text:
    EVIDENCE OF CONSPIRACY UNDER. THE VALENTINE ANTI-TRUST LAW.
    [Circuit Court of Erie County.]
    Henry Hughes v. State of Ohio, and H. C. Webster et al v. State of Ohio.
    Decided, January 12, 1907.

      Valentine Anti-Trust Law — Sufficiency of Indictment Under — Venue— What Acts Fall Within — Unconstitutional Feature as to the Competency of Proof — Discretion of the Court — As to Introduction of Evidence after Close of Defense — Inadmissible Form of Question Relating to Conversations Betioeen Conspirators — Evidence Establishing Existence of Illegal Combination — Can not be Done by General Reputation — Employe, to Warrant his Conviction, Must have had Knowledge of Character of Combination.

    1. .An indictment charging defendants with being a trust combination in violation of the Valentine Anti-trust law, from March 10, 1900, and continuing until March 9, 1903, and further charging violations of said law during that time, is not demurrable or subject to motion to quash on the ground of duplicity, in that each day of the existence of such an alleged combination constitutes a separate offense under Section 4427-4, and . that the indictment attempts to charge numerous offenses in one count.
    2. It is within the discretion of the court to grant permission to the prosecution to introduce additional evidence in chief after the close of the defense, and after requests for instructions to the jury have been passed on.
    3. After having exhausted the memory of a witness his attention may be drawn to a particular subject-matter of conversations; but it is error to permit a question suggesting to him the very statement desired, and secure his assent thereto.
    4. To bring a prosecution under the Valentine Anti-trust act within the venue of a particular county, the illegal combination must have been entered into in such county, or some act must have been committed therein, in furtherance of the unlawful purposes of such combination.
    5. Evidence of statements, conversations and conduct of alleged conspirators, not a part of the transactions charged in an indictment under the Valentine Anti-trust law, but offered to establish the existence of the alleged illegal combination, is not admissible against a defendant who was not present and did not concur in such statements, conversations or conduct.
    6. A defendant in a prosecution of a trust combination, under the Valentine Anti-trust law, is deprived of his right to a decision of a jury as to his guilt or innocence, and deprived of his liberty or property without due process of law by the operation of Section 4427-6, which provides for the proof of the existence of an illegal combination by the establishment of its general reputation as such; and therefore that portion of said statute is unconstitutional and invalid.
    7. In a prosecution under the Valentine Anti-trust law, a charge to the jury, “If defendant was an employe of any such unlawful combination * * or did knowingly carry out any of the stipulations or purposes * * * of any such unlawful combination, * * * then you would be warranted in finding him guilty,” is erroneous in that it might result in a conviction for being an employe of a combination, or carrying out any of its purposes without having knowledge of its unlawful purpose or character.
    Wildman, J.; Parker, J., and Haynes, J., concur.
    Error to Erie Common Pleas Court.
    In the court oí common pleas on March 9, 1906, the plaintiffs in error, Henry Hughes, IT. C. Webster, W. H. Lyons, W. N. Cleveland, J. IT. Hilton, the Massillon Bridge Company, the King Bridge Company, the Bellefontaine Bridge Company, the Canton Bridge Company and the Mount Vernon Bridge Company, were jointly indicted with other defendants for alleged violation of the Valentine Anti-trust law, Section 4427-1, et seq., Revised Statutes. Two of the plaintiffs in error, .the Massillon Bridge Company and the Canton Bridge Company, are not now prosecuting their proceeding in error.
    The defendant, Hughes, was tried separately to a jury and convicted. The other defendants waived a jury, and the case by their consent was submitted to the court on the recorded evidence in the Hughes case. All the defendants were adjudged guilty and each of them was fined $500, except Hughes, who was fined $1,000.
    Prior to these proceedings, except the finding and presentation of the indictment, motions to quash, pleas in abatement and demurrers were filed and overruled by the court. All defendants except Hughes waived any claimed errors in such rulings, and those of them who are prosecuting this error proceeding base their prayer for a reversal substantially on the ground that the evidence does not justify the judgments of conviction.
    The defendant, Hughes, preserved his exception to the overruling of his motion to quash the indictment and numerous other exceptions in the subsequent stages of the case. The accusation embodied in the indictment, which, under these exceptions, it becomes important to examine, is substantially as follows:
    That the defendants on March 10, 1903, “at the county of Erie aforesaid, and from and since the said, tenth day of March, aforesaid, in the year 1903 aforesaid, continually until the day of finding this indictment, to-wit, the ninth day of March, in the year of our Lord 1906, engaging then and there in a conspiracy against trade, then and there unlawfully were members of, acted with and in pursuance of and knowingly aided and assisted in carrying out the purposes of a certain trust, the purposes of which said trust were then and there to increase the price of certain commodities, to-wit highway bridges, superstructures of said highway bridges, structural bridge iron and structural bridge steel, and to prevent competition in manufacturing, transportation, and sale of said commodities, the said trust being then and there a combination of capital, skill, and acts by the said persons .and corporations aforesaid for the purposes aforesaid, and the said corporations being then and there corporations duly organized, existing, and doing business in said state of Ohio, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio. ’ ’
    The motion to quash attacks this indictment upon the grounds of indefiniteness and duplicity. 'The statute (Section 4427-4) provides that each day’s violation of this act “shall constitute a separate offense,” and it is urged that this indictment by its “continuando” extending over a period of three years, attempts to charge numerous offenses in one count, and that this is not permissible.

      Cases are cited to support this contention, but, without pausing to comment upon them, it is enough to say that in our judgment they are inapplicable to this kind of an offense as set forth in the indictment.
    No emphasis in argument is placed on the point that the indictment is indefinite and does not sufficiently apprise defendant of the nature of the accusation against him. We will therefore pass the question without, however, indicating approval of the form which the charge has taken. It is probable that the defendant, Hughes, knowing in what transaction in Erie county he had been engaged in connection with bridges, was not prejudiced by any lack of particularity in the indictment.
    We think that the indictment is not vulnerable to attack on other grounds and that the pleas in abatement and demurrers were not well taken.
    The evidence taken on the Hughes trial and relied on by the state to justify the conviction of all the defendants, is presented to us in a printed pamphlet of something over two hundred pages, disclosing not only the testimony -and exhibits and the instructions given and refused, but numerous exceptions to rulings of the trial court. We will not attempt specific reference to all of them, but will consider such as seem to demand special attention. Under the waiver by. all defendants except Hughes and the submission of the case by them on the evidence on his trial, the various exceptions taken by him to the admission of evidence are not available to his co-defendants so far as those exceptions relate to the forms of questions or any matters other than the competency of the evidence itself. It is very'manifest-also that such co-defendants have no concern with refusals to instruct the jury as requested in the Hughes case, or with the charge of the court as given. Their trial was without the aid of a jury and 'no instructions were refused or given.
    The defendant, Hughes, excepted (see page 190 of the printed record) to the permission granted by the court to the state to-introduce additional evidence in chief after the closing of the defense and after requests for instructions to the jury had been passed on.
    The matter was within a discretion of the court, which seems to have been properly exercised. In the introduction of this evidence, however, a question was asked of the witness, E. U. Hirt, by the counsel calling him (see page 191), which we think should not have been permitted. The testimony related to a conversation with the defendant, Hughes, concerning the letting of a bridge at Fremont in March, 1906. The witness had stated the conversation as he seemed to recall it and added that what he had related was, he thought, the substance of all that was said. Thereupon counsel for the state asked:
    “Did he say to you in words or in substance that there might be other bridge companies present, but that he could get them out of the way?”
    The witness answered over defendant’s objection:'
    “Yes, he did.”
    While it might have been proper after exhausting the memory of the witness to invite his attention to any particular subject-matter of conversation, it was not within the bounds of legitimate questioning by the attorney who had called the witness, to suggest to him the very statement desired and obtain his assent to such suggestion. The answer so elicited furnished the only important item of evidence from this witness, and the ruling of the court permitting it was both erroneous and prejudicial. It was not justified by any apparent unwillingness on the part of the witness to testify favorably to the state, or by any adverse interest, nor was it justified as impeachment of Hughes by any sufficient foundation previously laid therefor.
    Although the charge in the indictment did not define the particular manner, or set forth the transaction or transactions in which it was claimed that the defendants in Erie county ‘ ‘ aided and assisted in carrying out the purposes” of the alleged trust, said purposes being “to increase the price of certain bridges, ” and to “prevent competition in manufacturing, making, transportation and sale” of them, the evidence on the trial, so far as related to conduct of the defendants in Erie county, was directed by the state to transactions occurring in the summer of 1903, in the public letting of bids for the repair of what is known as the Fries Landing bridge. While all the defendants are charged with being members of the alleged trust during the entire period of three years from March 10, 1903, to March 9, 1906, there is no evidence that they did any acts in Erie county during said period, in furtherance of the alleged purposes of the trust, unless they did them in direct connection with the Fries Landing bridge. The language of the trial judge in one paragraph of his charge as found on page 195 of the printed record is pertinent, as showing his understanding, with which we are in accord, of the claims of the state in this respect. I quote a part of this paragraph as follows:
    “I will say to you further in regard to this matter it is not claimed by the state that any of the parties named in the indictment are residents of Erie county, or that any trust or unlawful combination among the defendants named in the indictment has a permanent residence or existence in Erie county; but the state claims that such unlawful combination exists and did exist on the day named in the indictment or thereabouts, and that about that time the defendant in this action, who is now being tried, Henry Hughes, acting for and on behalf of such unlawful combination, to carry out some of the purposes prohibited by the terms of the law which I have heretofore read to you, came into Erie, county and did knowingly carry out some of the stipulations, purposes, prices or rates of such unlawful. combination and orders thereunder, or in pursuance thereof in manner and form as charged in the indictment. ’ ’
    Our conception of the spirit and purpose of the statute under which this case was instituted and prosecuted is, that it was not contemplated that a member of an unlawful combination as defined, might be indicted in any or every county of the state wherein he or any of his associates should chance at any time to be. To give the Erie county court jurisdiction some offense must have been committed in Erie county. The entering into an unlawful combination, or the doing of any overt act in furtherance of its unlawful purposes would be such an offense.

