Parties — Does not Render Their Testimony Incompetent in Suit by Administrator, When.

    In an action against an administrator to recover judgment and possession of certain personal property, the children of the deceased, although named in the caption of the petition as parties defendant are not necessary parties, and are therefore not incompetent witnesses under Section 11495, General Code.
    ,P. A. Berry, F. O. Levering and Huston & Hutchison, for plaintiffs in error.

      J. B. Graham and Robert L. Carr, for defendant in error.
   Kunkle, J.

Heard on error.

In the common pleas court cases Nos. 10,341, 10,506 and 10,563 were submitted together.

We shall not attempt to state the facts involved in each of these cases in detail. It is unnecessary as counsel are thoroughly familiar with the same.

In brief, however, in ease No. 10,341 Elva Loney brought suit against W. W. Walkey as administrator of the estate of Julia A. Loney, deceased, and sought to recover judgment and possession of certain personal property which was in the hánds of Julia A. Loney at the time of her death and which came to her from the estate of her husband, Reuben C. Loney.

Elva Loney in his petition alleged in substance that under a contract and power of attorney executed by Reuben C. Loney, he, the said plaintiff, was entitled to said property after the death of said Julia C. Loney.

The prayer of the petition is as follows:

“Wherefore plaintiff prays that there may be ordered and adjudged that the defendant W. W. Walkey, as administrator of the Estate of Julia A. Loney, deceased, pay to him the sum of $4,393.91 together with interest on the same from June 10th, 1910, and to turn over to him or cancel all notes executed by him to Reuben C. Loney or to his estate.”

Case No. 10,506 is an'appeal from an order made by the probate court of Knox County in the matter of the estate of Reuben C. Loney overruling a motion made by Elva Loney, one of the executors of Reuben C. Loney asking leave to open up and correct the first partial account of the executors of Reuben O. Loney, deceased, and also overruling in all substantial particulars the exceptions filed by Elva Loney to the affidavit of W. W. Walkey, administrator of the estate of Julia A. Loney, in lieu of a final account of such administrator.

Case No. 10,563 was also an appeal from an order of the probate court of Knox county sustaining the exceptions of W. W. Walkey as administrator of the estate of Julia A. Loney, deceased, to the second partial account of Elva Loney, executor under the will of Reuben C. Loney, and in making a finding against said Elva Loney upon the said second partial account.

The principal controversy between the parties relates to the validity and effect of the alleged contract and power of attorney which it is claimed was executed by Reuben C. Loney in his lifetime and the provisions of which it is further claimed were fully performed by Elva Loney during the lives of Reuben C. Loney and Julia A. Loney.

Elva Loney claims that in consideration of the performance by himself of certain services specified in said contract and power of attorney that he was to receive the personal property therein designated at the death of Reuben C. and Julia A. Loney.

During the progress of the trial the defendants, Grace Doup (Record, page 35) and Geneva Pealer (Record, page 51) were offered as witnesses. They were daughters of Julia A. Loney, deceased. The trial court upon the objection of plaintiff below refused to permit these witnesses to testify and it is urged by counsel for plaintiff in error that the trial court erred in such ruling.

In case No. 10,341 both of these persons were named as parties defendant in the caption of the petition but no allegation was made in the body of the petition against either of them.

Mrs. Spohn, another daughter, was also named as a party defendant in the caption of the petition but no allegation was made against her in the body of the petition and she was not served with summons.

Neither Mrs. Doup, Mrs. Pealer nor Mrs. Spohn filed an answer.

The only answer filed was by W. W. Walkey as administrator of the estate of Julia A. Loney, deceased. It is claimed these persons were incompetent witnesses by reason of the provisions of Section 11,495 G. C.

This Section provides that:

“A party shall not testify when the adverse party is the guardian or trustee of either a deaf and dumb or an insane person or of a child of a deceased person, or is an executor or administrator, or claims or defends as heir, grantee, assignee, devisee or legatee of a deceased person, except;” etc., etc.

