text:
    STIPULATION CONCERNING JOINT USE OF DRIVEWAY CONSTRUED.
    Circuit Court of Cuyahoga County.
    Washington W. Boynton v. Max Strauss and Clayton Strauss.

    Decided, September 23, 1908.
    1. Reformation of a written instrument can only be had on the production of clear and convincing evidence of the intention of the parties and of the mutuality of that intention with regard to some phase of their contract which their writing fails properly to express.
    2. In construing a written instrument which is open to more than one interpretation -such effect will be given to it as the conduct of the parties at the time of its execution' indicates they intended it should have.

      Norton T. Eorr and Stroup é Fauver, for plaintiff in error. Webber, Wilford & Gillie, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.

       Affirmed withiut opinion, Boynton v. Strauss, 82 Ohio State, 409.

   This is an appeal from the judgment- of' the common pleas court and the facts as disclosed in evidence before us show that the plaintiff purchased from Max Strauss, one of the defendants, the north, half, substantially, of a parcel of land owned by Mr. Strauss on the west side of Washington avenue, in the city of Elyria, and in making that purchase a stipulation was contained in the'instrument of conveyance concerning the joint use of a driveway. The driveway may perhaps be regarded as either a horseshoe carriage way, starting in at Washington avenue and going around to the rear of the premises and back again to Washington avenue by another entrance, or it may be regarded as being two driveways.

Nearly all of this horseshoe driveway is located upon the premises which the vendor retained, the south half of the entire parcel of land. It begins near the -boundary line between the portion which he retained and the portion which he sold to the plaintiff; continues in a serpentine course westward, crossing the boundary line part way to the rear of the premises; continues on the part that was sold to the plaintiff and then crosses the boundary line between the parties and circles around the defendant’s house, returning again to Washington avenue.

At the time of the sale and since the sale these two driveways (if they were two), or one driveway, if it be so regarded, constituted a means of continuous passage from either entrance on Washington avenue around to the other entrance or exit on the same street.

It should be said that at the time of the sale there were two houses upon the entire parcel, two residences, the south one of which is occupied still by the vendor, Mr. Strauss, the defendant here, or his family, he having since conveyed it by gift to his son, who lives with him; and the house upon the northern portion of the entire piece of land is now occupied by the plaintiff. the vendee, who purchased that portion of the premises from the defendánt.

The provision in the deed upon this subject of the driveway is quite extensive and I shall quote it in full, because it is necessary to construe the language:

“The drive or carriage way to remain as now existing and located, a part of which passes from Washington avenue to the land of the grantor lying south of the land above described and thereby conveyed and for a short distance on said grantor’s land when the said drive or carriage way passes on the land hereby conveyed to said grantee, to be used in common between the two places for a carriage or driveway, and said grantor conveys to said grantee 'said use of the parcel on his land covered by said driveway south of that hereby conveyed, and reserves the right to use for passage and repassage the remaining portion of said driveway oh the land hereby conveyed. The corners of said driveway at Washington avenue to be marked by stones or iron piping sunk in the ground, as also the Washington avenue corners of the lot hereby conveyed with the corner on the east line one hundred feet north of the south line as- above described. ’ ’

Now thp controversy which makes necessary a construction of this language is substantially this: For a long period after the conveyance wás made the parties and those who did business with them seem to have used indifferently the whole or such part of this driveway or parts of it as they chose. The plaintiff, after he purchased the northern half of the property, built a barn in the rear of the residence thereon and in the construction of that barn the wagons by which the material was hauled were accustomed to pass over that part of the driveway which lies south of the Strauss land and across the boundary line between the two parties over into the parcel which the defendant sold to the plaintiff and on which the new barn was being constructed. Delivery men and others have used the entire driveway, if they chose to do so, making the complete circuit of the horseshoe. At the time the conveyance was made, it should be stated that there was no means, convenient at least, for anyone to drive in at one entrance and turn around so as to come out at the same entrance. Certainly there was no such place or means convenient to be used upon the plaintiff’s portion of the entire tract. Since that time he has- in front of his barn, provided a suitable place for turning around, so that one may drive on that part of the driveway between the two houses coming in at Washington avenue and drive- up to the plaintiff’s barn and turn around and come out again by the same way.

It is urged on behalf of the plaintiff, who claims still the right to make the complete circuit, that he has an easement in the entire horseshoe driveway, or of all that part of it, being the major part, of course, which is located upon the vendor’s land, which Mr. Strauss’ son still owns, and Mr. Strauss having seen fit, for purposes of his own, to block tip the southernmost portion of that driveway so that it can not now be used, this action is brought to vindicate the plaintiff’s alleged right to use by way of easement appurtenant to the land purchased bj^ him the entire horseshoe driveway. It is vigorously claimed in his- behalf that such use of the entire driveway physically connected with the residence property which he purchased from the defendant would, as a matter of law, and as an easement appurtenant to the land purchased, pass to him when he bought, and that such was his common law right under the circumstances as they then existed.

But we need not give consideration to that contention, for, ss we look at it, the parties have themselves attempted to define in' this instrument of conveyance precisely and exactly what their rights are. They have not left them unexpressed, and to the determination of the law as it may be applicable to the physical facts and the circumstances of the parties and their relations, but they have 'attempted to define them, and that definition supersedes whatever common law rights might have existed if they had given no such expression to their intention. The deed of conveyance, it may be remarked, was written, by the purchaser, the plaintiff, as the scrivener. lie dictated that part of it which I have read and quoted, to a stenographer, who as he dictated it, wrote it upon a typewriter (for that portion of the deed is in typewriting), and directly thereafter he or some one in the presence of both the vendor and the vendee read it to Mr. Strauss, the vendor, and it was thereupon signed, witnessed, and acknowledged and by the plaintiff put upon record.

It is claimed that if this deed and the express provisions with regard to the driveway therein contained are insufficient to support the claim made by the plaintiff of an easement in the entire-driveway, the complete circuit or horseshoe, he is entitled to a decree upon the evidence here to reform the deed in such manner as that it will definitely and clearly express the intention which he claims to have been the mutual intention expressed between the parties in the negotiations leading up to the purchase.

Upon that subject the testimony is somewhat conflicting. The plaintiff testifies that in the conversations leading up to the purchase between him and the defendant, the vendor, mention was made of the entire driveway, the whole horseshoe, and mention ■was made of it as being a convenient means to enable guests of either of the parties, should they have a reception at either of their respective homes, to drive from Washington avenue by one entrance and obtain an exit by the other, and that it was contemplated by both the vendor and the vendee expressly in those conversations that both parties should have the use of the entire driveway. The wife of the plaintiff here corroborates, in some degree at least, perhaps wholly, the statement of her husband in regard to that matter. On the other hand, the defendant, Max Strauss, declares, and he is to some extent corroborated by his daughter-in-law who was present at some of the conversations at least, that no mention whatever was made of that portion of the driveway which is now in dispute and that the only reference to the driveway which is not in dispute made in the conversations between the parties was a reference to the portion which lay between the houses physically.

The rule of evidence with regard to the reformation of a written instrument for mistake is well known in this state by repeated decisions of our court of last resort to be that such reformation can only be had on the production of clear and convincing evidence of the intention of the parties and of the mutuality of that intention with regard to some phase of their contract which their writing fails properly to express; and in this state of the evidence in the case before us, applying that rule, in view of the irreconcilable conflict in the testimony of the parties, we are unable, if such relief be required in this, case, to afford it. There can be no reformation, because the evidence does not clearly and convincingly indicate that the parties both intended that the deed should have expressed clearly and plainly that the entire circuit was to be used by both of right. If such expression is not contained in the language of the deed itself the plaintiff must fail, therefore.

Recurring now to the language of the deed, at first sight it appears that the driveway as intended by the parties and described in the deed is the sinuous or serpentine driveway between the houses, for it must be admitted that so far as the driveway is described in terms the description relates only to that part of the driveway. But it is said that the language used by way of description of this portion of the driveway, is, by the express terms used, applicable only to a part of the whole driveway, in all of which an easement is expressly conveyed; and I will reread the language giving the expression to that view:

“The drive or carriage way to remain as now existing and located.” * * *

It is now suggested that the force and effect of that comma is to begin a parenthesis, and there is not any further punctuation until the end of the parenthesis as suggested, to be presently indicated; “a part of which passes from Washington avenue to the land of the grantor lying south of the land above described and hereby conveyed and for a short distance on said grantor’s land when the- said drive or carriage way passes on the land hereby conveyed to said grantee, ” * * #.

And this latter comma, it is suggested, amounts virtually to the end of a parenthesis describing a part of the driveway, the whole of which the language of the deed is said to convey. And then the language of the deed proceeds: “to be used in common between the two places for a carriage or driveway,” * * *.

If we went no farther than this, if the deed contained no other language with reference to the driveway than what I have just now re-read, the suggestion having reference to the punctuation as thus pointed out, might indeed have some force. It might indicate that the driveway, which was, as it then existed, convenient to be used only in complete circuit, was intended to be so described as to give the vendee an easement in all of the entire circuit which was not upon the land purchased by him. Proceeding further, however, with the re-reading of this description, there are some very significant words which, in our judgment, qualify what goes before: “and said grantor conveys to said grantee said use of the parcel on his said land covered by said driveway south of that hereby conveyed, and reserves the right to use for passage and repassage the remaining portion of said driveway on the land hereby conveyed.”

