text:
    PUNISHMENT FOR CONTEMPT.
    Circuit Court of Cuyahoga County.
    S. A. Grossner v. State of Ohio.

    Decided, November 14, 1910.

      Criminal Law—Re-sentence—Accused Having Served Part of Original Erroneous Sentence.
    1. Matters of record in the trial court of which it takes judicial notice must be embodied in a bill of exceptions to be considered by a reviewing court.
    2. It is no objection to a re-sentence of one whose first sentence has been reversed by a reviewing court and the cause remanded for re-sentence, that the plaintiff in error has suffered some part of the original erroneous sentence.
    Marvin, J.; Winch, J., and PIenry, J., concur.

       Affirmed without opinion, Grossner v. State, 86 Ohio State, 318.

   The plaintiff in error, who is an attorney at law, was, by order of the court of common pleas, enjoined from proceeding with certain eases in which he was attorney before a justice of the peace. He violated the order and proceeded with and obtained judgment in a number of the cases. Being brought before the'court in proceedings in contempt, he was found guilty and sentenced to be imprisoned in the county jail for ten days. He was further ordered to cause said judgments so taken before a justice of the peace to be vacated, and in’ default of so doing, that after the expiration of said imprisonment for ten days, he be confined in the county jail until he should so comply, or be otherwise discharged by due course of law. To this judgment and order he prosecuted error to this court. Before we proceeded to the hearing we required that he should cancel his judgments before the justice of the peace, which he did. The error proceeding was then heard in this court, which found that there was error in the sentence, in that the court "was without authority of law to commit the accused to prison, and the order made was that the judgment of sentence be reversed and the case remanded to the court of common pleas for judgment and resentence in accordance with Section 5581, Revised Statutes. Thereupon, said last named court sentenced him to pay a fine of $200 and in default thereof sentenced him to be committed to close confinement in the jail' of said county until he shall comply with said order or be otherwise discharged by due course of law, and error is now prosecuted here to said last named sentence.

The section under which the order of this1 court directed sentence to be pronounced, so far as it authorizes sentence for contempt, reads:

“And such party may be required by the court or judge to pay a fine not exceeding $200, for the use of the county, to make immediate restitution to the party injured, and to give further security to obey the injunction and, in default thereof, he may be committed to close custody until he complies with such requirement or is otherwise legally discharged.”

It will be noticed that the sentence now under consideration conforms exactly with the statute and therefore that the court did just what the mandate of this court required should be done. It would seem to follow necessarily, that, if there is any error-in the matter, it can be traced readily and directly to this court rather than to the court. of common pleas. The order of this court was in full force when such sentence was pronounced, and still remains in full force.

It is urged, however, that before said last sentence was pronounced, the plaintiff in error had served a part of the term of imprisonment imposed by the erroneous sentence, and that therefore no new sentence, imposing other punishment, could be imposed.

We look in vain to the record to find the fact of any imprisonment having been suffered by-plaintiff in error, under such sentence. If that fact were material in determining the question before us, it could easily have been brought into this record. Either evidence of the fact could, have been submitted to the court at the time of the sentence, and embodied in a bill of exceptions, or if it was a fact of which that court would have taken judicial notice, as is contended here, that should have been made to appear by record, and brought to this court.

If it be contended that a reviewing court is to take judicial notice of all the trial court is bound to take judicial notice of, the contention can not be upheld. A familiar example of this is found in cases where prosecutions are held before a police court for the violation of municipal ordinances. The police court will take judicial notice of the ordinances of the municipality, but the reviewing court will not do so, and the ordinance must be brought by proper record into the reviewing court before that court will reverse because of anything that depends upon such ordinances; if this- were not so, the Supreme Court of the state would be required to take judicial notice of- the ordinances of every municipality in the state, which would be an impossibility.

Where error proceedings are prosecuted in such cases the court will presume, in the absence of any record to the contrary, that the trial court did not err as to the construction and application of the ordinance, unless it be that the ordinance relied on is one which the municipality was without authority of law to pass. As for instance, that one is prosecuted and convicted of doing some act which could not be in violation of any valid ordinance.

These distinctions have been pointed out in various cases in this court. See Nelson v. Berea, 21 C. C., 781.

But, it is said, this court should look to an affidavit filed here, showing that plaintiff in error had suffered imprisonment under the first sentence.

We know of no provision of law, or precedent, which would authorize us to take this affidavit into- consideration, and we have not done so.

But we are of opinion that whether the party had suffered some part of the punishment inflicted by the first sentence or not, the trial court was not without power to sentence after the case was remanded, exactly as it could have sentenced in the first instance.

The case of Lee v. State, 35 Ohio St., 113, is not in conflict with this view. In that ease, when the court came to re-sentenee, no part of the punishment inflicted by the first sentence had been suffered, and that fact is mentioned in the opinion, and in the syllabus; but it does not follow that even in that ease, where the court of its own motion and at the same term in which the original sentence was pronounced vacated such sentence and pronounced a new sentence, the court might not have pronounced such new sentence, even though some part of the first had been carried out.

If the contention of the plaintiff in error is sound, it would easily result in consequences too absurd to be seriously ' considered.

To illustrate: One might be convicted of the crime of manslaughter; the court might erroneously sentence to imprisonment for life. Upon proceedings in error being prosecuted, the judgment of sentence would be reversed and the case remanded for re-sentence, the court then pronouncing sentence that the defendant be imprisoned for the period of five years. It is needless to speculate on whether such sentence would be reversed on proceedings in error. No one would ever have the hardihood to bring such proceedings, even though, before the judgment of reversal, the prisoner had suffered months of imprisonment' under the first sentence, before the reversal of the first sentence.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    SIGNATURE PLACED ON NOTE AFTER. MATURITY.
    Circuit Court of Cuyahoga County.
    J. M. Dwinell v. M. A. Sprague.
    Decided, November 28, 1910.

      Promissory Note—Third Party Signing After Maturity on Promise of Extension of time to Maker.

    One. who, upon request of the payee, but without knowledge of the maker, of a matured promissory note, signs said note as a maker, upon the agreement of the payee that he would extend the time for payment of 'the note, becomes personally liable thereon.

      D. T. Millet', for plaintiff in error.

      E. H. Tracy, contra.
    Marvin, J.; Winci-i, J., and Henry, J., concur.
   The parties here are reversed from the relation in which they stood to each other in the court of common pleas. The terms plaintiff and defendant, as used in this opinion, will refer to the parties as- they were in the original case.

The plaintiff filed a petition against IT. N. Por.ter and ■ J. M. Dwinell upon a promissory note, in the ordinary form, for $94.60, dated January 15, 1896, payable eight months after date. This note was signed on its face by the two defendants above named. On the back of the note, besides certain endorsements of payments, is this1 endorsement: “October 21, 1896, time extended eight mo. from -this date. M. A. Sprague per II. J. Fitch.”

No service of summons was had upon Porter. Dwinell filed .an amended answer, in which he set up as- a defense that the note was originalfy given and signed by H. N. Pofter alone, and that the consideration for the note was given to IT. N. Porter that on the 21st day. of October, one H. J. Fitch, who was the duly authorized agent of the plaintiff, Sprague, came to him (Dwinell) and requested him to sign his name on said note, stating that if he would sign the same as surety the time of payment thereon would thereby be extended to the defendant Porter for a period of eight months; that he (Dwinell) in pursuance of such request of said Fitch, and at the request of no other person or persons,'so signed said note; whereupon the endorsement, already mentioned, of October 21, 1896, was made. ITe says that Porter never requested the plaintiff to secure or attempt to secure the signature of Dwinell, and that. Porter was wholly ignorant of the fact, that the plaintiff intended to request him to sign the note, and that at the time and for several years thereafter, Porter was wholly ignorant of the fact that he (Dwinell) had signed the note or that there had been any extension of the time of payment.

To this answer the plaintiff filed a demurrer and that demurrer was sustained. Thereupon the case was submitted to the court, without the intervention of a jury, upon the pleadings and evidence ; on consideration whereof the report found for the plaintiff and assessed the damages at the amount appearing upon the note to be due, including interest.

No transcript of the evidence is filed here, and the only error claimed is that the court erred in sustaining the demurrer to the answer, and in entering judgment for the plaintiff.

Of course if this answer was good and if the evidence sustained it, the judgment was erroneous. But we are of opinion that the court did not err in sustaining this demurrer. The answer stated no defense.

It is urged on the part of the plaintiff in error that the signing by Dwinell was without consideration. But if the plaintiff was bound by the endorsement entered on the back of the note on the 21st of October, which, as the answer alleges, was placed thereon, because of the signing of the note by Dwinell, then there was sufficient consideration for this signing, for by that endorsement the plaintiff bound himself to refrain from forcing collection from Porter for a period of eight months from the time of such endorsement and at the time the endorsement was made the note had matured, and the plaintiff prior to such endorsement had a present right of action against Porter. By this endorsement he bound himself not to proceed upon such present right, and that was a sufficient consideration. The fact that Porter knew nothing of this agreement does not defeat the contract, for if an effort had been made to enforce payment at once against Porter, it would have been his right to take advantage of this contract made for his benefit between the plaintiff and Dwinell, the plaintiff having received a consideration for his promise to defer, in that-he obtained the signature of Dwinell upon the note.

