text:
    SCOPE OF EMPLOYMENT OF A CHAUFFEUR.
    Court of Appeals for Cuyahoga County.
    Charles J. Stewart v. Charles W. Whitford; and Charles J. Stewart v. Sarah E. Whitford.

    Decided, December 17, 1914.

      Master and Servant — No Liability of Master for Negligence of Chauffeur Where the Latter Made a Detour of a Mile on an Errand of His Own — And the Accident Complained of Occurred During the Detour.

    1. A chauffeur who turns aside from a journey undertaken for and at the direction of his master, and drives one mile out of his course on business of his own and while so doing injures a pedestrian, after which he returns to his original route and continues on the journey for his master, was not acting within the scope of his employment during the detour and at the time of the accident to the pedestrian.
    2. Whether an employee was within the scope of his employment at a given time becomes a question for the jury only when the facts in issue are in dispute; if there is no question of fact to be passed upon, the matter is one of law and should he determined by the court.

      Iloyt, Dust,in, Kelly, McKeehan & Amdreios and W. D. 'Wilkin, for plaintiffs in error.

      Harry J?. Payer and Chapman, Howland & Niman, contra.
    Kinkade, J.; Richards, J., and Chittenden, J., concur.
    Error to the court, of common pleas.

      Reversing Whitford v. Stewart, 17 N.P. (N.S.), 81.

   The defendants in error brought actions in the court of common pleas to recover damages sustained by reason of the alleged negligent management of an automobile belonging to the plaintiff in error, which resulted in a serious personal injury to Sarah E. Whitford, the wife of Charles W. Whitford. The jury returned a verdict in favor of the plaintiff in each case. The trial judge granted a motion for a new trial and rendered an opinion in doing so, to the effect that the evidence produced in the case was not sufficient to sustain a judgment in favor of plaintiff against the owner of the automobile. Thereupon the parties agreed to submit the case, without a jury, to another judge, upon a transcript of the evidence taken in the court below, and they agreed upon the amount for which a judgment should be rendered covering the damages in both cases, one for injuries and the other for loss of services, in the event that the trial judge found the owner of the automobile liable on the evidence shown in the transcript.

Stewart, who resided on Shaker Heights in the eastern portion of the city of Cleveland, was the owner of an automobile and had in this employ a chauffeur by the name of Pelrein. It was the custom of Stewart to have his chauffeur, Pelrein, drive him in his automobile from his’ home at Shaker Heights to his office in the Perry -Payne Building in the morning, and then call for him with the machine at four in the afternoon to take him home.

It was stipulated between the plaintiff and defendant that the chauffeur, Pelrein, was employed by Stewart to drive the machine when, where and as directed by Stewart.

On the morning of the day on which the accident to Mrs. Whitford occurred, in accord with the usual custom, Pelrein had driven Stewart to the office at the usual hour and was either then instructed to return for him at the Perry Payne Building at four o’clock in the afternoon, or was acting in accord with the usual custom and understanding between himself and Stewart when he did start to return for Stewart a little prior to that hour in. the afternoon of that day. He drove from the residence in a westerly direction and by the route usually taken, until he reached East Ninth street, at which point he turned' to the right and followed East Ninth street, which bore slightly in a westerly direction, until he reached the intersection of Superior street. From this point to the office of Stewart in the Perry Payne Building his direct course would be to the left westerly along Superior street a distance of about a quarter of a mile from its intersection with East Ninth. As he approached the intersection of East Ninth and Superior streets the chauffeur met two lady friends of his, who were on -the sidewalk at this point, and stopped to converse with them for a few moments. The ladies informed him that they were going to a dressmaker’s on some errands of their own on East Thirtieth street near Payne avenue, running in an easterly and westerly direction. Thereupon Pelrein volunteered to take the ladies from that point to the dressmaker’s and they accepted his invitation. Then instead of turning to the left and pursuing his usual course to the office of Stewart, he turned to the right on Superior street and followed that street to its junction with Payne avenue, at which point he turned onto' Payne avenue bearing still farther to the right, and continued in an easterly direction to a point about one mile from the intersection of East Ninth and Superior streets. In other words, at the point last mentioned he turned and went a mile in substantially a directly opposite course from that which he would have pursued had be gone to the office of Stewart instead of taking the ladies to the dressmaker. It was while thus driving easterly with his two companies that he ran against and injured Mrs. Whitford as she was passing from a street car, from which she had just alighted, to the sidewalk of the street.

There was no dispute about the facts in the case. That which took place is as 1 have stated it, and no one pretends that the chauffeur, Pelrein, had any intention to do anything other than to take the ladies to the destination mentioned and then to return to the office of Stewart and take him home. After making the journey with the ladies he did return to the Perry Payne Building and took his employer Stewart home without disclosing to him at that time that he had made this trip with his two friends or that lie had injured anybody while doing so.

The common'pleas judge to whom the ease v'as submitted without a jury, upon the evidence showing the facts as I have stated them, found the owner of the automobile, Stewart, to be liable and entered judgment in favor of the plaintiffs for the amount covered by the stipulation between the parties.

The question that is submited for our consideration by counsel is whether upon;these facts,' the owner of the automobile is liable for the injury to Mrs. Whitford caused by the negligence of the chauffeur while running the car as stated.

Counsel for plaintiff in error contend that on the authority of Lima Railway Co. v. Little, 67 O. S., 91; White Oak Coal Co. v. Rivoux, 88 O. S., 18; Rawson, Admr., et al v. Olds Motor Works, decided by the Court of Common Pleas of Cuyahoga County, December 11, 1911, 12 N.P.(N.S.), 145, affirmed by the Court of Appeals, Cuyahoga County, May 27,1912, and affirmed, without report by the Supreme Court June 26, 1914, and the ease of Nickens v. Becker, decided by the Court of Appeals, Cuyahoga County, November 23, 1914 (unreported), Stewart is not liable for the negligence of Pelrein, the chauffeur, for the reason, briefly stated, that although Pelrein was in the employ of Steivart at the time of the injury, nevertheless he was at that time going upon a mission of his own and that the mission of his employer on which he had started was for the time being at least, entirely suspended. They claim that it is of no moment that the chauffeur may have had in his mind at the time of his injury that he would later go, as he did, and complete the mission that he had started out upon for his employer. They insist that when he abandoned his trip to the Perry Payne Building and- turned aside on this business of his own and went a mile at least in an entirely different direction, under no circumstances can it be said to be a mere deviation from the usual route in carrying out the general instructions under which he was acting, to come for his employer at the Perry Payne Building, but must be held to be a journey entirely for his own purposes.

The defendants in error contend, and the court of common pleas so held, that inasmuch as Pelrein was in the employ of Stewart during the whole time, and in view of the fact that he must have intended to do what he did after this journey to the side, to-wit: to go after his employer; therefore, it was a continuing engagement on his part, with the implied, if not the express, authority of the master attending him all the time, and that, therefore, the master is as liable for the result of the injury as though it had occurred on a regular journey from the residence to the office and without any turning aside by the chauffeur for any such purpose of his own.

Some question is made in the case as to whether it is not a question for the jury whether the employee, under a given state of facts, is within or without the scope of his employment; and it may be admitted that in many instances facts, might exist which should be passed upon by the jury as to whether he was or was not within the scope of his employment, but where there is no dispute as to what-has been done, and no inference can be drawn from the facts that are not in dispute, except one, there surely is nothing to submit to- a jury. Nobody disputes the line of travel of the chauffeur in this instance. All agree that he did what I have stated, and all agree that he had but one purpose in doing it, and that was to take his. friends to their destination and. then return and complete the. mission on which he had started for his employer. This being true, there is no question of fact to be passed upon by'either a court or jury. It is simply an application of the law to the situation as thus clearly disclosed and wholly without dispute.

The common pleas court in deciding the case in favor of the defendants in error delivered a written opinion covering over forty-one pages of typewritten matter, reviewing a very large niimber of authorities both English and American. We have read this opinion with care. It is presented to us by counsel for defendants in error in connection with, and as a part of, their briefs in the case, and we think it fully reviews the .authorities. It would serve no useful purpose to attempt to review these cases in detail.

Our conclusion is, after the fullest examination of the case, that the authorities cited and relied upon bjr the plaintiffs in error fully sustain their contention. We find ourselves unable to concur in the very full opinion rendered by the trial judge.

It follows from what has been said that the judgment of the court of common .pleas must be reversed in each case. There being no dispute as to the facts, it is the duty of this court to enter the judgment in favor of the. plainliff in .error in each case that should have.been entered by the court below, and such will be the finding here.


source: Caselaw Access Project

license: Public Domain

text:
    VALIDITY OF MUNICIPAL ELECTRICAL LIGHT BONDS.
    Court of Appeals for Huron County.
    Cleveland, S. & C. Railway v. City of Norwalk et al.

    Decided, February 27, 1915.

      Municipal Corporations — Publication of Resolution to Submit to Electors the Question of Issuing Municipal Electric Light Bonds Not. Required — Where no School Commissioners Have Been Appointed, Such an Issue Should be Offered to the Municipal Sinking Fund Trustees.