Now, it is manifest that if the plaintiff’s contention is true, there are two parcels of the driveway on the defendant’s land in which he claims an easement, and yet the word “parcel” in the singular is used. . I may recall to attention the fact that the drivewav starts in on the defendant’s land, passes over to the plaintiff’s land, repasses to the defendants’ land and back out on Washington avenue, so that there are two parcels on the defendant’s land in which the plaintiff claims an easement, and yet tile language of the deed specifically refers to but one such parcel in which an easement is conveyed to him. But going still .further:

“The corners of said driveway at Washington avenue to be marked by stones or iron piping sunk in the ground, as also the Washington avenue corners of the lot hereby conveyed with the corner on the east line one hundred feet north of the south line as above described.”

Immediately upon the completion of this purchase the parties employed surveyors and one of those surveyors, the one, perhaps, employed by the vendor, went forward with the work of establishing the boundary lines between the two parcels and establishing the corners of the driveway. Iron pipes were placed in the ground and they are there now, as indicated by the evidence, to mark the boundary line between the two properties and to mark the two sides of the one entrance of the driveway which is nearest that boundary line, but there are no iron pipes at the other entrance.

It is said it was immaterial to the plaintiff here where the other entrance was to be located, just so there was another entrance ; but it was very material to him where the entrance nearest his property was to be fixed, because the line between them was near certain shade trees which it was very desirable that they should retain and it was very important that the driveway in its serpentine course should be fixed in such manner that the parties would know where it was located. This might take away some of the force of the inference which we draw from the acts of the parties in omitting to put iron pipes at the other entrance to the driveway; and yet, considering all of' the language of the deed with reference to the driveway, and considering 'not alone what the intention of the scrivener, the purchaser, the plaintiff, was, when he drew the deed, but also the idea which the vendor, the defendant Strauss, would gain from this language, we are constrained to interpret it as meaning what he says it did mean to him, viz; that the driveway or that portion of it physically between the two houses was the part in which the easement so far as that driveway lay upon the vendor’s land was conveyed to the vendee.

The word “between” in the sentence “to be used in common between the two places for carriage or driveway” is of course, equivocal. It may mean physically between the two houses, between the two parcels, or it may be between in the sense of in common between the two proprietors. That is not convincing, but the singular number of the word “parcel” and the fact that only one of the two entrances was immediately staked off with iron pipes, the fact, too, that the description of a portion, the serpentine portion of the driveway physically between the houses, at first glance and without the construction by way of interpolated parenthesis, would convey to the casual reader the idea that only the serpentine portion between the two houses was intended to be described and conveyed leads us to the conclusion that Mr. Strauss might well have believed, as anyone would naturally infer, that this alone was included; and the parties, therefore, must be held to have meant by the language which they used only that part of the driveway which lies physically between the two houses.

The petition will therefore be dismissed.

I ought to say that the very learned and carefully prepared printed brief of the plaintiff has been of service to us in presenting fully his contention, and we think we have not missed his view; but we do not concur in it.


source: Caselaw Access Project

license: Public Domain

text:
    ACTION TO ENFORCE STOCKHOLDERS’ LIABILITY.
    Circuit Court of Summit County.
    Cora B. Nevin v. The Akron Engineering Company et al.

    Decided, October 8, 1908.

      Corporations—Stockholders Liability—Limitations—Voluntary Dissolution.

    The voluntary dissolution of a corporation under the provisions of Section 5674a, Revised Statutes, does not cause the eighteen months to begin to run within which an action upon the liability of stockholders must be brought, as provided in Section 3258a, Revised Statutes.
    ITenry, J.; Winci-i, J., and Marvin, J., concur.

       Affirmed without opinion, Akron Engineering Co. v. Nevin, 84 Ohio State, 498.

   This action to enforce stockholder’s liability was not begun within the eig’hteen months succeeding the voluntary dissolution of the defendant company, under Section 5674a, Revised Statutes, and the filing with the Secretary of State of'a certificate thereof under Section 2789-31, Revised Statutes, but it was begun within eighteen months after plaintiff’s claim was reduced to judgment and execution thereon returned unsatisfied. Under Section 3258a, Revised Statutes, it must have been begun, if at all, within eighteen months after plaintiff’s claim against the corporation was in a .condition to assert it against its stockholders.

The rule established by our Supreme Court, and subsequently observed by this court sitting in Cuyahoga county, in the case of William C. Scofield v. The Excelsior Oil Co. et al, precludes the assertion of any such claim against the stockholders of a corporation, however notoriously insolvent and out of business it may be, unless actually subjected to judicial liquidation, without the reduction of such claim to judgment against the corporation and the fruitless issue of execution thereon. This course was permitted in that case to be pursued pending the action, but the right to maintain the action was conditioned upon the observance of that procedure. On the facts, the plight of the defendant corporation here became very similar to that of the Excelsior Oil Co. We can not say here, any more than we could there,. that the cause of action against the stockholders accrued prior to’ the return of execution unsatisfied on judgment rendered in favor of the plaintiff and against the corporation.

The voluntary dissolution under the statute can not alter the case, for the sections above referred to expressly confer this right of voluntary dissolution only on solvent corporations which have paid, or suppose themselves to have paid, all their debts. There is no presumption whatever o£ corporate insolvency or of the necessity of creditors’ recourse to stockholders’ liability, in such cases.

We think the present action is not barred but was seasonably commenced, and an interlocutory decree may be taken accordingly as usual in such cases.


text:
    ENGINE SOLD BUT DESTROYED BY FIRE PENDING DELIVERY.
    Circuit Court of Summit County.
    Freeman Stroh et al v. Anton Peterson.
    Decided, October 8, 1908.

      Hale of Chattel—When Complete—Delivery.

    Delivery is not essential to pass title to specific personal property sold, where nothing remains to be done to identify it or put it into a deliverable condition, unless a contrary intention is shown in the words or conduct of the parties. But when delivery by the seller at a stipulated place other than that of sale is customarily implied, or is expressly stipulated for an entire consideration which includes the purchase price payable on delivery, title and risk ordinarily remain with the seller, and he can not have his action for the price until such delivery is made.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The parties to this proceeding in error stand related as they stood below. The plaintiffs sold an engine which they had in use in Barberton and agreed to deliver it to the defendant in Akron. The latter was to send someone to participate in disconnecting the engine and getting it ready for transportation so as to know 'how to set it up again in the new location. Neither party was ready for the delivery to take place when the negotiations for the sale were consummated; but except as thus indicated nothing else remained to be done to put the engine into a deliverable condition. By agreement the buyer meanwhile made partial payments on the purchase price. Before the time for delivery arrived, however, the engine was destroyed by fire, and by mutual consent of the parties was sold by the plaintiffs for scrap. The action below was brought for the balance of the purchase price, and the defendant, denying liability, counter-claimed for the partial payments by him made. Judgment was rendered on the verdict of a jury against the plaintiffs and for the defendant in the amount of his claim.

Various rulings, on the admission of evidence, in the charge of the court, in the refusal of plaintiffs’ requests, and in denying a new trial, are alleged here as error. Without discussing any in detail our views upon all the minor points in controversy, the main contention of the parties turns upon the question of law involved in the relation of the stipulated delivery to the transference of title and risk. There can be no question that by the law as declared in Ohio, in consonance with modern authority generally, delivery is not essential to pass title to specific personal property sold, where nothing remains to be done to identify the same or put it into a deliverable condition, unless a contrary intention is shown in the 'words or conduct of the parties. But where delivery by the seller at a stipulated place other than that of sale is customarily implied, or Is expressly contracted for by the parties, for an entire consideration which includes the purchase price payable on delivery, title and risk will ordinarily remain in the seller and he can not have his action for the price until such delivery is made (Cunningham Iron Co. v. Warren Mfg. Co., 80 Fed. Rep., 878). True Terry v. Wheeler, 25 N. Y., 520, is apparently the other way, but it is sharply distinguished in Benjamin on Sales, p. 677 (6th Ed.).

Now it is in evidence in this case that the parties niade no express stipulation as to when the title and risk should pass. Nor did they evince any intention whatever on the subject except such as the law implies from the terms o'f the agreement as made. Their conduct both before and after the fire, with respect to insurance and other details of their business transaction, does indeed evince a somewhat natural uncertainty as to what that implication of law might be; but there is nothing in the evidence which was properly admitted nor in that alleged to have been .erroneously admitted or excluded, which could alter the ease. Practically the only material fact in controversy was whether the agreed price was $410 for the engine delivered or only $400 for the. engine and $10 for the delivery. By the court’s charge the jury’s verdict was properly made to hinge chiefly upon this distinction, and we see no reason to disturb it. The requests refused, though perhaps correct in themselves, would not have aided the jury in the determination of this issue.

Judgment affirmed.


text:
    VALIDITY OF CONTRACT FOR. CARE OF IMBECILE.
    Circuit Court of Cuyahoga County.
    Mary Kyser v. George Benner, Executor of John R. Benner.

    Decided, October 8, 1908.

      Implied Authority of Wife of Imbecile to Enter Into Express Contract for His Benefit.