It will be observed that the adverse party in this case is Elva Loney, not the administrator, as these two witnesses and the administrator were joined as defendants. Elva Loney is not claiming in this case as an heir, devisee or legatee but is claiming nuder a contract and power of attorney alleged to have been executed • by his father.

Under the reasoning found in the case of Elliott v. Shaw, 32 O. S., Reports, 431, it seems apparent that the adverse party, namely, Elva Loney, could not be considered as a grantee. This then eliminates all of the provisions of said section except the term “assignee.”

Assuming that Elva Loney could be considered as an assignee, which we considelr doubtful, there is another reason wldch forces us to the conclusion that the trial court erred in rejecting the testimony of these two witnesses.

In the case of Wolf v. Powner, 30 O. S. Reports, page 472, Judge Scott at page 476 of the decision says:

“We all concur in the opinion that the parties intended to be excluded from testifying by this section are the real and not mere formal,. nominal and wholly unnecessary parties. This section only prohibits a party from testifying in an action where the adverse party sustains certain relations or characters or come within certain specified descriptions.”

See also reasoning of Judge. Price in the case of Powell v. Powell, 78 O. S., 331. Also following cases; Keyes v. Gore, 42 O. S., 211; Cochran v. Almack, 39 O. S., 314 and 3 Ohio Circuit Court Reports, page 508.

We are of opinion that neither Mrs. Doup nor Mrs. Pealer were either necessary or proper parties to this proceeding. No relief was asked against either of them and no averment was contained in the petition which affected either of them. They were not referred to in the petition except to be named in the caption thereof and as to Mrs. Spohn she seems to have been so unnecessary that counsel for plaintiff did not even have her served with summons. No relief was asked against either of them. We can not see what relief could have been asked against either of them in a case of •ids nature. If the plaintiff is entitled to relief it will be necessary to work the same out through the administrator of Julia A. Loney. The administrator represents the estate of Julia A. Loney. Her daughters do not. The administrator was, therefore, the only real party in interest and we think the trial court erred in refusing to allow these two witnesses to testify.

The record does not fully disclose what the excluded testimony would have been and we are therefore unable to determine to what extent such testimony might bear upon the important questions, of the execution and performance of the alleged contract and power of attorney.

In view of the fact that additional evidence may be offered upon these questions we do not deem it proper to express an opinion upon the weight of the evidence contained in the record now before us.

It is also claimed by counsel for plaintiff in error that case No. 10,341 can not be maintained for the reason that the plaintiff failed to file a claim with the administrator of the estate of Julia A. Loney, deceased, and have the same either allowed or rejected prior to the commencement of such suit.

An examination of the pleadings does not disclose any issue upon this question nor was a demurrer filed to the petition upon the ground that same did not state a cause of action.

' In addition to the above we are of opinion that in a case of this nature it would not be necessary to file a claim with the administrator of the estate of Julia A. Loney and have same rejected before suit could be brought.

For error in excluding the testimony of Mrs. Doup and Mrs. Pealer the judgment of the lower court will be reversed and the causes will be remanded for new trial,

Aulread and Ferneding, JJ., concur.


author: Lieghley, J.

text:
    LANDLORD LIABLE TO TENANT FOR DAMAGES DUE TO HIS NEGLIGENCE.
    Court of Appeals for Cuyahoga County.
    Halbreich v. Lamb.
    Decided, February 11, 1918.

      Landlord and Tenant — Landlord Occupying Second Floor Liable for Damage to Goods of Tenant on First Floor — Caused by Water Percolating through First Floor Ceiling — Negligence of Landlord on Premises not Occupied by Tenant.

