text:
    PROCEEDINGS FOR. RECOVERY OF CONCEALED PROPERTY OF AN ESTATE.
    Court of Appeals for Clinton County.
    Mary J. Leonard v. State of Ohio, ex rel B. D. Scott, Executor
    Decided, May, 1914.

      Estates of Decedents — Character of Proceeding for Recovery of Com cealed Property — Defendant Competent to Testify — Burden of Proof —In Whose Favor Judgment Should be Rendered.

    1. Tlie purpose of Section 10673, making provision for proceedings when property belonging to the estate of a decedent has been concealed or. embezzled, is not to furnish a substitute either for criminal proceedings for embezzlement or for a civil action to recover judgment for money owing to the executor, but rather to provide a speedy and effective method for discovery of assets belonging to the estate and secure possession of them for the purpose of administration.
    2. In such an inquiry it is error to treat the defendant as a party to a civil action and therefore incompetent as a witness.
    3. The burden of proof is upon the plaintiff to show by a preponderance of the evidence that the deféndant received the money or other thing of value claimed to have come into his hands and that he concealed, embezzled or conveyed it away.
    4. In cases where such a proceeding is instituted by an executor the judgment, if any is rendered against the defendant, should be in favor of the executor and not in favor of the state.

      II. S. Pulse and W. IF. Hester, for plaintiff in error.

      Hayes & Hayes, contra.
    Jones, O. B., J.; Swing, P. J., and Jones, E. H., J., concur.
   This was a special proceeding originating in the probate court under Section 10673 and succeeding sections of the General Code, in which plaintiff in error here was charged with having concealed, embezzled or conveyed away money in the sum of $700 belonging to the estate of Lucinda C. Baldwin, deceased.

An application was made to the probate court asking that a writ of citation issue against plaintiff in error, Mary J. Leonard, requiring her to appear before said court and be examined under oath touching the matter'of the complaint, and that such proceedings might be had in the premises as were authorized by law. She appeared before the probate court and proceedings Avere had there resulting in the finding by the probate judge against her.

The matter was then taken to the court of common pleas and there, a jury being demanded, a- hearing was had before the court and a jury, resulting in a verdict finding that Mary J. Leonard Avas guilty as charged in the complaint-filed therein, and that said jury had assessed the value of the property so concealed and embezzled at $767.26. On this verdict a judgment Avas entered adjudging that the State of Ohio, for -the use of B. D. Scott as executor of the estate of Lucinda BaldAvin, .deceased, recover against the said Mary J. Leonard the sum of $767.26 with ten percent, penalty thereon, amounting to $843.98, and the costs of the proceeding.

The purpose of the statute under which this proceeding was taken was not to furnish a substitute either for criminal proceedings for embezzlement, or for a civil suit to recover judgment for money owing to -an executor of an estate, but rather to provide a speedy and effective method for the probate court to discover assets belonging to the estate of a decedent and to promptly secure same for the purpose of administration.

In this case it appears that decedent was an old lady, suffering from an incurable disease, and living alone in Blanchester, but under the care and observation of a niece who lived in an adjoining house, that she had on deposit in a bank $600, and also on deposit in a building association $100; that she had heard intimations that her niece or some one else was about to apply for letters of guardianship to take charge of her property, and with the fears and suspicions that often come to the aged she had thereupon Avithdrawn both sums of money in order to prevent their coming into the -custody of others without her will. After her death, which occurred several months later, this money could not be found, and this proceeding was instituted for the purpose of tracing and locating it. Mrs. Leonard was a friend of the deceased. She also lived alone, in a house immediately behind that of decedent, the two lots running back towards each other and being separated by an alley. The houses fronted upon parallel streets and had ready access to each other from a side street upon which they both abutted, and the testimony showed that the decedent visited Mrs. Leonard frequently.

Mrs. Leonard was called upon to say whether she had received this money, and if so, what she had done with it. She testified that she had received it from' the hands of Mrs. Baldwin who gave it to her for safe-keeping; that she kept it for some time, locking it in a bureau drawer, and that she later returned it to Mrs. Baldwin in the identical bills enclosed in the same box in which it had been given to her. There was testimony from Mr. Scott, the executor, and Mr. Hayes, his attorney, and from Mr. Jack, who was one of the appraisers of the estate of Mrs. Baldwin, to the effect that in certain interviews they had had with Mrs. Leonard before these proceedings were instituted she had admitted the receipt of the money, that she claimed that she had paid it back, but that when told that it was proposed to bring proceedings to compel its repayment, she had promised to repay it again rather than -be brought into court and stand the ordeal of a trial. There was no evidence whatever that she ever had the money, except the testimony of Mrs. Leonard, and of the admissions made by her. The rulings on the evidence seem to have permitted the statements that she had received the money, to stand, and practically to have excluded from the jury any statement that she had paid it back.

"We are of the opinion that there were numerous errors in the admission and rejection of evidence. It is not necessary to point out the questions and answers specifically objected to, because the court below seems to have ruled on the evidence under a misapprehension as to the character of the proceeding. As has been stated, this was hot a civil action for money, nor was Mrs. Leonard a party defendant in such capacity. She was cited before the court as a person suspected of having concealed money belonging to the decedent, and under the terms of Section .10673 she was required to be examined under oath, and "it was certainly her privilege to testify fully in relation to all matters covered by the complaint. Yet the court, evidently treating her as a party to a civil action to^ whom the terms of Section 11495 would apply, held that she was not a competent witness and ruled out testimony that had been given by her, and re-' fused to permit her to testify on other matters as to which questions were propounded by her counsel. Even if Section 11495 might be held to apply to this case, under its terms, especially the exceptions under clauses 3 and 4 thereof, she would be entitled to testify fully as to the transactions, conversations or admissions of the opposite party. Rankin v. Hannan, 38 O. S., 438; 4 Jones on Evidence, Sections 772, 773.

We are of the opinion that she was a competent witness as to all matters covered by the complaint, and it was error to exclude her testimony.

The admissions of Mrs. Leonard testified to by Messrs. Scott, Hayes and Jack were embraced in conversations where attempted settlements were considered and discussed. It was error to admit testimony of conversations relating to any attempted compromise before the bringing of. the proceeding. 2 Jones on Evidence, Section 291; Sheriff v. Piper & Yenney, 26 O. S., 476.

The court also erred in its charge to the jury in defining what constituted embezzlement, and also in placing the burden of proof upon the defendant below to show a return of the money. The burden was upon the plaintiff to prove the complaint by a preponderance of the evidence. This required proof not only that she received the money, but that she concealed, embezzled or conveyed it away.

Section 10678, General Code, provides that the jury shall determine the amount of damages to be recovered, if the party accused is guilty of having concealed, embezzled or conveyed away money of the deceased, and that the court shall render judgment in favor of the executor, or if there be no executor in favor of the state, against the person so found guilty for the amount of money so concealed together with ten percent, penalty and all costs. In this case there was no evidence of any sum beyond $700 which had been had by the defendant, yet the jury assessed the value of the property so concealed at $767.26. This probably was upon a basis of adding interest upon the money from the time it had been placed in the hands of the defendant, although there is nothing whatever in evidence showing that it was to bear interest or that it was to be used or had been used by the defendant, and although .the testimony given by defendant was that it had remained in the original package during all the time it was in her hands and until its return by her. The judgment of the court on the verdict was for $843.98 with costs, being the entire amount of the verdict with ten per cent, penalty added. This amount would undoubtedly be excessive and contrary to law.

Under Section 10678, General Code, any judgment entered should be in favor of the executor and not, as it was, in favor of the state, as the statute provides that it should be entered in favor of the state only when there is no executor or administrator, or when it is against the executor or administrator.

For the reasons above given, the judgment is reversed and the cause remanded for further proceedings.


source: Caselaw Access Project

license: Public Domain

text:
    COLLISION BETWEEN A LOCOMOTIVE AND STREET CAR.
    Circuit Court of Summit County.
    The Lake Erie & Western Railroad Company v. The Northern Ohio Traction & Light Company.
    Decided, April 12, 1912.

      Negligence — Railroad Grossing — Train Standing Still — Duty to Give Notice Before Starting — Person on Street May Rely Upon Notice Being Given,

    1. It is the duty of an engineer of a train or engine which has been brought to a stop in, or near to, a public street crossing, to give warning of his intention to start his train, in order that any one upon the street may be informed of the danger of attempting to cross the track, and further, to exercise reasonable and ordinary care to see that the way is clear.
    2. A person upon a public street which crosses a railroad track, upon which is an engine or train standing still near the crossing has a right to rely upon the engineer of the railroad company giving notice before he starts his engine or train across the street.

      Frank & Ream, for plaintiff in error.

      Rogers & Rowley, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
   The plaintiff in error, by this proceeding, seeks the reversal of a judgment rendered against it in the court of common pleas, in favor of the defendant in error, in an action brought for recovery of damages arising out of a collision between a street car of the defendant in error and an engine belonging to the plaintiff in error.

Briefly stated, the facts, disclosed by the pleadings and the evidence, are as follows:

The railroad company owns and operates a steam railroad through the city of Akron, the tracks of which cross North Main street, a public highway, at grade. The traction company owns and operates a street railway line in and over certain streets in the said city. Among the streets occupied by its track is North Main street. The railroad company’s tracks in this street are intersected and crossed at grade by that of the traction company.

