author: Gorman, J. Hamilton, J.,

text:
    Rose, by etc., v. Habenstreit.

      Negligence. — Attractive nuisance— Unprotected apparatus rightfully ■in street.

    An action does not lie, on' the ground of attractive nuisance, for injury to a child while meddling with a piece of apparatus rightfully left in the street, unguarded and unprotected, but which was .not in itself dangerous or an obstruction in the highway.
    (Decided November 12, 1917.)
    Error: Court of Appeals for Hamilton county.

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

      Messrs. Darby & Benedict, for defendant in error.
   Gorman, J.

This action was brought by George Rose as the next friend of his infant son, Harold Rose. In the petition it was 'claimed that the defendant was liable because of negligence in leaving unguarded and unprotected at the corner of Ash street and Highland avenue in the city of Norwood an apparatus consisting of a pulley and wire cable passing through the same. The pulley and the wire cable were used by defendant in the moving of a house on a public street of Norwood.

There was no question made of the right of defendant to be in the street and to have his apparatus therein.

Defendant, Joseph Habenstreit, is a contractor in the business of moving houses, and on the 9th of August, 1915, and for some time prior thereto, was moving a two-story frame house eastward along Highland avenue between Marion avenue and Ash street. The house was being moved by horsepower and a series of pulleys and a cable. The horsepower was stationed in the center of Highland about one hundred and twenty-five or one hundred and fifty feet west of Ash street, and at the time the injuries complained of were incurred by the boy the house was 'about one hundred feet west of Ash street. The defendant attached a large steel or iron pulley by means of a chain to an electric light pole which was stationed on the north side of Highland avenue directly opposite the curb line on the east side of Ash street and a few inches north of the curb line on Highland avenue. Ash street terminates in Highland avenue on the south side. The pulley was attached to the pole about nine to twelve inches from the ground. The pulley was of iron, having a wheel about eleven inches in diameter revolving on a spindle which was attached at either end to a steel or iron stirrup, and the stirrup was fastened to a snatch'block to which'a large iron or steel hook was attached. The hook was hooked in a link of the chain which was wrapped around the electric light pole. The cable was of steel about five-eighths of an inch in diameter. One end of the cable was attached to the drum of the horsepower and the other was attached to a series of pulleys and attached to the house, and the horse in walking around caused the drum to revolve and the cable to wind upon the drum. When the pulley and cable were operated they made a squeaking noise. There were no guards or protection about the pulley- or cable, and the apparatus was elevated a short -distance above the street.

The nearest person to the pulley was the man who was driving the horse, at the horsepower, about one hundred and fifty feet away from the pulley. The neighborhood in which the house was being moved was a strictly residential district and children were accustomed to..piay in the street at this point, and this fact was known to the contractor.

■This boy, Harold Rose, was about four years of age, and in some manner not clearly shown by the record the fingers of his right hand were caught in the pulley and cut off.

:It is-claimed in this case that the defendant is! liable on the ground that the apparatus being operated was an attractive nuisance left in a public street unguarded and unprotected.

At the conclusion of the plaintiff’s evidence the trial court instructed a verdict for the defendant and judgment was rendered upon that verdict. It is now sought to reverse that judgment in- this -court.

The only question involved in this case -is whether or not defendant is liable for leaving in the street unguarded and unprotected an apparatus which is claimed to be an attractive nuisance, as a result whereof a young child not having reached years of discretion was meddling therewith and was injured.

iWe are of the opinion that the trial court did not err in instructing a verdict for the defendant in this case. The doctrine of attractive nuisance has been fully considered in the case of Railroad Co. v. Harvey, 77 Ohio St., 235. Practically every case 'involving the doctrine of attractive nuisance has been collected and commented upon by the learned judge who announced the- opinion of that court. That is what is known as “the turntable case,” and it was distinctly held in -that -case that the railroad company was “not liable to an infant who comes upon -its premises without invitation and who is injured there while playing, without its knowledge, with a turntable. The doctrine of the turntable cases is disapproved. Harriman v. Railroad Co., 45 Ohio St., 11, distinguished.”

Now in the case at bar there is no question raised as to defendant’s right to maintain his apparatus in the street, -and -when the child, Harold Rose, meddled with the apparatus, as he must have done if he was injured thereby, we hold that he was as much a trespasser on the apparatus of the defendant as if -the apparatus had been on private property -owned by the defendant.

If under the case just cited, Railroad Co. v. Harvey, there could be no recovery, there could be no recovery by the plaintiff in this case were he an adult or person who had reached years of discretion. We can see no difference between a case where property is meddled with or interfered with in a public street where the owner of the property had a right to have the same or maintain the same, and its being meddled with on private property. It is as much a trespass for the child to meddle with an.apparatus properly in a public street as if it were on private property. It is true the child had a right to be on the street, but it had no right to meddle with the apparatus of the defendant, and when it did so it was a trespasser as much as though it had stepped out of the highway on to private property- and meddled with an apparatus that might be there located.

Several cases are cited by plaintiff in error from other states in which it is held that the doctrine of attractive nuisance does apply where the injury occurs in a public street. But upon examination of these authorities it will be found that they are announced in states in which the doctrine of attractive nuisance on private property is still upheld.

While this doctrine of attractive nuisance is still the law in many states, there are other court's, in other states of equal prominence, that have discarded the doctrine as applied to property in a public highway. We think that upon reason and upon the weight of authority it must be held that the doctrine of attractive nuisance is exploded and discarded, not only by the court's of many states’ entitled to great weight and consideration, but also in our own state.

In the case of Friedman v. Snare & Triest Co., 71 N. J. L., 605, the court denied the liability for injuries to a little girl between four and five years of age, who had been injured while playing upon some iron girders that fell upon her while playing upon them in the street where they had been placed by an abutting property owner for use in the construction of a building.

In Ryan v. Towar, 128 Mich., 463, a little girl twelve years of age was in the habit of passing a pumping house upon the way to school with her brothers and sisters, going across lots through the field because it was nearer. For some time previous to the time of the accident a hole existed in the stone wall of the house enclosing the wheel, through which the children went to play on the wheel. On the day in question the brothers of the plaintiff on the way from school crawled through this hole and mounting the wheel were able by their weight to turn the wheel part way round and back. A younger sister aged eight got caught between the wheel and the wheel pit, and the plaintiff heard her screams and went through the hole to her aid and was herself injured. It was held in that case there was no liability on the part of the owner.

Many English and American cases are examined and commented upon in that case. Judge Hooker in deciding the case used this language, at page 470:

“Here we have the doctrine of the Turntable Cases carried to its natural and logical result. We have only to add that every man who leaves a wheelbarrow, or a'lawn-mower, or-a spade upon his lawn; a rake, with its sharp teeth pointing upward, upon the ground or leaning against a- fence; a bed of mortar prepared for use in his new house; a wagon 'in his barnyard, upon which children may climb, and from which they may fall; or who turns in his lot a kicking horse or a cow with a calf, does so at the risk of having the question of his negligence left to a sympathetic jury. How far does the rule go? Must his barn door and the usual appertures through which the accumulations of the stable are thrown, be kept locked and fastened, lest 12-year-old boys get in and be hurt by the animals, or by climbing into the haymow and falling from beams? May a man keep a ladder, or a grindstone, or a scythe, or a plow, or a reaper, without danger of being called upon to reward trespassing children, whose parents owe and may be presumed to perform the duty of restraint? Can a man nowadays 'safely own a small lake or fishpond? and must he guard ravines and precipices upon his land? Such is the evolution of the law, less than 30 years after the decision of Railroad Co. v. Stout, when, with due deference, we think some of the courts left the solid ground of the rule that trespassers can not recover for injuries received, and due merely to negligence of the persons trespassed upon.”

If we are to apply the doctrine of attractive nuisance to property lawfully left in the street, although the same may not be a nuisance in itself and be left there as a matter of right, it appears to us that we are relieving the parents and natural guardian of children from the duty which they owe to care for them and watch over them, and placing the burden, of watching over the welfare of the children and protecting them from danger upon strangers who owe no such natural duty to them.

