text:
    ERROR — EVIDENCE—MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    January 9, 1909.]
    Swing, Giffen and Smith, JJ.
    Cincinnati v. Philip Roettinger.
    1. Contention Disclaiming Ownership .in Defective Sewer in Rublic Street Cannot be Raised on Error.
    A’ contention that a municipality was not shown to be the owner of a defective sewer in a public street, for injuries to property abutting which judgment for damages has been rendered, comes too late on error to-reverse such judgment, especially, since the city made no disclaimer of ownership to the sewer in question by pleading or. otherwise and the-evidence shows that it repaired the sewer after repeated notices of the defects therein.
    2. Errors in Trial Held Immaterial upon Liability of Municipality for Damages in Greater Amount than Judgment Allowed.
    "Where a cause of action is stated against a municipality, and the uncon- ' tradicted evidence shows liability for whatever damages resulted, and also that the plaintiff suffered greater damages than were .allowed him by the jury, errors of law in the charge to the jury or in the admission ■ or rejection of evidence- become immaterial.
    [Syllabus approved by the court.]
    Error to Hamilton common -pleas court.
    Geoffrey Goldsmith, for plaintiff in error:
    Error in the admission of evidence. 8 Enc. PI. & Pr. 223; Graves v. People, 18 Colo. 170 [32 Pac. Rep. 63]; Kent v. State, 42 Ohio St. 426; State V. Young, 73'Ohio St. 372 [78 N. E. Rep. 1138], affirming, Young v. State, 26 Circ. Dec. 747 (6 N. S. 53).
    Letter is irrelevant. 11. Am. & Eng. Enc. Law 588, 589; 1. Green-leaf, Evidence 262; 3 Wigmore, Evidence Sec. 2104; Chase’s Stephens, Evidence 180; Thornton v. Stephen, 2 M. & R. 45; Barber v. International Go. 73 Conn. 587 [48 Atl. Rep. 758]-; Elmore v. Overton, 104 Ind. 548 [4 N. E. Rep. 197; 54 Am. Rep. 343]; Stillwater Turnpike Co. v. Coover, 25 Ohio St. 558; CircUville (City) v. Throne, 1 Circ. Dec. 200 (1 R. 359) ; Dixon v. Liberty Tp. Sub. Dist. 2 Circ. Dec. 298 (3 R. 517) ; Boot v. Monroeville (Vil.), 4 Circ. Dee. 53 (16 R. 617) ; Bradford Belting Co. v. Gibson, 68 Ohio St. 442 [67 N. E. Rep. 888]; Smyth v. Bangor, 72 Me. 249.
    Error in refusal to arrest case from the jury on motion of the defendant city. Cleveland v. Payne, 72 Ohio St. 347 [74 N. E. Rep. 177; 70 L. R. A. 841]; Smith v. Rochester, 64 Hun. 637 [19 N. Y. Supp. 459]'; Lohr v. Philipsburg Borough, 156 Pa. St. 246 [27 Atl. Rep. 133]; Jordan v. Peckham, 19 R. I. 28 [31 Atl. Rep. 305].; Shelby (Vil.) y. Clagett, 46 Ohio St.. 549 [22 N. E. Rep. .407; 5 L. R. A. 606] ; Smyth v. Bangor, 72 Me. 249; Dundas V. Lansing, 75 Mich-. 499 [42 N. W. Rep. 1011; 5 L. R. A. 143; 13 Am. St. Rep. 457]; Bond Hill (Vil.) v. Atkinson, 9 Circ. Dec. 185 (16 R. 470) ; Weidman v. New York, 84 App. Div. 321 [82 N. Y. Supp. 771], affirmed, MacKnight. Flintic Stone Co. v. New York, 176 N. Y. 586 [68 N. E. Rep. 1119];, 28 Cyc.. 1319; Kidson v. Bangor, 99 Me. 139 [58 Atl.. Rep. 900],
    Error in stating the issues to the jury. Cincinnati Trad. Co. v. Forrest, 73 Ohio St. 1 [75 N. E. Rep. 818].
    Error in the general charge as to the establishment of propositions of fact. Davies v. Griffith, 11 Dee. Re. 495 (27 Bull. 180); Cincinnati, ■C. & W. Tpk. Co. v. Cincinnati, 9 Dec. 259 (6 N. P. 233); Davison v. Spitler, 7 Dec. 393 (5 N. P. 466) ; Guy v. Bailway, 9 Dec. 23 (6 N. P. ■3); Columbus By. v. Bitter, 67 Ohio St. 53 [65 N. E. Rep. 613].
    Error in instructing jury' as to knowledge. Cincinnati Trac. Co. y. Forrest, 73 Ohio St. 1 [75 N. E. Rep. 818].; Lohr v. Philipsburg Borough, 156 Pa. St. 246 [27 Atl. Rep. 133]; Houseman v..Building & Loan Assn. 81. Pa. St. 256.
    Instructing as to measure of damages. Cincinnati v. Wright, 14 Dec. 600 (2 N. S. 53) ; TJpson Coal & Min. Co. v. WiUiams, 28 Circ. Dee. 388 (7 N. S. 293), affirmed, without report, Upson Coal & Min. Co. v. Williams, 75 Ohio St. 644; Stroth Brewing Co. y. Schmitt, 25 O. C. C. 231 ‘(I N. S. 177); Toledo y. Lewis, 9 Circ. Dec. 451 (17 R. 588), affirmed, Crawford v. State, 52 Ohio St. 62 [38 N. E. Rep. 614]; Mansfield v. Hunt, 10 Circ. Dec. 567 (19 R. 488); Toledo v. Grasser, 6 Circ. Dec. 782 (12 R. 520); Cummings y. Toledo, 5 Circ. Dec. 495 (12 R. 650); Uline v. Bailway, 101 N. Y. 98 [4 N. E. Rep. 536; 54 Am. Rep. 661]; Shirely v. Bailway, 74 Iowa 169 [37 N. W. Rep. 133; 7 Am. St. Rep. 471]; Bandolf v. Bloomfield, 77 Iowa 50 [41 N. W. Rep. 562; 14 Am. St. Rep. 268]; Bobb v. Carnegie Bros. 145 Pa. St. 324 [22 Atl. Rep. 649; 14 L. R. A. 329: 27 Am. St. Rep. 694]; Schlitz Brewing Co. v. Compton, 142 111. 511 [32 N. E. Rep. 693; 18 L. R. A. 390; 34 Am.. St. Rep. 92].
    E. G. Kinkead and H. K. Rogers, for defendant in error.
   SWING, J.

Defendant in error brought an action against the plaintiff in- error for damages to his real estate caused by sewage, matter escaping from a sewer in Gilbert avenue and flowing under the foundations of, hi» houses abutting on that street. The petition states a good cause of action. The answer of the city was in effect a general denial.

The plaintiff introduced his evidence, which substantially sustained the allegations of his petition. The damage to the property \yas shown to be at least $1,500; one witness placed it at $2,000. It was further proved that repairs were made to the buildings caused by sewage matter to the extent of $951. The city offered no evidence. The jury returned a verdict for the plaintiff in the sum of $1,179, including interest to May 4, 1908. The petition was filed April 20. 1904, claiming interest from. January 1, 1903„ so that the verdict carried with it at the least over four years ’ interest, and the amount of damage- allowed by the jury was not over $900.

The jury made special findings of fact as follows:

“Did the city have reasonable notice of the defect, if any, in the sewer pipe before the injuries or any of them complained of. Answer. Yes.”

“Did the city have reasonable notice of the defect, if any, in the culvert before the injuries complained of, or any of them. Answer. Yes.”

“Did the city after notice, if any was given, remedy the defect, if any, in the sewer in a reasonable time. Answer. No.”

“Did the city after notice, if any was given, remedy the defect, if any, in the culvert in a reasonable time. Answer. No.”

“Was the break, if any, in the sewer pipe, the proximate cause of the damage. Answer, Yes.”

“Was the break, if any. in the culvert, the proximate cause of the damage. Answer. Yes.”

It is urged in argument that the evidence does not show that the-city was the owner of the sewer in question, but this contention comes-too late. The city in its answer did not set up any defense of that kind. The evidence shows that the sewer was in the public street of the city, and when complaint was made to the city that sewage was-leaking from the sewer into plaintiff’s property, the city did not disclaim ownership of the sewer, but finally after repeated notices of the-defect, repaired the sewer. There really can be no question but that the sewer was the property of the city.

Quite a number of errors alleged to have been committed by the court in the trial of the case were presented to the court on behalf of the city with great learning and ability, but with the view we take of the record these do not seem prejudicial, if erroneous, and need not therefore be considered in detail.

The plaintiff having stated a cause of action and the uneontradicted evidence showing that the city was liable for whatever damages resulted, and the uncontradicted evidence showing that he sustained more damage than the jury allowed, any errors of law if committed by the court in its charge or in the admission or rejection of evidence must be immaterial and of no prejudice to the city.

Judgment affirmed.

Giffen and Smith, JJ., concur.


source: Caselaw Access Project

author: TAGGART, J.

license: Public Domain

text:
    ARBITRATION AND AWARD.
    [Tuscarawas (5th) Circuit Court,
    1909.]
    Taggart, Donahue and Voorhees, JJ.
    Guy Tilden v. Christian Bernhard.
    Submission to Arbitration Excluding Jurisdiction or Courts Invalid.
    A clause of a contract providing that “Should any dispute arise regarding the provisions of this contract, * * * the same shall he submitted to three arbitrators. * * * and the decision of such arbitrators shall be final and binding on all parties,” is illegal in that it ousts the courts of jurisdiction; at least, it is inoperative, in that arbitration is not made a condition precedent or bar to bringing action upon the contract itself.
    [Syllabus approved by the court.]
    Error to Tuscarawas common pleas court.
    J. M. Blake, for plaintiff in error.
    Hostetler & Hostetler and P. S. Olmstead, for defendant in error.
   TAGGART, J.

■The question in this case is as to the sufficiency of the second amended petition. The court of common pleas sustained a general demurrer to the second amended petition, dismissed the action, and rendered judgment for the defendant. The plaintiff below prosecutes error to this court.

The action below was on an architect’s contract for services in preparing plans and specifications for the remodeling of a hotel. In the contract, which was embodied in the petition, was the following provision: '

' “Should any dispute arise regarding the' provisions of' this contract, or any question arise thereunder, or the value of the work done in- case of abandonment, the same shall be submitted- to three- arbitrators. Bach of the disputing parties shall choose one, and' these -two the third, and the decision of such arbitrators shall be-final' and binding on all parties.”

The contention of the defendant was, that this provision was a part of the contract, and that the plaintiff could not recover thereon, until he had first complied with this part of the same, or at least offered to perform, or had given a sufficient excuse for nonperformance.

