text:
    DIVISION BETWEEN RAILROAD COMPANIES OF COST OF CROSSINGS.
    Circuit Court of Lucas County.
    Lima & Toledo Traction Co. v. Toledo Railway & Terminal Co. et al.
    Decided, July 7, 1907.

      Crossings — By Tracks of Steam, Street, • Electric or Interurhan Roads Outside of Corporate Limits — Construction of Section 3333-1 with Reference to Division of Cost — Jurisdiction of the Court — Statute Applies to all Crossings — Company First on the Ground Without Special Rights.

    1. Section 3333-1, providing for determination by the courts of the mode and manner whereby one railway shall cross the tracks of another outside the limits of a municipality and the apportionment of the cost of construction and maintenance thereof, applies to all crossings whether at or above or below grade, where the companies affected can not agree between themselves as to the mode or manner of dividing the expense of such crossings.
    2. A railway which is established and in operation acquires, by reason of having come upon the ground first, no proprietary rights affecting a division of the cost of a crossing, which are superior to those of a later company seeking to cross the road first constructed; and where the crossing will be equally serviceable to both companies, the expense connected therewith should be equally divided between them, notwithstanding the crossing will be of no special benefit to the old company.

      Smith & Beckwith and Cable & Parmenter, for plaintiff.

      C. Q. Cunningham, for defendants.
    Parker, J.; Haynes,-J., and Wildman, J., concur.
    Appeal from Lucas Common Pleas Court.
   This is a proceeding brought by the plaintiff against the defendant under the act of May 10, 1902 (95 O. L., 530), entitled “An act to provide for one steam railroad crossing another steam railroad”; and particularly Section 1 of that -act, as amended on April 13, 1904 (97 O. L., 548; Section 3333-1, R. S.)

• The plaintiff is a company incorporated for the construction and operation of an electric railroad. The defendant company owns and operates a steam railroad. The railroad of the plaintiff company is to extend from the city of Lima in Allen county, Ohio, to the city of Toledo, Ohio; and.the tracks of the two companies will cross at a point about a mile southwest of the city limits. The defendant company operates a belt line which extends around the city of Toledo.

In its application the plaintiff, among other things, says that south of the point of crossing the railway of the plaintiff is located and being constructed along the southeast side' of and parallel to the railroad of the Wabash Railroad Company, extending in a northeasterly and southwesterly direction, and, if continued in said direction, it will cross the railroad of the defendants near where the railroad of the defendants and that of the Wabash Railroad Company -cross at grade. The plaintiff says that about seventeen hundred feet north of where the railway of the plaintiff crosses the railroad of the defendant, plaintiff’s railway will also cross a highway and the tracks of the Toledo Urban & Interurban Railway Company, which said highway and said interprban railway are parallel and adjacent to one another.

Plaintiff says that its said line of railway can be so located parallel and adjacent to and along the southeast side,of the right-of-way of the Wabash Railroad Company so that it will cross the tracks of the defendant company at grade and will cross over the tracks of the said -the Toledo Urban & Interurban Railway Company by an overway passage where the said the Toledo Urban & Interurban Railway Company’s tracks are constructed under the right-of-way of the Wabash Railway Company; which method of construction will require the plaintiff’s tracks to cross the said highway at grade; unless said highway is lowered so as to pass under the tracks of the Wabash Railroad Company.

Plaintiff says that in constructing its said railroad upon the line above specified, if the defendants be required to lower the tracks of -said defendant- company, defendant will avoid -the two grade crossing referred to, viz., the present grade crossing of the defendant company’s tracks and the tracks of the Wabash Railroad Company, and .also the .tracks of the plaintiff. Plaintiff says that by diverging from the parallel line with the right-of-way of the defendants at a point about three hundred feet from the right-of-way of .the Wabash Railroad Company, it is possible to construct a crossing under the railway of the defendants, which said construction will require the expenditure of large sums of money, namely, about $12,000, and will require the plaintiff to construct at the crossing of the said highway above referred to, and about fifteen hundred feet north of the crossing of the railway of the defendants, an undergrade crossing, and in doing so plaintiff will be required to expend large sums of money in readjusting said highway so as not to change materially the grade of the same, and at a cost of about $3,500; and that course will also require plaintiff to cross under the railway of the said the Toledo Urban & Interurban Railway Company, the cost of which crossing plaintiff is informed and believes will be about $17,000.

Plaintiff says that the maximum grade of its said railway is two per cent. That it is unable to agree with the said defendants as to the manner in which the tracks of the railway of the defendants shall be crossed by the tracks of the plaintiff. It also sets forth that appropriate proceedings are pending in the Probate Court of Lucas County to acquire the right to cross the right-of-way of the defendant company. There are other averments, to which I need not give special .attention. The prayer is, -that the Court of Common Pleas of Lucas County, or a judge thereof, ascertain and determine by its decree the mode -and manner in which the tracks of the plaintiff shall cross the tracks of the said the Toledo Railway & Terminal Company, and if the court order a separation of grades, or decree that the tracks of the plaintiff shall be constructed under the tracks of the railway of defendants, that the court equitably apportion the initial expense of such construction and crossing, and the- expenses of maintenance thereof, between the parties to this action; and some other incidental relief is asked for.

The case was tried in the court of common .pleas, and a crossing under the tracks of the defendant company having been ordered by that court, the plaintiff company was required to pay 86y2 per cent, of the cost of the necessary construction, the other part of the cost to be paid by the defendant company. From that judgment the plaintiff appealed to this court. The ease has been submitted to us, and we have heard the evidence and the arguments of counsel. The chief point of controversy in the case is as to the apportionment of the cost of the construction made necessary by the road of the plaintiff company passing under the road of the defendant company at the point mentioned. The plaintiff company was not satisfied with -the judgment of the court of common pleas, feeling that too large a proportion of the cost had been apportioned to it, and therefore it appealed. On the other hand," the defendant company insists that, if it should pay.any part of -the cost, it should .pay no greater part than has been apportioned to it. But it also contends (and this is a question which is presented at the very threshold of the case) that the matter is not one calling for the interposition of the court under this statute; that the situation is not such as to give to the plaintiff the right to invoke this statute, or the action of the court under it.

It .appears from the evidence, and it stands practically undisputed, that, having in view the crossing beneath the turnpike mentioned, and beneath the tracks of the urban and interurban road — something contemplated by the plaintiff, and apparently practically decided upon — it will be more convenient and economical for the plaintiff to cross underneath the tracks of the defendant company than to cross the same at grade. If the plaintiff had not agreed or decided upon crossing beneath the turnpike mentioned and the tracks of the urban and interurban road, it is not apparent that it would be more convenient or economical for the plaintiff to pass beneath the tracks of the defendant company, but as .the situation has developed, considering the topography of the country, and considering the purpose of the plaintiff to pass beneath the tracks of the urban and interurban and the turnpike in that vicinity, it is agreed on behalf of the plaintiff that even if the defendant company’s tracks were not located as they are, or even if the plaintiff company should be required to pay the whole cost of the construction made necessary by this crossing beneath the tracks of the defendant company, the plaintiff company would probably cross in that way, to-wit, beneath these tracks; that even if the whole cost were to fall upon the plaintiff, it would still be for it the most feasible and economical method of crossing. This is so chiefly because of a gully that it would enter and traverse in making the crossing of the tracks of defendant, and in approaching the point where it crosses the turnpike and the tracks of -the urban and interurban.

There would be great expense, perhaps- from $10,000 to $12,-000, in the making of the fills across lower levels in order to reach the tracks of the defendant company at grade, and all this is avoided by crossing'beneath .the .tracks through the gully.' And it appears that, in the conversations and 'negotiations between the officers and representatives of these two companies respecting this proposed crossing, they have practically agreed that' the crossing beneath the tracks would be most practicable and most desirable for both companies.- They have practically .agreed that the crossing should be made in that w-ay; .and perhaps'it may be fairly said' that the plaintiff has practically determined that the crossing shall be made in that way, unless some unforeseen object shall prevent, .and that the defendant company makes no opposition to the crossing being made in that way, ■ provided it is not required to pay any of the expense incident to the making of such crossing. Thus far the minds of the parties have met upon the matter. Thus far they are in agreement; and yet it ban not be said that they have entered into an agreement having'the force and effect of a contract, enforcible by one against the other, that the crossing shall be by this route' through the gully and'beneath the tracks of the'defendant company. Had they entered into an agreement having the force and effect of-a contract covering the subject-matter, then there would be no occasion for an appeal to this court. ' '

While the statute evidently has in view, primarily, -the interests and safety of the .public in the construction of railroad crossings, yet the Legislature has seen fit t'o provide that where the companies agrée upon the crossing, the court need not be appealed to under this statute. It does not follow, however, that there are not .other statutes that would have influence upon the matter, and that might prevent the agreement of the parties from being carried out, if it were found to be inimical to the public interest. It is insisted, however, on behalf of the defendants, that the primary purpose of this statute is to provide for the separation of grades, meaning by that the prevention of grade crossings, by requiring that the .tracks of one road shall be above those of the other, and that in a ease where a grade crossing is not at all practicable, or in a ease where the parties have agreed that there shall not be a grade crossing, the matter is removed from the jurisdiction of the court; that in such cases there is nothing for the court to do in the premises; that there is then.nothing left but to determine the form of construction to effect such crossing, and to determine the division of the cost between the parties. That for this purpose this statute can not be brought into requisition.

