text:
    EVIDENCE — WILLS.
    [Wood (6th) Court of Appeals,
    November 13, 1914.]
    Kinkade, Richards and Chittenden, JJ.
    William H. Rogers v. Elizabeth B. Monroe et al.
    1. Hypothetical Question Based on Assumed Fact Disproved by Evidence Properly Excluded.
    It is not prejudicial error to sustain an objection to a hypothetical question •which is based on an assumed fact that is supported by some evidence, but is clearly disproved by the manifest weight of the evidence.
    2. Nonexpert Testimony as to Mental Capacity of Testator Limited'
    In the trial of an action to contest the validity of a will the opinion of a nonexpert witness as to the mental capacity of the testator must be confined to a time when such testator is under the observation of the witness.
    3. Photograph of Testator at Time of Execution of Will Admissible.
    A photograph of a testator, taken at or near the time his will was executed, may be a useful and competent item of evidence in an action to set the will aside, but it is not prejudicial error to sustain an objection to the introduction of such a photograph < which was taken eight or nine years prior to the execution of the will or codicil which is under attack.
    [Syllabus by the court.)
    Error.

      Benjamin F. James, for plaintiff in error.

      N. B. Barrington, for defendant in error.
   RICHARDS, J.

This action was brought for the purpose of contesting the validity of a codicil to the will of William Rogers. The original will was executed in 1899, and the codicil on October 20, 1911. By the terms of his original will his property was left to his wife during the term of her life, and at her decease it was to go to the children and grandchildren of the testator. In the codicil he ratifies and confirms the provisions of the original will and then adds a bequest in, favor of Elizabeth B. Monroe of $8 per week during the time that she should care for him and his wife. The codicil also provides that interest should be computed at five per cent, on the amounts to become due her for services and which were given to her by the terms of the codieil.

William Rogers was at the time of the execution of this codieil of about the? age of ninety-one years, and it is contended that he did not have sufficient testamentary capacity to execute the instrument and that the same was the product of undue influence. The testator was born in England and spoke the English language with a decided brogue. He was the owner of forty-six acres of land which he had purchased many years before at a low price, but which was worth at the time of his decease approximately $8,000. In the year 1909 the dwelling-house situate on this tract of land was destroyed by fire, and this loss seems to have more or less affected his condition. In the succeeding year he suffered a slight stroke of paralysis ■which affected his right arm and side and to a limited extent interfered with his speech. Some witnesses testify to a difficulty in understanding what he said, but it appears that because of his brogue that difficulty had always existed to a greater or less extent. He seems to have suffered his full share of afflictions, having during the last few years of his life a cancerous growth on his face and a toe affected with gangrene. It appears from the evidence that he subscribed regularly to a daily paper, that he took a church paper, and that he frequently read from the Bible, but during the last few years of his life apparently he did not do much reading himself, but had others read to him.' It is clear from the evidence that he was naturally a man who was very taciturn all his life, and that this condition perhaps increased with his age; at any rate he could not be charged with the garrulity which is sometimes witnessed in aged people.

■ With his increasing years, feebleness, probably both of mind and body, came on gradually. In 1899 he was married for the third time and to a woman who still survives and is of the age of about ninety-one years. She had been theretofore married and had a daughter named Elizabeth B. Monroe of the age of forty-seven years. This daughter is a defendant in this action and came to care for her mother and stepfather in June of the year 1911. Some question having been raised by certain of the children of William Rogers, he asked Mrs. Monroe to aecompany him to Bowling Green, which she did, on October 20th, 1911, and he there executed the codicil in question and on the same day entered into a written contract with her providing specifically for the terms of her employment, the same being in accordance with the provisions of the codicil.

The evidence leaves no room for doubt but that Elizabeth furnished to the aged people excellent care, and that they were clearly in a condition requiring that kind of care is apparent-. She had had much training as a nurse and was able to do whatever household work was necessary about the house, and in addition to care for the cancer with which he was afflicted and to dress the toe which was affected with gangrene.

William Rogers died on August 18th, 1913, of a final stroke of paralysis and a gradual weakening of the powers of his body and mind incident to old age, and called by some of the witnesses senile dementia. The jury on the trial of the ease returned a verdict sustaining the codicil.

We have carefully read the evidence contained in this record, and from such examination we are unanimously of the opinion that the verdict returned by the jury is sustained by sufficient evidence. Many objections and exceptions were taken during the trial of the case. During the examination of Dr. C. M. Deibert, who was the family physician of the deceased, he was asked his opinion as to the capacity of the testator to make a rational selection among the objects of his bounty. To this question an objection was made by counsel for the defendants, and that objection was sustained, and the plaintiff excepted to the ruling of the court; but no offer was made to prove what the witness would answer in response to the question, and without such offer prejudicial error is not made apparent.

A hypothetical question was submitted to Dr. Powell and the identical question to Dr. Stove, and these witnesses were not allowed to answer as experts the question so submitted. The question is very lengthy and undertakes to review all the facts disclosed in the case and concludes with an inquiry as to the capacity of the testator to comprehend the relations which he held to those who had claims on him and to keep them in mind long enough to form a rational judgment in regard to them, and to make a rational selection among them. This question assumes as a fact that for a period of five years or more before the testator’s death he had performed no business. In view of the testimony of Ross Rogers, a son of the plaintiff, and Ophelia H. Rogers, the wife of the plaintiff, who testified that they did not know of his doing any business and were so situated as to probably have knowledge if he had performed any business, we think counsel were justified in assuming as a fact that the testator had not performed any business. Nevertheless, when the evidence was all in, it clearly appeared that the testator did attend to more or less business during the last five years of his life.

Without undertaking to restate all /the evidence on this subject, it appears from the bill of exceptions that in the year 1909 he made a written contract with a daughter, Mrs. Tip-lady, for the support of himself and wife. In October or November of 1909 he borrowed $500, and to secure the same executed a note and mortgage upon his property. In February, 1910, he executed a written lease of his farm to' the plaintiff, and in the same year he signed as bail for the plaintiff. During most of the period of time covered by the hypothetical question, he sold more or less of his share of the crops raised on his land and collected the pay therefor. Most of these facts appear from the testimony of witnesses called by the plaintiff himself, and the fact that the testator transacted the business above mentioned is not seriously disputed. Indeed, the. only evidence to the contrary is that of the two witnesses mentioned, who testify, that they do not know of his doing any business.

It is clearly. the law that jurors should disregard the answer of witnesses to hypothetical questions in ease they find the hypothesis not in accordance with the facts. Under such circumstances the jurors must be told that the opinion is of no value. So that, assuming that the question under consideration was in such form that it should have been allowed to be answered, yet it would have been the duty of the trial judge after the evidence was all in, and it apepared that the assumed fact was clearly and manifestly not sustained by the evidence, to have directed the jury to disregard the answer. If, then, it would have been the duty of the jury to disregard the answer of the expert witnesses, it could not be prejudicial error for the trial judge to refuse to permit the question to be answered.

In propounding a hypothetical question to an expert witness, counsel may assume any material fact which the evidence tends to establish, but it is not reversible error to sustain an objection to such question if the whole evidence discloses that such assumed fact is clearly disproved by the manifest weight of the evidence. 17 Cyc., 260; West v. Knoppenberger, 26 O. C. C. 168, (4 N. S 305) ; McLean v. Cincinnati, 16 Dec. 459, 462, (3 N. S. 676) ; Rogers Expert Testimony, Sec. 32.

In view of the whole evidence, we find no prejudicial error in the action of the court in sustaining the objection to this question.

The defendants called a non-expert witness who was not present at the time of the execution of the codicil on October 20th, 1911, and of whom inquiry was made on the witness stand as to the capacity of the testator for transacting the ordinary business affairs of life on that date. Over the objection of the plaintiff, the witness was permitted to answer, and the answer was favorable to the defendants. We think this question was improper for the reason that non-expert witnesses must confine their opinions to the capacity of a testator to a time when he is under their observation.

This was the only witness sailed by the defendants in which the rule just given was violated, but it was in fact violated in questions that were asked by counsel for the plaintiff. We can not believe, in view of the state of the record in this case, that if the objection had been sustained any different result could have been reached from that which is expressed by the verdict. The provisions of Sec. 11364 G. C., would seem to clearly cover this aspect of the case, and that section has been applied to a case for the contest of a will in a decision by the Supreme Court in Dunlap v. Dunlap, 89 Ohio St. 28 [104 N. E. 1006] where the following language is used: court is of the opinion that if it be conceded that they are sufficiently objectionable to constitute error, yet it would not be error of such substantial and prepudicial nature as to warrant the setting aside of the verdict of a jury founded on otherwise legal and sufficient testimony.

“While holding that the admission of neither of the two objectionable questions by the trial court constitute error, the
“The salutary and enlightened provisions of Section 11364, General Code, should serve as a powerful deterrent to all reviewing courts from reversing causes for any other reason than that the alleged error was one affecting the substantial rights of the adverse party. Applying the mandatory principles of that section, it appears most clear to this court that had the two objectionable questions and answers been omitted the issue involved in the controversy would not have been settled otherwise that it was.”

The plaintiff to maintain his action offered in evidence certain photographs of the testator, shown to have been accurate representations of him at the time they were taken, which was eight or nine years prior to the date of the codicil. These photographs were not allowed to be introduced in evidence, and the action of the court in rejecting them is assigned as error. The marvelous accuracy of photographic -representation when the work is fairly and honestly done is common knowledge, and for the courts to decline to utilize the information to be derived from that art is to forego one of the most valuable aids for the ascertainment of the truth. 1 Chamberlayne, Modern Law of Evidence, Sec. 729; Cincinnati, II. & D. Ry. v. DeOnzo, 87 Ohio St. 109 [100 N. E. 320].

