text:
    ACTION BY DAUGHTERS TO RECOVER DIVIDENDS COLLECTED AND USED BY THEIR FATHER.
    Circuit Court of Hamilton County.
    Pearl R. Lamkin v. John F. Robinson; and Caroline R. Stevens v. John F. Robinson.
    Decided, April 6, 1912.
    Upon . attaining their majority the daguhters of R, who was their guardian and held stocks inherited by them from their mother, appeared in the probate court, receipted for balances shown to be due them on account of dividends collected on said stocks, and in writing in the presence of the probate judge asked that the accounts of their father as guardian be confirmed. For some years thereafter they permitted their father to continue to draw the dividends on said stocks and apply them to his own use, and then by written agreements authorized him to retain possession of said stocks and to collect and use the dividends as long as he lived. After another long interval suits were filed by the said daughters against their father, in which it was alleged that the agreements were void and the court was asked to cancel the agreements and adjudge to them the dividends drawn by their father. Held:

    1. The agreements did not change the situation of the parties, hut simply gave to the defendant a legal right to do what he had long been doing with the consent of the plaintiffs.
    2. Approval of the accounts of their guardian, long acquiescence in his use of the dividends, and a seeming recognition of the propriety of his having said income, require that a recission of the agreements with a judgment for the dividends he based on strong and convincing evidence.
    3. Inasmuch as that part of the agreements, which provided in each case that in case of the death of the daughter without issue before that of her father said stock should revert to him and become his property, can not become effective until the death of said daughters, its testamentary character and lack of consideration will not be considered at this time.

      Healy, Ferris A McAvoy, for plaintiffs in error.

      Stephens, Lincoln $ Stephens and Charles M. Leslie, contra.
    Jones, J.; Smith, P. J., and Winch, J. (sitting in place of Swing, J.), concur.
   These cases are in this court on appeal from the court of common pleas and were tried together. The plaintiffs each ask for a large judgment against defendant upon claims which are similar except in amount and based upon like transactions between the two plaintiffs and their father, the defendant.

When plaintiffs were small children their mother died possessed of certificates of stock of the par value of ninety-five thousand dollars which had been transferred to her by defendant without consideration and for precautionary reasons about five years before her death, which occurred in the year 1889.

After the death of the mother, the father was appointed guardian of the minor children and in the years 1896 and 1899, respectively, the plaintiffs became of age. Accounts in each case were soon filed in the probate court and were settled and approved. The former wards in each instance appeared in the probate court, receipted for the balances shown to be due them and in writing in the presence of the judge of said court asked him to confirm the account.

It appears that the money was not, in fact, paid over to the daughters and these suits were filed in October, 1908, for its recovery. The petitions allege, also, that the defendant continued to draw and appropriate to his use the dividends on these stocks until the filing of these actions and pray for the recovery of the dividends so collected.

On June 13, 1903, the daughter, Caroline, signed an agreement authorizing her father to retain possession of her certificates of stock and to collect and use the dividends thereon as long as he lived. It also provided (Item 4) that in case of her death without issue before the death of defendant said stock was to revert to him and become his property.

On March 3d, 1905, the daughter, Pearl, signed an agreement of the same purport and containing the same provisions.

The petitions allege that these agreements are void for reasons stated therein and ask that they be canceled and annulled and that all dividends collected b3 defendant under their authority be adjudged to plaintiffs.

These agreements, so far as they related to the dividends, did not change the situation of the parties. They simply created in the defendant, as a legal right, that which he had been exercising by the consent and acquiescence of plaintiffs since they became of age.

This long acquiescence, in connection with their approval of his accounts as guardian, in which act on their part there seems to have been a recognition of the propriety of his having the income from said stock from the date of their mother’s death, should cause a court of equity to require strong and convincing evidence sustaining, at least, one of the grounds for rescission alleged in the petition.

In meeting this requirement and in sustaining the burden of proof resting upon them plaintiffs have failed and this, too, with respect .to the settlements in the probate court as well as to the agreements.

It is claimed that Item 4 of said agreements is testamentary in character and void for absence or inadequacy of consideration. As said item has nothing to do with the questions in this case and can have no effect until the death of one of the plaintiffs we have deemed it unnecessary to consider the validity of ‘ ‘ Item 4” and the decree may so recite.

The petitions are dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    BOND ISSUES UNDER THE LONGWORTH ACT.
    Circuit Court of Cuyahoga County.
    The City of Cleveland, by Newton D. Baker, etc., v. The City of Cleveland, etc., et al.

    Decided, November 14, 1910.

      Municipal Corporations — Limitations_ on the Power to Issue Bonds— Method of Ascertaining Whether the Limitation Has Been Reached —•Sections 3940, 3941 and 3945.
    Municipal bonds authorized by a vote of the electorate are not included and are not to be considered in ascertaining whether the limitations of one and four per cent, on the power of the municipality to issue bonds have been reached within the current fiscal year.

      Newton D. Balter, City Solicitor, for plaintiff.

      Squire, Sanders <& Dempsey and W. D. Willtin, Assistant City Solicitor, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.

       Affirmed without opinion, City of Cleveland v. City of Cleveland et al, 83 Ohio State, 482.

   This is an action to enjoin an issue of bonds by the City of Cleveland, as exceeding the statutory limit of municipal indebtedness.

Section 3939, General Code, authorizes the council of any municipal corporation by two thirds ’ vote to issue bonds for any of twenty-seven different purposes.

Sections 3940 and 3941 limit the exercise of this power in any fiscal year to the issuing of bonds in an aggregate amount’ not exceeding one per cent, of the assessed valuation, unless the excess be authorized by a two-thirds vote of the electorate.

Section. 3942 further limits the exercise of the power to issue bonds to an aggregate net indebtedness of four per cent, of the assessed valuation, unless an excess be authorized by like vote.

Section 3943 defines net indebtedness to be the 'difference between the amount of outstanding bonds and the sum in the sinking fund for their redemption.

Section 3944 provides that net indebtedness does not include obligations for work to be done until the bonds therefor are issued.

Section 3945 provides further (and I quote it exactly because of its disputed meaning) that:

“Such limitations of one per cent, and four per cent, herein before prescribed shall not affect [or, as phrased in Revised Statutes, Section 28336, ‘shall not be construed as affecting’] bonds lawfully issued for such purposes upon the approval 'of the electors of the corporation.”

Sections 3946 and 3947 provide further that special assessment bonds and water works bonds, for the payment of which the special sources of revenue suffice, and also bonds issued before April 29, 1902, “shall not be considered in ascertaining such limitations,” but that regular annual tax levies shall be made sufficient to pay the bonds at maturity.

Sections 3948 and 3954 inclusive define the mode of procedure for voting bonds in excess of said limitations; and the last section prohibits a net indebtedness exceeding eight per cent, in any case. It concludes with these words: “In ascertaining the limitations of such eight per cent, and of such four per cent., all such bonds shall be considered except those hereinbefore excluded.”

Those excluded are defined by Sections 3943 to 3946, General Code, inclusive, as above summarized, viz., the bond redemption fund, certain obligations for which bonds have been authorized but not yet issued, special assessments bonds, water works revenue bonds, and bonds issued before April 29, 1902. In ascertaining the four per cent, limitation of bonds issuable without vote, are we to exclude also all bonds previously authorized by vote? The question arises here because the City of Cleveland has a bonded debt of more than four per cent., partly authorized by vote and partly issued without vote. The bonds here sought to be enjoined will not increase the amount of the latter class above four per cent, of the assessed valuation.

The question then is whether the Longworth Act, which includes the General Code sections above noted, divides municipal bonds issued thereunder into two distinct classes, voted bonds- and unvoted bonds, and applies the four per cent, limitation only to the latter class, or whether it treats all bonds issued thereunder as constituting but one class for the application of the four per cent, limitation. The solution of this question turns chiefly upon the construction to be given to Section 3945, General Code, above quoted.

According to the view which has hitherto prevailed among city officials and the state bar generally, these bonds should not be enjoined; but a recent opinion of the Attorney-General, reinforced by that of eminent counsel here retained to pass upon this issue of bonds, is to the contrary effect.

What is meant by the provision of Section 3945, that the limitations of one and four per cent, “shall not affect bonds” voted by the' electors? The plaintiff’s- construction is that the limitations shall not disturb bonds so approved. This accords with the popular meaning of the word “affect”; but it is absurdly redundant, as saying that duly .validated bonds shall not be deemed invalid.

The defendant’s construction, more nearly in accordance with the primary etymological sense of the word, and the reasonable intent of the Legislature, is that the limitations shall not act upon bonds so approved; i. e., that voted bonds “shall not be considered in ascertaining such limitations.” Why not then have used this phraseology, as in the next section it is used? The only reply is that the successive sections represent separate amendments engrafted on the Longworth Act from time to time by different Legislatures. Section 3946 is- certainly more happily phrased than is the preceding section with its equivocal wording. Yet kindred uses of the term “affect” obtain in mathematics and in law. A given quantity is “affected” with or by a coefficient, exponent, logarithem, divisor, or the like. One is “affected” by, or with, constructive notice. A privy is “affected” with another’s fraud. So here, a city’s corporate power of incurring indebtedness, and hence the actual bonded debt, which it has incurred, are affected by statute with a four per cent, limitation. But the limitation does not thus affect bonds issued upon the approval of the electors.