On the part of the plaintiff it is urged that the signing of the note by Dwinell constituted a material alteration of the note which had the effect of releasing Porter, and made the instrument, after it was signed by Dwinell, simply the'note of Dwinell, and that therefore there was a sufficient consideration on the part of Sprague for this signature of Dwinell; that, in effect, it was a release by the plaintiff of Porter from liability from the note, and the acceptance of a note from Dwinell in its stead. Authorities are not wanting for this claim, but whichever view is the right one, whether it be that Dwinell made himself liable to Porter e'ther as a principal or surety, or whether by reason of the alteration of the note he became the only party liable upon it, in either case Dwinell would not be released from liability, and the demurrer was- properly sustained.

The judgment of the court was right and is affirmed.


text:
    DATE OF DETERMINATION OF A SPENDTHRIFT TRUST.
    Circuit Court of Franklin County.
    Worthington E. Babcock, Guardian, Brunson Monypeny and William Monypeny v. William Monypeny, as Executor and Trustee.

    Decided, March, 1911.

      Wills—Construction of Clause Creating a Spendthrift Trust—Distribution Upon Termination of Trust.

    1. The spendthrift trust created in the will under consideration should he terminated and the trust raised on the day named for dis>=*i2, tribution in the will, the income to go to the beneficiary during life and to his children after his death. •
    2. The term “sinking fund” as used by the testator refers to acemulations of the principal of the estate derived from sales of personal or real property for the purpose of reinvestment.
    Allread, J., Dustin, J., and Ferneding, J., concur.
    Heard on appeal.

      Affirmed without opinion, Babcock v. Monypeny, 86 Ohio State, 303 and 365.

   This action involves a construction of the last will and testament of William Monypeny, deceased, and is brought here on appeal.

William Monypeny died September 12, 1899, leaving a will dated September 23, 1895, and a codicil dated September 7, 1899. Four children and a grandchild representing a deceased son survive the testator.

George B. Monypeny has since deceased, leaving the plaintiff’s wards, his children, and Marie R. Monypeny, his widow.

Item 1 of the will of William Monypeny provides for the payment of debts; item 2, a specific bequest to his widow, and item 3, an absolute gift to a daughter.

The controverted questions of construction are involved largely in items 4 and 5 as amended by the codicil and relate to the interests growing out of the share of George B. Monypeny.

Item 4 trustees the residuum of the estate for distributory purposes, while item 5 provides for family annuities pending distribution of the residuary or distributory trust.

Item 4, after creating the general trust, defines its purposes in three clauses. The first clause directs a trust to be raised out of his estate on or before November 18, 1902, for the benefit of the testator’s son Perin and granddaughter Maybelle as the representative of the deceased son, and to be charged against them in final distribution. This trust was to be carried forward and finally settled and paid to them November 18, 1912.

The second clause creates a spendthrift trust of the shares of William and George B., and its more important features may be quoted as follows:

“(2) I hereby order and direct that a further trust shall be raised out of my estate and be held and invested by my executors * * * the two whole, full and equal shares and all and singular of the property thereof, and in amounts equal one with the other, of my entire estate, except and after deducting the special bequests and devises made to my wife and to my daughter in items second and third, respectively, of the •will, for the use, benefit and behoof, after first charging them, respectively, with all advances theretofore had, of my two sons, William Monypeny and George B. Monypeny, their heirs and assigns forever, and the property thereof to be given, transferred and conveyed in fee to their legitimate children at their death by right of representation on the youngest child of each attaining his or her majority, or becoming of age under the laws of the state of Ohio, except as hereinafter provided. The net income arising therefrom after the payment of all taxes, assessments, proper insurance and repair charges, shall be paid quarterly or at such convenient times as may, in the judgment of said trustees, be proper to the said William Monypeny or George B. Monypeny or to their heirs. * * * In the event that one or both of my sons, William and George, die without issue of their body, or the issue of one or both dies or die without issue, said share or shares arising out of said trust shall be paid to my estate, except one equal distributive share thereof which shall go to and become a part and share of the trust hereof of the son or his issue then living. Should both of said sons and their issue all be dead before the execution and termination of this trust, then said fund thereof shall vest in and ascend to my children then living or to their issue by night of representation in equal distributive shares. The last two foregoing trusts are formed because my sons William and George have for years past been reckless in business, affairs and of dissolute habits, thereby to a large degree disqualifying themselves from accumulating or taking care of property.”

The third clause of item 4 provides for a full distribution on November 18, 1902, of the remainder of his estate, equally, among the remaining children and the granddaughter as the representative of the deceased son. By the codicil the spendthrift trust as to William is annuled and William is transferred to clause three, item 4, and thereby placed with the class entitled to receive their shares upon final distribution in their own right, with this statement:

“My reason for revocation of clause two of item 4, so far as the same affects my son William alone, is because in business and socially, he has conducted himself so well, that my confidence in him has been fully restored.”

The codicil further provides that the

“Trust to be raised for the use and benefit of my son George B. Monypeny shall remain undistributed and unaffected.”

The codicil also amends clause three so as to make the distribution day November 18, 1912, and the 5th item as amended by the codicil provides that-—

“During the continuance of said trust provided in item 4th, that is to be ended on the 18th day of November, 1912, I hereby order my executors- hereinafter named to pay to each of the following named persons either in money or such articles as his or her comfortable maintenance may require, as the judgment of the executors may deem best, but not to charge them, respectively, in the final distribution of my estate, to-wit: * * * To William Monypeny $2,000 per annum to be paid quarterly. * * * To George B. Monypeny $2,000 per annum to be paid quarterly. * * * Said foregoing named amounts shall be paid from the net income from my estate * * * and in case the net income yearly of my estate shall amount to more or less than the aggregate annual amounts of the bequests above stated * * * then and in such event, said payment shall be made pro rata.”

The first and most important question represented is as to the time when the spendthrift trust in favor of George B. Monypeny vests and becomes effective.

Upon this issue the guardian of the children of George B. Monypeny and his widow and executrix are in accord. Their contention is in favor of an immediate or at least, an early.vesting of the trust estate and the realization and enjoyment of the net income; while the trustees of the residuary estate eon-, tend that the trust in favor of George B. Monypeny is not to be “raised” or enjoyed until final distribution on November 18, 1912.

Counsel for the George B. Monypeny interests insist upon a literal reading and interpretation of the devising clause creating the spendthrift trust and of the direct reference thereto in other parts of the will. This contention, however, if accepted, does not settle the controversy, for even the literal reading of the devising clause does not fix or determine the time for the raising or creation of the trust estate. It is contended, however, in support of this theory that the court should apply the well known rule of construction favoring the immediate vesting of estates. The foundation of this doctrine of construction is found in the second syllabus of Linton v. Laycock, 33 O. S., 128, and is as follows:

'<rrhe law favors the vesting of estates and in the construction of devises of real estate, the estate will be held to be vested in the devisee at the death of the testator, unless a condition to such vesting is so clearly expressed that the estate can not be regarded as so vested without directly opposing the terms of the will.”

This case follows and is in accordance with the principles of the common law which required or at least favored the vesting of the legal title to real estate. In the present ease the legal title became vested in the general trustees and is carried forward until final termination of the trust and then transferred to the ultimate beneficiaries. This vesting of the legal estate in the general trustees answers the common law requirement. But assuming that the doctrine favoring the vesting of estates applies to the equitable right of George B. Monypeny to have the trust raised and the income applied to his benefit, it does not follow in the application of the rule that the present possession or enjoyment follows the vesting of the right. It often occurs in the construction of wills that the right to an estate vests although the enjoyment be postponed. Conceding, therefore, the vesting of the equitable right of George B. Monypeny to the benefit of the trust to be raised in his favor, the time when the trust is to be raised and' the net income enjoyed must be determined, as any other question of intention, from the interpretation of the will.

It is evident from a reading of the will that the distributory trust created in item 4 was to be carried forward over a period of time for the purposes of future distribution.

Clause one provides for a special advancement to the minor son and granddaughter and was directed to be raised on or before November 18, 1902. Clause 2 directs that:

“A further trust shall be raised out of my estate and be held and invested by my executors,” etc.

“A further trust” indicates an intention, to be considered along with that arising from the consecutive order, that the trust created by clause two is to be raised after that created by clause one. The phrase “raised out óf my estate” alludes evidently to the act of separating the proportion or share therein specified from the body of the estate, giving it a separate existence. It is clear from a broader view of the entire fourth item, that clause two is distributory in its general character and deals with certain shares of the estate. The idea of equality of the final distribution of the residuum is clearly manifest. The language of clause two is unmistakable that subject only to certain deductions, the testator’s ‘ ‘ entire estate’ is to be divided into “equal” shares and that “two whole, full and equal shares * * * and in amounts equal one with the other, of my entire estate” are, according to the original will, to be raised and held for the benefit of William and George. This idea of equality is emphasized in the reason given in the will for the creation of the spendthrift trust as to the shares of William and George and by- that given in the codicil for releasing William’s share from the trust and placing him with those who receive their shares absolutely.