We do not think the trial judge in refusing to admit in evidence the photographs of the testator was unmindful of the principle which has just been stated, nor did he commit error in so holding. These photographs were taken eight or nine years before the execution of the codicil and at a time when the testator was about eighty-two years old. It is not claimed that he was incompetent to make a will at that time. Without doubt, the photographs accurately depict his features as they existed when he was eighty-two years of age, but it does not appear that they fairly represent him as he was at the age of ninety-one, much less that they would aid the jury in ascertaining, his testamentary capacity at that time. Notwithstanding the language of the circuit court in Varner v. Varner, 9 Circ. Dec. 273 (16 R. 386), holding that a photograph of the testator is not competent evidence, we are not convinced that such photographs taken near the time the instrument is executed might not be a useful item of evidence. Indeed, in some eases it might be very persuasive evidence, but in the case at bar no prejudicial error occurred in rejecting the photographs taken eight or nine years before the execution of the codicil.

We think it proper to call attention to the fact that nowhere in the charge to the jury does the court state that the older of probate of the codicil to the will raises a presumption that the same is valid, nor did the court explain to the jury that such order of probate was prima facie evidence of the due attestation, execution and validity of the codicil. Of course, this omission was not prejudicial to the plaintiff, but if the verdict had been against the validity of the codicil such omission would have required a reversal of the judgment. We need only call attention to Hall v. Hall, 78 Ohio St. 415 [85 N. E. 1125], and Bloor v. Platt, 78 Ohio St. 46, 52 [84 N. E 604].

Finding no prejudicial error justifying a reversal, the judgment of the court of common pleas will be affirmed.

Kinkade, and Chittenden, JJ.f concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    CRIMINAL LAW — PHYSICIANS AND SURGEONS. ,
    [Summit (8th) Circuit Court,
    October 12, 1912.]
    Winch, Marvin and Niman, JJ.
    Lyman D. Triplett v. State. Ora L. Brown v. State.
    1. Laws Regulating Examination and Registration of Medicali Practitioners Constitutional.
    Sections 1286, 1287 and 12694 G. C., relating to the appointment and powers of the state board of health and. the state board of medical examination and registration, and providing for examination and registration of those practicing medicine, are a proper exercise of the police power and are constitutional.
    2. Chiropractic and Magnetic Healing, Practice of Medicine.
    Advertising to cure by chiropractic treatment, or by magnetic healing, or taking fees for treatments under those systems, is practicing medicine within the meaning of the statutes requiring examination and registration of medical practitioners.
    3. Evidence of Training Not Admissible in Prosecution for Violation of Laws Requiring Examination and Registration of Medical Practitioners.
    In a prosecution for violating the statutes regulating the practice of medicine, testimony on behalf of the accused, relating to the course of study which he pursued in preparation for his profession and that his treatments did not consist of administering drugs or performing surgical operations, is not admissible.
    4. Indictment Charging Accused with Doing all of Any One of Several Offenses Defined in Statute not Bad for Duplicity.
    Where a statute declares the doing of any of several things to- be practicing medicine, an indictment which charges the accused with having done all of them is not bad, and he may be found guilty, if the evidence at the trial establishes the fact that he did any one of them.
    Error.

      W. J. Limb, L. I>. Slusser and JJ. M. Hagelbarger, for plaintiffs in error.

      F. J. Rockwell, for defendant in error.
   WINCH, J.

These two cases are considered together because they both involve convictions for violating the statutes regulating the practice of medicine and have many propositions in common. The constitutionality of the law under which the accused were convicted is attacked in both cases.

Neither of the accused held a certificate obtained from the state medical board in the manner required by law.

Lyman D’. Triplett was tried by the probate court of Summit county upon an affidavit filed with it specifying that he had used the title “Prof.” in connection with his name upon cards with which he advertised that he was a “Class School Graduate of the "Weltmcr School of Suggestive Therapeutics (Magnetic Healing’).” “Every Known Disease Cured Without Medicine or Surgery. Office Treatment. Home Treatment. Absent Treatment. Thousands Cured via this Drugless Route.” That he, for a fee, examined and diagnosed a certain bodily infirmity or disease of one Louise Zimmerly as hardening of the arteries and, for a fee, prescribed, advised, recommended and administered .a certain application, agency, operation and treatment to affiant unknown, for the relief of said bodily infirmity or disease.

Ora L. Brown was tried by the common pleas court of Summit county upon an indictment specifying that he had used the letters “D. C.,” being an abbreviation of and meaning Doctor of Chiropractic, in connection with his name, thereby representing that he was engaged in the practice of medicine and surgery for the cure, relief and treatinent of bodily infirmities and diseases; that he, for a fee, examined and diagnosed a certain bodily infirmity or disease of one Jacob A. Kepler, as partial paralysis and, for a fee, prescribed, advised, recommended and administered a certain application, agency, operation and treatment, the name of which is chiropractic adjustment, and the nature of which is a manipulation or pretended adjustment of the vertebrae of the spinal cord, for the relief of said bodily infirmity or disease.

Sections 1286, 1287 and 12694 G. C. are those upon which the protection of these cases was based.

These sections are derived from the act of May 9, 1908 (99 O. L. 492), revising and consolidating the laws relating to the appointment, powers and duties of the state board of health, the state board of medical registration and examination, etc. Said act contains former acts regulating the practice of medicine, and amendments thereof, which have been passed upon by the supreme court of this state, their constitutionality being upheld.

There is nothing new in the sections of the General Code referring to the practice of medicine which has not been settled by the decisions of this state, so that it may be said that their constitutionality is no longer an open question.

The following quotations from the leading Ohio cases on the subject make that point plain:

“The giving of Christian Science treatment for a fee for the cure of disease is practicing medicine within the meaning' of the statutes regulating such practice in this state.
“The statute making it a misdemeanor to give such treatment for a fee is not an interference with the rights of conscience and of worship conserved by Sec. 7 of the bill of rights, and is not on that ground unconstitutional.
“Legislation prohibiting any one from treating a disease for a fee excepting such persons as have prescribed qualifications, is a valid exercise of the police power of the state and is constitutional.
“The act regulating the practice of medicine in this state exacts reasonable qualifications and excludes no one possessing them and it is not void as discriminating against Christian Scientists in that it prescribes that any one possessing certain qualifications may practice osteopathy, and does not make special provision for those who wish to practice Christian Science.” State v. Marble, 72 Ohio St. 21 [73 N. E. 1063; 70 L. R. A. 835; 106 Am. St. 570 ; 2 Ann. Cas. 898].
“That the practice of medicine may be regulated by legislation has been decided in'every court in which the question has arisen. In the leading case, Dent v. W. Va. 129 U. S. 114-122, Mr. Justice Fields says: ‘The power of the state to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure, or tend to secure them against the consequences of ignorance and incapacity, as well as of deception and fraud. As one means to this end it has been the practice of different states from time immemorial, to exact in many pursuits a certain degree of skill and learning,’ ” etc. State v. Marble, 72 Ohio St., 21, 34, supra.
“That the legislature in its wisdom, might prescribe a uniform examination, we do not doubt, and that it may recognize one school without recognizing all, is also true, if the recognition be in the exercise of proper classification and for the public welfare, and not with a view to create a monopoly in the schools recognized or a discrimination against other schools.” Parks v. State, 159 Ind. 211 [64 N. E. 862; 59 L. R. A. 190] ; State v. Currens, 111 Wis. 431 [87 N. W. 561; 56 L. R. A. 252]; Scholle v. State, 90 Md. 729 [46 Atl. 326; 50 L. R. A. 411].
“The power conferred upon the state board of medical registration and examination is administrative in character, and not judicial within the meaning of Art. 4, Sec. 1, of the constitution of the state.
“It is competent for the state, under its power to provide for the welfare of its people, to establish needful regulations and impose reasonable conditions calculated to insure proper qualifications, both with respect to learning and moral integrity, of persons desiring to engage in the practice of medicine in the state, and require compliances therewith by such persons before they shall be permitted to practice within the state. The regulations adopted by this statute are of that character, and do not infringe upon the privileges and immunities guaranteed by Art. 4 Sec. 2 of the federal constitution to citizens in the several states, nor abridge those secured to citizens of the United States by the fourteenth article of amendment of that constitution.” State v. Mosher, 78 Ia. 321 [43 N. W. 202].
“The right to labor and enjoy the rewards thereof is .a natural right which may not be unreasonably interfered with by legislation where, however, the pursuit concerns in a direct manner, the public health and welfare and is of such a character as to require a special course of study or training or experience to qualify one to pursue such occupation with safety to the pub lie interest, it is within the competency of the general assembly to enact reasonable regulations to protect the public against evils which may result from incapacity and ignorance.” State v. Gardner, 58 Ohio St. 599 [51 N. E. 136; 41 L. R. A. 689; 65 Am. St. 785].

In the opinion in the Gardner case, the court say:

‘ ‘ The acts referred to fall within the exercise of the police power of the state, that power, conceded to reside in the people’s representatives, which is rightfully exercised by the regulation of the use of private property, or so restraining personal action, as to secure, or tend to the comfort, health or protection of the community. Further examples of its exercise are found, in the laws which require study and examination before one is permitted to practice law or medicine or engage in the oceupaiion of a dentist or pharmacist.” State v. Gardner, supra, 606.