    1. A landlord who occupies the upper stories of a building, and leases the first floor and basement thereof to a tenant, is liable for negligently permitting water to percolate through the first floor ceiling, thereby damaging the tenant’s goods; and the question of the landlord’s omission of duty toward his tenant is one for the jury.
    2. The rule of law that the relation of landlord and tenant is contractual and that therefore a landlord is not liable in tort on account of the condition of the premises leased, has no application to a case where the landlord’s negligent acts take place in a portion of the premises which are not demised and result in damage to the tenant. Shinkle, Wilson & Kreis Co. v. Birney & Seymour, 68 Ohio St. 328, Shindlebeck v. Moon, 32 Ohio St., 264, and Stackhouse v. Close et al, 83 Ohio St., 339, distinguished.

      Ezra Brudno, for plaintiff in error.

      F. F. Gentsch, for defendant in error.
   Lieghley, J.

Heard on error.

The parties stood in the same order below.

The plaintiff, Sol. M. Halbreich, filed his statement of claim in the court below, alleging that he occupied the first floor and basement of the premises of defendant, Mark Lamb, under a lease, which premises are located at the corner of Ontario street and Huron road, and that the relation of landlord and tenant existed between them on the day in question in this law-suit; that the stories above the first floor were used, occupied and under the control of the defendant at that time; that on the 4th day of February, 1917, the defendant carelessly and negligently permitted water to percolate through the ceiling of the store occupied by the plaintiff, which water damaged his goods and stock of merchandise then therein; that the plaintiff called the attention of the defendant to the water leaking through the ceiling, but -that the defendant disregarded the warning and permitted the water to continue to percolate for a period of more than two hours; and that he is entitled to damages to his stock of goods occasioned by the water through the negligence of the defendant.

Defendant filed an answer in which he admits that on said day he had the use, occupancy and control of the upper stories of said block; that on said day a water pipe broke in the private apartments of the defendant on the third floor of said building, due to the fact that the gas company failed to furnish sufficient gas to heat the building, and that in consequence thereof the pipe froze and broke; and asserts that the breaking of the pipe was not due to any negligence on his part but was due to the default of the gas company; and that upon discovery of said break he used the utmost diligence to turn off the water in the building. He denies generally all the statements of fact contained in the statement of claim, not expressly admitted.

The ease came on for trial, and a jury was empaneled. The defendant then objected to the introduction of any evidence and moved the court for a judgment on the pleadings, which motion was granted and judgment was entered for the defendant. Error is prosecuted to this court to reverse this judgment.

To sustain the judgment of the court below, counsel cites and relies upon the case of Shinkle, Wilson & Kreis Co. v. Birney & Seymour, 68 Ohio St. 328, the syllabus of which reads as follows:

“The relation of lessor and lessee arises out of contract, and, where there is neither express warranty nor deceit, the latter cannot maintain an action against the former on account of the condition of the premises hired.”

In addition to the above authority we cite Shindelbeck v. Moon, 32 Ohio St. 264, and Stackhouse v. Close, 83 Ohio St. 339.

These citations are authority for the rule that the relation of lessor and lessee is one of contract; also that the tenant can not maintain an action against the landlord on account of the condition of the premises leased, in the absence of deceit, fraudulent concealment or express warranty.

An examination- of these authorities, however, will disclose that the facts in each case relate to the demised premises. Each ease, and the rule announced in each, limits the application thereof to the condition of the premises hired, and in neither of the cases is the rule extended to the condition of premises outside of and beyond the demised premises.

The pleadings in this case clearly show that the demised premises consisted of the first floor -and basement, and that the defendant had the use, occupancy and control of the stories above the one leased to plaintiff. The break in the pipe occurred in the private apartments of the defendant, over which the plaintiff exercised no control and into which he had no right of entry to make repairs, and which was in no sense a part of the subject-matter involved in the contract of lease. As to the first floor covered by lease the relation of plaintiff and defendant was contractual, and no question of negligence arises in respect to that part of the premises. Whether or not any rule of negligence may be invoked and applied for an omission of duty on the part of the defendant in his private apartments resulting in damages to -the- property of the plaintiff on the first floor is one of fact to be determined from the proof in the case, and the authority relied upon by counsel as controlling in this law-suit has no application whatsoever to the situation presented in the pleadings in this case.

