text:
    APPELLATE JURISDICTION OF THE COMMON PLEAS.
    Circuit Court of Cuyaboga County.
    B. Schatzinger et al v. The Lake View Land & Improvement Company.
    Decided, November 9, 1910.

      Appeal From Justice of the Peace to Common Pleas — Jurisdiction Where Judgment for More Than %300 is Ashed — Waiver—Compliance With a Bond Put Sidewalk in Satisfactory Condition.

    1. Though the common pleas court is limited in its appellate jurisdiction to the amount ($300) for which a justice of the peace may enter judgment, yet if the parties proceed to trial upon the merits, without objection to .the jurisdiction on the ground that judgment is prayed for more than $300, it is too late upon error to make such an objection.
    2. Where a party signs a bond to repair certain sidewalks and put them in good condition, satisfactory to the other party, the bond is complied with if the walks are put in such good condition as a reasonable man, under like circumstances, would regard as satisfactory.

      Paul Kassulker, for plaintiff in error.

      Frank Higley, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
    Error to the Court of Common Pleas.
   This was an action originally brought in a justice court by the Lake View Land & Improvement Company against the plaintiffs in error to recover three hundred dollars, claimed to be due under a bond in the sum of five hundred dollars, conditional that plaintiffs in error should “repair and put in good condition satisfactory to said Lake View Land & Improvement Company” certain sidewalks mentioned in said bond. A further condition in the bond was to the effect that if said repairs were not finished to the satisfaction of said company any difference between the parties should be submitted to arbitration in the manner provided by the bond. Judgment was for the plaintiff in the justice court, whereupon the defendants appealed the case to the common pleas court, wherein a petition was filed praying judgment in the sum of three hundred dollars, with interest from November 10, 1907, which was about the date of the judgment in the justice court. Pleadings being filed in the common pleas court the 'case went to trial there without objection as to the amount claimed in the petition, resulting in a verdict for the company in the sum of $331.20, an amount $2.40 less than $300 with interest from the time of the filing of the transcript for appeal to said court.

Motion for new trial being overruled, the cause has been removed to this court by proceedings in error and we are asked to review certain questions which are raised by the petition in error, which are as follows:

First. That the verdict is not sustained by sufficient evidence and is excessive.

We overrule this proposition because we find in the bill of exceptions evidence which might well warrant the jury in arriving at the conclusion which it came to.

Second. Misconduct of the jury, in that jurors repeatedly fell asleep, which fact being drawn to the attention of the court, and objection being made by both parties at various stages of the trial, resulted in no material improvement in the conduct of the jury in this respect.

We are unable to say that any prejudice resulted to plaintiffs in error by reason of such plain misconduct of members of the jury because the point was not properly saved by sufficient exceptions taken at the time.

Third. It is claimed that the common pleas court was without jurisdiction to render any judgment in the ease, exceeding the sum of three hundred dollars, the law being that where a case is appealed from a justice of the peace to' the court of common pleas the latter court is limited in its appellate jurisdiction to the amount for which the justice is authorized to enter judgment, which amount is $300.

This seems to be the holding of the Supreme Court in Woolever v. Stewart, 36 Ohio St., 146.

The answer to this is that plaintiffs in error did not save their point. They permitted the case to be tried without objection upon this score. The Supreme Court has thus stated the law in the case of Thomas v. Pennrich, 28 Ohio St., 55:

“In a case of which the court of common pleas would not have had original jurisdiction, brought into that court by appeal from the justice of the peace, if the parties proceed to trial upon the merits, without objection to the mode in which jurisdiction was taken, it is too late upon error to make such an objection.”

Later we find the same proposition re-stated in the third paragraph of the syllabus of Crawford’s case, 68 Ohio State, 58, as follows:

“Where parties voluntarily, and without objection, submit their controversy to a court having jurisdiction of the subject-matter, and the cause proceeds therein regularly to trial and final judgment, they will be held to have waived their right to object to the jurisdiction of that court even though the cause may have been taken to it by appeal from an inferior court which had not jurisdiction of the subject-matter.”

Fourth. It is complained that certain requests to charge, preferred by the defendant below, before argument, were not given.

As these requests were not preferred in the manner required by the statute with regard to charges to be given before argument, there was no error in refusing to give them at that time.

Fifth. It is said that the charge as given by the court is erroneous on the proposition that the work specified in the bond must be done to the satisfaction of the land company.

On this subject the court said:

“Where a party signs a bond to perform work to the satisfaction of the other party, in law a very high degree of performance is required, and under such bond as the one in question, the plaintiff had a right to refuse to accept as a full compliance with the terms of the bond any such repairs in the sidewalk as. left defects in the sidewalk, providing only that the plaintiff in rejecting the sidewalk acted in good faith, was honestly dissatisfied with the same, and I say to you also if you find the plaintiff acted in good faith in rejecting such defective sidewalk it is immaterial that others might have been satisfied with the work performed by the defendants.”

We think that this was not a proper application of the rules of law to the facts of this case.

Attention is again called to the wording of the bond, which is, that the walks were to be repaired and put in good condition satisfactory to the land company. We think that this agreement falls within the cases of operative fitness or mechanical utility and not those of fancy, taste or judgment, as set forth in 9 Cyc., 618. On this subject we concur with the opinion of Taft, J., in the case of Elsas v. Meyer, 21 Bull., 346-348, expressed as follows:

“Where a man agrees to furnish an article to the satisfaction of another without other qualification, the rule undoubtedly is that if such satisfaction does not appear, whatever the reason for its absence, the contract is not fulfilled. But where the expression is used in connection with other words of qualification, there a different rule applies.. Now, át bar, all these things were to be modern and first class in every respect. If they come up to this description, the defendants ought to have been satisfied, and a mere whim can not be urged successfully as a defense. We follow in our views of the word 'satisfactory’ in this contract, the case of Doll v. Noble, 18 Abbott New Cases, 45, where in an elaborate note all the cases are collated and distinguished.”

Under the bond the jury should not have been confined to a determination merely of the good faith of the plaintiff below, or whether it was honestly dissatisfied with the repair work, but should have been instructed by the court that before finding for the plaintiff, it must first find that the walks were not put in such good condition as a reasonable man, under like circumstances, would regard as satisfactory. Berthold v. St. Louis Elec. Con. Co., 165 Mo., 280.

For this error in the charge, the judgment is reversed and the cause remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    CONSEQUENTIAL DAMAGES CLAIMED UNDER THE GUARANTY OF A HORSE.
    Circuit Court of Hamilton County.
    Degenhardt v. Billings.
    Decided, December 10, 1910.

      Guaranty — Of a Horse as Sound and Adapted to Family Use — Not Available for Damages Suffered in a Runaway — Negligence of Purchaser.

    The guaranty of a horse as sound and a good family horse is not available to the purchaser as a basis for damages resulting from his running away, where the purchaser from personal experience became aware of the vicious disposition of the horse before the run- . away occurred.

      H. C. Busch, for Degenhardt.

      Powell & Smiley, contra.
    Swing, J.; Giffen, P. J., and Smith, J., concur.
   This was an action in the court of common pleas to recover damages resulting from a horse running off, which horse Billings had sold to Degenhardt, and which Degenhardt claims Billings represented to be a sound horse and a good family horse. The horse ran away, breaking up the coupe and harness and dangerously wounding Degenhardt’s wife. The damages claimed were $1,000, of which amount $25 was for medical services for the horse.

