author: KING, J.

text:
    CHARGE OF COURT — EVIDENCE—HOMICIDE.
    [Wood (6th) Circuit Court,
    November 3, 1899.]
    King, Haynes and Parker, JJ.
    Paul Zeltner v. State of Ohio.
    1. Events oe Pursuit may be Proven by State to Establish a Crime.
    On trial for homicide the state may prove what took place in the pursuit and capture of the defendant.
    2. Error in Excluding Evidence is Cured by Its Subsequent Admission.
    The subsequent admission of evidence before erroneously excluded cures the error of excluding such evidence.
    3. Witness as to Reputation may be Asked as to Specific Instances of Trouble.
    A witness called by accused to testify as to the reputation of the accused as a quiet, peaceable citizen may be asked on cross-examination if he has not heard of instances of trouble he has had with his neighbors.

      4. Not Competent to Prove as Defense that Deceased on a Former Occasion 'Attempted to Shoot Another.
    In a trial for homicide evidence that the decedent on a former occasion attempted to shoot another person is not competent, and it is not error to exclude such evidence.
    5. Opinion of Witness Offered to Prove a Quarrel mat be Asked as to Effect of Conduct in Question.
    In trial for murder a witness offered by defendant to prove a quarrel with deceased it is not error in cross-examination to allow witness to be asked, “There was nothing occurred there in W’s (deceased’s) conduct, or language or manner, to arouse anybody, was there?”
    6. Three Degrees of Unlawful Homicide Defined.
    A charge is correct which defines the degrees of murder as follows: “If the killing was unlawful only, with or without purpose or intent to kill, not malicious and without deliberate and premeditated malice, the degree of crime is manslaughter; 'if the killing was unlawful and malicious and with a purpose and intent to kill, but without deliberate and premeditated malice, the degree of crime is murder in the second degree; if all of these elements were present, if the killing was unlawful and malicious with deliberate and premeditated malice and with a purpose and intent to kill, then the degree of crime is murder in the first degree.”
    7. Time not a Requisite in Determination of Premeditation as Element of Murder.
    In explaining the element of premeditation in murder, it is not error to charge: “It is not the time of deliberation and premeditation that is requisite, but the actual existence and premeditation, before the time the fatal shot is fired.”
    [Syllabus approved by the court.]
    Error to Wood common pleas court.

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

      E. G. McClelland, Pros. Atty., and J. O. Troup, for defendant in error.
   KING, J.

On tbe twenty-fifth of March, 1899, one Elias H. Westenhaver came to his death in this county as alleged in an indictment against the defendant, at the hands of the defendant, Paul Zeltner, and one John Zeltner, whom, it is alleged, shot him to death on that date with a revolver. After due proceedings were had Paul Zeltner was brought to trial on that indictment and a verdict of guilty of murder in the first degree rendered against him with a recommendation on the part of the jury for mercy and he was sentenced to the penitentiary of the state for life in pursuance of a statute recently passed.

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

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

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

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

‘ ‘ Q. That was for professional services in what ease ? Not answered.

“Q. Did Mr. Westenhaver make any statement of the case tliat was tried there before you? Ans. After the jury was sworn?

“Q. Yes, sir? Ans. Yes, he did.

“Q. I will ask you if in making that statement he said anything about what his claim was for ? Ans. Yes, sir.

‘ ‘ Q. What did he say to the jury that his claim was for ? ’ ’ The state objected; sustained and exception. The defendant stated he expected to prove by witness in answer to question that Mr. Westenhaver stated at the time he made the statement to the jury of the case, that he claimed a hundred dollars due him from the defendants, John and Paul Zeltner, for services rendered by him in the case of Watson against John and Paul Zeltner, in the court of common pleas of Wood county, Ohio.

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

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

We think that was competent cross-examination.

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

“Q. Was he a peaceable orderly law-abiding citizen? Ans. I call him a good peaceable law-abiding citizen.
‘ ‘ Q. Have you ever seen him tested in that regard ? A. Well, not altogether. I have as far as knowing of things myself.
“Q. I mean his character as to being peaceable — a peaceable man; have you ever seen him tested in that regard?” The state objected; sustained and exception. Defendant stated he expected to prove by answer to question that he has many times seen and heard defendant jeered and taunted by people, which he did not resent, but acted peaceably in all respects.
“Q. Do you know what his reputation is in that community as being a peaceable and quiet man? By general reputation I mean the estimate by which he is held in that community in that respect. A. He was honored.” On cross-examination he said he had heard of his having trouble but he did not know very much about it.

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

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

“Q. Did Mr. Westenhaver act for him upon that matter? Ans. No, sir, and he did all he could to induce me not to act.
“Q. Did you have some conversation with Westenhaver about it? A. I did, just as I come out at the time of the trial.
“Q. You say you did have some conversation with him about that? A. I had.
“Q. What, if anything, did Mr. Westenhaver say to you about the condition of the pleadings in that case?” Objected to, sustained and exception; and counsel for defendant stated he expected to show by answer of the witness to this question that Mr. Westenhaver stated to him that the answer which he filed in the case of Watson against Zeltner did not set up or claim any affirmative relief on the part of the defendant in that case.

That certainly was not error.

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

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

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

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

On cross examination he was askecl if' he was attorney for-the defendants and he said he was, and when they made a demand for the papers he told his clients it was all right that Westenhaver would return them and to let him take them. Then this question is asked: ‘ ‘ Then during the time that John was demanding those papers you said to him ‘John, don’t let’s have any trouble about these papers; Westenhaver will bring them back, and they are of no importance in the case, ’ did you not ? Ans. I said that, yes, sir. ’ ’

“Q. There was nothing occurred there in Westenhaver’» conduct, or language or manner, to arouse anybody, was there? That is true, is it not?” That was objected to; overruled and exception. Ans. “I don’t think there was at all.”

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

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

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

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

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

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

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

It is claimed there were some errors in the charge of the court. The charge is quite long and I will not read it, but parts seriously complained of are found first on pages 326 and 327. It is claimed that the court erred in its definition of the crime of manslaughter. The court said that the statute defines murder in three degrees and states what they are, defining them: ‘' If the killing was unlawful only, with or without a purpose or intent to kill, not malicious and without deliberate and premeditated malice, the degree of crime is manslaughter; if the killing was unlawful and malicious and with a purpose and intent to kill, but without deliberate a,nd premeditated malice, the degree of crime is murder in the second degree; if all of these elements were present, if the killing was unlawful and malicious with deliberate and premeditated malice and with a purpose and intent to kill, then the degree of crime is murder in first degree and in this case if you find the defendant guilty it will be your duty to say that you find him either guilty of manslaughter, or murder in the second degree, or murder in the first degree, according as the elements which constitute their respective degrees of homicidal crime have been established by the evidence beyond a reasonable doubt. As pointed out to you the difference between murder in the second degree and manslaughter is, that in murder in the second degree the killing must have been malicious with a purpose, or intent to kill. Whereas in manslaughter the element of malice growing out of a purpose to kill need not be present. When a person is killed under the influence of great passion of in the heat of blood produced by an adequate or reasonable provocation, and before a reasonable time for the blood to cool and reason to resume its habitual control, and is the result of temporary excitement by which the control of reason was disturbed, rather than by wickedness of heart or cruelty or recklessness of disposition, then the imputation or inference of malice growing out of the killing is repelled and the crime is only manslaughter, but the provocation must have been given at the time of the killing, and must have been of such serious character as would commonly produce a dégree of anger, rage, resentment or terror in a person of ordinary temper sufficient to render tbe mind incapable of reflection. Did Mr. Westenhaver at the time and place of the alleged killing by any words or acts on his part give such provocation to his alleged slayers as were calculated to excite violent and irresistible passion in a reasonable person and render him incapable of cool reflection ? ’ ’

The particular part of this charge that is most criticized is the first clause: “If the killing was unlawful only, with or without a purpose or intent to kill, not malicious and without deliberate and premeditated malice, the degree of crime is manslaughter.” In that the court says that if the killing was unlawful only with a purpose and intent to kill, not malicious, that it would then be manslaughter, and it is contended that that was erroneous, but when you take all that the court has said it must be seen, I think, that the court gave a very full and we cannot discover how in anywise it was an unfair, definition of the crime of manslaughter.

