author: LAUBIE, J.

text:
    RAILROADS — COUNTIES—HIGHWAYS—INJUNCTION.
    [Portage (7th) Circuit Court,
    September Term, 1904.]
    Laubie, Burrows and Cook, J.T.
    William Grinnell et al. v. Portage Co. (Comrs.) et al.
    !.• Powers Conferred Upon County Commissioners by Act of April 27, 1903, Construed.
    Tbe act of Aril 27,1893, 90 O. L. 359 (Lan. R. L. 5312 et seq.; B. 3337-8 et seq.) applies only to existing crossings of highways, and does not confer authority upon county commissioners to exercise the powers therein specified as to crossings proposed to be made in the near future by a railway company in the construction of a new line of railroad.
    2. Commissioners Cannot Change Course Nor Vacate Highway not Intersected by Railway.
    Thé power therein conferred upon county commissioners to change or alter the course of a highway, and vacate a portion thereof, to get rid of a crossing at grade, is limited to the highway crossed; and such commissioners cannot, in so doing, also change the course, and vacate a portion of an adjacent highway intersected by the railway by a nearby underhead crossing.

      3. Injunction Will Lie to Prevent Such Change and Vacation if Complainants Suffer Damages Different Prom General Public.
    Where under the power thus conferred such commissioners are about to change the course, and vacate a portion of a highway, the owners of lands abutting on such portion may enjoin such change and vacation if they will thereby suffer injury in excess of, and different from, that of the general public, as there is no method provided for awarding compensation to them for such injury.
    Injunction.
    I. T. Siddall, for plaintiff:
    Powers of county commissioners as to crossings, etc. Defiance Go. (Comrs.) v. Croweg, 24 Ohio St. 492; Newark v. Jones, 9 Circ. Dec. 196 (16 ft. 563); Lan. R. L. 2120, 2898, 7905, 7948, 7953, 7960, 7961, 8397, 8398, 8433, 8437 (R. S. 860, 1459, 4634, 4655, 4661, 4668, 4669, 4921, 4922, 4936, 4940); State v. Hancock Co. (Comrs.) 11 Ohio St. 183; Jones v. Lucas Co. (Comrs.) 57 Ohio St. 189, 213 [48 N. E. Rep. 882; 63 Am. St. Rep. 710]; Lan. R. L. 5307,' 5312, 5321 (B. 3337-3, 3337-8, 3337-17); State v. Commissioners, 49 Ohio St. 301 [30 N. E. Rep. 785]; Lake Shore & M. S. By. v. Elyria, 69 Ohio St. 414 [69 N. E. Rep. 738].
    W. J. Béckley, prosecuting attorney, for defendant.
    The county commissioners are the persons having the care and control of the public state and county roads and the only ones having the right to sue and recover for any injury or damages to such: See Lan. R. L. 2104 and 2123 (R. S. 845 and 863) ; Citizens’ Elec. By. v. Bichland Co. (Comrs.) 56 Ohio St. 1 [46 N. E. Rep. 60].
    Diverting of highway. Megrue v. Putnam 'Co. (Comrs.) 8 Circ. Dee. 262 (15 R. 245).
   LAUBIE, J.

In this case plaintiffs seek to enjoin the commissioners from changing the location, and vacating a portion, of the public highway running west from the town of Ravenna to Kent in said county, known as the Ravenna-Kent road. The facts sufficiently appear in the special finding of facts made by this court at the request of defendants.

The Pennsylvania Company, a defendant herein, controls and operates the Cleveland and Pittsburgh railway and has laid out and is now constructing a new and shorter line for that railway through Portage county, which is to cross said highway diagonally, as the direction of said new line in from northwest to southeast, at a point between said towns a mile distant from its original line, at a grade of more than thirty feet below that of the highway; and at a point some seven hundred feet east thereof said new line is to cross another public road nearly at grade, known as the Sandy Lake road, which runs from the south northward and connects with said Ravenna-Kent highway north of said new line of railroad.

The object of the suit is to restrain the defendants from carrying out an agreement entered into between them, to change and divert the line of said Ravenna-Kent highway and vacate and abandon a part thereof, as follows:

Commencing at a point about 350 feet east of said proposed crossings of said Ravenna-Kent highway, thence turning and running said highway to the southwest until it intersects said new railroad, crossing the same by an overhead bridge at right angles, and then turning to the northwest and paralleling such new railroad until it strikes or intersect» the original highway at a point west of where such new line of railroad was to strike said highway, and vacate and abandon such portion of the said highway, as lies between the said points of divergence.

The object of this, as claimed by the defendants, is to avoid the nearly-at-grade crossing of the said Sandy Lake road for the safety and convenience of the public, said agreement also including a change of the line of that road by turning it to the northwest at Some point south of where it was to be crossed by such railroad, and to connect it with said Ravenna-Kent highway at a point near the southwest end of said overhead bridge; and the right to do this, it is claimed, is conferred upon the commissioners by the provision of the act of April 27, 1893 (90 O. L. 359).

That the provisions of said act do not apply to such a case as this, is evident — even the title of the act shows this. It reads, “To provide for the abolition of dangerous grade crossings. ’ ’ Section 1 of that act, (Lan. R. L. 5312; B. 3337-8) in regard to crossings outside of municipalities, provides that if “the commissioners of any county in which, outside of any municipal corporation, a railroad or railroads and any public road or highway cross each other at grade, and the directors of the railroad company or companies are of the opinion that the security and convenience of the public require that alterations shall be made in such crossing, or in the approaches thereto, or in the location of the railroad or railroads or the public way, or any grades thereof, so as to avoid a crossing at grade, or that such crossing should bef discontinued with or without building a new way in substitution therefor, and if they agree as to the alterations which should be made, such alterations may be made in the following manner:”

Section 2 (Lan. R. L. 5313; B. 3337-9). “When it is deemed necessary * * * the commissioners * * * shall by resolution, declare such necessity and intent, and shall state * * * the manner in which the alterations in the crossing are to be made, ’ ’ etc.'

Section 10 (Lan. R. L. 5321; B. 3337-17) provides that “When any grade crossing is on a county line road, the commissioners of each county in which such crossing is situated may join in all the proceedings necessary for the abolition of such grade crossing as provided in this act,” etc.

This act and all of its provisions, beyond question, relate solely to existing crossings — crossings that have been and are being used by, and on the line of operated railroads, to the danger and inconvenience of the public, and for that reason are to be changed or abolished.

Here there are not only no existing crossings, but no built and operated railroad — there is nothing to change, alter or abolish except a scheme or design. How is it possible to abolish a crossing, because of its dangerous character, that does not and never did exist? Commissioners of counties are quasi corporations, and have only such power as is conferred by statute, and such statutes are to be strictly construed; and the power here conferred is limited to existing crossings upon existing and operated railroads, and cannot be enlarged to include proposed crossings upon a proposed railroad.

But if it were otherwise there are still other reasons why their action would be illegal, and plaintiffs entitled to relief prayed for.

The grade crossing which they are thus seeking to abolish is not, or will not be on the Eavenna-Kent highway, but on the Sandy Lake road; and that is the only highway, necessary,'or that they could have any right to change in order to abolish such crossing. The statute in question limits such right to the highways intersected, and to the points of intersection.

That road could be changed just as proposed and its crossing abolished by continuing it instead of the Eavenna-Kent highway, along the south line of said railroad to the northwest, until it strikes said Eavenna-Kent highway where said highway was to be reunited as aforesaid, without affecting or changing one foot of the line of the EavennaKent highway.

It would seem therefore, that even if the proposed change in the line of the Eavenna-Kent highway was agreed upon for the security and convenience of the public in getting rid of a grade crossing on another highway and not for the pecuniary benefit of the Pennsylvania Company, that it could be done at much less expense to the county and productive of much less inconvenience and. injury to the adjacent landowners.

Again, the plaintiffs live upon lands owned by them, abutting on the Bavenna-Kent highway at the point in question, and they will, it appears, suffer injury by the vacation and abolition of such part of such highway in excess of and different from that of the general public; and therefore, before .their property rights in such easement can be taken, compensation must be first made then.

But here there is no provision or method in this or any other statute by or under which their damages could be ascertained and ordered paid. And in such cases, where no provision exists for.awarding compensation the parties thus injured are entitled to an injunction restraining the' officials from making the proposed change. Tussing v. King, 65 Ohio St. 10 [60 N. E. Rep. 986]; Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264 [62 N. E. Rep. 341; 87 Am. St. Rep. 600].

We have an earlier statute which, while it is not decisive of the question, reflects somewhat upon it. The act of April 2, 1891 (88 O. L. 261), confers upon township trustees authority to fix and determine the kind and extent of all new crossings, and the time and manner of constructing the same, within their townships.

Section 1 of said act (Lan. R. L. 5307; B. 3337-3) provides that “railway or railroad companies operating a line or lines of railway in this state, shall build * * * good and sufficient crossings over, or approaches to such line or lines of railway * * # at all points-where any public highway * * # is now or' may hereafter be intersected by such lines of railway, its tracks, side tracks or switches. * * * And as to crossings and approaches outside of municipal corporations, the township trustees shall have power to fix and determine the kind and extent thereof, and the time and manner of constructing the same; * *■ * and such crossways, approaches * * * shall be constructed, repaired and maintained by the railroad companies as so ordered.”

The other sections of the act provide for notice to be served by such trustees on the company to build such crossing; that if not done in thirty days thereafter the township trustees may construct the same, and recover the cost from the company; that such company must beep the same clean of snow, etc.; and if such company neglects to comply with these demands, a penalty shall be assessed against it in favor of the township where the crossing is situate.

The Pennsylvania Company, as shown in this case, is operating a line of railway in this state, and is now constructing an additional track to get rid of curves and shorten its said line, whieh will intersect and cross the highway and road in question at points where its said line did not intersect or cross the same; and therefore it is the township trustees of the township where these crossings are to be made, who are to determine the kind and extent of these crossings, and the manner of constructing the same as the defendants cannot change the position -of these crossings in the manner agreed upon by them.

