text:
    STREET RAILROADS — ESTOPPEL—TIME—INJUNCTION.
    [Lorain (8th) Circuit Court,
    October 8, 1904.]
    Hale, Marvin and Winch, JJ.
    Minnie C. Chambers v. Cleveland & S. W. Trac. Co.
    1. Estoppel as to Main Track not Necessarily Extended to Switches.
    An estoppel arising against an abutting property owner to object to the existence of the main track of an electric railway company, cannot be extended so as to prevent her from objecting against the subsequent laying and maintenance of a switch, in the absence of other facts and circumstances which operate as an estoppel with respect to such switch. The facts that the switch is necessary to the operation of the main line, and that power is conferred upon the company to lay switches by its charter and the franchise granted by the county commissioners, are, in such case, immaterial. ■ ,
    2. Electric Railway Company may Extend Tracks after Time Limit,'how AND WHEN.
    The fact that the time limit has expired within which an electric railway company, under its franchise from the county commissioners, ■ was to have its line completed and in operation, will no't prevent the company from thereafter extending its road to new property under condemnation proceedings, or other rights lawfully acquired.

      i. Switch in PubDic Highway an Additional Burden.
    An additional burden is imposed upon a public highway by the laying of a switch therein by an electric railway company; and this is so, irrespective of whether or not such company is a mere “paper” company, or one already in operation over such highway.
    4. Laying of Railway Switch in Highway Enjoined; Removal Compelled by Mandatory Injunction.
    The laying of an electric railway switch in a public highway without the consent of an abutting owner, and contrary to the provisions of Sec. 5, Art. 13 and Sec. 19, Art. 1 of the Ohio constitution, will he enjoined at the suit of such owner, in the absence of facts and circumstances which work an estoppel; and where such switch has already been laid, a mandatory injunction will issue to compel its removal.
    Appeal.

      D. J. Nye and C. G. Washburn, for plaintiff.
    E. G. & H. C. Johnson and C. W. Collister, for defendant.
   MARVIN, J.

The case of Minnie C. Chambers against the Cleveland and South Western Traction Company and others, comes into-this court by appeal from the judgment of the court of common pleas.

The facts are that the plaintiff owns a farm in the township of Ridgeville in Lorain county, lying on both sides of a public road, and having a frontage along said road, or rather extending from east to west a distance of more than five hundred feet, through which the road runs. The plaintiff owns the fee of said road, subject.to the rights of the public to use the same for a highway.

In 1895 a predecessor of the defendant company, being incorporated for that purpose, and having obtained from the commissioners of the county a franchise therefor, constructed an electric railroad, passing along this rohd through the plaintiff’s farm, and extending at that time from the city of Cleveland to the city of Elyria.

The certificate of incorporation of the company which constructed the road, authorized the construction of an electric railroad, or a railroad using electricity for 'motive power with single or double tracks, with such side tracks," turn-outs, offices, depots, shops, telegraph lines, telephone lines, switches, poles, wires, devices, and all other necessary appliances for the operation of an electric railroad. And also authorized the railroad, or provided' that it was organized and formed for “the purpose of transporting passengers, packages, express matter, United States mail, baggage and freight over and upon said railroad. ’ ’

It was also formed “for the purpose of generating electricity by steam or water power, and the selling of the same for light, heat and power purposes, and the owning of all necessary real estate to carry out said objects.”

The franchise granted by the commissioners provided:

“That the railroad must be constructed to the satisfaction of the county commissioners, with a single track, with all suitable and convenient side tracks, switches, turn-outs, turntables and stations. And have the right, to construct and maintain all necessary wires to connect its-feed wires with adjacent property along the route herein petitioned for, necessary to supply light, heat or power to such adjacent property and all other things necessary to operate a first-class' street railway with inanimate power other than steam; poles for said railway to be located on the opposite side of the track from the traveled roadway, except when it may be necessary to locate a double line of poles at opposite sides of tbe street, such location to be decided by tbe commissioners. ’ ’

It also provided that said railway might be used “for the transportation of passengers, baggage, freight, express matter and United States • / mail.”

Along this highway upon the plaintiff’s premises a main track was built in 1895, on the south side of the traveled roadway. Plaintiff gave no express consent to the construction of the road, nor did she make any objection or protest to the construction of said main track, and the same has been operated from 1895 or 1896 up to the present time.

In October 1903, the defendant in the night time, commenced putting in a switch on the south side of this main track, along the highway running through the premises of the plaintiff. Immediately upon the commencement of the work, or immediately upon notice being received by the plaintiff, which was almost immediately after the work began that night, she protested and denied the right of the defendant to construct this switch, and did all in her power to prevent the construction of the switch. She sought for an injunction from the court as soon as. she could, to have the work stopped.

The switch has been completed, and is something more than three-hundred feet in length across her premises in the road, and the company is now operating that switch. The plaintiff prays that the defendant be enjoined from operating the switch, and by a mandatory order be required to remove the switch which has been put down.

As has been said, no consent of any kind has been given by the plaintiff to the construction and operation of this railroad, except her silence in letting the main track be constructed and operated.

' Does this carry with it consent to the construction of this switch? On the part of the defendant it is said that it carries with it the right of the construction of this switch, because the articles of incorporation and the franchise from the county commissioners, under which the defendant is acting, authorized the construction of side tracks, turn-outs,, switches, etc., as they should be necessary for the operation of the road. It is said that this switch is necessary for the proper operation of the road, and that therefore when she consented by her silence that the main track be laid along her premises she impliedly consented that such switch, turn-out or other device as should be necessary for the operation of the road should be constructed. If that is so, it would seem to carry with it consent on her part, if it became necessary to put up a power house on her premises which by its charter and by its franchise it was authorized to put up at all necessary places.

If this plaintiff had consented in writing that the main track might be built along the highway through her premises, and acting upon that the defendant had constructed this main line through her premises along this road, it can hardly be claimed that that consent would have given them the right whenever it became necessary for the proper operation of the road, to lay a switch or any additional track or put in any additional thing other than was necessary for the operation of that main line along this road. Is it possible that by standing by and consenting by silence that this main line be constructed and .operated, she gave a broader consent than if she had given in writing a consent that exactly that thing might be done % It seems to answer itself. It seems difficult to understand how it can be said that one by tacit consent, in seeing the work done upon her premises, gives a greater consent, gives to the corporation laying the track a greater right, than would have been given if consent to do exactly the same thing had been given in writing.

It is urged on the part of the plaintiff that since by the franchise it . is provided that the road shall be completed and in operation by a given date, which time has long since past, that under the franchise no switch could be laid anywhere that was not laid at the time the original main track and switches were laid.

We think the case of Toledo & W. Ry. v. Daniels, 16 Ohio St. 390 answers that, and answers it against the plaintiff. There it was held that the railroad company, a steam railroad company, which had a franchise to put in a railroad with necessary turn-outs, switches, etc., in the city of Toledo, might condemn property and extend its turn-out up to a certain mill property. Büt we think also that that same case clearly shows that in order to make such extension the company must acquire right to the property, if it is property that it is taking.

We are cited to the case of Cincinnati & Ind. Ry. v. Zinn, 18 Ohio St. 417, as affiriping the proposition laid down in the case of Toledo & W. Ry. v. Daniels, supra. It simply says, “That the other questions involved in this case are determined by the case of the Railway Company v. Daniels. ’ ’ Nothing more is said about it.

Numerous authorities are cited and fully sustain the proposition, that where one stands by and makes no objection to the use of his property by a railroad company or other public corporation, whereby large sums of money are expended, he cannot be heard later to complain of such use. But the cases cited in the brief of defendant, and so far as we know everywhere, the authorities go no further, than that one has given consent that the thing be done which he has stood by and permitted to be done, and he cannot later be heard to complain.

Considerable was said in argument that the putting dotvn of this switch was not putting an additional burden upon the property, and authorities are cited in support of that proposition. Those authorities, some of them at least, were cited and read over to two members of this court sitting as judges in chambers, and convinced us that this was not an additional burden, and we so held. But that case went to- the Supreme Court, (the case of Schaaf v. Railway, 66 Ohio St. 215 [64 N. E. Rep. 145]), and the Supreme Court said we were wrong; and now without regard to what the authorities are outside of Ohio, the latest authority of the Supreme Court of Ohio on that subject is the case before mentioned.

It was urged here in argument that the two cases are not alike, and some stress was laid upon the proposition that in the case,of the Medina railroad it was a paper railroad only, never had been built; but it was to prevent the building of it along the premises of the plaintiff in that case, because it would be a burden upon his property, that the suit was brought. And the court said, in the first paragraph of the syllabus:

“The construction and operation of an interurban railroad laid with T rails, entirely on the side of a public highway next to the abutting improved farms owned and occupied by the plaintiffs, and entirely between their lands and the traveled part of the highway — the company having authority to run an unlimited number of cars and trains for the carrying of passengers, and the transportation of freight, express matter and government mail, is an additional burden on the public highway and obstruction to, and interference with the plaintiffs’ easements and rights therein, not substantially different from those that are imposed by the construction and operation of steam railroads, under like conditions.”

