author: MARRIOTT, J.

text:
    NEGLIGENCE — STREET RAILWAYS.
    [Richland (5th) Court of Appeals,
    February 5, 1913.]
    Voorhees, Shields and Marriott, JJ.
    Mansfield Ry. L. & P. Co. v. Sarah A. Kiner, Admrx.
    1. Driver of Vehicle Arriving before Entitled to Priority over Street Car at Intersection.
    The driver of a vehicle arriving at a street’ crossing in advance of a street car has the prior right to cross, and in doing so he may assume that. the approaching car is being operated in a careful and prudent manner and is under proper control, and that its speed does not exceed that fixed by municipal ordinance; and it is his right to proceed notwithstanding his • so doing may require that the speed of the car be reduced, or even that the.car be brought to a full stop to avoid a collision.

      2. Looking and Listening at Street Intersection not Prerequisite.
    It is not always incumbent upon one about to cross a street car track, either on foot or with a team, that he should look and listen for an approaching car, but it is sufficient if reasonable care is exercised, and whether or not: reasonable care was exercised in a given case is a question of fact for the jury-dependent upon the surrounding circumstances.

      3. Evidence of Decedent's Family Physician as Acceptable as that of Expert Witness.
    A jury may properly accept the testimony of the decedent’s own physician as to the cause of his death, as against the testimony of the physician of the company whose car struck him and that of an expert medical witness.
    [Syllabus by the court.]
    Error to court of common pleas.
   MARRIOTT, J.

The suit below was by Sarah A. Kiner, the administratrix of Philip Kiner, deceased, and against the Mansfield Railway, Light & Power Company, to recover damages for the alleged wrongful death of the decedent, husband of Mrs. Kiner, caused by the alleged negligence of plaintiff in error, in running and operating its cars on South Main street in the city of Mansfield, where at the intersection of Third street with South Main street, on June. 24, 1909, one of plaintiff in error’s ears collided with a heavily loaded‘wagon on which the decedent was then riding, and from which he was thrown to the street receiving injuries from which it is claimed he died on September 9, 1910. The action below was prosecuted by the. administratrix of the decedent for the benefit of herself, as widow, and a minor child of decedent, resulting in a verdict for $4,500, upon which judgment was rendered, which' is now sought to be reversed by this proceeding in error.

The amended petition upon which the case was tried charged in substance as follows: the plaintiff says that she is the duly appointed and acting administratrix o-f the estate of Philip Kiner, who died September 19, 1910, as hereinafter alleged; that defendant is now and was at the time of committing the grievances hereinafter complained of, a corporation organized under the laws of Ohio, and at the- time set forth herein, was operating a street railway in the city of Mansfield, Richland county, Ohio, with its cars and other necessary and proper equipment, tracks, wires, etc., and that said cars were run by electricity; that said defendant, at the time herein set forth, had a track on South Main street in said= city of Mansfield,' and operated its cars upon the said track; that said South Main street is crossed at right angles by First street of said city, and that both of said streets are public streets of said city, and much used and traveled by vehicles and pedestrians having occasion to use the same, and in running its cars over said South Main street and across First street the defendant was required to operate its cars with due care so as not to coiné in contact with persons or vehicles crossing its. tracks at the point described. That defendant was forbidden by the ordinance of the city of Mansfield, in force at the time in question, to run its cars upon its tracks within the city over the crossing of said described streets at a rate to exceed eight miles án hour.

Plaintiff says that on- June 24, 1909, the decedent, Philip Kiner, was driving a team of horses hitched to a wagon loaded with gravel along said First Street of said' city going westward, toward South Main street and the intersection of said First and South Main streets, and where so driving said team of horses, and while crossing said South Main Street, driving said team, and while seated upon said wagon, the said decedent’s team and wagon was struck by one of defendant’s cars running north upon its track on said South Main street, and thereby the decedent, Philip Kiner, was injured as herein set forth. She says that at the time decedent received his injuries and as he approached said South Main street to cross the same, and while exercising due care on his part, and without any negligence on his part, one of the defendant’s cars in charge of a motorman and conductor of defendant approached from the south, and while running at a reckless and dangerous speed, to- wit, at about twenty-five to thirty-five miles, struck decedent’s wagon and team; that when decedent started to cross the track of defendant he had ample time to cross in safety if the car striking decedent had been running at a speed not to exceed eight miles an hour, or at any reasonable speed, and decedent had a right to believe and did believe that said approaching car, which was a block and a half away from said crossing when decedent started across the track, was not running at a speed to violate the city ordinance nor at a speed that he could not cross in safety; that said car, in charge of the agents and servants of defendant, was run by said servants and agents of defendant at a speed in violation of the ordinance of the city, negligently, recklessly and willfully against the wagon and team of decedent and injured decedent as hereinafter alleged; that when decedent started to cross the track of defendant the motorman could see decedent starting across or upon the track with his team, two or three blocks away, and said motorman knew that at the speed he was running the car it would strike the team and wagon before it could get across; that decedent did not know the speed of the car and could not learn its speed from his position, and she avers that decedent reached the track when the car was at least a block and a half away, and had a right to cross, and that the agents and servants of defendant had ample time after seeing, as they did, decedent crossing the track, to have checked the speed of the car or stopped it, and thereby have prevented the collision. That the agents and servants in charge of the car negligently, recklessly and wilfully approached said crossing in a great speed and ran against the wagon and team of decedent with a great force and violence, and thereby hurled him from the wagon into the street, he thereby receiving injuries from which he died on- September 19, 1910. She says that by the contact of the car with the team and wagon of the decedent, the decedent was thrown into the street and under the horses’ feet; that two of his fingers of his left hand were broken or dislocated, his arm bruised and injured, his right eye was cut and his head injured, and his back and head were injured. That by reason of said injuries decedent was rendered unconscious for several hours, and from which injuries he died on September 19, 1910. That Philip Kiner left surviving him the plaintiff, who is his widow, and as sole next of kin Rebecca. Kiner, his daughter, aged 16 years, and she prays for judgment in the sum of $10,000.

To this petition the defendant below answers and says: it admits that it is and was operating a street railway in the city of Mansfield, Richland county, Ohio, with its cars and other necessary and appropriate equipment. It admits that on June 24, 1909, Philip Kiner was driving a team of horses attached to a wagon, loaded with gravel along Bast First street of said city, at a point where said First street of said city crosses South Main street. It admits that Bast First street and South Main street are public streets of said city. It admits that the ordinance fixing the rate of speed of street railway cars in the city of Mansfield is at the rate of speed not to exceed eight miles an hour. And then defendant denies each and every other allegation in the petition contained not herein expressly admitted. For a second defense the defendant avers that the injuries received by said Philip Kiner were caused by his own fault and negligence in failing to look and listen, or to take-any precaution whatever to ascertain the approach of a car. Wherefore it prays to go hence without day and for its costs.

To this answer the plaintiff below filed a reply, denying each and every averment of the answer charging contributory negligence to Philip Kiner, deceased.

Upon the issues thus made by the pleadings, the cause was tried to a jury at the January, 1912, term of court, resulting in a verdict of the jury in favor of the plaintiff below for $4,500.

' A motion for a new trial was made, heard and overruled, and judgment was rendered by the court upon the verdict. A bill of exceptions was allowed, signed and sealed by the trial court, and the cause is now before this court upon the petition in error, and the original papers in the case, together with the entire record.

The grounds of error upon which the plaintiff in error re • lies for a reversal are:

First. The verdict and judgment are contrary to the law.
Second. The verdict and judgment are against the weight of the evidence.
Third. That the court erred in the admission of evidence objected to by plaintiff in error.
Fourth. That the court erred in ruling out evidence offered by the defendant in error.
Fifth. That the court erred in its charge to the jury.
ISixth. That the court erred in refusing to charge the jury as -requested by the plaintiff in error.
Seventh. That the damages given by the jury are excessive.
Eighth. That the court erred in refusing to sustain the •motion made at the close of defendant in error’s evidence and renewed at the close of all the evidence, to direct a verdict in .favor of the plaintiff in error.

There is much conflict in the evidence, as shown in the record, as to the rate of speed at which the car was running at the time and before the collision with decedent’s wagon.

There is some conflict in the evidence as to the cause of Finer’s death, whether it resulted from the injuries' received at the time of the accident, or whether it resulted from causes in no way connected with the injury received at the time of the collision. Of this conflict in the testimony we will speak hereafter.

There is no dispute but that Finer, the plaintiff’s decedent, prior to the accident, was an able-bodied man; that he was •not known to be suffering with any disease which would impair his health or lessen his ability to perform labor and earn wages, save that some five or seven years prior to June 24, 1909, when he received the injury complained of, he had received .an injury while working for the Eclipse Stove Company of Mansfield, which resulted in the loss of his right arm near the elbow; that he had worked for the Eclipse Stove Company for some ten or twelve years prior to receiving the injury; that after losing his arm he took up the occupation of teaming and continued to do teaming until he received the injuries complained of in the petition. That he was capable of earning and did earn with his team, regularly, when working, four to five dollars per day.