The contention of those representing the share of G-eorge B. Monypeny in favor of an early vesting of the estate carries also as a necessary inference the immediate enjoyment of the net proceeds of the share. The effect of this contention is to give to William and George under the original will the income of their full share and also the annuity under item 5 payable out of the remaining shares. This contention is out of harmony with the general scope of the will and in conflict with the reasons expressly stated for the creation of the spendthrift trust and the releasing of William’s share therefrom.

It would require clear and unambiguous language to exemplify an intention of rewarding the spendthrift sons with a double portion of the income at the expense of the others whose character and business capacity is not questioned. And it would be the every acme of absurdity to resolve doubtful language so as to effectuate an intention to take William’s share from a favored clause and reduce his income and estate upon the sole ground of reformation and restoration to the testator’s full confidence. The contention so made in favor of the George B. Monypeny interests comes in direct conflict with the manifest scope and express provisions of item 5, which provides for family annuities of certain amounts, including $2,000 each to William and George. These annuities are required to be paid out of “the net income of my estate ’ ’ and to' be proportionately reduced or increased according to the amount of the income. It is further provided that these amounts are not to be charged against the respective parties “in the final distribution of my estate.”

Counsel for the George B. Monypeny share contend that the phrase used in item 5, “net income of my estate” should be read “net income of the portion of my estate represented by clause three, item 4.” In our opinion,it is more reasonable to harm'onize items 4 and 5 and avoid conflict by reading item 5 as written, and reading into clause two of item 4 an apparent omission of the date of raising the spendthrift trust. This construction harmonizes all the items and clauses of the will and does violence to none.

The phrase “except and after deducting the special bequests,” etc., expresses the quantity of the estate to be divided rather than the time of division. The expression ‘ ‘ as though said trust did not exist” in clause three of item 4 is designed to release from the trust of that clause the portion due a child whose share fails for want of issue, and to permit such share to remain in or become a part of the general estate for distribution the same as if the trust provided for in clause three did not exist as to such child. The condition in clause two, item 4, providing for the lapsing of the devise to one or both of the sons-in case of death and failure of issue, speaks as of the day of final distribution and of an event which had then occurred, or might thereafter occur, and is, therefore, in the language used, consistent with the construction that the raising of the fund in favor of George and his children is to be substantially concurrent with the final distribution expressly fixed in clause three.

The fact that a portion of the estate of William Monypeny, deceased, consists of real estate located in the state of New York does not in our opinion affect the true construction of the will. There is nothing in the ease or in the will to justify us in assuming that the testator knew of the statute laws of New'York and acted with reference thereto or lhad specially in' mind the laws of the state of New York affecting the distribution of his estate. Whether- under the construction of the will given in this state the devise or any portion of it is- void as to the real estate situated in New York is naturally a subject of determination by the New York courts.

It therefore follows under a true construction of the will the trust created by clause two, item 4, of the share of George B. Monypeny should be raised on or immediately prior to Novem.ber 18, 1912.

The next question is as to the quantity of the estate taken by George B. Monypeny.

The guardian on behalf of his wards claims that the interest of George B. Monypeny,- both in the principal and income, is limited to his life, and that upon his death all interest in the devise, both as to income and principal, become vested in his children.

On behalf of the widow and executrix of George B. Monypeny, it is contended first, that George B. Monypeny took a fee simple estate in the whole devise, and second, at least, in the full income provided for in the devise.

Upon the first question, we think it clear that while the first sentence in item 4, clause two, grants the use and benefits of the trust therein created to George B. Monypeny and his heirs and assigns forever, yet this apparently absolute estate is reduced by a subsequent grant equally distinct and clear of the “property” of the trust upon the death of George B. Monypeny in fee simple to his legitimate children to be subject to advancement and conveyance absolutely to them upon the youngest child becoming of age.

The net income under clause two of item 4 is payable to George B. Monypeny or his heirs. The disjunctive connection is intended to harmonize with the condition previously stipulated granting the estate to George B. Monypeny for life and upon his death to his children. The income is, therefore, payable to George during life and his children after his death, agreeably to the previous devise conferring the estate.

The amount payable to George B. Monypeny under item 5 becomes upon his death by virtue of item 7 payable to his children or their guardian.

The tenth item provides for a sinking fund-from which improvements and betterments of the real estate may be made. The term “sinking fund” is ordinarily applied to accumulations from income to be used in the discharge of indebtedness. But in the manner in which it is employed in item 10, we think it refers to accumulations of the principal of the estate to be derived from the sales of personal or real property for the purposes of 're-investment. This construction is necessary to harmonize with item 5, which fully provides for the distribution of the net income, deducting the expenses including necessary repairs to the real estate. The income of the estate is, therefore, in our opinion, fully provided for in item 5.

The discretion given to the executors in item 5 relates to the question of payment in money or articles' for comfortable maintenance. The provision for payment of the annuities pro rata according to the income of the estate, either in money or articles of property, is absolute and can not be withheld and accumulated under the 10th item. George B. Monypeny was, therefore, entitled to the full pro rata share of the income of the estate under item 5 according to his annuity of $2,000 per year, and his executrix is entitled to an accounting and the payment of any balance due. The annuity or pro rata share from the time of the death of George is payable to his children under item 7. Likewise, the net income of the share of George B. Monypeny under clause two, item 4, from the time it becomes available is payable to the children of George B. Monypeny and subject to advancements provided for in clause two, item 4, subject to the discretion of the, trustees.


text:
    MISCONDUCT IN CHARACTERIZING DEFENDANT AS RICH.
    Circuit Court of Cuyahoga County.
    John Urbanowicz and Hedwig Urbanowicz v. Cyril Roman.
    Decided, November 28, 1910.

      Misconduct of Counsel—Reversible Error, When.

    It is misconduct of counsel for plaintiff to say to the'jury in Ms argument, of and concerning' the defendant, “He is a rich man. How did he get rich? Just that way”; and where, upon objection by counsel for defendant, the trial judge neither reproves counsel, nor cautions the jury, and the facts are close, a judgment against the defendant will be reversed for such misconduct.

      J. M. Boiuney-, for plaintiff in error.

      Ilenry Bu Lawrence, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The parties are here reversed from the relation in which they stood to each other in the court of common pleas. The terms plaintiff and defendant as used in this opinion, will refer to the parties as they were in the original case.

The plaintiff sued the two defendants for services which he claims to have rendered for them as a farm hand from July, 1907, until January 15, 1908. He says that his work was performed at an agreed price of $20 per month; that the aggregate for his services would amount to $110; that $48 had been paid to him for these services, and prayed for judgment for $60, with interest.

The defendant, John Urbanowicz, answers admitting that the plaintiff worked for him on the farm; that the time was fifteen days less than the plaintiff claims; that the agreed price was $15 per month, and that he has been paid in full.

• The defendant, ITedwig Urbanowicz, answers denying that she is indebted to the plaintiff in any sum whatsoever, and denying that he0ever worked for her.

The result of the trial in the court of common pleas was a verdict and judgment for the plaintiff in the sum of $67.20.

The defendants prosecute this proceeding, claiming that the court erred in overruling the motion for a new trial in the case, on the ground that the verdict was against the weight of the evidence, and on the further ground that there was misconduct on the part of the attorney for the plaintiff.

An examination of the evidence shows that the plaintiff testified that be began working for the defendant, John Urbanowicz, on the 15th of July, 1907. He says that he continued to work for him until the middle of the following January. He testifies that ho was paid by the defendant, John Urbanowicz, $40.50 in money; that- the defendant kept a store, and that he received from the store, to' apply upon his pay, a pair of shoes and a pair of rubber boots, of the aggregate price of $7.50. He testifies that when he applied for work he asked $25, a month, that „Mr. Urbanowicz said he would give him $18 a month, and that they finally agreed upon $20 per. month., He says, besides the monejr wages which he was to receive, his board and washing were to be furnished by Urbanowicz.

The defendant, John Urbanowicz, says that the plaintiff began working,for him not on the 15th of July, but on the 23d of July, 1907; that at the time of the employment, the price was not fixed, but it was agreed that the plaintiff should go to work and they would agree later on what his compensation should be, and that a few days after he begun to work,'they agreed on $15 per month. ITe says that the price agreed upon was fixed after the plaintiff had worked for him about a month, and he says that when the plaintiff quit working for him he settled with him for the entire amount which was coming to him, and he offers a small memorandum book in evidence as to the payments.

As to the defendant, ITedwig Urbanowicz, she is the wife of John, and she is the owner of the farm on which the work was done. The farm, however, was conducted and carried on by the defendant, John, and so far as the judgment against Hedwig is concerned, it should be reversed upon the weight of the evidence. The verdict and judgment against John are not so' manifestly against the weight of the evidence as to justify a reversal on that ground. The jury heard the testimony of both parties, as well as other witnesses, and there was nothing improper about the story as told by the plaintiff, nor perhaps as told by the defendant. The jury saw fit to believe the claim of the plaintiff and we would not be justified in disturbing it.