Then follows the construction and operation of an electric plant, etc.

But that language laid down as the law in the syllabus it seems to us settles this case, and settles it in favor of the plaintiff. An additional burden has been imposed upon the plaintiff by the laying of this switch.

It is sáid she has a complete remedy at law. It is no more true . that she has a complete remedy at law than she would have a complete remedy at law if they went through one of her fields, and the constitution has disposed of that question, by providing as it does in Sec. 5, Art. 13, as to the taking of a right of way. And in Sec. 19, Art. 1, providing that private property shall not be taken for public use until compensation has first been made in money, or a deposit of money made.

We think it follows that as the defendant has taken the property, that is, has by putting an additional burden upon the highway taken the property of the plaintiff or established a right of way across her premises, without having first had the value of that property right in her determined by a jury or having paid it or deposited it, the injunction should and must be allowed.

' Now this track is laid down, and the order will be that it be removed, unless within ninety days from this date the defendant shall have by some proper means obtained the right from the plaintiff to construct and operate this switch.

Hale and Winch, JJ., concur.


source: Caselaw Access Project

author: McCARTY, J.

license: Public Domain

text:
    WILL CONTEST — PARTIES—EVIDENCE—ERROR.
    [Wayne (5th) Circuit Court,
    September Term, 1905.]
    Voorhees, Donahue and McCarty, JJ.
    William W. Gurley et al. v. Wade Armentraut et al.
    1. Executor or Administrator not Necessary Party to Will Contest, etc. '
    Failure to make the executor or administrator a party to an action brought to set aside a will, does not necessarily constitute a defect of parties.
    2. Presumption that Testator Destroyed Will when Same cannot be Found after Death,' etc.
    Where a will once known to exist and to have been in the custody of the testator cannot be found after his death, the legal presumption is, that it was destroyed by him with the intention of revoking it; and to strengthen this presumption, it is competent to prove the declarations of the testator after making his will that he had destroyed, or intended to destroy it.
    3. Testator’s Declarations of Intention Incompetent in Will Contest.
    While the declarations of the testator may be used to weaken the presumption that he has destroyed his will with the Intention of revoking it, his declarations may also be used as evidence to strengthen and fortify the presumption that he has destroyed his will with such intention; and whether it be the making of a will, or the destroying of one, the competency of the testator’s declarations as evidence is alike in each case, and for the same reason admissible.
    4. Alleged Will Competent Evidence when Controlling Issue is Forgery, etc.
    Where the controlling issue in a will contest is whether or not the alleged will is a forgery or genuine, any competent evidence tending to prove either fact is admissible, and should receive proper consideration by the jury; and to this end it is competent to introduce the disputed will in evidence for comparison with other written documents in evidence, proved to be genuine.
    5. Other Forged Wills Admissible to Show Purpose of Guilty Parties, etc.
    On the trial of an issue in a will contest as to whether or not the will in dispute is a forgery, other forged wills and papers are competent evidence to show the evil purpose of the guilty parties.
    6. Where Evidence Shows Will to be Forgery, Judgment not Reversed for other Errors.
    Where the evidence in a will contest conclusively shows that the alleged will is a forgery, a verdict and judgment to that effect will not be set aside by a reviewing court for errors committed on the trial by the trial judge, or in charging the jury.
    Error to Wayne common pleas eonrt.
    M. L. Smyser, N. W. Wolf and W. S. Kerr, for plaintiffs in error.
    McCray & McCray, F. W. Patterson and H. A. Mykrantz, for defendants in error.
   McCARTY, J.

On November 4, 1902, tbe defendants in error, who were then plaintiffs, began an action against the plaintiffs in error, who were then defendants, to contest the validity of a certain paper writing, which purported to be the last will and testament of “ S. Glass, ’ ’ deceased.

The action was brought and an issue was made up under the statute as to whether the so-called paper writing which purported to be ,the last will and testament of S. Glass, deceased, was his valid last will and testament.

It was averred in plaintiff’s petition below that said paper writing is not the last will and testament of the said Samuel Glass, but that said purported will is false, forged and fraudulent; that the first purported witness on said paper writing, viz.: D. B. F. Jones, is a-fictitious person or his name is a forgery; that the names of the second and third purported witnesses to said paper writing, viz., John P. Jefferies and •S. R. Bonewitz, both of whom are now deceased, are false, forged and fraudulent and were not written by said Jefferies or Bonewitz, and that all of the writing in said purported will, including the signatures together with all other signatures and indorsements thereon, is a forgery, and plaintiffs prayed that an issue may be made up as to whether said paper writing is the last will and testament of the said Samuel Glass, and that the same may be set aside and held for naught.

An issue was made up under the statutes as to whether said paper writing is the last will and testament of Samuel Glass; and it was ordered by the court that it be ascertained by the verdict of the jury whether said writing is the last will and testament of the said Samuel Glass or not.

The case was tried to a jury in Wayne county, it having been originally commenced in the Ashland common pleas court and on a change of venue transferred to Wayne county and there tried to a jury, who returned a verdict at the January, 1904, term, to wit: on March 8, determining that the paper writing purporting to be the last will and testament of Samuel Glass, deceased, is not the last will and testament of Samuel Glass, deceased.

And thereupon a motion for a new trial was filed, and on hearing was overruled, to which the defendants duly excepted, and a judgment in accordance with said verdict was duly rendered by the court adjudging that the paper writing produced in this case and purporting to be the last will and testament of the said Samuel Glass was not the last valid will and testament of the said Samuel Glass, deceased; to all of which findings and judgments the said defendants excepted. And thereupon a petition in error was duly filed asking, this court to reverse the judgment on the alleged errors:

(1) The court erred in overruling the motion for new trial.

(2) The court erred in its charge to the jury.

(3) The court erred in refusing to charge as requested by defendants.

(4) The court erred in admitting evidence objected to by the defendants, as shown by the bill of exceptions.

(5) The court erred in rejecting evidence offered by the defendants.

(6) The court erred in other matters.

(7) The judgment was against the weight of the law and the weight of the evidence.

(8) The judgment should have been given for defendants instead of for plaintiffs.

I will endeavor to dispose of these several alleged errors as they are presented in argument.

It is claimed by counsel for plaintiffs in error that there is a defect of parties in this, that no executor or administrator of the estate of Samuel Glass, deceased, has been made a party to this suit, which it is claimed the statute requires.

Laning R. L. 9395 (R. S. 5859) reads as follows:

“All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to the action.”

It will be remembered that Dr. Samuel Glass died on February 26, 1873, more than thirty-one years ago; and it is shown by the evidence in the case that at the commencement of this action there was no personal property of any kind, and no debts, so that under Lan. R. L. 9557 (R. S. 6018) there could be no administrator with the will annexed, for the very simple reason that there would be nothing for him to act upon, so that his appointment as such administrator would be a vain and useless ceremony.

In Andrews v. Administrators, 7 Ohio St. 143, it is decided that an executor is not bound to assume the burden of the defense of a contest of the will by the heirs at law, but may properly throw the same on the legatees or devisees. The executor is not entitled when the will is adjudged invalid to charge the estate in his settlement account with the expense of maintaining such defense.

In most of the eases reported, where the executor is given the power of sale of the land of the decedent the courts almost uniformly hold that the executor, in case he sees fit to exercise this power, holds the fee in the land. No such power is given in the purported will in this case.

And besides the petition in this case, and the evidence, show that all the heirs at law and devisees and legatees of Samuel Glass, deceased, are made parties.

The plaintiff in the case below, Wade Armentraut, was not an heir, , legatee or devisee, either at law or under the purported will, and he would have no power to secure thé appointment of an administrator with the will annexed.' So that the making of the executor or administrator a party would be useless:

We arfe therefore of the opinion that there was no defect of parties, of at least not such a defect as would be prejudicial to plaintiffs in error.

It is also claimed that the court erred in admitting in evidence the alleged declarations of Dr. Glass as to his intention to make a will, or that he had not made a will.

When a will once known to exist and to have been in the custody of the testator cannot 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 has destroyed, or intended to destroy, the same.

But while the declarations of the testator may be used to weaken presumption that he has destroyed his will with the intention of revoking it, his declarations may also be received as evidence to strengthen and fortify the presumption that he has destroyed his will with such intention, whether it' be the making of a will or the destroying of one, the competency of the testator’s declarations as evidence is alike in each case and for the same reason admissible. Collagan v. Burnes, 57 Me. 449, 465.