This authority is not taken away or abridged by the said act of April. 27, 1893.

It is only after crossings are constructed and become established, that the commissioners of the county are, by such later statute, authorized to act in these respects by joining with the company in changing, altering or abolishing such of those crossings as may be grade crossings.

We are not aware whether the trustees have taken action in the matter or not, but that is immaterial to the present case.

The injunction prayed for is granted.

Burrows and Cook, JJ., concur.


source: Caselaw Access Project

author: SWING, J.

license: Public Domain

text:
    EXECUTORS AND ADMINISTRATORS.
    [Hamilton (1st) Circuit Court,
    August 3, 1904.]
    Giffen, Jelke and Swing, JJ.
    Frank J. Dorger v. J. O. Woodward, Admr, et al.
    1. Liability of Coadministratoks fob Debt Due Estate by One of Them.
    That where one of two administrators is indebted to the decedent’s estate at the times of their appointment and the giving of a joint bond with,, surety, the amount of such indebtedness will be treated as assets coming into their joint possession, for which both are liable as principals as between themselves and the surety. The giving of separate bonds thereafter will not, in any way, change the liability which accrued while the joint bond was in force.
    2. Debt Due by Heib, Who is Administrator, to Estate Should be Treated as Credit on Amount Due Him.
    An heir who is indebted to an estate of which he is also administrator, need not pay into court, on his settlement as administrator, money which would be immediately returnable to him as heir on distribution. The amount due as heir should be treated as a credit on the amount due as administrator.
    Error.
    J. C. Healy, for plaintiff in error.
    Horstman & Horstman, for defendant in error:
    Debt or advancement. Christy’s Appeal, 1 Grant Cas. (Pa.) 369; Miller’s Appeal, 31 Pa. St. 337; Grey v. Grey, 22 Ala. 233; Crosby v. Covington, 24 Miss. 619; Bingham, Descents 348, 404, 414; 1 Am. &
      Eng. Enc. Law (2 ed.) 763, 775, 778, 779; Goar v. Maranda, 57 Ind. 339; Speer v. Speer, 14 N. J. Eq. 240; Harris’ Appeal, 2 Grant Cas. (Pá.) 304; Jones’ Estate, 29. Pitts. L. J. (Pa.) 89; Morr’s Appeal, 80 Pa. St.. 427; Middleton, Ex parte, 42 S. C. 178 [20 S. E. Rep. 34]; Overholser v. Wright, 17 Ohio St. 157; Robinson v. Moseley, 93 Ala. 70 [9 So. Rep. 372]; Denman v. McMahin, 37 Ind. 241; Strode, In re, 158 Pa. St. 355 [27 Atl. Rep. 1003]; Seagrist’s Appeal, 10 Pa. St. 424; Vaden v. Hance, 38 Tenn. (1 Head) 300; Roland v. Schrack, 29 Pa. St. 125; Yundt’s Appeal, 13 Pa. St. 575 [53 Am. Dec. 496]; Levering v. Rittenhouse, 4 Whart. (Pa.) 130; Medill v. Fitzgerald, 8 Circ. Dec. 129 (15 R. 415); Homiller’s Estate, 17 W. N. C. (Pa.) 238, 239; 2 Woerner, Administration Sec. 555; Harley v. Harley, 57 Md. 340; Miller’s Appeal, 107 Pa. St. 221; Merkel’s Appeal, 89 Pa. St. 340; Thornton, Gifts & Advancements Secs. 527, 546 and 563.
    A child’s note to its parent raises a presumption of debt. This presumption may be repelled. It is still a debt though the parent never intended to collect it unless he needed the money during lifetime.
    Joint liability of coadministrator. Bigelow v. Bigelow, 4 Ohio 138 [19 Am. Dee. 591]; Miller v. Donaldson, 17 Ohio 264; Tracy v. Card, 2 Ohio St. 431; Raahs, In re, 16 Ohio St. 273; Mitchell v. Towner, 1 Dec. Re. 352 (7 W. L. J. 581); Perkins v. Scott, 6 Circ. Dee. 226 (9 R. 207) ; McGaughey v. Jacoby, 54 Ohio St. 487 [44 N. E. Rep. 231]; Eckert v. Myers, 45 Ohio St. 525 [15 N. E. Rep. 862]; Seymour v. Stone, 2 Re. 648 (4 W. L. M. 323) ; Slagél v. Entrekin, 44 Ohio St. 637 [10 N. E. Rep. 675]; Foster v. Wise, 46 Ohio St. 20 [16 N. E. Rep. 687; 15 Am. St. Rep. 542].
    The giving of separate bonds afterwards could not divest the joint liability. Ames v. Armstrong, 106 Mass. 15; Brazer v. Clark, 22 Mass. (5 Pick.) 96; 'Newcomb v. Williams, 50 Mass. (9 Mete.) 525; Towne v. Ammidown, 37 Mass. (20 Pick.) 535; Boyd v. Boyd, 1 Watts 365; Spar-hawk v. Buell, 9 Yt. 41.
   SWING, J.

H. J. Cordesman and Frank J. Dorger were appointed administrators of the estate of Maria F. Cordesman, and gave a joint bond with the American Bonding & Trust Company as surety. At the time of the appointment H. J. Cordesman was indebted to the estate in the sum of $2,000, evidenced by a note to M. F. Cordesman. It is claimed in this action that at the time of the giving of the bond said Cordesman was insolvent and has remained so up to the present time. Under the law as announced in the first proposition of the syllabus in the case of McGaughey v. Jacoby, 54 Ohio St. 487 [44 N. E. Rep. 231], the amount owing by said Cordesman became assets in the hands of the administrator for which the surety on his bond is liable.

There being no question but what the amount due by said Cordesman is assets, in his hands and for which the surety on the bond is liable, the quéstion here is whether in the first instance the joint administrator, Dorger, or the surety company is liable. Dorger had knowledge of this indebtedness at the time of the appointment and had the note in his possession.

An inventory was returned by said administrators to the probate court in which said note was mentioned but was not returned as assets in their hands.

Under these facts we think this asset must be considered as having come into their joint possession, and under the ease of Eckert v. Myers, 45 Ohio St. 525 [15 N. E. Rep. 862], as between themselves and the surety are principals.

Some time afterwards said administrators gave separate bonds, but this in no way changed the liability of the parties which accrued while the first bond was in force. Besides it seems to us that the bonds given separately were not substitutes for the first bond, but additional bonds.

Judgment was rendered in this case in the court of common pleas for the full amount due on this obligation. As H. J. Cordesman was an heir of Maria F. Cordesman, and there being no debts of the estate and as such heir he would be entitled to a certain portion on distribution, it would seem unnecessary to pay into court the amount which would be immediately payable to him as heir on distribution. The amount due him as heir should be a credit on the amount due from him as administrator.

The judgment should be modified to this extent.

Giffen and Jelke, JJ., concur.


author: PARKER, J.

text:
    GUARDIAN AND WARD — EQUITY.
    [Lucas (6th) Circuit Court,
    November 7, 1904.]
    Parker, Hull and Haynes, JJ.
    Merchants & Clerks Sav. Bank Co. v. William Schirk et al.
    1. Wards not Prejudiced by Wrongful Transaction of Guardian, When.
    The principle that where one of two innocent persons must suffer from the wrongful act of a third person, the one who put it in the power of such party to commit the wrong, must suffer the loss rather than the other innocent party, cannot be invoked to the- prejudice of guardianship wards, iñ a matter in which their guardián was acting without warrant or authority of law.
    2. Sale of Securities by Guardian Without Authority to Innocent Purchaser Passes no Title.
    Where a foreign guardian is withcrat authority to dispose of property belonging to his ward’s estate, a sale of securities forming part of the estate to one who purchases in, entire good faith, and without actual knowledge of such want of authority, passes no title to the purchaser, and such purchaser retaining such securities, will be liable as upon a conversion thereof. The question of good or bad faith is not involved in such case.
    Error to Lucas common pleas court.
    Chittenden & Chittenden, for plaintiff in error.
    O. B. Snider, for defendant in error:
    A guardian may sell the'personal estate of his ward without an order of court. Laning E. L. 9821 (E. S. 6280); Jelke v. Goldsmith, 52 Ohio St. 499 [40 N. E. Eep. 167; 49 Am. St. Eep. 730].
    The bank acquired a good title, and is not required to see to the application of the purchase money. J elke v. Goldsmith, 52 Ohio St. 499 [40 N. E. Eep. 167; 49 Am. St. Eep. 730]; Strong v. Strauss, 40 Ohio St. 87.
    A guardian, unless his powers in this respect are restricted by statute, is authorized, hy virtue of his office, and without any order of court, to sell his ward’s personal property and reinvest the proceeds, etc. Maclay v. Equitable Life Assur. Soc. 152 U. S. 499, 503 [14 Sup. Ct. Eep. 678; 38 L. Ed. 528]; Lamar v. Micou, 112 U. S.'452 [5 Sup. Ct. Eep. 221; 28 L. Ed. 751]; Bank of Virginia v. Craig, 33 Ya. (6 Leigh) 399; Wallace v. Holmes, 9 Blatchf. 65 [29 Fed. Gas. 74]; Laning B L. 9812 (E. S. 6271) ; Field v. Schieffelin, 7 Johns. Ch. 150 [11 Am. Dec. 441] fYerger v. Jones, 57 U. S. (16 How.) 30 [14 L. Ed. 832]; Elliott v. Merryman, 1 Lead. Cas. Eq. 74, 110; Bank of Muskingum v. Carpenter, 7 Ohio (pt. 1) 21; Giles v. Pratt, 1 Hill (S. C.) 239 [26 Am. Dec, 170]; Mulford v. Stalzenback', 46 111. 303; Woodward v. Donnally, 27 Ala. 198; Clyde v. Simpson, 4 Ohio St. 445; Coonrad v. Coonrad, 6 Ohio 114; Story, Equity Sec. 1134 (Eedfield ed. Sec. 977a) ; Perry, Trusts Secs. 225,-795, 797, 814; Stall v. Cincinnati, 16 Ohio St. 169; Norman v. Towne, 130 Mass. 52; Goodwin v. Bank, 48' Conn. 550; Duncan v. Jaudon, '82 U. S. (15 Wall.) 165 [21 L. Ed. 142]; Foster v. Day, 27 N. j. Eq. 599.
    On the relation of attorney and client. Mechem, Agency Secs. 808, 809, 810, and 817; Jenney v. Delesdemier, 20 Me. 183; Curtis v. Richards, 40 Pac. Eep. 57 (Idaho); 3 Am. & Eng. Ene. Law (2 ed.) 347.
    The exact justice called for by the situation in this case is very appropriately expressed in Mulford v. Stalzenback, 46 111. 303.
   PARKER, J.