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

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

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

Now, taking that clause and reading it as a whole we think that it fairly defines the deliberation and premeditation, which are required to be- shown in a case of rñurder in the first degree. It is urged in criticism of it that the court uses a certain word in two places, in the first place stating it abstractly: “ It is not the time of deliberation and premeditation that is requisite, but the actual existence of the purpose, malice, deliberation and premeditation before or at the time the fatal shot is fired.” This is a mere abstract proposition, but if is criticized because the court used the expression “at the time the shot is fired.” It is evident the court meant the action of firing of the shot, not that he should have premeditated only at the time he pulled the trigger; it meant the action of the firing of the shot.

Then he says, “In this ease if you believe from the evidence beyond 'a reasonable doubt that the defendant alone or while aiding and abetting another, unlawfully, purposely and maliciously shot and killed Elias TI. Westenhaver as charged in the indictment, and that before, or at the time, the fatal wound was given, the defendant formed in his mind a wilful, deliberate and premeditated design or purpose to take the life of Mr. Westenhaver, and that the wound was inflicted in furtherance of that design or purpose, and without any justifiable cause, then you are authorized to find that the defendant purposely and of deliberate and premeditated malice killed Elias H. Westenhaver.” Now without reading any further we will say that we think there is no error in this, if the court misspoke, as appears to us from reading this charge by using the conjunction “or” in place of “and” which would have been a very proper word there, we should be loath to reverse a case of this importance, and after this trial which appears to have been a fair one, upon a single exception urged at the end of a fair charge. If counsel desire to take advantage of a charge because a word in the charge is changed in sense and may have been overlooked by the court, we have before held and still will hold notwithstanding the statute of the state of Ohio that they must point that out to the court at the time. We don’t think a fair interpretation of the charge of the court will show anything prejudicial to the defendant; that it takes any unfair advantage or gives a wrong-definition or does that which would enable the jury to convict when otherwise he ought not to have been convicted; so we find no error in the admission or rejection of testimony, or in the-charge of the court.

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

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

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

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

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

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

Haynes and Parker, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    APPEAL — COURTS—EMINENT DOMAIN.
    [Cuyahoga (8th) Circuit Court,
    November 22, 1909.]
    Henry, Marvin and Winch, JJ.
    Frank Seither v. Cleveland (City).
    Common Pleas Deprived or Jurisdiction on Appeal to Retry Appropriation Proceedings Begun in Insolvency Court before Amendment.
    The effect of the act of March 22, 1909 (100 O. L. 100), amending Sec. 21 of the Mun. Code of 1902 (Gen. Code 3695) was to deprive the common pleas court of jurisdiction on appeal to retry appropriation proceedings begun by a municipal corporation'before that date in the insolvency court, but not carried to judgment until after the passage of said act.
    Error to Cuyahoga common pleas court:

      Smith, Taft (& Arter, for plaintiff in error.

      N. D. Baker, city solicitor, and W. D. Wilkin, Asst, city solicitor, for defendant in error.
    Cited and commented upon the following authorities. Toledo v. Marlow, 28 O. C. C. 298 (8 N. S. 121); Atlantic & Gt. W. By. v. Campbell, 4 Ohio St. 583 [64 Am. Dec. 607]; Westerman v. Westerman, 25 Ohio St. 500.
   WINCH, J.

This is a proceeding to review the judgment of the common pleas court dismissing, for want of jurisdiction, an appeal to ;said court from the judgment of the insolvency court of ■Cuyahoga county, in an action to assess compensation for lands ¡sought to be appropriated by the city of Cleveland for park iand boulevard purposes.

Previous to March 22, 1909, such appeals were provided for by Bee. 21 of the Mun. Code of 1902 (Gen. Code 3695, 3696). On said date an act of the general assembly (100 O. L. 100) became effective, which abolishes such appeals and provides in lieu thereof a review of the judgments of the insolvency court in such proceedings by petition in error to the circuit court. This act contains no provision with regard to its application to pending actions or proceedings or causes thereof, as mentioned in Gen. Code 26 (R. S. 79).

The important dates to be considered in this case are the following:

October 12, 1908, resolution passed by the city council •declaring its intention to appropriate the lands of plaintiff in •error and others.

March 22, 1909 (the very day the law referred to took effect), ordinance passed by city council directing said appropriation to proceed.

March 30, 1909. Application to assess compensation filed in insolvency court.

May 20, 1909. Yerdict and judgment in insolvency court as to compensation awarded plaintiff in error.

June 4, 1909. Appeal to common pleas court perfected by filing transcript in said court.

It will be noticed that the proceedings in the insolvency court were not commenced until after the law was amended, but on the theory that said proceedings were but a part of the original proceedings to appropriate, begun by the city council by the passage of its declaratory resolution on October 12, 1908, we shall treat this matter as if the proceedings instituted in the insolvency court antedated the change in the law.

This change in the law affected only the remedy in such matters, — the right to have a judgment of the insolvency court reviewed, either by appeal to the common pleas court under the former law, or by petition in error to the circuit court, under the later law.

This question is determined by the date of the judgment sought to be reviewed, for, under the decision of the Supreme Court in the case of Gompf v. Wolfinger, 67 Ohio St. 144 [65 N. E. Rep. 878], the review of judgments rendered before the amendment is governed by the former law, but the review of judgments rendered after the amendment in cases pending at the time the law is changed, is governed by the amendment.

Before reading the syllabus of that case, let us consider what the court says on page 147, as to the nature of the right to review a judgment.

“That a resort by petition in error to a court of superior jurisdiction for the reversal of the judgment of a court of inferior jurisdiction is a proceeding in contemplation of the general section, (Gen. Code 26; R. S. 79) was determined in [Travelers] Insurance Co. v. Myers, 59 Ohio St. 332 [52 N. E. Rep. 831]. * * * That decision may be cited as full authority for the conclusion that the judgment * * * whose reversal is sought * * * was * * * a cause of proceeding within the meaning of Gen. Code 26 (R. S. 79).

The syllabus of Gompf v. Wolfinger, supra, is as follows:

“1. The act of May 12, 1902, to amend Gen. Code 12250-12253 (R. S. 6710), not being by its terms applicable to causes, of proceeding then existing, did not take from this court jurisdiction to review such judgments which the circuit court had. previously rendered as were subject to review at the time of their rendition.
“2. The effect of that act was to deprive this court of jurisdiction to review a judgment of the circuit court rendered after its passage and not coming within its term. Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. Rep. 574], approved and followed.”

The second paragraph of the syllabus is decisive of this, ease, for here the law was amended on March 22, 1909, and the judgment sought to be reviewed was not rendered until May 20, 1909.