      In this case, then, the state was compelled to base its prosecution upon either (1) the entering into such a combination in Erie county; or (2) the aiding of such a combination previously formed in this county or elsewhere.
    The second of these theories is the one apparently adopted by counsel for the state, and, further, that the unlawful combination was formed outside of Erie county and several years prior to the date of the offense charged in the indictment.
    In support of this latter theory and to establish the fact of a pre-existing combination among the defendants, evidence was offered and received of transactions in other counties and conduct and statements of defendants other than Hughes and not in his presence, or, so far as appears, within his knowledge, at divers times from about the year 1898, the year in which the Valentine act took effect, to some time subsequent to the alleged unlawful transactions in Erie county. The view of the trial judge as to the admissibility of this class of evidence is expressed in his language as quoted on page 16 of the printed record. In reply to the objections of defendant’s counsel, he says:
    “They have a right to establish acts a reasonable time before and a reasonable time after the date of the offense charged, for the purpose of assisting the jury to determine whether pr not at this particular time a trust existed.”
    But statements and conduct of alleged conspirators in the absence of a defendant, have never, we believe, been deemed competent to prove his complicity with them in their unlawful combination. Upon adequate proof that a conspiracy exists and that a defendant has entered into it, he is bound by the conduct 'of his confederates in furtherance of their common unlawful purposes. Each conspirator is the agent of his fellows to this extent. But the principle goes no further. As the authority of an agent can not be shown by his own hearsay admissions or statements, so the conduct or hearsay statements of alleged conspirators in the absence of claimed associates can not be used to establish their association.
    As an illustration of this class of evidence admitted on the trial of Hughes over his objection reference may be made to the testimony of John J. Dun, beginning on page 15 of the printed record. Tie was an agent for the J. G. Wagner Company in the bridge business from some time in- April, 1898, prior to the taking effect of the Valentine law, until the fall of 1899. TTe testifies as to various transactions during that period, tending to show arrangements among some of the companies named in the indictment and others in violation of the statute if entered into after it took effect in July, 1898. Hughes does not appear to have been present at these transactions or to have had knowledge of them, or, indeed, to have been employed as agent by any of the defendant companies until the fall of 1901. The testimony of Dun could have no legitimate effect against him, and his objection to it should have been sustained. As appears on page 20 of the printed record, the judge said, as to a p.art of this testimony relating to the bridge lettings in Cincinnati:
    “The jury will understand this evidence is only competent in case the prosecutor connects it with some of the companies named in this indictment.”
    But, although indicted, none of the companies were on trial, and the evidence was then being introduced against Hughes alone. Upon his entering into relations with the Massillon Bridge Company as its agent in the fall of 1901, he can not be presumed to have had knowledge of any secret and unlawful dealings of that or any other companies at least two years earlier.
    Another important item of evidence admitted over objection is found on page 202 of the printed record. It consists of correspondence'had between the Canton Bridge. Company and its own agent, IT. G. Hammond, in the year 1903, concerning bridges in Lorain and Huron counties and proceedings relating thereto. Language in this correspondence strongly suggests some combination among this company, the Massillon Bridge Company and the. King Bridge Company, as to a pooling of profits on these bridges, and perhaps others; but even if it had clearly recited such an arrangement and had mentioned Hughes as a party to it, the correspondence would not have been admissible against him, in the absence of any showing that he had knowledge of it and assented to it, to prove that he was engaged in the combination.
    These are examples of what we deem objectionable items of evidence introduced on the trial. We hold that wherever during the progress of the trial the principles which I have endeavored to express were violated, the court erred.
    An even more important line of testimony and one which seems vital to the case, was admitted by the court against objection and considered i'n the charge to the jury in the following words, found on page 194 of the printed record:
    ‘£ The law prescribes a rule of evidence which you will consider in determining tho question as to whether or not there was in existence at the time named in the indictment or thereabouts a combination or trust in violation of tho sections which I have heretofore read to you. You will see from it that it is not necessary to have direct evidence of the existence of such combination or trust. Its character may be established by general reputation, that is, wdiat people generally say about it. You will look to all the evidence on this head, including the evidence of the reputation of the so-called bridge trust, which is the subject of investigation in this prosecution, and determine from it whether or not there was in existence a trust or combination in violation of the lawr which I have read to you., in manner and form as chai’ged in the indictment.”
    This instruction and the testimony on which -it was based call for a careful examination of the statute. Such grave doubts as to the proper construction and the constitutional validity of the section concerning evidence of the reputation of an alleged trust have existed in the minds of lawyers and judges of the state, that in most, if not all, the prosecutions in other counties under the act, convictions have not been sought by means of such evidence. Up to the present time, so far as we are advised, despite the fact that there have been a number of such prosecutions, neither the Supreme Court nor any of the circuit courts have been called upon to give special attention to the section of the statute referred to. It is numbered in the present revision Section 4427-6, and is as follows:

      “In prosecutions under this act, it shall be sufficient to prove that a trust or combination, as defined herein, exists, and that the defendant belonged to it, or acted for or in connection with it, without proving all the members belonging to it, or proving or producing any article of agreement, or any written instrument on which it may have been based; or that it was evidenced by any written instrument at all. The character of the trust or combination alleged may be established by proof of its general reputation as such.”
    The last sentence above is the one on which emphasis must be placed in the present inquiry, but the rest of the section should not be ignored.
    It is urged with force and plausibility by counsel for plaintiffs in error that the existence of the combination or trust must be proved by evidence other than that of reputation; and that it is only the character of the combination, after its existence has been so shown, that can be established by reputation.
    We have been much impressed by the reasoning in support of this construction, but we are unable to adopt it. It is “the character of the trust or combination alleged” that “may be established by proof of its general reputation,” and it is its “general reputation as such” that is to be received; that is, its general reputation as being such a combination as the statute defines and makes criminal. The trial court was in our judgment correct in construing the section as attempting to authorize the proof of the very existence of the criminal combination.
    Counsel for the state seem to have gone somewhat further and to have assumed in at least some of their questions the right to' prove by repute not only the existence of the combination, but the membership, of the defendants in it. To illustrate: As shown on page 33 of the printed record, the following question was asked of the witness, Graham:
    “You may state whether it is or is not a fact that the Massillon Bridge Company, with other bridge companies and persons, were generally reputed in this county to be organized in a combine for the purpose of preventing competition in the sale of highway bridges and bridge material since the first day of January, 1903, or during any part of that time. ’ ’