In the above case it was held that the business of plumbing, while not to be ranked with the professions as to degree of learning, is one which is so nearly related to the public health that it may with propriety be regulated by law, and reasonable regulations tending to protect the public against the dangers of careless and inefficient work and appropriate to that end do not infringe any constitutional right of the citizen pursuing such calling.

In the case of State v. Liffring, 61 Ohio St. 39 [55 N. E. 168; 46 L. R. A. 334; 76 Am. St. 358], it was held:

‘ ‘ The system of rubbing and kneading the body, commonly known as osteopathy, is not an ‘agency’ within the meaning of the act of February 27, 1896, ‘to regulate the practice of medicine’ (92 O. L. 44), which forbids the prescribing of any drug or medicine or other agency for the treatment of disease by a person who has not obtained from the board of medical registration and examination a certificate of qualifications. ’ ’

In the case of State v. Cravett, 65 Ohio St. 289 [62 N. E. 325; 55 L. R. A. 791; 87 Am. St. 605], it was held that:

“The system of rubbing or kneading the body, commonly known as osteopathy, is comprehended within the practice of medicines defined by Sec. 4403f R. S. as amended by the .act of April 14, 1900 (94 O. L. 200).”

In distinguishing the two eases, the court said that in the Liffring case, as the statute then stood, by applying the doctrine noscitv/r a sum's, the application of which doctrine was called for by tbe statute as it then stood, the rubbing or kneading process, commonly called as osteopathy, was not included within the terms of the statute, while in the Cfavett case the amendment to the statute, which had been made since the former case, made the act so comprehensive that the above doctrine could be of no aid in construing the statute, and that the process of kneading and rubbing the body, commonly called osteopathy, was included within the statute as amended. The court in the Cravett case, however, found the act of April 14, 1900 (94 O. L. 200), to be defective in that it discriminated against osteopaths by requiring them to hold diplomas from a college which requires four years of study. At the next session of the legislature the act was again amended (95 O. L. 212) so as to rid the statute of this vice by eliminating the four year requirement for osteopaths.

About forty objections to the form of the affidavit in one ease and the indictment in the other case were presented in the lower courts and overruled. They have been presented for review here, but we find that in both cases the accused were informed of the charges against them with that definiteness and certainty that the law requires.

In the Brown case it is further contended that the court erred in refusing to permit him to testifiy that he did not practice medicine on the day in question.

There was no error in this. The question simply called for Brown’s conclusions as to what he did and his own characterization of his own acts. His acts were before the jury) and it was for the jury to determine whether those acts amounted to practicing medicine contrary to law.

In the Triplett case certain rulings on evidence are complained of.

The trial judge refused to allow the introduction of any evidence to show what the Weltmer School of Suggestive Therapeutics was, and likewise what magnetic healing consisted of, for the purpose, as claimed, of showing that the advertising matter set up in the information could not reasonably have .represented plaintiff in error to be engaged in the practice of medicine or surgery.

The trial judge also refused t® permit the accused to show by other witnesses than himself that his practice, whatever it was, was not the practice of medicine or surgery.

This is practically the same point that was made in the • Brown case, and nothing further need be said about it. It was not for the witness, but for the jury, to determine the character of his practice.

Both of these questions, however, have been adjudicated by the Supreme Court.

From the record of the unreported case of State v. Hughes, 83 Ohio St. 445, it appears that the prosecuting attorney excepted to the admission of evidence on behalf of the defendant in the following particulars:

“Fifth. Testimony of the defendant concerning his course of study and preparation for his profession as healer.
“Sixth. Testimony of the defendant as to the nature of his treatments. That the same did not consist of administering drugs or performing surgical operations. ’ ’

The judgment of the Supreme Court is: “ Exceptions sustained. ’ ’

This is sufficient to show that the supreme court considered that the trial judge in the Hughes ease erred in admitting evidence that was ruled out in both the Brown and Triplett cases. ■

The objection to the reading of the coroner’s minutes of what Triplett said at the inquest is not well taken. The record shows that the counsel for the accused consented to the reading thereof. *

The charge of the court in the Ti'iplett case is brought to our attention. The complaint is that it divided the offense charged in the information in sueh a manner as to lead the jury to believe that the violation of the statute could be committed in any one of three ways.

On this subject the charge is as follows:

“I further charge you as a matter of law, that it constitutes practicing medicine or surgery in the state of Ohio to do any or all of the following acts or things, before having ob tained a license or certificate from the state medical board of Ohio, to-wit-.
“ (1) To use the words or letters ‘Dr.’, ‘Doctor’, ‘Professor’, ‘M.D.’ ‘M.B.’ or any other title in connection with one’s name which in any way represents one as engaged in the practice of medicine or surgery in any of its branches.
“(2) To examine or diagnose for a fee or compensation of any kind.
“(3) To prescribe, advise, recommend, administer or dispense for a fee or compensation of any kind direct or indirect a drug or medicine, appliance, application, operation or treatment of whatever nature for the cure or relief of a wound, fracture, or bodily injury, infirmity or disease. And if you find beyond a reasonable doubt, as I shall define that term to you, that the defendant on or about the 21st day of August, 1910, or on or about the 22d day of September, 1910, did .any one or all of the matters and things which constitute the practice of medicine, as I have defined it to you, then you should find the defendant guilty.”

This charge was correct.

A statute often makes punishable the doing of one thing, or another, sometimes specifying a considerable number of things. Then by proper and ordinary construction a' person, who, in one transaction does all, violates the statute but once, and incurs only one penalty. Yet he violates it equally by doing one of the things. Therefore, an indictment on such a statute may allege in a single count that the defendant did as many of the forbidden things as the pleader chooses, employing the conjunction “and” where the statute has “or,” and it will not be double, and it will be established at the trial by proof of any one of them. Bishop’s New Criminal Procedure, See. 436.

"We find no error in the record of these judgments and they are affirmed.

Marvin and Niman, JJ., concur.


author: MEALS, J.

text:
    [Cuyahoga (8th) Circuit Court,
    December, 1913.]
    Winch, Marvin and Meals, JJ.
    Globe-Rutgers Co. v. Sherwin-Williams Co.
    1. Policy to be Construed Liberally in Favor of Insured.
    Where two interpretations, each equally fair, may be given to the language used in an insurance policy, that which will give the greater indemnity to the insured must prevail.
    2. Parol Evidence Admissible to Show Nature of Property and Situation and Relation of Parties.
    Where the meaning of an insurance contract is doubtful, or capable of two meanings, parol evidence is admissible in the construction of the contract to show the nature and qualities of the subject-matter, the situation and relation of the parties, and all the surrounding circumstances, to aid the court in applying the language of the contract to the subject-matter.
    3. Exception in Floating Policy not Applicable Storage of Raw Materials.
    Where a fire insurance policy of the floating type covered all merchandise of the assured “situated anywhere in the United States except while on premises occupied by the assured for manufacturing purposes;’’ Held: That the exception applied only to places where the actual work of manufacture was carried on and did not include raw materials stored in a building adjacent to, but separate from a manufacturing plant of the assured.

      White, Johnson & Gannon, for plaintiff in error.

      Squire, Sanders & Dempsey, for defendant in error.
   MEALS, J.

This is an action to recover a fire loss and is founded upon a policy which insured “all buildings belonging to the assured, and all merchandise, consisting principally of paints, oils, varnishes, painters’ supplies, including packages of and containing the same, empty and filled packages situated anywheie in the United States, except San Francisco and while on premises occupied by the assured for manufacturing purposes.

The assured, the Sherwin-Williams Company, owned and occupied a building on Merwin street, in Cleveland, which it used for the manufacture of paints. Adjacent thereto, but unconnected therewith, stood another building, the basement and first floor of which, the assured leased and used as a storage house for pigments or materials, used by it in the manufacture of its various products in the adjoining and other buildings. The material so stored was destroyed by fire, and this action is prosecuted against the assurer, the Globe-llutgers Fire Insurance Company, to recover for the loss. The principal question raised by the record is whether the property so destroyed is covered by the policy.

The answer to this question depends principally upon the construction given the words of the policy, “while on premises occupied by the assured for manufacturing purposes.” Two questions, therefore, naturally arise out ,of this situation:

First, Was the property destroyed specifically covered by the policy; or, conversely, was it specifically excluded from the operation of the policy; and, secondly, Was parole evidence admissible for the purpose of showing the sense in which this provision of the policy was used by the. parties?

In ascertaining the meaning of a policy of insurance, like any other contract, the language of the policy must first bd regarded, and if it definitely fixes the location of the risk, the policy does not attach if the property is destroyed outside of the locality designated. The rule is that the language of the policy is first to be looked to and if by the well settled rule of construction the language is plain and unambiguous and the intention of the parties, as derived therefrom, is clear, it must control and extrinsic evidence is not admissible to affect its construction. Wood, Insurance, 122.

So, when the poliejr is specific as to the subject-matter of the risk, it can not be extended by implication, nor is evidence admissible to show that the parties intended to have it cover matters not specified or matters excluded. 1 Wood, Insurance, 137.

It, however, is an invariable rule of construction and especially applicable to the construction of policies of insurance, that that construction should be taken which is most beneficial to the promisee.