The intent of the Legislature thus appears to be that the limitations of one and four per cent, shall not act upon or apply to bonds issued upon approval of the electors.

Construing Section 3945 by itself, this may seem to be not merely an uncommon, but also a very strained construction of the word “affect.” But when we come to consider by what mathemetical processes the limitation is actually applied in ascertaining whether or not a city’s net debt has reached, or is about to pass, the limit fixed by statute, the construction ceases to seem strained at all. The computation may be begun from either of two opposite directions.

Approaching the problem from the side of the assessed valuation as the starting point, or base', we may multiply that number by the rate per cent, of limitation, i. e., by four per cent., four hundredths, or one twenty-fifth, and compare the product with the actual net debt.

Approaching the problem from the other side, we may take the actual net debt as the starting point, multiply this number by ■twenty-five (which is the equivalent of dividing it by four per cent., or one twenty-fifth), and compare the product with the assessed valuation.

In other words, we may start on the side of the assessed valuation, or on the side of the actual net debt, and affect either one of them quantitatively with the per cent, limitation, according to the recognized arithmetical rule applicable to the particular case.

The limitation of course amounts to nothing except it be applied; and it can be applied only by some method of computation. The methods described are equally valid. Each method necessarily involves, first or last, the application of the appropriate mathematical process to the quantity representing the net debt. The per cent, limitation, by one or other of these processes, mathematically affects the net debt, that is, it acts upon it, which is the etymological meaning of the term “affect.”

It may be granted that this is not the commonest sense of the word. Popularly it connotes change, transformation. But thus construed, the word as used in the Longworth Act is manifestly inappropriate. Tbe unusual meaning is much the more reasonable ; and therefore it is to be preferred as the true meaning.

Bearing in mind what has been said about the process of applying the limitations of the Longworth Act, it is not a wide departure from even the popular sense of the word “affect” to ask, what is the net debt which the per cent.-limitation is to affect? What constitutes or enters into the net debt which the limitation is to act upon or apply to? In the process of concretely applying the limitation, what quantity is our multiplier, or coefficient, to affect? To what, in the comparison of our ascertained limit of debt, is our standard to apply?

The answer seems perfectly plain though negatively expressed in Section 3945, General Code. “Such limitations of one per cent, and four per cent, shall not affect [act upon] bonds lawfully issued for such purposes upon the approval of electors of the corporation.”

This we hold to be the meaning of Section 3945, and of the limitations contained in the Longworth Act; whence it follows that the petition must be, and it is dismissed.


text:
    ASSESSMENTS FOR SEWERS FORMING PART OF A MUNICIPAL SYSTEM.
    Circuit Court of Lorain County.
    William A. Ely v. City of Elyria et al; and John P. Brooks et al v. City of Elyria et al.
    Decided, April 20, 1912.

      Assessments — Validity of, Where Levied for a Sewer — Present Sewer Connections Not Sufficient to Exempt Property Served Thereby, When — Section 3819.
    1. The clause of Section 3819, which exempts from sewer assessments lots and lands which are provided with local drainage, does not apply to property which is already supplied with a sewer. of sufficient capacity to provide drainage therefor, hut which does not provide drainage oí such a character as to protect the public health and general -welfare.
    2. An assessment for a sanitary sewer, forming part of the general sewer system of a municipality, will not be enjoined on the ground that the property of the plaintiff is already provided with a sewer, where the present sewer empties -into a water-course, which is to be protested from further contamination by the building of the new sanitary system.

      L. B. Fan,ver, for plaintiff.
    6r. B. Findley, for defendant.
    Niman, J.; Marvin, J., and Winch, J., concur.
    Appeal from common pleas court.
   These cases are here on appeal, and involving a similar, though not an identical, state of facts, they will be considered together.

The plaintiffs in both cases seek to enjoin the collection of special assessments against, their respective properties for the building of a sewer. The properties of the plaintiffs are located on the south side of Broad street, in the city of Elyria. The Ely property adjoins the Brooks property on the east.

The sewer for which the assessments in question were made is a sanitary sewer, constructed by the city of Elyria in 1911, in Broad street. It passes through said street in front of the properties of the plaintiffs, and joins with a sewer on Washington avenue, which is carried north in this street, over the bridge and on in the same direction to a point where the city designs to erect a sewage disposal plant.

A number of grounds are set forth in the respective petitions to establish the illegality of the assessments, and the right of the plaintiffs to the relief sought. The ground relied upon, however, by the plaintiffs is, that their properties are not benefited by this new sewer, for the reason that they are already provided with local drainage.

Section 3819, General Code, limits assessments to the special benefits conferred upon the property assessed, and exempts from assessment any lots or lands that do not need local drainage, or which are provided therewith.

The question for determination, therefore, in these eases, is, whether or not the properties of the plaintiffs are provided with local drainage within the meaning of Section 3819.

In 1899 a sewer was constructed. by the city of Elyria in East Broad street in front of the Ely property, running easterly into a sewer on East avenue. The Ely property was assessed for this sewer and the property was connected with it, and is still connected. Both the storm water and sanitary sewage are carried through this old sewer to the East avenue sewer, and through the latter northerly to the point where East avenue is crossed by Depot street. At this point is an intercepting basin, designed to separate the sanitary sewage from the storm water, which is then conveyed through the Depot street sewer with the main sanitary sewer on Washington avenue. The storm water is diverted and poured into Black river. Formerly both storm and sanitary sewage ran into the river.

The city has adopted a general sewer plan which contemplates the construction- of sanitary sewérs, and the disposal of the sewage collected through them, by means of a reduction plant outside of the city, in order that the waters of the river may not be contaminated, and the health and comfort of the people be interfered with by the creation of such a nuisance as will result from a continuation of the former practice of pouring all the sewage into the river. When' the plan is carried out, it is designed to convey the storm water through the old sewers, but for temporary purposes, and to avoid further pollution of the river beyond what is unavoidable, a system of interceptors, such as the one at the intersection of East avenue and Depot street, for the separation of sanitary sewage and storm water has been installed, so that the sewage is diverted and carried out through the Washington avenue sewer to the point where the reduction plant is to be located, while the storm water is allowed to flow into the river. It appears, however, that this plan of interceptors is only a temporary arrangement permitted by the state board of health, until the disposal plant is built, and it further appears that by this plan some sewage still finds its way into the river.

The sanitary sewer constructed in Broad street in 1911, for which the assessments in question were made, is a part of this general system of sewers.

If the simple fact that the old sewer carries off all the sewage from the Ely property in a manner satisfactory to the owner, and adequate to the needs of that particular property, is the only thing to be considered, the relief sought against the assessment in this particular case should be granted. But it is not contemplated by the statute that the purpose of a sewer is simply to get rid of something on one’s own land. The welfare and protection of the public generally must be.considered, as well as the convenience of the owner in determining the adequacy of the sewer.

In Avondale v. Scudder, 12 C. C., 770, it was said:

“The local drainage which is meant by Section 2382, Revised Statutes, is such a sewer, or such a system of sewers, as looking to the dimensions, the mode of construction, the material used, the location for the outlet and the sanitary conditions, as will not only benefit the persons-who have constructed the sewers, but will not be detrimental to the rights of the public, not only of the present public, but of those who may, and who of right may, build in the vicinity where the sewer is located.”

The city _ of Elyria, owing to its rapid growth, has found that its former sewer system is inadequate, and that the public health is endangered by continuing to empty its sewers into the river; the health authorities have interfered and the city has devised a new system to secure present relief and take care of its future needs. As a part of that system, it has constructed this sanitary sewer on Broad street in front of the property of the plaintiffs. The old sewer there contributed its share toward creating the necessity of the new one, and the Ely property, by disposing of its sanitary and storm sewage through this old sewer, and having it carried into the river, assisted in bringing about a condition which required relief in the form of a new system of which the Broad street sewer, built in 1911, is a part. The old sewer, while physically adequate to supply local drainage to the Ely property, did not, in our opinion, supply such local drainage as the statute contemplates.

In this opinion we are supported by Hildebrand v. Toledo, 6 C.C.(N.S.), 450, where is was held that “a claim of adequate local drainage, based upon the right to allow sewage to drain into a natural water-course running through a municipality, is not sustained where such drainage will pollute the stream and create a nuisance and imperil the health of other riparian owners. ’ ’

The fact that an interceptor is used to separate the sewage coming from the Ely property and from the other property using the old Broad street sewer does not, in our opinion, change the situation. The system of interceptors is, it appears, only a temporary one, and the use of such a system involves the use of the new system of sanitary sewers, of which the new broad street sewer is a part, and the Ely property is to that extent the beneficiary of the new system. It is urged that the property is not connected with the new sewer, and is not being used by it, but this situation often happens, as in the case of vacant property. It does not follow that because property is not connected with and does not make use of a sewer, it should be relieved from assessment for the cost thereof.

In Ford v. Toledo, 64 Ohio St., 92, it was held:

“Where the lot or land is in need of local drainage, it is not exempt because it is entirely unimproved, and there is no immediate need for such drainage. Vacant lots and. lands may, and usually do receive a present special appreciable benefit from the construction of a sewer in proximity with, and accessible by them for sewage purposes, sufficient to sustain an assessment made.on a basis of benefits.”