We do not think it profitable or expedient to cite the numerous cases that have, arisen in .-which the doctrine of attractive nuisance has been discussed'. The case of Fitzgerald v. Rogers, 68 N. Y. Supp., 946, seems to be strong enough to warrant this court in sustaining the ruling of the court below in arresting this case from the jury. The facts in that case are go similar to the facts in the case before us that we might very well affirm the judgment below upon the authority of this case. It was sought to recover damages in that case from-the defendant, a contractor employed by the city of New York to construct a sewer in Longwood avenue. In excavating, the trench in which the sewer was to be- laid the defendant made use of a machine or apparatus known as a winch, by which fragments of stone were lifted from the excavation ■to the surface of the land. This apparatus consisted of a framework in which was a drum. There was a cable attached to the drum, and a boom or sweep fastened to the upper end of the drum. In lifting stone from the trench a horse was hitched to the boom or sweep, and by the process of winding the cable around the drum the 'stone to -which one end of the cable was fastened was brought to the -surface. The infant son of the plaintiff saw some boys playing With this apparatus. The boom or sweep was attached to the drum and in place and the -boys were pushing the boom, thus causing the drum to revolve and the .cable to -wind around it. The defendant’s workmen had been 'using the machine some time prior to the happening of the accident. The infant son of the plaintiff, about ten years of age, got upon the boom and sat upon it while it was being moved, and his feet slipped and his leg was caught in the cable and he sustained injury. The complaint was dismissed upon the trial, and from the judgment entered upon such dismissal an appeal was taken to the appellate division of the supreme court of New York. In deciding the case, Patterson, J., for the court, uses this language, at page 948:

“The contention of the plaintiff appears to be that when it was left in the street unguarded, and unprotected, and without a warning, it became a nuisance, particularly to children playing in the •highway, and who would be tempted or enticed to play with it. The machine was not in itself dangerous [and the same may be said of the apparatus used by the defendant in the case at bar]; it did not in itself constitute an unlawful obstruction in the highway; nor was it of such a character that, even if left 'with the boom or sweep attached to the drum, it could be found by a jury, from that circumstance alone, that it was dangerous, and a temptation or enticement- to children of tender years to play with it, and that the natural and probable result of their so playing would be injury to them. Even where liability is sought to be imposed upon a defendant upon the ground of negligence under such circumstances as appear in this case, it must be shown not only that the apparatus with which the chi-ld -was playing was dangerous, but that it was of such a character as would induce or allure children to play with it. The evidence in this case -did not warrant the submission of the question to the jury. It could not be found that the machine was left in a dangerous condition, nor that it was of such' a character as to lead the defendant or his servants to believe that it would be used by children in play. If the apparatus had been left upon private premises in the condition claimed by the plaintiff, it would have no more constituted a temptation to children than did the turntable in Walsh v. Railroad Co., 145 N. Y. 301, 39 N. E. 1068, and Daniels v. Railroad Co., 154-Mass. 349, 28 N. E. 283, 13 L. R. A. 248. The ■ fact that the defendant’s trench was in a projected public street does not change the rule. In Gay v. Railway Co., 169 Mass. 242, 34 Ñ. E. 258, the car upon which the plaintiff’s intestate was playing when he received'the injuries which resulted in his death was, and for some days had been, standing in an open -and exposed place, namely, in one of the streets or public highways of a city.-
. “The complaint was properly dismissed, arid the judgment should be affirmed, with costs.”

'While it may be said that the supreme -court of our state has not yet squarely decided that the doctrine of attractive nuisance does not apply where property is left in a public highway, nevertheless, upon the weight of the authorities decided by this state, we are convinced that there can be no distinction made between trespassing upon private property and upon property properly and lawfully left in a public highway.

We think it a wholesome rule to apply that the parents and guardians of 'children should not be permitted to relieve themselves of the duty which ■the law imposes upon them of looking after the ■safety of their 'children, not only on private property, but upon public streets; and the rule laid down in Railroad Co. v. Harvey, supra, will be held to extend to property lawfully in public streets as well as to that upon private property.

Judgment affirmed.

Jones, P. J., concurs.

Hamilton, J.,

dissenting. I can not concur in the opinion of the majority of the court, for the reason that the question as to whether or not the appliance was a dangerous instrument or an attractive nuisance was one which should have been first submitted to 'the jury.

Further, .the accident having occurred on a public street, where the child had a right to be, and where it might be expected that small children would exercise their childish instincts, I can not concur' in extending the doctrine of Railroad Co. v. Harvey, 77 Ohio St., 235, as applicable to private premises, to be determinative of this case. The Isaac Leisy Brewing Co. v. Kapl, an Infant, 22 C. C., N. S., 309, and Gibbs v. Village of Girard, 88 Ohio St., 34.


source: Caselaw Access Project

author: Houck, J.

license: Public Domain

text:
    Baysinger v. State of Ohio.

      Intoxicating liquors — Beal law — Keeping a place — Section 13232, General Code■ — -“Furnishing” construed,.

    The keeping in the basement of a private house in dry territory of kegs of beer, with permission to certain persons to visit said basement and draw and consume the beer so provided, constitutes a furnishing of intoxicating liquor within the prohibition of the statute, and a conviction of the occupant of the house, who ordered the beer and collected the money for its payment from those who visited the place, will not be disturbed by a reviewing court.
    (Decided March 4, 19>18.)
    Error: 'Court of Appeals for Wayne county.

      Mr. A. D. -Metz, for plaintiff in error.

      Mr. Benton G. Hay, prosecuting attorney, and Mr. T. W. Orr, for defendant in error.
   Houck, J.

The plaintiff in error, Lazarus Bay-singer, was tried and convicted of keeping a place for the unlawful furnishing of intoxicating liquors as a beverage. The same is alleged to have been done in the village of Rittman, Wayne county, Ohio, which village at the time was “dry territory,” having been made so by a local option election.

To the judgment of conviction by the mayor of said village of Rittman the accused prosecuted error to the common pleas court, and, the same being affirmed, error is here prosecuted seeking a reversal of the judgment of said courts.

The record discloses the following undisputed facts :

The village of Rittman is dry territory by reason of a local option election. On Saturday evening, August 18, 1917, the sheriff of Wayne county, with a search arid seizure warrant, visited the home of Baysinger, and in the basement of the home seized four eight-gallon kegs of beer, a beer pump, and some beer glasses and buckets. At said time and place there were, including the accused, eight persons present, either in the room or just on the outside, and some were drinking beer.

In the 'basement •where the beer was found there was nothing stored except the four kegs of beer, with ice on them, and a long bench with beer glasses on it. One of the kegs had a beer pump in it. Several times a week during the summer of 1917, and prior to August 18, people would go to said basement, singly, and sometimes four or five at a time,. and during this time a drayman was seen on several occasions unloading beer there, the number of kegs delivered being from one to five at a time, and this was as often -as three times a week during the aforesaid period.

The beer, on all these occasions, was purchased by those who visited the basement, each paying his proportionate share of the cost. Baysinger usually collected the money and ordered the beer, and all deliveries were made to him and drunk by the -contributors in the basement' of the Baysinger home. The basement door was left open when beer was' there, and the contributors were privileged to, and some of them did, visit the place and drink beer on their .-way home from work, and at other times, when Baysinger was not present.

The question presented to the court is, Under these facts and the law was the accused properly convicted?

The conviction was had under favor of Section 13232, General Code, which reads:

“Whoever, after thirty days from the date of an election held within' a municipal corporation to determine by ballot whether the sale of intoxicating liquors as a beverage should be prohibited therein, a majority of votes at such election having been cast in favor of prohibiting such sale within such municipality, in any manner directly or indirectly, sells, furnishes, gives away, or otherwise deals in intoxicating liquors as a beverage or keeps or uses a place, structure or vehicle, either permanent or transient, for such selling, furnishing or giving away or in which or from which intoxicating liquors are so sold, given away, furnished or other'wise dealt in, shall be fined not less than fifty dollars nor more than two hundred dollars, and for a second offense shall be. fined not less than one hundred dollars nor more than five hundred dollars, and for each subsequent offense shall be fined not less than two hundred dollars and imprisoned not less than ten days nor more than sixty days.”

Counsel for plaintiff in error maintains that the conviction was wrongful, and not' warranted -under the facts and law, because the accused had a legal right to associate himself with others -in the ordering of beer, and the mere fact that they drank the same on the premises of the accused, two or three times a week, during the summer of 1917, and the further fact that it was in his home or private residence, would not constitute, in law, a keeping of a place for the furnishing of intoxicating liquors unlawfully.

This claim might have some force if our legislature had not spoken, and clearly and fully disposed of same by statutory provision.

Section 6099 reads:

“In clubs, societies or other combinations of individuals where intoxicating liquor is kept for use of as a beverage by individual members thereof in territory where the sale, furnishing or giving away of intoxicating liquor as a beverage is prohibited, the keeping of such place shall be held to be the keeping of a place where intoxicating liquors are furnished or given away in violation of the local option laws.”

Section 6102 reads:

“In a territory in which the sale, furnishing or giving away of intoxicating liquor as a beverage is prohibited, the keeping of intoxicating liquor in a room, building or other place, except in a regular drug store or in a bona fide private residence, shall be prima facie evidence that such liquor is kept for unlawful sale, furnishing or giving away.”

So far as this case is concerned, the- legislature of our state,.by the above enactments, has saved the courts much work and labor by clearly defining the elements necessary to constitute the offense of keeping a place for the unlawful furnishing of intoxicating liquors. The language used is not ambiguous, and needs no interpretation, but is plain and explicit

The accused might not have known of these provisions of our law, or he might have failed to properly interpret same, but it matters not, as a failure to know the law excuseth no one for its violation. It seems to us that the crux of this case centers in the proper definition of the word furnishing, as found in the statutes hereinbefore referred to; and, as thus interpreted, when measured by the conceded facts in this case, how stands the issue as between the State of Ohio and Lazarus Baysinger?

The supreme court of this state has said that the supplying of intoxicating liquors to- a minor, to be drunk by him, is a furnishing of the liquor to such minor, although it was purchased by another, and supplied by the seller to the minor in pursuance of such purchase.

The facts in this case abundantly show that no liquors were sold, and while the proof does not in so many words indicate that any was given away to other than the persons who assembled there from time to time, yet it is clearly proven that Bay-singer furnished the place, secured the beer, and made it possible for the men to congregate quite frequently in the basement of his home and there drink beer on numerous occasions.

