author: YOORHEES, J.

text:
    EXECUTORS AND ADMINISTRATORS.
    [Ashland (5th) Circuit Court,
    October Term, 1909.]
    Taggart, Donahue and Voorhees, JJ.

      George A. Ullman, In re.
    1. Duty of Probate Judge to Certify Matters Relating to Administration of Estates Whenever Interested in Results thereof.
    Where a probate judge has any interest whatever in a controversy whether financial or otherwise he is authorized, under Sec. 535 Rev. Stat., to certify the case to the common pleas, either on motion of the party interested or acting sua sponte.

    2. Executor in Management fob Fixed Term Cannot Charge Estate for Valuable Permanent Improvements.
    An executor has authority to make needed repairs on a building specifically devised with the direction to turn the property over to the devisee at any time after one year from the death of the testator, but such repairs should only go to the extent of keeping the property in as good condition as the executor found it.
    3. In Will Contest Executor Entitled to Greater Compensation for Counsel Fees Contingent upon Success of Defense.
    If an executor defends in an action to set the will aside, and the action results in sustaining the will, he may be allowed a reasonable amount for counsel fees in that behalf, and where his contract with counsel was on. the basis of a contingent fee the allowance will be made more liberal because of that fact.
    4. Executor’s Being Experienced in Business Affairs not Ground for Denting Him Counsel.
    The fact that an executor is a man of affairs with business experience and ability does not afford ground for denying to him the aid of the counsel in the settlement of the estate.
    5. Order of Distribution Inoperative "When.
    An order to an executor with reference to the distribution of the fund in his hands should merely direct him to pay it out in accordance with law and the provisions of the will; any further direction as to whom the. fund is to be paid is inoperative and void.
    [Syllabus-by the court.]
    Error to Ashland common pleas court.
    C. H. Workman, W. S. Kerr and G. J. Fry, for the exceptors.
    J, P, Seward and C. P. Winbigler, for executor.

      Affirming and modifying Ullman, In re, 19 Dec. 803.

   YOORHEES, J.

This action had its origin in the probate court of this county, where exceptions were filed to the account of George A. "Oilman, executor of the estate of Mary F. Freer, deceased, and on motions of the parties excepting to said account the probate court certified the account and exceptions thereto to the common pleas court of this county. Error is prosecuted from common pleas to this court.

The first question presented by counsel for plaintiff in error is that the probate court had no authority upon the motion presented to certify the same to the common pleas court, and that by reason thereof the common pleas court acquired no jurisdiction thereof and that any finding and judgment of the common pleas court in relation thereto is erroneous and void, for want of jurisdiction.

We are of the opinion that this objection to the jurisdiction of the common pleas court is not well taken, and that the probate court under the provisions of Sec. 535.Rev. Stat. had authority to certify the same to the common pleas court. A part of the section above referred to is as follows:

“In all other matters and proceedings, pending in any probate court, which would properly be disposed of or decided therein, but in which the probate judge thereof is interested in any manner whatever, as attorney or otherwise, or in which he' is required to be a witness to a will, such probate judge shall, upon the motion of a party interested in such proceedings, or upon his own motion, certify the matters and proceedings to the court of common pleas.”

Counsel for the executor contends that the probate judge must be interested as an heir, or at least have some financial interest in the result of the matter pending in his court, and that mere prejudice and bias on his part would not be sufficient reason, or that any other interest, except a financial interest or as an attorney, would not be a sufficient reason for certifying the cause to the common pleas court. We think it clearly appears here that whenever he has any interest whatever, whether it be financial or otherwise, that the statute authorizes him upon' the motion of the party interested to certify the cause to the common pleas court, or even without such motion if the judge of that court knows that he is interested in the cause, then it is his duty to so certify it sua sponte.