It is not disputed but that the injuries complained of, and as a' result of which it is complained he died, occurred at the intersection of First street with South Main street in the city of Mansfield, on June 24, 1909.

It is not disputed but that there is a decline in South Main street from the top of a hill south of the point where First street crosses Main street for a distance of 1600 to 1800 feet; that the grade from the top of the hill south of First street is from three and a half to seven per cent, that for 500 feet immediately south of the point where First street crosses Main street the grade is seven per cent; that from the point where the accident occurred north, the street extends to Second street at a grade of about five per cent. This elevation and grade are shown upon the map and profiles of the street offered in evidence as an exhibit, and are conceded to be correct.

The evidence of Mr. Merkel, the city engineer, which is not controverted, establishes the fact that First street and Main street, at tbe point of intersection, where the accident occurred, are each sixty feet wide. Main street from the top of the hill south runs straight north into the city. There is nothing to obstruct the view from a distance of 1800 feet south of First street. The motorman in charge of the ear at the time of the accident concedes that he had full view of the entire distance of the street.

According to the undisputed evidence, South Main street on both sides for a considerable distance both ways from the crossing of First street, was built up with many residences, offices, and some business buildings. There are several streets and alleys crossing Main street south of First street.

The accident occurred at a most frequented part of the city of Mansfield, upon one of the principal streets of the city, upon which people were accustomed to travel at all times of the day. The accident occurred about 8:30 o’clock in the forenoon of June 24.

That the car was approaching the crossing at a high rate of speed there is little doubt. "Witnesses called by the plaintiff fix the rate at twenty-five to thirty-five miles an hour. The motorman in charge of the car could have seen decedent as he drove out of First street upon Main street, had he been keeping a lookout, for several hundred feet away. He could see, and if he looked he saw Kiner driving straight across the track, in the center of the street in front of him.

Geaorge Mortimer, an eyewitness of the accident, testifies that he was driving on Main street, about 300 feet south of First street; that the car passed him going thirty-five to forty, miles an hour; that he saw no decrease of speed until the ear struck the wagon; that the motorman did not have the brakes on when the car passed him, nor was he using the brake. He heard no alarm given; he says he saw the wagon driven by Finer, when the car was at Glessner street (which is more than 1000 feet south of First street, according to the map); that the horses were about to cross the street. According to this witness the car must have been traveling at a high and dangerous rate of speed to have traveled 1000 feet before Finer’s wagon was clear of the track.

Glenn Shaw, an eyewitness of the accident, says he was standing on Main street near the point of the accident; saw the ear coming down the hill a block and a half or two blocks south of First street; that the ear was coming at a rate of twenty to twenty-five miles an hour; that he saw Finer; that the horses’ feet were just on the track; that the motorman did not ring the bell nor set the brakes until after the ear struck the wagon, but that he set the brake after the ear struck the wagon.

Lester Simms, a witness for the plaintiff, was standing on First street east of Main, was looking west on First street, and saw the car strike the wagon; that the car was “coming pretty fast. ’ ’

Numerous witnesses testified to having heard the “crash” when the ear struck the wagon; some were in their houses with the doors closed when they were attracted by the “awful crash. ’ ’

John Barr, witness for plaintiff, had experience in running and operating cars on the streets of Mansfield, and especially on South Main street; he had been a motorman for the defendant company. He testifies that a car would run down the hill on South Main street at a rate of twenty-five to thirty miles an hour, unless the brakes were applied; if the car was) under control, running at a rate not to exceed eight to ten miles an hour, it could be stopped “easily” in three ear lengths; that a car is thirty to trirty-five feet in length.

The defendant called numerous witnesses to the accident who gave testimony directly and materially in conflict with the evidence offered by plaintiff as to the speed the car was running.

Harry Stiles was the motorman in charge of the ear at the time of the accident. He had been employed as a motorman only three or four months. He saw Kiner when he was about 200 feet away, near Augustine avenue. While this witness put the distance as about 200 feet. Augustine avenue, according to the measurements as shown upon the map, is more than 300 feet south of First street. He says he was coming down the hill at about eight miles an hour; that when he struck the wagon the ear was not running more than four miles an hour.

Witness B. F. Finley was the only passenger on the ear. He testifies that when he noticed the motorman trying to stop the car he “looked up and saw the wagon going across the track in front of the car.” When he saw the motorman trying to stop the car he thinks “the car was about at Corporation alley, south of First street, when the motorman made the effort to stop the car,” at the time the horses’ front feet were on the railway track. According to the undisputed evidence Corporation alley is 200 feet south of First street.

At this time, according to the testimony of the motorman, the ear was and had been under complete control, the brakes were on all the way- down the hill, a distance tif .more than 1,600 feet, yet when he applied the brake in an effort to stop the ear 200 feet from the wagon the wheels of the car slid or slipped on the rails.

It would seem unreasonable to suppose that if the car was running at a rate of speed not greater than eight miles, and the car was under complete control, that the tightening of the brakes would cause the wheels to slip upon the rails; but it would be quite reasonable to suppose and to believe that if the ear was being run down the hill at a high rate of speed, say twenty-five to thirty-five miles an hour, and the brakes were suddenly applied with force enough to lock the wheels, the momentum of the car would carry it forward and cause the wheels to slide upon the rails.

We 'think it quite consistent with reason and experience that if th-e car at the time the brakes were applied was not running at a much greater rate of speed than eight or nine miles, it could and would have been brought to a dead stop within much less distance than 200 feet, or even 100 feet; and we are forced to the conclusion, as the jury must also have been, that the motorman did not have his car under control, but that it was being run at a reckless and dangerous rate of speed at the time the brakes were applied if applied at all. We do not think the story of either the motorman or the conductor as to the speed the car was running, at the time of its collision with the wagon, is consistent w-ith truth or reason.

The wagon on which decedent was riding when struck by the ear was a new and very heavy wagon. It was very heavily loaded with gravel, weighing, according to the evidence, 6,000 or more pounds. The horses drawing the wagon were very large and heavy horses. They had crossed over the track and the ear struck the heavily loaded wagon near the center or back of the front wheels with such force as to shove or throw it entirely off the track, practically demolishing the wagon, throwing the horses to the pavement, hurling the driver to the street, and seriously crushing and breaking the front end of the car,

All these facts, of which there is no dispute, would seem to establish beyond a reasonable doubt that the defendant company was guilty of gross carelessness and culpable negligence in the running of its car at the time and place and under the circumstances as shown by the evidence.

There seems to be no substantial question but that the plaintiff’s evidence, if believed, showed a clear case of actionable negligence, warranting the jury in returning the verdict it did, unless we are to assume that the company had a right to operate its car at a dangerous rate of speed, without warning of approach at street crossings, and thus throw ail the burden of care on the traveler seeking to cross a street on which its track is laid and operated. This we are not ready to concede.

Each party had an equal right to the use of the street at the crossing. The decedent had a perfect right to go over the crossing ahead of the car, notwithstanding the fact that his doing so would require the speed of the car approaching to be retarded or even brought to a stop, if necessary, to prevent a collision. The one first at the crossing had the right to precede the other in going over the crossing.

Plaintiff’s decedent in approaching the crossing with the purpose of driving over the same had the right to assume, in the absence of knowledge to the contrary, that the motorman in charge of the company’s ear was regulating the speed of the car within the limits provided by the ordinance, and that he was operating his ear in an ordinarily careful and prudent manner; that is, that his car was under control so that the same could be stopped within a reasonable distance.

In the light of such presumption decedent would have the right to cross the track such a distance from the car as an ordinarily prudent person would undertake under the same or similar circumstances; and it would not be negligence for the driver of a vehicle to cross the street car track ahead of an ap- • proaching ear when the car was so far away that by the exercise of ordinary care it might be stopped before reaching the place of crossing. He would have the right to assume that cars operated on a public street, in a much frequented part of the city, would not be operated or run at a street crossing at a dangerous rate of speed, without at least giving timely warning of their approach.

Many authorities are cited by able counsel both for plaintiff and defendant on the relative rights of street ears and vehicles at crossings, and we acknowledge indebtedness to counsel for the assistance they have rendered the court; but we think the cases of Toledo Elec. St. Ry. v. Westenhuber, 12 Circ. Dec. 22 (22 R. 67), affirmed, no op., Street Ry. v. Westenhuber, 65 Ohio St. 567, and Steubenville & Wheeling Trac. Co. v. Bran don, 87 Ohio St. 187 [100 N. E. Rep. 325], lay down the law applicable to and controlling in the ease at bar, and we do not . deem it important to discuss or review the many other cases cited.