Degenhardt testified that in buying the horse he relied on the representations of Billings as to the horse being a good family horse and that the horse was sound." He says he drove him three times; that the first time he drove him he found the horse to be a hard puller on the bit, always wanting to break from a jog trot into a gallop. On page 25 of the bill of exceptions, Degenhardt testified as follows:

“Q. And you found then after the second or third time you drove him, he was not a family horse? A. That is what I found out; yes, sir.
' ‘ Q. He was not a good driving horse ? A. No, sir; he was not.
“Q- He would be dangerous for anybody? A. Dangerous horse to drive.
“Q. You knew that? A. Yes, sir.”

This information came to Degenhardt before the horse ran away. He did not then rely on the statements of Billings as to the horse being a family horse or as a horse being sound. He had by actual experience found out that the horse was a dangerous and unsafe horse to drive, and knowing- the horse to be unsafe and dangerous, he must be held to have assumed all the risk of any damage to himself which occurred by reason of the dangerous character of the horse.

This being the only ground for recovery stated in the petition, and the evidence on this point being without contradiction, the court did right in directing a verdict for the defendant at the conclusion of the plaintiff’s evidence.

Judgment affirmed.


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    WHEN A MOTION FOR A NEW TRIAL MUST BE FILED.
    Circuit Court of Hamilton County.
    The City of Cincinnati v. John Kilgour.
    Decided, November 26, 1910.

      New Trial — Three Days for Filing Begins to Run, When — Time for Filing Bill of Exceptions — Section 11518.

    Where a motion for a new trial is, under Section 5307, Revised Statutes, made within three days after the announcement by the court of its conclusion upon the issues joined, a bill of exceptions, filed more than forty days after the overruling of such motion, is too late and will on motion be stricken from the files (Section 5301, Revised Statutes).

      Charles F. Hornberger, Assistant City Solicitor, for plaintiff in error.

      Burch & Johnson, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concnr.
   This case was submitted upon a motion to strike -the bill of exceptions from the files because not filed within forty days from the overruling of the motions for a new trial.

Two motions for a new trial were made, one within three days from the oral decision by the court, the other within three days from the entry of judgment, both being overruled.

Section 5307, Revised Statutes (11578, General Code), provides that a motion for a new trial ‘ ‘ shall be made within three days after the verdict or decision is rendered. ’ ’

The word decision is here used as the means of expressing the finding or conclusion of the court in a case submitted without the intervention of a jury, just as the verdict conveys the finding of a jury. In each case the finding is suspended by the application for a new trial, and where the motion for a new trial is overruled, a judgment is entered upon the journal as the final determination of the case. Both the verdict by a jury and the decision of a court are subject to review, before judgment is entered, each being treated as a preliminary determination of the issues in the ease. As said by Spear, C. J., in the case of Coe v. Erb et al, 59 O. S., 259, at 263:

“The requirement that all judgments must be entered on the journal carries the implication that until that is done the judgment is inchoate only; it is incomplete. Though possessing the character of potentiality, it lacks the character of actuality, and hence is without probative force. ’ ’

It seems proper therefore that, before it is given such probative force, the application for a new trial should be heard and determined, and we think the Legislature used the word decision advisedly, and intended to thereby distinguish the announcement by the court of its conclusion from the judgment as evidenced by journal entry. This view is supported by the cases of Ashton v. Thompson, 28 Minn., 334, at 335; Railway Co. v. Maddux, 134 Ind., 573, and other cases collected in 9 Enc. of Law, 2 and 3.

It follows therefore that the bill of exceptions should have been filed within the statutory period after the first motion for a new trial was overruled.

Motion sustained.


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    EVIDENCE JUSTIFYING CONVICTION OF MURDER. IN THE FIRST DEGREE.
    Circuit Court of Wood County.
    Paul Zeltner v. State of Ohio.
    Decided, November 3, 1899.

      Criminal Lcno — Trial for Homicide — Events of Pursuit Competent— Testimony as to Reputation — Previous Attempts of Defendant to Shoot Another — Opinion of Witness as to Effect of Certain Conduct — Definition of the Three Degrees of Unlawful Homicide — Time Not a Requisite in Determining Premeditation.

    1. On a trial for homicide the state may prove what took place in the pursuit and capture of the defendant.
    2. The subsequent admission of evidence, previously erroneously excluded, cures the error of excluding such evidence.
    3. A witness called by the accused to testify as to the reputation of the accused as a quiet, peaceable citizen may be asked on cross-examination if he had not heard of instances of trouble the accused has had with his neighbors.
    4. In a trial for homicide evidence that the defendant on a former occasion attempted to shoot another person is not competent, and it is not error to exclude such evidence.
    5. In such a' trial a witness offered- by defendant to prove a quarrel with the deceased may be asked on cross-examination, whether “anything occurred there in W’s (the deceased) • conduct, or language or manner to arouse anybody”?
    6. A charge of court is correct which defines the different degrees of murder as follows: “If the killing was unlawful only, with or without purpose or intent to kill, not malicious and without deliberate and premeditated malice, the degree of crime is manslaughter; if the killing was unlawful and malicious and with a purpose and intent to kill, but without deliberate and premeditated malice, the degree of crime is murder in the second degree; if all of these elements were present, if the killing was unlawful and malicious with deliberate and premeditated malice and with a purpose and intent to kill, theh the degree of crime is murder in the first degree.”
    7. In explaining the element of premeditation in murder, it is not error to charge that “it is not the time of deliberation and premeditation that is requisite, but the actual existence of deliberation and premeditation before the time the fatal shot is fired.”

      F. A. Baldwin, E. T. Dunn and William Ramsey, for plaintiff in error.

      E. G. McClelland,, Prosecuting Attorney, and J. O. Troup, contra.
    King, J.; Haynes, J., and Parker, J., concur.
    Error to Wood Common Pleas Court.
   On the twenty-fifth of March, 1899, one Elias H. Westenhaver came to his death in this county as alleged in an indictment against the defendant, at the hands of the defendant, Paul Zeltner, and one John Zeltner, whom, it is alleged, shot him to death on.that date with a revolver. After due proceedings were had Paul Zeltner was brought to trial on that indictment and a verdict of guilty of murder in the first degree rendered against him with a recommendation on the part of the jury for mercy and he was sentenced to the penintentiary of the state for life in pursuance of a statute recently passed.

It is claimed there were errors committed on the trial of the case, in the admission and rejection of evidence,'and in the charge of the court, and it is also claimed that the verdict is not sustained by the evidence. I will notice briefly these contentions.

On page 103 of the bill of exceptions one Clark was asked what Westenhaver had said or read in the presence of the jury about the contents of a letter. It was objected to by counsel for the state that the witness ought first to see the letter. The court sustained the objection. No argument or authority is cited to the court showing that this ruling was erroneous; besides the letter was afterwards offered in evidence and read to the jury.

On page 119 of the bill of exceptions the witness, Alfred B. Farmer, was first examined about his going to the defendant’s house, or going to the vicinity of his house on Saturday evening, the date of the homicide. He was inquired what time he got there, and he said seven or eight o’clock. This question was asked. “Did you gain admittance to the house then?” Ans. “No.” Q. “Why did you not gain admission to the house?” That was objected to; overruled and exception taken. Ans. ‘ ‘ The reason was, that John and Paul Zeltner were in the house-armed and refused to allow anyone to come over there.” A motion was made to strike ont the answer; overruled and exception. We do not think there was any error 'in the admission of that. We think that the state had a right to prove what took place in.the pursuit and capture of the defendant. It is suggested that the answer contains more of an opinion than it does a fact, but all of the evidence of what took place around the house, while the defendants were inside, is more or less opinion, and there is nothing to the prejudice of the defendant in so far as his answer is an opinion. In so far as it was a statement of fact it was entirely competent.