As to the other claim, misconduct on the part of the counsel for the plaintiff, several things are complained of, but only one of them we regard as of sufficient importance to require any discussion at our hands.

During the address to the jury by counsel for the plaintiff among other things he said, referring- to the defendant, John, “He is a rich man. How did he get rich? Just that way.” Counsel for the defendant immediately appealed to the court, saying that he objected to the language. The court said: “Do you want the stenographer to take down the speech ? ” ‘ ‘-The objection is overruled. Go on with your argument.” We think this language of the counsel for the plaintiff was clearly improper to the degree that it constitutes misconduct. Earlier, in his address to the jury, counsel for the plaintiff had said, referring to the defendant: “ He is a born liar. ’ ’ This language was in very bad taste, but the theory of the plaintiff was that what the defendant, John, said about the hiring and paying of the plaintiff was not true, and though the language used by counsel for plaintiff in this regard is by no means commendable, we would not reverse the case for this, but what possible bearing could it have upon the case that the defendant was rich, or how he became rich? The language was clearly calculated to prejudice the jury and could have been used for no other purpose. It was not an issue in the case whether either the plaintiff or the defendant was rich as Dives- or poor as Lazarus. If the plaintiff was entitled to recover, it was because he had performed work for the defendant, for 'which he had not been paid. That and, that only was the issue, and that and that only should have been discussed in argument to the jury.

It is not meant by this, as appears from what has already been said, that in such arguments the conduct of the parties in connection with the transaction may not be commented upon and criticized with such severity as would seem to counsel to be just, but to make a statement which is clearly calculated to prejudice the jury against the defendant on a matter wholly unconnected with the case, and which by no possibility could have any bearing upon it, is reprehensible and, as we hold, amounts to misconduct, justifying a reversal of the judgment.

We had occasion recently in a case in Summit county to reverse a judgment for similar misconduct on the part of counsel for the plaintiff. In that case the offending attorney was a man of large experience, both at the bar and on the bench. It was a case like this one, in that there was such a conflict in .the evidence as that upon the evidence alone the jury might have gone either way, without justifying a reversal of such judgment, as being clearly against the weight of the evidence. In such case, it is especially censurable to use language calculated to prejudice the jury against a party in the case in a matter wholly outside of any issue in the case. We do not take it upon us to say whether the court, when this offensive language was used, might not have taken such course as would prevent a reversal on the ground of this misconduct; but for some reason, which we are unable to understand, the court being appealed to, declined to take any action, and apparently gave the jury to understand that there was nothing censurable about this language, but said to counsel for the plaintiff, “Go on with your argument.”

For tbe reasons indicated the judgment against Iiedwig Urbanowicz is reversed, as clearly against the weight of the evidence, and the judgment against John Urbanowicz is reversed because of misconduct on the part of the counsel for plaintiff.


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    WORKMAN PLACING MACHINERY IN MINE KILLED BY GAS EXPLOSION.
    Circuit Court of Cuyahoga County.
    The Wellman, Seaver, Morgan Company v. Cora P. Wood, as Administratrix of the Estate of Jerry L. Wood, Deceased.
    Decided, December 19, 1910.

      Master ancL Servant—Negligence—Duty as to Place of Work Under Control of Another—Assumption of Risk.

    1. The rule that an employer is bound to exercise ordinary care to furnish his employee a safe place to work, does not apply when the place is wholly under the control of another,
    2. Though the employer knew that such place under the control of another was not a safe place to work, or by the exercise of-ordinary care might have known it, under the rule stated in the Norman case the employee can not recover'if he also knew the same thing, or, by the exercise of ordinary care, might have known it.

      Hoyt, Dustin, Kelley, McKeehan Andrews, for plaintiff in error.

      William Howell and N. Sheldon, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The defendant in error brought suit against the plaintiff in error and the Zeigler Coal Company, seeking to recover damages for the death of Jerry L. Wood, which occurred at the mines of said coal company in Illinois on the 3d day of April, 1905. No service of summons was had upon the coal company, and so the case was tried between the defendant in error, as plaintiff, and the plaintiff in error, as defendant; the result being a verdict in favor of the defendant in error. The following facts are shown in the ease :

The decedent was killed by a gas explosion at the mines of the Zeigler Company in Illinois on the 3d day of April, 1905; he was an employee of the plaintiff in error; his home was in Ohio, and the plaintiff in error is an Ohio corporation engaged in the manufacturing and placing of heavy machinery and engines. In December, 1904, the plaintiff in error, hereinafter spoken of as the defendant, because it was the defendant below, sent a party of workmen, under the superintendence of one ICeown, to put in certain machinery at the mines of the said coal company in Illinois. The decedent, Jerry L. Wood, was one of this party of workmen, and from the time that Keown took the workmen there up to the time of the death of the decedent, he continued in this employment engaged in the work of putting in the machinery at the mines. Coal mining operations were in progress at the mines during all the time that this work was going on. The coal was mined in chambers many feet below the surface of the earth. The miners and others having work to do in the mines were conveyed on a hoist or elevator down a shaft leading from the surface to these chambers, and the employees of the defendant were required to go by this same elevator down the shaft to the chambers. The explosion, resulting in the death of the decedent, occurred, as already said, on the 3d day of Ap.ril, Í9Ó5, which was Monday, and the explosion took place in the morning, just as the workmen, including the decedent, had got on to the elevator platform to go into the shaft, and they were, therefore, at the mouth of the shaft. This explosion was terrific and resulted not only in the death of the decedent, but in the death and injury to still others and the destruction of' the elevator platform. The ground upon which the defendant in error, hereinafter spoken of as the plaintiff, claims to recover is, that this explosion was the direct result of negligence on the part of the defendant. It should be said that the plaintiff is the duly appointed, qualified and acting administrator of the estate of the decedent, who left a widow and a child only about fifteen months old at the time of his death. The result of the trial was a verdict and judgment in favor of the plaintiff.

By proper proceedings the case is here for review upon errors claimed by the defendant to have been committed to its prejudice on the trial, including error in overruling the motion for a new trial which was made after the verdict; one of the grounds of which motion was that the verdict was not sustained by the evidence. Among the errors complained of is that the court erred in admitting certain evidence offered by the plaintiff over the objection of the defendant. These have been examined, and the conclusion reached that there was no error in the admission of such evidence to the prejudice of the defendant. Evidence was introduced tending to show that in this mine gases generated, or at least existed, necessitating the ventilation of the mine by the use of a power fan forcing air into the chambers of the mine through a shaft constructed for that purpose, and that such a fan was used by the coal company for that purpose. That such fan was not operated on the Sunday, the day preceding the injury. A witness by the name of C. E. Childers, testified on the part of the plaintiff in a deposition, as also did a witness by the name of Edward Evan's. Each of these men had worked at this mine a considerable time before the explosion complained of in this action. Each had discontinued work at this mine some eight or nine months before the explosion. Each was asked as to the condition of the mine in regard to gases and the means of ventilation employed at the mine at the time he worked there, and each was permitted to answer. It is said on the part of the defendant, that the time when these witnesses know and could testify as to the condition of the mine was too remote from the time when the explosion occurred. We are of opinion that it was admissible to show the condition of the mine at the time these men were employed there, as tending to show that it was a dangerous place, when the use of the fan for ventilation was omitted, and the fact that gases existed in this mine. True, it was a good while before the explosion that they knew of this situation. But, if by the operation of the laws of nature gases were generated in the mine and existed there in dangerous quantities at the time these men worked here, it might have a legitimate tendency to show that such gases were generated in the mine at the time of this explosion. The weight to be given to this evidence was a question for the jury, and so, as already said, we do not find that the court erred in any ruling upon evidence to the prejudice of the defendant.

The plaintiff claims that one of the duties, devolving upon the defendant, in sending the decedent and others to work at this mine was that it should furnish a safe place for its employees to work. The rule which puts this duty ordinarily upon an employer is different when the employee is put to work in a place wholly under the control of 'the employer, than when the employee is put to work in a place under the control of another; or rather, when the employee is put to work by his employer to do work in the premises of another, which are under the control of such other. This is- pointed out in numerous cases to which attention is called in brief of the defendant, such as the case of Homer Shadel v. Illuminating Co., 22 C. C. Rep., 49, and authorities" noted in that opinion. Among other things this court said in that case, the following:

1 ‘ There is a difference in the obligation of the employer in the matter of furnishing a suitable place for the employee to work where the work is to be done upon the premises of a third party, and where it is to be done in the shop or factory of the employer. ’ ’

In the case of Sharpley v. Wright, 205 Pa. State, 253, it is said:

"It is well settled that an employer is not responsible for an injury sustained by his employee, caused solely by unsafe premises which are owned and controlled by a third person, and where the latter’s services are performed. The reason of the rule is that the employer does not use, own or control the premises, and hence is without power to make any change in their condition.”