If it be suggested that there is some difference between the right to appeal from a. judgment and the right to review it on error, we find that matter also disposed of on page 151 of Gompf v. Wolfinger, supra, where Judge Shauck says:

“It is necessary to observe that, with respect to the present, question, it is not practicable to distinguish between an appeal with a view to a trial de novo and a proceeding in error to review a judgment of an inferior court for error appearing upon its record. They are alike resorts to a jurisdiction which sections 2 and 6 of article 4 of our constitution denominate appellate, and they are equally effective to destroy the final character of the judgment rendered, by requiring the parties, to bear the burden of a retrial upon questions of fact or of law,, or both.”

Judgment affirmed.

Henry and Marvin, JJ., concur.


author: SULLIVAN, J.

text:
    CONTRACTS — TIME.
    [Franklin (2nd) Circuit Court,
    October 19, 1909.]
    Sullivan, Dustin and Allread, JJ.
    James Westwater v. Scioto Valley Pool Co.
    Time to Make Demand for Increased Cost of an Improvement Occasioned by Delay of Contractee.
    A contractor being stopped in the progress of a work and not permitted to resume it until a change in season was such as. to demonstrate its increased cost of construction, if he intended to make claim for the difference in cost, should decline to proceed unless the contractee should-agree to reimburse him therefor; continuing and completing the work, according to the terms of a written contract, without such demand being made until suit is brought precludes recovery for any excess cost thereby incurred.
    Error to Cuyahoga common pleas court.

      J. G. Westwater, for plaintiff in error.

      J. E. Todd, for defendant in error.
   SULLIVAN, J.

The number of yards of concrete being agreed upon, and the sole dispute between the parties in this cause of action being the price to be paid .therefor, the testimony of the witness Griggs, as to the number of yards could not prejudice the claim of plaintiff in error.

Furthermore, no motion was interposed by plaintiff in error-to strike out this part of the witness’s testimony, and, therefore, the point was not saved, even if the evidence had been prejudicial.

The court below properly excluded the proposal of plaintiff in error. Where a written contract is. entered into, it is presumed to contain all stipulations agreed upon between the-parties; that the written instrument is the result of all negotiations between the parties prior to its execution, and the very purpose of reducing it to writing is to preclude the claim being made for any stipulations not contained in it. If plaintiff in error desired to have incorporated in the contract the provision proposed to be proven by the proposal and it was agreed upon, it should have been made a part of the instrument. The fact that in no one of the accounts rendered by plaintiff in error is. there any claim made for damages for delay is of itself strong evidence that the provision of the proposal desired to be shown was purposely omitted.

The judgment of the court is the same as a verdict of a jury. A reviewing court, in the consideration of the record, to determine whether the judgment is against the weight of evidence, must observe the same rules established to determine whether a verdict is wrong for the same reason.

When plaintiff in error was stopped in the progress of the work, and not permitted to resume until the change in the season was such as to demonstrate that it would cost more to do the work, he should have then declined to proceed, unless the defendant in error would agree to pay the difference in cost, if he then intended to prefer a claim for such increase. If he then had such claim in mind, it was his duty at that time to decline to proceed unless the defendant agreed to pay the increased cost occasioned by its delay and made claim for the work and material furnished and done up to that time. The fact that he did not do this is evidence that such claim was an afterthought, when considered in connection with the fact that he made no such claim until he brought suit. The first account including a charge for concrete in the coal pit, it fixed the price at $5.85; the next at $7.50. It is reasonable to assume that he was better able to determine its price just at the completion of the work than months thereafter. The price fixed at the first time supports the claim made that its reasonable value was six dollars.

The reviewing court is without opportunity in an error proceeding to judge of the credit that should be given to the witnesses. In this respect the trial judge has the better opportunity. Therefore, it is only when a judgment rendered by a court or a verdict by a jury is so manifestly against the weight of the evidence as to indicate a mistake in weighing the evidence, or bias or prejudice. A review of the evidence contained in the record in this case does not, in our judgment, show either.

The judgment will, therefore, be affirmed at plaintiff’s costs.

Dustin and Allread, JJ., concur.


author: FILLIUS, J.

text:
    MUNICIPAL CORPORATIONS — POLICE.
    [Lake (7th) Circuit Court,
    October Term, 1910.]
    Metcalfe and Fillius, JJ.
    (Laubie, J., not sitting.)

      State ex rel. Spaller v. Painesville et al.
    1. A Policeman is an “Officer” Under the Laws of Ohio. _
    A duly appointed patrolman of the police department of a city is an officer within the meaning of the laws of Ohio.
    2. Salary of Policeman Cannot be Increased or Diminished.
    Under Sec. 126 Mun. Code (Gen. Code 4213) a city council has no power to increase or diminish the salary of a police officer appointed under the civil service provision of such code, during the term for which he was appointed, which is during ■ good behavior.
    Mandamus..

      Harry H. Hammer and. Homer Harper, for plaintiff.

      J. B. Burrows, for defendants.

       Affirmed, no op., (State ex rel.) Spallen v. Moody, 85 O. S. 000; 57 Bull. 39.

   FILLIUS, J.

.This is a proceeding in mandamus brought upon the relation of Mr. Spaller against the city of Painesville, the city auditor and city treasurer to compel the auditor to issue and deliver a warrant and voucher to the relator in his favor for the amount which he claims due him for salary as policeman and to compel the treasurer to pay such warrant.

The facts set forth in the petition and relied upon to secure the writ are briefly as follows:

The relator states that the city, by an ordinance duly enacted in July, 1903, fixed the salary of a patrolman of the police department of the city at $720 per year, and that this ordinance remained in full force and effect thence until December 18, 1907; that on October 12, 1903, the relator was duly appointed a patrolman of the police department of the city for and during the period of good behavior under and in pursuance of the rules of the civil service and laws of the state of Ohio governing police departments of municipalities, and that he qualified and entered upon the discharge of his duties, at the salary above named.

That thereafter and on December 18, 1907, while the relator was holding and performing the duties of his office, the council of the city of Painesville passed an ordinance increasing his salary and pay from $720 to $840 per year.

That he continued in his office of patrolman , under his original appointment, and that on January 12, 1910, the defendant city, by its council passed an ordinance assuming to reduce his .salary from $840 as fixed by the ordinance of 1907 to $720 per annum, being the amount at which his salary was fixed when he entered the service of the city as patrolman.

That since the enactment of the last named ordinance, the city has refused to pay him the difference between $720 per annum and $840 per annum; and that there is now due and payable to him from the city the sum of $90, and that the city wrongfully refuses to pay him, and that there is money in the police fund of said city which can be properly and lawfully appropriated to the payment of his claim,' and he prays that a writ of mandamus be issued commanding .the city through its proper officers to issue a voucher to him for the sum of $90, and commanding the proper officer of the defendant, to wit, its treasurer, to pay the same.

To this petition the city by its city solicitor has filed a general demurrer.

We understand this to be an amicable proceeding to test the question whether the city had, first, the right to raise this patrolman’s salary from $720 to $840, by the ordinance of December, 1907, and second, whether having thus raised it, it might lawfully reduce his salary from $840 down to $720, what it originally was, as it undertook to do by the ordinance of January 12, 1910.

Copies of the ordinances relating to this controversy are attached to the petition.

Ordinance No. 519, passed in July, 1903, seems never to have> been expressly repealed, for in the succeeding ordinance No. 703 passed in December, 1907, there is no repealing clause, and if the former ordinance is repealed it is only so by implication.

But ordinance No. 793 passed January, 1910, expressly repeals ordinance No. 703 passed December 18, 1907, and all other ordinances inconsistent therewith are repealed.

The demurrer to the petition raises the question whether the city council of Painesville was authorized to pass the ordinance of December, 1907, thereby increasing the pay of the relator as one of the patrolmen of the city from $720 a year to $840 a year.

