text:
    ATTACHMENT — PROCESS.
    [Hamilton (1st) Circuit Court,
    March 19, 1910.]
    Giffen, Smith and Swing, JJ.
    E. A. Rosenham Co. v. Cohen & Mack.
    1. Affidavit for Attachment against Corporation as Nonresident of County not Defective though a Foreign Corporation.
    An affidavit averring that defendant corporation is nonresident of the 'county, prescribed by Gen. Code 10253 as a ground for attachment, is not defective in omitting to aver defendant’s failure to comply with the reouirements of Gen. Code 183 as to the filing by foreign corporations of certain statements with the secretary of state.

      2. Separate Returns on Attachment and Summons Reading Together Constitute Lawfui. Service of Summons.
    Separate returns on an order of attachment and summons, issued together under Gen. Code 10262 and so returned by the constable, may be read and construed together as showing a lawful service of summons within the meaning of Gen. Code 10244.
    3. Service mat be Had on Secretary of Nonresident Corporation as “Managing Agent” if no Other Chief Officer be Pound in County.
    Service in attachment against a nonresident corporation, to whom debts are owing in the county as prescribed by Gen. Code 112-76, may be had on a secretary or agent thereof under Gen. Code 10238 if no other chief officer can be found in such county.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Burch & Johnson for plaintiff in error.

      Cohen & Mach, for defendants in error.
   GIFFEN, P. J.

The ground stated in the affidavit for attachment was the statutory ground, Gen. Code 10253 (R. S. 6489), that the defendant corporation was a nonresident of the county of Hamilton, Ohio, and not that it was a foreign corporation. A corporation may have a place of business in one county and thereby become a resident of such county but a nonresident of the other counties within the meaning of Gen. Code 10253 (R. S. 6489). The affidavit was not therefore defective because it contained no statement that the defendant corporation had not complied with Gen. Code 183 (R. S. 148c, 148d). Champion Mach. Co. v. Huston, 24 Ohio St. 503.

A careful reading of the affidavit shows but one statement made on belief, to wit, “that he believes said plaintiff ought to recover thereon the amount of three hundred dollars, ’ ’ which is substantially the language of the statute. The action of the justice in striking from the hies the motion to discharge the attachment was irregular, but equivalent to overruling the same. There was no error in directing the constable to-amend his return to summons and order of attachment to conform to the-facts, especially as the rights of no third party had intervened.

The alleged error chiefly relied upon consists in overruling the motion to quash and set aside the service of summons.

The amended return on summons is as follows:

“Received this writ June 8, 1908, and June 8, 1908, served the same on defendant by leaving a certified copy thereof, and of the endorsements thereon, with Morris L. Bettman, personally, as managing agent and secretary of E. A. Rosenham Company, á corporation under the laws of New York, defendant.”

The return on the order of attachment which was issued at the same time as the summons is as follows, and is endorsed on the same sheet of paper with the return of summons:

“Same day served Morris L. Bettman personally, as secretary and managing agent of E. A. Rosenham Company, no chief officer of defendant corporation being found in Hamilton county, Ohio.”

To make service of summons good under Gen. Code 10244 (R. S. 6480), it should affirmatively appear in the return that the managing agent is such agent in this state, and under Gen. Code 10238 (R. S. 6477), it should affirmatively appear that no chief officer could be found in the county before service could be had on a secretary or managing agent of the corporation.

There were debts owing to the defendant corporation in this county, hence the action was rightly brought under Gen. Code 11276 (R. S. 5027), and service could be had on the secretary and managing agent if no chief officer be found in the county. While the return on the order of attachment shows that no chief officer of the defendant corporation could be found, the return on the summons does not, but where the order of attachment is made to accompany the summons, we think the presumption is that the same reason which required the order of attachment to be served on the secretary and managing agent existed and operated in the service of summons.

Gen. Code 10262 (R. S. 6496)', provides as follows:

“If the order of attachment is made to accompany the summons, a copy of it and the summons shall be served upon the defendant in the manner for the service of a summons, if this can be done within the county.”

In pursuance of this provision the order of attachment and summons were issued together and returned in the same way by the constable, who evidently intended to make the same return on each; but failing to do so we think the two returns should be read and construed together as showing a lawful service of summons.

The judgment will be affirmed.

Smith and Swing, JJ., concur.


source: Caselaw Access Project

author: CRAINE, J.

license: Public Domain

text:
    APPEAL — ASSESSMENTS—DITCHES—INJUNCTION.
    [Fairfield (5th) Circuit Court,
    September 18, 1908.]
    Craine, Taggart and Donahue, JJ.
    Benoni Stemen v. Baker G. Hizey et al.
    1. Appeal Does not Lie to Correct Ditch Assessment'as Unjust and Unreasonable.
    Neither R. S. 4533, 4536, 4539 (Gen. Code 6625, 6628, 6631) nor any other statute 'makes provision for an appeal by a property owner, complaining that, an assessment levied on his land for the improvement of a township ditch is unjust and unreasonable in that it is grossly in excess of the benefits which he will receive from the improvement.
    2. Absence oe Provision for Bill of Exceptions Prevents Error Proceedings to Review Ditch Assessment.
    Nor will error lie in such a case under R. S. 4491, 4560, 6708 (Gen. Code 6500, 6646, 12241) inasmuch as there is no provision for a bill of exceptions, and even if the transcript of the record of the township trustees were brought up, it would be of no assistance in determining the question whether the assessment exceeds the benefits.
    3. Injunction Lies to Correct Ditch Assessments Exceeding Benefits.
    Injunction will lie where the complaining owner alleges that the assessment laid upon his land is grossly in excess of the benefits conferred, notwithstanding it is directed against the action of a judicial board, and in such a case a court of equity may do justice even though no error is found in the proceedings.
    Appeal from common pleas court.

      W. H. Lane and G. O. Beals, for plaintiff.

      C. W. McGleery, for defendants.
   CRAINE, J.

The questions presented to this court are raised by a motion to strike out certain matters from the petition; and also a demurrer is filed, and we think the demurrer reaches the questions in this ease. The demurrer reads as follows:

“Now come the defendants, trustees, and demur to the petition for the following reasons:
“1st. That the court has no jurisdiction of the subject of the action.
“2nd. That the petition does not state facts sufficient to constitute a cause of action.
“3rd. It appears from the petition that the plaintiff has an adequate remedy at law.”

Briefly stated the history of this case is as follows:

The trustees of Violet township, Fairfield county, Ohio, on petition of certain property owners, passed a resolution for the construction of a township tile ditch. In the construction of that ditch they assessed a portioh of the expense upon this plaintiff. The plaintiff claims that this amount so assessed upon him was unreasonable and unjust and that he should not be compelled to pay any part of it, for the reason that he received no benefit from the tiling of the ditch; and he brought an action in the court of common pleas to enjoin the collection of that assessment upon him so made by the trustees. The defendant filed a motion asking to have certain matters in the petition stricken out, and while that motion was pending the plaintiff filed á motion to strike off that motion, which the court sustained. Thereupon a demurrer was filed to the petition, which was overruled by the court of common pleas and a judgment was taken on the petition and evidence of the plaintiff below, without any controversy on the part of the defendant, and the ease was brought into this court, and the demurrer is up for hearing here.

The contention of the defendant is this: that a court of equity can not attack by injunction the judgment of a judicial board; that if the plaintiff has any remedy at all, it is by appeal or error. With that contention of the defendant, we are in accord, if there is a provision for error or appeal.

The question presented then is this: Could this plaintiff appeal or could he prosecute error from the judgment of the trustees of Violet township in assessing him for the construction of this ditch, when he received no benefit from it? We are cited to certain sections of the statutes.

R. S. 4533 (Gen. Code 6625):

“Any person interested in the location of such ditch, or in the amount of compensation and damages determined upon by the trustees, may take an appeal from the proceedings of the trustees to the probate court of the county.”

Then when the appeal has been taken, the probate court under R. S. 4536 (Gen. Code 6628), shall examine the same and determine whether the preliminary steps for the appeal have been taken properly. If it finds that the steps have been taken properly the matter is submitted to a jury and R. S. 4539 (Gen. Code 6631) provides what the jury may find.

The jury shall render a verdict in writing, and shall find therein: first, whether it will be conducive to the public health, convenience, or welfare, to cause the proposed ditch to be established or located; second, the amount of compensation due each person claiming compensation in case of the location of the same which shall be computed without deduction for benefits to any property of such person; third, the amount of damages resulting to all parties claiming the same; and the judge is authorized to adjourn the proceedings in the premises from time to time, as circumstances may require.

It will be noticed from the section just read, an appeal may be taken from three questions enumerated in the section; but whether or not this plaintiff has been ássessed an amount exceeding the benefits derived from it, is not of the questions that may be appealed from. So that no appeal lies from the question in this lawsuit.

The next question is: Does error lie ? Appeal does not lie, but counsel for defendant claims that error lies thereto. R. S. 6708 (Gen. Code 12241).

An order made by a probate court removing or refusing to remove an executor, administrator, guardian, assignee, trustee or other officer appointed by a probate court, and a judgment rendered or final order made by a probate court, justice of the peace, or any other tribunal, board or officer, exercising judicial functions, and inferior to the court of common pleas, may be reversed, vacated, or modified by the court of eomm'on pleas.

Here was a board of township trustees that was exercising judicial functions, and under the section of the statutes their proceedings may be reversed, vacated or modified by the court of common pleas. We think that is where the error appears upon the record of that board. If an error appears upon the records of the board, that would be upon the minutes of the township clerk. We suppose that a transcript of that record might be brought up, and the court might review it, but the question whether or not the amount assessed against the plaintiff was just or unjust, or- whether he received full value, is a matter that we insist can not appear upon that record. There is no provision for a bill of exceptions, and how could that question be raised in the court of common pleas on error under this particular statute?

We are also cited to another section of the statute, E. S. 4560 (Gen. Code 6646). This is under the head of township ditches.

The court, in which any proceeding is brought to recover any tax or assessment, or to reverse or declare void the proceedings to locate or establish any ditch, or to construct the same, or to enjoin the tax levied or assessed, or ordered to be levied or assessed to pay for the location or construction of a ditch, shall proceed in the same manner, and exercise the same authority over said ditch proceedings or any part thereof, as is prescribed and granted to such court in E. .S. 4491, and all acts amendatory thereof supplementary thereto.