The judgment is reversed for error in sustaining the motion for judgment on the pleadings, and the cause is remanded to the court below for proceedings according to law.

Grant and Dunlap, JJ., concur.


author: Hamilton, J.

text:
    NOT VESTED WITH GENERAL JURISDICTION.
    Court of Appeals for Hamilton County.
    Rendigs, Commissioner of Buildings, et al. v. Devou.

    Decided, November 24, 1919.

      Insolvency Court not Given General Equitable Jurisdiction — May not Enjoin Enforcement of an Order for Vacation of Buildings.

    1. The court of insolvency of Hamilton county, being a regularly and legally established court of record,' its judgments are subject to review by the court of appeals under Article IV, Section 6 of the Ohio Constitution of 1912.
    2. The court of insolvency of Hamilton county is not vested with general equitable jurisdiction in injunction eases, and is without jurisdiction to hear and determine injunction proceedings brought to restrain the commissioner of buildings from enforcing an order for the vacation of certain buildings.

      Saul Zielonka, City Solicitor, and Dennis J. Ryan, Assistant City Solicitor, for plaintiffs in error.

      Crosley & Rogers, for defendant in error.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, April 26, 1920.

   Hamilton, J.

Heard on error.

Defendant in error instituted a proceeding in the court of insolvency of Hamilton county to restrain the commissioner of buildings and the chief of police from enforcing an order for the vacation of certain buildings, the property of the defendant in error, which the building commissioner claimed to be unsafe and unsanitary, which order the defendant in error refused to comply with, challenging the constitutionality of the ordinance of the city of Cincinnati providing for the regulation of tenement houses and other buildings. The plaintiff in error, defendant below, demurred to the petition on the ground that the court of insolvency had no jurisdiction of the subject of the action. The demurrer was overruled, and, the defendant below declining to plead further, judgment was entered for plaintiff below, from which judgment error is now prosecuted.

Defendant in error moves to dismiss this proceeding in error for the reason that the first sentence of paragraph 10 Sec. 1637, G. C., is unconstitutional in attempting to confer authority on this court to review on error the decision of the court of insolvency. The motion to dismiss and the error proceeding were presented at the same time and both questions are submitted for consideration. We will first consider the motion to dismiss the proceeding in error.

Jurisdiction to review a judgment is not conferred by paragraph 10, Section 1637, General Code. The authority for such review is provided by Art. 4, Sec. 6, of the Constitution, as follows:

“The courts of appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, .modify or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law and judgments of the courts of appeals shall be final in all cases, except,” etc.

The supreme court of Ohio in Cincinnati Polyclinic v. Balch, 92 Ohio St., 415, held that the general assembly has no power to enlarge or limit the jurisdiction conferred by the constitution of the state. This provision of the constitution specifies “other courts of record within the district.” The insolvency court of Hamilton county, being a court of record within the district, is sufficient authority for the review of this case.

It is argued by counsel in support of the motion that if the error proceedings are entertained it vrould do violence to Art. 2, Sec. 26, which provides that all laws of a general nature must have a uniform operation throughout the state.

It is further argued that the power conferred under Art. 4, Sec. 6, to review, is only conferred in accordance with the provision of Section 26; that there are but two courts of insolvency in Ohio, found only in Hamilton and Cuyahoga counties. and that they are not therefore within the provisions of Art. 2, Sec. 26. We do not think this position is tenable. The jurisdiction to review, affirm, modify or reverse the judgments of the courts of common pleas, etc., is contained in and limited to Art. 4, See. 6. Section 26 has to do only with acts of the legislature. The legislature by law established the insolvency court of Hamilton county, and the constitutionality of that law was upheld in the ease of State v. Archibald, 52 Ohio St., 3. The insolvency court of Hamilton county being a regularly and legally established court of record, its judgments are subject to review under Art. 4, Sec. 6, and the motion to dismiss the error proceeding will be overruled.