On page 131 of the bill of exceptions J. D. Burgoon was called by the defendant and testified in his behalf. He was at the time holding the position of justice of the peace, and this homicide or quarrel started or occurred in his office when there was a trial before him and a jury; Mr. Westenhaver was a party to that ease and acted as his own attorney. It appeared in evidence that he had made a statement of his case to the jury and the witness is asked how much Westenhaver claimed, and the answer was a hundred dollars.

“Q. That was for professional services in what case? Not answered.
“Q. Did Mr. Westenhaver make any statement of the case that was tried before you ? Ans. After the jury was sworn ?
“Q. Yes, sir? Ans. Yes, he did.
‘ ‘ Q. I will ask you if in making that statement he said anything about what his claim was for? Ans. Yes, sir.
“Q. What did he say to the jury that his claim was for?”

The state objected; sustained and exception. The defendant stated he expected to prove by witness in answer to question that Mr. Westenhaver stated at the time he made the statement to the jury of the case, that he claimed a hundred dollars due him from the defendants, John and Paul Zeltner, for services rendered by him in the case of Watson against John and Paul Zeltner, in the Court of Common Pleas of Wood County, Ohio.

This was competent and ought to have been allowed to be answered, but the refusal of the court to allow it to be answered was not prejudicial to the defendant since it otherwise appears that Westenhaver did state that to the jury and that is what the suit was brought for, and the defendant in this ease was one of 'the defendants in that, and he knew he was sued for a hundred dollars. If Westenhaver made any statement of the case at-all, he certainly would have stated he claimed a hundred dollars.

On page 135 is another exception in the testimony of Mr. Hoot; he was present at the time of the trial and the time of the homicide or shooting which resulted in the death of Westenhaver. He was called to testify on this occasion to the reputation of Paul Zeltner as a quiet, peaceable citizen. He had stated he had the means of knowing it, and when inquired of as to what his reputation was he said: “It is good as far as I can hear and learn.” He was then cross-examined thus: “You have heard of several instances of trouble he has had with his neighbors?” Objection; overruled and exception. Answer. “I have heard of his having one little trouble; that is all. ’ ’

We think that was competent cross-examination.

On page 141 James Beard was called to testify to character. He testified to the opportunties he had to observe him and of his manner and intercourse with other people; he said he had as good an opportunity as anyone; that he made his acquaintance soon after he moved in the vicinity where defendant resided which was from the middle of March, 1897, until the month of February, 1899, on the farm adjoining, and the examination is as follows:

“Q. Was he a peaceable orderly law-abiding citizen? Ans. I call him a good peaceable law-abiding citizen.
“Q. Have you ever seen him tested in that regard? A. Well, not altogether. I have as far as knowing of things myself.
“Q. I mean his character as to being peaceable — a peaceable man; have you ever seen him tested in that regard ? ’ ’

The state objected; sustained and exception. Defendant stated he expected to prove by answer to question that he has many times seen and heard defendant jeered and taunted by people, w'hich he did not resent, but acted peaceably in all respects.

“Q. Do you know what his reputation is in that community as being a peaceable and quiet man? By general reputation I mean the estimate by which he is held in that community in that respect. A. He was honored.”

On cross-examination he said -he had heard of his having trouble, but he did not know very much about it.

We think the defendant had ample opportunity to get all that this witness knew about the defendant as to his character for peaceableness or his being a law-abiding citizen and that the inquiry of him whether he had ever seen him tested in that regard, was to put to him a question containing a word that might not have a very clear indication of what was meant. The defendant was permitted to inquire and ask all the questions he cared to ask as to the extent of the witness’s acquaintance with the defendant, and he is then asked the question upon the particular point involved in the transaction and he testified favorably to the defendant. We don’t think the defendant was prejudiced or that the question was competent.

On page 177 is a question asked of J. B. Dunn. He had been employed by John Zeltner, a brother of the defendant Paul, who was indicted with him, to have set aside a judgment that had been rendered against John by default or failure to appear in court and defend a ease that had been brought against him by one Watson; in that case Westenhaver had at one time been his counsel. It appears before judgment was rendered he had been discharged, and after judgment was rendered this J. B. Dunn was employed. He was inquired of if he had any conversation with Westenhaver about it as follows:

“Q. Did Mr. Westenhaver act for him upon that matter! Ans. No, sir, and he did all he could to induce me not to act.
‘‘ Q. Did you have some conversation with Westenhaver about it! A. I did, just as I come out at the time of the trial.
“Q. You say you did have some conversation with him about that! A. I had.
‘‘ Q. What, if anything, did Mr. Westenhaver say to you about the condition of the pleadings in that case! ”

Objected to, sustained and exception; and counsel for defendant stated he expected to show by answer of the witness to this question that Mr. Westenhaver stated to him that the answer which he filed in the case of Watson against Zeltner did not set up or claim any affirmative relief on the part of the defendant in that case.

That certainly was not error.

On page 195 one Lawrence was called to testify. He 'lived in North Baltimore and he was inquired of if he knew Westenhaver in his lifetime, and he said he did — saw him once in a hotel — and was asked if he knew of his habit of carrying a revolver,, and he said he knew of his having a revolver one night at the Anderson House. The question was asked: “Do you know of his general habit of carrying a revolver ? ’ ’ and he said, ‘ ‘ I have always seen him have a revolver when I was out with him. ’ ’

“Q. • Do you know of his attempting to shoot anyone with a revolver.” State objected; objection sustained and defendant excepted.

Counsel for defendant stated they expected to prove, in answer to question, that Westenhaver on one occasion, in his presence, attempted to shoot a person, and that he frustrated that attempt. Now that was clearly incompetent and could not have any relation whatever to the transaction under investigation before the jury.

On page 200 Mr. Hoot is again a witness. In the lawsuit before the justice on the day of the shooting he represented the two Zeltners as their counsel. He told in the course of his testimony what took place as near as he could recollect between the Zeltners or either of them and Westenhaver immediately preceding the shooting.

On cross-examination he was asked if he was attorney for the defendants and he said he was, and when they made a demand for the papers he told his clients it was all right that Westenhaver would return them and to let him take them. Then this question is asked:

“Then during the time that John was demanding those papers you said to him ‘John, don’t let’s have any trouble about these papers; Westenhaver will bring them back, and they are of no importance in the case, ’ did you not ? Ans. I said that, yes, sir. ’’
“Q. There was nothing occurred there in Westenhaver’s conduct, or language, or manner, to arouse anybody, was there? That is true, is it not?” That was objected to; overruled and exception. Ans. “I don’t think there was at all.”