In other words, this section of the statute provides that when an action is brought to enjoin an assessment the same proceedings shall be had as provided in the case of county ditches. That is found under E. S. 4491 (Gen. Code 6500), which is as follows:

"The court in which any proceeding is brought to recover any tax or assessment paid (that is not the case here), or to declare void the proceedings to locate or establish any ditch (that is not the case here) or to enjoin any tax or assessment levied or ordered to be levied to pay for the labor and expense aforesaid (that is the case here),” shall, if there is manifest error in the proceedings, allow the plaintiff in the action to show that he has been injured thereby, and may, on application of either party, appoint such person or persons to examine the premises, or to survey the same, or both, as may be deemed necessary; the court in which any such proceedings are begun shall allow parol proof that said improvement is necessary and will be conducive to the public health, convenience, or welfare, and that any steps required by law for any improvement have been substantially complied with notwithstanding the record required to be kept by any board or officer; and without finding error, the court may correct any gross injustice in the apportionment, made by the commissioners; the court shall, on final hearing, make such order, in the premises, as shall be just and equitable, and may order that such tax or assessment remain on the duplicate for collection, or order the same to be levied, or may perpetually enjoin the same, or any part thereof, or, if the same has been paid under protest, may order the whole or such part thereof, as is just and equitable, and the cost of such proceeding shall be apportioned among the parties, or paid out of the county treasury, as justice requires.

All these, things may be done. It seems that the eourr may go into all these incidents, as to whether it is conducive to the public health; whether the assessment is unjust or unfair, when an action is brought to enjoin the assessment. But here is a man that under the allegations of his petition claims the assessment is unjust. I will read that portion of the .petition :

"Plaintiff further sayá that said apportionments and costs as assessed against him by the defendants, the said trustees of Yiolet township, are grossly unjust and unfair, and that had the same-been made according to benefits, no part of the cost and expenses of said Bowen ditch improvement would have been apportioned or assessed against him, for any part of said tile ditch, and that said apportionment to this plaintiff is grossly in excess of benefits conferred upon him by said ditch improvement.”

Does not that constitute ground for injunction? It is pretty fundamental and needs no discussion that you can not take private property for public use, unless the person owning it gets full value received. It is the principle of assessment that you must give the owner value for it. He must derive some benefit from that improvement equal to the amount he may have to pay. He says it is unjust; there is no provision for appeal; there is no provision for error. He comes into a court of equity and ásks that the trustees be enjoined. When he makes a prima facie ease in his petition, the court may hear it and do all things found under that section 'of the statute. Even if the court find no error, it may go ahead and give him complete justice.

We think this action is properly brought and that the demurrer in this case should be overruled, because the petition does state a cause of action. As to the motion, it will be overruled too because it simply performs the office of a demurrer. We think this action is properly brought, as this section provides for injunction and it recognizes the fact that injunction may be brought under some circumstances.

Judgment will be rendered for the plaintiff with costs.

Taggart and Donahue, JJ., concur.


author: SMITH, J.

text:
    ERROR — INNKEEPERS—TRIAL.
    [Hamilton (1st) Circuit Court,
    May, 1908, and
    July, 1909.]
    Giffen, Smith and Swing, JJ.
    Sherman R. Miller, Jr., v. Auburn Private Hotel Co.
    1. Negligence not Presumed from Damage to Apparel of Guest of Innkeeper Resulting from Water Plowing from Tank.
    Negligence by an innkeeper cannot be presumed or inferred from the mere fact that water flowed from a tank or pipe upon, the apparel of a guest and damaged it.

      2. Controversial Remarks by Counsel Regarding Offer to Compromise Withdrawn, not Prejudicial.
    Controversial remarks between counsel within hearing of the jury, in regard to an alleged offer by the defendant to compromise the claim sued on, do not constitute such misconduct as would warrant a reversal of the judgment which followed in favor of the plaintiff, where it appears that the statement regarding an offer to compromise was withdrawn and no ruling of the court or admonition of the jury by the court was asked then or thereafter by counsel for the defendant.
    Error to common pleas court.
    The plaintiff filed a petition in the common pleas court, alleging that the defendant is an Ohio corporation, organized for the purpose of conducting the business of an innkeeper, and was on March 12, 1905, and still is operating, the Auburn Private Hotel, in Cincinnati, for the entertainment and accommodation -of the general traveling public; that on said date the plaintiff was a guest at the defendant’s hotel, and placed his wearing apparel in the care and custody of the said defendant, and that a part of said wearing apparel consisted of a broadcloth overcoat lined throughout with seal fur lining and having a Persian lamb fur collar and cuffs, the said coat being of the value of $1,000; that in the closet of the room to which plaintiff was assigned, and which he occupied on the day in question, there was placed by the defendant a hot water tank connected with the heating apparatus of said building, and that by reason of the defective and improper construction of said heating apparatus and tank, the said tank became out of repair, and leaked and discharged hot water upon plaintiff’s coat, spoiling and destroying the fur thereof, to plaintiff’s damage in the sum of $400; that the said defective and improper construction was due to the negligence of the defendant company, and was unknown to the plaintiff, and the damage aforesaid was entirely without fault on his part, but due to the negligence of the defendant. Wherefore he prayed judgment in the sum of $400 with interest and costs.
    At the trial the court refused to give the following special charges:
    “1. I charge you that if you find from the evidence that the plaintiff before the accident had seen the tank in his closet in his room, and knew that the tank was connected with the' heating apparatus or system, and with that knowledge of the use of the tank put his valuable overcoat in that closet in preference to the other closet, there being another closet in the room, then the plaintiff was guilty of contributory negligence and can not recover in this action, and your verdict should be for the defendant.”
    ”9. I charge you that the mere fact that the hot water flowed from this tank, or from a pip,e connected with it, upon plaintiff’s coat and damaged -it, is not any presumption of negligence by the defendant, nor can negligence be inferred from that fact.”
    The jury returned a verdict for the plaintiff for $206.91, upon which judgment was rendered and the present error proceedings prosecuted thereto.

      Boettinger & Kinney and Dempsey & Nieberding, for plaintiff in error.

      Charles B. Wilby, for defendant in error.
   SMITH, J.

We are of the opinion that special charge No. 1 was properly refused by the trial court.

Special charge No. 9 ought to have been given and being refused the court should have covered it in the general charge. This upon examination we find the court failed to do.

In regard to that portion of the general charge relating to an explosion of the tank and the want of repair of the heating apparatus, we can not say that the same were prejudicial, as the evidence is not before us. These matters are not set up in the pleadings, the ground of negligence complained of being a defective and improper construction of the , apparatus in question.

Judgment reversed and 'new trial granted.

After a second trial, resulting in a verdict against the hotel company, the case was again taken to the circuit court, where the following opinion was rendered:

SMITH, J.

The only error complained of is that, in the course of the closing argument of attorney for defendant in error, he referred to an offer of compromise having been made by the defendant to the plaintiff before suit was brought, and in that connection the sum of $50 was mentioned by him as the amount which had been offered. Whereupon the attorney for plaintiff in error objected and before the court could make any ruling, some controversial remarks passed between the attorneys in the hearing of the jury, whereupon counsel for plaintiff said that he would withdraw what he had said as to compromise. No ruling of the court or admonition of the court to the jury was. asked then or thereafter by either of the attorneys.

It is urged that this was such misconduct on the part of counsel for plaintiff as of itself would necessitate a new trial of the cause.

We have examined the evidence in the record, and are of opinion that the judgment is fully sustained thereby, and the jury in answer to special interrogatory submitted, found that the plaintiff in error “was negligent, inasmuch as it allowed a faultily constructed and badly connected old tank to be placed in the building.” This being so, is misconduct of counsel as claimed and disclosed by the record such as would justify the setting aside of the judgment?

We are of the opinion that it is not. We do not think the case comes within the ruling of Cincinnati Gas & Elec. Co. v. Coffelder, 31 O. C. C. 26 (11 N. S. 289), or Dayton Folding Box Co. v. Ruehlman, 31 O. O. C. 292 (11 N. S. 493).

Under the general and special verdicts we may assume that when counsel withdrew his remarks and did not further persist in making similar statements, that no prejudice resulted to plaintiff in error, and particularly so when as the record shows such withdrawal was made before the court could make any ruling upon the matter, and no. exception was taken and no ruling or admonition of the court to the jury was asked by either of the attorneys, from which it would appear from the record that neither the court nor counsel regarded the remark as in any way serious or prejudicial to the right of plaintiff in error.

This is the second trial of the ease, both trials resulting in a verdict for defendant in error, and as it appears from the record that the jury was not influenced in arriving' at its verdict by mis-statements of counsel made in its presence, we think the judgment of the court below should be affirmed.

Giffen and Swing, JJ., concur.


text:
    CHATTEL MORTGAGES — SALES.
    [Hamilton (1st) Circuit Court,
    December 7, 1908.]
    Giffen, Smith and Swing, JJ.
    National Cash Register Co. v. Fred Closs, Assignee.
    Filing Vendor’s Statement on Separate Sheet Attached to Copy op Conditional Sale Contract is Insuffioient.
    The provision of R. S. 4152-2 (Gen. Code 8568), .requiring tbe deposit of a conditional sale contract or true copy thereof with the vendor’s statement “thereon” under oath, etc., must be strictly complied with; hence, filing with the county recorder, a copy of a contract of conditional sale with the statement of the vendor as to the amount due and unpaid in an affidavit on a separate sheet attached to the contract, is insufficient.
    Error to common pleas court.

      Charles Phares, for plaintiff in error.

      Fred Closs, for defendant in error.
   SMITH, J.

Upon the fact's found by the trial court we are of the opinion that the judgment of 'the court below should be affirmed. While a copy of the contract of conditional sale was deposited with the recorder of Hamilton county with an affidavit of the agent of the National Cash Register Co. that it was a copy, setting forth the amount due and unpaid on the same, yet the affidavit was upon a separate paper and attached to the copy of the contract.