      Perhaps inadvertently the court permitted the question to be answered as follows:
    ‘ ‘ That is the general reputation, as far as I know. ’ ’
    It may be noted in passing that the question calls for evidence of reputation during a period extending even to the time of the trial, and the answer of the witness is in the present tense.
    To what extent any bad reputation of the defendants may have been created or increased by the very fact of this prosecution does not appear, but it maj^ fairly be said that an indictment and prosecution under it are not such a testimonial of character as to enhance whatever good repute an accused person or company may have had.
    Questions asked of witnesses as shown on pages 61, 62, 63, 65, 71, 73 and perhaps on other pages, are of like character had objectionable for the reasons which I have given.
    It remains to be seen whether the section of the statute which I have quoted and which the judge correctly interpreted in his charge to the jury, is such an enactment as the Legislature had power to make.
    Our Supreme Court has recognized the legislative power to prescribe the rules of evidence which shall be observed by its judicial tribunals; but as stated by Judge Bradbury in the case of The Pennsylvania Go. v. McCann, 54 Ohio St., 10, 17, “limited only by the constitutional guaranties respecting the due process of law, vested rights and the inviolability of contracts.1 ’
    Article XIV, Section 1, of the Federal Constitution prescribes that:
    “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ’ ’
    Does the section of our statute providing that the existence of a criminal combination or trust may be established by its general reputation as such, attempt to deprive any person of life, liberty or property “without due process of law?” That the enforcement of the statute may involve a deprivation of liberty or loss of property by imprisonment or fine, is manifest. This may not be done except by due process of law.
    From time immemorial accused persons have been tried upon evidence direct or circumstantial, documentary or oral, and, as to some facts and under some circumstances, general reputation has been treated as competent.
    As to one class of cases, the maintaining of brothels, the ill fame of a house has often, but not always, been permitted; and the like rule has sometimes been applied to the character of a groggery or dram shop. This procedure in the case of such nuisances when places or houses of this character were defined or treated as such, existed long before the adoption of the Federal Constitution which I have quoted. Such procedure was deemed “due process of law” at that time in the jurisdictions where it was sanctioned. In Ohio, however, we have no adjudication by the Supreme Court recognizing the competency of such evidence. The decisions of lower courts as to evidence of general reputation under the Winn law prohibiting the selling of liquor in reputed houses of prostitution are not relevant to the present inquiry.
    But we are not advised that even under the semi-barbarous practice which obtained and for many years existed under the common law, evidence that an accused person was generally reputed to have committed the crime charged against him was ever permitted in other classes of cases. In the section of our statute under investigation the Legislature attempts to enact a wide departure from legal principles which have stood undisturbed for ages, in jealous protection of private rights.
    True, the statute does not in terms say that the criminality of an accused person may be shown by his bad reputation; but as we construe it, and as we think its framers intended it, it does provide that the guilt of the association of which the accused may be a conceded member, may be established by such reputation.
    In this connection I invite the reading of the forceful language of the Supreme Court of Rhode Island in State v. Beswiclc, 13 R. I., 211 (43 Am. Rep., 26), and especially page 216 and following.

      II the Legislature may, to make convictions more easy in alleged violations of this act, provide that guilt may be so established, it is difficult to see why other crimes, equally difficult to establish by legitimate proof, may not be so shown.
    Nearly all crimes are committed in secret, and convictions are often difficult, but it would be perilous indeed to open wide the door and say that we must find an easier way and will permit convictions on rumor, however general. Bad reputation is too often artfully created for wicked purposes, and at the best is too uncertain and perilous to admit of its use to such extent.
    Never before in our experience have we noted such open trials of accused persons in public places and public prints before the investigation by a jury, and for the obvious purpose of manufacturing public sentiment adversely to the accused, as have been made manifest of late. We can not consent to uphold an enactment, the certain result of which is to make more mischievous a public sentiment so created.
    The opportunity afforded by such a statute to an interested and unscrupulous attorney, by insinuations and accusations, to manufacture a public sentiment which may be utilized for the conviction of the accused, is manifest. Fortunately, the members of the bar who will descend to such -dishonorable and unprofessional practices are not numerous, but they are not unknown to the profession. It is needless to say that such conduct would be impossible to the high-minded and honorable lawyer who, as prosecuting attorney, represented the state in the present case.
    Before leaving the question, I should add my judgment that the language of the section requires the construction that the effect of the general reputation, if proven, not merely testified to, is to establish, that is to say, make certain, the criminal character
    As defined by Webster, to “establish” is “to make stable or of the combination or trust.
    firm, to fix or set unalterably; to settle, to confirm. ’ ’
    Anderson defines it: “To settle certainly, fix permanently, what was before uncertain doubtful or disputed. ’ ’
    The words of the section were unhappily chosen if the Legislature intended only a prima facie rule.

      Construed as I understand the language, a defendant is deprived of his right to the decision of a jury as to his guilt or innocence and may be deprived of his liberty or property without due process of law. We deem the provision of Section 4427-6 embodied in its last sentence unconstitutional and invalid.
    This evidence, so permitted and used by the jury and the court below, was vital to the state’s case. The other evidence was insufficient, unaided, to establish the guilt of the defendants or any of them.
    As the cases will necessarily be remanded to the court below, it is proper to consider other claimed errors in the record. These are based upon refusals to instruct the jury as requested by the defendant, Hughes, and upon the charge as given.
    Several of these requested instructions involved the claim that the defendant could not properly be convicted of furthering the purposes of an- unlawful combination unless he had knowledge of its existence. The court was not required under our criminal procedure to give such instructions before argument, although requested so to do; nor to give them at all in their precise phraseology; but the substance of the proposition claimed should have been somewhere embodied in the general charge in clear terms. This, we think, was not done, or if done, its force was destroyed by language found on page 195 of the printed record, in which the court charged as to Hughes that “If he was * “ * an employe of any such unlawful combination, * * * or did knowingly carry out any of the stipulations or purposes * * * of such unlawful combination * * * then you would be warranted in finding him guilty. ’ ’ The knowingly carrying out the purposes of a combination, and the knowing of the existence of a combination of an illegal character, are not so clearly identical as to'justify the instruction in this alternative form. The instruction, if followed, might result in a conviction for furthering purposes of a combination without knowing of the illegality of the combination; or even for being an enqploye of a combination without knowledge of its unlawful purposes or character.
    There is language in other parts of the charge tending to cure, but not clearly doing so, this misleading instruction and the error in not charging substantially as requested.

      The requested instructions numbered 7 to 12, inclusive, restricting the use to be made by the jury of certain items of evidence, should have been given in substance. The court, by not so instructing', and, indeed, by the language of the general charge permitted their use generally in the case.
    While some of these items of evidence were competent as to certain of the defendants, their unqualified use as against the defendant, Hughes, was erroneous and prejudicial.
    The judgments below are reversed and the causes remanded for further proceedings.

      King & Ramson, Hunt & Garn, Kinney, 0’Farrell é Rimelspach, G. G. Beis, Waight & Moore, Kline, Tolies & Goff and Webber c§ Turner, fox plaintiffs in error.

      R. H. Williams, contra.


source: Caselaw Access Project

license: Public Domain

text:
    ACQUIESCENCE IN THE MISAPPLICATION OF A TRUST FUND.
    [Circuit Court of Hamilton County.]
    In Re Estate of John H. Koehnken, Deceased.

    Decided, January 5, 1907.

      Trusts — Misapplication of the Trust Fund — Acquiescence of the Beneficiary Therein — Evidence as to Knowledge of Beneficiary as to the Wrongful Act.

    Where the evidence compels the belief that a mother acted with full knowledge of the essential facts when she acquiesced in the misappropriation of her trust estate by her son while acting as her trustee, the law will uphold her act, but without sanction of his breach of trust.
    G-teebn, J.; Jelke, J., and Swing, J., concur.
    This cause was remanded for a new trial at a former term of this court, the judgment being reversed because not sustained by sufficient evidence. 6 C. C. — N. S., 359.

      The evidence at the last trial is even more convincing that Anua C. Koehnken had full knowledge of the wrongful act of her son before ratifying or acquiescing in the same.
    Counsel confuse this ratification of an obviously wrongful act with that of an apparently fair one. There is no pretense that the transaction was fair to the mother, nor that any independent advice would have made the wrong more obvious. She was not influenced by any consideration of his ability to repay her, nor was she incapable of understanding the gravity of his offense, but her sole purpose seems to have been to shield and aid an erring son. This was her choice in the matter, and is only typical of a mother’s sacrifice for the benefit of her child. The law does not-release Herman Koehnken from the obligation to reimburse the estate of his mother, nor sanction his breach of trust, but it does uphold her act done with full knowledge of the essential facts.
    Judgment reversed and cause remanded for a new trial.

      Oscar W. Kuhn, for plaintiff in error.

      Albert Bettinger and Jacob Shrocler, contra.

       For previous report, together with the facts in this case, see 6 C. C.—N. S., 359.


text:
    ATTEMPTED DESTRUCTION OF PART OF WILL BY TESTATOR.
    [Circuit Court of Lucas County.]
    Ella S. Coghlin, Individually and as Administratrix of the Estate of John D. Coghlin, Deceased, v. John T. Coghlin, Executor of the Will of Dennis Coghlin, et al.
    Decided, February 16, 1907.