By reason of this, his home, in law, had been transformed into .a public resort, where persons were permitted to congregate “in dry territory,” and by so doing, he attempted to set aside the wishes of the residents of the village of Rittman, who had theretofore by a majority vote at a local option election said, as provided in Section 13232, General Code, that “whoever, * * * within such municipality, in any manner directly or indirectly, sells, furnishes, gives away, or otherwise deals in intoxicating liquors as a beverage or keeps or uses a place, structure or vehicle, either permanent or transient, for such selling, furnishing or givingaway, or in. which or from which intoxicating liquors are sold, given away, or furnished or otherwise dealt in, shall be fined,” etc.

If we are to be guided by the language thus used in the above legislative enactment, and in doing so give to the word “furnishing” its commonly accepted meaning, we are unable to find other than did the courts below in this case.

The word “furnishing” is broad and. comprehensive in its scope and meaning; and in so holding we are only carrying out the legislative intent of the lawmakers who enacted the statute in which it is used.

The statutes relating to the violation of local option laws, like all criminal statutes, were passed to be enforced, and the will of the people in voting territory “dry” must be held sacred, and those who under the facts and a proper application of the law to same, are found to be violators, must atone to the offended law.

In our examination of the testimony and evidence, as contained in the bill of exceptions, and in a review of the entire record before us, we find no errors of a prejudicial character that would justify a reversal of the judgment of conviction entered in this case.

Judgment affirmed; cause remanded for execution.

Powell and Shields, JJ., concur.


author: Wilson, J.

text:
    Bernheim v. Stark, Executor and Trustee, et al.

      Executor and trustee — Power to sell and lease realty — Effect of contest of will — Authority to lease with purchase privilege — Duration of trust and term of lease not co-extensive.

    1. Under a will- giving to- an executor and trustee power to sell and lease real estate belonging to the testatrix, suspension of that .power for the time being, pending a contest of the will, did not preclude the trustee from entering into an agreement for the sal'e or lease of property, contingent upon- the validity of the said will being established, where the- contracting purchaser knew of th’e existence of proceedings involving the validity of the will; and the termination of such a- suit in a judgment upholding the will leaves the trustee clothed with all the power and authority conferred by the will as and from the date of his appointment.
    2. An executor and trustee; having authority under the will to sell or lease property, is at liberty to enter into an agreement whereby a purchaser is to pay for the property in part and take a lease for a period of years with a privilege of purchase for the amount remaining due under the agreement, interest on said amount to be paid at a stipulated rate during the term of the lease.
    3. Such a sale and lease is not rendered invalid by reason of the fact that the term of the lease may exceed the term of the trust, inasmuch as failure of the lessee to exercise his privilege of purchase could only result in reclamation- of the property parted with after a very considerable payment had been made thereons and in case of a division of the property becoming necessary before expiration- of the lease the groun-d rent could be sold and the estate closed.
    (Decided June 10, 1918.)
    Appeal : Court of Appeals 'for Hamilton county.

      Mr. Jonas B. Frenkel and Mr. Philip Roettinger, for plaintiff.

      Mr. Charles H. Stephens, Jr.; Mr. Rufus Smith and Messrs. Stephens, Lincoln & Stephens, for defendants.
   Wilson, J.

This cause came into this court on appeal from the court of common pleas of Hamilton county and is now submitted to the court on plaintiff’s demurrer to the answer and cross-petition of the defendant, Edgar Stark, executor of the estate of Mary Ann Britt, deceased.

The demurrer rests upon the ground that the allegations of the answer, and also of the cross-petition, do not constitute either a defense or a cause of action against the plaintiff.

The court’s disposition of this demurrer will in effect determine the rights of the respective parties to this action.

On February 26, 1913, the plaintiff, Morris U. Bernheim, made the following proposal for the purchase of certain property of the estate of Mary Ann'Britt, deceased:

“Cincinnati, Ohio.
“February 26th, 1913.
“Edgar Stark, Executor & Trustee Under the
Will of Mary Ann Britt, deceased.
“I hereby agree to purchase the property belonging to the Estate of Mary Ann Britt deceased, situated in the City of Cincinnati, Hamilton County, Ohio, and known as Nos. 126 and 128 W. Eighth St., and 804 and 806 Elm St., bounded and described as follows:
“Beginning at a point in the north side of Eighth St., thirty-six (36) feet more or less east of Elm St., thence eastwardly along Eighth St., fifty-nine feet, four and one-half (59 ft., Ayi in.) more or less; thence northwardly parallel to Elm St. ninety (90) feet more or less to Weaver Alley; thence westwardly along Weaver Alley ninety-five feet, four and one-half (95 ft., 4^ in.) more or less 'to Eilm St., thence southwardly along Elm St. thirty (30) feet more or less; thence eastwardly parallel to Weaver Alley thirty-six (36) feet more or less; thence southwardly parallel to Elm St., sixty (60) feet more or less to Eighth St., at the place of beginning.
“The consideration for said property is to be one hundred and twenty-five thousand ($125,000) dollars to be paid as follows: Upon the acceptance of this offer I will deposit five thousand ($5,000) dollars with the Union Savings Bank & Trust Co., as a special deposit on which the said company is to pay interest at the rate of 3% per annum. In the event that the courts decide that the will of Mary Ann Britt is valid, said sum of five thousand dollars shall be paid by The Union Savings Bank & Trust Company to the executor and trustee under the will of Mary Ann Britt, and upon the tender to me of a lease containing the provisions hereinafter set forth, duly executed by him, I will further pay to such executor and trustee the sum of forty-five thousand ($45,000) dollars in 'cash. Said lease is to be for twenty years from date and to provide for a ground rent of 5% net upon the remainder of said purchase price, to-wit: seventy-five thousand ($75,000) payable quarterly. The lessee shall therein obligate himself to pay in addition to said ground rent, all taxes, rates, charges and assessments of every kind which may become a lien upon the property after the date of said lease and, further, that he will within ten (10) years from the date thereof erect a 'building or buildings upon said property so leased, satisfactory to the lessor, and keep the same insured in a sum and in companies satisfactory to the lessor, loss, if any, payable to the said lessor on account of the purchase price of said property or to be applied in re-building, as thé lessor may elect'. But if the lessor elect to take the insurance on account of the purchase price the lease' shall terminate, and the balance of the purchase price, if any, become payable.
“Said lease -shall further contain a privilege to the lessee to -purchase said property at any time after fen years from date, upon giving six months’ notice in writing to the lessor.
“If the executor and trustee under the will of Mary Ann Britt can not give me a good and legal title to all the property above named, I am to have the right to cancel this obligation to buy said property, and in that event the $5,000 paid by me on the acceptance of this offer is to be refunded to -me, together with the interest on said deposit, at 3% per annum.” ¡ i.A

Which proposal or offer was accepted by Edgar Stark, defendant, as the representative of said estate, in the following language:

“Cincinnati, Ohio,
“February 27, iprj.
“I hereby accept the foregoing offer, upon the conditions therein named, and agree to make the lease therein provided for, in case the will of Mary Ann Britt is sustained.”

This action was instituted hy plaintiff for the purpose of obtaining a cancellation of the contract created by said offer and acceptance, and the return of the sum of five thousand dollars deposited under the terms of said contract, and in his petition he alleges as grounds therefor that the defendant, Edgar Stark, executor and trustee under the will of Mary Ann Britt, deceased, was, under the laws of Ohio and under the terms of said will, without authority or power to enter into any contract whereby he could execute a lease for the time and upon the terms in said contract set forth, and, further, “that he is without power, under said will at this time to enter into such a contract or to perform the stipulations therein set forth;” that said Edgar Stark, as executor and trustee under the will of Mary Ann Britt, deceased, can not give a good and legal title to all of the property described in the petition.

To this petition the defendant, Stark, executor, filed an answer and cross-petition, admitting certain allegations of the petition, the death of Mary Ann Britt, leaving a will, a true copy of which is attached to plaintiff’s petition; that said will was contested in case No. 146202 of the common pleas court of Hamilton county; that he entered into the contract set forth in plaintiff’s • petition; that the plaintiff deposited the five thousand dollars called for under said contract; and that plaintiff had made a demand of him to return said five thousand dollars, with which demand defendant refused to comply. And further answering, defendant denies •that he is without authority or power under the laws of Ohio and under the terms of the will of Mary Ann Britt, deceased, to enter into any contract whereby he could execute a lease upon the premises described for the time and upon the terms set forth in said agreement; and denies that he can not give a good and legal title to all of the property described in the petition; and further denies the right of plaintiff to cancel said agreement. And further by way of answer defendant says that the last will and testament of Mary Ann-Britt was sustained by the judgment of the common pleas ■court of Hamilton county on June 29, 1915; that subsequent thereto the defendant duly executed a lease of the property described in the contract in accordance with the terms and conditions expressed in said contract, and on the 7th day of July, 1915, tendered said lease to the plaintiff and demanded of plaintiff the payment of $45,000 in cash and that the plaintiff execute said lease, all of which plaintiff refused to do., Defendant further alleges that all of the devisees and beneficiaries under the will of Mary Ann Britt, deceased, prior to the making of the contract of February 26, 1913, approved of the same and requested the defendant to enter into said contract with plaintiff. And by way of cross-petition the defendant alleges that he'' was appointed as executor and trustee under the will of Mary Ann Britt, deceased, and that he is now acting as such; that on February 26, 1913, he entered into said contract with plaintiff, and that' he entered into the contract with the approval and at the request' of all the devisees and beneficiaries under said will; that the plaintiff deposited the said sum of $5,000 as required by the contract; that the will of Mary Ann Britt wás sustained by the court of common pleas of 'Hamilton county, Ohio; that on July 7, 1915, he duly executed in duplicate and tendered to plaintiff a lease in conformity with the terms and conditions set forth in said contract, and demanded of plaintiff the $45,000 in cash called for by said contract; that the plaintiff refused to pay said sum of $45,000 and refused to execute said lease; that he had complied with alb the terms and conditions of said contract but ’ that the plaintiff had refused to comply with said contract and to carry out the terms thereof. The defendant thereupon prays for a judgment against the plaintiff for said sum of $45,000 and interest from July 7, 1915, and for an order requiring plaintiff to perform his ■part of said agreement by executing’ the lease provided for in said agreement, and for such further or other relief as the defendant may be entitled to in equity.