The claim of the plaintiff was twofold: 1. That this clause is void, because it is general in its terms, and ousts the courts of jurisdiction. 2. This clause is not enforeible, because arbitration is not a condition precedent to the bringing of a suit on the contract.

From the authorities we may deduce' the following rule: That a condition in a contract that disputes arising out of it, shall be referred to arbitration, is good, when the amount of damages sustained by the breach of the contract is to be ascertained, or when a safe or speedy manner of fixing definitely some fact is to- be determined before any right of action accrues; but that it is illegal when all matters in dispute, of whatever sort, are to be referred to arbitrators, and to them alone.

The above rule seems to be supported by the opinion of Burket, J., in the case of Balt. & O. Ry. v. Stankard, 56 Ohio St. 224, 232 [46 N. E. Rep. 577; 49 L. R. A. 381; 60 Am. St. Rep. 745].

But, assuming that the provision of.the contract is valid, is it a condition precedent to maintaining an action? Or may an action be maintained on the contract, leaving the parties to such" relief as they may have for a breach of this part of the condition of the contract ?

The defendant below contends, that this part of the-contract must be observed or an excuse given for failure- to comply with it, before an action can be maintained on the contract. In support of this contention, we are cited to the cases of Graham v. Insurance Co. 75 Ohio St. 374, 405 [79 N. E. Rep. 930; 15 L. R. A. (N. S.) 1055]; Fire Assn. of Phil. v. Appel, 76 Ohio St. 1 [80 N. E. Rep. 952]; Phoenix Ins. Co. v. Carnahan, 63 Ohio St. 259, 268 [58 N. E. Rep. 805].

There are very essential differences in- the terms of the contract of insurance under review in these cases, and the contract involved herein.

1. The insurance policies contain the express provision, that no suit shall be brought until the amount of loss shall have been ascertained by arbitration.

2. The arbitration shall be limited to the ascertainment of the loss only, and does not refer any other matter or thing to the arbitration.

It will be observed that, in the contract in suit, there is no provision that suit shall not be brought until there is an award, or that the award shall be the basis of a judgment.

What, then, is the purpose of the arbitration, if the court in which suit is brought, may ignore the award and render such a judgment as the facts of the case warrant, independent of the arbitration and award? We think that this determines that this clause of the contracts is a mere agreement to submit to arbitration, which may be revoked by either party, at any time, before final submission or award. That it is merely executory, and, because executory, does not furnish a bar to an action on the contract.

In the case of State v. Jackson, 36 Ohio St. 281, 283, 284, Judge Okey uses the following language:

“Arbitration is a method which has long existed at common law •for the settlement of disputes and controversies. No particular form is required in the proceedings. Neither the arbitrator nor the witnesses are required to be sworn, though the parties may stipulate that such oaths shall be administered. The submission may be revoked by either party at any time before the award is actually delivered, and. the award itself has no legal effect whatever except that it furnishes foundation or cause of action or defense against the party who fails to perform or abide by the award.”

The circuit court of Montgomery county, in Dayton & Union Ry. v. Railway, 25 O. C. C. 705 (6 N. S. 537), as a part of the syllabus, deduces the following rule:

“The agreement to arbitrate does not preclude a resort to a court of justice to protect rights growing out of the contract, neither can it be pleaded in bar to such action. Such agreement to arbitrate will not be specifically performed, nor the arbitrators compelled to act.”

This court quotes with approval from the case of McGunn v. Hanlin, 29 Mich. 476, 480.

“The agreement to submit to arbitration contains no covenant or agreement not to sue or that the award shall be made the foundation of a judgment. Without this condition it is a mere common law arbitration and enforeible only by action in case either party fails, to comply with it. The statute refers to such agreement as fixed upon some designated court in which judgment shall be entered on the; award.

“Whatever force may be given to an award actually made under an agreement and not impeached for fraud or any other informity, there is no authority for holding that parties who have agreed to-arbitrate have by their agreement precluded themselves from resorting; to a court of justice. Such agreements will not be specifically enforced nor will the arbitrators be compelled to act. 2 Story, Eq. Jurisp. Sec. 1457, and notes. And it is well settled that they cannot be pleaded in bar. Mitchell v. Harris, 2 Ves. Jr. 131; Nichols v. Chalie, 14 Ves. 265; Confer v. Dawson, 2 Bland 264; 2 Daniels Ch. Pr. 768 and note.

“The reason given by Mr. Daniels is that such an agreement is. only executory and an executory agreement can be no more than a cause of action and cannot be pleaded in bar to another action.”

We are of the opinion, that this part of the contract, in terms providing for the submission to arbitration, is in its terms so general as: to render it invalid; or, if it is not invalid, then inoperative, at the-election of either party; or, at least, not constituting a bar to the-bringing and maintaining an action upon the contract itself.

The judgment of the court of common pleas is reversed, for error in the court in sustaining a demurrer to said second amended petition, and is remanded, with direction to said court, to overrule the demurrer..

Exceptions will be noted.

Donahue and Voorhees, JJ., concur.


author: SWING, J.

text:
    RECEIVERS — PREFERENCES.
    [Hamilton (1st) Circuit Court,
    February 6, 1909.]
    Swing, Giffen and Smith, JJ.
    Elias Bach & Sons et al. v. Smith-Pattison Mfg. Co.
    Pbefebenoes Given fob Loans in Financial Panic Held Good.
    A contract by which a corporation hard pressed for money during a. financial panic, transfers certain accounts and pledges certain property as security for loans negotiated m good faith from persons not creditors. is valid, and the parties making such loans should he preferred over the ■general creditors upon distribution of funds in the hands óf a receivér subsequently appointed to wind up its affairs.
    [Syllabus approved by the court.]
    Error to superior court of Cincinnati.
    Moulinier, Bettman & Hunt, for plaintiffs.
    Healy, Ferris & McAvoy, for defendant.
   SWING, J.

This cause is in this court on error to the judgment of the superior court. That court gave judgment on the rights of parties to a fund which was in the hands of the court through a receiver which it had appointed to take charge of the Smith-Pattison Co. The amount involved is quite large and the trial below occupied a very considerable' time, and in this court the case was fully argued orally, and very full and able briefs containing almost a hundred pages, with a great number of authorities cited, have been submitted and considered. In deciding the ease wé will not attempt to comment on the authorities cited,, nor to. review at length the evidence, but simply state- our conclusions as to the law and the evidence.

The court below found in favor of the claims of E. M. Pattison and John G. Robinson, and in doing so the general creditors of the insolvent firm of Smith-Pattison Co. claim error was committed. The Smith-Pattison Co. was a firm of $125,000 capital, of which nearly $100,000 had been paid in. The firm was located in Cincinnati, and was engaged in the manufacture and sale of cigars. The evidence tends to show that they expended some $60,000 in advertising and introducing their brands of cigars.

In October, 1907, when the panic was at its worst, the company was hard pressed for funds, and the bank at which it was doing business denied it further credit, and demanded payment of loans already made, and refused to honor checks on funds to its credit in the bank. In order to save the firm from immediate ruin it became necessary to raise $20,000 from other sources than the bank. This it did by borrowing $15,000 from E. M..Pattison and $5,000 from John G. Robinson. To secure this money the company assigned to Pattison and Robinson certain ehoses in action, to wit, certain book accounts. The notes; given by the company for these loans were payable on demand. It was provided in the agreement that if the note was not paid and while the debt existed, that when certain of the accounts were paid instead of' paying the different sums over to Pattison and Robinson, other good! accounts which the company had might be substituted from time to time, and this was done. The object of Pattison and Robinson in lending this money to the firm was to aid the firm in its financial difficulty as well as to secure themselves for the loan. Pattison’s son was a, member of the firm and Robinson himself was a large stockholder as well as an officer of the firm. They were not seeking an investment for their funds nor were they seeking to take advantage of the firm or its creditors, but on the other hand were trying to help both. There can be no question as to the good faith of any of the parties to this transaction, and justice requires that it should be carried out unless it is contrary to well settled principles of the law. The questions that have frequently arisen where an insolvent concern seeks to prefer one creditor over another have no relation to this transaction.

Pattison and Robinson were not creditors of this company. They did not seek to get control of this company or any of its property. The company sought Pattison’s and Robinson’s money, which it, the company, sorely needed, and to secure repayment to them gave the security referred to. The general creditors were benefited by this and not injured, and it would be manifestly unjust that the general creditors should now take away the money of Pattison and Robinson which was loaned to the' company for their benefit. We think the contract made by the parties was a valid contract and in enforcing it the court below/ was right.

Later in the same year, to wit, December 28, the company was pressed for funds to carry on its business, and it sought the same parties for help, and this was given, $5,000 being loaned on that day and $4,000 on January 14, 1908. The amount agreed to be loaned the company by Pattison and Robinson was $9,000. The same remarks, supra, in regard to the relations of the parties applies equally here. Pattison and Robinson sought no advantage of the company, but the company needed Pattison’s arid Robinson’s money, and all Pattison and Robinson asked was a return of the money and security from the company that it should be returned. This, of course, the company represented to Pattison and Robinson it was anxious and willing to do. In substance the agreement was that it would pledge to Pattison and Robinson any chattel property that it had and which Pattison and Robinson should take.

The company did not act promptly in putting its property in pledge, but in accordance with its agreement it did carry it out by placing certain cigars in the possession, as we hold, of Pattison and Robinson. The pledge as made fulfilled every requirement, of. the law,, and the court decided rightly in giving' éffect to the contract, of the parties. It would have been a great injustice to have held otherwise.

Judgment affirmed.

Giffen and Smith, JJ., concur.


author: DONAHUE, J.

text:
    DESCENT AND DISTRIBUTION — WILLS.
    [Knox (5th) Circuit Court,
    1907.]
    Taggart and Donahue, JJ.
    (McCarty, J., not sitting.)
    Armstrong et al. v. Armstrong et al.
    1. Election op Widow to Take Under Will Limited to Status as Widow or Devisee, not Heir at Law.
    The widow’s election to take or not to take under her deceased consort’s will given by Sec. 5964 Rev. Stat., is limited to the relation of widow or devisee: she cannot elect to take as heir at law property devised to her in lieu of dower and distributive share.
    2. Epfect on Descent op Property by Failure op Wipe to Take Under her Deceased Husband’s Will.
    Nonancestral real estate devised in fee to a widow with no devise over in the event that she elects not to take, or fails to elect to take, under the will of her husband, notwithstanding absence of issue, does not by operation of Sec. 5964 Rev. Stat. become intestate property within the meaning of See. 4159, to which she is limited to a dower interest merely; but as to the fee in property devised to her for life, with power to sell, the husband will be deemed to have died intestate and she will take the fee as heir at law.
    [Syllabus approved by the court.]
    Demurrer to petition on appeal from Knox common pleas.
    H. H. & R. M. Greer, J. L. Leonard and J. B. Graham, for plaintiffs :
    Cited and commented upon the following authorities: Wilson v. Hall, 3 Dec. 589 (6 R. 570) ; affirmed, without report, Hally. Wilson, 53 Ohio St. 670; Moyses v. Neilson, 9 Dec. 623 (7 N. P. 607); Lesley v. Smith, 7 Circ. Dec. 264 (13 R. 189); Doyle v. Doyle, 50 Ohio St. 330 '[34 N. B. Rep. 166].
    Waight & Moore and W. O. Bowers, for defendants.
   DONAHUE, J.