Electa R. Stagner, in 1894, was appointed guardian of the estates of her mionr sons, John David Stagner and Joseph "William Stagner, the former aged nine and the latter seven years. She received, something like $2,000 on their account, as- guardian, and $1,000 of that she loaned to one John Stagner, her father-in-law, who gave her therefor as guardian, his note, secured -by mortgage on property in East Toledo — the mortgage running to Electa. R. Stagner as guardian -of John David and Joseph William Stagner, minors. In 1897, ea'rly in the year, Mrs. Stagner removed with her minor children, her wards, to Newton county, Missouri, and on March 12 of that year she made application to the probate court of that county under the laws of Missouri, for letters of guardianship there, and on March 19, 1897, her petition was granted and her bond given and she was duly appointed as guardian. Thereupon, in pursuance of the law, she appears to have advised the probate judge of this county of what she had done in that behalf and forwarded to him the proper evidence of her action. This should have resulted in all of her affairs as guardian being transferred to that court.

It appears, however, that the final account or statement of her affairs was not passed upon by the probate court of this county so as to formally release her sureties here until early in the year 1898. The reason for its dragging along in the court here for several months is not apparent; this matter does not appear to have been attended to as promptly as it might have been. In the meantime, along in November, 1897, Mr. M. B. Lemmon, an attorney at law who was then practicing at this bar and claiming to act for her as her attorney, sold the note and mortgage that I have mentioned to the Merchant’s & Clerk’s Savings Bank Company, it being a 6 per cent note, on which some interest had accrued, and it paid for it something over $1,100, figuring the discount in such a way that it would stand to it as 7 per cent paper. Mr. Lemmon did not account to the guardian for all the money received from this sale; he accounted for about $600 of it; and the remainder he wrongfully appropriated to his own uses and he has not made the loss good to her, and, because of that, her Missouri bondsmen instituted an action in this court to recover from the bank the amount that the attorney had wrongfully appropriated, claiming that it was a part of the estate of the heirs and that the bank had not acquired a good title to this note and that it was not justified in paying the money over to Mr. Lemmon.

The bank, on the other hand, claimed that it had bought this paper in entire good faith supposing that Lemmon was authorized as her attorney, and that she, as guardian was authorized to dispose of the property and that therefore it ought not to be required to make the loss good; that the loss, in fact, should fall upon her. The bank invokes the principle that where one of two innocent parties must suffer from the fault or default of a third person, that one who put it in the power of such person to defraud, should suffer the loss rather than the other of the innocent parties. I may remark in passing, however, that it should be remembered that the real parties are not Electa R. Stagner on the one part, who it is claimed put it in the power of Lemmon to defraud, and the Merchant’s & Clerk’s Savings Bank on the other; if it were a question between them, the principle invoked would be applicable, but the real parties here, upon the one side are these wards who have not by any act of theirs and could not put it in the power of Lemmon to defraud themselves and on the other side the bank; so the case must be settled upon a different principle. The issues were made up in the court below and the case tried — that is to say, evidence was introduced, and then the judge of the trial court directed a verdict in favor of the plaintiff, upon the ground or theory that the bank had not introduced any evidence tending to support its defense.

Now there is a good deal of oral testimony and written evidence that bears upon the question of whether Lemmon in fact represented this guardian whether he was even authorized by this guardian to represent her, and a good deal of sharp conflict along that line, and a good deal of evidence as to the transactions between Lemmon and the bank and the action taken by the bank, through its officers to acquaint itself with the situation and to inform itself, in such a manner as to protect itself (and, perhaps, not'to do any wrong to anybody else), of inquiries made, investigations made, etc., and upon this it is claimed by the bank that the testimony shows that the bank exercised the best of faith, and because the evidence at least tends to establish that, it is insisted on behalf of the bank that the court should not have taken the case from the jury, but should have submitted the case to the jury. There is evidence tending to show that the bank exercised good faith, and, therefore it is for us to say whether it is a matter of any consequence — whether it is a question of good faith, whether the question of the bank having good faith should have been submitted to the jury, and whether if the jury found that the bank exercised entire good faith, that would have established a defense on the part of the bank.

In support of their contention that this would be and was a good defense, counsel for the bank have filed a brief, citing various' authorities, and among them the case of Jelke v. Goldsmith, 52 Ohio St., 499 [40 N. E. Rep. 167; 49 Am. St. Rep. 730], which holds,, in substance, that one buying notes and mortgages from an administrator in good faith and without notice that the administrator contemplates any wrong to the estate, is to be protected.

On the other hand, counsel for the plaintiff below, the defendant in error, amongst other authorities cites the case of Strong v. Strauss, 40 Ohio 'St. 87, which is a case where a guardian made a sale of the real estate of a minor ward and took notes of the purchaser, for the deferred payments, payable to his order as guardian and secured by mortgage upon real estate, and it was held that when the purchaser found such notes bearing on their face the marks of a trust fund he is put upon his inquiry, and if he buys them from the guardian under circumstances fairly indicating that they were sold against the interest of his wards, he gets no title from the guardian who misappropriates the proceeds of the sale. In the course of the opinion by Judge Dickman, this is said, on page 94:

“Instead of an unmistakable trust fund to be regarded as sacred, the defendant treated the notes in the hands of the broker as ordinary commercial paper. We do not think the notes in question should have been so classed. Made payable as they were to the order of William Rankin, guardian of the minors respectively named in the body of the notes, they could not have the unrestricted circulation of commercial paper, or bills of exchange and promissory notes negotiable by the law merchant. Far from being treated as commercial paper, bought before maturity, in the usual course of trade, for a fair value, we consider it the better rule, to hold the defendant as charged with notice of the peculiarly trust character of the notes, and as bound to exercise that high decree of caution in purchasing the same, which the protection of such trust funds demands.”

Counsel for the bank urges that even if that rule were applied here, they produced evidence at least tending to show that the bank officers exercised a high degree of care and caution and that herein their case differs from that of Strong v. Strauss, supra; that in that case it was found that the purchaser did not exercise care and caution in regard to the interest of the ward, whereas in the case at bar, it did so, and that the question of whether that was so' or not should have at least gone to the jury. And as a part of the evidence of the fact that the bank exercised good faith, it introduced in evidence a letter signed by Judge Millard, who was at that time the probate judge of this county, which appears to have been written by him about the time the notes were bought by the bank, dated Nov. 22, 1897, and which reads:

“Toledo, O., November 22, 1897.
Toledo Merchants & Clerks Savings Bank, Toledo, O. Gentlemen:
In the matter of the estate of the Stagner heirs, of which Mrs. Electa Stagner is guardian, I have to say that the guardian has removed from this state to Missouri, in Newton county, and that the proper papers have been transmitted to me from the probate court of Newton county; that Mrs. Electa Stagner has been appointed guardian of the children, John and Joseph, under the laws of Missouri.
Therefore the change of residence of the guardian necessitates the change of securities, and the transfer by the guardian, of the securities, to your bank, is ratified.
Very truly,
I. I. Millard, Probate Judge.

Now that letter, it seems to us, handed to one making inquiry about this matter, was well calculated to mislead, although if it is fairly considered and if the inquiry which I have suggested is pursued, it carries the information that by her removal from the state of Ohio her power as guardian under the appointment made in this state'have ipso facto ceased (Sec. 6272 Rev. Stat.) and that the whole matter of the management of the estate of these wards had been committed to the control of the courts of Missouri, and the declaration of the judge that he ratifies the sale that has been made, or is about to be made, is perfectly idle and worthless; for, notwithstanding the fact that he had not .yet entered upon the journal the entry which operated as a discharge of the bondsmen of the guardian here, he was apprised of the fact by the filing of the papers from the probate court of Missouri, that that court hád acquired jurisdiction over- the subject-matter, and what he says in this letter, though not exactly in that form, amounts to a statement of that 'fact.

The court below seems to have regarded the effort and the evidence tending to prove that the bank exercised good faith in the matter, as immaterial. If the question of the good faith or the bad faith of the bank were to settle the rights of the parties here, or fix their rights, then, clearly, the action of the court below was wrong in taking the case from the jury; but we are of opinion after consideration of this matter that the action of the court in directing a verdict for the plaintiff was right, because it is not a question of good faith or of bad faith at all, that is, not necessarily so. Under certain circumstances it might amount to that; if the probate court of this county had allowed the guardian to sell these securities without an order of the court while it still retained jurisdiction over the subject-matter then the question of good faith or bad faith might have been an important question in the case; but, upon looking into the laws of Missouri, as we read them and understand them, the guardian was without any authority whatever to sell these securities, and therefore, of course, the guardian could not confer any authority upon Lemmon, and an examination of this matter would have disclosed the fact to the bank and it cannot supply this want of authority — this entire absence of authority — by any exercise of good faith, no matter how great. I will call attention to certain of the provisions of the laws of Missouri upon that subject. Sections 3504 and 3496 Missouri Rev. Stat. were read to us in argument, and I read Sec. 3504:

“The probate court shall order the proper education, support and maintenance of minors, according to their means, and for such purposes may from time to time, make the necessary appropriations of the money or the personal estate or income of such minor not otherwise provided to be used; and when the money, income or personal estate of such minor shall be insufficient or not applicable to such objects, purpose or purposes, the court may order the lease or sale of the real estate of such minor, or so much thereof as may be requisite, or that said real estate be mortgaged for not less than two-thirds its real value, to raise the funds necessary to maintain, support and educate such minor.”