      Wills — Contest of, on Ground of Revocation — By Tearing a Page from the Will — Intent of Testator as to Revocation — May he Shoion hy Parol Evidence as to His Declarations — Charge of Court — Section 5953.
    C tore one sheet from his will and then tore the sheet into pieces and threw it into the waste basket. The pieces were afterward rescued and put together in proper order, and the sheet in legible condition and without the knowledge of C was restored to its place in the will. At the trial, contesting the will on the ground that it has been revoked by tearing, the attorney of the testator testified as to certain conversations had by him with the testator both prior and subsequent to the tearing of the sheet from the ^ will. Held:

    1. To effect a revocation of a will by its destruction, or by its partial destruction, cancellation or obliteration, the intention to revoke must concur with the physical act of destruction or partial destruction.
    2. The declarations of the testator with reference to the will, before or after an attempt to destroy it, in whole or in part, are competent evidence in determining his intention, and a charge of court which restricts the jury in their consideration of such evidence to its bearing upon the intention of the testator is a proper charge.
    Wildman, J.; ITaynes, J., and Parker, J., concur.
    This is a will contest and comes into this court on error from tbe court of common pleas. Judgment below was against tbe contestants. Dennis Cogblin died in August, 1900, and after his death a will, which had been executed in 1893, and to which a codicil had been added in 1896, was admitted to probate. The contest subsequently instituted was based upon a claim that in the fall of the year 1898 Coghlin had revoked this will by tearing it, with an intention of revocation.
    The case is one of importance, perhaps by reason of the valuable estate disposed of by the will, but, so far as the issues before us are concerned, they are not complicated or numerous. The claims of the plaintiffs in error are based on Section 5953, Revised Statutes, reading, so far as p.ertinent to the present inquiry, as follows;
    “A will shall be revoked by the testator tearing, cancelling, obliterating, or destroying the same — with the intention of revoking it — by the testator himself, or by some person in his presence, or by his direction. ’ ’
    It appears by the testimony that in the fall of 1898, Dennis Coghlin, in the presence of one person, who testified in the case subsequently as a witness, tore from his will, which was somewhat voluminous, one sheet thereof, and threw it into a waste paper basket. The remaining part, of the will, including his own signature and the signatures of the attesting witnesses, he laid upon a table by his side. There is no evidence of any accompanying words expressive of his intention either to revoke or not to revoke the will. The will having been admitted to probate, the burden rests, of course, upon the contestants to overcome the prima facie case thus made in favor of the validity of the will. The claim of the contestants is, that a destruction or attempted destruction of the particular part of the will which was torn so far interfered with the general plan of the will, and with the provisions written therein, as to evidence clearly the intention of the testator to effect a complete revocation of the instrument.
    On the other hand, it is urged that there is no evidence tending to show an intention to destroy or revoke anything more than the particular part of the will found on the page which was torn, and that the preservation of the rest of the will is clear and convincing evidence that it was not the intention of Dennis Coghlin to destroy or revoke the entire instrument.
    In the case of Giffm et al v. Broohs, 3 Circuit Court Reports, 110, it was held by the Circuit Court of the Seventh Circuit, and fully expressed in the opinion rendered by Justice Laubie, that, under the section which I have just read, of the Revised Statutes, providing for a revocation of wills, that: “A clause of a will can not be revoked by the testator drawing ink lines through the words thereof, with an intent to revoke such clause, but not with an intent to revoke the whole will.” And in the next clause of the syllabus:
    “In such case, where all the words of such clause remain legible, the whole will should be admitted to probate, including such erased clause as a valid part of such will. ’ ’
    The opinion is somewhat long and I will not read from it. It’ dismisses the construction of the statute and the results of the act of drawing pen- lines over a part of the will, as it is said was done in the case cited.
    This case of Gijfm v. Brooks went to the Supreme Court and was affirmed in 48 O. S., page 211.
    In the case before us, after Dennis Coghlin had thrown into the waste paper basket the part of the will which he had tom, it-was taken from the basket by a gentleman present, and not being disfigured or made illegible, it was subsequently pasted together and replaced in the original will. The testimony does not disclose who made this restoration. Subsequently the entire will so restored was handed to an attorney, Mr. Waite, who testified also as a witness and with regard to whose testimony some question has been- raised.
    It is manifest from a reading of the section of the statute referred to, that the question whether or not the will was revoked is largely a question of intention. Two things must concur for a revocation — an intention- alone will not do it; there must be some act, either a destruction or partial destruction or obliteration of the will, and this must concur with an intention on the part of the testator to revoke, not simply to amend. If it was the intention of Dennis Coghlin to extract from the will the items appearing on the page torn from the will, and if that was his only intention, - then, inasmuch as the part which so torn from the -will still remained legible and was subsequently restored to it, the will would not bo revoked. The question of intent was clearly one for the jury. The ease was properly submitted to the jury upon this issue, and the jury found in favor of the defendants.
    To our minds not only is the position of the plaintiff in error —that the verdict is clearly against the weight of the evidence— untenable, but it seems to us that the evidence strongly indicated that it was the intention of the testator not to destroy the will in ioto. And this inference is strengthened by the testimony of Mr. Waite, the attorney, as to conversations and transactions with Mr. Dennis Coghlin prior to and subsequent to the tearing of the will. I will not go over this testimony in detail. It was objected to by plaintiffs in error, and the admission of the testimony by the court is laid as one of the grounds of the claim of error here. It is sufficient to say that the testimony of Mr. Waite discloses the fact that, prior to the tearing of the will, Dennis Coghlin had expressed an' intention of making certain changes as to the management of his estate, by substituting John Coghlin for Amadus. in one of the items of the will, as a sort of trustee or manager of the estate after his death. There was talk between Dennis Coghlin and Mr. Waite about the making of a change in the will, so as to substitute the name of John Coghlin for that of Amadus, and in pursuance of that conversation Mr. Waite drew two separate codicils, which, although never executed or signed by Dennis Coghlin, were the result of the interviews between Mr. Waite and him. There was also testimony as to declarations and conduct of Coghlin after the tearing of the instrument.
    Was this testimony as to the subsequent conduct and conversations of Dennis Coghlin competent, or did the court err in its admission?
    In the case of Behrens v. Behrens, 47 O. S., 323, we have a case of an alleged spoliation of a will, which, in our judgment, governs the consideration of the present case in the respect to which I have just referred. I read from the syllabus:
    “When a will, once known to exist, and to have been in the custody of the testator, can not be found after his decease, the legal presumption is that it was destroyed by the testator with the intention of revoking it.

      “To strengthen such presumption, it is competent to prove the declarations of the testator after making his will, that he had destroyed, or intended to destroy, the same. ’ ’
    While this is as far as the court went in its statement in the syllabus of the case, it is very clearly indicated in the opinion, announced by Judge Dickman, that such evidence was admissible, not only to strengthen a presumption of destruction of a will, but, on the other hand, to weaken it. It was competent when offered by either party. But it is urged by-counsel for plaintiffs in error that the case of Behrens v. Behrens had reference to a lost will, and that the ruling of the court would not apply to the case of the partial destruction of a will, effected by tearing or obliterating1 any part of its contents. We think that this position can not be maintained, in view of the approved citations of other cases by Judge Dickman, upon which cases the court evidently bases its conclusions. Among other cases cited is that of Lmvyer v. Smith, 8 Mich., 411, 412. Judge Dielpnan- says of this case:
    “After the death of the testatrix, a will twenty-five years old was discovered in a barrel among some waste papers and either torn or worn into several pieces. * * * Whether the injury to the instrument was done by the testatrix or by some other person, and if by her, whether accidentally or intention-ally, and for the purpose of revoking the will, are questions of fact for the jury; and to aid them in determining these questions and not as separate and independent evidence of a revocation, the declarations of the testatrix, made after the date of the will, that she had destroyed it, are competent evidence.”
    The court also ci-tes Patterson v. Iliclcey, 32 Georgia, 156, as deciding “that where the question is revocavit vel non, parol evidence as to the acts and declarations of the testator are admissible, although made at any time between the making of the will and the death of the testator.”
    Judge Dickman adds :
    “A will is said to be ambulatory until the testator dies. Until his death the instrument has no force or effect, and until then, he has the power to cancel or revoke it. If from being clothed with this power the presumption arises after his death that he destroyed his will, that presumption will be aided by his declarations as expressive of his feelings and intention.”
    In Weeks et ail v. McBeth, 14 Ala., 475, as quoted by Judge Dickman, with seeming approval, it was held that the declarations of the testator are also admissible to strengthen the presumption of revocation, and to show that the will was destroyed by the testator ammo revocaAidi. It is the invariable rule in the courts of England to admit the declarations of the testator, either to strengthen or to repel the presumption of revocation, arising from the non-production of the will, after the death of the testator; or to explain the act of destroying or cancelling it.
    Another ease cited is Smiley v. Gambill, Ex’r, 2 Head, 164. This is a similar case, where a paper which the testator had thought to be a will was burned, and the question there was whether the burning was with the intention to revoke, or otherwise, and it was held that the declarations alone might not be sufficient, birt they were competent, and it would be for the jury to determine whether they, together with other facts proved, made out the intention to revoke.
    There are other authorities cited by Judge Dickman in this case of Behrens v. Behrens, along the same line and bearing on the position taken by counsel that some distinction is to be made between the ease of a lost will and that of one partly or wholly destroyed. We think that there is no distinction in principle. In either ease the intention of the testator is to be arrived at, and if his own declarations or conduct subsequent to whatever act he did with reference to the will, is competent as evidence for its bearing upon his intention, then it would seem that such evidence must be competent in every case where the intention of the testator is sought.
    The trial judge in his charge to the jury made a proper use of this evidence. He restricted the jury in their consideration of it to its bearing upon the intention of the testator. His words and his conduct were not to be used by them to determine whether or not he had attempted to destroy a part of the will — indeed, as to this matter, there was no dispute; there was no contradiction of the testimony of the one witness as to the fact of the tearing of the paper. The paper, which appears as a part of the Dill of exceptions, shows the fact indisputably, that this sheet of the will was torn into several pieces; so that, practically the only question for the jury was the question of intention of the testator. The judge so told them, and also that they might take these declarations and conduct for such light as they might throw upon the question of intention, but for no other purpose.
    Exceptions were taken to some of these instructions by the judge, but we find no error in them. There was some objection to the statement to the jury that certain parts of the will might be entirely removed from it without destroying the will as suc-h —in other words, that the will, so far as its -substance was concerned, would be complete in itself even after the. removal of the sheet of paper torn from it. We think the court was within proper bounds in giving this instruction to the jury. Indeed, in the entire trial of the case we have been unable to find any error on the part of. the court. We think that the contestants were fairly treated throughout, and that the construction which the court gave to the statute and to the various decisions was altogether correct.
    Our judgment is that the judgment of the court of common pleas should be, and it is, affirmed.

