author: MARVIN, J.

text:
    BUILDINGS.
    [Cuyahoga (8th) Circuit Court,
    March 6, 1905.]
    Marvin, Winch and Henry, JJ.
    State ex rel. Book et al. v. Cleveland (City) et al.
    Building Code Prohibition against Erection of Certain Buildings Within Sixteen Feet of Lot Line, Unreasonable and Void.
    The section of a building code enacted by a municipal council, which prohibits the erection of any building for the working of wood or other combustible materials within sixteen feet of any lot line is an unreasonable exercise of the police power and is void.
    Mandamus.

      Frank E. Dellenbaugh and Philip E. Hintz, for relators.

      N. D. Baker, for respondents.
   MARVIN, J.

A demurrer is filed to the petition and it is submitted upon that demurrer.

The defendant the city of Cleveland is a municipal corporation of the state of Ohio. The defendant Dooley is inspector of buildings for said city. A duty of tbe inspector, is to issue certificates for permits to erect buildings in the city whenever persons applying therefor have legal right to erect such buildings.

The relators made a proper application to the defendant Dooley for permission to erect a building. That certificate of permission was refused. An appeal was taken to a proper board of the city which sustained the ruling of the building inspector, and the building inspector still refused to issue'any certificate.

The building which relators propose to erect on the land owned by them is to be one story, twelve feet high, ninety-three feet long and twenty-nine feet wide. It is to be constructed of brick, substantially fire proof. The outer walls will be about one foot from the lot lines of the relators. The building is to he used, if erected, as a carpenter shop, heated with gas, and all the machinery is to be operated by a gas engine. From this description of the building it clearly would not he in itself .a nuisance, unless there he some lawful authority which has declared that such building shall be a nuisance.

The relators would be entitled to the certificate for which they have applied but for the provisions of an ordinance of the city which is in these words:

“No building * * * or shop for the working of wood or other combustible materials * * * shall he erected within thirty (30) feet of .any building of the first grade, or ‘hotel,’ ‘tenement,’ or ‘dwelling,’ or ‘office’ except the dwelling owned by owner of the building to be erected for or converted to the uses aforesaid.
“No building shall he erected for or converted to the uses aforesaid within sixteen (16) feet of any lot line or .any other grade of building not provided for above, except that when such buildings are located in a block between street lines, where all building’s located thereon contain stores, warehouses, shops or factories devoted to the same or similar uses as herein prescribed, then sneh buildings, if provided with dead brick walls along their inner lot lines, may he spaced near each other, and if such stores, warehouses, workshops or factories are built up to such lot lines and separated only by dead division or party walls, there shall be an open alley not less than sixteen feet wide in the rear thereof, if such width is not ini conflict with any other provision of this code.’’

This ordinance was passed under authority of Sec. 1536-100 R. S. (Sec. 3615 G. C.), which provides:

“Every city and village shall be a body politic and corporate, which shall have perpetual succession, may use a common seal, sue and be sued, and acquire property by purchase, gift, devise, or appropriation for any municipal purpose herein .authorized, and hold, manage and control the same and make any and all rules and regulations, by ordinance or resolution, that may be required to carry out fully all the provisions of any conveyance, deed or will, in relation to any gift or bequest. All municipal corporations, shall have the following general powers and council may provide by ordinance or resolution for the exercise and enforcement of the same. ’ ’

Paragraph 13 (Sec. 3636 G. C.), reads:

‘‘ To. regulate the erection of buildings and the sanitary condition thereof, fences, bill boards, signs, and other structures within the corporate limits';” etc.

The authority given by this statute comes clearly within the police power which municipalities may exercise. (See Dillon, Munc. Corp. Sec. 141.)

There are, however, limits to this power. It can not be exercised in a manner wholly unreasonable. In speaking of this, Judge Dillon, Sec. 379, says:

“Much must- necessarily be left to the discretion of the municipal authorities, and their acts will not be judicially interfered with unless they are manifestly unreasonable and oppressive * * * in which case the contemplated action may be prevented by appropriate suit or proceedings. ’ ’

This'brings us, then, to the consideration of the reasonableness of the ordinance under authority of which the defendants refuse the certificate asked for by the iclators.

As to what is unreasonable, we have examined various authorities, and special attention is called to the case of Crawford v. Topeka, 51 Kans. 756 [33 Pac. 476; 20 L. R. A. 692; 37 Am. St. 323], where it is held that an ordinance providing that “No person shall erect a bill-board or other structure for advertising-purposes unless the same is placed at such distance from the line of the street or sidewalk as shall exceed at least five feet the height of such bill-board structure,” to be unreasonable and therefore void. In the opinion, this language is used:

“All statutory restrictions of the use of property are imposed upon the theory that they are necessary for the safety, health or comfort of the public; but a limitation without reason or necessity can not be enforced.”

It is believed that properly states the law, and we come to consider whether the ordinance complained of here comes within the description or definition of what is unreasonable. The language used is: “No building shall be erected or converted to the uses aforesaid, that if for the erection or use of shops to be used for the working of wood within sixteen feet of any lot line.” The phrase “any lot line,” is susceptible of two interpretations, one of which is so manifestly unreasonable that it can hardly be supposed that that definition was intended to mean the lot lines as fixed by the platting of lots. It clearly would be unreasonable to say that a man who owns four or five lots platted in any part of the city that he might not erect a building that would cover the lot lines if he kept away from his own boundary lines for a proper distance, and still be very close to or upon the lot lines as fixed by the plat in which his land is situated. That is so manifestly unreasonable that it can not be supposed that that was intended, but if that is not intended, then it clearly must mean the boundary lines of the land of the party who proposes to erect a building. That boundary may be a street line; it may be the line of an alley; it may be on the line of the river; it may be on the line of the lake; it may be opposite to some public grounds of the city, still, with that construction of the language used in the ordinance, one would be prohibited from building within sixteen feet of his boundary line. And so, if he owned a lot bounding on the river he would be kept back sixteen feet from the river lest he should communicate fire from his building; he would be kept back sixteen feet from the street lest he communicate fire. It is contemplated that if there is an alley sixteen feet wide at the rear one may build upon the lot; so it is certain, it seems clear, that the council in passing the ordinance overlooked the fact that lot lines, meaning boundary lines of one’s property, might be, as already stated, on the strept, river, lake or opposite to public grounds and still restrict and keep him back sixteen feet from his line. An effort was made in the examination of this ordinance to see if a. construction could be given the language by which side lines would be meant, but the matter of side lines was not overlooked in the passage of this ordinance and was provided for later on, so that we must construe this to mean, not lot lines as platted, but boundary lines of the party who proposes to erect a building. It would seem to us so clearly unreasonable to say that one owning property bounded by a street, river, lake or public ground must be restricted in the erection of a building to sixteen feet from that line, that we must declare the ordinance, in so far as it provides that the building shall not be within sixteen feet of a lot line, unreasonable and void.

The demurrer to the petition is overruled.

Wmch and Henry, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    PLEADINGS.
    [Cuyahoga (8th) Circuit Court,
    March 6, 1905.]
    Hale, Marvin and Winch, JJ.
    W. J. Holden v. Rose M. Davey et al.
    Sustaining Demurrer to Second Cause of Action When Repetition of First Cause not Prejudicial Error.
    Where a petition has set out two causes of action, but the second is only a repetition of the first with the addition of other facts which would not in themselves constitute a cause of action, sustaining a demurrer to the second cause is not prejudicial error, the demurrer to the first cause of action being overruled.
    Error.
   MARVIN, J.

The error complained of here is that the court sustained a demurrer to the second cause of action set out in the petition.

Two causes of action were set out in the petition. Demurrer was filed to each of said causes. The court overruled, and properly overruled the demurrer to the first.

The second cause of action begins with the words:

“For his second cause of action plaintiff says that he incorporates therein all the allegations set out in his first cause of action the same as if therein rewritten.” Then follows allegations which do not in themselves constitute a cause of action.

It is urged, however, that since by virtue of Sec. 5083 R S. (Sec. 1131 G. C.), the first cause of action is to be treated as though rewritten in the second, and since it is held that the first cause of action is good as against demurrer, it necessarily follows that the second cause of action was also good against a demurrer, without reference to what follows, the allegations making the first cause a part of the second. Logically and technically this is correct, but since by overruling the demurrer to the first cause, the court had left the petition with that 'cause still to be answered, there was no prejudice to the plaintiff in the rulings as to the second. Since only facts stated in the petition which constitute a cause of action against the defendant were left in full force by the ruling on the demurrer, the plaintiff was not prejudiced by such a ruling as confined such facts to one cause of action, wherefore the judgment is affirmed!

Hale and Winch, JJ., concur.


text:
    TAXATION.
    [Lorain (8th) Circuit Court,
    April 29, 1908.]
    Marvin, Winch and Henry, JJ.
    C. M. Irish v. T. W. Fancher. C. M. Irish v. T. W. Fancher.
    Taxes on Stock not Collectible from Assignee in Insolvency.
    Taxes on shares of stock in an insolvent banking corporation can not he collected from the assignee in insolvency of such corporation.
   MARVIN, J.