■u„ To -this answer and cross-petition the plaintiff demurred, for the reasons hereinbefore set forth.

• The demurrer presents for the consideration of the court two legal propositions:

1. Could the executor and trustee — assuming that he had the power and authority under the will to sell or lease the property described in the agreement — enter into an agreement such as the one described in the petition for a sale or lease of said property during the pendency of the action contesting the validity of said, will?

2. Has the executor and trustee under the terms and provisions of the will of Maty Ann Britt the power and authority to make a sale or lease of said property on the terms and conditions expressed in the agreement under consideration?

The will of Mary Ann Britt, deceased, provides as follows:

"In the Name of God, Amen.
“I, Mary Ann Britt, being of sound mind, do make and publish this my last will.
"Item First. I direct my Executor and Trustee hereinafter named to set apart and keep suitably invested sufficient of my estate to produce a net yearly income of Forty-eight Hundred - ($4800) Dollars and from said income pay monthly during life the sum of One Hundred Dollars to each of the following persons, to-wit: my brother Francis I. Partridge, my niece Mrs. McEwen, my niece Mrs. Dixon and my niece Blanche Partridge.
“Item Second. I direct my said • Executor and Trustee to- set apart and keep suitably invested a sum 'sufficient to yield a net income of One Plhndred Dollars per month and pay the same monthly to my nephew Arthur J. Partridge, son of said brother, until he arrives at the age of twenty-five years and then to pay to him the principal sum so invested.
“Item Third. I direct my said Executor and Trustee promptly after my death to pay the sum of One Hundred Dollars to each of five priests in the diocese of Cincinnati to be named by the Most Rev. Archbishop, with the obligation of saying masses for the repose of my soul. Also to pay promptly the following charitable bequests: to the St. Joseph Orphan Asylum now at Cumminsville the sum of Five Hundred Dollars; to the Sisters of Charity for Seton. Hospital the sum of Five Hundred Dollars; to the Sisters of the Good Shepherd for the institution now conducted by them on Price Hill the sum of One Hundred Dollars.
“Item Fourth. I give to my sister Mrs. Margaret Orr the full one-third of my estate.
“Item Fifth. All the rest and residue of my estate I give as follows: one-fourth thereof to. my nephew Arthur J. Partridge, one-fourth to my niece Mrs. McEwen, one-fourth to my niece Mrs. Dixon and one-fourth to my niece Blanche Partridge. Said rest and residue shall be divided upon the death of my brother Francis I. Partridge. Thereupon the provision of One Hundred Dollars a month to my nephew and nieces shall cease.
“Item Fifth. Should any of my legatees contest this my will, his or her portion shall become part of the residue of my estate.
“Item Sixth. I nominate and appoint Edgar Stark, or whoever may be the trust officer of the Union Savings Bank and Trust Company of this City, Executor and Trustee of this my will. I give him full power to sell, lease, divide or rent any of my real of personal property and execute proper instruments for that purpose, to make repairs or improvements, to make and change investments and generally to do such things as may be necessary or proper in the administration of my estate and the trusts reposed in him without applying to court for leave so to do. I direct that in case any of my bequests or devises should be subject to any inheritance or other tax, the same to be paid by my estate. I hereby vest in my said Executor or Trustee such title as may be necessary to carry out the provisions of this my will.
“Cincinnati, June 27, ipio.
“her
“Mary Ann (X) Britt “mark
'“Signed and acknowledged as and for her. last will by the said Mary Ann Britt in our presence. and we have at her request and in her presence and in the presence of each other signed the same as attesting witnesses.
“Roy W. Kinsey, M.D.
“J. Stewart Hagen, M.D.
“John Ledyard Lincoln.”

As to the first proposition presented the court is of the opinion that the executor and trustee under said will had the power and authority to sell or lease said property and for that purpose to enter into an 'agreement for such sale or lease.

It is contended, however, that during the pendency of the contest of said will, and under and by virtue of Section 10633, General Code, the execution of the power of disposition! either by sale or lease, conferred on the executor and trustee by the will, was suspended until the validity of said- will was finally established. By its very terms Ithe agreement entered into between the plaintiff and the defendant, Stark, executor,’ etc., as set forth in plaintiff’s petition, was not to become operative or of any binding force and effect between the parties until the validity of said will was established, and when so established the power and authority conferred by said will on the executor and trustee to sell or lease said property was to be exercised by him, and the trust imposed executed, but only, however, after the termination of the suspension of that power by. the declaration of the validity of said will.

Contracts for the sale of real estate contingent ■upon the happening of certain events are matters of every-day experience in real estate transactions, and the court is unable to see any reason in law for a distinction in that respect between an individual and an executor and trustee, both of whom being clothed with power and authority to sell or lease upon the happening of the event. This court is therefore of the opinion that the suspension of the execution of the power conferred by the will on the executor and trustee pending the contest of the will did not preclude him from entering into the agreement for the sale or. lease of said property contingent upon the validity of said will being established.

The institution of proceedings to contest the validity of a will naturally cast a doubt upon the validity of proceedings of an executor in the administration of the trust, for he would be unable to perform any act which would be binding upon the heirs at law or distributees at law contesting the will, in the event the will was set aside. The contrary would of course be true if the will were sustained, but no one dealing with the executor in the meantime could be sure whether or not he had authority as such, and the practical consequence would be that no one would deal with an executor under such circumstances and there would be no administration o£ the estate as long as the contest continued. The legislature realizing the necessity for some remedial legislation on the subject enacted a law, Section 10633, General Code, enabling the executor to do certain things which are necessary and proper to be done in 'the administration of the estate, whether the will be sustained or defeated, which acts of the executor shall be binding upon all parties. The statute is therefore an enabling one and is not intended as a limitation or restriction of the powers of the executor.

There is no fraud or concealment alleged, nor is it alleged that any misrepresentations were made inducing plaintiff to enter into the agreement. On the contrary it is apparent from a reading of the agreement that the plaintiff knew of the pendency of the proceedings involving the validity of the will and the effect' it had upon the power of the executor and trustee to sell and convey the property, for in his offer to purchase the property — the agreer ment — he expressly stipulated:

“In the event that the courts decide that the will of Mary Ann Britt is valid, said sum of $5,000 shall be paid * * * to the executor and trustee.”

He further stipulated for the carrying out of the agreement.

Conditional contracts for the purchase and sale of real estate have been subjects of more or less litigation, and as a result we have a variety of opinions upon the subject, each depending upon its own peculiar facts. A case somewhat analogous to the case at bar is In re Pearson’s Estate, 98 Cal., 603, on page 612 in which the court say:

“The purchaser from an executor at a sale under a power in. the will deals with him in making the purchase as he would with any° other vendor. He makes the purchase subject to a confirmation by the court, but in all other respects he may incorporate in his contract of purchase the same terms and condition's as he would in dealing with any other agent for the sale of property, and he can repudiate his contract for purchase only for the same reasons as he could in case he had bought from another.”

In the above case the performance of the contract, and thereby the execution of the power conferred by the will, was contingent upon an act to be performed by the court. In the case at bar the performance of the contract is contingent upon the ■Court’s declaring the will valid.

In the case Archdeacon, Admr., v. The Cincinnati Gas & Electric Co. et al., 76 Ohio St., 97, the question involved was as to the right of the administrator to maintain an action brought by him on March 28, 1903, as administrator of the estate of John Archdeacon, when as a matter of fact he was not the administrator and was not appointed as such until March 10, 1905, defendant contending that he was wholly without authority to a'ct at the time of instituting the suit. The court held, in the fourth proposition of the syllabus:

“The general rule that the due qualification of an administrator relates back to the time of his appointment as regards acts done by him in the interim which are for the benefit of the estate, applies to a case of this character. The commencement of the suit by the administrator, therefore, being for the benefit of the estate, wa's the valid commencement of an action.”

So, in the case at bar, the removal of the impediment to the execution of the powers conferred by the will, by the -declaration of its validity, left the executor and trustee clothed with all power and authority conferred by the will as and from the date of his appointment, and he is therefore bound by his act of February 26, 1913, in entering into said agreement, provided, however, his act is not in excess of the power and authority conferred on ■him by said will.