We decide, therefore, that as to the first of these actions, the Ely suit, the contention of the plaintiff that his property is already adequately provided with local drainage is not well founded within the meaning of Section 3819, General Code.

In the Brooks case, it appears that the property of the plaintiffs is not connected directly with any sewer constructed by the city, and has not been assessed for any sewer prior to the making of the assessments complained of. No sewer is found in Broad street in front of the property except the new one.

The former owner of this property, however, in conjunction with J. H. Kraus, in 1893, constructed at his own expense a private sewer, running from the Topliff hotel on the property diagonally across Broad street, which taps the- city sewer on Washington avenue. This private sewer has drained all the sewage from the Brooks property since 1893, and is still used for both sanitary sewage and storm water. After passing through the private sewer, so constructed, the sewage and storm water are carried through an old city sewer on the west side of Washington avenue to an intercepting basin near the railroad tracks, where the sewage is separated and carried through the Washington avenue sanitary sewer and the storm water is conveyed to the river.

All that has been said in the Ely case on the subject of whether the property involved in that case is provided with adequate local drainage, within the meaning of Section 3819, is applicable to this case. But there is present here the additional fact that the private sew^er, which is said to furnish adequate local drainage, is built on the city street, passing under the pavement, cross-walks and' street railway tracks. According to the evidence, no formal consent was ever obtained to build it, nor to tap the city sewer, but its construction was known to the authorities and acquiesced in by them.

No right to have it remain in the city streets is shown, and its removal might be ordered at any time.

In Hildebrand v. Toledo, supra, it was held:

"Lots are not provided with adequate local drainage, such as will exempt them from paying their share of an assessment levied to pay the cost of a sewer improvement, unless the right exists to dispose of sewage as it is at the time being disposed of, and the right to so continue is one that can not be interefered with; the present right must include not only the idea of permanency of structure, but also of control.”

Permanency of control can not be said to exist where a private sewer, claimed to provide sufficient drainage, is built upon property of another from which it may be ordered removed at any time. •

In view of the conclusions reached by us, the relief sought by the plaintiffs must be denied, and the petition in each case dismissed.


author: Ferneding, J.

text:
    HEIRS MAY BE CONSTITUTED BY WILL.
    Circuit Court of Greene County.
    Charles H. Moon, Administrator, v. Jennie Harness et al.
    Decided, 1912.

      Wills — Devise Making Grandchildren Equal Heirs with Children is Dis-positive — Formal Statutory Adoption Not Necessary to Constitute an Heir.

    1. A devise making “my two granddaughters [naming- them] each heirs with my own children,” is dispositive and evidences an intention' on the part of the testatrix in this case to devise her property in equal shares to such grandchildren and her own children.
    2. The formal adoption provided for in Section 8558, General Code, is not necessary to constitute an heir; it may be done by will.

      Marcus Shoup, for plaintiff.

      Wm. 8. Howas'd, for appellants.
   Ferneding, J.

(orally); Dustin, J., and Allread, J.,' concur.

The question for the consideration of the conrt in this case is the construction of the last will and testament of Clara Moon, deceased, particularly item two thereof which reads as follows:

“I hereby make my two granddaughters, Lulu Stewart and Ella Breakfield, each equal heirs with my own children. ’ ’

In the will, which was duly probated, one Frank Stewart was named as executor, but he declined to serve, and the court thereupon appointed Charles Moon, the plaintiff, as the administrator with the will annexed, and it is he, as said administrator, who brings this action under authority of Section 10587, General •Code, to have said will construed. Under provisions of Section 10503, General Code, a person of full age, of sound mind and memory, and not under restraint, who has property or an interest therein, may give and bequeath it by last will and testament lawfully executed.

Section 8598, General Code, provides the method by which a person can designate an heir at law, and is as follows:

‘ ‘ A person of sound mind and memory may appear before the probate judge of his county, and in the presence of such judge and two disinterested persons of his or her acquaintance, file a written declaration, subscribed by him, which must be attested by such persons, declaring that, as his or her free and voluntary act, he or she did designate and appoint another, naming and stating the place of residence of such persons specifically, to stand toward him in the relation of an heir at law in the event of his or her death. If satisfied that such declarant is of sound mind and memory, and free from restraint, the judge thereupon shall enter that fact upon his journal, and make a complete record of such proceedings. Thenceforward the person thus designated will stand in the same relation, for all purposes, to such declarant as he or she could, if a child born in lawful wedlock. The rules of inheritance will be the same, between him and the relations by blood of the declarant, as if so born ;• and a certified copy of such record will be prima facie evidence of the fact stated therein, and conclusive evidence, unless impeached for actual fraud, or undue influence.”

It is the contention of the defendants, the appellees—

First, that the will iñ designating Lulu Stewart and Ella Breakfield as “equal heirs with my own children,” was not in compliance with the foregoing statute quoted, which defines the procedure necessary for such adoption, and, therefore, without avail.

Second, that said will not being dispositive in character as to said grandchildren, they are denied participation in the estate.

As to the first, we hold to the view it is not necessary to formally adopt under the statute to constitute an heir. It may be done by will.

As to the second, we think the will is dispositive and that the manifest intention of the testatrix is to make her two grandchildren equal heirs with her own children in the distribution of the estate.

The court below in deciding the case seemed to rely largely upon the case of Crane v. Doty, 1 Ohio St., 279.

This ease holds that mere words of exclusion are not sufficient to direct the disposition of other persons not included. The present will, in our opinion, goes farther than the case of Crane v. Doty, supra, and shows an intention to dispose of the property to the persons named.

'We are not without authority in holding this will to be dis-positive. In the case, In re Williamson, 6 N. P., 79, the paper which was presented for probate was as follows:

“I, the undersigned, George H. Williamson, citizen of the United States of America and of the state of Ohio, legally domiciled in the city of Cincinnati, Ohio, but sojourning at present in Paris, France, 182 Boulevard Saint Germain, for reasons of health, • sick in body but of sound mind, at the .moment of appearing before God, do solemnly declare that I have always intended to return to my country and that the bad state of my health has prevented me from doing so.- I declare that I am still a citizen of the state of Ohio and subject to its laws. I further solemnly declare, that the two persons who live, and have always lived with me and with their mother, under the names of Georgette and Henriette Williamson, are my legitimate daughters, living with me at 182 Boulevard, Saint Germain, Paris. I declare further that I expressly revoke all testamentary dispositions that I have made up to this day.
‘ ‘ In testimony whereof I have signed, and sealed these presents this fourth day of December, 1896.”

This instrument was properly signed and witnessed according to law, and it was held in the lower court, in In re Williamson, 5 N. P., 1, not to be a paper of a testamentary character. The common pleas court held, however, that it was, and even if they were in doubt about that matter, that being a paper properly executed, it should have been admitted to probate.

In the ease of Benchley v. Lynn, 2 Rob. Ecc., 441, the language of the document in question was as follows:

“Whereas I am desirous of revoking and making void my said will and disposition aforesaid, and to die intestate in order that all my property, both real and personal may go to and devolve upon my heirs or next of kin,
“Now, therefore, I, the said Elizabeth Lynn, do by this instrument in writing revoke, annul and make void my said will in toto, so that I may die intestate, both as to my real and personal estate. • It was held that this instrument is not merely revocatory. It is dispositive as well as revocatory. I consider it to contain a bequest of the property and to the next of kin; it would have defeated any limitation to other persons, if such had been appointed by Mrs. Minnett’s will. Undoubtedly Mrs. Benchley takes the property under this paper as a legatee and must pay duty as a legatee; I can not see how she could possibly take the oath as in case of intestacy. * * * Intestacy can only arise when a person dies without legally bequeathing his property, that is, without a will. If a man by will declares he dies intestate and that his property shall go in (jase of intestacy, such paper does not constitute an intestacy, but a bequest of the property to personae designatae designated by the statute as it might be by any other description. The property in the present instance gOhs not in virtue .of the statute, but in virtue of the will, exactly as if the ultimate limitation in Mrs. Minnett’s will had been to A B and not to the next of kin. That the property would go by the statute in the same direction as by the will, can not divest it of the character of being property bequeathed by will. ’ ’

In the case of Bailey v. Bailey, 59 Mass. (5 Cush.), 245, we find the following:

“The term ‘will’ under the statute of 1843, Chap. 92, including every kind of testamentary act taking effect from the mind of the testator and manifested by an instrument in writing.”

An inhabitant of this state while in the city of New York on a visit, being sick and in apprehension of death, executed an instrument in the presence- of two witnesses, who attested it at his request, in the following terms:

“ ‘ It is my wish that the will that I made be destroyed and my estate settled according to law.’
“Before signing his name thereto, the paper was read aloud to the testator and he was asked if it would answer, to which he replied that it would. Held: That this instrument was executed in the manner and with the formalities prescribed by law to admit it to probate in the state of New York, as a testamentary instrument or codicil, and that, therefore, linder the statute of 1843, Cbap. 92, Par. 1, it might be proved, recorded and proceeded in as such in this state.”