Two eases under this title are on our docket; the one a proceeding in error to the judgment of the court of common pleas and the other an appeal from the same judgment. Suit was brought by Irish, as treasurer of Lorain county, <against Faneher, as assignee of the Citizens: Savings Bank Co., for the collection of taxes, which, it is averred, stood charged against said banking company upon the books of the auditor of the county. The 'allegations are that the banking; company is a corporation organized under the laws of the state of Ohio for banking purposes, that it is insolvent and that the defendant is the duly appointed and. qualified assignee of such, insolvent banking compan3>- under the laws of Ohio, followed b3r the averments that $671.92 stands assessed upon the duplicate of the county, as taxes, upon the personal property of this insolvent banking company. The petition further avers that the claim, for these taxes was presented to the ^assignee and that it was rejected; the prayer is that the defendant be ordered to pay these taxes in preference to all other claims which shall be held against the banking company.

Since the result, as we view the case, is the same whether we retain the case on appeal or on error, and since we are inclined to the opinion that the relief sought in the case would involve the equitable jurisdiction of the court, we have decided to and do dismiss the proceeding in error, and proceed to consider the case upon appeal, and the only question which need to be considered in the case is whether the banking company could be held liable for these taxes. For if it could not, surely the assignee can not be held.

It is provided by Sec. 2859 R. S., (Secs. 5697, 5698, G. C.), that the treasurer of the county may bring suit against any person against whom any personal taxes shall stand charged, which shall not have been paid within the time prescribed by law for the payment of such taxes. But, it is urged that the taxes for which this suit is brought were never properly levied against this banking company, and this because of the provisions of the several sections of the statutes relating to the taxing of the capital of incorporated and unincorporated banks in the stlate of Ohio. By Sec. 2762 R. S., (Sec. 5408, G. C.), it is provided that all the shares of the stockholders in banks shall be listed.

By Sec. 2765, R. S., (Sec. 5411 G. C.), it is made the duty of the cashier .of such bank to make out a return to the auditor of the county in which such bank is located, exhibiting in detail the resources and liabilities of the bank, with a full statement of the names and residences of the stockholders therein, with Hie number of shares held bjr each and the par value of each share.

By See. 2766 R. S. (Sec. 5412 G. C.), it is provided that the auditor, after having fixed the value of the shares by the process set out in these sections, shall make out and transmit to the state board of equalization for banks a copy of the report so made by the cashier.

By Sec. 2839 R. S. (Sec. 5672 G. C.), it is provided that taxes assessed on any shares of stock, or the value thereof, of any bank or banking association, shall be and remain a lien on such shares, etc., and that in ease of the non-payment of such taxes within the time required by law by any shareholder, and after notice received from the county treasurer of the non-payment of such taxes, it shall be unlawful for the cashier or other officer of such bank or banking association to transfer or permit to be transferred the whole or any portion of said stock, until the delinquent taxes thereon, together -with costs and penalties, shall be paid in full, and no dividend shall be paid on any stock so delinquent, so long as such taxes, penalties and costs or any part thereof, remain due and unpaid.

By Sec. 2840 R. S. (Sec. 5673 G. C.), it is provided that it shall be lawful for any such bank or banking association to pay to the treasurer of the county in which such bank or banking association may be located, the taxes that may be assessed upon its shares as aforesaid, in the hands; of its shareholders, respectively, and deduct the same from any dividends that may be due or may thereafter become due on any such shares, or deduct the same from any funds in its possession, belonging to and shareholder as aforesaid.

From these various provisions of the statutes, it seems clear that the manner of assessing taxes upon stock in Ohio and of collecting the taxes thereon, contemplates the assessment to be made against the shareholders. The cashier of the bank makes a return to the auditor of the property of the bank, but he, at the same time makes a return showing the names and places of residence of the several stockholders, together with the amount of stock held by each. This would seem to be for the purpose of enabling the auditor to fix the amount of taxes tk> be paid by each; and then the provisions that if the shareholders fail to pay, the taxes shall be a lien upon the several shares, and the stock shall not be transferred, and also the further provision in Sec. 2840 (5673) that the bank may pay the taxes assessed upon its shares in the hands of its shareholders and deduct from each the amount of the taxes paid for him, clearly, is a convenient way of paying taxes when a bank is entirely solvent, and the result would be exactly the same as though the several shareholders paid; but in a ease like the present one, where the bank is insolvent, if we were to hold that the assignee should pay these taxes out of the assets of the bank, them we should be taking from the general creditors the money to pay taxes upon the stock which absolutely is of no value, and which taxes the law seems to contemplate shall be paid by the shareholder, except where, for convenience, the bank chooses to pay them for him.

In the case of Miller v. First Nat’l Bank, 46 Ohio St. 424 [21 N. E. 860], it is said in the syllabus:

‘ ‘ There is no authority in the statutes of the state, nor of the United States, for listing and valuing the shares in a national bank in the aggregate, and placing- such aggregate on the tax list in the name of the bank. Such shares, when listed and valued for taxation, are required to be placed on the proper tax list in the names of the respective owners. ’ ’

And in the opinion in this case, it is dearly shown that the taxation of the stock in national banks is upon the same basis as that of state banks and governed by the same statutes.

We reach the eondusion, therefore, that the petition of the plaintiff must be dismissed.

Winch and Henry, JJ., concur.


author: JONES (E. H.), P. J.

text:
    GAMING AND GAMBLING.
    [Hamilton (1st] Court of Appeals,
    March 15, 1915.]
    Jones, Jones and Gorman, JJ.

       Samuel Hirsch v. Cincinnati (City).
    1. Admissibility of Papers Taken by Officers on Occasion of Arrest.
    In a prosecution for being a known gambler, papers, race horse slips and telegrams found at the time of arrest lying on the desk of the defendant by the arresting officers are competent in support of the charge pending against him, on the same principle that incriminating tools found on the person of one charged with burglary, or counterfeiting devices found in possession of one charged with counterfeiting, are admissible in evidence though not necessary for conviction nor sufficient when solely relied upon to warrant conviction.
    2. Weight of Evidence in Gambling Prosecution Given by Persons of Single Class as Police.
    The fact that the evidence introduced against one charged with being a known gambler was confined to persons of a single class, to-wit, members of the police department, is a matter which affects the weight of the evidence only, and where evidence so proffered was permitted to stand unchallenged, and no evidence was offered by the defendant, a finding of guilty will not be disturbed by a reviewing court.
    Error.

      James 8. Myers, for plaintiff in error.

      Walter M. Schoenle, City Solr., and Edwin 8. Morrissey, Mun. Court Pros., for defendant in error.

      Motion to file petition in error and to certify record overruled by Supreme Court May 11, 1915, See Hirsch v. Cincinnati, 60 Bull. 216.

   JONES (E. H.), P. J.

Plaintiff in error was convicted as .a “known gambler” in ilie municipal -court of Cincinnati, under tbe provisions of See. 908 of the city ordinances, which reads as follows:

“That if any known pickpocket, gambler, burglar, thief, watch staffer, ball game player, or person who practices any trick guiñe or device with intent to swindle or any suspicious person who can not give a reasonable account of himself, shall be -found in the city of Cincinnati, such person shall on convicti.on thereof in the police court, for each and every offense be fined in any sum not less than five ($5) dollars or more than fifty ($50) dollars.”

Upon proceedings in error in the common pleas court the judgment in the municipal court was affirmed, and this proceeding prosecuted to reverse the judgment of affirmance of the common pleas court.

The errors complained of in. argument can be embraced under two heads: first, it is claimed that the judgment should be reversed because the municipal court erred in admitting evidence in the form of paper's, race horse slips, telegrams, etc., which were taken off the desk of plaintiff in error at the time of his arrest; and, second, it is claimed that the judgment is not supported by sufficient evidence in that the only evidence as to the reputation of Mr. Ilirsch as a gambler or otherwise, and the only evidence in support of the allegation of the warrant that he was at the time a “known gambler,” came from police officers; and further, that their evidence showed that their information was obtained wholly from other members of the police department.

As to the first ground of error' several authorities were cited in support of the doctrine that papers obtained by means of unreasonable or unlawful search or seizure of the house or premises of a person can not be used as incriminating evidence against him. Of all the cases cited the one most directly in point and apparently most strongly relied upon is that of Boyd v. United States, 116 U. S. 616 [29 L. Ed. 746; 6 Sup. Ct. 524], In that case the question to be determined by the court is thus stated in the opinion by Mr. Justice Bradley:

“In a search or seizure, or what-is equivalent thereto, a compulsory pi'oduetion of a man’s private papers, to be used in evidence against him in a proceeding to forfeit his property for alleged fraud against the revenue laws — is such a proceeding for such a purpose an ‘unreasonable search and seizure’ within, the meaning of the fourth amendment of the constitution?”

The court answered this question in the syllabus of the case as follows:

“The seizure or compulsory production of a man’s private papers to be used in evidence against him is equivalent to compelling him to be a witness against himself, and in a prosecution for a crime, penalty or forfeiture, is equally within the prohibition of the fifth amendment. ’ ’

The opinion of Justice Bradley in this case 'is quite lengthy, and is followed by a concurring' opinion of Mr. Justice Miller some three pages in length. This ease was brought by the United States authorities to establish a forfeiture of certain goods alleged to have been fraudulently imported without paying duties thereon. It appears from the facts in the case as stated in the opinion, that at the hearing or shortly prior thereto an order was made by the court upon the owner of the goods to produce for the inspection of the court certain papers and that in executing that order the officers made a forcible search and seizure of certain premises and thereby secured the papers desired. Upon the trial of the case, an objection being made thereto, these papers were excluded from evidence because of the manner in which they were obtained. In the concurring opinion, on page G89, Justice Miller says:

‘ ‘ The order of the court under the statute is in effect a subpoena duces tecum, and though the penalty for witness' failure to appear in court with the criminating papers is not fine and imprisonment, it is one which may be made more severe, namely, to have charges against him of a criminal nature, taken for confessed and made the foundation of the judgment of the court. That this is within the protection which the Constitution intended against compelling a person to be a witness, against himself, is, I think, quite clear.
‘ ‘ But this being so, there is no reason why this court should assume that the action of the eoiu’t below, in requiring a party 10 produce certain papers as evidence on the trial, authorizes an unreasonable search or seizure of the house, papers or effects of that party.”