It was urged that this was serious error, and it may be well doubted whether that answer is competent evidence. But first it must be noted that the witness was called by the defense for the purpose of showing, if it could be shown, that there had been a quarrel between the defendant on trial and the deceased Westenhaver; that this quarrel gradually increased in heat and the defendant grew more and more excited; it being the claim of the defendant that in the heat of that sudden quarrel he took the life of this man and that therefore there could be no purpose to commit murder, much less any premeditation or deliberation- — and he testified on that line as far as he was willing to' go. It is true it was not very far — he does not tell about very much excitement — -he does not make it very dear that the defendant was much excited, nor does he undertake to say that the defendant had any particular reason to be excited if his story is correct about it. Now what is meant by the word “arouse” I don’t know. A person aroused would not be justified in committing murder. There must be something more than a mere arousing of one. A man may be aroused from his natural state, which may be one of lethargy, to a very high pitch of excitement and, in that excited condition, - take human life and be legally guilty of murder rather than manslaughter. Now the word “arouse” as used in that question, was not in our judgment very prejudicial to the defendant though it might be incompetent. It does not express an opinon upon any question that the jury was called upon to decide in this case. Opinions of witnesses may be given as to a condition of excitement under which one is laboring. Had this witness been asked what was the condition of Zeltner, it would have been proper for him to have answered (Stewart v. State, 19 Ohio, 302, 307). The only difficulty in this question is, he was not called upon directly to say what was his condition or otherwise, but to say what, if anything, had happened that ought to have excited him. Now in Rogers, Expert Test., 11, it is said that a witness may testify that a person acted strangely, and on the next page that he may testify whether a thing was done ;in a jocular manner.

He might have stated what Westenhaver said and did, whether it was insulting, as leading up to the time that Westenhaver did in. some manner excite the angry passions of .this defendant. It is stated in Gillet, Indirect & Collat. Ev., 267, that a witness may testify whether he observed in another the manifestations of joy, despondency, fright, intoxication, friendliness or hostility. If the opinion which it is sought to have the witness express is based on multifarious facts (the right to sum up those facts resting on the ground of necessity), the witness should first be required to state, so far as possible, the facts upon which he bases his opinion; and in a note beginning on page 267 and running over on to page 268 there are several authorities cited along that line, the substance and effect of which is, that witnesses are permitted to state their conclusions of the condition of mind of a person as to his being despondent, joyful, angry and all those things.

Now taking all this into consideration the fact that this was cross-examination of a witness called by the defendant to show excitement and anger overpowering the defendant — at least that was the purpose to which they sought to have the witness testify here — the fact that this was cross-examination and the fact that the question itself does not go to the point of showing whether there was enough to overwhelm this man so that he did not have consciousness or conscious malice at the time this shot was fired, or a well-formed purpose, and as one’s appearance may be given by a witness who observed it -we do not think that we should hold that this was such error as to be prejudicial to the defendant.

On page 251 of the record Paul Zeltner is testifying, and among other things he was inquired „ of • whether he went to Toledo a day or two before this homicide, and whether he purchased some revolvers and guns there. That is objected'to, but we think that might be asked of him on cross-examination.

On page 287 Andrew Roach testifies. He was a deputy sheriff of Wood county and went up to this place after learning of the homicide — reached the Zeltner house about one or two o’clock in the afternoon — the homicide having occurred about twelve o ’clock noon. John and Paul were at the house or in front of the house on the south side thereof, and he is inquired of whether either of them invited him to come to the house, stating that they would surrender, and he answered, “No, sir.” There is an objection to that, and it is suggested to the court to say to the jury that that can only be considered for the purposes of contradiction and not as substantive testimony in the case. We think it was competent for that purpose. I don’t think that Paul Zeltner testified that he had invited Mr. Roach into the house but he testified he was willing to surrender to the sheriff — that some one had told him a deputy sheriff was there, but he did not believe what was said. We think it might be shown in general contradiction of the story he told that he was willing to surrender himself to the officers of the law. We think it might have been shown that, although he was informed that a deputy sheriff was there, he did not invite him to come to the house. It contradicts more the effect of the defendant’s testimony that he was willing all the time to surrender. Roach is also asked again to state where the first shots came from after he arrived on the ground. It is shown, and the defendant testified that his house was surrounded by people clamoring for them, and that some of these people were armed and there was more or less shooting. He testified that he and his brother fired each about fifteen or twenty shots from their rifles. The witness is asked where the first shots came from, and that is entirely competent, we think. It was not substantive evidence of the killing but it was part of the defendant’s immediate conduct which can always be given in evidence, but it must be confined to rebuttal as the court said.

On page 290 of the record James Donaldson was called in rebuttal and he is asked to state whether he met John and Paul Zeltner at the house in January of that year preceding March, and if in a conversation that was there had John did not say in Paul’s presence, “If any attorney makes us any trouble any more and undertakes to make us pay what we don’t owe we will put an end to him,” and if Paul Zeltner didn’t laugh and say, “Yes, that is what we will do, and John and I will run own business hereafter.” That was objected to, overruled and exception. Paul was asked that question, and denied that that language was used or anything like it. We think it must be held to be competent.

These are all the exceptions to the evidence, admitted or refused.

. It is claimed there were some errors in the charge of the court. The charge is quite long and I will not read it, but parts seriously complained of are found first on pages 326 and 327. It is claimed that the court erred in its definition of the crime of manslaughter. The court said that the statute defines murder in thrée degrees and states what they are, defining them:

‘ ‘ If the killing was unlawful only, with or without 'a purpose or intent to kill, not malicious and without deliberate and premeditated malice, the degree of crime is manslaughter; - if the killing was unlawful and malicious and with a purpose and intent to kill, but without deliberate and premediated malice, the degree of crime is murder in the second degree; if all of these elements were present, if the killing was unlawful and malicious with delibérate and premeditated malice and with a purpose and intent to kill, then the degree of crime is murder in first degree and in this ease if you find the defendant guilty it will be your duty to say that you find him either guilty of manslaughter, or murder in the second degree, or murder in the first degree, according as the elements which constitute their respective degrees of homicidal crime have been established by the evidence beyond a reasonable doubt. As pointed out to you the difference between murder in the second degree and manslaughter is, that in murder in- the second degree the killing must have been malicious with a purpose, or intent to kill. Whereas in manslaughter the element of malice growing out of a purpose to kill need not be present. When a person is killed under the influence of great passion or in the heat of blood produced by an adequate or reasonable provocation, and before a reasonable time for the blood to cool and reason to resume its habitual control, and is the result of temporary excitement by which the control of reason was disturbed, rather than by wickedness of héart or cruelty or recklessness of disposition, then the imputation or inference of malice growing out of the killing is repelled and the crime is only manslaughter, but the provocation must have been given at the time of the killing, and must have been of such serious character as would commonly produce a degree of anger, rage, resentment or terror in a person of ordinary temper sufficient to render the mind incapable of reflection. Did Mr. Westenhaver at the time and place of the alleged killing by any words or acts oh his part give such provocation to his alleged slayers as were calculated to excite violent and irresistible passion in a reasonable person and render him incapable of cool reflection?”

The particular part of this charge that is most criticized is the first clause:

“If the killing was unlawful only, with or without a purpose or intent to kill, not malicious and without deliberate and premeditated malice, the degree of crime is manslaughter.”

In that the court says that if the killing was unlawful only with a purpose and intent to kill, not malicious, that it would then be manslaughter, and it is contended that that was erroneous, but when you take all that the court has said it must be seen, I think, that the court gave a very full, and we can not discover how in anywise it was an unfair, definition of the crime of manslaughter.