“No rule,” says Mr. Wood in Vol. 1 of his work on insurance, at p. 145, “in the interpretation of a policy is more fully established, or more imperative and controlling, than that which declares that in ali cases it must be liberally construed in favor of the insured so as to not defeat, without a plain necessity, his claim to the indemnity, which, in taking the insurance, it was his object to secure. When the words are, without violence, susceptible of two interpretations, that which will sustain his claim and cover the loss must in preference be adopted. Indemnity is the real object and purpose of all insurance; that is what the insured bargains for and what the assurer intends to provide. The predominant intention of the parties in a contract- of insurance is indemnity, and this is to be kept in view and favored in putting a construction upon the policy. Having indemnity for its object, the contract is to be construed liberally and it is presumably the intention of the insurer that the insured shall understand that in case of loss he is to be protected to the full extent which any fair interpretation will give. The spirit of the rule is that when two interpretations, equally fair, may be given, that whieh gives the greater indemnity shall prevail. ’ ’

This doctrine is fully supported by the decisions of the Supreme Court of this state, as shown by the following cases: Germania Life Ins. Co. v. Schild, 69 Ohio St. 136 [68 N. E. 706; 100 Am. St. 663] ; Livingston and Taft Fidelity & Deposit Co. 76 Ohio St. 253 [81 N. E. 330]; Bryant v. American Bonding Co. 77 Ohio St. 90 [82 N. E. 960].

So where there are no ambiguities or uncei-tainties and no conflicting inferences to be drawn from the language of the policy, the construction is a question of law for the court. But no rule is better settled than that when the meaning' of an insurance contract is doubtful, or capable of two meanings, parol evidence is admissible in the construction of the contract to define the nature and qualities of the subject-matter, the situation and relation of the parties iand all the surrounding circumstances, in order that the court, may put themselves in the place of the parties, see how the terms of the instrument affect the subject-matter, and ascertain the signification which ought to be given to any phrase in the contract which is ambiguous or susceptible of more than one interpretation; and this, although the result of the evidence may be to contradict the usual meaning of terms and phrases used in the contract.

Illustrative of this doctrine, attention is called to the case of Bradley v. Washington, Alex. Georgetown Steam, Packet Co. 38 U. S. (13 Peters) 89 [10 L. Ed. 72]. This was an action on the case by the defendant in error to recover for hire of the steamboat Franklin. The agreement of hiring grew out of the following paper:

“I agree to hire the Steamboat Franklin until the steamboat Sidney is placed on the route, to commence tomorrow, 20th inst., at $35 per day clear of all expenses other than the wages of Captain Nevitt.
“W. A. Bradley.
“19 Nov., 1831.”
and a written acceptance of the same signed by the president of the company.

The question was whether the plaintiff in error was bound to pay for the use of the Franklin during the term when the navigation of the Potomac was prevented by ice. Parole evidence was offered on his part and excluded and the defendant in error had judgment for the use of the boat during that period. The court reversed the judgment for this error and observed :

“Without attempting to do what others have said they were unable to accomplish, that is, to reconcile all the decisions on the subject, we think that we may lay down this principle as the just result: that in giving effect to a written contract by applying it to its proper subject-matter, extrinsic evidence may be admitted to prove the circumstances under which it was made, whenever, without the aid of such evidence, such application could not be made in the particular case.
“With this principle in view, we proceed to inquire whether the evidence offered by the defendant in this case ought to have been received by the court. * '
“Now, had the evidence been received, it would have disclosed the following state of facts: that the route mentioned in the contract was one on which the plaintiff in error transported passengers and also the mail; that the steamboat Sidney mentioned in the contract was designed to perform this service, and that the Franklin was wanted for the same purpose; that the Sidney was then at Baltimore for the purpose of being fitted with her engines and equipment; that although the transportation of passengers and the mail was carried on by the plaintiff in error in a steamboat whilst the river was open, yet when the river was closed by ice so that navigation was obstructed, the plaintiff in error then transported passengers and the mail one way overland to Fredericksburg; that when the river was thus obstructed, the plaintiff in error could not and did not use a steamboat and that all these facts were known to the defendant in error.

We think that this evidence ought to have been received because it would have tended to. show, by the circumstances under which the contract was made, what was the intention of the parties, and in the language of the rale which we have laid down, that the contract, without this aid, could not be applied to its proper subject-matter.

Chief Justice Shaw, in Knight v. Worsted Co. 56 Mass. (2 Cush.) 271, observes:

“In expounding a written contract, although parole evidence is not admissible to prove that other terms were agreed to which are not expressed in the writing, or that the parties had other intentions than those to be inferred from it, yet it is competent to offer parole evidence to prove facts and circumstances respecting the parties, the nature, quality and condition of the real and personal property which constitute the subject-matter respecting which it is made.”

In Noyes v. Canfield, 27 Vt. 79, it appeared that the defendant had entered into a written agreement to transport the plaintiff’s freight during the navigable season at a fixed price per ton. For the purpose of showing the meaning of this expression, as used by the parties, and that it was not intended to include hay, parole evidence was admitted to show the kind of property intended to be covered by the contract.

•In another case a servant brought an action against his master for wrongful dismissal. The agreement of hiring was in writing. The defendant dismissed the plaintiff because he refused to fold lace on cards, as desired. The plaintiff offered to show by parole that he was hired in the capacity of lace buyer, and that his refusal was therefore justifiable. The evidence was admitted, the writing being silent as to the capacity in which the servant was hired.

In Tuttle v. Burgett’s Admr. 53 Ohio St. 498, 508 [42 N. E. 427; 30 L. R. A. 214; 53 Am. St. 649], our own Supreme Court observed:

There can be no doubt that in giving construction to a written instrument, regard may be had to the situation of the parties and the surrounding circumstances, and this may be shown by parole to enable the court, called on to interpret the instrument, the better to understand its terms and arrive at the intention of the parties, when not clearly expressed.”

These and many other eases substantiate and illustrate the rule that conversations and acts of the parties to a contract at and about the time of the making of the contract are admissible in evidence to show what sense the parties attached to any term or phrase used in the contract, which is in itself susceptible of more than one interpretation, or which, viewed in the light of the evidence explanatory of the subject-matter, the relation of. the parties and the surrounding circumstances may reasonably be susceptible of more than one interpretation.

Further, in interpreting the provisions of a contract the meaning of which is doubtful, or which admit of two meanings, it- is said in the case of the Manhattan Life Ins. Co. v. Wright, 126 Fed. 82, that the “practical interpretation given to their contracts by the parties to them while they are engaged in their perfoi’mance and before any controversy has arisen concerning them, is one of the best indications of their true intent. The courts that adopt and enforce such a construction arc not likely to commit serious error.” And the doctrine of this ease is amply supported by the authorities in Ohio. Mosier v. Parry, 60 Ohio St. 388, 389 [54 N. E. 364]; Kling v. Bordner, 65 Ohio St. 86, 103 [61 N. E. 148] ; Kinney v. Hamilton Co. (Comrs.)4 Circ. Dec. 448 (8 R. 433); M. E. Church v. Ash tabula Water Co. 10 Circ. Dec. 648 (20 R. 578); Braddock & Fox v. Boner, 29 O. C. C. 300 (9 N. S. 11).

The policy on which this -action is founded was of the floating type and was intended to cover the warehouses and their contents, of the assured, wherever located in the United States and Canada, San Francisco excepted, and. sought to exclude from the operation of the policy property on premises occupied by the assured for manufacturing purposes. The parties therefore obviously intended to include within the meaning of the policy certain property, and to exclude other property. The property they sought to exclude was property located on "premises occupied by the assured for manufacturing purposes,” presumably because of the more hazardous risk thereby assumed.

Was property stored as this property was stored, on "premises occupied by the assured for manufacturing purposes” within the meaning of the terms of the policy f If so, it is difficult to see how the policy covered any property at all. Ordinarily the phrase "premises occupied by the assured for manufacturing purposes,” -would include not only the premises where the actual work of manufacture is carried on, but it would include the place where the raw material used in the manufacture is stored, and the "usual and necessary appliances for storing, measuring, weighing, packing and delivering the manufactured article after the process of manufacture is completed.” Mempris Gas Light Co. v. State, 46 Tenn. (6 Cald.) 310 [98 Am. Dec. 452].

If this meaning- were to be given to the phrase "while on premises occupied by the assured for manufacturing purposes” as used in this policy, it would exclude from the operation of the policy all property stored in the warehouses of the assured, and clearly this policy was intended to cover such risk.

Manifestly this was not the intention of the parties. What then, was the intention of the parties, and what property was intended to be covered by the policy?

The language of the policy in this regard is obviously ambiguous, at least it is reasonably susceptible of more than one interpretation. A strict construction of its terms would doubtless exclude the operation of the policy from the property which the parties themselves intended that it should cover. Where, then, shall we look to ascertain the intention of the parties? Under the rules of law abóve stated, it is proper that we should look for that intention and the sense in which the language of the policy was used by the parties, to the conversations and acts of the parties to the contract at or about the time of the making of the contract, to the interpretation given the terms of the contract by the parties themselves before any controversy had arisen over it, the subject-matter of the contract, the relation of the parties and the circumstances surrounding the making of the contract.

We are of the opinion, therefore, that the trial court properly admitted evidence tending to show these facts, and that in doing so, no error was committed.

We find nothing in the record which, in our opinion, would justify the disturbance of the judgment of the court below, and the same is therefore affirmed.

Winch and Marvin, JJ., concur.