This cause comes into this court by appeal and is submitted on demurrer to the petition. It appears by the petition, the material aliegations of whieh are admitted by this demurrer to be true, that the defendant, Rebecca Armstrong, is the widow of John Armstrong, who died testate seized of the real estate described in the petition, all of which was acquired by purchase, leaving no children. By the terms of the will the husband devised to his widow a certain part of this real estate, but the will contains no devise over of this real estate in case the widow elected not to take under the will. It appears that the widow did elect not to take, or rather, failed to elect to take, under the provisions of the will, and now claims that the real estate devised to her in the will, by reason of her failure to take under that will, becomes intestate property and that she is entitled to take the entirety thereof as heir at law, under the provisions of Sec. 4159 Rev. Stat.

We think that Sec. 5964 Rev. Stat. is decisive of the question presented by this petition and the demurrer thereto. That section provides that, upon failure of the widow to elect to take under the will, she shall retain the dower and such other of the personal estate of the deceased •consort as the widow would be entitled to receive in case the deceased consort died intestate, leaving no children. That is to say, that in such case where the widow fails to elect to take the provisions made for her by will, that by operation of Sec. 5964 the property devised to her does not become intestate property as to her within the meaning of Sec. 4159 Rev. Stat., but that her interest therein is the same as if the husband died intestate, leaving children. In other words, we do not believe that it is the policy of the law to permit the widow to make her election to take as heir at law or devisee; she must elect to take either as wido-w or devisee, and she cannot defeat her husband’s will by claiming dower in all his real estate and her rights as Widow in all his personal property, whether the same be devised or not, and then claim that she takes as heir the property devised to her by her husband in lieu of her dower and distributive share.

In the case of Wilson v. Hall, 3 Circ. Dec. 589 (6 R. 570), which was affirmed, without report. Hall v. Wilson, 53 Ohio St. 679, almost an identical question was presented, the only difference being that it was the husband who elected not to take, or failed to elect to take under the will within the year, and it was there held that such property would descend subject to his rights as widower) under Sec. 4176, to the children, and there being no children in that case, that except for the provisions of See. 5964, the entire estate would pass to and vest in the widower, but, in apeordance with the provisions of Sec. 5964 Rev. Stat., notwithstanding the testatrix left no children, the widower was entitled to take only the same interest that he would have taken in intestate property had the testatrix died, leaving children, and that the residue thereof would pass to the brothers and sisters of the intestate of the whole blood or their legal representatives, and distribution was ordered in that case in accordance with this finding, and that was •affirmed by the Supreme Court.

The next question presented by this demurrer is, whether or not John Armstrong died intestate as to any of the real estate described in the petition. The determination of this question requires the construction of item three of his will, which reads as follows:

“I give and bequeath to my beloved wife, Rebecca Armstrong, the farm I now own situated in Porter township, Delaware county, Ohio, known as the Ramsey farm, to be hers to do as she may wish with.” “I also give and bequeath to her so long as she may live the balance of my real estate and personal property with full power to sell and dispose of the same as she may wish; also to make and execute deeds for any or all of that part of my real estate that lies within the corporate limits of the village of Centerburg, Knox county, Ohio.”

It is apparent that the Ramsey farm was devised to Rebecca Armstrong in fee and therefore John Armstrong did not die intestate as to any part of that real estate. But the question arises upon the further provision of this item which devised his other real estate and personal property to her ‘ ‘ so long as she may live wtih the right to sell and dispose of the same,” etc., and it is claimed that this devise, coupled with the power to sell, is a devise of the real estate in fee simple, but with this contention we cannot agree. We think that under the provision of this will Rebecca Armstrong took only a life estate in the balance of the real estaté, except the Ramsey farm, and the farm devised in a former item of the will to a church society; that he died intestate as to the fee in all his other land.

In the case of Widows’ Home v. Lippardt, 70 Ohio St. 261, 282 [71 N. E. Rep. 770], the Supreme Court say:

“The rule is that when an estate is devised with an absolute power of disposal, a devise over of what may remain is void, but that where a life estate only is given in express words to the first taker, with an express power in a certain event, or for a certain purpose, to dispose of the property, the life estate is not, by such power, enlarged to a fee or absolute right, and the devise over is good.”

In this will we are construing there is no devise over, but the principle announced in that case is applicable to the ease at bar, and applying the same here it would appear that Reueeca Armstrong takes only a life estate in this property, and from the reading of the entire will it is apparent that that was the intention of the testator.

2 Underhill, Wills 938, Sec. 686:

“A devise of land not expressly by terms of limitation, inheritance, or succession creating a fee may be raised to a fee simple if the testator gives the devisee an absolute and unrestricted power to dispose of the land. It is not meant to say that this is the case where an estate is expressly given for the life of the devisee.”

Again, in the same connection, the following language is used:

“But if the land be devised to a person expressly for life only, an estate for life only passes. The intention to create an estate for life shown by the express language which is employed will prevail over the inferences which may be created by the gift of the power; and if the devisee dies without exercising the power, the reversion of the fee will descend to the heirs of the testator or it will go to the devisee of the testator as a contingent remainder or executory devise if he has devised it over. In either event no estate in the land will pass under the power until it has been executed.”

In this case she has not exercised the power, and having failed to take under the will she cannot now, and never can, exercise that power. Therefore John Armstrong died intestate as to the fee in all these lands. And the widow, notwithstanding she has failed to take under the will, may take this land as heir at law under the provision of Sec. 4159 Rev. Stat.

In the land that was specifically devised to her in fee simple, to wit, the Ramsey farm, she is entitled to take only dower therein, and this plaintiff as next of kin takes under the statute of descent and distribution.

Entertaining this view the demurrer will be overruled and the defendant, Rebecca Armstrong, is given leave to answer the plaintiffs’ petition, setting up her rights and interest in these lands of which John Armstrong died intestate, as well as her dower interest in the Ramsey farm, or, if counsel desire it, the petition may be amended so as to present a separate cause of action as to the different parcels of land, and a decree may be entered finding that she is the owner of the intestate property and that she has only a dower interest in the property that was devised to her by the will of John Armstrong.

Motion for new trial will be overruled; exceptions noted.

Taggart, J., concurs.


author: GIFFEN, J.

text:
    NEGLIGENCE — STREET RAILWAYS — WITNESSES.
    [Hamilton (1st) Circuit Court,
    March, 1909.]
    Giffen, Swing and Smith, JJ.

      Cincinnati Interurban Co. v. Samuel E. Haines, Admr.
    1. Instruction not Defining Negligence Charged and Assuming Other Negligence Held Erroneous.
    In an action for negligence against a traction company, brought by the husband of deceased for the benefit of next of kin, based upon a collision between a trolley car and buggy in which deceased was riding with plaintiff, an instruction: “If you find that the collision was caused by the negligence of both the motorman and said husband, the plaintiff is nevertheless entitled to recover such damages as were sustained by the daughter although he would not be entitled to recover damages for his own benefit,” fails to state the manner in which the negligence of defendant caused the accident and includes negligence not alleged and is erroneous.
    2. Negligence in not Stopping Car or Reducing Speed upon Seeing a Buggy on the Track not Imputed.
    Negligent operation and excessive speed of a trolley car being alleged in an action against a traction company as the cause of a collision with a buggy, negligence cannot be imputed from the fact that, the car running at a reasonable speed with proper lookout, the motorman did not reduce its speed or stop- the car when he saw the buggy upon the track, regardless of intervening distance and opportunity of the driver to get the vehicle off the track before the car reached him; the doctrine of last chance is not implied in such a case.
    3. Burden of Proof, Defendant Having Option as to Defense of Contributory Negligence.
    The question of contributory negligence not being raised by the pleadings, or being raised no evidence offered thereon, the issue is as upon a general denial; but having elected to prove that contributory negligence caused the injury complained of, although unnecessary, the defendant was not prejudiced by a charge putting the burden of proof upon defendant to establish the contributory negligence.
    4. Question Leading Witness to Impeach Former Witness Erroneous.
    A question which leads a witness to answer by using the same words which a former witness has denied using is incompetent, and permitting such a question to be answered constitutes reversible error.
    5. Former Adjudication on Error Controls Second Review of Same Case.
    Special instructions identical with those approved either expressly or impliedly upon a former review of the cause will not be held erroneous on a second heaping of the same cause on review unless clearly erroneous. •
    Error to Hamilton common pleas court.

      Kinkead, Rogers & Ellis, for plaintiff in error.
    Peck, Shaffer & Peck and S. B. Hammel, for defendant in error.

      For prior decision see Cincinnati Interurban Co. v. Haines, 28 O. C. C. 443 (8 N. S. 77).

   GIFFEN, J.

The negligence averred in the petition is the moving of the car at a great and negligent rate of speed without keeping any proper lookout for persons or vehicles upon the street. The amended answer contains substantially a general denial and an averment that the injury and death of Jennie L. Haines were directly caused by the negligence and carelessness of Samuel E. Haines, which averment is denied in the reply. Verdict and judgment for plaintiff.

Special instructions numbered 2, 3, 4, 5 and 6, given at the request of plaintiff, are identical with those approved either expressly or impliedly by this court upon the former hearing of the cause, and unless clearly erroneous will not now be so held. While the definition of ordinary care and the right of the driver of a buggy upon a public street may not be in the most approved form, there was nothing in them calculated to mislead the jury to the prejudice of the defendant.

Special instruction No. 7 is as follows:

“This action is prosecuted by the plaintiff for the benefit of the next of kin of Jennie L. Haines, deceased, consisting of her husband and daughter. It is in evidence and not disputed that the husband drove the buggy in which deceased was riding at the time it was struck by the ear; and it is claimed by the defendant that he was guilty of negligence which resulted in the collision between the ear and the buggy. If you find that the collision was caused by the negligence of both the motorman and said husband, the plaintiff is nevertheless entitled to recover such damages as were sustained by the daughter, although in that event he would not be entitled to recover damages for his own benefit.”

