text:
    (Fifth Circuit — Licking Co., O., Circuit Court
    Mar. Term, 1897.)
    Before Adams, Douglass and Smyser, JJ.
    THE CITY OF NEWARK v. ALONZO B. McDOWELL.

      Excavation in street made by Co. Com’rs. in building bridge — Liability of village for injury—
    Where, in a village which, under the statute,is not entitled to a portion of the bridge fund of the county to take charge itself of the construction and maintenance of bridges within the municipal limits, the county commissioners undertake to have a bridge constructed in a street of such village, and an excavation is left unguarded during the night time, in conse•quence whereof a person is injured, the village, having full notice of such dangerous and unguarded condition of the ¡street, is, under sec. 2610, R. S., liable for the injury to such person.
    Error to the Court of Common Pleas of Licking county.
   Douglass, J.

The case of the city of Newark v. Alonzo B. McDowell •is here on error. This is an action brought by the defend.ant in error against the city of Newark, plaintiff in error, to recover damages for personal injuries alleged to have been sustained on the 4th of November, 1893, by reason of ■driving into a pit on the right of an old bridge on Clinton •street in the city of Newark. The substance of the petition ■is that the city of Newark is a municipal corporation, and, .as such, has control and management of the streets, alleys, ■public grounds etc., and is charged to keep them open, in ¡repair, and free from nuisance. And the further averment is made that Clinton street is within the city of Newark; and that, prior to the happening of the grievances com¡plained of, a contract was entered into by and between the Lane Brothers Bridge & Construction Company and the .county commissioners, to erect a bridge over what is com.monly known as Log Pond Run, on said Clinton street, «running transversely across the street.

The petition further states that this excavated place, or ihole, was left open, and that the plaintiff, Alonzo McDowell, had no notice or knowledge of any such place. That it was left wholly unguarded and unprotected, and that he ■drove his horse and buggy into said pit, and was injured by breaking his arm; and prays damages by reason thereof in .the sum of ten thousand dollars. This is, in substance, the petition.

The answer denies these facts, and says that, admitting the plaintiff was injured somewhat, says that it was done wholly by the wanton and reckless driving of the plaintiff, ■and that he not only contributed to the injury, but was wholly responsible for it; and, as a second defense, the averments are further made that the contract between the county commissioners and the Lane Brothers Bridge & Construction Company placed the responsibility and the duty devolved upon them, and they got jurisdiction of the street for the purpose of constructing this bridge, and that the city had nothing to do with this matter, and was not responsible for either the want of proper barriers or the want of lights or anything of that kind that would create liability if such injury did occur, and that it was wholly the fault of the county commissioners, who had this jurisdiction, and that they were liable, or the Bridge & Construction Company, who were doing this work.

The reply denies these facts, and two theories are here advanced by the respective parties as to what should govern in this case. The claim is made by the plaintiff below, McDowell, that conceding that the county commissioners had jurisdiction, and were building-the bridge, and that the Lane Brothers Bridge & Construction Company were there working for them, that either of them might be liable for this injury, and that, nevertheless, this did not absolve the city from such liability, and that all of these joint tortfeasors might be sued, or they might each be sued separately, and that but one satisfaction is claimed; and the theory upon which they base their case is not the fact of the construction of the bridge, but the fact that it was the duty of the city, under section 2610, to keep her streets, alleys, bridges, etc., open, in repair, and free from nuisance. And that the default in that regard of keeping proper barriers, or lights, or guards, fixes the liability of the city.

The claim made by the defense is that section 860 provides that the county commissioners shall build bridges over all streams crossing state and county roads, and in villages, except such as have a right to demand and receive a portion of the bridge fund; and that that fact being true, the jurisdiction was taken by the county commissioners, and that therefore all this liability falls upon them, and the city is absolved from any such liability.

These are the contentions.

The action was originally brought against the Lane Brothers Bridge & Construction Company and the city of Newark. A special demurrer was filed for misjoinder, which was overruled; but on the motion or volition of the plaintiff, this defendant, the Bridge & Construction Company was dropped, and the case proceeded against the city of Newark alone; and whether this demurrer was rightly overruled or not (which we think it was) the action proceeded against the city of Newark, and therefore there could not be any prejudice here, and the question drops, really, out of the case, as far as that is concerned.

The 8 Circuit Court Reports is cited as authority to sustain the proposition of the plaintiff in this case. It is very pertinent to the issue, and to which I will probably revert later. But, there are certain exceptions mentioned here as to why this judgment should not stand. 1 might say, first, that this case was tried to a jury and a verdict of $1250.00 was rendered,and,on motion for a new trial,a condition was made that if the amount be reduced to $2250, the motion would be overruled, which was done and judgment was entered for $2250, and error is prosecuted to reverse this judgment.

Exceptions noted here are on page 31 and 33 of_the record as to the notice to councilmen. The proof showed that, at one time, barriers were placed there, and proper guards, perhaps after this work commenced, but that for three or four weeks before the accident, which occurred on November 4th, no such barriers were there. There is evidence, and very much evidence in reference to that — In fact, it is almost proof in fact without contradiction.

Notice was given to councilmen and the street commissioner, and this is claimed to be erroneous — -that such testimony should be admitted here to charge the city, because the councilmen and street commissioner and various other parties who had to do with the city were permitted to testify as to the fact of notice being brought home to them. We think from what the record discloses as to the time they were notified and as to the answers that they made, and the fact of their being there, that sufficient time elapsed to give them an opportunity to legislate on this matter; and that it was perfectly competent to admit this testimony to show actual notice.

A line of exceptions are here as to evidence on pages 95, 96, 97 and 98 — -evidence permitted as to pain and suffering. Now, under the issue here, we think this evidence was perfectly competent, proper and relevant to the issue. One is noted on page 127, in which the question is as to inconvenience that he suffered in a pecuniary way. We think it proper under this issue.

Numerous objections are made to the charge of the court, and also as to charges not given. We have carefully examined the charge, which is a long one, and which we think covers all the questions involved in this case; and a number of the questions made here, I will refer briefly to:

“If the jury find that the city of Newark'had no part or share in the bridge fund of Licking county at the time of the re-construction of this bridge, and the happening of the-accident herein complained of, and that the duty of repairing and constructing the bridges of said city was imposed upon the county commissioners, and that the accident resulted from negligence on the. part of said commissioners,, or the contractors under them, the verdict shall be for the defendant.”

This was requested and refused, and we do not think it-is the law applicable to this case.

“If the jury find that a person driving along that street upon which the accident occurred could have discovered the-dangerous condition of the bridge by the exercise of ordinary care, the verdict shall be for the defendant.”

This, charged in connection with other matters, makes it perfectly proper to be in the charge. This abstract proposition here is not just given, but the substance of that is-charged and in the proper way.

“The jury shall allow no damages except as compensation.”

The court gave that charge, and guarded it further by putting it negatively, and saying that this was not a case-for punitive damages. So, there is no error in that.

“If the jury find that the night was unusually dark and* foggy so that it was unusually difficult to see, the duty devolved upon the plaintiff herein to exercise more than ordinary care and prudence, and a failure so to exercise such greater care and prudence than ordinary will defeat recovery by plaintiff.”

This, we do not think is the proper way to put this question. The court put it under all the circumstances and surroundings that were before the party, as to whether or not he used that degree of care that was required in a case of this kind; and this request was putting it that he should use more than ordinary care, which we think was faulty.

“If the jury find that during the time this street was torn-up, and prior to this accident, that the plaintiff had been-along said street so that be could not but have seen the condition of the same, or if he knew of its condition in any manner or from any source whatever, he cannot recover in this action.”

The testimony in this case would not warrant that.

“If the jury find that at the time of the accident the city had no notice that the guards had been removed; or that at the time the city was warned by notice to its officers having control of its highways, there were guards at such dangerous place in said street, unless after the removal,of such, guards the city must be shown to have had notice of such dangerous place before said city shall be held liable for injuries arising from such dangerous place in such street.”

The charge covered what was actual notice and what-would be constructive notice, and all that was necessary in order to secure perfectly the rights of the parties in the-case.

“Ordinances imposing duties on city officers over property of which said city has no statutory control, are of no-force and avail, and said city is not estopped from avoiding-liability on such ground.”

We think that this has no application to the case, and ought not to be given.

“If the jury find that Lane Brothers hauled their material there after the making of the contract, and the abutment was complete and ready for the superstructure, the bridge shall be deemed to be in the possession of said contractors, Lane Brothers.”

This question was charged on by the court, and we think properly, and that this proposition would not be the law of this case.

As to the parts objected to, of the charge, it is sufficient to say that we think there was no error in the charge of the court.

As I said before, the municipal corporation, on the one hand, claims that it is absolved from liability simply because the county commissioners have the jurisdiction of this street for the purpose of putting in this bridge; and, on the other hand, it is claimed that section 2640 does not absolve it from liability. Now, upon these two theories, this case was tried. The court took the view that although it was the duty and was the right of the county commissioners to build this bridge, notwithstanding that fact that they had jurisdiction there, that under section 2640, the city of Newark was not absolved from the duty imposed upon them by statute to keep their streets, including bridges, open, in repair,and free from nuisance; and that the other sections of the statute which have been cited here, simply lend force to this view. Different sections of the statute were cited, but these are the chief ones upon which liability or non-liability will rest.