It is held in the case of Townsend v. Townsend. 25 Ohio St., 477, in the first, second, third and fourth syllabi, as follows

“1. In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.
“2. Such intention must be ascertained from the words contained in the will.
”3. The words contained in the will, if technical, must be talien in their technical sense, and if not technical, in their ordinary sense, unless it appear from the context that they were used by the testator in some secondary sense.
“4. All the parts- of the will must be construed together, and effect, if possible, given to every word contained in it.”

In the case at bar we are of the opinion that the will is dis-positive. It shows an intention on the part of the testatrix that her property should go equally to the persons referred to as devisees therein.

Decree accordingly.


text:
    LIABILITY OF OWNER OF AUTOMOBILE FOR DEATH OF PEDESTRIAN.
    Circuit Court of Hamilton County.
    The White Oak Coal Company v. Katherine Rivoux, Administratrix.
    Decided, May, 1912.

      Master and Servant — Whether Servant Was Acting Within Scope of Sis Employment a Question for the Jury — Wrongful Death— Weight of Evidence.

    The question whether the driver of the automobile which struck and killed the intestate, was acting at the time of the accident within the scope of his employment, or outside thereof in a personal enterprise, is one for the jury; and a judgment against the owner of the machine will not be reversed on the weight of the evidence, in view of the testimony of the driver that he was going on a personal errand at the time of the accident, where goqd reason is found in tire record for disbelief of liis evidence on the part of the jury.

      Pack, Shaffer & Peck, for plaintiff in error.

      Horstman & H or siman, contra.
    The defendant in error recovered a judgment below for $3,-100, on account of the death of her husband from being struck, while standing on the sidewalk on Fourth avenue, Cincinnati, by an automobile which left the' street and mounted the sidewalk. The machine was owned by the White Oak Coal Co. and was being operated at the time of the accident by a young man in their employ.
    Jones, J.; Smith, P. J., and Swing, J., concur.
   The plaintiff below having shown that the automobile was the property of defendant and that Tribbejq the driver,_ was in defendant ’s employ the burden was then placed upon defendant to show that at the time of accident Tribbey was acting outside the scope of his employment in a personal enterprise.

He testified that he was so acting and that he was inspecting the machine preparatory to going on a personal errand later m the day. Whether he was so engaged at the time was a question of fact properly left for determination to the jury. They were not bound to believe Tribbey’s statement and evidently did not. It was clearly shown that his evidence before the coroner was in conflict with his testimony at the trial, not only with reference to the circumstances of the accident but as to the nature of his employment and the duties devolving upon him.

In view of his conflicting statements the jury must have disregarded his testimony. The question as to whether he was manager at the time, or in a position of superiority, is immaterial and not entitled to the consideration given it by counsel in the discussion of the case.

We can not say that the verdict was manifestly against the weight of the evidence. After a careful reading of the record and the excellent briefs of counsel, we are of the opinion that the judgment should be affirmed. (Thompson on Negligence, Sections 613, 614, 615, 616). In Ohio the question is one for the jury. 67 O. S., 91.


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    LABOR ON THE HIGHWAYS.
    Circuit Court of Cuyahoga County.
    W. U. Noble, Superintendent of Roads in Brecksville Road District No. 1, v. Frank Clark.

    Decided, October 26, 1908.

      Constitutional Law — Validity of Act Providing for Labor on the Highways — General Operation Not Defeated by Special Act Exempting Cuyahoga and Hamilton Counties — Pleading—Sections 3875 et seq.

    1. The act purporting to exempt Cuyahoga and Hamilton counties from the operation of the statutes relating to labor on highways is not effective to prevent their uniform operation, and said statutes are constitutional and enforcible.
    2. The averment of non-appearance of one summoned to perform labor on the highway is broad enough to cover delinquency on the part of the one summoned to furnish a substitute to perform said labor.
    3. The road superintendent is the proper party to maintain an action for recovery of the amount provided to be paid under .the statute by one who fails to respond to proper notice’ for performance of labor on the highway.

      E. F. Reinhardt and H. A. Hauxhurst, for plaintiff in error.

      Hart, Canfield & Croke, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
    Error to the Court of Common Pleas.

       Affirmed without opinion, Clark v. Noble, Superintendent, 83 Ohio State, 515.

   The action below resulted in judginent for the defendant, upon demurrer sustained to the petition. It is founded upon the Act of April 16, 1906, 98 O. L., 327, requiring labor upon highways. It is claimed that this act is unconstitutional, because it is a law of a general nature, not of uniform operation throughout, the state, in violation of the Constitution of Ohio, Article 2, Section 26, in that Cuyahoga and Hamilton counties are, by reason of another law, specially applicable to them, exempted from its operation; and furthermore, because it infringes the inviolability of private property, guaranteed by Section 19 of the Bill of Rights, and denies the equal protection of the law, by allowing road superintendents to require persons summoned for labor upon the highways to bring teams of horses, if they have them.

Having recently upheld the constitutionality of this law in Lorain County, and having regard also to the case of Dennis v. Simon, 51 O. S., 233, in which the old law, Section 4717 of the Revised Statutes, which provided for two days labor on the public highways of this state, was held not to be in conflict with the Constitution, and to be a valid law, we shall not discuss this question further than to say that the alleged exemption of Cuyahoga and Hamilton counties from the operation of the present law, is not in accordance with the construction which we place upon it, namely, that it is of uniform operation throughout the state; and the Act of April 4, 1902, 95 O. L., 104, purporting to exempt Cuyahoga and Hamilton counties and to repeal previous legislation, can not be effective to prevent such uniform operation.

It is further contended that the petition is defective because it fails to allege that the defendant not only did not appear himself, but that he made no appearance by substitute, when summoned to perform labor upon the highway.

The language of the statute is that any such person shall appear “by himself or substitute,” whereas the petition does not expressly deny that he appeared by substitute. We think, however, that the averment of the defendant’s non-appearance, when summoned, is broad enough to cover his delinquency in both respects. If he failed to appear at all it is clear that he failed to appear either by himself or substitute.

It is urged in the third place that the road superintendent is not the proper party to maintain an action to recover the amount provided to be paid under the statute by any person who fails to respond to proper notice for the performance of labor on the highways; but Sections 12 and 13 of the act seem clearly to authorize him to prosecute such action.

We think that the petition below states a cause of action and that the demurrer thereto should not have been sustained.

For error in sustaining the demurrer the judgment below is reversed and the cause remanded.


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    ENGINEER KILLED IN A COLLISION.
    Circuit Court of Hamilton County.
    Cincinnati, Hamilton & Dayton Railway Co. v. Isabella Woulfe, Administratrix.
    Decided, July 27, 1912.

      Wrongful Death of a Locomotive Engineer — Fellow-Servant Doctrine Eliminated — N egligence — Railways.
    In an action for the wrongful death of a locomotive engineer, it will be presumed, in the absence of evidence to the contrary, that two trains were given the same track and came into collision, in obedience to orders to the switch tender from someone superior in authority to the engineer, and the question whether the engineer and switch tender were fellow-servants becomes immaterial.

      Watte é Schinclel, for plaintiff in error.

      Powell <& Smiley, contra.
    The plaintiff below recovered a verdict of $8,000 for the death of her intestate, Thomas H. White, who was killed in a collision while engaged as an engineer on the defendant railway.
    Jones, J.; Smith, P. J., and Swing, J., concur.
   We find no error in the proceedings below prejudicial to plaintiff in error.-

The question as to whether decedent, White, and the switch-tender were fellow-servants was properly left to the jury and the jury correctly decided they were not fellow-servants. It is presumed in the absence of evidence to the contrary that the switch, was thrown in pursuance to orders from some one in authority and someone who was superior to the engineer-and whose orders'those in charge of the train were bound to obey.

In this view it is not material what the relation was between decedent and the switch-tender as the latter was the instrument only through which the orders of the dispatcher were carried into execution. To hold otherwise would mean that those in charge of the southbound train in this case, or any train, could not move the train unless orders to that effect were received by actual and direct communication with the dispatcher. This is the position the argument of plaintiff in error leads to and needs only to be stated to show its fallacy.

This point disposed of we feel that there is nothing more in the case. White was free from negligence and the company is liable in damages. Under proper instructions from the court the jury fixed the damage at an amount which to it seemed just and which we can not say is excessive.

Judgment affirmed.


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    PROCEDURE IN AN ACTION TO CONTEST A WILL.
    Circuit Court of Hamilton County.
    Zinn v. Ferris, Executor, et al.
    Decided, June 29, 1912.

      Wills — Proper Time for Disposing of Question as to Capacity of the Plaintiff to Maintain Action — Section 12082.
    Where the question is raised, in an action to contest a will, as to the right of the plaintiff to maintain the action, it is the duty of the court to determine this question before proceeding to submit to the jury the issue as to the validity of the will.

      Healy, Ferris & McAvoy for plaintiff in error.

      Rufus B. 8mifh and Chas. B. Wilby,. contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   In the court of common pleas of this county, plaintiff in error filed his petition to contest the will of Elizabeth Zinn, this action being brought in conformity with Section 5861, Revised Statutes (General Code, Section 12082).

Aaron A. Ferris, executor and trustee under said will, filed a motion for an order of abatement and dismissal of the action, setting up by affidavit certain facts denying the right of plaintiff in error to maintain a contest of the will. The facts stated therein were not denied and upon hearing the trial court granted the motion and dismissed the petition.