I will not further discuss that because we are of the opinion that the jury having found the elements of murder in the first degree in this case, that the definition of the court given to the crime of manslaughter is immaterial, because the difference as defined in the charge is so great between tiiat and murder in the first degree, that the jury could not have been confused between the two crimes, however they may have been between the definition of manslaughter and murder in the second degree. Passing further along, the court stated the statutory definition of murder in the first degree, and then he says:

“To constitute deliberate and premeditated malice within the meaning of the law, the intention to kill must have been deliberated upon, and the design to do it formed before the act which resulted was committed. If a person has actually formed a purpose maliciously to kill, and deliberated and premeditated upon it before he performs the act, he is guilty of purposely, and with deliberate and premeditated malice, killing another, however short the time may have been between the formation of the purpose to kill and its execution. It is not the time of deliberation and premeditation that is requisite, but the actual existence of the purpose, malice, deliberation and premeditation, before or at the time the fatal shot is fired. So that in this case if you believe from the evidence beyond a reasonable doubt that the defendant alone, or “while aiding and abetting another unlawfully, purposely, and maliciously shot and killed Elias H. Westenhaver as charged in the indictment, and that before, or at the time, the fatal wound was given the defendant formed in his mind a willful, deliberate, and premeditated design or purpose to take the life of Mr. Westenhaver and that the wound was inflicted in furtherance of that design or purpose, and without any justifiable cause, then you are authorized to find that the defendant purposely and of deliberate and premeditated malice killed Elias H. Westenhaver.”

To this charge as given there is a general but no specific exception.

Now, taking that clause and reading it as a whole we think that it fairly defines the deliberation and premeditation which are required to be shown in a case of murder in the first degree. It is urged in criticism of it that the court uses a certain word in two places, in the first place stating it abstractly:

“It is not the time of deliberation and premeditation that is requisite, but the actual existence of the purpose, malice, deliberation and premeditation before or at the time the fatal shot is fired.”

This is a mere abstract proposition, but it is criticized because the court used the expression “at the time the shot is fired. ” It is evident the court meant the action of firing of the shot, not that he should have premeditated only at the time he pulled the trigger; it meant the action of the firing of the shot.

Then he says:

“In this case if you believe from the evidence beyond a reasonable doubt that the defendant alone or while aiding and abetting another, unlawfully, purposely and maliciously shot and killed Elias H. Westenhaver as charged in the indictment, and that before, or at the time, the fatal wound was given, the defendant formed in his mind a willful, deliberate and premeditated design or purpose to take the life of Mr. Westenhaver, and that the wound was inflicted in furtherance of that design or purpose, and without any justifiable cause, then you are authorized to find that the defendant purposely and of deliberate and premeditated malice killed Elias H. Westenhaver.”

Now without reading any further we will say that we think there is no error in this, if the court misspoke, as appears to us from reading this charge by using the conjunction “or” in place of “and” which would have been a very proper word there, we should be loath to reverse a case of this importance, and after this trial which appears to have been a fair one, upon a single exception urged at the end of a fair charge. If counsel desire to take advantage of a charge .because a word in the charge is changed in sense and may have been overlooked by the court, we have before held and still will hold notwithstanding the statute of the state of Ohio that they must point that out to the court at the time. We don’t think a fair interpretation of the charge of the court will show anything prejudicial to the defendant; that it takes any unfair advantage or gives a wrong definition or does that which would enable the jury to convict when otherwise he ought not to have been convicted; so we find no error in the admission or rejection of testimony, or in the charge of the court.

Now as to whether the jury were justified in returning this verdict is of course an important question to the defendant, and that is one of the grounds relied on here in this motion for a new trial, and we have read this entire record bearing upon this transaction, and I must say briefly (I am not going over all the evidence in the case) but clearly that the witnesses for the state detailed a very wonderful transaction, almost unheard of in the annals of the civilization of this state. I have never read such a history either in trial or in fiction. The pretense which the defendants were alleging here as exciting them to the commission of this crime was the vaguest pretense in the world. The defendants were allowed to travel all over and give all of the story they could think to give, and I can conceive of nothing that would have exicited an ordinary and reasonable man in the transaction that took place in the justice court. That they come from a country that has a civilization as high as ours is hard to believe. We find this man carrying a revolver all the days of his life (so he says), showing in the start that he is ready to kill at any moment, and that fact is paraded here as one of the things that they had ordinarily done, and therefore it was in some sense his excuse for taking this man’s 'life. And then again, not content with the old revolvers, they had purchased new ones the day before, and in addition, after purchasing revolvers they bought rifles and ammunition and got ready for something. Got ready for what? There may be considerable in the testimony of the witness, Donaldson, that they said if any lawyer sued them again they would take care of him.

However, the defendant goes on the stand and tells all of the story he wants to tell, and in his testimony from beginning to end there is nothing occurs, according to his own story, that ought to have excited. him, and according to his own story it did not excite him. I mean that he testified that he saw and heard all the conversaion over these papers — that the papers a few minutes before had been turned over to Westenhaver, and that shortly after that and before Westenhaver had evidently had an opportunity to look at them John demanded them back and continued to demand them; says he demanded them six times, and he says it looked as if John was getting more and more excited and he says that excited him a little and he stepped around the end of the table, and he said, ‘‘ Give him the papers,” or “Ain’t you going to give him the papers,” and then he said his head whirled and from that time on he don’t remember anything that took place. Well of course we are not prepared to believe that statement; we simply allow him the benefit of the opportunity that he had to allow his mind to forget what took place afterwards and not tell it upon the stand.

Now according to his story, and he does not vary much from the story of others, nothing was done there that might not have occurred between two of the best friends in the world, nothing but what might have occurred in the trial of any ordinary lawsuit, nothing to excite a reasonable man, nothing to overwhelm his senses, nothing to disturb the free agency of will and thought that every man is presumed to have, and unless you say he was insane before he went there, you can not say he had any excuse for committing what we might call this butchery.

It stands out prominently, we think, in this story, that these men went to that justice hall that day with the intention of killing Westenhaver — of getting into a quarrel with him if they could, and to kill him any way. They did not have the quarrel; it did not arise to the dignity of a quarrel; it only arose to a dispute about some papers, and these men deliberately placed themselves one on either side of this man and shot into him three times, and not content with that they followed him firing until he fell in his tracks and then they walked up to him and deliberately shot him in the body while he lay prostrate in the mud.

I don’t think it makes any difference which shot was fatal. The conduct of these men shows that they intended to kill this man, and they carried out that intention — they never left him until they had accomplished that purpose. Then they returned to their house and defied arrest until fear got the better of them and they thought they had better surrender to the sheriff rather than let the mob take vengeance on them.'

There is nothing in the record that would authorize this court in disturbing the verdict; on the contrary, we think it was entirely just and therefore we affirm it.


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    AUTOMOBILE STRUCK BY CAR. COMING UP BEHIND.
    Circuit Court of Hamilton County.
    Max Hirsch v. The Cincinnati Traction Company.
    Decided, November 26, 1910.

      Negligence — Resulting in Collision Between Car and Automobile — Failure to Look Back for Approaching Car is Negligence, When — iError in Arresting Case From Jury.

    It is not, as matter of law, contributory negligence for one while operating an automobile witbin the limits of a municipal corporation at the rate of fifteen miles an hour, to fail to look for an oncoming street car.
    The action was for $400 damages to the plaintiff’s automobile. At the time the collision occurred there was a milk wagon traveling in the same direction as the automobile and ear and between the auto and the sidewalk. The plaintiff alleged that there was not room for the auto between the track and the milk wagon, and that he was endeavoring to get past the milk wagon in order to turn out for the ear to pass when his machine was struck. The court below took the ease from the jury and gave judgment for the traction company.