That section contemplates the making of an appropriation by the court for certain uses before the money is expended for such uses. Then Sec. 3466:

“The guardian of the person, whether natural or legal, shall be entitled to the charge, custody and control of the person of his ward, and the care of his education, support and maintenance; the curator shall have the care and management of the estate of the minor, subject to the superintending control of the court; and the guardian of the person and estate of the minor shall have all the powers and perform all the duties both of the guardian of the person and a curator. ’ ’

I should-have read that section first, as that is the natural order. Then I read Secs. 3510 and 3511 Missouri Rev. Stat. which seem to us 1¡o be more to the point and to be conclusive upon this question of want of authority:

3510. “When it shall appear that it would be for-the benefit of the ward that his real estate, or any part thereof, be sold or leased, or his personal property, or any part thereof, be sold, and that the proceeds be put on interest or invested in United States or state bonds, or in any other real estate, or in any other personal property, or in the preservation of the estate of the minor, the probate court may authorize and order such sale, leasing or investment. ’ ’
3511. “To obtain such order, the guardian or curator shall present to the court a petition setting forth the condition of the estate, and the facts and circumstances on which the petition is founded. If, after a full examination, on the oath of credible and disinterested witnesses, it appears to the court that it would be for’ the benefit of the ward that the personal estate, or any part of it, should be sold and reinvested or exchanged, the court may make an appropriate order for such sale and reinvestment or exchange, and thereupon the curator shall have the power to carry out such order in all its parts. And if, after such full examination, it appears to the court that it would be for the benefit of the ward that the real estate or any part of it should be sold or leased, the court may make an appropriate order for such sale or lease, under such regulations and conditions, subject to the provisions of this chapter in relation to the sale of the real estate of minors, as the court shall consider suited to the case, first requiring the guardian or curator to enter into good and sufficient bonds to make such leases and conduct such sales with fidelity to the interest of his ward, and faithfully to account for the proceeds of such sales and leases according to law, and as the order of the court may require, if the court shall be of the opinion that such bond is necessary. ’ ’

I have read the latter, part of the section to show that in Missouri the same care and formality is required with respect to the sale and reinvestment of personal estate as is required in the sale of real estate. Under that statute it seems to us entirely clear that the guardian had no right and no power to sell this security in the absence of and order from the court, and, therefore, the guardian could not confer authority upon the attorney to do it and that the sale having been made without authority the bank required no title to the securities and was liable as upon a conversion thereof. The question of the good faith or bad faith of the bank is a matter of no importance in the case. The judgment of the court of common pleas will be affirmed. ■

Hull and Haynes, JJ., concur.


author: PER CURIAM.

text:
    LANDLORD & TENANT — FORCIBLE ENTRY AND DETAINER.
    [Hamilton (1st) Circuit Court,
    January 27, 1905.]
    Giffen, Jelke and Swing, JJ.
    Martin Mack v. Albert Eckerlin.
    1. Notice of Tenant’s Election to Renew Must Be Given at ok Before Term Expibes.
    Notice of the tenant’s election to renew must he given at or before the expiration of the term, under a lease containing a privilege of renewal at the expiration of the term.
    2. Judgment of Magistrate in Forcible Detainer Cannot Be Reversed Because Against Weight of Evidence (Lan. R L. 10192; R. S. 6610).
    Under Lan. R. L. 10192 (R. S. 6610), a reviewing court is not authorized to reverse the judgment of a justice of the peace in an action of forcible entry and detainer, upon the ground that it is not sustained by sufficient evidence.
    3. Notice to Leave Premises Held to Be an Implied Promise for Further Occupation, When.
    The provision, “that your compliance with this notice on May 14, 1904, will prevent legal measures being taken by me,” contained in a notice to leave premises, which was served on the tenth day of the month, may amount to an implied promise that the tenant may leave the premises on the fourteenth, but, being unsupported by any consideration, is not binding upon the landlord; and, in such case, an action of forcible entry and detainer may be commenced after three days from service of the notice.
    Error to Hamilton common pleas court.
    Closs & Leubbert, for plaintiff! in error.
    N. J. Utter, for defendant in error:
    As to tbe distinction between the extension and renewal of a lease. 18 Am. & Eng. Enc. Law (2 ed.) 692; Benond v. Daskam, 34 Conn. 512; Shamp v. White, 106 Cal. 220 [39 Pac. Rep. 537]; Thiebaud v. Bank, 42 Ind. 212; Darling v. Hoban, 53 Mich. 599 [19 N. W. Rep. 545]; Cooper v. Joy, 105 Mich. 374 [63 N. W. Rep. 414]; Falley v. Giles, 29 Ind. 114; Bradford v. Patten, 108 Mass. 153; Atlantic Nat. Bank v. Demmon, 139 Mass. 420 [1 N. E. Rep. 833]; Hemphill v. Flynn, 2 Pa. St. 144; Schuyler v. Smith, 51 N. Y. 309 [10 Am. Rep. 609]; Skaggs v. Flkus, 45 Cal. 154; Worthington v. Bolling. Mill, 6 Dec. Re. 1038 (9 Am. L. Rec. 693; 6 Bull. 235) ; M’Alpine v. Swift, 1 Ball & B. 285; Elevator Co. v. Brown, 36 Ohio St. 660; Maxwell v. Ward, 13 Price 674; Gladwell v. Holcomb, 60 Ohio St. 427 [54 N. E. Rep. 473 ; 71 Am. St. Rep. 724]; Griffin v. Griffin, 10 Sch. & Lef. 352; Bailway v. West,
      57 Ohio St. 161 [49 N. E. Rep. 344]; London {City) v. Mitford, 14 Yes. Jr. 41.
    Notice to vacate may be served either before or after the expiration of the term of a lease. Leutzey v. Herchelrode, 20 Ohio St. 334; Hoveler v. Luhrmann, 4 Dee. 149 (3 N. P. 224).
    This court will not consider the weight of the evidence, but only its competency. Laning R. L. 10192 (R. S. 6610); State v. Wood, 22 Ohio St. 537.
   PER CURIAM.

The original action was one in forcible detainer in which the justice of peace awarded judgment of restitution of the premises to the defendant in error. To that judgment error was prosecuted to the court of common pleas, and to that judgment of affirmance, error is now prosecuted in this court.

The defendant in error leased to the plaintiff in error. certain premises for a term of three years, commencing May 1, 1901, “with the .privilege of renewal at the expiration of the said three years for another three years at the same rental. ’ ’

The first alleged error is that the notice to quit the- premises was not served at least three days before commencing the action.

The notice was served on May 10, 1904; the suit was commenced on May 14, 1904. Laning R. L. 10184 (R. S. 6602) requires only that the notice shall be served at least three days before commencing an action. In this case that was done but it is contended that in the notice it was stated that “your compliance with this notice on May 14, 1904, will prevent legal measures being taken by me.” This may be an implied promise that the tenant would be required to leave the premises on May 14, but it is not binding upon the promisor for the reason that it is unsupported by any consideration.

It is also contended that, under this lease no notice was required of the intention of the tenant to renew the lease, but under the terms of this lease, we think the notice of the tenant’s election to renew the lease should have been given at or before- the expiration of the term. 18 Am. & Eng. Enc. Law (2 ed.) 692.

We are asked also to review the weight of the testimony upon the question whether the lease was in fact renewed by the acceptance of rent for a term of six months after the expiration of the term.

, Under Lan. R. L. 10192 (R, S. 6610), a reviewing court is not authorized to reverse the judgment Upon the ground that it is not sustained by sufficient evidence. State v. Wood, 22 Ohio St. 537.

Judgment affirmed.


author: JELKE, J.

text:
    RAILROADS — NUISANCE—INJUNCTION.
    [Hamilton (1st) Circuit Court,
    February, 1905.]
    Jelke, Swing and Giffen, JJ.
    Margaret O. Ross et al. v. Cincinnati, L. & N. Ry.
    1. Railroad Cannot Subject Property Owners to Legal Nuisances.
    A steam railroad company bas no right or authority, in the operation of its road, to subject adjacent property owners to any kind of a nuisance, cognizable by law, for its own convenience or advantage.
    2. Noise, etc., From Operation of Railroad not Legal Nuisance, When.
    On the state of facts in this casé noise, Smoke and offensive vapors which naturally arise from and are necessarily incident to the proper operation of a steam railroad at its terminals, do not constitute a nuisance cognizable by law, such as will warrant a court of equity in granting an injunction against its continuance on complaint of abutting residence owners, where there is no charge of negligence against the company, or that it acted in bad faith and failed to exercise due care in locating its terminals; the annoyances arising in such a case are damnum absque injuria.

    3. Injunction not Issued When Complainant’s Rights in Doubt.
    Where there is doubt as to whether or not certain acts constitute a nuisance cognizable by law, or an illegal trespass upon the rights of complainant, an injunction will not be granted until the rights of complainant are ascertained and defined in an action at law.
    C. E. Tenney, for plaintiffs.
    Maxwell & Ramsey, for defendant.
   JELKE, J.