On the morning of September 30, 1908, one of the traction company’s street cars was being operated on North Main street, going in a northerly direction. At a distance of about fifteen feet from the southerly track of the railroad company the ear was brought to a full stop. At about the same time one of the railroad company’s engines with several cars attached, was being backed easterly across North Main street and across the intersection of the street railway and the railroad tracks. This engine was brought to a stop by those in charge of its operation at a short distance, the estimates varying from six to twenty feet, east of the street car track on which the street car was being run.

The day was the second day of the Summit county fair, and the traction company.had stationed at the point of intersection of the tracks on North Main street a signal watchman, one of its employees,whose duty it was to ascertain if the crossing was free from danger for the passage of street ears over the railroad tracks and to signal motormen on cars approaching to cross the railroad tracks when the way was clear and free from danger.

On the occasion under consideration, the engine having passed a few feet easterly from the street ear track and having come to a stop, the watchman signaled the motorman of the car that had stopped to cross the railroad track, and the motorman seeing this signal, and receiving also the proper indication from the conductor on his car to go ahead, put the car under motion and was moving northerly across the railroad tracks, when the engine which had been standing still, started westerly and collided with the street car, which was damaged to some extent by the collision.

The action below was for the recovery of the damage done to the street car, and was founded upon the contention that “the defendant recklessly, negligently and unlawfully started its engine without any warning or signal of its intention so to do, and negligently, carelessly and wrongfully drove its engine in and upon the said car of the plaintiff company. ’ ’

The questions of fact involved in this contention, which were disputed by the defendant, were resolved by the jury in favor of the plaintiff, as is shown by the verdiót in its favor.

It is, however, contended by the plaintiff in error that the defendant in error on the facts of the case, as a matter of law, was guilty of contributory negligence, which must bar its recovery, and this is one of the grounds of error relied upon for a reversal.

The facts claimed to demonstrate that the defendant in error was guilty of contributory negligence are that the engine had stopped so close to the street ear track as to indicate a probability that it was likely to start at any minute; that the engineer was on the northerly side of the engine'and could not, and did not, see the ear at any time; that the brakeman on the cars which were being moved by the engine was too far away from the crossing to do anything to prevent the collision; that the fireman on the engine was at the time engaged in fixing the fire;'that the person occupying the position of the fireman on the left hand or southerly side of the engine, and who was supposed by the traction company’s employees to be the fireman, but who in fact was not, was sitting at the cab window looking east in such a way as to indicate that he did not see the car; that the flagman who gave the signal to the motorman to cross the railroad track did not see the engineer, fireman or any one else connected with the engine, but 'gave the signal to cross solely on the fact that the engine had come to a stop; that the motorman and conductor both knew that the engineer was out of sight, and that they also knew that the person supposed to be the fireman was looking eastward and not'paying any attention to the ear; and that with knowledge of these facts, without any attempt on the part of the motorman or conductor to. ascertain what was going to be done next with the engine, reliance was placed by them solely upon the flagman’s signal, and the fact that the engine had come to a stop, in attempting to pass over the crossing in front of the engine.

It is the duty of an engineer in charge of a train or e'ngine which has been brought to a stop in, or near to, a public street crossing, to give warning of his intention to start his train, in order that anyone upon the street may be informed of the danger of attempting to cross the track, and further, to exercise reasonable and ordinary care to see that the way is clear.

The authorities on this subject are considered in Thompson on Negligence, Section 1568, and the result stated in the following language:

“It is a sound conclusion that it is the duty of the.engineer in charge of a train standing still, before starting his engine across a street, not only to give timely warning of his intention, but also to see whether his train will not be likely to strike a traveler or frighten his horses.”

It was the duty, therefore, of those in charge of the engine belonging to the plaintiff in error, to give warning of their intention of moving across the street with the engine and to see that the way for passage was free.

The employees of the traction company, in charge of the car, had a right to rely upon the performance of this duty on the part of the employees of the railroad company'in charge of the engine. The former were not bound to anticipate negligence on the part of the latter in the performance of their duties.

As was said in Houcks v. Chicago, Milwaukee & St. Paul Railway Co., 31 Minn., 529:

‘ ‘ One who is called upon to exercise care to avoid danger from the acts of others may, in regulating his own conduct, have regard to the probable or apprehended conduct of such other persons, and to the presumption that they will act with reasonable caution and not with culpable negligence.”

Considering the special facts relied upon by the plaintiff in error as undisputed, and giving them full effect, we can not see that they, as a matter of law, show the defendant in error to have been guilty of contributory negligence. This was a question for the jury which was properly submitted to them by the trial court.

The views herein expressed are sustained by numerous authorities.

In Robinson v. Western Pacific Railroad Co., 48 Cal., 409, a part of the syllabus reads as follows :

“If a track of a railroad passes along the street of a city, crossing another street, and a train of cars is stopped in the first street so that the last car in the train stands in the cross street, and while a person is walking along the cross street, over the track, behind the train, the train without any notification is suddenly backed, and the person is knocked down and injured by the cars, the employees of the company are guilty of gross negligence.'
“The person injured in such case is exercising an undoubted right in crossing the railroad track on a public street, and is not guilty of such want of care or diligence as contributes to the injury, and the railroad company is not released from the liability on the ground of contributory negligence.
‘ ‘ The person injured in such case had a right to presume that he would be notified that the train was about to move, and was not bound to wait because the train was on the street, or assume that it might move suddenly backward without notice.”

In Railroad Co. v. Dawson, 64 Kan., 99, is a case in principle like the one under consideration. The syllabus .reads:

“The attempt of a traveler to cross the front of an engine standing near the crossing is not generally so inherently dangerous as to preclude a recovery of damages if the engine or train is unexpectedly started forward upon her, but inmost such cases the question whether she has been guilty of negligence will go to the jury, especially where it moves upon her without giving any signals. Under the facts in this case, the district court did not err in holding the general rule as above stated to be applicable thereto.
“A traveler upon a public street, passing in front of an engine, fired up and warmed, standing without the bounds of the highway, but so near it that from the cab windows the street and objects within it can be plainly seen, has a right to assume that the engineer will not, without warning, start his locomotive and run over her upon the street before she can, while proceeding with haste and in the exercise of ordinary care and caution, cross the tracks upon which the engine is standing when she makes the attempt to do so.”

The law is summarized in 33 Cyc. of Law and Proc., 1036, in this language:

“Where there are trains or cars standing on or near a crossing, ia person approaching the crossing has a right to assume that they will not be moved without proper warnings or signals, and if he attempts to cross with reasonable care and prudence, lie is not necessarily guilty of contributory negligence, the question whether or not is he so negligent usually being one of fact. ’ ’

See also Meeks v. Ohio River Railway Co., 52 W. Va., 99; Pinney v. Missouri, Kansas Texas Railway Co., 71 Mo. App., 577; Palmer v. Detroit, Lansing & Lake Mich. Ry. Co., 56 Mich., 1.

• It is also contended by the plaintiff in error that the court erred in giving the first request of the plaintiff below to charge before argument. This request was in the following language:

“If you find that at the time the transaction involved in this case the plaintiff street' railroad company had a flagman stationed at the crossing where the street railroad tracks cross the tracks of the defendant company, and you further find that a street car of the plaintiff approached said crossing while the engine operated by the defendant company was backing toward the east across said crossing, and that said street car stopped south of said steam railroad tracks at a distance of -from ten to fifteen feet, and you further find that the fireman on said engine saw said street car waiting to cross said tracks and you further find that said engine backed to the east to a point fifteen or twenty feet easterly of that point where the street car tracks cross the railroad tracks, and that said locomotive after clearing said tracks such distance stopped, and that the persons in charge of the same did not give any signal or notice of any intention to come forward, and you further find that after said engine had stopped and while it was stopped the flagman at said crossing signalled said car to come forward, then I say to you said street car had a right to go forward across said tracks, and it was the dirty of the servants of the defendant in charge of said locomotive to exercise their faculties and to look for such car before starting their engine back over said street car track, and if they started their engine forward without looking or exercising their faculties to ascertain if the street car was crossing under the circumstances above stated, and plaintiff’s car was injured as a proximate result of such starting, then the plaintiff is entitled to recover. ’ ’

We think this request is in harmony with the principles of law which are stated in the authorities .already considered under the first assignment of error, and that it correctly states the duty of the servants of the defendant in charge of the locomotive, and the liability of the defendant for their neglect to perform such duty.

Complaint is also made that the court erred in refusing the defendant’s fifth request to charge, which is in the following language:

“If you find from the evidence that plaintiff’s car was brought to a stop not less than ten nor more than fifty feet from the crossing; that defendant’s engine then crossed the plaintiff’s tracks and came to a stop on the east side thereof, or if defendant’s engine had already crossed plaintiff’s tracks when its ear was brought to a stop, and if while defendant’s engine and plaintiff’s ear were both stopped an employee of plaintiff’s went forward on the crossing and signalled plaintiff’s employee on the car to cross the railroad tracks; and if you also find that at the time such signal to cross was given that defendant’s employees were either not visible to plaintiff’s employees in charge of its car or if visible were not heeding or watching plaintiff’s ear, or did not see it and that such failure to heed or watch or see the car was known to plaintiff’s employees in charge of the car or could have been known to them by the exercise of ordinary care, then and in such ease it was the duty of plaintiff’s employees to use such further ordinary care as a person in the exercise of ordinary care would use under similar circumstances, to ascertain whether it was in fact safe for the ear to be driven upon or across the crossing; and if plaintiff’s employees did not use such ordinary care, and without such ordinary care on their part drove the car upon or over the crossing, and that the failure to exercise such ordinary care contributed to the bringing about the collision and the resulting damage to plaintiff’s car, then in such case plaintiff was guilty of contributory negligence >and can not recover notwithstanding that defendant may also have been guilty of one or more negligent acts which also contributed to the bringing about of the collision and the resulting damage.”