We do not think this is in compliance with R. S. 4155-2 (Glen. Code 8568), which provides for the deposit of the contract, with a statement “thereon,” under oath made by the person so selling, his agent, or attorney, of the amount of the claim; or the deposit of a true copy thereof, evidently meaning a true copy of the contract, with an original affidavit “thereon,” the affidavit being no part of the contract.

This, therefore, would seem to require the affidavit to be upon the instrument or contract itself or a true copy thereof and not attached separately to it.

Statutes which prescribe the manner in which mortgages or contracts of conditional sale shall be executed, filed or recorded should, in general, be strictly complied with, and unless .so complied with they impart no notice; thus the courts have held parties to a very strict compliance with the statute where the rights of third parties intervene. Cross v. Carstens, 49 Ohio St. 548 [31 N. E. Rep. 506]; Jones, Chat. Mort. Sec. 248.

The judgment of the trial court is affirmed.


text:
    ERROR.
    [Hamilton (1st) Circuit Court,
    December 19, 1908.]
    Giffen, Smith and Swing, JJ.
    Kauther v. Vigransky et al.
    Judgment not Reversed for Error in Law if "Verdict Sustained by Evidence. ’
    Errors of law, if any occurred during the trial of the case, are not prejudicial, where the verdict is fully sustained by the evidence.
    Error to common pleas court.
    The plaintiff was the owner of property on Martin street, Cincinnati, and alleged that the defendants represented to him that they had a purchaser for $1,000, and the property was sold at that figure. Plaintiff alleged that he subsequently learned that the real price paid to defendants for the property was $1,200, and he sued for the $200 difference.

      Walter Schmitt, for plaintiff in error.

      Prescott Smith, for defendant in error.
   SMITH, J.

Upon examination of the record in above ease the court is of the opinion that the verdict is fully sustained by the evidence. The evidence does not substantiate the claim of plaintiff in error as set up in the petition, that defendants were his agents and that fraud was practiced upon him. On the contrary, he emphatically denies such relationship and practically admits the claim of defendants in error.

Any errors of law that may exist, if in fact any such do exist, are therefore not prejudicial to plaintiff in error and the judgment of the trial court is affirmed.

Giffen and Swing, JJ., concur.


author: GIFFEN, P. J.

text:
    PAYMENT — STATUTE OF FRAUDS.
    [Hamilton (1st) Circuit Court,
    March, 1910.]
    Giffen, Smith and Swing, JJ.
    Collier Bridge Co. v. Charles Lippert.
    1. Payment of Laborer’s Time Checks, Pursuant to Promise of Principal Contractor, m Made from Funds Due Sub-contractor.
    A promise by a principal contractor to pay the time checks issued to the laborers employed by a sub-contractor must be interpreted only as a promise to pay such checks in the event there is something due the sub-contractor.
    2. Promise to Pay Sub-contractor’s Time Checks not Within Statute of Frauds.
    Where there is enough money due sub-contractor to meet the laborer’s time checks presented, the promise of principal contractor to take them up is not a promise to answer for the debt of another, but to pay to a third party a debt due from him to the sub-contractor, and is therefore not within the statute of frauds.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Stephens, Lincoln d) Stephens, for plaintiff in error.

      Benner & Benner and Eugene Heim, for defendant in error.
   GIFFEN, P. J.

There is nothing on the face of the certificates signed “W. S. Hood, Supt.” to indicate that Hood represented the bridge company as superintendent or manager, and the course of dealing between the plaintiff, Lippert, and the defendant bridge company indicates merely that the defendant would continue to pay the time cheeks issued to the laborers only so long as there was money due to Hood as sub-contractor.

This course of dealing is also corroborative of the testimony of the president of the company that he told the plaintiff when the time checks were presented, “If we owed Mr. Hood on the final estimate we would be glad to pay it; we would not assume them. ’ ’

Even if, as the plaintiff testifies, Collier told him that “Those will be paid when they are due, the 25th of September,” it was necessarily implied, in the absence of other statements or circumstances, that they would be paid only in the event the amount was due to Hood as sub-contractor. Unless, upon final estimate it was found that the money was due to Hood there could be no benefit to the company nor detriment to the plaintiff as a result of the promise to pay. The plaintiff, at the time the promise was made, said nothing and did nothing of benefit to the company or detrimental to himself. The final estimate showed that Hood’s account was overdrawn about $1,400, and the company was therefore justified in refusing payment.

The charge of the court on the statute of frauds, quoted in the brief of counsel for plaintiff in error, is qualified by the next clause as follows, “If you find therefore the leading object of the Collier Bridge Co. was to avoid a liability on its own part, then the promise to pay need not have been in writing,” which fairly states the rule announced in the case of Crawford v. Edison, 45 Ohio St. 239 [13 N. E. Rep. 80], If the Collier Bridge Co. at the time was indebted to Hood, the sub-contractor, in an amount sufficient to pay the time checks presented by the plaintiff the promise was not to answer for the debt of another, but to pay the debt of the company, upon the order of the creditor to a third party, and therefore not within the statute of frauds.

The judgment must be reversed for error in overruling the motion for a new trial upon the ground that the verdict is not sustained by sufficient evidence, and the cause is remanded for a new trial.

Smith and Swing, JJ., concur.


text:
    EVIDENCE — INSURANCE.
    [Hamilton (1st) Circuit Court,
    January 22, 1910.]
    Giffen, Smith and Swing, JJ.

      Ohio Mutual Life Insurance Company v. Maria Hoffman.
    Discrepancies between Application for Insurance and Copy with Policy Preclude Admission as Evidence of Defense.
    Discrepancies in matters of substance between the original application for life insurance and the copy of the application returned with the policy appearing, they are properly excluded as evidence of defense under Gen. Code 9389 (R. S. 3623).
    Error to common pleas court.

      Peck, Shaffer & Peck, for plaintiff in error.

      Joseph B. Kelley, for defendant in error.

      Affirmed, no op., Ohio Mut. L. Ins. Co. v. Hoffman, 55 Bull. 423; 83 O. S. 000.

   GIFFEN, P. J.

The only question here involved is whether the copies of the application or other documents held by the insurer which are intended in any manner to affect the force or validity of the policies, are full and complete within the meaning of Gen. Gode 9389 (R. S. 3623).

In the original “report of the examining physician” for policy No. 3856, under the heading “Family History”: Father died at age of “47”; specific cause of death, “Bright’s disease”; duration and character of fatal illness, “2 months”; previous health, “good.”

In the copy attached to the policy the words “2 months,” and “good” do not appear.

Under the heading “Father’s father”: Age 39 — died of •cardiac paralysis; duration and character of fatal illness, “sudden,” which latter word does not appear in the copy.

The original report is dated November 14, 1907; the copy November 15, 1907.

The original report contains the question to and answers made by the medical examiner, while the copy does not.

In the “report of the examining physician” for policy No. 3858, are questions addressed to 'and answered by the physician which do not appear in the copy. In the copy are found the following questions: “Has your weight recently increased?”

“How much?” Answer, “Neither” — none of which appears in the original..

In the' copy the father’s previous health is stated as “good.” No answer in original.

In the copy the age of living sister is given “57”; in tbe original “37.”

These are all matters of substance, not only because the company has made them so by propounding the questions to the applicant and to the examining physician, but because the-family- history, the physical condition of the insured and examination by the physician are generally regarded as important by insurance companies. They do not directly affect the particular defense set forth in this case, but they might easily be the occasion of a controversy, to avoid which the statute was evidently passed. "Wq deem it unnecessary to find that the discrepancies are material and would be a good defense to an action upon the policies, but only that they are of such a nature as would afford reasonable ground for such defense. There-was therefore no error in excluding the documents in question as evidence and in directing a verdict for the plaintiff.

Judgment affirmed.

Smith and Swing, JJ., concur.


text:
    DEATH — RAILWAYS—VERDICT.
    [Hamilton (1st) Circuit Court,
    July 23, 1910.]
    Giffen, Smith and Swing, JJ.
    Pittsburgh, C. C. & St. L. Ry. v. Hannah H. Dooley, Admrx.
    1. Failure to Lower Gates Being Established as the Proximate Cause of Accident at Railway Crossing, Acts of Deceased after Observing Peril do not Warrant Reversal.
    Negligence of a watchman, upon the approach of a train, in failing to lower gates at a railway crossing, being established as the proximate cause of a collision between the train and wagon in which deceased was driving, although' condition of the track and haste of the driver to get over after being warned of the danger contributed to the result, minor errors of judgment committed by deceased during the moment of great peril and excitement, after he had gone upon the track and before being struck, do not warrant reversal of a verdict against the railway company.
    2. Bad Condition of Crossing, to Prove Knowledge of Fact by Company, Properly Brought out on Cross-examination of Company’s Witnesses.
    That other vehicles had broken down on a railway crossing, as did the one in the case in controversy, being established on cross-examination of the railway company’s witnesses, is competent as tending to prove knowledge on the company’s part of the defective condition of the crossing and also to test credibility of other witnesses testifying that the crossing was in fair condition.
    3. Assuming Undisputed Fact as to Which Jury Could Reach but One Conclusion, not Prejudicial Error.
    A trial judge’s assuming, in a special charge, as a fact, a matter determinable by the jury, is not prejudicial error, if the matter constituted an undisputed fact as to which but one conclusion could be reached.
    4. Verdict for $10,000 not Excessive in Case of Death of Man Forty-five Years Old Earning $700 per Year, Leaving Large Family.
    A verdict, in an action for damages or death by wrongful act of a man forty-five years of age, of good health, earning $700 a year and leaving his widow and seven children surviving him, awarding the full amount allowed by statute (Gen. Code 10772), is not excessive.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Maxwell & Ramsey, for plaintiff in error.

      Littleford, Frost & Foster, and H. B. McClure, for defendant in error.
   GIFFEN, P. J.