    1. Sections 3942 to 3947, General Code, authorizing submission to the electors of the question of issuing certain municipal bonds, make ' complete provision for putting them forth, and such an issue is ••' not subject to the requirement that there he a formal publication of the resolution of council declaring the .necessity therefor.
    2. Where there has been no appointment of a board of commissioners of the district, as providéd by Section 7614, the tender of an issue of municipal electric light bonds should be mad© to the trustees of the sinking fund of the municipality, and not to the hoard of education.

      L. W. Wickham and Tolies, llogsekt, Ginn c& Morley, for plaintiff.
    . B. D. Wickham and tí. Bay Craig, contra.
    Kinkade, J.; Richards, J., and Chittenden, J., concur.

       Affirming Cleveland, S. & C. Ry. Co. v. Norwalk, 17 N.P.(N.S.), — ,

   The plaintiff, as a tax-payer of the city of Norwalk, brought an action praying for an injunction to restrain the city of Nor-walk and its officials from issuing and selling any portion of a certain issue, aggregating $120,000, of municipal bonds, which it was alleged the city was about to issue for the purpose of erecting and- constructing an electric light plant for the use of the city. The defendants demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of ac-lion. The'relief prayed, for in the petition and the amendment thereto, is based on two grounds:

3. That the resolution passed by the council declaring the necessity of issuing these bonds-for the purpose mentioned and providing for the submission of the question of their issuance to a vote of the electors, had never been published as required by statute; and

2. That prior to offering the bonds at public sale, neither said bonds nor any part thereof had been offered “to the board of commissioners of the sinking fund of said Norwalk School District. ’ ’

Attached to the petition and made a part thereof, is a copy of the original resolution passed by the council, and also a copy of the ordinance providing for the sale of the bonds, together with'a copy of the notice of the sale of the bonds. No contention is made that the ordinance referred to was not published as required by law, or that the notice of the sale of the bonds was not given proper publicity. Reference to the copy of the resolution attached to the petition and made a part thereof, discloses that it made full provision for submitting the question of the issue of these bonds to a special election to be held in the city of Nor-walk.

There is no allegation in the petition that prior to offering these bonds for sale under the ordinance, they were not offered to the board of trustees of the sinking fund of the city of Nor-walk. In the absence of such an allegation, a presumption that the officers of the city were discharging their duty according to law would prevail, and, therefore, that these, bonds had been offered to the trustees of the city sinking fund before being offered for sale. Neither is there any allegation in the petition that the bonds were not offered as the law provides they must be to the industrial commission before being offered for sale, and-the same presumption would attend in this respect.

The amendment to the petition sets forth that the board of education of the city school district of the city of Norwalk had a bonded indebtedness and “had in its possession a sinking fund for'the extinguishment of said bonded indebtedness,” and further on in the amendment occurs the language quoted above, stating that no offer had been made, etc. There is no statement in the petition or the amendment that there had been an appointment made by the court of common- pleas of Huron county of a board of commissioners designated as the “Board of Commissioners of the Sinking Fund,” as provided in Section 7614, General Code, to take charge of the sinking fund of the board of education. It was contended in argument in behalf of the plaintiff, that the true construction of this section must be that in the event of no board of commissioners being so appointed by the court of common' pleas, then the board of education itself becomes the board of commissioners for its own sinking fund. We can not eoncuv in this construction of Section 7614. We think that, the section clearly means that where the court of common pleas has appointed-no. such board, then and in that event the board of trustees .of- the city or village sinking fund may take charge of and act for-the school board in the management of the sinking fund of that board. In such case the same persons would be acting as trustees for the city in the management of the sinking fund of the city and also in the management of the sinking fund of the board of education. If these bonds were in fact offered to the trustees of the sinking fund of the city, there is nothing in the petition to show whether the offer was to these individuals as trustées of the sinking fund only, or was an offer in general which the trustees might consider as addressed to them in their dual capacity, if they were acting for both funds. Keeping in mind the presumption that the officials were discharging their duty as required by law, we think the petition is not sufficiently definite to show that there had been a violation of the law with respect to tendering these bonds, before sale, to the sinking fund commissioners of the school district, as' required by statute.

The more serious question involved in this ease is the one arising by virtue of the omission to publish the initial resolution declaring the necessity for this issue of bonds. It is conceded by counsel for plaintiff that there is no section of the statute that provides in exact terms that a resolution of this-character .shall be published, but it is said that the word “resolution” and the word “ordinance” are used interchangeably all through the statutes,' and that the only fair interpretation of the sections of the statutes requiring the publication of ordinances of municipal councils is that these statutes apply with equal force to resolutions as well, and it is said that this is particularly true with respect to all resolutions that are of a general or permanent character; that it matters not what title may be given to the act, whether ordinance or resolution, but it is the substance that controls, and that two acts of the council that are in substance the same must be treated the same with respect to publication, regardless of whether they be named ordinances or resolutions. There is much force in the contention of plaintiff in this respect, and if there liad been an entire omission to publish this initial resolution as passed, it might be difficult to sustain the validity of these bonds by reason of that.

We call attention to the following sections of the General Code as foand in 102 O. L., 264:

“Section 3942. Paragraph 4. In addition to the authority granted in section one (1) (G. C., 3939) of this act and supplementary thereto, the council of a municipal corporation, whenever it deems it necessary, may issue and sell bonds in such amounts, or denomination, and for such period of time and rate of interest not exceeding 6' per cent, per annum, as it may determine upon for any of the purposes set forth in said section one (G. C., 3939), upon obtaining the approval of the electors of the corporation at a general or special election in the following manner.”
“Section 3943. Paragraph 5. The council, by resolution passed by an affirmative vote of not less than two-thirds of all the members elected or appointed thereto, shall declare it necessary to issue and sell bonds of the corporation.- Such resolution shall state the purpose and amount of said issue, and shall fix a date upon which the question of issuing and selling such bonds shall be submitted to the electors of the corporation. Council shall then cause a copy of such resolution to be certified to the deputy state supervisors of the county in which the corporation is situated.” '
“Section 3944. Paragraph 6, The deputy state supervisors shall prepare the ballots and make the necessary arrangements for the submission of such question to the electors of such municipal corporation at the time fixed in the resolution.”
“Section 8945. Paragraph 7. The election shall be held at the regular place or places of voting in the municipality, and be conducted, canvassed and certified in like manner, except as otherwise provided by law, as regular elections in the municipal corporation for the election of officers thereof. ’ ’
“Section 3946. Paragraph 8. Thirty days’ notice of the election shall be given in one or more newspapers printed in the municipality once a week for four consecutive weeks prior thereto, stating the amount of bonds to be issued, and the purpose for which they are to be- issued, and the time and place of holding the election. If no newspaper is printed therein, the notice shall be posted in a conspicuous place and published once a week for four consecutive weeks in a newspaper of general circulation in the township or municipal corporation. ’ ’■
“Section 3947. Paragraph 9. If two-thirds of the voters wqting at such election upon the question of issuing the bonds .vote in favor thereof, the bonds shall be issued. Those who vote in favor of the proposition shall have written or printed on ■their ballots, ‘For the issue of bonds;’ and those who vote against it shall ha\e written or printed on their ballots, ‘Against the issue of bonds.’ ”

-Tt will be- noted that'the initial resolution must be passed ■by-a-two-thirds vote of the council and the resolution must set forth the necessity, purpose and amount of the' contemplated bond, issue, and fix the date upon which the election is to be held at which’.the authority is to be procured for issuing the .bonds, and provision is also made for sending to the election officials a certified copy of the resolution so passed by the council, and thereupon it becomes the duty of the election officials to make provision for the holding of the election called, for by the resolution, according to law, and ample provision is made for the publication of the notice- of the time and place of the holding of this election, and this notice of election, like thé resolution, is required to state the amount of the bonds to be issued, the purpose for which they are to be issued, as well as the time and place of holding the election, and the authority to issue the bonds can only come to the council in the event that two thirds of the voters voting at the election vote in favor of the issuing of the bonds. The sections of the General Code quoted appear to make complete provision for the issuing of municipal bonds under circumstances like those attending the case at bar, and it is difficult to see any necessity for a double publication such as would be necessary if the council were required to first publish the resolution and then the election officers in giving notice of the election were required to publish practically the same thing and for a longer period of time.

Even though it be conceded, as claimed by council for the plaintiff, that this was a resolution of such character as that the law required it to be published, nevertheless, we are unanimously of the opinion that if the provisions of the sections of the General Code quoted above, have been complied with, and the presumption is that they have, and there is no allegation that they have not, then it follows that, althoiigh there was not a formal publication of the resolution such as usually appears in the public press, pursuant to the provisions of Section 4228, General Code, such publication was made of this resolution as answered in effect all the requirements of the law with respect to publication.

Our conclusion is that the plaintiff is not entitled to the relief prayed for; that • the demurrer should be sustained; the temporary restraining order which was granted dissolved; and the petition-dismissed at the costs of the plaintiff. The-taking effect of the dissolution of the temporary restraining order will be suspended until March 3, 1915. An entry may be drawn by council in accordance with this opinion. ■ ' . .


author: (Voorhees, Shields and Powell, JJ.)

text:
    ACTION BY SURETIES OF GUARDIAN TO SET ASIDE SALE MADE BY GUARDIAN.
    Circuit Court of Richland County.
    C. E. McBride et al v. H. E. Bell et al.