We think that, as a matter of law, this is so, and the theory upon which this case was tried and the charge of the court upon that theory, was right. That 53 Ohio St., 605, is authority upon that proposition, and also 43 Ohio St., 451; and that it was the duty of the city of Newark, no matter if the bridge was being built by the county commissioners, or by Lane Brothers, to see that it was properly guarded and protected; that no nuisance within the corporate limits of the city was allowed to exist, and that, by ■reason of its-failure in this regard to so protect it, that . they were both actually and constructively notified of the fact from the evidence in this case, and a failure to do this makes them liable. And we find no error in the admission or exclusion of evidence that was prejudicial to the plaintiff in error, and no error upon the record, and the .same will be affirmed.


source: Caselaw Access Project

author: Douglass, J.

license: Public Domain

text:
    (Fifth Circuit — Licking Co., O,. Circuit Court
    Mar. Term, 1898).
    Before Adams, Douglass and Smyser, JJ.
    THE CITY OF NEWARK v. NEVADA M. JONES.

      Bridges in streets of city not part of county roads — Authority of Go. Gom’rs. tó construct—

    In villages and cities not having the right to demand and receive any portion of the bridge fund levied upon property within such corporation, the County Commissioners have the authority and duty to construct and maintain all necessary bridges in state and county roads, free turnpikes and plank roads, which are of general and public utility, running into and through any such village or city, but they have no authority to construct bridges in the streets, as such, of such villages and cities.
    Error to the Court of Common Pleas of Licking county.
    On Re-hearing.
   Douglass, J.

A former case, styled “Alonzo B. McDowell v. the City of Newark,” which had its foundation on the same facts as the one here presented, was passed upon by this court, and the judgment of the court below was sustained adversely to the claim of the plaintiff in error. But counsel for the city appear in this case, which involves the same facts, and grows out of the same transaction, and present anew this question with commendable zeal and very ably and well to this court, and ask that we re-open the case, and if we are in error, that we should correct ourselres, which we are willing to do, knowing that it is better to be right than to be consistent with a previous error. In this view of the case we have considered it, and I will not say anything further or take the time here, because it would not be fruitful in this connection, further than to supplement what we have previously said. We still adhere to the opinion announced at a former term of this court. Gleaning from- the brief statement of facts that was made in the announcement of the opinion sufficient to lay the foundation for what I desire to say, (because the question here presented is that we shall consider this case as if submitted upon a demurrer to the petition), it appears, briefly stated, that the petition was founded upon these facts: The action was brought by the defendant in error against the city of Newark, plaintiff in error, to recover damages for personal injuries alleged to have been sustained on the 4th of November, 1893, by reason of driving into a pit on the right of an old bridge on Clinton street in the city of Newark. The substance of the petition is that the city of Newark is a municipal corporation, and as such has control and management of the streets, alleys, public grounds, etc., and is charged to keep them open, in repair, and free from nuisance. The further averment is made that Clinton street is within the city of Newark; that prior to the happening of the grievances complained of, a contract was entered into by and between the Lane Brothers Bridge and Construction Company and the county commissioners to erect a bridge over what is commonly known as Log Pond Run, running transversely across the street.

The petition further states that this excavated place, or hole, was left open, and that the plaintiff, Nevada Jones, had no notice or knowledge of any such place. That it was wholly unguarded and unprotected, and he drove his horse and buggy into the pit, and was personally injured, and prays damages in this case for the sum of three hundred dollars.

. This case was originally tried before a justice of the peace, and then in the court of common pleas. That is the substance of the petition. While an answer is filed, and the case is tried on the merits, the request is here made that we shall consider this case as if submitted upon a de^ murrer to the petition.

. The theory upon which this case was tried and the contentions on this question are: whether or not when the county commissioners took jurisdiction to build this bridge-on Clinton street in the city of Newark, made a contract: for it and are building it, leaving that unguarded and open on a street of the city of Newark, absolves the city from-any liability by reason of any person in the night season* driving into that pit and being injured, in the face of section 2640, which charges the municipal corporation with1 the duty of keeping its streets, lanes, alleys, public grounds and bridges open, in repair, and free from nuisance. If' the city had put this bridge in the condition complained of, its liability would be undoubted; but the whole question is-made in the statement that I have heretofore announced. And the question here is as to whether the facts stated in-the petition entitle the plaintiff to the relief demanded, This exact question has not been decided in Ohio. A reference to some authorities are helpful in reaching a conclusion, but they are only analogies. An examination of these-cases leads us to the sections of the statute which are involved in the inquiry, and which impose certain duties up-en the city as well as county commissioners. An important: matter in reaching a solution of this question is to remember that bridges are a part of the streets of the city as well, as any other portion; it is so decided by the supreme court, and they are so recognized as a part of the streets of the-city; and another consideration worthy of notéis that there-is no authority given anywhere by which county commissioners can build bridges on streets as such. A reference to section 4938 and 860, and all the sections bearing' upon this subject, show that they simply have reference tosíate and county roads, turnpikes, pla.nk roads, etc., but there is no direct authority to build bridges on streets1as such. Again, bridges are a part of the public streets; and we think these are important considerations.

The first case cited which bears upon this contention is-the 43 Ohio St., 451, being a case in which the county com•missioners seek to recover damages from a railroad company ;for injury to a bridge, and because there was a special statute empowering county commissioners, if a bridge was injured by another corporation, to bring an action, the court held that the county commissioners could bring an action and recover damages, and that the damages recovered • should be used in reconstructing the bridge. That was a village, however, and, without referring to that case further, I will refer to the 45 Ohio St., 401. This is the Ma-honing county case, by which the county commissioners, by .reason of a special act of the legislature, were seeking to bring the same kind of an action under this special act.

. “The act of April 8, 1880, entitled ‘An act to authorize ’the commissioners of Mahoning county to build a bridge • across Mahoning river’, gave to the commissioners authority to build a bridge across the Mahoning river in the city of Youngstown, at the foot of Market street, and the city, by ordinance, gave the commissioners the right to use and occupy so much of Market street as might be necessary in the building of a bridge and constructing approaches thereto. Under the authority thus given the commissioners proceeded to build a bridge. By their petition, the commis-sioners set out the above facts and charge that the defendant, in constructing its railroad along the bank of the river under the south end of the bridge, excavated dirt near one of the abutments of the bridge in such a way as to render ■the same insecure, and to damage the bridge and render is unsafe for travel. Held: That the commissioners cannot maintain an action to recover damages for such alleged injury-”

The court, after stating the doctrine that boards of county commissioners have such powers and such only as -are conferred by statute, and may bring such actions, and •such actions only as are directly authorized, then comes to a further discussion of this matter, and says:

“Commissioners have not only the general power to erect -and maintain bridges in their respective counties, but it is their duty to do so; and that, if the language of section 863 is not broad enough to embrace a bridge ‘the property of the county’, then the special act of April 8,-1880,brings this particular bridge within the meaning of the sections-referred to.
“Section 863 provides that where a bridge on any state or county road, or any public building, the property of, or under the control or supervision of any county,is injured or destroyed by any person or corporation,such person or corporation shall be subject to an action for damages, and the-board of commissioners is authorized to sue and recover for such injury or impairment. Then providing how the money shall be expended. Two important features of this section will be noted: 1. As to bridges, its terms are confined to such as are located ‘on any state or county road,’ 2. The money recovered is to be appropriated by the commissioners to the repair of such bridge, or to reimbursing the county for expenditures in that behalf.” Section 860 is the section which provides that “the commissioners shall' construct and keep in repair, all necessary bridges over streams and public canals on all state and county roads, free turnpikes, improved roads and abandoned turnpikes and plank-roads, in common public use, except only in such cities and villages as by law have the right to demand and receive part of the bridge fund levied upon property within the same. ”

That is one of the sections chiefly concerned in this case.

“Section'4938,Revised Statutes,provides that the commissioners of the several counties shall cause to be constructed and kept in repair, in the a manner prescribed by law, all necessary bridges in villages and cities not having the right to demand and receive any portion of the bridge fund levied upon property with in such corporation, on all state and county roads, free turnpikes, improved roads, transferred and abandoned turnpikes and plank roads, which are of general and public utility running into and through any such village or city. * * *
“The purpose of the exceptions seems to be obvious. By section 2640, Revised Statutes, it is made the duty of the council tojcause all bridges within the corporation to be kept open and in repair, and this requirement has no modification save as to those municipalities which cannot receive any portion of the bridge fund. In such, upon county •roads, etc., the commissioners must keep the bridges in repair. The municipality pays the whole of its tax raised for bridges into the county bridge fund, and it is but fair that the county should keep up the county bridges.”

The case in 49 Ohio St., 301, was an action in mandamus to compel the county commissioners to build a certain bridge, and the question decided in that case was that it was a discretionary matter,resting with the county commissioners, and could not be enforced in that way. However, there is a discussion there with reference to these sections of the statute, but not aimed at the question here, and it is not important in this consideration.

The case in 58 Ohio St., 605, is not a case of this kind, 'but there is some analogy and suggestion in it That ease -• is one in which the city council granted to a street railway the right to lay its track in the street. The drainage was • obstructed, and there it was held that the action might be brought against either of the parties, — either against the ■ city primarily, or against the railroad company.