The next contention of counsel for the executor is, that the common pleas court erred in refusing to credit him with the expense of certain repairs that were put upon what is known as the Freer block. The common pleas court in its finding, held that the executor was entitled to credit for all. necessary repairs, to keep and maintain the building in as good condition as it was at the time of the death of his testator, but that he was not warranted in making any permanent improvements upon the property. The Freer block was specifically devised and the testator had the right to turn it over to the devisee any time after a year from the death of the testatrix, and was compelled to turn it over within five years, so that it could not be to the interest of the estate he represented to make any permanent improvements.

The rule of law adopted by the court in the disposition of this exception to the account is, we think, the correct one, but from the evidence in this case we are not authorized in saying that the court-erred in the application of this rule to any one item. It is clearly evident that there were a large number of repairs made upon this building that were in the nature of betterments, or what might be termed “permanent improvements, ’ ’ and not merely the necessary repairs to keep the building in as good condition as he received it. In other words, the repairs are largely in excess of what a tenant for a term, or for life even, would be required to place upon the property in order to protect the remainder-man. From the evidence presented, the common pleas court fairly and reasonably separated and distinguished the repairs for which the executor ought to be allowed credit, from those that he was not authorized to make, and the judgment of the common pleas court in that behalf is affirmed.

The next objection urged upon our attention i§ the claim for additional compensation allowed to the executor. Under the terms of the will the executor was entitled first to 10 per cent of the appraised value of the estate, and for services after one year it was provided by the will that he should have reasonable compensation. The evidence in this ease does not fully disclose what would be reasonable compensation. The executor himself did not testify. His reasons for not testifying are not important in the review of this case, but the fact remains that the court below was wholly without the aid of his testimony in determining the full value of the services he rendered. True, there is some evidence showing the extent of the estate, the different parcels of real estate operated and managed by him, rents collected, etc., but the common pleas court was not otherwise advised as to the time required by the executor in doing and performing these services, so that, its 'estimate of the value of such services was, and is, as fair as any court could make in view of the evidence offered, and perhaps more than this court would allow without specific evidence, directed to the extent and value thereof. The judgment of the court in that behalf is affirmed.

The next contention of counsel for the executor is, that the common pleas court erred in the allowance of credit to this executor for fees paid to attorneys who were employed by him in the settlement of this estate and in the contest of the will. It is insisted, on the other hand, that the executor had no authority to employ counsel or to expend money of the estate in defense of the will, and that therefore the court ought not to have allowed him credit for any fees paid counsel for such services, but with that contention this court does not agree.

It is clearly the law in this state that under ordinary circumstances an executor is not called upon to make such defense, whether he was required to do so in this case is not important; the fact remains that he did defend the will when it was attacked, and as a result thereof the will was sustained, and it is clearly the law of Ohio that if an executor does defend against a contest of a will and such suit results in the sustaining of the will, that he may be allowed a credit of a reasonable amount for counsel fees expended by him in the payment of counsel employed to defend such will, and we think in this particular ease, where this executor was practically a trustee, and clothed with some extraordinary powers in addition to ordinary duties of executor, it was perfectly proper and right for him to intervene and that the benefited parties should have been compelled to contribute to the payment of the expense thereof, either out of the estate generally, or in any other equitable way that the court may direct. True, if the will had been set aside, then the executor would have no funds of the estate in his hands for the payment of sueh expense and he must lose thus amount, unless he contract with his counsel that nothing is to be paM rarrless the will is sustained, and that would be true in this case, notwithstanding it appeared by the terms of the will that he had some powers- in the nature of an additional trust, beyond the ordinary powers and! trust of an executor, for if the will had not been sustained then all’ such provisions would have fallen with it.