The decedent was driving a horse and wagon over defendant’s railroad at a point in Eastern avenue; known as Rook-wood crossing, and the negligence averred as a first cause of action is as follows:

“Said gateman conducted himself so negligently and carelessly that he failed to lower said gates in time to warn the said decedent of a rapidly approaching passenger train of said defendant. ’ ’

And as a second cause of action as follows:

“That the defendant corporation carelessly and negligently failed to maintain said crossing as a safe and sufficient crossing and to keep the same in a safe and proper condition; that by reason of this carelessness and negligence o’f the_ defendant, the wagon which the said decedent was driving on or about July 10, 1907, was broken down, and the decedent without any fault or negligence on his part was thrown upon the ground, where he was struck and killed by the aforesaid train of the defendant. ’ ’

The defendant denied the negligence charged and averred that “if the decedent met with the accident alleged, the cause of the same was his own negligence, first, in failing to discover the train which struck hup, and secondly, in failing to stop after he was warned of the approach of the train.’’

As we understand the evidence, the gateman failed to lower the gates when it was his duty to do so, and that such failure was the proximate cause of the accident, although the condition of the track and the haste of the driver to get over after being warned of the danger, contributed to the result. It is no doubt true that the accident would not have happened had he heard the warning and heeded it; but he did not hear or see it until he was in a position of extreme peril, when in the excitement of the moment he did what he deemed best and what an ordinarily prudent person would likely do to save himself.

The defendant had the benefit of a charge on contributory negligence, which was presented by the evidence, rather than the answer, and the jury found against the defendant on that issue, and we think rightly.

The testimony of witnesses called by the plaintiff that the gateman. waved frantically to the driver “to hurry and come across the track” and like statements when considered in connection with their description of the manner and direction in which he motioned to him, was competent under rule No. 4 in the case of Balt. & O. Ry. v. Schultz, 43 Ohio St. 270, 282 [1 N. E. Rep. 324; 54 Am. Rep. 805].

The testimony on cross-examination of the defendant’s witnesses that other wagons had broken down at the same place on former occasions was competent as tending to prove knowledge on the part of the defendant of the defective condition of the crossing, and to test the credibility of the witnesses who testified in chief that the crossing was in fair condition.

The following special instruction was requested by the defendant before argument, but refused:

“The mere fact that a railroad company maintains gates at a crossing where there are but two tracks and that a traveler upon approaching such crossing sees that the gates are open, will not of itself absolve the party so approaching from looking to see where a train is approaching.”

The use of the phrase “where a train is approaching” is rather indefinite and might mislead the jury to assume that he heard the train or by some means other than that of sight knew of its approach and was therefore not excused from looking to reassure himself that it was approaching. If, however, the meaning is that the traveler cannot rely upon the fact that the gates are open, but must under all circumstances look to see whether a train is approaching, then it is opposed to the rule stated in the case of Cleveland, C. C. & I. Ry. v.Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321].

It is claimed the court erred in giving, the following special instruction at the request of the plaintiff:

“In determining whether the decedent acted with reasonable care and prudence in driving forward as he did after he became aware of his danger, you should take into consideration the situation in which the decedent was placed at the time, where his position was one of great danger, what time he had for deliberation and all the other conditions and circumstances immediately attending the accident.”

The objection urged is that the clause “where his position was one of great danger” assumes a fact which should have been determined by the jury; but it was an undisputed fact, and there could be no error in so treating it.

The definition of the preponderance of the evidence is erroneous ; but what is said in the next sentence concerning the weight of evidence relieves it of any prejudice.

The relative rights of the railroad company and the public-at the crossing are stated substantially as they are in the case of Pittsburgh, Ft. W. & O. Ry. v. Maurer, 21 Ohio St. 421. The definition of negligence is faulty in the use of the word “ought” for would; but taken in connection with the definition of ‘ ‘ ordinary care” is not misleading. Many of the errors relied upon relate to the defective condition of the track and the conduct of the watchman after the decedent had passed the gates onto the track, and were not prejudicial unless the decedent himself was negligent in driving forward after seeing the train. We are of the opinion that if all such errors were eliminated, the jury must have found that under the circumstances of great peril and excitement he was not chargeable with negligence.

It is admitted that the watchman failed to lower the gates, and the jury must have found that such failure was negligence and the proximate cause of the accident. It was the efficient cause that set all others in motion. While there are two grounds of negligence stated in the petition they constitute but one cause of action.

The damages' awarded being the full amount allowed by statute are claimed to be excessive. The decedent was forty-five years of age and left surviving him seven children. His health was good, and his income about $700 per annum. Besides, his care in their training and education has a pecuniary as- well as a moral value.

Upon the whole record we think that no substantial error has been shown and the judgment ought to be affirmed.

Smith and Swing, JJ., concur.


text:
    CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    July 16, 1910.]
    Gíffen, Smith and Swing, JJ
    Provident Sav. Bank & Tr. Co. v. W. L. Voight.
    Reissue of Lost Certificate of Stock Refused Since Equitable Title is in Another Than Claimant of Naked Legal Title.
    While the fact that a lost certificate of stock, standing in the name of the plaintiff ■ seeking a reissue thereof, would in the absence of other evidence be conclusive as to his title, an order of court for such a reissue will be reversed as against the weight of the evidence, where it appears that the evidence upon which the order was based showed that while the naked legal title was in the plaintiff the equitable title was in a corporation, of which he was a member.
    Error to common pleas court.

      Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.

      Scott Bonham, for defendant in error.
   GIFFEN, P. J.

The original action was brought by W. L. Voight under-favor of B. S. 3254-1 (Gen. Code 8677), et seq., to compel the Provident Savings Bank & Trust Company to reissue to the plaintiff a certificate for 350 shares of the stock of that company, the original having been lost.

The only evidence that plaintiff was the owner of the certificate was that it was originally issued in his name, which in. the absence of other evidence would be conclusive of his title r, but it was also shown that the stock was paid for out of the funds of the Lewis Voight & Sons Company, a corporation; that the transaction was, under the direction of the plaintiff, entered in the books of the company as a purchase of stock by the company; that at a stockholders’ meeting, as síiown by the minutes, the stock was treated as that of the company; and by admissions: of the plaintiff made to counsel for the receivers of the company, the title of the company is reaffirmed. It follows therefore that.. while he had the naked legal title to the certificate and the stock of which it was evidence, the real ownership was in the company.

The judgment is not sustained by the evidence and will be reversed, the cause being remanded for a new trial.

Smith and Swing, JJ., concur.


text:
    CARRIERS — RAILWAYS.
    [Hamilton (1st) Circuit Court,
    April, 1910.]
    Giffen, Smith and Swing, JJ.
    John Knepfle v. Cleveland, C. C. & St. L. Ry.
    Railway Company not Liable foe Failing to Aid Passenger Injured by Falling from Train not Far from Passenger’s Home Station.
    A railway company is not guilty of negligence in failing to back up a passenger train and render aid to a passenger who had, a short distance from the station to which he had taken passage, fallen off from the train and had both legs cut off. Since the brother and friends living in the same town not only knew of the accident before the trainmen, but were taking active measures for the relief of the passenger, railway employes were not required to anticipate that the brother and friends would be less able than the company to procure timely aid and surgical assistance.
    Error to superior court.

      C. B. Matthews and G. B. Goodhart, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, A. W. Goldsmith, Jr., for defendant in error:
    Cited and commented upon the following authorities: Cincinnati, H. & D. By. v. Kassen, 49 Ohio St. 230 [31 N. E. Rep. 282; 16 L. R. A. 674] ; Lake Shone & M. S. By. v. Liidtke, 69 Ohio St. 384 [69 N. E. Rep. 653], reversing, Ludtke v. Bailway, 24 O. C. C. 120; Minnear v. Holloway, 56 Ohio St. 148 [46 N. E. Rep. 636]; Pennsylvania Co. v. Bathgeb, 32 Ohio St. 66; Cleveland, Term. & V. By. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142] ; Northern Central By. v.' State, 29 Md. 420 [96 Am. Dec. 545] ; Union Pacific By. Co. v. Cap-

      pier, 69 Kan. 649 [72 Pac. Eep. 281] ; Griswold v. Bailway, 183 Mass. 434 [67 N. E. Eep. 354]; Pollock, Torts (6 ed.) p. 417; Winterbottom v. Wright, 10 M. & W. 109; Weitzman v. Electric Co. 33 App. Div. 585 [53 N. Y. Snpp. 905]; Baltimore & Ohio By. v. State, 36 Md. 366; Dyche v. Bailway, 79. Miss. 361 [30 So. Eep. 711]; Whitesides v. Baikvay, 128 N. C. 229 [38 S. E. Eep. 878]; Pannell v. Bailway, 97 Ala. 298 [12 So. Eep. 236] ; St. Louis, I. M. & S. By. v. Hill, 74 Ark. 478 [86 S. W. Eep. 303] ; Weymire v. Wolfe, 52 Iowa 533 [3 N. W. Eep. 541]; Atchison, T. & S. F. By. v. Weber, 33 Kan. 543 [6 Pac. Eep. 543; 52 Am. Eep. 543]; Kendall v. Bailway, 25 Ky. L. Eep. 793 [76 S. W. Eep. 376] ; 3 Thompson, Negligence, Sec. 2832; Isbell v. Bailway, 27 Conn. 393 [71 Am. Dec. 78]; Brotherton v. Improvement Co. 48 Neb. 563 [67 N. W. Eep. 479; 33 L. E. A. 598; 58 Am. St. Eep. 709]; Yazoo & M. V. By. v. Byrd, 89 Miss. 308 [42 So. Eep. 286]; Beed v. Bailway, 104 Ky. 603 [47 S. W. Eep. 591; 48 S. W. Eep. 416; 44 L. E. A. 823]; Cincinnati, I., St. L. d C. By. v. Cooper, 120 Ind. 469 [22 N. W. Eep. 340; 6 L. E. A. 241; 16 Am. St. Eep. 334]; Southern By. v. Webb, 116 Ga. 152 [42 S. E. Eep. 395; 59 L. E. A. 109] ; Terre Haute & Ind. By. v. McMurray, 98 Ind. 358 [49 Am. Eep. 752] ; Marquette & O. By. v. Taft, 28 Mich. 289; Depue v. Flatau, 100 Minn. 299 [111 N. W. Eep. 1; 8 L. E. A. (N. S.) 485]; Ploof v. Putnam, 81 Yt. 471 [71 Atl. Eep. 188; 20 L. E. A. (N. S.) 152; 130 Am. St. Eep. 1072; 15 Am. Cas. 1151]; Beach, Contr. Neg. (2 ed.) See. 215; 2 Hntchinson, Carriers (3 ed.) See. 996; 2 Thompson, Negligence Sec. 1744; Drown v. Traction Co. 76 Ohio St. 234; 81 N. E. Eep. 326; 10 L. E. A. (N. S.) 421; 118 Am. St. Eep. 844]; Erie By. v. McCormick, 69 Ohio St. 45 [68 N. E. Eep. 571]; Young v. Bailway, 45 App. Div. 296 [61 N. Y. Snpp. 202]; Harrison v. Electric Light Co. 195 Mo. 606 [93 S. W. Eep. 951; 7 L. E. A. (N. S.) 293] ; Travelers’ Ins. Co. v. Melick, 65 Fed. Eep. 180 [12 C. C. A. 544]; 1 Sherman & Eedfield, Negligence (5 ed.) Sec. 39; Safford v. Green Island, 26 N. Y. Snpp. 669; Cincinnati St. By. v. Murray, 53 Ohio S.t. 570 [42 N. E. Eep. 596; 30' L. E. A. 508] ; Cole v. Savings & Loan Co. 124 Fed. Eep. 113 [59 C. C. A. 593] ; Linerode v. Basmussen, 63 Ohio St. 545 [59 N. E. Eep. 220]; Williams v.
      Brown, 28 Ohio St. 547; Fulton Co. (Comrs.) v. Lucas Co. (Comrs.) 5 Circ. Dec. 500 (12 R. 563), affirmed, Wood Co. (Comrs.) v. Ottawa Co. (Comrs.) 58 Ohio St. 690; Baffin v. Thomas, 4 Circ. Dec. 253 (-8 R. 253); New Jerusalem Church v. Crocher, 4 Circ. Dec. 619 (7 R. 327) ; West v. Knoppenherger, 26 O. C. C. 168 (4 N. S. 305); 17 Cye. 242, 245; Lyddy’s Will, Matter of, 53 Hun. 629 [5 N. T. Supp. 636] ; Better v. Herring, 115 Pa. St. 599 [8 Atl. Rep. 830] ; Williams v. Williams, 132 Mass. 304.
   GIFFEN, P. J.