It is urged that in this respect the court committed error, for the reason that under our statute it was the duty of the court when the petition to contest the will was filed to have had an issue made up either by pleadings or an order on the journal as to whether or not the writing produced was the last will of the testator, and that this issue should have been tried by a jury, and that the only adjudication of such a question was to be determined solely by a verdict of a jury so returned.

While this no doubt is correct, yet it seems to us that if a question is made as to the right of the plaintiff to maintain the action, it is not only proper but it is the duty of the court to determine this preliminary question before submitting to the jury the general question as to the validity of the will.

It is evident from the facts stated in the motion and the affidavit filed by the executor to dismiss the proceedings, if true (and we must assume that they are for there is no denial), plaintiff in error has no standing or right to maintain his action, as well as under item 14 of the will.

We do not think that the defendant in error is driven to setting up in an answer to the petition the facts stated in his affidavit as any defense to the action.'

The right to maintain the action can and should be determined first and if this right is determined adversely to the plaintiff, then there is nothing to submit to the jury. If, on the other hand, it is determined in his favor, then the court will proceed in accordance with the statute and submit the issue as to the validity of the will to the jury.

We are of the opinion that the action of the court below was correct and the judgment is affirmed.


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    NORRIS ACT NOT UNCONSTITUTIONAL AS INHIBITING CONTRACT GUARANTIES.
    Circuit Court of Cuyahoga County.
    The Fath Construction Company v. Catherine Bausmerth et al.
    Decided, December 16, 1911.

      Constitutional Law■ — Norris Law Does Not Inhibit Contract Guaranties —But Abrogates the Rule of Pleading Negativing Plaintiff’s Negligence — Administrator Proper Party to Bring Action for Wrongful Death Under Norris Act — Certificate of Trial Judge that Defendant Conceded Representative Character of Plaintiff in Wrongful Death Action Conclusive — Plank Platform Used as Means of Access to Work on Building in Construction Held “Way” in Norris Law.

    1. The Norris act (101 O. L., 195), amending General Code, 6242-6245, malting defects in appliances and ways prima facie evidence of employers’ negligence, and abrogating the doctrine of assumption of risk by employes as to such defects, does not violate any constitutional guaranties as to right to contract.
    2. Act 101 O. L., 195, the Norris law, amending General Code, 6245, and modifying the rule of assumption of risk of employes as to certain defects in appliances and place of work, abrogates the rule of pleading as to denial of knowledge, actual or constructive, of defects causing the injury alleged.
    3. Act 101 O. D., 195, amending General Code, 6242-6245, 10770, 10772, and modifying the law regulating the liability of employers for injuries to employes, applies to actions for injuries by an employe himself and by his administrator if he fails to survive the injury incurred.
    4. A certificate by a trial judge in an action for death by wrongful act, that the fact • of the representative character of plaintiff as administrator of a deceased employe was conceded by defendants, is conclusive; therefore, failure to prove such fact is not ground for reversal.
    5. The term “way” in General Code, 6245, as amended by act 101 O. L., 195, designating the objects for defects in which an injured employe may recover, is not limited to a “permanent way”; hence, a platform of planks placed upon supporting beams of a building in process of construction and used for hoisting materials and as a means of access by employes to work on its walls, etc., constitutes a “way” or “appliance” within the meaning of such act. Mason v. Ferguson, 12 C.C.(N.S.), 567, denied.

      Ford, Snyder & Tilden, for plaintiff in error.

      Kerruish ■& Kerruish, contra.
    Winch, J.; Marvin, J., and Henry, J., concur.
   This was an action for wrongful death, under the Norris law, so-called, with verdict for the plaintiff below in the sum of $6,-000, which the court reduced to $4,000, entering judgment in the latter sum, the plaintiffs consenting to the remittitur.

■ At and before the time of the accident the deceased, Thomas Bausmerth, was working for the construction company in the erection of the Lorain Avenue Branch Library on the west side, in the city of Cleveland, for which erection the company had a contract. As the work progressed, certain steel I-beams were extended across the north wing of said building at a height of about twenty-five feet above the ground, to form the framework of the ceiling of the rooms below and the roof of said wing. These I-beams were placed at regular intervals of eight feet and six inches apart.

Some twelve or fifteen days before September 9, 1910, the day on which Bausmerth received his fatal injury, he and other workmen were directed by the foreman on the job to construct a scaffold, platform, staging or flooring upon said I-beams, and for this purpose were furnished planks sixteen feet long. The foreman superintended the construction of the platform, and it was so laid that the ends of the planks overlapped between the second and third I-beams, counting from the north wall. In this condition the platform was unsafe, for a weight superimposed upon these overlapping ends between the second and third I-beams would cause the planks to tip down and drop the weight, through. This danger, however, was obviated by erecting a heavy derrick over the north end of the north row of planks and immediately over I-beam number one, the supporting timbers of the derrick extending east and west across said planks and timbers being spiked on top of and cross-wise of said planks, one on either side of and against the supporting timbers of the derrick. The derrick was used for hoisting up material from the outside of the building.

On the day in question, the walls of this wing being complete, except the laying óf a few coping stones, the foreman had said derrick removed and the timbers spiked to the planks torn up. This left a defective condition of the platform, for the overlapping plank ends between I-beams two and three would not now sustain any heavy weight.

The petition contains the following allegation:

“Plaintiffs say that said platform, scaffold, staging or flooring, constructed as hereinbefore described and for the purpose aforesaid and constituting a part of the ways, works, plant and appliances which were 'connected with and used in the business of the defendant, was negligently, carelessly and unlawfully left by said defendant in a weakened, defective and unsafe condition as aforesaid,- which said weakened, defective and unsafe condition was fully known, observed and understood by said defendant through its foreman, Koenig, but wholly unknown, unnoticed and uncomprehended by said decedent.
‘ ‘ Plaintiffs say that shortly after said platform had been converted from a safe into a dangerous place, as aforesaid, to-wit, at about 12:30 p. m. on the said 9 September, 1910, the decedent was expressly ordered and commanded by said foreman, Koenig, to help him and five other of said workmen carry a large coping stone, weighing between 600 and 700 pounds, from the top of a ladder placed against the southerly side of I-beam number four across said platform to said north wall; that in compliance with said express order and command, the said decedent did then and there, with the aid of the six other men, including said foreman, take hold of said stone and lift it and proceeded to carry the said stone across said platform towards said north wall, all the while in the exercise of due care and without negligence on his part and under the express and direct commands and guidance of the said foreman, and had proceeded until he and they had reached a point on said platform directly over the center of the said space'between said I-beam numbers two and three, when suddenly and unexpectedly and without warning of any kind to said decedent, said platform gave way by reason of six or seven planks of each said row of planks tipping down because of so great a load imposed upon it, and caused said stone and said decedent together with four other of said men to fall through said space and down onto said floor I-beams and tbence to the ground some thirty (30) feet beneath, so crushing and mangling said decedent that he died from said injuries the following morning.”

It is, perhaps, unnecessary to quote further from the petition.

Several errors are alleged to have occurred at the trial:

First, it is claimed that no evidence should have been received under the petition, because it fails to contain an allegation that the decedent did not have equal means of knowing with the master, or, by the exercise of ordinary care, could not have discovered, the existence of the defect.

As the law stood until the adoption of the Norris law, April 30, 1910 (101 O. L., 195), the petition was defective in this respect. Coal & Car Co. v. Norman, 49 O. S., 598, 607.

This rule of pleading, however, was abrogated by the act referred to.

Section 6245 of said act' provides:

“That in any such action (for personal injuries or wrongful death, as provided in Section 6242) whére it shall appear that the injury or death was caused in whole or in part by any of the following, to-wit: * * * any defective or unsafe condition in the ways, works, boats, wharves, plant, machinery, appliances or tools, except simple tools, in any way connected with or in any way used in the business of the employer, the fact that such employe continued in said employment with knowledge of such negligent omission or want of care, or such defective or unsafe condition shall not be a defense unless,” etc.

In conformity with the Norman ease, the Legislature might have said, “It shall not be necessary for the employe to allege in his petition or prove on the trial, that he did not continue in said employment with knowledge of such negligent omission or want of care,” etc., but in common parlance “assumption of risk, ’ ’ and the matter here mentioned comes within the meaning of that expression — has always been spoken of as a defense. Evidently, with this idea in mind, the Legislature said, “it shall not be a defense.”

The manifest intention of the act was to take out of the case the question of the employe’s actual or constructive knowledge of the defect complained of, and this we believe it does. Whether this part of the act is constitutional or not, will be treated of later in a consideration of the charge.

It is said, however, that the temporary platform or scaffold described in the petition does not come within the meaning of the’words “ways, works, boats, wharves, plant, machinery, appliances or tools,” as used in the statute, and the case of Mason v. Ferguson, 12 C.C.(N.S.), 567, decided by the Hamilton County Circuit Court, sustains this proposition.

We are not in accord with that decision, nor do we think it sustainable upon the authorities therein cited, nor upon reason.