No doubt one of the chief purposes of the law is. to prevent,where.reasonably practicable,, grade crossings; but we do hot adopt the view of counsel that where this object is accomplished because of the impracticability of a grade crossing, or because of the agreement of the parties- upon a different kind of crossing, there is, nothing left for the court to do. As the law stood before the enactment of this statute in 1902, there seems to have been no way of determining through the action of a court, or otherwise than by the agreement of the parties, what the form of construction of a crossing should be, whether a grade crossing or one not at grade. If, for instance, under circumstances like those .presented here, -the plaintiff company should condemn the right to cross,- and if its right to cross should be limited by the proceedings in condemnation to a crossing -beneath the tracks of the defendant company, yet the form of construction, whether by -an iron bridge, or a stone culvert,' or a cement -arch, or what not, as we understand it,- could not be determined by the judgment of any court or in any manner except by agreement of the parties. Naturally it would fall out, and must have occuraed in many cases, that the parties would be unable to agree upon the form of construction of the crossing, and great harm or injustice might result to’the company over and across whose tracks the right-of-way had been acquired by the condemnation proceedings through the construction of a crossing unsafe and inconvenient for it. We understand that this statute was meant .to reach cases of that character, as well as to prevent grade crossings where practicable; that it was meant to provide for safe crossings, whether grade crossings' or crossings not at grade, and whether such safety was to be provided for by derailing and other safety devices where the crossing was at grade, or by proper bridges or structures where the crossing was not at grade.

If the statute is not available to a party who agrees that a grade crossing may, should and shall be avoided, but is available to those only who stubbornly insist upon a grade crossing, regardless of the dictates of humanity, business policy and common sense, then it offers a premium to those who seek to defeat one of its principal objects, i. e., the prevention of grade crossings; or to those who in bad faith to the court pretend that they desire a grade crossing merely to obtain the benefit of the provisions as to the division of expense, and its benefits are withdrawn as a sort of penalty from those who seek to promote the policy of preventing grade crossings. A construction that would result in such absurdity and injustice should not be adopted unless it is plainly required by the words of the law.

The statute as it was first passed seems to have been imperfect, in that it did not provide for a division of the cost, as we think it should have done, and this imperfection in the statute appears to have been recognized by the Legislature later on when the amended Section 1 was passed. Section 1 as amended provides:

“That where i.t becomes necessary, outside the corporate limits of a city or village, for the track of a steam, street, electric or interurban railroad company to cross the track of another steam, street, electric or interurban railroad company, unless the manner of such crossing shall be agreed to between such companies, it shall be the duty of the court of common pleas of the county wherein such crossing is located, or a judge thereof in vacation, on application of either party, to ascertain and define by its decree the mode of such crossing which will inflict the least practical injury upon the rights of the company owning or operating the road which is intended to be crossed.”

I pause at that point. That, it will be observed, is not limited to cases where a grade crossing impracticable. Nothing thus far has been said about grade crossings, nor any other particular manner of crossing; and the matter which is to be presented to the court if not agreed upon is the mode of crossing, and that is to be fixed. That is to be fixed if the parties are unable to agree upon the manner of crossing, and we understand the words “mode” and “manner” to be used there synonymously.; and we do not understand them to be confined to the idea of whether the crossing shall be at grade or above grade or beneath grade, but that the manner or mode of crossing includes as well the construction by which the crossing is made possible in any ease; that the thing the parties must agree upon, in order to put the matter beyond the province of the court, if the court should -be appealed to, is not only whether there shall be a grade crossing or an overhead crossing or an underway crossing, .but the kind of construction in either case, and we suppose, as well, the division of the cost thereof, though as to that we need not say in this ease because the question is not presented. It is possible that if all else were agreed upon excepting the division of the cost, the parties might not be able to bring that matter before the court for adjudication. As I say, we do not pass upon-that question. We do hold, however, that in order to make an agreement that would be effective -as an answer to the application to the court, it must a least cover the form of construction, the kind of construction, whether by bridge or trestle or culvert or arch, or what not, as well as the question whether it shall be located above or below or at grade, or" at one point or another along the line of the road to be crossed. The statute proceeds:'

“And, if in the judgment of such court or such judge thereof, it -is reasonable and practicable to avoid a grade crossing, it shall by its process prevent a crossing at grade. ’ ’

That is to say, that object, the prevention of grade crossings, is to be kept steadily in mind by the court in fixing what the crossing shall be, what the construction shall be, in dividing the cost, and” all that; for while certain forms of construction may be necessary to provide for the safety of the traveling public where the crossing is not at grade, or certain forms of safety devices may be essential -to provide for safety when the crossing is at grade, it is to be borne in mind that one of the most effective means to secure safety is to prevent the grade crossing where possible. There are certain conditions mentioned in the statute under which a grade crossing can not be prevented, conditions respecting the grade established by the company building the new line, and with respect to the high-water mark, etc. Then follows this provision, which is added to the original section: “The court shall, in its order equitably apportion the initial' expense of such construction or crossing and the expense of maintenance thereof among the parties interested.” And there is also a provision for appeal, under which the matter has been brought to this court.

• Now the 'initial expense is to be equitably apportioned, and, as has been well said, that does not necessarily or under all*, circumstances mean equally divided. It is urged on behalf of the defendant that, since its railroad is in place and in operation, bridging this gully by trestle work and fills, it should not be required to pay any part of the expense of the construction required for this crossing, since the construction will be of no advantage to it. It appearing that -.a water-course traverses this gully and passes under ¡the tracks of the defendant company, and that some time in the course of a few years it may be necessary to replace the piling, and that it will probably be expedient to put a culvert over this water-way, it is conceded by the defendant company that it may be just that it should bear a share equal to the expense which would fall upon the defendant company if the plaintiff company should not occupy that place, i. <?., that it might be equitable to apportion to the defendant company as much as that culvert would cost. It appears that it would need to be five or six feet high and seven or eight feet wide, to accomodate the stream, and that it would cost from $1,000 to $1,200.

On the other hand it is urged that in the eye of the law the companies have an equal right at this place — -an equal right to cross at this point; that by coming upon the ground first the defendant company has not acquired any such proprietary right as enables it to levy -tribute upon the plaintiff company, or to say to the plaintiff company: “This construction is made necessary by your -coming here, -and -therefore you should pay the whole cost of it.”

It is pointed out that if the plaintiff company had come upon the ground first and occupied this gully, no overhead construction would have been required for its purposes; that the defendant then coming along with its road to span the gully might have been met with the proposition that .it came last, and the expense of the bridge over the gully and all construction necessary to protect the.plaintiff company and its tracks should fall upon the defendant company. It is said by counsel for the plaintiff company that this would -not be fair, would not be equitable, but that the matter should be considered and adjusted as if the parties had come to this point to cross at the same instant, with equal rights, and that then and there the necessity had arisen for a construction which would enable one to cross over the other. In that event, it seems to us quite.apparent -that the cost should be equally divided between -them; and if that is the proper view of the matter, it follows that the judgment of -the court in this case should divide the cost equally.

So the problem seems to our minds to resolve itself into a question as -to whether the defendant company has acquired any superior proprietary rights in the premises by reason -of its having reached the place of crossing first w-ith its tracks. If so, the same result would probably follow whether i-t had reached that point a score of years or -an hour before the plaintiff company had reached it, or long enough before to have constructed a trestle sufficient to carry its trains over the gully.

If we understand .the views of .the Supreme Court of Ohio, .as expressed in -the ease of Lake Shore & M. S. Ry. v. Railway, 30 Ohio St., 604, they require us to resolve this question in favor of the contention that no superior right is acquired by the company that first comes upon .the ground. These franchises are granted to these public service corporations because of the supposed advantages to the public. Their right and authority to appropriate right-of-way are based upon the same ideas; and we believe it is not contemplated by law, especially not by this statute, that one such corporation can place itself across the track of another, or the contemplated track or course of another, in such a way as to make it more burdensome or difficult for the company coming upon the ground later to traverse such .track, except as changed physical conditions may make it more .expensive and difficult. And that when it comes to the changing of such physical conditions in order that both may pass a given point, and in order that the interests" of the public may be subserved, unless there is some special reason why there should be a different division of the expense, we think it should fall upon the companies equally.

We may imagine cases where there would be such special conditions, as if, for instance, where there had been expensive work constructed by the defendant company at the point of crossing by the defendant company, so that a line laid out by the plaintiff company would require its destruction; or if the structure, when constructed, would afford some special advantages or facilities to one and not to the other. But here all that either company acquires by this construction is a crossing at that point. One company is enabled to go beneath the lines -of the other; and that is all they have in the matter, all the good they get out of it, and each appears to be equally served by the construction. We have endeavored to apply the principles heretofore recognized by us as applicable to such oases, i. e., in the unreported ease of Akron & C. J. Ry. v. Railway, decided by this court in Huron county.

Now, as to the form of construction, we conclude to order the same as was ordered by the court of .common pleas. Perhaps that is not the very best that could be constructed, perhaps not as good as that proposed by the plaintiff company; but it seems •to be safe and serviceable, and we think will answer all the purposes of the parties and the interests of- the public.

The cost of the construction and maintenance of the abutments and the girders should be equally divided. Of course the track that the defendant company lays upon the girders is a matter the expense of which will fall upon the defendant company; and in the same way, the track of the plaintiff company will be a matter for it to pay for itself. But everything pertaining to the abutments and the girders, the work and the materials and all, and this we understand will span the stream so as to allow the water to pass — we understand that is provided for —shall be divided equally between the parties. And the costs of this proceeding will likewise be divided between the parties equally’. ' '


source: Caselaw Access Project

license: Public Domain

text:
    INSURANCE PAYABLE TO MORTGAGEE.
    Circuit Court of Ashtabula County.
    Ohio Farmers’ Insurance Company v. Erie Brewing Company et al.
    Decided, September, 1907.