The plaintiff in error, as plaintiff in the superior court of Cincinnati, commenced an action to recover, under the Indiana statute, for the wrongful death of his son, John M. Knepfle, about eighteen years of age, who, while a passenger on one of defendant’s trains, stepped or fell therefrom and had both legs cut off below the knee. The accident occurred at a point about 1,350 feet from the station at West Harrison, at about 4:35 P. M., the train, after stopping at the water tank, arriving at the station at about 4:40 P. M., when for the first time the conductor and brakeman were- informed of the accident by two passengers.

A brother of the injured boy and other passengers residing at Harrison, were informed of the accident, before the train arrived at the station, by the only eye-witness, William Herbert, who, as soon as the train arrived at the station, ran for a doctor to care for the injured boy and for an ambulance to convey him to his home. At about 5:20 P. M. Doctor Huber arrived and took charge of the case, in the meantime other parties having tied handkerchiefs around the legs of the injured boy. He was then taken to the ambulance, a distance of about 800 feet (that being the nearest point to which it could be driven), and conveyed to his home. A surgical operation was performed about 6 P. M. and he died about 11 P. M.

The conductor left with his train, immediately after being informed of the accident, without affording any relief.

The claim is made that, although the accident occurred through no fault of the company, and probably through the negligence of the deceased, the defendant is nevertheless liable, because the conductor failed to back the train to the place of the accident and bring the boy to the station where surgical aid could be summoned, and failed to do anything else for his comfort and safety. It is further claimed that the delay in procuring surgical aid and appliances for checking' the flow of blood caused a great loss of blood, which was the proximate cause of his death. The court instructed the jury to return a verdict for the defendant, to which action of the court error is now alleged.

It is well settled in this state that when a passenger through his own negligence falls from a moving train onto the track, where he is exposed in a helpless condition to the danger of injury from another of the railroad company’s trains, it owes him, upon notice, the duty to adopt some reasonable precaution to avoid injury to him. Cincinnati, H. & D. Ry. v. Kassen, 49 Ohio St. 230 [31 N. E. Rep. 282; 16 L. R. A. 674].

Unlike that ease, the injured passenger in this case was not lying on the track,- and therefore not exposed to the danger of injury by other trains of the defendant; and Williams, J., says in the opinion:

“.Though the defendant may not have been under any obligation to use care to prevent his injury by others, it owed, him the duty of observing ordinary care to avoid injuring him in the use of its own property.”

In the case of Northern C. Ry. v. State, 29 Md. 420 [96 Am. Dec. 545], it appears that a person, run over and thought to be dead, was placed upon some rubbish in a railway warehouse by the station master, and then left over night; during which time he had revived and dragged .himself some distance along the floor, when he was found dead the next morning with his body yet warm, in a stooping posture, pressing his hand upon his leg to stop the flow of blood from a severed artery, it was held that, even though the accident was caused by the negligence of the deceased, still it might go to the jury whether his death did not result from the subsequent negligence of the railway employes.

It is easy to subscribe to the doctrine of this case, not only as applied to the facts recited, but also as applied to any like state of facts. It may also be conceded that the editorial note to Union Pac. Ry. v. Cappier, 66 Kan. 649 [72 Pac. Rep. 281; 69 L. R. A. 533], states a sound proposition of law; but tbe facts in the case before us clearly distinguish it.

Neither the conductor of the train, the brakeman, nor the station agent had any reason to anticipate that the brother of the injured boy and his friends, living in the same town and knowing his condition would be less able than they could be in procuring surgical aid and in ministering to his wants; hence what would otherwise have been a legal duty resting upon one or all of such employes of the company ceased to be even a moral duty. It is said, however, that the means at the disposal of the conductor for fetching the boy to the station were more available, to wit, by backing the train to the scene of the accident and returning with the boy; but this would have tended to increase, rather than diminish the.flow of blood and would have laid the foundation for the very claim made in the petition that the additional loss of blood occasioned by the defendant was the proximate cause of the death. A surgeon or other competent person with suitable appliances was essential for the purpose of checking the flow of blood, and these were procured within a reasonable time. Even though the means, employed by those who did take charge of the case, proved less effective than those which might have been used by the defendant, still it would not be liable, unless the employes having knowledge of the accident had reasonable grounds to anticipate such result.

Counsel for plaintiff admits that the standard of duty owing . by the defendant shifted according to the facts and circumstances developed at the trial. The undisputed facts are that a brother and friends not only knew of the accident before the employes of the defendant did, but were taking active measures for the relief of the unfortunate boy. ¥e are of the opinion therefore that the court did not err in directing the jury to return a verdict for the defendant.

Judgment affirmed.

Smith and Swing, JJ., concur.


text:
    INJUNCTION — NUISANCE.
    [Hamilton (1st) Circuit Court,
    November, 1909.]
    Giffen, Smith and Swing, JJ.
    Katherine A. Grothlich v. Klein & Cohn.
    Injunction does .not Lie to Prevent Operation of Heavy Machinery in City Manufacturing District.
    Operation of hammers and heavy machinéry in a factory adjoining residence property, situated in a populous manufacturing district, will not be enjoined if the noise produced is not greater than is common in such districts, no substantial vibration affects other property near, and the business is conducted in an ordinarily prudent manner.
    Appeal from common pleas court.

      G. J. McDiarmid and Ralph O. Newcomb, for plaintiff.

      Cohen & Mafik, for defendants.
    Petition of plaintiff to enjoin the operation of hammers and heavy machinery in defendant’s factory adjoining her residence was allowed in the court below. '
   GIFFEN, P. J.

It appears from the testimony and a view of the premises including the power-shears in operation that the chief noise arises from the cog-wheels forming a part of the gearing, and that there is no substantial vibration affecting the plaintiff’s property. The business itself is lawful and conducted in an ordinarily prudent manner. Such annoyance as the plaintiff suffers is no greater than is endured in any populous neighborhood devoted, as this is, in part to manufactures, and to grant relief by injunction would practically suspend manufacturing within the city limits.

The first proposition of the syllabus in the case of Goodall v. Crofton, 33 Ohio St. 271 [31 Am. Rep. 535], is as follows:

“On the petition of a landowner, complaining that certain steam power and machinery operated by another on adjoining land is a nuisance, an injunction should not be granted unless a clear ease of nuisance and irreparable injury be made out. ’ ’

There is and can be no real injury to the property itself,, and while the annoyance to the plaintiff and her tenants is substantial, it does not-amount to a nuisance for which an injunction should be granted.

We did not see the derrick and weight for crushing iron in operation but from the testimony we find no warrant for restraining its operation by injunction.

The petition will be dismissed and each party ordered to pay his own costs.

Smith and Swing, JJ., concur.


text:
    PRINCIPAL AND AGENT.
    [Hamilton (1st) Circuit Court,
    July 9, 1910.]
    Giffen, Smith and Swing, JJ.
    Lewis R. Smith v. Jacob J. Geis.
    Parol Evidence op Contemporaneous Agreement Inadmissible to Vary the Terms op a Written Agreement.
    In an action to recover commission under a written contract for sale of real estate, giving the agent commission by whomsoever sold during the term thereof, parol evidence is inadmissible to show a contemporaneous agreement excepting a certain prospective purchaser from operation of the contract.
    Error to common pleas court.

      Joseph A. Keadin and Gilbert Bettman, for plaintiff in error.

      Fred E. Niederlielman, for defendant in error.
   GIFFEN, P. J.

In an action to recover commission under a written contract with a real estate- agent whereby he is allowed a commission in the event the property is sold through the efforts of the agent, owner, or any other person during the existence of the contract at any price acceptable to the owner, parol testimony is inadmissible to show a contemporaneous agreement to except a sale made to a certain prospective purchaser from the operation of the contract.

Judgment reversed and judgment for plaintiff in error.