Elliott on Roads and Streets is cited in view of the injus* tice that would arise in an action of this kind if the county commissioners should take charge of a street for the purpose of constructing a bridge, made an excavation, and leave it unguarded, that the city ought to be exonerated, notwithstanding this statute, from guarding the street; that it is unjust; that they do not have the funds for the purpose; that they allow the county to take the funds; and upon that "theory a very plausible argument is made (and with some force) by this author; but on page 45 this statement is made (citing various authorities):

“Such bridges may, however, form part of the munici$pal streets, and when this is true, it may be that it be•comes the duty of the municipality to exercise ordinary ■care to maintain them in a reasonably safe condition for travel, but this duty can only arise when the bridges form part of the streets of the city, and are so used.”

That is this case. That is the manner in which this bridge is used. It forms part of the street, and is so used ■as a part of the street. There is no direct authority anywhere that county commissioners have the right to build a bridge on a street as such. If it is a state or county road, or any of those denominated in those statutes, passing through a city, then they have that right under the statute; but not because it is a street as such that they have the right to construct these bridges.

I don’t know that there is anything further that we need say, because it would only be to repeat what was said before, further than to announce the conclusion. The question is made in the case of the bridge swept out in East Newark, whether or not the city authorities, under the provisions of section 2640, which imposes the duty that they shall keep their streets, public grounds, lanes and bridges in repair and free from nuisance, shall close their eyes to the fact that that bridge is swept away, and say that the •county commissioners must put up guards and lights at night time; that the city will not, and if any person drives into that great excavation there and is killed,the city ought to be exonerated. That is the proposition submitted, and we think that the provisions of section 2640 cannot be annulled or abrogated by the provisions of section 860, or any of these statutes. We think 4988 is helpful in defining what kind ■of roads and turnpikes, etc., the county commissioners have the right to construct bridges on. Now, adding the fact that bridges are part of the streets, and that there is no authority for county commissioners to construct bridges on streets as such, and construing section 2640 with sections 806 and 4938, we are not'willing tbat^this section, to-wit: 2640, shall be so abrogated or annulled as to exonerate the city from putting up lights; and that meets the objection-made that they could not fence off this street; lights could be placed there which would be a sufficient guard. No person ought to drive into a place like that in the day time; the city would have a good defense if they did; but they cannot simply say that we will abrogate section 2640, because the county commissioners are interfering with a part of our street, or doing a public work upon it,and that there-is no liability upon the part of the city. We think this-judgment ought to be affirmed.

T. B. Fulton, for Plaintiff in Error,

Waldo Taylor, for Defendant in Error.


author: Parker, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    March Term, 1898.)
    Before King, Haynes and Parker, JJ.
    F. S. HASLAGE v. HOOVER and WOODWARD.

      Exemption — Concealment of property—
    If a debtor, demanding as exempt under sec. 4341, R. S., property taken by process of law and in the custody of the court, has-at the time of such demand and the hearing thereon to determine his right to such exemption, other property of the same kind and of the value of S500 in his possession or under his control, which he conceals or withholds from his creditors, he will be deemed to have selected the property so concealed or withheld, and his demand for the property in the ¡custody of the court will be refused.
    [[Error to the Court of Common Pleas of Lucas county.
   Parker, J.

The question involved in this case is as to the right of a debtor to hold certain property exempt in lieu of a homestead, under section 4341, of the Revised Statutes.

Suit was begun in the court below and a writ of attachment was issued, also garnishment process which was served upon the insurance company, a creditor of the debtor,on the. 29th day of June, 1897. The action by Hoover and Woodward against Haslage was upon a claim of $71.47. The insurance company answered as garnishee, that it had in its hands belonging to the defendant, $676.62. The debtor did not then, nor afterwards, until the 23rd day of October, 1897, demand any property as exempt to him under this section of the statute, in lieu of a homestead; but upon the 23rd day of October, 1897, he made his demand to the court and undertook to select $500 of this $676.62, which was then under the control of the court. The plaintiff in the case disputed the right of Haslage to have this money exempt to him. It was not disputed but that he was the head of a family, a resident of Ohio and not the owner of a homestead; but it was claimed that on account of certain property which lie then withheld from the officer, or which he had withheld from the officer at the time of the attachr ment and garnishment, he should not have this $500 which he then undertook to select at a later date.

The facts were brought before the court by affidavits and by a certain record of an examination of the debtor had in a proceeding in aid of execution instituted in the court of common pleas, before one G. R. Craig, as referee, in th© case of Babcock,Hurd & Company against Haslage. In that proceeding Haslage was examined as authorized by the statute.^ Upon the hearing, in the case at bar, the question was as to whether he should have this $500 exempt to him.. The report of the examination before the referee was in^ troduced in evidence over the objection of counsel for Haslage. It is contended that what Haslage testified to upon the occasion before the referee should not have been admitted, because it was in an action or proceeding between other parties than the plaintiff and defendant in this particular case, and also because the defendant, Haslage, did not have an opportunity of cross-examination; or, in other words, did not have an opportunity of doing anything mor© than answer the questions asked him in chief — did not have an opportunity to make further statement in explanation of the answers thus drawn out.

Without undertaking to decide whether he had such right, We are of the opinion that it was not error for the court to 811ow his answers given on that occasion to be introduced in evidence in this case. If it had been the testimony of some other witness which defendants in error had sought to introduce in evidence, it would have raised quite a different question — one to which the rules and doctrines asserted here by counsel for Haslage would have been applicable; but we are of tne opinion that the admissions of plaintiff in error on that occasion, were admissible upon the •hearing of this case. He had, upon this bearing, an opportunity to make any further statement or explanation that he may have desired to make.

It appears from this examination, and from the affidavits, ’that, at the time this insurane company was garnisheed, the defendant Haslage, had in bis possession, or under his control, money amounting to something over a thousand dollars, in addition to this money which was due to him from the insurance company. I mean to say, that he had under his absolute control something over a thousand dollars. When this question came on to be heard before the court below, upon his demand and attempt to select, his •statement was introduced to the effect that he did not then have this money, or any of it; that he had been traveling about the country, going to different cities, following and attending the races, and betting on the speed of horses, ;and that by so-doing, he had lost all of this money. He didn’t undertake to particularize, but made that general, sweeping statement, that he had thus lost all of his money; that he had nothing left but this money in the hands of the "insurance company out of which he was asking for $500 exemption.

It is contended on behalf of the defendant in error that «ince Haslage had this money in his possession at the time the garnishing process was served, and did not then offer to turn it over to the officer, or to his creditors, but withheld it, and afterwards wasted it, or lost it througn his folly, it will be inequitable to allow him to have $500 in lieu of a homestead out of this money reached by attachment process.

It is said that .some doctrine of estoppel, or of some implied waiver,or selection, .should be applied,so that he should not now have an opportunity to assert a claim to this ■money in the hands of the court.

It is urged that the right of the debtor to select property must be determined as of the date of the levy; and in support of this proposition, we are cited to a case in the 40 Ohio State Reports, at pages 345 and 346. That was a case in which, at the time of the levy, the debtor was not one of the class of persons entitled to hold property exempt. He was an unmarried man. After the levy, but before the sale of the property levied upon, he married, and then undertook to claim the property as exempt to him as the head of a family. The court held against him, and, upon that state of facts, held that his right must be determined as of the date of the levy. And that seems to be the rule as to the class of persons entitled to hold property exempt, But, as to the particular property claimed as exempt, we understand the rule to be, as announced by the courts and as illustrated by a number of decisions, (among them being the cases in the 31 Ohio State Reports, page 447; 38 Ohio State, page 530; 40 Ohio State, 233 and 43' Ohio State at page 64), that, if, at the time of the levy, the debtor was ■one of the class of persons entitled to exemptiofts, his right to hold the particular property which he is claiming as exempt, is to be determined as of the date when he asserts the claim, or as of the date when the court comes to pass «pon his claim.

We do not find it necessary in this case to either adopt or reject any of the doctrines urged or sought to be applied here, whereby the concealment or withholding by the debtor of other money or property would operate by way of estoppel, or as a waiver, or as a selection. We think we see serious objections to the adoption of a doctrine that would require a court to consider the wisdom or propriety of the use made by a debtor of property so retained as affecting his right to subsequently select other property. It may be that, in the exercise of equitable powers, courts may determine the right on the ground of the use made of the property so witheld;or, without statutory authorization,may say that, if the debtor withholds other property and uses it in such a way as that to allow him at a later date to withhold other property from the creditors, would be inequitable, and that, therefore, he should be denied such privilege of subsequent selection; whereas on the other hand, if he applied his other property to the payment of his debts, to his living expenses, or in some other way that could not be criticised, he should be allowed such privilege of subsequent selection. As at present advised, we doubt if a court may exercise such power in the administration of .this law. There is no clear authority for the application of such rules or principles, under this statute.