      Fvre Insurance — Mortagee not Bound by Appraisal and Award made by Insurance Company and Mortgagor without Ms Knowledge, When — Proper Procedure by Mortgagee.

    A mortgagee who holds a policy of insurance issued to the mortgagor, which provides that in case of loss there shall be an appraisal and award, with the usual mortgage clause attached, “loss if any payable to the mortgagee as his mortgage interest may appear, and further in substance, that the-insurance as to the interest therein of the mortgagee, should not be invalidated by any act or neglect of the mortgagor, is not bound by an appraisement and award made by the mortgagor and insurance company without the knowledge of the mortgagee. In such case where the mortgagee repudiates the appraisement and award made by the mortgagor and insurance company it is the duty of the mortgagee to demand an appraisal and award before insisting upon the payment of the loss to him, either by original action or by cross-petition in an action brought by the mortgagor.

      Elliott, Betts & Mooney, for plaintiff.

      Allen M. Cox, for defendant insurance company.
    Cook, J.; Burrows, J., and Laubie, J., concur.
   Bridget Cullen w:as the owner of a parcel of real estate upon which there was a mortgage for a considerable amount. Two policies of insurance were taken out by her, one in the Ohio Farmers’ Insurance Company and the other in the Columbia. These policies were endorsed in the ordinary manner, “loss if any payable to the mortgagee.”

The mortgage was'assigned' by the mortgagee to the Erie Brewing Company and the policies delivered by the mortgagee to it. When the policies expired, new policies were issued in the name of Bridget Cullen by the insurance companies for seventeen hundred and fifty ($1,750) dollars each, and the one .issued by the Ohio Farmers’ Insurance Company, is the one in controversy, This policy provided that, “the loss if any should be payable to the Erie Brewing Company,” and further had the following endorsement known as the'standard mortgage clause, “it is hereby specially agreed that this insurance, as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor, or owner of the property insured.” The building was partially destroyed by fire and after the fire Bridget Cullen entered into an agreement with the two insurance companies for an appraisement of the loss without the knowledge of the brewing company, and the appraisers fixed the amount .of the loss at about twelve hundred ($1,200) dollars and rendered an award for the same.

The amount due the brewing company upon its mortgage was over twenty-four hundred and fifty ($2,450) dollars and it claimed the amount of the loss was from eighteen hundred to two thousand dollars.

The Ohio Farmers’ Insurance ^Company failing .to pay the amount of the award, Bridget Cullen brought suit against it on the award making the Erie Brewing Company a party defendant. The brewing company filed an answer and cross-petition setting up the facts herein set forth and insisting that it was not bound by the award agreed upon by the insurance company and the owner-and mortgagor of the property and asking judgment for the full amount of the actual loss. The mortgagor took no further action in the suit after the filing of the petition, and the case was tried alone on the cross-petition of the brewing company. The court charged the jury that the brewing company was not bound by the award and the jury returned the verdict against the insurance company for $1,049.41, being one-half of the actual loss with interest, the other half to be paid by the Columbia Insurance Company.

The principal question that is made in the ease is: Did the court commit error in its charge to the jury upon this question? It has been generally held in oases of mere endorsement upon a policy “loss if any payable to the mortgagee,” that the contract is still with the mortgagor and is for the insurance of his interest, and the holder of the policy by such endorsement takes such policy subject to all the conditions of the policy as to non-occupancy, increase of hazard, other insurance, alienation, etc. Jones on Mortgages, Section 406.

But would this rule apply as to the settlement of the amount of the loss after fire? It would seem that it should not, as it would be unjust to the mortgagee. They select the appraisers and the mortgagor under certain circumstances might not feel inclined to get the full amount of the loss or at least to insist upon the same.

In Jones on Mortgages, Vol. 1, Section 409 (5th Edition.), it is said:

“It is well settled that a mortgagee to whom a loss is payable is not bound by an adjustment to which he is not a party and is made without his knowledge and consent and that an adjustment made only by the insurer and mortgagor is without effect as to the mortgagee.”

But in this case the mortgage clause provided:

“It is hereby specially agreed -that this insurance as to the interest of the mortgagee only therein shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured.” '

By this provision no act of the mortgagor could affect the interest of the mortgagee in the insurance. The insurance company must deal directly with the mortgagee. The full amount of the loss must be paid to him at least up to the amount of his claim and he settles with the mortgagor (Jones on Mortgages, Vol. 1, Section 409, 5,th Edition). In such case it'is precisely the same as if the mortgagee had taken out a policy in his own name to secure his interest, a separate and distinct contract between him and the insurance company. Such was the holding in the case of Hastings et al v. Westchester Fire Insurance Company, 73 N. Y., 139.

In that case “the policy contained a clause declaring in substance that in case of other insurance the insured could only recover upon the policy its proportionate share of any loss.” In an action upon the policy, held “that the mortgage clause operated as an independent insurance of the mortgagee’s interest ; it gave them .the same benefit as if they had taken out a separate policy, free from the conditions imposed upon the owner and making 'them responsible only for their own acts; and that therefore the clause of the policy limiting defendant’s liability in case of other insurance* did not apply as the mortgagees had procured no other insurance, and plaintiffs were entitled to recover the whole loss without regard to the additional insurance procured by S.”

In the opinion, on page 150, it is said:

“The rules laid down in the authorities cited have no application, however, to a case where a provision has been inserted in the policy which .places the mortgagee upon another and a different footing from that of a mere assignee or appointee to reoeive a loss. The mortgage clause was agreed upon for this very purpose, and created an independent and a new contract, which removes the mortgagees beyond the control or the effect of any act or neglect of the owner of the property, and renders such mortgagees parties who have a distinct interest separate from the owner, embraced in another and a different contract. The tendency of the recent oases is to recognize these distinctions, and thus protect the rights of the mortgagee when named in the policy, and the interest of the -owner and of the mortgagee are regarded as distinct subjects of insurance. ’ ’ Excelsior Fire Ins. Co. v. Royal Ins. Co., — N. Y., 343; Springfield Ins. Co. v. Allen, 43 Id., 392.

We are ¡therefore of opinion upon principle and authority the charge of the court was correct.

Another question however that presents itself is: That if by such endorsement upon the policy it made the contract of insurance a separate and distinct one between the mortgagee and the insurance company the same as if the interest of the mortgagee, had been insured by a separate policy, what right had the mortgagee to insist upon the payment of the loss or bring suit for the same until it had demanded an appraisement of the loss? It was bound by all the requirements of the policy that it was required to perform; and if the manner of ascertaining the amount of the loss was one of such requirements, no suit could be brought until the mortgagee procured an award or ascertainment Of the loss by appraisers or showed a legal excuse therefor, the loss being a partial one. 75 Ohio State, 374.

Why was not the provision for an appraisement binding upon the mortgagee? If, as said, it was equivalent to a separate policy upon its interest, surely it could not insist upon the payment of the loss until the amount was ascertained in the manner provided by the policy.

The brewing company repudiated, as it had a right to do, the appraisement made by the insurance company and the morU gagor, but the insurance company had the right to an appraisement and award and the mortgagee could not deprive it of such right.

We are therefore of opinion that the brewing company had no right to’ proceed upon its cross-petition until such appraisement and award was demanded or a legal excuse given why'it was not done. The cross-petition shows no such demand or excuse; neither does the evidence.

For this reason the judgment of the common pleas court must be reversed and .the ease remanded for such further proceedings as may be required by law.


author: Swing, P. J.

text:
    NATURE OF THE HEARING UNDER. A JONES LAW PETITION.
    Circuit Court of Hamilton County.
    In re Jones Law (Hyde Park Petition).

    Decided, February 15, 1908.

      Jones Local Option Law — Proceedings for Establishing a Residence District — What the Hearing Comprehends — Attendance of Witnesses may be Compelled — Error to Refuse Process — Burden of Proof — Description of the Territory — Hearing Judicial in Character —Final Jurisdiction.

    At a hearing before a judge of the common pleas court under a petition for the establishment of dry territory within a residence district, under the provisions of 98 O. L., 68, it is prejudicial error to deny the ordinary process of the court, where request is made therefor in good faith and within reasonable bounds.

      Jerome D. Creed, for contestant.

      Eldon B. James, contra.
    Gieeen, J.; Smith, J., concurs; Swing, P. J., does no! concur in judgment of reversaL-see separate opinion.

       Reversing the judgment below (6 N. P. — N. S., 251).

   Adopting the definition of a proceeding in court and what it comprehends as set forth in the ease of The City of Zanesville v. The Zanseville Telegraph & Telephone Co., 64 O. S., 67, it is manifest that the hearing provided for in the act of March 15th, 1906 (98 O. L., 68), is judicial in character and comprehends the filing of the petition, process for bringing in the proper parties, and .a judicial inquiry according to established rules and practice. The plaintiff in error or contestant was entitled upon application to require the clerk of the court of common pleas to issue a subpoena for witnesses under .the seal of the court, the sheriff to serve them, and the process of the court to enforce obedience thereto. The court therefore erred in refusing to compel attendance of the witnesses who were duly served and failed to appear, there being about .twenty-one in all. It is claimed, however, that no proper exception was reserved ; but it appears at page 326 of the hill of exceptions that counsel for contestant made a request for a ruling by the court as to whether it would compel the attendance of such witnesses; but without then ruling thereon and apparently without fault of counsel, a discussion arose concerning a particular witness, Wenzel, then again as to four other witnesses; and thereupon the court said,- as appears at pages 329 and 330: “If those gentlemen come in, Glenn and Daniel, by half-past two o’clock I will hear from them, and also hear M¡r. Sackhoff and Mr. Kraemer; and the case is closed, subject to the coming in of those four parties.” To which counsel for the contestant excepted.