The objection to this instruction is, that it does not state the manner in which the negligence of the defendant caused the collision, and includes not only a remote cause, but any negligence not charged in the petition. There was error therefore in giving it to the jury at the request of plaintiff before argument.

The alleged error in not giving the special instruction on the measure of damages requested by the defendant to be given before argument will not be considered, because it does not appear affirmatively that the instruction was in writing, and it does appear that in the general charge the damages were limited to the pecuniary loss of the husband and child. The same rule would not apply to instructions requested to be and actually given before argument, because m the absence of- any showing to the contrary, the presumption is that the court performed its duty under the statute by giving them in writing. Toledo, F. & N. Ry. v. Gilbert, 24 O. C. C. 181 (2 N. S. 432).

Objection is made to the following portion of the general charge:

“While the question of contributory negligence is not directly :raised by the pleadings, yet it is possible that in the consideration of the evidence you may find that both plaintiff and defendant were guilty •of negligence, and that the negligence of each contributed directly to the injury.

“The same rule as to burden of proof I have stated above applies m the case of the defense of alleged negligence of the plaintiff, except that the burden of proof is upon defendant to prove the negligence of the plaintiff and the fact that the injuries resulted directly therefrom. ’ ’

The claim is that the defendant pleaded no affirmative defense, •and therefore assumed no burden. The defendant might have relied •on its general denial, and pleaded no further, or having so pleaded •offered, no evidence in support of it, and the result would have been 'the same; but if it elected to prove that the negligence of the husband alone directly caused the accident, the burden, although unnecessary, was thereby assumed. The court did not intend, nor was it understood by the jury, that the defendant was required to prove the averment, if content to rest upon its general denial. At all events the defendant was not prejudiced thereby.

The court also charged the jury as follows:

“Even if the car was not .running at what would ordinarily be. •an unreasonable rate of speed at that hour and that place, yet if at whatever rate of speed it was running the motorman saw this buggy -on the track in time to have stopped his car or slowed up so as to have prevented the accident, it would have been his duty to do that, and if he carelessly or negligently failed to stop or slow up said car, and as .a result ran the buggy down, the defendant was guilty of negligence.”

. This charge assumes that the car may have been running at a reasonable rate of speed and that the motorman saw the buggy‘and was therefore keeping a proper lookout, whereby the two alleged acts ■of negligence were eliminated. The vice consists in imposing upon the defendant the duty of stopping or slowing the speed of the car when the motorman saw the buggy on the track, regardless of the distance and opportunity the driver had to get' off the track before the ear Teaehed him, or in holding it liable for negligence not charged in the petition, to wit: the failure to exercise due care.after seeing the peril in which the occupants of the buggy were placed. The first duty is not required by law and the second is not pleaded.

It may be that the statement that the motorman saw the buggy does not necessarily imply that he was aware of the danger, and hence the doctrine of “last chance” would not apply; but if not, then the duty to stop or slow the speed of the car was too broadly stated.

The explanation, if such it be, given by the court concerning special instruction No. 5 requested by defendant was not prejudicial,, and therefore no ground for reversal of the judgment.

There being no certificate of the trial judge that the bill of exceptions contains all the evidence, we are not required nor permitted to weigh the evidence for the purpose of ascertaining whether the amount, of the verdict is excessive.

There was no error in excluding the testimony offered as to width of space between the west rail and west curb on Lockland avenue, south of Cliff street, as it does not appear how far south or what, relevancy it had.

It is claimed the court erred in permitting the plaintiff to answer the following questions:

“Q. Now I will ask you, Mr. Haines, if the motorman of the south bound car, when he passed you, called out to you, ‘look out, boys, for the coming ear.’

“Q. Mr. Haines, when the motorman on the north bound car, after he had stopped, came to where you were, immediately after the accident, did he make use of these words ‘My God,’ he said, ‘I never saw you until I hit you, ’ ”

the claim being that there was an abuse of discretion in allowing such leading questions on direct examination.

Counsel for defendant say in their brief:

“"When witnesses for the defendant were on the stand they were asked on cross-examination by plaintiff’s counsel whether they had made the statements referred to in the questions above quoted, and they denied having made them. The purpose of putting the questions-to Mr. Haines was to impeach defendant’s witnesses.”

This is true only as to the second question, because the record shows that the statement in the first question was made by the witness himself in direct examination conducted by counsel for defendant. The rule in such ease is stated in Starkie, Evidence 169, as follows:

“■Where a witness is called in order to contradict the testimony «of a former witness, who has stated that such ami such expressions were used, or such and such things were said, it is; the.usual practice to ask whether those ■ particular- expressions were- used or those .-things were said, without putting the question in a general form by inquiring what was said. If this were not to be allowed, it is obvious that much irrelevant and inadmissible matter would frequently be detailed by the witness.”

It would seem from this statement of the law that there was no abuse of discretion in permitting Mr. Haines to answer the first question, but the second is of an entirely different nature, because it leads the witness to answer in words which the former witness has denied. Starkie, Evidence 170' it is said:

“Where a witness.-is called to prove, affirmatively what a witness on the other side has denied, as, for instance, to prove that on .some iormer occasion that witness gave a different account of the transaction, a difficulty may frequently arise in proving affirmatively that the first witness did make such other statement, without a direct question to that effect * * * and it seems that the consideration of mere convenience ought not to operate at all, where the contents of a particular document, of the details of a particular conversation, are material to the issue. ’ ’

In this case there could be no difficulty in proving affirmatively by Mr. Haines what words the former witness used, if his attention were directed to the particular subject-matter; but the most serious objection to the question is that the statement made by the former witness was not only material to the issue, but if true, determined the case in favor of the plaintiff. See, also, 2 Phillips, Evidence 893.

The case of King v. Wicks, 20 Ohio 87, 89; Runyan v. Price, 15 Ohio St. 1 [86 Am. Dec. 459], and Kent v. State, 42 Ohio St. 426, decide only that such testimony is admissible for the purpose of impeachment, and not that a leading question may be put.

While it is true as held in the third proposition of the syllabus in Evans v. State, 24 Ohio St. 458, 459: ‘ ‘ The mere fact that leading questions are improperly allowed on the examination of a witness, although allowed as of right, is not error for which the judgment will be reversed,” yet on page 463 it is said:

“The allowing or refusing of leading questions in the examination of a witness, must very largely be subject to the control of the court, in the exercise of a sound discretion. While we do not say that a case may not arise in which there may be such an abuse of discretion as to deprive the party of a fair trial, and thus call for the interference; of this court, it is.plain that the .present one is not of that character.”

It is difficult to conceive of a more extreme case than the one before-us. The plaintiff had in the examination in chief of Mr. Haines attempted to introduce the declaration of the motorman, but the court, properly excluded it because it was a mere recital of a past, transaction not binding on the defendant as an admission; and if competent and true was conclusive of the main issue in the case. Besides the statement in 'the question laying the foundation for impeachment and the-one put to Mr. Haines are not identical, although the same in substance, the former being, “My God, I didn’t see you until I hit you,” which in itself furnishes a .good illustration of the uncertainty and danger of leading a witness upon a matter so important and of which his own-, recollection is the best evidence.

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

Swing and Smith, JJ., concur.


text:
    CORPORATIONS — ERROR—FRAUD —LIMITATIONS OF ACTIONS.
    [Hamilton (1st) Circuit Court,
    December 19, 1908.]
    Swing, Giffen and Smith, JJ.
    George H. Stearns v. John H. Hibben Dry Goods Co.

    1. Circuit Court Follows Decision of General Term of Superior upon Retrial, in Former Court.
    An appellate term of the superior court being abolished by legislative act and its jurisdiction transferred to the circuit court, a decision by such appellate term in a case afterward coming to the circuit court will be-followed by that court, unless clearly erroneous.
    2. Misrepresentation or Concealment Necessary to Found Action for Fraud.
    It appearing that neither misrepresentation was made by the board of directors of a corporation upon which a stockholder relied to his prejudice,, nor any concealment by them of facts not recorded in the minutes, an action by the stockholder for recovery on the ground of fraud and concealment will not lie.
    3. Trust Barred in Six Years.
    If a trust was created by a resolution adopted by a board of directors of a corporation declaring a dividend, January 10, 1898, it terminated on or before June 30, 1899, and an action thereon is barred by the six year-statute of limitation.

      4. Failure to Make Prerequisite Demand does not Prevent Running or Statute.
    Notwithstanding a demand by a stockholder for his pro rata share of a. stock dividend is necessary before the beginning of an action by him for the recovery of such dividend, failure to make such demand doe» not suspend the operation of the statute of limitations.
    Error to Cincinnati superior court.
    The Hibben Dry Goods Company having determined to increase its. capital stock from $100,000 to $200,000, it was further decided that a stock dividend of $25 per share should be distributed to the holders of the old stock who had borne the'burden of founding the business. This, was done and thereafter the new stock was sold. George H. Steams was a purchaser of a block of the new stock, and subsequently learning of the distribution of a stock dividend, he commenced this action for-recovery of his pro rata share thereof. In his petition he alleges;-
    “Plaintiff says that the defendant, the John H. Hibben Dry Goods. Company, is a corporation created and existing under the laws of Ohio for the purpose of buying and selling dry goods, notions and furnishings, and is engaged in said business in the city of Cincinnati. That by the terms of its articles of incorporation said company has an authorized capital stock of $350,000 common stock, and $150,000 preferred stock. That all of the preferred stock has been issued and is outstanding, but that of the authorized common stock only $282,000 has been issued, and said company has $68,000 of such common stock still unissued. ■
    “Plaintiff further says that prior to the first day of July, 1897, he subscribed for one hundred shares of the common stock of said company, and paid therefor to said company the sum of $10,000. and in consideration thereof said company issued to him its certificate of stock dated July 1, 1897, showing that plaintiff was the owner of one hundred shares of the capital common stock of said company; and plaintiff then became, and e„ver since has been, the owner and holder of said one hundred shares.
    “Plaintiff further says that on the sixth day of October, 1897, he likewise subscribed and paid $5,000 for fifty additional shares of the common'capital stock of said company, and received a certificate of that date showing likewise that he was the owner of said fifty additional shares; and plaintiff has ever since been, and now is, the owner and holder of said fifty shares of capital stock.