' So it would seem from the language of the court, that acting under authority of the order of court requiring a party to a suit to produce certain papers at the trial as evidence, the officers attempted to and did procure possession of said papers by force and by search “or seizure” of the house, papers or effects of that party.

There is such a statute in our own as well as in ma|ny other states requiring the production of papers to be used as evidence, t ut we have never known of a case where it was even claimed that under an order made in conformity to such statute forcible entry, search and seizure of property or effects could be made. And it would seem most fair and reasonable for a court to hold that evidence secured in such unlawful manner could not be admitted against its proper custodian in an action to enforce a penalty or fasten a crime upon him.

In tire case' of Mr. Ildrseh these papers, wager slips, telegrams, etc., which were introduced in evidence were taken off his desk at the time that the officers walked into his office and arrested him. They had no warrant- for him. Upon that day or the following day an affidavit was made against Mm charging him with the offense of being a “known gambler” found in the city of Cincinnati. A successful prosecution for this offense does not. depend upon proof of- particular acts af gambling. The., offense is proven if it is shown to the court beyond a reasonable doubt that the accused is a “known gambler ” — -that is, if it can be proven that- such is Ms general reputation in the community.

As said by our Supreme Court in the case of Morgan v. Nolte, 37 Ohio St. 23, 26 [41 Am. .Rep. 485] :

‘ ‘ In such eases the offense does not consist of particular acts, but in the mode of life, the habits and practices of the -accused in respect to the character or traits which it is the object of the statute creating the offense to suppress.”

The result of the prosecution depended therefore not upon evidence of particular acts, but upon the general reputation as to the mode of life and pursuits of the defendant. The papers taken by the officers on the occasion of the arrest were not necessary to a conviction, as the city is not required to produce any evidence of particular acts of gambling. But such evidence was competent and admissible in tbe same manner and upon the same principle that incriminating tools found upon the person of one charged with burglary, or counterfeiting devices found in the possession of one charged with such -crime may be properly *ad-mitt'ed in evidence, although not necessary for his conviction nor sufficient when solely relied upon to warrant conviction. This defendant at the time of his arrest was “found in the city of Cincinnati.” Tinder the ordinance it was an offense for a “known gambler” to be found in the city of Cincinnati. That was a crime in itself, in order to prove which it would not be necessary to show that he had ever been guilty of any gambling in the city. In other words, it was only necessary, for a conviction as stated above, to show that he was in Cincinnati and was known as a gambler. There was no violation of his rights in the act of taking the papers in question, and said papers were competent and admissible as evidence not of any particular act cr acts of gambling but of the charge made against him, namely, that he was a known gambler.

In the case of Adams v. New York, 192 U. S. 585 [48 L. Ed. 575; 24 Sup. Ct. 372], it is held:

‘‘ The fact that papers, which are pertinent to the issue, may have been illegally taken from the possession of the party against whom they are offered is not a valid objection to their admissibility. The court considera the competency of the evidence and not the method by which it was obtained.”

It will be noted that the papera referred to had been illegally taken from the possession of the party and the court held that even so, it considered only the competency of the evidence and not the method by which it was obtained. It appears that the papers objected to as evidence by counsel for Adams were taken at the time of his arrest and “had no relation whatsoever to the game of policy” which he was prosecuted for playing or operating. It seems from reading the opinion in the case that there was no exception taken to the admission of the policy slips and policy paraphernalia taken at the time of the arrest. The holding of the court with reference to private papers taken for cibly from the accused leaves no doubt as to its view on the admissibility of the papers directly connected with the crime charged in the indictment.

This Adams case was distinguished in a later case by the Supreme Court of the United States, where it was held:

“While an incidental seizure of incriminating papers made in the execution of a legal warrant, and their use as evidence may he justified, and a collateral issue will not be raised to ascertain the source of competent evidence. Adams v. New York, 192 U. S., 585, that rule does not jusify the retention of letters seized in violation of the protection given by the Fourth Amendment where an application im the cause for their return has been made by the accused before trial.” Weeks v. United States, 232 U. S. 383 [58 L. Ed. 652; 34 Sup. Ct. 341].

It will be noted that both the Adams and 'Weeks eastes have to do with private, papers, and it is the taking of such papers not bearing directly upon the crime that is discussed and considered. The conclusion must be drawn from, these two cases that they leave no room for doubt as¡ to the admissibility of the incriminating papers relating to the offense, taken from Hirsch’s desk at the time of his arrest.

The main evidence, however, upon the question of his being a known gambler, was the oral testimony of the witnesses called by the prosecution, who were members of the police department. This brings us to a consideration of the second error complained of for which reversal is asked, i. e., that this evidence was insufficient for the reason that it was confined to a class of persons and therefore can not be received as evidence of general reputation. Gambling is generally recognized and legislated against as a crime in all cities, and it is peculiarly within the province of the police department and its members to know where and by whom gambling is being conducted and carried on. The officers called in this ease, upon direct examination testified unequivocally that the defendant was known to them as a gambler, and upon cross-examination stated that they had heard others so speak of him, ¡although it is true that all of thtem testified that “the others” who had so spoken were mainly members of the police force or men connected with it in some capacity. The fact that the source of evidence was thus confined to a class may have affected its weight as showing the general reputation of the accused, but such fact does not affect the admissibility of the evidence. The accused called no witness to contradict this in any way and offered no evidence to show that he was not known as a gambler. No one came forward to testify as to that on Ms behalf. ITe subpoenaed no "witnesses; offered no evidence to show by any one of Ms numerous acquaintances in the city of Ms residence that he was not known as a gajmbler or that he was a follower of any vocation other than that of gambling. In the absence of any such evidence, that of the witnesses produced on behalf of the state remained unchallenged and was sufficient, in our opinion, to warrant the trial judge in making a finding thereon against the defendant.

We find no error in the record of the proceedings of the trial court, and the judgment of the common pleas court in affirming the municipal court will be affirmed.

Jones and Gorman, JJ., concur.


author: JONES (O. B.), J.

text:
    CONTRACTS — ERROR—REFERENCE.
    [Hamilton (1st) Court of Appeals,
    August, 1913.]
    Swing, Jones and Jones, JJ.

      Cincinnati & E. Elec. Ry. v. Bruno Ritty.
    1. Judgment Based on Referee’s Report Treated as Entirety.
    In reviewing a judgment which in the court below was based on the report of a referee, the judgment will be treated as an entirety and modified or reversed only in the event of a finding that it is manifestly against the weight of the evidence.
    2. Good Fortune of Contractor in Having Part of His Work Done Without Cost.
    "When the contractor for a railway “fill” has the good fortune to have a part of his work done for him without cost by the dumping of waste from excavations being made by the municipality, his claim that he should receive the benefit of his good luck in his settlement with the company is at least as strong as the opposing claim that the benefit should revert to the company.
    Error.

      Chas. M. Leslie and Dinsmore & S'hohl, for plaintiff in error.

      Waite & Scindel, for defendant in error.

       Affirmed, no op., Cincinnati & E. Ry. v. Ritty, 92 O. S. 522.

   JONES (O. B.), J.

This was an action, below brought by the contractor for the construction of a traction railway known as the Cincinnati & Eastern Railway, under a contract which provided a price per lineal foot for the complete construction and provided certain rates for work to he done not included under this lineal foot rate. By consent of the parties it was referred by the court’ to a referee to take the testimony and report same to the court with his 'conclusions on the law and facts' involved in the issue, as provided in Sec. 11475 G. C., et seq.

The referee’s, report' is very full as t’o all the matters in issue, and it is admitted by counsel upon both sides that his findings of fact on the evidence have the effect of a> special verdict as provided in Sec. 11480 G. C., and .has. been decided in Lawson v. Bissel, 7 Ohio St. 129, 133. And counsel for plaintiff in error admit that the burden is upon them to show his findings of fact are against the decided weight of the evidence.

There is a difference between counsel, however, as tp whether ibis court in reviewing tbe judgment of the court below should treat the judgment as an entirety, and in order to review it consider all of the items of the contract which were controverted before tbe referee, or consider only matters that are specially drawn to tbe attention of the court here by the plaintiff in error and which of course are the matters which were found against plaintiff in error by the court below, plaintiff in error making this contention because no cross-petition in error has been filed on tbe part of tbe defendant in error.

Tbe court is of the opinion that the judgment below should be treated .as a.n entirety and should be modified or reversed by tills .court only in tbe event of its finding that this judgment is manifestly against the weight of the evidence. In order to determine this question, however, it! has been necessary to go over tbe whole record of the ease, which consists of a very large amount of testimony and exhibits. This labor of tbe court has been materially lightened by the very able oral arguments made by counsel, and tbeir full, detailed and exhaustive briefs in which they give special attention to the parts of the record relied upon.