    Decided, January, 1913.

      Guardian and, Ward, — Property Sold by Guardian Without Appraisement —Sureties of Guardian Seelc to Set the Sale Aside Without Wait- ■ ing for Guardian to File His Final Account — Section 10348,
    An action lies to set aside a sale of real estate, made by a guardian without an order of appraisement or any appraisement in fact being made, and such an action is open, to the surety on the guardian’s bond without waiting indefinitely for the filing by him of a final account.

      W. H. Gifford, for plaintiffs.

      McBride ■& Wolfe and C. IT. Worlman, contra.

      Affirmed without opinion, Case v. McBride et al, 92 Ohio State.

   Per Curiam.

(Voorhees, Shields and Powell, JJ.)

This cause is before this court on appeal from the judgment of the court of common pleas of this county. The question presented arises upon a demurrer to the petition wherein it is alleged that one H. E. Bell was on October 10, .1890, appointed by the probate court of this county as guardian of Della' Wolford then an imbecile, but now, not under legal disability, and that on said day Bell gave bond as such guardian in the sum of $2,000, with C. E. McBride and S. M. Douglass as sureties thereon, to faithfully account for the estate of said Wolford. That afterwards on October 18, 1902, said guardian filed a petition in said court for an order to sell the undivided one-half interest of lot 4177 of the consecutive numbers of lots in the city of Mansfield, said county, owned by said ward, and that on November 14,1902, he sold the same to one John N. Case for the sum of $1,000, which said sale was afterward approved and confirmed by said court and said guardian executed a deed therefor. Said Case now claims to hold and own the same, but the plaintiffs allege that said proceedings and sale are illegal and void because said guardian sold said real estate without having first given an additional bond as such guardian and without first having procured an order of said court to appraise the same, and without first having caused the same to be appraised. Afterwards and on January 26, 1906, said guardian filed his fifth partial account in said court, and on March 19, 1906, said court approved and confirmed said account, when said court found him chargeable with the sum of $998.34 belonging to his said ward, which said sum the plaintiffs allege is wholly of the moneys received by said guardian from the sale of said real estate. Bell as such guardian on March 24, 1906, tendered his resignation to said court, which on said day was accepted, and that at the commencement of this action no final account had been filed by him as such guardian in said court.

It is further alleged in said petition that suit was entered by the said Della Wolford against the plaintiffs to recover the amount found in the hands of said guardian by said court and due from said guardian on the said fifth partial account as aforesaid, which said suit was found and adjudicated by this court to have been prematurely brought on account of no final account having been filed in said probate court by said guardian. Other allegations are made in said petition which we do not deem it important to call attention to in connection with the demurrer filed, except to add that said Bell as said guardian, and said Della Wolford are made parties defendant to this action.

The plaintiffs pray that said pretended deed executed to John N. Case by said guardian, and which is a cloud upon the title of said real estate of said Della Wolford be ordered canceled and held for naught, and that he be required to re-convey said property, and that in default thereof, the decree of this court may stand as and for a cancellation of said deed and transfer, and that said John N. Case may be required to set up whatever claim he may have in the premises or any part thereof, and that said Della Wolford may be restored to her just rights in said premises, and that said pretended purchase price carried by said guardian into his fifth partial account may be stricken therefrom, or a basis of action upon the bond given by said plaintiffs, and that ha the meantime said John N. Case be enjoined from disposing of said piuperty, or otherwise encumbering the same, and 'that’oia the final hearing hereof he be pea'petually enjoined from so disposing of, or encumbering said premises, and for such other and further relief in equity as the plaiaatiffs may be entitled to.

It would seem that the plaintiffs rely upon three distinct gTouaads for the relief sought in this action.

First. That no final account has been filed by the guardiaia before the commencement of said action.

Second. That said guardian did not give an additional bond before the sale of said real estate.

Third. That no appraisement of said real estate was made.

Section 6304, Revised Statutes (General Code, 10991), provides that:

. “All laws relating to guardians for minors and their wards and all laws pointing out the duties, rights and liabilities of ■such guardians and their sureties in force for the time being, shall be applicable to guardians for imbeciles, idiots, and lunatics, except as otherwise specially provided.”

Section 6285, Revised Statutes (General Code. 10950), provides that:

‘ ‘ Upon the appraisement of said real estate being filed, signed by said appraiser’s, the court shall require such guardian to execute a bond, with sufficient freehold sureties at least two in number, in addition to the principal, payable to the state in double the appraised value, of such real estate, with condition for the faithful discharge of his duties and the faithful payment and accounting for of all moneys arising from such sale according to law, which bond shall be additional to that given by said guardian at the time of his appointment; and no court shall have power to waive the giving of such additional bond, nor jurisdiction to order the sale of such real estate until the same has been'given.”

This section has at various times been construed by our Supreme Court which has held that the failure to give such bond as mentioned in the preceding section, will not relieve sureties from liability on a guardian bond. Maurer v. Parrish, 26 Ohio St., 636; Arrowsmith v. Harmoning. 42 Ohio St., 254; Arrowsmith v. Gleason, 129 U. S., 86.

. As was held by this court at a former term thereof, in a suit brought by Della Wolford to recover from the .sureties on said guardian’s bond, the amount found by the probate court in the hands of said guardian on the filing, approval and confirmation of his fifth partial account was premature, because said guardian had not then filed his final account in said court, and until so filed and the amount due thereon judicially ascertained and fixed by said court, no cause of action in favor of the said Della Wolford accrued. Newton v. Hammond, 38 Ohio St., 430.

And such would be our holding now in k case of like character, but we know of nothing in the case at bar involving this principle of law, because it does not appear that the plaintiffs herein are called upon for the payment of any sum already adjudicated against them.

But it is further alleged in said petition that the real estate (.f said guardian’s ward was sold without an order of appraisement issued by said probate court, and without-any appraisement of said real estate having been made prior to said sale. Section 6283, Revised Statutes (General Code, 10948) provides that: .

. “At the time appointed for the hearing of said petition, and being satisfied that the notice named in the last preceding section has been given, and that such real estate ought to be sold, the court shall appoint three freeholders of the county in which said real estate shall be situated, who are not a kin of the petitioner, to appraise said real estate; and if such petition seeks to have the land or any part thereof, laid out in town lots and the court finds it will be to the advantage of the ward to have the same done, the court shall also authorize the survey and platting of the land for that purpose.”

Said section requires that an appraisement of the real estate shall be made before sale and we think it is the settled policy of this state, and that it is the uniform rule of courts in this state, to require such appraisement by a guardian to be made. Clearly said-sale in this respect was at least irregular’, and subject to be set aside in a proper proceeding to be- commenced for such purpose. But can the plaintiffs avail themselves of .this privilege? Have they any such rights that they can assert in an equitable proceeding to protect themselves from being -subjected on their bond as sureties to the payment of a liability without authority of law? In the ease of Myers v. Hewitt, 16 Ohio, 449, it is held that, “A judgment creditor may tile a bill after levy, to clear away the cloud cast upon the title by such sale,” etc.

Applying a like equitable rule to the case at bar, can not the sureties on this bond -maintain the action herein without waiting indefinitely for a final account to be filed and judicially passed on in the estate of Della Wolford, when perhaps they could assert their rights and defend as such sureties ? That Della Wolford could institute a proceeding to set aside said deed to said case for the reasons hereinbefore stated, admits of no doubt, but having refused to do this, or at least not having done so, with the fair presumption that she is familiar with the circumstances leading up to the execution of such deed, thus winking at the enforced payment by the sureties on her guardian’s bond of moneys misappropriated, at least unaccounted for by such guardian, can it be said that such sureties are powerless in a court of equity to obtain relief? Equity wall afford relief against fraud, and equity will likewise afford relief against a conspiracy to defraud. While this element of fraud may be entirely lacking in the case as may appear upon trial had in a court of general equity jurisdiction, still we think the averments in petition, when taken together, state a cause of action and the demurrer will therefore be overruled.


text:
    VER.BÁL PROMISE TO PAY THE DEBT OF ANOTHER.
    Circuit Court of Cuyahoga County.
    The Cleveland Brick & Clay Company v. Edwin C. Garvin.
    Decided, November 6, 1907.

      Statute of Frauds — Promise to Pay for Personal Services Being Rendered Another Must he in Writing.

    A promise by the officers of a corporation made to a physician, who is treating an injured employee of the corporation, that the corporation will pay for the services of the physician, is a promise to pay the debt oi another, within the meaning of the statute of frauds, and must he in writing.

      Section & Paine, for plaintiff in error. •

      Prank O. Seoti, contra.
    Marvin, J.; Winoii, J., and Henry", J., concur.
   Garvin is a physician; Perry PI. Miller was an employee of the Cleveland Brick & Clay Co., a corporation. On the 14th day of March, .1905, Miller received an injury at the plant of the said brick company. Dr. Garvin was called to attend Miller professionally, and did give him the professional attention necessary on account of such injury during the time that he required such attention. He has not been paid. The bill for his services amounts to $50. For this amount on the said bill Garvin sued Miller and the brick company jointly, first, before a justice of the peace and then, on appeal, in the court of common pleas. No answer was filed hv Miller, but the corporation filed an answer, denying the allegations of the petition. Upon a trial to the court and jury, judgment was recovered against this corporation, to reverse which this proceeding is prosecuted.

