text:
    ATTORNEY AND CLIENT — ERROR—MASTER AND SERVANT —TRIAL.
    [Hamilton (1st) Circuit Court.
    January 30, 1909.]
    Swing, Giffen and Smith, JJ,
    Dayton Folding Box Co. v. Daniel Ruehlman.
    1. Prejudicial Remarks by Counsel to Jury Requiring Reversal.
    Statements of fact being made by counsel during a trial, within the hearing of a jury, that are prejudicial, incompetent or not at issue, should be corrected immediately and modified by the trial judge without waiting to be reminded by opposing counsel; in default of so doing, the wrong being one impossible' of nullification or its not manifestly appearing on review that no prejudice in the minds of the jury resulted therefrom, the judgment should be reversed.
    3. Master’s Liability After Ineffectual Attempt to Repair Defective Machinery.
    A verdict for damages for injuries received by an employe resulting from defective machinery after an ineffectual effort to repair it will not be reversed, it clearly appearing that the machine at which plaintiff was •employed was not working properly, an effort, was made to repair it and he was assured that it was all right; the fact that the repair was not made at the exact time claimed by plaintiff is immaterial.-
    ,[Syllabus approved by the court ]
    Error to the superior court of Cincinnati.
    Galvin & Galvin, for plaintiff in error:

      V. E. Heintz, for defendant in error:
    Cited and commented upon the following authorities. Hollis v. Glass Co. 220 Pa. St. 49 [69 Atl. Rép. 55]; Saxton v. Railway, 219 Pa. St. 492 [68 Atl. Rep. 1022]; Wagner v. Hazle Tp. 215 Pa. St. 219 [64 Atl. Rep. 405] ; Cunningham v. Heidelberger, 48 Misc. 614 [95 N. Y. Supp. 554]; Manigold v. Traction Co. 81 App. Div. 381 [80 N. Y. Supp. 861]; Lenahan v. Coal Mining Co. 70 Atl. Rep. 884 (Pa.); Third Nat. Bank v. Faults, 115 Mo. App. 42 [90 S. W. Rep. 755]; Balder v. Furnace Co. 103 Minn. 345 [114 N. W. Rep. 948]; City Electric Ry. v. Salmon, 1 Ga. App. 491 [57 S. E. Rep. 926]; Georgia Midland & G. Ry. v. Evans, 87 Ga. 673 [13 S. E. Rep. 636]; Johnstone v. Railway, 45 Wash. 154 [87 Pac. Rep. 1125]; 29 Cye. 775; Hayes v. Smith, 62 Ohio St. 161 [56 N. E. Rep. 879]; Cleveland, P. & E. Ry. v. Pritschau, 69 Ohio St. 438 [69 N. E. Rep. 663; 100 Am. St. Rep. 682].
   SWING, J.

This ease is in this court on error to a judgment rendered in the superior court of Cincinnati, wherein a judgment was recovered by Ruehlman in an action for personal injuries.

It is urged that the judgment is not sustained by sufficient evidence. We think it is sustained by sufficient evidence. The evidence clearly shows that the machine which produced the injury had not worked properly; that the defendant was informed of the fact by Ruehlman; that the defendant attempted to fix the machine, and informed plaintiff that it was all right — although the weight of the evidence i's probably to the effect that the machine was not fixed at the exact time claimed by the plaintiff. It might have been fixed a few days before but this is not material. From the evidence the jury had a right to believe and find that the injury was caused by the defective machine.

During the progress of the trial the following occurred:

“Mr. Galvin: If Dr. Yan Meter is here, plaintiff can subpoena him and call him if he desires. ,
“Mr. Heintz: But he is the physician of the defendant.
“Mr. Galvin: He is not the physician of the defendant, but is a regular practicing physician of this city and belongs to no one.
“Mr. Heintz: Well, then, he is the physician of the insurance company which you represent and which is defending this suit.
“Mr. Galvin: I object to that statement from counsel for plaintiff, and I move the court that this case be now withdrawn from consideration by the jury, because of the misconduct of counsel and the improper remarks of counsel for the plaintiff in the statement made in the presence of the jury that there is an insurance company back of the defense of this action, and because said statement is outside of the record, foreign to the question we are trying and made for no other purpose than to prejudice the jury. I insist upon my motion that the case be withdrawn from the consideration of the jury and the cause continued. ’ ’

This motion was overruled; to which counsel for defendant excepted.

It is the duty of a judge in the trial of a cause before him to see that the cause is tried in accordance with the established principles of the law. The cause is to be. tried upon the issues made in the pleadings, and the evidence which is competent to support these issues, the arguments of counsel upon these issues, and the evidence and the charge of the court pertinent to the issues and the evidence. This duty is ever present with the judge during the trial, and where evidence is sought to be introduced which is not only incompetent but which is calculated to prejudice the jury, or when counsel make statements of fact which are not in issue, which are calculated to prejudice the minds of the jury, it is the duty of the judge to immediately interpose and correct the wrong without waiting to be reminded of it by counsel. There may be eases where the judge by proper admonitions to the jury may nullify this wrong, but there are cases where this cannot be done, and in these cases the only safe way is to discharge the jury and continue the case. Clev. P. & E. Ry. v. Pritschau, 69 Ohio St. 438 [69 N. E. Rep. 663; 100 Am. St. Rep. 682]; Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571] ; Wagner v. Hazle Tp. 215 Pa. St. 219, 226 [64 Atl. Rep. 405]; People v. Sinclair, 95 N. Y. Supp. 861.

In this case the court did not interfere of its own motion and admonish the jury, but when counsel objected to remarks of counsel the objection was overruled, and the remarks therefore went to the jury with the court’s approval.

The remarks made by counsel are clearly improper and manifestly calculated to prejudice the jury, and it does not manifestly appear from the evidence that what was said did not influence the jury in arriving at its verdict, and while we hold that the verdict is not manifestly against the evidence, we also hold that it does not clearly appear that the jury was not influenced in arriving at its verdict by this improper statement of counsel made in its presence.

Judgment reversed.

Smith and Giffen, JJ., concur.


source: Caselaw Access Project

author: KINKADE, J.

license: Public Domain

text:
    BILLS, NOTES AND CHECKS — CHATTEL MORTGAGES.
    [Lucas (6th) Circuit Court,
    January 16, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Starr Piano Co. v. Martha J. Edgar.
    1. Parol Proof Competent to Show Satisfactoriness of Subject of Conditional Sale in Action upon Note.
    Parol evidence in an action between immediate parties on a promissory note is admissible under Sec. 3171o Rev. Stat. to show that it was not delivered with intent to have effect, or if it took effect at all that it was contingent upon the happening of a given event subsequent to its delivery, as for instance the satisfactoriness of an article sold upon conditional sale.
    2. Statement of Chattel Mortgage as to Delivery of Notes Secured not Conclusive on Maker.
    A chattel mortgage, being merely an incident of the debt it secures, its declaration that notes have been delivered, does not remove them from the scope of Sec. 3171o Rev. Stat. so as to conclude the maker from showing that their effect .was to be dependable upon the performance of certain conditions subsequent.
    Error to Lucas common pleas court.
    Rheinfrank & Ohlinger, for plaintiff.
    W. G. Ulery, for defendant.
   KINKADE, J.

This was an action in the court below to recover the price of a piano alleged to have been sold to the defendant by the Starr Piano Company. Judgment below was rendered for the defendant and the case is here on error to reverse this judgment. Counsel stated in opening the case that the main ground of error is, that the verdict was not supported by the evidence and is against the evidence; also, that incompetent evidence, parol evidence, was admitted to vary the terms of a written contract. I may say that in the matters other than those two points we find no error, and we may dismiss the balance of this ease.

On this point of the evidence, not being sufficient to sustain the verdict, and on the ineompetency of the evidence, we have given the case and the authorities cited by counsel as close attention as we can give it. It is contended, taking up first the question of the incompetent evidence said to have been admitted, that inasmuch as the defendant in the case, Martha J. Edgar, went to the store of the Starr Piano Company, and there had some form of negotiations or dealing or talk that resulted in the execution of forty-five or forty-six notes and a chattel mortgage securing the same, that any parol evidence as to what took place at the time between the representatives of the Starr Piano Company and the signer of the notes and the mortgage must be excluded; that the maker of the notes and mortgage is entirely concluded by the written contract thus evidenced by the notes and by the mortgage, and that the parol proof which sought to attach a condition, to wit, that Mr. Edgar should be satisfied with the price, if not with the piano, was wholly incompetent, and I think it may be conceded that without that proof the judgment could not, of course, be maintained.

It is contended here by the plaintiff in error that there is clear prejudicial error on the part of the court in admitting that proof. Our attention is called to Beecher v. Dunlap, 52 Ohio St. 64 [38 N. E. Rep. 795]. The first clause of the syllabus is as follows:

“Evidence of a parol agreement made at the execution and delivery of a note, by which it is not to be operative, unless, within a given time, the makers are able to realize a given sum of money from property purchased, and for which the note was given, is not competent. ’ ’

This is a case in which a note was given for a patent right and it was sought to prove in defense of an action brought to recover on the note, that there was a verbal agreement at the time that if the party were not able to make $1,750, if I have that amount correct, out of the patent by the time the note fell due, the note was to be null and void, and the Supreme Court said this evidence, relating to a condition subsequent, violated a written contract, and was at variance with the rule that parol evidence should not be permitted to disturb the certainty of a contract reduced to writing. And counsel cites this case as authority for the present case.