      Dismissed in Supreme Court by consent of parties at costs of plaintiff in error.


text:
    COURTS — ERROR.
    [Cuyahoga (8th) Circuit Court,
    June 4, 1909.]
    Winch, Marvin, and Henry, JJ.
    Arthur L. Seelbach v. Elizabeth Craft.
    1. Power of Common Pleas Court Over Its Own Judgments.
    The court of common pleas has full control over its own orders and judgments during the term at which they were rendered and may vacate or modify them at discretion.
    2. Reviewing Court Will not Weigh Evidence on Motion to Vacate Judgment.
    Where a judgment is vacated at the same term- at which it is rendered, a reviewing court will not weigh the evidence introduced upon the hearing of the motion to vacate to determine its sufficiency.
    Error.

      Rigley cfc Maurer, for .plaintiff in error.

      J. C. Mansfield, for defendant in error.
   WINCH, J.

At the September term, 1904, of the Common Pleas Court of Cuyahoga County, plaintiff in error recovered a judgment against defendant in error upon a cognovit note. At the same term, but more than three days thereafter, defendant in error filed her motion to vacate said judgment alleging, among other things, that she had a good defense to said note.

Said motion was heard .and granted, the court finding that sufficient grounds existed to vacate said judgment, but no finding was made as to there being a valid defense to the action. To said order plaintiff in error excepted, filed his bill of exceptions containing all the evidence introduced at said hearing, and now brings the matter here on a petition in error praying for a reversal of said order vacating his judgment, claiming that it is erroneous by reason of the fact that the trial judge failed to find and state in his order that a valid defense to the action existed, and further, that the bill of exceptions shows that as a matter of fact no such defense exists.

Had the judgment been vacated at a term subsequent to the one at which it was entered, plaintiff’s contention should bo sustained under Secs. 5359, 5360 R. S., (Secs. 11636, 11637 G. C.) But said sections apply only to the vacation of judgments after the term at which they were made.

That the court of common pleas has full control over its own orders and judgments during the term at which they are rendered and the power to vacate or modify the same at discretion, is well settled in Ohio: Huntington & McIntyre v. Finch & Co. 3 Ohio St., 445; Niles v. Parks, 49 Ohio St. 370 [34 N. E. 735]; Huber Mfg. Co. v. Sweny, 57 Ohio St. 169 [48 N. E. 879].

It follows that the order complained of having been made at the same term as the judgment, a reviewing court will not consider the evidence introduced on the hearing of the motion, for the purpose of determining whether it is sufficient to sustain the judgment of the court on the motion. Niles v. Parks, supra.

We find po reason for reversing the order complained of, and the judgment is affirmed.

Marvin and Henry, JJ,, concur.


author: HALE, J.

text:
    LANDLORD AND TENANT.
    [Cuyahoga (8th) Circuit Court,
    May 24, 1902.]
    Hale, 'Caldwell and Marvin, JJ.
    Eliza H. Greene v. E. A. Kline et al.
    Lessee of Premises Under Invalid Lease Liable for Rent While Subtenant Holds Possession.
    A lessee of premises under an invalid lease, who attempts to surrender possession, but who leaves a subtenant in possession of a portion of the premises, is liable for the rent during the time such subtenant remains in possession.
    Error.

      F. C. McMillan and ikf. R. Dickey, for plaintiff in error.

      L. J. Grossman, for defendants in error.
   HALE, J.

On the first day of May, 1896, the plaintiff and defendant entered into an agreement in writing by the terms of which the plaintiff leased to the defendant a portion of building at No. 226 St. Clair street in the city of Cleveland for a term commencing May 1, 1896, and ending December 31, 1899, at a yearly rental of $650, payable monthly. After stating the terms of the lease, the plaintiff alleges in her petition:

"That on said May, 1896, the defendants and each of them went into possession and constantly retained possession thereof during the entire term of said lease and occupying the same likewise. The plaintiff avers that the defendants and each of them are indebted to her under said, lease and for said premises for the rental thereof, for the months of May to December in-elusive, for each of said months, being a total of $433.35. ’ ’

This agreement in writing was not acknowledged and witnessed as required to constitute it a valid lease for the term named.

The answer admits the making of the contract, hut alleges 1hat it was invalid as a lease for the term named, because not properly acknowledged as the statute requires. The defendant admits that he entered into and retained possession of said promises, until April 30, 1899, and alleges that prior to the expiration of the third year he notified the plaintiff of his intention to vacate the premises at the end of the year, and that he did actually vacate said premises at said time. It is conceded that the rent was fully paid up to May 1, 1899.

Issue is taken by the reply, upon these averments of the «answer.

The case came on for trial before a court and jury; at the close of the testimony for the plaintiff, the court directed a verdict for the defendant on the ground that the lease was invalid to fix the duration of the term and that] there had, in faiet, been a surrender of the premises on April 30, 1899, up to which date the rent was fully paid.

The first claim made in behalf of the plaintiff in error as a ground for reversal is, that this agreement in writing, although not acknowledged, became as valid as if acknowledged, for the reason that the defendant took possession of the premises thereunder. This claim can not be sustained. It is as we understand, in direct eonfiiot with the case of Baltimore & O. Ry. v. West, 57 Ohio St. 161 [49 N. E. 344]. Again, it is claimed that there was no surrender of the premises by the lessee on or prior to flay 1st, 1899, and that by holding over the fourth year the lessee became bound for the rent for the full term named in the writing. All'the evidence produced on the trial of the case, related to this issue.

It appears' that prior to April 1st, 1899, the defendant gave notice to the plaintiff that on April 30th he would surrender the premises to the plaintiff, and that the defendant did, in fact, on that day leave the premises; but it appears that prior to that time the defendant had sublet to one William Liehtig a portion gí said premises. Liehtig continued in the occupation of that portion of the premises leased to him, until some time in July or August, 1899. It is not disputed that a lessee who sublets a portion of the leased premises cannot quit by surrendering possession of the part retained, so as to escape payment of rent for the whole. The duty rests upon the lessee to see that his tenant, as well .as himself, vacates the premises. The defendant claims, however, that his sub-tenant, after May 1st, became the tenant of the plaintiff, to whom, it is claimed, the entire premises were surrendered on the 30th of April.

It appears that in the rental of this building one William Williams acted as agent of the plaintiff.

On the trial, Mr. Liehtig was called as a witness by the plaintiff in error and testified, in part, that:

“In the month of November or December, Mr. Kline introduced me to this Mr. Williams. * * * Later on he took me to Mr. William’s office; Mr. Williams was not in, and we met him as we started to go down-stairs at the elevator. He said, ‘Mr. Williams, this is Mr. Liehtig; he is going to occupy the premises until April 30th; I have rented him a part of it, and he would like to make arrangements with you beyond that time; if he intends to stay he would like to make some arrangements with you regarding the place. ’ Mr. Williams, I believe had asked ‘ Is he Occupying the whole of it?’ and Mr. Kline said, ‘No, only a part of it,’ and I believe the amount of rent that I was paying was also mentioned, and Mr. Williams says, ‘Well, he can keep it providing you pay the difference; or words to that effect; and Mr. Kline .and he had some argument, and we left him there. I went away. About four or five days before April 30th, I again went to Williams’ office; wanted to see if I could not make some arrangement regarding this place, as I would rather have remained, on aceonut of having the place there, and it would have been very inconvenient for me to move, but I didn’t see Williams. Again, a day or two before April 30th, I saw Mr. Williams, and told him I would like to rent the place again, as my term of lease you might say, expired with B. A. Kline; that Mr. Kline told me that after April 30th, he had nothing to do with me, and Mr. Williams had remarked, ‘I don’t know; I have not got anything to do; I hold Mr. Kline responsible for that rent. ’ Upon that I went to work; I found that I eould not find a place to move my things by the first of May, and I sent my check a day or two before May 1st — the some day that I met Williams I sent a cheek, and that cheek came back.”

It would seem then, from the statements of this witness that the plaintiff, by the agent Williams, at all times refused to accept the surrender of the premises of Kline; that she never aecepted Lichtig for her tenant. The duty rested upon the lessee, if he would escape the payment of the rent, to surrender the entire premises covered by the lease or the contract. • By leaving' liis sub-tenant in possession of a portion' of the premises, he failed in the performance of his duty. While the holding over under the circumstances disclosed by the record, wias not such as to constitute a valid lease for the fourth year or to the expiration of the lease, it was not such as to relieve the defendant from the payment of rent while the premises were occupied by his sub-tenant.

We Hold that under the facts disclosed in this record, the defendant should respond for the rental of the premises at the agreed price for the time the same were occupied by his subtenant. Wo are also of the opinion that the allegations of the petition above quoted were sufficient to allow such recovery in the present action, and that the court erred in directing a verdict for the defendant.

The judgment of the court of common pleas is, therefore, reversed..

Caldwell and Marvin, JJ., concur.


author: NIMAN, J.

text:
    CHARGE TO JURY — CONTRACTS—DAMAGES.
    [Cuyahoga (8th) Circuit Court,
    February 5, 1912.]
    Winch, Marvin and Niman, JJ.
    Schatzinger Conso. Realty Co. v. E. M. Stonehill et al.
    1. Refusal to Submit Series of Requests as Entirety.
    Where a series of requests to charge before argument is properly presented, but the submission of them is as an entirety, or as a series, if one or more of the requests does not correctly state the law applicable to the facts submitted to the jury, it is not error to refuse to give the entire series.
    2. Damages Naturally and Proximateiy Resulting from Breach Recoverable.
    When special damages are alleged to have resulted from the breach of a contract to convey lands, the plaintiff is entitled to a charge sufficiently comprehensive to enable him to recover such damages as arose naturally .and proximateiy from the breach of the contract and such as the parties to the contract at the time it was made must reasonably 'have contemplated as a probable result of the breach.
    3. Damages for Breach of Land Contract Does Not Include Expenditures Made Before Contract Execution.
    In an action for the breach of a land contract, plaintiff is not entitled to compensation for expenditures made before the contract was entered into, looking towards its consummation.