      “By reason of his ownership of said 150 shares of common stock of the said, defendant, company plaintiff became, and ever since has been, entitled to share pro rata with all the other holders of common stock in any dividend or distribution of proceeds or assets made by the company.
    “But plaintiff says that notwithstanding the premises, the directors of said company, on or about the tenth day of January, 1898, finding that the company had on hand a surplus arising from the earnings of the company, without the knowledge or consent of the plaintiff, who is not, and never was, a member of the board of directors of said company, adopted a resolution directing the sum of $26,900 of said surplus be ‘divided among the stockholders holding stock prior to the last issue of stock to the $200,000 limit, ’ which included the plaintiff, all of whose stock was issued to him ‘prior to the last issue of stock to the $200,000 limit,’ and further ordering that ‘said amount, while belonging to said stockholders, and bearing 6 per cent interest, yet remain in said corporation or company as working capital, until such amount is voted free to the holders of said amount by the board of directors.’
    “And thereafter said directors on the thirtieth day of June, 1899, without the knowledge or consent of plaintiff, received from a committee a report that said amount of $26,900, amounting to $25 per share pro rata to each stockholder of record January 1, 1898, with 6 per cent interest to June 30, 1899, had been distributed to said stockholders, which said report was fraudulent and untrue, in that plaintiff was a stockholder of record to the extent of 150 shares prior to January 1, 1898, but no part of said $26,900 was distributed to him.
    “Plaintiff further says that as matter of fact no money other than the interest on the $26,900 mentioned in said orders was distributed to any of the stockholders, but that a stock dividend of 25 per cent of the common stock was by said directors made, and the certificate thereof issued to nearly all holders of the common stock at that time, each of such persons receiving a number of shares equal to 25 per cent of the shares previously held by him, and said defendant has regularly paid dividends upon the stock so issued to the holders thereof.
    “Plaintiff further says that instead of distributing said stock dividend of 25 per cent equally to all the common stockholders of said company, the defendant, by its said board of directors, wrongfully and fraudulently excluded this plaintiff from any participation in the same, and issued to plaintiff no shares of stock by way of dividend, and never paid him any dividends other than the regular cash dividends upon the original stock purchased by him as aforesaid, nor permitted him to share in the distribution of said surplus in any manner whatever.
    “Plaintiff further says that he had no.knowledge of the'.proceedings of said directors as to said 25 per cent stock dividend,' or of the issue of the certificates of said stock, or the payment of any dividend thereon, or of the fraudulent distribution of said surplus or any information whatever concerning the same, until the month of September in the year 1902, since which time plaintiff has frequently requested the president and directors of said company to correct tfie wrong so done him, and has demanded that they shall issue to him as they did to the other stockholders the 25 per cent additional stock on the 150 shares so as aforesaid held by him, and to pay the dividends upon such stock as have been paid to other holders of the same since the making of said stock dividend, with interest upon such dividends since the time they became due and payable, but plaintiff says that the defendant has refused, and still refuses, to take any steps or do anything towards issuing to him any additional stock as and for said dividend, or to make any payment of said dividend, or in any way compensate him for the same. ' •
    “Plaintiff further says that the defendant has on hand an ample surplus of earnings, and lawful power, by reason of the fact herein-before stated, to issue to the plaintiff a 25 per cent stock dividend upon the 150 shares of stock held by him.
    “Plaintiff further says that the defendant threatens to, and will, unless restrained by this ,court, sell and issue all the remaining unissued common stock of said company, which it is authorized to issue by virtue of its charter, and thereby deprive itself of power to issue to plaintiff the 37% shares to which he is entitled.
    “Wherefore, plaintiff prays that the defendant be restrained and enjoined by the order of this court from issuing any further or common stock until after it shall have issued to plaintiff the 37% shares aforesaid, or from taking any steps to deprive itself of the lawful power to issue the same and further that the defendant be required by mandatory order of this court to issue and deliver to plaintiff its certificate for 37% shares of common stock of the defendant company, and to pay to plaintiff the dividends or the interest on the same of the same amount as the dividends and interest paid the other common stockholders since the first day of January, 1898,. with interest upon such dividends from the date when they were declared. Plaintiff further prays that if, for any reason, it is found impracticable to order the issue of stock as aforésaid, that the court order an account to be taken to ascertain the value -of the said shares of stock to which plaintiff is entitled as aforesaid, and the amount of the dividends paid since the first day of January, 1898, with interest on each of said dividends from the time when due and payable, and that the court order and decree the payment of the aggregate shares, dividends and interest to the plaintiff by the defendant and for such other and further relief as the nature of the case and equity may require.”
    The defendant interposed a demurrer to the petition, setting up that the action was barred by the statute of limitations. Demurrer was overruled in 1906, and after trial the plaintiff was given a decree.
    On error to the general term of the superior court, and the judgment below reversed, it was held that the cause of action stated in the petition was barred by the statute of limitations, and that the trial court should have sustained the demurrer to the petition on that ground. The general term also found other errors in the record, and remanded the cause to special term for further proceedings.
    On retrial, in special term, the demurrer was sustained, and the plaintiff not desiring to plead further, judgment was entered for the defendant, to which error is now to this court.
    Peck, Schaffer & Peck, for plaintiff in error:
    A dividend being declared by a corporation immediately raises an obligation to pay each stockholder his pro rata share upon demand, without which an action cannot be maintained. Larwill v. Burke, 10 Circ. Dec. 579 (19 R. 449) ; Larwill v. Burke, 10 Circ. Dec. 605 (19 R. 513) ; Fuller v. Railway, 11 Dec. 574 (8 N. P. 605); State v. Railway, 6 Gill (Md.) 363; Bank of Louisville v. Gray, 84 Ky. 566 [2 S. W. Rep. 168]; Hagar v. Bank, 63 Me. 509; Kobogum v. Iron Co. 76 Mich. 498-[43 N. W. Rep. 602]; Bedford Co. v. Railway, 14 Lea (Tenn.) 525; Scott v. Railway, 52 Barb. (N. Y.) 45.
    The statute of limitations does not begin to run on a cause, requiring demand as a prerequisite, until after the demand is made. State v. Neivman, 2 Ohio St. 567; King v. Nichols, 16 Ohio St. 80; Keithler v. Foster, 22 Ohio St. 27; Townsend v. Eichelberger, 51 Ohio St. 213 [38 N. B. Rep. 207].
    Upon a dividend being made by any corporation, the ordinary practice and duty is to give notice to the stockholders; no notice being given to the plaintiff thereof, the action is not barred, but it is an action for relief on the ground of fraud in the misappropriation and distribution of a fund held in trust for the corporation. Western Re

      serve Bank v. Mclntire, 40 Ohio St. 528; Carlisle v. Foster, 10 Ohio St-198. '
    A party being a stockholder does not infer notice of the making of dividends. King v. Badlway, 29 N. J. Law '82.
    Omission to disclose what it has become a particular duty to do, is fraudulent concealment. Kelley v. Nealley, 76 Me. 71; Manufacturers' Sat. Bank v. Perry, 144 Mass. 313 [11 N. E. Rep. 81] ; Atlantic Bank v. Harris, 118 Mass. 147 ;■ St. Bornes v. Levee, 20 La. Ann. 381; Philadelphia, W. & B. By. v. Cowell, 28 Pa. St. 329 [70 Am. Dec. 128].
    The statute of limitations applies “in the case of a continuing and subsisting trust.” Where the directors of a company set aside a fund to be subsequently distributed, it constitutes a trust fund in the hands of the company. Le Blanc, Éx parte; 14 Hun/-8; affirmed, Le. Blanc, Ex parte, 75 N. Y. 598; LeBoy v. Insurance Co. 2 Edw. Ch. 657; Hunt v. O’Shea, 69 N. H. 600 [45 Atl. Rep. 480]; Hagar v. Bank, 63 Me. 509.
    W. A. DeCamp, for defendant in error:
    The action is one upon a contract not in writing, and the relation of stockholder to a corporation, with respect to a dividend, is that of debtor and creditor. After dividend has been declared the corporation owes the stockholder his pro rata share as a debt, and if it is not paid, the stockholder has a right of action in assumpsit for its recovery, and such a right is barred within six years, under Sec. 4981 Rev. Stat. Clark & Marshall, Corporations Secs. 517c, 522; Jackson v. Plankroad Co. 31 N. J. Law 277; Ellis v. Proprietors of Essex & Merrimack Bridge, 19 Mass. 243; Chaffee v. Bailway, 55 Vt. 110; Cook, Stockholders Secs. 527, 529, 542; Thompson, Corporations Sec. 2173; Winchester & L. Tpk. Co. v. Wickliffe, 100 Ky. 531 [38 S. W. Rep. 866; 66 Am. St. Rep. 356]; Hunt v. O’Shea, 69 N. H. 600 [45 Atl. Rep. 480]; Kane v. Bloodgood, 7 Johns Ch. (N. Y.) 90; Bills v. Mining Co. 106 Cal. 9 [39 Pac. Rep. 43].
    The fact that a claimant was not aware that he had a right to bring suit does not extend the time. State v. Standard Oil Co. 49 Ohio St. 137 [30 N. E. Rep. 279; 15 L. R. A. 145; 34 Am. St. Rep. 541]; Howk v. Mmnick, 19 Ohio St. 462 [2 Am. Rep. 413];. Williams v. Coal Co. 37 Ohio St. 583.
    Mere refernce to fraudulent transactions in a petition, does not, of necessity, - give character to an action as one grounded upon fraud. Maas v. Miller, 58 Ohio St. 483; Mosher v. Butler, 31 Ohio St. 188; Evans v. Alberts, 6 Dec. Re. 820 (8 Am. L. Rec. 350).

      Equitable as Well as legal causes of action, áre barred by the same statute of limitations. Carpenter v. Canal Co. 35 Ohio St. 307; Loffland y. Bush, 26 Ohio St. 559; Zieverinh v: Kemper, 50 Ohio St. 208 [34 N. E. Rep. 250] ; Combs v: Watson, 32 Ohio St. 228; Longwórth v. Hunt, 11 Ohio St. 194; Yearly v. Long, 40 Ohio St/ 34. " ■
    . ,. The exact point involved in' this casé was decided adversely to this plaintiff in error by the’ decision of thé general'term rendered in 1907 by unanimous court. This second writ of- error in the same ease is brought before this court because the legislature abolished the general term in the spring of 1908; and conferred upon this court the power to review the special term,decision. If this present petition in error raising- a point already decided by the general term had come before the general term the second- time, the judgment below would undoubtedly have been affirmed; and while this court, of course, is not bound by a decision of the general term, nor bound by the decisions of other circuit courts in the state, yet for the sake of harmony in the decisions this court might well take into consideration the fact that the former appellate court Which reviewed special term decisions had pronounced its judgment upon this point of law. In other words, this ease coming by successive appeals'to different tribunals, each of which was authorized to review the special term decision, the point which was adjudged in the first appeal should receive' the same construction on the second appeal for the sake of consistency and harmony of decision, if for no other reason.
   GIFFEN, J.

The ruling of the superior court in general term upon a demurrer should, when the case is transferred to this court, be followed unless clearly erroneous..