It is contended by counsel on the other side that this evidence is competent for the reason that it tends to show that no agreement was ever entered into and that any evidence which thus tends is competent. If it is evidence that tends to show that the notes and mortgage were delivered for a specific purpose, but were not to become operative until the happening of an event, that that must be held to be a condition precedent, and evidence of that kind is admissible for the reason that it tends to show that no contract ever existed at all; it does not vary the contract, but simply shows that no contract ever existed, and we are cited to a large number of authorities on that point collected in the digest, and Secs. 578 et ceq. of Elliott, Evidence, and a large number of authorities, all of which we have examined and a good many of which may perhaps justly be claimed to be at variance with Beecher v. Dun lap, supra. But counsel for the defendant in error contends that no matter what the rule may be on the law generally, that he is not obliged to rest the defense on that ground on account of the peculiar wording of our negotiable instrument law which took effect the first day of January, 1903, and particularly as found in Sec. 3171o Rev. Stat. That section reads,

“Every contract on a negotiable instrument is incomplete and revocable until delivery of the - instrument for the purpose of giving effect thereto. As between immediate parties, and as regards a remote party, other than a holder in due course, the delivery, in order to be effectual, must be made either by or under the authority of the party making, drawing, accepting or endorsing, as the case may be; and in such case the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument. But where the instrument is in the hands, of a holder in due course, a valid delivery thereof by all parties prior to him so as to make them liable to him is conclusively presumed. And where the instrument is no' longer in the possession of a party whose signature appears thereon, a valid and intentional delivery by him is. presumed until the contrary is proved.”

Under the section the burden, of course, with the notes and the mortgage found in the hands of the Piano Company, of proving they were not delivered and the condition did attach, if admissible at all, is on the defendant in error in this case. We have read the evidence through as to what the witness said concerning this whole transaction. It is a case that was tried to a jury below and a verdict returned for the defendant.

The question first that we have to determine is as to the competency of this evidence, whether you may prove by parol that a promissory note was not intended to have effect, was not delivered so-as to have effect, and that if it took effect at all, it was to be on the happening of a given event at a later date subsequent to the, delivery. We are very clear that under this section of the statutes that may be done with reference to a promissory note.

It is said, however, that the chattel mortgage in this case excludes such proof, because, by the terms of the chattel mortgage which are set forth in plaintiff in error’s brief, the parties have there declared that the notes have been delivered, that they there declared that, which is equivalent to saying that the notes have been d°livered and that they have been delivered with a view of taking immediate effect, and that the contract has gone into effect, and consequently that they ¡have fixed it by the.chattel mortgage as a condition subsequent which ¡fakes it out from under the scope of Sec. 3171o Rev. Stat. and places ¡it squarely under the decision of Beecher v. Dunlap, supra.

There is some force in this contention of counsel and we have considered it and considered it fully, and we think the chattel mortgage is •only an incident of the debt, and, regardless of its terms can be held to he nothing more, and if the debt fails the mortgage fails also. The -security being only an incident to the debt.

' Therefore we find that there is no error in the court of common ipleas in admitting the parol proof, for the purpose of establishing a •condition which Mrs. Edgar contends existed with reference to the •.execution and delivery of the notes and mortgage.

And this leaves but the other • question, as to whether the evidence in this ease sustains the verdict for the defendant. There is considerable conflict in the evidence between Mr. Robinson and Mr. Wheeler and Mrs. Edgar as to what took place, and between Mrs. Bergeron and Mrs. ¡Price and the other ladies at whose house she called, as to what she said there along the line of impeaching her testimony. There' is a good deal •of conflict in the evidence and we think it is precisely the kind of a ■case that a jury is far better qualified to settle than a court. We have read it with a view of determining whether the evidence in the case ••sustains the verdict. Every presumption is in favor of the verdict and we should not disturb it, unless it is manifestly against the weight of the -evidence. We have read the evidence with care and some points perhaps in the argument of counsel for plaintiff in regard to the evidence may be said to be well taken, but upon the whole we think the evidence in this case justifies the verdict, and we are very clear that the evidence •does not justify this court in disturbing the verdict, and for that reason the judgment of the court of common pleas rendered upon this verdict will be affirmed.

Parker and Wildman, JJ., concur.


author: JONES, J.

text:
    CRIMINAL LAW — JURY.
    [Pike (4th) Circuit Court,
    May 19, 1909.]
    Cherrington,' Jones^and Walters, JJ.

      Guy H. Deiter v. State of Ohio.
    Selection by Court of Grand Jurors from List of Grand and Petit Jurors ■ Called without Designation of Service Required and Designation of Remainder of List as Petit Jurors, and Arbitrary Discharge of Petit Panel, .Held Abuse of Discretion. ■
    .Assuming to act under Sec. 5165 Rev. Stat., the common pleas judge ordered thirty-five names to be drawn from the jury wheel to act as .grand or petit jurors, without designation whether they should . be grand or petit, or what number should constitute either, in his direction to the clerk. Thirty-four having appeared at the first day of the term he selected fifteen of the said persons and directed the clerk to call . them as grand jurors. This left the remaining nineteen as the regular petit panel. Later at the term he discharged the entire regular petit ■ panel because it or they were “so interested in causes coming on further to be heard in this court, so as to. disqualify them from sitting thereon," and ordered the new jury drawn to appear on the day the accused was tried. Held:

    <1) A court or judge, under 5165 Rev. Stat. has no authority to so exercise his personal selection of the entire grand jury panel in the manner stated. The order to the clerk should stipulate the number of each panel to be drawn; and the clerk should draw from .the wheel the grand and petit juries as distinct panels.
    (2) A court has ho authority to discharge the entire panel of the petit jury for the cause above stated; and it is an abuse of discretion so to do.
    (3) The irregularity in the selection of- the grand jury, thus pursued, cannot be attacked by plea in abatement.
    [Syllabus by the court.]
    Error to Pike common pleas court.
    Guy H. Deiter was indicted for grand larceny. He excepted to the indictment by filing a verified plea in abatement which, among other ■facts, set forth that one of the judges of the common pleas court of Pike county directed the clerk of said court to draw from the jury wheel in the presence of the sheriff, thirty-five names of persons to ■serve as grand and petit jurors for the Nov. term, 1908, of the court in said county, and to appear at 9 o’clock a. m. on November 16, 1908, that being the first day of the term. On November 5, 1908, the deputy -clerk drew thirty-five names from the wheel as directed and issued .a venire facias to the sheriff commanding him to serve said persons to •attend said court as jurors, either grand or petit, at the time named. On the.seventh of November the sheriff served all of the persons personally, except one who was out of the county. On November 16, 1908, the thirty-four persons so summoned as jurors appeared in court, “amd the judge of said court directed the clerk of said court to call certain persons of said venire selected by said judge of said court as grand jurors for said term and court. Thereupon the fifteen persons so selected were impaneled and sworn.” The plea then alleges that the fifteen persons so selected, after hearing a part of the evidence, considered the evidence and indicted the defendant, but before returning the indictment into court one of the members was excused for sickness and another.substituted to fill the panel; that the substituted member did not hear all of the evidence submitted to the others, and that a part of' the evidence was not resubmitted before the return of the indictment.
    A demurrer was interposed to this plea by the state, on the ground that the plea did not state facts sufficient, etc.. The demurrer was sustained and the plea overruled.
    The additional errors claimed are predicated upon the motion and challenge to the array of the petit jury, and upon oral motions,, made in open court prior to its empaneling, which appear in the bill of exceptions. It appears from the record, that the regular petit jury empaneled for the term was discharged by the court for the reason as-alleged in the entry, “that the present petit jury is so interested in causes coming on further to be heard in this court, so as to disqualify them from sitting thereon; it is ordered that said jury and the several jurors thereof, be, and they are hereby discharged from further service-in this court.” It further appears that the court ordered that “thepetit jury heretofore selected by the court” having been duly discharged, the clerk draw new names from the wheel to serve as a new petit jury for the term and cause them to be summoned to appear at: court on December 30, 1908, the time when defendant’s case came on. for trial.
    Other motions were made to the court; a demand for the regular-jury originally selected was made and overruled. A motion to set aside and challenging the array was made, based upon the action of the court in discharging the regular jury for the cause stated, and in impaneling the new petit jury. These motions were also overruled. A trial, followed, resulting in conviction.
    S. L. Patterson and C. H. Henkel, for plaintiff in error.
    J. A. Douglas, Pros. Atty., for defendant in error:
    Cited and commented upon the following authorities. Lindsay v.. State, 24 Circ. Dec. 1 (4 N. S. 409) ; Steivart v. State, 1 Ohio St. 66;. Tatum v. Young, 1 Port. (Ala.) 298; State v. Marshall, 8 Ala. 302;.'
      Hurley v. State, 29 Ark. 17; People v. Lee, 17 Cal. 76; People v. Arceo, 22 Cal. 40 Stout v. Hyatt, 13 Kan. 232; Thompson & Merriam, Juries, Sees. 259, 263; 17 Am. & Eng. Ene. Law 1150, 1173, 1174, 1275, 1281; Brickwood’s Sackett’s Instructions, Secs. 17, 24, 225; State v. Buchanan, Wri. 233; Reed v. State, 15 Ohio 217; Bond v. State, 23 Ohio St. 349; Huling v. State, 17 Ohio St. 583; State v. Barlow, 70 Ohio St. 363 [71 N. E. Rep. 726] ; Stale v. Thomas, 61 Ohio St. 444 [56 N. E. Rep. 276; ■48 L. R. A. 459]; Stahl v. Style-, 5 Circ. Dec. 29 (11 R. 23) ; Little Miami Ry. v. Collett, 6 Ohio St. 182; Ohio Life Ins. & Tr. Co. v. ■Goodin, 10 Ohio St. 557; Scovern v. State, 6 Ohio St. 288; McHugh v. .State, 42 Ohio St. 154; Weaver v. State, 24 Ohio St. 584; Dille v. State, 34 Ohio St. 617 [32 Am. Rep. 395]; Turk v. State, 7 Ohio (pt. 2) 240; United States v. Wilson, 3 O. F. D. 282 [6 McLean 604]; Wagner v. ■State, 42 Ohio St. 537; Blair v. State, 3 Circ. Dec. 242 (5 R. 496).

      Reversed, no op., State v. Deiter, 81 O. S. 504.

   JONES, J.

The record might have stated the crucial facts in this case a little more succinctly. As admitted by counsel on both sides, the facts briefly stated are as follows:

The judge ordered thirty-five names to be drawn from the jury wheel to act as grand or petit jurors, without designation whether they should be grand or petit, or what number should constitute either, in his direction to the clerk. Thirty-four having appeared at the first day ■of the term, he selected fifteen of the said persons, and directed the ■clerk to call them as grand jurors. This left the remaining nineteen as the regular petit panel. Later at the term he discharged the entire regular petit panel because it or they were “so interested in causes” to be heard, and ordered a new jury drawn to appear on the day the accused was tried.