. That the debtor’s mere inaction- — -his mere holding on to the money and not turning it over to the officer, or to the creditors, would not amount to a waiver or a selection, we think is settled by a number of authorities, and among them the case of Close v. Sinclair, in the 38 Ohio State Reports, at page 530. That is a case that went to the supreme court from this county. The syllabus reads as follows:

“The right given by section 3 of the Homestead Act, as amended February 27, 1873, (70 Ohio Laws, 51), to a debtor, who is the head of a family, and not the owner of a homestead, to hold exempt from levy and said, property as therein mentioned, to be selected by him ‘at any time before sale,’ applies as well to property' levied on by attachment as by execution; and' an order-for the sale of the attached property, made in the pro-, ceeding in attachment, does not prevent the. debtor from , exercising his right of selection after the making of such order of sale.
‘‘2. Where property has been levied on by attachment, and, pending the suit, the debtor assigns all his property for the benefit of creditors, excepting only such as he may lawfully hold exempt from execution, the right of the debt-, or to select the attached property as exempt from sale is not thereby waived.”

It appears from the facts in the case that after attachment was levied upon the particular property in controversy, an assignment was made for the benefit of creditors. The assignment was made on February 17, 1874, and,at the June term of the court, judgment was taken for the plaintiff in the case wherein the attachment was issued and levied.

The property in question was selected by the debtor on August 4, 1874, —six days before the time fixed for the sale, — and was set off and appraised by the officer on the 8th of the same month. The question was whether there was such delay in making the selection as to operate as a waiver of the right. The court say: — ■

‘‘We think the statute, which declares that the selection may be made ‘at any time before sale,’ requires the question to be answered in the negative. We doubt not -the right to make the selection may be waived by the debtor,' as was held in Butt v. Green, 29 Ohio State, 667; but we find no circumstances in the present case to justify us in holding that he had waived the right.”

So, in the case at bar, there is nothing in the mere fact that the debtor withheld this property and took no active measures to turn it over to the sheriff, or to his creditors, that would operate to cut off his right. But we hold that where a debtor claims and seek's to exercise a right to select money, and at the time of such attempted selection — at the-time of the demand, or at the time his right thereto .is considered and adjudicated by the court, it appears that other-money amounting to $500, is in his hands, or under his-control, the court will deem and adjudge that the retention of such money is a selection thereof, and will disallow his-claim to the money held by legal process.

In the opinion of Judge Wildman in this case, 5 NisiPrius Reports, 90, we find this quotation from Freeman, on Executions, section 212:

“The right of selection must be so exercised as not to-work fraud upon creditors by permitting the debtor to select as exempt that which has been levied upon and, at the-same time conceal or dispose of other property which might-have been levied upon, bad the right of selection been-properly exercised.”

The doctrine there announced goes somewhat further than that adopted by this court, but we follow it to the extent of holding that, if the debtor has such property and conceals it at the very time that he is insisting upon his demand and selection of other property, the court will regard' such withholding of the property as a selection thereof, and will disallow his claim upon other property.

The property under the control of the court in this case, it will be observed, was money, or a credit tobe discharged by the payment of money, and the property which the defendant conceals, or had at the time of the levy, was also-money. With respect to this, the learned judge of the court below very aptly and pertinently says:

“The idea of selection of the fund in the hands of the-garnishee is more fanciful than real. It is not that a bird in the bush is better than two birds in hand. The debtor-does not select the fund in the court’s power or control because he likes it better — -because it is better or more desirable money, but he demands it only that he may hold it and that already in his hands. There can be in the-case of a claimed selection of money under the circumstances of this case, no other conceived motive.”

P, N. Schuyler, Attorney for Plaintiff.

Theodore Alvord, Jesse Vickery, Attorneys for Defendants.

This case, as I have indicated, comes here on error. There is no finding of facts by the court below. The evidence is submitted to us, and every presumption is to be indulged in favor of the correctness of the judgment of the court below, and if, upon any conceivable state of facts which may be sustained by that evidence, that judgment may be upheld, we are bound to assume that that was the state of facts found by the court, and therefore uphold the judgment. Now, while it is true that the defendant has made the statement that he thus lost or wasted this property, in view of his other statements and of his conduct with reference to these claims of creditors, we cannot see that the court of common pleas was bound to believe this statement,and, if the matter were submitted to us upon this evidence as a court of inquiry into the facts, instead of reviewers of the record, we would come to the conclusion that this statement that he has thus wasted or gotten rid of this money within so short a period of time is not worthy of belief. We think the court below was authorized to disbelieve it, and I may say that it does not appear in the record or from any remark in the opinion of the court below that the court did believe this statement, but on the contrary, certain of his remarks indicate that he did believe, at the time-he rendered his opinion, that the defendant debtor still had this money, or at least, $500 of it, under his control, or in his possession.

We think a finding of that kind would be fully sustained by the evidence in this case, and therefore, as I have said, we are bound to assume that the court did so find, and upon that ground we sustain the judgment of the court below.

Affirmed,


text:
    (Fifth Circuit — Licking Co., O., Circuit Court
    March Term, 1898.)
    Before Adams, Douglass and Smyser, JJ.
    ALEXANDER CARLILE et al. v. JOHN P. LAMB.

      Alteration of note by parties to same — Effect—
    After a note has been executed, and before it is delivered to and accepted by the payee, an alteration may be made in the note with the consent, express or implied, of the makers of the note, and any maker of the note consenting expressly or impliedly to such change is not released from liability on the note by such alteration; but any material alteration, made after the execution, but before delivery, would release all makers not assenting thereto.
    Same, by stranger — Spoliation—
    An alteration in a note, to invalidate it,must be made by or at the instance or with the complicity of the owner or holder of the _ note. But if made by a stranger, it is a spoliation, and the , obligation as it was before such spoliation would be the obligation of the parties.

      Same — Materiality—Change of obligation of party—
    Any alteration'or change that does not affect in any way the legal effect of the obligation, or the rights of the parties thereto, would not invalidate the note. The addition of words to a non-negotiable note that would make it negotiable might or might not be a material alteration.

      Same — Change malting non negotiable note negotiable — When not material—

    Where a non-negotiable note, after execution, but before delivery, is altered with the assent of one of the makers, by the payee by inserting the words “or order” to make it negotiable, but where the note is not, in fact, negotiated, but is enforced between the original parties to it, such alteration in such ease not having the effect of changing the obligations of the parties between themselves, will not be considered a material alteration, and will not invalidate the note as to the non-asenting makers.
    Error to the Court of Common Pleas of Licking county.
   Douglass, J.

In August, 1891, the plaintiff below (defendant in error here), being the owner of a stock of groceries in Newark, Ohio, desired to sell the same. Alexander Carlile desired to purchase the same to start his sons in business. The plaintiff sold this stock of goods, two-thirds to Alexander Carlile and one-third to Homer Brickel. They entered into a written contract, in which the defendants agreed, among other things, to deliver the plaintiff their note in part payment of the interest so purchased by the Carliles for their minor sons, The plaintiff transferred this stock to the defendants, and the defendants executed and delivered to the plaintiff their promissory note, dated August 10th, 1891, by which’’they promised to pay to plaintiff or order the sum of $424.60, with interest at six per cent. The plaintiff then sets out certain endorsements of this note, by which it is shown that the note finally reached the original payee. He says that no payments have been.made, and asks judgment for $424.60,with interest from the date of the note.

The defendant admits the ownership of the stock of goods; says that the sons agreed to purchase two-thirds thereof and Brickel the other one-third; that certain sale notes that he owned were endorsed in payment, and that he delivered to the plaintiff his non-negotiable note for the sum of $424.60, and denies each and every other allegation. He says that if the note mentioned|in the petition was executed by him, it was fraudulently changed and altered, without the knowledge and consent of^the defendant, and ¡after the note was signed by him.

That is the substance of the issue. J On thejtrial it was 'narrowed to a contention upon the note, the only controversy or defense being this alteration. That is, that the note was given, and as to the consideration, no question was made; but the fact of the alteration is the defense which it is said ought to defeat this note. On this issue, surrounded by the facts existing at the time that the same was executed and delivered, the case was tried, but restricted wholly to that contention.

In the record, we have a copy of this contract which leads up to the execution of this note:

“Newark, O., August 3, 1891.
“We, the undersigned, do agree to buy of J. P. Lamb, his stock of groceries and fixtures, three wagons, four horses, three sets of harness, and all store fixtures except money register and ice boxes, and to take them at invoice price, to be invoiced by two uninterested men and to be paid for by good notes with good security, to come due on or before one year after date, to be invoiced August 10, 1891.”

Signed by these two sons and Homer Brickel; witnessed by the parents of the two minor sons and J. P. Lamb.

On page 11 of the record we have the note in suit: “Newark, Ohio, August 10, 1891. On or before August 11, 1892, we,or either of us,promise to pay to, ‘or oder’, John P. Lamb the sum of four hundred and twenty-four dollars and sixty cents, with interest at six per cent.” Signed: “A. Carlile, Elizabeth Carlile”, as makers of this note, according to this agreement, on behalf of the min- or sons; but, it was their note.