"Whether the city council' had the power to pass that ordinance must depend upon whether it was forbidden by< statute to increase or diminish the salary of a patrolman of the city from what .it was when he entered upon the discharge of his duties in 1903.

This raises the question of the proper construction to be given to Sec. 126 Mun. Code, which is the section in force at the time the relator became an employe of the city and So far as it is important in this connection is as follows:

“The council shall fix the salaries of all officers, clerks and employees in the city government, and, except as otherwise provided in this act, all fees pertaining to any office shall be paid into the city treasury. The salary of any officer, clerk or employee so fixed shall not be increased or diminished during the term for which he may have been elected or appointed. ’ ’

In construing Sec. 126 (Gen. Code 4213) it is well to bear in mind Sec. 227 (Gen. Code 4214), which provides as follows:

“Council shall by ordinance or resolution, except as otherwise provided in this act, determine the number of officers, -clerks and employees in any department of the city government, and shall fix by ordinance or resolution their respective "salaries and compensation and the amount of bond to be given for each officer, clerk or employee in any department of the city government, if any be required.”

It appears from the foregoing provisions of the code that it was the duty of the council not only to fix the number of officers, cíerks and employes in any department of the city government but also to fix by ordinance or resolution tbeir respective salaries.

The above provisions of the Mun. Code of 1902 marked a departure from what the law had previously been "in that they expressly prohibited the city council of any municipality from increasing or diminishing the salary of any officer, clerk or employe of the city whose salary had been fixed, during the term for which he was appointed.

The code of 1902 made a new departure in another respect. It provided for a merit system and divided the civil service of a city into a classified and an unclassified service. The police department and the persons employed therein were in the classified service and appointments thereto must be made-according to the merit system as defined and provided for in the code, and when a person was once appointed to any . office in any department under the classified service, he cannot be removed, reduced in rank or discharged, except for some cause relating to his moral character or his suitableness to perform the duties of his position, though he may be suspended from duty for a period not exceeding thirty days pending the investigation of charges against him.

The legal effect of these provisions is, we think, that when the relator was appointed to the office of patrolman in 1903, he was appointed to serve in that capacity during good behavior, within the terms' of the statute providing for his removal.

The purpose which the legislature had in mind in adopting the merit system and in making appointments to the police force during good behavior is well stated in the ease of State v. Baldwin, 77 Ohio St. 532 [83 N. E. Rep. 907]. The court in that case speaking by Summers, J., says, page 551: ‘ ‘ The evident purpose of the legislature respecting the police and fire departments, as indicated by the provisions relating to them in the new municipal code, was to adopt a civil service or merit system. The chief of police is made the executive head of the department under the direction of the mayor. He is given the exclusive right to suspend any of the deputies, officers or employes under his management or control, and in case of suspension, he is required to certify such fact, together with the cause of such suspension, to the mayor, who then finally determines the matter, excepting that an appeal may be taken to the board of public safety in case the judgment of the mayor is one of removal. The mayor is given the exclusive right to suspend the chief of the police department, and in the event he suspends the chief it is his duty to certify such fact, together with the cause of suspension, to the board of public safety and it is given final jurisdiction. And it is made the duty of the mayor to prefer charges with council against any director of public safety for incompeteney, neglect of duty, malfeasance in office, habitual drunkenness, or gross immorality, and it is made the duty of council to inquire into the charges, in the manner provided for the removal of other officers of the municipality. Evidently it was thought that it would be conducive to the discipline or efficiency of the department, respecting the members of the police force, if the exclusive power of suspension should be vested in the chief of police, and if the mayor should hot have original jurisdiction to remove members of the force, but only in the event of charges being certified to him by the chief. If the chief fails in his duty the exclusive power of suspending him is vested in the mayor, and he may suspend him and certify the fact to the 'board, so that the board of public safety does not deal directly with the members of the force or with the chief of the police, but exercises its control through the mayor, and the mayor does not deal directly or immediately with the members of the force but with the chief of police, and the chief is given-immediate control of the men. This method seems to have been evolved from experience. But the wisdom of it, or effectiveness of it, is not a matter for our consideration. We have only to determine what the legislature in its wisdom has prescribed.”

And it seems to us that it was directly in line with this policy that the .legislature enacted: Sec. 126 providing that the salary of any officer, clerk or employe fixed by it shall not be increased or diminished during the term for which he may have been elected or appointed.

The object and purpose of it evidently was that the officers, clerks and employes included within its terms should be independent of the whim of the council or the influence of pub-lie officials to the end that they might without fear of loss of pay or loss of office, perform the duties devolving upon them. And, upon the other hand, that city councils should likewise be free from the importunities and harassments of office holders, appointees and employes for increased compensation.

Perhaps with the wisdom or policy of the statute we have nothing to do, except as it may aid us in arriving at a true interpretation of its meaning.

Taking the two sections, 126 and 227, together, the first question suggested is whether a patrolman is an officer and whether he is included within the provisions of Sec. 126. The terms of the statute are very inclusive, and it would seem that they were intended to include everybody employed in the city . government; and that meaning would seem to be borne out very strongly by the terms of Sec. 227, which provides that the council shall determine the number of officers, clerks and employes in any department of the city government and shall fix by ordinance or resolution their respective salaries.

If, indeed, a patrolman be not an officer, then it would seem that he certainly would come within the meaning of the other term, an “employe.”

It seems to us quite clear, however, that he is an officer, and so it has repeatedly been held. See 6 Words and Phrases 4945.

In our own statutes a policeman is repeatedly referred to as an officer. For instance, in Gen. Code 5251, it is provided that the commanding officer of any regiment, batallion, company or troop may authorize in writing any constable or police officer of the city, village or township to arrest any delinquent member of the regiment. Again, in Gen. Code 5276 it is provided that any person who engaged in disposing of spirituous or other intoxicating liquors near an encampment of soldiers may be put under guard by the commanding officer who'may turn such person over to any police officer of the village or township. Again, Gen. Code 13478 provides that when a sheriff, constable, police officer or any agent for any duly incorporated society for the prevention of cruelty to animals has reason to believe, etc., he may cause a person to be arrested, and in Gen. Code 13474 it is provided that when a sheriff, constable, marshal or other police officer has reason to believe that any person is about to engage in a prize fight, he shall arrest such person.

Thus it seems that a patrolman or policeman is generally recognized in onr statutes as an officer and is referred to as such.

He is employed in one of the most important departments of the city government. He is the guardian of the peace of the city. He has important powers conferred upon him. He may arrest any citizen for an offense committed in his presence without warrant. And it seems to us that he properly comes within the designation of the term “officer.” But, if not, it would seem that he certainly comes within the designation of the term “employe.”

But the increasing or diminishing of the salary of an officer or employe is limited to the term for which he is appointed, and it is suggested that a patrolman is not appointed for any term. If this be so] it would seem that he might be discharged at any time without violation of any statute and his place filled by another appointee. But in view, of the fact that a patrolman once appointed serves until he is removed for cause, it necessarily follows that he is appointed for a term, to wit, for that period of time during which he is permitted to hold his office.

People v. LeFevre, 21 Colo. 218 [40 Pac. Rep. 882]. In this case the relator is permitted to hold until he becomes unfit to discharge the duties of his office, and he can only be removed when such unfitness is determined by the proper officers in the manner provided by the statute. In effect, it seems to us, this give’s him a term of office during his fitness therefor, and if that continues so long as he lives, it gives him a term of office for life.