      P. G. Kassulker, for plaintiff in error.

      White & Grossner, for defendant in error.
   NIMAN, J.

The order of the parties to this proceeding was reversed in the court of common pleas. When tbe terms “plaintiff” and “defendant” are used in reference is made to tbe parties as they stood in the original action.

The plaintiffs’ amended petition filed in the court below sets up a cause of action for damages for breach of a parol contract for the sale of certain real estate in the city of Cleveland, possession of which, it is claimed, had been given to them by the defendant pursuant to such parol agreement.

It is urged that there was error in the refusal of the trial eourt to grant the defendant’s motion to direct a verdict in its behalf and to arrest the testimony and evidence from the jury.

In support of this position, the defendant contends that while the contract sued upon in the amended petition is averred to be a parol contract, the evidence discloses a contract in writing with parol modifications, and that the plaintiffs therefore failed to prove the contract declared upon.

The writing which the defendant claims constituted the contract between the parties was offered in evidence, and an inspection of this writing discloses a written application signed by one of the plaintiffs, in which he applies to the defendant for the purchase of the real estate in question upon certain terms that are specified in the writing. There was a conflict of the evidence as to whether or not this constituted the contract which was entered into by the parties, or whether the contract actually entered into was a patrol contract, and the question was properly submitted to the jury under adequate instructions from the court, to say what the contract between the plaintiffs and defendant in fact was, and we find no error in the action of the trial court in refusing to direct a verdict for the defendant.

It is also contended that the court below committed error in refusing to instruct the jury before argument, as requested by the defendant. After the plaintiffs and defendant had rested and before argument, the defendant submitted to the court eight requests to charge. These requests were written on separate sheets of paper and separately numbered. The court refused to give these requests on the ground that the defendant had not complied with the statute, Sec. 11447 G. C. which provides that “When the evidence is concluded, either party may present written instructions to the court on matters of law, and request them to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.” Some of these separate propositions of law were correct and applicable to the facts in -issue; others were not. The manner in which the request was made indicates that the court considered that the defendant had asked to have the eight different requests to charge before argument given as as an entirety and not separately. In this view of the matter, •the trial court was justified in refusing to comply with the request made. While the position of the court was perhaps somewhat technical, we are of the opinion that the position assumed was not erroneous, since the charges to be given before argument must be given as submitted without modification, or en tirely refused. If any one of the requests submitted to be given as an entirety, or as a series did not correctly state the law applicable to the facts submitted to the jury, they should all have been refused, and this is apparently the view of the court in the matter.

Another ground of error is said to exist because of the rule adopted by the trial court for the measure of damages, the defendant contending that the court misconceived the proper measure of damages to be applied to the facts in the case should the jury find for the plaintiffs.

The question of what was the true measure of damages to be adopted was raised by objection to the inti’oduetion of evidence in support of certain items of damage claimed by the plaintiffs, by exceptions to the instructions of the court on this subject, and by the refusal of the court to give certain instructions requested by the defendant in which a different rule w:as set forth than that adopted by the court. To determine what damages the plaintiffs were entitled to have awarded them by the jury, if the verdict should be in their favor, a brief reference to the facts will be necessary.

The plaintiffs, in their second amended petition, allege that the contract on which their action was founded was entered into on March 25, 1909, and that it was to be consummated upon the terms set forth on or before April 15, 1909. They further allege that they were to be given immediate possession of the premises purchased, and were eo erect an apartment building thereon; that they paid to the defendant $100 of the purchase price of the premises and entered into possession of the same; that they had plans and specifications prepared for the apartment building to be constructed on said premises; that they entered into contracts for the construction of said apartment building and brought to the premises stone, brick and other materials, and made the necessary excavation for the building.

The evidence shows that the payment of $100 was made by the plaintiffs to apply on the purchase price; that they entered into possession of the premises and did some work toward the erection of an apartment house on the premises; that on the 13th day of April, 1909, the premises claimed to have been bought by the plaintiffs were conveyed by defendant to third parties. The right of the plaintiffs to take possession of the premises in question was denied by the defendant, but on this issue the verdict shows that the jury found with the plaintiffs.

The court instructed the jury on the measure of damages in this language:

“I say to you then, and you may apply the law as here given to the facts in this case, that where two parties have made a contract which one of them has broken, the damages which the other ought to receive for such breach should be such as may fairly and reasonably be construed as arising naturally, that is, according to the usual course of things from such breach of contract itself, or such as may fairly and reasonably be supposed to have been in the contemplation of the parties at the time they made the contract as a probable result of the breach of that contract. Now, if the special circumstances, if any such you find there were in this ease, under which the contract was actually made if you find that such a contract was in fact made, if these special circumstances were known to both parties, the damages resulting from the breach of such contract which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from .a breach of contract under the special circumstances so known to each party and communicated to each other in the negotiations; but on the other hand, if these special circumstances, if any you find, were wholly unknown to the party breaking the contract, that would be the defendant in this case, if you find that he broke it, he could at the most be held only for such damages as would arise and flow naturally and proximately from such .a. breach of contract. The general principle of compensation is that it should be equal to the injury in every case. ’ ’

The charge enlarged upon this general principle somewhat at length, and certain features of the charge will be referred to hereafter.

There is much diversity among the authorities as to what the true measure of damages for breach of contract for the sale of real estate is. In .an ordinary contract for the sale of real estate, where the vendor at the time of making the contract has title and afterwards refuses to convey, or puts it out of his power to do so by conveying the title to another, we believe the true rule of damages to be laid down in D'ustvn v. Newcomer, 8 Ohio, 50, which is as follows:

“When <a vendor has a title and refuses to convey, or when he disables himself from conveying by parting with the title, the rule of damages to be enforced in equity is the value when the conveyance ought to have been made. ’ ’

In Sedgwick, Damages, Sec. 1012, the subject is discussed in the language following:

“If the defendant fails to convey because he has not a good title, he is always liable in substantial damages. This is commonly called the United States Supreme Court rule, and represents one extreme of the series of principles of which the highest English court has adopted the other extreme. It seems to be the correct one on principle. It may be said in its favor that it is unjust to hold the vendee to his contract to pay, if, before the contract is to be performed, the land decreases in value, while if it increases in value, the vendor is liable only for nominal damages; that it is the object of courts of justice to carry out the contracts of the parties as far .as possible, and that the specific act agreed to be done should be performed. If the party omits to do what he stipulated, it is just, as a reasonable substitute, that he should pay the precise value of the thing which he contracted to do; and such value to be estimated at the time when the act in question should have been executed.”

It will be seen that the trial court did not, in express terms, charge according to the rule laid down in Dustin v. Newcomer, supra, but it will further be noticed that this action involved certain special circumstances. It was claimed by the plaintiffs that the premises involved were bought for the express purpose of building thereon an apartment house; that this fact was known to the defendant, and that the plans for such a building were discussed with the officers of the defendant, and that the defendant knew of the commencement of the work of building the apartment. There was evidence tending to support the plaintiff’s claim in this respect, and the jury would have been justified in finding that the special purposes to which it is claimed the real estate was to be devoted were in contemplation of the parties at the time of the contract was entered into, and that the defendant was aware of the steps taken by the plaintiffs to achieve these purposes. No evidence was introduced as to the value of the premises at the time the alleged contract was to be carried out, .and we think that the plaintiffs were entitled to a charge sufficiently comprehensive to enable them to recover such damages as arose naturally and proximately from the breach of the contract, and such as the parties to the contract must reasonably have contemplated as a probable result of the breach of that contract when it was made, in case the jury should find that there were was a contract and that it had been broken by the defendant.

We think there was no error in the charge as given insofar as that portion of it hereinbefore quoted is concerned.

The court, however, during the progress of the trial, had admitted evidence in support of an item of damages claimed by the plaintiffs amounting to $275 for certain plans for the proposed apartment house, which were obtained by the plaintiffs while the negotiations for the purchase of the premises were being carried on. It appears that the obligation to pay this $275 had been incurred before the contract claimed by the plaintiffs to have been made, had been entered into. The court in its charge used language .authorizing the jury to take into account this item incurred for the plans and specifications. In the admission of evidence in support of this item of damages, and in instructing the jury that they might consider this in assessing the damages, if they should find for the plaintiffs, we think the court erred. The plaintiffs were not entitled to recover any damages for any expenditures made by them looking toward the consummation of the contract, and the argument that such expenditures have proved useless expenses by reason of the breach of contract, is of no avail Sedgwick, Damages, See. 1017.