While this was not a direct and positive ruling upon the request made by counsel, it was significant and broad -enough -to overrule any request -made and not already passed upon. The statute itself contemplates1 attempts at bribery, boycott, and intimidation of -electors and -the discharge of -an employe; but it would be difficult, if not impossible, to defeat such attempts or such -acts if the court refused to compel the -attendance and testimony -of witnesses. It -also suggests the impossibility of advising -the court in advance what the witnesses will testify, as they are at the time under restraint, or believed to be so. There seems therefore no good reason to deny a party -in a proceeding of this kind the ordinary process of the court, provided his demands are -made in -good faith and within reasonable bounds. The court erred to the prejudice of the contestant.

The burden of proof was upon the petitioners to show that th-e territory described in the petition was a residence district; and while the evidence tending to prove such fact was slight, yet in the absence of any rebutting testimony it was sufficient to support the finding made.

The petition 'is composed of eleven different papers, each containing a description of the territory, and it is claimed that three o'f them contain a different description from that in the other eight, the discrepancy if any, consisting in a reference to the east bound-ary line of precinct IT,' instead of precinct B as a part -of the east boundary line -of the district. We deem it immaterial whether the reference be to precinct H or B, because the northern terminus of the east boundary line is fixed as the northeast corner of precinct M, and if the course southwardly and the monuments other than precinct B are followed, the same point in the center of Linwood avenue will he reached for the southern terminus, and the same territory included.

The final jurisdiction given by statute to tbis court only prevents further proceedings in a higher court, and does not interfere with the right to grant a new trial in the court of common pleas.

Judgment reversed and cause remanded for a new trial.

Swing, P. J.

I do not concur in the judgment of reversal for the reason that the errors committed by the court do not, appear to be prejudicial. There was no claim in the .argument in this ease but what a majority of the resident electors of the district had signed the petition, and there is no intimation in the record that any one of these electors were induced to sign the petition through intimidation or bribery, or that counsel proposed to show by any of tbe witnesses subpoenaed, and which the court refused to bring into court, that bribery or intimidation had been resorted to.

Counsel said to tbe court >as to three of the witnesses, be proposed to prove that they were not proper petitioners. One of them not being a resident, and two that they had not in fact signed the petition. Admitting that these three were not proper petitioners, there is still a large majority in its favor. As to the other witnesses, counsel made no statement to the court as to what he expected to prove by them; possibly he was not bound to state explicitly wbat he expected to prove by each witness, but having stated what he expected to prove by three of them, and making the statement to the court that his object was to get a ruling of tbe circuit court on the question of compelling the attendance of witnesses, I conclude that he had limited himself as to these three witnesses, and if there is still left a majority in favor of the petition after granting all. he claims, I fail to see the error that is prejudicial and which would warrant a reversal of the proceedings.

As to the -law of the ease I fully concur in what the court say and state further —

It must be apparent to the most casual observer that this law as to the procedure of the courts in its determination and the enforcement of its provisions is very crude, and in order to give to it the evident intention of the Legislature, the courts must supply what has been omitted.

The law provides that there shall be a public hearing before the judge, and he shall decide upon the sufficiency of the petition and -all other questions involved in the law. And such a hearing and decision must be in .accordance with established rules and practice in judicial hearings and decisions.

If it is not judicial in its nature, the courts should have nothing to do with it. In Gordon v. United States, 117 U. S., 706, Chief Justice Taney says:

“And while it executes firmly all judicial processes entrusted to it, the court will .carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution. ’ ’

And further on page 702, he says:

“And Congress can not extend the appellate power of this court beyond the limits prescribed by the Constitution, and can neither confer or impose on it the authority or duty of hearing and determining .an appeal from ,a commissioner, or auditor, or any other tribunal exercising only special powers under an act of Congress. Nor can Congress authorize or require this court to express an .opinion on a case, when its judicial power can not be exercised and when its judgment would not be final and conclusive upon the rights of the parties and process of execution -awarded to carry it into effect. ’ ’

In line with the above is the law as announced in the first three propositions -of the syllabus in the case in 64 O. S., 67, referred to in the opinion of the court in this ease. These propositions are as follows:

“1. The distribution of the power of the state by the Constitution to the legislative, executive and judicial departments operates by implication as an inhibition against the imposition upon either of these powers which distinctively belong to one of the other departments.
“2. The fact that a power is conferred by statute on a court of justice ¡to be exercised by it in the first instance in a proceeding instituted therein, is of controlling importance as fixing the judicial character of the power, and is decisive in that respect, unless it is reasonably certain that the power belongs exclusively to the legislative or executive department.
“3. The institution and prosecution of a proceeding in a court comprehends the filing of a proper complaint, process for bringing in the proper parties, and a judicial inquiry according to established rules and practice.”

The powers and duties of courts is clearly set forth in these decisions. Only such duties as are judicial in their nature can be imposed on the courts, and such duties must of necessity •embrace the hearing and determination of some judicial question with the power to render judgment and the further power to enforce the judgment when rendered.

To hear and determine a question in a judicial way, the court must have power to bring before it all proper evidence which bears on the question for determination. One of these necessary powers is .that of compelling ¡the attendance of witnesses within the jurisdiction of the court. Without such power there could be no trial.

When the court is this case refused to compel the attendance of witnesses, it denied to the parties the opportunity to have a fair trial and denied to itself the right to hear all the evidence it should have had in order to get at the right of the case.


text:
    GUARDIAN DENIED BENEFITS FROM SALE OF PROPERTY OF WARD.
    Circuit Court of Cuyahoga County.
    Henry J. Ostendorf, Guardian, v. Louisa M. Shale et al.

    Decided, March 27, 1905.

      Guardian and Ward — Property of Ward Sold by Guardian — Purchase Price Provided by Guardian — Trust Created and Benefits Denied to Guardian — Accounting Granted.

    Where a guardian negotiates what is in form a sale of the goods of his ward, hut himself assumes the payment of the purchase price, in consideration of a conveyance of land by the purchaser to such guardian personally, the latter will not be permitted to benefit by such transaction, but will be held to have acquired such land in trust for the benefit of his ward.

      Foran, MeTighe & Gage, for plaintiff.

      Meyer. & Mooney, for defendants.
    Henry, J.; Marvin, J., and Winch, J., concur.

       Affirmed by the Supreme Court without report, Shale v. Ostendorf, 75 Ohio St., 581. See opinion immediately following.

   This cause is here on appeal. It .is essentially a controversy among the children and certain grandchildren of Henry Beck-man, Sr., over what remains unsold of ten .acres of land on Bolton avenue, together with the proceeds of the part that has been sold. The history of the title to this land is in brief as follows:

Henry Beckman, Jr., son of Henry Beckman, Sr. (both now deceased), purchased the land from certain executors, under circumstances which seem to indicate that the ’father furnished the purchase money, but being unable lawfully to take the .title, by reason of his having been one of the appraisers, he caused the deed of conveyance to be made to his son. We shall give no further consideration to this phase of -the controversy, since it furnishes no sufficient proof of the existence of any lawful trust. The family, however, seem to have urged upon Henry Beckman, Jr., that he had do right -to the property, and finally, just after his marriage, he conveyed it to his mother for $10,000. ITis mother was at that time the guardian of her husband, who was mentally incompetent, and on the same day she as such guardian transferred to her son Henry a stock of goods, belonging to her husband, of the appraised value of $13,394.11. Of this amount, it seems clear that Henry, Jr., paid only the excess over $10,000. Before the mother was called upon to .account in the probate court for the proceeds of the goods so sold, her husband died', and she, being the legatee of his personal property, alleged that fact and her consequent ownership of the fund, in lieu of any strict accounting.

At the time, however, of her sale of the goods and acquisition of the land, Henry Beckman, Jr., was prospectively entitled, by the terms of his father’s will (then unalterable in view of the latter’s condition of mind), to the sum of $10,000, payable out of the stock of goods in question; so that the inference is plain that the transaction was in 'this respect an anticipatory settlement of the father’s estate. v

Mrs, Beckman, Sr., thenceforward treated the land as her own, giving it first .to certain of her daughters, being five of her seven children, by a deed, which, however, she never effectually delivered but retained in her own possession until her death. After making this deed allotted the land and conveyed large parts of it again to various innocent purchasers. She had power under her husband’s will to make such conveyances for the benefit of his estate, but she converted the proceeds to her own use, and finally, by her will, of which the same five daughters were made the executors, she excluded her deceased son Henry’s children and the children of her daughter, Mrs. Ostendorf, from any participation in said proceeds. The deed .to the five daughters was put on record after her death, and they have ever since continued in the exclusive enjoyment of the premises.

It is now sought to have this deed set aside and to obtain an accounting of the -proceeds .of the lots sold, so that the other heirs may participate in all the property in question under the provisions of the will of ITenry Beckman, Sr.

Plaintiff claims that the deed from ITenry, Jr., to his mother was made in trust, .and produces evidence of T. IT. Graham, Esq., that Henry, Jr., so declared at the time the conveyance w.as made. The defendants, however, insist 'that Graham’s testimony is incredible because he himself drafted the deed from Mrs. Beck-man, Sr., .to her five daughters, which would have been in direct violation of the alleged trust, had it existed. They further urge •that she herself assumed the burden of accounting for $10,000 of the price of the stock of goods which she sold to her son, so that it can not be held that she paid for the land with $10,000 of her husband’s property.