We have before us a bill of exceptions, containing all the evidence in the case, from which it appears that Dr. Garvin was called, on the day of the injury, to Miller’s house, to give him the requisite attention. It is not certain that the doctor was called by Miller or any member of his family, though the probability is very strong that such ivas the ease. Miller testifies that he does not recollect that he directed him to be called, but says that he does not recollect much about it, only that he knew that he needed the doctor. The following questions were put to him on cross-examination:

“Q. Didn’t you send word to Dr. Garvin by some member of your family, that you wanted him to come? A. I can’t say. Tt don’t seem to me as if I did.
“Q~ I suppose it ivas a. matter of entire surprise to you then when Dr. Garvin appeared? A. No, not surprise, but I c ouldn’t say positive whether I sent for the doctor by my wife, or not. I don’t mind much about it. ’ ’

From these and other questions, as has already been said, it is probable that the doctor was called by some member of Miller’s family. This is made still more probable by the testimony of Dr. Garvin himself, when he says in answer to the question, “Do you know who it was who called you?” A. “No, my recollection is it was a telephone message came from Miller’s house, giving the name and address.” In any event there is no evidence tending to show that he ivas called by the corporation, or by any person authorized in its behalf, nor is it claimed that he was so called, but the claim made against the corporation for these services is based upon ivhat was said by Mr. Ring, who is claimed to have been a superintendent of the company and authorized to employ persons in its behalf. The testimony of Dr. Garvin in this matter is in substance that, on the third day after he was called to attend Miller he met Mr. Ring, either on the street, or in the doctor’s office, when Ring said:

‘ ‘ I am very sorry for Miller; he is one of our best men; he has suffered intense pain; go ahead, take good care of him, do the best you can for him and then present, the entire bill to the company. ’ ’

The doctor was then asked:

“Q. Did you have any conversation with Ring other than you have related, in regard to payment of the bill? A. Yes.
‘ ‘ Q. When was that ? A. At the same time.
. “ Q. . What further did he say ? A. I asked Ring distinctly, ‘Do you have the authority to make this statement’? I asked him that, and he said yes, he was superintendent of the plant; that no bill went through unless it was referred to him; that while Mi'. Nichols was general manager, he referred all the bills to him, and no bill went through unless it had his approval or disapproval. ’ ’

After the completion of the services the doctor handed his bill to Mr. Ring, and Ring then said the bill was very reasonable, present it to the company and they will pay it. After the bill had been presented to Ring and this conversation was had, the doctor tells of a conversation he had with Mr. Nichols, the general manager of the company, and he says that in that conversation which was over the telephone, Nichols said “Doctor, I got your bill in the Miller ease for $50 and as regards the total amount, it is entirely satisfactory and we will pay it, but we must have an itemized bill.” lie says that he thereafter rendered the itemized»bill and that the company refused to pay it.

On the part of the corporation it is urged that whatever was said by Ring or by Nichols, and to whatever extent they were either of them authorized to speak for the company, and whatever promise either of them made, was clearly a promise to become answerable for the debt of another person, and not being in writing, it comes within the statute of frauds, and therefore is not binding upon the company. This is the real question in the case, and as hearing upon this, attention is called to the testimony of Dr. Garvin, where, the following questions and answers appear:

“Q. Doctor, if you hadn’t met Mr. Ring at all on the morning you met him, you would have continued to attend Mr. Miller, wouldn’t you ? A. Certainly.
“Q. Just as long as he required your services? A. Yes, sir.
“Q. So your meeting with Ring and the conversation which you had with him didn’t affect in any way the rendering of the services which you were rendering to Miller. It simply affected the question of the party against whom you made your bill. Ts that right? A. Yes.”

From this it appears that Doctor Garvin’s professional services were rendered not only in the first place, but all the way through, not because of-any promise made to him on the part of the corporation, but because he was called irpon professionally by Miller to do so. lie made no inquiry as to who called him, but having undertaken to do what he could for this man, he expected to and would have done what any good and conscientious physician would do under such circumstances, without reference to the party by whom he ivas to be paid.

It seems clear to us that whatever promise was made by either Ring or Nichols comes within the provisions of the statute of frauds, Section 4199, Revised Statutes, which reads:

“No action shall be brought whereby to charge the defendant upon any special promise, to answer for the debt, .* * of another person * * * unless the agreement upon which such action is brought or some memorandum or note thereof is in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized. ’ ’

The fact that the suit was brought against Miller and the company shows that the doctor did not understand that Miller had been relieved from the obligation which he was under to pay for these services. It is not like the case of Estabrook v. Gebhart, 32 Ohio St., 415, Avliere, in consideration of the promise made by a third party the claim was given up against the original promisor. There it was held that in such ease, that is, where in consideration of the promise on the part of the third party it was agreed that the claim against the original promisor should be released, the promise Avas not Avithin the statute. This ease is very like the case of Birchell v. Neastor, 36 Ohio St., 331, the first, prosition of the syllabus reading:

“A let a contract to B for furnishing materials and building a house for a stipulated sum. B employed 0 to furnish materials and to perform the labor of plastering. When the building Avas completed, except a small part of the plastering, C, in the absence of B informed A that he Avould not finish the plastering unless A AA'ould agree to pay him, and A replied, ‘Finish the plastering and I will see you paid.’ The obligations of B to complete the house and to pay C not being released, Held: That the verbal promise of A to see C paid was Avithin the statute of frauds.”

In the opinion, at page 337, this language is used:

“It has been claimed that a new and distinct consideration passing between the creditor and the promisor will take the promise out of the statute, though the original debtor remains liable. This can not be the true test, as the statute can operate only on promises supported by a consideration; because promises, either in writing, or verbal, unsupported by a consideration, can not be enforced, either under the statute or independent of it, and certainly the stalute requires a promise to answer for the debt, miscarriage or default of another, though supported by a consideration, to be in writing. It is unquestionably true, that whether or not the original debtor remains liable, is a very important fact in determining the nature of the new promise; but, after all, the controlling and ultimate question' is, ivas the promise one to answer for the debt, default or miscarriage of another, or was it an agreement to make the old debt the debt of the promisor?”

In the case of Crawford v. Edison, 45 Ohio St., at 239, it is held:

“That, a promise is not within the statute where the promisor was notified that certain work which ivas to have been paid for by another party, but which was for the benefit of the new- promisor, would not be done unless the new promisor would pay for it, whereupon the new promisor directed the promisee to go on with the work and he would joay for it.”

This ivas not within the statute because the promisee did work ■which he would not otherwise have done, and did it for the benefit of the new promisor; but in the case under consideration, as lias already been pointed out, the work not only was,being done when the promise relied on was made, but there was no intimation that the work would continue unless the corporation promised to pay for it, and there is the distinct testimony of the promisee that the promise in nowise affected him in the matter of performing the professional services sued for. From what has been said it follows that the first request made by the defendant below for a charge to the jury should have been given. That request, reads:

'' That the jury be directed to return its verdict for the defendant, the Cleveland Brick & Clay Company.”

Of course, if this bad been given, there would have been no occasion to give any of the other requests, but, if that were infused, the court should have given the second request which read:

“If the jury find from the evidence that the plaintiff, Dr. Garvin, was not employed by the defendant, the Cleveland-Brick & Clay Co., to render the services performed by him prior to the time he commenced to render said services, and that the indebtedness of the defendant Miller, to I)r. Garvin for the services rendered to Miller, still exists, and did exist at the time of the making of the alleged promises of the Cleveland Brick & Clay Company to pay said debt, then the court says to you that the alleged promises made by the defendant, the Cleveland Brick & Clay Company ivere promises to pay the debt of another, and not being in writing, plaintiff can not recover as against the Cleveland Brick & Clay Company.”

The refusal to giv'e these requests constitutes error for which the judgment of the court below is reversed.

There is another error complained of, and this arises upon the introduction of evidence.

When Miller was upon the stand, he answered a question in this wise:

“Mr. Ring came to my place and he asked me about my foot, bow bad it was, and I told him. Now, he says keep quiet and tell the doctor to take good care of it and the company will pay the doctor bill. He says, you tell Garvin that.”

Motion was made on the part of the corporation to take this-answer from the jury, which was overruled. This ruling was erroneous. The fact that Ring told Miller to tell the doctor that the company would pay the-bill did not tend to show that the company had promised Garvin that the bill should be paid.

For the errors pointed out the judgment of the court below is reversed and the cause remanded for further proceedings.


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    SUFFICIENCY OF EVIDENCE IN A PROSECUTION FOR RAPE.
    Circuit Court of Cuyahoga County.
    Conrad Frey v. State of Ohio.
    Decided, October 21, 1907.

      Rape — Bvidence M-ust, Show Resistance of Woman.

    In a prosecution for rape, where the evidence discloses that the hands of the prosecuting witness were both free, and that people were in the room above that where the act occurred and no outcry was made; Reid: Not sufficient to support a conviction.

      Miller & Linder and Ross <6 KMngman, for plaintiff in error.