The claim of plaintiff as set out in the petition is made out imder eighteen different headings of items, some of which cover many distinct subjects. Plaintiff in error relies particularly upon errors claimed to have been made with reference to five of these items and the claims thereunder. It is however hardly necessary to discuss in detail these claims although the court has given careful attention to all of them. At the trial before the referee, counsel for plaintiff claimed to have shown him to be entitled to a judgment for $67,607.84. The referee in his report took np these items in detail and discussed them separately, resulting in an allowance of $32,905.13. This report on being before the superior court was reviewed by it and further allowance was made to the defendant below on an item for overhaul, under article 31 of the contract, between stations 717 and 750, for which a reduction of $1,100.88 was made, and it also allowed a reduction for 10,000 yards of fill which was estimated to be the amount of material furnished by the water works trustees, being muck taken out of its tunnels and placed by them in the fill as being the most convenient place to waste it. An allowance of $2,500 was given to the defendant for this. This fill was part of the work included to be dome by plaintiff for which be was to receive 25 cents per yard, and he claims that if he had the good fortune to have a stranger volunteer to make part of the fill for him that he should receive the benefit of such work, while the railway company contends that he should only be paid for what he himself does. The referee took the former view of 'the matter, and the court in passing upon Ms report took the latter. It seems to us that the argument of plaintiff is equally strong with that of the defendant, but as there is no cross-petition in error we are not disposed to change the judgment arrived at in that respect, but think that it may be considered in a way in passing upon other errors that are being urged.

The first claim that is urged by plaintiff in error, being 404 lineal feet of track on a switch at a point called Seven Mile, near New Richmond, wMch was not ballasted, is one which we think has merit. A deduction is claimed a,t 15 cents per foot as the value of ballasting. We think that the testimony fails to show that tMs ballasting was ever done by the contractor, and therefore find that a deduction of $60.60 should be allowed upon that item.

Another error .seems to have crept in and was: overlooked by the court below in making the final figures of the judgment. In the petition in setting out the items of .account, credit was given to the company, for payments, by cash $116,600, and by order to insurance company $600; making together a total credit of $117,200. In deducting the credits from the amount found due the referee overlooked this credit of $600 and deducted only-cash payment of $116,600 instead of total credits of $117,200.' This seems to have been overlooked by the parties in preparing the entry by the court and was discovered after the case came into this court. This allowance of $600 should also be made.

Considerable argument was devoted to the question of gravel overhaul .account. A question was raised as to whether the Avey gravel pit, which was tendered to the contractor by the company, was in fact a gravel pit and came within the terms of the contract requiring one to be furnished in Clermont county. The referee in addition to hearing the witnesses direct had the additional advantage of - being taken out on the line to see this so-called gravel pit, and we believe his decision as to the amount allowed for gravel over haul was extremely favorable to the defendant below. We also think that the allowance made by the referee for the work performed by the company in completing the track laying and ballasting was rather liberal to the defendant when it is considered that a large part of the amount claimed was for the cost of changing the gauge of the track from the standard gauge of four feet eight and a half inches to the Cincinnati gauge of five feet two and a half inches.

There is some controversy between the parties in the matter of excavation for the car bam. This was work that was done by the contractor outside of the general contract. It is clear that a contract was made for this work,, the only question being whether it should he paid for by the yard under the prices fixed by the general contract or whether, as claimed by the president of the railway company, .a special price of $5,000 had been agreed upon for the entire work. It was of course incumbent upon the defendant to prove this special price, .and we think they failed in that proof, but that the work was to be paid for according to the general prices for thie contract.

Arguments were also made as to the binding force of the engineer’s estimate. The contract providing for partial estimates at intervals as the work progressed seems not to have been lu any way followed during the progress of the work, and no final estimate was made on the completion of the work in the usual manner by the engineer in the capacity of a referee or arbitrator, as defendant claims he should be considered. On the contrary, the president of the defendant' company seems to have taken the matter out of the engineer’s hands, and what is termed a final estimate was made by the engineer under his direction. We do not think, therefore, under the cases cited and the terms of the contract, that the contractor is bound by this estimate.

Considering, therefore, the whole record, and the arguments made pro and con as t'o the different controverted items, the court is of the opinion that the judgment below should be modified and the amount thereof be reduced by deducting therefrom the sum of six hundred and sixty and 60-100 ($660.60) dollars. With that modification, it should stand.


author: ALLREAD, J.

text:
    WILLS.
    [Champaign (2nd) Court of Appeals,
    June 8, 1915.]
    Allread, Femeding and Kunkle, JJ.
    Hester A. McCrea v. John W. McCrea.
    Devise to “Heirs of His Body” Enlarged by Addition of Words “in Fee Simple.”
    A devise to my son George “during his natural lifetime' only, and at his death to the heirs of his body in fee simple,” the words “in fee simple” are inconsistent with the preceding limitation “to the heirs of his body” and have the effect of enlarging the grant to one of fee simple in the heirs of the body of George, who therefore take by purchase, the estate in remainder becoming operative after the death of George and when his heirs are ascertainable.
    Error :

      J. E. Bowman, for plaintiff in error.

      J. Z>. Johnson and Beaton & Bodey, for defendant in error.
   ALLREAD, J.

This action involves a construction of the following clause of the will of Wallace McCrea:

“All the rest and residue of said real estate now owned by me, the same being about 148 acres, I bequeath to my son, George McCrea, during his natural lifetime only, and at his death to the heirs of his body in fee simple. The above bequest of a life estate to my son, George McCtae, in the 148 acres of land is subject to the further provision that he is to pay to my granddaughter, Bell Pratt, the sum of $650.00 in one and two years after my death. ’ ’

George McCrea, to whom the life estate was devised, survived the testator. George had two children, John and Mary, both of whom were living when the will was executed and both of whom survived the testator.

Mary died in the lifetime of her father, unmarried and without issue, but leaving a will devising her estate to her mother, Hester A. McCrea.

John survived the father and claims the whole estate as “heir.”

Hester claims one-half of the estate under the devise from Mary upon the theory that Mary had a vested interest.

The case presents a very interesting question and has been fully and ably presented by counsel both orally and in written briefs.

We have quoted the devise at large because of the provision charging George with a certain payment to Belle Pratt, the representative of a deceased daughter of the testator. This charge was, however, only against George and while it might tend to enlarge his estate in case the provisions were doubtful, we do not see how it could enlarge the remainder.

We think, therefore, the final construction of the will rests upon the following words:

“I bequeath to my son George McCrea during his natural lifetime only, and at his death to the heirs of his body in fee simple. ’ ’

Counsel for plaintiff in error contend that the words “heirs of his body in fee simple,” creates a vested remainder in fee in the children of George.

The effect to be given the words “in fee simple” is the turning point. For without such added words, the term “heirs of his body” would be easy of definition. Upon examination of authorities, we find that the proposition is generally accepted that in a devise to “heirs” or “heirs of the body” where there are superadded words creating a fresh limitation, the “heirs” take not by way of limitation, but by way of purchase. The superadded words in such ease indicate an intention not to use “heirs of the body” as words of limitation, but, in the language of Mr. Justice Swayne in Daniel v. Whartenby, 84 U. S. (17 Wall.) 639, [21 L. Ed. 661], to make the issue, “the springhead of a new and independent stream of descent. ’ ’

In our own state the superadded words to have such effect must be wholly inconsistent with the preceding limitation “heirs of the body.” The use of the words “heirs and assigns” is not sufficient. See Harkness v. Corning, 24 Ohio St. 416, 425, and authorities cited.

Still we believe that the words “in fee simple” are broader than the general words “heirs and assigns” and are inconsistent with the preceding limitation “to the heirs of his body,” and have the effect of enlarging the grant to one of fee simple in the “heirs of the body” of George McCrea who therefore, take.by purchase. Timanns v. Drugan, 43 Md. 402; Stephen-Ancrum, 28 S. C. 486 [6 S. E. 305; 13 Am. St. 698] ; Stephenson v. Hagan, 54 Ky. (15 B. Monroe) 282; Read v. Fogg, 60 Me. 479; 4 Kent. Com. 221; DeVaughn v. Hutchinson, 165 U. S. 566 [ 41 L. Ed. 827; 17 Sup. Ct, 461]; Tanner v. Livingston, 12 Wendell (N. Y.) 83; Heard v. Horton, 1 Den. (N. Y.) 165, [43 Am. Dec. 659].

We conclude, therefore, that the words “heirs of his body” as employed in the creation of the remainder are used as words of purchase and are mere designatio personarum.

It does not, however, follow as a necessary result that “heirs of the body” means the children living at testator’s death. This becomes a question of construction. We must, therefore, look to the provisions of the will to determine whether the testator meant “children” in its broad sense or whether he meant “heirs” in a legal sense.

Counsel for plaintiff in error rely upon the case of Linton v. Laycock, 33 Ohio St. 128, but it will be observed that in that case the court had before it a devise to “children” and not a devise to “heirs of the body.” There is a vital difference between the word “children” and the words “heirs of the body.” When a testator refers to “children,” he is presumed to contemplate those who stand in that relation at the time when the will takes effect. The term children includes the offsprings of living as well- as deceased parents. The words “heirs” in a legal sense and prima fame in popular acceptation means the legal representatives of a deceased ancestor. The term “heirs” is a technical word and carries its legal acceptation unless a different intention appears from other parts of the will.

When, therefore, the testator in the case at bar used the words “heirs of his body” he is presumed to have intended those who would stand in that relationship at the death of his son, George McCrea, for the maxim “nemo est haeres viventis” would eontral.

In the case of Bunnell v. Evans, 26 Ohio St. 409; King v. Beck, 15 Ohio, 559, and Poor v. Hart, 21 Dec. 260 (11 N. S. 49); affirmed, Hart v. Poor, 84 Ohio St. 489, the word “heirs” was held to mean “children” because of other reference in the wills indicating such intention. It was, however, remarked by Eead, J., in the case of King v. Peck in respect to the meaning of the word “heir” 'that: ”A mere presumed intention will not control its legal signification and operation.”