    The wife of an imbecile has implied authority to enter into an express contract to engage the services of an adult member of the family in the care of him and his household.
    Henry, J.; Winch, J., and Marvin, J., concur.

       Affirmed without opinion, Benner, Excr., v. Kyser, 83 Ohio State, 510.

   The sole error alleged here is in sustaining the demurrer to the second amended petition below. Mary Kyser, stepdaughter of the decedent, John R. Benner, then an imbecile under 'guardianship, was induced by her mother, the wife of said Benner, to leave other lucrative employment which she had, outside the family house, and to. engage in the service of said Benner, helping to take care of him and of the household, in consideration of the express promise made in his behalf by his wife that she should be paid the reasonable worth of her services. Benner did not, and by reason of mental incapacity could not expressly authorize his wife to make this agreement; but the services were necessaries which the wife'had authority implied in law to obtain upon his credit in case of his failure, by himself or guardian so to do. Such was the ease here; and the action below .was brought to recover the reasonable value, according to agreement, of the services so rendered.

It was, however, successfully urged in the court below that under the authority of Hinkle v. Sage, 67 O. S., 256, no recovery can be had for services rendered in the home by a member of the family except under an express contract, and that in the nature of things Benner could not and did not enter into any express contract, nor during his incapacity could he confer authority upon an agent so to do.

While this is true, it is also true that the wife’s authority in the premises arose not from any express authority conferred by her husband, but from the authority implied by law from the relation of the parties as husband and wife, the compelling exigencies of family life, and the duty of the husband to provide. The reason for the rule, instead of failing, becomes all the more urgent when the husband is under disability.

Nor is the wife’s authority, as thus derived, limited to the making of implied contracts to charge her husband with the reasonable value of necessaries supplied to her, or to the family, at her request. There is no reason why, in the exercise of her implied authority, she should not expressly pledge her husband’s credit for the necessaries which she so procures, if the law. on other distinct grounds, as here, requires that the agreement for any such necessary be express' in order to be binding. There is no repugnancy in the express exercise of the implied authority to contract. Tn our opinion the petition states a cause of .action, and the demurrer should have been overruled. For error in sustaining the same the judgment below is reversed, the demurrer overruled and the cause remanded.


text:
    ACTION FOR. WRONGFUL EJECTMENT FROM STREET CAR.
    Circuit Court of Summit County.
    The Northern Ohio Traction & Light Company v. Charles Peterson.
    Decided, April 8, 1908.

      Passenger on Street Gar—Wrongful Ejectment—Evidence as to His Feelings—Punitive Damages—Excessive Verdict.

    1. In an action by a passenger for wrongful ejectment from a street car, he may testify that when he was put off he felt “cheap and kind of ashamed of himself” as if he had “done something wrong.”
    2. Where a passenger in utter disregard of his rights, is forcibly ejected from a street car in such manner as to expose him to ridicule and to impute to him an attempt to commit a fraud by riding-free, punitive or exemplary as well as compensatory damages may be allowed.
    3. A verdict for $500 for forcible ejection from a street car is excessive, where there are no specially aggravating circumstances and no evidence of a studied or systematic evasion of franchise obligations.

      Rogers, Rowley .ib Rockwell, for plaintiff in error.

      A. J. Wilhelm and Grant, Sieber & Mailier, contra.
    Henry, J.; Winci-i, J., and Marvin, J., concur.
   The defendant in error, Peterson, brought his action below to recover damages for unlawful ejection from a street car when he presented an imperfectly punched transfer. The conductor from whom he received it, having lost his punch, gave him the transfer in question with instructions to explain the circumstances to the other conductor who would honor it for him. This he did but was put off. lie recovered a verdict and judgment of $500,

The first error assigned is in permitting Peterson to testify that when thus put off he felt “cheap and kind of ashamed of himself” as if he had “done something wrong.” This direct testimony to his sense of humiliation and indignity was the best possible evidence of the fact in issue. It was neither an opinion nor hearsay. The fact that another than he who suffers perceives no pain, be it either physical or mental, affords no reason why the sufferer himself should not testify. thereto, precisely as any witness may testify to any fact which has come under the observation of his senses whether anyone else was in a position to observe it or not.

The second error assigned is the giving of defendant in error’s request:

“If you believe from the evidence that plaintiff was forcibly ejected from the car by defendant’s conductor and the ejection was done in such a manner and accompanied by such language on the part of the conductor, as to expose plaintiff to the ridicule of other passengers, and imputed to him an attempt to commit a fraud on the defendant by deceiving the conductor with a worthless transfer so as to ride free, you may award to plaintiff punitive or exemplary damages; that is, damages in addition to compensatory damages, for the purpose of punishing the defendant for the wrong done to plaintiff and to furnish an example to deter others from doing likewise. In awarding such, however, you should be extremely cautious and not go beyond the bounds of reason. You may take into consideration reasonable counsel fees to which plaintiff may have made himself liable in prosecuting his claim.”

It is urged that this should have been qualified by inserting the condition that the ejection must have been wilful, or wanton, or in utter disregard of plaintiff’s rights to authorize exemplary damages. But the truth is that if he was put off at all, under the circumstances indicated, his rights were utterly disregarded. There is no middle ground. It is urged further that the element of being falsely "charged with attempting to deceive the conductor with a worthless transfer so as to ride free, was not in the plaintiff’s petition and could not therefore be a proper element of recovery. But we think this was a view of the matter which the jury might well be authorized to take, if they should so find; for, though not a necessary, it is a natural and legitimate deduction from the facts expressly in issue.

It was intimated upon the hearing that this request was open to the criticism that it takes for granted that the ejection was wrongful and that plaintiff’s story of the preceding events was true; whereas in fact that story was for the jury to believe or disbelieve as they might. But on inspection of the bill we find the company’s claim agent, a witness in its behalf, testifying that the transfer (which was in evidence) was in fact issued, in the condition in which it now appears, by a conductor, who, though present at the trial, was not offered by the defendant as a witness. It is evident that in this state of the case the plaintiff in error was not prejudiced by the court’s assumption of a state of facts, which, though formally denied by the answer, was thus virtually conceded to be true to the extent indicated.

A like objection to a paragraph of the charge at page 93 of the bill is not well taken because it begins with the condition, “Tf you find for the plaintiff,” and, therefore, does not contain any assumption which the court was not warranted in making in charging the jury.

Th.e third error assigned consists in the court’s refusal to charge on contributory negligence as requested. The requests are no doubt correct in law. but they have no application to the case made. Peterson knew that his transfer was imperfectly punched, but be relied on the conductor’s assurance that it would nevertheless be honored. It is not a case of negligence at all, on either side.

• The fourth error assigned is misconduct of counsel of plaintiff below in argument to the jury. There was evidently some misconduct. But a carefitl scrutiny of each item discloses that, the improper language attributed to counsel in one or two of the exceptions taken is not expressly averred by the bill to have been spoken as charged. Another instance we think was sufficiently met by the court’s ruling aiid caution to the jury and counsel. Still another did not amount to misconduct; and in the remaining instances the question was not saved, by the reservation ,of proper exceptions. Taking it altogether, while we have no toleration for misconduct of the sort here charged, no reversible error in this behalf is disclosed in this record.

The fifth and final assignment of' error is that the verdict is excessive, evincing bias and prejudice on the part of the jury. We think this is true. This was not a specially aggravated ease. There was no studied or systematic evasion of franchise obligations as to fares or transfers, on the part of the company.

The company is, of course, answerable for its agent’s misconduct, but there is no showing that it inspired or desired such misconduct on the part of its agents in this case. There was no bodily injury inflicted upon Peterson in putting him off. It was all due to misadventure and misjudgment on the part of the two conductors—the one in losing his punch and in making the improvident and ill-judged substitute arrangement for the punching of the transfer in the regular manner, and on the part of the other conductor in not heeding a probable story that was told him by a passenger. To one or the other, or both, the wrongful conduct of the company in putting him off the car to which he was entitled to ride, is chargeable, of course. It was all due to misadventure and misjudgment on the part of two conductors, and not malice or ill-will. Yet the verdict is in amount what would suffice if all these were elements in the case. We think. $150 would cover actual damages and expenses of prosecuting this action, besides penalizing the company up to the full limit for its laxity and the injustice perpetrated, and unless the defendant in error will remit all of his original judgment in excess of $150 the same will be reversed and remanded for error in refusing the motion for a new trial on this account. If remittitur is made the judgment will be affirmed.


text:
    PAY OF COUNTY COMMISSIONERS WHILE SERVING ON BOARD OF EQUALIZATION.
    Court of Appeals for Guernsey County.
    E. D. Stone v. State of Ohio, ex rel Enos, Prosecuting Attorney.
    Decided, April Term, 1913.

      County Commissioners—Allowance for Services as Members of the Quadrennial Board of Equalization—Section 5591 as Amended.