Plaintiff in error claims a number of errors were committed, but, with the exception of two, we consider them irregularities merely, and 'not substantial errors. The vital questions in this case, as we view them, relate to the method employed in the empaneling of the grand and petit juries. Broadly speaking we recognize the well known legal principle that irregularities in the empaneling of juries, which do not affect the substantial rights of the accused, will not be considered on review; that the method of their selection concerns the public rather than the parties. But it does not follow that the power of the court or .judge transcends the law relating to their selection. The method employed in the case at bar, if adopted in practice, would sap at the foundations of our jury system. It is autocratic in that it would.invest the trial judge with almost unlimited power in the construction of petit and grand juries. It is not denied but that the state may confer such power as it pleases in the method of selection, having regard only to the constitutional guarantee of a trial by an impartial-' jury. .The method employed affects not only the accused who was on trial, but the entire body politic. And we cannot more aptly state our-views in that regard than by adopting the language of the learned judge, in State v. Barlow, 70 Ohio St. 363, 379 [71 N. E. Rep. 726],. wherein he says-.

“The right of everyone accused of crime to a fair trial should be-secured to him, and this court, as in the past, will insist upon this, but we do not incline to search for unsubstantial errors, or to give undue-effect to them when discovered by others.”

1. In our .judgment Sec. 5165 Rev. Stat. requires the court or judge, in his order to the clerk to cause any number of persons to be summoned as grand or petit jurors, to specify in his order the number of grand and petit jurors, respectively, that is to be drawn from the-wheel. The requirement of the section,-“to be summoned to serve as-grand or petit jurors,” taken in connection with the cognate sections-immediately following, must be construed to mean that the direction should be, to cause them to be summoned to serve as grand jurors, or. to-be summoned as petit jurors as the case may be. The section further-provides that grand and petit juries shall'be impaneled from persons-“so selected and summoned as aforesaid.”

Sections 5169, 5170 and 5171 Rev. Stat. recognize the fact of separate bodies as drawn from the wheel. By the first the summons is. issued for the person drawn as grand or petit juror “as the case maybe”; the second by its provision that “if any person selected as a* grand or petit juror, as aforesaid, be not summoned’-’ equally recognizes the distinction between the two bodies. Section 5171 provides, if there be a. deficiency in the grand jury, that the court may issue avenire for talesman to supply the deficiency.

The statute does not even impliedly authorize the court arbitrarily to select these two juries any more than it does the clerk. The carey by which the legislature has attempted to safeguard the wheel and its-contents, and by providing the uniformity of pieces, of paper upon which the names are written and their thorough admixture before drawing, indicates that, to the wheel and not to the court or judge, is confined the impartiality of selection of the grand and petit juries. The-order directed to the clerk should state the number' of each desired' to be selected, or a separate writ might issue for- each paneL;. and the-clerk should draw each panel as a distinct panel. So far as we know*, this is the universal custom employed by the'common pleas judges ip this circuit. And while this fact does not determine its validity, it, serves to show the construction these judges give the law.

2. Much of what has been said of the method employed in the-selection of the grand jury would apply to the selection of the petit jury, if those facts were fully incorporated in the bill in support of the challenge to the array of the petit jury. The action of the court in selecting certain persons from the whole list to serve as a grand jury,, was tantamount to the selection, of the regular petit jury. The remaining nineteen persons, necessarily became the regular petit jury.

However, there is further reason why the challenge to the array should have been sustained. Section 7276 Rev. Stat. provides that the-jury summoned and impaneled according to the provisions of law relating to the summoning and impaneling of juries in other cases, shall try the accused. The court, two .days before the trial of the accused, discharged the entire regular panel, for the ostensible reason as shown by its journal, that it was so interested in causes coming on further to be heard as to disqualify them from sitting thereon. The action of the court in this regard is sought to be upheld by Sec. 5172 Rev. Stat.. which provides that if, “from any cause,” it becomes necessary to have a new petit jury or members to fill up the regular panel, the court may order the names of the number of jurors required for -the new petit jury, etc. The cause mentioned in that section not only includes one of the causes of excuse granted by such sections as 5179 and 5180-, but would no doubt include any other personal cause addressed to the wise discretion of the court. It does not include the interest of the juror or panel in pending criminal causes coming on to be heard, for the reason that such are especially provided for by other sections of the code, in the examinations of the juror- on voir dire.

Section 7279 Rev. Stat. provides that challenges for caiise shall be tried by the court, on the oath of the person challenged, or on other evidence. Challenge pertaining to interest or partiality of the juror is made and disposed of by Sec. 7278. "We are not disposed to deny a wide discretion in the court in the discharge of jurors, but to discharge the entire regular jury, consisting presumably of nineteen persons, and prejudging their qualifications to sit as shown by the journal entry, appears to us as an abuse of discretion. If the first panel could be thus discharged, the succeeding one could also be, and thus act libitum until a satisfactory jury could be obtained.

This would furnish, opportunity for dictatorial conduct if the practice were indulged in. It would be entirely feasible, following the methods employed, to construct a grand jury of the same, political complexion, or Committed wholly to a “wet” or “dry” sentiment; and if the culling of the original list of jurors left a petit jury unsatisfactory to the court because of political or other bias, the residuum could be discharged and a new jury obtained. The legislature has wisely provided a nonpartisan commission for the selection of “judicious and discreet persons having the qualifications of electors” whose names are placed in the wheel for jury duty, and we do not think it wise, in the construction of these jury statutes, to uphold a construction that would furnish opportunity to nullify, in a measure, the intendment of the legislature and the action of the jury commissioners.

Had the journal entry merely recited that the jury was excused, without assigning the cause for their general disqualifications, it would be presumed that there were proper reasons for their discharge and that discretion had not been abused. In the cases cited to us bearing upon this question, in none of them appear such drastic action in discharging the jury as disclosed here.

3. The other question presented is, whether the method employed in the selection of the grand jury can be presented by a plea in abatement. Sec. 5175 Rev. Stat. provides that when the-grand or petit jury has not been drawn or summoned as prescribed by law, that the objection may be made by challenge to the array. Inasmuch as the plea in abatement did not question the legal qualifications of any of the individual members of the grand jury irregularly selected, we are constrained, by judicial authority in this state to hold that the irregularities should have been attacked by challenge and not by plea in abatement. Huling v. State, 17 Ohio St. 583; Lindsay v. State, 24 O. C. C. 1 (4 N. S. 409) ; Blair v. State, 3 Circ. Dec. 242 (5 R. 496) ; State v. Easter, 30 Ohio St. 542, 549 [27 Am. Rep. 478].

The court below erred in its discharge of the regular petit jury for the cause stated, and should have sustained the challenge to the array. The judgment of conviction will be reversed, with costs, and cause remanded to the court of common pleas for a new trial.

Cherrington and Walters, JJ., concur.


author: WILDMAN, J.

text:
    BONDS — MUNICIPAL CORPORATIONS.
    [Lucas (6th) Circuit Court,
    November 18, 1908.]
    Parker, Wildman and Kinkade, JJ.

      Harvey P. Platt, a Taxpayer, v. Toledo.
    1. Municipal Power to Construct Part oe Bridge under Expressed Intention to Complete Same.
    A municipal council has power and discretion to authorize contracts to be entered into and issue bonds for the completion of parts of a bridge over a- navigable river within municipal limits without making provision for the construction of a draw or other method of spanning the river. The fact that an expressed intention to complete the bridge is revocable, will not defeat the exercise of such power.
    2. Elimination of Bonds Excetted from the One Per Cent Limitation Considered in Fixing Aggregate Issue.
    An issue of bonds amounting to $525,000 by a city having an aggregate of $370,000 of bonds authorized and a tax valuation of $79,000,000, will not be deemed in excess of the 1 per cent aggregate limitation prescribed by Sec. 2835 Rev. Stat., if, in view of the modification of Sec. 2835b, eliminating all bonds issued prior to April 29, 1902, whether they be original bonds to provide payment for construction of waterworks or bonds to refund indebtedness created by such original issues, the proposed issue added to that already authorized not within the excepted bonds, does not exceed the prescribed limitation.
    [Syllabus approved by the court.]
    Appeal from Lucas common pleas court.
    B. A. Hayes, for plaintiff.
    C. S. Northup and J. P. Mantón, for defendant.

      Petition in error dismissed, Platt v. Toledo, 54 Bull. 106.

   WILDMAN, J.

. This case is one of so much importance to the litigants and to the community as to invite a larger discussion of the issues involved than I feel justified in entering into; indeed' I shall refrain from any elaborate review of the very able arguments of counsel and the computations and estimates made, because of what seems almost certain that, whatever decision may be rendered by this court will not be a finality — in other words, the case will almost inevitably go to the Supreme Court of the state for final review. I assume that because of the large interests involved and the importance of the questions presented. - The case is in this court upon appeal, it having been instituted ip the court of common pleas by Harvey P. Platt to enjoin the issue of city bonds to the amount of $525,000, for the construction of a bridge — or what is claimed upon one side, to be a part of a bridge — across the Maumee river in this city.

It is said that there are two substantial reasons why this issue should be enjoined: first, that by the issue of such bonds, coupled with other bonds authorized by the city during the current year of 1908, the limit of 1 per cent of the taxable value of property of the city will be exceeded; and also that there is no authority given by law for the issue of bonds to construct anything but a completed bridge.

As to the second of the propositions just recited, this court has already expressed its view in a previous suit instituted by this same plaintiff against the city to enjoin the issue of other b.onds for this same structure. In that case, the opinion in which was announced by Judge Kinkade, it was said, in substance, that the court saw no reason to hold that the contention of the plaintiff in that regard was correct. The matter has, however, been very ably reargued, and in courtesy to counsel, the arguments might receive some additional attention notwithstanding the opinion which has already been expressed and the decision which has been rendered by this court. The question was just as completely'involved in the former case, of course, as in the present one. We are disposed to adhere to the views therein expressed.