i In this particular ease, however, the allowance to the executor generally out of the estate for money paid by him for .attorney fees ini the contest of this will results in placing the entire burden upon the? .residuary legatees. True, it appears that the residuary legatee- is the une most vitally interested in the sustaining of this will, and! it does .(also appear that that residuary legatee, to wit, Ashland county, through its commissioners, failed and neglected t® aid-the estate or encourage1 the executor in making this defense, and their conduct in that behalf does not commend them very favorably to the consideration! of this; (court. Yet, notwithstanding that we do not think it equitably that the* entire costs of this contest should he paid by them, but all the interested! parties should have been compelled to contribute thereto in equitable; proportions, and the executor ought to have intervened with m motion: to that effect in the probate court, before distribution. True,, the expense of attorneys in tbe settlement of an estate must be paid! out, of the residuary fund. It is only to the extraordinary expense® in the-contest of a will that the devisees and legatees under the wiM should, have been compelled to contribute, and we take it from the state of this record that the executor himself was interested in the sustaining of this will financially, as well as otherwise, and that being true the-probate-court or the common pleas court settling this account would mot be required to allow him as a credit the full amount of the attorney fees paid, but might allow him such part and parcel thereof as would seem to be just and equitable.

This court is of the opinion that the fees charged by eaunsel and paid by the executor were not exhorbitant or unreasonable, but, on the contrary, were fair, just and equitable, and particularly is that true in relation to the fees paid for the contest of the will, for, as. we have already stated, counsel might not have received anything at. all for their services in case the will had not been sustained. Therefore, in view of sueh contingency, it is not unreasonable that the amount for which ■counsel would he willing to contract would necessarily be larger than If the fee were to be paid in all events. This record shows that the «contract of one of the counsel at least employed in the contest of the will was made with the understanding that if he was unsuccessful in sustaining the will that nothing was to be paid, if he was successful then the full amount was to be paid.

It is further contended by counsel for the exceptors that this executor being a man of affairs possessing good business ability and experience, ought not to have employed counsel in the settlement of the estate, but that he should have attended to these matters himself and that he was perfectly competent to do so. We think that contention cannot be sustained. New business men are qualified to settle an estate without legal advice, for the settlement of an estate is outside of ordinary business transaction and there are many questions arise that are difficult for lawyers to determine. So that it is only a wise and necessary protection to employ counsel to assist in the settlement of an estate, especially such a one as this. Not only is that true, but the will directs the executor to employ counsel and directs who he shall employ, but it was no longer possible to employ the person designated and therefore the executor was authorized to use his own best judgment in determining who should take the place of counsel designated in the will.

Coming now to the consideration of the. amount allowed by the common pleas court as a credit to this executor for the attorneys’ fees paid by him in the settlement of this estate and in the suit to contest this will, we are of the opinion, from the evidence contained in the record, that the common pleas court erred in fixing the amount thereof and that the amount so fixed by such common pleas court is against the manifest weight of the evidence. We are not unmindful of the fact that whatever is allowed comes out of the residuary fund, and therefore we are not disposed to allow the full amount of these counsel fees, although, as we have heretofore stated, we are of the opinion that they were just and reasonable and we think the executor ought to have credit for a larger sum than that given him by the common pleas court. This residuary legatee will receive from the estate perhaps over $15,000 in money and a farm of nearly a hundred acres, almost within the city of Ashland, and while it is suggested that the appraisement of this farm was about $8,000, and the common pleas court speaks of it as about that, yet we think it clearly evident that the farm is easily worth an amount equal to the amount that will be paid in money, so that it receives something like $30,000 out of the estate, or nearly one-third of the whole. Notwithstanding the commissioners absolutely refused to assist in the defense of the will, they are now willing to take the full benefits, derived from such contest. The fact that the attorney fees for contesting this will cannot now be distributed and assessed against all of the interested parties, as well as this residuary legatee, and that the executor did not attempt to protect himself in that behalf, and the further fact that a portion of these fees should be borne by the executor himself in view of his financial interest in sustaining the will, we have reached the conclusion that the executor should be allowed credit for the further sum of $2,000 to the amount allowed by the common pleas court. That is to say, he will be allowed a further credit of $1,000 additional on the amount paid to Judge McCray, making a total of $2,000 credit to the executor for counsel fees paid to him, and $1,000 credit for attorney-fees paid to Senator Patterson, making a total credit of $2,500 on account of attorney fees paid by the executor to him, and the judgment of the common pleas court upon these exceptions will be modified, so as .to allow such further credits and as so modified will be affirmed.