The platform here involved was built and used for the purpose of permitting the workmen to pass,’ with or without tools and material, from the ladder at its south end to the walls upon which they worked. It was their only means of access to their work on the walls after the I-beams had been placed in position. It was temporary in character, but it was both a way and an appliance connected with and used in the lousiness of the employer, and was no more temporary in character than his business, which was ended on this job when the walls were completed, at which time the platform would be removed.

The Century Dictionary defines “ways” as, “The track or path by passing over or along which some place has been or may be reached; a course leading from one place to another”; and it defines “appliance” as: “Something applied as a means to an end, either independently or subordinately; that which is ■adapted to the accomplishment of a purpose; an instrumental means, aid, or appurtenance.”

The act in question must be construed with these definitions in mind, and the ordinary and usual meaning given to the words employed by the Legislature. There is no necessity of limiting the meaning of the word “way” to a permanent way; even strict construction does not require that to be done.

The object of the act was clearly to alter the law in favor of workmen and to extend the liabilities of the employer, and this object is effectuated by a fair construction of the words used in it. It is also remedial in its nature, and therefore should have a liberal construction.

It is next said that a verdict should have been directed for the defendant below, because the plaintiffs failed to prove that they were the administrators of the estate of the deceased employe.

The trial judge certifies that this fact was conceded by the defendant company at the trial, and his certificate is conclusive upon this point.

Many rulings on the admission of evidence are complained of, all of which have been examined, but no erroneous rulings have been found which were prejudicial to the rights of plaintiff in error.

The judgment is not excessive.

The verdict was sustained by the evidence.

The charge is complained of, but only in so far as it gave the pertinent part of the Norris act as the law of the ease.

As before stated, the platform or scaffold described to the jury in the evidence was a way or appliance, and the court properly so charged.

It is said, however, that the court improperly charged the law as stated in Section 6243 of the act as applicable to a death ease.

That section reads:

‘ ‘ That if the employe of any such employer shall receive any personal injury by reason of any defect or unsafe condition in aiiy ways, works, etc., such employer shall be deemed to have had knowledge of such defect, before and at the time such injury was sustained, and when the fact of such defect shall be made to appear upon trial of an action brought by such employe or his personal or legal representatives, against any such employer for damages, on account of such injuries so received, the same shall be prima facie evidence of neglect on the part of such employer; but the employer may show by way of defense that such defect was not discoverable in the exercise of ordinary care.”

It is claimed that the words "or his personal or legaí representatives” do not necessarily refer to the administrator suing for the benefit of the beneficiaries named in Section 10772 of the act, but may have reference to an administrator suing for personal injuries for the benefit of the estate of the deceased employe, he having survived his injuries and having subsequently died from some other cause.

A study of the preceding and subsequent sections of the act shows that this technical objection is not well taken. The purpose of the act is clearly shown to be to modify the law regulating the liability of the employer for injuries to his employe received by reason of defects of the bind enumerated, both in cases where the employe survives his injuries, and himself sues, and where he dies of his injuries and an action for death from wrongful act is brought by his personal or legal representatives. The sections authorizing the latter act are amended and, as amended, incorporated in the Norris act; they are referred to throughout the entire act in such manner as to make this point clear.

Besides, it would be a work of supererogation for the Legislature, with the limitations claimed, to extend the benefit of Section 6243 to an action brought by the employe’s personal representative, after having granted it to the employe, for such personal representative would have all the benefits of the law which his decedent would have had. Such action, with all its incidents, survives at common law.

It is claimed by counsel for plaintiff in error that Sections 6243 and’6245 of the Norris act, which were charged in this case, are unconstitutional. The former section makes evidence of a defect in the ways and appliance prima facie evidence of neglect on the part of the employer, and the latter section says that the fact that the employe continued in his employment with knowledge of the defect is no defense to the action.

It is said that substantial rights of employers, guaranteed them by the Constitution, are taken away from them by these sections.

Such might have been said of the act of 1851 (59 O. L., 117), entitled, “An act requiring compensation for causing death by wrongful act, neglect, or default,” but its constitutionality was never questioned. •

The same act, amended so as to make the incidents of Sections 6243 and 6245 a part of it, is found in the Norris act. Of the original enactment, Judge McIlvaine said, in the case of Davis v. Justice, 31 O. S., 359, 363:

“Before the passage of this statute, an action for pecuniary-loss, resulting from the death of a human being, was unknown in our practice, and ever since, the only suits for such loss have been prosecuted under its provisions. The statute has always been regarded as an innovation upon the principles of the common law, and as affording the only civil remedy for an injury caused by death.”

We have many other constitutional statutes- which define wrongs and create rights unknown to the common law. It is to the credit of the law that such is the case; it should keep pace with the times, the development of civilization and enlightened modern thought.

The rule adopted in the Norman case, requiring the employe to assume all the hazards of his employment, apparent or open to his investigation, had its origin less than a hundred years- ago, and was based upon the relation of master and servant then existing, the two working together at the same bench, both equally cognizant of all the dangers incident to the employment. Since that time the factory system has grown up, business is done on a larger scale; by the introduction of new motive power and machinery the dangers surrounding workmen have- been largely increased, but the law has left the burden of all these dangers upon the workmen. The law has not developed with the times. Courts and lawyers, as well as the public generally, have come to the opinion that these harsh rules of the common law should be abolished and rules more humane and in accord with modern conditions adopted. This thought, to a certain extent, has crystalized in the Norris act and other legislation recently enacted.

The Norman case could have been overruled by the Supreme Court; instead of that, it has been overruled by the Legislature, which is better. The Legislature can make general rules applicable to all similar eases, promulgated to all the people, while a rule of law adopted by a court is based upon the facts of the particular ease before the court, and is apt to be too narrow in its scope and leaves the matter open to further litigation between individuals who seek to distinguish their own cases from the one in which the rule has been laid down. In addition, the decisions of courts are first known only to the legal profession, and but slowly and gradually reach the people in all their force and effect.

Nothing in the Norris law, which invades the constitutional rights of employers, has been called to our attention. It -is true that it modifies the contract which formerly was implied from the relation of employer and employe;' it defines that contract with some particularity; every employer can hire workmen with the statute in mind; the employer is no more required to hire men than the men are to work for him. If the relation is assumed, it is assumed with the law as part of the contract of employment.

We have examined all complaints with regard to the charge, and find no reversible error in it. It might have .been made more concrete and full on some points, but was in no sense misleading. In the absence of special requests for further instructions, a failure to cover all the questions involved in the case is not ground for reversal, provided the jury was not misled by the charge as given. Railway Co. v. Ritter, 67 O. S., 53.

Judgment affirmed.


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    BAKERIES LOCATED IN CELLARS.
    Circuit Court of Hamilton County.
    Joseph Bernhardt v. Edward Wise, Constable.

    Decided, July 20, 1912.

      Construction of the Statute Relating to BaTceries Located in Basements or Cellars — Habeas Corpus Not the Remedy for One Arrested Thereunder — Section 1012 P. & A. Onno. Q-. C.

    1. There should be read into the present statute relating to bakeries the exception of the original statute as to bakeries then located in basements and cellars.
    2. Inasmuch as one arrested for maintaining a bakery in a basement or cellar has, under this construction of the statute, a complete defense, habeas corpus will not lie to secure his release.

      Powel Crosley and John G. Rogers, for plaintiff in error.

      John A. Deasy, • contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.

       For opinion below in the same case, holding the present act to he a reasonable exercise of the police power of the state and therefore constitutional, see 12 N.P.(N.S.), 545.

   We are of the opinion that provisions of the law passed in 1896 (92 O. L., p. 393), which excepted from its provisions bakeries then used in basements and cellars, should be read with the provisions of Section 1012 of the General Code, and the same section of the Revised Statutes.

If we are correct in this, and we limit our judgment to this, the justice of the peace had jurisdiction to issue his warrant and cause the arrest of the plaintiff, and habeas corpus is not the remedy in which plaintiff can try his right, for he has a complete défense, which alone can be shown on the trial, that he does not come under the provisions of the law. Habeas corpus is available only where the court has no jurisdiction to cause the arrest and detention, and is not the form of action in which to try the guilt or innocence of the party.

In this view of the matter the court below did right in dismissing plaintiff’s petition and said judgment should be affirmed.


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    EFFECT OF DENIAL FOR WANT OF KNOWLEDGE.
    Circuit Court of Cuyahoga County.
    Harold D. Dennis v. Albert R. Landreth, Jr., et al.

    Decided, May 29, 1905.

      Evidence — As to Acceptance of Option for Cancellation of Lease — Pleading — Averment of Filing of a Certificate of Partnership — Denial for Want of Knowledge.

    A denial in the answer of the defendant “for want of knowledge” is insufficient, where referring to a public record, to put the plaintiff upon his proof.

      G. P. Morgan, for plaintiff in error.
    Henry, J.; Marvin, J., and Winch, J., concur.
    Error to the court of common pleas.

       Affirmed without opinion, Dennis v. Landreth, 74 Ohio State, 450.