The petition discloses no misrepresentation by the' board of directors upon which the plaintiff relied to his prejudice, nor the concealment by them of any fact not recorded in the minutes, which, on demand, were open to inspection by the plaintiff as a stockholder.

Whatever be the- nature of the trust created by the resolution of the board of directors.on January 10, 1898, it terminated on or before June 30, 1899, more than six years before the commencement of the action.

Although a demand was necessary before beginning the action, the failure to make demand did not suspend the operation of the statute of limitations. Howk v. Minnick, 19 Ohio St. 462 [2 Am. Rep. 413]; Douglas v. Corry, 46 Ohio St. 349 [21 N. E. Rep. 440; 15 Am. St. Rep. 604]; Townsend v. Eichelberger, 51 Ohio St. 213 [38 N. E. Rep. 207].

Judgment affirmed.

Swing and Smith, JJ., concur.


author: GJFFEN, J.

text:
    MASTER AND SERVANT — PRACTICE.
    [Hamilton (1st) Circuit Court,
    January 30, 1909.]
    Swing, Giffen and Smith, JJ.

      Herancourt Brewing Co. v. Joseph Frank.
    1. Necessary to Allege Negligent .Selection op Dangerous Appliance or Failure to Warn Operator oe Danger in Use Thereof.
    A master is only liable for acts negligently done or omitted and so charged; hence, in an action against a brewing company for injuries to an employe resulting from the inhalation of the fumes, of wood alcohol in varnish used on the interior of beer casks; heátéd tó such a .degree as to make the varnish volatile and dangerous to use without an appliance to protect the user, .it is necessary to allege that the varnish used was negligently selected from others in' the market) or that the plaintiff negligently failed to warn him of the-danger of using it;
    2. Place to Work not Furnished by Master when Servant’s Work Includes the Selection Thereof.
    A place to work, not in any sense permanent, in which surrounding conditions were constantly changing, the furnishing and preparation of which were a part of the work necessary for a Servant to perform, is not a place furnished by the master.'
    3. Measure of Duty of Master Determined by What he Would Know by Exercise of Ordinary Care not What he Ought to Know. -
    The measure of duty required of a master is ascertained by what he would know by the exercise of ordinary care in the premises, not what he “knew or in the exercise of ordinary care ought to have known” of the dangers of the employment.
    4. Dealer in Brewers’ Supplies not an Expert as to Fact of Certain Spirits Being Poisonous.
    A dealer in brewers’ supplies and technical machinery, being neither a chemist nor physician, is not qualified to testify as an expert as ■ to whether certain spirits used in varnish are poisonous if applied as a compound of shellac in the enclosed area of a brewer’s vat.
    E. Directing Verdict on Finding of Facts Alone not Constituting Negligence, Error.
    A special instruction which directs a verdict for plaintiff in a negligence case in the event that the jury find certain facts leading up to essential fact constituting the negligence charged, but which alone do not amiount to negligence as charged, is erroneous.

      «. Questions Requiring Argumentative Answer and Appealing to Prejudice ■of Jury Condemned.
    Questions requiring an argumentative answer, or whicli appeal to the • prejudice, .of . th;e jury, by introducing irrelevant facts,, are not only erronéous, but should draw from the’ court a caution against any further attempt to influence the jury in that manner.
    7. Failure to Attach Exhibits to Bill of Exceptions at Time of Signing and Allowance not Cured by Subsequent Attachment.
    Where exhibits are found to be missing from a bill of exceptions at the time it is offered for signature, the time for signing should be extended under the statute, rather than go to the upper court with an incomplete bill, or attempt to make it complete by subsequently attaching the exhibits without the consent or knowledge of the trial judge.
    Error to Hamilton common pleas court.
    Robertson & Buchwalter and Roettinger & Gorman, for plaintiff in error.
    Stricker & Johnson, for defendant in error.

      See also decisions: Cincinnati superior court, special term, Frank v. Brewing Co. 18 Dec. 32; general term, reversing, Frank v. Brewing Co. 18 Dec. 601; latter affirmed by Supreme Court, without report, Herancourt Brewing Co. v. Frank, 80 Ohio St. 724.

   GJFFEN, J.

The negligence of the defendant brewing company is charged in the second amended petition as follows:

“That defendant negligently, carelessly and in total disregard of its duty to plaintiff, failed and omitted to supply or offer to supply the plaintiff with such mask or head-protector or any other appliance or means to avoid the harmful and dangerous consequences connected with the use of said varnish and that had the plaintiff been supplied with such mask, helmet or head-protector, he would have escaped all the injuries herein complained of.”

Also as follows:

“That he is permanently and incurably blind, all of which was «directly caused by, and is due to, the use of said varnish or shellac as aforesaid.”

The other allegations show what duty devolved upon the defendant, and lay the foundation for the specific charge of negligence. There is no allegation that the varnish used was negligently selected from among others in the market, and so far as the pleading discloses was the only materia? suitable for coating the inside of beer casks; nor is there any averment that the defendant negligently failed to warn plaintiff of the danger. The defendant can be held liable only for acts .negligently done or omitted and so charged. New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130]; Baltimore & Ohio Ry. v. Lockwood, 72 Ohio St. 586 [74 N. E. Rep. 1071].

The- duty of a master to provide a “safe place” in which to work is not involved under the pleadings or the evidence; and the claim of counsel may he aptly answered in the language of the Supreme Court in the case of Coal & Mining Co. v. Clay, 51 Ohio St. 542 [38 N. E. Rep. 610; 25 L. R. A. 848], at page 558:

“Here the place was not furnished as in any sense a permanent place of work, but was a place in which surrounding conditions were constantly changing, and instead of being a place furnished by the' master for the employes within the spirit of the decisions referred to, was a place the furnishing and preparation of which was in itself part of the work which they were employed to perform.”

The first special instruction to the jury given at the request of plaintiff is in substance, if you find from the evidence that plaintiff had no knowledge of the danger, that the defendant knew or ought to have known the dangers, yet failed to warn the plaintiff thereof, and in consequence thereof plaintiff sustained the injuries complained of, your verdict must be for plaintiff.

These facts were all necessary to be found by the jury as leading, up to the essentia] fact constituting the negligence charged, to wit, the failure to supply the plaintiff with a mask or other means to avoid the danger of using the varnish, but did not alone amount to negligence as charged. It is error to give this charge; but it will no doubt be claimed that it was not prejudicial, because the jury found, in answer to an interrogatory that the failure to provide masks and ■ properly ventilate the casks caused plaintiff’s blindness. They do not, however, find that such failure was due to negligence of the defendant. Another interrogatory requiring a statement of the negligent acts of the defendant causing plaintiff’s blindness was submitted to the court, but refused. Why, does not appear. We think it was a proper question to be submitted to the jury; but the error seems not to be urged in the petition in error either specifically or generally.

Special instruction No. 5 given at the request of the plaintiff is not accurate in stating the duty of defendant, to wit, “the defendant knew or in the exercise of ordinary care ought to have known of such ■dangers. ’ ’

What a master ought to know is the measure of his duty in the premises, but that duty is ascertained by what he would know by the exercise of ordinary care.

The witness, J. A. J. Mager, was neither a chemist nor a physician, and had no experience in varnishing beer casks, but was in the business of brewers’ supplies and technical machinery. It seems to us therefore that he was not qualified as an expert to answer such questions as the following:

“State, if you know, whether or not.Columbian spirits is poisonous, if used or applied as a compound to shellac in an enclosed area such as a brewer’s beer vat?”

Besides it was a.precise issue of fact to be determined by the jury from the evidence. Fowler v. Delaplain, 79 Ohio St. 279 [87 N. E. Rep. 260].

William Forn, a brewmaster, was asked by counsel for plaintiff in his examination in chief the following question:

“ What, would you say, as to the necessity of heating the casks until they are so hot on the inside you can feel the heat on the outside with your bare hand? Is.it necessary the- casks he heated to such a degree before the operator applies the varnish? There being, if, you please, no ventilation in the cask, save a manhole at the bottom one to two feet in diameter and a bunghole at the top two inches in diameter, and the yarnisher not being supplied with a mask but a moistened sponge worn around the mouth and nose?”

It is hardly necessary'to ask what relation the bunghole, the'manhole, the absence of. a mask, and the presence of a sponge over the mouth and nose of the varnisher have to the necessity of heating the-cask; but it is pertinent to inquire why encumber the record with such questions until the bill of exceptions reaches the enormous bulk of ten hundred and thirty-six type-written pages, and why appeal to the passion and prejudice of the jury by an irrelevant question put to a witness? The court should not only have sustained the objection to the question, but cautioned counsel against any further attempt tO' influence the jury in that manner.

The same witness, was asked the following:

“Why do you use pure grain shellac varnish and not Columbian spirits varnish?”

His motive or reason for doing the act was not in issue, nor relevant to any fact in issue, and the question called for an argumentative answer, which was given as follows:

“Because I know the dangers of wood alcohol and Columbian spirits; regardless of the fact that we can make a cheaper varnish, we do not employ Columbian spirits or wood alcohol.”

We have not weighed the evidence to ascertain whether the verdict is sustained by sufficient evidence, because the trial judge has certified that the bill of exceptions does not contain all the evidence, in that, two exhibits are wanting. At the time the bill was signed it was discovered that these exhibits were not attached and the judge so certifies.. They were soon after found in the custody of the clerk of the court, and attached to the bill without the consent of the judge and ¡after the-time for signing the bill .had expired. While it is not the duty of the trial judge to prepare a bill of exceptions, yet under the circumstances the better course would have been to extend the time under the statute-for allowing and signing the bill, so that counsel, who were without blame, could search for the missing exhibits. With the record incomplete, and a want of power to weigh the evidence, we are constrained to hold that the errors in giving special instruction- No. 1, and in admitting incompetent and irrelevant testimony were prejudicial,. for-which the - judgment is reversed and the cause remanded for a new-trial.