No claim is made that a will may be revoked by the mere declaration of the testator, or otherwise than by the modes prescribed by the statute, but a legal presumption is raised upon the decease of the testator that he destroyed his last will and testament in the statutory mode with the intention of revoking it. It is obvious that while the declarations of the testator may be admitted as evidence towards rebutting the presumption of such destruction and revocation before the death, they may with equally good reason be received as evidence to support and strengthen that presumption. Behrens v. Behrens, 47 Ohio St. 323, 332, 334 [25 N. E. Rep. 209; 21 Am. St. Rep. 820],

The strongly expressed conclusions in Reel v. Reel, 1 Hawks (N. C.) 248, is in accord with the citations already made. The court say in that Case: “To reject the declarations of the only person"having a vested interest and who was interested to declare the truth whose fiat gave existence to the will, and whose fiat could destroy, and in doing the one or the other could interfere with the rights of no one, involves almost an absurdity; and they are received, not upon the ground of their being a part of the res gesta, for whether they accompany an act or not, whether made long before or long after making the will, is entirely immaterial as to their competency. Those circumstances only go to show their weight or credit with the tribunal which is to try the fact.” This is quoted with approval in Behrens v. Behrens, supra, page 334.

In 1 Elliot, Evidence Sec. 533, it is said:

“The rule as to declarations of intention by a testator has been stated as follows: The declarations of a deceased testator as to his testamentary intention and as to the contents of his will are deemed to be relevant when his will has been lost, when there is a question as to what were its contents, and where the question is, whether an existing will is genuine or was improperly obtained, and the question is, whether any and which, of more existing documents than one, constitutes his will.
“In all these cases it is immaterial whether the declarations were made before or after the making or loss of the will. The rule might have been properly extended to say that declarations of a testator are received to corroborate direct testimony as to a will alleged to be a forgery, or to have been executed under undue influence or force. The court we think properly admitted the evidence of the alleged declarations of Dr. Glass showing his intentions as to the making of a will.
“It is also contended on the part of the plaintiffs in error that the court erred in permitting the papers purporting to be the wills of Dr. Glass and the letters and envelopes which appear in the bill of exceptions. It is not to be forgotten that the controlling issue to be determined by the jury was whether the alleged will is a forgery or whether it is genuine. Upon the trial of that issue any competent evidence tending to prove the forgery or genuineness of the instrument in contest is not the valid will of the testator is admissible and should receive proper consideration by the jury.
“As bearing upon this question ‘it was also held to be competent for the jury to compare the handwriting of documents properly in evidence, and proved to have been written by the defendant, with the handwriting of the cards in dispute, for the purpose of ascertaining the origin of the cards.’ United States v. Chamberlain, 12 Blatchf. 390 [25 Fed. Cas. 394],
“Comparison of a disputed handwriting with any writing proved to the satisfaction of the judge to be genuine is permitted to be made witnesses, and such writing, and the evidence of witnesses respecting the same, may be submitted to the court and jury as evidence of the genuineness, or otherwise of the writing in dispute. This paragraph applies to all courts of judicature, criminal or civil, and to all persons having by law or the consent of parties authority to hear, receive and examine evidence. Stephens, Digest of Evidence Art. 52, page 220.
“Writings not'relevant to the cause may be received irrespective of the rules as to the standards of comparison when offered not for the purpose of comparing handwriting as such but for the purpose of showing identical or dissimilar usages of languages, such as characteristic mistakes in spelling.
“On the trial of a person accused of uttering and publishing a forged deed for the conveyance of real estate with intent to defraud, other' forged deeds for the conveyance of real estate, including deeds of trust made to a trustee, to secure the payment of promissory notes or bonds found in his possession or proved to have been uttered and published by him are competent testimony to show the guilty knowledge of the accused. Lindsey v. State, 38 Ohio St. 507, third syllabus. ’ ’

But what is there aside from all this to show that this purported will is not the genuine will of Dr. Glass ?

Cloyd Mansfield, probate judge, Ashland, says the will is not genuine.

Joseph Patterson says it is not his handwriting.

A. G. Beer, postmaster for fourteen years, knew his handwriting well, and says the will is not genuine.

P. T. Crowell, D. P. McDonald, S. L. Arnold, Levi F. Bandie, expert, Thomas F. Hunter, William Franks, C. C. Adams, L. R. Kramer, W. H. Sampsell, George J. Knight, J. J. Sanborn, Ross W. Funck, prosecuting attorney, H. A. Mykrantz, and an almost innumerable number of other witnesses taken from all the various walks of life, bank cashiers, merchants, clerks, lawyers, postmasters, and men who often saw Dr. Glass write, sign his name and whose signature was as familiar to them as his countenance was, and there was as little likelihood of their being mistaken as to his signature or his walk, these witnesses, many of them, have testified as fully intelligently and with as much apparent familiarity as to the signatures of John P. Jeffries and S. R. Bonewitz, two of the alleged witnesses to the will. The other alleged witness to the will, D. B. F. Jones, has not been found, and that fact alone stamps the alleged will with suspicion as to its genuineness. These witnesses, who testify on that side, all testify with apparent clearness, that in their opinion the whole will and signatures of the witnesses to the will are all forged.

This purported will seems to have been written at Wooster, Ohio, on October 30, 1869, a time within the memory of the most of us; and to find none of the named witnesses to the will, nor any persons who ever knew or heard of him, and no trace of him or his whereabouts, is more than I can reconcile with the genuineness of the will, and there seems to be no way of reconciling the matter other than on the belief that it is all forged and untrue. These facts and circumstances all fit in and are reconcilable on the theory of forgery and upon no other possible theory can they be reconciled. True a great many witnesses have testified on the other side who are intelligent and honest persons and have given their opinion that the purported will and signatures are genuine. But we think the great weight of the testimony and circumstances when placed in the balance leaves but little room to contend in favor of the validity of the will. There is not a fact nor circumstance connected with the paper, its production in court where it was written, where it was sent to, to whom it was sent, and how the whole scheme worked that is reconcilable with the genuineness, and it is not only false, forged and counterfeited but the whole will, all names of the alleged witnesses are forged, and the whole of it is a part of the grand scheme, and shows a persistent and determined effort on the part of some one to provide a last will and testament for Dr. Samuel Glass.

From 1873, when Dr. Glass died, until 1897, when Mrs. Glass died, she treated all this property as her own and sold portions of it, and no question of her right to do so is ever raised, although if this purported will is to prevail the rights of innocent third parties would be jeopardized and they left without remedy. And within a few weeks after her death the wills came to parties in Ashland from unknown sources, also alleged promissory notes purporting to have been signed by-Dr. Glass as surety for various parties. Another striking coincidence is the fact, that all of the witnesses are dead, unless it be D. B. F. Jones, and he probably was never born — is a myth.

Dr. Glass died about March 1, 1873, his estate was administered upon in the usual way, and his widow became possessed of all property left by him as his sole heir under the law. Thé custodians of the paper purporting to be the will turned up after the death of the widow, which occurred more than twenty-five years after the death of Dr. Glass. John P. Jeffries died August 13, 1888, S. R. Bonewitz died in May, 1898 and the other purported witness, D. B. F. Jones, not found

The custodians of this purported will all lived during the time of Dr. Glass’s estate was being settled up, and it was not settled under a bushel or behind a barn secretly, but was settled in the usual ordinary way. Alexander Nelson acted as administrator in the settlement of his estate and must have .known what was going on. It could hardly have been otherwise. '

Isaac Stull who seems to have had the custody of this will did not leave Ashland for California until 1888, and neither before nor after he left California did he intimate to any person that he had the will, not even to members of his own family, and he lived in Ashland during the time that Alexander Nelson settled up the estate.

It is claimed that the court erred in its charge to the jury as follows :

“It is claimed by the plaintiffs, — by plaintiffs I mean to include such defendants as well as the plaintiffs who are against the will — and denied by the defendants — and by the defendants I mean such of the defendants as favor the will — that the alleged will in controversy was one of a number of purported wills in evidence, all forged in pursuance of a design by the person forging the same to cheat and defraud the rightful owners of the estate described in the alleged will in controversy, out of the estate or a large portion of it, and that the other writings in evidence were simulated and forged by him for the same purpose, and that all of these purported wills and writings, including the one in controversy, are in the same handwriting, by the same person, and that back of the purported wills and other written instruments was a general plan or scheme to defraud the rightful owners of the estate, and that the design or plan is evidenced by these purported wills and writings and circumstances developed in the testimony, and that they are so connected as to indicate a common purpose including in its scope the fraudulent purposes I. have described.
“The fact of forgery of a particular paper cannot be shown by proof of other acts of the same kind, and these alleged wills and writings claimed to be forged were not admitted in evidence, and cannot be considered to prove that the alleged will is forged or genuine. But if you find that such person did forge the purported wills and other writings you can consider them with other circumstances developed in the testimony bearing cm the question to show that at the time of the execution of the alleged will in controversy such person had fraudulent design you can consider that he had such design in determining whether the alleged will in. controversy is genuine or forged by such person, but for that purpose you can only consider such of said reputed wills and instruments as you find forged by sucb person and forged within a reasonable time "to that at which the alleged will in controversy was executed to show the plan of such person at that time.”