      Whitlock, Milroy & Mallow, Smith <& Beclmith, for plaintiff in error.

      Hamilton & Kirby, for defendants in error.


text:
    LIMITATION OF ACTION ON AN ACCOUNT STATED.
    [Circuit Court of Erie County.]
    William Deering & Co. v. H. G. Miller and C. A. Wikel, Late Partners under the Firm Name of Miller & Wikel.

    Decided, April 22, 1899.

      Statute of Limitations — Application of, to an Account Staled — Promise in Writing — Abbreviated Contracts and Agreements in Writing— Implied Promise to Pay■ — Actions under Section 4980'.
    Where the debtor under an account stated affixed thereto a declaration in writing that the amount shown was due from him, and this was signed by him and accepted in writing by the creditor, the paper constitutes in law a promise in writing to pay the claim, although no promise to pay is specifically made; or if not a promise in writing, such a paper is at least an agreement in writing within the meaning of Section 4980; and the bar of the statute to an action thereon arises, not in six years, but fifteen years from the date thereof.
    Marvin, J. (sitting in place of Hull, J.); Haynes, J., and Parker, J., concur.
    Error to Erie Common Pleas Court.
    This is a proceeding in error seeking to reverse the judgment of the court of common pleas. The determination of the case rests upon the effect to be given to the statute of limitations as applied to a writing which was executed by the defendants and which is set out in the bill of exceptions giving all of the evidence in the case.
    The defendants were partners under, the firm name of Miller & Wikel, doing business in this county, and were handling the goods of William Deering & Co., of Chicago, having been engaged in this business for some time. They were handling these goods on commission. They had received for goods sold certain amounts, and had forwarded or paid to Deering & Co. certain moneys, and on October 28, 1890, the defendants stated an account between themselves and the plaintiff and entered upon such statement of account these words:
    Huron, Ohio, October 28, 1890. This adjustment of accounts made this day as per the foregoing statements, showing as due Wm. Deering & Co., as the proceeds of these commission goods not yet paid over, the sum of $479.75 after deducting all credits, set-offs or claims due us by reason of any and all matters and things growing out of the business or otherwise clue to this date, tendered by me, subject to the acceptance of Wm. Deering & Co. at their Chicago office.
    This was signed by Miller & Wikel and accepted by William Deering & Co.
    On the part of the plaintiff it is urged that this was an agreement entered -into between the parties to this action, and that they were entitled to bring suit upon it at any time within fifteen years after its execution, because of its being in writing; while on the part of the defendants it is urged — and that is tbe only defense sought to be made, as shown by the bill of exceptions — that this is not such an agreement in writing as is included within the language of Section 4980, Revised Statutes, but that it is such an agreement as that suit must he brought within six years from its date. Section 4979, Revised Statutes, reads:
    “Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of the action accrues.”
    And Section 4980, Revised Statutes:
    “Within fifteen years: An action upon a specialty, or an agreement, contract, or promise in writing.”
    The suit was brought more than six years not only after the execution of the contract, but after any payment which could be regarded as an acknowledgment of the debt. The court of common pleas found that the statute of limitations ran against the claim of the plaintiff, on the ground that this was not such a contract as is contemplated by Section 4980, Revised Statutes.
    The claim is made on the part of the defendants that there must be a promise in writing to bring an- agreement or contract within the terms of Section 4980, Revised Statutes. On the other hand, it is contended that there need not necessarily be a promise, that in any event there need not be an express promise, but if there be an agreement entered into and that be in writing, then a suit may be brought upon such agreement at any time within fifteen- years.
    It is said on the part of the plaintiff that this contract has in it a promise to pay the amount stated in the contract to be owing and to be due from the defendants to the plaintiff; that because the defendants acknowledged by that writing that.there was due from them to the plaintiff the sum of $479.75, the law incorporates into that-a promise to pay and that it is to be road as though it contained an express promise to pay.
    There is a ease, Haines v. Tharp, 15 Ohio, 130, to which the attention of the court has been called. On page 133 of the opinion this language is used:
    "An indorsement is' a written contract of which the law declares the effect; and when counted upon, it is the foundation- of the action, and a plea that the cause of action did not accrue within six years is no bar under the statute. ’ ’
    It is said that the fact that the courts hold than an indorsement upon commercial paper is a contract, is a promise, although there is no express promise to pay, does not result from the fact that the law implies a promise to pay from such indorsement, but that it is an abbreviated contract, and the case of Farr v. Richer, 46 Ohio, 265, is cited in support of this claim. The first clause of the syllabus of that case reads:
    "The indorsement of a negotiable promissory note, made to transfer the title to one who has purchased it for value, is, though in blank, an- abbreviated contract in writing, whereby the indorser binds himself to pay the note if on presentment the maker does not, and due notice is given him .of such non-payment; and, in the absence of fraud or mistake, the legal effect of such indorsement can not be varied by parol. ’ ’
    The opinion, Judge Minshall, on page 266, quotes the following from Mr. Justice Matthews in the case of Martin v. Cole, 104 U. S., 30, 37:

      “The'contract created by the indorsement and delivery of a negotiable note, even between the immediate parties to it, is a commercial contract, and is not, in any proper sense, a contract implied by the law, much less an inchoate or imperfect contract. It is an express contract, and is in writing, some of the terms of which, according to the custom of merchants and for the convenience of commerce, are usually omitted, but not the less, on that account, perfectly understood. All its terms are certain, fixed and definite, and, when necessary, supplied,by that common knowledge, based on universal custom, which has made it both safe and convenient to rest the rights and obligations of parties to such instruments upon an abbreviation.”
    It is urged that there is a distinction to be made between an abbreviated contract such as the indorsement of commercial paper and the reading into a contract, such as the one in this case, words which the law fixes as the legal result of the words which are used. There is a case, Waring v. Railway, 3 Bull., 893, the head-note of which reads:
    “Though a bill of lading is silent as to the goods being delivered within a reasonable time, yet that obligation is part of the written contract, and an action for failure to deliver in a reasonable time is not barred in six years, but in fifteen years.”
    Judge Burnet, in his opinion, says:
    “It is the duty of a common carrier, when goods are tendered to him for transportation, to receive them upon being paid a reasonable compensation for his services, and within a reasonable time to deliver them at the place of destination, and for a refusal except upon good cause, to'undertake the service, a right of action exists against the carrier. When goods are delivered to a carrier for transportation, the contract which the law implies is, whether there be any writing or not, that the carrier, for a reasonable compensation, will within reasonable time deliver the goods at the place of destination to the consignees. If there be a bill of lading given at the time the good® are delivered to the carrier, that bill of lading comprises not only a receipt for the goods, but a contract to fulfill the obligation which the law imposes on the carrier, and although the words be not put in the bill of lading that the carrier will deliver within a reasonable time, that is the legal interpretation of the contract which he enters into when the bill of lading is given, there being nothing put into the bill of lading to exclude that interpretation; and in the case of a bill of lading, then, that is a part of the contract in writing, and the right of action will. subsist for fifteen years without being barred by the statute.”
    And the reporter says, page 554:
    “The court here referred to the case of Haines v. Tharp, 15 Ohio, 130, and said it was precisely similar in principle to the ease at bar. In intendment of 'law, the contract contained in the bill of lading was to deliver within a reasonable time, and the contract was in writing, and was not barred in six years.”
    We are impressed with the soundness of the reasoning of Judge Burnet, and it seems to us that to say that, where one enters into such a contract as the one here sued upon, there is no promise on the part of the debtor to pay the debt because there is not in words a promise to p,ay, is to do violence to well-settled principles. The law implies in such a contract as the one in this case, as in such an one as Judge Burnet was discussing— a bill of lading — a promise. It is said that the suit must be brought upon a contract in writing under the statute, and that there must necessarily be a promise in- writing. . We think it is sufficient if there is a promise in the contract, and that there is by law just as distinctly understood, just as completely settled as in the case of the indorsement of commercial paper or in a bill of lading, a promise here to pay the amount which is acknowledged to be due.
    But even if that be not true, if we are wrong in that, we are still of the opinion that this contract comes within Section 4980, Revised Statutes, for it will be observed that it is not a promise to pay only to which the fifteen-year limitation applies, but an agreement or contract in writing. Now, it is agreed that this is an account stated, and an' account stated is an" agreement; it is an agreement entered into between the parties between whom there has been an account. An account stated is an agreement entered into between those two parties, by which one owes the other a given amount, or that the account balances — it may be such an agreement as that, but it is necessarily an agreement. When that agreement is put into writing it seems to us it clearly comes within the provisions of the statute. It certainly literally comes within the provisions of the statute, and it seems that in reason it should come within the provisions of the statute.
    The purpose of allowing a longer time within which suit maybe brought upon a written contract than is allowed upon a parol contract, or one of the reasons, at least, is, that in the one case you must depend upon the treacherous memory of witnesses as to what the contract is, and too much time ought not to be given, whereas in the other you have it so expressed that there can be no trouble to determine what it is and that lapse of time does not take away the ability to prove what the contract is, as it does in the case of a parol contract.
    A very elaborate brief is furnished on the part of the plaintiff and a great many authorities are cited, to some of which we have given attention, and those authorities are considered by the defendants in a brief filed by them. The case of Neighbors v. Simmons, 2 Blackf., 75, is very short, and attention is called to it because of the fact that not only is it cited on the part of the plaintiff, but commented upon on the part of the defendants to show, or the claim is made by defendants, that it does not apply in a case like this. The syllabus reads:
    “At the foot of azi account containing several items, charged : 1817, there ivas the following acknowledgment: ‘I acknowledge the above account to be just. Thos. Neighbors’. Held: That this acknowledgment was a written contract which, under the act of assembly, was not barred by the statute of limitations.”
    The court says in the opinion:
    “The contract, on which the action is founded, is an account of sundry items in favor of Simmons against Neighbors, amounting to one hundred and twelve dollars and sixty-two cents; the first item of which bears date the twentieth of January, 1817, ® * * at the foot of which there is this writing: ‘ I acknowledge the above account to be just. Thos. Neighbors.’ The act of assembly provides that no statute of limitations shall be pleaded as a bar, or operate as such, to any action founded on an instrument or contract in writing, whether the same be sealed or unsealed. We are of opinion that the written acknowledgment of this account forms a contract in writing, and that the plea of the statute of limitations, in this case, was inadmissible. ’ ’