    County commissioners while serving as members of the quadrennial county boards of equalization are entitled to the compensation allowed by Section 5597, General Code, as amended 102 O. L., 279.
    Metcalfe, J.; Norris, J., and Pollock, J., concur.
   Plaintiff is a member of the board of county commissioners of Guernsey county. While serving ,on the board of equalization Stone drew the per diem compensation provided by Section 5597, General Code, for services rendered as a member of that board. It is claimed that county commissioners while serving as members of county boards of equalization are not entitled to the additional compensation provided by that section, and that the only compensation to which they are entitled is that provided by Section 3001, General Code, which fixes their annual salaries. This suit was brought by the prosecuting attorney to recover back the amount paid Mr. Stone as such member of the board of equalization, and judgment was rendered against him in the common pleas court, and he prosecutes error here.

The whole question depends upon the proper construction of the sections of the general code above referred to. The annual board of equalization was created by Section 2804, Revised Statutes, and Section 2813a, Revised Statutes, provided for the compensation of the members. Section 897, Revised Statutes, fixed the annual salaries of the county commissioners, and Section 897-2 provides that the compensation fixed by Section 897 “shall be in full payment of all services rendered as such commissioners.” Section 2813a provides that each member of the county board of equalization shall be entitled to receive for each day necessarily employed in the performance of his duties, including his duties as a member of the board of revision, the sum of three dollars. Section 2813 provided that the auditor, surveyor and commissioners shall compose the county board of equalization. So that before the adoption of the General Code, Section 897, Revised Statutes, fixed the commissioners’ annual salaries, and Section 897-2, Revised Statutes, provided that the salaries so fixed should be in full payment for all services rendered as commissioner, while Section 2813a, Revised Statutes, gave to the commissioners, as members of the county board of equalization, an additional compensation of three dollars per day. The provision of 897 fixing the annual salaries and the provision of 897-2 that such compensation should be in full for all services rendered as commissioner, we find were inserted in those sections by amendment subsequent to the enactment of Section 2813a, and we are inclined to think that under the rule in Thorniley v. State, 81 O. S., 108, operated to repeal that section by implication. However that may be, on the 14th of February, 1910, the General Assembly adopted the General Code, which is a compilation and revision of the laws in force at that time. The work which Mr. Stone did, and for which he received the compensation which is sought to be recovered from him in this action, was after the passage of the General Code, and the amendments hereafter referred to.

In the General Code, Sections 897 and 897-2, Revised Statutes, were re-enacted as Section 3001; and Section 2813a was re-enacted as Section 5597. It is undoubtedly the rule that where there is a general revision of statutes and existing provisions which may be in conflict are re-enacted simply as part of a scheme of codification, that they shall receive the same construction as they would have received before the revision, so that if there had been no further action of the General Assembly with regard to these particular sections excepting their reenactment as parts of the General Code, we think we would be required to hold that Section 2813a was repealed by implication; but after the enactment of the General Code these sections were again taken up by the General Assembly and various amendments made thereto. In Yol. 102 O. L., 514, Section 3001, General Code, was repealed and re-enacted with some slight amendliients. On May 31st, 1911 (102 O..L., 198),. Section 5597 was so amended as to give to the county surveyor, while acting as a member of the quadrennial board of equalization, five dollars per day, and to each member of the board his actual necessary expenses incurred in the performance of his duties as a member of such board; and the provision for the payment of a per diem of three dollars was left out, and the original section repealed, making by this amendment a complete change with regard to the compensation of members of such board. Again, in Yol. 102 O. L., 279, Section 5597 was re-enacted with the provision giving to members of the boards of equalization three dollars per day for their services as members of that board restored as the section 'originally stood. It is our duty to ascertain, if possible, in construing these statutes, the meaning of the law-makers. A familiar rule of interpretation is thus stated in 26 Am. & Eng. Ene. L., 216, “where there is in the same statute a particular enactment and' also a general one which in its unost comprehensive sense would include what is embraced in the former, the particular enactment must be operative and the general enactment must be taken to affect only such eases within its general language as are not within the provisions of the particular enactment. ’ ’

As the law now stands we have one section of the General Code providing that the salaries of the county commissioners shall be full compensation for all services rendered by them as county commissioners. We have two sections both bearing the same number and both enacted on the same day. one of which provides a per diem for the surveyor and for the payment of the necessary expenses of all members of the board, while the other section of the same number provides for a compensation of three dollars a day for each member of the board. It will not help in the interpretation of these statutes to criticize the apparent carelessness with’ which they seem to have been so complicated. We must suppose that the Legislature did not intend to do an unreasonable thing, that it had an object in view in amending and re-enacting these sections. We must presume that the Legislature had knowledge of the provisions of Section 3301, General Code, and amended Section 5597. In the light of that knowledge if the Legislature did not intend that the members of the county boards of equalization should receive the compensation for their services provided by Section 5597, what possible object.- could they have had in mind in re-enacting that section in its original form after it had been repealed and amended with the ' provision for the compensation of the members of the board left out? It is reasonable to suppose that the intention was to provide extra compensation for the. extra labor imposed upon the commissioners as members of the boards of equalization. It either means this, or it is a nullity and it is not a just presumption to assume that the General Assembly simply legislated for the sake of legislating and intending that its work should be meaningless. We think that under the provisions of Section 5597 as amended 102 O. L., 279, that the commissioners are entitled to the compensation therein allowed. Whether this section repeals Section 5597, as amended 102 O. L., 198, by implication, or what effect it has on that section we are not called upon to determine.

The judgment of the common pleas court is reversed.


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    VALIDITY OF THE ACT RELATING TO RAILWAY AND HIGHWAY CROSSINGS.
    Circuit Court of Cuyahoga County.
    The Akron, Canton & Youngstown Railroad Company v. The City of Akron.
    Decided, June 30, 1909.

      Constitutional Law—Railroad Crossing Act.

    Section 4 of an act to provide how railroad and highway crossings may be constructed, as amended April 2, 1908 (99 O. L., 58), is constitutional and valid.

      Grant, Sieber c& Mather and Jonathan Taylor, for plaintiff in error.

      N. M. Greenberger and Allen, Waters, Young & Andress, contra.
    Henry, J.; Marvin, J., concurs; Winch, J., dissents.
   A preliminary question on this appeal involves the constitutionality of ’ ’An act to provide how railroad and highway crossings may be constructed,” particularly of Section 4 of said act, as amended by 99 Ohio Laws, page 58.

It is claimed that this section is- invalid because it attempts to confer legislative power upon the court of common pleas and to enable that court to create the right in railroad or municipal corporations, or both, whereby, under certain circumstances, a railroad and a hiahway may be made to intersect at grade. The general policy of the state, as declared in previous sections of the same act, is to prohibit the construction of grade crossings, and to require a separation of grades in all eases thereafter arising, where railroads and highways • intersect.

Section 4 attempts to provide for exceptions to this rule, and ■it authorizes the court of common pleas, upon proper application by either a railroad or a municipal corporation, to make an order, permitting a crossing at grade, upon allegation and proof that such construction is reasonably required, first, “to accommodate the public,” or second, “to avoid excessive expense in view of the small amount of traffic on the highway or railroad, and considering the future uses to which said highway may be adapted, ’ ’ or third, “in view of the difficulties of other methods of construction, ’ ’ or fourth, 1 ‘ for other good and sufficient reasons. ’ ’

It is clear that if the right to cross at grade in such cases is by the terms of this statute to be created by the court, the statute is invalid, because it attempts to invest a judicial tribunal with legislative power. On the other hand, if the statute is to be construed as a legislative grant of power to cross at grade, subject, in its exercise to the determination by the court of the existence of some one of the statutory conditions, upon which it is made to depend, the law is valid, for the 'sole function thus imposed upon the court is a judicial and not a legislative function.

The phraseology of the statute is such as to invite at first reading the former construction, but we are mindful of our duty to uphold the statute, if it be at all susceptible of the second construction. Heeding this rule we should still incline to the former construction if the case were entirely one of first impression, but the Supreme Court has upheld the validity o E a statute which presents similar difficulties in the case of Fairview v. Giffee, 73 Ohio State, 183. That statute provides, in substance, that the owner of unplatted farm lands lying within the corporate limits of any municipality may file a petition in the court of common pleas, setting forth the reasons why such lands should be detached, and upon notice to the municipal authorities, and a hearing of the cause,' the court may, in its discretion, enter an order that the lands be detached from such municipality, provided the same may be done without material detriment to good government. No express words were employed to indicate that the Legislature intended to create a right to such detachment, nor was there any enumeration of the conditions upon which the exercise of such right was made to depend, yet the Supreme Court read these things into the act, and held that the Legislature had created a legal right in the owners of unplatted farm lands, lying within the corporate limits of a municipality, to have the same detached, where good reason exists, one manifest reason therefor being to r.elieve such owners from the burdens of unfair taxation. When, therefore, the- court upon application, should find that such reason existed and no material detriment to good government would arise from detachment, it could not properly withhold the order permitting such detachment, for the discretion given to the court by the statute was a purely judicial discretion.

We forbear extended discussion of the authorities cited in that case as well as of those cited to us by counsel in this case, and content ourselves with stating merely that a majority of the court are unable to escape the application of the rule of Fairview v. Giffee to the case before us.

We hold Section 4 of the act to provide how railroad and highway crosings may be constructed is constitutional and valid, and the objection to the sufficiency of the petition and to the introduction of evidence thereunder is overruled.

A master commissioner will be appointed to examine the matter of the application presented by the petition herein and to report the evidence taken by him, together with his conclusions of law and of fact as to whether or not the grade crossing petitioned for is reasonably required for any of the causes enumerated in the act.