I cannot answer this objection to the charge better than by quoting what is said in Lindsey v. State, 38 Ohio St. 507, where it is said:

“On the trial of a person accused of uttering and publishing a forged deed for the conveyance of real estate with intent to defraud, other forged deeds for the conveyance of real estate, including deeds of trust, made to a trustee to secure the payment of promissory notes or bonds, found in his possession, or proved to have been uttered and published by him, are competent testimony to show the guilty knowledge of the accused.”

We think the court properly instructed the jury and that there is no room for complaint on that ground.

If we are right in our conclusion as to the fact of this being a forgery, — in other words, if it is a forgery, — no matter what the court said to the jury as to how they should consider certain branches of the testimony, or what their finding should be, the fact remains that the will is forged, fictitious and a counterfeit, and no charge of a court or finding of a jury would change the fact or instill new life into that already dead. It is not like that, that had some sparks of vitality in it that might be revivified, but if our conclusion is right it is false in toto.

Take all of this evidence from the beginning to the end and all of these remarkable circumstances and coincidences — the fact that all of the principal active and merely passive participants in this grand scheme are all dead; the will comes to light after they have all closed their eyes in death; no one is left to tell the story although those are living if there ever was a genuine will, who could have told the story and who naturally would have told the whole truth. One of these, or both alleged witnesses lived during the time the estate of Dr. Glass was being settled, and for many years thereafter. They were on the will and within reach, and the most natural thing in the world for them to do would have been to tell it and yet no syllable escapes their lips about it.

This conduct is too unnatural to be true. It is not true. The jury made no mistake, and no matter if any error has crept into the record, if the main issue — viz.: Was the paper writing a forgery? — has been properly determined, and we think it was.

But suppose we are wrong on some of those and still right on the main issue as to whether it is a forgery, the alleged error must be prejudicial error.

Laning R. L. 8630 (R. S. 5115) reads as follows:

“The court, in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed, or affected, by reason of such error or defect.”

There must be prejudicial error to authorize the reversal of a judgment. When from the whole record it appears conclusively that the proper judgment was entered, the proceeding will not be reversed' on error if the court mistook the law on some of the propositions discussed during the trial.

In order to justify the reversal of a judgment on error the record must affirmatively show not only that error intervened but that it was to the prejudice of the party asking to take advantage of it.

It is also settled that a judgment will not be reversed for erroneous instruction where it clearly appears from the whole record that it did not prejudice the rights of the party objecting thereto. Where upon the whole record it is apparent that on a retrial no recovery can be had a judgment in favor of defendant will not be reversed merely because the court below may have erred in their instructions to the jury.

Finding no error in the record prejudicial to the plaintiffs in error the judgment of the common pleas court will be affirmed, without penalty, at the costs of the plaintiff in error.

Plaintiffs in error except. See entry.

Voorhees and Donahue, JJ., concur.


author: HAYNES, J.

text:
    DAMAGES — RAILROADS.
    [Lucas (6th) Circuit Court,
    February 18, 1905.]
    Hull, Haynes and Parker, JJ.
    Toledo Ry. & Term. Co. v. Bridget Meinen.
    1. Difference in Value of Property Before and After Allesed Injury Measure of Damages, when.
    The measure of damages, in an action by a property owner under Lan. R. L. 5239 (R. S- 3283), against a railroad company to recover for injuries resulting to her property from cinders, noise, and smoke, is the difference in the value of the property before and after the alleged injury.
    2. Property Situated within Fifty Feet of Railroad within Meaning of Lan. R. L. 5239 (R. S. 3283).
    Property situated within fifty feet of that part of a street on which a railroad is built and operative is “near to” the same within the meaning of Lan. R. L., 5239 (R. S. 3283) and the owner of such property is entitled to recover for injuries thereto sustained from cinders, smoke, noise, etc., arising from’ the operation of the road within the limits of such street at that distance from said property.
    Error to Lucas common pleas court.
    King & Tracy, for plaintiff in error.
    Kohn & Northup, for defendant in error.
   HAYNES, J.

This ease was brought in the court of common pleas by Bridget Meinen against the Toledo Railway and Terminal Company. The petition sets forth that the plaintiff was the owner of lot 25 Machen’s Addition to Ellenboro, East Toledo; that on lot 25 she had erected a building that was to be used as a boarding house, containing seventeen rooms, with several sleeping rooms on the second floor, and living rooms on the first floor. Lot 25 is bounded on one side, the easterly side, by an alley and on the southerly side by Pratt street; it is triangular in shape and runs out to a point of the alley and Pratt street. The house that was built on this lot fronted on this corner and extends across the corner from the alley to Pratt street and leaves a little triangle in front or a sort of a yard and faces towards the east. It is a distance of forty-seven or forty-eight feet from the line of the railway on the northerly corner and on the southerly side it is forty-nine or fifty feet. The line of the railroad comes around in that neighborhood and then there is a spur to the blast furnace, so called; and this extends around to the north side of this property a distance, as I have said at the northeast corner of the house forty-seven and seventy-five hundredths feet; that by reason of the operation of its cars upon this spur also upon the main track, the property is greatly injured by cinders, sparks, smoke and noise.

The case was tried to a jury before Judge Reed, of Sandusky, and there is a great volume of evidence. The case was very troublesome to try, so far as the witnesses were concerned, in propounding the questions to them and getting the answers, for the court said, as it should do, it would confine the damages to the injuries sustained, to the point where the railroad crosses Pratt street and confine them to such injuries as were not suffered in common with all the country thereabouts. In taking the testimony the questions were put mainly as to the value of the property before and after the operation of the railroad, and confined as far as possible to the crossing of Pratt street.

It is claimed on behalf of the railway company that this theory of the injury, the questions put to the witnesses, was all wrong. Objection was made to the form of the questions; and they contend here that the questions should not have been put in that form; as I understand the brief of counsel, they claim that the questions as to the effect of the operating the road by the place should be confined to the facts as to what was done and to the noise, smoke, sparks and cinders, — the injuries ; that then the jury should find a verdict from those facts.

But we think the law of this ease is well laid down in the case cited, Railway v. Gardner, 45 Ohio St. 309 [13 N. E. Rep. 69], a case which was practically followed and approved by the Supreme Court of the United States in a case brought under the same law, Shepherd v. Railway, 6 O. F. D. 322 [130 U. S. 426; 9 Sup. Ct. Rep. 598; 32 L. Ed. 970], decided in 1888; that form of question is approved and the rule is laid down. It is practically the difference in the value of the property before and after the alleged injuries.

Now the plaintiff below produced, I think, three witnesses; and the defendant below produced about a like number, and these questions in this form were put to the witnesses; and we think they were put with proper limitations and with proper care by counsel. It is difficult to get a witness to understand and answer specifically touching the injuries that would result from crossing Pratt street, and to not include the injury that would result from operations either side of Pratt street; for virtually there is the same injury to the property from operations on either side of Pratt street. And some of the witnesses do not attempt to decide that; they said they would give the whole injury and let the court divide it up; that they could not do it. I think the highest estimate put by anyone on the damage to the property from operations in the street was $1,000. I think one of the witnesses estimating the damhges arising on either side of the street placed it at $1,250; another witness placed it as low as $100 — some $200 and $300. It is quite evident that the damages from the operation of the road in Pratt street are not $1,000, as testified to by the witness, when the estimate that the witnesses placed on the value of the whole property was only $3,000. Onty a small portion of the damage results from operations in Pratt street, and the whole damage, if that ratio were maintained, would eat up the property and have something to spare.

The truth is, that the damage was not as great as that witness placed it, or attempted to; and we think, after giving the matter very careful attention, that the highest damage that should have been awarded, or could properly have been awarded by the jury in favor of the plaintiff below was $250, considering the value of the property, and estimating the proportion that Pratt street ought to bear of those damages as compared with the whole of the property.

Now this woman bnilt her house in that section of the country, for the purpose of having boarders from the railway companies., They were not a great ways from the Lake Brie shops, and there were other institutions and manufactories down there; they were in a district of that kind; in a district where it was expected in the ordinary course of business there would be smoke and noise, those various elements of which she complains from the use of this railway.