      Moulinier, Bettman & Hunt, for plaintiff in error.

      Geo. H. Warrington, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   It is not, as matter of law, contributory negligence for one, while operating an automobile within the corporate limits of the city of Cincinnati at the rate of fifteen miles an hour, to fail to look back for an oncoming street car. He may, in the absence of an ordinance 'of the city permitting it, assume that the street car will not come at a greater rate of speed.

The contributory negligence as alleged is specific, to-wit:

“Neglect in running said automobile upon defendant’s track in front of an approaching car at such a short distance that that said ear could not be stopped in time to avoid a collision.”

The evidence shows that the automobile had been running on the track for a distance of nearly a half mile; that the gong on the street car was sounded; that the motorman must, therefore, have been aware of the presence of the automobile upon the track, and that the plaintiff heeded the warning by trying to get off the track, but was not given a reasonable time to do so.

Even though the failure to look back was negligence, it ceased to be a direct cause when the motorman became aware of the danger, and did not exercise ordinary care to avoid a collision while the plaintiff was, in response to the warning, endeavoring with due care to get off the track. The court erred in arresting the case from the jury and rendering judgment for the defendant.

Reversed and cause remanded for a new trial.


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    STRUCK BY A CAR A.T A STREET CROSSING.
    Circuit Court of Hamilton County.
    Cincinnati Traction Company v. Albert H. Johnson.
    Decided, January 14, 1911.

      Negligence — Degree of Care Required of a Street Car Company and Pedestrians at Street Grossings — Charge of Court — Ordinary Care— Swrden of Proving Contributory Negligence.

    In an action against an electric street railway company for damages to a pedestrian from being struck by a car at a street crossing, it is error prejudicial to tbe company to charge the jury that “if you find from the evidence that the defendant company through its servants used ordinary care, doing everything in its power to avoid an accident, plaintiff can not recover; but if it did not do this, hut could in the exercise of ordinary care have avoided injuring him, plaintiff having exercised ordinary care, then he can recover.”

      Rufus B. Smith and Chas. A. Groom, for the plaintiff in error.

      Matthews & Matthews and Stricker & Johnson, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   The plaintiff below, Albert IT. Johnson, was injured at a street crossing, while walking from behind a south-bound car toward and near the north-bound track, by a car running northwardly on that track.

Counsel complain of the following part of the general charge :

“The burden of proving contributory negligence on the part of the plaintiff, is upon the defendant, with this qualification, that if the evidence introduced by the plaintiff as to the circumstances under which his injuries were received, fairly raises a presumption in your mind that he was guilty of contributory negligence, then the burden is upon him to remove that presumption. If no presumption arises, the burden remains oh the defendant. ’ ’

The objection is aimed at the use of the word fairly, the claim being that it means clearly and that the charge requires a clear presumption, of contributory negligence; but we think that it was used in the same sense as reasonably or measurably and was so understood by the jury, who were not therefore misled.

The court further charged the jury as follows:

“If you find from the evidence that the defendant company through its servants used ordinary care, doing everything in its power to avoid an accident, plaintiff, can not recover; but if it did not do this, but could in the exercise of ordinary care have avoided injuring him, plaintiff having exercised ordinary care, then he can recover.”

This was in effect telling the jury that ordinary care on the part of the defendant consisted in doing everything in its power to avoid an accident and was clearly erroneous.

It is true that the court elsewhere properly defines ordinary care; but the jury would nevertheless be justified in following this instruction and probably did, as the plaintiff’s own testimony came so near raising a presumption of contributory negligence. Indeed his amended petition raises a presumption of contributory negligence where he avers “that immediately after crossing over said south-bound track and stepping upon the space interventing between said south and north-bound tracks, which space was about three feet wide, plaintiff stopped to look and listen, to ascertain if any car was approaching upon said north-bound track, when * * * before plaintiff could step back and get out of the way of said approaching car, he was struck by the front.and sides of said car.”

This is an admission by the plaintiff that it was his duty, under the circumstances, to look and listen; but it availed him nothing to look or listen after he had advanced so far and stopped in a place of known danger. If he recognized the danger of the situation and his duty to look for an approaching car on the north-bound track, which this averment as well as his evidence seem to imply, he could, by looking at the proper time, have avoided the accident, and should have done so. He testifies however that he did not stop but looked while walking.

We think therefore that this instruction not only imposed the highest degree of care upon the defendant but tended to lessen that which was required of the plaintiff.

The court further charged the jury on the subject of ordinary care as follows:

“You must further determine whether, the servants of the company used ordinary care in approaching said crossing from all the evidence, including the rule of the company which orders that when passing standing ears the gong must be rung and the cars must be under complete control. ’ ’

This instruction does not mean, as counsel contends, that ordinary care required the company to have its car under complete control when passing standing ears, but it does mean that the rule of the company so required, and that the jury could consider that rule along with the other evidence in determining ordinary care. There was no error in thus charging the jury.

The third special instruction-requested by the defendant to be given to the jury was properly refused by the court upon the authority of Street Ry. Co. v. Snell, 54 O. S., 197.

The second special instruction is as follows:

‘ ‘ If the jury find from the evidence that the plaintiff attempted to cross Montgomery avenue at a point between squares directly behind.a south moving car, and after passing the back of the south moving ear did nothing to inform himself as to whether a ear might not be approaching from the opposite direction on the track which he intended to cross, but stepped immediately in the way of the approaching ear so that it was impossible for the motorman to have stopped the car and have avoided the aecident, the jury should find for the defendant. ’ ’

While the word “squares” does not express the meaning intended, it seems to us immaterial whether the plaintiff was passing over a crossing or between crossings, as he would not in either case be exercising care if he did nothing to inform himself as to whether a car might not be approaching. The instruction, however, is substantially the same as the first special instruction which the court .gave to the jury, hence there was no erro* or prejudice in refusing it.

In considering the weight of the evidence we do not find it insufficient in the particular claimed by counsel; but it is so with reference to due care on the part of plaintiff. The precision with which he sets forth in his amended petition the times and places of listening and looking for an approaching car, and the like percision with which he testifies to the same acts, leave little doubt that he saw the ear in time to avoid injury. The only possible excuse suggested is the sudden appearance of the north-bound car running at a high rate of speed as he emerged from behind the south bound car, and the confusion resulting to one who assumed that if any car was coming it would be at a lawful rate of speed; but giving due weight to all the facts in the case we are still of the opinion that he was guilty of contributory negligence although not so as matter of law, and that the court erred in not granting a new trial for that reason as well as error in the charge.

The judgment will therefore be reversed, and the cause remanded for a new trial.


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    THE LIMITATION OF MUNICIPAL INDEBTEDNESS.
    Circuit Court of Cuyahoga County.
    The City of Cleveland, by Newton D. Baker, etc., v. The City of Cleveland et al.

    Decided, November 14, 1910.

      Municipal Corporations — Authority of, to Borrow Money — Application of the Four Per Cent. Limitation of the Longworth Act — Voted Bonds and Bonds Not Voted — Construction of Section 8945, General Code.

    The statutory limitation upon the authority of municipal corporations to borrow money by an issue of bonds does not act upon bonds lawfully issued for a purpose within the statute upon approval of the electors of the corporation.