It is true that it may not be within the purview of the statute to authorize a municipality, under the guise of constructing a bridge, to issue bonds for the construction of something which is not a bridge, and we do not quarrel very much with the definitions offered by counsel for plaintiff of the term “bridge.” There is, however, in the ordinance passed by the city council in evidence before us, a very clear expression of an intention that a complete bridge, including a draw, or some other means of spanning the stream, shall be constructed, and it is apparent that the present issue of bonds is limited to the sum of $525,000, an amount insufficient for the construction of an entire bridge, including a draw or other means of completing the structure, because- of the requirements of the statute that the limitation of 1 per cent shall not be exceeded, or perhaps because of the desire of the council to protect the city against any unnecessary payment of interest upon its bonds until the time shall arrive when it is necessary to make payments for a completed structure. It is said that the intention, so expressed in this ordinance, is in no wise binding upon either the present or future council, that it is revocable and that there should be something in addition to it in the way of authorization of the board of service to construct an entire bridge, but we are inclined to think that the’expression of the intent of the legislative body of the city in the present ease is no more revocable than was the apparent authorization to the board of service given for the construction and extension of a filtration plant, the facts concerning which are recited in Yaryan v. Toledo, 28 O. C. C. 259 (8 N. S. 1). In that case it is true there was not only a section expressing the intention of the council that an entire filtration plant should be constructed, but also an expressed authorization to the board of service to construct; but this authorization was more apparent than real, because the board of service was powerless to act until the means were provided for the carrying out of the contracts into which it might enter. The contracts themselves would be of no validity until the funds were provided for carrying out the obligations thereby incurred. On page 280 of the opinion announced by my associate, Judge Parker, in Yaryan v. Toledo, supra, after quoting the expressions in the ordinance of claimed authorization to construct the entire plant, this language is used:

“This, we think, is within the power and the discretion of the council. Of course, such plans might be defeated by the subsequent action of the council or by another council, because one council cannot bind its successors, and the whole plan might be overturned in so far as its overturning would not interfere with contracts lawfully entered into or other vested rights.”

It does not appear that the expression of an intention to build an entire bridge is any more revocable at the instance of the present council, or any subsequent one, than was the expression of intention and apparent authority in Yaryan v. Toledo, supra,- and we are disposed to apply the principle of that ease to the present one and to hold that the council, in exercising the power conferred upon it by law and in the protection of the best interests of the city of Toledo, may authorize contracts to be entered into and provide the means for their fulfillment, for the completion of parts of such structures as the statute says they may provide means to pay for, by the issue of bonds or otherwise. We think that this contention that the council was powerless to issue bonds for the construction*of a bridge without making provision for the construction of a draw or other method of completely spanning the stream, should not be sustained and we adhere to the decision made in this respect upon the other trial between the same parties.

As to the other question — whether the attempted issue of $525,000 of bonds, added to the amount of other bonds authorized to be issued during the year 1908, exceed the limit established by the statute — the question is to be determined by the consideration of the various, estimates of values, the figures given us as to the issues of other bonds in •connection with certain qualifications of the statutory limitation found in Sec. 2835b Rev. Stat. There are several sections which touch more dr less directly’ upon the questions under consideration. Without ¡reading them, I may cite Secs. 2835, 2835b, 2412 (Lan. 3688; B. 1536-523) Rev. Stat., and an act for the issue of refunding bonds, Lan. Rev. Stat. 4000 (B. 1536-282).

I have before me notes of the agreed amounts of bonds issued in the several years prior to 1908, together with those authorized to be issued during the present year. ' There is an aggregate of $370,000 of bonds authorized to be issued in 1908 beside the issue now sought to be enjoined, making a total of $895,000. It is agreed that the valuation of the city property does not exceed $79,000,000, 1 per cent of which would be $790,000, so that if the qualifications in Sec. 2835b to which I have referred do not decrease the amount of the bonds below .the present amount authorized, there is no question that the issue would be in excess of the limitation allowed and the decrease would have to be to a total amount of not to exceed $790,000. I will not tarry very long upon a discussion of the construction of Sec. 2835b, but will simply express my own opinion — and probably that of the other members of the court — that sufficient emphasis has not been placed, in argument, upon the last clause or two of this section, and especially the expression of what is to be considered in arriving at the limitation therein provided. To make intelligible the view at which we have arrived, it is necessary to read Sec. 2835b:

“Provided further, that the limitations of one per cent and four per cent prescribed in section 2835 Rev. Stat. shall not be construed as affecting bonds issued under authority of said section 2835 upon the approval of the electors of the corporation, nor shall bonds which are to be paid for by assessments specially levied upon abutting property, nor bonds issued for the purpose of constructing, improving and extending waterworks when the income from such waterworks is sufficient to cover the cost of all operating expenses, interest charges and to pass a sufficient amount to a sinking fund to retire such bonds when they become due, nor any bonds issued prior to the passage of section 2835 Revised Statutes as amended April 29, 1902, be deemed as subject to the provisions and limitations of said section, or be considered in arriving at the limitations therein provided.”

Without going over the mass of figures submitted to us, I invite especial attention to the language which I have now read, in the closing part of this section: “Nor” shall “any bonds issued prior to the passage of section 2835 Revised Statutes as amended April 29, 1902, be deemed as subject to the provisions and limitations of said section, or be considered in arriving at the limitations therein provided.”

It seems to us that there is no escape from the conclusion that in determining the amount of bonds which may be issued .under the limitation, all bonds issued prior to the amendment of Sec. 2835, on April 29, 1902, should be excluded, whether, they be original bonds to provide payment for the construction of waterworks, or bonds to refund indebtedness created by such original issues,'and under that view, if we understand aright the contention of counsel for plaintiff, they' substantially concede that the limit of 1 per cent is not exceeded by the issue of $525,000 of bonds added to the bonds already authorized for 1908 when the amount of the bonds issued for waterworks purposes is taken with the qualification that such bonds sháll not be considered when the revenue from the waterworks rentals is sufficient to provide for the expenditures for maintenance and repairs and to pay the interest on the bonds and provide a sinking fund for their payment at maturity. I do not care to go into the figures which led to the agreement and concession which have been made in the case. The amount of the bonds issued prior to the date of the' amendment of Sec. 2835 referred to in the statute, should be, as I have said, eliminated from our inquiry, and taking the bonds issued subsequent to that date, i. e., to the amending of that section, the income derived from the waterworks in 1907, to wit, $204,000, would be sufficient for the purposes expressed in the statute so as to prevent the application of the amount of issue of waterworks bonds in 1908 — $230,000—upon the. aggregate amount permissible under the statute.

The conclusion at which we arrive is, that the plaintiff’s contention that the council is exceeding the issue permitted by Sec. 2835 and Sec. 2835b, is not maintained; and, entertaining the views which I have expressed as to both of the questions presented, we can arrive at no other conclusion than that the plaintiff’s petition should be dismissed. Such will be the judgment.

Parker and Kinkade, JJ., concur.


text:
    INTOXICATING LIQUORS — MUNICIPAL CORPORATIONS.
    [Jackson (4th) Circuit Court,
    May 26, 1909.]
    Cherrington, Jones and Walters, JJ.
    Charles H. Sullivan v. Wellston (City).
    Munioipal Cobpobations cannot Regulate Places Selling Nonintoxicatino Duxes Onlt.
    Municipal corporations have no power to impose restrictions upon or to regulate places where soft or non-intoxicating drinks only, are sold. The . state has not delegated such power. Whether the state, can do so, quaere.

    [Syllabus by the court.]
    Error to .Jackson common pleas court.
    T. S. Hogan, for plaintiff in error.
    C. C. McCormick, city solicitor, for defendant in error.
    This cause originated in the mayor’s court of the city of Wellston. Sullivan was charged with the violation of a penal ordinance. He first filed a motion to dismiss the prosecution. , This motion was, in effect, a demurrer to the affidavit. The motion having been overruled, he interposed a demurrer challenging the sufficiency of the affidavit. The demurrer being also overruled, upon a hearing consisting of an agreed statement of facts, the defendant was found guilty. The common pleas court affirmed this judgment, and a reversal is asked in this court.
    From the' bill of exceptions taken before the mayor, it appears that the city had passed an ordinance making it “unlawful for any person or persons keeping a place where malt liquors or other soft drinks are sold, to permit or allow any screen, blind, shutter, stained glass or other substance or device in the front of said room or place which prevents a full view of the interior of such room or place where such malt liquors or soft drinks are sold or furnished.” The ordinance further provided that such rooms or places should be illuminated at nighttime and provided a penalty for its violation.
    The affidavit charged the defendant with, “being the keeper of a place where malt liquors and other soft drinks, to wit: ginger ale, cider, pop and a beverage commonly known as temperance beer were sold” and with unlawfully permitting cloth blinds to remain on the front ■windows and allowing a screen to remain, which blinds and screen prevented a full view of the interior.
    By the agreed statement it appears that defendant was the “keeper of a place where soft drinks were sold; that such drinks were ginger ale, sweet cider, pop and the beverage commonly known as temperance beer”; and that he permitted cloth blinds to remain on the front windows and a screen in front, which blinds and screen prevented a full view of the interior, and that these blinds and screen were in the same situation and condition as they had been for two or three years past.
   JONES, J.

The sufficiency of the affidavit and validity of the ordinance are both challenged by the record. Plaintiff in error claims that the state has no power to regulate or restrict the use of property where purely soft drinks are sold, and if the state has such power, it has not delegated it to municipalities.

The inviolability of private property and its use has been guaranteed the private individual by the organic law of state and nation. This guarantee, however, is subject to the limitation that the state has the right to impose certain burdens upon the property and such restrictions, upon its use as may be nécessary to conserve the public 'health, morals, safety or public welfare. In the reasonable exercise of this police power, the individual right must give way to the common weal.

Passing for the moment the contention that the state has no right, in the exercise of its police power, to regulate or restrict the use of ■establishments where soft drinks are sold, we are confronted with the ■second claim that if it has, it has never delegated this power to municipal corporations; and that therefore any penal ordinance attempting to exercise this power of regulation is null and void.