We believe that the general policy of this state in respect to the abolition of grade crossings is such that such crossings should not be uermitted unless a clear case under the statute is made out. .


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    CLAIM OF OVERPAYMENT IN SUIT ON AN ACCOUNT.
    Circuit Court of Cuyahoga County.
    The George J. Renner Brewing Co. v. Dennis Michynak.
    Decided, January, 1909.

      Cross-Petitiom—Overpayments on Open Account Made by Mistake—No Demand for Repayment Necessary.

    In an action on an account, with counter-claim for overpayments, where it appears that the overpayments were not voluntary, but were made by mistake, while the account was still open, no demand for their repayment is necessary to entitle the defendant to enforce repayment.

      Grant, Sieber cfi Mather, for plaintiff in error.

      Otis, Beery <& Otis, contra.
    Henry. J.; Winch, J.. and Marvin, J., concur.
   The action below was upon an account for beer sold and delivered to the defendant in error, a saloon-keeper, by the plaintiff brewing company. The former counter-claimed for overpayments made upon said account and recovered a verdict and judgment.

Error is assigned upon the insufficiency of the counter-claim; but we think that the record sufficiently shows that the over-payments were not voluntary and were made by mistake. No demand for their repayment was necessary before suit brought, for the account was open, with debits and credits on each side.

Error is also assigned upon the. admission of testimony o£ plaintiff’s witness, Mary Kinney, who as a bookkeeper had examined the books of both parties and testified to her computations made therefrom. We have carefully read her testimony and find it competent under the rules laid down in Lawson on Expert and Opinion Evidence, p. 186.

It does not appear that her written summary of the computations was received in evidence after objection made thereto. Her oral testimony as to the fact of overpayment is, however, clear, and though the amount is apparently stated at one point in the record to be $2.40 (a sum less than the verdict), it is elsewhere made plain, not only in her testimony but, somewhat less clearly, in that of the defendant himself, that the final balance is substantially as the jury found it to lie.

There is indeed an irreconcilable conflict in the whole evidence as to the true state of the accounts between the parties, but we can find no sufficient reason to disturb the verdict as being against its weight.

The charge of the court is complained of, first, because of the term “preponderance of evidence” was used without definition; but the court mentioned as his reason for omitting generalities that the jury had been sitting in many cases, and counsel did not ask for elaboration.

It is further complained that the court, without warrant from the evidence, imported into the issue “items in dispute in regard to deliveries of beer”; but the record shows plainly that there was such dispute, not indeed as to the fact of deliveries, but whether certain of them did not antedate a former full settlement.

The court, it is also urged, committed error in referring to drivers ’ discounts on collections, and corrections of credits to the defendant so as to include the same; but the testimony of Miss Kinney and the books of the parties clearly raise the question of fact to which this instruction properly applies. It was' for the jury to decide whether there were any such rebates not credited.

We find no error in the record -and the judgment is affirmed.


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    UNAUTHORIZED PURCHASE OF A BOWLING ALLEY.
    Circuit Court of Summit County.
    The Akron Brewing Company v. The Brunswick-Balke-Collender COMPANY.
    Decided, January, 1909.

      Implied Authority of Agent of Brewing Company.

    There is no implied authority in the manager of a brewing company to order a bowling alley installed in connection with a saloon.
    Henry, J.; Winci-i, J.. and Martin, J., concur.
   The action below was brought by the defendant in error on an account to recover the price of a bowling alley installed in connection with the saloon of one Eliza Lee upon the order of William Fuchs, manager of the plaintiff in error. The main issue was upon the agent’s authority. The evidence discloses no express authority to make this purchase; nor, in view of the provisions of Section 7000, Revised Statutes, prohibiting bowling alleys in connection with saloons, is such authority to be inferred. There was no express ratification, nor, since the plaintiff in error did not itself get and lias not used th.o bowling alley, is any implied.

The judgment below, not being sustained by sufficient evidence, is reversed and the cause remanded.


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    ACTION FOR. JEWELRY LEFT IN SLEEPING CAR.
    Circuit Court of Summit County.
    The Pullman Company v. George H. Goble, Administrator.
    Decided, January, 1909.

      Liability of Sleeping Car Company for Jewelry Left in Berth—-Evidence.

    A verdict against a sleeping car company for tbe value of jewelry left in a berth by a passenger and alleged to have been stolen by the porter, will be set aside where the only evidence that the porter stole the jewelry is the fact that he, in common with passengers on the car, had an opportunity of stealing it.

      Otis, Berry &.Olis, for plaintiff in error.

      G. M. Anderson, contra.
    Henry, J.; Winch, J.. and Marvin, J., concur.
   The action below ivas brought to recover the value of personal jewelry alleged to have been stolen by the porter of a sleeping car from the defendant in error’s intestate, a passenger. On retiring, she put the jewelry in a bag by her side between the sheets of her lower berth, and neither saw nor thought of the same again till several hours after leaving the train the next morning at dawn. The porter, appearing at her berth, waked her before light, and repeatedly urged her to make haste in rising and completing her toilet. He warned her that-the train was near her destination, and rapped loudly several times at the door of the woman’s dressing room to which she had repaired. The lights in the car having failed he liad provided her with a candle, and later at her recpiest, he searched in and about her berth for some of her hat pins. She was ready in ample season to leave'the car when her stop was reached; and, after she had alighted, the porter passed her hand baggage to her .from the' ear steps, but did not carry it to the waiting room as she desired.

Meanwhile three other passengers were aroused by the noise thus made; and when the porter returned, one of them saw him apparently making up the berth which had been vacated, though it seems that the upper berth was still occupied. There may be some other slight circumstances relied on to cast suspicion on the porter; but, aside from his more convenient opportunity to steal the jewelry, there is scarcely more reason to charge him with such theft than any of-the other occupants of the ear. Neither he nor they saw or knew of the jewelry beforehand. The jury’s verdict is purest guesswork, and because it is not supported by sufficient evidence, the judgment is reversed and the cause remanded.


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    STATUS OF FRATERNAL ORDER. TRUSTEES.
    Circuit Court of Summit County.
    The Akron Printing & Paper Company v. The Supreme Council of the Chevaliers et al.
    Decided, January, 1909.

      Trustees of Fraternal Order Not Personally -Liable for its Debts.

    The provision of Section 3261, Revised Statutes, that the trustees of a corporation created for a purpose other than profit shall be personally liable for all debts of the corporation by them contracted, has no application to fraternal orders incorporated under the laws of the state.
    Henry, J.; Winch, J.. and Marvin, J., concur.
   The plaintiff company seeks to subject- the liability of trustees of the defendant fraternal order, which is insolvent, to the payment of its account against the order. Section 3261, Revised Statutes, provides that “the trustees of a corporation created for a purpose other than profit, shall be personally liable for all debts of the corporation by them contracted.” The main issue is whether this general provision in the first chapter of Title II on Corporations applies to Sections 3631-11 to 3631-23®, in the tenth chapter of the same title, where the act respecting fraterna1 orders (92 O. L., 360, replaced later by 97 O. L„ 420) is inserted in Bates’ Statutes.

Originally this act (92 O. L., 360) did not purport to stand related to any portion of the Revised Statutes, except that it provided negatively that fraternal orders should not “be required to malte any report unde]’ this or any other section of the insurance laws,” thereby referring evidently to said chapter 10 of Title II aforesaid, entitled “'life insurance companies.” Tt was plainly intended to be an independent act for the government of fraternal beneficiary associations. And though the amended act (97 O. L., 420) refers expressly to the sectional numbers annexed by Bates’ Statutes to the original act, we attach’ no importance to that circumstance. Any such association was by the act “declared to be a corporation, society or voluntary association, formed or organized and carried on for the sole benefit of its members and their beneficiaries.” It was further provided that “Each association' shall have a lodge system, with ritualistic form of work and representative fomi of government, and may make provision for the payment of benefits, ’ ’ etc. For an existing unincorporated association the assumption of a technically corporate character under the.act seems to have been optional, and the manner of corporate organization therein provided differs materially from that prescribed by the general corporation laws, though it is akin, at least, to that of non-stock corporations not for profit..

As to any association which should assume this corporate character, the provision of Section 3 of Article XIII of the Constitution, both before and. since its recent amendment regarding the security to be prescribed by law for dues from corporations, was and is met by the requirement that the payments of benefits and expenses shall be made out of a separate fund “derived from assessments, dues, or other payments collected from its members.” The amended act, it is true, expressly provides that officers shall not as such be personally liable for the payment of the benefits; and from this we are asked to infer that they are liable for expenses under Section 3261. While there is force in this argument, it has no application to the original act, and we think there ■ is no sufficient intention manifested in the amended act to enlarge the liability in this behalf. On the contrary, the provision in Section 1 of the original act, that "such associations shall be governed by this act” is amplified by Section 4 of the amended act so as more clearly to exclude the applicability of other laws by prefixing thereto the words "except as herein provided.”

While the ease before us is by no means so clear as Bernard v. Schwartz et al, 22 C. C., 147, and The Mfr’s Fire Ass’n of Akron et al v. The Lynchburg Drug Mills, 8 C. C., 112, we nevertheless apply the rule laid down in those cases and hold that Section 3261 has no application to fraternal orders incorporated under these statutes. The petition will be dismissed.