The question remaining is: Did the court err in overruling the demurrer and entering judgment for the plaintiff below? This involves the question whether or not the court of insolvency is vested with general equitable jurisdiction in injunction oases. If the court is not so vested, it would be without power to enter the judgment in this ease. It is argued by counsel for defendant in error that, the insolvency court-had authority to hear and determine this cause under paragraph 10, Sec. 1673 G. C., the provisions of which are as follows:

“10. Appeals may be taken to the court of appeals from orders, decrees and judgments, in such cases, and error may be prosecuted in the court of appeals in the manner and to the extent provided in such cases respective^- when pending in the court of common pleas. All laws giving authority to issue injunctions, and regulating the practice in the common picas court in such cases prescribing the form and effect of its orders, decrees and judgments, and authorizing and directing the execution thereof, shall be held to extend to the court of insolvency.”

It is claimed that under this paragraph general equity powers in injunction eases are conferred upon the insolvency court; that the intention of the legislature as conveyed by the last part of paragraph 10 is to give the court of insolvency the power granted to the common pleas court in ail injunction matters.

It is claimed that in the wording of the paragraph, “all laws giving authority to issue injunctions, and regulating the practice in the common pleas court in such cases prescribing the form and effect,” etc., the phrase in such cases means injunctions, or might be read “and regulating the practice in the common pleas court in injunction eases.” We dlo not think the section will bear that construction. The insolvency court is a court of limited jurisdiction and possesses only such powers as are conferred by statute, and such equity powers as are necessarily incident to the execution of such powers. The powers conferred are contained in the first nine paragraphs of Section 1637. Then follows the paragraph which defendant in, error claims to confer general equity powers. The section is to be construed as a whole. Paragraph 10 undertakes to provide for the procedure of the court with reference to the powers granted in the nine preceding paragraphs. No injunctive power is conferred by the law. The court could only grant .such preliminary injunctions, in the exercise of its powers granted under the preceding paragraphs as are necessary for the execution of such powers. Bearing in mind that cases might arise in the exercise of the powers granted, which would require the use of the extraordinary power of injunction to give effect to its judgments, the legislature sought in paragraph 10 to provide for the procedure under those circumstances, none having been provided for in the preceding nine paragraphs. Recognizing the authority to issue injunctions by the court of insolvency, as above stated, the legislature provided how this extraordinary remedy might be exercised. The latter part of the paragraph, that all laws giving authority to issue injunctions in such cases, refers to the nine preceding paragraphs, just as does the same phrase in the first sentence of paragraph 10, In other words, while at common law the court of insolvency may have sufficient authority to invoke the extraordinary remedy of injunction, in exercising the powers conferred upon it, the legislature out of abundant precaution has prescribed that in the exercise of those powers it shall be guided by the rules and practice of the court of common pleas in such cases.

Tt follows that the court of insolvency was without jurisdiction to hear and determine this ease, and for that reason was without power to grant the injunction.

The injunction will be dissolved and judgment may be entered here sustaining the demurrer to the petition, and dismissing the petition for want of jurisdiction of the court of insolvency.

Shohl and Cushing, JJ., concur.


text:
    LIMITATION AS TO TIME FOR APPEAL FROM THE INDUSTRIAL COMMISSION.
    Court of Appeals for Cuyahoga County.
    Industrial Commission v. Patterson.
    Decided, March 11, 1918.

      'Workmen’s Compensation — Right to Participate in Insurance Fund Denied — Time for Appeal Runs from Order on Application for Rehearing.

    The industrial commission denied the right of a claimant to participate in the state insurance fund, and thereafter, on application for a rehearing, the commission adhered to its former action.