The scope of power of municipal councils, in this respect, has been •definitely and clearly fixed in this state by judicial authority. They are held to possess such powers only as are expressly granted by statute and such as may be implied as essential to carry into effect those which are expressly granted. Doubtful claims to power are resolved ■against corporations. Ravenna v. Pennsylvania Co. 45 Ohio St. 118 [12 N. E. Rep. 445],

The case at bar is not one where implied authority, under the rule, ■can apply; for it does not present a case where implied authority is invoked to carry into effect some other power which has been expressly granted. To sustain the ordinance we must seek an express grant by the state, empowering the municipality to enact it, We have been unable to find where the state has expressly, or even impliedly delegated this power.

Some claim was made by the solicitor,. but no,t very insistently, that Subd. 5 of Sec. 1692 (Lan. 3102; B. 1536-100) Rev. Stat. or Sec. 4364-20 might furnish the grant in question. But those sections, in clear terms, affect only the sale, of intoxicating liquors and places where such are kept and sold. The statute was passed when such sale was not unlawful, as now in this and other counties of this state, and was designed for the regulation of the liquor traffic. They were not designed, when enacted, nor can they now be construed as a grant to regulate places where soft drinks or nonintoxicants are sold. Neither does the city ordinance in question seek to regulate places where such intoxicating liquors are kept or sold within the purview of those sections; nor does the affidavit charge the defendant with keeping a place where intoxicants are kept or sold.

The most insistent, contention of the city solicitor, however, is that such delegation of express power may be found in Subd. 1 and 6 of Sec. 1536-100 Rev. Stat.

Subdivision 1 provides that counsel may pass an ordinance “to preserve the peace and good order.” It is difficult to conceive how the requirements of the ordinance would conserve the peace and good order of the city. This provision of the statute means simply what it says and falls within the same general character of powers otherwise defined in that subdivision. There is even less force in this contention, than in the case of Whitcomb v. Springfield (City), 2 Circ. Dec. 138 (3 R. 244), where it was attempted to prevent the sounding of an octave whistle under the express powers granted to the city — “to prevent noise,” or to “preserve the peace and good order,” or to abate a nuisance. What the learned judge says in that case as to statutory construction can well apply here. Furthermore the language of Judge Spear, in the case of Ravenna v. Pennsylvania. Co., supra, as to the indirect method in the enforcement of the alleged power granted will also apply.

Neither does the power of regulation given by Subd. 6 of Sec. 1536-100 authorize the enactment of the ordinance. That authorizes councils “to regulate taverns and other houses of public entertainment.” The use of these two terms in the same connection and in the same subdivision indicates that they are both of the same generic character. A tavern has been judicially defined to be a house licensed to sell liquors in small quantities. Schneider, In re, 11 Ore. 288 [8 Pac. Rep. 289].

A tavern is a “house licensed to sell liquors to be drank on the spot. In some of the United States- tavern is synonymous with inn, or hotel, and denotes a house for the entertainment of travelers, as well as for the sale of liquors, licensed for that purpose.” Rafferty v. Insurance Co. 18 N. J. L. 480, 484 [38 Am, Dec. 525].

The city ordinance applies to any “place”, where soft drinks are sold, and does not attempt the regulation of either “house” or tavern.

The state has no inherent power to impose restrictions upon a business innocent in itself and lawful per se. If the private business, however, is affected with a public interest and if its use were conducted harmfully or would likely threaten harm to public morals, the police power of the state may then be invoked for the public good. The discretion of the state in its proper exercise will .not be disturbed by the courts, unless the limitations imposed on the occupation are clearly unreasonable, arbitrary, evasive, or imposed under the guise of regulating a lawful occupation. It then remains for the state, in the imposition of burdens upon an occupation lawful and innocent per se, to* frame a law sufficiently explicit to advise the individual of the nature of the restriction imposed on his calling, and so the court's may 'judge of its reasonableness.

Whether the state can require blinds and screens to be placed upon any place selling soft drinks as required by the ordinance in question, we are not called upon and we do not decide. It is enough that no such delegation of power has been granted to the city.

The claim for the validity of the ordinance rests upon the assumption that intoxicants may be sold in connection with soft drinks. Thus fastening a suspicion of future conduct upon the places in question, the ordinance proceeds to regulate the business by requiring blinds and screens to be removed and the place to be illuminated at night. As I have said, if this power is lodged anywhere, it is in the state. Under the broad terms of the ordinance, eating houses, lunch rooms, drug stores or any place, where soft drinks are sold would all come under the ban of the ordinance.

A technical question arises on the record, whether the ordinance has been properly incorporated in the bill. Inasmuch as the city solicitor makes no complaint of that feature and waives it, and desires an adjudication on the merits, we do not consider it.

The judgment of the common pleas and mayor’s courts are reversed with costs, and the cause is remanded to the mayor’s court with instructions to dismiss the prosecution at the costs of the defendant in error. .

Cherrington and Walters, JJ., concur.


text:
    ASSAULT AND BATTERY — CHARGE TO JURY.
    [Huron (6th) Circuit Court,
    1909.]
    Parker, Wildman and Kinkade, JJ.
    H. C. Aurand v. State of Ohio.
    Belief ob Reasonable Ground for Belief of Imminence of Danger to Accused ■ Essential Elements of Self-defense.
    A. charge to the jury in a prosecution for. assault and battery in which ■ self-defense is asserted, is erroneous where it instructs the jury that the burden is on the defendant to show that he was in actual danger, that the exigency demanded self-defense and that he used no more force than, was actually necessary, ignoring any question as to a reasonable belief that he was in danger and that the force used was necessary to his defense.
    [Syllabus approved by the court.]
    Error' to Hurón common pleas court.
    McKnight & Thomas, -for plaintiff in error:
    Cited and commented upon the following authorities: State v. Johnson, 58 Ohio St. 417 [51 N. E. Rep. 40; 65 Am. St. Rep. 769]; People v. Rodrigo, 69 Cal. 601 [11 Pac. Rep. 481] ; State v. Shea, 104 Iowa 724 [74 N. W. Rep. 687]; Commonwealth v. McKie, 67 Mass. (1 Gray) 61 [61 Am. Dec. 410]; United States v. hunt, 1 Sprague 311 [26 Fed. Cas. 1021; 18 Law Rep. 622]; People v. Shanley, 30 Misc. 290 [62 N. Y. Supp. 389]; State v. Schmidt, 19 S. Dak. 585 [104 N. W. Rep. 259] ; State v. Fowler, 52 Iowa 103 [2 N. W. Rep. 983] ; People v. Lynch, 101 Cal. 229 [35 Pac. Rep. 860]; Marts v. State, 26 Ohio St. 162; Goins v. State, 46 Ohio St. 457 [21 N. E. Rep. 476] ; Barling v. Williams, 35 Ohio St. .62; Jordan v. State, 7 Circ. Dec. 133 (13 R. 471) ; Stewart v. State, 1 Ohio St. 66; Bennett v. State, 4 Circ. Dec. 129 (10 R. 84).
    Don J. Young, for defendant in error.
   WILDMAN, J.

In this case Dr. H. C. Aurand was indicted for an assault upoD one Harry Tuck with malicious intent to disfigure him and was convieted in common pleas court of assault only. To reverse the judgment. of the- court of common pleas,, this proceeding is. instituted here.

A number of errors are presented, but specific attention need be given to out one which seems to us of sufficient importance to justify very careful consideration.

The charge of the court given to the jury after argument is brief and in but one .part of it, touches the question of asserted justification of self-defense. The language of the court is found on page 13S ■of the bill of exceptions and is as follows:

“In behalf of the defendant, it is claimed, that if he injured Tuck he was acting in so doing in defense of his own person.
“A person unlawfully assaulted by another may use all the force necessary to repel the assault, but no more. Self-defense under such circumstances is in law a justification.
“The burden is on the defendant to prove by a-preponderances of the evidence that he-acted in self-defense. It is not enough for him to show that he was so acting, but it must further appear that no more force was used by him than the exigency necessarily demanded. If he were guilty of an unreasonable and disproportionate degree of violence toward the person of another, he is liable for the excess of force used by him beyond what, was reasonably necessary., under ,the. circumstances.”

And on page 133, the court is reported to have said:

“While the burden is on the defendant to show by a preponderance of the evidence that if he assaulted Tuck, he was justified by the necessity of self-defense in so doing, in all other respects, as to every material question in the ease, the burden is on the state.”

■ In the case of Marts v. State, 26 Ohio St. 162, 163, in the second paragraph of the syllabus, the Supreme Court laid down this rule applicable to this class of cases and indeed applicable and applied to a case of homicide. The paragraph referred to is as follows:

“Homicide is justifiable on the ground of self-defense, where a ■slayer, in the careful and proper use of his faculties, bona fide believes and has reasonable ground to believe, that he is in imminent danger of death or great bodily harm, and that his only means of escape from such danger will be by taking the life of his assailant, though in fact he is mistaken as to the existence or imminence of the danger.”

The rule so expressed has-,been repeatedly, followed in later adjudications of the Supreme Court and other, courts of the state.

. I would cite without reading, the case of Darling v. Williams, 35 Ohio St. 58, and especially the language of Judge Boynton on page 62;-also-the case of Goins v. State, 46 Ohio-St. 469 [21 N. E. Rep. 476]. Í' might cite' others; but it is sufficient "to' say that there' has been5"'no-departure from the rule, and it becomes important-, for this reason, to determine whether the trial court in the case át bar has given the-jury an opportunity to apply it in behalf of' the defendant. There-is1 no reference in the charge from beginning to - end, - to the-belief of the defendant that any action was necessary on-his part-to-defend himself, either in striking Tuck in the first instance, or-"in' continuing to strike him afterwards in the assumed' defense -of his own person. Indeed, hardly any inference could be drawn by the-jury .from the language of' the court other than- that he would - have ño right to use more force than was actually necessary to defend his-person, or, he would have no right to strike' the other except in such an exigency as actually demanded defénse; and although it might, be a case where there was' no danger, yet the surrounding circumstances, taking the appearance'of the other party to the affair, might, be such that the accused fully believed- that he was- in danger and had. reasonable ground "for such ■ belief.

We have been unable to' find añy1 language in the charge' anywhere, or in any instruction given before or after argument at-the-request of' counsel, that relieves' this instruction in the general charge-from the infirmity to which I have invited attention.