Eeference is also made by counsel for plaintiff in error to the case of Kuster v. Yeoman, 32 O. C. C. 476 (14 N. S. 264) in which the remainder was devised to the lawful heirs of a person living and in which the word “heirs” was held synonymous with children. In that case, however, it was apparent from the will that the estate might have vested in these so-called heirs prior to the death of their father so that the testator must evidently have intended to use the word “heirs” in the place of “children.” Here the estate in remainder was intended to become operative after the death of George and when his heirs were ascertainable. The language employed is entirely reconcilable with the view that the testator meant to use the word “heirs” as applying to those who would stand in that relation at the death of George.

While it may be that the word “heirs” is sometimes used by laymen as synonymous with the children, yet such use of the word is not so general as to affect its prima'facie meaning. Besides, it appears that this will was drawn by a lawyer or at least by some one familiar with legal phrases and this adds to the force of the presumed intention of the testator that the word “heirs” was used in a technical or legal sense.

In the case of Read v. Fogg, supra, Appleton, C. J., makes the following observation which is quite pertinent here:

“By the terms of the deed, a life estate is given to Margarite Read. ‘After her decease’ the remainder ‘goes to her legal heirs.’ No one is the-heir of the living. The heirs are those who shall be such at the decease of the person holding the life estate. They may be different individuals at different periods of time during the continuance of the intermediate estate, as they were in the case under consideration. The remainder, therefore, is contingent. The fee vests when the contingency ceases. ’ ’

Chancellor Kent in his commentaries (Vol. 4, page 208), classifies remainders, contingent or dubious as to the persons who are to take, as follows:

“The fourth class of contingent remainders is where the person to whom the remainder is limited is not ascertained, or not in being. As in the case of the limitation to two persons for life, remainder to the survivor of them; or in the case of a lease to A for life, remainder to the right heirs of B then living. B cannot have heirs while living and if he should not die until after A the remainder is gone, because the particular estate failed before the remainder could pass. ’ ’

We think, however, that the principle underlying the recent case of Barr v. Denny, 79 Ohio St. 358 [87 N. E. 267], as announced in the opinion is conclusive of the case at bar.

It is true that the case of Barr v. Denny, like the cases of Sinton v. Boyd, 19 Ohio St. 30 [2 Am. Rep. 369], and Ritchie v. Johnson, 30 Ohio St. 288, was one where there was no grant except as implied in a direction to distribute, yet the implied devise was merely an indication of testamentary intention. The intention to defer the vesting of the estate because of uncertainty as to the devisees may appear as clearly where the testator grants the remainder to persons whose indentity is uncertain or dubious and capable of ascertainment only at a future time and upon the happening of a future event. Davis, P., in Barr v. Denny, says:

“But if there is a gift over in future after the expiration of an indeterminate estate, not to specified individuals or to a definite class, but to persons not ascertained or not in being at the time of the bequest, the legacy is contingent and does not vest until the time of distribution.”

Additional importance may be,drawn from the reference of Davis, J., in the same opinion to the case of Bigley v. Watson, 98 Tenn. 353 [39 S. W. 525; 38 L. R. A. 679] ; where a devise of realty to a widow for life and at her death to the testator’s heirs, was held to create a contingent remainder, the fee going to such persons only as answered to the description of heirs at law of the tatestor at the widow’s death.

Judge D'avis quotes the following from the Tennessee ease:

“The remainder was contingent, because the testator obviously intended the land to be divided at the death of his widow among such persons as should then sustain to him the relation of heirs at law. The remaindermen are to be ascertained not at his death, but at the death of his widow, or life tenant; and they are to be such persons as would at that time be his ‘heirs at law.’ At his death, when the will took effect, those persons were ‘dubious and uncertain’ and, therefore, the remainder must be contingent.”

See also Weston v .Weston, 38 Ohio St. 473, and Lisle v. Miller, 35 O. C. C. 127, (21 N. S. 317).

The case of Heard v. Horton, supra, may be classed with Kuster v. Yeoman, supra, but at any rate the opinion in Barr v. Denny, should prevail.

We, therefore, reach the conclusion that although the words “heirs of his body in fee simple” as appearing in the will under consideration are held to be words of purchase, yet they were intended to apply to those who answered that description at the death of George, and that the remainder was contingent and did not vest until the death of George. John, therefore, being the only person who answered the description of “heirs” at the time the estate vested, takes the entire estate.

It therefore follows that the judgment of - the eourt of common pleas should be affirmed.

Femeding and Kunkle, JJ., concur.


author: WINCH, J.

text:
    TRUSTS AND TRUSTEES.
    [Cuyahoga (8th) Circuit Court,
    January 26, 1905.]
    Winch, Hale and Marvin, JJ.

       John F. Lieblein v. Jacob Lieblein and Bridget Lieblein.
    Evidence Sufficiently Convincing to Establish Trust in Real Property.
    In an action by a son to establish a trust in property voluntarily conveyed by himself and his sister to his father and by the father conveyed without consideration to the sister, the testimony of the principal parties being in direct conflict, but that of plaintiff consistent and reasonable and supported in important details by the testimony of a disinterested witness, while that of the sister was incredible, given in a manner not inspiring confidence, and was unsupported except by the father who was seventy-eight years old and appeared to be under the domination of his daughter, Held: That the evidence was suf-
    ficiently clear and convincing to establish a trust.

      Doran & McTigJie, for. plaintiff.

      Hart, Canfield <& Crolce, for defendant.

       Affirmed, no op. Lieblein v. Lieblein, 74 Ohio St., 496.

   WINCH, J.

Bridget Lieblien died in 1897 leaving four parcels of real estate and certain money in the bank. Plaintiff is her son; defendant Jacob Lieblein, widower and father of plaintiff; Bridget F. Lieblein is the sister of plaintiff: The brother and sister inherited their mother’s estate, subject to their father’s dower therein.

July, 1898, the son and daughter deeded the real estate to their father; the deeds were absolute upon their face without reservation of any kind, and defendants claim that by said deeds a gift to the father was intended.

Plaintiff claims that as to his interest the deeds, while absolute in form, were intended to vest the title to the property in the father, in trust, to keep the estate intact, manage it, make an advantageous sale to the city for boulevard purposes, if possible, and render to the son his share, in money or lands, at any time upon request, also accounting to him for rents and profits.

The father, after he received said deeds, sold one lot to the city for $2,100, receiving the proceeds thereof, which he turned over to the daughter, and in April, 1901, he deeded the other lots, three in number, to the daughter as a gift to her, as she and the father claim.

Thereupon plaintiff demanded his share of the property and an accounting and upon its being denied him, brought this suit to declare a trust in said premises and for an accounting.

"We have heard the witnesses in this case, it being heard upon appeal, and the law requiring that in such cases the evidence establishing the trust and its terms must be clear and convincing. We have found much difficulty in adjusting the equities between the parties.

There is an irreconcilable conflict between the story told by plaintiff and his witness Bogue, and the story told by the defendants. Both can not be true; one or the other is absolutely false.

The testimony of the plaintiff is consistent and reasonable; many details of it are substantiated by Bogue.

The story told by the defendant sister is incredible; we do not believe it. Her manner on the stand and evasion of questions asked by the court discredit her.

It is with regret that we are compelled to disregard the testimony of the father. He is seventy-eight years old, quite feeble and resides with his daughter, refusing to have anything to do with his son. We think his will is subordinated to hers and his testimony must be weighed in view of his surroundings.

We have concluded to grant the prayer of the petition and order that one-half of the unsold real estate be conveyed to him, subject to the father’s dower interest therein. As to the accounting, plaintiff is entitled to half of the proceeds of the lots sold, less his father’s dower interest therein. We do not think plaintiff has established his right to an accounting of the rents and profits.

Decree may be drawn as indicated. Judgment for plaintiff Hale and Marvin, JJ., concur.


text:
    OFFICE AND OFFICERS — MUNICIPAL CORPORATIONS*
    [Lorain (8tb) Circuit Court,
    October 8, 1904.]
    Hale, Marvin and Winch, JJ.
    Ed Essex v. E. A. Ault.
    1. Chief of Volunteer Fire Department Held Officer.
    The chief of a volunteer fire department elected by the city council under an ordinance of the city is “an officer” within the meaning of Sec. 8, R. S. (Sec. 8, G. C.) and continues in office until his successor is elected or appointed 'and qualified.
    2. Constitutional.
    Section 167 of the municipal code providing that no fireman serving in the fire department of any city of the state at the time that act went into effect should be removed or reduced in rank or pay except in accordance with the provisions of that act, is constitutional.
   WINCH, J.

This is a proceeding in quo warrmto, brought to determine whether relator or respondent is entitled to fill the offiee of chief of the fire department of the city of Lorain.

From the agreed statement of facts it appears that before the enactment of the new municipal code, the city of Lorain had a volunteer fire department, not under the merit system, the chief officer of which was known as the chief engineer of the fire department, with duties and authority the same as prescribed for the chief of the fire department by the new code. By ordinance 91 it was provided that said chief engineer should be elected annually by the council at the first regular meeting of said council in May of each year, and on May 5, 1902, the relator was so elected by the council; on May 9, 1902, the relator received a certificate from the city clerk of his election “to the office of fire chief for a term of one year,” and on May 13, 1902, qualified and entered upon his duties as such officer.

The new code went into eifect May 4, 1903, but no board of public safety was appointed for the city of Lorain until July 3, 1903, when it was appointed by the Governor and organized within three weeks thereafter.