This request, if given, would have imposed the exercise of a higher degree of care upon the employees of the traction company in charge of the car than they are chargeable with under the law. They were not required to anticipate that the employees of the railroad company would be negligent in the performance of their duties, nor to take the steps required by the language of this request to guard against such negligence on the part of those in charge of the engine as would be involved in their starting it across the street without warning, and without informing themselves that the way was clear and free from danger to those who might be crossing the tracks.

We find no error prejudicial to the plaintiff in error in any of the matters complained of, and the judgment of the court of common pleas is affirmed.


text:
    APPLICATION OF THE RULE IN SHELLY’S CASE.
    Circuit Court of Summit County.
    Charles Akers v. The Akron, Canton & Youngstown Railway Company et al.
    Decided, April 15, 1912.

      Deed — Rule in Shelly’s Case Applied.

    Wliere the granting clause of a deed is in the usual form and gives, grants, bargains,, sells and conveys the premises therein described unto the grantee (Daniel Fulmer) his heirs and assigns, and the habendum clause reads, “to have and to hold said premises for and during his natural life, with reversion at his death to his children, heirs of his body, and their heirs and assigns, and if he dies leaving no children or legal representatives, then the above is to be and remain the property of the brothers and sisters of Daniel Fulmer, their heirs and assigns, forever,” the rule in Shelly’s case applies and the grantee takes an estate in fee simple.
    Niman, J.; Winch, J., and Marvin, J., concur.
   This action is here on ¡appeal from the court of common pleas. The plaintiff claims to be the owner in fee simple and in possession of certain real estate, situated in the township of Springfield, county of Summit and state of Ohio, and especially described in the petition. The action is brought to enjoin the defendants from committing certain acts of alleged trespass upon said real estate, and for the recovery of damages for trespasses already committed.

The defendant, the Akron, Canton & Youngstown Railway Company, is a railroad corporation, organized under and by virtue of the laws of Ohio, and claims to be the owner of that part of the real estate mentioned in the plaintiff’s petition which is described in its answer, and to be in possession thereof.

The conflicting claims of title to the real estate in question are based upon the following facts:

Prior to October 24, 1884, Adam Fulmer was the owner in fee simple of the real estate described in the petition which embraces that also described in the answer. On that day he executed and delivered to his son, Daniel Fulmer, a deed -which is recorded iu book 153, page 260 of Summit county records of deeds, conveying said premises to the said Daniel Fulmer. Adam Fulmer and his wife joined in the execution of the deed, and by the granting clause thereof, in consideration of $10,000 they do give, grant, bargain, sell and convey unto the grantee, Daniel Fulmer, his heirs, and assigns, the real estate therein described, which includes that in controversy. The habendum clause of the deed contains the following language:

‘ ‘ To have and to hold said premises to the said Daniel Fulmer for and during his natural life, with reversion at his death to his children, heirs of his body, and their heirs and assigns, and if he dies leaving no children or legal representatives, then the above is to be and remain the property of the brothers and sisters of Daniel Fulmer, their heirs and assigns, forever.”

By deed of May 20,1893, recorded in book 213, page 56, Summit county record of deeds, Daniel Fulmer conveyed the real estate described in the answer to the Akron & New Castle Railway Company, and this company subsequently deeded said real estate to the defendant, the Akron, Canton & Youngstown Railway Company.

Daniel Fulmer died January 1-1, 1903, leaving two children surviving him. The plaintiff claims title to the real estate in question through these two children.

If Daniel Fulmer acquired a fee simple estate b.y the deed from Adam Fulmer, then the said Daniel Fulmer conveyed a good title to his grantee, and that title has been acquired by the defendant, the Akron, Canton & Youngstown Railway Company. But if, on the contrary, the said Daniel Fulmer did not take a fee simple estate by the deed to him from Adam Fulmer, but only a life estate, as is contended by the plaintiff, then the children of Daniel Fulmer, upon his death, became the absolute owners in fee simple of the real estate involved in this action, and the plaintiff having accprired their title, would be the absolute owner of said real estate and entitled to the relief prayed for, unless other facts and principles of law invoked by said defendant should prevent him from obtaining such relief.

It is therefore essential that the deed from Adam Fulmer to Daniel Fulmer be considered, and the character of the estate thereby conveyed be determined.

It is claimed on behalf of said defendant that in construing the language of this deed, the rule in Shelly’s case should be applied, and that by the application of this rule of law, it necessarily results that Daniel Fulmer took a fee simple estate in the premises conveyed.

It is contended on behalf of the plaintiff, however, that Daniel Fulmer acquired only a life estate in the premises conveyed by the deed, the remainder passing to his children.

In McFeely’s Lessee v. Moore’s Heirs, 5 Ohio, 465, the rule in Shelly’s case was stated in the following language:

“The rule is, where the ancestor takes a freehold and by the same conveyance, whether deed or devise, the estate is limited, either mediately or immediately, to his heirs, the words ‘heirs’ is a word of limitation, not of purchase and the fee vests in the ancestor. ’ ’

In that case the testator had given his real estate to two persons named in his will, for their use during their respective lives, and had then provided,.“But at their decease, my will is that these two tracts of land descend to their heirs, to whom I bequeathe the same to have and to hold said tracts to themselves, their heirs and assigns, forever,” and it was held that the provisions of the will interpreted by the rule of Shelly’s case vested a fee simple estate in the parties named in the will.

In King v. Beck, 15 Ohio, 559, it was said in the opinion of the court, on page 562:

“The rule in Shelly’s case is not a rule of construction but a law of property. It is not designed to give a meaning to words, but to fix the nature and quantity of an estate. If the estate for life created in the devisee or donee, is limited precisely as it would descend at law, the rule in Shelly’s case vests the entire fee in the first devisee or donee.”

In Brockschmidt v. Archer et al, 64 O. S., 502, part 1 of the syllabus reads as follows:

“Before the rule in Shelly’s case was, as ‘to wills, abrogated in this state by the statute of 1840, a testator devised certain lands to his son for life, and at his death to go to his heirs, and, there being nothing else in the will to show that the testator used the word ‘heirs’ to designate a more limited class as children: Held: That, as the lands passed under the will precisely as they would have descended at law, the son took an estate in fee simple in the lands so devised.”

Reverting to the deed in question, it will be seen that the granting clause is in the usual form, and gives, grants, bargains,, sells and conveys unto the grantee, his heirs and assigns, the premises therein described. By the habendum clause, the said Daniel Fulmer is “to have and to hold said premises for and during his natural life, with reversion at his death to his children, heirs of his body, and their heirs and assigns, and if he dies leaving no children or legal representatives, then the above is to be and remain the property of the brothers and sisters of Daniel Fulmer, their heirs and assigns, forever.”

If-the word “children” was used alone and not with the words “heirs of his body” following, the contention of the plaintiff would be well founded, and the word “children” in such case would be construed to be a word of purchase and not of limita-’ tion. But it is well settled that the words “heirs” or “heirs of his body” are to be construed as words of limitation and not of purchase, and the fact that the word “children” is here IqIlowed by the words “heirs of his body,” indicates that the expression “heirs of his body” is to control.

It will be seen, also, that the estate here granted is limited precisely as it would descend at law, and in such case, the rule in Shelly’s case vests the entire fee in the grantee.

In The Continental Mutual Life Insurance Co. v. Skinner et al, 4 C. C., 526, affirmed by the Supreme Court (30 Bul., 307), the granting clause was in the following form, “Do give, grant, bargain, sell and convey unto said grantees and their heirs the following described property.” Following the description, the deed provided: “All the lands above conveyed are to be held and enjoyed by the said Wilson L. Skinner and Abbie Jane Skinner, his wife, during their natural lives, and at their decease, are to go and pass to their heirs. ’ ’ It was held that the grantees took an estate’ in fee simple.

We are of opinion, therefore, that the rule in Shelly’s ease is applicable to the language of the deed from Adam Fulmer to Daniel Fulmer, and that, ápplying the rule, the said Daniel Fulmer took a fee simple estate in the lands described in the deed, and that the defendant, the Akron, Canton & Youngstown Railway Company, has a fee simple estate in the lands described in its answer.

This conclusion renders it- unnecessary to consider the facts relating to the possession of the premises in dispute, or the other principles of law cited by said defendant to defeat the plaintiff’s cause of action.

The petition of the plaintiff is dismissed.


text:
    PROSECUTION FOR FURNISHING LIQUOR TO A MINOR.
    Court of Appeals for Stark County.
    David Harris v. State of Ohio.
    Decided, February, 1913.

      Intoxicating Liquors — Prosecution of a Saloon Keeper for Furnishing to a Minor — Proprietor Absent at the Time of the Alleged Offense —Instructions to Bar -Keeper — Competency of Evidence — Charge of Court.

    1. In a prosecution against the proprietor of a saloon for furnishing intoxicating liquors to a minor in which it appears that the bar tender had been instructed at the time of his employment not to sell to minors, unqualified and unequivocal proof of the absence of the proprietor at the time of such furnishing having been given in direct examination of the bar tender in defense of accused, the narration of any independent circumstance to fortify his own statement is improper in direct examination and properly excluded.
    2. An instruction, in a prosecution for furnishing intoxicating liquors to a minor, that if the liquors were not furnished by the proprietor but by the bar tender, unless the proprietor consented to such ' furnishing by the bar tender then no conviction could be had and the burden is on the state to show that the furnishing was.consented to by the state, is properly refused when the court charges generally that it is immaterial whether the furnishing was by the proprietor or the bar tender, unless it appears that such liquors were furnished without the authority and against the instructions of the proprietor given to the agent in good faith, and also, that the burden of proving defendant guilty is upon the state.