Counsel for plaintiff in error insist that the trial court erred in refusing to give to the jury the special charge requested, and in the language of the request, to wit:

“In crossing a street car track at the intersection of a street the driver of a loaded wagon is not required to look the whole length of the visible track to see if a car is coming, but the plaintiff would be required to look along the track far enough to warrant an ordinarily prudent man, having in mind his own safety, under like circumstances, to conclude that no ear was in such proximity as to endanger his safety in crossing. And if by looking Philip Kiner could have seen the approaching car in such proximity in time to have avoided the accident, your verdict should be for the defendant.”

We think the court in its general charge substantially charged the law as requested, and that it was not error not to repeat it in a special charge, and that the refusal to give the request was not prejudicial to the plaintiff in error.

The request was clearly taken from the eighth clause of the syllabus of the case of Marden v. Railway, 100 Me. 41 [60 Atl. Rep. 530; 69 L. R. A. 300; 109 Am. St. Rep. 476], 530, which reads:

“8. In crossing a ear track at the junction of a street, the traveler is not required to look the whole length of the visible track to see if a car is coming, but along the track far enough to warrant an ordinarily prudent man, having in mind his own safety, under like circumstances, to conclude that no car was in such proximity as to endanger his safety in crossing.”

This charge, as well as the charge requested, would be misleading in that it implies that under all and every circumstance “the driver of a loaded wagon,” in crossing a street ear track, while not bound to look the whole length of the visible track, yet nevertheless would be bound before crossing to look along the track, and this without regard to the particular circumstances of the case; that a failure to look along the track before crossing would defeat a recovery.

We do not think this is the law in Ohio. We do not think it is incumbent upon one about to cross a street car track, whether upon foot or with a team, as a matter of law, to look and listen. It is sufficient if he exercises reasonable care, and whether he exercises reasonable care is a question of fact for the jury, depending upon the circumstances of each particular case. Fifth and Sixth syllabi, Marden v. Railway, supra.

In Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. S. Rep. 207; 32 L. R. A. 276], the court lays down the following rule:

“A person about to cross the track of a street railway at a street crossing is bound to exercise care porportioned to the •danger to be avoided and the consequences which might result from want of it, conforming in amount and degree to the particular circumstances surrounding him; but it is only ordinary care which is required, that which might reasonably be expected of persons of ordinary prudence. Ordinary care does not require him to anticipate negligence on the part of those operating the railway. And while he should use his faculties for his own protection, it is not negligence per se for him to omit to look in both directions for the approach of a car. Whether it is or not negligence depends upon the circumstances.”

Massachusetts cases are cited in the opinion of the court to the following effect:

That the fact that plaintiff’s evidence does not show that he looked up and down the street before crossing is not as matter of law conclusive evidence that the mere fact of not looking when one attempts to cross a railroad is not conclusive evidence that he was not in the exercise of due care, and the consequences which might result from want of it, conforming in amount and degree to the particular circumstances surrounding him; but it is only of want of care. Citing Williams v. Grealy, 112 Mass. 82; Bowser v. Wellington, 126 Mass. 391; Shapleigh v. Wyman, 104 Mass. 118.

Our own Supreme Court, in the ease of Steubenville & Wheeling Trac. Co. v. Brandon, supra, lays down the following rule:

“Omission by one about to drive a horse and wagon across a street railway track constructed and operated upon a public street * * * to look for the approach of a car is not, in all cases and as matter of law, negligence which will defeat a recovery for injuries received by such driver in a collision between the wagon and a car of the railway company, his duty being to exercise ordinary vigilance to avoid a collision, and whether he has exercised such vigilance or not depends upon the circumstances of each particular case.”

We think there was no prejudicial error in the refusal of the court to give the charge requested.

Plaintiff in error contended at the trial below that decedent’s death did not result from the injuries received at the time of the accident, and to rebut the plaintiff’s evidence offered in support of her claim that decedent’s death was produced by the injuries received, or resulted therefrom, called two physicians, Drs. Findley and Harding, who testified that they saw Kiner (decedent) at the hospital immediately after he had been injured, and in company with Drs. Miller and Meeklem examined him with a view to ascertaining the nature of his injuries. They were occupied in their examination about thirty minutes and never saw the deceased afterwards, at least Dr. Harding did not. Dr. Findley was the regular physician and surgeon of the railway company, and Dr. Harding was paid by the railway company and made his report to the company’s surgeon, Dr. Findley. They both testified as medical experts, neither of them being the family physician of Kiner, or having any personal knowledge of the actual cause of death;0but in answer to various hypothetical questions gave it as their opinion that death was not the result of the injuries received on June 24, 1909.

Dr. W. S. Mecklem was the family physician of decedent. He took charge of Kiner the night of the accident, and he saw him every day for about two weeks after the injury, and then he saw him off and-oh at his office until Kiner was unable to be out of his house. He had been the family physician for two or three years before the injury. He testifies that Kiner was in good health until the time of the accident. That from the time of the injury until the death that decedent complained of pains in his breast and in his heart. He says he died of heart trouble — called by the expert physicians endocarditis, that is, inflamation of the lining of the membrances of the heart and valves.

This family physician, who treated Kiner from time of his injuries until he died, saw him in the morning of the day preceding his death and testifies that his death was caused by the injuries received at the time of the accident.

During all of the time intervening between the accident and the death of Kiner, he had great trouble in breathing, and toward the last of his sickness he was unable to lie down but sat propped up in a chair.

As against the testimony of Mecklem, Drs. Harding and Findley give it as their export opinion that death did not result from the injuries received at the time of the accident.

The jury are the sole judges of the weight to be given the testimony. These physicians appeared and testified before the jury. They had the opportunity to observe the medical witnesses in giving their testimony, and. their bias in the case, if any was manifested. Dr. Findley, as above stated, was the regularly retained physician and surgeon of plaintiff in error. Dr. Harding was a professional witness, and was usually called in such cases as a medical expert, according to his own testimony. The jury had the right to believe the testimony of the family physician as against both the other witnesses; and after carefully reading the testimony of these several witnesses it is manifest to the court, as it must have been to the jury, that the testimony of Dr. Mecklem, the family physician, sustained and reinforced by the testimony of the witness, had the greater weight.

The value of expert testimony, especially the testimony of medical experts, in many jurisdictions is not regarded as the highest class of testimony. Dr. Allen McLain Hamilton, in his “System of Legal Medicine,” has criticized the testimony of medical experts, and especially thé usual hypothetical question, and if he were to express himself since the celebrated' Harry Thaw trial he would use more vigorous language than he used at the time of writing his “System of Legal Medicine.” He says:

“Much criticism has been indulged in by the courts as to the value of expert evidence. Lord Campbell’s remark in the case of the Tracy Peerage, 10 C. L. & Fin. 191, has been often quoted to the effect that the skilled witnesses come with such bias on their minds to support the cause in which they are embarked that hardly any weight should be given to their evidence. ’ ’

And again:

“Attention has been elsewhere directed to the appearance of expert witnesses in courts of law, and the difficulties and abuses which attend the 'introduction of this kind of testimony have been pointed out. Much of the disrepute into which hired testimony has fallen is undoubtedly due to a kind of partnership which many men find it difficult to avoid, for the engagement of their services implies a bid for actual help in advancing a side by the building up of theories or reasons for the support of a more or less tenable position. If the expert be careless of his reputation, weak or. corrupt, he will lend himself to the side of the case upon which he has been retained, and in reality he becomes a pleader, prostituting his knowledge, stretching a point, or burying his conscience. ..
“If he is not absolutely free his sympathies will be appealed to. It therefore becomes him to avoid espousing the cause of any side. * * * In other words, the medical witness who is called to give his.opinion regarding the facts submitted to him should emulate the judge upon the bench in his impartiality. ’ ’

It is undoubtedly true, as stated by this eminent alienist, that so-called medical expert testimony is growing into disrepute before the courts of this country, and it is not strange that juries are often disposed to give little credit to it.

After reading the entire record, the court has reached the conclusion that the jury reached, to wit, that Philip Kiner’s death was caused by the injuries received at the time of the accident. It is not necessary that the injuries received should be the sole and only cause of death, but if they were the primary cause, or if they contributed to produce the condition which caused the death, it would be sufficient.

The expert physicians themselves admit that the heart trouble of which Kiner died might have been the secondary cause. Not only so, but Dr. Harding testifies that “if the rib was fractured directly over the heart, and that rib in any way pressed the covering of the heart, that such an injury might produce endocarditis,” the disease of the heart of which Kiner died.

Considering the whole record as it comes to this court, having carefully read it with a view to determining whether error intervened as claimed, the court is not impressed with the contention of the plaintiff in error that the verdict of the jury was against the weight of the evidence, or that the judgment was contrary to law.

We have reached the conclusion that the verdict of the jury was supported and warranted by the evidence, and that the court committed no error in rendering judgment thereon, or in overruling the motion for a new trial. The court finds no prejudicial error in the record, and the judgment is affirmed, with costs, but without penalty, and the cause will be remanded for execution.