Our judgment is that the court’s"language constituted prejudicial-error, and for this reason, the ease should be reversed.

' We have examined critically the testimony of the witnesses and1' such other evidence as appears in the way of exhibits,. and we have-discovered fió other prejudicial error in the case, but for thé instruction to which I have referred, in the general charge, the judgment of the-court below will be reversed and the cause remanded for a-new trial.

Parker and Kinkade, JJ., concur.


author: VOORHEES, J. DONAHUE, J., TAGGART, J.,

text:
    MARRIAGE PER VERBA DE PRESENTI — WHEN VALID.
    [Stark (5th) Circuit Court,
    September, 1909.]
    Taggart, Donahue and Voorhees, JJ.
    Lee Umbenhour v. Hazel Umbenhour et al.
    1. Marriage Effected by Contract and Cohabitation.
    A mutual agreement entered into in good faith between competent parties to contract the relation of husband and wife, followed by cohabitation as - such, constitutes a valid marriagé, even if the agreement was not made in the presence of witnesses.
    2. Circumstances op Fact for Determination by Jury.
    When it appears, that the relation between the parties was in its inception meretricious and not accompanied "by any evidence of marriage, but, subsequently their relations to each other assume a matrimonial character, by being surrounded by evidences of a valid marriage, a question of fact is presented for the determination of the jury or court trying the issue of marriage or no marriage, between the parties.
    3. Parties to Matrimonial Status by Cohabitation not Competent Witnesses to Prove Agreement.
    In such case either party is a competent witness to prove the agreement. After the matrimonial status is fixed by cohabitation, thereafter the parties would come under the rule of exclusion as is provided in Subdiv. 3 of Sec. 5241 Rev. Stat.
    ■4. Wife of Deceased Husband by Common Law Marriage Competent Witness.
    In this case, notwithstanding the husband is dead, the wife is not rendered incompetent as a witness by Sec. 5242 Rev. Stat.; she is not a party to the action.
    [Syllabus by the court.]
    Appeal from Stark common pleas 'court.
    McCaughey, Lynch & Day, for plaintiff.
    Shields & Pomerene, for defendant.
   VOORHEES, J.

This cause of action comes into this court on appeal, and is submitted to the court on the pleadings and evidence.

The main dispute or contention is over the question, whether one "Willard P. Umbenhour and Margaret Labus, otherwise known as Margaret Umbenhour, ever entered into a legal contract of marriage. There was no ceremony or public solemnization qf the contract between them, ■or marriage according to the statutes of Ohio regulating marriages; but it is contended by the defendant, John J. Weffler, as guardian of Grace Helen Umbenhour, a minor, that on or about May 12, 1901, at the city of’Massillon in Stark county and in the state of Ohio, the saidi Willard P. Umbenhour and said Margaret Labus. entered into a contract of marriage, and thereafter cohabited together as man and wife, until the death of said Willard P. Umbenhour, which occurred on or about February 14, 1907. He died intestate, leaving as the only issue-of his body, the plaintiff, Lee Umbenhour, the defendant, Hazel Urnbenhour, and the said Grace Helen Umbenhour. Said Margaret is not. a party to this action.

At the time of making said alleged contract of marriage, said1 Willard P. Umbenhour was a single man, and said Margaret Labus was. a single woman, both being of marriageable age, and no legal impediment existing to prevent their entering into a valid contract of marriage. The said Willard P. Umbenhour had been previously married, but, prior to said twelfth day of May, 1901, an absolute decree of divorce had been-granted to his former wife. The direct proof of the making of the-contract of marriage consisted of her, Margaret Labus’ testimony of the fact. She admitted in her testimony that she and Willard P. Umbenhour had sustained meretricious or illicit relations with each other-prior to May 12, 1901. They lived in the city of Massillon. He was a bartender at the Hotel Conrad, and she was laundress at said hotel. There is no evidence, nor is it even claimed that they there cohabited together, prior to May 12, 1901; he had a room in a tenement house on-“Park Row” in said city! The evidence does not disclose whether she-roomed at .the hotel or had a room in said tenement house on “Park Row.” It was not shown or admitted by her that they had cohabited together prior to May 12, 1901, the admission only going to the extent, that, prior to the date named they had illicit relations with each other. On the day named, she was at the room in said tenement house on “Park Row” where said Willard P. Umbenhour roomed, at which time and: place she testified the agreement was made. As to what occurred at that time she testifies in chief, as follows: that “Billy (meaning said' Willard P. Umbenhour') said to me, ‘The court won’t give us no license,”' and he took my hand and he said, ‘I pledge myself as a true and lawful husband ■&> you the longest day I live,’ and I said to Billy, ‘I pledge myself as a true and lawful wife to you the longest day I live’: he-slipped his mother’s wedding ring on my finger, and he kissed me, and he said, ‘ If we ever have any children they will hold us together. ’ ’ ’ And on cross examination she testifies as follows: “Willard said to me, ‘The court wouldn’t give no licence,’ and he took my hand and he said, ‘I pledge myself as a true and lawful husband to you the longest day I live,’ and I said to him, ‘I pledge myself as a true and lawful wife to-you the longest day I live.’ Then he kissed me and slipped a ring on my finger.”

From this time, to wit, May 12, 1901, until the death of said Willard P. Umbenhour, they cohabited as husband and wife, so treated each other, and held themselves out as such to the community. They established themselves in a home in said tenement house in “Park Row” in the city of Massillon, where they lived for a time, and were recognized as husband and wife by those who had occasion to come in contact with them. Time, she. for about two weeks continued to work at the hotel as laundress, until they could fill her place. At the time the alleged agreement was made, Willard P. Umbenhour - was working at Sim Weffler’s, a brother of Squire Weffler, the guardian of said Grace Helen Umbenhour, and defendant in this suit. They prepared their meals in said room and established themselves in it as a home. After living in Massillon for about a year, they moved to the city of Alliance in said county of Stark, and took up their residence there, living in Mrs. Rastetter’s house for a while, later moved upon another street. They kept house in said last named city in the usual way that married people do. True, their acquaintance in this latter city was limited, they were strangers there, but so far as people beeam,e acquainted with them, they were recognized as man and wife, were introduced as such to callers and neighbors who had occasion to meet them. Before moving to Alliance, Willard’s uncle died, and he attended the funeral, taking with him said Margaret, and there introduced her to his relatives as his wife. While living in Alliance, a child was born; which child had been conceived after the making of said agreement or contract. The husband, or as we will still designate him by his name, Willard P. Umbenhour, secured the services of a physician to attend his wife in confinement. He said to the doctor, he “wished to engage his services to attend his wife in confinement. ’ ’ The doctor did so, was introduced by Willard to this woman as “his wife,” the child was born on October 3, 1902, and is still living, and through its guardian, the defendant, John J. Weffler, is contending for its rights as a child and heir of the body of Willard P. Umbenhour. Willard put its name, giving its name as Grace Helen, in the Bible belonging to them, among the names of other children and members of his family. When speaking to or concerning this child, he always referred to it as his, 'and when referring to this woman, either as his wife, or “mama” when desiring the child to go to her. Other facts, circumstances, and acts m recognition of their relation to each other as that of husband and wife might be mentioned, but this is the trend of the testimony bearing on the question of the agreement and of their cohabitation. These circumstances and facts tend to corroborate the wife in her claim that the contract of marriage was made before these acts and relations were done and assumed.

It is true that the relation between these parties was at one time, in its inception, and prior to May 12, 1901, meretricious and not matrimonial; we concede that a relation so commenced will be presumed to ■continue of the same character in the absence of proof of a change in its nature; but the parties might assume legitimate and proper relations, •and it' is admissible to show that'such change took place, if it did.

In this case there was a change after the contract was made as we have shown. The only thing to militate against the validity of this marriage as a common law marriage, is the claim that Willard P. Umbenhour, at one time and after the making of the alleged contract, said he was married over at Wooster, Wayne county, this state, by a minister. Tie did not deny or say he had not married this woman, but gave a false ■statement as to where and how he was married. On another occasion, referring to this child, Grace, he expressed a hope or desire that she •should share in his property as his child, and on one occasion, and shortly before his death, or last sickness, in speaking about a ceremonial marriage, he said that “we ought to get married” or “we ought to get married now. ‘ ’

It is further contended that she, Margaret, gave a false statement ■concerning the marriage, stating that she was married on some big water. This statement, like his, as to where they were married, or that they ought now to have a ceremonial marriage, did not deny the making ■of the agreement, or that there was a marriage relation existing between them, but the statements were untrue as to the place and manner of their marriage.

These statements, we think, can have no other effect or force than •as they tend to discredit her contention that a contract of marriage had been made between them at the time, place and manner now claimed by her on this trial.

Whatever was said by Willard, or by her, as to when and where they were married, inconsistent with the present claim, we think, in the light of all the circumstances and conduct of these parties as disclosed in the evidence, from and after the date of the making of the contract, could not and does not destroy the effect of such a contract ■so made, followed by cohabitation, to establish a legal marriage between these parties.

It is necessary to consider some questions urged at the trial as to the competency of this woman ap a witness in this case. It is contended by plaintiff that she is an incompetent witness to testify to the making of the contract. The objection is not laid upon any special ground but of general incompetency.

Under Sec. 5240 Rev. Stat., she is a competent witness unless some ground of exclusion is shown; she is not excluded by Sec. 5241, unless it would be under the third subdivision of this act. If she is, or ever was, the wife of Willard P. Umbenhour, her competency as a witness would be limited by this section.. If this contention is sound, would it not be the end of this case? We think the contention, that she is not a competent witness to prove the making of the agreement, is not tenable.