It is enough to say in .answer to this last contention that a guardian can not be permitted, thus to traffic or juggle with his ward’s estate. Nor can it benefit the defendants that the $10,-000 worth of goods was already prospectively the .property of Henry, Jr., thus exonerating his mother from any breach of trust in turning it over to him; for that would be to say that Mrs. Beckman, Sr., obtained the land from her own son under the form of a purchase without in fact paying anything for it'.

On the whole case we are satisfied that plaintiff’s contentions are well founded and, without further discussion of the evidence, except to s.ay that at every point defendants’ counsel have most ingeniously presented the best possible side of a desperate case, we hold that the children of Mrs. Ostendorf and ITenry Beckman, Jr., are entitled to participate in the property in question, and a decree may be taken accordingly.


text:
    SECRET TRUST WHEREBY AN APPRAISER BECAME A . PURCHASER.
    Circuit Court of Cuyahoga County.
    Josephine Brickman et al v. Louisa M. Shale et al.

    Decided, March 28, 1908.

      Accounting- — Action for, under a Secret Trust — Son of One of the Appraisers Purchases the Property at Executor’s Sale — Go-incidents Establishing a Trust — Prohibition of Section 51fi4 Held Applicacable — -But Equities Found to be Stale.

    B served as appraiser of land which had heen ordered sold to pay the debts of a decedent, and his son purchased the property at the executor’s sale, assuming an existing lien and executing mortgage notes for the deferred payments. It subsequently appeared that the father withdrew from hank at the time of the sale the exact amount of the cash payment made by the son for the property, and the son thereafter disclaimed any interest in the property and reconveyed the property to his mother who had become guardian of her husband. Thirty years later, after the land had very greatly increased in value, the heirs of the decedent brought the present action for recovery of the unsold portion of the land and an accounting. Held:

    1. That the purchase by the son amounted to a secret trust for his father, and was in fraud of the estate owning the land at the time the sale was ordered.
    2. But inasmuch as the estate was hopelessly insolvent and would have received no part of the proceeds had the sale been conducted with the utmost regularity, río actual fraud was committed upon the heirs of the decedent, and the lapse of thirty years together with their knowledge, actual and constructive, of the facts, renders utterly stale the equity which the heirs now attempt to assert in the respect to technical fraud found to have heen committed,
    W. B. Neff, B. Pearce and Frank B. Marvin, for plaintiffs.

      M. P. Mooney, for defendants.
    Henry, J.; Winch, J., oonciirs; Marvin, J., dissents.

      See opinion immediately preceding.

   This is an appeal from the judgment of .the court of common pleas in an action there commenced by the heirs and legatees of Dr. Joseph T. Dammersman, who died in 1876, against Louisa M. Shale, and others, heirs of ITenry Beckman, Sr., to recover such portion of a certain tract of land .as still remains unsold m the hands of the defendants and for an .accounting and recovery of the net proceeds of such portions of said.land as have, been sold by them.

The land in .controversy is the same tract as the one in litigation in the ease of Ostendorf et al v. Shale et al, decided by this court March 27, 1905, and affirmed by the Supreme Court, without report, in 75 O. S., 581, and the facts in the two cases are largely identical. It is therefore unnecessary now to make a complete re-statement of the matter.

Suffice it to s.ay that the land :in question was sold in 1877, under an order made by the probate court of this county in a proceeding for the sale of lands to pay the debts of Dr. Lammersman’s estate. Henry Beckman, Sr., was one of the appraisers of said land in said proceeding, and Henry Beckman, Jr., his son, purchased the land at the executor’s sale which ensued, paying therefor, in addition -to the assumption of a subsisting lien thereon and the execution and delivery of his own mortgage notes, the sum of $1,053 in cash. It further appeal's that Henry Beckman, Sr., withdrew from his bank account at the time of this sale a- sum of money precisely equal to the cash payment thus made. Subsequently, Henry Beckman, 'Jr., conveyed the same land to his mother, then the guardian of her husband, Henry Beckman, Sr., under circumstances which, as we formerly held,, and now hold, clearly indicate that the son intended to disclaim any beneficial interest in the property and meant the conveyance to inure to the benefit of his father.

In the former case we reached .this conclusion, without deeming it essential thereto to hold unequivocally that said purchase by Henry Beckman, Jr., was made upon a secret trust for his father in fraud of the Lammersman estate. But in the present case on the facts in evidence before us we can not avoid this conclusion. Without rehearsing all the circumstances pro and eon which bear upon the question of the intention of the Beckmans, father and son, concerning -the purchase of the land, we are unable to escape the force of the coincidence above referred to in regard to the cash payment and the subsequent declarations made by the son disclaiming beneficial ownership of the land in controversy.

Having found that a trust was contemplated, we must also conclude, that it was conceived and executed in flat violation of the act of March 29, 1841 (39 Ohio Laws, part 1, page 42), entitled “An act declaratory of the law in certain cases, and to prohibit the appraisers of land from purchasing the same, ’ ’ Section 1 whereof provided:

“No appraiser of any lot or tract of land, which shall hereafter be directed to be sold under the provisions of any law of this state, shall become the purchaser thereof, .at .any sale, wherein the price for which such real estate must sell, ’shall be governed by the valuation made by him, as one .of -the appraisers thereof. ’ ’

We do not deem valid the contention that, because the appraisal and sale, in proceedings for the sale of land of deceased persons to pay their debts, are subject to the judicial oversight and confirmation of the court in which such proceedings may be brought, this act is rendered inapplicable in that the price for which such real estate must sell is not governed by the valuation made by the appraisers. Their relation to the sale in such cases is not essentially different from that in execution sales.

The act in question is, moreover, affirmed by the General Assembly to be declaratory of the law in such oases, and as so declared the rule is identical with that previously laid down by the Supreme Court in Armstrong v. Huston’s Heirs, 8 Ohio, 552. It is true there is some difficulty on this point in the opinion of the court in Bohart et al v. Atkinson, 14 Ohio, 228, where it was held that: “In proceedings in partition, an appraiser, in the absence of fraud, prior to the act of March 29, 1841, might become a purchaser at the sheriff’s sale.” But the court pointed out (page 237) that in the partition sale, unlike sales by personal representatives, “The object of the proceeding was to enable several co-tenants to enjoy each his own in severalty. A sale could not .take place until each and all of' the tenants in common had declined in court to take the property at its appraised value.” Thus the opportunity for an appraiser fraudulently to purchase property undervalued for partition can seldom arise.

The act of March 29, 1841, after the Lanunersman sale took place, was superseded in the revision of 1880 by Section 5404, Revised Statutes of Ohio, which is construed in Hurst et al v. Fisher et al, 64 Ohio State, 530, in the per curiam, at page 531, as follows:

“Where it appears, as in the present case, that the successful bidder at a sheriff’s sale of land w.as one of the appraisers on whose appraisal the land was valued for sale; that the purchaser attempted to discourage other bidders, at the sale and prevent them from bidding; that the land probably did not bring its real value, and that the owners (the judgment debtors) were not aware of the facts as stated until after confirmation of the sale, execution of a deed and distribution of the purchase money, a proper enforcement of the policy expressed in Section 5404, Revised Statutes, requires that the sale be set aside and the land again offered for sale, even though no guaranty is offered that the land will bring more. The remedy may prove somewhat harsh upon the purchaser, but if so, he has only himself to blame for the dilemma in which he finds himself placed. ’ ’

This language, it will be observed, is of the mildest character and may be -taken to imply that in the absence o-f actual fraud' the court will not be reluctant to give intervening equities their due weight. Thus, as was held in Terrill v. Auchauer, 14 Ohio St., 80:

“A purchase of real -estate at a judicial sale, by one who, at the -appraisement under which such sale was made, served as an appraiser, is not, under the provisions of Section 441 of the code, strictly void, bu-t is voidable only; and will ‘be considered fraudulent and void, ’ only -on an interposition or proceeding by a party in interest directly for the purpose of avoiding such sale. ”

It is true, as held in Armstrong v. Huston’s Heirs, supra, that: “An appraiser of land at an -administrator’s sale,-stands in such relation that his purchase, without fraud, -will be set aside at 'the instance pf the heirs.” But it was distinctly held in Wade v. Pettibone, 11 Ohio, 57, that this right “must be asserted within a reasonable time after notice of such purchase. ’ ’

Here no claim is made that the Lammersman property was undervalued by Henry Beckman, Sr., and his co-appraisers. On the contrary, it is affirmatively shown that -the appraisal was entirely adequate. The Lammersman estate was not actually defrauded by the Beckmans, father and son, in their subsequent purchase of the land. The fraud here relied on is constructive only and derives it’s sole basis and support from the provisions of the statute and the common law rule of which it is declaratory.

Moreover, the plaintiffs here were parties to the judicial proceeding which culminated in the sale -in question. The record of that proceeding produced here shows that they were duly served with summons, and they are therefore conclusively chargeable with notice of each and every step, including the appraisal by Henry Beckman, the sale to Henry Beckman, J’r., and the confirmation of these acts. They may reasonably be presumed to have known also that Henry Beckman and Henry Beckman, Jr., were father and son. If there was any badge or suggestion of fraud, however slight, manifest in this coincidence of names and relationship of parties, the plaintiffs will be affected with ñotice of whatever further facts would have been disclosed confirmatory of such indication, had they then followed the matter up with reasonable diligence. In Kernohan v. Durham et al, 48 Ohio State, 1, it is said in the opinion of the court, by Diekman, J., at page 19:

“Whenever a party has information or knowledge of certain extraneous facts, which of themselves do not amount to nor tend to show an actual notice, but which ,,axe sufficient to put a reasonably prudent jnan upon inquiry respecting a conflicting interest, claim, or right; and the circumstances are such that the inquiry, if made and followed up with reasonable care and diligence, would lead to a discovery of the truth — to a knowledge of the interest, claim or right, which really exists; the party is absolutely charged -with a constructive notice of such interest, claim or right. The presumption of knowledge is then conclusive.”