Some objection is made to the charge of the court. Now we think the charge to the jury was very full, and fairly stated the law and was carried forward with great care on the part of the court, and kept within the decisions of the higher courts. It was difficult to explain. One of the difficulties that arose was from the failure of the witnesses to comprehend the subject, and another difficulty was, that the jury when they came to put on the damages that have been caused by the operation of the railroad, estimated it without stopping to pay much attention to the rule of law as laid down to them by the court, requiring them to consider only the damage resulting from the operation of the road in the street.

Now as a result, we have come to this conclusion in this case: If the plaintiff will remit the damages down to $250, the verdict may stand; otherwise the verdict will be set aside as being excessive and the judgment reversed.

I omitted perhaps to state one point in the charge that was objected to, that the court stated that this property was so near to the railroad that it came within the statute, Lan. R. L. 5239 (R. S. 3283). We think under the circumstances that the charge was proper enough, because it is so near, on the whole testimony as to justify the charge that as a matter of law it was “near to” the railroad, within the meaning of the statute. A judge of the Supreme Court of the United States, Harlan, has decided and laid down the general rule for that court, that if the property was so near the railway that it could or did receive injuries from the operation of the road in the form of cinders, smoke, or matters of that kind, they were entitled to recover; and the evidence here is, that it was within’ a distance of fifty feet — less than that. It was proper for the court to say that the distance was such and that it was within the statute.

Hull and Parker, JJ., concur.


text:
    CARRIERS — RAILROADS—NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    February 11, 1905.]
    Hull, Haynes and Parker, JJ.
    Wheeling & L. E. Ry. v. Lewis Rupp.
    1. Railroad Held to Invite Consignee’s Employes to Unload Freight, When.
    Where a railroad company delivers a car of freight over one of its side tracks to the consignee for unloading, which track' however is on the property of the consignee, it will be deemed to have invited the employes of the consignee to enter the ear for the purpose of removing the freight; and where one of the employes is injured by reason of the failure of the railroad company to place and secure the car in a proper manner, the railroad company :z liable therefor.
    2. Jury Warranted in Finding Car Brakes Improperly Set, When.
    The jury is warranted in finding that the brakes on a freight car had not been properly set, or became loosed through the fault of the company, where the evidence shows that while the car was being unloaded on a siding it started down the track, and there is no evidence to show that the brakes had been tampered with either before or after the consignee’s employes started to unload the car.
    Error to Lucas common pleas court.
    Seiders & Monnette, for plaintiff in error:
    Negligence. Lamb v. Boyd, 2 Circ. Dec. 672 (4 R. 499) ; Burdick y. Oteadle, 26 Ohio St. 393 [20 Am. Rep. 767]; Bailey v. Gas Co. 2 Circ. Dec. 656 (4 R. 471).
    O. S. Brumback, for defendant in error.
   HAYNES, J.

In this case a petition in error was filed for the purpose of reversing the judgment of the court of common pleas in an action wherein Henry Rupp was plaintiff and the receivers of the railroad company were defendants, and which resulted in a verdict a<nd judgment against the receivers of the railroad company.' It was a personal injury case. It appears that the Toledo Tinware Manufacturing Company, a corporation, was carrying on business on Buckeye street in this city, near the main line of the Wheeling & Lake Erie railroad track. The railroad company had built a track out to the building which was occupied by the tinware company, they retained the title to the track and the control of it; the track, however, was built upon the land of the tinware company; the' railroad company received freight from the tinware company and carried freight to it. The receiving and carrying freight was done by setting cars upon this side track at a door of the building of the tinware company, from whence the freight was loaded or unloaded, as the case might be, by some arrangement — the arrangement was, that the tinware company should load and unload the freight. The railroad company set the ear upon the track, securing it there. The track itself was somewhat inclined from the building towards the main track, quite a little descent, so much so that the car would not stand upon the track without being secured by a brake or otherwise. At the time of the accident, the railway company — the receivers — had set in upon this side track a car loaded with tin for the tinware company. It was a box car, and was secured by setting the brakes upon the car. One of the witnesses thought perhaps they had blocked it, others not. The weight of the testimony seems that they had not. Just how long the car had been in there is not quite definite, some say the day before and some the same day. Probably it was there the day the accident occurred.

The manager of the tinware company opened the door and proceeded to unload the freight, and while doing so the car started upon the incline — started to go down. The plaintiff, who was an employe of the tinware company was then in the ear. When the car got down to the main track it jumped the track and perhaps turned over. The plaintiff jumped from the car and landed upon a pile of stone and his foot was injured; he sprained it. At any rate the ligaments were badly sprained, but no bones broken. Thereupon he brought this suit. It went to the United States circuit court, thence to the United States circuit court of appeals, and finally got back here again, and was tried in the court of common pleas of this county to a jury. The jury returned a verdict for the plaintiff on which judgment was entered; and it is to reverse that judgment that the case is in this court.

The controversy in this case, the contention as between counsel for the plaintiff in error and defendant in error, relates very largely to the theory upon which the case was tried in the common pleas court; and has resulted in a very learned and able discussion of the legal questions involved in the case. It is claimed on behalf of the plaintiff in error that the receivers are not liable; that if any person is liable at all, it is the tinware company on a liability to its employe to furnish him a safe place to work; that if there was any defect in the manner in which the car was set, or if it was insecure in any way, the liability resulting from, the negligence in that respect is upon the tinware company, the master, for failing to have examined, seen and known that the place 'where the men were working was secure.

It is claimed further that the position of these parties, the receivers and the tinware company, toward each other, the relations of these parties, would be substantially that of landlord and tenant; that is to say, the railway company owning the cars, the tinware company would sustain the relation of person who was permitted to enter the car and ■do some work for itself; and that if it invited its men to work in the car, the tinware company alone would be responsible and not the railway company, citing the case of Burdick v. Cheadle, 26 Ohio St. 393 [20 Am. Rep. 767] and other eases along that line. In other words that there was no privity of contract between the receivers of the railroad company and the plaintiff in this case, and counsel have made a very able argument upon those questions. There were some minor questions in the case that have been touched upon in the argument, but it is not necessary to refer to them here.

Now we are called upon to decide as to the character of this employment and the relations between these parties. It seems to us from a very careful consideration of this case that the situation is substantially this; and not otherwise: The railway company was carrying its freight and placing its car alongside of that building; it was placing its ear there to be unloaded. If it had taken its freight to the freight depot, it might have unloaded it itself, probably would, but by custom, or by arrangement between these parties, the consignee, the tinware company, was to unload this car, and in doing so, it was to enter upon the car and take out the freight. The expectation of the company was and must have been that the tinware company would, by its servants and agents, perform this work — largely of course, by its servants; and we ■do not see how the conclusion can be resisted that these men in the employ of. the tinware company went into this car to remove and did remove this freight, under the invitation and by the consent of the railway company that they should do so. They were not trespassers there, —nothing of that kind — nor was the tinware company, as we conceive it, in any way tenants of that car; they went in there to perform their work, for the benefit, of course, of themselves, and for the benefit of the vailway company, because, as a matter of course, the railway company wanted the freight discharged and the use of the car, and wanted their pay for the transportation. So that in our judgment, the eases that have been cited by learned counsel that have been so ably argued do not apply to this case. We think the case is simply and properly one where the ear was placed there and the parties in the employ of the tinware company went in to 'perform their work, upon the invitation of the railway company. And without discussing the cases that may bear upon this question, we think the law of the land is, that the railway company, under those circumstances, if it fail in the performance of any duty towards these men, is liable; that if it failed to place that car at this point and secure it in a proper manner so that it became insecure and passed down the line of the road, then that it was the fault of the company, for which it would or might be liable to the employes of the tinware company who worked in this car, for injuries arising from such negligence.

There was some question as to the manner in which the car was placed at this point, a question as to whether it was properly secured. There seems to be no evidence here that the brakes were out of order in any way. The men testified that thejr took it down and set the brakes and left the ear. It did not appear that the brakes had been changed or tampered with in any way before, or at the time the men went in there to work, discharging the freight. But at some time during the performance of the work the car was noticed to start; persons outside saw it start and ran towards it, but the car had so much weight and so much headway that it could not be stopped; and it would seem to be a fair and just conclusion in the case, and one at which the jury might properly arrive that the brakes had in some manner become loosened, failed to -hold, had not been properly set and failed to perform their duty; and that the car went down the track, without any negligence on the part of the tinware company or the man in the car.

Now with that state of facts, that theory of the law, we hold that the charge of the court was correct and the verdict of the jury might be sustained by the evidence. There is no contention on the part of counsel for plaintiff in error, but what on the theory of the plaintiff below and the theory of the court of common pleas, that, the charge was full and complete, and the case seems to have been well presented to the jury by the court.