      J. W. Craine, for plaintiff in error,

      H. C. Pontius and Frank N. Sweitzer, contra:
    Shields, J.; Voorhees, J., and Powell, J., concur.
    Error to common pleas court.
   David Harris, the plaintiff in error, was indicted at the January term, 1910, by the grand jury of this county for furnishing intoxicating liquors to one Florence Bonsky, a minor, to be drank by her and not being given by a physician in the regular line of his practice, to which indictment a plea of not guilty was entered. Trial was had resulting in a verdict of guilty. A motion for a new trial was filed which was overruled, thereupon the trial court sentenced the said David Harris to be “confined in the Stark county work house at Canton, Ohio, for the period of ten days and until discharged by due process of law, and that he pay a fine of $25 and the costs of prosecution, and that he stand committed until said fine and costs are paid,” to all of which defendant then duly excepted.

Thereafter the said David Harris caused a bill of exceptions to be taken embodying all the evidence taken upon the trial of said ease, including .the charge of the trial court, and now prosecutes error in this court by the filing of a petition in error to reverse said judgment of said court of common pleas. Numerous grounds of error are assigned in said petition in error for such reversal but the errors principally relied on and urged upon this court are as follows:

First. That the said court below erred in sentencing said defendant to said work house and to pay said fine and costs, and to stand committed until said fine and costs were paid.

Second. Said court erred in refusing the alleged instructions given by the plaintiff in error to his bartender in respect to selling liquors to minors.

Third- Said court erred in excluding evidence offered by the plaintiff in error upon the trial.

Fourth. Said court erred in refusing to give to the jury before argument a certain written request requested by the plaintiff in error.

Both counsel for plaintiff in error and counsel for the state agree that the court below pronounced a sentence upon the plaintiff- in error that was both unauthorized and erroneous, and the first exception will therefore be sustained.

As to the second exception, an examination of the record shows-by a reference had to page 45 therein that Frank Margo, a bartender and a witness for the defendant below, was asked whether or not the said defendant gave him any instructions while in his employ prior to January 10, 1910, as to selling or furnishing liquors to minors, which questions was objected to, and the record shows that no action of the court was taken thereon. Again on page 69 of the record said witness was recalled and was asked the following question:

‘‘Q. I want to ask you whether prior to January 10, 1910, the defendant, David Harris, gave you any instruction on the subject of furnishing intoxicating liquors to minors? (State objects. Objection overruled. State excepts.) A. Yes, sir.
“Q. Do you remember when it was that he gave you such instructions? A. Yes, sir, when I started to work.
“Q. When was that? A. In November.
“Q. Of the year before? A. Yes, sir.
“Q. What did he say to you on the subject? A. He said I should be careful not to sell to minors.”

It appears, therefore, that evidence relating to the alleged instructions of the plaintiff in error to the bartender Margo on the subject of furnishing intoxicating liquors to minors was allowed to be given and was given to the jury and that this question is not made upon the record.

Exception is taken to the action of the court below in excluding evidence offered by the plaintiff in error during the trial of said cause, upon objection by the defendant in error, on-the subject of the absence of the plaintiff in error from his place of business Wednesday evening, January 5, 1910. After testifying that the plaintiff in error left his place of business about 5 o’clock on said evening, and that he did not return until midnight, the witness, Frank Margo, was asked the following question:'

“Q. Do you have any particular reason for knowing that he was away on Wednesday night! (State objects. Objection sustained.)
“Q. Is there anything that you know of which directs your attention particularly to the fact that Mr. Harris was away on Wednesday evening, January 5, 1910? (State objects. Objection sustained. Defendant excepts.) ”

Margo was a .witness for the defendant below and when he stated unqualifiedly and unequivocally on direct examination that the plaintiff in error was absent from his place of business on the evening in question, was it the privilege and legal right of the plaintiff in error to have said witness fortify his statement in this respect by the narration of any independent circumstance. We think not, and we further think that the witness could only avail himself of this privilege if his recollection was being tested on cross-examination. We, therefore, hold that this exception affords qo ground of prejudicial error.

Exception is also takeia to the refusal of the court to charge request No. 2, on behalf of the defendant below, before argument, which said request was renewed by the defendant below at the conclusion of the opening argument on behalf of the state, and which request is as follows:

“If you find from the evidence that said intoxicating liquors were not furnished by the defendant in person to said Florence Bonsky, but were furnished by a bartender of the defendant, then your verdict should be for the defendant, unless you find from the evidence beyond the existence of a reasonable doubt that the defendant consented to said furnishing by said bartender, and had authorized said bartender to furnish intoxicat-' ing liquors to minors, and the burden of establishing such consent or authority is upon the state.”

But said court did charge the jury on said subject as follows:

“I will say to you this, gentlemen, as a matter of law, that if you find in this case beyond the existence of a reasonable doubt that the defendant furnished to Florence Bonsky the intoxicating liquors as is averred in the indictment, and the other averments of the indictment by the same degree of proof then it is immaterial whether he furnished that liquor directly or indirectly; I mean by that whether he.furnished it himself or whether he furnished it by his bartender, if you find beyond the existence of a reasonable doubt that the bartender did furnish it and furnished it with his authority. While this is the law gentlemen, I desire to say to you further, that if you find from the evidence in the case that the liquor was furnished without his authority and against his instructions given in good faith, that he could not be convicted of the offense with which he stands charged in the indictment. ’ ’

The request made, in our judgment, is broader in its terms in relation to the alleged instructions of. the plaintiff in error to his bartender than is recognized by the Supreme Court of this state and in the case of Anderson v. State, 22 Ohio St., 305, wherein it is held that:

“The directions to the agent forbidding the sale must be in good faith, for, however notorious or formal they" may be, they can have'no effect, if they are merely colorable.”

i

In the case at bar the court below gave this instruction in substance, and in -refusing to give said request subtaiitted by the plaintiff in error, we think the said court in this respect committed no error. But it is further contended by the plaintiff in error that said court erred not only in charging the jury upon the subject of instructions given to his bartender, but in refusing to charge the jury that the burden of establishing the consent or authority given to such bartender rests upon the state as stated in said request so made. In all criminal prosecutions the burden of proof rests upon the state to prove each and every material ingredient of the offense charged by that degree of proof required by law in such prosecutions, and it is made the duty of courts under the law to so instruct juries. How was it here? It is true that-the trial court did not so expressly instruct the jury in connection with its instruction upon the subject of the alleged directions of the plaintiff in error to his bartender in reference to selling intoxicating liquors to minors, but on page 78 of the record it appears that said court charged the jury as follows:

"The burden of proving the defendant guilty of the offense with which he stands charged by proof beyond the existence of a reasonable doubt is placed by the law upon the state, and the state must so prove the defendant guilty before it can ask a conviction of the defendant at your hands of the offense with which he stands charged in the indictment. The defendant is presumed, as every defendant in a criminal case is, to be innocent or not guilty of the offense with which he stands charged, and that presumption continues throughout the entire case until the state has removed it by proof beyond the existence of a reasonable doubt.”

Here is a clear and explicit instruction, clearly stated, to the jury upon the subject in question. True it was not-a part of said request, nor was it necessary that it should be unless said request as a whole contained sound propositions of law; nor was said court called upon to repeat said instruction. For the reasons stated we hold that this, exception is not well taken.

We have examined the record with reference to the other assignments of error in said petition, especially with reference to the ground of error alleged that the verdict of the jury is not sustained by sufficient evidence, and is contrary to law. While the record shows that the witnesses differ in their testimony both as to the date when the liquor was furnished, and the identity of the person furnishing it, these were facts for the jury to determine, and having determined them, we can not say as a reviewing court, upon an examination of the entire record that the verdict of the jury is not sustained by the weight of the evidence or that the judgment below' is contrary to law.

The judgment of the court of common pleas will be reversed and it is ordered that said case be remanded to said court for resentence of. the plaintiff in error according to law, and in all other respects said judgment will be affirmed.


text:
    BOY KILLED BY THE STARTING OF A TRUCK IN SOME UNKNOWN MANNER.
    Court of Appeals for Hamilton County.
    The John C. Roth Packing Company v. Floyd C. Williams, Administrator of the Estate of Roy Eyer, Deceased.
    Decided, July 24, 1914.

      Negligence — Heavy Electric Truck, Started by Unknown Agency, Runs Over Boy Passing Along Sidewalk.

    The decedent, a boy twelve years of age, while walking along the sidewalk in the evening, was killed by being run over by a heavy electric truck which had been left for the night with the brake on and the controller removed, standing in an open space covered with a cement floor slanting toward the sidewalk and abutting thereon. In the absence of any evidence as to the agency which started the truck, the court holds that the boy met his death by reason of the negligence of the defendant owner of the truck in not leaving it in a safe and proper place where it could not injure persons lawfully passing along the sidewalk.

      Aaron A. Ferris and Thomas H. Morrow, for plaintiff in error.

      Littleford, James, Ballard & Frost, contra.
    Swing, P. J.; Jones, O. B., J., Jones, E. H., J., concur.
   This is an action in this court on error to a judgment of the court of common pleas, in which said court Floyd C. Williams, administrator, recovered a judgment in the sum of $5,000 for the wrongful death of Roy Eyer.