In the case of Wilson v. Wilson, 54 Mo., 213, the court say:

“A will giving power of sale vests the title in the executor at the time of the testator’s death, and his deed of the property, made before probate of the will, is a good conveyance, provided the will be subsequently probated.”

The second proposition is: Had the’executor and trustee under the will of Mary Ann Britt, deceased, power and authority to sell or lease said property on the terms and conditions expressed in said agreement?

As we enter upon the consideration of this proposition we are confronted with the question: Does the agreement so entered into, when fully executed, constitute in- fact a sale or lease of the property? It is evident from a reading of the agreement that ■the plaintiff wanted to purchase the property, for he says in the opening paragraph of his offer: ■

“I hereby, agree to purchase the property belonging to the Estate of Mary Ann Britt deceased.”

And after, describing the property he further says: “The consideration for said property is to be $125,000 to be paid as follows:”

The agreement further provides that in case of loss by fire the “loss, if any, payable to the said lessor on account of the purchase price of said property,” etc.

And again: “If the lessor elect to take the insurance on account of the purchase price the lease shall terminate, and the balance of the purchase price, if any, become payable.”

The defendant, Stark, in accepting the proposition says: “I hereby ac'cept the foregoing offer, upon the condition's therein named.”

True, the agreement provides that after the $50,000 is paid on the purchase price a lease duly executed by the executor and trustee shall be given ’ plaintiff for a term of twenty years at an annual ground rent of five per cent, upon the remainder of the purchase price, to-wit, $75,000, and containing a privilege to said lessee to -purchase said property at any time after ten years from the date, upon giving six months’ notice in writing to the lessor.

In construing this agreement it is necessary to take into consideration the circumstances surrounding the transaction, and the intention of the parties, as 'well a's the language used in expressing that intention. And in considering those matters the court has concluded that the agreement is an agreement for the purchase and sale of said property, and that while it is provided that a lease shall be given with the privilege of purchase for the remainder of the purchase price of $125,000, viz., $75,000, it is intended by the parties as but another method for securing to the seller the balance of the purchase price, rather than through the usual form of a mortgage. The method so pursued is not an unusual one; on the contrary it is frequently resorted to in the bargain and sale of real estate. This conclusion we feel is strongly supported by. the fact that a very large part of the purchase price —forty per cent. — is to be paid in cash at or before the execution • and delivery of the lease.

It is contended, however, on the other hand, that, the executor and trustee had no power under the will to sell said property on any terms other than for cash, and that if the agreement is 'construed as one for the purchase and sale of the property it is not enforceable, for the reason that the terms of payment expressed in the agreement are contrary to and in excess of the power and authority to sell conferred by the 'will of Mary Ann Britt, deceased.

The will of Mary Ann Britt provided as follows:

“I give him full power .to sell, lease, divide or rent any of my real or personal property and execute proper instruments for that purpose * * * to malee and change investments and generally to do such things as may be necessary or proper in the administration of my estate and the trusts reposed in him without applying to court for leave so to do. * * * I hereby vest in my said executor or trustee such title as may be necessary to carry out the provisions of this my will.”

To enable said executor and trustee to sell and convey said real estate the testator clearly by her will vested a fee simple title thereto in her executor and trustee and 'clothed him with full power and authority to do such things as may be necessary or proper in the administration of her estate and the trust reposed in him. She authorized him to sell or lease her real estate, and for that purpose to do such things as may be necessary or proper in administering the trust so reposed.

The executor and trustee was clearly authorized to sell the real estate described in the agreement,, and the testatrix having failed to specify the terms and conditions upon which such sale or sales should be made, on the contrary, having authorized him to do such things as may be necessary or proper in the administration of the trust, she thereby vested in him a discretionary power as to what would under the conditions and circumstances be proper and to the interest of her estate, in making such sales. The-testatrix clearly intended 'to rely upon the judgment of her executor and trustee in the management and sale or lease of her property, and for that purpose she made as complete a grant of power as it was possible for her to -do. In addition to her giving him power to sell and lease her property, she also gave him full power to make and change investments. Can it be contended that under such power he would not have the authority to invest in a ground-rent which in his judgment was a good investment? Having authority to so invest the funds of the estate could he not have sold-the property for cash and have subsequently purchased a ground-rent of this same property yielding five per cent, upon $75,000, that being only sixty per cent, of the supposed value of the property ? If so, we can see no reason in law or in equity why he may not be permitted to do directly what he could properly and legally do indirectly. Clearly if the executor sold the property for cash ’he would have to reinvest the fund.

A trustee with unfettered power to sell undoubtedly has the right to make reasonable terms as to payment, consistent' with the best interests of the estate. Whatever is fairly and reasonably necessary to carry out the power.would be implied and included in it.-

2 Perry on Trusts, Section 786-a, states the following as the rule controlling sales by trustees:

“If, however, the sale is made for a change of investment, the trustee may take a mortgage upon the property sold', if it is real estate; for investment's in mortgages of real estate, in the absence of any provision in the instrument of trust to the contrary, are permitted by law.”

In McLenegan et al. v. Yeiser, 115 Wis., 304, the court say, in proposition six of the syllabus:

“Under a power to sell lands and invest the proceeds it is proper, in the absence of any provision to the contrary, to take- a mortgage on the property for a reasonable part of the price.”

In above case the sale was made to a life tenant and a mortgage was accepted for a large part of the price, running for. twenty-five years, at two per cent, and the court -held:

“That the sale would not be declared void because of the extent of the credit given at such low rate of interest, no prejudice having resulted to the remaindermen.”

It was contended in above ease that the sale was invalid because of the credit given for the price, and that a sale on such credit was beyond the power conferred by the will, which, being silent as to terms, it is assumed must be construed to authorize a sale for present money. On page 313 of the opinion the court say:

“It seems plain that when the duty of a selling trustee is to keep proceeds of a sale invested, he can not do so more surely than by leaving* a reasonable amount thereof secured upon the property sold. Nothing can then happen to the estate more prejudicial than the return to it of the very property parted with, which is not injurious if enough of the price is collected, or otherwise secured, to cover expenses of sale and of reclamation.”

The foregoing case very aptly expresses the views of this court on the subject under consideration.

This will clearly and unequivocally gives to the executor and trustee the power to lease the property, without restrictions or limitations as to the terms and conditions of such lease. Counsel for plaintiff contend, however,' that the executor and trustee could not lease for a term extending beyond the term of the trust; which might be the case if the agreement were fully executed. By Item Fifth of her will she provided for.a final division of her property in the following language:

“All the rest and residue of my estate I give as follows: one-fourth thereof to my nephew Arthur J. Partridge, one-fourth to my niece Mrs. Mc-Ewen, one-fourth to my niece Mrs. Dixon and one-fourth to my niece Blanche Partridge. Said rest and residue shall be divided ttpon the death of my brother Francis I. Partridge.”

Of course -we have no assurance that Francis I. Partridge will not survive the period of the lease, and the court can not therefore say that the lease will extend beyond the period of the trust. If it ■does not, then there is no authority in law which would justify the court in saying that said executor and trustee could not enter into a lease of said property for the period provided for in said agreement.

In the case of Greason v. Keteltas, 17 N. Y., 491, there was involved the validity of a lease made by a testamentary trustee for a term of twenty-one years, and the.’court say:- v

“A trustee holding a legal fee, determinable ■when the purposes of the trust shall cease, has power at law to lease for a term [of years] which may extend beyond the period of his trust estate, subject to the jurisdiction of a court in equity -to annul the lease if unreasonable or improvident.”

If Francis I. Partridge should not survive the period of the lease, and it became necessary for the executor and trustee to divide the estate, he clearly would have authority to sell and dispose of the fee of said property, the ground-rent, for the purpose of making said division, and woúld not thereby violate any of the provisions of said will.

The court is therefore of the opinion that the allegations contained in the answer of Edgar Stark, executor, constitute a defense to the cause of action set forth in the petition; that said executor and trustee has power and authority under the will to convey to plaintiff such title to said property as was possessed by the testator; and that the allegations set forth in the cross-petition of said Edgar Stark, executor, constitute a good cause of action for the relief therein sought.

The demurrer will therefore be overruled.

Demurrer overruled.

Jones, P. J., and Hamilton; J., concur.


author: By the Court.

text:
    Maxedon v. Rendigs, Commissioner of Buildings.

      Municipal corporations — Regulation of construction and repair of buildings — Section 3636, General Code — Scope and exercise of power — Owner delays repairs authorised by permit — ■Injunction to prevent demolition of structure — Owner to determine method of making repairs, when.

    ,1'. The exercise of the power conferred upon municipalities by 1 Section 3636, General Code, to regulate the sanitary condition of buildings and to provide for their inspection, repair and destruction, if necessary, is arbitrary in its nature; but it arises from necessity, and must always be distinctly- for the public welfare, and with full recognition of the inviolatenes» of private property, as guaranteed in the Bill of Rights (Section W, Article I of the Constitution), and the property must constitute a nuisance and the peril be imminent to warrant such summary action as its destruction.
    2. Where the owner of a building, so situated~as not to constitute ■ a fire hazard to adjoining property, is delayed in making needed repairs in accordance with a building permit issued by a municipality, because of the failure .of others to perform contracts with him for parts of such work, and because of the difficulty in bringing in materials, and he makes such building safe for his tenants during such repairs, an injunction will lie to prevent the destruction of such building, and the owner given a reasonable time to make such repairs.