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    ENFORCEMENT OF UNIFORM RESTRICTIONS ON LOT OWNERS.
    Circuit Court of Summit County.
    Hannah Carmichael v. Philander D. Hall et al.
    Decided, January, 1909.

      Uniform Restrictions as to Lots in an Allotment—Enforcement of Same Against Alloters—injunction.

    Tire rights of a purchaser of a lot in an allotment as to which the owners have adopted a uniform scheme of restrictions and limitations, made binding upon her by covenant in her deed, but not therein expressly covenanted to be binding upon the allotment owners, to compel said owners to impose similar restrictions upon all lots sold by them does not rest in contract, nor consist of an estate or easement in other lots, but flows from the inequity of allowing the abandonment of a uniform scheme of restrictions after the owners of the allotment have sold part of the lots on the faith of its enforcement as held out by them to the particular purchaser or the public at large.
    Henry, J.; Winch, J.. and Marvin, J., concur.
   Judgment below was entered upon demurrer sustained to the petition. The action was brought by the purchaser of the first lot sold in the defendants’ park allotment, to enjoin them from violating their uniform scheme, of restrictions and limitations applying to said allotment as held out to plaintiff and made binding1 upon her by covenant in her deed at the time of her purchase, but not therein expressly covenanted to be binding also upon ihe defendants.1 The demurrer is founded upon the assumption that a writing is necessary to create in the grantee under such circumstances a reciprocal right, because such right is au interest or easement in the land under the statute of frauds. The truth is that plaintiff’s right need not.rest in contract nor consist of an estate or easement in the remainder of the allotment. Her rights flow rather from the inequity of allowing the abandonment of a uniform scheme of restrictions after the owners of an allotment have sold part of the lots on the faith of its enforcement as held out by them to the particular, purchasers or the public at large. And even if such an equity in the grantee be regarded as an equitable estate in the; allotment there is nothing in our statute of frauds requiring it to be evidenced by a writing. We have more than once enjoined violations by allotment owners of their uniform schemes of restrictions under just these circumstances.

The judgment is reversed and the cause remanded with instructions to overrule the demurrer to the petition.


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    ACTION ON A FIRE INSURANCE POLICY.
    Circuit Court of Medina County.
    The Union Insurance Company v. Catherine Billman.

    Decided, 1909.

      Fire Insurance Policy—Waiver of Prompt Payment of Premium—Negligence of Company’s Agent.

    There may be a recovery on a fire insurance policy, though the premium was not paid to the company’s agent until after due and after the fire, where it is shown that the company’s agent received the premium and remitted it to the company, which returned it to the agent with instructions to refund it to • the insured, but the agent failed to tender it to the insured until six or -eight months after the fire and long after suit brought, such tender then being refused.

      J. IF. Seymour, for plaintiff in error.

      John O. Liséy and Grant, Sieber c6 Mather, contra.
    Henry, J.; Winch, J.. and Marvin, J., concur.

      Affirmed without opinion, Union Insurance Co. v. Billman, 82 Ohio State, 451.

   Tbe relation of the parties here is the reverse of their relation below. The defendant in error recovered a verdict and judgment on an insurance policy for a partial loss by fire. Her third amended petition, which embodied the policy, shows that after the fire she paid to the plaintiff in error’s agent an assessment which was then so long overdue that (as decided on a former review of this case) her insurance stood suspended. But the plaintiff alleges waiver. The agent remitted the money to his company, which, however, returned to him the portion 'covering the destroyed property, with instructions to return it to the insured. This he failed to do until six or eight months after the fire, and long after suit brought, and then, upon tender, the insured refused to receive it". This delay was shown by the company’s own witness and stands undisputed; and the other facts above recited are conceded.

There eoulcl be no issue as to the making of the assessment or the giving of notice, in view of the admissions in the third amended petition.

The plaintiff’s ownership and the value of the property destroyed were disputed, but were found by the jury upon competent evidence and upon a charge which was as to these matters correct. The court’s charge as to waiver contained no error prejudicial to the company. Union Mutual Life Ins. Co. v. McMillen, 24 Ohio St., 67; Phoenix Ins. Co. v. Heffler, 2 C. C., 131; 2 Joyce on Insurance, 1375, note 217; Phoenix Ins. Co. v. Tomlinson, 125 Ind, 84; Phoenix Ins. Co. v. Lansing, 15 Neb.; 494; Union Fire Ins. Co. v. Block, 109 Pa. St., 535; German Ins. Co. v, Shader (Neb.), 60 L. R. A., 918; Johnston v. Phelps Co.,—; Farmers Mut. Ins. Co. (Neb.), 56 L. R. A., 127; Schoneman v. Western Horse Cattle Ins. Co., 16 Neb., 406; Western Horse & Cattle Ins. Co. v. Scheidle, 18 Neb., 495; Phoenix Ins. Co. v. Dungan, 37 Neb., 473.

The corporation is bound by its agent’s negligence. Citizens Savings Bank Co. v. Blakesley, 42 O. S., 645.

Though the burden of proving "the alleged waiver was upon the plaintiff (The Eureka Fire & Marine Ins. Co. et al v. Baldwin, 62 Ohio St., 368, 383; Mehurin v. Stone, 37 Ohio St., 49, 50), and ordinarily in such ease the court can not direct a verdict for the plaintiff, nor refuse a motion for a new trial after a verdict for plaintiff founded upon an erroneous charge, yet this being a case wherein the facts are conclusively determined in a manner not affected by material error, the application of the law to such facts could only result in the verdict which the jury in fact rendered (Cinti Gas & Elec. Co. v. Archdeacon, Admr., 80 Ohio St., 1) and the judgment is affirmed.


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    WOMAN CUSTOMER. INJURED IN DEFENDANT’S STORE.
    Circuit Court of Cuyahoga County.
    The M. O ’Neil & Co. v. Mary Perry.
    Decided, October 11, 1909.

      Personal Injuries—Negligence—Married Woman Whose Husband, Has Deserted Her May Recover for Loss of Own Services.

    In an action for damages resulting from personal injuries, a married woman, whose husband has deserted her, may recover for loss of her own services.
    Musser, Kimber & Huffmmi, for plaintiff in error.
    Sidles, Green ■,<& Sidles and W. II. Talbol. contra.
    Henry, J.; Winch, J.. and Marvin, J., concur.
   Mrs. Perry while a customer in defendant’s store, stepped into an opening in the floor in one of the corridors and sustained injuries to her ankle. The hole was open for the purpose of putting in a water pipe for a sprinkling system in the store. Mrs. Perry recovered a verdict and judgment of $3,000 in the court below. She claims that the hole was not properly barricaded and that the place was poorly lighted. Much evidence both ways on these points was produced below, and there are some inconsistencies in Mrs. Perry’s own testimony, but we can not say that the weight of the evidence is manifestly inconsistent with the jury’s verdict, in regard either to the company’s alleged, negligence or the alleged want of care on the part of the plaintiff below. Her view of the hole, even in the place where sufficiently lighted, seems to have been so obstructed -by the presence of some other woman, also a customer in the store, that we can not say she would have observed it by the proper use of her- senses. So, too, while there may have been some barricade before the hole, she appears to have walked into it, not directly, but by reason of changing her direction in response to somebody’s call and suggestion as to where she might find the elevator which she was seeking.

It is also claimed that the jury’s verdict is contrary to the weight of the evidence in respect of the issue made by the pleadings as to the validity of a certain release of liability signed by Mrs. Perry. She is unable to read and. write, except to the ex tent of signing her own name. She declares that the release was not properly read to her, but that only the first words thereof, which recited the receipt by her of money from the plaintiff in error were read. Whatever doubts we may have about the truth of her testimony in this regard, we are not warranted by the direct conflict of evidence on this point in saying that the jury’s finding is plainly and manifestly wrong.

The only remaining assignment of error relates to the measure of damages. It is said that the plaintiff was allowed to prove and to recover for the loss of her own services, etc., which in law belonged exclusively to her husband. But the truth is, as shown by her testimony, that her husband deserted her about two months after the accident, and it is admitted that the amounts paid her from time to time before suit was brought were intended to and did pay the wages of a servant whom she employed during that period -to render those services in so far as they could form an element of her recovery in this actioti, and we must presume that the jury has not allowed a second compensation for the same loss of service. The husband by his desertion clearly forfeited whatever rights in this behalf he might have had, covering the period that has since elapsed. The court’s charge is not open to the criticism that he expressly instructed the jury that Mrs. Perry might recover for loss of service, and as for the evidence in that behalf which was admitted, we think the jury could not have failed to gauge it correctly when all the facts were considered together. There was no error in this particular.

Neither is the verdict so clearly excessive as to evince passion or prejudice on the part of the jury. It is true that a former jury awarded only about one-quarter of the amount allowed by this one, but in the meantime the effects of Mrs. Perry’s injuries have persisted and it appears from the testimony of the physicians that they are likely to be permanent.

The judgment below is affirmed.


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    WANT OF JURISDICTION TO VACATE JUDGMENT.
    Circuit Court of Summit County.
    William Schliewe v. W. Frank Poole.
    Decided, October 11, 1909.