Swing and Smith, JJ., concur.


author: SMITH, J.

text:
    CRIMINAL LAW — SUNDAY LAWS.
    [Hamilton (1st) Circuit Court,
    December 19, 1908.]
    Swing, Giffen and Smith, JJ.
    Lutkehaus v. Mt. Healthy (Vil.).
    Failure to Affirmatively Prove Negative Averment in Sunday Law Prosecution Affidavit not Ground for Reversal.
    A conviction for keeping a place where intoxicating liquors are sold open on Sunday, supported by .direct evidence showing the place to be a saloon in which intoxicating liquors were usually sold on other days of the week, will not be reversed for failure to prove that the place was not a regular drug store, in the absence of evidence upon the exception in the affidavit to the contrary.
    The plaintiff in error was convicted below of keeping his saloon open on Sunday.
    Cogan & Williams, for plaintiff in error.
    O. N. Kinney, for defendant in error:
    Cited and commented upon the following authorities: Wightmm v. State, 10 Ohio 452; State v. TJlm, 8 Dee. 677 (7 N. P. 659) ; Marble'
      v. Akron, 14 Ohio 586; Burckholter v. McConnellsville, 20 Ohio St. 308; Bergman v. Cleveland, 39 Ohio St. 651; Piqua v. Zimmerlin, 35 OhioíSt. 507; Nelson v.-Berea (Vil.)-, 12 Ciro.-.free, 329 (21 R. 781) ; Strattss v. Conneaut (Vil.), 23 Circ. Dec. 320 (3 N. S. 445); Effinger v. State, 6 Circ. Dec. 417 (9 R. 376) ; Moliior v. State, 3 Circ. Dec. 445 • (6 R. 263) ; State v. Heibel, 54 Ohio St. 321 [43 N. E. Rep. 328]; : Emery v. Elyria, 11 Dec. 316 (8 N. P. 208). •
   SMITH, J.

In the trial of this case before the mayor no evidence was offered by the plaintiff in error in defense, and we cannot say that he was not proven guilty beyond a reasonable doubt, unless, as claimed by plaintiff in error, no evidence was offered upon the exception in the affidavit that the room claimed to have been open on Sunday was not a regular drug store.

In the absence of evidence to the contrary, we think the testimony offered by the state tended to prove the exception, as there was direct evidence that the place that was open was a saloon, and plaintiff in error sold intoxicating liquors therein; thereby showing it to be a place where on other days of the week intoxicating liquors are usually sold and thus tending to prove that the place was not a regular drug store.

•We cannot consider the validity of the ordinance, inasmuch as it does not appear upon the record. Nelson v. Berea, 12 Circ. Dec. 335 (21 R. 781).

Judgment affirmed.

Swing and Giffen, JJ., concur.


text:
    COURTS.
    [Hamilton (1st) Circuit Court,
    January 25, 1909.]
    Swing, Giffen and Smith, JJ.
    Charles Derrick, In re.
    1. Jurisdiction of Police Justice.
    A police justice of a village, appointed by virtue of authority conferred by Sec. 1831 (Lan. 3365a; B. 1536-884a) Rev. Stat., has under the present statutes of Ohio the same jurisdiction as is conferred upon mayors of such corporations.

      2. Police Justice a De Facto Offices.
    Section 1831 (Lan. 3365a; B. 1536-884a) Rev. Stat. bestowing jurisdiction of mayors upon police justices the court believes to be unconstitutional, but inasmuch as the’question , of, its constitutionality, .cannot be raised in a collateral proceeding, the police justice in this case is treated as a de facto officer whose acts are valid as between the public and third persons.
    A. Foster, H. G. Frost and A. H. Morrill, for the writ.
    Edwards Ritchie and J. E. Robinson, contra.
   SMITH, J.

The agreed statement of facts sets out that on May 29, 1908, Edward Woodruff, the police justice of the village of Wyoming, appointed under Sec. 1831 (Lan. 3365a; B. 1536-884a) Bev. Stat., caused the arrest of the said Derrick for an alleged violation of the Sunday common labor law;, which is claimed to have occurred at the defendant’s place of business in the city of Cincinnati, at least a distance of ten miles from the boundary of the village of Wyoming; whereupon this application is made to the court for the release of said Derrick.

In support of this application it is urged—

1. That the right of the police justice to try the defendant, Derrick, does not exist, because the offense for which he, was arrested was, not committed in the village of Wyoming, in which the police justice was appointed, but was committed in the city of Cincinnati, ten miles distant from the boundary line of said village, for the reason that said police justice has jurisdiction only over violations of ordinances of his own village.

2. That the legislature having repealed Sec. 1831 without repealing Sec. 1832, this left the latter section without any full force and effect and that the result of the repeal of the main statute was to repeal the following statute with which it was connected; and when again the legislature re-enacted Sec. 1831 without specifically re-enacting Sec. 1832, this brought upon the statute books only the one Sec. 1831, the latter section not having been expressly re-enacted.

3. That Sec. 1831 is unconstitutional for the reason that it contravenes Art. 4, Sec. 10 and 15 of the constitution.

We are of the opinion and agree with counsel for the applicant that the right of the police justice to try the defendant does not exist under Sec. 1831, unless See. 1832 is in force, as the offense was not committed against an ordinance of the village of Wyoming and the jurisdiction ■of the justice could not be extended to the limits of the county. The words, “in all such cases,” contained in said law must refer to the words, “violation of ordinances.” We think this view is sustained by a proper construction of the case of Morgan v. Tighe, 4 Circ.Dec. 470 (12 R. 719).

This being so, is Sec. 1832 in full force and effect, thus making the-jurisdiction of the police justice in such matters the same as the mayor of a village and consequently coextensive with the county as provided in Sec. 1824 (Lan. 3357; B. 1536-876) Rev. Stat.

An examination discloses that Secs. 1831 and 1832 were passed as one (69 O. L. 192), and later in the revision of statutes were separated and classified as two distinct sections as Nos. 1831 and 1832. . That the first .was repealed (96 O. L. 105)- and subsequently re-enacted (98 O. L. 159), thus leaving upon .the statute book Sec. 1832. It is clear..that having repealed Sec. 1831, Sec. 1832 was of no force or effect, as the office to which it related did not exist, but afterwards when Sec. 1831 was re-enacted, Sec. 1832 still being in .existence, it was not necessary to re-enact the latter,as the force and effect of the statute was at once restored and its application to Sec. 1831 was again available.

While it is true that a statute containing a clause repealing all other laws within its purview operates to repeal all other legislation relating to the same subject, yet we think that where the act repeals expressly a particular act. or statute, this shows the intention of the, legislature to allow the remaining acts or statutes to stand although the same might be inoperative.

The claim that the law is unconstitutional we believe is well taken, but we are of the opinion that this question cannot be raised in a collateral proceeding such as this.

It would seem that the police justice is an officer de facto at least and the acts of such an officer performed before the unconstitutionality of the law has been judicially determined are valid as respects the public and third persons as the acts of an officer de facto. State v. Gardner, 54 Ohio St. 24 [42 N. E. Rep. 999; 31 L. R. A. 660]; Strang, Ex Parte, 21 Ohio St. 610.

The discharge of the defendant is denied.

Swing and Giffen, JJ., concur.


text:
    ASSIGNMENTS — RECEIVERS.
    [Hamilton' (1st) Circuit Court,
    January 23, 1909.]
    Swing, Giffen and Smith, JJ.
    Steinbicker Bros. v. Kuhn et al.
    Receivers Responsible fob Money Paid Them prom Debtor to Drawee op Order-Receivers, having accepted payment of money from a debtor without the consent of the draweé of an order previously made on such debtor, become personally responsible to such drawee for the amount of the order.
    Error to Hamilton common pleas court.
    Reemelin & Hosbrook, for plaintiff in error
    O. W. Kuhn, for defendant in error:
   GIFFEN, J.

The cause of action stated in the petition is for money had and received by the defendants for the use of the plaintiff and arose in the following manner: The defendants as receivers were indebted to plaintiff for materials furnished and labor performed, and executed and delivered to plaintiff the following order:

“January 26, 1905.
“Mr. Leo. J. Oehlers, City.
“Dear Sir: Please pay to Steinbicker Bros, the sum of $318.94 due them for building tables at the Armory, out of the amount due me for services rendered, etc., as caterer Majestic Hotel Co. and agent of the receivers of said hotel.
“Oscar W. Kuhn,
“F. L.'Emmert,
“Receivers Majestic Cafe.”

Afterwards when a settlement was' had between Mr. Oehlers and the defendants as receivers the former said: “I must hold out some money for Steinbicker Bros., but I don’t know the.amount.” Thereupon Mr. Kuhn, in the presence of defendant Emmert, said:

“We are under bond, under $10,000 bond, we are personally responsible for that anyway because we signed that agreement and the money was paid to us. We have got to stay, or we will pay Mr. Stein-bicker the minute he presents his bill.”

Mr. Oehlers then paid to the defendant the entire amount due to tbem originally as receivers. The plaintiff received $100 from the defendants and sues for the balance.

The order thus given to plaintiff was an equitable assignment to-him of a part of a particular fund, which could not be revoked without, his consent. 21 Am. & Eng. Enc. Law 940.

The money received by the defendants was not, to the extent of the: order, due to them in their official capacity, nor, according to the statement made at the time by Mr. Kuhn, received in that capacity; but it was paid by the drawee to the defendants for the use of the plaintiff.. They had no right as receivers to accept the money without the consent of the payee of the outstanding order; nor had the drawer any right to-so pay it. Hence defendants became personally liable and the court erred in sustaining the motion of defendants, at the conclusion of plaintiff’s evidence, for an instructed verdict.

Judgment reversed and cause remanded for a new trial.

Swing and Smith, JJ., concur.


text:
    WILLS.
    [Hamilton (1st) Circuit Court,
    December 5, 1908.]
    Swing, G-iffen and Smith, JJ.
    Mary E. Seal v. Herman P. Goebel, Exr., et al.
    1. Manifest Error in Verdict in Will Contest May be Corrected.
    A jury in a will contest having inserted in its verdict the date of the execution of the will as the date of probate, the record showing that but. one paper writing purporting to be the last will of decedent was’ exhibited, which were the date so given correct the right. to contest would be-barred, the court may treat the erroneous date as surplusage, enter judgment upon the verdict correcting the error and establishing the validity of the will.
    2. Declarations by a Legatee Held Inadmissible to Prove Will Contrary to-Testator’s Intentions.
    In a will contest declarations by a party to the record, who is a legatee-with others under the will, are inadmissible to prove that the will was. contrary to the intentions of the testator or was procured by undue influence.
    3. Burden of Proof is on Contestants to Outweigh Evidence of Proponents and Presumption of Probate.
    In a will contest case the jury should be instructed that the evidence of the contestants, in order to warrant the setting aside of the will, should not only outweigh the evidence adduced by the defendant but also the-presumption arising from the order admitting the will to probate.

      Error to Hamilton common pleas court.
    W. B. Stier and J. C. Hermann, for plaintiff in error.
    Jacob Shroder, for defendant in error.
   SMITH, J.

At the trial of this case, which was a suit brought to contest the validity of the will of Hannah. D. Weber, deceased, the jury returned its verdict finding that the paper writing shown to them and admitted to probate in the prohate court of Hamilton county, Ohio, on May 15, 1900, wras the valid last will and testament of the said Hannah D. Weber, deceased.

In this verdict there was a mistake, in that said will was admitted to probate upon May 1, 1905, instead of May 15, 1900, the latter date being the date of the execution of the will.