Having reached this conclusion, it necessarily follows that the relator’s salary being fixed by ordinance at the time he entered into his office and upon the discharge of the duties thereof, the city council was without authority by ordinance or otherwise to increase or diminish that salary during the time he occupies the office, unless subsequent legislation has changed the effect of Sec. 126.

It is however suggested that the legislature in 1908 in enacting Sec. 166 (Gen. Code 4487) has by implication at least, repealed the provisions of See. 126 with respect to increasing or diminishing the salaries of an officer or employe.

Section 166 provides as follows: “No officer, secretary, clerk, sergeant, patrolman, fireman or other employee, serving in the police or fire departments of any city of the state, at the time this act goes into effect, shall be removed or reduced in rank or pay, except in accordance with the provisions of Sec. 152 of this act.” Gen. Code 4379, 4381.

As we view and construe this section, it seems to us clear that instead of effecting a repeal by implication or otherwise, of the provisions of Sec. 126, it is in entire harmony with the provisions of that section.

It will be noted that Sec. 166 says nothing whatever about increasing the pay of an officer, nor nothing about reducing his pay, except in accordance with the provisions of Sec. 152 of this act. Now Sec. 152 relates entirely to the method of procedure in case of removal of officers and employes in the police and fire departments for incompetency, gross neglect of duty,'gross immorality, habitual drunkenness, failure to obey orders given by the proper authority, or for any other reasonable or just cause; and in such case the officer may be suspended by the proper officer and' upon the charges against him being sustained, removed; and it was evidently the purpose of Sec. 166 to provide that the pay of an officer might be reduced by and under proceedings had by favor of Sec. 152. In other words, a policeman might be suspended and during his suspension his pay might be reduced or entirely taken away, and if permanently discharged his pay might be entirely cut off.

Thus considered, these two sections of the statute are in entire harmony, and both conduce to exactly the same end; namely, the good of the service and to protect the Officers of these two. departments against unwarranted interference with their salaries by way of reducing them, and upon the other -hand, to take away from such officers the temptation to be constantly using their influence and office to secure increased emoluments.

We therefore conclude that the effect of these statutory provisions is to take away from the city council of the city of Painesville the right to increase or diminish the salary of the relator, and that when it undertook to increase his salary by passing the ordinance of December, 1907, it undertook to do> that which it was denied the power to do by express enactment and the ordinance was therefore so far void; and that so far as the ordinance of January, 1910, is concerned it may be regarded as valid because it does not in any manner affect the salary which the relator was entitled to receive under the ordinance of 1903.

For these reasons, the demurrer to the amended petition is sustained, and it being understood that the relator' does not wish to plead over, it is the order of the court that the petition be and it is hereby dismissed, at relator’s costs.

Metcalfe, J., concurs.


author: WILDMAN, JL

text:
    BILLS AND NOTES — CONFLICT . OF LAWS — CON= TRACTS — EVIDENCE—PLEADINGS.
    [Lucas (6th) Circuit Court,
    March 13, 1909.]
    Wildman and Kinkade, JJ.
    (Parker, J., not sitting.)

      Frank J. Thompson et al. v. Citizens National Bank of Adams, N. Y.
    1. Contract Construed by Law Where Made, Pleading, Evidence, etc., by Law of Forum.
    A note made in a foreign state should be construed .by the law of the state where made, but questions of procedure and pleadings, evidence and burden of proof are determined by the law of the forum where the action may be brought.
    2. Defense to a Note against Original Payee Being Proven, Burden of Proving Due Course Rests on Endorsee.
    Under Gen. Code 8110, in an action on a note by an endorsee, when a defense is established as against the original payee, the burden is upon the holder to show that he or someone under whom he claims acquired the title as a holder in due course.

      3. All the Elements oe Fraud by Payee oe Note Must be Pleaded by Maker to be Available as a Defense against one Claiming to be a Holder in Due Course.
    That a note was procured to be given by the fraud of payee upon maker, to be available as a defense in an action on the note brought by one claiming to be a holder in due course, all of the material elements necessary to be proven to establish such fraud must be pleaded specifically by the maker.
    [Syllabus approved by the court.]
    Error to Lucas common pleas court.

      Q. W. Kinney, for plaintiff in error.

      Chittenden & Chittenden, for defendant in error.

      Affirmed, no op., Thompson v. Bank, 82 O. S. 446.

   WILDMAN, JL

The bank named brought suit in the court below against plaintiffs in error upon a promissory note, and the court, after evidence had been submitted, sustained a. motion to direct the .jury to render a verdict against the defendants, and judgment uvas entered thereon for about $1,100.

The note was originally given bj the plaintiffs in error, Frank J. Thompson and Helen M., his wife, to a firm called Henry Stevens & Son, who seem to be residents of some place in New York, and were not made parties to the action. The bank claims to have obtained the note before maturity in due course of business for a valuable consideration, and to be entitled to all the rights oh a holder unaffected by claimed defenses against the original payees. Since the decision of the case of Davis v. Bartlett, 12 Ohio St. 534 [80 Am. Dec. 375], the rule in Ohio as to the burden of proof in suits upon negotiable paper by endorsees seems to have been substantially settled, until the adoption of certain statutory provisions, which, as we read them, have made a slight change.

There can be no question here that although this note was made in the state of New York, and to determine the original rights of the parties, should be construed probably by the law of the state where made, when we are determining questions of procedure and pleadings, evidence and burden of proof, we must rely upon the statutes of our own state, the forum in which the suit is instituted.

The answer of the defendant denies the ownership of the note in the bank; denies also that the bank is the holder of the paper. But when we come to examine the evidence and arguments of counsel, there seems to be no contention that the bank did not have the note in its manual possession at the time of instituting the suit. It is claimed, however, by the defendants that they had a valid defense to the note as against the original payees, Henry Stevens & Son, and not only that the note was invalidated in the hands of such payees, but that it was placed in the possession of the bank merely for the purpose of suit and that the bank is not the real party in interest.

Gen. Code 8135 as to negotiable instruments provides that, “An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee- . the holder thereof. If payable to bearer, it is negotiated by delivery. If payable to order, it is negotiated by the indorsement, of the holder completed by delivery. ’ ’

The note so given to Henry Stevens & Son bears their endorsement and guarantee of payment and is found at the beginning of the suit in the possession of the bank. The officer of the; bank presenting it, ;when called as a witness, testified that it had been in the possession of the bank at all times from the date of its ostensible transfer to the bank as shown by the endorsement-

Gen. Code 8136 provides:

“The endorsement must be written on the instrument itself, or upon a paper attached thereto. The signature of the indorser without additional words is a sufficient indorsement.”

There are some other provisions defining the rights of the-parties, until we arrive at Gen. Code 8157 (R. S. 3172x), where-we have these definitions:

“A holder in due course” (the expression in the statute ■ being a sort of ellipsis, I suppose, for the expression ‘ ‘ a holder in due course of trade or due course of business,”) “is a holder who has taken the instrument under the following conditions:

We find then four conditions essential to the constituting of a “holder in due course.”

‘ ‘ 1. That it is complete and regular upon its face. ’ ’ This note is such.

1 2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact.

"3. That he took it in good faith and for value.

“4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title bf the person negotiating it. ’ ’

Clause second, to which I have referred, has a reference to notice of previous dishonor. There is no claim of previous dishonor here. There is no evidence offered by the defendant in the answer, to which I will later refer, to justify the submission to the jury of the question as to whether the transfer was really made in good faith or not. But the fourth clause is as essential to the definition as the others, “that at the time it was negotiated to him,” (or in this case to the bank), he, (or in this case, it), “had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. ’ ’ In other words, the bank is not a holder in due course if at the time the note was negotiated the bank had any notice of any infirmity in the instrument or defect in the title.