Judgment affirmed.

Yoorhees and Shields, JJ., concur.


source: Caselaw Access Project

author: KINKADE, J.

license: Public Domain

text:
    BONDS — MUNICIPAL CORPORATIONS — TAXATION.
    [Williams (6th) Court of Appeals,
    January 23, 1915.]
    Kinkade, Richards and Chittenden, JJ.
    J. H. Schieber (Taxpayer) v. Edon (Vil.) et al.
    1. Municipal Power to Issue Bonds Without Vote of People Not Repealed by Tax Limitations.
    Section -3939 G. C. authorizing legislation by municipal councils, without vote of the people, to issue bonds for * * * street improvements is not repealed by implication by Secs. 5649-2 et seq. providing limitations upon taxation. Rabe v. Board of Ed. 88 Ohio St. 403, distinguished.
    2. Municipal Debt Creating Power Distinguished From Tax Limitations.
    Municipal debt creating power as conferred by Sec. 3939 U. C. et seq. and limitations upon taxation as provided by Sec. 5649-2 G. C. et seq., are clearly distinguished; hence, an Issue of bonds under the former sections will not be enjoined if payment thereof can be made without violation of the restrictions of the latter sections.
    Appeal from common pleas court.

      B. L. Starr, for plaintiff.

      G. A. Bowersox and Newcomer & Gebhard, for defendants.
   KINKADE, J.

The plaintiff brought an • action in the court of common pleas to restrain the village of Edon from issuing bonds in the sum of $5,200.00, the proceeds of which were to be used to pay a portion of the cost of paving streets in the village of Edon.

The contention of the plaintiff is that the village council had no power or authority to issue these bonds without a vote of the people. There is no question of irregularity in the proceedings to which we need give any attention if it be found that the council had authority under the law to issue the bonds.

The claim of the village is that under Sec. 3939 G. C., and the following sections covering the same subject, the council had full power and authority to issue the bonds mentioned. On the other hand, the plaintiff contends that See. 3939 G. C. was repealed by implication by sections 5649-2 to 5649-6 G. C. Counsel for plaintiff to sustain his position that section-3939 has been repealed by implication, cites and relies upon the case of Rabe v. Board of Ed. 88 Ohio St. 403. It is insisted that in all material respects Sec. 7629 G. C., relating to the power of school boards to issue bonds, is analogous to the like power conferred upon the village council in this case by Sec. 3939 G. C., and it is said that the authority thus conferred to issue obligations by the school board having been withdrawn by the repeal by implication ■ of Sec. 7629 through the enactment of Sec. 5649-2 and following, that a like result must be held here with respect to Sec. 3939. As has been well said by counsel for the village, we think this is a very marked difference between the scope of the power conferred upon school boards by Sec. 7629 and that conferred upon municipal councils by Sec. 3939, and, as has also been stated by counsel, a careful examination of the It abe case cited, will disclose that the court did not say that Sec. 7629 G. C. was repealed by implication. The court did say that Secs. 7591 and 7592 G. C., were repealed by implication and added that See. 7630 necessarily fell with the other two, but the case will be searched in vain for a statement that Sec. 7629 was repealed by implication, and we think the omission of the court to so state is a significant fact. Section 7629 G. C. is a section conferring power on school boards to issue bonds and corresponds with Sec. 3939 G. C., which is the section conferring upon municipal councils the power to issue bonds.

We think the point made by counsel for the village that there should be a clear distinction observed' between the debt creating power conferred by statute and the limitations upon taxation provided by statute is well taken. This principle is ably discussed by the supreme court of Illinois in the case of Coles Co. v. Goehring, 209 Ill. 142 [70 N. E. Rep. 610], to which our attention has been called in the brief of counsel.

This case has been very fully and ably briefed by counsel on both sides with the whole history of the legislation touching every section involved set out in detail. We have examined these various enactments and given the subject the fullest attention possible. It does not seem that any useful purpose would be served by an extensive review of the various points to which our attention has been called. We will state only the conclusion at which we have arrived after a thorough consideration of the questions submitted and it is this: That' Sec. 3939 G. G., in so far as it confers power upon the village council to issue these bonds, was not repealed by implication by Sec. 5649-2 G-. C. and the following sections upon the same subject, as shown by the latest amendments of these acts. We fhinlr the evidence in the case shows that the legislation enacted by the village council with respect to this issue of bonds is in accord with the requirement of the constitution with respect to the payment of the bonds by taxes to be levied and we see nothing to indicate that the village council may not cover the situation of payment without any violation of the statutory restrictions as to amounts that may be levied.

Eepeals by implication not being favored, the claim of the plaintiff in this action that the provisions of Sec. 3939 are thus repealed can only be sustained if that section is found to be clearly repugnant to the later enactments of the legislature. The provisions of Sec. 3939 are not necessarily in conflict "with the later enactments of the legislature with respect to the limitation of tax levies. There may be many cases in which that power can be exercised by municipal councils without any violation of other statutes as to limitation.

We hold, therefore, that the village council of Edon is clothed with power to issue the bonds in question without a vote of the people and that the plaintiff is not entitled to the restraining order prayed for, and such will be the decree of the court.

Richards and Chittenden, JJ., concur.


author: SHIELDS, J.

text:
    EXECUTORS AND ADMINISTRATORS.
    [Wayne (5th) Court of Appeals,
    January 28, 1913.]
    Voorhees, Shields and Marriott, JJ.
    Mary Harbeson, Admrx. v. William M. Mellinger et al.
    1. Administration Costs, “Debts” of Estate.
    Costs connected with the administration of the estate of & decedent and other obligations incurred in that connection are “debts” of the estate.
    2. Liability for Illegal Distribution of Personal Estate not Released by Discharge on Account Filed.
    The fact that, upon the filing of his account, the probate court discharged an administrator from all further liability on his bond as such administrator, does not release him or his surety from liability for wrongfully or illegally distributing any part of the personal estate.
    3. Widow’s Election not to Take under Will Entitles Her to Intestate? Distribution Only.
    A widow who elects not to take under the will of her deceased husband is entitled to only so much of the personalty belonging to the said estate as would have passed to her had her husband died intestate.
    [Syllabus by the court.]
    Appeal.

      Frank Taggart, for plaintiff.

      Kean & Adair, and Mahlon Rouch, for defendants. .
   SHIELDS, J.

This case is in this court on appeal from the judgment of the court of common pleas of this county and is submitted upon an agreed statement of facts. It is a suit brought by the plaintiff, Mary Harbeson, as administratrix of the estate of Sarah C. Fair, deceased, against William M. Mellinger and the American Surety Company of New York, defendants, to recover from the said defendants the widow’s share of the personal estate of her husband, Christian Fair, deceased, who died June 14, 1903, leaving a last will and testament, containing, among other provisions, the following:

‘ ‘ Item 2. I hereby direct that after my death my children or their legal representatives shall pay my funeral expenses and all my other debts, and the residue of my estate not hereby bequeathed to my wife herein mentioned shall be equally divided among my children or their legal representatives.”

Said will also contained a provision devising to Sarah C. ' Fair, his wife, certain real estate therein described and the household effects together with certain other personal property therein referred to. It appears that said will was duly probated and that the said Sarah C. Fair as such widow did not elect to take the provisions of said will. She died February 1, 1904.

It also appears that the defendant, William C. Mellinger, y$as appointed administrator of the estate of said Christian Fair, deceased; that the defendant, the American Surety Company of New York, became surety on his bond as such administrator, and for the purpose of paying the debts of said decedent and the costs of administering his estate, the said Mellinger as such administrator sold the personal property and certain real estate of said decedent; and that the balance of the real estate of said decedent was divided between Malinda Byland, Elizabeth Iíyle and Sadie Piper, children of the said Christian Fair, deceased, in certain partition proceedings, with the knowledge of said administrator. That after paying all of said debts and the costs of administration, the said Mellinger as such administrator had in his hands of the personal estate of said decedent the sum of $523.05, which said sum said administrator distributed to the legatees named in said will, but no part of which was paid or distributed to said widow. It also appears that among the assets of said estate was an insurance policy of $1,000 on the life of one Dr. Lerch, which the said Christian Fair in his lifetime had become the owner of, and which said policy of insurance said administrator procured an order of the probate court to distribute in kind .among said legatees who accepted the same. That no part of said insurance policy yvas paid or distributed to said widow. That afterward said administrator filed partial accounts in the probate court showing the distribution of said sum of money above referred to, and also his account showing the distribution of said insurance policy in kind among said legatees, which said accounts were by said probate court approved.