The jury returned a verdict for the plaintiffs for $1,200. The evidence submitted to the jury tended to establish items of damage suffered by the plaintiffs in .addition to the $275 item already referred to, in the following amounts: $85 paid to

the architect for services rendered after the contract claimed to have been entered into w.as made; $119.20 paid to the contractor who was given the contract under which the work on the apartment house was done; $150 also paid to this contractor, and another .amount of $41 paid to him; $100 on the payment of the purchase price on which interest amounting to $14.82 might and doubtless was figured by the jury. If all of these various amounts, including the $275, are .added together, it will be seen that the aggregate is $785.02. The remainder of the verdict, amounting to $414.98, if arrived at in view of any evidence submitted .at all, must have been allowed on the basis of compensation to the plaintiffs for the time spent by them in preparing to build the apartment house which they designed to erect on the premises, and in carrying out such work as was done before the controversy arose. There was no evidence given as to the value of this time or the value of this class of services, although there was evidence bearing on what was done by the plaintiffs and the amount of time spent by them.'

It is doubtful whether, under the charge of the court, the jury could have understood what rule they were to follow in making allowance, if at all, for this particular part of the plaintiff’s damages. Under proper' instructions they would-have been justified in making some allowance, but the amount of $414.09 under any possible instructions, in the light of the evidence introduced on this subject, seems to be excessive, arid it is our opinion that $100 would be a liberal allowance for this particular part of the plaintiff’s damages.

As we view the matter, therefore, the erroneous admission of evidence in support of expenditures made previous to the entering into the contract between the plaintiffs and the defendant, and made for the express purpose of trying to secure swih a contract, coupled with the erroneous features of the charge to which we have referred, is responsible for a verdict of $589.98 in excess of what, under proper instructions, the jury might properly have assessed as damages.

We find no ei’rors assigned by the petition in error to exist other than those to which we have called attention and if the plaintiffs will consent to remit from their vex*diet the sum of $589.98, the judgment of the court below will be affirmed; but if tiny do not so consent, the judgment will be reversed and the cause remanded for further proceedings, for error in the admission of evidence and in the charge of the court.

Winch and Marvin, JJ., concur.


author: HENRY, J.

text:
    COURTS — EVIDENCE.
    [Cuyahoga (8th) Circuit Court,
    March 4, 1907.)
    Henry, Winch and Marvin, JJ.
    James Kane et al. v. Louis Dominick.
    Evidence Taking Case Out of Statute of Frauds Admissible in J. P. Trial.
    A justice of the peace may receive evidence of facts which will take a case out of the operation of the statute of frauds.
    Error.

      O. W. Broadivell, for plaintiff in error.

      Bemis $ Calfee, for defendant in error.
   HENRY, J.

This proceeding in error is prosecuted to reverse a judgment of reversal rendered by the court of common pleas in a proceeding in error from the court of a justice of the peace. The plaintiff in error here was plaintiff in the original action. He prevailed in the justice court, hut was defeated in the court of common pleas. The action was in forcible detainer, and the plaintiff claimed that the defendant in possession was a tenant at will, or at most a tenant from month to month, and proved a proper notice upon Mm to leave the premises. The defendant, however, claimed that he was in possession under a parol lease for one year at' the rate of $12 per month, for wMch he was not m default. The justice of the peace refused to receive evidence of the alleged oral lease for one year, upon the ground that under the statute of frauds the lease must be in writing. It is conceded that possession under an oral lease for one year will suffice to take the case out of the statute by invoking the doctrine of equitable estoppel or fraud upon the statute or the law. But this seems to have been deemed by the justice of the peace a defense involving the exercise of equitable jurisdiction beyond the province of his court.

It is true, of course, that equity can not be administered by a justice of the peace, but it is not true that it involves the exercise of equitable jurisdiction to receive evidence of an oral lease of land for one year.

The case of Wilber v. Paine, 1 Ohio, 251, seems to be decisive of the question. That was an action at law in which, however, proof was received of facts taking the case that was before the court out of the statutes of frauds.

Grant v. Ramsey, 7 Ohio St., 158, was decided after the adoption of the code permitting the joinder of legal and equitable causes of action, and legal and equitable defenses, and both, these cases are cited in Swan’s Treatise, 20 Ed., p. 576, as authority for the proposition that a justice of the peace may receive evidence of facts which mill take a case out of the statute of frauds. The recognition of equitable estoppels by courts of common law is fully discussed in Columbus v. Columbus St. Ry. 45 Ohio St. 98 [12 N. E. 651]

The judgment below is affirmed.

Winch and Marvin, JJ., concur.


author: JONES (O. B.), J.

text:
    DEDICATION — ESTOPPEL.
    [Hamilton (1st) Court of Appeals,
    March 29, 1915.)
    Jones, Jones and Gorman, JJ.
    John Oberhelman v. Amelia E. Allen.
    1. Township Trustees No Jurisdiction to Establish Road in Another Township,
    Trustees of a township have no jurisdiction to lay out and establish a township road through land lying in another township.
    2. Dedication not Shown by indorsement of Damages Receivable.
    The endorsement by a land owner of the report of viewers appointed to locate a proposed road, said endorsement reading, “I agree to receive the above damages and open the road when the money is paid,” does not show a statutory dedication in the absence of any evidence that the money was ever paid, or that the report of the viewers was accepted or that the other necessary steps required by statute were taken or that the public ever expended any money on said road, or any reference t,o such way on the public plats or in deeds to the abutting land subsequently executed.
    3. Vacation by Council of Way Marked by Street Signs But Not Found In Public Records, Does not Estop Landowner.
    Vacation by council of a street, planned to follow the line of said supposed road after annexation of the territory to the adjacent municipality, does not estop the land owner from, denying the existence of such a way; nor does the fact that street signs had been placed on the said proposed street, or that the name of the street appeared in a street directory made up by the police department for the use of its officers and on a certain tax plat, afford proof of any right of the public therein.
    4. Permissive and Occasional Use of Enclosed Way Vests no Rights in Public.
    Occasional use of a private way, fenced in on both sides and to which admission was had through gates and evidently by permission of the land owner, does not ripen into a prescriptive right or vest any title in the public for the purpose of a public way.

      Hermcm P. Goebel and Oliver M. Pools, for plaintiff.

      Matthews é Matthews and Nelson é Hichenlooper, far defendant.
   JONES (O. B.), J.

Plaintiff claims lie has established the existence of a public road or street thirty feet in width known as Hazard road or lane, and sometimes called Lincoln avenue, which extended from St. Lawrence avenue (or Rapid Run road) southwardly to the Thomas Hazard farm over the east part of the land formerly owned by Robert Goudy, who was defendant’s predecessor in title, and that the east line of said road was the west line of the land of William Terry, who was the predecessor in title of the plaintiff. He admits that no part of this road was taken from the land of his predecessor in title, but claims that such land abutted on the east side of said road and therefore he was entitled to use it. He claims that the council of the city of Cincinnati, upon the petition of the grantors of defendant, by ordinance vacated Hazard road in the year 1906, and that by reason of such vacation he has an interest as an abutting property owner in the vacated road by way of an easement in the entire road or a fee in the east half of the road.

If,- as contended by plaintiff, Hazard road was a dedicated highway in which he had the right of an abutter, the order of council vacating it would operate as a revocation of its acceptance by the council, and the right of the general public therein would cease, but the right-of-way over it and the easement in it theretofore enjoyed by plaintiff would not be impaired by such vacation, and he would continue to -have such easement in its entire width. Section 3729 G. C., McQuigg v. Cullins, 56 Ohio St. 649 [41 N. E. 595] ; Kinnear Mfg. Co. v. Beatty, 65 Ohio St., 264; Hamilton G. & C. Trac. Co. v. Parish, 67 Ohio St. 181, 190 [65 N. E. 1011; 69 L. R. A. 531]; Stevens v. Shammon, 3 Circ. Dec. 386 (6 R. 142); Price v. Toledo, 25 O. C. C. 617, (4 N. S. 57) ; Schlemmer v. Furniture Co., 18-28 O. C. C. 474, (7 N. S. 468).

Plaintiff would not, however, acquire any interest in the fee. It would remain in the original owner and his grantees. When the public right is relinquished, the private rights which have been suspended or subservient to those of the publie -would revive, and the land would be the property of the owner, disencumbered of the publie use. Angell, Highways (3d Ed.), 326. As stated in Lawrence Ry. v. Williams, 35 Ohio St., 171, 172:

‘‘ As between the publie -and the owner of land upon which a common highway is established * * * the fee of the land remains in the owner; he is taxed upon it; and when the use or easement in tlie public ceases, it reverts to him free from incumbrance.”

Usually whcu a road or street is dedicated it is taken equally from adjoining proprietors on each side of its center line, and in a plat of a subdivision the owner so plats his streets as to lay out lots on both sides. In such cases on vacation of the road or street it is said to “revert” not to the original owner of the land so dedicated, but to the owners of the abutting lots and Land at the time of such vacation. Kinnear Mfg. Co. v. Beatty, 65 Ohio St., 264; Stevens v. Shannon, supra (affirmed, Stevens v. Taylor, 51 Ohio St., 593) ; Price v. Toledo, supra. It has been said lo “adhere to the abutting lote by accretion” going there by necessity to preserve to the owners their easement of ingress and egress. Hamilton G. & C. Trac. Co. v. Parish, supra.

The rule that proprietors presumptively own. the fee of the soil under that half of the road which is contiguous to their lands is founded on the presumption that the land covered by the highway was originally granted by the adjoining owners in equal proportions. When it appears that it was all granted by a single proprietor, the presumption is rebutted. I-Iis laying a servitude can not transfer a title to the fee. Seery v. Waterbury, 82 Conn., 567, 570 [74 Atl. 908; 25 L. R. A. (N. S.) 681; 18 Ann. Cas. 73]. To the same effect are Watrous v. Southworth, 5 Conn., 305; Robbins, In re, 34 Minn., 99 [24 N. W. 356; 57 Am. Rep. 40] ; Jose v. Hunter, 101 N. E. (Ind.), 665, 669; McCombs v. Stewart, 40 Ohio St. 647, 669.