It is suggested that the verdict is too large. But it appears from the testimony of physicians that was offered by the defendant below that he experienced that sprain, — it may be called an injury that at any rate was serious. One of the ligaments of the ankle or foot seemed to have been very badly sprained, and while there is some improvement, there is practically no hope for complete recovery. The man walks with the aid of a cane. The physicians think he might some time be able to walk without the aid of a cane, but will never be able to do any heavy work; that he will always be troubled with that foot; it will be an infirmity; and under all the circumstances of the case, we are inclined to let the verdict of the jury stand as it -is.

The judgment of the court of common pleas will be affirmed without penalty.

Hull and Parker, JJ., concur.


author: PER CURIAM.

text:
    SCHOOLS — CONSTITUTIONAL LAW.
    [Washington Circuit Court,
    September Term, 1904.]
    Cherrington, Jones and Walters, JJ.
    State ex rel. Waterford Tp. (Bd. of Ed.) v. James Hickman et al.
    New School Code (97 O. L. 334) Unconstitutional insofar as it Attempts TO’ Recreate and Legalize Special School Districts.
    The parts of the act of the general assembly of April 25, 1904 (97 O. L. 334 et seg.), insofar as they attempt to recreate and equalize special school districts theretofore “existing,” are in conflict with that part of See. 26, Art. 2, of the state constitution which provides that “all laws of a general nature shall have a uniform operation throughout the state,” and are, therefore, unconstitutonal and void. State v. Spellmire, 67 Ohio St. 77, followed.
    QUO WARRANTO.
    This is a petition in qno warranto to oust from office the respondents who are acting as directors of a special school district organized by an act of the general assembly of the state of Ohio entitled “An act to establish a special school district in Waterford township, Washington county, Ohio (94 O. L. 630, 631), passed April 14, 1900, and known as “Coal Bun special school district,” claiming that said act was in violation of Sec. 26 of Art. 2 of the constitution of Ohio, which provides that “All laws of a general nature, shall have a uniform operation throughout the state.”
    The petition was filed in July, 1903, and service made in the same month. October 30, 1903, a supplemental petition was filed averring that one of the respondents had died and one had resigned since filing the petition and the appointment and acceptance of two persons who are acting as directors.
    The case stood on the docket practically untouched till this term when respondents filed an answer saying that, “they admit that on April 14, 1900, an act was passed by the general assembly of the state of Ohio as alleged in, and as set forth in, the petition herein; they admit that at the time of the filing of said petition, by authority of said act, said Hickman, Ross and Bartlett had been elected and then were the acting directors of said Coal Bun special school district, and as such directors claimed to have and exercise the authority alleged in said petition, and had in fact done the acts alleged in said petition; they admit that said act ,was, as held by the Supreme Court of Ohio, in contravention and violation of Sec. 26, Art. 2 of the constitution of Ohio; they admit that since the filing of said original petition said respondent, James Hickman, resigned his said office of director of said Coal Run special school district, and the samé has been accepted, and that the respondent, David Ross, died, and that said Freeman S. Beebe and Lemuel Rose have been appointed directors of said Coal Run special school district to fill the vacancies caused by the resignation of said James Hickman and the death of said David Ross, and are now filling the office of and acting as directors of, said special school district, and exercising all the rights and privileges, and doing and performing all the things formerly done and performed by said James Hickman and David Ross as set out in said original petition.
    “The said respondents, J. Wesley Bartlett, Freeman S. Beebe and Lemuel Rose, aver that they are, under and by virtue of an act of the general assembly of the state of Ohio entitled, “An act to provide for the organization of the common schools of the state of Ohio, and to amend, repeal and supplement certain sections of the revised statutes and laws of Ohio herein named,” passed April 25, 1904, and found in 97 O. L. 334 to 381, both inclusive, and especially under Lan. R. L. 6381 and 6415 (R. S. 3891 and 3928), as amended by said act, the duly elected, qualified and acting directors of the Coal Run special school district, and the members of the board of education of said special school district, and that under said act said the Coal Run special school district is a legally existing and valid special school district, containing the same territory as the Coal Run special school district intended to be created by said act passed April 14, 1900, set out in the petition herein, namely: the territory described in Sec. 1 of said act passed April 14, 1900; that on April 25, 1904, and at all times since the year 1900, there has actually existed in Waterford township, Washington county, Ohio, a special school district, known as Coal Run special school district, containing the territory and having the boundaries set' forth in Sec. 1 of said act passed April 14, 1900, which on April 25, 19.04, and for more than three years theretofore, actually existed as a complete, active de facto special school district, in charge of an actual, active and de facto board of school directors, and board of education, consisting of these respondents and their predecessors named in the original petition herein, containing schoolhouses and schools in charge of, and conducted by, these respondents and their said predecessors as officers and members of the board of education of said special school district; and that on April 25, 1904, under and by virtue of said act of April 25, 1904, said territory, which is hereinafter described, became a special school district, in charge of these answering respondents as the directors, officers, and members of the board of education thereof, until their successors are elected -and qualified as provided by said act, for the reason that these respondents were on said April 25, 1904, and theretofore, the officers and the members of the board of education of said existing special school district, which said existing special school .district, existing on and prior to April 25, 1904, and which now existing special - school district under said act passed April 25, 1904, contained and contains the following described territory situate in Waterford township, Washington county, Ohio, known at all times as Coal Run special school district, to wit:
    (Description follows.)
    “These answering respondents allege that under and by virtue of said act of April 25, 1904, said territory now constitutes a special school ? district, known as the Coal Run special school district, and that they are now the directors and members of the board of education of said special school district, with all the powers and authority conferred upon such officers by the laws of the state of Ohio.
    “Wherefore these answering respondents pray that the prayer of said original petition and of said supplemental petition may be wholly denied and said 'petition and said supplemental petition dismissed, at the costs of said relator, and that they may have any and all relief to which they are entitled. ’ ’
    The "relator demurred to the answer, assigning as reason, that the same did not state facts sufficient to constitute a defense to the petition.
    J. C. Preston, for plaintiff.
    A. D. FoIIet, for defendants
   PER CURIAM.

We are unable to discover any special virtue in the facts set out in the answer, for if it contains a defense it could as well have been made by demurrer to the petition; the gist of the answer as we construe it being, besides its admissions, a plea of a pre-existing de facto special school district under the special act of April 14, 1900, and that the same is now a legally existing and valid special school district under and by virtue of the act of the general assembly of 1904, referred to.

The only question now, as we conceive, is as to whether the special school districts throughout the state created severally by special acts of the general assembly and conceded to be in contravention of the constitution, are recreated and legalized as special school districts by general reference to the same in the general act named of April 25, 1904, or is the part of the act, referring to snch districts, legislation special in character ?

Laning R. L. 6381 (R. S. 3891) provides that:

“Any school district, now existing, other than a city, village or township school district, and any school district organized under the provisions of Chap. 5 of this title, shall constitute a special school district.”

Laning R. L. 6415 (R. S. 3928) provides that:

“Nothing herein contained shall be so construed as to abolish any special school district now existing, but all such districts whether •created under the provisions of a general or special.act, including the territory now constituting such special district shall, unless changed under the provisions of this chapter, continue to be and remain and be recognized and regarded as legal special school districts.”

At the passage of the act there were no special school districts “existing,” — the acts, by which their creation had severally been attempted, had been declared void and the reference to them in the sections above must be deemed to be simply a description of territory out of which the certain several special school districts were to be created by the general act. It is beyond the power of the general assembly to create a single special school district.

Can it create ten or one hundred, if that be the number heretofore attempted to be created? Certainly not, because such attempt would be special legislation.

Is it any the less special by reason of being edged in between two sections of a general statute following Lan. R. L. 6381 (R. S. 3891), which attempts to mark out an arbitrary classification, which we think beyond the legal powers of the general assembly to make? We think not.

The holding of this court will be that the features of the act of April 25, 1904, attempting to recreate and legalize special school districts theretofore existing are in contravention of that part of Sec. 26, Art. 2 of the constitution of Ohio, which provides that all laws of a general nature shall have a uniform operation throughout the state, and are unconstitutional and void.