Now Gen. Code 8160, provides:

“The title of the person who negotiates an instrument is defective within the meaning of this chapter when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud.”

Gen. Code 8161 is:

“To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument' amounted to bad faith. ’ ’

Gen. Code 8163, omitting some of the others, is as follows:

“In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were nonnegotiable. ”

Gen. Code 8164 is the rule as to the burden of proof, which is contrary to the rule originally enunciated in the case of Davis v. Bartlett, supra, I will read it.

“Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the .instrument was defective,” and we have already had the definition that if. a note is obtained by fraud the title is defective, as provided in Gen. Code 8160, “the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. ’ ’

In other words, if a defense is established against the original payee, then the holder who claims to be a holder in due course, in order to substantiate that claim, must prove the fourth condition to which I have referred as embodied in Gen. Code 8157; that is, that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. Taking the sections together, the burden, after the establishing of a defense against the original payee, is shifted to the holder of the instrument to prove as a negative fact lack of knowledge of any. infirmity in the instrument or defect of the title of the person negotiating it. He must show that he has no knowledge of the defense so established.

And this brings us at once to the question whether any defense has been shown here against the original payees of the instrument, Henry Stevens & Son.

It is not necessary to go to the evidence to determine whether or not there is any tending to establish such a defense which should have been submitted to the jury, if no defense has been effectively pleaded against the note; that is, if the defendant has not asserted facts which would constitute a defense if the note were being sued upon by the original payees, Henry Stevens & Son. "We have examined this answer with considerable care, reading it a number of times, examining in detail all its paragraphs, and we are thoroughly satisfied that it fails to assert a defense against the note in suit even if it were sued upon by Henry Stevens & Son, the payees, instead of the bank'.

I invite attention to the attempted claim of the defendants against Stevens & Son. Their defense is that the note was given in consideration of the purchase by them of certain Holstein Fresien cattle, and that at the time when they received the cattle one cow supposed to be of considerable value was diseased with tuberculosis; that not long after the purchase, the cow died. A post mortem examination made by veterinary surgeons, or a veterinary surgeon, disclosed the fact of the tuberculosis. A calf coming from the same cow was also diseased in the same way, and certain other stock kept in a barn where this cow had been became infected. The defendants Thompson claimed that they were entitled to damages against Stevens & Son in an amount in excess of the entire amount of this note which they had given to Stevens & Son and which had been transferred to the bank.

There is no claim in this answer of a warranty, either express or implied. The answer may be searched in vain to find any elements of a contract that Stevens & Son were to make good any loss by reason of unsoundness of the cow or any of these cattle, if she or they should prove to be unsound. The defendants, on the contrary, have relied upon a case of claimed fraud or deceit in the sale. They say that representations were made by at least one of the members of the firm of Stevens & Son that the cattle were free from disease. The burden is on the defendant of course to establish this defense if properly pleaded, but in the first instance the burden is upon them to assert in their pleading all the essential facts to constitute a case of fraud. We find no averment anywhere that the statements made by one of the Stevens firm that the cattle were sound were fasely and fraudulently made. It is true it is said that the statement was untrue; but there is no averment anywhere of fraudulent intent. There is no averment of knowledge on the part of Stevens & Son that the representations were untrue. There is no averment that the cattle ■ had shown any symptoms of tuberculosis at the time of the sale by Stevens & Son to Thompson. There is no averment that Stevens & Son had any such knowledge of the disease of tuberculosis as would have enabled them to diagnose the condition of the cattle if symptoms had been disclosed. There is no averment that they had had the cattle for any particular length of time such as would raise the inference that they had any knowledge of such condition. There is no averment that the statements were wantonly or recklessly made as to a matter in regard to which they had no knowledge or belief. And without averments equivalent to these matters to which I have referred, or some of them, the answer in our judgment manifestly fails to assert a defense. In addition to all these things there is no averment in this answer that the defendants have tendered back to Stevens & Son the cattle, or any of them. True, they might not have been called upon to tender back the corpse of this cow after the post mortem or before, but it seems so far as the pleadings disclose, and indeed the fact appears to be supported by the evidence, that they kept the other cattle. It is not claimed that all of them were worthless, and there is no principle better settled than that there can be no rescission of such a contract as this without ability and readiness to place the other party in the position which he occupied prior to entering into the contract by both. Equity will not permit Thompson and his wife to remain in possession of the property purchased and at the same time rescind and set aside the contract and absolve themselves from liability on the note which they have given for the purchase price.

It would seem hardly necessary to cite authorities upon a proposition so simple as this, but without reading from it I cite a case which in some of its bearings is quite illustrative of the rights of the parties here. It is entitled Ohio Forging Co. v. Lamb, 9 Dec. Re. 199 (11 Bull. 190), decided by the district court of Hamilton county a number of years ago. Our judgment is that the defendants have asserted in their pleadings no facts sufficient to constitute a defense against the note even in the hands pf the original holders. It cannot be claimed that the bank, the endorsee, is not a holder in due course, because there is no flaw in the title of the original payees. The bank does not have to prove its ignorance of fraud if there be no fraud or if none be pleaded as against the original holders of the paper.

The court below was not in error in instructing the jury to render a verdict for the plaintiff or in rendering a judgment upon that verdict when so returned. The judgment will be affirmed without penalty.

Kinkade, J., concurs.

       The Gen. Code states this: “One is a holder,” etc. — Ed.


author: WILDMAN, J.

text:
    EXECUTORS AND ADMINISTRATORS.
    [Lucas (6th) Circuit Court,
    June 12, 1909.]
    "Wildman and Kinkade, JJ.
    (Parker, J., not sitting.)
    National Surety Co. v. Alice Haughton.
    Executor Cannot Prefer one Creditor by Turning over Notes of Estate.
    An executor has no power as such before final settlement to turn over to a creditor of the estate notes held by the estate without an order from the probate court, and a person holding notes so turned over does not have a valid title to them upon which ■to sue the maker.
    [Syllabus approved by the court.]
    Error to Lucas common pleas court.

      Potter & Potter, for plaintiff in error.

      R1wades <& Rhoades, for defendant in error:
    Cited and commented upon tbe following authorities: Rockel’s, Prob. Prae. Sec. 471; Miller v. Stark, 61 Ohio St. 413 [56 N. E. Rep. 11]; Jelke v. Goldsmith, 52 Ohio St. 499 [40 N. E. Rep. 167; 49 Am. St. Rep. 730] ; Broadiuell v. Banks, 134 Fed. Rep. 470; Foster v. Wise, 46 Ohio St. 20 [16 N. E. Rep. 687; 15 Am. St. Rep. 542] ; Woerner, Law of Admrs. Sec. 177'; Higgins’ Estate, In re, 15 Mont. 474 [39 Pac. Rep. 506; 28 L. R. A. 116] ; Newcomb v. Williams, 43 Mass. (9 Mete.) 525; Crocker v. Dillon, 133 Mass. 91; White v. Ditson, 140 Mass. 351 [4 N. E. Rep. 606; 54 Am. Rep. 473]; Hood, Estate of, 98 N. Y. 363; Wall v. Bissell, 125 U. S. 382 [8 Sup. Ct. Rep. 979; 31 L. Ed. 772]; Everson v. Pitney, 40 N. J. Eq. 539 [5 Atl. Rep. 95]; Hood v. Hood, 85 N. Y. 561; Williams v. Cushing, 34 Me. 370; Sanborn’s Estate, In re, 109 Mich. 191 [67 N. W. Rep. 128]; Crawford Estate, In re, 11 Circ. Dec. 605 (21 R. 554).
   WILDMAN, J.