      Held: That the thirty day limitation for appeal to the common pleas court, as provided by Section 1465-90, General Code, begins to run from the date of the order of the commission on the application for rehearing.

      Samuel Doerfler, Pros. Atty., and G. A. Howells, assistant Pros. Atty., for plaintiff in error.

      Frederick A. Henry, for defendant in error.
   Lieghley, J.

The parties stood in reverse order in the court below and for convenience will be mentioned herein as they there stood.

Elmer Patterson met his death on the 14th day of November, 1916, while in the employ of The Lake Shore Sawmill Company. The mill company had complied with the requirements of the workmen’s compensation act. The plaintiff mother of said deceased, made application to defendant for an award, which was denied by the defendant on the 16th day of February, 1917. A few days later notice of the action of the commission was given to plaintiff by letter, which letter contained the following statement:

“If it is your desire to have the claim reopened after reading this statement of facts, upon notification we will send you the proper blank.”

On March 8 application for rehearing was filed with the defendant, which application was finally decided on March 23, 1917. The final decision of the commission took the form of an approval and affirmance of its former action. An appeal was taken to the court of common pleas, April 19, 1917. Hearing thereof was thereafter had and resulted in a judgment for damages, attorney fees and costs, in favor of plaintiff, from which judgment error is prosecuted to this court by the defendant.

First, it is claimed in the briefs by defendant that the fatal injury was not received by the deceased in the course of his employment. This claim was not urged or insisted apon at the hearing.

Second, it is claimed that the appeal to the court of common pleas was not filed in time.

The act provides that the claimant shall file the appeal within thirty days after the notice of the final action of the board. Defendant claims that the entry of February 16 constituted the final action of the commission. The plaintiff claims that the rules promulgated by the commission provide for the filing of an application for hearing within thirty days after final action of the board, that said application for rehearing was entertained by the commission and its final action tbereon constitutes the order from which plaintiff should and did appeal.

Rule 25 provides that an application for rehearing a claim may be filed within thirty days from the date of the order and finding of the commission complained of, and that when filed a time and place for hearing the same with notice to the parties shall be fixed, and, if, on rehearing, it appears to the commission that substantial justice has not been done, it has then full power to modify its former order. The essential procedural requirements were complied with in this ease for the rehearing.

Section 1465-91 G. C. permits liberality in the proceedings of the commission.

Section 1465-69, paragraph 3, confers authority upon the board of awards to change or modify its finding of facts at any time.

Viewing this case from the standpoint of what was done, in chronological order, and with regard to the provisions of the act and the rule above referred to, it seems to us that the appeal was taken in time by plaintiff, and that the order .of March 23, 1917, is the final action of the board. Otherwise Rule 25 would be beneficial to no one, excepting that it might be used to mislead claimants to permit the statutory time for appeal to elapse.

It is suggested by defendant that unless the requirements of the statute are strictly enforced, and that if a claimant be permitted to file a motion for rehearing and the statute begin to run from the action of the commission thereon, a claimant would have the instrument in his hands to delay indefinitely the conclusion of such a matter before the board. With this claim we do not agree. Suppose'an order is made by the board adverse to a claimant. Then'the claimant has thirty days under the rule to file an application for rehearing. Action on the application for rehearing is within the hands of the board, and if there be delay the blame therefor lies with the board. The rule affords the right to a claimant to file an application for a rehearing, and when a claimant avails himself of that right the statutory time of thirty days for perfecting an appeal begins to run from the date of the final action on the application for rehearing. At most, sixty days plus the time that intervened from the date of the application for a rehearing and the date of a decision thereon by the board would be the limit., within which an appeal would have to be perfected, applying the act and the rules promulgated by the board.

It is true that statutes conferring a right of appeal must be strictly complied with, and the decisions are to this effect. But this rule has been held in the main to apply to an appeal from an inferior to a superior court. Such is not the case in this appeal. The functions of this board are administrative, and this is an appeal from an administrative board to a court. The appeal provided for in this act should be treated rather as the mode of removing a cause from an administrative to a judicial tribunal. State v. Creamer, 85 Ohio St. 349; 39 L. R. A. (N. S.) 694, and Police v. Industrial Commission, 23 C. C. (N. S.), 433.