The plaintiffs herein, Margaret O. Ross, Ella R. Tenney, L. J. Goldman and S. M. McKenzie', are the owners of lots and lands abutting on the north side of Beecher street, Walnut Hills, between Gilbert avenue and the right of way of the Cincinnati, Lebanon & Northern Railway Company, the defendant herein.

The defendant railway company having secured from the city of Cincinnati permission to cross Stanton avenue, has- built a large number of tracks on the property immediately in the rear of plaintiff’s property, that is, adjoining it on the north on the low ground, being between thirty and forty feet below the rear of complainants ’ premises at the east running out to almost nothing where it crosses Stanton avenue. These tracks are provided and used by the defendant railway company as terminals for the receipt and discharge of freight, most of this being of a heavy nature and in car-load quantities.

It is alleged that the backing and switching of cars upon these tracks by reason of the noise, smoke, and noisome vapors coming from the locomotives, is an intolerable nuisance to complainants’ residences on Beecher street, their property being improved by dwellings of a beautiful and substantial character. It is admitted, however, that the railway company is not negligent in the operation of its locomotives and in the handling and switching of its cars, and that it does not create any more noise, smoke, soot, or offensive vapors than is necessarily incident to the proper use of its trains and for the purposes for which said terminals were built.

There is no doubt -if that which the defendant railway company is doing is an illegal trespass upon the property rights and comfort of plaintiffs, that a court of equity will enjoin the same. It is contended, however, on behalf of the defendant company, that unfortunate as this may be and offensive and as much of a nuisance as it may be to complainants, it is nevertheless unavoidable, and incidental to the transaction of its railway business and the performance and doing those things as a quasi public corporation, for which it is chartered and enfranchised to do, and that the things complained of are damnum absque injuria.

A large number of cases have been cited by counsel for plaintiff, with the leaders which bring out the principles underlying the parties’ respective rights:

Baltimore & P. Ry. v. Baptist Church, 108 U. S. 317 [2 Sup. Ct. Rep. 719; 27 L. Ed. 739]; Chicago & G. W. Ry. v. Methodist E. Church, 102 Fed. Rep. 85; both of which cases were considered by this court in the case of Cincinnati Connecting Belt Ry. v. Burski, 26 O. C. C. 486.

No case exactly like the case at bar has been cited to us. "We begin with the statement that the railway company has no right to subject an adjacent property owner to any kind of a nuisance, be it of noise, or dirt, sufficient to be cognizable at law, for its own convenience, interest, or advantage.

It is recognized that the operation of a main line of a railroad, either in a public street or on its own private right of way is more or less of a nuisance to all the abutting and adjacent property which it passes, but for reasons of public necessity, the courts have refused to recognize such nuisance as being a nuisance, cognizable by the law. It is said that the law must shut its eyes to the wrong, such as it may be, perpetrated upon these abutting property owners, else the building, maintenance and operation of railroads would be impossible, and that hence whatever such property owners may suffer, is said to be damnum absque injuria.

The United States Supreme Court in the case of Baltimore & P. Ry. v. Baptist Church, supra, compelled the railroad company to remove its roundhouse, and shops from the vicinity of the Fifth Baptist Church, for the reason that the railroad company could maintain its roundhouse and shops some place else, and it made no difference at what inconvenience or disadvantage to the company. The same was true of the hydrant and station involved in Chicago & G. W. Ry. v. Methodist E. Church, supra. There was ho uncertainty in the court’s expression as to the hydrant, but the court was not so clear as to the legal status of the passenger station, but inasmuch as the station and hydrant were joined and confused, the court enjoined the whole matter. The question then herein involved is, are the terminals of a railway, which are necessary to properly serve the public, for the service of which the railway company is chartered and permitted to operate, different in character, before the law, from its main tracks ?

Of course it is clear that a railroad would not be a railroad, and so far as serving the public is concerned, would be an empty and vain thing, without terminals reasonably convenient and accessible for the shipping public. One can also well conceive the main line of a railroad with three, four or five parallel tracks operating so many trains, as to actually be as much or more of an annoyance than a terminal yard.

In the consideration of this ease, the court assumes because there could be no object in the railroad or anybody doing otherwise, that the site of these terminals has been selected in good faith and with due consideration for the receiving and shipping public. It is what the public needs and requires, that furnishes whatever saving grace there may be, if any, to the railroad. The railroad on its own account, receives no consideration. The court will not listen to complainants’ saying that these terminals might just as well be located a mile further out in the country or a half mile further into the city, because the same questions could there arise and the naked legal question as to such terminals must at some place be met.

In the absence of all charges of negligence or want of due diligence in the selection of a location or bad faith, we incline to the view that these terminals must be put on the same footing as the main tracks of a railroad, and that the nuisance and annoyance they may inflict, must be said to be damnum absque injuria.

Further, there are other elements involved in this case which lead us to somewhat resolve our doubts against the complainants. The relative topographical situation of complainants’ and defendants’ property happens to be a little fortunate. It makes the nuisance not quite so bad as it might be, on account of the elevation of the sites of these handsome residences and their distance away on their spacious lots, so that if they have a separate property right which is injured and entitled to protection, we would be.compelled practically to hold that the same is true of nearly all the property within a quarter of a mile radius of these terminals, which would make the establishment of terminals and the convenience of unloading and receiving freight practically prohibitive, and be a denial to the public of one great, modern utility.

There is another ground which would justify the court in denying an injunction, and that is, the court being in doubt as to the legal quality of the acts done by the defendant railway company and complained of by complainants, that until the exact character of the same is established in an action at law, a court of equity should be slow to intervene by injunction.

Injunction in cases of nuisance is permitted on account of the continuous nature of the aets which are legal trespasses and to prevent a multiplicity of suits. There being a good deal of- doubt as to whether the things done here are in fact a nuisance, cognizable at law, or an illegal trespass upon the rights of complainants, the court is inclined to think that it should withhold an injunction until these rights are ascertained and defined in an action at law.

An injunction will therefore be denied.

Swing and Giffen, JJ., concur.


text:
    STREET RAILWAYS — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    January, 1905.]
    Giffen, Jelke and Swing, JJ.
    Cincinnati, L. & A. Elec. St. Ry. v. George H. Lohe, Admr.
    1. Standing on Platform of Interurban Cab, While Running Through Open Country, not Proximate Cause of Injury, When.
    Where a passenger on an interurban railway car was thrown therefrom and ' killed by the derailing of the car while running through the open country, the fact that he was standing on the platform at the time cannot be held to be the proximate cause of his death, when the evidence does not disclose that there was available or reasonably convenient room on" the inside of the ear; that the injury would not have happened had he been on the , inside; that he had notice of a sign prohibiting passengers from standing on the platform; or that he was ordered inside the car by the company’s servants, and refused to go.
    2. Court May Declare Conduct Negligence Per Se, When.
    The court may find as a matter of law that certain conduct constitutes com-tributary negligence per se, when it is such an act that all men must con-' elude that it was the proximate cause of the injury complained of.

      Error to Hamilton common pleas court.
    Peck, Shaffer & Peck, for plaintiff.
    A. V. Benedict, for defendant.
   JELKE, J.

The law of Ohio, and particularly the law in this case, was laid down by the Supreme Court, when this same case was before it, and is reported in the Cin. L. & A. Elec. St. Ry. v. Lohe, 68 Ohio St. 101 [67 N. E. Rep. 161]:

“1. An interurban electric railroad is classed as a street railroad by the statutes of this state.
“2. While such interurban railroad companies- are subject to the same regulations, and have all the powers of street railroad companies, so far as applicable, the law of negligence .governing the standing on a platform of a moving street car in a municipality, is not applicable to the case of standing on such platform of a moving interurban car in the open country.
“3. The law of negligence governing the standing on a platform of a moving interurban car outside of a municipality, is the same as in the case of steam cars; and where a rule of the company prohibits passengers from standing on the platform, * * * or where the passengers upon request refuse to enter the ear, there being in either case vacant seats, they may remain on the platform at their peril.
“4. In a contract for safe carriage there is.an implied agreement that the passenger will obey the reasonable rules 'of the carrier; and where the passenger purposely violates such rule, and is thereby injured, he cannot recover damages from the carrier in an action on the contract. ’ ’

After such reversal, the case was remanded to the court of common pleas and there tried again, resulting once more in a verdict for the plaintiff, Lohe, administrator; upon which the court rendered judgment, error to which is now prosecuted to this court.

If the case as submitted to the jury at this recent trial is substantially the same case as was contained in the record which went to the Supreme Court, the verdict below cannot be sustained, as the same conclusion must be reached as was reached by the Supreme Court.

An examination of the record shows that at this hearing the testimony presented a somewhat different case and developed issues of fact on all the matters found proven or assumed by the Supreme Court in its opinion.

Probably in mew of the Supreme Court’s opinion counsel in presenting his case emphasized whatever of dispute there was in these issues of fact. In this second trial, the whole first half of the case was eliminated by an agreed statement in regard to the alleged negligence of the defendant, The Cincinnati, Lawrenceburgh & Aurora Electric Street Railroad Company, which was as follows:

“For the purpose of facilitating the trial of this case, it is hereby agreed that neither party shall offer any evidence whatever on the question of the negligence of the defendant, that is, the railroad company, but that question shall be considered and determined as though the plaintiff had offered sufficient evidence to establish the allegations of the petition as to the negligence of the defendant. This agreement not to limit the right of either party in the offer of evidence as to any or all other questions .in the case. ’ ’

It appears in the testimony that the decedent, William Lohte, was standing upon the platform of defendant’s car at the time when the car was derailed. It is claimed on behalf of the plaintiff that he was there because there was no available or reasonably convenient room in the car, and that being there under these circumstances, it was not negligence per se.

When last before the Supreme Court, the court said, page 111:

“In the case at bar the deceased was ordered into the ear by the conductor, and requested to go in by the assistant conductor, there were vacant seats inside, a sign was up, ‘Passengers not allowed on the platform, ’ and yet he remained on the platform because he wanted to smoke a cigar.”