In the case of Hughes v. Malden & Melrose Gaslight Co., 168 Hass., 395, it is said:

“The principle underlying this and like decisions is, that the employer can not be justly charged with negligence as to matters over which he has no control.”

See also Channon v. The Sanford Company, 70 Conn., 573. Tn that case it is said;

“If an employer sends his servant to a distant place by rail to do a piece of work on the 'premises of B, it would hardly be contended in the absence of a special agreement to that effect that the master would be responsible to the servant for the negligence of the transportation company in failing to carry the servant safely, or for the negligence of B in failing to keep his premises in a reasonably safe condition. In the case supposed the servant, both while being carried and while at work on B’s premises, is at work for his master and the railroad car and the premises of B are places where he is directed to and does perform work for his master; and yet the master, as master merely, would be under no duty to use reasonable care to make such places reasonably safe. The law in such' cases reads no such duty into the contract of hiring.”

To the same effect is the case of Long, Administrator, v. Stephenson Co., 73 New Jersey Law, 186; Hyde v. Booth, 188 Mass., 290, and Connelly v. Faith, 190 Pa. St., 553.

But, it is said, that notwithstanding this modification of the rule as to the duty of furnishing a safe place for the employee, the master is responsible if he sends his employee to do work in a place which the master knows to be unsafe, or by the exercise of reasonable care should know to be unsafe; and it is said in this ease that Keown, the superintendent for the defendant on the work being done at this mine, knew (and hence defendant knew) that it was unsafe to work at this ndne when the fan for ventilation was not in operation.

An examination of the record shows that Keown and Wood each knew that this fan was used for ventilating this mine, and each had equal means of knowing the length of time that the fan had been idle. It shows, too, that each had equal means of knowing that there was gas in the mine, for they had together been in the mine or rather the chambers where the mining was done, and so far as appears Keown had never made such a visit to the chambers of the mine except on'an occasion when he was accompanied by Wood.

The statute of the state of Illinois was introduced in evidence to show that by law it was required that the mine be inspected from day to day, and a report of such inspection be kept at a convenient place for examination; the place being designated in the statute; and that these reports, had they been examined, would have shown that the inspection had been-neglected for a few days preceding this explosion. But certainly Wood had the same means of knowing what the laws of Illinois were that Keown had. He had the same means of knowing where these inspection reports could be seen. He knew, too, from the fact that on the morning of the explosion he walked with Keown from their boarding house (and they both- lived at the same boarding house) to the top of the elevator shaft where the injury happened, whether any inspection had been made by Keown or a report as to this inspection.

We think and hold that the evidence fails to show that Wood had not the same means of knowing of the dangers connected with this explosion that Keown had, and so under the rule announced in Coal Co. v. Norman, 49 Ohio St., 598, the verdict was not sustained by sufficient evidence.

In that case the court quotes, with approval, Section 414 of Wood on the Law of Master and Servant, where it is said :

‘ ‘ The servant in order to recover for defects in the appliances of the business is called upon to establish that the servant did not know of the defect, and had not equal means of knowing with the master.”

Whether this be a harsh rule or not, is not a question for us to determine. It has been determined by a court higher than this court, whose decisions this court is bound to follow.

For the same reason that the verdict was not sustained by the evidence, the charge was misleading where the court said (speaking of the decedent) :

“If he knew of the existence of the danger which caused his death and proceeded to encounter it, it would be a risk assumed by him, and his representative could not recover unless he had notified his superior, and had encountered the danger relying on the promise to remove it by his employer.”

And again where the court said:

“If you find that the company’s foreman was negligent and that the deceased was without knowledge of that negligence, nor of the danger to which he was exposing himself, that he would not have met his death bnt for that negligence, then under the statute, the decedent’s representative, the plaintiff administratrix, would be entitled to recover.”

•The first proposition, above quoted, states a proposition of law which is true, to-wit, that if the decedent knew of the danger the plaintiff could not recover, but it implied- that unless he knew, even though he had equal means of knowing with the defendant, still there might be a recovery.

In the last proposition quoted, he distinctly says there may be a recovery, if the decedent did not know.

Both of these propositions should have been qualified with the statement that such recovery was conditioned further upon the proposition that the decedent had not equal means with the defendant of knowing of the danger.

For the reasons pointed out, to-wit, error in the charge as noted, and error in overruling the motion for a new trial on the ground that the verdict was not sustained by sufficient evidence, the case is reversed and remanded to the court of common pleas.


text:
    AGREEMENT TO CONVEY PROPERTY BY WILL.
    Circuit Court of Monroe County.
    Lewis Boltz v. Emma Elizabeth Riley et al.
    Decided, April Term, 1912.

      Wills—Agreement to Dispose of Land ~by Will—What the Instrument Creating the Power Must Contain.

    1. A power to^dispose of lands by will must be executed with the same formalities as are necessary- in a deed directly conveying the land.
    2. 'The instrument creating the power must contain a sufficient definite identification of the lands to be disposed of. .

      Matz <& Kremer, for plaintiff.

      Lynch ■<& Luych, for Ann Elizabeth Riley et al.
    Pollock, J.; Norris, J., and Metcalf, J., concurring.
    Heard on appeal. ■
   The plaintiff in his petition alleges that he is the owner in fee simple and in actual possession of a certain tract of land in this county, which is described therein in four tracts, containing in all 160 acres. ITe further says that the defendants claim some interest or estate in said premises adverse to the rights of plaintiff which claim of the defendants is unfounded, but is a cloud upon plaintiff’s title, and he asks that his title to said premises be quietel against any claims of the defendants.

To this petition, the defendant, Emma Elizabeth Riley, filed an answer, in which she claims that she is the owner in fee of the undivided one-ninth part of the first three tracts described in the petition, containing 120 acres, and she asks that she may be protected in her rights and her title quieted to the undivided one-ninth part of these premises, and for all other relief that may be just and equitable. A reply was filed by the plaintiff denying the interest of the defendant, Emma Elizabeth Riley, in said meprises.

The facts in this case show that Mary Ann Boltz, the wife of Lewis Boltz, was a daughter of Rudolph Zesiger, and that the defendant, Emma Elizabeth Riley, is a daughter of the plaintiff and Mary Ann Boltz.

In 1868 plaintiff purchased the first three tracts described in the petition for a consideration of $3,500; that at the time he borrowed from Rudolph Zesiger $800, giving his promissory note therefor, which money was used in making the first payment on this property; that on May 18th, 1871, a calculation of the interest on this note and another note for $800 held by Zesiger against the plaintiff was had, and the difference between the' amounts due on these notes and $2,000 was given by Zesiger to Boltz, and the notes were surrendered to him, and then plaintiff and his wife gave to Zesiger the following written receipt and agreement:

“Received of Rudolph Zesiger, $2,000, with which we purchased land in the name of Lewis Boltz, which we agree is in full of our interest in the estaté of said Zesiger in our individual or collective capacity, and which we agree shall be disposed of according to the last will and testament of said Rudolph Zesiger. “Lewis Boltz,
“Mary A. Boltz.
“Witnesses:
“Mark Williams,
“Jacob Walters.
“May 18th, 1871.”
On September 21st, 1871, Rudolph Zesiger made his will, which after his death was admitted to probate by the probate court of this county. The seventh item of said will is as follows:
“My daughter, Mary Ann, who is intermarried with one Lewis Boltz, has been by me fully paid to the amount of $2,000 in cash with which the said Lewis Boltz purchased a tract of land in his own name. My will is that at the death of my said daughter, Mary Ann, the lands so purchased with my said funds descend to the heirs of my said daughter, Mary Ann Boltz, according to the agreement and receipt given me by said Boltz and wife, Mary Ann.”

Prior to the bringing of this action Mary Ann Boltz had deceased, leaving nine children, of which Emma Elizabeth Riley was one.

If the defendant, Emma Elizabeth Riley, can maintain her claim to being the owner of the one-ninth interest in the premises in dispute, it must be by virtue of the power conferred on Rudolph Zesiger by the written agreement to convey this property by will. If this paper writing, for any reason, is not sufficient for that purpose,' then it follows that the subsequent devise by him must fail. This brings us to the question whether' the power to dispose of real estate must be created by an instrument which would itself be sufficient to dispose of such property. Objection is made to this instrument for the reason that it is not acknowledged by Lewis and Mary Ann Boltz as the laws of this state require instruments to be, which are designed to convey the title to real estate.

Clark v. Graham, 6th Wheat, 577, first and second sections of the syllabus, announces this principle:

“1. A power to convey lands must possess the same requisites, and observe the same solemnities, as are necessary in a deed directly conveying the land.
“2. A title to land can only be acquired and lost according to the laws of the state in which they are situate. ’ ’

The second paragraph only affirms the rule announced by the same court in the case of United States v. Crossly, 7th Cranch, 114.