The city council never passed any ordinance classifying the employees of the fire department, and the board of public safety never conducted any civil service examination, but on December 18, 1903, the mayor, in writing, requested of the board of public safety a list of names from which to select a chief of the fire department, and a list was given him by said board, containing the names of one member of each of the three hose companies who had served longest in the department; this list did not contain relator’s name, but it did contain respondent’s name, and the mayor selected the latter as chief of the fire department, and on December 23, 1903, appointed him as such, the appointment to take eifect January 1, 1904, and certified said appointment to the board of public safety.

Relator was never removed from office in the manner provided in the code, but acted as fire chief until January 1, 1904, on which day respondent qualified as such, entered upon his duties and has been serving as such ever since.

Respondent further claims and introduced evidence for the purpose of proving that on the morning of May 4, 1903, the mayor of the city called relator to his office, told him that his term of office was up, asked him if he would accept a temporary appointment, and being told by relator that he would, thereupon appointed him temporary chief of the fire department. This is denied by relator, and for how long a time he was appointed temporary chief does not appear.

Relator bases his claim to the office upon the fact that he was in office at the time the new code took effect, never was removed as provided by said code and that he is entitled to continue in office until so removed, by virtue of See. 167 of said code, the last paragraph of which, omitting words not relevant to this ease, provides as follows:

“No * * * fireman * * * serving in this * * * fire department of any city of the state at the time this act goes into effect shall be removed or reduced in rank or pay, except in accordance with the provisions of this act. ’ ’

Respondent says, first: that relator was not in office when the code took effect; second, even if he was, the law continuing him in office is unconstitutional; third, even if in office and the law constitutional, the board of public safety never did that which is required to be done to give him the right to claim that the board had appointed him.

As relator makes no claim that the board appointed him, the third contention may be dismissed without further consideration.

He was elected May 5, 1902, under an ordinance which provided that the chief should be elected annually, which would intend that he was elected for one year or until May 5, 1903, or at least until the council on the first Monday of May, 1903 (May 4), should elect his successor; as the council met in the evening, that would be until the evening of May 4, 1903; but when the council met that evening it could not elect a successor to him because the new code had already taken effect, was in force, and took away from the council the right to elect a fire chief.

The council in fact did not attempt to elect a successor to relator.

That relator was an officer whose duties are regulated by law, not under the control or direction of any superior in his department, is admitted by counsel for respondent. If so, he was an “officer” within the purview of Sec. 8, Rev. Stat., which provides:

“Any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the Constitution or laws.”

Not having otherwise provided for the office of relator, and no successor having been elected or appointed before the new code took effect, he was then 'in office and entitled to the benefits of said Sec. 167 if the Same is constitutional, and unless the temporary new appointment testified to, affects the case. This conclusion is in accord with the decision of this court, in the case of State v. Myers, recently decided in Cuyahoga county, and likewise is in accord with Sec. 213 of the municipal code.

As to the temporary appointment claimed to have been made on May 4, 1903: having arrived at the conclusion that no vacancy on that day existed in the office of fire chief, we are unable to see how the mayor, or anybody else, could make an appointment, temporary or otherwise, to an office which was not vacant.

Second. It is claimed that See. 167 of the municipal code, iu so far as it provides'that no officer, etc., serving in the police or fire department of any city of the state at the time the code took effect should be removed, except in accordance with the provisions of the code, is an exercise of appointing power by the general assembly and is in conflict with Art. 2, Sec. 27.

With this contention we can not agree; the reasons against •it are fully stated by Judge Summers in the case of State v. Hall, 25 O. C. C., 361 (2 N. S. 237.).

It follows that relator is entitled to the relief he prays for, and the same is granted.

Hale and Marvin, JJ„ concur.


text:
    ANIMALS — TRIAL.
    [Lorain (8th). Circuit Court,
    November, 1904.]
    Winch, Hale and Marvin, JJ.
    George W. Morton v. Robert Murry.
    1. Failure to Ask Instructions to Disregard Evidence Properly Admitted Waives Error.
    Failure of a defendant to ask the court to instruct the jury to disregard evidence, which was properly admitted as against a co-defendant who was subsequently dropped from the case, waives any error of the court in neglecting to so instruct the jury.
    2. To Recover Damages for Transporting Hogs Infected with Cholera Knowledge of Fact is Necessary to be Proven.
    An action under See. 11373 G. C. for damages sustained by reason of wrongful transportation of hogs infected by cholera, is founded on negligence in which the burden is on plaintiff to prove defendant knowingly transported hogs so affected.
   WINCH, J.

This was an action brought by the defendant in error against plaintiff in error for damages sustained by reason of the wrongful transportation of hogs infected with cholera, whereby defendant in error’s' hogs became infected and some of them died. There was a verdict and judgment for plaintiff below.

Three errors alleged are relied upon for the reversal of this judgment.

1. It is claimed that the verdict is not supported by the evidence. A careful reading of the evidence convinces us that the evidence fully sustains the verdict.

2. There were two defendants in the original action: Morton, plaintiff in error, who owned and transported the hogs, and Enauss, who owned the farm adjoining defendant in error’s to which the hogs were transported. During the trial of the case testimony was admitted as to the admissions of Enauss; these were properly admitted as against him, he being a defendant ; they were not admissible against Morton.

The court in its charge directed a verdiet in favor of Enauss and he was thereby let out of the case, and properly. But the court neglected to caution the jury as to the inadmissibility of Knauss’ admissions as against Morton. Had request to so charge been made, it would have been error to have refused it, but as no such request was made, although the court inquired of defendant’s counsel if further requests were desired, we are inclined to rule there was no error herein.

Certainly there was no error in the original admission of the evidence.

3. We think the charge fair and very favorable to defendant below. The construction given by the court of the statute, Sec. 4211-6 and 4211-7, R. S. (Secs. 11373 G. C.), was all that the defendants were entitled to.

The court held that the action was brought under the statute, and was founded upon the negligence of the defendant, and held that to recover under the statute the plaintiff must prove not only that the defendant transported hogs infected with cholera, whereby the same was communicated to plaintiff’s hogs to his damage, but that the plaintiff must show that the defendant knew his hogs were so infected at the time he transported them. We find no error in the charge.

Judgment affirmed.

Hale and Marvin, JJ., concur.


text:
    BUILDINGS — CONTRACTS.
    [Hamilton (1st) Court of Appeals,
    June 1, 1915.]
    Jones, Jones and Gorman. JJ.

      State ex rel. Charles F. Waltz v. James A. Green et al.
    1. Building Commission Governed by Regulations as to Specifications and Lowest Bid.
    A building commission, constituted under the provisions of'Sec. 2333 G. C., is by virtue of the terms of Sec. 2338 G. C. governed by the provisions of Sec. 2343 G. C., requiring accurate and complete plans and specifications, and also by tbe provisions of Sec. 2355 G. C. that such contract shall be awarded to the person who offers to perform the labor and furnish the materials .at the lowest price.
    2. Alternative Bidding Not Contrary to Public Policy.
    Plans and specifications which provide in the alternative• for different materials and methods of construction, and are full, accurate and complete as to each alternative in accordance with the requirements of Sec. '2343 G. C. and afford the opportunity for full competition as to each alternative, are valid; and an award to the lowest bidder on such alternatives as may be finally adopted, after the bids have been opened and considered, will be sustained.
    Error.

      Kinkead <& Rogers and Galvin & Galvin, for plaintiff in error.

      John V. Campbell and Chas. A. Groom, Pros: Attys., for Court House Building Commission.

      Pogue, lloffhcimer & Pogue, for the Charles McCaul Co.

      Affirming State v. Green. Motion to certify overruled June 4, 1915, for the reason that no error has intervened, the question involved, however, being one of public interest, State v. Green, 60 Bull. 272.

   JONES (O. B.), J.

This is a proceeding in error seeking the reversal of a judgment rendered by the Superior Court of Cincinnati. The action below was brought by relator as a taxpayer to enjoin the defendants, constituting a building commission, and the Charles McCaul Co., as contractor, from proceeding to carry out the contract which has • been entered into between them for the construction of a new court house for' Hamilton county, Ohio. This contract was alleged by plaintiff’s petition to be illegal for the reason that the court house building commission had failed in certain respects to comply with the statutes and particularly in the plans and specifications and in the forms and character of bids received.

Issue was taken by defendants, two separate answers being filed, one by the members of the court house building commission and one by the Charles McCaul Co. These answers alleged the observance in every respect of all the requirements, óf the statutes in regard to the proceedings necessary for the letting of the contract, and charged that the relator was not prosecuting the action in good faith as a taxpayer, and that he was' guilty of certain acts constituting laches and estoppel, in that he had known of all proceedings taken, and had not instituted suit until after the contract had been signed and the work begun.

The case was heard on the evidence and the law, and the court rendered its decision in favor of the defendants, finding that the contract is legal and valid and that the petition should be dismissed. Upon the request of relator the court separately stated its conclusions of fact and conclusions of law, and thereupon final judgment was entered for the defendants, dismissing the petition; to which and to certain conclusions of law due exceptions were taken by plaintiff. No bill of exceptions containing the evidence was filed.

The case is here for review, therefore, only .upon the- correctness of the conclusions of law to which plaintiff excepted.

The findings of the trial court that plaintiff prosecuted the action in good faith as a taxpayer and that he is not concluded either under the doctrine of estoppel or by laches, although questioned by counsel for defendants in their argument, can not be considered by us.