In the case of Cincinnati, D. & T. Trac. Co. v. Kent, 27 O. C. C. 000, this court following the decision of the Supreme Court in Cin. L. & A. Elec. St. Ry. v. Lohe, supra, and the case of Hickey v. Railway, 96 Mass. (14 Allen) 429, which our Supreme Court approved, held that it was negligence for a passenger to voluntarily and unnecessarily stand upon the platform of an interurban car when there was standing room inside.

The first proposition of the syllabus in Hickey v. Railway, supra, is:

“A traveler by railroad cannot maintain an action against a railroad company to recover damages for a personal injury sustained by him in consequence of his voluntarily and unnecessarily standing upon the platform of a passenger car, while the train is in motion. ’ ’

As the case was submitted to the jury at 'this latter hearing, there was conflicting testimony on this issue as to whether or not there was standing room within the ear. It' appears that parties boarded this car and subsequently found seats. Most of these parties, however, were ladies, and it. does not appear whether they found vacant seats or • whether they secured seats through the gallantry of gentlemen who surrendered their seats to them. Just how crowded this car was and whether dr not standing room within was reasonably available or could be conveniently obtained, is .a mixed and doubtful question involving many elements of fact, which must, by its nature, have been submitted to the jury, as it was in this case. In the Ohio Law Bulletin for January 2, 1905, there is reported a ease by the Illinois supreme court, October 24, 1904, Chicago & W. I. Ry. v. Newell, 50 Bull. 2 (72 N. E. Rep. 416), wherein it is said:

“1. Where a railroad train was so crowded with passengers that some of them were standing on the platform, and the train rounded a curve at the rate of twenty-five or thirty miles an hour, and a passenger whs thrown off, in an action for his injuries it could not be said as a matter of law that there was no negligence in so operating the train.
“2. Where a passenger was injured by being thrown from the platform of a railroad train as it rounded a curve, in an action for the injuries, it appearing that neither seats nor standing-room in the cars could be conveniently obtained, it was a question for the jury whether plaintiff was guilty of contributory negligence.”
“Ordinarily, it is prima facie evidence of negligence for a passenger to stand or ride upon the platform of a moving railway train; but where, as the evidence tends to show in this case, neither seats nor standing room in the cars could be conveniently obtained, it became a question of fact for the jury whether the plaintiff was guilty of contributory negligence by being upon- the platform from which he fell. It is only when the inference of negligence necessarily results from the statement of facts that the court can properly instruct the jury that such facts establish negligence as a matter of law. Standing or sitting upon the platform or steps of a railway car when the train is in motion, although it may be prima facie evidence of negligence, is not, under all circumstances, negligence per se and as a matter of law. ’ ’

If submitted to us de novo we would be inclined to find on the testimony contained in the record that there was sufficient standing room within the ear not to justify the deceased, Lohe, in standing where he did upon the platform. But we are not prepared to hold that a finding on this issue by the jury is manifestly against the weight of the evidence. It was stated as a fact in the opinion of the Supreme Court before that the conductor and the assistant conductor had requested the deceased, William Lohe, to go inside. This fact is also put in issue at this latter hearing in the common pleas court. One of these men weakened somewhat in his testimony and there was evidence tending to contradict any such request on the part of either of them by witnesses who stood beside the conductor and assistant conductor and the said William Lohe, and testified that they did not hear either of them make such a request.

Again, in the former hearing, it appears unchallenged, that there was a sign up, “Passengers not allowed on the platform.” In the syllabus in Cin. L. & A. Elec. St. Ry. v. Lohe, supra, the court says:

“Where the passenger purposely violates such rule, and is thereby injured, he cannot recover damages from the carrier in an action on the contract.”

It appears from the record that this railroad had been in operation but a few days prior to the happening of this accident, and that at noon of the day upon which the accident happened, the company, for the first time, promulgated the rule against passengers standing on the platform, by putting up the sign as claimed. There is no other testimony tending to bring home knowledge of this rule to the deceased, William Lohe, other than by the hanging up of'the sign. On the other hand, there is testimony tending to show that from the time the road began operation, that the platforms were frequently and almost usually crowded, and that the said William Lohe lived upon the line of this railroad where he would probably observe this custom at least to the extent that the practice had been tolerated during the short period of operation of the road.

It does not appear that said William Lohe as a fact did see this sign, but it would be a question to be left to the jury, in view of the size and character of the sign, its location, the crowd upon the car and upon the platform, whether a reasonable man in the exercise of ordinary caution and care and observation, would or ought to have seen it; and it is possible for the jury to have found that in view of all the facts and circumstances shown in this record that the said William Lohe did not see this sign and did not know of the rule aforesaid.

As the case was submitted to the jury at this last hearing there is left open the entire question of proximate cause, — be it what it may —whether or not, it contributed to his fatal injury.

The court may find as a matter of law that certain conduct constitutes contributory negligence per se, when it is such an act that all men must ■ conclude that it was the proximate cause of the injury. Here, however, the question is somewhat obscure and left in the domain of issues of fact upon which there is conflicting testimony.

It appears that the deceased William Lohe was found under the platform of the car, with the handle rail resting across but not touching his neck. It is true that he probably could not have been in this position had he not been upon the platform, and yet this is not indisputably so, because it appears that one other passenger who stood inside the car but near the door was precipitated out upon the platform and likewise fell partially under the car and had his leg broken. Neither is it certain that said William Lohe was killed by the car falling on him. He may have been killed inside the vestibule by part of the car striking him; he may have been killed by striking the ground; or he may have been killed by the car and the handle rail falling upon him. The Supreme Court takes as its basis of fact in the former case, and states:

“Those inside the car escaped without injury. If he had gone inside when ordered to do so, the presumption is that he too would have escaped. ’ ’

It now appears at this hearing' on the contrary that there was a lady within the car who was severely injured and who subsequently died, and others within the car were badly shaken and some injured. This being true, may not the jury have found that even had the said William Lohe taken the most available place within the car which might have been near the door, that the accident might have happened, or would have happened, with precisely the same results.; that therefore the fact that the deceased, William Lohe, was upon the platform, was not the proximate cause of the injury. Thus we see that the four elements of fact which were assumed and adopted as the basis of the Supreme Court’s decision, are all in this latter trial put at issue in such a manner that the jury could find for the plaintiff, and the record is such that the trial court and this court may well shrink from saying it is so manifestly against the weight of the evidence as to justify setting the verdict aside.

We are therefore of opinion that if we do not disturb the finding of the jury upon any of these issues of fact which at this last trial were open and submitted to the jury, there is nothing in their verdict or the judgment of the court below inconsistent with the principles of law laid down by the Supreme Court, when this case was before them, and we are therefore constrained to affirm the judgment.

Giffen and Swing, JJ., concur.


author: SULLIVAN, J.

text:
    WILLS — TRUSTS.
    [Franklin (2nd) Circuit Court,
    February 20, 1905.]
    Dustin, Wilson and Sullivan, JJ.
    Elmore J. Swerer v. Ohio Wesleyan University (Tr.).
    1. Intention of Testator Governs in Construction of Wills, etc.
    In the construction of wills, the intention of the testator governs; rules of interpretation are valuable only in so far as they aid in ascertaining that intention.
    2. Immediate Vested Interest in Land Given Under Will, Although Control Given to Trustee, When.
    An immediate vested interest in real estate, with the possession only delayed until a future time, is given by a will which devises the property to the devisees named, although the possession and control thereof is given in trust to the executor for a term of years, but during which time, however, the devisees are to have and enjoy all the benefits that could arise out of the bequest while the control is in the trustee.
    Appeal from Franklin common pleas court.
    L. H. Innis, for plaintiff;.
    J. T. Holmes, for defendant.
   SULLIVAN, J.

The contention in this case is between the trustees of the university and the judgment creditors of Bert L. Rees, all of whom are defendants in the action. It is, whether the trustees or the said judgment creditors are entitled to the funds now in the sheriff’s hands arising from the sale of the realty, for the partition of which the action was brought by the plaintiff. The amount in hands of sheriff is the net one-half of the sum for which the premises were sold. The solution of the question between the parties depends upon the construction to be given to item 4 of the last will of the late Huida R. Huffman which reads as follows:

“I give, devise and bequeath to my grandson, Bert L. Rees, and to my grandson Walter B. Huffman, share and share alike, my home property situated on the southwest corner of Lexington avenue and Mount Vernon avenue in the following manner, to wit: My executor hereinafter named is to have and to hold the same in trust for the term of ten years; to collect the rents arising therefrom and out of such rents to pay all taxes, insurance and assessments and repairs thereon and expenses, and to pay the net balance of such income equally to my two grandsons aforesaid or the lawful children of such grandchildren in case of the death of either or both of said grandsons before the expiration of said ten years, and at the expiration of said ten years after my decease, my executor shall turn over to my said grandsons or in case of , the decease of either of said grandsons before said term of ten years shall have lapsed without lawful issue of said decedent then the share of such grandson to go to the surviving grandson and to his heirs and assigns forever, said real estate situated in Columbus, Ohio.”

The will of the testatrix was executed on January 16, 1891. She died February 6, 1891, and the will was admitted to probate February. 14, 1891. The plaintiff as grantee of the grandson, "Walter B. Huffman, • filed in the common pleas court his petition for partition April 23, 1901. The university claims the funds in the hands of the sheriff under a deed executed and delivered to its trustees for the undivided one-half of the premises by Bert L. Rees on January 30, 1897.