Numerous errors are alleged in the petition in error but only one was urged upon the argument o£ the case and in the brief submitted. This alleged error is that the judgment is not sustained by the evidence.

In the petition, after setting out the appointment of the plaintiff as administrator of the estate of the deceased and the allegation of the corporate capacity of the defendant, the plaintiff alleged that the building of the defendant is so constructed that instead of a continuous front wall along the entire length, there is an open space about fifty feet in length and extending to the height of the first floor; that the second and upper floors immediately above said space are supported on three pillers which are located on a line with the front wall at a distance of about twenty-three feet apart, and that this open space extends back from the sidewalk and front wall of the house a distance of about twenty-eight feet; that the floor.of said open space is covered with concrete which slopes towards the street; and that on the 14th day of June, 1911, said open space was temporarily used for the storage of automibile trucks belonging to the defendant company; that on or about the 14th day of June, 1911, said Roy Eyer, deceased, was lawfully on the sidewalk on the north side of Gest street, walking east; that when said decedent arrived at the point in the sidewalk immediately in front of the open space above referred to, an automobile belonging to the defendant company, without any signal or warning, and without any person guiding or controlling it, rushed out of said open space in which it had been temporarily stored, down upon plaintiff’s decedent, and before he could get out of the way, knocked him down and crushed him under its wheels, causing a fracture of the skull and internal injuries from which he subsequently died. Plaintiff further says that said death of the decedent was directly due to the position and condition in which said defendant company negligently left said automobile truck, and that decedent at the time was in the exercise of all due and proper care on his part.

Said defendant filed an answer admitting the appointment of'plaintiff as administrator of said estate, and that the defendánt is a corporation under the laws of Ohio; that it is the owner of the plant on the north side of Gest street and the open space in said premises as set out in the petition. Defendant further says that said open space was temporarily used for storing automobile trucks belonging to defendant company.

For a second defense, the defendant alleged that at the time of the accident and prior thereto and at the present time, it is in the business of buying, curing and selling at wholesale and retail, meats to be used for food for residents and citizens of Cincinnati and throughout a large portion of the United States; that in the conduct of its business it is the owner of and uses large and extensive buildings and storage warehouses situated on Oehler and Gest streets in said city, and in such business it owns and uses large trucks and vehicles operated by electricity as a motive power, and that each of said trucks weighs about 11,000 pounds; that the garage or storehouse where said trucks are usually stored and kept when not in use, is located on Oehler street; that on or about the 13th day of June, 1911, said Oehler street was being repaired by the city of Cincinnati, and by reason thereof defendant could not place or store its said trucks in said garage on Oehler street and was compelled to .store its said trucks, for temporary purposes only, and in the night time, in said covered and open space belohg'ing to the defendant, on Gest street, the space described in the first defense herein, and that it was necessary in the usual course of its business to charge with electricity the said trucks for a motive power for use in propelling said trucks on the day following, and so to charge them after the day’s work was done, in the night time from the supply of electricity within the building oh Gest street. And on the 13th day of June, 1911, about the hour of 8:30 o’clock in the evening of said day, one of the above trucks described, with other vehicles, had been placed in said open space, when the same truck, alleged in the petition to have run upon and caused the death of plaintiff’s intestate, and had been charged with electricity, and the brake used on said truck had been set, and the controller on said truck used for turning on and into said truck the current of electricity for its propulsion had been disconnected so that said truck could hot move or be put in motion without unlocking the brake' thereon, and without connecting said controller with the electric current by some human agency; and said defendant, through its employees and agents, had used all means necessary and ordinarily used under like circumstances to place and keep said truck in a safe and secure position to the end that it could not be used or moved except by the agents or employees of the defendant in the line of defendant’s business as aforesaid; that on the night of said 13th day of June, 1911, the night on which plaintiff’s intestate met his death, a group of boys, ranging in age from about twelve to sixteen years, whose names except that of Roy Eyer are unknown to the defendant, the number of boys in said group being also unknown to the defendant, among them being plaintiff’s intestate, Roy Eyer, who was a boy about twelve and a half years of age, none of whom were in the employ of .the defendant or under the authority or agency of the defendant, at the hour named, while it was- dark, against the repeated warnings of defendant or without notice to the defendant or its employees, one of said group of boys, or someone unknown to the defendant, got upon said truck, and in playing thereon, carelessly or wilfully, and without fault, -knowledge or acquiescence of defendant or any of defendant’s employees caused said controller to be connected with the electric current theretofore charged and stored in said truck as aforesaid, and thereby caused said truck to get in motion; and that while said plaintiff’s intestate, Roy Eyer, was on the premises of defendant as a trespasser, and against the warning given theretofore by defendant and its employees, and without any fault on the part of the defendant, the truck so put in motion as aforesaid, and while said plaintiff’s intestate, was a trespasser on said premises, and solely through the carelessness and negligence of plaintiff’s intestate, or through the fault or carelessness of his said companions or through the fault or carelessness of some one unknown to defendant, none of whom were in the employ or acting under the authority of defendant, ran upon and caused the death of plaintiff’s intestate.

Full time was given to’ counsel in the argument of the case orally, and able and elaborate briefs have been furnished us, and we have gone over the evidence very carefully, with the result that we are of the opinion that the judgment is sustained by the evidence. From the evidence the jury had a right to find, as they must' have done, that Roy Eyer while walking along the sidewalk next to defendant’s premises was suddenly struck by an automobile truck which darted out of the defendant’s premises, and was killed by said truck. The jury were warranted by the evidence in finding that said Roy Eyer was in no way responsible for the truck leaving its position on the premises of the plaintiff in error and rushing upon him while he was walking along said sidewalk. The evidence does not clearly show the cause which produced the movement of the truck, but the fact remains that the truck was placed by the -defendant in a place unguarded and open, and on a floor of cement slanting towards the sidewalk, in a position where it could be easily got at by persons passing along the street who would be inclined from any motive to interfere with it. While there is no direct evidence which shows that defendant’s employees put said truck in motion, which resulted in the death of said Eyer, still it is equally clear that the defendant did not safely guard and place said truck in a safe and proper place, which seems to us, under the circumstances of this case, to show that the plaintiff’s decedent met his-death by reason of the negligence of the defendant in its not placing its truck in a safe and proper place so that it might not injure persons lawfully passing along said sidéwaik.


author: Swing, P. J.

text:
    RIGHTS UNDER CIVIL SERVICE OF EMPLOYEES ON THE ELIGIBLE LIST.
    Court of Appeals for Hamilton. County.
    State of Ohio, on the Relation of John Weiss, v. Edward S. Keefer et al, Civil Service Commissioners of the City of Cincinnati.
    Decided, October 17, 1914.

      Civil Service — Determination as to Eligibility for Promotion Can Not be Reversed — Subsequent Board Bound by Such Determination.

    Where the commission has once determined that a member of the police force is eligible for promotion and promotion is duly made after competitive examination, it is without power to subsequently reverse its decision with respect thereto, and a subsequent board is bound by such former action.

      Denis F. Cash, Alfred Bettman and Henry Hunt, for relator.

      Walter M. Schoenle, City Solicitor, and Charles A. Groom, Assistant Solicitor, contra.
    Jones, O. B., J.; Jones, E. H., J., concurs; Swing, P. J., concurs in a separate memorandum.
   This is an action in mandamus brought by relator to order the defendants, as civil service commissioners, to certify in connection with the payrolls of the police department that relator had been appointed and was during the period beginning the 1st day of August, 1912, and ending the 15th day of September, 1914, employed in pursuance of the act passed April 28, 1913, to regulate the civil service (as found in 103 O. L., 698), as a sergeant in the police department of the city of Cincinnati, such a certificate to be given under a requirement found in Section 21 of said act.

.Defendants filed an answer in which they admit that the relator was duly appointed and acted as a corporal in the police department from August'1, 1912, till March 19, 1913, and that since the latter date he had been performing the duties of a sergeant in the police department, but they question the regularity and legality of his appointment, and ask for a dismissal of the petition.

There is no dispute as to the facts, between the parties, but defendants contend that because the relator had not, at the time he was examined for promotion, served two years in the department as a corporal, that he was ineligible for an examination at that time and was improperly placed upon the eligible list by the civil service commission and that therefore his appointment, which was then made by the director of public safety from the eligible list, was illegal.

Under the rules of the police department and civil service at that time promotions were made from the position of corporal to that of sergeant by appointment from an eligible list which was prepared by the civil service commission upon promotional examinations held by it. Such an examination was held on March 10, 1913, in pursuance of a resolution of the commission passed February 28, 1913, as follows:

“The chief of police has made a verbal request that all corporals in the police department at the present time be admitted to the competitive examination for sergeancy, as only three corporals are now in the service who are eligible under the rules. Safety Director Cash had made requisition for certification for appointment to the position of sergeant, and there is no eligible list.
‘ ‘ The secretary was directed to hold the promotional examination for this grade as soon as possible and notify all corporals that they are eligible for the examination.”

This resolution was adopted without dissent, at the meeting, by the three commissioners who at that time made up the civil service commission.

At that time one of the rules and regulations which had been adopted by said civil service commission was Rule 84:

“No corporal who has not had at least two years’ service as corporal in the police force of the city of Cincinnati shall be permitted to take an examination for promotion to the position of sergeant.”