There are many exceptions to the admission and exclusion of evidence, and to the refusal of the court to charge as requested, and to the charge as given by the court; but all of these follow from the wide variance between the parties as to the theory of this case and the law applicable to-it. As I said before, the only issue that is made, that is, that is tried here,and that the court submitted to the jury (I will speak of the first, second and third defenses later) is-the alteration of the note. Written requests to charge are. asked to be given, which are refused, except as given in the general charge; but, specifically, all are refused. Exceptions are taken to the charge in all of its parts and every paragraph. The contention, as we think, narrows itself down to the question indicated: What constitutes an alteration that will avoid a note? The court charged upon this proposition fully; and we think that this is a case that involves some doubt. We think it is on the edge, because it is certain that if this change was made after the note had left the hands of one of the makers, Elizabeth Carlile, without her knowledge or consent, and without the knowledge of the payee, that,under ordinary circumstances, would be a material alteration, and a good defense, for the reason, that it changes the contract made by Elizabeth Carlile' without her consent, and it materially changes it because it; broadens the contract. In the case of a negotiable promissory note, the note can get into the hands of other parties;, the proof may become more difficult, and there are many reasons that can be assigned that causes this to be a different contract than the restricted promissory note, payable b> the party named therein.

It is said that the evidence shows that the husband, Alexander Carlile, was the agent of Mrs. Carlile. There is-some evidence tending to show this; but we are not going" to decide this case upon that point, and I will pass it; and. we will come to the very point that is essential here. As a. matter of course, a note can be altered before its execution, with the consent of the parties, and it would not vitiate the-note, After its execution, it could be changed, if the parties-assented thereto, as we well know. But if the note, as I. have said, were materially changed after it had been signed by the makers, or by makers and surety, and had left their hands, and, without their consent or assent, with the knowledge or privity of the payee, then that would be a change' that would invalidate the note, if material. The supreme' court makes the distinction that, if done by a stranger, it would be a spoliation of the note, and could be enforced as¡ to the original contract. Some opinions go that far, but it' would be a spoliation of the note, as distinguished from an> alteration.

We have a number of authorities cited here. In 40 Ohio' St., 139, the note sued on was a complete note, and “with» ten per cent, interest from date” was added. The court held that that was a material alteration, of course, because it was not the contract which was ¡^signed by the party; that it broadened his obligation, and required him to pay $1060, in that case, instead of $1,000.

“Where a complete note, payable at a future day and •containing no stipulation as to interest, is altered by the principal maker without the knowledge of his surety, before its delivery, by the addition of the words ‘with ten per cent, interest from date’, Held: That such ■ alteration is material and makes the note void as against the surety, although the same is made without the knowledge of the ■payee. ’ ’

The court charged in this case (40 Ohio St., 139):

“As to the first defense to each note, the burden is ■upon the defendant to maintain this defense by a fair preponderance of the evidence, and in order to make out this defense the proof must satisfy you of two things:
“1. That the note, in each case, was altered by the insertion of the clause as to interest, after it had been signed by the defendant Jones, and without his consent.
“2. That it was so altered with the knowledge, consent or procurement of the plaintiff, For if the note (either of them) was altered before its delivery to the plaintiff without her knowledge or consent, such alteration will not affect its validity in her hands.”

The court making reference to this says:

“The only questions to be decided arise upon this charge. As applied to the note under consideration, the charge is to the effect that a material alteration of a complete note, made by the principal maker, before delivery and without the knowledge of the surety, does not discharge the surety, unless such alteration was made with the knowledge, consent or procurement of the payee. We think the charge is manifestly erroneous.”

The court, coming to the consideration of this, says:

“Tire alteration was certainly material. When it was signed by the surety the note bore no interest before maturity, and was for the payment of $1,000, and no more ■when due. ”

That is so apparent that we need not read it; because that was a material alteration,

“By the subsequent alteration its identity was lost, and there arose another and distinct obligation which he had not signed. To hold him bound by the new contract he must, in some way consistently with legal principles, be concluded by the act of his principal or other person in making the alteration.”

The court in]discussing the'jcase of Fullerton v. Sturges, 4 Ohio St., 530, says:

“The case of Fullerton v. Sturges, is confidently relied on by the defendant in error, as sustaining the position that the participation of the payee in a material alteration, before delivery, is necessary to avoid the note as to a surety who had no knowledge of, and had given no authority to make, the alteration. As we understand that case, the alteration consisted in affixing a seal to the name of the surety before delivery,and was wholly immaterial. Therefore, all that was said by the eminent judge who delivered the opinion on the law relating to a material alteration, is obiter.”

The affixing of the seal was held to be wholly immaterial; that is, it was a change in^the note, but it was an immaterial change, and it was enforced as an unsealedpnstrument.

48 Ohio St., 296, fixes the burden of proof. That is not in contention. 16 Ohio St., 348, third syllabus:

“Where such note has been signed by a surety, and was subsequently, without the knowledge or consent of the surety, so altered before delivery, the payee being privy to such alteration at the time of delivery, and knowing that the surety had not assented thereto: Held, that no action can be maintained, against the surety, upon such altered note.”

The note read “ten per cent, interest annually”. The word “paid” was inserted before the word] “annually”, and it was held to be a materialjalteration, for the reason that it called for interest to be paid upon the interest, and therefore broadened the'obligation, and made it greater.

I will refer to the 54 Ohio St., 273:

“The date borne by a promissory note is a material part ■thereof; and if the payee, without the knowledge or con.sent of the maker, alter its date after the note has been delivered to him, such act renders the instrument void even in the hands of an innocent indorsee for value”.

This is quite a strong case. The date of the note was changed from June 22nd of a given year to June 23rd, and the court holds that that is a material alteration of the note, • and gives as a reason that it would affect the statute of limitations, and that the time is lengthened as well; that a change in one day would be, in principle, the same as a month; and the court backs itself upon the ground that it would be changing the rights of the parties and their lia- ■ bility.

What are the facts about this case, as the authorities •measure them? We have here a promissory note that was written without any words of negotiability. After the note had been signed by Alexander Carlile and Elizabeth Carlile, the makers, Alexander Carlile went to the place where Mr. Lamb was, and there Mr. Lamb made objection to the note in its then form, as it did not conform to the original eon- • tract that called for good notes. At the suggestion of some of the parties, or by their agreement, the words “or order” were attempted to be inserted; they were inserted at the wrong place, and spelled “or o-d-e-r”. As I have said ! before, if a note was altered from a non-negotiable instrument to a negotiable instrument, by inserting the words '“or order”, that, perse, would be a material alteration; •and if made under the conditions that I have a number of times stated, would be a defense. This case was tried between the original parties to the note; and, as a matter of fact and in essence, as tried, the note is simply as if there had never been any attempt to change it; because it is •sought to be enforced between the original parties to the. •note. We think that the words “or o-d-e-r”,, written ’where they were in the note, was not such a change in the note as made it negotiable; that it would not, in the hands of any party taking it, cut off equities; because the very form of it, the blundering manner in which it was done, would be notice to the parties, and would not cut off equities or enlarge the contract as between the parties. That is the first consideration. A second- If we look through the form to the substance, this contract was simply enforced exactly as if no alteration had been made, and just as it was when it was signed by Mrs Carlile. Now, shall the letter of the contract prevail, (whieh is insisted upon here, and which is a strong argument, I will* admit), as against the real substance? The majority of'the court is of the opinion that this case is not free from doubt; but we are all of the opinion, from the authorities, on the statement that has been made, and for the reason that the attempted alteration did not make this note negotiable, is that, in the hands of any party taking it, it would not cut off equities, and did not broaden the "contract; that it did not change the •obligations of the parties, enforced as it was between the original parties; and if we stand by the letter, we disregard the spirit and effect of it, if we say the obligation between the parties was changed.

As to the charge of the court:

“After the note has been executed, and before it is delivered to and accepted by the payee, an .alteration may be made in the note with the consent, express or implied, of the makers of the note.”

We think that is good law as applied to®the case.

Again:

“And any maker of the note, consenting expressly or impliedly to such change, would not be released from liability on the note by such alteration; but any material alteration made after the execution, but before delivery, would release all makers not assenting thereto.”

That is the law in Ohio.

“Now, an alteration'in a note, to invalidate, it must be made by or at the instance or with the complicity of the owner or holder of the note.”

J. A. Flory, and J. B. Jones, on behalf of Plaintiffs in Error.

Kibler &lKibler, on behalf of Defendant in Error.

That is, some of the parties in interest, or all of the parties in interest, must know something about this.

The court saysjif it is made by a stranger, it is a spoliation; and then says: ‘‘and the obligation as it was before such spoliation would be the obligation of the parties”; and one of tire Ohio cases says that that is the way it would be enforced, and would be regarded as a spoliation, and not an alteration, making that distinction.

‘‘Now, as to the character of the alteration that would invalidate a note: It is not every alteration in a note that would invalidate it, but the alteration must be a material alteration- — -such an alteration as would change the effect of the note, and the rights or liabilities of the parties to the note. ”

That ought to be the test.

‘‘Any alteration or change that does not affect in any way the legal effect of the obligation, or the rights of the parties thereto, would not invalidate the note. The addition of words to a non-negotiable note that would make it negotiable might or might not be a material alteration”.

The court means there what happened in this case — -that it was enforced between the original parties, and that it made no difference whatever, so far as this contract was concerned, whether it, in form, affected the rights of the parties or broadened the contract, because, as enforced, it had no such effect. We do not base it wholly upon that ground, but we say that this was not such a change as’made it a negotiable note, and good in the hands of third parties, to the note.