The dates of the judgments 'of the several creditors of Burt L. Rees are not disputed. It is conceded by counsel representing the university, that said judgments were valid liens upon the undivided one-half of the realty devised by item 4 if an estate therein vested at the death of the testatrix in Bert L. Rees, and therefore prior to any interest or estate in said premises conveyed by the deed to it by said Rees of date January 30, 1897. '

“In the construction of wills the intention of the testator must govern.” This intention must be ascertained from the language of the instruments as applied to the subject-matter and in whatever language the devise is expressed. If the disposition itself be not’ unlawful, it must follow the ascertained intent. Every case stands upon the-evidence of the testator’s intention arising out of each will, and whilst the value of rules of construction when confined to their proper office cannot be overestimated, they are simply to be resorted to as a means to aid in arriving at the intention of the testator. Where the essential data do not correspond, the terms of the will, the subject-matter and the material relations and surroundings attending the cases, it will not do to make one case unquestioned the standard for the decision of another.” Hence in the construction of this will the rules of interpretation are valuable only in so far as they aid in ascertaining the intention of the testatrix.

All of 'the several devises of the will are direct to the grandsons, Burt L. Rees and Walter B. Huffman, except they are not equal, Burt L. Rees receiving the greater share of the estate. ' By item 2, Burt L. Rees is upon the death of the testatrix to have the immediate possession of the articles therein named. This is also true as to the articles named in’ item 3 of the will. In item 4 the testatrix uses the same identical language namely: “I give, devise and bequeath to my said grandson, Burt L. Rees,” and to my grandson, Walter B. Huffman, share and share alike, my home property and in item 5 the disposition of property therein devised, is to the grandsons the same as in item 4, except as to the time when they are to have possession. By item 7, the testatrix uses the same language, “I give, devise and bequeath to my grandson, Burt L. Rees,” his heirs and assigns forever the realty therein described, and by item 6 the testatrix gives, devises and bequeaths to the grandsons, Burt L. Rees and Walter B. Huffman, all the rest and residue of her estate both real and personal. No other persons except these grandsons, it seems from the will itself, were in the mind of the testatrix whom she desired should have her estate, unless the fact that in items 4 or 5 where she provides that in case of the death of one or both of the grandsons before the expiration of the time therein stated, that the'share of the deceased grandson should go to his children, and if one should die without children, then the share of the deceased grandson should go to the survivor, children and to his heirs forever.

It will be noted first, that the devises, under items 4 and 5 are not to the trustee but direct to the grandsons. From this alone we think it is apparent that the testatrix intended to give the grandsons an immediate vested interest therein, and intended simply to delay the possession thereof until a future time. This view we think is justified by the fact that the grandsons are to have and enjoy all the benefit that could arise out of the bequests whilst the control thereof was in the trustee. It is further to be borne in mind that the bequest in item 4 is real estate and hence does not fall within the line of those cases where the bequests are those in the direction to pay or distribute at the expiration of a period named as was the devise in the case of Richey v. Johnson, 30 Ohio St. 288, and relied upon by counsel for the university as the controlling authority in the case at bar.

In that ease the executors were directed to sell the testator’s farm after death of the widow and to distribute the proceeds arising from the sale equally among his brothers arid sisters living at that time, and to the children of such as had died before the death of the widow. We are, therefore, of the opinion, that the grandsons, Rees and Huffman, took a vested estate in the real estate devised by item 4, and in consequence thereof, the liens of the judgment creditors of Burt L. Rees are superior and prior to any interest or estate, that the university took under the deed to it, and a decree may be so drawn.

Dustin and Wilson, JJ., concur.


author: WINCH, J.

text:
    PLEADING — TRIAL—AMENDMENTS.
    [Cuyahoga (8th) Circuit Court,
    November 7, 1904.]
    Hale, Marvin and Winch, JJ.
    William W. Hazzard v. John B. Wallace.
    Amendment of Petition to Conform to Facts Proved Substantially Changing Plaintiff’s Claim Properly Refused.
    It is not error to refuse leave to file an amended petition conforming to the facts proved at the trial, where the amended petition offered for filing substantially changes the plaintiff’s' claim. Laning R. L. 8629 (R. S. 5114).
    Error to Cuyahoga common pleas court.
    Blandin, Rice & Ginn and William Howel, for plaintiff in error.
    Squires, Sanders & Dempsey, for defendant in error.
   WINCH, J.

Plaintiff filed his petition against defendant in the common pleas court alleging in substance that on a certain day defendant for a valuable consideration agreed to buy of plaintiff thirty shares of stock in a certain corporation and pay therefor $3,000, tender of the stock by plaintiff and refusal of defendant to pay. Further alleging that he at all times has been and still is willing to deliver said stock on payment of said sum, plaintiff asked judgment in the sum of $3,000.

The answer was a general denial, and a jury being waived, the issues thus made were tried to the court. After the introduction of the plaintiff’s evidence, the defendant made a motion to arrest the evidence and render judgment for the defendant, and said motion being argued and submitted to the court, the court expressed its opinion that the evidence did not make a ease entitling the plaintiff to recover under the allegations of the petition; thereupon the plaintiff requested the court to consider the case upon the evidence as if the petition were amended to conform to the facts proved, which application the court then and there allowed; and thereupon the plaintiff applied to the court for leave to amend the petition to conform the same to the facts proved; which application was sustained and plaintiff submitted to the court an amended petition in the cause and asked leave of the court to file the same; which application the court refused for the reason, as stated in the journal, “that the same did not in the judgment of the" court conform to the facts as proved by the evidence in the case and for no other reason whatever, ’ ’ to which refusal plaintiff excepted. Thereupon defendant again moved the court for judgment in his favor, which motion was sustained and judgment for Mm rendered. Proper exceptions being taken, bill of exceptions was prepared and tbe matter brought to this court for review.

Upon the argument here it was conceded by counsel, or at least, it clearly appears from the record, that plaintiff upon the evidence adduced by him was not entitled to judgment under his original petition. The amended petition which plaintiff requested leave to file, in substance sets forth that, upon the formation of the corporation whose stock is in question, plaintiff was requested to take fifty shares; that, defendant being interested in the promotion of the company, plaintiff inquired of defendant if he would take thirty of said shares from plaintiff at par if plaintiff took the fifty shares, to which defendant agreed; thereupon plaintiff contracted for the fifty shares, afterwards paid for and received them, but defendant refused to comply with his agreement to take the thirty shares; that said thirty shares were really of the value of only $2,250 and that by reason of the breach of defendant’s contract plaintiff was damaged in the sum of $750.

It is manifest that the amended petition set up an entirely different cause of action from that set up in the original petition. Such being the case, did the court err in refusing leave to file it?

Laning R. L. 8629 (R. S. 5114), provides that:

‘ ‘ The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim of defense, by conforming the pleading or proceeding to the facts proved. ’ ’

Manifestly the amended petition was offered under favor of the last clause of the statute quoted. As it substantially charged the plaintiff’s claim, the court had no right to allow it to be filed. For this reason there was no error in refusing leave to file the amended petition offered. The fact that the trial judge gave another reason for his refusal is immaterial, (Palmer v. Yarrington, 1 Ohio St. 253), and whether or not the amended petition was in accordance with the facts proved at the trial and made a cause of action, need not be considered.

The cause of action set up in the amended petition was entirely different from the cause of action upon which the parties went to trial, and whatever its merit, it could not be considered in that trial.

Finding no error in the record, the judgment is affirmed.

Hale and Marvin, JJ., concur.


text:
    WAIVER — AFFIDAVITS OF BIAS AND PREJUDICE.
    [Hamilton (1st) Circuit Court,
    January 27, 1905.]
    Giffen, Jelke and Swing, JJ.
    Carrie Burns v. George W. Burns.
    Party Deemed to Have Waived Affidavit of Bias aiíd Prejudice by Attorney’s Waiver, etc.
    A party to an action will be deemed to have waived an affidavit of bias and prejudice filed by her against the trial judge, when she stands by, and without objection or protest allows her attorney to state in open court that the affidavit was waived, that the case would be tried to the- judge on the facts, and that he would not agree to appear in the case until his client consented to waive the affidavit.
    Error to Hamilton common pleas court.
    Allen Andrews, for plaintiff in error:
    Laning R. L. 876 (R. S. 550) disqualifies a judge to sit in a ease when an affidavit has been filed by a party setting forth the fact of bias and prejudice or disqualification. State v. Shaw, 43 Ohio St. -324 [1 N. E. Rep. 753]; State v. Wolfe, 6 Circ. Dec. 118 (11 R. 591).
    Where the judge is disqualified to sit in a case, such disqualification cannot be waived by even the consent of the parties. Oakley v. Aspinwall, 3 N. Y. (3 Comst.) 547; Chambers v. Hodges, 23 Tex. 104; Dallas v. Peacock, 89 Tex. 58 [33 S. W. Rep. 220] ; Hibbard v. Odell, 16 Wis. 633; Hall v. Thayer, 105 Mass. 219; Taylor v. Worscester Comrs. 105 Mass. 225; Moses v. Julian, 45 N. H. 52 [84 Am. Dec. 114]; Foot v. Morgan, 1 Hill (N. Y.) 654; Edwards v. Bussell, 21 Wend. 63; Converse v. McArthur, 17 Barb. 410; White, Estate of, 37 Cal. 190; New-come v. Light, 58 Tex. 141 [44 Am. Rep. 604] ; 3 Am. & Eng. Enc. Law (2 ed.) 345, 353, 356, 357; Jenkins v. Gillespie, 18 Miss. (10 Smed. & M.) 31 [48 Am. Dee. 732] ; Wabash, St. L. & P. By. v. McDougall, 126,111. Ill [18 N. E. Rep. 291; 9 Am. St. Rep. 539]; Dickerson v. Hodges, 43 N. J. Eq. 45 [10 Atl. Rep. Ill]; Howe v, Lawrence, 22 N. J. Law (2 Zab.) 99; Clark v. Banclall, 9 Wis. 135 [76 Am. Dee. 252]; 4 Cye. 535; Warwick v. Marlatt, 25 N. J. Eq. 188; Spaulding 'v. Allen, 10 Circ. Dec. 397 (19 R. 608).
    C. W. Baker, for defendant in error.
   PER CURIAM.