The first question presented is whether the amendment made in the language of that part of the law found in Sec. 2338 G. C., which was inserted in the enactment of the G. C. of Ohio, had the effect to make the building commission subject to all the sections of that chapter which are applicable to court houses and jails and particularly to the provisions of Secs. 2343 and 2355.

Section 2338, in which the words so added in the codification are italicized below, is as follows:

"After adopting plans, specifications and estimates, the commission shall invite bids and award contracts for the building and for furnishing, heating, lighting and ventilating it, and for the sewerage thereof. Until the building is completed and accepted, by the building commission, it may determine all questions connected therewith and shall be governed by the provisions of this chapter relating to the erection of publie buildings of the county.”

The General Code of Ohio is not merely the work of a codifying commission, but it is also the enactment of the general assembly. Such important language could not have been added by inadvertence or without purpose. Nor is it inconsistent with the preceding words of the .clause of which it has been made a part. The power granted the building commission to determine all questions connected with the building of the court house and jail is simply thereby modified by the requirements of such provisions of the chapter as are applicable thereto. The fact that certain sections of this chapter relate exclusively to bridges, infirmaries or ehildi*en’s homes only renders those particular sections inapplicable, and is no argument against the controlling force of all provisions which are plainly applicable. . As has been noticed in the opinion of the trial court, the words used by Davis, J., in Mackenzie v. State, 76 Ohio St. 369, 373 [81 N. E. 638], •* * * “It was the easiest thing possible, if it were intended that this building commission should be controlled by the existing law to have so said without otherwise defining the powers and duties of the commission,” might well have offered a suggestion to the codifying commission and the General Assembly for the change so made in the law.

The effect of this change is recognized in State v. Cass, 32 O. C. C. 208 (13 N. S. 449) , and the trial court here was right in holding that the words added must be deemed effective.

The main contention of plaintiff in error is that the members of the building commission were so limited by the terms of Secs. 2343 and 2355 G. C. that it was illegal for them to prepare plans and specifications for more than one class of material or one mode of construction, in any of the elements that enter into the building of the new court house, or to receive proposals under such so-called alternative plans. Plans and specifications were made and bids taken in the alternative on different kinds of granite, limestone and sandstone for stone work; on different kinds of reinforced concrete work, and sundry other work and materials and for the inclusion or the exclusion of the demolition of the present court house and jail on the site of the new structure as part of the masonry.

No claim is made that the plans and specifications were not sufficiently full, accurate, complete and detailed in all respects as required by the law, as to each and every one of these soealled alternates. Nor was it claimed that full opportunity had not been given to all persons to bid separately for labor and materials on each or all of said alternates, nor that the Charles McCaul Co. was not the lowest bidder and lower than the separate bids therefor in the aggregate on the plan under which the award was made.

The objection to the contract therefore resolves itself down to plaintiff’s claim that Sec. 2343 requires that all matters relating to the contract must be so determined in advance that only one possible plan can be considered or bid upon, so that when the bids are received it only becomes a matter of mathematical palculation to determine the lowest bidder and make the award to him.

Counsel for plaintiff contend that such a construction should obtain in order to interpose a bar to any possibility for graft or corruption. They disavow any charge of corruption in this case and admit the high character and honesty of purpose of all of the defendants, but at the same time claim that a different construction of the statute would, through the guise of a wide official discretion, offer an opportunity for dishonest officials by improper manipulation to defraud the taxpayers.

Counsel rely largely upon the case of State v. McKenzie, 29 O. C. C. 115 (9 N. S. 105), and adopt the reasoning of the court’s opinion there. The judgment of the circuit court in that ease was reversed in Mackenzie v. State, 76 Ohio St. 369 [81 N. E. 638]. And while-the Supreme Court did not base its reversal upon the incorrectness of the decision of the circuit court as to the legality of alternative bids, it in no manner approved that decision. It should also be observed that the circuit court in that case distinctly held that, where the material is controlled by a patent or other monopoly, alternative varieties of material should be specified in order to open the way for actual competition. The argument of that court against alternative bidding as a question of public policy is in our judgment ably refuted in the opinion of Cooley, J., in Attorney-General v. Detroit, 26 Mich. 263. In Emmert v. Elyria, 74 Ohio St. 185 [78 N. E. 269], bids for the improvement of a street by paving with brick, asphalt or other material in the alternative, were held within the requirement of the statute. Many other decisions sustaining alternate bids are cited in the opinion of the trial court.

The argument of counsel for plaintiff is practically that such a method of alternative bidding is contrary to the statute because against public policy. The words of the statute itself do not prohibit such bidding nor make a single plan imperative. They make certain requirements as to fullness, accuracy and details of the plans, bills, specifications and estimates. It is eon ceded all of these requirements have been met as to each alternate. The fact that more than one alternate in different materials and methods of constructions is furnished can not interfere with the others, so long as each offers the completeness required by the statute and affords the opportunity for unhampered competition as to each, nor can it in any way be deemed illegal as not complying with the statute. It offers more than is required, not less. Any one desiring to bid on a single plan may do so, and is simply offered several from which he may select the one, or as many as he may desire.

If not found contrary to the words of the statute, why should it be deemed against publie policy. The acts of the general assembly certainly may be said to disclose publie policy. The last paragraph of the very section which counsel for plain-: tiff claim has been violated, Sec. 2343 G. C., provides that nothing in the section shall prevent -the commissioners from receiving alternate bids on iron or reinforced concrete substructures for bridges for which they themselves may furnish the necessary plans and specifications. Section 2345 G. C. authorizes alternate bidding on bridge construction on plans and specifications furnished by the bidders, and under Sec. 2344, plans may be prepared or not by the county at the discretion of the commissioners.

Sections 2362, 2363 and 2364 G. C., which were admittedly followed by the court house building commissioners in this ease, also provide a method for alternate bidding by allowing distinct and separate "bids for materials and labor for each separate and distinct trade or kind of mechanical labor, employment or business entering into the improvement, while at the same time receiving lump bids for the entire structure. It must therefore be apparent that the alternate bids complained of in this ease are neither inhibited by statute nor contrary to public policy and that the contract thereunder is a legal and válid contract.

The opinion of the trial court furnishes a full and complete discussion of the questions involved and the authorities relied on make it unnecessary to further discuss the interesting questions raised and the many cases cited in the oral arguments and exhaustive briefs of counsel on both sides.

The judgment below is affirmed.

Jones, E. H., and Gorman, JJ., concur.


author: SHOHL, J.

text:
    UNFAIR COMPETITION.
    [Hamilton (1st) Court of Appeals,
    June 23, 1919.]
    Shohl, Hamilton and Cushing, JJ.
    Louis Buob and Theodore Scheu v. Brown Carriage Co. et al.
    1. Manufacturer Copyrighting Catalog Containing Measurement Instructions Obtains No Exclusive Rights.
    A manufacturer of unpatented articles having devised a method of making measurements and copyrighted a catalogue, circular or advertisement containing a diagram giving instructions to prospective customers as to the manner of taking such measurements, does not thereby acquire the exclusive right to use the methods set forth in the copyrighted publication.
    2. Injunction Against Use of Copyright Design Denied Unless Passing Goods as Those of Complainant.
    In an action for unfair competition, one using such method will not be enjoined in the absence of allegations that he was passing off or attempting to pass oft on the public his goods or business as the goods or business of the plaintiff.
    Demurrer to petition on appeal.

      Galvin & Bauer, for plaintiffs.

      Froome Morris, for defendants.
   SHOHL, J.

The plaintiffs (Louis Buob and Theodore Scheu, a partnership under the name of Buob & Scheu,) are manufacturers of buggy tops, automobile tops and automobile supplies and the defendants (Brown Carriage Co., Wheel Top & Hdw. Co., Split Hickory & Wheel Top Co. and W. W. Buob) are carrying on a similar business. Plaintiffs allege that in the conduct of their business, they devised, invented and prepared a certain method or form for a quick and accurate measurement of an auto top cover, and caused a drawing thereof to be registered for copyright; they have also invented, prepared and devised a drawing known as “Auto Top Cover-Touring Car” and have registered the same in the registry of copyrights of the United States; they have also prepared a drawing known as an “ order chart,” likewise registered and copyrighted; they have expended large sums of money in the development of the designs and drawings, and by .reason thereof they have acquired quite a reputation among owners, dealers and repairers of automobiles throughout the United States, Canada and Europe, resulting in large profits. The petition alleges that the defendants are competitors of plaintiffs, and did copy and appropriate the said devices and drawings, and have issued advertising matter containing cuts and drawings which are similar and flagrant imitation of those of plaintiffs, copies of which are attached to the petition as exhibits; defendants have sold and are selling large quantities of goods and merchandise by the use of said device, which it is alleged constitutes an infringement of plaintiff’s trade-marks and copyrighted cuts, to plaintiff’s great damage; defendants have diverted from the plaintiffs large sources of revenue, which they would otherwise have obtained. Irreparable damage is alleged.

It is admitted that in so far as any action relating to right under the copyright laws of the United States is concerned, the federal courts have exclusive jurisdiction. See 9 Cyc. 960. The basis of this action is said to be unfair competition.