      If. Burton Gott, Assistant Prosecuting Attorney, contra.
    Marvin, J..; Wincii, J., concurs; Henry, J., not sitting. .-
   The plaintiff in error was indicted, prosecuted and convicted of committing a rape upon Hazel Yeaton, by having carnal intercourse with her, forcibly and against her will, on -the 9th day of January, 1907.

Error is prosecuted here to reverse the judgment of conviction. Complaint is made of the language used by the prosecuting attorney in his argument to the jury. An examination of that argument as it appears in the bill of exceptions, discloses nothing which would justify a reversal of the judgment.

.The prosecutor referred to the appearance of the prosecuting witness in court, claiming that such appearance indicated both weakness of body and mind. If he thought this was so there Was no' impropriety in saying so to the jury. It is certainly a ■ very common, and, as we think, an entirely proper thing to call attention to the appearance of witnesses, as entitling them to commendation or condemnation.

lie called attention to 'the appearance ■ of the accused, as he sat. in court, claiming that, he was strong and robust, abundantly able by his physical strength to overpower this girl.. This was following a’ practice long in vogue which never, so far as we know, has received judicial censure.

Complaint is made that the court failed to. give in charge to the jury certain propositions of law, as requested by the plaintiff in error.

Without stopping to read them we deem it sufficient to say that the charge given by the court to the jury embodied all the good law contained in these several requests. The charge as given was clear, fair, and we find correctly stated the law applicable to the ease. We should not be justified in reversing the judgment because of anything said or omitted in the charge.

There remains, however, to be considered the action of the court in overruling the motion made by the plaintiff in error for a new trial, one of the grounds of which was “that the verdict is not' sustained by sufficient- evidence.”

We reach the conclusion, from the testimony of the prosecuting witness herself that she made no effort to avoid the sexual connection which she says took place between the parties. We will not enter into any details of this evidence, but it seems to us incredible that she could not easily have prevented Frey from accomplishing his purpose, considering the position in which she says they were when it was done; her hands were both free, there were people close by, Mrs. Ida Forest living immediately over the room where these parties were at the time and she must have heard, had any outcry been made. The girl does not claim to have made any outcry,' but she knew the premises and the surroundings, and therefore knew that-she would be heard if sbe cried out, and she failed to do so. Taking all these things together, we are forced to the conclusion that the court'- erred in ‘overruling the motion for a new trial, on the ground that the verdict' was not sustained by "sufficient-evidence, and this notwithstanding the contempt in which the plaintiff in error must be held by all decent men and Women, who believe, as the jury believed and might well believe, the story of this unfortunate girl. The result is that the judgment'of'the-court of'common pleas is reversed and the case remanded'to that court for further proceedings. ’• :-


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    INCOMPETENT RECITAL OF A STOCK LEDGER.
    Court of Appeals for Hamilton County.
    John N. Russell, Administrator of the Estate of J. N. Russell, Deceased, v. The Fourth National Bank of Cincinnati.

    Decided, May 28, 1915.

      Corporations — Transfer of Stock Without Surrender of the Old Certificates — Recital of Stock Ledger as to Transfer. Incompetent as Against the Administrator of the Holder of the Original Certificate —Plausible Presumptions as to What Occurred of no Weight Against the TJncanceled Certificate.

    Stock was transferred fifty years ago by the defendant hank to one of its officers without surrender of the old certificate. The original holder received no further dividends on the stock and ultimately died in poverty; The old certificate was found among decedent’s ■ papers, and an action was brought by his administrator for a transfer of the stock to him on the hooks of the hank. A by-law of the bank required a surrender of an old certificate as a condition of the issuance of a new one, and the same requirement appeared on the face of the certificate. At the trial below an entry from the stock ledger of the hank was admitted over objection, which purported to show a transfer of the.number of shares in question from the.decedent to the said officer of the hank. , .

      Held: That the recital in the stock ledger is a self-serving declaration by an interested party, of great advantage to the -said party and of corresponding disadvantage to the representative of the decedent, and its admission was prejudicial error for which the judgment rendered below in favor of the bank must be reversed, notwithstanding the plausible presumptions arising from the conduct of the parties, the unexplained laches of the decedent and the further defense of a bar to the action by the lapse of time.

      Tuttle & Ross, for plaintiff in error.

      Charles B. Wilby, contra.
    Grant, J.; Meals, J., and Carpenter, J (sitting in plaee of Judges Jones, Swing and Jones), concur.
    This is a proceeding in error, the petition in which asks for the reversal of the judgment of the Superior Court of Cincinnati.

       Reversing Russell, Admr., v. Fourth National Bank, 15 N.P.(N.S.), 184.

   The facts which we regard as material in this cause, and which are essential to its determination here, are these: The plaintiff is thé ádministrator named in the title. The defendant is a banking corporation.

In 1865 the plaintiff’s intestate became the owner of thirty shares of the capital stock of the defendant corporation, his ownership being evidenced by certificate No. 123, of due form and signature.

That certificate bore upon its face a provision that it could be transferred on the books of the corporation only upon the surrender of itself, properly endorsed. At the time this certificate was issued there was in force a by-law or regulation of the corporation bank to the same effect as to the condition of transfer only upon surrender, appearing on the face of the certificate.

■ The plaintiff’s intestate was paid the dividends to which his stock’was entitled for two years after he became the owner of it, or thereabout, but no' more, although dividends thereafter were earned to the corporation in which the stock represented by the certificate named was entitled to share -and be paid. It is not shown that the intestate had notice of the declaration of such subsequent dividends. After his death the certificate in question was found among his papers and came to the hands of the plaintiff as evidence of, and representing assets of the estate, to be administered by him, if it has value as such. Demand was made by the plaintiff of the defendant corporation for a transfer to him upon its boobs of the certificate referred to, and for an accounting to him for the dividends earned on the stock represented by it, but not paid, which demand was refused.

The prayer of the petition was that the defendant be required to make the transfer requested and account for the unpaid dividends.

The answer of the defendant denied generally, and then alleged a sale of the stock in 1867 to one Colburn, accounting for the non-surrender of the certificate — which is not questioned— by an averment that it was at the time lost.

In a separate defense laches on the part of the plaintiff’s intestate in asserting any claimed right to the stock or its earnings was pleaded, as were also in other defenses several statutes of limitation in bar of the action. There was a cross-petition which asked that 1he plaintiff be compelled to surrender for cancellation the certificate in his possession and be prohibited from disposing of it in the meantime.

The reply denied the affirmative matter of the answer,

The trial below was to the court. The issues were found to be with the defendant, and there was judgment accordingly, dismissing the petition, ordering the surrender of the certificate for cancellation, and against the plaintiff for the costs of suit.

To reverse this judgment error is prosecuted here.

In the view we take of the record before us in this cause, our determination of it may proceed over a much narrower field than that traversed in the briefs and the arguments at the bar.

The plaintiff produced in evidence the original certificate, wholly unindorsed and unassigned by his intestate.

It did not appear by any evidence that the intestate had notice or knowledge of any dividend being declared subsequent to those which he took.

It appeared that the stock book of the bank covering the period during which the plaintiff’s intestate took dividends and later, that is to say, the book from which his certificate presumably was detached from its correlative stub, and to which regularly it should have been restored when surrendered for transfer, was long ago lost. At all events it could not be produced and vas not forthcoming' at the trial. If it had been it could not have shown the certificate as surrendered, for that was in the possession of the plaintiff. Consequently, it could not have shown a compliance with the inseparable condition of an effectual transfer through surrender, in accordance with the provision of the certificate itself and of the defendant’s own bylaw. This inability to produce can not be traced to the intestate and is not to be imputed to him or his representative, the plaintiff, as a default in exoneration or excuse of the defendant’s otherwise liability.

The defendant offered in evidence — and it was admitted, over the objection of the plaintiff — an entry on one of its books-— called, perhaps, the stock ledger (the name is not material)— purporting to show, as of January 9th, 1867, a charge to the intestate of thirty shares of the bank’s stock, and a corresponding credit, as of the same date, of a like number of shares to one W. F. Colburn, the account in the book produced being marked, “J. N. Russell.” Colburn, it is said, was at the time a vice-president of the defendant bank. He was dead at the time of the trial, and no witness undertook to say who made these entries in the stock ledger, or under what circumstances, of by whose or what authority they were made. Nothing appears that tends to connect the intestate with them, by act, assent, acquiescence, sufferance or knowledge. The inference from his position is deducible that Colburn had the opportunity to make them, or cause them to be made. No explanation is forthcoming as to why the entries were made in the absence of a surrender of the certificate — the act of making them without the surrender doing violence both to the requirement of the certificate itself and failing to meet the like condition of the defendant’s self-adopted by-law. The averment of the answer to the effect- tba.t the certificate was then lost, that is, lost as far as Russell was concerned, was not made good by any evidence, the conclusion that it must have been lost because of his subsequent dire poverty resting in conjecture only.

From these observations it becomes apparent, we think, that the foundation upon which the' judgment attacked by this petition rests, and the reasoning upon which the finding preceding •it must have proceeded, was -this entry upon the stock -ledger. the admission of which in evidence is assigned, as a principal error. If the contention is right and the foundation is swept away, the entire superstructure of the defense falls.