Judgment affirmed.

Grant and Dunlap, JJ., concur.


text:
    FALSE ANSWERS IN APPLICATION FOR FRATERNAL LIFE INSURANCE.
    Court of Appeals for Montgomery County.
    John E. Goehring v. the Maccabees.
    Decided, January 26, 1920.

      Mutual Benefit Societies — Construction of Statute Providing When False Answers in Application for Life Insurance Become Material.

    Section 9391, General Code, relating to answers to interrogatories in an application for life insurance, does not apply to fraternal insurance.

      Egan & Delscamp, for plaintiff in error.

      Nevin & Kalbfus, and C. M. Horn, for defendant in error.
   Kunkle, J.

This is an action in which plaintiff in error, the beneficiary named in a certain fraternal insurance policy issued on the life of his son Clarence A. Goehring, seeks to recover from defendant in error the value of such policy.

It appears from the record that defendant in error tendered plaintiff in error the amount paid as premiums under the policy. The trial court instructed the jury to return a verdict in favor of defendant in error.

Such ruling was made by the trial court upon the ground that as suit was brought upon a fraternal insurance policy any untrue statements made by the applicant would vitiate the policy, whether such untrue statements were made intentionally or by mistake.

The trial court found that the undisputed testimony showed that Clarence A. Goehring, the insured, in his application for such insurance, stated that his mother had died of typhoid fever, whereas she died from tuberculosis; that said Clarence A. Goehring stated in his application for insurance that he had no brothers, whereas he had two brothers; that said Clarence A. Goehring stated in his application for insurance that none of the members of his family had died from consumption, whereas three of them, viz: his mother and two brothers, had died from tuberculosis.

It is claimed by counsel for plaintiff in error that this case should have been submitted to the jury, as there was at least a scintilla of evidence to support the claim of plaintiff in error.

We have carefully read the record in this ease and are of opinion that the evidence fully warranted the findings of fact contained in the decision of the trial court, and if these findings are supported by the undisputed evidence then the court was justified in instructing a verdict unless Section 9391, General Code, applies to fraternal insurance.

Upon a careful consideration of this section of the Code and of the Ohio authorities, we are of opinion that the section does not apply to a fraternal insurance policy such as was sued upon in this case. 19 O.C.C. (N.S.), 355.

Under the policy in question the representations of the applicant were made warranties. The policy contains the following provisions:

‘ ‘ This certificate is issued because of an application for membership and medical examination furnished by the member in writing, signed by him, and warranted to be absolutely true in every particular as written, which application, medical examination, laws of the Association in force at maturity of contract, and this certificate, constitute the contract between the member and the Association.”

The laws of defendant in error (Page 76 of Exhibit “R”, Section 380), provide that—

“No benefit shall be paid on account of the death or disability of a member who has given untrue answers in his application for membership, provided, however, that a member who, in his application for membership, understated his age, in good faith and without any intention to deceive, shall not thereby forfeit his certificate, if he was under the age limit at the time of his admission. If he was above the limit of age at the time of his admission his membership shall be void from the beginning.”

The case of Insurance Company v. Pyle, 44 O. S., 19, established the rule in Ohio as to a life insurance policy prior to the enactment of Section 9391, General Code.

We are of opinion that Section 9391, General Code, does not apply to fraternal insurance, and that under the undisputed testimony the trial court-was justified in instructing a verdict.

In view of the final decision of the trial court, we do not think its ruling in reference to the opening and close of the case would constitute prejudicial error.

Finding no error in the record which we consider prejudicial to plaintiff in error, the judgment of the lower court will be affirmed.

Aulread and Fernbding, J.J., concur.