We think the judgment in this case should be and the same is affirmed.


text:
    (Fifth Circuit — Licking Co., O. Circuit Court
    March Term, 1898.)
    Before Adams, Douglass and Smyser, JJ.
    JUSTIN KIMBALL, Guardian of William McNaughton, v. JOHN BUMGARDNER.

      Insanity — Contract by insane, when enforcible — Judicious contract at fair price—

    Where a person is insane, and a guardian is appointed for him, mainly for the purpose of obtaining a pension for such person, but such person remains in the control of his property and enters into a contract for repairs of the same — a mill, to operate which, such repairs were necessary — there being no fraud or misrepresentation in the transaction, and the repairs being done judiciously andj¡well worth the money, such contract will be enforced.
    Error to the Court of Common Pleas of Licking county.
   Douglass, J.

This is a case heard in the common pleas court to enforce a mechanic’s lien in favor of defendant in error. The court found the equity of the casein favor of defendant in error John Bumgardner. To reverse this finding, error is prosecuted to this court.

The issue, as made up, is founded on these facts: That William MeNaughton was’fthe'jowner of a grist-mill property; that James^Hickey was the guardian of MeNaughton; that Levi Knowlton’jheldJajjmortgage lien upon the property, and these^parties are made defendants. A judgment is asked for the balance due upon this mechanic’s lien, amounting to $75.

The answer of MeNaughton sets out that at the time of making this contract for repairs,'MeNaughton was insane, and James Hickey was his guardian. That he^was adjudged insane by the^probate^court of this'Jcounty, November 14th, 1890, and was discharged on '[the213th day of December, 1893; that during that^time James Hickey was his guardian, and he was held for a time by the authorities in the asylum at Columbus. Also tbaUsaid guardian made no contract for such repairs,and notified Bumgardner that he was-guardian, and would not pay for any such repairs.

As a second defense, McNaughton sets up that many of: the repairs were unnecessary as made. That they were not made at his direction as agreed; that Bumgardner and his-help put in the time uselessly. Also, a counterclaim for defective work. The reply is a general denial.

Evidence was introduced showing a finding of insanity in the probate court in November, 1890; the appointment of Hickey as guardian, and his discharge in December 1893. The work was done between 1890 and 1893.

This, under the authorities, would make a prima facie case that an insane person would not be competent to enter into a valid binding contract.

It appears from the record that Bumgardner had heard of the appointment of the guardian, and sought an interview with Hickey, and that Knowlton, the mortgagee, was present at one of these interviews; the record discloses that Hickey declined to assume any responsibility in this matter whatever. That is, that he did not want to become obligated himself,to pay either as guardian or as an individual, disclaiming that he had any authority over this property.

The record discloses the fact that the appointment was for a single purpose, — to enable the guardian to secure a pension for the ward. Of course, that does not change the-general effect of the finding of insanity.

The work was discontinued for some time, and, after an interview with the parties, the-work was completed; payments were made, $75 remaining unpaid, and a mechanic’s lien perfected under the statute.

It is contended by the plaintiff in error that it was sought to get through this case by a claim for necessaries, but no such claim was made or argued by the defendant in error any more than this: Not that they were necessaries and that therefore the “record” insane person (in' this case,. McNaughton) was properly chargeable as an infant would ‘be for necessaries, but the contention was that this was á judicious and wise repair; that there was no overreaching; i:hat there was no fraud. All that defense to which I have alluded was abandoned, excepting the mere fact of insanity. That the work was properly done, worth the cost, and that it was judicious and wise, under this record, there can be no question. This mill property in the control of McNaughton was practically without value unless it could be put in a ■condition in which the property could be made available as mill property, and some work done in it; and Mr. Knowlton, who was present at one of these conversations when the work was discontinued, could not object because this work enhanced its value. So looking at the case, there is no fraud, or overreaching, or anything of that sort. The work that was done under this contract was well worth its cost, •and was a judicious and wise repair, but not a “necessary,” There is no contention on the part of defendants in error ■that it was a necessary that would bring this ward within the category of infants for whom necessaries furnished •should be paid for.

5á Ohio St.., 398, is relied upon as authority by the ■plaintiff in error. We have these propositions announced ■in the first and second syllabi:

“As a general rule the promissory note of a person non ■compos mentis, is invalid; but the rule is subject to the •qualification that when such a note is given for necessaries, •or for other adequate consideration of benefit furnished the maker in good faith without knowledge of his unsound mental condition, it may be enforced to the extent of' the 'value of the consideration so furnished.
“2. Such mental incapacity of the maker is prima facie a complete defense to an action on a note signed by him, ■and when interposed, the burden is upon the plaintiff to prove the consideration for the note, and other facts necessary to overcome such defense and entitle him to recover.”

We have also cited on thin, 6 Bull., 33, where, in discussing this matter, Judge Force says:

“Accordingly,where a mortgage, fair in itself, was given to one who had no knowledge or notice of the insanity, such mortgagee had a right to foreclose, and the insanity of the mortgagor is no defense.
“In the United States, the cases are not all in accord. In New York it is held that if the grantor is so insane that he does not know what it is that he is doing when he executes the deed, the deed is void. And a mortgage executed by one whose mind is enfeebled and affected, yet who understands what he is doing, if the transaction is in all respects fair, is valid and will be enforced.
“The supreme court of Pennsylvania held that Thompson v. Leach is still a correct statement of the law, and as we have no feoffments, but only conveyances by deed, the deed of conveyance of an insane person is void.”

In the 5 Bulletin, 788, before Avery, Cox and Johnson, we have a discussion of this matter that lends some aid. There was a request made to charge the jury that if it were found that the defendant was insane at the time of the contract, the contract would be void; “instead of which the court charged that to sustain the defense the jury must find the defendant to have been of unsound mind and incapable of making a contract at the time of the contract, and also that the plaintiff knew of this state of defendant’s mind, or that by fraud or misrepresentation he had profited by it.’’ Judge Cox, in discussing this,says:

“Most of the authorities hold that it would interfere too much with the general course of business to add such a new element of risk as the avoiding a contract because of the insanity of one party when the other party did not know of such insanity, or was not guilty of fraud. This doctrine is sustained by the best authorities.’’ * * *
“We think that the weight of the testimony was that the plaintiff below had no knowledge of the insanity of the defendant, and was not guilty of any fraud or misrepresentation, and that therefore the verdict was sustained by the weight of the evidence.’’

A. A. Star-el, on behalf of Plaintiff in Error.

Edward Kibler, on behalf of Defendant in Erorr,

Of course, we have this fact that there was au adjudication by the probate court of insanity, and from 1890 to 1898 this work was done. The record is clear, from the testimony of Hickey, the guardian, principally, and from all the evidence in the case, that the guardian never assumed any control of this property. ■ William McNaughton controlled it. Neither did the guardian assume any control of his person, but simply says, by his own testimony, that he was appointed for the one specific purpose; and,, when asked in reference to the matter, before the contract was entered into, he disclaimed any right to enter into it, and said that he hadn’t taken any control of it, and that McNaughton had collected his own rents and managed his own property.

We think from this fact, and from what.the record discloses as to what was said and done when this contract was entered into, and the doubtful nature of what was understood by Mr. Bumgardner at the time when he first talked to McNaughton and engaged to make this repair, and also the further fact that there is no fraud or imposition, but a wise and judicious repair, and that it was well worth its cost, that this judgment ought to be affirmed, and it is so .ordered.


text:
    (Fifth Circuit — Licking Co., O., Circuit Court
    Mar. Term, 1898.)
    Before Adams, Douglass and Sasser, JJ.
    WILLIAM A. MOORE v. ALONZO M. ILES et al.

      Curtesy — Effect of legislation of 1887 on rights previously accrued—
    Where a wife died in 1888, having an interest in remainder in certain land in'possession of a life tenant who died in 1891, in an action brought after the death of said life tenant by the widower for dower in such land under the act of March 18, 1887, (sec. 4188, R. S.) Held, the rights of the widower are regulated by the law as to curtesy as it stood before the passage of thé act of 1887, and he is not entitled to any interest in such land.
    Error to the Court of Common Pleas of Licking county.
   Douglass, J.

This is an action brought in the court of common pleas to set off and assign to William A. Moore an estate by the curtesy. The facts were set out in the petition, showing tbe status of the plaintiff: his marriage, conveyance of the property, the birth of a child and an estate in his wife. The answer denies that he is so entitled. The cause came on to be. heard to the court, and the court found the facts and law separately, dismissing the petition and denying to the plaintiff any such estate as claimed by him. To reverse this decree and finding, error is prosecuted here.

In an agreed statement, we have: That Alice V. Moore, formerly Alice V. lies, was one of four children of Alexander and Martha lies;'that on the 25th of September, 1876, she intermarried with the plaintiff, W. A. Moore, and died March 10, 1888, leaving plaintiff, her husband, and one child, Grace, the issue. Alice V. Moore, in 1874, joined her brothers and sisters in a conveyance by quit-claim to their mother of certain tracts aggregating 178 acres for her dower in all the property; and this deed was put on record in March, 1874, duly recorded, and the lands came by descent from the father, Alexander lies, to the said Martha lies, being his widow. Alexander lies died on the 24th of October, 1870, seized of the land mentioned in the petition, and leaving said Martha lies his widow, who received the lands mentioned in the petition, and which embraced lands other than the lands mentioned in the petition. Martha lies lived until December 24, 1894, when she died.