   This cause is here on error, the parties being reversed. The defendants in error were partners doing business as the Mason Supply & Seed Company. As such they leased from plaintiff in error the premises where they did business. At the request of plaintiff in error, they gave him a written option for the cancellation of the lease on payment of $700, and said option was subsequently, in writing, accepted, but the $700 was never paid, and the action below was begun to recover the same. The plaintiff in error claims, however, that on the afternoon of the day he accepted the option, he went to his tenant’s office and there with their acquiescence and consent revoked his acceptance by tearing his signature from the said writing. The sole issue of fact was whether defendants in error acquiesced and consented. The jury found they did not, and we think the evidence justifies the verdict. It is said that the charge was erroneous, but having read it carefully, we think otherwise.

Another claim of error is founded upon the failure of plaintiffs below to offer any evidence in support of the averment in their petition that they had duly filed their certificate of partnership as required by law. The answer’s only denial of this averment is upon the ground of alleged "want of knowledge,” and we think that such denial of a public record is insufficient to put the opposite party upon his proof thereof. The judgment below is affirmed.


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    ALLOWANCE OF ALIMONY PENDENTE LITE.
    Circuit Court of Belmont County.
    Wilfred I. Adkins v. Emily H. Adkins.
    Decided, May Term, 1912.

      Divorce and Alimony■ — Where Petition States a Cause of Action — Alimony Pendente Lite May Be Allowed — Without Establishing the Allegations of the Petition .by Proof.

    1. On an application for alimony pendente lite in a suit for divorce and alimony, the court may make an allowance to the wife for her sustenance and expenses during the suit, without requiring proof on her part of the truth of the allegations of her petition, charging aggressions of her husband, which constitute the grounds for such divorce and alimony.
    2. The court may make an allowance of alimony pendente lite to the wife on a proper application therefor and notice, where her petition states a cause of action for divorce and alimony, if the court is satisfied that the action is being prosecuted in good faith, ■that the husband is able to pay such allowance, and that the wife has no means of her own to pay for sustenance and expenses.

      Kennon. & Kennon, for plaintiff in error.

      James C. Tollman and George Thornburg, contra.
    Norris, J.; Pollock, J., and Metcalfe, J., concur.
   This is a proceeding in error to reverse an order of the court of common pleas granting alimony to the wife pendente lite. The parties are husband and wife. Mrs. Adkins filed a petition for divorce and alimony. After filing her petition she made application to the court for an allowance of temporary alimony for her sustenance and expenses during the suit, giving to the defendant notice of the time' and place of the hearing of the application.

Both parties appeared by counsel, and after a hearing the court of common pleas made an order granting plaintiff temporary alimony. An order by the court granting temporary alimony is a final order, and may be reviewed on error. King v. King, 38 O. S., 370; Niel v. Niel, 38 O. S., 568.

It is claimed by the plaintiff in error that the order of the court below for temporary alimony was not supported by sufficient evidence. It is said the plaintiff offered no proof to sustain the charges of her petition for divorce, and therefore it was error for the court to order defendant to pay alimony pendente lite.

Plaintiff herself was called as a witness by defendant and cross-examined as to her knowledge of the truth of some of the charges in her petition, of some of which naturally she did not have personal knowledge.

What proof is required to support an order for alimony pending suit? Must plaintiff go into the trial of her ease, and prove the truth of her charges against her husband before she is rallo wed temporary alimony? We do not think the law requires such proof, nor so far as this court has knowledge, is it the practice to require it. The subject is governed by the statutes of this state.

Section 7997 provides:

“The husband must support himself, his wife and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able. ’ ’

Section 8000 provides:

“A husband and wife can not by any contract with each other alter their legal relations.”

This section has an exception which is not in this case.

Section 8003 provides:

“If the husband neglects to make adequate provisions for the 'support of his wife, any other person, in good faith, may supply her with necessaries for .'her support and recover the-reasonable value thereof from the husband.” • " "

Section 8004 provides:

“If the wife abandons the husband, he'is not Hable for her support until she offers to return, unless she was justified by his misconduct in abandoning him.”

Such aggression on the part of the husband as would be a ground for divorce, would be sufficient justification for abandoning him.

Section 11994 provides:

“On notice to the opposite party of the time and place of the application, the court, or a judge thereof in vacation, may grant alimony to either of the parties for his or her sustenance and expenses during the suit.”

It would appear from reading this section that the granting of alimony pendente lite does not depend upon who brings the suit, or what the allegations of the ple'adings are. If the Jhusband brought suit against the wife for divorce on account of her aggressions, it would seem that under this statute the court would still be authorized to grant her temporary alimony for her sustenance and expenses.

This is confirmed by a reading of Section 11993, which provides that where a husband is granted a divorce for aggressions of the wife,'the court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just. So that the rule appears to be that so long as the marriage relation exists between the husband and wife the husband, if able, must support his wife, and if a suit for divorce is brought by either party the court may grant temporary alimony for the other’s support, and the necessary expenses of the suit.

It is not denied in this case that the petition states .a cause of action for divorce and alimony. We assume that the court of common pleas found that the action was brought and was being prosecuted by the plaintiff in good faith. In so finding, we are not able to say the court erred. There is no dispute in this case that the husband is able to support his wife, and that she has no means.

In Graves v. Graves, 50 O. S., 186, our Supreme Court hold that on hearing a petition by the wife for divorce and alimony, the court may refuse her a divorce and still grant her alimony. See also Lockwood v. Crum, 34 O. S., 1.

In Taylor v. Taylor, 25 O. S., 71, it is said, “The allowance, if any, in such eases, rests in the sound discretion of the court or judge,” in speaking of an allowance of temporary alimony.

Counsel for plaintiff in error, in their brief, discuss the question of -the exercise of discretion .by the court. We think it is a legal discretion conferred by statute, and to be exercised in accordance with its provisions. The court should be satisfied that the parties are husband and wife; that a petition has been filed stating a good cause of action for divorce; that the action is being prosecuted by the wife in good faith; that the husband is financially able to pay her temporary alimony, either by his earning capacity or other means; that the wife has not sufficient means of her -own to maintain herself and prepare her case for trial. None of these facts are seriously disputed in this case, except perhaps the good faith of the suit.

We do not think our statutes should be construed so as to require the plaintiff, on application for temporary alimony, to offer evidence to support the charges of her petition of aggressions on the part of. the husband. We believe this to be the general rule of the law.

The 14th Cyclopedia of Law and Procedure on page 748 says:

“Subject to the conditions hereinafter noted, a wife is entitled almost as a matter of course, the merits of the case not being carefully scrutinized, to an allowance of temporary alimony, whether she be plaintiff or defendant, and although the statute makes no provision therefor.”

A large number of eases are cited in support of the text. Out of the numerous authorities we shall only refer to two or three.

Cooper v. Cooper, 85 Ill. Appeals, 575, says:

“In fixing the amount of alimony the court may take into consideration the fact of the wife’s misconduct, but that a less sum should be allowed her on that account, even when her misconduct has contributed to the separation of the parties, has no application to a motion for temporary alimony and suit money.”

And again the court says:

‘ ‘ The court will not look into the merits on a motion for temporary alimony, but will only investigate sufficiently to determine whether the complainant’s bill is exhibited in good faith. Whether the complainant has in fact a meritorious case, or whether the truth in respect to the issues on her side, can not be determined until the proof shall have been put in and a hearing had.”

This case is affirmed by the Supreme Court of Illinois in the 185th’ Ill., 163. The Supreme Court laid down the same rule that we have quoted from the Appellate Court. Another leading case by the same court is Harding v. Harding, 144 Ill., 588, quoting from the syllabus:

“In a divorce or separate maintenance suit, while the matters in issue are being litigated, the wife shall be presumed to be entitled to support until it is shown by the result of the trial that her claims are forfeited. This rule grows out of the duty of the husband to maintain and support his wife, and protect her from oppression and wrong.”

The court in the opinion in this last ease say on page 595:

“It is no objection to the allowance being made that the husband denies what the wife alleges. To ascertain the truth in respect of the issues made by the bill and answer is the purpose of the trial, and to enable the wife to properly present her case, the purpose of the allowance. To hold that the mere denial by the defendant of the matters alleged would' put the complainant upon proof would be subversive of the whole theory upon which the allowance of temporary alimony is based.”

And the court cite a large number of authorities: Bishop on Marriage and Divorce, 384, 406, 423; Stewart on Marriage and Divorce, Secs. 383-386; Brown on Divorce, 244; Poynter on Marriage and Divorce, 247; Newman v. Newman, 69 Ill., 167.

We find no authorities in conflict with the ones we have cited. We do not think plaintiff was required in this case to offer proof of the truth of the allegations of her petition of the aggressions of the husband, to authorize the court to allow her alimony pendente lite, and we do not think there was any error upon the part of the court in making such allowance, and the order is affirmed.


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    INJURY TO A BOY BY BEING RUN OVER. ON THE STREET.
    Circuit Court of Hamilton County.
    The John C. Roth Packing Company v. Julius Wainer, a Minor.
    Decided, August 3, 1912.

      Negligence — Weight of Evidence — Age of Infant Plaintiff an Element in Determining — Evidence as to X-Ray Photographs.

    In an action for injuries to a boy twelve years of age, alleged to have been due to the negligence of the defendant, a reviewing court in weighing conflicting evidence will be influenced toward sustaining the judgment below in favor of the plaintiff by the consideration that the jury in determining the question of his contributory negligence no doubt had regard for Ms tender years.

      Denis F. Gash, for plaintiff in error.