The important question to be determined in tins case is whether Hazard road, or lane, ever became a dedicated or public highway. Unless such fact can be established, plaintiff has shown no rights in the land in dispute.

A public road or street is established in one of three ways: 1. By statutory dedication. 2. By dedication under the common law. 3. By prescription.

To show a statutory dedication it is necessary to prove that- the land was conveyed to the public for road or street purposes by deed or plat duly recorded and accepted by the proper authorities, or that proper proceedings were taken by the township trustees of the proper township, the county commissioners or the council of the city, to appropriate the land for road or street purposes. ¿V failure to comply with the steps made necessary by the statute in any essential particular would show that there was no statutory dedication. Lockland v. Smiley, 26. Ohio St. 94, 99; Drucker v. Home City, 31 O. C. C. 466 (12 N. S. 309), (affirmed, Home City v. Drucker, 81 Ohio St., 507).

Outside of the proof offered as to proceedings had by tiro trustees of Delhi township' looking to the establishment of a township road, no evidence whatever has been offered to establish any statutory dedication in this case. As this land was located in Storrs township and was never located in Delhi township, action taken by the trustees of Delhi township was entirely without authority or effect, as they liad no ex-territorial jurisdiction. Such proceedings must be had before the “trustees of the proper township," i. e., the township in which the land is situated. Section 6958 G. C.

. To show a common law dedication it must appear not only that the owner intended to give and did give the property to the public, but also that the gift was accepted by the authorities whose duty it would be to care for the road or street if it should be established. Railroad v. Roseville, 76 Ohio St., 108, 115, 117 [81 N. E. 178].

"While it must be admitted that the proceedings had before the Delhi township trustees were of no effect to constitute a statutory dedication, it is contended that they were effective as a common law dedication. It is true that the report of the viewers describes the road commended by them to be laid out from the small Hazard farm two rods (33 feet) in width on the west side of the line between the lands of William Terry and Robert Gowdy until it intersects the county road and assess the damages in favor of Robert Gowdy at $35, and after this report-, in the record is the following statement:

“I agree to receive the above damages and open the road when the money is paid. “Robert Gowdy.”

This statement can not be extended beyond its terms to evidence an intention on Gowdy’s part to give the property. It merely indicates a willingness on his part to comply with what he evidently considered to be the result of an adversary proceeding had before public authorities. There is, however, an entire absence of proof that these damages were ever paid. Nor does the record of proceedings show that the report of the viewers was ever acted on or approved by the trustees, or that they ever ordered the damages to be paid or the road to be established and opened, or in fact that they took any further action in the matter. The proceedings were faulty and irregular in other respects. There is nothing in the record to show posting ot notices or that a bond for costs, etc., was given. No plat is shown accompanying the surveyor’s report, which' differs in some respects in the description of the road from that contained in the report of the viewers. These irregularities and failures !.o comply with the law for laying out a township road, then in force, Section 14 of the act of February 26, 1824, 2 Chase’s Statutes, 1393,1396 now found in Secs. 6958 to 6966 G. CL, would invalidate the proceedings, even if they had been had by the trustees of Storrs township (Ferris v. Bramble, 5 Ohio St. 109; Fravert v. Finfrock, 43 Ohio St. 335), [1 N. E. 875].

They must be held ineffective to secure a common law dedication.

Giving the utmost force to the statement of Robert Gowdy, ' found in the record of the township trustees, as an offer on his part to dedicate, such offer was withdrawn or revoked by his deed of general warranty, dated November 21, 1829, conveying all of his property, including but not mentioning this road to his son, Robert Gowdy, Jr. Lackland v. Smiley, supra; Drucker v. Home City, supra.

Other than this statement of Robert Gowdy in the Delhi township record there is no evidence of any intention on his part or that of any subsequent owner to give this road to public use, nor' of any actual giving of it, nor of any acceptance of it by any public officers having authority over roads or streets.

Deeds have been introduced in evidence showing a complete chain of defendant’s title. None of these deeds show any reference to this road except the quit-claim deed from Ann E. Moore to A. Hickenlooper, dated July 18, 1896. In this deed the eyarntor quit-claimed her interests to her co-tenant in a tract of land which is described-by metes .and bounds, and fixed the west line of Hazard road as tlie east line of the track quit-claimed. The description used, does not define the Hazard road either as a public or a private highway or in any way fix or determine its status. The deed from William White and wife, the previous owner, to Ann E. Moore, and A. Hiekenlooper jointly, made no mention of the road, but described the tract so as to include the land, covered by it.

A deed from Mary A. Hazard to Edward M. Pattison, dated December* 31, 1889, conveying part of the Hazard farm inclnd- ’ ing a way out to Rapid Bun road, refers to the roadway in question as a “right-of-way belonging to grantor.”

In an agreement between Robert Gowdy, Jr., and one John Jett, dated January 6, 1832, in describing a private roadway across Dowdy's land, mention is made of a “road granted by Robert Gowdy, Sr., to Thomas Hazard,” thus indicating a private grant to Hazard. Defendant produced evidence that the public records contained no record of any plat or instrument making such a conveyance or making any dedication of said road.

It was shown that at one time, previous to the vacation proceedings of the city eotmeil of Cincinnati, Hazard lane appeared on the tax plat in the office of the ewunty auditor as a public way. These plats are prepared for taxing purposes, and while they are usually instructive they form no part of the public records showing title to land, such records being in the recorder 's office.

Plaintiff also showed that Lincoln avenue was at one time included in .a street directory which had been prepared and used by the police department of the city, and urge that' as showing a recognition and acceptance of it by the city as a public street. The police department has no authority in regard to the laying out or acceptance of streets. That power is expressly vested in the council or public service department. Its place in the police manual was merely for information of officers as to localities. Nor can the fact that a street sign was placed on Lincoln avenue at the Rapid Run road be deemed of much importance m determining its character as a public highway. Such signs are for the convenience of the public in fixing localities. No showing- was made by whose orders or on what authority a sign was placed on this roadway. There is no evidence that any improvement or repairs were ever made upon this 'roadway at the expense of the public, but on the contrary there is evidence that tany repairs made were by the owner of the land, or the owners or tenants of the Hazard farm.

Plaintiff has failed to establish' a dedication by common law.

Hoads and streets may be established by prescription where, under claim of right, use is shown by the public, adverse to the right of the owner, continued without substantial interruption or change for a period equal to the statutory limitation of actions for the recovery of real estate. Railroad v. Roseville, supra.

“In order, however, that the enjoyment of an easement in another’s land may be conclusive of the right, it must have been adverse, that is, under a claim of title, with Hie knowledge and acquiescence of the owner of the land, and uninterrupted; and ihe burden of proving this is on the pariy claiming the easement. If he leaves it doubtful, whether the enjoyment was adverse, known to the owner, and uninterrupted, it is not conclusive in his favor. 2 Greenleaf on Evidence, Sec. 38 and 539.”
“Under a different rule, license would grow into grants of the fee, and permissive occupations of land become conveyances of it. ‘It would shock the sense of right,’ Chief Justice Miarshall said in Kirk v. Smith, 9 Wheat., 286, ‘which must be felt equally by legislators and judges, if a possession which was permissive and entirely consistent with the title of another should silently bar that title.” District of Columbia v. Robinson, 180 U. S., 100 [21 Sup. Ct. 283].

A careful consideration of the evidence leads us to the opinion that this roadway was originally a private way or easement, possibly as a way of necessity, to furnish access: to the Hazard farm. It was for many years kept fenced, with a gate at the Hazard north line, and another at or near Rapid Run road. Its use was evidently by permission of the owners of the land, from Robert Gowdy down and until the opening and extension of West Eighth street through the cemetery in 1895, and the Hazard property in 1899, the only travel upon it was by those going t'o and from the Hazard farm and the Gówdy or TTiekenlooper farm, as there were then, no cross streets or other outlet. People walked in the grassy lane in summer and brought their children, ate lunches in the shade, picked flowers, and had sort of picnics” there; some passed through to the cemetery as a short cut; and it appears that plaintiff and the owner of the property south of him,' lying east of the roadway, on ocea sions entered their property from this land. But each had independent entrances from the highway and did not use the lane with any frequency or continuity. Such occasional use without any adverse claims, with the evident permission of the owners, did not ripen into any prescriptive rights or vest any title in the public for the purposes of a public way.

Nor does the fact that the Hickenloopers petitioned council for the vacation of Hazard road create any estoppel against defendant and prevent her from denying that Hazard road was then a public highway. Such vacation was properly sought for the purpose of removing what some purchasers might regard 'as a cloud on their title, they being’ then .about to plat a subdivision of the property for sale in lots. This has been distinctly decided in Stevens v. Shannon, supra.

From all the evidence it must be concluded that. Hazard lane, or road, never was a public way. Plaintiff therefore has no right or interest in any part of the land occupied by it. The title of plaintiff is in no way dependent on the vacation proceedings of the city. As stated above, such vacation confers no title but simply disclaims any further interest on the part of the city. Section 3729, G. C.

The petition of plaintiff will he dismissed and defendant will be granted a decree quieting her title as prayed in ber cross-petition.

Jones (E. H.), and Gorman, JJ., concur.