Smith and Swing, JJ., concur.


text:
    CORPORATION S — DEEDS—POWERS.
    [Hamilton (1st) Circuit Court,
    February 25, 1911.]
    Giffen, Smith and Swing, JJ.
    Thomas Carll v. Little Miami Ry.
    1. Power of Attorney to Transfer Stock not Exercised during Life of Person Named Ceases at Death. '
    A power of attorney from a husband to his wife, endorsed on a certificate of stock and dated as of the time of issuance to him, constitutes a general power to transfer the stock on the company’s books which, not being exercised by her during her lifetime, ceases at her death; hence, merely signing the stock over to her son, without causing the transfer to be made on the books, conveys no'title to him.

      2. Deed Covering Real Estate . and Belongings Thereto does not Include Certificates of Stock.
    A deed conveying certain real estate upon which was situated a health college, and also covering belongings of the college in the form of personal property specifically described, does not include a certificate of stock in possession of the grantor at his home in another state, where the negotiations for the transfer of the property were had and the deed was executed.
    Appeal from common pleas court.

      H. 8. Stevenson, Louis J. Dolle, Walter G. Taylor and J. JB. O’Donnell, for plaintiff.

      Gideon G. Wilson, for defendant Curts.

      Robert P. Hargitt, for Seeley, Admr.
   GIFFEN, P. J.

The representative character of the defendant, Nelson L. Seeley, as administrator of the estate of John B. Campbell, deceased, is sufficiently shown by his deposition, and if not the court would reopen the case for further proof, the letters of administration being submitted with the papers in the case, although apparently not offered in evidence.

The title of plaintiff to twenty-five shares of stock of the Little Miami Railroad Company depends primarily on a power of attorney endorsed on the certificate by John B. Campbell in favor of his wife, Jennie Campbell, who afterwards endorsed the certificate as follows:

“I sign this paper over to my son, Thomas W. Carll.
“Mrs. Jennie Campbell/’

Tbe declarations of. Jennie Campbell, deceased, if competent, are to the effect that her husband gave her the stock; but this is merely her interpretation of the acts of Campbell himself, to wit, the execution of the power of attorney and delivery of the stock, and the same construction is now insisted upon by counsel for plaintiff. In other words, that a complete title tp the stock was vested in Mrs. Campbell.

The power of attorney is dated the same day on which the certificate was issued, and it is not probable that the owner would have the stock issued in his name for the sole purpose of transferring it to his wife. The object he may have had and the person to whom it should be transferred does not appear, and we are justified in holding that it was a general power to transfer the stock on the books of the company, which, not being exercised during her lifetime, ceased at her death. The attempt to assign the stock to her son, the plaintiff, is beyond the power conferred and therefore conveyed no title. If she had also caused a transfer to be made on the books of the company a different question would be presented. A Iona fide purchaser would no doubt be protected, but a donee probably not.

The petition should therefore be dismissed.

The other twenty-five shares of stock claimed by the defendant, J. C. Curts, were not endorsed in any way, but the claim is based upon a deed conveying to him—

"The following described property and real estate in Fair-mount, Hamilton county, Cincinnati, Ohio, to wit (real estate described), and this grant includes all that belongs to the Vitapathic System as described in the lease paper to Dr. R. S. Clymer, to wit, patent rights, copyrights, electrotypes and copies of diploma and certificate of ordination and books and all equipments of the college, including the American Health Religious College and its belongings in name and nature.”

Although articles of incorporation were issued by the secretary of state, the corporation was never duly organized, and the property of the college really belonged to John B. Campbell.

The care with which he describes, in the above deed, the things which would naturally be considered a part of the college outfit, and were located in the college building in Ohio, would seem to exclude, from the general and comprehensive word belongings, railroad stock in his possession at his home in Citronelle, Alabama, where the negotiations of 'sale were had and deed executed. The grantee himself gives in effect a like interpretation of the deed in,letters written to Campbell’s administrator. These letters were objected to as irrelevant, immaterial and incompetent when offered as part of the deposition of the administrator taken in Alabama.

The objection is now made that the signature was not proved. We think sufficient proof of the genuineness of the letters was made, and that the objection now made is too late. If the deed was intended to convey all the effects of the college, then the cash found in the box along with the railroad stock, and the cash in bank, if any, would pass to the grantee. We discover no such intention either in the deed itself, nor- when read in the light of surrounding circumstances.

‘ In the brief time allowed, we have not attempted to here review all the evidence, nor to quote authorities; but, after full consideration, we hold that the burden of proof has not been sustained by the plaintiff, nor the cross petitioner, Curts.

Decree accordingly.

Smith, J., concurs.

Judge Swing dissents to that portion of decision relative to the claim of J. C. Curts, defendant.


text:
    CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    January 29, 1910.]
    Giffen, Smith and Swing, JJ.
    National Starch Co. v. Hugo Gruner.
    Corporation not Bound bv President’s Admission op Stipulation.
    A president of a corporation cannot bind it by an admission of a stipulation into an express contract of employment of which there is no other evidence.
    Error to common pleas court.

      Ernst, Cassatt & Cottle, for plaintiff in error.

      Adler, Kelley & Eauck, for defendant in error.
   GIFFEN, P. J.

The plaintiff in the original action, Hugo Grúner, pleaded an express contract of employment for the entire year of 1901 and an implied contract for the following year. The only evidence of the express contract is a letter dated December 31, 1900, signed by the president of the company, notifying plaintiff “you are hereby reappointed manager of the George Fox factory, and your duties will be the same as under the old company.”

It was sought at the trial to show the duration of the employment by an admission of the president made three months later. This was clearly incompetent. The president of a corporation cannot bind the company by an admission of a stipulation in an express contract of which there is no otheevidence.

What the plaintiff now relies on is the fact that he was employed by the predecessor of the defendant at a salary of $2,500 per annum, and that he continued in its employment for a longer period than one year.

In the first place this is evidence, not of an express contract as pleaded, but of an implied contract; and on the other hand the rate of compensation per year by one company is not evidence of a contract for an entire year made with its successor in business.

Motion for rehearing will therefore be overruled.

Smith and Swing, JJ., concur.


author: SWING, J.

text:
    PRINCIPAL AND SURETIES.
    [Hamilton (1st) Circuit Court,
    July, 1900.]
    Giffen, Smith and Swing, JJ.
    Henry Gerke et al. v. George Wiedemann Brewing Co.
    Liability of Sureties Limited to Exact Letters of Bond.
    Sureties on a bond securing payment for goods sold on credit are released, where contrary to the terms of the bond payment for the first car load was not required when the third car was ordered, and settlement was not insisted on as provided for on a specified date and on the first day of each succeeding month thereafter, but time for payment was extended by permitting the amount due to increase from month to month.
    Error to common pleas court.

      Milton Saiter, for plaintiffs in error.

      Louis J. Dolle, for defendant in error.
   SWING, J.

The brewing company entered into a contract with Henry Gerke in which it was agreed that said brewing company should furnish to said Gerke beer in car load lots in wood and beer in bottles to be sold by said Gerke at Marietta, Ohio. Said contract was,to begin February 24, 1896, and to continue for one year. Either party was given the right to terminate the contract on thirty days’ notice, and any material violation of the agreement by either party was to render the agreement null and void. It was provided in the contract that “said company will furnish said Gerke the first two car loads of beer on crédit, for which said Gerke shall execute a bond of $1,000, and when he orders the third car of beer he shall pay for the first car of beer he received; all settlements thereafter are to be made on the first day of each month commencing May 1, 1896, at which time said Gerke is to make payments to said company for the beer that may be ordered by or delivered to him.”

On said February 24, 1896, said Gerke, together with his wife, Maria Gerke, and B. Meyer, defendants herein, executed and delivered to the brewing company their bond for $1,000. The condition of this bond was to this effect:

“That whereas the above named Henry Gerke has this day entered into and made a contract in writing with the said George Wiedemann Brewing Company for the purchase of beer in wood and bottles by the ear load lots from the said George Wiedemann Brewing Company for a period of four years or until said parties agree to discontinue as set forth in said agreement. Said agreement is in writing and bears even date herewith and which is here referred to and made a part hereof. Now, therefore, if the said Henry Gerke shall well and truly perform said contract and shall fully comply with and carry out each and every provision thereof and shall pay for all of said beer purchased * * * then this bond shall be null and void.”

Suit was brought by the brewing company against said Henry Gerke, Maria Gerke and B. Meyer. For a first cause of action the plaintiff sets out a claim against Henry Gerke on the contract referred to, and for a second cause of action a claim against all of the defendants on the bond referred to. Copies of the contract and bond are annexed to the petition. Henry Gerke filed no answer and judgment by default was awarded against him on April 2, 1897, for the sum of $1,599.49, the amount claimed to be due. Maria Gerke and B. Meyer filed an answer in which they admitted the execution of the contract and bond as set out in the petition, but alleged that they were released from the obligations of the bond by reason of the fact that the said Henry Gerke was not required to pay for the first car load of beer for which he was given credit, nor did he pay for the first ear load of beer when he ordered the third car; that no settlements were made on the first of every month as required by the contract and bond; that said company gave said Henry Gerke credit for more than two cars of beer at one time, and that a settlement was not made on May 1, and each and every month thereafter during the continuance of said contract; and that he did not pay on the first of every month for the beer delivered to him. This answer also contained a general denial as to all matters not admitted.

The plaintiff filed a demurrer to all that portion of defendants’ answer except that which set up a denial, and this demurrer the court sustained. This demurrer was sustained February 20, 1897.. On December 29, 1898, the case was heard on the pleadings and the evidence by the court and judgment rendered against said Maria Gerke and B. Meyer for $838.

Error is prosecuted in this court to this judgment.

The evidence shows that the company shipped to Henry Gerke on February 24, 1896, beer in wood to value of $187.50 and beer in glass $115; on March 13, $125 in wood and $116.50 in bottles or glass; April 8 and 25, $131.25 each time in wood and $166.50 and $169.90 in glass. Credit was given Gerke for cash of $400 and $31.25 allowance up to April 24, 1896; balance due the company on May 1 was $867.65. This amount was not paid to the brewing company on May 1 as provided in the contract. Neither was any settlement made between the parties. The brewing company continued to furnish Gerke beer in wood and in bottles until August 28 of said year, at which time the amount due the company from said Gerke was $1,561.95. No settlements were made at any time between the parties, but beer was shipped to said Gerke by said comp any during all this time and payments in cash were made during each month by said Gerke on said account; that at the end of each month the amount due was greater than of the previous .month.