      That reason, as we understand it, applies exactly to this case, and without stopping to read from other authorities, we have come to the conclusion that there was error on the part of the court of common pleas in holding that this was not such a contract in writing as authorized suit to be brought upon it at any time within fifteen years.
    The court of common pleas, whose opinion we have before us, called especial attention to promissory notes and reasoned from the language used by Daniels and other authorities on promissory notes that this ought not to be held to be a promise, but, as has already been said, we are of opinion it is a promise, although it is not an express promise; but whether a promise or not, it is a contract in muting. It was urged in argument that if the statute read “contract, promise, or instrument in writing” it might well be said here is an instrument in writing, and that there would be more reason for saying that this came within the statute and for the reason that it is an instrument in writing. What kind of instrument is it? Clearly an agreement; and, therefore, it is an agreement in writing.
    The definition of a promissory note given by Daniels and the definition given substantially by all the authorities is “An open promise in writing,” meaning, of course, an unsealed promise in writing, “by one person to pay another, or to his order or to bearer, a sum of money” (Daniels, Negotiable Instruments, Section 28). In Sections 36 and 37 Daniels goes on to say that unless there is an express promise in a written instrument having all the other features of a promissory note, it still would not be a promissory note, and he says that it has been held that “I. O. U. ” so many pounds has been held in England as not a promissory note, that there is a conflict of authority as to whether an ordinary due bill is a promissory note; but we apprehend that there can be no doubt that each of those is a contract in writing. Whether it be a promissory note or not, the question before us is, whether the instrument here is an agreement or contract in writing. We hold that it is.
    The judgment of the court of common pleas is reversed. And now coming to dispose of the ease, as we understand under Section 4980, Revised Statutes, we should do, we here enter the judgment that ought to have been entered in the court below. Judgment is rendered for the plaintiff for its claim.

      J. P. McCrystal and P. W. Babcock, for plaintiff in error.

      Kelly & Merrill, for C. A. Wikel, defendant in error.

       Affirmed without report, Wickel v. Deering & Co., 64 O. S., 548.


text:
    RAILWAY CROSSINGS OF HIGHWAYS UNDER. THE NEW STATUTE.
    [Circuit Court of Lucas County.]
    The City of Toledo v. The Toledo, St. Louis & Western Railroad Company.
    Decided, March 22, 1907.

      Eminent Domain — Acquirement by Railways of Right to Gross Streets and Highways — Jurisdiction of Probate and Common Pleas Courts with Reference Thereto — Crossings at Grade, Above Ch-ade and Below Grade — Evidence—Error—Injunction—Appeal—97 O. L., 546, Construed.

    1. The jurisdiction of the probate court in the matter of condemnation proceedings brought by a railroad company for the purpose of acquiring the right to cross a street or highway with its tracks is confined to the question of the necessity of making the crossing and assessment of compensation therefor.
    2. Whether the crossing shall be at grade, above grade, or below grade is a matter entirely within the jurisdiction of the common pleas; and where the railroad- company has acquired the right to cross by proper proceedings in the probate court, the privilege so granted is without any reference to the character of the crossing with reference to grade.
    3. In an action brought in the common pleas to enjoin the laying of a crossing at grade under a grant from the probate court, it is error to exclude testimony offered by the railroad company for the purpose of showing that the crossing in question falls within the exception provided in 97 O. L., 546.
    4. Where the proposed crossing is by a spur-track leading to manufacturing establishments, commercial houses and certain docks, it fails within the exception as to tracks for increasing “yard facilities at terminal or other points,” and the company has the right under the statute to cross at grade.