      Newton D. Balter, City Solicitor, for plaintiff.

      Squire, Sanders & Dempsey and W. D. Wilkin, Assistant City Solicitor, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.
    Heard on appeal.

       Affirmed by the Supreme Court without opinion, December 20, 1910 (83 Ohio St., —); grounds stated in journal entry.

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

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

General Code, 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.

General Code, 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.

General Code, 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.

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

General Code, 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 described shall not affect [or, as phrased in Rev. Stats., See. 2833b, ‘shall not be construed as affecting’] bonds lawfully issued for such purposes upon approval of the electors of the corporation. ” , '

General Code, Sections 3946 and 3947, provide still 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 riot be considered in ascertaining such limitations,” but that regular annual tax levies shall be made, sufficient to pay the bonds at maturity.

General Code, Sections 3948 to 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 General Code, Sections 3943 to 3946 inclusive, as .above summarized, viz.: the bond redemption fund, certain obligations for which bonds have been authorized but not yet issued, special assessment 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 General Code, Section 3945, 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 General Code, 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 Longwarth .act from time to time by different Legislatures. General Code, 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 co-efficient, exponent, logarithm, 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 General Code, 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 mathematical 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 4 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 4 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 ‘ ‘ affects. ’ ’

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. The 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 co-efficient to effect? 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 General Code, Section 3945:

“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 General Code, Section 3945, and of the limitations contained in the Longworth act; whence it follows that the petition must be, and it is dismissed.


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    LIABILITY OF TRUST COMPANY CERTIFYING BONDS.
    Circuit Court of Hamilton County.
    Charles I. Dreifus v. Union Savings Bank & Trust Co.
    Decided, December 17, 1910.

      Bonds Certified by a Trust Company — Bound to be Worthless by a Holder, Who had Relied on the Certificate — Trust Company Liable,

    Where a trust company as trustee under a deed of trust or mortgage certifies that “this bond is one of a series of bonds mentioned in the mortgage or deed of trust within referred to,” well knowing that none of the property described in such mortgage belongs to the mortgagor, and redelivers to the mortgagor the bond thus certified without restriction on its use, it becomes liable to a pledgee of such bond who relied upon such certificate to his prejudice, re- ' gardless of the motive in making such certificate.

      Lem S. Miller and Wm. D. James, for plaintiff in error.

      Lawrence Maxwell an'd Joseph 8. Gray don, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The original action was commenced by Charles I. Dreifus to recover from the defendant, the Union Savings Bank & Trust Co., the face value of six bonds for $500 each, with interest. The bonds were a part of a series of 500 bonds executed by the Georgetown Water, Light, Heat & Power Co., a corporation organized under the laws of the state of Kentucky, for the purpose of purchasing and taking over the property, rights, interests and franchises of the Georgetown Water, Gas, Electric & Power Co., a corporation also organized under the laws of the state of Kentucky. To secure the payment of such bonds the new company executed and delivered to the defendant as trustee a mortgage or deed of trust of the. property, interests and franchies of the old company, although the board of directors had authorized its execution only after the purchase of the property of the old company had been completed. The defendant accepted the trust, and signed the following certificate indorsed on the bond:

“It is hereby certified that this bond is one of a series of bonds mentioned in the mortgage or deed of trust within referred to.”

Three hundred of these bonds as certified were, upon the order of the board of directors of the obligor, delivered by the defendant to Holzman & Company, brokers, who pledged six of them 1 o the plaintiff, who afterwards discovered that they were and at all times had been worthless. Be claims that he relied to his prejudice upon the certificate of the defendant as trustee, and that the same was a false representation of the identity and security of the bonds.

The purpose and effect of the certificate is made more apparent by the recital in each bond that:

‘ ‘ This bond shall not become obligatory until it shall have become authenticated by a certificate indorsed thereon, duly executed by said trust company, the trustee named therein.”

This statement prevented the bond from becoming obligatory until it was identified by the trustee as one of the series of bonds mentioned in the mortgage or deed of trust, and authorized such trustee to render it trustworthy by signing a certificate to that effect, although it could not reasonably be expected that it would thereby become a guarantor of the value of the security described in the mortgage nor of the priority of the lien.

But the certificate itself, when read in connection with other statements in the bond and the actual knowledge of the trustee of the whole transaction, becomes very significant and may amount to a representation of a material fact upon which an intending purchaser or pledger may rely and recover if he suffers loss, not simply because the representation is untrue, but because the trustee knew it to be false and therefore fraudulent.

The language of the certificate ‘‘ the mortgage or deed of trust within referred to” directs us to the body of the bond where we find the statement that “these bonds are secured by a deed of trust or mortgage, ’’ whereas the deed of trust or mortgage under which the defendant was acting secured nothing, because none of the property described therein belonged to the mortgagor, and all of which was well known to the defendant. The statement that the mortgage was duly recorded in Scott county, Kentucky, is also found in the bond, whereas the mortgage delivered to the defendant was not then and never has been recorded in Scott county, Kentucky, nor any other place, all of which the defendant well knew.

This • identification of each of the six bonds, pledged to the plaintiff, as one of a series of 500 bonds secured by a recorded mortgage, while apparently true is in fact false and known by the defendant to be false. It would be a novel construction of the legal duty of a trustee in certifying bonds to hold it to be a mere formal matter, unaffected by the actual knowledge he has of their infirmity. It is this knowledge of the falsity of the representations that makes them fraudulent, independent of the motive of the defendant. Taylor v. Leith, 26 O. S., 428.

Counsel for defendant rely upon the ease of Tochitinian v. the City Trust Co., 186 N. Y., 432, where a certificate like the one in this case was held not to make the trustee a guarantor of the quality and extent of the security, but the court is careful to exclude all questions of fraud or deceit, active or passive.

In the case of Baumschmidt v. Maryland Trust Co., 89 Md., 507, the decision is qualified by the statement “the bonds being in fact secured by a mortgage of property. In other words, there was an actual lien upon tangible property, and not a sham and false pretense. The plain duty of the defendant in this case, when ordered as trustee by resolution of the board of directors of the new company to deliver the bonds to Holzman & Company, was to withhold its certificate until the property described in the mortgage had been conveyed by the old company to the new company, the mortgagor; or if objection were made to this mode of transfer, then to require that the conveyance of the property and the delivery of the bonds be simultaneous.

A prior resolution of the board of directors, set forth in the mortgage itself, authorized the president and secretary to execute and deliver a first mortgage or trust deed upon all the property, owned by the company, as soon as they shall receive the conveyance for the plants directed to be purchased. If this natural and sensible provision had been observed and followed there could be no legal objection to a delivery of the bonds by the trustee to Holzman & Company or to any other person designated by the board of directors; but in the absence of any property upon which the mortgage could operate as a lien, the certificates and delivery of the bond by the trustee, with full knowledge of such defect, was inexcusable and fraudulent. Counsel for plaintiff have argued the case upon the ground of negligence; but the pleadings and proof present a case of constructive fraud or gross negligence amounting to fraud.

It is claimed, however, that the act of the defendant in certifying the bonds and delivering the same to Holzman & Company was not the proximate cause of plaintiff’s loss; but that such loss was directly caused by the fraudulent pledge of the bonds by Ross Holzman, a member of Holzman & Company.