It is claimed on behalf of the widow that having declined to accept the provisions of said will by taking nnder the law she is entitled, under the laws of. this state, to recover her share of the personal estate of the said Christian Fair, deceased, after said debts and costs of administration are paid, including her share as widow out of said insurance policy, while the defendant William M. Mellinger claims that he distributed said estate under the order of the probate court and is therefore discharged from all liability growing out of the administration of said estate.

The first inquiry which arises is, did said decedent have any personal estate? The first item in said will indicates that he did, for he therein bequeaths certain personal property to his wife, and in addition to this, the agreed statement of facts shows that said administrator received from the sales of personal property the sum of $523.05. As stated, the widow declined to accept the provisions of said will; hence in taking under the law she can only avail herself of the provisions of the law in respect to her rights as widow in the personal estate of the said Christian Fair, had he died intestate.

Section 10571, G. C., provides that:

“The election of the widow or widower to take under the will shall be entered upon the minutes of the court. If the widow or widower fails to make such election, she or he shall retain the dower, and such share of the personal estate of the deceased consort as she or he respectively would be entitled to by law in case the deceased consort had died intestate, leaving children. ’ ’

But it is claimed that inasmuch as the widow elected not to take the provisions of said will, she is barred of distribution in any of the moneys remaining in the hands of the administrator as personal property after the payment of the debts of the said decedent. Having elected to take under said will, the widow of course is remitted alone to the provisions of the law, for she can not invoke the benefit of both. She must rely upon one or the other.

Item 2 in said will directs that “out of my estate my children shall pay my funeral expenses and all my other debts. ’ ’

It is contended by the'defendants that the term “debts” as used here does not include the payment of costs of administering said estate. In this contention we can not agree, for it is held that the term “debts” includes not only the debts that the testator was owing at the time of his decease, but also all that might accrue thereafter in the settlement of his estate. Bane v. Wick, 14 Ohio St. 505, 514.

Hence we are of the opinion that the costs of administering said estate, including all other estate obligations arising out of the same — obligations created by law — are debts payable by said estate within the meaning of the term “debts” used in said item.

Is the personal estate of the said decedent liable for the debts of the decedent? Ordinarily the personal estate of a decedent is primarily liable for the payment of his debts, unless in a case where there is a will the testator by express words or by manifest intention, excepts it. Bane v. Wick, supra, McFait’s Appeal, 8 Pa. St. 290, 292.

From the first item of said will which gives to the widow certain real estate, and in substance his personal estate, it is apparent that the intention of the testator was that his personal estate should not be applied in discharge of his debts. In answer to this the defendants say that the widow having declined to take under the 'will, the case does not fall within the exception referred to in the authority cited, but does it not follow that the legatees named in said will having accepted the benefits thereunder, must likewise assume the burdens? As stated by the learned judge announcing the opinion in the case of Case v. Hall, 52 Ohio St. 24, 32 [38 N. E. Rep. 618; 25 L. R. A. 766], “that he who takes a benefit under a will must take it subject to its provisions; any other construction would necessarily defeat the intention of the testator.”

In the case at bar it appears that the administrator, with the consent of the children, caused the personal property and certain portions of the real estate to be sold to pay the debts of the said decedent, and that after the payment of such debts and the costs and expenses of administering said estate, there was a balance of $7,533.08 remaining in his hands, of which said sum the sum-of $523.05 was received from the sale of personal property belonging to said estate. This sum of $503.05 is exclusive of the $1,000 insurance policy on the life of Dr. Lerch, which it appears the said Christian Fair in his lifetime had become possessed of. It is claimed on behalf of the defendants that an application was made by the administrator Mel-linger to the probate court for an order authorizing him to distribute said insurance policy to said legatees in kind, and that after a hearing had said court granted said order, and upon report made by the administrator of such distribution, said court confirmed the same. It is claimed that the widow is concluded by these proceedings, and to sustain such claim, among others, counsel for defendants cite us to the case of Eichelberger v. Gross, 42 Ohio St. 549, and quote therefrom as follows :

“The judgments and orders of the probate court, including the approval of partial and final accounts of guardians, import absolute verity, between the parties thereto, and they can not be contradicted or questioned collaterally.”

We have no hesitancy in recognizing the probate court as to matters coming within its jurisdiction as a court of record, and that its judgments are of the same binding force as judgments in other courts, but such court must have jurisdiction of the parties to enable it to either judgment. How was it here? The agreed statement of facts signed by the parties hereto shows that the administratrix of the estate of the widow was not a party to these proceedings; hence she could not be, nor was she bound thereby, Swearingen v. Morris, 14 Ohio St. 424, 433.

The mere fact that the probate court made an order discharging said administrator from all further liability on his bond as such, upon the filing of his final account, is immaterial and of no legal effect, if distribution of the personal estate of said decedent was wrongfully made, and under the facts as we find them in this case, we are of the opinion that such personal estate was illegally and wrongfully distributed, and that the widow of the said Christian Fair, deceased, is entitled under the law to her distributive share in the personal estate, that is, that the plaintiff as administratrix of Sarah C. Fair, is entitled to recover a judgment against the defendants William M. Mellinger and the American Surety Co. of New York for one-half of the present value of said insurance policy up to $400, and one third of the balance in excess of $400, including also one-third of said sum of $523.05, with interest on the sum so found to be due, from May 7, 1910. Exceptions noted.

Voorhees and Marriott, JJ., concur.


author: METCALFE, J.

text:
    DEATH — MINES AND MINING — STATUTES.
    [Guernsey (7th) Court of Appeals,
    November 16, 1914.]
    Metcalfe, Pollock and Spence, JJ.
    Edmund Burnett v. National Coal Co.
    Lineal Heirs Includes Parents in Law Relating to Right of Action for Death in Mine.
    The term “lineal heirs” as used in Sec. 972 G. C. before the amendment thereof, 103 O. L. 67, is not confined to children of a decedent but includes the parents as well.
    [Syllabus by the court.]
    Error to common pleas court.

      J. II. Mackey, for plaintiff in error.

      Scott & McCullough, for defendant in error.
   METCALFE, J.

David Burnett was an employe of the defendant company, which is a corporation engaged in the business of mining coal. While at work in one of the mines of the company he received injuries resulting in his death. It is claimed that such accident was caused by the negligent acts of the defendant company. Tie left no widow or children, nor descendants of children, nor brother nor descendant of a brother, but did leave his father and one sister surviving him. The father brings this action to recover under said Sec. 972 G. C.

His right to recover in this case depends upon the construction to be given to the term “lineal heirs” as used in said section. Said section 972 G. C. so far as necessary to be considered in this case reads as follows:

“In ease of an injury to persons or property, occasioned by a violation of any of the provisions of this act, or any willful failure to comply with any provision of this act by any owner, lessee or agent of a mine, a right of action shall accrue to the person injured, or any direct damage he may have sustained thereby. In case of loss of life, by reason of such willful neglect or failure, a right of action shall accrue to the widow and lineal heirs of the person whose life has been lost, for like recovery of damages for the injury they shall have sustained. ’ ’

That the right to recover provided for by this section is limited to widow and lineal heirs is plain enough, but the contention is who are the “lineal heirs”? It is claimed on the one hand that it refers only to children and their descendants, and on the other hand that it includes the parents and all those who are in a direct line of relationship whether upward or downward.

Authority on this question is somewhat meager. Webster defines lineal “descending in a direct line from an ancestor; hereditary; derived from ancestors:- — opposed to collateral; as, a lineal descent, or a lineal descendant.”

Lineal consanguinity means relationship in a direct line up or down, 2 Repalje & Laurence L. D. 763. A child is lineally related to its father and mother, and the father and mother are lineally related to the child. A man’s ancestors are just as much lineally related to him as his children and their descendants. One is above and the other is below, but the relationship is direct. It is urged that this is not a question of consanguinity. The statute uses the term “lineal heirs” but has a person any “lineal heirs” who are not related to him? Under Secs. 8573, 8574, G-. 0. the father is an heir to his son in default of certain other heirs. That is to say he inherits directly the property of his son if there are none of the persons living upon whom the statute easts a prior right of inheritance. The statute does not use the term “lineal descendants.” The father is an heir and is lineally related to the son, why then does he not come within the terms of this statute? Can any good reason be given why the statute should be restricted to descendants alone when there are others who áre lineally related to the decedent and are heirs? Such a construction seems to us narrow in the extreme. It is true this statute is in derogation of the common law and must receive a strict construction. That is, its terms must not be extended beyond the plain import of the words used, but we are clearly of the opinion that the words “lineal heirs” include within their plain meaning both ancestors and descendants.