Demurrer to the answer sustained and judgment of ouster entered. ■


author: PARKER, J.

text:
    CHARGE TO JURY — ERROR—NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    October 20, 1904.]
    Parker, Hull and Haynes, JJ.
    Emil Lalond v. Toledo (City).
    1. Charge to Juey Will be Applied to Pacts Shown to Exist.
    A charge to the jury will be applied by a reviewing court to the state of facts which was shown to exist.
    2. Street Traveler not Bound to Keep Lookout for Particular Obstructions, when.
    The duty imposed upon a sti’eet. traveler to use reasonable precautions for his own safety, does not require him, as a matter of law, to keep a lookout for particular obstructions in the street, such as loose paving blocks which had fallen from a wagon, of which he had no knowledge.
    Error (Rehearing).
    A. G. Duer and C. S. Northup, for plaintiff in error:
    A charge which implies that if plaintiff’s negligence remotely, and not proximately, contributed to his injury, he cannot recover, is erroneous. Matthews v. Toledo, 11 Circ. Dee. 375 (21 R. 69) ; Nitz v. Toledo, 12 Circ. Dec. 357 (22 R. 454) ; Schweinfurth v. Railway, 60 Ohio St. 215 [54 N. E. Rep. 89],
    However negligent or careless a person may be in his habits and nature of conduct, a city still owes the duty of exercising ordinary care towards him in its conduct over streets and sidewalks. Ohliger v. Toledo, 10 Circ. Dec. 762 (20 R. 142).
    A person walking along a sidewalk in the day or nighttime is bound to exercise reasonable or ordinary care, but such person has a right to assume, having no knowledge to the contrary, that the sidewalk is in reasonable and ordinary repair, and is not required as a matter of law, to be on the lookout for defects thereon. Ohliger v. Toledo, 10 Circ. Dec. 762 (20 R. 142) ; Wood v. Boston, 121 Mass. 337, Mathews v. Cedar Rapids (City), 80 Iowa 459 [45 N. W. Rep. 894; 20 Am St. Rep. 436]; Driscoll v. New York (Mayor), 11 Hun 101; Davenport v. Ruckman, 37 N. Y. 568; Minick v. Troy, 83 N. Y. 514; Indianapolis (City) v. Gaston, 58 Ind. 224; Chicago (City) v. McLean, 133 111. 148 [24 N. E. Rep. 527; 8 L. R. A. 765]; Chicago (City) v. Babcock, 143 111. 358 [32 N. E. Rep. 271]; 1 Shearman & Redfield, Negligence Sec. 375; Beach, Contr. Neg. Sees. 246a, 247.
    A general exception to the charge of the court is sufficient, under Lan. R. L. 8810 (R. S. 5298); Columbus Ry. v. Ritter, 67 Ohio St. 53 [65 N. E. Rep. 613].

      The evidence not being set .forth in the bill of exceptions, and the court having erred in his instructions to the jury on a material issue raised by the defense, such error is presumed to be prejudicial. Meek v. Pennsylvania Go. 38 Ohio St. 632; Jones v. Bangs, 40 Ohio St. 139 [48 Am. Rep. 664]; Bartges v. 0 ’Neil, 13 Ohio St. 72; Lowe v. Lehman, 15 Ohio St. 179.
    U. S. G. Denman, C. K, Friedman and Frank Crane, for defendant in error.
   PARKER, J.

An opinion was delivered in this ease last Monday. Our decision was that the judgment of the court below should be affirmed. The complaint made by the plaintiff in error is chiefly, perhaps solely, that the charge of the court below on the subject of contributory negligence was wrong. We concluded that although it was not above criticism it would pass muster. Without any motion for a rehearing having been made, but simply upon our own motion, after thinking more of the case, and looking into it again, we conclude that we were wrong upon one proposition involved in the case, and therefore we will now proceed to reverse ourselves, not that we are apprehensive that the Supreme Court will do it if we do not, because we understand that the plaintiff in error is a young man in very moderate circumstances, who perhaps cannot go to the Supreme Court with his case; but we do it because we think it should be done and because our blunder is likely not to be corrected unless we correct it.

The young man was riding upon a bicycle upon Collingwood avenue, in the night season,when he ran upon some loose paving blocks, and was thrown from his bicycle and injured. He charged that the city was negligent in allowing those paving blocks to be upon the street. The street is paved with asphaltum, and these paving blocks were something entirely foreign to the street. It appears that another street was being paved in the vicinity with paving blocks, and in hauling them along this street, some of them had dropped .off the wagon, and it was upon some of these that he ran. He was familiar with the street and accustomed to go over it with his bicycle, and the street, aside from these obstructions upon it, was smooth and he could ride his bicycle upon it with safety even in the nighttime. The cause was submitted to the jury, and it found for the city.

' Amongst other things in the charge of the court on the subject of contributory negligence, this was said, with respect to the duty of the plaintiff below: “He must keep a reasonable lookout for to avoid injury to himself.” The court follows that by saying, -“He has a right, as I instructed you before argument, to presume that the city beeps its-streets reasonably safe for travel, but he is not excused from using reasonable precaution for his own safety. ’ ’

When we came to consider that and discuss it before, we concluded' that it meant no more than that he must use reasonable precautions for his own safety, and saying that he must keep a lookout amounted to no more than saying that he must use his sense of sight as well as his other senses. But we conclude, upon further reflection and examination of the authorities, that this must be held to mean, and that the court charged, as a matter of law, that one in his situation riding a bicycle upon a street, must keep a lookout for the kind of .obstruction that caused him this fall and injury. In other words, we must apply the charge to the state of facts which was shown to exist. He charges specifically in his petition that he was injured in this way by these blocks in this street, and that he did not see and had no knowledge of their presence there. It is stated in the bill of exceptions that he introduced evidence tending to establish all of the allegations and all of the facts stated in his pleading, and furthermore, that his evidence to the effect that he did not see or know, of this obstruction in the street was not contradicted at all; that there was no evidence tending to controvert that.

This seems to us to charge in effect that although he had a right to presume that the city kept the street reasonably safe for travel, and although he was only required to use reasonable precaution for his own safety, yet, as a matter of law, as one of these precautions, he was bound to keep a lookout; and (applying it to the state of facts shown here) he was bound to keep a loobout for loose blocks that form a hindrance and obstruction to travel, lying upon the street, where they have no business, to be, although (as the court says) relying upon the presumption that the city kept the streets in proper condition, he need not apprehend that they would be there. The jury may have found that if he had kept such lookout as the court said he should, he would have discovered these, blocks, and that failing to discover them was his fault, and that being thus in fault he was not entitled to recover.

We had a similar charge under consideration in the case of Ohliger v. Toledo, 10 Circ. Dec. 762 (20 R. 142), a case in which a person was injured while walking over a defective sidewalk. Our attention had been called to that case, and we had looked at it. We thought we discovered a distinction between the two cases, but upon further examination we con-elude that there is no substantial distinction to be made. There, the charge, page 769, was:

“ ‘The law imposed upon the plaintiff the duty to be upon the lookout while walking upon the sidewalk, and to use ordinary and reasonable care for his own safety, and if, by the exercise of such care, he might have avoided the injury, and failed to use such care, then in this action he cannot-recover against the city.’ ”

The construction that was put upon that language as applied to the facts and circumstances of the case, was that it required of the plaintiff in that case that he must keep a lookout for holes or defects in the walk. The court must be presumed to have charged with reference to the facts of the case, and that was the only reasonable application that could be made of the charge. As said by Judge Hull, on page 770, in delivering the opinion:

“If the construction is to be placed upon that paragraph which is sought to be placed upon it here,” (speaking of a paragraph quoted from a text-book) “that, as a matter of law, when walking upon a sidewalk, one is bound to be upon the lookout- for holes in the walk, then we think that it does not state the law correctly. ’ ’

In the course of that opinion, Judge Hull cites and comments upon a great many authorities. I shall not take the time now to go over them, but I simply call attention to them. They furnish a very full and complete brief upon that point, and we think that they very fully sustain the conclusion at which the court arrived in that case, and we think, as I have said, that that case is not to be distinguished from this on any substantial ground.

One when going along a sidewalk or a street of a city, where it is ordinarily smooth and level, may not be required to exercise the same caution that he would upon a rough road, a road that he knows to be rough, or a road that he knows to be defective; and some of these eases cited in Ohliger v. Toledo, supra, are cases where persons walking along sidewalks or driving along streets, instead of keeping their eyes upon the street or sidewalk, have been looking elsewhere; one case being that of a lady who while looking into an attractive show window, assuming that the sidewalk was smooth and all right, stepped into a hole. There are a great many illustrations of that kind. Of course, one walking along a rough road or a road where he knew there was something to be looked out for, would not be excused in thus conducting himself, in looking here and there and everywhere. He must look out for his footings. But one traveling on a smooth street in a city should not be charged with the duty of looking out as a proposition of law, but it should be left to the jury to say whether under all the circumstances, he should have been looking ahead so as to have discovered the defect or the obstruction. And on account of this error in the charge, the former affirmance will be set aside and the judgment will be reversed.

Hull and Haynes, JJ., concur.


author: COOK, J.

text:
    STATUTES — WORDS AND PHRASES — HEIRS.
    [Lake (7th) Circuit Court,
    January Term, 1905.]
    Laubie, Cook and Burrows, JJ.
    Frank H. Todd v. Lena E. Todd, Exrx.
    How the Word “Heir” should be Construed.
    The word “heir,” in Lan. R. L. 9637 (R. S. 6098), may he construed to mean devisees and legatees, and as such have the right to file in the probate court a written requisition on the executor to disallow and reject any claim presented for allowance; and such devisees and legatees are proper parties in any action brought upon a claim rejected under such requisition, and have the right to defend against such claim.
    Error to Lake common pleas court.
    Osborne & Osborne, for plaintiff in error.
    Shepherd & Shepherd, for Elsie A. Davis.
   COOK, J.