It is conceded here that if the same rule obtained yn> 1876, when the cause of action at bar arose, as governed'1 in 1847, when the law was laid down respecting this very-matter in the 11 Ohio St., 367, or, in fact, if it is the’ same as it was any time prior to the enactment of the legislation of 1853, the case decided in 11 Ohio St., is decisive,- and counsel for plaintiff are reacy to capitulate. They regard that as decisive. We had an instructive argument here on the origin of curtesy, which was said to be involved in obscurity, and it was conceded that originally it^was a-rule or law of property that had its origin in the common; law; and the requisites of curtesy were the fact of^marriage, seizin, the birth of issue, and the death of the wife;that these were the pre-requisites of curtesy. This discussion was simply had to bring us down to the legislation of 1853 to show that at that I time, for the first, the pre-requisite of birth of issue was eliminated, leaving the others-remaining, and to show, in connnection with the legislation of 1866 and 1869, respecting the separate property of married women, how that affected the estate by curtesy;- and the claim was broadly made that that legislation, es-. pecially the legislation of 1853,absolutely abolished common law curtesy, and established a statutory curtesy. The 11 Ohio St., 367, having this question before it (not, however, the legislation to which I have just referred) laid down a> rule in the case,on all fours with this, asfollows: l!In order to give a right by the curtesy in the wife’s lands, it is not-sufficient that the wife was seized of an estate of inheritance therein during the coverture. She must also have had' a right to the present possession of the freehold. Hence, it is the settled rule of law, that a husband cannot be tenant by the curtesy of a remainder, expectant upon an estate for life,” — which is on all fours with this case — “unless the latter be determined during the coverture.” That latter part applies as well to this case; and, as I have before-remarked, if that is the law — ?if these changes have not given us a different estate from the one at common law, then, as a matter of course, that is decisive. That is the whole contention.

An examination of the 39 Ohio St., 516, is instructive along this line, because in that case it is decided that:

‘'‘Curtesy ‘initiate’, as it existed at common law, is abolished in Ohio.” And then the court further say: “Curtesy is now regulated by statute,and is conferred only upon surviving husbands in the estates of which the wives die seized. It is not a vested estate until the death of the wife. ’’ There is a discussion here of the legislation of 1846, and, without reading that, I will simply hint as to how the legislation of 1866 and the legislation of 1869, in respect to the property of married women, affected this estate by the curtesy. What was originally the estate by the curtesy could be levied upon by execution, and could be sold by the husband. After the legislation of 1866,the object and purpose was, that it could not be reached, and would be safe from either the rapacity of creditors or the extravagance and improvidence of the husband. That was the legislation then, and it is not material until we come to the legislation .of 1853; because the legislation of 1824 and 1835, that is here spoken of, and the conclusion given in each instance, does not affect this case, for the reason that the case which was afterwards decided occurred prior to 1853. The court, however, in reciting the legislation of February 11, 1824, .•says:
“By section 15 it was declared, however, that nothing contained in the act should affect the right any person may have as tenant by the curtesy in any estate of inheritance, nor shall the right of dower claimed by any widow, in any estate of inheritance, be impaired in any wise whatever.
“This left the estate as it existed at common law; expectant upon marriage (as it is sometimes asserted), initiate upon the birth of a child capable of inheriting, consummate upon the death of the wife. This act was amended in 1885, and in the place of the section last cited, the following was enacted: ‘Section 15. Nothing in this act shall be so construed as to affect the right which any person may have to any estate by the curtesy or in dower, in any estate of inheritance of any deceased person.’ That is a portion of the act.
“While in the act of 1824 the common law estate of the curtesy was saved from the operation of the act, the curtesy which is saved in terms by the act of 1835, is curtesy in the estate of a deceased wife. * * *
“The act was again amended,’’ (and now we come to the real contention,) “in 1853, and section 17 contained the entire section 15 above quoted, and added thereto the clause: ‘and surviving husbands, whether there has been issue born during the coverture or not, shall be entitled to the estates of their deceased wives by the curtesy.’ ’’

Pruning out the third pre-requisite,or the pre-requisite of issue born, enlarged the estate. That is evident. Pruned out and narrowed in the sense that one of these pre-requisites was gone, nevertheless it would enlarge the estate in the husband. The court says:

“It was insisted that by this statute, which eliminated from an estate by the curtesy the pre-requisite, ‘birth of issue', an estate immediately vested in the husband, in all respects like unto curtesy initiate, by the mere facts of marriage and se’zin of the wife, but it was held that such was not the effect of the act. That the marital right of the husband to the possession and control of the real estate of his wife was unaffected by the act. That in strictness this right is not an estate by the curtesy, though sometimes called curtesy expectant, but a mere possession by him in the right of the wife; and that the statute operated only to enlarge the rights of ‘surviving husbands.
“It seems clear that by this legislation the rights of the husband in the real estate of his wife were in these respects materially changed; i. e. the estate or interest which, by virtue of the marriage, was his, whether issue was born or not, and which entitled him to the possession and the rents and profits thereof during coverture, was preserved to him, but with his power to convey or incumber it without Mb wife’s joining with him, and the power of his creditors to seize it upon execution, destroyed. His curtesy in the estate of his deceased wife, i. e. curtesy consummate, was likewise saved to him, no longer dependent upon the birth of issue.”

That is the constructionjof the court as to what the legislation of 1853 did, and how far it broadened it.

In 11 Ohio St., 367, they say that it is not necessary that the wife be seized in deed,' — that is physically seized; but there must be a present right to immediate possession.

From what the court says here as to the effect of this legislation, we do not see that it goes any further than ' to limit the estate by curtesy so as to make it such a seizin as gives an immediate right to possession. We do not think it goes so far as to abolish curtesy proper, and to make it statutory curtesy. We do not think that there ever was statutory curtesy, as such, in Ohio; that curtesy initiate, as it existed at common law, was abolished in Ohio by the legislation of 1853; that the’estate by curtesy, or vested curtesy, which only became vested at the death of the wife, we think was regulated by statute and enlarged, but that it was common law curtesy down to 1887, when the estate at common law by the curtesy as such was abolished, and dower was put in its stead for the benefit of the husband. We subscribe to the view that the supreme court in all probability, if they had kept up with the pace of civilization, would have said fifty years ago that these old iron-clad trappings, that belonged to the feudal ages, ought to be wiped out of existence; that it should be statutory curtesy, and put upon some rational basis; that, as suggested in the brief of counsel making this contention, it would be for the benefit of the surviving husband, and the issue born of the wife. But the 11 Ohio St. does not recognize any such doctrine. It hangs to the old idea; and the legislation along the line, while eliminating this one pre-requisite to which he have referred, and broadened the estate by the curtesy, does not seem to construe that legislation anywhere to mean anything else than that it simply regulates curtesy; and that the pre-requisites of marriage, seizin (which must be such seizin as gives a right to immediate possession) and death of the wife, all standing there, make it a modified common law estate by the curtesy, regulated in that degree by the statute. We think that the 11 Ohio St., is the law, and that it was so recognized by this decision in the 39 Ohio St., that the decisions in the 39 Ohio St. and the 11 Ohio St. can stand together. This judgment below, by reason of those facts, must be affirmed.

S. M. Hunter, and T. W. Phillips, on behalf of Plaintiff.

Kibler & Kibler, on behalf of Defendants.


text:
    (Fifth Circuit — Licking Co., O., Circuit Court
    March Term, 1898.)
    Before Adams, Douglass and Smyser, JJ.

    CHARLES W. HENDRICKS v. MARY C. BOWLER.

      Civil action for assault and battery — Docket of J. P showing «charge and plea of guilty, admissible subject to explanation—
    In an action for damages for assault and battery, the docket of the Justice of the Peace before whom the prosecution therefor was had, showing the affidavit of the charge and the plea of guilty, will be admitted, not as absolute proof of the guilt of the defendant, but only as evidence subject to explanation.

      Same — Wealth of defendant — Evidence admissible—
    In an action for damages for assault and battery, evidence of the wealth of defendant is admissible as showing his ability to respond in damages.

      Same — Punitive damages—

    If the blow was struck for the purpose of injuring plaintiff with ill will or under circumstances of insult, punitive damages may be found.

      Error to the Court of Common Pleas of Licking county.
   Douglass, J.

This was an action in the court below for damages, by Mary C. Fowler v. Charles W. Hendricks, for an assault and battery. The case was tried to a jury and resulted in a verdict of $225, in favor of plaintiff; and error is prosecuted in this court. The principal errors assigned are: Errors in the admission and exclusion of evidence by the court; that the verdict is against the weight of the evidence, and error in the charge of the court. Especial reference is-made to pages 115 and 116 of the charge. The errors claimed in the admission and exclusion of evidence are embraced under the propositions: Evidence admitted respecting the

charge and the plea of guilty before the justice of the peace; evidence as to the wealth of the defendant below, Charles Hendricks, as it might show his ability to respond to damages; and evidence permitted in reply or rebuttal, having called Mrs. Fowler to rebut certain evidence of a conversation alleged to have occurred between herself and one Steward, which was made a part of the defense; that is, the evidence of Steward.