These rules also contained Rule No. 110, as follows:

“No amendment of these rules shall be made, nor shall any rule be repealed, nor any new rule adopted at the same meeting at which it is proposed, and no final action to amend, repeal or supplement these rules shall be taken in less than seven days after its proposal and until after a public hearing, of which the commission shall give notice in at least two newspapers of general circulation in Cincinnati.”

The sections of the civil service law in existence in March, 1913, providing for this promotional examination, which it necessary to consider in this case, are Sections 4480, 4481, 4482, 4483 and 4486, and under their provisions the commission was given full power to prepare rules and regulations to provide for the “grading of offices and positions similar in character in groups and divisions, so as to permit the filling of offices and positions in the higher grades as far as practicable through promotions.” In pursuance of this power the commission had provided, by Rule 84, that no corporal who had served less than two years as such should be eligible for examination for sergeant. There is, however, no statutory requirement as to the length of time a corporal should serve as such before being eligible for examination for sergeant.

From the action taken by the commission on February 28, 1913, it appears that at that time there were but three corporals then in the service who had been there the necessary two years to make them eligible for certification to the position of sergeant, and that there was then no eligible list. As under Section 4481, it was the duty of the commission, upon being notified by the safety director of a vacancy to be filled in the position of sergeant, to certify to him the three candidates graded highest on such an eligible list, it is apparent that if the rule requiring two years’ sendee as corporal had not been waived or suspended, only three corporals could have taken the examination and if all three had successfully passed such an examination there would have been but three names to be certified on the eligible list for the making of one appointment as sergeant. The evidence shows that more than one sergeant was to be appointed at that time — the relator himself being the second appointment made under that examination — and it is therefore clear that as a matter of convenience it was then desirable for the commission to waive or suspend that rule if they had the power. No formal amendment or change in Rule 84 was made at that time by the commissioners and no steps were taken to that end as provided by Rule 110, but the action taken by the commission in its proceedings of February 28, 1913, in providing for the holding' of the promotional examination for sergeants while not constituting an amendment or change of its standing rules, was, in effect, a suspension or waiver of the provisions of Rule 84.

We are of the opinion that the civil service commission had the power to so waive or suspend this rule, and that its action in making all the corporals then on the force eligible to this examination was Avithin its poAver, and that the examination was Avithin its poAver, and that the examination was held according to law.' Nor Avas it necessary to note on its minutes that a rule had been suspended, there being no objection on the part of any member and all members being present. Cushing’s Law of Legislative Assemblies, Sections 794 and 1478; Wyman on Administrative Law, 108; State v. Bd. of Ed., 2 C. C., 510, at 515; City of Cleveland v. Hamman, 17 Colo., 30.

. The record shows that the statute was complied with in all particulars with regard to the examination which relator passed, and in making of his appointment. Upon a requisition made by the director of public safety for an eligible list, Weiss was duly certified upon that eligible list by the civil service commission itself, ' and he was duly appointed by the director of public safety, and the commission was notified of his appointment by the director of public safety, and Weiss’ name was then placed upon the official roster of the commission kept in pursuance of Section 4483, General Code, and has been so continued up to the time it is now questioned.

The civil service commission having been invested by law with the power to determine the eligibility of Weiss, and having determined him to be eligible, is without power to subsequently reverse its decision. Matter of Lazenby, 116 App. Div (N.Y.), 135 (aff. Ct. App., 188 N. Y., 588), People v. Cobb, 13 App. Div. (N. Y.), 56; People v. Preston, 62 Hun. (N. Y.), 185 (aff. 131 N. Y., 644).

29. Cyc., 1433:

“If the power has been given to a.ny officer to determine a question of fact, his determination is final, provided he has riot been guilty of an abuse of discretion. Such a determination is binding upon the successors in office of the officer who made it.”

Justice Brown, in the opinion of the court in Noble v. River Log Co., 144 U. S., 165, discusses the power of an officer acting in a quasi judicial capacity to reverse the decision of his predecessor in the same office.

In the case of Piacik v. People, ex rel, 194 Ill., 195, which is relied upon by defendants, the title of the assistant superintendent of police in Chicago was attacked directly by quo warranto, the statute requiring the promotional examination to be limited to members of the next lower rank; the officer whose title was attacked was not a member of the next lower rank, and was therefore rendered by statute ineligible to examination, and was held to have been illegally appointed. This case can not apply to the ease at bar, as it was there not a mere waiver of rule on the part of the commission, but a violation of the statute.

If it was desired to raise the question of the regularity or legality of his appointment, Section 29 of the act furnishes an opportunity for a direct attack upon his title, and it would be conducive to a stronger feeling of reliance upon the stability of their tenure by civil service employees, to have any question raised as to their titles by such a proceeding, rather than by a refusal of the civil service commission to certify on the pay-roll names that have been placed and so long maintained by them upon their official roster.

The name of the relator being properly upon the roster, and his employment as sergeant having been made in pursuance of law, it was the duty of the civil service commission to furnish the certificate required under Section 21 of the civil service act.

A writ of mandamus, as prayed for, will therefore be allowed.

Swing, P. J.

Judge Swing concurs in the above decision, for the reason that the civil service commission having been invested by law with the power to determine the eligibility of "Weiss, and having determined him to be eligible, it is without power subsequently to reverse its decision, and the present board is bound by this former action.


text:
    DETERMINATION AS TO THE VALUE OF A HORSE.
    Circuit Court of Lorain County.
    Henry Buddenburg v. Anthony Wearsch.
    Decided, April 20, 1912.

      Measure of Damages — Value Given By Witnesses — Other Evidence of Value — Charge as to Value.

    Where the question of the value of a horse is before the .'jury and witnesses have given their opinions as to its value, describing it, it is not error to instruct the jury that if it, from other evidence in the case, was of the opinion that the horse was worth less than the value put’upon it by the witnesses, they might so decide upon their own judgment.

      Q. A. Gillmore, for plaintiff in error.

      Fauver & Rice, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
   Defendant in error was plaintiff below, and recovered a judgment against plaintiff in error for the wrongful death of his mare, which he claimed resulted from the negligent use of a pistol by Buddenburg on the premises of Wearsch.

It appeared from the evidence that on Thanksgiving day, 1908, the parties to this action, who are brothers-in-law, and Joe Wearsch, brother of Anthony, had been out hunting in the forenoon, and came back to the Wearsch farm about noon. There they probably had some hard cider, and fell to discussing the relative merits of a new revolver owned by Henry and an old one belonging to Joe. They decided to try the “guns',” as they called these revolvers, and Joe and Henry went outside the house to shoot at a mark east of the house; some horses, among them the mare which was killed, were north of the house.' The old gun didn’t work very well and it went off unexpectedly in the hands of either Joe or Henry, and probably this shot hit the mare, although nobody at the'time knew of that fact. The horses ran off down the lane to the woods, and toward evening the mare was found there suffering in a fence corner and had to be put out of her misery.

Joe says the revolver went off in Henry’s hands; the hired man was the only other person present at the time; he is uncertain as to whether the gun exploded in the hands of Henry or Joe; at least he contradicts himself upon the question. Anthony and his wife testify that Henry came in to wash the powder marks off of his hand, then went out again, and he and Joe and Anthony, who went out with then, continued to shoot at a mark, the old revolver meanwhile having been fixed up so that it would work properly.

In the evening, after they had killed the mare, Anthony testified that Henry said he had shot the mare and that Anthony should go and buy another horse and he would pay for it, and within a week Henry did give him twenty dollars towards payment for the new horse.

Joe also testifies that he heard Henry say he had shot the mare and that he would pay for another horse.

Mrs. Wearsch testifies that Henry said he shot the horse, that Anthony was going to kill him for it and he wanted Mrs. Wearsch to come out and quiet Anthony down; that he would pay for another horse, and he was going to bury the revolver in the same hole with the mare.

Henry testified .that the gun went off accidentally twice, first in Joe’s hands, after which they noticed the horses running down the lane and spoke about Roxie, the mare, drooping her head, and afterwards in the hand of Henry, when he was fixing it.

The evidence in this case is conflicting, but it is evident that on the evening of the day the mare was shot, everybody, including Henry, thought that he had shot the mare. Afterwards he evidently changed his mind and didn’t want to pay for the mare, but there was evidence in the case tending to show that he was responsible for the mare’s death, and we are unable to say that the verdict was not sustained by sufficient evidence. The jury saw all the witnesses, and gave such credit to each one of them as they were entitled to in their judgment.

Doubtless the jury believed that Henry admitted that the death of the mare was due to his carelessness, and so believing, brought in a verdict against him.

Complaint is made that error was committed in permitting the witness C. IT. Johnson and John Stark to testify as to the reasonable market value of the mare at the time in the community, but as they qualified and knew the mare, there was no error committed in this respect.

After the jury had been charged and had retired, it came back into open court for further instructions, and one of the jury men addressed the court as follows:

‘ ‘ The question is, the jury is undecided as to whether in fixing a value for this horse they can go below the value given in the petition?”

And thereupon the court instructed the jury as follows:

“The measure of damages is the market value of the horse at the time, giving credit for $19, which the plaintiff claims he has had. What that market value is, you are to determine from the evidence in the case, and the evidence in the ease on that subject was not all alike.”

And thereupon the said juror inquired of the court:

“Can they go, for instance, below the lowest value that is placed upon this animal?”