Counsel for plaintiffs, in argument before us contended earnestly for the proposition that the law is or ought to be such as to preclude .and make void unlawful purchases not only by appraisers, administrators, and other fiduciaries, but also bty any member of their immediate families. The inference thus urged has indeed been countenanced to same extent in Riddle et al v. Roll et al, 24 Ohio St., 572, where an administrator’s sale was set -aside in equity because the land was conveyed to a trustee for the use of the administrator’s wife during her life with remainder -to her children, begotten by him, and with power in the wife to sell the land, although it was clearly shown -that the wife, having ample means, of her own, in fact p-aid for the property with no assistance from and no previous understanding with her husband.

That the relation -of father and son under such circumstances, •though not so close as that of husband and wife, may nevertheless be suggestive of actual fraud, has not indeed been decided by our own Supreme Court, but is distinctly intimated in sundry other jurisdictions. Trefts v. King, 18 Pa. State, 157; Ringgold v. Waggoner, 14 Arkansas, 69.

It may be remarked parenthetically that at the time the L-ammersman sale took place in 1877, there was little or no incentive on the part of his heirs and legatees to follow up a clew of this sort with -any diligence whatever, for the Lammers-man estate was hopelessly insolvent and the sale was, as already noted, plainly destitute of any actual fraud as distinguished from the constructive fraud which the law implies- under the circumstances of this ease. The property was at .that time, farm land. Thirty years later, when this suit was instituted, it had become highly valuable property in one of the best residence sections of 'the city of Cleveland. Had there been in 1877 any such reward for diligence in detecting and following up irregularities in the sale as are now -offered to the plaintiffs in this action, it can hardly be doubted that the coincidence -of names of appraiser and purchaser would have been seized upon as a badge of fraud and -a clew with which to prosecute further inquiries with as much diligence as is now manifested. Had such been the case the plaintiffs should then easily have discovered that Henry Beck-man, Jr., was a young man living with his father and without means of his own. They should have -discovered by interrogatories, or -otherwise, where Henry Beckman, Sr., kept, his bank account, and they would have ascertained that he withdrew the sum of $1,053 therefrom on the very day that his s-o-n paid the $1,053 for the property in question. In other words, they would then have uncovered the secret trust which we now find existed at the time, but which for lack of incentive they did no.t seek out nor discover until the litigation in the Beckman family in the case of Ostendorf et al v. Shale et al, supra, disclosed to the world the skeleton in the closet.

Thus, after the lapse of thirty years, when -the Beckmans, father and son, are both dead, when the -property in question is vastly increased in value, when a large part of the property has been sold off, when the Beckman heirs have conformed their lives to a state of the family fortune which they had no more reason to suspect was tainted than had the plaintiffs in this case, we are asked upon our consciences as a court of equity to transfer this property upon a mere technicality to those from whom no value was ever taken, and who, had the sale in 1877 been conducted with the utmost regularity, would never have enjoyed any portion of that which they now claim.

To a majority of the court this seems so utterly repugnant to equity and good conscience that we can not accede to it. A lapse of thirty years, after constructive knowledge to the plain-tiffs of such merely technical fraud as that'here complained of, renders their equity utterly stale.

In Webster et al v. Bible Society, 50 Ohio State, 1, the opinion of the court by Williams, J., at page 18, cites with approval Baker v. Read, 18 Beavan, 398, wherein “a bill, after seventeen years, to set aside a purchase of the testator’s estate by his executor, at an undervalue, was dismissed -on the ground of delay, although the court was clear that the sale, if recent, should be set aside.” And the entire opinion may be studied with profit upon the question whether -the lapse of so long a period should not take from any appeal to -equity, under such circumstances as here appear, nmeh, if not all of its original persuasiveness. See, also, 5 Pomeroy’s'Equity Jurisprudence, Section 23, et seq., and many authorities there cited.

Slight circumstances may well be seized upon in such cases to affect the plaintiffs with constructive notice and consequent laches or -acquiescence, and the circumstances which manifestly challenged investigation of this sale at the time it took place, were to our mind, by no means slight. The plaintiffs must be held to have -acquiesced in this sale, which, though they had the means of knowing that it was irregular, they forbore to challenge, because they had no substantial motive at that time for endeavoring -to overturn it.

The petition is dismissed.


text:
    EFFECT OF GIVING BOND UNDER. VOID ATTACHMENT.
    Circuit Court of Hamilton County.
    Brown & Ketcham Iron Company v. L. P. Hazen & Company.
    Decided, January 4, 1908.

      Jurisdiction — Giving of Bond does not confer, in-Attachment Proceedings, When.

    In an attachment proceeding which is rendered void by a defect in the affidavit, jurisdiction is not conferred over the defendant by reason of the fact that he has given bond.

      Cobb, Howard é Bailey, for plaintiff in error.

      Raymond Ratliff, contra.
    Smith, J.; Swing, P. J., and Gtffen, J., concur.
   Upon the authority of Ward v. Ward, 20 C. C., 136, we are of the opinion that the affidavit for attachment filed herein was void. This being so, did the giving of a bond by the defendant below to discharge the attachment have the effect of submitting the defendant to the jurisdiction of the court? We think not. See Saxton v. Plymire, 3 C. C., 209. The court therefore erred in overruling the motion of plaintiff in error to discharge the attachment, and said judgment is reversed.


text:
    BLENDING OF PERSONAL PROPERTY AND PROCEEDS OF REALTY.
    Circuit Court of Henry County.
    Boston Gilson, Executor, v. Mary A. Gilson.
    Decided, October Term, 1907.

      Wills — Rights of a Widow who Elected not to Take — XJndevised Portion Applicable to Payment of Debts — Other Portions of Real Estate Exonerated Therefrom — Proceeds for Sale of Realty can not be Blended with Personalty, When — Doctrine of Equitable Conversion not Applicable, When.

    A testator left all of his personal property and a, life interest in his realty to his widow. The will provided that, after the death of the widow, the real estate should be sold by the- executor and the proceeds divided into nine parts, eight of which were given to specified heirs and one part was left undisposed of. The widow elected not to take under the will and received her statutory allowances of dower and year’s support. Upon the sale of the real estate by the executor under authority of the probate court: Held — •
    1. That the úndevised one-ninth is first applicable to the payment of testator’s debts in exoneration of the real estate that was devised.
    2. That as the will contains no provision for the blending into one fund of the personal property and the proceeds of the realty; but on the contrary treats the two as distinct classes of property and contemplates a sale of the realty only after the death of the widow. The doctrine of equitable conversion does not apply and the widow is not entitled to a distributive share in the proceeds of the realty after its sale. Hutchings v. Davis, 68 Ohio St., 160, distinguished.

      Donovan & Dittmer, for plaintiff.

      W. W. Campbell, Donovan & Warden, for defendant.
    Hurin, J. ; Haynes, J., and Wildman, J. (of the Sixth Circuit, sitting in place of Norris, J., and Donnelly, J), concur.
    Appeal from Hénry Common Pleas Court.
   The essential facts in this case are agreed upon and -are as follows :

The defendant, Mary A. Gilson, is the widow of David D. Gil-son, deceased, who died, testate and childless, November 21, 1904. The will of David D. Gilson gave to his widow, Mary A. Gilson, a life interest in all his real estate besides giving her all of his personal property which she was to have absolutely. The will directed that the real estate be sold by the exécutor after the death of testator’s wife, and the proceeds divided among eight classes of heirs, one-ninth to each (leaving one-ninth undisposed of).

The widow elected not to take under the will and has received all of her statutory allowances of dower and year’s support. The land has been sold by .the executor, the personal property not being sufficient to pay the debts; all debts of the testator have been paid out of the joint proceeds of the personal and real property and the widow now demands, in addition to what she has 'already received, her distributive share of the proceeds of the land considered as personal property. She also demands, as her husband’s heir at law, the undevised one-ninth of his. real estate or the proceeds thereof.

The debts now paid amounted to about the same amount as the proceeds of the one-ninth of the real estate which was undisposed of by will. The executor in this suit asks a construction of the will. On the facts thus disclosed, two questions arise:

1. What disposition should be made of the one-ninth of the estate which was not disposed of by will?

2. Has the widow, having received in taoney the value of her dower interest in the land and of her year’s support, the right to further demand a widow’s share of the value of that real estate considered as personalty after its sale by the executor ?

The first question presents no great difficulty. By Section 5972, Revised Statutes, it is .provided that when the “personal estate shall be insufficient for the payment of his debts, the undevised real estate shall be first ehargable with the debts, in exoneration as far as it will go of the real estate- that is devised, tinless it shall appear from the will that a different arrangement of his assets for the payment of his debts was made by the testator; in. which case they shall be applied for that purpose in conformity with the provisions of the will.”

Under the provisions of the will of David D. Gilson, all the real estate was to be sold by the executor after the widow’s death, all the personal property having been bequeathed to the widow, and the proceeds of said real estate were to be divided into nine parts, one of which was by an apparent oversight undisposed of. No special provision was made for the payment of debts out of any specific fund.