A motion for a new trial being filed the same was overruled. The court thereupon proceeded to enter a judgment upon the verdict so rendered, and in its judgment found the foregoing mistake to exist therein, and adjudged that the paper writing shown to the jury in the cause and admitted to probate in the probate court of Hamilton county and executed by said Hannah D. Weber, on May 15, 1900, purporting to be her last will and testament was. her valid last will and testament.

We see no error in the court entering this judgment. The court did not undertake to amend the verdict but entered its judgment construing the verdict. The petition alleges that Hannah D. Weber died on or about. April 20, 1905, and that she executed a paper writing purporting to be her last will and testament upon May 15, 1900. In the light bf the record the description of the will as to its probate in the verdict was erroneous, but as the jury was impaneled to pass upon the validity of the last will and testament of Hannah D. Weber which was exhibited to them, the fact that the date of its execution was inserted in the verdict as the date of its probate, is of no consequence.

The entire record extrinsic of any and all evidence shows there was but one paper writing purporting to be the last will and testament of Hannah D. Weber submitted to the jury for its consideration and this paper writing was declared by the jury to be her valid last will and testament.

If the verdict is to be construed as involving the will probated May 15,1900, then the action is barred and such claim can avail nothing to the plaintiffs in error. We are therefore of opinion that the court had the right to consider the date of execution in the verdict, as relating to the date of probate, mere surplusage and enter this judgment as shown by the record. Muller v. St., Louis Hospital Assn. 73 Mo. 242.

As to the proposed evidence in reference to statements made by •Judge Goebel to Mrs. Seal, same was properly ruled out by the court. We think it well settled that declarations of a party to the record of a ease, who is a legatee with others under the will, in a suit to contest the will, are inadmissible to prove that the will was contrary to the testator’s intentions or was procured by undue influence, other parties or legatees being affected thereby. Thompson v. Thompson, 13 Ohio St. 356; Stull v. Stull, 96 N. W. Rep. 196 (Neb.); Myer’s Will. In re, 184 N. Y. 54 [76 N. E. Rep. 920]; Kennedy’s Will, In re, 167 N. Y. 164 [60 N. E. Rep. 442],

• We think there was no error in excluding the proposed evidence of Mr. Bettinger as to declarations made by Judge Goebel. The statements sought to be proved were not made while Mrs. Weber was present nor while she was engaged in the making of her will. It related rather to what he, Judge Goebel, had done and as to the proposed evidence with regard to Mrs. Weber coming to the office with memoranda for the purpose of having her will drawn. Mr. Bettinger testifies that at the time the will was drawn he was not constantly in his office and •clients might come in and he not be advised of it. •

No error was committed by the court in giving the special charges •asked by defendants in error and refusing those asked by.plaintiff in error nor in the general charge of the court. Stull v. Stull, supra.

In the light of the judgment of the Supreme Court in the case of Hall v. Hall, 78 Ohio St. 415, the plaintiff in error has no ground of complaint as against the general charge of the court, for it was not only the duty of the court to have instructed .the jury as it did, upon the burden of proof and the preponderance of the evidence, but the jury should also have been told that the evidence of the contestant should not only outweigh the evidence adduced by the defendants but also the presumption arising from the order of the probate court admitting the will to probate as the valid last will and testament of Hannah D. Weber.

There being no error in the record, the judgment of the court below will be affirmed.

Swing and Giffen, JJ., concur.


text:
    INTOXICATING LIQUORS.
    [Tuscarawas (5th) Circuit Court,
    May 21, 1909.]
    Donahue, Taggart and Yoorhees, JJ.

      Walter Scheu v. State op Ohio.
    1. Manager Liable fob Sales of Intoxicating Liquors in Rose Local Option Law Territory from a Brewery During his Absence.
    Sales of intoxicating liquors in “dry” counties in violation of act. 99 O. L. 35, the “Rose county local option law,” in this case, beer sold from a brewery in quantities of one gallon or more, in conformity to general instructions by the manager, make him liable personally for such unlawful sales notwithstanding his absence from the brewery at the time the sale was made.
    2. Sales of Intoxicating Liquors' at Manufactories in Wholesale Quantities in Local Option Counties Illegal.
    Since Sec. 3 of act 99 O. L. 36, the “Rose county local option law," furnishes its own exceptions to' its operation, exceptions made in favor of sales of intoxicating liquors at the manufactory “in quantities of one gallon or more,” etc., by Sec. 8 of act 84 O. L. 224, the Dow law, do not apply and cannot be read into the later act, to permit such sales in local option counties.
    [Syllabus approved by the court.]
    Error to Tuscarawas common pleas court.
    A. D. Metz, J. F. Greene and J. D. T. Bold, for plaintiff in error.
    J. F. Wilkin and D. R. Wilkin, for defendant in error:
    Cited and commented upon the following authorities: Senior v. Ratterman, 44 Ohio St. 661 [11 N. E. Rep. 321]; People v. Hinchman, 75 Mich. 587 [42 N. W. Rep. 1006; 4 L. R. A. 707]; Commonwealth v. Mandeville, 142 Mass. 469 [8 N. E. Rep. 327]; Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 574]; Stevens v. State, 61 Ohio St. 597 [56 N. E. Rep. 478]; Black, Interp. Laws 171; People v. Wood, 71 N. Y. 371; Stockton v. Railway, 50 N. J. Eq. 52 [24 Atl. Rep. 964; 17 L. R. A. 97]; Pennsylvania Ry. v. Riblet, 66 Pa. St. 164 [5 Am. Rep. 360]; Coosaw Min. Co. v. South Carolina, 144 U. S. 550 [12 Sup. Ct. Rep. 689; 36 L. Ed. 537] ; State v. Fertilizer Co. 24 Ohio St. 611; Hanoff v. State, 37 Ohio St. 178 [41 Am. Rep. 496]; Hartshorn v. State, 29 Ohio St. 635.

      Affirmed, Scheu v. State, 56 Bull. 4; 83 O. S. 000.

   DONAHUE, J.

The plaintiff in error brings this proceeding in this court to reverse the judgment of the common pleas court rendered in an action wherein the state of Ohio prosecuted Walter Scheu. for the illegal sale of intoxicating liquors.

There are two questions made in this record, and the one we shall notice first is the contention that Walter Scheu is not responsible for the sale of liquor made by Mr. Murphy,' one of the clerks. The last question asked Walter Scheu on cross-examination is as follows:

“I want to ask you Mr. Scheu, whether or not this beer sold to George Kuemerly, although made in your absence, was made in conformity to general instructions given by you to Mr. Murphy?” Ans. “Yes, sir.”

But for the last question and answer, there is nothing in the record that would show Mr. Scheu is responsible for this sale. True, the record shows he was the manager of this brewery, but the policy of the brewery company was determined by its directors, and up to this time Mr. Scheu had not been connected by the evidence with the sale,, but this answer shows that, if this sale is illegal, Mr. Scheu is equally responsible- with Mr. Murphy.

The important question, however, and the one in which ■ counsel on both sides are particularly interested, is whether this brewing company may sell at its brewery, beer manufactured there, 'in quantities of a gallon or more, notwithstanding the local option election in this county resulted in a majority against the sale.

This is a question of considerable importance throughout the state.

Looking to the law itself we find no exceptions made in favor of manufacturers or brewing companies any more than any other company or individual. Yet it is insisted that Sec. 8 of the Dow law, 84 O. L. 224, applies, and I take it that counsel’s idea of “quantities of a gallon or more” is suggested by the language of Sec. 8 of the Dow law, which is as follows:

“Trafficking in intoxicating liquors, as used in this act, means the buying or procuring and selling of intoxicating liquors otherwise than upon prescription issued in good faith by reputable physicians in active-practice, or for exclusively known mechanical, pharmaceutical or sacramental purposes, but such phrase does not include the manufacture of intoxicating liquors from the raw material, and the sale thereof at the manufactory, by the manufacturer of the same in quantities of one-gallon or more at any one time. ’ ’

Now if that obtains in this case, of course this sale was not illegal. And if nothing.appeared to the contrary in the Rose local-option law itself, we would be disposed to construe all of these sections together-giving effect to every act and parts of acts related to the common subject, but the Rose local option law leaves nothing to construe in this respect, but in plain and unequivocal language provides its own exceptions. Section 3 of that act is as .follows:

“The phrase ‘intoxicating liquors’ as used in this act shall be construed to mean any distilled, malt, vinous or any intoxicating liquor whatever. But nothing in this act shall be construed to prevent the selling of intoxicating liquors at retail by a regular druggist for exclusively known medicinal, pharmaceutical, scientific, mechanical or sacramental purposes; and when sold for medicinal purposes it shall be sold only in good faith upon a written prescription, signed and dated in good faith by a reputable physician in active practice and the prescription used but once.”

This is a re-enactment of the greater part of Sec. 8 of the Dow law. If there could have been any implication whatever that See. '8 of the Dow law was to obtain, then it would be useless .to reiterate this language in See. 3. It is clearly the intention of the legislature to limit the exceptions to those found in Sec. 3 in the Rose act, and not that the exceptions in the Dow law should apply. That is the language of the law, and it is the duty of the court .to interpret the law ,as it is written without adding to or taking from and without attempting to decide upon the practicability or advisability of it.

In the case of Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 574], the Supreme Court say:

“But the intent of the lawmakers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the lawmaking body, there is no occasion to resort to other means of interpretation.”

We think this language is as plain and clear as it is possible to write the English language; there is no possibility of being mistaken about it. The law, as it is written, prevents the sale under any and all other circumstances, except the circumstances named in Sec. 3 of the act, and any attempt to enlarge these exceptions would be nothing short of judicial legislation.

We are not unmindful of the argument of counsel that such a construction jeopardizes or perhaps even makes worthless, property of enormous value used in the manufacture of this product, but that argument cannot affect the correct interpretation of the law, and is proper only for the purpose of calling our attention to the seriousness of the question presented, and that a conclusion that would work such result ought not lightly to be arrived at, but this question is hardly an open one- in Ohio. Construing similar legislation, the Supreme Court in Stevens v. State, 61 Ohio St. 597 [56 N. E. Rep. 478], say:

“The sale pf beer as a beverage, in any quantity, whether by the manufacturer or not,. is prohibited in a township, where the people have availed themselves of the provisions of the local option law.”

Let us change that language by substituting the word “county” for “township.” “The sale of beer as a beverage, in any quantity, whether by the manufacturer or not, is prohibited in a county where the people have availed themselves of the provisions of the local option law.” It is clear to us that the Supreme Court has passed upon substantially the same statute as the one in question and has held against the contention of the plaintiff in error.

This court is of the opinion that the judgment of the common pleas court must be affirmed.

Taggart and Voorhees, JJ., concur.