      3. In- such case the court will not decide whether as an economic proposition it is better for the owner to tear down such building, and use the materials in replacing it, or to make repairs.
    (Decided May 28, 1917.)
    Appeal : Court of Appeals for Hamilton county.

      Mr. Thomas V. Maxedon, for plaintiff.

      Mr. Charles A. Groom, city solicitor, and Mr. Dennis J. Ryan, 'assistant solicitor, for defendant.
   By the Court.

Authority is conferred by Section 3636, General Code, upon municipal corporations to regulate the erection, repair and alteration of buildings, to regulate their sanitary condition and provide for their inspection, and for the repair and destruction, if necessary^ of insecure, unsafe and dangerous bhildings.

The city of Cincinnati acting under the authority thus granted has in its code of ordinances provided in Section 487 for the inspection and condemnation of unsafe buildings. The power thus conferred is a necessary exercise of the police power of the state, under the maxim salus populi suprema lex, which authorizes and commands destruction of private property to save human life, to protect public health, to preserve property and to safeguard the public safety. But the property must constitute a nuisance, and the peril be imminent, to warrant such summary action as its destruction. The exercise of such power in its nature must be arbitrary, but it arises from necessity and must always be distinctly for the public welfare and with full recognition of the inviolateness of private property as guaranteed in the Bill of Rights (Section 19, Article I of the Constitution).

In this case the plaintiff, Thomas V. Maxedon, seeks to enjoin the building commissioner from demolishing and taking down a frame dwelling known as No. 4352 Badgeley road, and from interfering with its alteration and repair under a building permit which has already, been issued by the commissioner for that purpose, alleging that the order to destroy said building is an abuse of discretion on the part of the defendant, and an unnecessary invasion of plaintiff’s property rights.

It is conceded that such permit was duly issued, but it is claimed that plaintiff has been so slow and dilatory in proceeding with the work that there is no reasonable expectation that he will complete the work and protect 'the lives and health of his tenants and others going into said building, and that the delay is constantly augmenting the risk and adding to the danger.

The evidence shows without dispute that -the stairway and the annex, or that part of the building in which the stairway is located, are in such an unsafe condition that they should be at once .rebuilt or repaired so as to be entirely safe. This is part of the work contemplated by the owner and covered by the permit already issued. It 'appears that the foundation and sills of the main part of the structure are 'solid and sufficient for safety, but repairs are needed for the windows, weatherboarding, roof añd other parts of the building, which we understand are covered by said building permit, as well as new doors and windows for the basement, and drainage and toilet facilities.

The court will not undertake to decide, as an economic proposition, whether it would be more desirable, as the building commissioner suggests, for the owner to take the present structure down to the foundation and use the material for the erection of a one-story structure upon the foundation, or for the. owner to repair and rebuild the present two-story structure according to his present plans. That is a matter in which the owner of the property is entitled to act upon his own choice and judgment, so long as he pays due regards to the rights of the public to secure proper safety and sanitary conditions. Even though it might be entirely unwise from a financial view for the owner to undertake to preserve so much of his building as is admitted to be safe, he is acting within his rights in so doing, so long as he does not imperil the lives or property of others by maintaining the structure so rebuilt.

The house in question is set back from the street and is located so far from the nearest building that no claim is made of any danger to other buildings as a fire hazard. The only warrant for public interference with the plans and operations of the owner is to secure public safety an'd health of those occupying the property. Desirable as it might be from an aesthetic point of view to have public control of private building, the law does not permit an invasion of private rights on such grounds.

The delay of plaintiff in completing his rebuilding operations under his permit seems almost sufficient to exhaust the patience of the building department, and'to provoke drastic measures to bring matters to a culmination. But it must be remembered that the delay has operated to the loss of the owner, who attempts to justify himself by undertaking to show the failure of others to perform contracts made with him for sundry parts of the work. He also shows difficulty in bringing in materials because of a destroyed bridge, and the condition of the unimproved street on which his property fronts.

Under all the circumstances of the case the court finds that the plaintiff should be given an opportunity to repair and rebuild his house in accordance with his permit, during the present building season, on condition that he proceed without delay to reconstruct and repair the stairway to the satisfaction of the building commissioner, making same safe for his tenants while the work progresses; or, that he have said building vacated until such stairway is so improved; and that all said work under such permit be completed by November 1, 1917; and that further proceedings under the notice of the building commissioner be restrained until further order of the court; and a decree may be taken accordingly.

Decree accordingly.

Jones, Gorman and Hamilton, JJ., concur.


author: Lieghley, J.

text:
    The Delivery Co. v. Callachan, by etc.

      Master and servant — Truck driver invites minor to assist — In violation of mle of employer — Liability of employer — Charge ■ to jury not prejudicial, when — •Failure to request instruction — . Contributory negligence — Charge to jury limited by answer, when.

    1. Where an employe of a company engaged in the business óf delivering packages, invites a minor to ride on the truck and to deliver packages for him, promising to pay the minor for such services, and the minor is injured through the negligence of the employe, the company is liable for such injury notwithstanding it had a rule that employes were to allow none other than authorized employes to be and remain on such trucks.
    2. Error can not be predicated upon the failure of the court to charge with reference to one phase of a case in the absence of a request to charge with reference thereto.
    3. Where the answer contains a general charge of contributory negligence followed by specifications of contributory negligence, the court should limit the jury in its consideration of contributory negligence to the question as to whether or not the plaintiff was negligent in the particular charged in the answer.
    (Decided July 2, 1917.)
    Error : Court of Appeals for Cuyahoga county.

      Messrs. Gage, Day, Wilkin & Wachner, for plaintiff in error.

      Messrs. Chapman, Howland, Niman & Waite and Mr. Geo. C. Hañey, for defendant in error.
   Lieghley, J.

The parties stood in reverse order ■in the court below, and for convenience will be so named herein.

The plaintiff, Charles M. Callachan, a minor, filed his petition in the court below stating that he was a minor; that on the 29th day of October, 1915, he received certain personal injuries through the carelessness and negligence of the defendant, for which he prayed for damages; that the defendant company was engaged in the business of delivering packages for various concerns in the city of Cleveland by means of an automobile truck then and there in charge of one Stephan; that on the 26th day of October, 1915, the said Stephan was operating said tru'ck in delivering packages at and near East 40th street and Payne avenue, where he met plaintiff and invited him on the truck and invited him to act as a jumper for him in delivering packages to customers, and promised to pay him for his services; that he did pay him; that this proceeding continued for four successive days, and that on the fourth day, through the carelessness and negligence o'f said Stephan in the operation of said auto truck, plaintiff was injured; that plaintiff was not an employe of the defendant company; and that salid defendant company, through its agent and servant, Stephan, was negligent in the following particulars:

1. By said Stephan operating said automobile in such a manner as to cause the same to suddenly jerk and throw plaintiff therefrom.

2. By said Stephan failing to guide and control said automobile so as to avoid running against and over plaintiff’s leg.

3. By said Stephan not stopping said automobile for plaintiff to alight therefrom.

4. By said 'Stephan ordering plaintiff to jump from said automobile while in motion.

Trial was had in the court below,' which resulted in a verdict and judgment for plaintiff, from which judgment error is prosecuted in this court to reverse the same.

It is urged that the judgment is contrary to law. It 'is conceded that the doctrine announced in the case of Cleveland, Terminal & Valley Rd. Co. v. Marsh, 63 Ohio St., 236, is controlling, unless the fact that the defendant company 'promulgated a rule expressly instructing employes to permit none other than authorized' employes to be and remain on the truck requires the above case to be distinguished from the case at bar.

Quoting from the syllabus in Railroad Co. v. Marsh, supra:

“3. One who is invited by a servant- of a corporation in charge of its work or service to assist him therein, and does so with some purpose or benefit to be subserved in his own behalf in addition to the purpose of so assisting, is not a volunteer, and is entitled 'while so assisting, to be protected against 'the negligence of the servants of •the company.”

■ Quoting from the opinion, at page 245:

“Where a person at the request of' a servant of a corporation, assists such servant in the performance of his work without any purpose or benefit of his own to be served by such assistance, he is regarded as a mere volunteer, and the requests to charge would be applicable to such a case. But where he has a purpose or benefit of his own to be served by such assistance, in addition to the purpose of assisting the servant., he is regarded as acting in his own behalf, with at least the acquiescence of the company. A trespasser who is upon the company’s premises wrongfully, and a mere volunteer, stand upon substantially the same footing, and are entitled to recover only for such negligence as occurs after the servants of the company discover their perilous situation, that is for wilful or intentional injury. But there is a class between mere volunteers and trespassers and partaking somewhat of the characteristics of each, that is where the person assists the servant at his request, not only for the purpose of assisting in the work of the master, but also'for a purpose and benefit of his own. In such cases it can not be said that he is wrongfully upon the premises, because he is invited by the servant in charge. The master may not have assented, .but neither has he dissented, and being there upon the invitation of the servant in charge and there being no dissent of the master, he is regarded as being there by sufferance. And being there by sufferance he is rightfully there for the double purpose of aiding the servant, and thereby furthering the interests of the master, and of furthering his own private interests in his own behalf and for his own purposes and benefits. In such cases the person so assisting can not be held to .thereby become a servant of the master, because the servant inviting such assistance has no power or authority to employ other servants, and therefore the law of fellow-servants is not applicable. As such assistant is not a trespasser, and not a fellow-servant, and not a mere volunteer, the law assigns to him without name the position of one, -who, being upon the premises of another by the sufferance of such other, performing labor or service for his own purpose and benefit in his own behalf, is entitled of ’right to be protected against the negligence of the owner of the premises or his servants. The case of Street Railway Co. v. Bolton, 43 Ohio St., 224, was decided upon this principle, although the principle is not very clearly stated in the report of the case.”