It is difficult to see upon what reasonable hypothesis, upon what rational footing of legal principle, this fundamental piece of alleged evidence was received and allowed to mould and coerce to effect the judgment complained of.

It is but a statement pf an interested party, of advantage to the same party, and to the decisive disadvantage of the representative of the other party, but who was no party to the transaction which it purports to narrate. And this ex parte statement is now judicially forced into the service of the only one who made or agreed to it, so far as appears. Otherwise spoken, it is but the self-serving declaration of an interested party, allowed to be used to the detriment of one in no way responsible for, or acquiescent in it, so far as the record shows. And not only so, but a party to the transaction is thus through a paper permitted to speak to a fact very much to the detriment of the man whose estate is adversely to be affected by it, while the mouth of that other man is closed in death — thus defeating one benign safeguard which the law puts up for dead persons, that of setting each upon an equality with the other in that respect.

The faet, the mere accident, that the statement appears in writing and on the books of the concern, does not make it any the less a statement, or raise it to any force or dignity above a statement, as seems to be mistakenly supposed in some quarters. Reducing it then to its proper level of a statement and no more, and annexing to it its self-appearing quality of self servingness, and its ineompetency to conclude one not served by it and a stranger to it, for aught that is shown, becomes clear, as we think. The admission of it, under ordinary circumstances, would seem to be at variance with two well settled principles of the law of evidence. It is the self-serving declaration of a party. It is allowed to speak against one who can not speak for himself; it is permitted to weigh — conclusively, in this ease— against what might be the decisively opposing word of a dead man, were he alive again and could he speak.

The fact that the paper admitted is the book of a bank — national or other- — is wholly beside the question. Banks are not sacrosanct, so that letters of marque must be granted to them by the courts in matters affecting the competency of testimony, and the paper has no greater or other probative effect than any statement, of farmer Smith, for example, to the effect that he owns farmer Brown’s horse, which, however, still remains in the latter’s pasture, with no bill of sale or other evidence of a change of title outstanding.

On the score of principle and the manifest reason of the thing, we are quite unable to agree that this, the only tangible defense to overcome and control the effect of the visible certificate produced, is itself defensible.

As was to have been expected in what we feel bound to regard, as so plain a ease, authorities are not wanting to support this conclusion of our own.

Many of these, more or less in point, are marshalled and discussed in the briefs of counsel, with commendable industry and ability. We shall not comment upon them more particularly or seriatim, for the reason that we find what they amount to, to our apprehension, summed up in a compact text-book statement to be cited presently.

It certainly is true that under some circumstances and for some purposes, the regular and orderly writings of a corporation may be used in evidence. But they are so competent, it is believed, only as affecting the corporation in its capacity as a body, as a corporate entity; in other words, only qua corporation. They are so competent only in their relations to the internal affairs of the organized body. This limitation, or distinction will appear in the quotation about to be made. It is stated here only to show that it has not been overlooked and that the case at bar does not come within its purview, or the allowed exception to the general rule to the contrary, as is believed.

In Commentaries on the Law of Evidence, sometimes known as the "Blue Book of Evidence,” by Mr. Jones, Vol. Ill, Section 516», the law appertaining to this question, as we understand it to be, is tersely, but rather informingly stated, as. applied to the matter in hand, as follows:

"Thompson, in his monumental work on corporations, clearly announces his conclusions. He says: ‘The general rule.is believed to be that, except for the purpose of proving what the corporation did, or what action its corporators took in effecting its organization, its books and records are not evidence as against a stranger, or as against a stockholder holding adversely to it. * * # pj.jt y/here it is sought to use the records of a private corporation, as evidence of the facts which they recite, for the purpose of concluding, or even influencing the rights of third parties who are strangers to the record, then such records are not admissible, on the same principle which operates to exclude the records of legal judgments when offered for a similar purpose, on the principle that they are res inter alios acta, or in plainer language, upon the principle that the rights of A can not be concluded or displaced by the facts that C, D, E and F met together in conclave, in the room of a board of directors of a private corporation, and there adopted a certain resolution, or passed a certain vote, or enacted a certain by-law intended to have that effect. The sound rule, then, is that the records of a private corporation can not be used in evidence for the purpose of sustaining a claim of the corporation against persons who are not members of it, or to defeat a claim of such a person against the corporation, or to affect strangers anyway. * * * As between members of the corporation, they are evidence of corporation acts therein recorded; but they can not be used in an action against a stranger to connect him with the corporation, unless made so by an act of the Legislature. Nor can they be used in evidence in suits by the corporation against its members, for the purpose of proving, on behalf of the corporation, entries which are in its interest. If the contrary were the rule, a corporation might manufacture evidence in its own favor, and those who were its guilty agents in so doing would not be subject to the penalties of perjury. Nor are such books evidence to prove private agreements of the stockholders. Upon the same basis of reasoning, the records of a corporation are not evidence of the truth of the facts therein recited, as between a member of the corporation, and a stranger, or between two strangers.’ Wharton says that even in suits by a corporation against its members its books can not be used as evidence in proving in behalf of the corporation self-serving entries. ‘Entries in the books of a corporation of private pecuniary transactions with a stockholder are not admissible against him, especially when it does not appear by whom the entries were made.’ ”

Cognate following sections may also be read with advantage, but we shall not take the space to quote them. In one of these (517) it is said: “It has frequently been declared that the books can not in general be adduced by the corporation in support of its own claims, against a stranger, or to affect strangers in any way;” citing in support, Commonwealth v. Woelper, 3 Serg. and R., 29; Greenleaf, Ev., Section 493; Wharton, Ev., Section 628. It is to be said that in the transaction now under review the plaintiff is — as his testator was — a stranger-in-law to the bank. Being a stockholder did not make him less so.

The. authorities cited to sustain the text do so abundantly, as we think, and this is said only after an attentive examination of many of them. And this is an added reason for a perhaps scant discussion here of those brought forward in the briefs.

Thus,viewing the question, and finding the law so to be, it follows, manifestly, as we must think, that the admission of the entry purporting to recite that the testator parted with his stock holdings in the defendant was error. And as it went to the heart of the controversy and was the only thing that could have resolved the issue adversely to the plaintiff, it was of course prejudicial error and, therefore, reversible error. •

As to the other considerations more or less vehemently urged upon us in the argument at the bar, we do not feel called upon to say very much,- since obviously and as already intimated the paper which we have found should have been excluded but was admitted, formed the keystone of the entire arch of defense against the certificate in the hands of the plaintiff.

It is said — plausibly enough, to be sure — that it is impossible to think that the dead man should have lived in abject and miserable poverty and yet have been, by the ownership of this certificate, potentially a rich man. Perhaps so. But it will not do to push this supposed impossibility too far. It is a trick that misers have to appear to live poor while they are getting ready to die rich. At most, the consideration is but a conjecture, and when a conjecture comes against a very matter-of-fact stock certificate, the presence of which in wrongful hands — if it is wrongful — is solely due to the neglect of the sworn duty of the now conjeeturer and to its own disobedience of its own laws— in such case, we say, the conjecture is at a disadvantage and must go to the wall. It is, we suspect, small consolation that the patient dies according to the boobs — that is, in consequence of an infirmity which when it was acquired the sufferer had it within its easy power to prevent — namely, by requiring a surrender of the certificate before transferring the stock to any one, bank officer or no bank officer.

So also in regard to the statement in argument that the bank must have taken, and doubtless did take, an indemnity, before transferring Russell’s stock. Again, perhaps so.

But these are all inferences, suppositions, guesses. One guess is as good as another, and no guess can push the law of evidence from its stool. The hard fact of an unsurrendered certificate of stock is a visible and workable thing, to the confusion of any number of might-have-beens, or even must-have-beens.

In regard to the other defenses alleged in the answer — those of laches and the barring of the action by limitation or lapse of time — we desire to say no more than that none of them seems to us to be of merit to control the conclusion otherwise reached here. They are denied.

Because of the error found the judgment complained of is without support in law and for that reason is reversed, and the cause is remanded to the court from whence it came, for such further proceedings there as may be proper.


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    JURISDICTION TO ENJOIN EXECUTION ON A JUDGMENT.
    Court of Appeals for Licking County.
    Anna Betz v. Walter C. Betz.
    Decided, March Term, 1915.

      Alimony — Scle Under Execution to Satisfy Balance Due Under Judgment for — May he Enjoined, When — Jurisdiction in Equity,

    Where it is sought by execution to enforce payment of a balance due under a decree for alimony granted by the probate court, the common pleas court has jurisdiction to entertain an action by the defendant to enjoin sale of his property on the ground that the judgment entered against him upon which the execution is based has been fully satisfied; and this is true notwithstanding the right of the complainant to proceed by motion in the court issuing the execution to have satisfaction of the judgment entered and the execution set aside.

      Smythe & Smythe, for plaintiff in error.