      Vacating Judgment Obtained by fraud—Motion Filed More Than Three Bays After Next Term.

    It is error to vacate a judgment for fraud in obtaining it on motion filed more than three days after the beginning of the next term of court.

      Holloway & Chamberlain, for plaintiff in error.

      J. A. H. Myers, contra.
    Henry, J.; Winci-i, J.. and Marvin, J., concur.
   This litigation originated in a justice’s court. After judgment it was appealed to the common pleas court, where petition ■ was filed September 26, 1908, and for want of answer or demurrer, judgment was rendered December 21, 1908, during the September term of court.. A motion to vacate said judgment was filed February 13, 1909, more than three days after the beginning of the January term; and later this motion was granted, upon the ground set forth in the ^motion. This ground was that the parties had agreed that no pleadings should be filed nor anything done in the action, pleading negotiations for settlement, but that during the progress of those negotiations the plaintiff, without the knowledge of the defendant, filed his petition and subsequently took judgment.

The error here assigned is that the court of common pleas had no jurisdiction to vacate a judgment upon a motion filed more than three days after the beginning of the next ensuing term of court. This is true with respect to the third ground mentioned in Section 5354 of the Revised' Statutes for vacating or modifying judgments after term, to-wit, “For mistake, neglect, or omission of the clerk, or irregularity in obtaining a judgment or order.”

It is not true of the fourth ground mentioned in said Section 5354, i. e., “for fraud practiced by the successful party in obtaining the judgment or order.” See Sections 5357.and 5358.

Follett v. Alexander et al, 52 Ohio St., 202, affords an illustration of such irregularity in obtaining judgment as will authorize its vacation on motion filed more than three days after the commencement of the next succeeding term.

Ralston v. Wells, 49 Ohio St., 298, affords illustration of fraud practiced by the successful party in obtaining judgment, necessitating the filing of a petition and the issuance of summons, if the proceedings to vacate are begun at a subsequent term.

The ease before us comes within the latter category, and the application here having been made by motion instead of by petition, it is apparent that the court below was without jurisdiction to entertain it.

A further reason why the judgment below should be reversed is found in the non-observance of Section 5360, Revised Statutes, which provides that, “A judgment shall not be vacated on motion or petition until it is adjudged that there is a full defense to the action in which the judgment is rendered,” etc. Follett v. Alexander et al, supra.

The vacating of the judgment in this case was therefore erroneous and void for want of jurisdiction.

The judgment to that effect will therefore be reversed and the original judgment restored in full-force and effect.


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    INJURY TO A TENANT THROUGH HER OWN NEGLIGENCE.
    Circuit Court of Summit County.
    Sarah A. Dawson v. Frank A. Seiberling.
    Decided, October 11, 1909.

      Landlord and Tenant—Personal Injuries—Landlord Not Liable, When.

    A tenant of part of a building can not recover damages against her landlord for personal injuries received by her from .the falling over upon her of a heavy radiator standing unfastened to anything in a common hallway of the building, where the evidence points more strongly to her own negligence than to any other cause of the accident.

      Musset', Kimber Huffman, for plaintiff in error.

      Slabaugh, Seiberling c6 Huber, contra.
    Henry, J.; Winch, J.. and Marvin, J., concur.
   The plaintiff in error rented lodgings in the building of the defendant in error. She left her apartment and came out into the common hallway, the control or custody of which the defendant retained, and attempted to shut the front door in order to bar out a dog which annoyed her by barking and running in and out of her apartment. A radiator weighing about 200 pounds stood on the floor back of the open door; it was three or four feet high and one foot broad at its base; it was not fastened to the floor or wall. The door was sometimes held open by a brick. After the accident it appeared that someone had tied it open by a cord attached to the knob and to the radiator, at least the broken parts of such cord were found after the accident, one part tied to the knob and the other part to the radiator. Somehow the radiator fell over while the plaintiff in error was trying to move the obstruction, whatever it was, and her ankle was caught and crushed thereunder. A verdict for the defendant below (defendant in error here) was directed' at the close of plaintiff’s evidence. We think there was no error in this ruling. The plaintiff in error wishes us to take the view that the radiator was so dangerous a thing, when left standing upon its base unfastened, as to make the question of negligence in so leaving it a matter for the jury to decide, particularly in view of the possibility that the door knob might somehow engage with it in such a manner, as to pull'it over when the door was closed. We db not take this view. A radiator of this description is not in so unstable equilibrium as to fall over without some force being exerted to push or pull it over and the possibility of the knob of the door engaging with the radiator, or the door itself, when open, pushing it over against the wall in such manner that when the door was closed it would not merely recoyer its upright position, but balance over in the opposite direction, and so fall to the floor, is a speculation too remote to require submission to a jury. Moreover it is reasonably evident that the plaintiff in error, supposing that the door was obstructed by a brick on the floor, when in fact it was tied to the radiator, exerted such force in trying to shut the door as to pull the radiator over. This, at least, seems to us to be the most reasonable supposition from the evidence.

It does not appear that the defendant in error was in any way responsible for the door being thus tied, if it was tied. The judgment below is affirmed.


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    DAMAGES FOR INJURIES TO A PASSENGER.
    Circuit Court of Lorain County.
    The Cleveland Southwestern & Columbus Railway Company v. Sanford G. Gibson.
    Decided, December 28, 1909.

      Excessive Verdict—Passion or Prejudice of Jury Must be Shoion.

    A judgment in a personal injury damage case should not be set aside because of a claim that the verdict is excessive, simply because the reviewing court is of opinion that it would not have awarded so much, no passion or prejudice on the part of the jury being shown.
    Henry, J.; Winch, J.. and Marvin, J., concur.
   This proceeding in error is brought to reverse a judgment obtained by the defendant in error, Gibson, against the plaintiff in error, the C. S. W. & C. Railway Co., for damages on account of injuries sustained by the former while a passenger in one of its ears, which came into collision with another of its cars.

Three errors are alleged:

First, that the verdict of $4,500 is so excessive as to be indicative of passion and prejudice on the part of the jury. The bill of exceptions consists largely of testimony of physicians. There is a sharp conflict in the evidence, the plaintiff below claiming that his injuries are both varied and permanent, whereas the defendant below contended that he sustained no permanent injuries whatever. A great deal of evidence was also produced to impeach the reputation of the plaintiff below for truth and veracity, insomuch that we wonder that the jury nevertheless appeared to give some credence to his testimony. Apart from this, however, we have examined enough of the medical testimony to see not only that the doctors disagree, but that their diagnoses of Gibson’s injuries are utterly irreconcilable. If the jury believed the testimony of his physicians, as doubtless they did, the verdict should not be reversed as being against the weight of the evidence; it would be simply to embrace the other hQrn of the dilemma. If we were to require a remittitur it would be upon the theory that the medical testimony on neither side is to be believed, but that the truth lies part way between. The solution of difficulties of this sort is pre-eminently for the jury. We are not permitted to set their verdict aside simply because we would have rendered an opposite verdict, nor yet because the amount of damages is greater than we should have awarded upon the same evidence, but only when we are brought to the conclusion that the jury must have been actuated by passion or prejudice. This we are far from being able to say in the present case.

The second assignment of error is upon the failure to grant a new trial because the verdict is not only contrary to the weight of the evidence, but because it is not supported by any evidence. The theory of the plaintiff in error is that the accident was due not to its .negligence but to an act of God. The negligence, if any, was that of the motorman of the car which collided with the one in which Gibson was a passenger. He was aware that he was approaching the place where he was to meet two cars going in the opposite direction, but when he came near enough to make it necessary to apply his air-brakes lie found that they refused to work, and before he had time to take other measures, such as to throw on the power and reverse the motor, the collision occurred. It was afterward discovered that the reason why the air brakes would not work was that a hole had been burned in the air hose line underneath the ear, and this in turn was caused by the last of three flashes of lighting which had struck the car a short distance before it came to the scene of the collision. The motorman testified that he was aware of the fact that the car had been thus struck and that he had twice restored the circuit overhead when it was blown out by strokes of lightninb. But though he had tried his brakes and found them all right at the B. & 0. crossing, two or three minutes before the accident, he had no knowledge that they had been put out of commission by the lightning stroke thereafter, until it became too late to prevent the collision.

If.the jury believed this story it would undoubtedly have authorized a verdict for the defendant below. The question was put squarely before them by proper charge of the court. It was in testimony that accidents to the air hose are extremely rare from this cause, but that the motorman might at any time by trying his brake have discovered that it was out of order. Unless the jury were prepared to say from this evidence that it rebuts the presumption of negligence which the law attaches to a collision, to fasten liability upon a common carrier of passengers for damages to a passenger which are caused 'by such collision, their verdict for the plaintiff below was of course warranted. The motorman’s credibility as a witness was a question for their determination. The accuracy of his memory and recital of the facts was also a question for them to take into consideration. They had, in short, to balance the presumption of law against the excuse which the motorman’s testimony affords. They found that excuse insufficient, either because they did not believe the motorman’s testimony, or because they thought that ordinary care would require him to test his brakes frequently during the electrical storm.