It is claimed that the promulgation of the rule amounted to a dissent on the part of the defendant. The plaintiff claims 'that he was a “licensee with an interest” under the rule in the above case. Does >the rule — of which the plaintiff knew nothing, so far as the record shows — have the effect of changing the status of the plaintiff from that of a licensee with an interest to that of a trespasser or volunteer?- In this case it is conceded that the plaintiff wás in the employ of Stephan, and while so employed both were engaged in furthering the business of the master. We know of no authority for the doctrine that the promulgation of a rule for the direction and control of employes will excuse the master for the tort of the servant which results in injury to a third' person, relieving the master of responsibility therefor. It seems to us that the authorities are to the contrary.

In the case of Harriman v. Railway Co., 45 Ohio St., 11, the court says, at page 38 of the opinion:

“So it may be said in this case, that at most it appears that the defendant’s servants, while acting in its business and within the scope of their employment, deviated from the line of their duty to the defendant and disobeyed its instructions. Nevertheless, while so deviating and disregarding their instructions, they were still doing their employer’s work, though not according to their instructions. And see Quinn v. Power, 87 N. Y. 535.”

We quote from the syllabus in the case of Barrett, Gdn., v. Railway Co., 106 Minn., 51, 18 L. R. A. (N.S.), 416:

“A master is responsible for the torts of his servant, done in the course of his employment -with a view to the furtherance of his master’s business, and not for a purpose personal to himself, whether the same be done wilfully, but within the scope of his agency, or in excess of his authority, or contrary to the express instructions of the master.”

In a note appended to the last-mentioned report are cited, many authorities in support of this doctrine..

'It is our opinion, therefore, that the judgment is not contrary to law under the doctrine announced in the Marsh case above referred to, and we are not disposed to depart from that doctrine, as urged upon us by counsel.

It is further urged that the judgment is against the weight of the evidence. We have examined the testimony of plaintiff and Stephan, the driver, and as we view it the circumstances developed by their testimony were 'such as to warrant the trial court in submitting the case to the jury. The jury resolved all the issues in favor of the plaintiff, and' we think there is proof in the record to support that finding.

It is further claimed that the court erred in submitting to the jury the second, third and fourth specifications of negligence, respectively. Ffom an examination of the proof we can not say that there was no evidence to support one or more of these specifications. Our disposition is that in the 'state of the record it is not material that some of the charges are not upheld by evidence, if others are, under the general principle announced in Sites v. Haverstick et al., 23 Ohio St., 626; Beecher v. Dunlap et al., 52 Ohio St., 64; McAllister v. Hartzel, 60 Ohio St., 69, and State, ex rel. Lattanner, v. Hills, 94 Ohio St., 171.

It is further claimed that the court erred in its failure to 'charge the jury as to the duty of the plaintiff in the event his own evidence raised a presumption of negligence. It was admitted that no request was submitted to the court to charge upon this subject, and in the absence of a request no prejudicial error can be successfully claimed for a failure so to do. State v. Schiller, 70 Ohio St., 1, 8, and State v. McCoy, 88 Ohio St., 447, 453.

It is further urged that the court erred in its charge on the subject of contributory negligence. The answer of the defendant contains a general charge of contributory negligence, followed by a specification to the effect that the plaintiff jumped, etc. The court in its charge limited the jury in a consideration of contributory negligence to a determination of the question of whether or not the plaintiff was negligent in the particular charged in the answer. We think the court was right. N. Y., C. & St. L. Rd. Co. v. Kistler, 66 Ohio St., 326, 333.

It is further urged that the court erred in refusing to give defendant’s request No. 7. This request required the jury to ¡confine its deliberation upon the case to a consideration of specification of negligence No. 1. In the view we have of the case, as before stated, we think it would have been error in the court to have given the same.

We find no error in the record prejudicial to the rights of the defendant, and the judgment of the court below is affirmed, with costs assessed against plaintiff in error.

Judgment affirmed.

Grant and Carpenter, JJ., concur.


author: Jones, P. J.

text:
    Barlion v. Connor, Exr., et al.

      Wills • — ■ Capacity — Advhnced years — Illiteracy.

    One is not incapacitated to make and execute a will merely because of advanced years or illiteracy.
    (Decided April 7, 1917.)
    Error: Court of Appeals for Hamilton county.

      Messrs. Horstman dr Horstman, for plaintiff in error.

      Messrs. Powell & Smiley and Mr. John 'C. Healy, for defendants in error.
   Jones, P. J.

This was an action to contest the will of Francis Connor. An issue was made up and .tried by a jury as required by Section 12082, General Code, resulting in a verdict sustaining the will, on which judgment was entered.

Among other considerations it is urged that the unusual age of the testator, who died at the age of almost, if not quite, one hundred years, and the fact that he was unable to sign his name, but executed his will by his mark (x), are elements tending strongly to establish 'his incapacity. We are aware of no rule of law that fixes any age beyond which a man loses testamentary capacity or which prevents an illiterate from executing a will.

A careful consideration of the record fails to show that the jury were not justified in finding testamentary capacity in the testator and that he was under no restraint. We find no substantial error to the prejudice of plaintiff in error.

Judgment affirmed.

Gorman and Hamilton, JJ., concur.


author: Hamilton, J.

text:
    The Contractors & Builders Supply Co. v. Cresap.

      Contracts — Sale of realty — Breach by purchaser — Rights of seller — Possession and cancellation of contract — Default judgment and sale not authorised, when.

    Where a contract for the sale of real estate provides for monthly payments, and in case of default, that the seller should have the right to re-enter the premises and that all payments made should be forfeited as liquidated damages, and the purchaser makes default in payments under the contract, the seller is entitled to the possession of the premises and to have the contract delivered up and canceled, but the court will not enter judgment for the amount in default and order a sale of the property.
    (Decided March 12, 1917.)
    Error : Court of Appeals for Hamilton county.

      Mr. Charles-Sawyer and Mr. S. A. Headley, for plaintiff in error.

      Messrs. Heilker & Heilker and Mr. Ed. F. Alexander, for 'defendant in error.
   Hamilton, J.

Plaintiff in error -brought an action in the common pleas court in ejectment, to recover possession of certain real estate in the possession of defendant under contract of sale, •and for relief by way of -cancellation of the contract of record.

The defendant had caused the -contract of sale to be recorded in the recorder’s office of Hamilton county, Ohio. The. prayer of the- petition asked for possession of said real estate and for -cancellation of said contract on the record, and other relief, alleging a breach of the contract by the defendant. The defendant answered, admitting the execution of the contract and that he claimed an interest in said real estate, and followed these admissions with a general denial; and by way of cross-petition claimed a waiver of the conditions, of the contract by the plaintiff, -claimed sundry payments were made, charged breach of contract by the plaintiff, and asked for recovery of the payments made. Plaintiff in reply made a general denial of the answer except as to the alleged payments. At the close of the evidence both sides requested an instructed' verdict.

Upon the issues joined a judgment for possession of the -real estate was rendered in favor of plaintiff; but cancellation of the contract on the record was refused and relief under the cross-petition was denied the defendant by the -trial court. Exceptions were taken by both parties, and error is prosecuted to this court.

• The contract provided for monthly payments, and in case of default that the seller, the plaintiff below, should have the right- to re-enter the premises, and that all payments made should be forfeited as liquidated damages for the breach of the contract. An examination of the record discloses that defendant admitted default' in payments under the contract, but requested the trial court to enter judgment for the amount in default and. to order a sale of the property, etc. This request was properly overruled, as this- would be to treat the contract as a mortgage lien, and wé do not think the contract will bear that construction.

Further, all- the material allegations of the petition were admitted in open court by counsel for defendant. It ‘having been shown by the undisputed evidence and admission of the defendant that he had made default in his payments, resulting in a breach of the contract, the plaintiff was entitled under the terms of the contract to the possession of the premises. The breach of the contract having been shown, the plaintiff was entitled to have the contract delivered up and canceled. This was the holding in the case of Kirby v. Harrison, 2 Ohio St., 327, and also in the case of Hansbrough v. Peck, 5 Wall. (72 U. S.), 497. The plaintiff being entitled to have the contract delivered up and canceled, it was entitled to complete relief by having the contract canceled of record.

The judgment of the common pleas court will therefore be affirmed, except' as to the refusal of the court to enter cancellation of the contract on the records, and as to that finding it will be reversed and a decree entered ordering cancellation of the contract on the record.

Judgment accordingly.

Jones, P. J., and Gorman, J., concur.


text:
    Milford National Bank v. Searles, Auditor, et al.