The certificate of the trustee was, according to the statement in the bond, the final authentication that made them obligatory, and the delivery to Holzman & Company gave them apparent currency, the natural and probable consequence of which was to .induce purchasers to rely upon them as being what they purported to be. The loss to the plaintiff would have been the same had Ross Holzman sold the bonds to him for cash and accounted for the proceeds to the mortgagor. His firm was clothed with apparent authority of disposition, the bonds being complete in form and negotiable by delivery. The plaintiff was dealing with him as a broker and not as an officer of the mortgagor, and relied upon the certificate of the defendant as trustee. It seems quite clear therefore that the act of the trustee was the direct cause of the logs to the plaintiff.

The court erred in arresting the case from the jury at the close of plaintiff’s evidence.

The judgment is reversed and the cause remanded for a new trial.

On Rehearing.

Upon application for a rehearing of this case it becomes important to ascertain certain facts, as shown by the evidence, before applying the law. The bonds were, according to the resolution of the board of directors of the new company, delivered to Holzman & Company “for and on behalf of this company,” and so far as the record discloses the defendant bank had no communieation with them as to the disposition of the bonds, but apparently assumed that the right of disposition was absolutely in the board of directors of the mortgagor. Nor is there any evidence that Holzman & Company were given any direction by any one as to the disposition of the bonds. It is certain that they were not the agents of the bank, and no trust or confidence was reposed by the bank in the firm or any member thereof with respect to the bonds. Colonel Nelson, the president of the new company, told Mr. Stark, the trust officer of the bank, that it was necessary to have the bonds to consummate the deal and effect a transfer of the property from the old company to the new; but there was no assurance by the board of directors that this would be done. It is apparent, however, from the resolution of the board of directors of April 21, 1905, which is set forth in the trust deed or mortgage, that-it was wholly unnecessary to deliver the 300 bonds to Holzman & Company, in order to effect a transfer of the property:

“Be it resolved that the president and secretary of this company be empowered, authorized and directed upon receipt from the Georgetown Water, Gas, Electric & Power Company of a proper and sufficient conveyance in fee simple of all the property, rights, franchises and contracts belonging or appurtenant to the Georgetown Water, Gas, Electric & Power Company of a proper and sufficient conveyance in fee simple of all the property, rights, franchises and contracts belonging or appurtenant to the Georgetown Water, Gas, Electric & Power Company to pay it therefor two hundred and fifty thousand ($250,000) dollars, par value of the capital stock of this company, and one hundred thousand ($100,000) dollars first mortgage bonds of this company. ’ ’

The trust officer of the bank knew the contents' of the mortgage including this resolution, and retained 200 of the bonds amounting to $100,000, for the purpose therein expressed. The other 300 bonds were intended for distribution among the stockholders and Colonel Nelson so told Mr. Stark at the time. It seems not to have occurred to Colonel Nelson nor Mr. Stark that the trustee whose certificate gave life to the bonds ought to have retained possession of them until the property, intended to secure their payment, was conveyed or about to be conveyed to the mortgagor.

The bank did not retain even constructive possession or control of the bonds, although it accepted the trust for a valuable consideration.

In the case of Board of Education v. Sinton, 41 O. S., 504, relied upon by counsel for defendant in error, the board took up and paid certain bonds issued by it and left them with its treasurer, who was. also a member of the board, with instructions to cancel them, which he failed to do, but negotiated them before maturity as collateral security for a loan. Held:

“There was no negligence on the part of the board in not seeing that its treasurer complied with its instructions to cancel the bonds. ’ ’

The treasurer was not only the custodian of the bonds, but was charged by the board with the performance of a specific act with reference to them.

If the bank in the case before us had placed the certified bonds in the hands of one of its officers with instructions to deliver them only when the property .intended for their security was acquired by the mortgagor, the facts would be more like those in the ease cited.

Although the bonds were delivered to ITolzman & Company on the order of the board of directors of the obligor, they were in law delivered to the latter, without any restrictions by the bank on their use.

When Mr. Stark testified that the purpose in delivering the bonds was to effect a transfer of the property of the old company to the new company, he evidently referred to. the purpose expressed by Colonel Nelson, as he nowhere discloses any purpose on the part of the bank other than to obey the order of the board of directors of the new company. Such company was entitled to the possession of its own bonds after being certified, provided they were in fact what they purported to be; but when the certificate was false the obligor was no more entitled to the unrestricted possession than a stranger would be.

Bank et al v. Safe & Lock Co. et al, 66 O. S., 367, was a case of a stolen certificate of stock, wherein it was held that a pledgee in good faith acquired no title to the stock as against the real owner.

The case of Baxendale v. Bennett, 3 Q. B. D., 525, is of the same nature, and while it is true that Bramwell, L. J., asks the question at page 530,

“Is it not a rule that every one has a right to suppose that a crime will not be committed, and to act on that belief ? ’ ’ yet he significantly adds on the same page:
“The defendant here has not voluntarily put into any one’s hands the means, or part of the means, for committing a crime. ’ ’

That is the precise distinction in the case before us. The bank after' certifying to the identity of the bonds, voluntarily and unnecessarily parted with possession and thereby furnished the means for committing a crime as-well as the means for deceiving the public, of which plaintiff was one only.

Upon the same principle the railway company was held liable in the case of Railway Co. v. Bank, 56 O. S., 351, and the case of Board of Education v. Sinton, 41 O. S., 504, distinguished at page 393.

The allegation of the petition that the bonds were delivered to Holzman & Company for “the purpose of negotiation and sale” was not at the trial supported by any evidence of an active present intention to so deliver them; but it does appear that the bonds were in such form that delivery to any one put in his hands all the means for such use.

The difficulty in the case is one of fact rather than law, and while oúr findings from the evidence may differ from those which a jury or other tribunal might make, yet it is reasonably certain that the transaction was unusually careless and such as a reasonably prudent man would shun because of. the risk.

A rehearing of the case is therefore refused.


author: Per Curiam.

text:
    TESTING A JUDGMENT BY THE ANSWER. TO A SPECIAL INTERROGATORY.
    Circuit Court of Hamilton County.
    Arabella Spillman, Executrix, v. Baltimore & Ohio Southwestern Railroad Co.
    Decided, January 20, 1906.
    Where, in an action for wrongful death, the jury in answer to a special interrogatory find that if the decedent had looked when within five feet of the railway track he could have seen whether a train was .approaching, a judgment for the defendant is justified, notwithstanding a general verdict for the plaintiff, if the evidence discloses no reason for the decedent not looking in the direction from which the train was approaching.

      Theodore Horstman and W. H. Whittaker, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, contra.
   Per Curiam.

In this case the court rendered a judgment for the defendant upon certain special interrogatories and answers thereto, notwithstanding the general verdict in favor of the plaintiff. The only-interrogatory and answer, if any, that would authorize the court to render judgment in favor of the defendant is as follows:

“Q. Do you find from the evidence that when the decedent, Spillman, was within five feet of the south rail of the east main track, if he had looked to the west for the purpose of ascertaining whether or not a train was approaching the crossing in question, he could have seen the same in time to have avoided the collision? A. Yes.”

This interrogatory leaves out of consideration all question of any reasonable excuse for not looking in the direction from which the train was coming. But the evidence, all of which is contained in the bill of exceptions, discloses no such excuse, hence the court was authorized to render judgment upon the answers to the special interrogatories when considered with the undisputed facts (64 O. S., 391).