To which the court replied:

“I think as a proposition of law that they could not, unless the parties might feel willing to agree to givfe the jury a little latitude; but otherwise than that, you must determine it from the testimony in the case and base it upon that. I say this: that when a witness testifies as to his judgment as to the value, he also testifies as to his knowledge of the horse, and if there is testimony as to the horse that will enable you to fix a value upon it, you can do so regardless of the judgment of those who testify on that subject. Do I make myself plain? Supposing a case where there was testimony that a horse had but three legs and those who saw the horse and placed a value upon it placed it at a certain sum, but they described the horse sufficiently to you so that you are able to say that such a three legged horse as that was not worth so much money, you have a right in that instance to take into consideration your own judgment. In other words, you are not absolutely bound by the amount fixed by them, if there is other testimony in the case that will warrant your disregarding it. I think I will leave that instruction in that shape.”

It is claimed that these remarks of the court were prejudicial to plaintiff in error, but while the first sentence of the final instructions was not strictly correct, and the illustration used by the trial judge was not a happy one, still taking the whole paragraph, the law was fully and properly charged, and the jury was clearly authorized under it and distinctly given to understand, that though the witness had given their own opinions as to the value of the mare, still, if the jury, from other evidence in the ease, were of the opinion that she was worth less, they might so decide upon their own judgment.

No other errors are alleged to have occurred on the trial, and having disposed of all that has been brought to our attention in favor of defendant in error, the judgment is affirmed.


text:
    AS TO THE CHARACTER OF A RIGHT TO MAINTAIN A SEWER ACROSS PREMISES.
    Circuit Court of Summit County.
    The Peterson & Wright Company v. The City of Akron.
    Decided, April 20, 1912.

      License Distinguished from Easement — Public Sewer — Recitals in Other Instruments Not Conclusive.

    1. Whether the right to maintain a sewer across premises of another is a mere license or an easement is to he determined from a consideration of the terms of the instrument creating the right, even though the right is claimed by a municipal corporation and the sewer in question is a public sewer.
    2. Reference to a contract granting a license to maintain a sewer across premises of another as a contract granting a “right-of-way for a sewer” when found in a conveyance from the owner of the premises to another than the licensee, is not conclusive as to the character of the right created by the contract.

      Boylan & Brouse, for plaintiff in error.

      N. M. Greenberger and J. Taylor, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
   The prayer of the petition in this ease is for rescission of a contract between the plaintiff’s predecessor in title and the city of Akron, by the terms of which the city was granted the right to lay and maintain a sewer across property now owned by plaint-tiff; the petition also prays that plaintiff’s title to said premises may be quieted as against any claims of the city under said contract.

There is no dispute as to the facts in this case. The whole case turns upon the proper construction to be put upon said contract. If under it the city obtained a mere license, plaintiff has a right to terminate said license, which it has attempted to do. If the city, by virtue of said contract and its acts thereunder in constructing said sewer, obtained an interest in the land of defendants, plaintiff can not terminate said interest without the city’s consent.

The contract in question was executed in 1894, the Brewster Coal Company, plaintiff’s predecessor in title, being the first party, and the city of Akron the second party. It recites:

“That the party of the first part for and in consideration of the covenants and agreements of the party of the second part, hereafter mentioned, does hereby give to the party of the second part a license mid permission to construct, maintain, operate and keep in repair a sewer, and to change the nature and size of the same, upon the following described parcels of land.”

Then follows a description of two parcels of land about twenty-three feet wide, extending diagonally across the plaintiff’s premises from High street to Main street, in the city of Akron.

Following this description are certain covenants on the part of the city of Akron; that it will do no unnecessary damage to the first party’s land adjoining said premises, or to its structures thereon; that it will indemnify and protect first party, its successors and grantees, from all -damages by the exercise of the right granted; that it will restore the premises and any structure thereon to as good condition as they were in before excavation, and that subject to the use of the premises described, the first party shall have the right to use said premises.

The first party is specifically released “from any obligation to warrant its right to grant said license,” and it is further agreed that if any of the agreements of the city are held to be beyond its power and authority, “then the license and permission granted by said party of the first part shall .thereupon, and for that reason, terminate and become null and void,” and the sewer shall be removed.

Although the instrument is signed by the parties, it is neither witnessed nor acknowledged. However, it was recorded in the office of the recorder of Summit county.

A reading of this instrument convinces one that it was intended as a license and not as a conveyance. In the first place, the instrument itself purports to be only a.license; as recited, it gives a license and permission to construct, maintain, operate and keep in repair a setoer. No other operative terms are contained in the instrument. It is three times recited in the agreement that it is a “license and permission,” and four more times it is recited that it is a “license.”

The parties themselves having thus characterized it, it is hard to construe it as anything else. If it is a mere license, witnesses to it and an acknowledgment would make it nothing more, and the fact that it lacks witnesses and an acknowledgment is further evidence that parties themselves considered it merely a license.

It is significant that no estate in the land is mentioned and no interest therein is described. It is true that in the conveyance from the Brewster Coal Company to the plaintiff, occurs the following clause:

“Also excepting and reserving the right of way for a sewer as shown by a contract by and between the Brewster Coal Company and the city of Akron, Ohio, said contract being dated March 5th, 1894, and recorded in Book 78, page 578, Summit county records.”

While this clause brings home to-plaintiff notice of the city’s rights, if any, as shoiun by the contract, it can not enlarge them, for the city was not a party to this deed, and calling the city’s rights under the contract a “right of way for a sewer,” does not make it an easement, if the original instrument creates a mere license, as we have seen it does.

There is no duration fixed for the life of this license; on its face it appears to be personal and probably terminated when the Brewster Coal Company parted with its title to the land. At any rate, like all mere licenses, it is revokable and the plaintiff having revoked it, and there appearing to be no equitable consideration favoring the defendant, except that it should have ample time to make other arrangements for the sewer, plaintiff appears to be entitled to the relief it prays.

In our conclusions we are sustained by the following authorities: Wilkins v. Irvine, 33 O. S., 138; Yeaker v. Trening, 79 O. S., 121; Fowler v. Delaplain, 79 O. S., 279; Rodefer v. Railroad, 72 O. S., 272; City of Hamilton v. Ashbrook, 62 O. S., 511.

In the last mentioned case, the contract between the city and the proprietors of the lands is set forth, and will be found to be very similar to the contract in this case, yet Judge Shauck, on page 517 of Ms opinion says: “That instrument was a license. ’ ’ Decree may be entered for plaintiff, as prayed for, but not to go into effect until the city has had reasonable time in which to make other arrangements for taking care of the sewage now flowing through the sewer in question.


text:
    CONSTRUCTION OF BUILDING RESTRICTION WITH REFERENCE TO PORCH ROOF.
    Circuit Court of Summit County.
    The Portage Park Land Company v. Rose B. Burch et al.
    Decided, April 20, 1912.

      Building Restriction — Porch Construction.

    A restriction in a deed which requires that no building, except an open porch, be erected nearer the street line than twenty-five feet, is not violated by the erection of an open porch upon the restricted territory, although the roof of said porch is but a continuation of the roof of the main building.

      Stuart & Stuart, for plaintiff in error.

      Wilcox, Pwrsons, Burch & Adams, contra.

      Winch, J.; Marvin, J. and Niman, J., concur.
   Tbe land company in this appealed action asks for the enforcement of a building restriction contained in defendants’ deed, which requires that no building, except an open porch, be erected upon defendants ’ lot nearer the street line than twenty-five feet.

The main part of defendants’ home, recently erected, is about two feet farther back from the street line than the restriction requires, but the roof of the front porch is a continuation of the main roof of the house as it slopes toward the street. Exhibition of this kind of roof is common in the architecture of the day, but it is said that by reason of the siding on the main part o£ the house being carried out to the front into the triangular space included between .the roof and ceiling of the porch and the front of the house, the view from a second-story porch on any house which might be built to the east of defendants ’ house, would be obstructed.

The porch, outside of this roof, is a remarkably open one. The few posts supporting the roof are not large; the railings are slight and graceful.

In order to make light and view for two chamber windows upstairs in the front of the house, the porch roof is cut down and a deck roof constructed, leaving at each side thereof the sloping roof complained of, perhaps six feet wide on each side of this deck roof.

The pitch of the main roof, which is the pitch of that part of the porch roof that is complained of, is nearly forty-five degrees.

It is conceded that defendants are entitled to a substantial roof over their porch, so that in the last analysis, the only objection plaintiff can have to defendants’ porch roof is that it is too steep on the side parts. In view of the fact that this roof begins two feet back of the restricted area, it is apparent that it is about two feet lower at the twenty-five-foot line than it would have been if the front of the house had been on that line. This undoubtedly explains the fact that a photograph of the premises taken from the west with another house and porch between the camera and defendant’s porch hardly shows the latter, while a photograph taken from the east, with no intervening house, rather magnifies plaintiff’s contention.

The court viewed the premises, however, and finds the construction of defendants’ porch and roof thereof to be within the language of the restriction; it is an open porch and requires no alteration to make' it conform to the requirements of the deed.

Upon the argument of the case, counsel for plaintiff suggested that to permit the construction here complained of, might encourage some other lot owner in the restricted territory to extend the main part of the second-story of his house out over the porch in the manner sometimes seen.

So far as this case is concerned, the suggestion has no influence, for defendants have not done such a thing and disclaim all intention of so doing. It will be time .enough to complain of what somebody else may do, when he. does it.

The petition is dismissed.


text:
    FIXING THE VALUE OF EXTRAORDINARY SERVICES.
    Circuit Court of Cuyahoga County.
    Carrie G. Prentiss v. Ezra Woods.
    Decided, April 20, 1912.

      Administrator — Allowance for Extraordinary Services.