      Carl Norpd and A. S. Mitchell, contra.
    Shields, J,; Powell, J., and Houck. J., concur.
    This proceeding in error is prosecuted to reverse the judgment of the court of common pleas of this county.
   ■ It appears that a decree for alimony was granted the plaintiff in error against the defendant in error by the Probate Court of Licking County; that afterward the plantiff in error caused an execution to issue out of said probate court upon said decree for alimony to the sheriff of said county, who levied the same upon the property of the defendant in error to satisfy what was claimed to be an unpaid balance due on said decree for alimony, amounting to something like $900; that said sheriff was proceeding to advertise the property of the defendant in error, so levied on, for sale to satisfy said claim of the plaintiff in error, when the defendant in error, in an action commenced by him in the court of common pleas of said county, procured a temporary injunction against said sheriff restraining him from selling said property, on the ground that he had then already paid the full amount of said decree for alimony so awarded against him, and a sum largely in excess of said sum, and that said execution so levied upon his property was therefore wrongful and unjust.

An answer was filed in this proceeding, denying payment of the alimony as 'alleged by the defendant in error, who afterwards filed a reply thereto, and after a full hearing was had upon the merits of the claims of said parties said common pleas court found that payment of said decree for alimony had been made by the defendant in error, as alleged by him in his petition, and said temporary injunction was thereupon made perpetual.

The plaintiff in error afterward filed a petition in error in this court to reverse said judgment of said common pleas court on the ground that said court had no jurisdiction to hear said last named cause for the reason that the probate court of said county had first acquired and retained jurisdiction thereof, and that if the defendant in error was seeking any relief his remedy was by motion in said probate court.

The rule that a judgment or lien for alimony is a continuing and subsisting claim against the husband and that it does not become dormant, nor become affected by injunction or other proceedings until paid is well recognized; but not unlike any other obligation created by the judgment of a court, when such judgment or lien for alimony is paid, such obligation is discharged. Here, it was claimed that the decree for alimony, made and entered by the probate court, was paid, and because of this alleged payment and satisfaction of said decree the sale of the property of the defendant in error, sought to be reached by the plaintiff in error on execution, was enjoined upon petition filed by the defendant in error setting up such payment and satisfaction of said decree. This action of the common pleas court is assigned as error, the plaintiff in error contending that said court had no jurisdiction over the subject-matter of said proceeding. The record herein shows that the defendant in error filed a petition in said court setting up payment of said alimony adjudged against him; that the plaintiff in error was duly served with process and voluntarily submitted herself to the jurisdiction of said court by filing an answer therein; that upon the hearing thereof she made the defense alleged in her said answer, and that said court, after hearing had upon the merits of the claims of the respective parties thereto, by its order made said injunction perpetual. Under this state of facts were the rights of the plaintiff in error determined and concluded in this proceeding? We think they were, and we further think that the proceeding instituted by the plaintiff in error in the common pleas court was a separate and independent proceeding from the action pending in the said probate court, and that said proceeding was not unauthorized by the facts and circumstances of the ease. True, a motion filed in the probate court might have served the purposes of the defendant in error, and it might not. Surely it would have been of no avail if not heard and passed on by said court favorably to the rights of the defendant in error before the sale of his property. Whatever the action of the court had it been so filed, we do not think such remedy was exclusive to work out the rights of the defendant in error as found by the court of common pleas; and having submitted to the jurisdiction of said court without objection, we think relief was properly granted to the defendant in error by injunction. In this connection we quote the opinion of Judge White in Miller et al v. Longacre et al, 26 O. S., 297, who cites therein with approval the principle of law laid down in Crawford v. Thurmond et al, 3 Leigh, 65:

"Jurisdiction in equity has been maintained to enjoin the enforcement by execution of a judgment which had been paid, notwithstanding the right of the complainant to proceed by motion in the court issuing the execution to have satisfaction of the judgment entered and the execution set aside.”

We are of the opinion that the common pleas court had jurisdiction to grant the relief asked for, and the judgment of said court is therefore affirmed, at the costs of the plaintiff in error.


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    EXPENSES OF LAST SICKNESS AND FUNERAL OF LIFE TENANT.
    Circuit Court of Logan County.
    John T. Kennedy and Harry Kennedy, Partners as Kennedy Brothers, v. John A. Price as Administrator de bonis non, etc., of the Estate of Maggie L. Hover, Deceased.

    Decided, October 8, 1909.

      Estate Left for the Support for Life of the One Designated — Chargeable with the Expenses of Last Sickness and Funeral.

    Where the consort of a deceased husband or wife received the entire property of said decedent by virtue of a devise for his or her support during life with the remainder over, and said consort died leaving no estate, the expenses of his or her last sickness and funeral are a legal charge against the estate which passed to him or her for life.

      Donnelly, J.; Norris, J., concurs; Hurin, J.. dissents.
    This is an action brought by Kennedy Brothers against Judge Price, as administrator, to recover for the funeral expenses and last sickness, etc., of Mr. Hover. The petition is about as follows: that in November, 1907, said Washington Hover died; that Maggie L. Hover, by her will, after directing that all her just debts and funeral expenses and those of her last sickness and expenses of administration of her estate be first paid, said testatrix, by said will, bequeathed and devised all of her estate' to her said husband, Washington Hover, named therein as executor, for life, coupled with the power of disposing of and using the same or any part thereof as he should deem best as the same should be necessary for his personal wants, necessities; comforts, etc., for and during the term of his natural life, and further provided that at the death of the said Washington Hover, all of the properties of said estate remaining uneonsumed by the said Washington Hover should be applied to the payment of certain legacies therein named, amounting to nine hundred dollars, etc. The petition goes on and further alleges that after this time, Washington Hover died; and that the said John T. Kennedy and Harry Kennedy furnished the funeral expenses, coffin and such other things as were necessary for his proper burial; and brought an action against Judge Price, the administrator de bonis non of Maggie L. Hover, the party who made the will and whose property it was.

       Affirmed without opinion, Price, Admr., v. Kennedy et al, 83 Ohio State, 472.

   To this petition, the defendant filed a general demurrer and it was tided on that question and the demurrer was sustained. The plaintiffs not desiring to plead further, judgment was entered and such proceedings were had on the record that it is now presented to this court for review.

Washington Hover died without any property, having nothing to pay any of his debts with. This case was submitted by counsel on both sides without any authorities that are applicable to this case being cited. The only question that this court is called upon to decide is as to whether or not the funeral expenses of a person occupying a position or relation under the will of a deceased, wife is a necessary charge against her estate; in other words, are the funeral expenses such a charge, as for instance the expenses.of his last sickness or doctor bills? That is denied and that is the only question in the ease.

There is no authority that we could find, except I have a decision of the circuit court at Findlay. That court decided a case that is very similar and in all respects, according to our idea, with the one at bar. It is the case of Charles et al v. Wachtier, Administratrix. A decision was rendered in the Circuit Court of Hancock County, Ohio, on the 24th day of June, 1901, by Judges Norris, Day and Mooney. The opinion is as follows r

“Anna Charles et al v. Mary Wachter, Administratrix.
“Norris, J.; Day, J., concurs; Mooney, J., dissents.
•• “The .plaintiff in error as plaintiff below filed their petition making the numerous parties to the action for the partition .of .certain real estate which they say they together with the other parties namécí'are the tenants in common as the children and only heirs of one Philip Rauen, deceased. They plead the necessary facts for partition and ask that such finding be had as that each may take his interest in severalty. Mary Wachter, as the administratrix of the estate of Lucy Rauen, deceased, files an answer in. die action and says, that on the 18th day of June, 1871, one Philip Rauen died, testate, seized of the land described in the petition. By his last will, Philip Rauen gave to his wife, Lucy Rauen, now deceased, all his property both real and personal, of which be died seized during her natural life, to be used for her support, and after her death to be divided among his children according to the statute of deseeut and distribution. Said Lucy was made executrix of this will. Lucy Rauen, during her life, used and consumed for her support all of the personal property, and all of the rents and issues and profits of the real estate, and died leaving no estate except that which she received unde • said will.
“The expenses of the last illness of Lucy Rauen and her funeral expeises and cemetery charees amount to $116.50. and the costs of administration of her estate will amount to $20.
“The plain+iffs and defendants, except Mary Wachter, refuse to contribute to defray the expenses of the last illness and burial of Lucy Rauen.
“Mary Wachter presents and attaches to her answer a certificate from the probate court showing the amount necessary to pay tin charges recited in her answer, and she asks for an order to sell the real estate to obtain the sum necessary to pay said expenses, or that an amount be set apart and paid to her, sufficient to cover these expenses, out of'the proceeds of any sale of said property.
“To this answer and cross-petition, plaintiff filed a general demurrer, which demurrer the trial court overruled. Plaintiffs not desiring to plead further to said answer and cross-petition, the court finds the allegations of the same to be true and declares the sum set out in the cross-petition to be a lien and charge on the premises described in the petition, and orders the same to be paid out of the proceeds of the sale of said premises. To this finding and judgment of the court, the plaintiff prosecutes error, because the court overruled said demurrer, that the court found the expenses of the last illness and funeral expenses of Lucy Rauen to be a lien on the premises described in the petition; that the court ordered that the same be paid out of the proceeds of any sale of said premises.
. “By the allegations of this eross-petition, Philip Rauen gave, by his will, to his wife, Lucy, all of his property during her life to be used for her support. Now, what thought was the testator by this will giving this act? What did he mean by support— ‘for her support’? What had he in view when he used that word — ‘for her support’?
“As the court says in 62 O. S., 411, the will should be construed so as to give effect to the intention of the testator as fairly ascertained from consideration of all the provisions of the will and from his situation at the time. And it may well be added that the purpose of his bequest, when the purpose is given, and the situation and necessities of the object of his bounty were known to the testator, when the will itself indicates that he knew the situation and necessities present and prospective, as here, and made his will for the express purpose of meeting the situation and that which must inevitably follow — where all this appears it may all be kept in view when the court is giving construction to the will. Now, what was within the sight of Philip Rauen when he was seeking to make provision for the support of his wife, to supply her means of maintenance, to furnish her that which she would need out of his estate? He knew that his wife was alive and likely to long survive him. He knew that for support she was dependent upon his estate; he knew that her last sickness would come and her death and her burial: he knew that these things were not contingent, but were inevitable; they were there present and were a part and helped to make the situation, for which he was then making provision, fie did not intend to abandon her to charity in her last sickness; it was not his purpose to fix a document which would consign her body to the potter’s field; a construction so shuddering and awful as this can not be contemplated. He intended his property should stand between his 'wife and a fate like this, and that she should take whatever estate in it was necessary to accomplish this, his intention. In other words, he intended that these things should be a charge upon his property, and so made them as plain as words could make them, and for such of his estate as was not so used, he made provision that it be divided among his children according to the law of descent and distribution.
“The court, by majority, are of the opinion the demurrer was properly overruled; the judgment of the common pleas is therefore affirmed at cost of plaintiff in error, and the cause is remanded for execution.
“Judge Mooney does not concur.”