Unfair competition, in its essence, consists in passing off, or attempting to pass off, on the public, the goods or business of one person as the goods or business of another. 28 A. & E. Encyc. 2nd Ed. 409 ; 38 Cyc. 780; Lippman v. Martin, 5 N. P. 120 (8 Dec. 485) ; Safe-Cabinet Co. v. Globe-Wernicke Co. 34 O. C. C. 528 (19 N. S. 31; 3 App 24), modified and affirmed, Glob Wernick Co. v. Safe-Cabinet Co. 92 Ohio St. 532 [112 N. E. 478]; Drake Medicine Co. v. Glessner, 68 Ohio St. 337 [67 N. E. 722]; French Bros. Dairy Co. v. Giacin, 31 O. C. C. 395 (12 N. S. 134). Affirmed Giacin v. French Bros. Dairy Co. 84 Ohio St. 483 [95 N. E. 1148].

In the ease at bar it is not charged that there was anything done which would enable the public to confuse the goods of the plaintiffs with those of the defendants. The design is not used by plaintiffs to identify the goods as those of plaintiffs’ manufacture. The real matter of complaint is not that defendants have copied plaintiffs’ design, but that the defendants in the effort to sell their goods have adopted the same method pursued by plaintiffs to carry out their sales, and to enable purchasers to specify with particularity the goods which they de sire. The similarity is one of method. The article which plaintiffs sell is not patented. They have no monopoly on the manufacture of auto tops. The principle involved is well stated by Lacombe, J., in the case of the National Cloak & Suit Co. v. Standard Mail Order Co. 191 Fed. 528, as follows:

"I am entirely in accord with defendant in the proposition that a manufacturer of unpatented articles can not practically monopolize their sale by copyrighting a catalogue containing illustrations of them. From a comparison of the illustrations upon which complainant relies, the fair inference would seem to be that defendant makes some garments which are identical with complainant’s and offers them for sale. If this be so, he can not be deprived of the right to issue a catalogue of the garments he offers, with illustrations showing what they took like, provided that his illustrations are drawn from garments themselves, and not copied from complainant’s copyrighted catalogue.”

In the case of the S. S. White Dental Co. v. Sibley, 38 Fed. 751, plaintiff’s assignor devised and copyrighted a chart showing illustrated sections of teeth in connection with numbers, so arranged as to convey information respecting their character, size and shape and having thereon certain auxiliarv lines and figures. This conveyed information that could not be obtained by any old method of illustration. Defendant made a similar chart in which his teeth were illustrated in the same manner as complainant’s. It was held that the plaintiff’s copyright did not cover the plan or arrangement shown by the chart and entitled him to no relief.

In Burk v. Burial Association, 3 U. S. District Court, Hawaii, 388, complainant, who had devised a plan and scheme for a burial association and had copyrighted the book setting forth his plan, was held not entitled to the exclusive right to use the methods set forth in the copyrighted publication. The decision follows the leading case of Baker v. Selden, 101 U. S. 99 [25 L. Ed. 841], where the distinction is made between patent lights and the rights of a person securing a copyright. The copyright gives no ownership in the process described in the book, but gives the owner the exclusive right to multiply and dispose of copies. See also Hamilton Mfg. Co. v. Tubbs Mfg. Co. 216 Fed. 401, 411; Ehret v. Pierce, 10 Fed. 553.

The law encourages competition and the up-to-date merchant is bound to advertise his goods in such a manner that the public can buy them. If he shows a picture of his goods in an advertisement or circular, he can not prevent others from doing the same with their goods. If he makes clothes for men or women, he has a right to show them by diagram how they can order their clothes so they will fit. The giving of directions to a purchaser how to make his measurements before stating the size automobile top he wishes, does not constitute palming off of his goods as those of another merely because he uses the same method in having the automobile measured.

The allegations of the petition do not state a cause of unfair competition and the demurrer is sustained.

Hamilton, J., concurs.

Cushing, J., not participating.


author: JONES, J.

text:
    EXECUTORS AND ADMINISTRATORS.
    [Hamilton (1st) Court of Appeals,
    July 9, 1917.]
    Jones, Gorman and Hamilton, JJ.
    DuBrul v. DuBrul et al.
    Son Given No Interest in Father’s Estate Cannot Examine Books with Reference to Distribution.
    Where under the terms of a will general authority is given to the trustees of the estate to make such advancements to any of the sons of testator as may seem wise to said trustees, and one of the five sons is given no interest in the estate of his father and is not entitled to share in its distribution, such son cannot compel the executors to give him a statement of the advancements made to him and to his brothers by his father or permit an examination of decedent’s books to obtain such statement.
    Error to common pleas.

      Charles F. Voile, for plaintiff in error.

      Anthony B. Vv.nlap, for defendant in error.
   JONES, J.

The will of Napoleon DuBrul appoints his widow and his son Ernest as executors, and directs the payment of his debts as soon as convenient after his decease. All the rest and residue of the estate is given to his wife and four of his sons in trust, to manage and control during the lifetime of his wife, and out of same to provide for her support.

The third item is as follows:

"Item 3. I authorize and empower my said trustees to make such advancements to my sons, or any of them, as may seem to said trustees to be wise, and as the condition of my estate shall justify; and I hereby direct my trustees to charge each of such sons with the amounts so advanced as part of their several distributive shares of my estate.”

The fourth item directs the trastees upon tne death of his wife to divide his estate into five equal parts, four of which parts are devised and bequeathed to his four sons, Ernest, Davilla, Clarence and Telford, one part to each, “subject however to such advancements as may have been made to them by my trustees as herein provided, or by me.” It also makes provision for the care of the widow or of the issue of any of said four sons, in the event of the death of a son before the death of testator’s wife. It then recites:

“I have made advancements, and may in the future make advancements to some of my sons. The amounts so advanced will be found charged to such sons in my private books, to which they have been transferred from private papers or memoranda, and from the books of the Miller, DuBrul & Peters Mfg. Company, and of the Summerside Poultry Farm.
“I direct and will that my trustees, at the time of the distribution of my estate, as herein provided, shall charge such son or sons in computing his or their distributive shares, with such sum or sums as may respectively be shown by my books, papera, etc., to be due from each, and deduct the same from the share or shares such son or sons would otherwise receive, so that my bounty to each may be exactly equal.”

Then after reciting certain charges and credits as to his son Orville, he provides as follows:

“As I consider that Orville has proved himself so lacking in business judgment as to be incapable of properly handling or earing for any share of my estate that might be coming to him on final distribution, I direct and will that my trustees shall retain in their hands the one-fifth part remaining after distributing the four-fifths as above provided in trust however for the following purposes: to manage, control, and look after said part; to use the income, if any, and the principal, if in their judgment that be proper, to provide suitable support for Nan McDaniels DuBrul, wife of my son, Orville, and their children Napoleon and Marguerite DuBrul, as well as education for said children: and to pay said one-fifth part, less all deductions for advances heretofore made, or hereafter to be made, or as much as may then remain; in equal parts to my said grandchildren Napoleon and Marguerite DuBrul, when the one latest to arrive at legal age shall have reached that age.”

Orville N. DuBrul, now as plaintiff in error, seeks to reverse the judgments of the common pleas and probate courts refusing to require the executors to give him a statement of the advancements made to him and to his brothers by his father and entered by bim in Ms private books, or to permit an examination of decedent’s books to obtain such statement.

Plaintiff in error claims that, regardless of Ms ultimate interest in Ms father’s estate, the trustees are authorized in their discretion to make advancements to him under the provisions of Item 3, and for that reason he is entitled to see or be furnished a statement from the books of decedent. The application was made to the executors, not to the trustees. It is therefore premature at least, as it appears that the estate has not yet been settled by the executors and turned over to the trustees, with whom plaintiff in error would deal if his claim were valid.

But in the opinion of this court the probate court was right in deciding that Orville N. DuBrul has no interest in the estate of his father, Napoleon DuBrul, by the terms of his will, and for that reason he is not entitled as a matter of right to be furnished such a statement or to examine such books. Although the language of Item 3 is sufficiently broad to apply to any of the five sons including Orville, the trustees would not under its terms be justified in making any advancement to him because they would be required to charge the amount so advanced to his distributive share of the estate. Orville has no such distributive share, and they have no authority to make any such, charge against that of Ms wife and children who take the one-fifth part which might otherwise have gone to him.

Plaintiff in error has no interest in the estate of Napoleon DuBrul, and the judgment is therefore affirmed.

Judgment affirmed.

Gorman and Hamilton, JJ., concur.


author: PER CURIAM.

text:
    ATTORNEY AND CLIENT — ERROR.
    Hamilton (1st) Court of Appeals,
    February 4, 1919.]
    Jones, Hamilton and Shohl, JJ.
    Cincinnati Trac. Co. v. Selma Muenchow, as Admrx.
    Counsel May Comment on Failure of Adversary to Call Certain Witnesses.
    Argument to the jury to the effect that counsel for the defendant had failed to produce certain witnesses, at his command but unknown to the speaker, whose testimony had they been called might have had an influence favorable to the plaintiff, is not ground for reversal.

      H. Kenneth Rogers, for plaintiff in error.

      Littleford <& Ballard, for defendant in error.
   PER CURIAM.

The defendant in error recovered a judgment in the court below against the plaintiff in error for causing the death of Gotthelf Muenchow. The sole error complained of is that counsel for plaintiff below was permitted to argue to the jury that they had the right to conclude from the fact that defendant’s conductor had taken the names of twelve witnesses and had only produced four that the evidenec of at least one of the others would have been adverse to the company in one of the issues in the ease.

Counsel had a right to comment upon the failure to produce evidence within the apparent control of the adverse party, and if his argument was illogical it was not the duty of the court to correct him. Thompson, Trials, Secs. 983 and 980. The trial court was correct in refusing to rule as requested by defendant’s counsel.

Judgment is affirmed.

Jones, Hamilton and Shohl, JJ., concur.