The assets in the executor’s hands after the payment of the widow’s allowance were not sufficient to pay .the debts of the estate. The real estate was sold, not in conformity to the will, but necessarily sold in order to pay debts. The one-ninth of the estate being only equal to the amount of the debts, it is clear that, under the letter and spirit of Section 5972, Revised Statutes, the portions actually disposed of by will should be exonerated from contribution to the payment of these debts, in so far as the portion undisposed of, together with the balance of the per•sonal property will suffice to pay them. The widow therefore can not claim as heir this portion undisposed of by will and require the legatees to contribute to pay the debts out of the portions devised or bequeathed to them.

But the second question is a more serious one.

The widow has already received in money the value of. her dower interest in the real estate, as real estate. Is she also entitled to share in the proceeds of that, same real estate after it has been sold, considering such proceeds personalty, and by so doing reduce the share of each legatee?

This question depends for its answer upon the preliminary question, whether the sale of the land by the executor changed its character and required -the proceeds to be treated as personalty and not as real estate. We are cited to the leading case of Hutchings v. Davis, 68 Ohio St., 160, where it is held:

“The positive direction by a testator to sell all of his real estate and to blend the proceeds with his personal property in one fund for the distribution of his whole estate according to the scheme of the will, makes an absolute conversion for all purposes into personal property, which should be distributed as personal property, even if the special object intended by the testator should fail.
“A widow for whom no provision is made in her husband’s will and who has been paid the value of her' dower in money from the proceeds of the sale of real estate, converted into personal property pursuant to a direction in the will, is not thereby precluded from asserting and receiving the widow’s distributive share in such proceeds as well as in the other personal property of the testator.”

That case and the one at bar are at first sight hardly distinguishable. While in the case at bar there was a provision in the will for the widow, yet she elected not -to take under the will and as to her the will must be construed and executed as if she had not been mentioned in it.

There is, however, this serious difference between the -two cases. In Hutchings v. Davis, supra, the will provided for the sale of all of the real estate within two years of testator’s death, practically an immediate conversion into personalty. In the case at bar the land was not by the .terms of the will to be sold till after the death of the widow, who was to have a life interest in it as realty.

In Hutchings v. Davis, supra, the testator was not a married man at the time he made his will and he consequently made no provision whatever for his wife. In the case at bar the wife is not only provided -for and given all the personal property absolutely (which was not, therefore, to be blended in one fund with .the real estate), but she is given a life interest in all the real estate, and it is only at her death that the intention to convert it into personalty was -to be carried into effect and even then there was no provision for blending it with the personalty. In fact, however, it became necessary to sell it sooner to pay debts, and it was so sold- by the executor. Probably it might have been so sold by the executor even if its sale was not necessary to pay debts, for the widow having elected not to take under the will and having thereby waived her right to enjoy a life interest in the real estate, the reason provided by the will .for .postponing -the sale of that real estate had failed, and under the doctrine known as “aceelleration” the executor might have sold the land in order to execute his -trust and wind up the estate, even though the widow still lived.

But, even in that event, -this case would have been clearly distinguishable from Hutchings v. Davis, for that depended upon the fact -that, by the terms of the will, the real and personal property were directed to be blended in one fund, and the court held, Judge Sh-auck dissenting, that this -amounted to an equitable conversion of the real estate into personalty.

Does this rule apply where, as in the case at bar, the will did not contemplate a conversion during the life of the widow and where the sale by the executor during the widow’s life was only authorized by the necessity of paying debts or, after her waiver of the life estate, by .the executor’s wish to wind up the estate; •ami where there was no provision for the blending of the two kinds of property in one fund ? Can the testator .be said to have intended to effect an equitable conversion of his real estate estate into personalty when he expressly provides that, so far as the widow is concerned, she shall hold it and use it as real estate all the‘days of her life and -that only at her death shall it be sold?

In the case of Craig v. Leslie, 16 U. S. (3 Wheat.), 563, 577, Washington, J., in his opinion, quotes with approval from Fletcher v. Ashburner, 1 Bro. Ch. Cas., 497, the doctrine that. “Nothing is better established than -this principle, that money directed to- be employed in the purchase of land, and land directed to be sold and turned into money, ar-e to be considered as that species of -property into which they are directed to be converted.” But while this is the settled law, it may well be doubted whether it can be held to apply for the benefit of one during whose lifetime -the will directed the land to be held as land, and at whose death only the conversion was to be made. In the ease of Furgeson v. Stuart, 14 Ohio, 140, it was held that “Land directed by a will to be sold and converted into money, is treated as personal estate, ’ ’ but there the will provided for .an immediate conversion — no life estate intervened, nor were there any devisees of the realty, a v-ery different case from the one at bar.

And, by statute, Section 6171:

“In all cases of a sale by an executor or administrator of part or the whole of the real estaté of the deceased, under an order of court, * •* * the surplus of the proceeds of the sale remaining on the final settlement of the account, shall be considered as real estate, and shall be disposed of accordingly. ’ ’

And in the case of Griswold v. Frink, 22 Ohio St., 79, it was held that:

“The surplus of the proceeds of a sale of real estate by an administrator, remaining in his hands on the final settlement of his account, under the statute is to be considered and disposed of as real estate, and the widow of the intestate is not entitled to any part thereof in her capacity as one of the distributees of the personal estate. ’ ’

This decision has never been overruled unless by implication in Hutchings v. Davis, supra.

If, then, the land in the case at bar was sold by the executor under an order of court (as it was — the will itself so provides), and in order to pay debts, for this is the evident meaning of the statute as recognized, by the court in the statement of facts in Griswold v. Frink, supra, the surplus of the proceeds of the sale must still be considered and disposed of as real estate and not as personalty.

And there seems to be especially good reason for applying this rule to this case. The testator, by giving -to his wife a life interest in the real estate and providing for its salé’ only after the termination of that estate, shows that he thought of it only as real estate so far as she was concerned. By giving to her all his personal property and in addition to -that, the life estate in the realty, he shows that he distinguished between personal and real property. He even thought of it as realty after it was sold, for he uses the word ‘ ‘ devisees ’ ’ in describing those among whom the proceeds were to be divided, while he uses the two terms “devises” and “bequests” to describe respectively the devise of the real estate to the other heirs and the bequest of his personal property to his wife, thus showing that he recognized the legal significance of these terms and the distinction between them. Some importance is attached by counsel to the significance of the provision of the will of David D. Gilson that the devises to his beneficiaries other than his wife shall be treated as debts. This is perhaps important as an aid to our conclusion for, if they are debts of the estate, then they must be paid by the executor and are not subject to distribution as assets of the estate. Hence the widow would be entitled to no -share in their proceeds.

. There seems, therefore, -to be especially sound reason for applying to this case the rule stated in the dissenting opinion of Judge Shauck in the case of Hutchings v. Davis, supra, where he says:

“The view seems to be (referring to the opinion of the majority of the court), that the testator was entrapped in the equitable doctrine of conversion. But that doctrine was devised, and it should be applied, to effectuate intention, not to defeat it. It may," therefore,- be invoked by one who claims under -an instrument, not by one who claims against, it.”

’We have read with care numerous authorities cited by counsel for Mrs. Gilson1 to uphold the doctrine that a sale of real estate by an executor in accordance with the terms of a will is per se an equitable conversion of the realty into personalty.

In most, if not all, of the Ohio cases so cited this conclusion is reached from -the peculiar language of the will there under discussion — the intention of the testator controlling the decision of the case. • While the rule1 probably differs in different states and it appears that in some of them the authorized sale of the land by -the executor converts it, eo instanti, into personalty, such does not seem to be the rule in Ohio -and is not, we think, founded on sound reason. Not even in Hutchings v. Davis, supra, is so broad a view endorsed.

But, while the rule laid down in. Hutchings v. Davis is the final expression of the law of this state ás applied to such a state of facts as- was disclosed in that case, the courts of other states have shown great reluctance to recognize that rule; and particularly is this -the case in the state of Pennsylvania.

In In re Cunningham’s Estate, 137 Pa. St., 621 (20 Atl. Rep., 714), it was held that—

“Where a will directs the conversion of real into personal property, but .the widow elects' to take under the statute, her rights are fixed irrespective of the will, .and she can not claim .that the conversion .operated in her favor so as to entitle her to one-half the fund absolutely. As to her, the fund must be regarded as realty, and she is only entitled to one-half interest therein for life.”

And in that case it was said by Mitchell, J., in deciding the case:

“ ‘Election,’ in .the sense that applies to the present contention, means ‘a choice between two courses of action; acquiescence by the widow in her husband’s disposition of his property, or disregard of it and assertion of the rights' the law gives her. ’ There is no third or mixed course. Her legal rights, which are paramount to the husband’s control, attach eo instanti that he dies, and there is no interval during which the will can slip in and work a conversion, and then stand aside to let in her intestate righte upon the converted .estate. Conversion takes place by virtue of the will, but as to the widow so electing there is no will: She must make her choice and it is will or no will. * * * The law does not permit her to say there is a will for conversion, and no will .as to her share. * * * The election which the widow is required -to make is between /rights, not between benefits.”

And in In re Petterson, 198 Pa. St., 78 (45 Atl. Rep., 654), it was held that, ‘ ‘ A conversion Worked by direction in a will to sell is inoperative as to .the testator’s widow, electing to take against the will.”

And in Hoover v. Landis, 76 Pa. St., 354, the same rule is announced, .as follows:

“By her (the widow’s) election the intestate laws superseded the will as to,her, and excluded -the power of conversion under the will so far as it .affected her estate. Having declined to accept under the will, .as to her there was no will and she could not claim her share of the proceeds of >a sale by the executor, absolutely as personalty.”