The plaintiff in error claims that the trial judge had no jurisdiction of the ease, for the reason that she had, prior to the day of trial, filed an affidavit to the effect that the judge was prejudiced against her.

Upon the day of trial she appeared with her counsel, who stated to the court in her presence:

“That he wished it distinctly understood that he was not going to have any more nonsense about the previous attempt at swearing the judge off the bench by reason of the affidavit filed January 8 by the defendant,'but that all that was waived by the defendant through him, her counsel, as well as were the affidavits that had been filed swearing. Judge Smith off the bench by Mrs. Burns, anil that he and his client proposed to try the case on the facts to Judge Smith then and there. ’ ’

He also stated:

‘ ‘ That he would not agree to appear in the case and act as counsel for Mrs. Burns until Mrs. Burns agreed and consented to waive the affidavit that she had filed swearing Judge Smith off the' bench, and agreed to submit the case to Judge Smith for trial and determination.”

This is not a waiver by counsel only, but is in fact a waiver by the party herself, and the authorities cited by counsel for plaintiff in error are not in point.

We may well conclude from this statement that the plaintiff in error was then advised that the facts set forth in the affidavit were not true and that she had therefore consented to submit her ease to the judge before whom it had been set.


author: COOK, J.

text:
    BENEFICIAL ASSOCIATIONS
    [Trumbull (7th) Circuit Court,
    February Term, 1905.]
    Cook, Burrows and Uaubie, JJ.
    Supreme Court of I. O. F. v. Christine Herlinger.
    Beneficiary of Death Certificate in Independent Order of Foresters Required to Exhaust Remedies of Order Before Appealing to Civil Courts.
    Under the constitution, by-laws and regulations of tbe “Independent Order of Foresters” a beneficiary must exhaust her remedy in the tribunals of the order for the payment of the death certificate before she can appeal to the civil courts.
    Error to Trumbull common pleas court.
    Dickson & Clark and Charles Fillius, for plaintiff in error.
    T. H. Gillmer, for defendant in error.
   COOK, J.

The husband of the defendant in error was a member of the Independent Order of Foresters and held a certificate of insurance for the sum of $1,000 payable to his wife. Upon his death this action was commenced to recover the amount of the certificate.

Two questions are made:

First. That the decedent died by suicide.

Second. That the defendant should have exhausted her remedy in the order before she appealed to the civil courts.

As to the first, it is sufficient to say that the jury found that the husband did not die by suicide and we are of opinion that the jury was fully justified in so finding.

The second question is one of more difficult solution. The Independent Order of Foresters, like kindred organizations of that character, was formed for the purpose of promoting the moral and social interests of its members, and also protecting them in cases of sickness; and in death providing a fund to defray necessary expenses of burial and temporary provision by insurance for dependents, the widow and children.

This organization in its insurance department is similar in all respects to beneficiary societies generally. The constitution and by-laws provide for the manner of presenting claims for death benefits, and by these provisions the beneficiary would be bound, as she is presumed to know all the provisions of the constitution and by-laws and be bound by the same. Protective Home Circle v. Tisch, 24 O. C. C. 489.

By these provisions it was her duty to make out a proof of loss including the medical certificate showing the manner and cause of death. This was to be presented to the local body known as the local court. It then became the duty of the local court to make out a statement of the facts and circumstances of death, and this statement with the proofs of loss furnished by the beneficiary, must both be sent by the local court to the supreme secretary. This was done. It then became the duty of the supreme secretary to lay these papers before the supreme ranger whose duty it was to allow or disallow the claim. This was also done-in this case, and the supreme chief ranger disallowed the claim for $1,000 for the reason that, in his opinion from the certificates, the insured member came to his death by suicide; but did allow the claim to the amount of $33.34, the constitution providing that one-thirtieth of the claim should be allowed under such circumstances.

The supreme chief ranger sent his decision with a check or draft for $33.34 to the local court with directions to carry the same to the beneficiary, leaving with her a copy of his decision, and the check or draft and take her receipt for the same. The local court sent a committee to the defendant in error with, the papers and check, and she refused absolutely to receive the same or sign the receipt, and upon inquiry as to what she would do, said she “would do nothing; I have my lawyer and you will see him. ’ ’

The constitution, by-laws and regulations of the order provide that in case of any complaint upon the part of any member or beneficiary, of the action of a court, local or supreme, or of any officer of the court or other officer of the order, that an appeal may be taken as therein provided, and specially provides that an appeal may be taken by a beneficiary from the decision or action of the supreme chief ranger, to the supreme executive council and from the supreme executive council to the supreme court of the order, which is the highest authority, and if the beneficiary is dissatisfied with the decision of the supreme court of the order, then the constitution further provides that in such case the beneficiary may bring a suit in the civil courts, provided she does so in six months.

Are these provisions conclusive of the rights of this beneficiary and preclude her from instituting and prosecuting her action? We think they are. The member, her husband, when he became a member of the order, promised that he would keep and perform and be bound by all the rules and regulations of the order and the beneficiary occupies no better position than the member. Protective Home Circle v. Tisch, supra.

Why then should she not be bound by these provisions ? They deprive her of no rights whatever ’

- In the ease of Myers v. Jenkins, 63 Ohio St. 101 [57 N. E. Rep. 1089; 81 Am. St. Rep. 613], which was an action by a member and the order of Odd Fellows, it was held:

“When a member of such order claims to be entitled to sick benefits, he must seek his remedy, in the first instance, in the lodge and the tribunals of the order, and the determination of the matter by such lodge and tribunals in substantial accordance- with .the laws of the order, will be final and conclusive o£ the right to receive such benefits.
“5. If the lodge refuses or neglects upon proper demand to have the right to such benefits determined in substantial accordance with the laws of the order, or refuses to pay such benefits after the same have been awarded to such member, then such member may sue in the civil courts for the recovery of such benefits.
“6. Where, in a proceeding in a lodge in substantial accordance with its laws, it is determined that such member has no right to sick benefits, and the member appeals to the next higher tribunal in the order, and the lodge furnishes him a proper transcript of the proceedings, and he fails to secure a hearing of his appeal by reason of his own negligence, or by reason of the negligence of such higher tribunal or some officer thereof, such failure to secure a hearing on his appeal will not entitle him to sue the lodge for such benefits in the civil courts.
“7. A contract in advance to renounce and waive one’s right to appeal to the courts for the redress of wrongs, is void, and of no effect.” In the opinion Judge Burket, on pages 119 and 122, says:'
‘1 The claim of the lodge was, and it requested the ■ court to so charge, that the claimant of benefits must seek his remedy in said tribunals of the order, and that their determination was final, and that the civil courts had no jurisdiction of the matter. The court charged the jury that the claimant must in the first instance seek his remedy in the tribunals of the order, and wound up by the following:
“ ‘If that tribunal has b,een created, .and has finally heard and determined this matter, that determination is conclusive upon the parties; but if, for any reason they have refused to hear and determine this matter in any of the various stages provided for its determination by the rules of the order, then he may come into court and sue and ask the court to determine his right to recover; and if he has a right to recover, he may recover it in the court. ’ ’ ’
“The next question is as to the charge as given, to which there was an exception. The lodge. referred the dispute as to sick benefits to a committee of three as provided by the laws of the order, and that committee reported adversely to the claimant, and when he was present in the lodge and no further notice to him required, the lodge acted upon' the report and unanimously adopted it, and thereby determined that he was not entitled to sick benefits. • This was conclusive against him unless he should succeed in changing the result by a proceeding in one of the higher tribunals of the order. He gave notice of appeal, this seems to be conceded by all. He says that he obtained a transcript frdm the secretary, while the secretary says he does not recollect of giving him a transcript and does not remember that he asked for, or demanded one. There is no claim or pretense that the lodge or the secretary refused to give him a transcript. The lodge therefore did all that the. laws of the order required to enable the plaintiff to perfect his appeal and establish his right to sick benefits before the grand committee. The lodge had a determination in its favor, and by giving him a transcript did all in its power, and all the laws of the order required of it, to enable him to perfect his appeal; and if he thereafter failed in his appeal, it was his misfortune and not the fault of the lodge; and the lodge could not be held in an action at law because he failed to secure a hearing before the,grand committee on his appeal.”

Then it is said, page 123:

“The court charged that ‘if for any reason they have refused to hear and determine this matter in any of the various stages provided for its determination by the rules of the order then he may come into court,’ etc. This is too broad. The lodge was not responsible for what occurred in the various stages in the higher tribrmals after it got beyond the lodge. The determination was against him in the lodge, and after the transcript was furnished to him by the lodge, the burden was thereafter on him to get rid of that determination, and if he failed in his appeal by reason of his own negligence or the negligence of others than the lodge, he cannot hold the lodge responsible for such negligence, and cannot make the same a basis of an action against the lodge. There was therefore error in the charge as given.

And then the court held that no action can be taken in a court of justice until the beneficiary, or in this case rather, the member had exhausted his remedy by appeal in the lodge.

In this case defendant in error made no effort to appeal her case to the supreme chief ranger. All that was required of her was to write a letter to him saying she appealed from his decision. No doubt even a mere statement to the committee that called upon her that she appealed from the decision of the supreme chief ranger, that her husband died by suicide would have been sufficient, but instead of that she refused to do anything and her attorney commenced this action.

Under the constitution and by-laws of this order she particularly has no reason to complain, as after final decision by the order, it is specially provided that she may appeal to the courts of her country; whereas in many orders of this character, final decision of the order, where there was no fraud or undue means involved, would settle the matter.

What should we do with the case? It is highly probable, that we should render final judgment by dismissing the original action of plaintiff, but thinking possibly, there may be some means by which the beneficiary may correct the evident mistake she has made, we have concluded to remand it for a new trial. Judgment accordingly.

Burrows and Laubie, JJ., concur.