Now,' following that case, using that as an authority for this case, I think the court below erred in sustaining the demurrer to the petition. It will therefore be reversed and remanded for such proceedings .as required by law. To this conclusion Judge Hurin dissents.

Judge Hurin: I dissent, not because I don’t think that ought to be the law, but I am unable to see, as yet, that it is the law.


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    LIQUOR. TRAFFIC IN “ DRY ” TERRITORY SUBJECT TO THE DOW-AIKEN TAX.
    Court of Appeals for Williams County.
    Harvey J. Brannan, Treasurer, v. Frank Schartzer et al.
    Decided, May 15, 1915.

      Voio-Aiken Tax Mot a License — Liquor Traffic in Dry Territory Subject to Assessment — Such Assessment Superior to a Prior Mortgage— Section 6071.
    1. When the business of trafficking in intoxicating liquor is carried on . in a county in which such traffic has been prohibited, the business is subject to the Dow-Aiken tax.
    2. An assessment under the Dow-Aiken law is in no sense a license fee and confers no authority to sell intoxicating liquor, hut is a tax on the business which the law makes a lien on the premises where the business is carried on.
    3. The lien of such a tax is superior to that of a mortgage executed and recorded prior to the entering of the tax on the duplicate or to the beginning of the traffic on the premises.

      John H. Schroder, Prosecuting Attorney, and A. O. Dickey, for plaintiff.

      Newcomer & Gebhard, contra.
    Chittenden, J.; Richards, J., and Kinkade, J., concur.
    This action is brought by the treasurer of Williams county to enforce a lien for taxes and penalty against the property of the defendant, Frank Schartzer. In July, 1914, Frank Schartzer pleaded guilty to two indictments charging Mm with violating certain liquor laws. Fines aggregating $460 were imposed upon him and he was sentenced to thirty days in jail.
   Thereafter, by direction of the Auditor of State, the county auditor placed upon the liquor traffic duplicate an assessment under the Low-Aiken law against the property, of the defendant, Frank Schartzer, for the amount of $859.90, and $171.98 penalty, making a total for assessment and penalty of $1,031.88. The plaintiff seeks to have this assessment and penalty declared a first lien and asks that the liens against the property of the defendant be marshaled, the property sold and the proceeds applied to their payment. The defendant, the Home Savings, Loan & Building Association Company, sets up the lien of a mortgage upon the property of Schartzer, given long before the imposing of the fines upon the defendant and the levying of the Dow-Aiken assessment upon his property. The building and loan company also sets up a tax title by reason of its purchase of -the property at a tax sale held since the Dow-Aiken assessment was levied. The defendant, O. L. Newcomer, sets up a mortgage lien dating from September 23, 1914. The state of Ohio also sets up a lien for the unpaid portion of the fines that were imposed upon Schartzer for violation of the liquor laws. The defendant, Schartzer, filed an answer in which he sets up various facts in defense.

On trial in the common pleas court the petition of the plaintiff was dismissed and a finding and decree entered in favor of the loan company and other cross-petitioners and defendants.

There are few disputed facts arising in this case, and there does not appear to be any question as to the priority of the several liens except as to the lien for the Dow-Aiken tax. It is an undisputed fact that at the time of the alleged illegal sales the business of trafficking in intoxicating liquors was prohibited in Williams county.

It is contended, in the first instance- that uo assessment under the Dow-Aiken law can be lawfully levied upon the business of trafficking in intoxicating liquors in a dry county, and that for this reason there is and can be no lien upon the property of the defendant Schartzer, because of the attempt to make such levy. Section 6071, General Code, provides that there shall be assessed yearly the sum of $1,000 upon the business of trafficking in intoxicating liquors. The law is stated in plain language and makes no exceptions because of the place in which, or the manner in Avhich, such business is conducted. Wherever in the state of Ohio such business is carried on, the law provides that the sum of $1.000 shall be assessed upon the business. To hold that this act does not apply to such business when conducted in dry territory would be to read into the statute an exception that is not found therein.

This question, however, is no longer open to discussion, as the the. Supreme Court has directly passed upon it in Burrell v. Holtz, without opinion, 84 Ohio St., 497. We have been furnished with certified copies of the proceedings in the court of common pleas and circuit court and a copy of the journal entry in the Supremo Court. The identical question was raised in that ease and the Supreme Court held that such assessment might be imposed upon the business when conducted in so-called dry territory. The Supreme Court decision affirmed the judgment of the circuit court on the authority of Adler v. Whitbeck, 44 Ohio St., 539, and of Conwell v. Sears, 65 Ohio St., 49.

Counsel for defendants contend that the Supreme Court reached a different conclusion in affirming the case of Remick v. Haas, without opinion, 85 Ohio St., 466. That ease was considered by the circuit court on two different occasions. The opinion on the first consideration of the case is reported in Haas v. Remick, 13 C.C.(N.S.), 1(31 O. C C., 591), and was rendered in March, 1910. The decision there rendered was upon a demurrer to the petition. In the common pleas court a demurrer to the petition had been sustained and the plaintiff not desiring to plead further, final judgment ivas entered in that court and the cause appealed to the circuit court. Upon appeal, the circuit court overruled the demurrer and no final judgment was then entered in that court. In the course of the opinion of the circuit court upon their determining the question presented by the demurrer, that court did reach a conclusion contrary to that announced by the Supreme Court in Burrell v. Holtz, supra. Thereafter, in September, 1910, the cause came on further for hearing before the circuit court, when the case was disposed of upon grounds other than those mentioned in the opinion on the demurrer. The Supreme Court affirmed this judgment. It can not be said, therefore, that the affirmance of this decision 'by the Supreme Court is in conflict with the decision of the Supreme Court in Burrell v. Holtz, supra.

It is argued, that the decisions above cited were rendered before the amendment to the Constitution in 1912 and the passing of the liquor license laws, and that the effect of the constitutional amendment and the liquor license laws is to render the above decisions inapplicable. It is contended that the imposing of the Dow-Áiken assessment amounts to a license to conduct a business that is illegal and that for this reason, it can not become a valid lien upon the property. We think it is a sufficient answer to this argument to state that the Dow-Aiken assessment is in no sense a license fee and does not confer any power upon the dealer in intoxicating liquors to conduct such business.' It is purely a tax or an assessment upon the business which is made by statute a lien upon the property where the business is conducted. Adler v. Whitbeck, supra.

It is next urged that even if the assessment does constitute a lien upon the property, it is a subsequent lien to that of the mortgages to the Home Savings, Loan & Building Association. This question has been decided adversely to the claims of the loan company in the case of the Pioneer Trust Co. v. Stich, 71 Ohio St., 459. The tax and assessment liens will be paid from the proceeds of the sale of the property as provided in Section 2670, General Code.

It is further urged that the lien does not properly attach to more than that portion of the property owned by the defendant Schartzer, upon which the building stands in which the illegal sales took place. The evidence discloses that the entire premises described in the petition constitutes a single piece of property and that there is no part of it separated from the remainder by a fence, or any part that is used as a separate and distinct piece of- property from that occupied by the residence in which the sales were made. The lien, therefore, we hold attaches to the entire premises described in the petition.

The limits of an opinion preclude the discussion in detail of the many other questions raised on this hearing. We have considered all the questions and have readied the conclusion indicated in tliis opinion.

A decree may be drawn in favor of the plaintiff, placing upon the tax duplicate such assessment as will correctly represent the time during which the premises were used for the sale of intoxicants, as provided by law; this amount to be determined by counsel and the auditor in the drawing of the journal entry. The cause will be remanded to the common pleas court for the purpose of carrying into effect the decree drawn in accordance with the foregoing opinion.