We also note that the common pleas court ordered and directed the executor to pay the residue of the fund in his hands to the commissioners of Ashland county. We think such an order is not authorized by law, but that it should be an order directed' him to pay the balance of the fund in his hands according to law and the will of Mary F. Freer.

The Supreme Court of Ohio, in the First Nat. Bank of Cadiz v. Beebe, 62 Ohio St. 41 [56 N. E. Rep. 485], announces this rule of law:

“The probate court has not jurisdiction, in making an order of distribution under See. 524 Rev. Stat., to determine the persons to whom distribution is to be made, and the amount going to each, but its power is exhausted in that particular when, upon final settlement of the account of the executor or administrator, it enters a general order of distribution. ’ ’

This, we think, was all the order that the common pleas court should-have made in that behalf and any other or further order would be misleading, inoperative and void, and the judgment in that behalf is modified so as to require the executor to pay the funds in his hands, according to law. In view, however, of the directions of the will of Mary F. Freer, deceased, and with this modification above mentioned, the judgment of the common pleas court is affirmed and cause remanded for execution. Exceptions of all parties are noted.

Taggart and Donahue, JJ.t concur.


source: Caselaw Access Project

author: DUSTIN, J.

license: Public Domain

text:
    CANAL LANDS — DEEDS—PARTIES—QUO WARRANTO.
    [Franklin (2nd) Circuit Court,
    October 12, 1909.]
    Sullivan, Dustin and Allread, JJ.
    State ex rel. Wade H. Ellis, Atty. Gen. v. Cleveland Term. & V. Ry. et al.
    1. Conveyance oe Canal Lands to Cleveland not in Fee Simple.
    Tbe act entitled “An Act to authorize the city of Cleveland to enter upon, and. occupy a part of tbe Ohio canal,” passed April 29, 1872 (69 O. L. 182), does not authorize the conveyance of a fee simple estate by the-governor of Ohio to said city of Cleveland; but only the right to occupy the lands therein described for the purposes specified, or similar purposes.
    2. City not Necessary Party in Quo Warranto to Oust Railway Occupying Canal Lands under Lease from the City.
    In an action in quo warranto, brought by the attorney general against said' railway lessee and its successors and assigns, to oust the same from said premises, the city of Cleveland is not a necessary party. State v. Railway, 53 Ohio St. 189 [41 N. E. Rep. 205], followed.
    [Syllabus by the court.]
    Quo Waeeanto.
    The attorney-general, for the purpose of testing the right of the defendants to occupy a strip of land about three miles long included in that part of the Ohio canal which the city of Cleveland was authorized by the act of April 29, 1872 (69 O. L. 182), to occupy and use for certain purposes, hereinafter set forth, filed his petition in .quo warranto.
    After alleging the corporate existence of defendants, the petition states that, on and prior to April 29, 1872, the state of Ohio was the owner in fee simple of that part of the Ohio canal in the city of Cleveland which is the subject of controversy; that on April 29, 1872, the general assembly passed an act providing “that authority and permission shall be granted, in the manner hereafter stated, to the city of Cleveland to take, enter upon, improve and occupy, as a public highway, or for other purposes, and for laying therein gas and water pipes, and for sewerage purposes, as the city council of said city may determine,” such portion of the Ohio canal as is described in said act, which act provided, among other things that, upon the fulfillment of certain conditions, “thereupon the governor on behalf of the state * * * shall execute and deliver to the city of Cleveland, a grant of all the interest of the state in that part of said Ohio canal, herein described, to be forever used and. occupied by said city, as its council shall determine, for any or all of the purposes before mentioned”; that, pursuant to the provisions of such act, the governor, on October 31, 1879, executed and delivered to the city of Cleveland his deed for such lands; that, at a regular meeting of the city council of the city of Cleveland, held on November 3, 1879, such deed of the governor was accepted by such city council in behalf of the city of Cleveland; that, prior to the acceptance of such deed, to wit, on October 26, 1875, the city of Cleveland entered into a contract by which said city agreed with the Valley Railway Company “that it would execute to said company a •lease of all the lands granted to said city by said act of April 29, 1872, .as soon as title to said lands should be conveyed to said city by the state