Justice Marshall, in the opinion in Johnson v. Yates, 9th Dana, 500 (Ky.), uses this language:

“It is a familiar principle applicable to the execution of powers, that the estate can not pass by appointment under the power, unless it could have been passed by the deed or instrument creating the power, and that the appointment operates as if it had been inserted in the original deed.”

i

in 31st Cyc., 1043, referring to the above eases as authority, it is said:

“A power to dispose of property must be created by an instrument which would itself be sufficient to dispose of such property. ’ ’

Indeed it would seem to be self-evident that one can not confer upon another power to. convey his property except by an instrument executed with all the solemnities that would be required if he himself conveyed the property. The only way that the owner can transfer the title to his real property in this state, to another, is by a written instrument executed according to the statute providing for the execution of deeds, or by will. No one claims that the instrument which defendant claims empowered Zesiger to dispose of this property was intended as a will, and at the time this instrument was executed the statute of this state required, as it does now, that all deeds, mortgages, or leases, of an estate or interest in real estate, be signed by the grantor and acknowledged before a proper officer. The instrument conferring the power on Zesiger to will this property does not contain an acknowledgment as required by the laws of this state, and for this reason the devise by him to defendant must fail.

Again, the objection is made that the instrument contains no description of the property which is the subject of the power. The only reference in the written memoranda to the property which should be disposed of according to the will of Zesiger is as follows: “Received of Rudolph Zesiger $2,000, with which we purchased land in the name of Lewis Boltz.” * # * It follows that this writing does not describe any real estate, but that it will require oral testimony to supply the description of the property intended by the. parties to be the subject-matter of this agreement. The Supreme Court of this state has said:

‘ ‘ The memorandum in writing which is required by the statute of frauds (Section 4199, Revised Statutes) is a memorandum of the agreement between the parties, and it is not sufficient unless it contains the essential terms of the agreement expressed with such clearness and certainty that they may be understood from the memorandum itself, or some other writing to which it refers without the necessity of resorting to parole proof. ’ ’
“To make a valid contract to leave an estate including real property to another by will, it is not only necessary that the contract or memorandum thereof shall be in writing, signed for the purpose of giving it authenticity as an agreement, but the terms of the agreement must be expressed with reasonable certainty in the writing, and it must contain a sufficient definite identification of the property to be disposed of.” Kling, Admr., v. Bordner, 65th O. S., 86.

If the contract agreeing to convey one’s own property by will to another in order to be valid must contain a definite identification of the property, then certainly a contract conferring the power to dispose of another’s real estate by will must contain a like identification.

Again, in the opinion in the case of McConnell v. Brillhart, 17th Illinois, 354, the court say:

. “The writings, notes or memoranda shall contain on their face, or by reference to others that are traceable, the names of the parties, vendor and vendee, a sufficient, clear and explicit description of the thing, interest, or property, as will be capable of identification and separation from all other of like kind.”

Applying this rule to the present case, what do we find? The property for which the defendant claims the memorandum calls, was purchased by Lewis Boltz for $3,500, and the testimony shows that of the money referred to by this memorandum, only $800 was used in the purchase of this property. No better illustration of the wisdom of the rule that the written memorandum must contain a definite description of the property and not be left to the uncertainty of oral testimony could be found. The same objection would prevail in permitting oral testimony to be used to supply the material part of a written contract, that there is to permit an entire conveyance of real estate to be supplied by oral testimony, where a written one is wanting.

The writing “must contain such words as will.enable the court without danger of mistake, to declare the meaning of the parties; it must obviate the necessity of going to oral testimony and relying on treacherous memory, as to what the contract was.” Kling v. Bordner, supra, page 99.

Oral testimony may be received to apply or identify a description in a written contract, but it would be a violation of the statute to permit it to be used to supply the description. In the written memorandum upon which the defendant relies, no description of the property is attempted. It says, “with which we purchased lands * # * and which we agree shall be disposed of according to the last will.” This writing furnishes no description of the property which was the subject-matter of the agreement, and oral testimony must be used to supply the description of the property intended.

We think for either of these reasons the defendant has failed to sustain her action.


text:
    INJURY TO DRIVER WHOSE HORSE SHIED AT APPROACHING AUTOMOBILE.
    Circuit Court of Cuyahoga County.
    F. H. Kramer v. George Blake.
    Decided, December 19, 1910.

      Negligence—Charging Contributory Negligence■ Where Answer Alleges Plaintiff Was Negligent—Charge as to Inevitable Accident.

    1. In a personal injury damage case, where the answer of the defendant contains not only a denial of negligence on his part, but also alleges that the plaintiff was injured either by reason of an inevitable accident, or by his own negligence, it is not error for the court to charge the jury with regard to contributory negligence. Traction Co. v. Forrest, 73 O. S., 1, and Traction Co. v. Stevens, Admr., 75 O. S., 171, distinguished.
    2. No specific request being made thereto, it is not error to neglect to say to the jury that the plaintiff can not recover in case his injury was received as the result of an inevitable accident, though the answer alleges such to be the fact and there was some evidence tending to establish it, if the court distinctly charges the jury that there can be no recovery unless the evidence shows that the defendant was negligent and that his negligence, proximately caused the injury.
    Marvin, J.; Wincii, -I., and Henry, J., concur.
   Blake was plaintiff below and Kramer the defendant, and though the parties are here reversed they will be spoken of as they stood in the case below.

On the 30th of May, 1908, the defendant was operating an automobile upon the public highway in Springfield township, Erie county, Pennsylvania. At the same time the plaintiff was driving a horse hitched to a wagon, upon the same highway. This was a much traveled road. The vehicles, in which were these two parties, met. at a place in this highway; the automobile going southerly and the horse and wagon northerly. The place of meeting was in a hollow, between a slight elevation of the road to the north, and another slight elevation to the south from such hollow; at the eastern side of the road, the side on which the plaintiff was driving, there was immediately at the east of the traveled road a steep declivity of eighteen or twenty inches. At the place where the two vehicles passed one another the road was wide enough so that by careful driving on the part of both they could have passed without a collision. Indeed, there was sufficient room to the east of the easternmost part of the automobile, at the place of meeting, so that the wagon of the plaintiff could have passed the automobile without a collision. As a matter of fact, the horse of the plaintiff was turned so far to the right at the point where the vehicles met as that the wagon overturned and the plaintiff was severly injured.

Suit was brought by the plaintiff charging that his injuries were.the direct result of the negligence of the defendant; that defendant was driving his automobile at a terrific rate of speed, and a speed that was greater than was reasonable and proper; that he came down in the valley from the hill at such speed toward the plaintiff that the plaintiff’s horse frightened and turned to the right, resulting in the accident. The plaintiff further alleges that when he saw the automobile approaching him, he raised his hand to indicate to the defendant that he, the plaintiff, was in danger from the automobile, and that this warning was wholly unheeded by the defendant, but that he came on without slackening his speed at all, thus forcing the plaintiff over the declivity.

The result of the trial was^a Verdict and judgment for the plaintiff. After the verdict a motion for a new trial was filed, alleging as ground for such new trial, among other things, that the verdict was not sustained by the evidence.

The evidence tended to show that the automobile was going at a very high rate of speed at the time it came in sight of the plaintiff from the top of the elevation at the north and that it continued at such very high rate of speed-until it had passed the plaintiff; that the horse of the plaintiff, though a quiet horse, was somewhat frightened at the approach of the automobile, and that the plaintiff was also frightened at its approach. •

On the part of the defendant evidence was introduced tending. to show that, the speed of the automobile was not high, but with the several witnesses produced on the part of the plaintiff as to such speed, against the testimony of witnesses on the part of the defendant as to such speed, we would not be justified in reaching the conclusion that the jury was manifestly wrong in believing the witnesses for the plaintiff that the speed was very high, up to twenty-five or thirty-five miles an hour. True, one witness on the part of the defendant testified that the speed was slackened as it went down the hill, the language used by her being: “We gradually got slower as we went down the hill; it was a gradual descent and we went down about five miles an hour. ’ ’ Then she was asked, how. do you know you got down to five miles an hour, and she answered: “AVe looked at the speedometer. I thought that the machine had stopped, it was going at the rate of five miles an hour when we.passed him.” It is not surprising that the jury should have regarded this testimony as being wholly mistaken. First, it is inconceivable that one riding in a vehicle at the rate of five miles an hour should have supposed that it was standing still until she looked at" a device for indicating whether it was moving or not, and found it to be moving at the rate of five miles an hour. The only possible way of accounting for this is either that the witness was somewhat excited by the accident and its surroundings or somewhat confused at the time she gave her evidence, and so did not quite understand, what she said, or that the automobile in which she was riding with the defendant had been traveling at such an excessive speed that when it got down to five miles an hour she thought it was not going at all.

The defendant testifies that he did not slacken his speed after he saw the situation of the plaintiff, but he says that he was not going at an excessive speed, and he says that he did not see the plaintiff raise a hand as a warning. The plaintiff and a number of other witnesses say that the hand was so raised, and so the most natural explanation of the fact that the defendant did not see it would seem to be that as he was driving at such speed that he did not notice what the plaintiff was doing. In short, from the evidence in the case, it is not surprising that the jury reached the conclusion that the defendant was driving at a high rate of speed, without giving due care to the danger which might result to the plaintiff from continuing at that high rate of speed, and yet lie says lie did not slacken his speed any, but only explains that by saying that lie was going at a slow rate all the time.