By reason of these admitted facts were the sureties on the bond released? We hre of the opinion that they were. The general rule of the liability of sureties on bonds is thus stated by Reed, J., in the case of State v. Medary, 17 Ohio 565:

‘ ‘ The bond speaks for itself, and the law is that it shall so speak, and that the liability of the sureties is limited to the exact letter of the bond. Sureties stand upon the words of the bond, and if the Words will not make them liáble nothing can. There is no construction, no equity against sureties. If a bond cannot have effect according to its exact words the law does not authorize the court to give it effect in some other way in order that it may prevail.”

This rule has frequently been followed by our Supreme Court. In not requiring Gerke to pay for the first car of beer when the third was ordered, and in not requiring settlements on May 1, and the first of each succeeding month, and in extending time of payments as was done by allowing the account to accumulate each month, was a material violation of the terms of the contract and bond, and necessarily worked an injury to the-sureties on the bond.

Judgment reversed and cause remanded for further proceedings. ■ B

Giffen and Smith, JJ., concur.


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    ATTORNEY AND CLIENT — DISBARMENT.
    [Hamilton (1st) Circuit Court,
    March 14, 1910.]
    Giffen, Smith and Swing, JJ.

      Charles S. Sparks, In re Disbarment.
    Judgment of Disbarment may be Suspended and Attorney- Restored to Practice upon Showing of Repentance and Reformation.
    Reformation of accused and protection of the public, not punishment, are the ends sought to be attained by disbarment of an attorney; hence, accused having acknowledged the wrong committed and since his suspension having conducted himself in a manner above criticism and inspiring in the minds of fellow attorneys the belief that he has been sufficiently punished, further execution of the judgment will be suspended and the attorney be restored to practice.
    Application for modification of judgment of disbarment..

      See Sparks, In re, 54 Bull. 26.

   SMITH, J.

At a former term of this court, to wit, February 26, 1909, Charles S. Sparks was found guilty of unprofessional conduct as an attorney at law and suspended from practice for the period of three years.

The case is again before the court upon the application of paid attorney for a modification of said judgment in that he be-restored to the practice of law.

In his application he acknowledges the wrong that he committed, and files with the court a petition signed by numerous, citizens and attorneys at this bar, setting out that since the judgment of suspension was ordered said Sparks has conducted himself uprightly and that in their opinion he has been sufficiently punished for the offense of which he was adjudged guilty.

The evidence upon the hearing of the application disclosed that the committee heretofore appointed to prosecute the charges against him had been notified of the filing of the application and the time of. its hearing.

This appears, therefore, to be a matter left to a great extent to the sound discretion of the court. In proceedings of this kind it is evident that punishment is not the sole end to be attained* but rather protection, the main object of the punishment inflicted being the reformation of the party punished.

Since the suspension of the applicant the court is of the> opinion that he has conducted himself in such a way as indicates, that he fully realizes the gravity of his offense, and we believe that if restored to practice he will be very careful not to repeat the same.

“Admission as an attorney is not attained without years of labor and study. The office which the party thus acquires is one of value and often becomes a source of great honor and emolument to its possessor. To most persons who en^er the profession it is the means of support to themselves and their families. To deprive one of an office of this character would often be to decree poverty to himself and destruction to his family.'" Bradley v. Fisher, 80 U. S. (13 Wall.) 355 [20 L. Ed. 646]; Weeks, Attorneys 158, 174.

Under the evidence adduced at the hearing of the application. the end being the reclamation of the offender, we are of the opinion that the further execution of the judgment heretofore rendered should be. suspended, and the applicant restored to the practice of his profession.

Giffen and Swing, JJ., concur.


author: HENRY, J.

text:
    GUARANTY — SALE.
    [Cuyahoga (8th) Circuit Court,
    March 11, 1907.]
    Marvin, Winch and Henry, JJ.

      George F. Gund v. Cleveland Store Fixture Co.
    Guaranty of Sale Adjudged not Set Aside for Breach of Collateral Contract.
    A judgment upon a guaranty of payment endorsed on a contract of sale of bar furniture will not be set aside for error with respect to only one of two issues joined relative to an alleged failure to comply with a separately written agreement to furnish a union label to accompany the furniture; since the jury’s general verdict may be taken to imply either that the latter agreement was executed and delivered subsequently to the endorsement or that such promise was complied with by tender of a union label that had been in the seller’s possession some time.
    [Proof of this decision was submitted to Judge Henry and corrected. — Ed.]
    Error to common pleas court.

      Meyer <& Mooney, for plaintiff in error.

      Carr, Stearns & Chamberlain, for defendant in error.

      Affirmed, no op., Gund v. Fixture Co. 79 O. S. 446.

   HENRY, J.

The Cleveland Store Fixture Company recovered a judgment below against George F. Gund as guarantor of payment by the vendee in a contract for bar furniture to be furnished by said company.

In the view we take of this case, it is unnecessary to confer the question whether there is a defect of parties. Gund’s guarantee was endorsed on the written contract of sale. By a separate written instrument the company promised Gund that the bar furniture should be accompanied with a union label, and this promise, he ^lieges in his answer, was not complied with. The plaintiff company in its reply alleges iff substance:

First, that the written promise" in regard to the union label was executed and delivered subsequently to the endorsement by Gund of his guarantee upon the contract of sale, and that it was without consideration and void.

Secondly, that even if valid the promise was fully performed, not indeed by furnishing bar fixtures that were wholly union made, but by tendering to the vendee a union label that had been in the company’s possession from a former time when it carried on a union shop.

This label, it was claimed, was specifically contemplated by the terms of the written promise.

Upon the issues thus joined the jury found generally for the plaintiff company and against Gund.

It is obvious that this result may have been reached through either of the claims set forth in the reply. If the promise in regard to the union label was made after the guarantee, and was thus without consideration and void, it is unimportant whether plaintiff fulfilled it or not. If, on the other hand, the promise means what plaintiff claims, and was fulfilled according to its meaning, it is immaterial whether it was valid or invalid. The verdict as returned implies that the union label promise was an after consideration, and, therefore, unenforceable; also that it was performed according to the meaning and intent of the parties. It follows that unless the errors complained of here are such as to vitiate both aspects of the verdict, the judgment must be affirmed, inasmuch as the verdict and judgment can rest indifferently upon either ground. McAllister v. Hartzell, 60 Ohio St. 69, 95 [53 N. E. Rep. 715]; Smith v. Gardner, 57 Ohio St. 666; National Union v. Rothner, 57 Ohio St. 679; Beecher v. Dunlap, 52 Ohio St. 64 [38 N. E. Rep. 795]; Tod v. Wick, 36 Ohio St. 370, 389; Union Cent. L. Ins. Co. v. Sutphin, 35 Ohio St. 360.

See, however, Pennsylvania Co. v. Miller, 35 Ohio St. 541 [35 Am. Rep. 620], overruled, though not indeed on this point by Toledo & O. C. Ry. v. Bowler, 63 Ohio St. 274, 287 [58 N. E. Rep. 813]; Butler v. Kneeland, 23 Ohio St. 196; and Sites v. Haverstick, 23 Ohio St. 626.

The errors complained of relate chiefly, if not wholly, to the latter issue, and we think one or two of the points made by plaintiff in error as to the admission and exclusion of evidence, are well taken. On the other issue the evidence is in sharp conflict. Mr. Gund testifying that the written promise in regard to the union label was executed and delivered before his guarantee was endorsed on the contract of sale. On the other hand the Cleveland Store Fixture Company’s agent testifies just as distinctly that it was executed afterwards. The jury is the tribunal appointed by law to solve contradictions of this sort, and we cannot disturb its finding in this ease • as being unsupported by the evidence; nor do we find any error in the record affecting the proper submission of this issue to the jury.

It follows, therefore, that the judgment below must be affirmed.

Marvin and Winch, JJ., concur.


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    CONTRACTS — EVIDENCE—PLEADING.
    [Cuyahoga (8th) Circuit Court,
    May 29, 1905.]
    Marvin, Winch and Henry, JJ.

      Harold D. Dennis v. Albert R. Landreth, Jr., et al.
    1. Tearing off Signature by Party to Option for Cancellation of Lease no Revocation Unless Acquiesced in by Other Party.
    A written option for cancellation of a lease is not revoked by the landlord’s tearing off his signature thereto on the day of acceptan -e, in the absence of acquiescence and consent by the tenants; whether the revocation was acquiesced in by the tenants is a question of fact for a jury; hence a verdict for the tenants will not be reversed.
    2. Denial of Public Record “For Want of Knowledge” Insufficient to Put Opposite Party to Proof Thereof.
    A denial of a public record “for want of knowledge,” in an answer to an averment that plaintiffs had filed their certificate of partnership as required by law, is insufficient to put plaintiffs upon proof thereof.
    [Proof of this decision was submitted to Judge Henry and corrected. — Ed.]
    Error -to common pleas court.

      C. F. Morgan, for plaintiff in error.

      Affirmed, no op., Dennis v. Landreth, 74 O. S. 450.

   HENRY, J.

This cause is here on error, the parties being reversed. The defendants in error were partners doing business as the Mason .Supply and Seed Company. As such they leased from plaintiff in error the premises where they did business. At the request of plaintiff in error, they gave him a written option for the cancellation of the lease on payment of $700, and said option was subsequently, in writing, accepted, but the $700 was never paid and the action below was begun to recover the same. The plaintiff in error claims, however, that on the afternoon of the day he accepted the option, he went to his tenant’s office and there with their acquiescence and consent revoked his acceptance by tearing his signature from the said writing. The sole issue of fact was whether defendants in error acquiesced and consented. The jury found they did not, and we think the evidence justifies the verdict. It is said that the charge was erroneous, but having read it carefully, we think otherwise. Another claim of error is founded upon the failure of plaintiffs below to offer any evidence in support of the averment in their petition that they had duly filed their certificate of partnership as required by law. The answer’s only denial of this averment is upon the ground of alleged “want of knowledge,” and we think that such denial of a public record is insufficient to put the opposite party upon his proof thereof. The judgment below is affirmed.