Plaintiff, Frank H. Todd, is the husband of the defendant, Lena E. Todd, the executrix of- the last will and testament of William A. Davis, deceased, who also is the daughter of the deceased. Elsie A. Davis, the other defendant, is the widow of the deceased. Frank H. Todd, who is a physician, presented a claim for medical services rendered decedent, to the executrix, his wife, for allowance, and she allowed the same as a just and valid claim against the estate of the decedent. Afterwards the widow, Elsie A. Davis, filed a written requisition in the probate court requiring the executrix to disallow the claim, and entered into the necessary undertaking with sufficient surety which was approved by the court; and thereupon the executrix withdrew her allowance of the' claim and disallowed the same as she was required to do.

Frank H. Todd then brought suit upon the claim against Lena E. Todd, the executrix, and Elsie A. Davis, the widow. The executrix made no defense m the action, but the widow, Elsie A. Davis, filed an answer contesting the validity of the claim upon several grounds: principally that the plaintiff never intended to charge for the services, if any, he rendered,. and if he did the claim was settled by an agreement between the plaintiff, the executrix, and herself, by which agreement, she was to take the provision made for her in the will, and the executrix, the daughter Lena E/ Todd, was to take the provision made for her under the will, and the claim, if any, he Frank H. Todd had, was to be cancelled; and thereupon the widow,. Elsie A. Davis, after the making of the claimed agreement elected to take under the will. There was no personal property for distribution. The testator only owned two parcels of real estate, one of which he devised to his said daughter, and the other parcel to his wife, to be in lieu of her dower and all her rights, statutory or otherwise, in his estate. The case was. tried to the court, a jury being waived, and the court rendered judgment against the plaintiff, and error is now prosecuted in this court.

The court is united upon the question that under the evidence, the court decided the case properly, but we are not united as to whether or not the defendant, Elsie A. Davis, was a proper party to the action with power to make such defense.

This question was not made below, neither was it made in argument before us, but under the pleadings it no doubt arises and must be determined.

It is claimed that Elsie A. Davis was not an heir and therefore could not file a requisition upon the executrix to disallow the claim. It is conceded that the property, that she elected to take under the will, would have been imperiled by the judgment, if one had been obtained, but it is said although that may be so, yet she must wait until her property is attempted to be subjected to the payment of the judgment, and then restrain the attempted wrong or file exceptions to the account, of the executrix to the allowance of the husband’s claim.

Is such the law? The majority of the court think not.

Laning R. L. 9637 (R. S. 6098) provides as follows:

“If any heir or creditor of a deceased person, or any person who has purchased, or claims to hold, by purchase or otherwise, from such heir, any lands or other property inherited by such heir from such decedent, shall file in the probate court of the county in which administration is taken out on any estate, a written requisition on the administrator or executor, to disallow and reject any claim presented for allowance, and whether said claim has been allowed or not, but which has not been paid in full, and shall enter into an undertaking, with sufficient surety to be approved by the probate judge, conditioned to pay all costs and expenses of contesting such claim, in ease it shall be finally, allowed, such claim shall, in such case be disallowed and rejected by such administrator or executor, and the holder of such claim shall be required, within six months after such rejection of such claim, to bring his action against such administrator or executor, to enforce such claim, and if he recover, the judgment shall be against the said administrator or executor ; and in such action, such heir, creditor, or other person claiming to hold such property, shall be made a party defendant with such administrator or executor, and shall have the right to plead and make any defense to such action which such administrator or executor could make; whenever such written requisition and undertaking shall be so filed in the probate court, the probate judge shall at once notify such administrator or executor thereof; and such administrator or executor shall thereupon at once notify the holder of such claim that such claim is; rejected and disallowed.”

What was the intent of the legislature in the use of the word “heir?” The word “heir,” as it is generally understood, has a very broad signification and as the provision of Lan. R. L. 9637 (R. S. 6098) is remedial in its nature, the word should, not be considered a technical one or restricted in its meaning, without there is some controlling reason for doing so.

But in its legal or technical signification, under our statute it includes widow, as a widow may inherit property. Laning R. L. 6855, 6856 (R. S. 4158, 5159). Bouvier in his law dictionary says, the word heir, “In its strict and technical import applies to the person or persons appointed by law to succeed to the estate in case of intestacy. 2 Bla. Com. 201; Rawson v. Rawson, 52 Ill. 62; Kellet v. Shepard, 139 Ill. 433 [28 N. E. Rep. 751; 34 N. E. Rep. 254]; Dukes v. Faulk, 37 S. C. 255 [16 S. E. Rep. 122; 34 Am. St. Rep. 745], * * * In wills, in order to effectuate the intention of the testator, the word ‘heir’ is sometimes construed to mean the next of kin, Horseman v. Abbey, 1 Jac. & W. 381; Reen v. Wagner, 51 N. J. Eq. 1 [26 Atl. Rep. 467]; and statutory next of kin, 41 L. T. Rep. (N. S.) 209; the word ‘heir’ can be construed as ‘distributees5 or ‘representatives,’ King’s Appeal, 84 Pa. St. 345; and children, Ambl. 273; Lott v. Thompson, 36 S. C. 38 [15 S. E. Rep. 278]; Baxter v. Winn, 87 Ga. 239 [13 S. E. Rep. 634]; Franklin v. Franklin, 91 Tenn. 119 [18 S. W. Rep. 61]; Barton v. Tuttle, 62 N. H. 558; Underwood v. Robbins, 117 Ind. 308 [20 N. E. Rep. 230]. * * * Under the term ‘heirs at law,5 a widow has been allowed to share. Lawrence v. Crane, 158 Mass. 392 [33 N. E. Rep. 605]; Unfried v. Heberer, 63 Ind. 67, 72. * * *

“In a bequest of personalty the word ‘heirs’ is used to mean those entitled under the statute of distribution in ease of intestacy. Comly, Estate of, 136 Pa. St. 153 [20 Atl. Rep. 397], The word may be used in a contract to designate the representatives of a living person. Lockwood, v. Jesup, 9 Conn. 272.

“The words ‘heir’ and ‘heirs ’ are interchangeable and embrace all legally entitled to partake of the inheritance. Stokes v. Van Wyck, 83 Va. 724 [3 S. E. Rep. 387].”

But it is said that the parties under the statute entitled .to file the requisition with the probate court must be an heir that has inherited property that came to him or her by descent, in each particular case, and does not apply to devisees and legatees under a will, although they may also be heirs. "We do not think this is correct. Who can tell whether the will of the decedent will be effective or not? Possibly the will may be set aside, prove wholly ineffective and, if so, the right of the heirs may be jeopardized or wholly lost.

We think it is intended, just as the statute reads, that any “heir” may object to the allowance of a claim, and file a written requisition with the probate court, although such heir may also be interested as devisee or legatee. We go further and hold that the words “any heir’ or creditor,” in the statute includes devisees and legatees or any person whomsoever whose property is or may be affected by the recovery of a. judgment. We have seen that the word “heir” in a will may be construed to mean widow, next of kin, children — in a contract, personal: representatives; and the same rule no doubt would apply in a deed where it was manifestly the intention of the parties. Why not the word “heir” then in this statute have as liberal interpretation and include devisees and legatees ?

The object of a statute, and the mischief against which it was designed to guard will be looked to; such is the general holding in this state; indeed it is one of the fundamental canons in the construction of statutes. As was said by Brinkerhoff, judge, in Terrill v. Auchauer, 14 Ohio St. 80, 87:

“In the construction of statutes we may look to the mischiefs, if any, which the statute was designed to remedy, and also to the consequences which would flow from any particular construction; and if the statute be fairly susceptible of two different constructions, we are at liberty to choose that one which, while it remedies the mischief aimed at, avoids the absurd or unjust consequences which would flow from the other. ’ ’

^ How applicable this opinion of the learned judge to the statute under consideration! The mischief aimed at is to prevent the allowance and payment of unjust claims against the estate of deceased persons, through the fraud or perverseness of an unscrupulous or incompetent administrator or executor; and what unjust and absurd consequences would arise from so construing the statute that the ward “heir” does not include a devisee or legatee!

The word “heir, ” if interpreted in its narrow and strict sense, would furnish ample opportunity to defeat an unjust claim, although the party’s interest be ever so small, while a legatee or devisee whose interest might be great would be required to stand by and see an unjust claim pressed to judgment without any opportunity whatever to object. We do not think such was the intent.of the legislature.

The judgment of the court of common pleas will be affirmed.

Burrows, J., concurs.

Laubie, J., dissents.