The only ease which we have been referred to and which we have been able to find bearing directly upon this question is Willis Coal & Min. Co. v. Grizzell, 198 Ill. 313 [65 N. E. Rep. 74], In this case the court had before it for construction a statute of Illinois very similar in terms to Sec. 972 G. C., and the question to be determined was whether or not the father, as in this case was or was not a “lineal heir.” In the syllabus the court says:

“Under Sec. 33 act of April 18, 1899 in relation to minors R. S. 1899 page 1175 providing that ‘in case of death by willful violation of the act a right of action shall accrue to the widow of the deceased, his lineal heirs or adopted children,, or any other person who is dependent for support upon him.? The right of action is in the widow if there is one; if not, then in the lineal heirs, which include parents or adopted children. ’ ’

And in the opinion page 76:

“Lineal consanguinity is that relation which exists among persons where one is descended from the other, as between son and father or grandfather, and so upward in the ascending line, and between father and the son, his grandson, and so downward in the direct descending line.”

The judgment in this case is reversed and remanded to the common pleas court with instructions to overrule the demurrer to the petition.

Pollock and Spence, JJ., concur.


text:
    COUNTIES — MASTER AND SERVANT.
    [Columbiana (7th) Court of Appeals,
    March 28, 1913.]
    Metcalf, Norris and Pollock, JJ.
    Crawford v. Columbiana Co. (Comrs.) et al.
    1. Commissioners Liable for Negligence in Maintaining Children’s Home.
    Where a county or a district maintains a children’s home under the provisions of Secs. 3077 and 3109 et seq., G. C., the county commissioners in their capacity as the board of managers thereof are liable in their official capacity for negligence in maintaining such institution, independent of the provisions of Sec. 2408 G. C.
    2. Employe of County Children’s Home may Maintain Action against County Commissioners for Negligence of Superior Servant.
    Where an employe of such institution is injured by the negligence of a superior servant under such circumstances as would ordinarily create a liability between employer and employe such employe may maintain an action against the county commissioners in their official capacity for damages arising therefrom.
    [Syllabus by the court.]
    Error.

      E. L. Cobourn, for plaintiff in error.

      William E. Voch-ey, for defendants in error.
   METCALFE, J.

The plaintiff here, Erma V. Crawford, was plaintiff below, and her action was brought against the several defendants to recover damages for injuries, which she claims to have sustained, by reason of the joint negligence of the defendants. She avers in her petition that the Eairmount Children’s Home is a children’s home formed under the statutes of Ohio, by the union of the counties of Columbiana and Stark into a joint district under the control of the joint board of commissioners of Stark and Columbiana counties, and a board of trustees, ¡consisting of three members. She sets out certain alleged acts of the defendants by reason of which the injuries which she sustained were caused, and alleges that those acts were the negligent acts of the several defendants in maintaining said institution.

It is needless to recite the acts complained of, for the questions involved in the case do not involve 'the question whether or not the acts themselves are such as would ordinarily sustain an action for negligence, but the question which arises in the case is-, whether or not there is any liability on the part of the-defendants, even though the acts set forth are negligent. The-question arises on demurrer to the petition. In the court of common pleas the demurrer was sustained, and the plaintiff, not desiring to amend her petition, allowed judgment to betaken against her, and the petition dismissed. She then filed her petition in error here to reverse the judgment of the court of common pleas upon that demurrer.

The question here presented is one which we, at first blush, thought was decided by a number of cases in Ohio, but upon more mature consideration, we have come to the conclusion that the question here involved is not settled by the adjudicated, cases in this state. The question, in short, is whether or not an action for negligence can be maintained against the commissioners of a county, or against the joint board of commissioners of two or more counties, which have been formed into-a district, for the purpose of maintaining, under the law of Ohio, a children’s home independent of the provisions of Sec. 2408, G. C.

The statutes under which this children’s home is organized do not impose upon the county commissioners a duty to provide-such homes except upon a vote of the people; that is to say, by the provision of the statutes the county commissioners may, of their own volition, submit the question to the people, whether or not a children’s home may be provided, or they are required to submit the question if a petition is presented to them signed by a certain number of voters residing within the county, or the district, requesting a vote upon the proposition to maintain such a home. So that the question of maintaining a children’s home is entirely a voluntary question. It is not a duty which is imposed, by law, upon all the counties of the state alike, but •one which the people of any county may impose upon themselves if they so desire. When they have determined, by a vote taken in pursuance of the statute, that they will maintain a children’s home, then the duty of taking charge of that home is imposed upon the commissioners, and a board of trustees, to be appointed by the commissioners.

In the case of Hamilton Co. (Comrs.) v. Mighels, 7 Ohio St. 109, it is held that the board of commissioners of a county are not liable, in their quasi-corporate capacity, either by statute or at common law, to an action for damages for injury resulting to a private party by their negligence in the discharge •of their official functions, overruling the case of Brown Co. (Comrs.) v. Butt, 2 Ohio 348, which held a contrary doctrine. So far as the general doctrine is concerned that the county commissioners of a county are not liable in their corporate capacity for injuries resulting from their negligence in the performance of the duties imposed upon them by law there has been no deviation from the holding in the Hamilton county case, but that case has been followed in a number of eases since then, and it is not only the law of this state but probably is the law of every state in the Union.

There is, however, another line of cases, none of which arise in this state, which makes a distinction between the liability of the commissioners for negligence in the performance of those duties which are imposed upon them by law, which are general in their application and apply to all of the commissioners of all the counties in the state alike, and those duties which arise in carrying out a policy or in the performance of a duty which has been voluntarily assumed by the people of the county for particular purposes; but before we discuss that question perhaps we should discuss another question which arises in this case. It is insisted that in this state no action can be maintained against the commissioners either for negligence' or for any other cause, unless there is a statutory provision authorizing such action; that is to say, that the commissioners can neither sue nor be sued, except as they are specially authorized by statute to do so.

We think, upon an examination of the law, that that objection is not tenable. By Sec. 2408 G. C. it is provided that the board of county commissioners may sue and be sued, plead and be impleaded in any court of judicature, bring, maintain and defend all suits in law or in equity, involving an injury to-any public, state or county road, bridge, ditch, drain or watercourse, established by such board in its county and for the prevention of injury thereto. It then provides that the board shall be liable in its official capacity for damages received by" reason of its negligence or carelessness in keeping any such road or ditch in repair, and in some other respects. It will be-noticed that all the cases enumerated, in which the statute? provides for the liability on the part of the commissioners for carelessness or negligence are cases where, by the common law,, no such liability existed before 'the passage of the act, and we; are asked to infer, by reason of the enumeration of particular-instances in which the board of commissioners are authorized to bring suits, either at law or in equity, and of other instances, where they are liable, that therefore there is no liability on the-part of the board unless such liability is fixed by statute.

It is true that no suit, either at common law or equity,, could be maintained against the state, as such, but the recently adopted constitutional amendment provides that the legislature; may authorize such suits; but it does not follow that a subdivision of the state may not maintain an action or may not be-subject to a liability. It does not follow that, because the-county commissioners, in their corporate capacity, are not liable-for their negligent acts in certain instances, they may not be endowed with corporate capacity to sue and be sued in other-instances where the law either permits or requires them to act.

In Hamilton Co. (Comrs.) v. Noyes, 35 Ohio St. 201, in the first proposition in the syllabus it is held:

“1. The capacity of the county commissioners to sue is-, not limited to the cases enumerated in section seven of the ‘Act establishing boards of county commissioners and prescribing their duties. ’ In the cases enumerated in section seven (which is the equivalent, of Sec. 2408 G. C.) they are not only authorized but required to sue.
“2. Where a cause of action in favor of the county arises out of a subject-matter within the control of the county commissioners, suit may be brought thereon in the name of the board, unless, by statute, the suit is required to be brought in some other mode.”

In Shanklin v. Madison Co. (Comrs.) 21 Ohio St. 575, it is held that the commissioners might maintain an action upon a certificate of deposit, issued by a bank, where such certificate had been turned over to the county by an officer in settlement of an alleged embezzlement of which he had béen guilty.

Ketter v. Scioto Co. (Comrs.) 29 O. C. C. 149 (8 N. S. 73); Hassenzahl v. Bevins, 24 O. C. C. 173 (2 N. S. 496), and Jones v. Lucas Co. (Comrs.) 57 Ohio St. 189 [48 N. E. Rep. 882; 63 Am. St. Rep. 710], are eases which fully recognize the right of the county commissioners to sue or be sued, independent of the provisions of Sec. 2408 G. C. in causes of action arising upon matters which are within the control of the county commissioners, so that we think that the right of the county commissioners, either to sue or be sued, is not entirely dependent upon the statute, and is not limited to the eases enumerated in the statutes, but that actions may be maintained against them the same as against any body corporate in cases where the acts out of which the liability arises are within the scope of their powers.

It may be that we have stated this proposition a little too broadly, but we are satisfied that the right to maintain an action against the commissioners is not limited to the cases enumerated in the statute.