Suit on certain promissory notes was brought by the National Surety Company against Mrs. Haughton. The surety company claims to be the owner of- the notes and entitled to judgment upon them, and this claim is disputed by the defendant, Mrs. Haughton, who is defendant in error, as she was defendant in the original case. The court below gave judgment for her. Mrs. Haughton gave these notes to one N. P. G-lann, who endorsed them to E. W. Tolerton, and the latter owned them up to the time of his death. Tolerton was executor of the estate of Mrs. Minerva M. Wood, and the plaintiff, the surety company, was surety for him on his bond as such executor. Tolerton died in the year 1905 indebted to the estate which he was so representing to a very large amount, and the plaintiff surety company settled with an administrator, de bonis non, paying the sum of $10,955.93 upon its obligation as surety. Mrs. Tolerton, by the will of her husband, was made executrix of his estate, and by a provision in it was also made one of two trustees to make disposition of the property after the payment of debts, Mr. Thomas H. Tracy being named as the other trustee. It is claimed that Mr. Tracy never qualified as such, but in our consideration of the case we do not deem it very important whether he did or did not. Without any order of the probate court, Mrs. Tolerton turned over certain notes belonging to the Wood estate and in her husband’s hands as executor, to the amount of $4,366.75, to the surety company. Among these notes were the ones given by Mrs. Haughton, the defendant, which are now in controversy. She asserts that they were transferred to the plaintiff .without legal authority, and that the plaintiff is not the owner. A jury was waived, the case was tried to the court below, and judgment rendered for the defendant, dismissing the petition. By agreement of parties, Judge Kinkade being related by marriage to one of the parties, the case was submitted to me alone, my conclusion to be entered as the judgment of the court. The sole question with reference to the consideration is whether the plaintiff obtained title to the notes. . Suggestion was made that the action of the executrix or the powers of the executrix to act, could not be questioned in this proceeding, which was said to be collateral, but there is no force, in' my judgment, in this claim, and indeed it was not very earnestly insisted upon by counsel. The statutory power of an administrator as to the disposition of promissory notes owned by the estate which he represents is found in R. S. 6074 (Gen. Code 10697), and this gives no power to such a representative to dispose of property of this kind by sale or transfer without the authority of the probate court. It is claimed, however, that a testamentary power is embodied in this will, and that the executrix acted under it, or that she transferred as trustee. The will gives her no power as executrix to sell, and the express provision in the will is, that after the payment of debts, the trust is-created in her and in her co-trustee, Mr. Tracy, to dispose of the property, with very broad and ample powers. The will provides that she is not required to give bond as executrix; but there is no provision in the will that she shall not be required to give bond as trustee. No bond was ever given by her as trustee. In an answer to one of the interrogatories attached to one of the pleadings, it is stated that she made this transfer, as executrix. This, however, may be considered possibly as a, mere inadvertence, and if she really had power as trustee at-the time she made the transfer as trustee to make it in that capacity, it might raise the question as to whether she was not in fact attempting to exercise whatever power was given her by the will, no matter what she calls herself in the answer to-the interrogatory. My judgment, however, is that she had no power to make any such disposition of the property as turning it over to one creditor of the estate of her husband, without a full settlement of all other debts. The will did not attempt to-authorize her as executrix or trustee to give a preference to one creditor over another, and we are not apprised as to the extent of the liabilities of E. W. Tolerton, her husband. It is quite-clearly indicated that his debts had not been entirely extinguished. There had been no final settlement of her account as executrix, the time had not expired within which claims might be presented against her as the executrix of the estate, and for these various reasons it seems quite clear that she had no power to transfer this paper by assignment or endorsement to the surety company in order partly to liquidate its claim against the estate-of her husband. It does not appear that the debts had been paid at the time of the attempted sale of the notes. The judgment of the court below, in favor of Mrs. Haughton, based probably on the view that the plaintiff was not the owner of the suit sued on, is correct, and the judgment will be affirmed.

Kinkade, J., concurs.


author: WILDMAN, J. KINKADE, J.,

text:
    NEGLIGENCE — SIDEWALKS.
    [Lucas (6th) Circuit Court,
    July 2, 1909.]
    Wildman. and Kinlaade, JJ.
    (Parker, J., not sitting.)
    Toledo v. Abraham Smith.
    1. Not Ordinary Care to Walk over a Sidewalk Known to be Defective and Unsafe when it can Easily be Avoided.
    A person who in the daytime voluntarily attempts to pass over a sidewalk in a oity which he knows from any cause to he dangerously defective and which he might easily have avoided, cannot he regarded as in the exercise of -ordinary care or prudence, and therefore cannot maintain an action against a municipality for damages sustained on account of any such known defect, even if the city was guilty of negligence in allowing such defect to exist.
    2. Erroneous Charge as to Contributory Negligence.
    A charge that if an ordinarily prudent man would have attempted to pass over a walk alleged to he dangerously defective, with knowledge of its condition, and if the plaintiff in attempting to do so exercised the care which an ordinarily prudent person would have exercised in the condition which you find this walk was in at that time, he was not guilty of negligence in attempting to use the walk and is entitled to recover, held error.
    [Syllabus approved hy thq court.] .
    Error to Lucas common pleas court.
   WILDMAN, J.

The ease of city of Toledo v. Smith, is brought to reverse a judgment rendered in favor of Smith against the city in the court of common pleas upon a verdict in his favor for $3,000. It is a personal injury case, the injury sustained being the result of a fall upon a sidewalk alleged to have been dangerously defective, and negligently maintained, or permitted to remain, in that condition.

The facts of the case as disclosed upon a former trial, are sufficiently recited for our purpose in the case of Smith v. Toledo, 30 O. C. C. 454 (11 N. S. 167). At that trial, at the close of plaintiff’s evidence, the court arrested the case from the jury, and Smith was compelled to come to this court by a proceeding in error to reverse the judgment. We found error in the proceeding and remanded the case for a new trial. Upon„ the new trial so ordered Smith obtained the verdict just stated.

Several grounds of error are urged, but there is only one to which we desire to invite special attention in this opinion. Prior to the giving of the general charge by the court, but after the argument, the defendant below requested the court to give to the jury this instruction, found on page 192 of the bill of exceptions:

“A person who in the daytime voluntarily attempts to pass over a sidewalk in a city which he knows from any cause to be defective or unsafe- and which he might easily have avoided, cannot be regarded as in the exercise of ordinary care or prudence, and therefore cannot maintain an action against a municipality for damages sustained on account of any such known defect, even if the city was guilty of negligence in allowing such defect to exist.”

This instruction the court refused to give, and the city, through its counsel, duly excepted. The sidewalk is referred to in this instruction as known to be defective or unsafe, and the language may perhaps have been interpreted by the court as erroneously attempting to lay down a rule which would apply to either one of these conditions; that is to say, an unsafe condition or one in which a defect existed which was not necessarily attended with danger. We hardly think, however, that the court refused the instruction upon this ground, because, as-will presently be shown, in the general charge in several instances the court uses the term “defective” sidewalk, evidently having in mind a dangerous condition. The action is based upon the alleged negligent maintenance of a dangerous defects Defects not dangerous were not under consideration.