And this seems also to be the rule in Kentucky, for in Barnett v. Barnett, 58 Ky., 254, it was held .that:

“A widow, renouncing the provisions of her husband’s will under the act of 1797 (2 Stat. at L., 1544), has a right of dower in lands which are directed by the will to be sold by the executor, and the proceeds paid .to the devisees and being so entitled, she can not claim an interest in them .as personal estate, converted into that character by the .terms of the will. ’ ’

The same rule seems to apply in Tennessee. See Armstrong v. Park, 28 Tenn. (9 Humph.), 195.

In New York, too, the courts have taken .the same stand; e. g., in Brink v. Layton, 2 Redf. (N. Y.), 79, it was held:

“An absolute direction in the will to sell real estate, since it effects an equitable conversion from the time of the testator’s death, is inconsistent with a right of dower in the widow, and she should be put to her election whether to take a share of the proceeds of conversion .or to claim dower. ’ ’

And in Asch v. Asch, 113 N. Y., 232, the judge rendering the opinion said:

“Although there is no express language providing that the bequest to the widow shall be in lieu of dower, yet, where there is a manifest incompatibility between such provision and dower, it is held that she can not take both, and is put to her election between them.” Citing Vernon v. Vernon, 53 N. Y., 351; Konvalinka v. Schlegel, 104 N. Y., 125; In re Zahrt, 94 N. Y., 605.

It -thus appears .that the rule as stated in Hutchings v. Davis, supra, is not in accordance with many excellent .authorities in other states and that even that rule was based on a condition of facts not paralleled in the case at bar and can not therefore fairly apply .to this case.

It appears also that the evident intention of the testator in the case at bar ,as disclosed by his will w-as not to effect a conversion of his realty into personalty for the benefit of his widow. It is inconceivable that such a thought was in his mind when he executed this will. He expressly provides for her in a way utterly inconsistent with such a construction.

Under the well recognized rule of construction that the intention of the testator should control, as well as for the other reasons which we have stated, the finding of the court will be that the widow is not entitled to share in the proceeds of the realty.

Decree accordingly.


text:
    ACCOUNTING FOR. STOCK HELD IN TRUST.
    Circuit Court of Hamilton County.
    Carrie E. Bonnell and Allie L. Morris v. Frank W. Brown.
    Decided, March. 7, 1908.

      Assignment of Stock to Brother for Voting Purposes — Lapse of Time not a Bar to Recovery — How Trust may he Disclaimed — Laches— Statute of Limitations — Accounting—Title.
    Where stock in a turnpike company, not paying dividends, was assigned by sisters to their brother for the purpose of enabling him to be elected to the salaried position of secretary and treasurer of the company, and he thus held the stock for many years'and until , it became' valuable, he will not be heard in an action by the sisters for an accouriting to- plead laches or the statute of limitations, but under the evidence in this case a trust is fastened by parol, and an accounting will be ordered.

      G. W. Baiter, for plaintiff.

      Horslman & Horsiman, for defendant.
    Gieeen, J. • Swing, P. J., and Smith, J., concur.
   This 'Case involves the title.to 2006 shares of stock in the Reading Turnpike Company which originally belonged to the estate of Lloyd S. Brown, -deceased, father of plaintiffs and defendant. The plaintiffs claim that they assigned their interest therein to the defendant in trust to enable him. to be elected as secretary and treasurer of the company, -and that he .agreed to account to them for all dividends declared and the proceeds of any sale that might be made of the turnpike; un the other hand the defendant claims that the transfer was absolute upon consideration that he agreed to and did assume the payment of a debt of $4,613.88, owing by -the estate of Lloyd S. Brown, deceased, to the turnpike company, which consisted of unpaid and unclaimed dividends .to sundry stockholders and held by Brown as treasurer of the company.

The plaintiffs testify positively that on account of their youth and inexperience in business they requested delay in making the transfer in order to obtain the independent advice by their counsel, Judge Conner, but being assured by defendant that he would account to them for all dividends and proceeds of sale received by- him, and relying upon such promise and having implicit confidence in him as their brother, they joined .with their mother, as .administratrix of the estate, in .a transfer of the stock to the defendant. He .testifies at pages 235 and 236 of the transcript of the evidence that negotiations were had with his mother and Mr. John Cooper, president of the company, and that he finally accepted the stock and agreed to assume the debt of the estate. He denies that he had any conversation with his sisters, and it nowhere appears that the mother was authorized or assumed to act for them, or that they were informed of the result of the negotiations, except .as mfiy be inferred from the act of signing the transfer, which is nqt. by them denied and is entirely consistent with their version of the transaction.

The defendant’s own testimony therefore fails to show that the contract with the mother was finding upon the sisters unless afterwards ratified by them, -and in .the absence of other contradictory evidence we must hold the proof offered by plaintiffs to be of that clear and convincing character necessary to fasten a trust by parol evidence upon a conveyance absolute.'

The defendant pleads laches and the statute o'f limitations; but lapse of time as between trustee and cestui que trust is no bar, unless .the trustee disclaims the trust either expressly or by acts that necessarily imply a disclaimer for a period equal to that prescribed in the act of limitations. Williams v. The First Pres. Soc. of Cincinnati, 1 O. S., 478; Section 4974, Revised Statutes.

The .turnpike stock was transferred in 1881, and about ten or twelve years thereafter one of the plaintiffs, according to their testimony, made demand of defendant for her share of the dividends, and he replied “you will never get it” and at another time he made no reply to the demand, but took his hat and ¡walked out of the house in'a petulent mood, or as the witness expressed it “got mad.” This and other like testimony of the plaintiffs does not necessarily imply .a disclaimer of the .trust, and the •testimony of .the defendant excludes any thought or opportunity of disclaiming as appears at page 237, to-wit:

“Q. When did you see your sisters to talk anything about that transaction after it occurred? A. Well I never had any talk with them, except they would twit me in a sarcastic manner for years afterwards; they knew I "wasn’t making any money for years afterwards out of it; didn’t until after Mr."Cooper’s death. ’ ’

Again at page 240:

“Q. Did either of them at any time until shortly prior to the commencement of this suit ask for any part of the dividends or of the pike proceeds? A. Never have asked me. The first intimation I ever had that .they thought they were entitled,, to anything out of this pike was a letter I received from Judge F.erris asking me to come to his consultation room in the city. I received that letter during the first week of September, 1904, about .three months before they brought this suit.”

The plaintiffs aver in their amended petition that their brother promised that .if they would transfer .their stock to his name, so that he would '.appear as the' owner of the same, he would pay out of his salary any dividends as their father’s estate might be liable for, and that he was .then drawing a large salary.

They testify that they understood at that time that he receiving a salary of $1,200 per .annum.

We are of opinion therefore that he is entitled to credit himself with such amount as .will together with the salary received make an allowance of $1,200 per annum from .the date of the transfer until demand made in 1893 for an account; and thereafter, having rendered valuable services in the interest of the trust, he should be allowed a credit of such sum as will together with the salary received amount to $600 per annum until 1904, when a portion of the pike was sold; all such .amounts to bear interest. ITe should .also account for all dividends and proceeds of sale received by him on account of such stock together with interest on the several amounts from the time received. We find the .amount .in the hands of defendant .to be accounted for October 3, 1907, $9,904.18, subject to .verification by counsel.

Decree accordingly!


text:
    NEGLIGENCE AT A FOOTWAY OVER. RAILWAY TRACKS.
    Circuit Court of Montgomery County.
    Lena Lear, Administratrix, v. C., H. & D. Ry. Co.

      Negligence — License to Use Footway across Railroad Tracks — Child Run Over at such a Crossing — Questions for the Jury — •Verdict for Defendant in Negligence Case — Improperly Directed, When.

      1. Permission to construct and maintain a footway across railroad tracks, or long use of such a crossing, implies a license to pedestrians to cross at that point, and the rights of persons using such footway are not to he determined hy rules applicable to mere trespassers; and where a child nine years of age is struck hy a train at such a crossing, it is a question for the jury whether he could have avoided injury hy a proper use of his faculties.
    2. Where the undisputed facts do not show negligence on the part of the plaintiff contributing to the injury, and there is evidence tending to show negligence on the part of the defendant, it is error to direct a verdict for the defendant.
    The amended petition alleges that the defendant’s railroad extends through a thickly inhabited section .of the city of Dayton, a portion thereof extending from Washington street to Homestead avenue; that the portion of the railroad lying between said streets as aforesaid had been used by the public, including children, in general as .a passageway for foot passengers from and between said streets, with defendant’s knowledge, consent and acquiescence for some time previous to .the injury complained of; that deceased, a child nine years of age, while walking along the railroad track between the streets aforesaid was negligently run over and killed.

      Shearer, J.; Summers, J., and Wilson, J., concur.

       Affirmed hy the Supreme Court without report (60 Ohio State, 602).

   The judgment herein must be reversed for error in withdrawing the case from the jury and giving judgment for defendant.

There is evidence tending to show negligence on the part of the company in failing to stop the train; a conflict as to the distance within which it could have been stopped, etc.

There is also evidence on the question of the negligence of the decedent which should have been submitted to the jury, whether by the use of his faculties under all the circumstances he could have avoided the injury.

The decedent does not seem to have been a tresp.asser. Long use of the crossing ,and the permission to some one to construct and maintain a footway across the track or construction and maintenance of the same by the company itself (which does not appear) implies a license to foot passengers to cross the track at that p'oint. The right of the parties are, therefore, not to be determined by the same rule which would apply in case the deceased was a mere trespasser. Whether he was a trespasser was a question that should have been submitted to the jury.

The undisputed facts do not show negligence of the deceased contributing to the injury, and there is evidence tending to show negligence of the company.

Reversed and new trial granted.