On pages 7, 8 and 9 we have the action of the court on the question as to the charge and the plea of guilty before the justice of the peace. First. On page 7:

“Was the affidavit read to him ? A. I don't know whether I read the affidavit to him, or stated its contents. Q. Well, you may state what he said to it.
“Counsel for defendant objected for the reason that if anything is to be claimed frim the record made in the docket, that the court, as such, only speaks through the entry that he makes, and that he cannot explain orally anything that he entered as a matter of judgment at that time”.

The court states his position, and says:

“The record, of course, can not be varied, but if Hendricks told him about it, or made declarations, that is perfectly competent. You have shown what the witness says about the reading of the affidavit; then, so far as the plea is concerned, the docket is the evidence. ”
“Q, Did he have any attorney there? A. No, he had no attorney at the office. Q. Did he have any attorney there afterwards? A. No, sir.”
“Counsel for plaintiff here offered in evidence a portion of the above docket. Counsel for defendant objected. The court overruled the objection, to which ruling, counsel for defendant then and there excepted.”

The charge was read, and the plea rf guilty.

In order to discover the effect of this, it is necessary to make reference to the charge of the court respecting this very same subject-matter, which is as well objected to This is very lengthy. I will read a portion of it:

“Now, Gentlemen of the jury, in considering the matter of his guilt' — 'that is, of whether he did strike this blow, I want to say a word or two about the introduction here of the docket of Justice Pigg, where it is set forth that Mr. Hendricks plead guilty to a charge made in that docket, —a charge substantially of assault and battery. Now, Gentlemen, that does not prove that it is true — that is, that the facts alleged in the affidavit, that was read in your presence, are true; they are only to be considered by you as evidence. Now, if Mr. Hendricks, although he thought the charge was not true, merely pleaded guilty because it was the cheapest way of getting out of it, it ought to have no effect here at all, Or, if he thought he was guilty of a technical assault and battery —some little assault and battery that he was bound, upon a trial, to be convicted of anyhow, it is not evidence that it goes on any further than what would be merely such a battery as would justify the giving of nominal damages. That is the weakest kind of assault and battery.”

That is about all that the court says that is important here. What the court said respecting this, and the fact that all was excluded excepting the charge that was made against him and his plea, we think was perfectly competent under this issue; and, as restricted by the court, that the court went as far as he could without giving the other side a right to complain in reference to what was said about that admission which was then in evidence. We think it was perfectly proper, and that the court guarded it to the very limit in the charge; that is, pared away the effect of it.

I will not refer to all of these exceptions, because they are comprehended under the divisions that I have made here.

As to the evidence regarding the amount of property and wealth of the defendant as it bears upon his ability to respond in damages: In a case of this kind, there certainly can be no question about the right to introduce evidence of that character. Attorney fees are allowed even as a part of compensatory damages, without any reference to punitive damages, in a case of this kind. As a matter of course,it is proper to charge as to punitive damages in this kind of a case, being one of assault and battery; and we have the authority of the 37 Ohio St., 10; 27 Ohio St. 292,21 Ohio St. 545 and 10 Ohio.St. 278; the 27 Ohio St. respecting the very question as to the amount of property, or wealth, of the party, as it bears upon the question of his ability to respond in damages. 21 Ohio St. 545, is an action for slander. The question was somewhat mooted there as to whether or not it was a case in which punitive damages did figure, or simply compensatory damages,and whether or not the amount of defendant’s property could be gone into. But it is clearly settled in Ohio that in a case of this kind, it is a proper subject-matter of inquiry —'that is, of the ability of the party to respond in damages. 10 Ohio St. and 37 Ohio St. are authority for allowing attorney fees as part of compensatory damages.

Mr. Steward took the stand and testified as to certain conversations that he had had with the plaintiff Mary O. Fowler; and, in rebuttal, she was called and gave her version of those conversations. We can see no reason why any question ought to be made. It is what occurs every day in trials. It is perfectly proper.

I have referred to this portion of the charge here simply to show how the matter of the plea of guilty and the charge was presented to the jury; and we think, in that there was no error at all, but it was limited by the court so that the defendant could not certainly complain.

I will say in passing, that the verdict is not against the' weight of the evidence, as this court must regard it, in any sense,

There are numerous special exceptions to the charge. I read from the charge: “It is not necesary for me, Gentlemen of the jury, to give you a definition of assault and battery in this case.” This was a civil action, and we see no error in the court saying that it is not necessary for him to do so, because if, the law were properly charged in a case of this kind, it was not necessary to enter into a technical definition of assault and battery,

The further statement is made:

“Now, the burden of proof is upon the plaintiff to show you that Mr. Hendricks, the defendant, committed this act of assault and battery. The burden of proof is upon her to show that he did commit that act. The burden of proof requires her to produce a preponderance of the evidence that what she asserts is true. And the force of the burden of proof is this: If the evidence is so nearly equal upon each side that you cannot tell where the truth lies (and some cases happen that way) then the person who hears the burden of proof, and must show you a preponderance of the evidence, must lose the case; and your verdict goes upon the other side, because the person has not shown you by a preponderance of the evidence.”

The court here states in the plainest possible terms the rule that is objected to, unless it is the peculiar phraseology used(the court departs somewhat from the usual way of putting this), but the court puts the rule.

“But when you determine the truth, Gentlemen, that settles it. There is no weight of evidence about anything else than the truth; and where the witnesses testify in a contradictory manner, it is your business, as men and jurors, to find out where the truth is. Sometimes, I am free to say, it cannot be done; but when it cannot be done, the side that has to prove it must lose.”

It might be said that this is not stated in the most felicitous way, but the court is orally charging the jury, and the thing to be looked at after all is whether the jury could have been prejudiced by what the court said.

“There is no weight of evidence about anything else than the truth.” The court means to saj to the jury, and does say, that they will sift the evidence, and that they will determine the truth on either side of the case, and if the evidence simply on the one side, where the burden is cast, does not outweigh the other, that that party must fail. That is all the court says, and all the construction that could be put on that.

Counsel for defendant then and there excepted to the following:

“If you find that Mr, Hendricks did strike Mrs. Fowler in the face, causing what damage you may find was done to her, and injuring her face, whatever you may find then you will find a verdict in her favor, unless you would find that Mr. Hendricks did it in self-defense; and that he used in self-defense only that amount of force which was necessary, reasonably, to protect him from further blows, or in the anticipation of further blows, if Mrs, Fowler committed the assault,”

These isolated paragraphs drawn out of the charge do not do the charge justice; but this, read in connection with what the court said, and standing alone in this case, and under this record, the court does not see that there was any prejudicial error whatever; but, in connection with the whole charge as given to the jury, it was certainly proper, as will be seen from some portions that follow:

“He has no business to use any more force than is reasonably necessary to do that; but the law does not hold a man to a strict accountability just for the exact force which will do it.”

That we know is a recognized authority. If the situation is as is stated here, he has a right to use sufficient force to-repel an assault; he is riot held to an accountability, to a-just measure to a certain exactness of the degree of force; but, as the court said before, and follows it up by saying-that he cannot use a greater degree of force than is necessary to repel an assault or save his life or himself from-bodily harm.

‘ ‘Of course,when an assault of that kind is committed, he-could not make that a pretext for turning around and attempting to kill Mrs. Fowler, or anything of that kind, because that would not be contained in what is necessary to-defend himself at all.”

This is drawn out of its connection in the charge, and the court having said what I have read just preceding this, then simply says to the jury what would be going beyond', what would be justifiable in self-defense.

‘‘If you find, however, that he commenced the assault by striking that blow, or that, if she commenced the assault, the blow exceeded the force necessary for him to make use-of to defend himself from her attack under the circumstances, then you may go on and consider the matter of damages, and you will find a verdict for her, if you find those-things.”

The converse of that is charged:

‘‘In making up this compensatory damages, you may allow for her feelings, her pain, suffering, and for the humiliation, if you find that that is so — her being knocked-down in the road in the presence of other people; and if' her health was injured permanently (if you find that from the evidence),you may allow her such damages as you think she ought to have on account of impaired health.”

That is justified by the authorities in a case of this kind.

‘‘There is another kind of damages, which, if the circumstances are such, you may allow, and that is called punitive damages. They are damages in which the plaintiff has no-interest personally at all, but they are such damages as are allowed in cases of a malicious, wanton attack upon the person of another, and an attack accompanied by insult and ignominy. ”

J. B. Jones, for Plaintiff in Error.

J. A. Flory, for Defendant in Error.

And there are some two or three exceptions stated in his charge in respect to punitive damages. .

“Now, you understand that this must be an act of malice now; he must have struck this blow, if you find that he did strike it, with a purpose of injuring her; with mischief in his hatred, or ill-will, or under circumstances of insult,and things of that kind.”

If anybody could complain of that, it would be the other side.

“If this blow was struck in a sudden, quarrel, and under circumstances when he was angry, it might not be the kind of malice that would require you to put on an amount to punish him for doing it.”

Then we come to the portion of the charge as to the plea before the justice of the peace; and that I will not refer to again.

This covers nearly all of the exceptions. We have carefully examined all of them, and, under this record, we see no prejudicial error in this case.

The judgment is affirmed.