Counsel asked, as the bill of exceptions states upon the-page referred to, that the court give the instruction “at that time.” Of course the court was not bound to give it at the very instant of its being presented, and perhaps a reasonable construction of the request of counsel may be that it was desired that the court should give it in connection with or as a part of the general charge. We think that notwithstanding the use of the conjunction “or” instead of “and,” or the use of the entire expression “defective or unsafe” instead of such an expression as dangerously defective, or something equivalent to that, and notwithstanding the fact that the request was made that it be given as stated, “at that time,” the court’s attention was sufficiently called to the general rule which was sought, to require the court to give clearly and correctly the proper rule upon that subject. That the court’s attention was directed to it is evident from a good deal of language in the general charge. I pass to page 195, where in the general charge on the matter of the plaintiff’s contribution to his injury by his own claimed lack of care, or perhaps we might denominate it by his assumption of whatever peril was involved in going over a sidewalk of this character, the court used this language:

“You are instructed further that it was also the duty of the plaintiff Smith while walking along Woodland avenue at the time that he alleges that he fell and was injured to exercise ordinary care upon his part to avoid injury. If the walk was defective,” — -(the word “dangerously” not being used to' qualify defective, but as we think, evidently understood by the judge to be characteristic of the defect about which he was speaking) — “and the plaintiff Smith knew that fact, then it was his duty to exercise the same degree of care in passing over the walk, or in passing along Woodland avenue at' that point, which an ordinarily prudent person would customarily exercise in passing over a walk in such a defective condition or in passing along the street at that point. If the walk was defective,” ■ — (meaning again evidently “dangerously defective”) — “at the point where he claims to have fallen and the plaintiff Smith knew that fact and with less danger to himself, or with comparative safety to himself, he could have stepped over the walk and passed over the space between the sidewalk and the ditch alongside of the street, and if an ordinarily prudent man knowing the condition• of the walk would have done so, and would not have attempted to pass over the walk, then it was the duty of the plaintiff Smith to have done so at the time he was injured, and in failing to leave the walk and in attempting to walk over it he was himself negligent and cannot recover even though the city may have been negligent in failing to repair the walk.”

And then we come to language which to our minds is seriously objectionable in view of the rules which have been announced from time to time by the Supreme and other courts of the state. It is as follows:

“If, however, an ordinarily prudent man would have attempted to pass over the walk under all the circumstances and having knowledge of its defective condition, and if the plaintiff Smith in attempting to do so exercised the care which an ordinarily prudent person would have exercised in the condition which you find this walk was in at that time, he was not guilty of negligence in attempting to use the walk and is entitled to recover. ’ ’

The rule in Ohio, as announced by the Supreme Court in Schaefler v. Sandusky, 33 Ohio St. 246 [31 Am. Rep. 533], approved in Conneaut v. Naef, 54 Ohio St. 529 [44 N. E. Rep. 236], and Norwalk v. Tuttle, 73 Ohio St. 242 [76 N. E. Rep. 617], and followed and applied by this court on the former hearing of this case, is that where a pedestrian voluntarily goes upon a dangerously defective sidewalk, where its condition is known to him or is obvious, which he might easily avoid, a municipality is not liable to him for any injuries sustained by him.

The Supreme Court seems to have made a rule of law applicable to this class of eases precisely as it has made a rule of law applicable to the case of a traveler approaching a known railroad crossing. It is based upon the general proposition that a person so going upon a sidewalk or a person approaching a known railroad crossing is held to the exercise of ordinary care, and that as matter of law under certain circumstances it will not be ordinary care for him to conduct himself in certain ways. At to the approaching of a railroad crossing it has been repeatedly laid down by the Supreme Court that he must exercise bis faculties of sight and hearing to warn him of the approach of a train upon the track if there be one approaching, and that if he omits such precautions he is held by the court not to have exercised ordinary care, and the matter is not left to the jury for its determination. It would seem to be error under such circumstances to charge a jury that while it is the duty of a person approaching a railway crossing to exercise his faculties of vision and hearing for his protection, still he will be excused from doing it if the jury should find that persons of ordinary prudence are accustomed to omit such precaution. Likewise the court has established as a rule of presumption of law that it is not ordinary care for a person to incur a danger voluntarily which he might easily avoid, and it is not left as an open question to the jury to determine whether or not he was acting as other prudent people do if they find that he did those things which the law says are negligent. Almost this precise question was raised in the case of Bond Hill (Vil.) v. Atkinson, 9 Circ. Dec. 185 (16 R. 470), a case decided by the Hamilton circuit court, the opinion being announced by Judge Smith. I will not read from the case, but cite it for its examination by counsel. The court held that it was error to qualify as was done in the case at bar, the general rule which has been established by the Supreme Court. Among the numerous eases which might be cited in further illustration of the subject is that of Cincinnati v. Taylor, 10 Circ. Dec. 677 (19 R. 737), where it was held that a person who-voluntarily attempts to pass over a sidewalk which he knows to be dangerous by reason of defects and which he might easily have avoided cannot be regarded as exercising ordinary prudence and is not entitled to recover for injuries thereby received. Of course this is almost precisely as stated in the Schaefler case, but it is in a little different form, and I use it simply as _ illustrative of the fact that the courts have laid down a rule as to what constitutes negligence per se, and that it is not permissible to weaken that rule by any sort of a qualification, leaving the question open to the jury for its determination to say whether or not the rule should or should not apply.

Now it is conceivable that there might be such trivial defects in a sidewalk as that, whilp they might be in some degree dangerous, they might still not be so dangerously defective as to raise the presumption of negligence against a person in going upon them. But my own notion is that if they are of such a character that the city owed a duty to the plaintiff to repair, and if the plaintiff had knowledge of the condition, that then the rule would apply to his conduct. I have stated somewhat more fully than I perhaps otherwise should have done the views which lead to the result about to be announced, because of the fact that it is with the general reluctance that I conclude that the case should be reversed, this court having once reversed it in behalf of the plaintiff and returned it for a new trial. But all considerations should yield to the desire on the part of the court to secure a fair trial for both parties, and the fairness of an adjudication is of much more consequence than speed in arriving at the end of the litigation. We are of the view, both of us, that the judgment should be reversed because of the error of the court in this charge, but I am not prepared to say that we base our judgment entirely upon the same line of reasoning. As to the other matters involved in the case, we find no error sufficiently prejudicial to the plaintiff in error to justify a reversal.

The judgment of the court is that the judgment below be reversed and the cause remanded for a new trial.

KINKADE, J.,

concurring.

As Judge Wildman has said, we are quite agreed that the judgment should be reversed by reason of the error in the general charge to which he has called particular .attention. Beading the language in the charge that he has mentioned as “dangerously defective,” which perhaps is justified, as the court was discussing only a sidewalk in that condition, I have no fault to find with the conclusion reached, but on the other hand, heartily concur in the conclusion reached. If the court were to say to the jury that if the walk was found by them to be dangerously defective, and was known by the plaintiff to be dangerously defective, and the jury found that there was another way easily and conveniently available which he might have taken, that he' knew of, he then assumed the risk of taking the dangerous route, I would find no fault with that charge. It seems to me that it would be better to make some qualification of what constitutes the danger that is being spoken of, and in order that I may not be misunderstood in what I have in mind in this regard I want to say I think it would be better to say to the jury that if the walk in question was so defective and unsafe as that persons of ordinary care and prudence knowing its condition and having a safe way for travel easily and conveniently available would avoid the walk and take the safe way, then plaintiff in this ease cannot recover, if he knew, or by the exercise of ordinary care, would have known that the walk was. defective to this extent, and there was a safe way easily and conveniently available, known to the plaintiff, which he might have used in reaching his destination. In such ease one cannot be exercising ordinary care, when with knowledge of a dangerously defective condition of the walk he voluntarily and unnecessarily elects to take the dangerous route, and this is true regardless of the degree of care he may exercise while passing over the defective walk.