If the defendant was driving at a speed of twenty-five miles or more per hour, with the surroundings as they are shown to be here, whether such rate was in violation of a statute or not, the jury might well reach the conclusion that it was.a reckless and careless way of driving; that it injured the plaintiff, either because his horse was so scared that it turned out and overset the wagon, or else that the plaintiff, in the fear which might well be excited in his mind by seeing the machine coming at such a rate of speed, did not estimate with exactness how near to the automobile the defendant was driving at a reckless rate of speed, calculated to scare people or horses who might be apt to meet him. If the plaintiff in view of the surroundings exercised such care as one so situated might ordinarily be expected to use, then he would not be precluded from a recovery, even tboush, if he had calculated exactly the distance between the easternmost line of the automobile and the declivity over which his machine went, he would have known that he could avoid a collision without going over this declivity.

The jury probably wondered somewhat how one could drive an automobile 100 miles, or thereabouts, in less than four hours, without driving most of the way at an excessive rate of speed; the maximum rate allowed by law being twenty miles, both in Ohio and Pennsylvania. The statute of Pennsylvania was introduced in evidence.

The court did not err in refusing to sustain a motion for a new trial oh the ground that the verdict was not sustained by the evidence.

But, it is urged, that the court erred in excluding certain evidence offered by the defendant. When the defendant was himself upon the stand, he was asked this question: “You may tell the jury and the court, if you can, at what rate of speed you were going when you were going down the hill just north of where this accident occurred; at what rate of speed you went further down past Mr. Blake?” This M'as objected to, and the court then said: ‘ ‘ Cross-examine as to his means of knowing before he answers. ’ ’ Thereupon counsel for the plaintiff examined the witness, as follows;

“Q. Mr. Kramer, anything you may say would be an estimate ; you do not know the speed you were going, do you ? A. Certainly.
‘ ‘ Q. ITow do you know it ? A. From the way I was driving.
“Q. From the way you car ran? A. Yes, sir.
‘‘Q. You did not look at your speedometer ? A. I do not say positively I did at that time.”

Whereupon the court said the objection is sustained. We think this was clearly erroneous. The witness said he could say how fast he was going although he could not say he looked at the speedometer. But he said he was accustomed to riding and driving an automobile. Surely one accustomed to driving a horse may say at what rate he was driving, though it would be an estimate, not determined by some exact means of measuring that he had, such as a speedometer. The fact that the witness had a speedometer before him and that he was not looking at it, did not disqualify him from stating the rate at which the machine was going when he says he knew that rate, even though he did not look at the speedometer. On cross-examination it would have developed that it was1 an estimate, but so is it ordinarily with evidence as to the speed of a railroad train, or the speed at which horses are going. ITowever, since there is no statement as to what it was expected the witness would answer, there can be no reversal because of this error for, for all that appears, the witness might have answered in such wise as to help the plaintiff instead of himself. For all that appears by this evidence, he might have answered: “I was. driving at thirty-five miles an hour.” In order to take advantage of the erroneous ruling made by the court, an offer should have been made or statement of what it was expected the witness would answer, and if it turned out that it would be to his advantage, and the court excluded it, there might be a reversal by reason of such action of the court, but not as the record here stands.

Without stopping to read what follows in connection with this same matter, it is sufficient to say that the court,' after further statement on the part of the witness, that he had driven an automobile for seven or eight years, and that he had had lots of experience, and was able to judge of the speed, the court still sustained the objection to his answer. We think the action of the court was, as already stated, erroneous. The court seems to have been of the opinion, that unless one could fix exactly the speed at which he was going, he could not answer this question. For the court said, among other things “I say that it is not a matter of opinion evidence; it must be stated as a fact. ’' ITowever, there is another reason why this action of the court would not justify a reversal, and that is, immediately following this, the witness was-permitted to answer the question: “You may state, to the court and jury whether you were going at a rapid or slow rate of speed. ’ ’ Pie answered:

“I was going slow.
“Plow were you going in that respect when you came to Mr. Blake ?
1 ‘ Going very. slow. ’’

No objection to either of the questions and the answers given by-the defendant was made, and the defendant had all the benefit that he could have expected from any answers he could have given to the questions which were erroneously excluded.

Error is further claimed by reason of the charge of the court. It should be said in this’ connection, that the answer admitted that the two vehicles met in the place stated in the petition, and that the plaintiff received an injury, such as he says he did, but denies all negligence on the part of the defendant, and then the answer says: “That any accident or injury which plaintiff

might have suffered at the time and place in said petition set forth, was the result of inevitable accident or the carelessness and negligence of the said plaintiff.”

It is urged that this answer did not set up contributory negligence on the part of the plaintiff, and therefore, that the charge of the court on what would constitute contributory negligence was erroneous; that since the .plaintiff said that he was not in any wise negligent and said that the defendant was negligent, that nothing should have been said on the matter of contributory negligence; that that brings into the case an issue not made by the pleadings,

What the court said on the matter of contributory negligence was this:

‘ ‘ It will be for you to say, from the evidence, whether or not the defendant was negligent, as charged, or whether or not the plaintiff was negligent; that his negligence contributed to the injury. The important question to be decided by you in this case is, whose negligence, if it is anyone’s, was the proximate cause of the injuries sustained by the plaintiff. Was it the negligence of the defendant or the negligence of the plaintiff tha1 caused the injuries directly?”

As to this the argument is made that not only did the court err in calling attention to the matter of contributory negligence, but also that there was error is not calling attention to the question of whether this was an accident brought about without negligence on the part of either party. As to matter of unavoidable or inevitable accident, for the moment we omit to discuss it until we have further called attention to what was said about contributory negligence. The court also said, in its charge:

“Notwithstanding any negligence of the defendant, if the jury should find that the plaintiff was in fact negligent, the plaintiff can not recover, for he himself is guilty of contributory negligence, as it is called, which contributory negligence was the proximate cause or direct cause of the injuries he received at that time and place.”

Up to this point it seems impossible to discover any possible error to the prejudice of the defendant. The plaintiff asks the jury to determine, if they found there was negligence on the part of the defendant, whether the plaintiff was not also negligent, and if so, says to them that a recovery on his- behalf would be barred. Suppose that is not true. Suppose that it is not law. Suppose that the plaintiff was being barred of a recovery here which under the pleadings would not bar a recovery. Can the defendant be heard to complain about it? But further and immediately following what was last above quoted, the court said:

“The burden of proving contributory negligence on the part of the plaintiff rests on the defendant, with this qualification, however, that if the testimony introduced by the plaintiff as to the circumstances under which these injuries were received fairly raises a presumption in your minds, that the plaintiff himself was guilty of contributory negligence, then the burden is upon the plaintiff to remove that presumption.”

Surely if the word “contributory” had been omitted from this language and the court had said the burden of proving negligence rests upon the defendant except where the plaintiff’s evidence tends to raise a presumption of his negligence, the defendant could not complain, and how is it possible for him to complain because the court said that the burden of proving contributory negligence was on the defendant. For, if the position taken here by the defendant is correct, contributory negligence on the part of the plaintiff, under these pleadings, would not avail the defendant at all. This seems to us wholly untenable. If the plaintiff showed that the defendant was negligent and that such negligence was the proximate cause of his injury, then the theory of the defendant here is that the plaintiff would have been entitled to recover without reference to whether he was himself negligent, because it is said that the answer did not charge the plaintiff with contributory negligence, and that, therefore, the logic of the argument is, that if there was negligence on the part of the plaintiff which only contributed to his injury, and was not the sole cause, such negligence would be no defense. Is it possible that if the plaintiff had shown under the pleadings like these that the defendant was negligent and that such negligence was a proximate cause of the injurjq but it had been shown on the part of the defendant that the plaintiff’s negligence was also a proximate cause of the injury, that the plaintiff could recover? The question seems to us to answer itself under the well known rules of law.

Our attention is called to the case of Traction Co. v. Forrest, 73 Ohio St., page 1. In that ease it is said in the syllabus:

“Where, in a suit to recover for personal injuries occasioned by the alleged negligence of the defendant, the petition, after stating the facts upon which the plaintiff bases his action, avers that the plaintiff was free from fault and the answer is a general denial, there is no issue of contributory negligence, and where, in such case, the testimony introduced by the plaintiff does not tend to show contributory negligence, it is error for the court to introduce the element of contributory negligence in its charge to the jury and give instructions thereon. And where it is apparent that the jury may have been misled by such charge to the prejudice of the defeated party, the judgment will be reversed and a new trial awarded.”

An examination of that case shows that the defendant did not plead that the plaintiff was negligent, and so that is to be distinguished from the present ease.