      Haynes, J.; Parker, J., and Widdman, J., concur.
    This case comes here by appeal and with it is also a case in error, entitled, The Tobado, St. Louis & Western BaÁlroad Company v. The City of Toledo, growing out of the case first mentioned. It seems, from the history of the case, that the railroad company filed, in 1906, a petition in the probate court for the purpose of appropriating a right of way across Erie street at a point that was mentioned in the petition; that such proceedings were had that the court first entertained a hearing as to whether it was necessary or not, etc., according to the statute, and a finding was made in favor of the railroad company, and a jury was ordered and was subsequently impanneled, which assessed the damages to be paid by the railroad company in the sum of two hundred dollars, and an order was entered that the railroad company might enter upon the property appropriated and lay its track across the street, and thereupon the railroad company took steps to lay its track.
    At this point the City of Toledo, by direction of the council of the city, interposed by the petition in question, setting up the facts in this appropriation proceeding, and averring that the railroad company was about to lay its track at grade across the street, and averring that under the statutes of the state of Ohio it was the duty of the railroad company to build an overhead bridge, and praying for an injunction restraining the company from crossing the street at grade, and for an order requiring them to build an overhead bridge. The petition sets out in substance the proceedings as they appear in the record, or largely so; that is the substance of the petition. The object and purpose of this petition is to compel the railroad company to go into the court of common pleas, under certain sections of the statutes that are mentioned, and obtain an order from the court of common pleas in regard to the crossing. The defendant-answers, admitting many things set up in the petition which are matters of record, but among other things denies “that the track in respect of which it has appropriated the right to use and occupy a portion of Erie street aforesaid in the proceedings in the Lucas Probate Court above set forth, is an extension of its main line from its present terminus in the City of Toledo, or a main track, and denies each and every other allegation in plaintiff’s petition contained and not herein above specifically admitted. “ * * On the contrary, defendant avers that the track, in respect of which it appropriated the right to use and occupy the above described portion of Erie street, is a switch or siding from its lines of railroad now constructed, to mills, factories and'other manufacturing establishments, industrial plants and piers located on 'the east side of Erie street aforesaid, and is an additional track to increase its yard facilities at its present terminals.”
    As I have said, the object of this petition is to prevent the railroad crossing or laying its tracks across the street until it has conformed with a certain statute that was passed April 25, 1904, 97 O. L., 546, approved May 3, 1904. The first section provides:
    “Except as in this act elsewhere provided, all crossings, hereafter constructed, whether of highways by railroads, or of railroads by highways, shall be above or below the grade thereof. ’ ’
    Section 2 provides:
    “Every railroad company constructing a new line of railroad, under its charter powers, across a highway, shall construct the same above or below the grade of the highway, unless permitted in the manner hereinafter provided, to construct the same at grade and location of highways in order to avoid grade crosstained in its charter and the general laws, for altering the grade and location of highways in rder to avoid grade crossings. ’ ’
    Section 4 further provides, among other things:
    “A petition shall be presented by the party desiring such construction (a. crossing at grade) to the court of common pleas of the county within which said crossing is situated, upon ten days notice to the corporation owning said railroad or to such municipality or authority, describing the proposed construction and setting forth the reasons that are supposed to make the same necessary or desirable; and the court of common pleas shall thereupon have jurisdiction of the parties and the subject-matter of such petition, and may proceed, summarily or otherwise, and upon such notice1 as it shall deem sufficient, to examine the matter, either by evidence, by reference to a master commissioner or otherwise; and, if satisfied that such construction is reasonably required to accommodate the public, or to avoid excessive expense, in view of the small amount of traffic on the highway or railroad, or in view of the difficulties of other methods of construction, or for other good and sufficient reasons, then it shall make an order or orders permitting such crossing at grade to be established. ’ ’
    That is to say, in brief, that the statute provides that the railroad shall build an overhead track, unless the court of common pleas makes a finding that it is proper and desirable and for the public benefit that it may cross at grade.
    But the first section, it will be observed, provides — “except as in this act elsewhere provided.” Section 6 contains an exception :
    “Nothing in this act shall prevent any railroad company from laying additional tracks at crossings previously existing, or from constructing switches, sidings and branch lines from their lines of railroad now or hereafter constructed to any mill, factory, or other manufacturing establishment, or other industrial plant, or any elevator, wharf or pier, or gravel, marl or clay bed, or any mine, or from laying additional track to increase their yard facilities at terminal or other points across public highways at the grade thereof, but such sign posts and signals shall be employed for the protection of such crossings as are by law prescribed for railroad crossings of public- highways.”
    The defendant avers that the track it is about to extend over Erie street .comes within this exception, that it is a crossing at a terminal point, and is made to reach other buildings and factories for the purpose of facilitating the terminal facilities.
    There was attached to this petition for condemnation or appropriation a map, a copy of which I hold. The original record was offered in evidence, and I simply refer to this because it is convenient; I have examined the original and this is a copy. Now, the map that was attached to the petition showed that what was originally a main line had come down wound fo †,3«> north .of ttiifl croainfi? and. had tatewNi ty* proaehed, or touched Erie street at a point a considerable distance east of this point. It shows that there was a large number of side-tracks reaching out from that terminal and coming down to Erie street. It shows that the freight house is at that point adjoining on Kraus street, and that the office building of the company recently constructed is upon the same piece of property and adjoining Kraus street, and these tracks all terminate at Erie street. That lying beyond Erie street is property of manufacturing establishments and of the gas, light and coke cornpany, and adjoining them is Swan creek, and the line of track they propose to extend comes around in a curve after it crosses Erie street and comes down' alongside of the dock and near these factories. All that is part of the original record of the case.
    The petition having been filed, an injunction was allowed. After that motions were interposed for the dissolution of the injunction a.nd were heard. It appears from the case that upon a motion to dissolve the injunction the court of common jileas refused to hear any evidence whatever, but determined the case entirely upon the appropriation proceedings in the probate court, and refused to dissolve the injunction, and that was alleged as error, and a petition in error was filed for the purpose of reversing the court upon that interlocutory. Order. Afterwards the case came on and was heard upon its merits, and the court of common pleas in that ease also refused to hear any evidence whatever and made an order based upon the appropriation proceedings. The ease was then immediately appealed to this court.
    Upon the hearing of the ease in this court testimony was offered on behalf of the defendant, the railroad company, in regard to the condition of the railroad property at this point. The city, by its attorney, interposed an objection, and that matter was argued. We took the objection offered under advisement, and admitted the testimony subject to the objections, and stated that we would rule upon that when we came to decide the case,
    it will lio olwwi.1, its l fiktri! 'before, tluit the coiiteww teu to wiiot-kir! &iv Hull fltftt utlliml eouipiitiiy- '«tito otnítbtlüh of-its yard and tracks at this point — will bring it within the main section of the statute or whether it comes within the exception. The railroad company refused to make any application to the court of common pleas to secure any permission, because it said it was not required to do so; that its right under the exception was absolute; that it had a right to go forward and build its track without asking for this permission; and the object of the city is to restrain them from doing so until they comply with the statute as the city interprets it through its attorneys.
    The appropriation proceeding is under Section 3283, and was passed many years ago. The statute provides that:
    “If it be necessary, in the location of any part of a railroad, to occupy any public road, street, alley, way, or ground of any kind, or any part thereof, the municipal or other corporation, or public officers or authorities, owning or having charge thereof, and the company, may agree upon the manner, terms and conditions upon which the same may be used or occupied; and if the parties be unable to agree thereon, and it be necessary, in the judgment of the directors of such company, to use or occupy such road, street, alley, way, or ground, such company may appropriate so much of the same as may be necessary for the purposes of its road, in the manner and upon the same terms as is provided for the appropriation of the property of individuals, but every company which lays a track upon any such street, alley, road or ground, shall be responsible for injuries done thereby to private or public property lying upon or near to such ground, which may be recovered by civil action brought by the owner, before the proper court, at any time within two years from the completion of such track. ’ ’
    The authority to cross this street is derived from that section of the statutes, or at least it is under that they can proceed and did proceed. The Legislature has granted to the defendant company the right to cross this street, provided it does so under the provisions of this statute. That is to say, they proceed as against individuals under Section 6420, which provides:
    “On the day named in any summons first served, or publication first completed, the probate judge shall hear and determine the questions of the existence of the corporation, its right to make the appropriation, its inability to 'agree with the owner, and the necessity for-the appropriation.”

      That matter comes up and is first heard before the probate court, and it determines whether the appropriation is necessary, and whether the proper steps have been taken to declare the desire of the corporation to make the appropriation. That matter underwent 'some discussion» in the Supreme Court in certain eases that went up from this county (72 O. S., 368). The court is authorized to pass upon the question of necessity, and upon these other questions generally, for the purpose of preventing any abuse of the right of appropriation; that is to say, that it shall not be appropriated for any other purpose whatever than the purposes that are provided in the statute, and not appropriated for any private ends or any collateral purposes, but simply for the purpose of enabling the railroad in the pursuit of its business and the operation of its railroad to make the appropriation.
    It is contended by the attorneys for the city that the finding of the court in the appropriation proceedings determines the whole character of this proposed crossing, and that no evidence may be offered for the purpose of showing the situation or condition of the grounds or the property of the railroad at this point.
    It will be observed that this statute under which the probate court proceeds is an old statute, years and years prior to this statute of 1904, and with the latter statute, as we understand, the probate court has nothing to do whatever. Jurisdiction in regard to the matter of permission to cross over grade or at grade is with the court of common pleas. All ,and everything that the probate court has to do is to make a finding in accordance with the provisions of the statute. The finding of the jury is determined by the oath of the jury. They were sworn in this ease as in others—
    “You, and each of you, do solemnly swear that you will justly and impartially assess, according to your best judgment, the amount of the compensation due to the proper owners in the cases which will be brought before you in this proceeding, by reason of the appropriation of their property described in the petition, to the use of the corporation, in the proceeding now pending, irrespective of any benefit from any improvement proposed, by such corporation; and yon do further swear that you will, in assessing any damages that may occur to such property owners, by reason of the appropriation, other than the compensation, further ascertain how much less valuable the remaining portion of said property will be in consequence of such appropriation.”
    That oath was drawn by the Legislature under previous provisions of the Constitution of the state of Ohio.
    In this case the court did proceed and the jury did asses the damages under the rules laid down and fixed the amount, following to some extent the decision of the 30th O. S., 604, in regard to the crossing of railroads; at any rate the amount was fixed and assessed.
    But whether that crossing should be over head or at grade is a matter with which the probate court had nothing to do, and we are unable to see how in any manner of form the judgment of the court in that respect can be binding or conclusive, at least upon this other question.
    In this action, which is brought by the City of Toledo for the purpose of enjoining' the railroad from crossing at grade, the city,takes the affirmative and it declares that the crossing is of such a nature and character as falls within the statute which I have already read in its first, third and fourth sections, and not under the sixth section. And for the purpose of enabling this court, or any court, to ascertain in regard to the matter whether the crossing is within the sixth section or within the first section, parol evidence is perfectly competent and proper and should be resorted to for the purpose of showing the condition of the grounds, the condition of the tracks, the nature of the track which is to be laid, the purpose for which it is being laid and the points to which it is to- run; in other words, to ascertain whether it falls within the sixth section of this statute or within the previous sections. We, therefore, overrule the objections that have been made, and we hold that it was competent for the railroad company to produce oral testimony, which it did, and to inform the court with regard to the character of the property of the railroad company at that point and of the objects and purposes for which the track was to be laid.

      It appears that the railroad, the main branch of it, where they commence distributing ears, is on the southerly side of Swan creek, and upon the uplands at that point some cars are sent off to the connecting railroads, but that for freight purposes, the working of its freight department, the road comes down across Swan creek on to these lower lands, where the company has purchased or appropriated a large quantity of ground for the purposes of a freight yard, and it is being used for that purpose; that there were across Erie street, upon the other side, certain manufacturing establishments, gas works and other commercial establishments of that kind that they wish to reach, and also that they wish to reach the dock line at Swan creek, and that for that purpose it will be necessary for them to cross the street; that they can do this work by perhaps crossing three times during the twenty-four hours, once during the daytime and the rest of the times during the night; that is the sole expectation and purpose of the use of the crossing. In other words, that it is to increase their “yard facilities at terminal or other points” and to reach these other establishments. And we are clearly of the opinion upon the whole evidence, upon the record of the case and the maps that have been introduced, that the contention of the company is correct, and that under the statute they have the right to cross this street at 'grade, and that the claim and contention of the city that they have a right to interpose an injunction to prevent their doing so is not well founded in law, and for that reason the petition in the appeal case will be dismissed and the order that was rendered as set forth in the petition in error will be reversed.