    The mere fact that an allowance to an administrator for extraordinary services rendered his estate seems somewhat large will not warrant the circuit court, on error, in reversing the judgment, the probate judge, with his expert knowledge of the value of such services having first fixed the amount, and the common pleas court, on appeal, having fixed the same amount.

      Otis, Beery & Otis, for plaintiff.

      Grant, Seiher & Mather, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
   This case originated in the Probate Court of Summit County, by plaintiff filing exceptions to the account of defendant as administrator of the estate of Prof. Bates, deceased, in which he claimed $500 extra compensation for extraordinary services rendered the estate. The probate judge heard the parties and their evidence on these exceptions and allowed the claim of the administrator.

On appeal to the common pleas court, it did the same thing.

The case is here on error, with a bill of exceptions showing-all the evidence taken on the hearing in the common pleas court, and we are asked to reverse its judgment solely on the weight of the evidence.

It appears that Prof. Bates died in California, leaving some personal and real property there. He left some personal property located here at the time of his death, and some located in Massachusetts.

Defendant applied for and was granted letters of administration in Summit county, Ohio, and at once set about-obtaining possession of the assets in the other two states. He was met with the claim that Prof. Bates was a resident of California at the time of his death. This claim was important, for if true, it altered the distribution of the estate.

Prof. Bates left a widow and no children. Under the laws of Ohio, his widow would inherit his entire estate; under the-laws of California, she would inherit but half of it, and his sister, plaintiff herein, would inherit the other half.

In the settlement of this question, depositions had to be taken in Oregon and in California; services of counsel were required, with many consultations and directions; the hearing on this question was long and it was hotly contested; defendant lost the point, but still continued, under advice of counsel, in his effort to bring all the assets of the estate under one administration here, so as to save expense and loss.

He succeeded, with some considerable labor, in securing possession of the Massachusetts assets; meanwhile the public administrator in California made claim to the assets there, but the administrator here, after much delay, considerable trouble and by good management, secured control of the personal assets in California. The real estate there remains for administration by the California public administrator under the laws of that state.

In all, defendant has administered upon about $25,000 of assets.

The foregoing is a summarized statement of defendant’s unusual service in this estate; it does not set forth the many little things he did in connection with the collection of the Massachusetts and California assets, and some unusual trouble he had in the collection of part of the Ohio assets.

It is apparent that defendant performed some services for the estate in his charge which an administrator in this state is not ordinarily called upon to perforin.

Ordinarily the estate of a deceased resident of Ohio is located at his residence, and the administrator has little trouble in reducing it to his possession, converting it into money and distributing it. For these services he is compensated by a percentage, not large, as any other agent is compensated. But where, as here, he renders unusual services, they are by statute denominated extraordinary services, and for them he is entitled to additional compensation.

The two courts below undertook to fix the value of the extraordinary services, which were without doubt rendered by this administrator. That he was entitled to some extra compensation is equally without doubt. The amount fixed, $500, seems large, but it is not so large that this court, without recent experience in such matters, can say that the probate judge, with his intimate knowledge of the value of such services, got it too large. The probate judge is an expert in such eases. We bow to his judgment.

Judgment affirmed.


text:
    REASONABLENESS OF A RULE GOVERNING THE SLAUGHTER OF CHICKENS.
    Circuit Court of Lorain County.
    R. H. Shute v. City of Elyria.
    Decided, April, 1912.

      Rule of Board of Health — Reasonable Rule — Slaughtering Ghiclcens.

    1. A reasonable construction should be given to a rule of the board of health of a city, intended for the protection of the health of its inhabitants, to the end that it may be enforced.
    2. One who dresses chickens in a room in the saíne building with his meat market and connected with it on the same floor, can be punished for the violation of a rule of the board of health providing: “No fowls or animals shall be kept confined, nor shall same be slaughtered or dressed in any basement or any building, a part of which is used and occupied as a market where meats are sold for food.”

      Q. A. Gillmore, for plaintiff in error.

      G. B. Findlay, contra.
    Marvin, J.; Wincii, J., and Niman, J., concur.
   The plaintiff in .error ivas prosecuted before the mayor of the city of Elyria, and found guilty of violating Section 46, paragraph 29, of the rules and .regulations of the board of health of said city. This regulation reads:

“No fowls or animals shall be kept, confined, nor shall same be slaughtered or dressed in any basement or any building, a part of which is used and occupied as a market where meats are sold for food.”

It Avas shoAvn upon the trial that Shute conducted a meat market in the city of Elyria, and that on the 28th of April, 1911, he slaughtered and dressed.chickens in á room in the same building with his meat market and connected with such market and on the same floor Avith the room in Avhich his meats AA-ere sold, the slaughtering, hoAvever, being- done in a room back of the one in Avhich meats were sold. The slaughtering and dressing Avould appear to have been done with care, and the work conducted as cleanly as that kind of work can be done.

By proper proceedings, the case was brought into the court of common pleas on error, where this judgment of conviction was affirmed, and the case is now here upon proper proceedings seeking a reversal of the judgment of affirmance and the judgment in the mayor’s court.

It is manifest that the accused violated this rule of the board of health, if the same is to be construed literally, and this question is presented in the case: “Had the board of health authority to establish this rule?” The statute which authorizes the establishment of the rule, if the board had the authority to establish it, is Section 4413 of the General Code of Ohio, which reads in part:

“The board of health of a municipality may make such orders and regulations as it deems necessary for its own government, for the public health, the prevention or restriction of disease, and the prevention, abatement or suppression of nuisances.”

This, of course, does not authorize the board of health, arbitrarily, to establish a rule that is without reason, but it leaves in the board a very broad latitude in determining what is reasonable.

As said in Walton v. Toledo, 13 C. D., 547, quoting from the opinion of Judge Haynes at page 551:

“The powers that are given to the various boards of health, and the laws enacted for the purpose of protecting the people of the state from contagious diseases and from the sale of diseased or impure articles, are about as broad as language can make them. They extend into every relation of life, and the protection of health is one of the most important departments that the Legislature has to deal with.”

We think that a rule which would make it an offense to do things done by the accused in this case, would be a reasonable rule to be adopted by the board of health.

Rules may be reasonable in one municipality which would not be reasonable in .another, and in the absence of evidence showing the particular surroundings or the population or the character of business buildings in a particular municipality, we must presume that if the regulation adopted by the board of health in any municipality could be reasonable in any municipality, then it is reasonable in the municipality in which it is adopted, for the presumption, in the absence of evidence, is that the rule of a board of health or an ordinance of a particular municipality is proper for such municipality, unless facts are shown to the contrary by proper evidence; so that, if the rule under consideration adopted by the board of health of Elyria would be suitable and proper, in short, would be reasonable in any municipality, we must treat it as reasonable in the city of Elyria, because we have no evidence in the record as to the character of the city of Elyria, its population or kind of buildings in the city, and of these facts we can not take judicial notice.

And this brings us to the consideration, therefore, of whether the particular rule under which the plaintiff in error was prosecuted is a reasonable rule.

It will be noticed that the language of the rule is very broad. It is made an offense to “keep confined airy fowl or animal,” and it is also made an offense that “any fowl or animal be slaughtered or dressed in any basement or building, any part of which is used and occupied as a market where meats are sold for food.” If these words are to be construed in their broadest sense, it is manifest, we think, that the rule would be unreasonable. A building might be and often is, in a municipality, used in part as a grocery store, and in the upper stories and at a distance from the room used as a grocery store, are rooms occupied as a dwelling place by a family. In such grocery store salt meats, such as bacon, hams, pork and dried beef are sold for food.

The word “animal” is very comprehensive. Anderson’s Law Dictionary gives as a first definition, “Any irrational being as distinguished from man”; “in a common sense, a quadruped, not a bird nor a fowl.” Again: “While the use in any particular context or statute may be limited by the general meaning and purpose, the term, in jurisprudence may include any living creature not human or rational.”

The word “fowl” is also very comprehensive, and the definition both in Webster’s Dictionary and in the Century Dictionary, makes it include birds of all kinds, both domestic and wild, as the word “fowler” is used to mean the man who hunts birds.

If these broad definitions were to be applied to the construction of this rule, the family which should keep 'a canary bird in the living rooms hereinbefore spoken of as being in the same building with a grocery store where salt meats are sold, would be a violator of the rule; so, also, would the family keeping a parrot in such manner, or, indeed giving the word “animal” its broadest meaning, the keeping of a gold-fish in a glass globe by any such family would be a violation of the rule, and surely, the keeping of a pet squirrel in a cage would be a violation of the rule. But from the fact that both the words “fowls” and “animals” are used in the regulation under consideration, it is clear that the word “animal” was not used in its broadest sense. If it had been, there would have been no occasion to use the word “fowl” and the words following the prohibition as to the keeping of fowls or' animals confined, to-wit, “nor shall the same be slaughtered or dressed in any basement or building,” etc.; it would seem that a fair construction of the rule would be that the offense is committed when animals or fowls intended to be slaughtered are kept, as well as when such animals are slaughtered or dressed in such building, the offense is committed.

We think this is a reasonable construction of the rule, and if; upon any reasonable construction the rule can be upheld, it must be for the same reason that a statute must be upheld as constitutional, if by any reasonable construction of the statute it can be so held. We do not say that the construction suggested is the only one under which the rule could be upheld, but certainly with such construction it can be, and as such construction seems to be reasonable the result is that we hold the rule to be valid, and this necessarily results in our finding that the judgment should be and is affirmed.

It is suggested that if the attention of the board of health is called to the matter, the rule under consideration may be so, amended as to relieve it from any possible misconstruction.