As on the question of the amount of the verdict, already con-considered, it may be said again here that we are not authorized to reverse a judgment because a contrary, verdict might well have been rendered, or even because we should have rendered such contrary verdict had we been in the jury’s place. It is idle to say that there is no evidence to support the verdict, when the presumption of law alone, if’unrebutted, would sustain it. It is likewise impossible for us to say that the testimony of the motorman was binding upon the jury and afforded such complete rebuttal of the presumption as to necessitate a judgment against the plaintiff below for failure to sustain a burden of proof that rested upon him.

The third error assigned is newly-discovered evidence reflecting upon the character, of the injuries sustained by the defendant in error and upon his veracity. This was, of course, cumulative, and therefore it was within the sound discretion of the court below to determine whether a new trial should be granted because of such additional evidence newly discovered.

Furthermore, we think the court below may well have inferred that the evidence would have been discovered in time to have been produced at the trial, if proper diligence had been used. At all events, we are not authorized to reverse the judgment below because the court failed to grant a new trial upon this ground alone, since we do not find that, there was any abuse of his discretion in that regard.

We find no error in the. record before us and the judgment is affirmed.


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    LIEN OF ALIMONY TO WIFE.
    Circuit Court of Lorain County.
    Albert M. Webster v. Ada M. Miller.

    Decided, December 28, 1909.

      Alimony—Division of Property.

    A money judgment rendered in a divorce and alimony ease, payable in installments, made a lien on the husband’s property and with express provision for execution, rendered in favor of the wife, though the divorce is granted to the husband, will be sustained as a division of properly between the parties under favor of Section 5700, Revised Statutes.
    Henry, J.; Wincit, J.. and Marvin, J., concur.

      Affirmed without opinion, Webster v. Miller, 83 Ohio State, 473.

   Early in the present term of court this cause, was heard and it was orally announced from the bench that the plaintiff was entitled to judgment, and an opinion to that effect was handed down. Afterwards two of the judges who participated in that hearing, requested a re-argument, because of doubts as to the correctness of the court’s decision. The case has therefore been re-argued and we are now confirmed in the belief that the court erred in its former decision.

This is an action to enjoin the collection of a judgment purporting to be for alimony to the defendant here, Ada M. Miller, awarded notwithstanding that by the same decree a divorce was granted to the plaintiff, Albert M. Webster, for his wife’s aggression.

In view of the construction placed by the Supreme Court upon Sections 5700 and 5702. Revised Statutes, in the case of Hassaurek v. Markbreit, 68 Ohio St., 579, it is plain that no alimony could rightfully have been allowed to the wife under such circumstances.

The sole question here is whether or not this award to the wife, though denominated alimony, may not be upheld as amounting to a division of property under Section 5700. This is the same question as arose in Kelso v. Lovejoy, 29 C. C., 597, affirmed by the Supreme Court in 76 Ohio St., 598. There the award to the wife against whom a divorce was granted by the same decree was denominated alimony, and there also it was payable in in-' stallments.

It is claimed here, however, that the case before us is distinguished in that the decree provides for three other things which render it still more inconsistent with the idea that it was intended or may be regarded as an award to the wife of a share in her husband’s property, rather than as alimony. These are the three elements:

1. That a money judgment in favor of the wife and against the husband was in terms rendered.

2. That said judgment is in terms made a lien upon the husband’s property, and

3. That express provision is made that execution may issue for the collection of said judgment.

But we see no necessary inconsistency between any or all of these elements in the decree and the construction of the entire judgment as the award of a share of the husband’s property. If, for example, such property consist of money, what possible objection can be raised to the rendition of a money judgment for such share thereof as the court determines to award to the wife? What good reason can be urged why such a judgment should not possess the usual incidents of money judgments, to-wit, a lien upon the real estate of the judgment debtor, and the right, of the judgment creditor to issue execution for the collection of the sum adjudged to be due?

If the case of Kelso v. Lovejoy et al was properly decided, as must be conceded, since the Supreme Court has affirmed it, the main objections to the validity of the judgment here assailed are overcome, and the facts in this case afford no sufficient ground for distinguishing it. The petition will therefore be dismissed.


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    REVIEW OF ADDITION TO TAX RETURN.
    Court of Appeals for Hamilton County.
    The Standard Oil Company v. Hopkins, Treasurer.
    Decided, April, 1913.

      Taxation—Injunction Lies to Set Aside an Arbitrary Addition to a Tax Return—Section 1465-1, et seq.

    The allegation, that an addition has been made to the plaintiff’s tax return, arbitrarily and capriciously and without any evidence or information to warrant so doing, states a good cause of action and is not open to demurrer.

      C. W. Baker, for plaintiff in error.

      Thos. L. Pogue, Prosecuting Attorney,- and John V. Campbell and G. A. Groom, Assistant Prosecuting Attorneys, contra.
    Swing, J.; Jones,. E¡ EL, J., and Jones, O. B., J., concur.
   This was an action by way of injunction to enjoin the collection of taxes which the plaintiff claims were illegally assessed against it. The gist of the action is- set forth in the following allegation: “On the 30th day of September, 1912, the said board of review, arbitrarily and capriciously and without any evidence or information whatsoever to warrant such action, added the sum of $4,123 to the tax return of plaintiff.”

To this petition a demurrer was filed.

The petition states a good cause of action, and injunction is the proper and only remedy (14 C. C., 94; 35 O. S., 474; 55 O. S., 466). The law passed May 11, 1911 (102 O. L., 224), makes no provision by which the tax-payer may have his case reviewed by the state tax commission either by error or appeal, and does not take away from the tax-payer his right by injunction to set aside an illegal act by the board of review, ' .

Demurrer overruled,


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    PROSECUTION FOR ILLEGAL SALE OF INTOXICATING LIQUORS.
    Court of Appeals for Ashtabula County.
    Michael Deniel v. The State of Ohio.
    Decided, September 11, 1913.

      Procedure in Prosecution for 'Violation of an Ordinance Against Sale of Intoxicating Liquor—Effect of Refusal Toy the Common Pléas of Leave to Pile Petition in Error.

    Where one who has been tried and convicted before a magistrate for violation of the law against th© sale of intoxicating liquors, applies to the court of common pleas for leave to file a petition in error to review the proceedings and judgment of the magistrate, and the court to whom the application is made refuses to grant leave to file a petition in error, such refusal is not reviewable on error in the court of appeals.

      Mr. Mygatt, for motion to strike off.

      Chadman dt Appleby, contra.
    Norris, J.; Pollock, J., and Metcalfe, J., concur.
   Motion for leave to file petition in error to review the refusal of the- court of common pleas to permit a petition in error to be filed in the same case and motion to strike off that motion.

Deniel was convicted before a magistrate of violation of the law against the sale of intoxicating liquors. He made application to thé court of common pleas for leave to file a petition in error to review the proceedings and judgment of the magistrate, which leave was refused. Application was made to this court for leave to file a petition in error to review that refusal, and motion made to strike off the motion for leave.

We had supposed that the question of granting leave in such a case was settled by the Supreme Court in the case of Village of Canfield v. Probst, 71 O. S., 42, the syllabus of which is as follows:

11 Where one who has been tried and convicted before a mayor of a municipal corporation for violation of an ordinance, applied under Section 1752, Revised Statutes, to the court of common pleas, or a judge thereof, for leave to file a petition in error to review the proceedings and judgment of the mayor, and the court or judge, to whom the application is made refuses to grant leave to file the petition in error, such refusal is not reviewable on error in the circuit court.”

Now, it is urged that there is a distinction between this ease, which is a prosecution for violation of the liquor law, and a prosecution for violation of the village ordinance, but the Supreme Court does not put the decision in the Canfield case upon any such distinction -as is urged by counsel. In this case application was to be made to the court. In the Canfield case it might have been made to the coqrt or a judge thereof, but what may the court review? Section 6707, Revised Statutes, provides :

“An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, is a final order which may be vacated, modified or reversed as provided in this title.”

Now, the Supreme Court in the Canfield ease say that there was no action pending, simply an application for leave to file, and it could not be claimed that it was an order made in an action, and they say:

“The application for leave to file a petition in error, can not be dignified by the name of a proceeding, special or otherwise. The term ‘special proceeding’ is sometimes defined as a proceeding in a court which was not, under the common law and equity practice, either an action at law or a suit in chancery. The term is used in code states in contradistinction to ‘action.’ The defendant in error sought to institute a proceeding. He could do so' only upon leave of the common pleas court or a judge thereof. The asking leave is not a special proceeding and does not become such until the door of the court is opened for its entrance. ’ ’

Now, it would seem that this reasoning applies with equal force .to proceedings under the liquor law, which provides that no petition in error can be filed without leave of the court, and when such leave is refused there is nothing for a higher court to review.

See also the case of Walder v. State of Ohio, 82 O. S., 452, where the Supreme Court applied the reasoning in the Canfield ease to.a case for violation of the law prohibiting the sale of intoxicating- liquors. There is a further reason that under the new Constitution the jurisdiction of the court of appeals is expressly limited as follows:

“The court of appeals shall have original jurisdiction’in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery eases, and to review, affirm, modify or reverse the judgments of the court of common pleas.”

As we have already found, there was no judgment of the court of common pleas in this case, so that there was nothing for this court to modify or reverse. The motion to strike off the motion for leave to file a petition in error will be sustained and the motion stricken off.-