Marriage, strictly speaking, is not a mere civil contract but is a status created by contract. It is true it is founded on consent of the parties, but the consent is the contract, because of which, the status is created. The contract being made by words in presentí, followed by cohabitation fixes the status. Until the status is fixed by cohabitation, either party to the making of the agreement for a present marriage is a competent witness to establish the fact of the agreement, but after the agreement is made, followed by cohabitation, the status is fixed, and then the parties would thereafter come under the exclusion as to communications and acts done between them, unless, in the known presence or hearing of a third party competent to be a witness, as is provided in Subdiv. 3, Sec. 5241 Rev. Stat. Some of the testimony of this witness, we think, will come under this rule of exclusion, and the objection to all such testimony is sustained, and so limited, the testimony coming under this rule is excluded, namely, where acts done and conversations had between these parties occurring after they had made the contract and commenced to cohabit under the agreement as man and wife, unless in the known presence of a third party would be incompetent and is excluded. Rut she is a competent witness to prove the making of the contract, and all acts and conversations between them until the marriage was consummated by cohabitation after the agreement was made. She is a competent witness under Sec. 5240 Rev. Stat. and not affected or rendered incompetent under Sec. 5241 until the marriage status is fixed by cohabitation.

“Cohabiting together as husband and wife means living together publicly in the face of society, as if the conjugal relation existed; living in the same house, in like manner, as marks the intercourse between husband and wife.” Bush v. State, 37 Ark. 215.

“Cohabitation does not mean sexual gratification only, but it means

to live or dwell together, to have the same habitation, so that where one lives and dwells there does the other live and dwell also.” People v. Lehmann, 104 Cal. 631 [38 Pac. Rep. 422].

This leads us to the consideration of the legal question involved, namely: Is a common law marriage recognized as a valid marriage in Ohio ? We state the proposition thus broadly for the reason that if no-marriages other than such as are solemnized under and by virtue of the statutes of Ohio regulating marriages are valid, such a conclusion would be the end of this case so far as the rights of this child, Grace Helen IJmbenhour, are concerned. We think the common law marriage is. recognized in Ohio as a valid marriage, but we think conditions must attend to make it valid. We adopt as a correct exposition of the law on this subject the clear and succinct statement of Judge Phillips in his charge to the jury in the case of Mieritz v. Insurance Co. 11 Dec. 759, 762 (8 N. P. 422), when he says:

“Marriage in Ohio may be ceremonial, as I will call it for convenience, or it may be bjr mere agreement and cohabitation, and without ceremony and without license and without the publication of banns. So-that in Ohio, a man and a woman that are marriageable may become-husband and wife by the official solemnization of a marriage by virtue of a license, or after the publication of banns and without a license, or by what is called a common law marriage. If a man and a woman that are marriageable agree between themselves to become husband and wife and they agree to become such at once, and they thereafter continuously cohabit as husband and wife, sustain the relation toward each other that is proper only for husband and wife, * * * then the law says, that they are husband and wife. By such agreement to become at once husband and wife, and by such cohabitation and carrying out of that agreement, they become as legally and validly married as though they were married by official ceremony and by virtue of a license or by the-publication of banns. The cohabitation alone- would not make them husband and wife, nor would the agreement, if not consummated in the-way I have stated, make them husband and wife: but it is the agreement entered into at once, and the continued cohabitation in that relation, and the treatment of each other, not only between themselves but in-, the community, as husband and wife, that malees them such.”

We believe this is the rule of law recognized by the great weight, of authority in this country, and there is no conflict with the principle announced by Judge Phillips unless it may be found in the reasoning-of the judge announcing the opinion of the circuit court in the case-of Bates v. State, 29 O. C. C. 189 (9 N. S. 273).

The record in that case as shown in the opinion of the court reversing the court below, fails to show any contract of marriage in that ease, and the Supreme Court in affirming the court and reversing the common pleas say in its memorandum of affirmance, State v. Bates, 77 Ohio St. 622, 623 : “Judgment affirmed on the ground that evidence did not establish a common law marriage.” This by no means sustains the contention that common law marriages are not recognized in Ohio. Without undertaking to cite generally the authorities outside of this state in sustaining such a marriage as we have in the case at bar, we will call attention to a few.

In the case of Elzas v. Elzas, 171 Ill. 632 [49 N. E. Rep. 717], affirming the Elzas V. Elzas, 72 Ill. App. 94, the court held:

“Although the relation between the parties was in its inception meretricious, a marriage is sufficiently proven by the woman’s testimony that they made a contract of marriage, the fact that they immediately moved from disreputable into respectable quarters and continued to live as man and wife, he introducing and representing her as such, and on the birth of their child sent her congratulations, etc.”

Where it appears, as in this case, that'the intercourse between the parties was illicit at first, but subsequently it assumed a matrimonial character and was surrounded by evidence of cohabitation "apparently decent and orderly, raises a presumption of more or less strength that the parties have been duly married. While such cohabitation does not of itself constitute marriage it tends to prove that a marriage contract has been entered into between the parties. Such conduct and cohabitation are in corroboration or tend at least to corroborate the testimony of the wife in her claim that a contract was entered into as testified by her. The principle as here stated is supported by many authorities and especially .in the case of Gall v. Gall, 114 N. Y. 109 [21 N. E. Rep. 106],

One of the latest cases bearing upon a common law marriage is the ease of Travers v. Reinhardt, 205 U. S. 423 [27 Sup. Ct. Rep. 563; 51 L. Ed. 865], where the court sajr in its second paragraph of the syllabus :

“Persons whose .alleged marriage in Virginia might have been invalid for want of a license had they remained there, and might also, for want of a religious ceremony, have been invalid in Maryland, where they afterwards resided, must be deemed married in New Jersey, when, as husband and wife, they took up their permanent residence there, and lived together in that relation continuously in good faith and openly up to the time of the man’s death, being regarded by themselves and in the community as husband and wife, since their conduct towards each other in the eye of the public while in New Jersey, taken in connection with their previous association, was equivalent in law to a declaration by each that they did, and during their joint lives were to, occupy the relation of. husband and wife, which was as effective to establish the status of marriage in New Jersey as if it had been made in words of the present tense after they become domiciled in that state.”
“A contract cannot be implied as a matter of law, yet there may ibe an inference from facts proved, which fairly lead to the conclusion ¡that there was a contract. When the conduct of parties are susceptible «of two opposite explanations, the law assumes it to be moral rather than iimmoral; and credit is to be given to their own assertions whether 'expressed or implied, of a fact within their own knowledge.” Port v. Port, 70 111. 484.

In Hayes v. People, 25 N. Y. 390 [82 Am. Dec. 364], the principle is stated thus:

It is a settled rule in this state, and in many other states that a marriage in fact may be shown by proof of an agreement between two persons of opposite sex to take each other presently as husband and wife, consummated by cohabitation.

Without pursuing the discussion further on authority or otherwise, we are of the opinion, and so find, that these parties were legally married; that Grace Helen Umbenhour is the legitimate child of such maririage and is an heir of the said Willard P. Umbenhour, and is entitled to tone-third interest in the premises described in the petition, and is entitled to the relief prayed for in the answer and cross petition of the defendant, John J. Weffler, guardian of said Grace Helen Umbenhour. And an order of partition is ordered in accordance with this finding and decree. To which finding and decree the plaintiff excepts. Motion for new trial filed and overruled; exceptions; statutory time for bill of exceptions; twenty days for separate finding of fact and conclusions of law.

DONAHUE, J.,

concurring.

The opinion already written by my associates so fully covers every ¡question in this case that I do not care to discuss any of them at length, ¡but simply to give my reasons for concurring in the majority opinion.

I agree with both of my associates upon the question that there ¡may be a valid common law marriage in Ohio, and the essential elements ¡necessary to constitute such a marriage. It. may be a matter of regret "that such is the law, but it is not the province of the court to legislate ¡upon .such subjects, they have discharged their full duty when they declare the existing law and apply it to the facts and circumstances of the case at issue. I do not agree with our dissenting associate that, the correct solution of this case depends entirely upon the evidence of the witness calling herself Margaret Umbenhour. True, we must have recourse to her evidence, for any oral evidence touching the contract. in presentí, and if her evidence in that behalf were not corroborated by other facts proven in this ease I would very readily agree with the contention of counsel for plaintiff and defendant, Hazel Umbenhour,. not that the witness so unfavorably impresses me as to discredit her own evidence in that behalf, but the language, that she stated was used1 in the making and entering into this contract, is hardly the language that you would expect persons in their situation and condition of life to use, but, notwithstanding that fact, it is just as certain that some change came into their lives about that time. It is undisputed in this evidence that about that time,, or within two weeks thereafter, and just as soon as the hotel could secure another laundress, this woman gave up her position there and went to live with Willard P. Umbenhour, and their relations thereafter were to all intents and purposes the same as the relations of husband and wife. Willard P. Umbenhour shortly thereafter told a friend of his that he had been married at Wooster, and with whatever persons they came in contact.in Massillon during the remainder of the time they lived there, they introduced eaeh other as husband and wife, and after they removed to Alliance their relations were such and conduct was such, and their treatment of each other and the child was such as it would have been had they in truth and fact been married. So that everything that follows up until the death of Willard P. Umbenhour from and after this claimed contract or pledge was made is perfectly consistent with the claim, and especially the fact that he took Margaret to the funeral of his uncle and there introduced her to his relatives as his wife. It is true that prior to his death and after the birth of the child, he said to Margaret, “now, we ought to be married,” but this does not necessarily preclude the possibility, or even the probability, of a common law marriage having taken place between them, for I am inclined to the belief that even though all transpired that has been testified to by Margaret, yet these people were, perhaps, of the opinion that they were not legally married, but their opinion upon the subject is not important. If this were a criminal prosecution of Margaret or Willard for bigamy, or a prosecution against Willard for failure to provide, his mere opinion as to whether he had or had not been legally married to Margaret would be of no avail, but the cas® would be determined upon the facts proven, and not otherwise..

I am also thoroughly in accord with what is stated in the dissenting opinion, as to what these people should have done had they had any decent regard for society or for the welfare of their offspring, but I am not in accord with the statement that a court ought not, at the expense of two innocent children, divide their patrimony and give it to their unfortunate child. This child is just as innocent of wrong as the two children who are conceded to be legitimate. Its rights are just as sacred to this court and ought not to be sacrificed upon the mere suspicion or mere possibility that Margaret Labus or Margaret Umbenhour is telling an untruth. This child has much more at stake in this litigation than the dollars and cents it will acquire in this partition suit, and if it is in fact legitimate these other children, Lee and Hazel Umbenhour, aré interested and ought to be concerned in having its legitimacy determined, and even if by doing so their share of the patrimony should be less, yet it is certainly to their advantage, and ought to be a source of great gratification to them, and certainly will be when they reach more mature years, to know that their half-sister is legitimate, and that the last hours of their father’s life were not spent in criminal relations with the mother of this child. But these considerations by no means determine the questions at issue. The evidence must control, no matter who it helps or hurts.