      Max Levy, contra.
    The pl-aintiff below, a boy of twelve years, was riding a bicycle on Ninth avenue, near Central avenue, Cincinnati, when he was run into by a three-horse team belonging to defendant which was being driven rapidly around the corner. He was thrown under the horses by the collision, and one of them kicked him on the right hip, fracturing one of the bones of the pelvis. The jury below rendered a verdict in his favor for $1,750.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   Under the conflicting evidence in the above- cause this court can not say that the verdict and judgment rendered thereon.are against the weight of the evidence, nor that defendant in error was guilty of contributory negligence.

The jury no. doubt considered the age of the plaintiff below and found under all the circumstances that he, a boy of tender years, was free from negligence.

"We do not think there was- prejudicial error relative to the evidence concerning the X-Ray photographs, and the court was correct in overruling the 'motions of plaintiff in error for an instructed verdict.

As there is no error in the record the judgment is affirmed.


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    SURETY ON APPEAL.
    Circuit Court of Monroe County.
    The Citizens Trust & Guaranty Company v. Fred L. Timberlake.
    Decided, April Term, 1912.

      Appeal — From a> Magistrate’s Judgment in an Attachment Proceeding— Surety Not Released by Release of the Property — No Privity Between Judgment Creditors and Surety — Suretyships for Release of Attachment Property and Those Inuring for the Benefit of the Creditor Distinguished.

    The surety on a bond given to appeal a cause from the judgment of a justice of the peace to the court of common pleas is not released by the plaintiff discharging, after the approval of the appeal bond and before judgment in the court of common pleas, the property of the defendant held by a writ of attachment.

      F. A. Jeffers, for plaintiff in error.

      Maiz ¡c& Kramer, contra.
    Pollock, J.; Norris, J., and Metcalfe, J., concur.
   Fred L. Timberlake, the defendant in error, began an action against one Louis McCallister before a justice of the peace of this county, and caused an attachment to issue on the grounds that the defendant was a non-resident. By virtue of this writ the constable attached a horse, the property of the defendant.

A trial was had before the justice, resulting in a judgment in favor of the plaintiff. After the judgment, and within ten days, the defendant, McCallister, filed an appeal bond, with the Citizens Trust & Guaranty Company as surety thereon. This bond was approved by the justice and an appeal was had to the common pleas court. Such proceedings were had on this action in the common pleas court, that judgment was again rendered in favor of the plaintiff and against the defendant. McCallister having failed to pay the judgment, Fred L. Timberlake then brought an action against the Citizens Trust & Guaranty Company on the appeal bond, to recover the amount of the judgment and costs.

The Citizens Trust & Guaranty Company answered, admitting the proceeding and judgment before the justice, and the execution by it of the appeal bond, the appeal to common pleas court and the judgment against McCallister in that court, but alleged that at the time it executed the appeal bond, and at the time the appeal bond was approved by the justice, the property of McCallister which had been attached was retained by the constable under the attachment; that after the approval of the appeal bond, and before judgment in the court of common pleas, the plaintiff, Timberlake, caused the attached property to be released from the attachment, and it was removed by McCallister' from this county before the judgment was obtained in the court of common pleas; that the value of the property attached was about $200, sufficient to pay the judgment and costs that Timber-lake bad recovered against McCallister.

Tbe answer further alleged that McCallister was > insolvent, and that by reason of these facts it was released from its liability on the appeal bond.

A demurrer was interposed to this answer, which was sustained, and defendant not wishing to plead further judgment was rendered against him.

The plaintiff in error prosecutes this action to reverse the judgment of the court of common pleas, for error in sustaining the demurrer to its answer.

It is urged by the plaintiff in error that when .a surety is compelled to pay the debt of his principal, that he is entitled to be subrogated to all tbe rights of the creditor to the property or securities held by him for the payment of the principal debt, and that when the defendant in error discharged the property held under the writ of attachment, he released the plaintiff in error from liability to him on the appeal bond.

This raises the question whether or not the rule that applies to ordinary guarantee contracts of debtors to creditors, applies to securities on appeal bonds.

The provisions of the code for appeals from justices of the peace to the court of common pleas are as follows:

“Section 10382. In all cases, not otherwise specially provided for by law, either party may appeal, from the final judgment of a justice of the peace, to the court of common pleas of the county where the judgment was rendered.
“Section 10383. Within ten days from the time a justice renders judgment, the parry appealing therefrom must give a bond to the adverse party, though he need not sign it, with at least one sufficient surety to be approved by such justice, in a sum not less than fifty dollars in any ease, nor less than double the amount of the judgment and costs; conditioned, that appellant will prosecute his appeal to effect without unnecessary delay, and that, if on the appeal judgment be rendered- against him, he will satisfy it and the costs.”

The effect of an appeal is to vacate the judgment of the justice of the peace, and transfer the case to the court of common pleas, where the case is again tried de novo. It entirely releases the judgment debtor from liability to the judgment creditor by reason of the judgment of the justice; and the prevailing party before the justice must obtain a judgment in the court of common pleas, before the security on the appeal bond has assumed any legal liability to pay his claim.

In giving an appeal bond there is no privity between the judgment creditor and the security upon the bond.' The judgment debtor, within ten days from the rendition of the judgmenc, enters into a bond with sufficient security to be approved by the justice, conditioned that the appellant will prosecute his appeal without unnecessary delay, and satisfy any judgment and costs that may be obtained against him on appeal.

While the bond is to the adverse party, yet he can not exercise any right of either accepting or rejecting the securities thereon. The perfection of the appeal is entirely within the power of the appellant and the justice.

The giving of an appeal bond is a statutory provision wholly for the benefit of the losing party, enabling him if he so desires to try his case in the court of common pleas, without consulting the wishes of the judgment debtor.

To require the judgment creditor to retain the attachment on the property of the defendant, to await the delays and uncertainties of the trial in the court of common pleas, for the protection of the surety on the appeal bond, under the penalty that if he discharges it he would release the surety, would be inequitable and unjust. He is liable to the officers for the care and safe keeping of the .attached property. This, in many instances, would equal or exceed the value of the property attached, and probably would in the case at bar.

In the case of Curtice v. Bothamly, 8 Allen (Mass.), 336, the syllabus is as follows:

“The surety in a recognizance given to prosecute an appeal from a judgment of a police court is not discharged by the plaintiff’s subsequent release of his attachment upon the writ.”

In commercial transactions, sureties obligate themselves to the creditors for his benefit. It is for the protection of the creditors that the suretyship is created. It is a contract relátion between the creditor and surety. The creditor has a right to accept or reject the offer of suretyship.

“The rights of sureties are.largely creations of equity, and courts of chancery will not hold them liable, where the risk is increased by the act of the party for whose benefit the surety-ship is intended to inure; and, if by the act of the creditor, the surety is injured or exposed to injury, that act may be laid hold of for the surety’s relief.” Day v. Ramey, 40 O. S., 449.

But the giving of an appeal bond is not for the benefit of the judgment creditor, but to give the judgment debtor a right to a new trial. If the surety on the appeal bond had refused to interfere, the officers would have sold the attached property and satisfied the judgment; after the giving of that bond, the judgment creditor must obtain a new judgment before he can assert his claim .against the judgment debtor.

In the opinion in ease of Curtice v. Bothamly, supra, the court say:

“He can not be held as contracting with the surety that he will preserve his attachment, nor can he be regarded as a trustee of the surety to preserve the attached property for his indemnity. ■ The recognizance is merely an independent security, which the law gives him when his adversary appeals from the judgment which he has obtained, and he is at liberty to waive or release his attachment and rely upon the recognizance in whole or in part, as he may see fit. ’ ’

It would be inequitable to apply the same rule to the release of attached property by judgment creditors in favor of a surety on an appeal bond, that are applied to suretyships which are intended .to inure to the benefit of the creditor.

The judgment of the court below is affirmed.


text:
    LOITERING NOT A PUNISHABLE OFFENSE.
    Circuit Court of Hamilton County.
    In Re Opal Howard.

    Decided, May 25, 1912.

      Municipal Corporations — Invalidity of Ordinance Making Loitering a Punishable Offense — Sections 3616 and 3664.

    Authority has not been delegated to municipal corporations in Ohio to provide by ordinance for the arrest and punishment of those found loitering or wandering about the streets.

      Bernard G. Fox, Police Court Prosecutor, for plaintiff in error.

      A. Lee Beaty, W. W. Hester and William Thorndyhe, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.
    Error to the Court of Insolvency.

       Affirming the holding announced in the similar case of In re Stella Dunlap, 13 N.P.(N.S.), p. -.

   Under Section 3664 of the General Code, following Section 3616 thereof, in which “All municipal corporations shall have the general powers mentioned in this chapter (Chapter 1, enumeration of powers), and council may provide by ordinance or resolution for the exercise and enforcement of them,” we find no power delegated to the city of Cincinnati to provide for the arrest and punishment of one “unlawfully found loitering about and wandering about the streets of the city of Cincinnati in the day time and the night time without any lawful means of support and without being able to give satisfactory account of himself. ”

Under the above cited chapter and section the power to pass the ordinance in question in .this case has not been delegated to the municipal corporation.

The conclusion of the court below was therefore correct, and the judgment is affirmed.