Attention is also called to the case of Traction Co. v. Stephens, Administrator, 75 Ohio St., 171. In this case the answer charged no negligence to the plaintiff, and like the case of Traction Co. v. Forrest, supra, the case’is distinguishable from the one under consideration.- We do not feel justified in extending the rule, as stated in the two cases last cited, beyond cases coming practically within the facts of those cases. We can not believe that the Supreme Court ever meant to say that where án answer was filed to a suit for damages on account of negligence, in which answer it is charged that the plaintiff was negligent, there could be a recovery where the defendant is shown to be negligent, if it turns out upon the trial that the plaintiff was also negligent, and that the negligence of each, or the combined negligence of both, proximately caused the injury.

But it is said that the court omitted to charge specially on the matter of inevitable accident. The court did distinctly charge that there could be no recovery unless the evidence showed that the defendant was negligent, and that his negligence proximately caused the injury. Certainly that language distinctly precluded any recovery if the jury should find that the injury was the result of an inevitable accident. No exception was taken at the time of the trial of the case and nothing was said on this subject, nor was any request or suggestion made to the court .to charge on that subject.

The result is that we find no error in this record such as would justify a reversal and the judgment is affirmed.


text:
    EXERCISE OF EMINENT DOMAIN BY A RAILWAY COMPANY.
    Circuit Court of Cuyahoga County.
    The Schatzinger Realty Company v. The Cleveland Short Line Railroad Company et al.
    Decided, December 19, 1910.

      Appropriation 6y Railroad Company—■Petition—Articles of Incorporation as -Evidence—Interest of Another Company—Belt or Terminal Railroads.

    1. In appropriation proceedings by a railroad company for its original right-of-way, it is not necessary that the petition state the termini of the road, or that the parcels of land described in the petition are all the parcels within the county which are sought to be appropriated.
    2. Articles and amended articles of incorporation of a railroad company are proper evidence of its incorporation and right to appropriate lands.
    3. In an appropriation case brought by a railroad company it is not competent for the land owners to show that some other railroad company is interested in the appropriating company and will be benefited by the result of the proceedings.
    4. A belt or terminal railroad company, duly incorporated under the laws of Ohio, may exercise the right of eminent domain.

      P. G. Kassulker, for plaintiff in error.

      Kline. Tolies c6 Morley, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The relation of the parties here is the reverse of that which they sustained to one another in the original action, which was brought in the court'of insolvency. They will be designated, however, in this opinion as though the relation was as it was in such original action. Each of the parties is a corporation. The plaintiff is engaged in the construction of a railroad from a point easterly of the city of Cleveland to a point westerly of the said city. The defendant owns certain real estate through which the plaintiff seeks to construct its road. The plaintiff filed its petition in the court of insolvency, setting out that it was a railroad company; that it was constructing a railroad; that it was necessary for the construction of its road that certain real estate described in the petition, owned by the defendant and located in this county, should be used for the purpose of such road; that it had been unable to agree with the owner of such real estate and prayed for the appropriation of the property by proper proceedings.

It is claimed that this petition did not warrant any proceeding under it, because it failed to state such facts as authorize the proceedings to appropriate. The statute in force at the time regulating such matters was Section 6416, Revised Statutes, and reads:

“In such a case the corporation may file a petition with the probate judge, verified as in a civil action, containing a specific description of each parcel of property, interest, or right, within the county, sought to be appropriated, the work, if any, intended to be constructed thereon, the use to which its land is to be applied, the necessity for the appropriation, the name of the ownér of each parcel, if known, or if not known a statement of that fact, the names of all persons having or claiming an interest, legal or equitable, in the property, so far as they can be ascertained, and a prayer for its appropriation.”

It is objected that the petition was bad because it failed to state the termini of the road; that it did not state that the parcel sought to be appropriated was the only parcel in the county which it desired to appropriate. So far as the failure to State the termini of the road is concerned, it is sufficient to say that the statute does not require that the petition shall give such termini. So far as the other question as to the property sought to be appropriated is concerned, it seems enough to say that it did describe all the property which it sought to appropriate in that proceeding, and it seems a novel proposition that it should be required to contain the negative averment that it does not desire to appropriate any other real estate in the county. It does describe all it seeks to appropriate in this proceeding, and that we hold to be sufficient.

But, it is objected, that the court of insolvency was without jurisdiction, because it is said that the act conferring such jurisdiction is in contravention of the provisions of the Constitution of the state. This is not an open question in this court, nor indeed in this state. Both this court and the Supreme Court have held that the act is constitutional and that the court has jurisdiction.

It is further urged that, the court erred in admitting the articles of incorporation and the amended articles of incorporation of the plaintiff. The plaintiff was required to show that it was incorporated as a railroad company, having the authority of eminent domain; the proper way to do this was by showing its articles of incorporation and any amended articles of incorporation which had been filed with the Secretary of State and certified by him, and there was no error in admitting this evidence.

It is urged further that the evidence on the principal hearing as to the necessity of the appropriation and the failure of the plaintiff and the defendant to -agree upon a compensation for the land to be used was not sufficient. This objection is not well taken. It was shown by the testimony of Mr. Hopkins that the line had .been located where it would be necessary to have it. However, a sufficient answer to this proposition is that the evidence is not all in the bill of exceptions. There^was presented in evidence a blue print, which is spoken of by Hopkins and other witnesses, and it is said shows the line of the road. The bill .of exceptions says 'that such blue print is attached to the bill marked “Exhibit B” and made a part of such bill, and there is no such blue print with the bill, and we are therefore left without that evidence on which the' court acted in determining the question of the necessity for the appropriation and the failure to agree with the owner, and this failure of the bill to give us all the evidence disposes of the whole question of our passing upon this case upon the weight of the evidence. We can not do it, because we have not all the evidence.

But it is said that there was error on the .part of the court of insolvency in refusing to permit evidence to show that the Lake Shore & Michigan Southern Railway Company was interested in this railroad and was the real party in interest. It is enough on this point to say that this railroad company, the plaintiff in this action, was under the laws of Ohio authorized to appropriate lands necessary for the construction and operation oi‘ its road. If it had any contract with another company which would make it unlawful for it to operate its road after it was constructed, that right could be tested in a proper case. Not only that, but if this railroad company had obtained its franchise for any unlawful purpose, a proceeding in quo warrmto would have been the proper action in which to determine that question. It would have been erroneous for the court to have admitted evidence showing what it was sought to be shown, that there was a contract as to the use of this road between the plaintiff and the Lake Shore & Michigan Southern Railway Company. The articles of incorporation of the plaintiff, as already said, established that it was a corporation organized under the laws of Ohio pertaining to the incorporation of railroad companies, and the law authorizes such a company to exercise the right of eminent domain; therefore, it would have been incompetent for the court of insolvency to have held that it had not such right because of some contract it had made with somebody else. However, the court did allow a cross-examination of Mr. Hopkins, an officer of the plaintiff, to a very considerable extent, in which it appeared that no such contract existed as could by any possibility have interfered with the rights of the plaintiff in the matter of this appropriation. Our statute, Section 3300, authorizes one company to aid another in the construction of its road, by means of subscription to its capital stock, or otherwise, for the purpose of forming a connection of the roads of the companies, if the road of the company so aided will not when constructed form a competing line. There was no evidence here tending to show that this road, when constructed, would be a competing line with the Lake Shore & Michigan Southern Railway Company. The real claim on the part of the defendant was and is that because this proposed road would connect at each terminus with the track of the Lake Shore & Michigan Southern Railway Company, it was really an adjunct of such company, and that for some reason that deprived it of its right of eminent domain. We think this is completely answered by the case of State v. T. & R. T. Railroad Co., 24th C. C., 321. That was an action in quo warranto, asking to prevent the railway company from appropriating a right-of-way upon which it proposed to construct a track to connect its main line with certain industries, and it was held that the company had a right to make such appropriation.

In the ease of State, ex rel, v. Martin, 51 Kas., 468 (33 Pac., 9), it is held that under the general law providing for the incorporation of railroad companies, a circular or terminal railroad might be projected and constructed for the purpose of switching cars from one part of the city to the other, and of affording terminal facilities to other railroad companies, and that a company organized for that purpose might exercise the power of eminent domain. And in a note to Bridwell v. Gate City Terminal Company, reported in the 10th L. R. A. (New Series), at page 909, this language is used;

“It is a well-settled fact and principle of law, and one supported by all the decisions that can be found, that belt or terminal railway companies and union passenger station companies, that is‘, companies organized for the purpose of furnishing eonneeting terminal and depot facilities to other railroad companies, are companies organized for a public use, and are lawfully entitled to exercise the power of eminent domain.”

The result reached in the court of insolvency was that the land sought to be appropriated was necessary for the construction and operation of the road; that the defendant had failed to agree upon the compensation therefor, and then a jury was impaneled for the purpose of having the damages assessed.

Upon proceedings in error being prosecuted to the court of common pleas, this judgment of the court of insolvency was affirmed, and the present proceeding brought to reverse the judgment of the court of common pleas in so affirming the judgment of the court of insolvency, is here affirmed.