These matters are referred to only as showing the gravity of the case and the care and consideration that courts should exercise in determining the rights of the respective parties, and after careful and mature consideration of. all this evidence I have reached the conclusion that there was such a contract in presentí as the law requires, and that such contract was followed by a change in the relations of the parties, and was followed by cohabitation and the holding each other out to the world as husband and wife, and that by reason thereof there was a valid common law marriage'between Willard P. Umbenhour and Margaret Labus, and that the defendant, Grace Helen Umbenhour, was and is the legitimate child and heir of Willard P. Umbenhour, and as such comes within the provisions of the deed of Jacob Umbenhour to Willard P. Umbenhour for “his natural life, and to the heirs of his body, if any he have. ’ ’

TAGGART, J.,

dissenting.

I cannot concur with the judgment of the majority of the court for the following reasons:

On December 1, 1887, Jacob Umbenhour, by deed conveyed to Willard P. Umbenhour the undivided one-fourth part of certain premises in Stark county, Ohio, during the natural life and “to the heirs of his body, if any he have.” There are other provisions in this deed, but they are unnecessary to note in the determination of this case.

Willard P. died February 14, 1907. Lee and Hazel Umbenhour •claim to be the only heirs of his body, and, if found to be such, are entitled to the property involved in this case.

It is not disputed that these two are the children of Willard P. and Lucy Umbenhour, bom in lawful wedlock. Willard P. and Lucy were divorced sometime in February, 1901.

On October 3, 1902, Grace Helen, a daughter of Willard P. and Margaret Labus, was born, and,. through her guardian, claims the undivided one-third of this property. On her behalf the claim is made that, after the divorce of Willard P. and Lucy, that Willard P. and Margaret Labus, on May 12, 1901, entered into a consensual marriage, and that this relation existed until the death of Willard in 1907.

The evidence fully establishes the fact that, prior to the divorce of Willard and Lucy, the relations between Willard and Margaret Labus were illicit, and continued so until, as she claims on May 12, 1901, they agreed to become husband and wife. The only evidence of the contract of marriage is found in the testimony of the witness, Margaret Labus. She says, in speaking of their relations, that “Before the divorce the same were illicit.” “After he was divorced he said to me, ‘Mag, you get the blame, and we might as well have the game.’ So he said, we will be married, and' it went on ’til May. ’ ’ Then in May, down in his room, she says the following took place: “Well, in May— it went on ’til May and Billy said to me, the court won’t give us no' license, and he took my hand and he said, ‘I pledge myself as a true and lawful husband to you the longest day I live.’ And I said to Billy, ‘I pledge myself as a true and lawful wife to you the longest day I live.’ He slipped his mother’s wedding ring on my finger, and he kissed me, and he said, ‘if we have any children, they will hold us together.’ ” These are the words of the contract or agreement in presentí, which, it is claimed, fixed the status of these parties, as there is proof of co-habitation continuing from about this time until the death of Willard in 1907'. This agreement was the only contract claimed to have been made between these parties, and there is no claim of any other, or different, •contract or mai’riage ceremony. This case rests on the truth or falsity¡ <jf this testimony.

If this story, taken in connection with all the circumstances of the case, is unworthy of belief, then the claim of Grace Helen to part of this property must fail.

A witness is entitled to be believed unless impeached by other witnesses, or his own story, or discredited by the cireumstáhces of the case.

This witness is impeached by her own story. She gave an altogether different account of her relations with Willard shortly after his death. She then claimed that she had been married by a minister on a large body of water, a distance from the shore. She explains that she gave this account of her marriage because she was ashamed to tell the truth. She tells this story shortly after Willard’s death when she did not have the time to fully make up or invent the story that she now tells. This contract or pledge was kept a profound secret; never brought to light until testified to in court. Both of these parties knew that the usual and ordinary way to enter into the marital relation was in public, and by employing the offices of priest, minister or magistrate. It is not shown that either knew that the marriage relation might be entered into without a solemnization by a magistrate or minister. It does not appear from the proof that either knew that this so-called pledge had any binding force or effect. On the contrary, there is proof that they did not deem it binding or valid.

Recurring to the testimony of Margaret: “Willard said, before his death, “we ought to be — we ought to be married now.’ “And what did you say? Did you agree to that?” “Why, sure I did.” “Did Billy speak about getting a license and getting married after May 12, 1901, and up to the time of his death?” “Not until up until a little while before his death.”

There is not a single declaration or admission of either of these parties as to the fact that a marriage ceremony, or a marriage contract, as testified to by Margaret, had taken place.

While Willard P. entered the name and date of birth of Grace Helen in the fly leaf of the Bible, with that of his other children, he does not enter the fact of this marriage, or the date of it in the Bible, or, in connection with the date of the birth of Grace Helen. He, in fact, knew, that his marriage with Lucy was a matter of record and its proof, easy. He does nothing to bring to light the secret and unusual transaction, as testified to by Margaret Labus. The witness herself says, that she never told anyone how or when they were married, or told the story she now tells. The story of the pledge is not credible. The language employed is not such as persons situated as these persons were, would employ. 'Nor would they employ this manner of getting married. The proof does not show that either ever knew of such a formula being employed, .or of such a marriage ever having taken place. It is consent or agreement, and not cohabitation, that fixes the status of marriage, and this consent, or agreement, is not established by the proof. The circumstances of the ease are against the claim that there was a marriage and not a mere consummation of the illicit relation.

The following rules are well established and understood and supported by abundant authorities: Relations illicit to the inception, when there is no impediment to marriage, the presumption is, that their continuance is of the same character. The fact that a woman assumes a certain name, is not any evidence that she is married to the man of that name.

Acknowledgment of marriage. Marriage will not be presumed from mere acknowledgment, when the acknowledgment is as referable to improper relations as to matrimonial; or where it appears that the acknowledgment is made to conceal the unlawful relation. Mere reputation that parties are husband and wife, is not enough to warrant a presumption of marriage. This reputation must be general and uniform. Proof of change in relations, the evidence must establish that the change was referable to the contract of marriage, or to a valid marriage, or the presumption will obtain that the illicit relations continue.

That there was any change in the relation of these parties, cannot fairly be claimed. Their association before this so-called pledge was meretricious and they made no change, except to continue the relations more openly, carefully concealing the fact that anything like the semblance of a marriage had taken place. Had either of these parties desired to make public the fact that they were not continuing their former relations, but that they had in fact been married as claimed, it could easily and surely have been done by stating the fact to relatives or acquaintances, in the presence of the other, and silence of the admission of the fact would have been proof that it had taken place. The very fact that during these years no such admission or public declaration was made by either, negatives the idea that the pledging ever took place, and the holding out was, in fact, to cover a relationship that was improper. The writing of the name “Grace Helen” in the Bible, and the acknowledgment of her as their child, does not establish a marriage. She was their child, but the acknowledgment does not prove that she was born in wedlock. Many a natural father has acknowledged his child, and acknowledged the mother of the child as its mother, but that does not establish the fact that she was the wife. He said in his last days. “He wished that Grace might share with the other heirs.” Had there been a contract between these parties, dating from May, 1901, and it was believed or known that it was binding,- why thus wish that the child might share with his other children?

Finally, there is no reason given for their taking up with each other, and living as they did, if they desired to change their meretricious .relation to one matrimonial. They knew that people in these days, in .a respectable community, publicly unite in marriage, so that their status, and that of their children, will not be left to any uncertainty. They knew that a public marriage is deemed and held respectable, and that a secret one is looked on with suspicion. Did they desire to make amends for their past conduct, they would have been married publicly by a magistrate or a minister. Even after the birth of their child, if they had any regard for its future, they would have made some permanent provision, so that its rights would not have been left to the very uncertain testimony of a single witness and its legitimacy left in doubt. Their conduct is only explained by the belief, that they were never married, or that they never had any regard for their child, or hoped that some court, at the expense of two innocent children, would divide their patrimony, and give it to their unfortunate child, thus giving it a status and legitimacy which they, without a decent respect for the usages and customs of respectable society, had denied it.


text:
    BANKS AND BANKING.
    [Lucas (6th) Circuit Court,
    June 12, 1909.]
    Parker, Wildman and Kinkade, JJ.
    David Robison, Jr., & Sons v. Thomas A. Upton.
    Bank Has Burden oe Proving Payment oe Account.
    A bank, in an action by a depositor to recover a balance of savings account, has the burden of proving an alleged payment or withdrawal by the depositor. The burden is not on the depositor to show the balance claimed and that the payment was not made.
    Error to Lucas common pleas .court.
    Hamilton & Kirby, for plaintiff in error.
    C. T. Johnson, for defendant in error.
   WILDMAN, J.

Upton sued plaintilfs in error, a banking firm, for an alleged balance of savings account, amounting to $178.66. The controversy between the parties is as to whether a certain payment of that amount was made by the bank to Upton upon one occasion, Oct. 16, 1907. The bank admits that Upton had an account with it, but claims that on the daté named he withdrew or checked out from the bank the amount' claimed. A question is raised as to the burden of proof in the ease. The court below instructed the jury that the burden was upon the plaintiff to show this alleged payment upon the account. It was urged upon the other side that as he was suing upon an alleged balance of account, the burden was upon him to show that the balance was as claimed and that the payment had not been made. "We think, however, that the contention of the depositor that the burden is upon the bank to show that he had withdrawn it, that he had received the payment, is correct. ' We think that the court did not err in this regard. The only other claim made is that the verdict rendered in the court below in favor of Upton was not justifled/ by the evidence. The evidence is decidedly conflicting, and we have gone over it with care in an endeavor to ascertain the exact facts, and we cannot conclude that the verdict of the jury is manifestly against the evidence. There are no other errors, I believe, claimed in the case.