Marvin and Winch, JJ., concur.


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    NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    January 29, 1910.]
    Giffen, Smitli and Swing, JJ.
    Batavia Tpk. & Miami Bridge Co. v. John Hodapp.
    Instructing that Plaintiff mat Recover if Preponderance of Evidence Shows Him without Fault, Insufficient.
    An instruction in an action for damages based on a tort, that the plaintiff may recover if it appears from a preponderance of the evidence that he was without fault is erroneous, unless predicated upon proof that the accident was due to the negligence of the defendant.
    Error to common pleas court.

      D. W. Murphy and George Hoadly, for plaintiff in error;

      Samuel B. Hammel, for defendant in error.
   SMITH, J.

It was error in the trial court to charge the jury that “if you find by a preponderance of the evidence that the plaintiff was without fault he would be entitled to recover.” This is not a prbper statement of the law to the jury, as it eliminates from the case the duty on the part of the plaintiff to prove that the negligence of the defendant caused the injury complained of, and we do not think the effect of this charge was removed by the court.

Upon the question of the verdict being excessive, we-are of the opinion that such is the case, and had the verdict 'been for a sum in the neighborhood of $250, under the evidence it would seem more reasonable

Judgment reversed.

Giffen and Swing, JJ., concur.


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    NEGLIGENCE — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    July 23, 1910.]
    Giffen, Smith, and Swing, JJ.
    Cincinnati Trac. Co. v. William D. Jones.
    Doctrine of Last Chance does not Apply to .Injury to Driver Turning to Avoid One Street Car Approaching Him Directly in Front of Car Coming Behind on Parallel Track.
    The doctrine of last chance does not apply in a ease where the driver of a wagon, following a street railway track in an opposite direction from which the cars run, in order to avoid an approaching car thereon turns, without looking or listening, toward the parallel track directly in front of a car coming behind him and is struck and injured.
    Error to common pleas court.

      Geo. P. Stimson, for plaintiff in error.

      John 'JS. Fitzpatrick, for defendant in error.
    The defendant in error recovered a judgment below for $500 as damages on account of the striking of a wagon, which he was driving on Eastern avenue, by a car which came up from behind.
   SMITH, J.

In the above case the eourt is of the opinion that the motion of plaintiff in error to arrest the case from the jury and direct a verdict in its favor should have been granted. The greater weight of the evidence discloses that defendant in error was driving his wagon west upon the east-bound track, and as the ear which struck him was approaching on the west-bound track, sounding its gong, he turned diagonally from the east to the west-bound track at so short a distance in front of this ear that it was impossible for the motorman to have avoided a collision.

There is no dispute as to where he was driving, and we do not think the doctrine of the “last chance” applies under the evidence in this case, for if there was negligence on his part and that of the motorman, it would seem under the evidence that the same was concurrent, and if so, then the defendant in error was not entitled to recover. He was bound to look and listen before crossing the tracks of the defendant company and manage his ho^se and vehicle prudently under all the circumstances, considering especially that he was just previous to the accident on the track adjoining the one upon which he was. hit by the car going in the same direction as himself.

' In this view of the case it is unnecessary to consider other errors alleged to have been committed at the trial, as we think plaintiff in error hpon all the evidence was entitled to a verdict and judgment.

The judgment of the court below will be reversed and a judgment for plaintiff in error may be entered in this court.

Giffen and Swing, JJL, concur.


text:
    CARR JERS — PARTI ES.
    [Hamilton (1st) Circuit Court,
    August 6, 1910.]
    Giffen, Smith and Swing, JJ.
    Louisville & Nashville Ry. v. Magnus Co.
    Consignee Liable foe Balance of Freight Charges Billed at Lesj than Fixed Rate by Mistake.
    A railway company, through a mistake of its shipping clerk, having collected less from a consignor than the fixed rate on a shipment of goods delivered to the consignee, an action will lie against the consignee for the balance, due, notwithstanding there was an agreement between the consignee and the consignor that the consignor was to pay the freight charges.
    Error to common pleas court.
    An action was brought in the court below for balance of freight charges due upon a bill of goods shipped to defendants from Alabama to Cincinnati. Part of the freight had been prepaid, according to contract, but owing to an error made by a freight clerk at the place of shipment, the freight charge was $20.15 less than the regular tariff rates. Defendants accepted the goods, knowing of and refusing to pay the additional charges. In the court below judgment was rendered for defendants.

      Einkead & Rogers, for plaintiff in error.

      Max B. May, for defendant in error.
   SWING, J.

By force of the United States laws the rates of freight between points in the state of Alabama and Cincinnati are fixed and are not the subject of contract. The railroad company can neither charge more nor accept less than the fixed rate. In the present case the railroad company by mistake accepted less than the fixed rate from the shipper. It supposed it was receiving from the shipper the exact amount of the fixed rate and did not attempt to contract to carry the goods for less than the fixed rate. The railroad company had a lien on the goods for the balance of this freight charge, and the law made it the duty of the company to collect it. Not to do so would in effect amount to a rebate which would violate the statute. The mistake was discovered by the company before it delivered the goods and the Magnus Company were notified that the amount of the error was charged against the goods. The Magnus Company, under an agreement with the railway company, were allowed to receive all freight consigned to them and pay the charges at stated periods, the Magnus Company being on what is known as the credit list. On the facts we think the Magnus Company is liable for the balance due on the freight the same as if no freight had been paid.

Judgment reversed and judgment for plaintiff in error.

Giffen and Smith, JJL, concur


text:
    NEGLIGENCE — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    July 23, 1910.]
    Giffen, Smith and Swing, JJ.
    Cincinnati Trac. Co. v. Maud Manning.
    One Driving Vehicle Back of a Street Car, Turning into and Colliding with Car on Parallel Track under Circumstances that-Looking and Listening were Insufficient is Negligence.
    A driver of a vehicle, immediately in the rear of a standing street car, turning into the parallel track without being able by looking, to see whether there was a car approaching thereon, or by listening, to distinguish the bell on the standing car from that on the approaching car, is chargeable with contributory negligence; the fact that cars had just passed on the track upon which was approaching the car colliding does not relieve against the driver’s negligence.
    Error to common pleas court.

      Kittredge, Wilhy <& Siimson, for plaintiff in error.

      T. L. Michie and A. C. Fricke, for defendant in error.
   GIFFEN, P. J.

On July 18, 1907, at about 9:30 P. M., the plaintiff was driving a horse and buggy south on the west side of Western avenue, and after two street cars had passed her on the southbound track she attempted to cross over at or near the intersection of Findlay street but was struck by'a north-bound car- and injured.

It is contended by counsel for the company that the court should have arrested the case from the. jury because the plaintiff testified that she could see down Western avenue a distance of -four blocks; that before attempting to cross she looked for-an approaching car, and saw none. But she did not intend thereby nor did the 'jury understand her to mean that she could see everything on the avenue within that space regardless of temporary obstructions. She also testified that the two southbound cars had at the time reached the middle of the block south of Findlay street, hence, if the north-bound car was a few feet south of the last car, her view would be obstructed. If she saw no ear approaching within that space, it would not be negligence per se to attempt to cross, because she had the right. to assume that the motorman of the car, if any were approaching, would have the car under control at and near the crossing, whereby she would have ample time to cross.

The great weight of the evidence, however, shows that the rear south-bound car was at or about two feet south of Findlay street, and that the plaintiff drove in behind that car and attempted to cross the north-bound track, when by looking she could not see the north-bound car, and the motorman could not see her or the vehicle. The car could not have been moving very fast because the testimony is clear that the motorman brought it almost to a stop on the south side of Findlay street to avoid a collision with another buggy approaching from the east on Findlay street. But assuming that it did get full headway before the collision, and that the motorman was negligent in not having the car under control while passing the southbound car at or near the crossing, the plaintiff was chargeable with contributory negligence in attempting to cross, when by looking she could not see and by listening she could not distinguish one bell from another.

The motorman admits that he did not sound the gong when he first saw plaintiff’s horse, as, it would then do no good; but says that he did sound it for the crossing.

The verdict was clearly against the weight of the evidence, and the court erred in not granting a new trial for that reason.

The judgment will be reversed and the cause remanded for a new trial.

Smith and Swing, JJ., concur.


text:
    AUTOMOBILES — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    November 26, 1910.]
    Giffen, Smith and Swing, JJ.
    Max Hirsch v. Cincinnati Traction Co.
    Failure of Driver of Automobile Running at Fifteen Mile Rate to Look Back for Approaching Street Car not Contributory Negligence.
    Failure of one, operating an automobile within municipal limits at the rate of fifteen miles an hour, to loot bact for an oncoming street car is not, as a matter of law, contributory negligence; failure of the motorman, after becoming aware of the danger, to exercise ordinary care to 'avoid collision, especially since the driver of the automobile endeavored with due care to get off the track, is the proximate cause.
    Error to common pleas court.

      Moulinier, Bettman & Hunt, for plaintiff in error.

      Geo. H. Warrington, for defendant in error.
   GIFFEN, P. J.

It is not, as matter of law, contributory negligence for one, while operating an automobile within the corporate limits of the city of Cincinnati at the rate of fifteen miles an hour, to fail to look back for an oncoming street car. He may, in the absence of an ordinance of the city permitting it, assume that the street' car will not come at a greater rate of speed.

The contributory negligence as alleged is specific, to wit:

“Neglect in running said automobile upon defendant’s track in front of an approaching ear at such a short distance that said car could not be stopped in time to avoid a collision. ’ ’

The evidence shows that the automobile had been running on the track for a distance of nearly a half mile; that the gong on the street car was sounded; that the motorman must, therefore, have been aware of the presence .of the automobile upon the track, and that the plaintiff heeded the warning by trying to get off the track, but was not given a reasonable time to do so.

Even though the failure to look back was negligence, it ceased to be a direct cause when the motofman became aware of the danger, and did not exercise ordinary care to avoid a collision while the plaintiff was, in response to the warning, endeavoring with due care to get off the track. The court erred in arresting the case from the jury and rendering judgment, for the defendant.

Reversed and cause remanded for a new trial.

Smith and Swing, JJ., concur.