Now, as to the question whether or not a liability arises in this case. The organization of this children’s home was entirely a voluntary act on the part of the people of the counties of Stark and Columbiana. It was not a duty which was imposed upon them by statute. A right to organize such a home was created by statute, or, at least, was provided for by statute, but the people were under no legal obligation whatever to cause to be erected and maintained such a home. So that it was purely a voluntary act on their part, one which they could accept or reject, at pleasure. If the majority of the people voted to maintain it, then it became the duty of the county commissioners to provide the lands and buildings necessary for its proper maintenance. Otherwise there was no duty whatever imposed upon the commissioners in respect to the children’s home. We think the law recognizes a distinction between those cases where a duty is imposed by law upon the commissioners or the people of the county, which is general in its application throughout the state, and rests upon all counties alike, and those cases where the duty is self-imposed, and this distinction is quite clearly stated in the case of Bigelow v. Randolph, 80 Mass. (14 Gray) 541, in the opinion of the court. In that case it was held that no liability rested upon the board of county commissioners for the acts which were charged in the petition of the plaintiff, but in discussing the question the judge delivering the opinion of the court uses this language:

“This rule of law, however, is of limited application. It is applied, in case of towns, only to the neglect or omission of a town to perform those duties which are imposed on all towns, without their corporate assent, and exclusively for public purposes; and not to the neglect of those obligations which a town incurs, when a special duty is imposed on it, with its consent, express or implied, or a special authority is conferred on it, at its request. In the latter eases, a town is subject to the same liabilities, for the neglect of those special duties, to which private corporations would be, if the same duties were imposed or the same authority were conferred on them — including their liability for the wrongful neglect as well as the wrongful acts of their officers and agents.”

In the case of Hannon v. St. Louis County, 62 Mo. 313, the syllabus is as follows:

“The rule that counties, being political subdivisions of the state, are not liable for the laches or misconduct of their servants, has no application to a neglect of those obligations incurred by counties whe'n special duties are imposed upon them. Thus, where the county of St. Louis made a contract for laying water-pipe to the county Insane Asylum, the work being done under the supervision of the county engineer,. and, while a trench was being dug in the grounds of the asylum, it .caved in and killed one of the workmen, it was held that the duty in which the county was engaged was not one imposed by general law upon all counties, but a self-imposed one.”

And it is held that the county was liable in this instance.

In the case of Coburn v. San Mateo County, 75 Fed. Rep. 521, it is held:

“A county is liable for trespasses or damage done to private property by its officers, in the exercise of powers conferred •for the benefit of the locality and its inhabitants, such as those relating to the opening and keeping open of roads, as distinguished from powers relating to the administration of the general laws and the enforcement of the general policy of the state. ’ ’

Very likely this decision would not apply in Ohio as to a liability for negligence in respect to a road. We cite it only, however, to illustrate the principle upon which these cases go, that' where the duty which the county commissioners are performing is self-imposed, one which has been voluntarily assumed by the people of the county and not one which has be'en imposed by general law, a liability exists for negligence.

Again, in the case of Rowland v. Kalamazoo County, 49 Mich. 553 [14 N. W. Rep. 494], it is held:

“In clearing up the poor-farm, the superintendents could not, nor could those in their employ, with impunity, negligently set fires, or carelessly permit them to extend to and destroy the property of their neighbors, nor could they permit the farm stock to trespass upon, the lands of adjoining proprietors and claim exemption from all liability therefor. ’ ’ .

And in this case the distinction which I have attempted to make is clearly drawn.

In 7 Am. & Eng. Enc. Law (2 ed.) 953, the rule is thus stated:

‘ ‘ The prevailing rule that a private action cannot be maintained against a county for neglect of corporate duty, unless the action be given by statute, has been held to be of limited application. Thus the rule has been held to apply to the neglect or omission of a county to perform those duties which are imposed on all counties without their corporate assent, and not to the neglect of those obligations which a county incurs when a special duty is imposed on it with its1 consent, express or implied, or a special authority is conferred on it at its request. In the latter case the county is subject to the same liabilities as private corporations for the neglect of those special duties. ’ ’

The cases quoted above are cited in the note, and there are also a number of other cases which hold clearly the same doctrine.

So we have come to the conclusion in this ease that there is a distinction between the ease at bar and the case of Hamilton Co. (Comrs.) v. Noyes, supra, and those cases which follow the doctrine there laid down; that in this case the duty which the commissioners were performing was a self-imposed duty, one which the citizens of the counties of Stark and Columbiana had .voluntarily assumed, and that in the performance of the duties thus- imposed a liability exists for the negligent acts of the persons performing those duties.

So we think that it was error for the court of common pleas to sustain the demurrer to the petition in this case, and the judgment of the court of common- pleas is reversed.

Judgment reversed.

Norris, J., concurs.

Pollock, J., concurring.

I do not dissent in this case, but I reached the conclusion somewhat differently from my brother. Perhaps I should state my views.

I do not think that when a children’s home is established by the county the county is performing that duty in any different way from any other duty imposed on a county by statutes.' Long before tbe act establishing a children’s home it was the county’s duty to take care of its indigent children, and they were taken care of in the infirmaries of the county. A sentiment grew up that the latter were not proper planes for the rearing of children, and the legislature then passed this act authorizing the establishment of children’s homes but not mak- . ing it a requirement on the county until the electors had voted in favor thereof. After the home was authorized a duty was imposed upon the county, just as any other duty is imposed' upon it.

So that I think the liability of the county in the management of a children’s home is just the same as liability for any other act the statute imposes upon it. In the examination of the authorities I think you will find two clear and distinct lines.

One exempts the county from liability for the negligence of its agents and servants, and if it is the political division of the state known as the county that is being sued in tort for the negligence of its agents, the suit cannot be maintained.

The other line holds that the distinction is in the acts which the counties are engaged in; if the act is simply a governmental one they cannot be held liable; but if they have exceeded that and gone into the transaction of business the same as private corporations or individuals, they then can be made, liable or held liable for the acts of their agents and servants.

Up to the present time I think the policy of the courts of this state has been to adopt the former. But I believe the latter • is more in keeping with justice and right, and for that reason I do not dissent.


text:
    INSURANCE.
    [Portage (7th). Court of Appeals,
    March 30, 1914.]
    Metcalfe, Norris and Pollock, JJ.
    J. R. Roberts & Son v. National Ins. Co.
    Reformation of Policy Renewal Containing Changes Detrimental to Insured, Granted, though Insured Failed to Examine Policy and Burden on Insurer to Show Insured’s Knowledge of Changes, by Insured.
    An agreement was made between an insurance company and a policy holder to renew a policy. Nothing was said by either party at the time as to any change in the terms of the policy. A renewal policy was issued by the insurer which contained a clause materially affecting the right of the insured to recover in case of loss. The insured upon receiving the policy laid it away without examining it and did not discover the change until after a loss occurred. Field:
    1. Proof- of such facts by clear and convincing evidence entitle the insured to a reformation of the policy by striking out the added clause.
    2. The insured on receiving the renewal policy had a right to understand that the terms thereof were substantially the same as those of the first policy; and it was not laches under the circumstances not to read the policy.
    3. The insurer claiming that a change was made in the original policy after the same was delivered and that the renewal policy was issued in accordance with such original policy as so changed, the burden of proving such change by clear and convincing evidence is on the insurer.
    [Syllabus by the court.]
    Appeal from common pleas court.

      J. L. Kohl and H. B. Loomis, for plaintiff.

      W. J. BeeTdey and Webb & Webb, for defendant.
   METCALFE, J.

This action was brought to recover upon an insurance policy issued by the defendant company to the plaintiffs January 3, 1912, upon which it is alleged a loss by fire occurred on February 22, 1912. The answer of the defendant company, after stating some matters in defense which are unnecessary to be considered now, alleges that the policy contained the following provision:

“It is expressly stipulated that the assured shall before this policy shall take effect, (providing that no inventory has been taken within twelve months) make an inventory of the stock to be covered hereby, and shall keep books of account correctly detailing purchases and sales of said stock from and after the date of said inventory, both for cash and credit, and shall keep said inventory and books securely locked in an iron safe or away from the property hereby insured during the hours that such store is closed for business. Failure to observe these conditions shall work a forfeiture of all claims under this policy.”

It is then averred that plaintiff failed to make an inventory of the stock covered by the policy, failed to keep books of account correctly detailing purchases and sales of stock and also failed to keep said books locked in an iron safe or away from the building containing the property insured by said policy during the hours that the store was closed for business.

Plaintiffs thereupon filed an amended petition in which it is averred in substance that the policy upon which the action was founded was a renewal of a policy issued by the defendant company to the plaintiff January 3, 1911, and numbered 118588: that said policy, so issued January 3, 1911, did not contain the clause set out in the answer of the defendant, or any provision of like nature; that the policy sued on was issued in renewal of the first policy, and that the plaintiffs were unaware that said second policy contained said provision, and that the same was inserted in said policy without the knowledge of plaintiffs, and that the contract for the renewal of said policy was upon the same terms and conditions as were contained in the policy of January 3, 1911. Plaintiff prays for a reformation of the policy.