      Taxation — Value of bank assets determined, hozo — Real estate — Valuation on tax duplicate or on bank’s books.

    Where real estate belonging to a bank is carried on its books at a valuation less than that appearing on the tax duplicate, the auditor or tax commission in considering the value of the bank’s resources for the determination of the tax value of its ■shares is justified in adding to the net resources shown ini its report, the amount such value of the real estate as it appears on the tax duplicate exceeds its value as shown on the books of the bank
    (Decided October 15, 1917.)
    Appeal : Court of Appeals for Clermont county.
    In May, 1916, the cashier of The Milford National Bank duly filed with the county auditor of Clermont county, in accordance with Section 5411, General Code, a sworn statement of. the resources and liabilities of said bank, with a detailed statement of the names and holdings of the several stockholders therein.
    "This statement showed that t'he stock was divided into 600 shares of the par value of $100 each, and for the purpose of fixing t'he value thereof showed that the bank had:
    Capital stock ............$ 60,000
    Surplus ................. 60,000
    Undivided profits ........ 5,450
    Unpaid dividends ........ 730
    Making a total of........$126,180
    Included in the resources of the bank, making up this sum, was the real estate investment consisting of the banking house owned by the bank, in which it did business, which was carried on the books of the bank at a valuation of $20,000, as set out in said statement. This real estate was listed for taxes as such on the real estate tax duplicate of said county, at a valuation of $25,080.
    To fix the total value of the shares of stock in said bank the county auditor acting by virtue of Section 5412, General Code, deducted from said total of $126,180 said real estate value of $25,080, and thus fixed the taxable valuation of said shares, excluding real estate, at $101,100.
    The county auditor thereupon transmitted to the tax commission a copy of such report with the valuation of such shares so fixed by him. And the tax commission, in due course, coming to act on such valuation and return, under the provisions of Sections 5619 and 5620, General Code, made an addition to the-total valuation of $126,180, as fixed by the county auditor, of the sum of $4,530, and fixed the total valuation of said shares of bank stock at $130,710.

      The amount of this addition is the difference between the valuation of the real estate of the bank as carried on its books and shown in its statement, viz., $20,000, and the valuation as it stands on the tax duplicate, viz., $25,080, which is $5,080. But from this sum, however, the tax commission deducted an item, shown in the statement, of “current expenses and taxes paid, $550,” making the net addition the sum of $4,530.
    Plaintiff seeks an injunction against the collection of taxes upon this increase.

      Mr. D. W. Murphy, for plaintiff.

      Mr. Joseph McGhee, attorney general, and Mr. 'Charles G. White, for defendants.
   By the Court.

The decision of this case in- ■ volves a construction of Section 5412, General Code:

“Upon receiving such report the county auditor shall fix the total value of the shares of such banks, and the value of the property representing the capital employed by unincorporated banks, the capital stock of which is not divided into shares, each, according to their true value in money, and deduct from the aggregate sum so found, of each, the value of the real estate included in the statement of resources as it stands on the duplicate. Thereupon he shall make and transmit to the annual state board of equalization for 'banks a copy of the report so made by the cashier, manager or owner with the valuation of such shares or property representing capital employed as so fixed by the auditor.”

The real estate of the bank is valued and listed for taxation on the regular real estate tax duplicate of the county under the general laws relating thereto, just as all other real estate is valued and listed. (Section 5409, General Code.) If this particular real estate belonging to the bank is there listed at too high a valuation the law provides a method for securing a proper reduction. This valuation can not be changed or affected by any action taken in the valuation of the shares of stock in the bank.

The provision requiring the deduction from the aggregate valuation of the shares of stock of the value of the real estate included in the statement of resources as it stands on the duplicate is for the purpose of preventing double taxation on that part of the resources invested in real estate, on ■which taxes are paid as such.

The bank can carry this real estate upon, its books at such value as it may deem proper, but if that amount is less than the amount which •stands on the tax duplicate, then to the extent of such excess it is not included in the statement of resources. The deduction to he made is the value on the duplicate, which is included in the statement of resources.

In this case it can be seen that' if the total resources of $126,180 include real estate of only $20,000 in actual value, then there must be $106,180 in other assets instead" of $101,100 as fixed by the auditor, and the tax commission was justified in increasing that valuation. The deduction of $25,080, the. full value of the real estate as it stands on the duplicate, from the total resources as returned by the bank, unless' such increase is made, would decrease the valuation of such other 'assets $5,080, which would not be authorized by law.

The value of the real estate for the purposes of taxation has been fixed by the agencies provided by law at more than $20,000, to-wit $25,080, and, if that amount is to be deducted in fixing the valuation of the bank shares on which stockholders are to be taxed, at least that amount must appear in the statement of resources.

The action of the tax commission in increasing the valuation of the assets of the bank so that they would include the full value of the real estate as it stands on the duplicate, which is the amount deducted in fixing the value of the shares, was in accordance with*the facts and the law.

The relief prayed for by plaintiff must therefore he denied and the petition dismissed.

Petition dismissed.

Jones, Gorman and Hamilton, JJ., concur.


author: Richards, J.

text:
    McGinnis et al. v. McGinnis.

      'Alimony — Allowance discretionary — Sections nggo and uggi, General Code, mandatory, when — Review — Refusal'not revers-. ible, when.

    1. While the duty to allow alimony to the wife is mandatory under the provisions of Sections 11990 and 11991, General Code, yet those sections require the trial court to allow only such alimony as is reasonable and to make the same payable in such manner as is equitable.
    2. Where the parties are about 40 years of age, in good health, have no children, have lived together three years, and the wife has property of the value of $2300 and is in receipt of a salary of $98 per month for ten months of the year, and the husband has no property and receives a salary of $100 per month, a judgment refusing the wife alimony, other than $300 already paid her as temporary alimony and $50 to be paid as an attorney fee to her counsel, will not be reversed.
    (Decided January 28, 1918.)
    Error: Court of Appeals for Lucas county.

      Mr. O. S. Brumback, for plaintiff in error.

      Messrs. Marshall & Fraser, for defendant in error.
   Richards, J.

This is a proceeding in error to the court of common pleas to reverse a judgment of that court relative to alimony rendered on granting a divorce to the plaintiff. The parties to. this action were married on December 20, 1913, and the wife commenced an action for alimony alone on May 18, 1916. Thereafter the husband filed a cross-petition fop divorce, whereupon the plaintiff •filed an amended petition asking for both divorce and alimony.

During the pendency of the action the court of common pleas allowed to the plaintiff temporary alimony at the rate of $30 per month, and, under this order, she has received some $300 by way of temporary alimony. On the hearing of the case in the court of common pleas, a divorce was granted to the plaintiff, based on the ground of extreme cruelty, the decree finding that the plaintiff was entitled to recover no alimony other than $50 therein allowed as -an attorney fee for her counsel. The court adjudged that the husband pay this sum and also the costs of the action. It is to reverse this refusal to allow alimony, other than as stated, that she brings this- proceeding in error.

The bill of exceptions discloses that the husband has no property, but is in receipt of a salary of $100 per month as a mail carrier in the city of Toledo, and that the wife is a teacher in the public schools of that city, receiving a salary of $98 per month for ten months in the year. She also has property which she received from her mother, amounting in value to about $2,300, a part of which is now in. cash and the remainder represented by a mortgage held by her. Each of the parties is about 40 years of age and apparently in good health. They have no children. Under these circumstances it is contended that the court erred in refusing to award to her a substantial sum by way of alimony, and it is insisted that the language of the statute is mandatory and requires the allowance of alimony. The right of the plaintiff to alimony is controlled by Sections 11990 and 11991, General Code. The first section requires, when a divorce is granted because of the husband’s aggressions, that the court shall restore to the wife any name she had before marriage and allow such alimony out of her husband’s property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of the divorce. The next section provides that such alimony may be allowed either in real or personal property, or both, or in money, payable either in gross or installments, as the court deems equitable. It will be noticed that by the terms of these statutes only such allowance is to be made as the trial court deems reasonable, having regard to the circumstances stated in the statute, and that it may be allowed in such property and payable on such terms as the trial court deems equitable. The language of these sections has been held by our supreme court to be mandatory, but it can only be mandatory to the extent that the trial court shall make such allowance of alimony as it deems reasonable, payable out of such property and in such manner as it deems equitable. A large discretion appears to be vested in the trial court, and this is, of course, a judicial discretion and subject to review by the court of appeals.

The trial judge in determining whether an allowance of permanent alimony should be made, manifestly considered all the facts and circumstances disclosed by the record, the duty to consider which is imposed upon him by statute. Considering the age and health of the parties, the fact of the salary received by each, and that the husband had no property, while the wife had the amount shown by the record, we cannot see that the judgment is so maniféstly against the evidence as to require a reversal, nor that the action of the court was unreasonable or inequitable. The court allowed $50 as an attorney fee for plaintiff’s counsel, and was, of course, advised of the fact that' some $300 had already been paid by way of temporary alimony. While the language oí the sections is mandatory, these sections do not require the allowance of alimony other than shall be found to be reasonable and equitable.

Finding no reversible error the judgment will be affirmed.

Judgment affirmed.

Kinkade, J., concurs.

Chittenden, J., not sitting.