      Brown, Geddes, Schmettau & Williams, for the railroad company.

      C. S. Nor limp, City Solicitor, and John 1\ Mantón, Ass’t City Solicitor, for the city.


text:
    DUTY OF MOTORMAN UPON MEETING A FRIGHTENED HORSE.
    [Circuit Court of Mahoning County.]
    The Mahoning Valley Southeastern Railway Company v. Hugh H. Houston.
    Decided, March Term, 1907.

      Negligence — What Constitutes, Upon the Part of a Motorman — Upon Approaching a Frightened Horse — Respective Rights of the Driver and of the Car — Circumstances Control — Charge of Court as to Ordinary Care — A Charge Musi not Only he Correct, hut Must he Adapted to the Case.

    The failure of a motorman, when running the car at the ordinary speed, to stop or lessen its speed when observing that a horse approaching from the opposite direction is frightened, is not negligence, unless the circumstancess indicate that the horse has or will become unmanageable upon the approach of the car and that the driver or persons with him are or will be put in imminent peril.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    Error to Malioning Common Pleas Court.
    The son of the plaintiff was driving a horse and buggy along a public highway of this county. ITe was a young man full grown, of more than ordinary physical strength, and with him in the buggy was his sister, also fully grown. The highway was some fifty or sixty feet wide, level and in good condition. On one side of the highway was situated the electric railway of plaintiff, leaving a driveway of at least twenty-five to thirty feet for vehicles. The railway of plaintiff is an ordinary interurban railway for the carrying of passengers, and the cars the ordinary cars. As the car of plaintiff approached the horse and buggy, the horse, when about six hundred feet away from the car, showed evidence of fright, presumably from the approaching car, and the nearer he approached the car the more frightened he became, but was under full control of the driver until he got within fifty to seventy-five feet of the car, when he suddenly plunged to the side of the road opposite the track and then back again onto the track immediately in front of the car, and was killed.

      The motorman saw the horse and buggy as it approached but did not reduce the power or put on the brake until the horse became entirely unmanageable and plunged to the side of the road, when he immediately shut off the power and put on the emergency brake, but too late to prevent the accident. The car was running from twelve to fifteen miles an hour, which was the ordinary speed. The young man testifies that he held a tight rein and was in full control of the horse until he got within fifty to seventy-five feet of the car.
    The action was by the father, who owned the horse, to recover the value of the same.
    The two primary grounds of error assigned are: First. The verdict is against the evidence. Second. The court erred in the charge to the jury.
    As to the first ground, while there is some conflict in the evidence, yet it generally tends to support the facts as we have stated them and the question that is to be determined is: What is the _ duty of a motorman when he sees approaching him a frightened animal attached to a vehicle? Must he in all cases immediately bring his ear under control so as to be able to stop it at any minute, or may he go on, relying on the presumption that the driver of the animal will retain control of the animal and no injury will be done?
    “The rights of the driver of a horse and of the manager of an electric car meeting upon a highway are equal and each must use the way with a reasonable regard for the safety and convenience of the other.” Ellis v. Lynn <& •Boston Railway, 160 Mass., 341. ■
    What is a reasonable regard for the safety and convenience of the other? The authorities differ very materially on this question. Some hold that it is the duty of the motorman to immediately bring his car under control upon seeing a frightened horse approaching him no matter what the degree of fright might be, while others hold that if a horse becomes frightened at an approaching car and becomes unmanageable and runs away, injuring the driver and others, the company is not liable, unless the conduct complained of in the management of the car is attributable only to wanton or malicious disregard for the safety of the driver and occupant of the vehicle. Note to Street Railway Reports, Yol. 2, pages 642, 643, 644 and 645.
    We think both of these rules are too broad. Very much depends Upon the circumstances of each particular case; the age and sex of the driver of the vehicle, the width of the road and its condition, and other circumstances that might be mentioned.
    In a case like the one we are considering we think the true rule is: The failure of a motorman when running at the ordinary speed to stop or lessen the speed of a car, upon observing that a horse approaching from the opposite direction is frightened, is not negligence unless the circumstances indicate that the horse will become unmanageable if the car approaches, and that the driver or persons with him are in imminent peril. Terre Haute Electric Bañdway Company v. Yant, 21 Ind. App., 486 (51 N. E., 732) Eastwood v. La Crosse City By. Co., 94 Wis., 163 (68 N. W., 651) ; Flaherty v. Harrison, 98 Wis., 559 (74 N. W., 360).
    The case of Eashvood v. La Crosse City By. Co., supra, is nearly parallel with the one we are considering. In the opinion Mr. Justice Winslow says:
    ‘ ‘ The motorman of an electric car is not bound to slacken the speed or stop his ear at the moment a horse upon the street within his range of vision begins to show signs of uneasiness; an inference of negligence is not justified from the motorman’s failure to stop the car upon seeing that a team about one hundred and seventy-five feet in advance driven by a full grown man, was beginning to prance, where it appeared that the team was in a well traveled road at the side of a track nearly sixteen feet in width and was in perfect safety, and did not appear to be beyond the driver’s control.”
    In Flaherty v. Harrison, supra, it was said:
    “A street railway company can not be chargeable with negligence for the motorman’s failure to stop or slacken the speed of his car upon seeing that a team at the side of the track were uneasy, where the driver had full control of them until at the instant when they dashed on the track in front of the ear. ’ ’
    We are of opinion that the facts established by the evidence in this case are insufficient to sustain the verdict of the jury.

      The objection made to the charge of the court is that the jury should have been instructed .directly as to what was the duty of the motorman with regard to controlling his ear upon seeing the frightened condition of the horse; in other words, the circumstances under which it was his duty to slacken the speed of the car or stop it. The jury was only instructed that is was the duty both of the motorman and the driver of the vehicle to use ordinary care under the circumstances of the case or the situation in which they were placed.
    We think the counsel for defendant is right, and that it was the duty of the court to have instructed the jury as to what would constitute ordinary care under the particular circumstances of the ease. Defendant in its requests called the court’s attention directly to this question and, while they were too broad, yet they suggested to the court that it desired a specific instruction upon the real issue in the ease. Had the court instructed the jury as to the duty of the motorman under the circumstances thus surrounding him and the care he should have used, it is very doubtful if this verdict would have been rendered.
    In Little Miami Railroad Co. v. Wetmore, 19th O. S., Ill, it is held:
    “3. A charge to the jury, though not strictly objectionable .in point of law, but which leaves the jury to draw an incorrect inference from facts in the ease material to the issue, constitutes good grounds for a new trial, where it is reasonable to suppose, from a consideration of the whole evidence, that a different verdict would have been rendered if the jury had been fully instructed. The charge ought not only to be correct, but to be so adapted to the ease and so explicit as not to be misconstrued or misunderstood by the jury in the application of the law to the facts as they may find them from the evidence.”
    The judgment of common pleas court, for the reasons that the verdict is against the evidence and for error in the charge, is reversed and the case remanded for a new trial.

      Arrel, Wilson & Harrington, for plaintiff in error.

      Hine, Kennedy & Robinson, for defendant in error.


text:
    DISTRIBUTION OF RENT OF DEVISED PROPERTY.
    [Circuit Court of Hamilton County.]
    Mary C. Capelle et al v. Wm. F. Wieman et al.
    Decided, March 8, 1907.

      Devise — Death of Life Tenant — Apportionment of Current Rents — .Executors — Equity.
    Gotten, J.; Swing, J., and Smith, J., concur.
    This action was commenced to recover $20.15 received by the defendants as rent under the following circumstances:
    Henry Wieman devised the premises to his widow, Mary Wieman, for life with remainder to plaintiffs. The rent was due and payable from one of the tenants on the 15th of each month, and from the other tenants on the 1st of each month. Mary Wieman, the life tenant, died on the 12th day of November. 1905. The monthly rent due and payable on the 15th of November and the 1st of December following was collected by the defendant, W. F. Wieman, and apportioned between the plaintiffs and the defendant, as executor of the last will and testament of Mary Wieman, deceased.
    At common law when the life tenant dies during the term, neither party could recover any portion of the rent; by statute in England and some of the states, the rent is apportioned among 'such claimants. But no such statute prevails in Ohio, and the rent having been apportioned between the plaintiffs and the defendant executor according to principles of natural justice and equity, the former were not entitled to any relief, and the judgment dismissing their petition will be affirmed. Van Hayes, Executor, v. West, 3 C. C., 64'.

      John B. Von 8 eg gem, for plaintiffs in error.

      Furber & Jachson, for defendants in error.