It is admitted in the answer to the amended petition that the policy issued January 3, 1911, did' not contain the clause in controversy, known technically as the “iron safe clause” but that after it had been issued the defendant had received notice from its local agent that it had been issued without said clause. That the company declined to carry the plaintiffs’ risk unless that provision was made a part of the policy, and that thereafter on February 4, 1911, said policy as originally issued was corrected by the insertion of what is known as the “country store form” and the same appears in policy 124387 which is the policy sued ón and which form- contains the stipulation hereinbefore recited, and the defendant avers that the second policy was a renewal of the first policy as corrected. This is denied by the plaintiffs. The question here presented to us is whether or not the plaintiffs have made a ease for the reformation of this contract.

It seems to us that the entire question hinges upon the contention of the defendant that the policy issued January 3, 1911, was corrected by the insertion of the-so-called “iron safe clause.” It appears conclusively that the first policy did not contain that clause and so far as appears from the evidence at the time the policy was issued, and in the negotiations for the same," nothing was said by the plaintiffs or by the local agent of the defendant company, Mr. E. M. Roberts of Ravenna, about any such clause. Mr. Roberts, the agent, after he had been informed by the company, as he says, that they did not care to carry the risk ■ without the insertion of that clause, states that he went to the place of business of the plaintiffs and that he said to Mr. Walter Roberts, the son and a member of the firm, that the company declined to carry the policy unless it was changed to the usual country store form, and that he gave to Mr. Roberts a slip containing the clause above quoted, and told him to paste it on the policy, which he says Mr. Roberts agreed to do. Mr. Walter Roberts emphatically and positively denies having any such conversation with Mr. E. M. Roberts or that he ever delivered to him any such paper, as he says he did. Mr. E. M. Roberts says that at this time there was nothing said about an iron safe or any safe, and that all he said about it was that it was' the usual country store form of policy and that the company would not carry it in the form in which it had been originally issued.

In order to entitle a party to a reformation of a written contract it is necessary that the proof should be clear •and convincing. Considering the contention of the defendant that the policy was corrected after it had been issued by the insertion of the clause in question, how stands the proof? The first policy issued did not contain the clause in controversy. The evidence is clear enough that this second policy, the one sued on, was a.renewal of that policy and that in the negotiations for the renewal nothing whatever was said by either party regarding the iron safe provision or the country store provision or anything as to the form of the policy. .Whether the renewal was first requested by the plaintiffs or whether the plaintiff was notified by the agent that the first policy was about to expire and a renewal requested is immaterial. They did negotiate for a renewal and the renewal contains a clause entirely different and which places upon the plaintiffs additional burdens and obligations which were not contained in the first policy. So that so far as the contract between the parties for the renewal of the first policy is concerned, the evidehce is clear and convincing, in fact beyond any controversy, that the second policy was not issued in accordance with the terms and conditions of the first policy and that there was no agreement at that time for any change.

Where a policy has been issued by an insurance company and is about to expire and a renewal is requested by the assured or agreed upon between the insurer and assured without anything being said as to a change in its terms, what is the effect of such a change made by the insurer in the terms of the policy? Has the insurer a right to make such changes or is the policy to be issued upon the same terms and conditions as the former one? In the case of Hay v. Insurance Co. 77 N. Y. 235 [33 Am. Rep. 607], it is said:

“An agreement to renew a policy of fire insurance, in the absence of evidence that any change was intended, implies that the terms of the existing policy are to be continued.
“A party whose duty it is to prepare a written contract according to a previous agreement, if he prepares one materially changing the terms of the previous agreement, and delivers it as in accordance therewith,. commits a fraud entitling the other to relief.
“Equity will reform a contract where there is a mistake on one side and fraud on the other.”

It appears from the facts in this ease that the plaintiff and defendant had contracted for the renewal of a policy issued by the defendant company to the plaintiff and at the time the renewal insurance was effected nothing was said by the parties as to any change in the conditions of the policy. The new policy contained the following clause:

“In all cases of loss the assured shall assign to this company all his right to receive satisfaction therefor, from any other person or persons, town or corporation with a power of attorney, to sue for and to recover the same, at the expense of this company. ■ When insured as a mortgagee, the loss shall not be payable until payment of such portion of the debt shall have been enforced, as can be collected out of the original security, to which this policy may be held as collateral, and this company shall then only be liable to pay such sum, not exceeding the amount, insured, as cannot be collected out of such primary security.”

The holding is that the insertion of this clause in the renewal policy was not in accordance with the terms of the contract, nothing having been said about any change in the terms thereof by the parties, and that consequently the plaintiff was entitled to a reformation of his policy by striking out that clause.

The case of Palmer v. Insurance Co. 54 Conn. 488 [9 Atl. Rep. 248], was also an action to reform an insurance policy. The plaintiffs held a policy of insurance of the defendant upon merchandise and when the policy expired applied to the company for a renewal on the same terms with the expiring one. The company wrote a new policy and received the premium. The plaintiffs, supposing it to be on the same terms with the first policy, did not examine it until after the loss of the property by fire. Some time afterwards they discovered an important variance from the former policy which affected their right of recovery. It was held that the plaintiffs were not guilty of laches in not examining the policy when it was delivered to them and they had a right to believe that it would be in all essential respects like the first, and these facts entitled the plaintiff to a reformation.

The case of Snell v. Insurance Co. 98 U. S. 85 [25 L. Ed. 52], is also an action for reformation of a policy of insurance. In this case one of the members of a firm, who were the owners of some cotton, entered into an agreement, through a local agent of the insurance company to insure the cotton for a certain period, for its whole value against loss by fire. The member of the firm who solicited the insurance agreed that the insurance should be made in his name upon the representations of the agent that the entire interest of the insurer in the cotton would be thereby protected. The cotton was burned. It was then learned that the policy protected only the interests of the individual member of the firm in whose name it had been issued, and it was held that the plaintiffs were entitled to a reformation of the contract.

The case of Equitable Ins. Co. v. Hearn, 87 U. S. (20 Wall.) 494 [22 L. Ed. 398] also holds to the same principle, and in the ease of Fitchner v. Fire Association, 103 Ia. 276 [72 N. W. Rep. 530], it is held:

“A mutual mistake in an application for insurance on a stock of merchandise is clearly established where both the insured and the agent soliciting the application testify that it was agreed that there should be $12,000 of concurrent insurance on the stock, and that the agent in writing the application, erroneously fixed this amount as the limit of concurrent insurance on both the stock and the building containing it.”

So that we think that it is clear from the authorities that where there is a renewal of a policy without anything being said by the parties as to a change in its conditions, the agreement is implied that the new policy shall be upon the same terms and conditions as the former one.

It appears that the plaintiffs did not read their policy after receiving it and it is said that their acceptance of it and retaining it until after the fife without reading it was such negligence on their part as would preclude them from now saying that they did not understand • its provisions or that it was not in accordance with their contract. The mere failure of an assured to read his application for an insurance policy or to read his policy, especially if it is renewal, does not establish any negligence on his part and he has a right to understand that the renewal will be in accordance with the first policy. Bennett v. Insurance Co. 70 Iowa 600 [31 N. W. Rep. 948] ; Hagan v. Insurance Co. 81 Iowa 321 [46 N. W. Rep. 1114; 25 Am. St. Rep. 493] ; Donnelly v. Insurance Co. 70 Iowa 693 [28 N. W. Rep. 607] ; Boetcher v. Insurance Co. 47 Iowa 253.

Was there a change made in the terms of the first policy by the addition thereto after it had been issued of the clause in controversy? We think not. The policy having been issued without that clause, the burden clearly rests upon the defendant to establish the fact of such change. The authorities cited by counsel for the defendant in this ease upon the proposition that to entitle the plaintiff to reform, the proof must be clear and convincing, just as clearly establish the proposition that the party seeking to work a change in the contract after it has been executed must prove his case by more than a preponderance of the evidence. The evidence to establish a change in the contract must be clear and convincing. See the case of Palmer v. Insurance Co. supra, above cited.

The burden, therefore, is upon the defendant to show that the change was made by clear and convincing evidence. The only evidence that the change was made is the evidence of E. M. Roberts, the local agent, of the conversation had with Walter Roberts. This is denied by the latter. The plaintiffs had no iron safe. It does not seem likely that if the plaintiffs had been required to insert a clause into their policy which would absolutely preclude them from a recovery in case of failure to keep their books in an iron safe, that they would have been likely to have accepted i± without any protest, so that certainly the evidence in this case is very far from being clear and convincing that snch a change was made, or that there was an understanding .to that effect, and we think we must hold from the evidence that no such change was made. 0

We are, therefore,, of the opinion and it is the judgment . of this court that the plaintiffs are entitled to the relief prayed for and they may have a reformation of the policy sued on by striking out the clause in question.

Norris and Pollock, JJ., concur.