of Ohio”; that the city of Cleveland, by its city council, on March 24, 1879, by resolution recounting said contract between said city and the Valley Railway Company, instructed its mayor and city solicitor to .obtain the title to said lands conveyed by said act of April 29, 1872, and to arrange for the lease of said lands to the Valley Railway Company; that said city, through its council, at the same meeting of said council at which the city through said council accepted said grant from the state of Ohio, to wit, the meeting held by said city council on November 3, 1879, by ordinance instructed the mayor of said city “to execute in due form of law, a written lease to the Valley Railway Company of the lands and premises set forth and described for the period and upon the terms and conditions expressed in the copy of such lease submitted by the mayor to the council October 20, 1879, as amended and approved by the council at that date ’ ’; that, in pursuance of such ordinance and .on the day following its passage, to wit, on November 4, 1879, the mayor of said city for and in behalf of said city, duly executed and delivered to the said The Valley Railway Company, in consideration of the sum of $265,000 in .the first mortgage gold bearing bonds of said The Valley Railway Company, payable twenty-seven years from June 15, 1879, a lease for ninety-nine years, for railroad purposes, of all lands granted •to said city of Cleveland by said act of April 29, 1872, with the exception of certain small portions of said lands described in said lease, with the proviso that “it is hereby expressly understood and agreed that, in .case there is hereafter any failure in said title to the lands hereby leased or in the authority of said city to lease the same for the purposes herein ;stated, the said city shall not be liable to said company for any. damage caused by said failure”; that said- lease was approved by said council .on November 10, 1879; that immediately after the execution of said lease said The Valley Railway Company took possession of all said lands :so leased and that all' said lands have ever since been used by said company and its successors for railroad purposes; that, by reason of the sale •of the property of the Valley Railway Company on September 27, 1895, .and subsequent sales, agreements and transactions, the defendant companies are now occupying and using, for railroad purposes, all of said lands conveyed to said The Valley Railway Company in said lease of •.said city; that the city of Cleveland has never occupied nor used any portion of said lands conveyed by said lease for any purposes except for the laying therein of gas and water pipes or for sewerage purposes; and ■that said city has abandoned and forfeited the use of all said lands so leased except for laying therein gas and water pipes and for sewerage purposes; that the state of Ohio has been, before, on and since April 29, 1872, and now is the owner in fee of such lands and entitled to the full •use and possession of the same; “that the state of Ohio has never, di-rectly nor indirectly, in any way given or granted, or permitted to be :given or to be granted, to either of said .defendants, any right, title or Interest whatever in, or to any of, said lands”; that the city of Cleveland .'had no right, power or authority to grant said lease or to permit the •use, for railroad purposes, of any of said lands so leased and so occupied ’•by defendants; that said use of said lands by defendants “was and is ¡inconsistent with the use granted to the city of Cleveland by the state .•of Ohio and in violation of the rights of the state and in contravention •of law; and that defendant companies have been, and are now, in occupying and using said lands for railroad purposes, usurping and unlawfully exercising and using rights, privileges and franchises in violation of the rights of the state of Ohio and in contravention of law.
    Plaintiff therefore prayed that defendant companies be ousted from ■exercising such rights, privileges and franchises and that they be compelled to remove all their tracks, side tracks, switches, depots, buildings •and all other property of whatever kind belonging to them, from all lands described in the said act of April 29, 1872, and for other relief.
    The act of April 29, 1872, the deed of the governor, the lease of the city of Cleveland to the Valley Railway Company and the ordinances .of the city council above mentioned are set forth in-full in plaintiff’s petition.
    U. G. Denman, Atty. Gen., J. A. Alburn and D. K. Watson, for plaintiff:
    Cited and commented upon the following authorities. State v. Bail-,way, 53 Ohio St. 189 [41 N. B. Rep. 205]; State v. Bailway, 37 Ohio St. 157; State v. Railway, 50 Ohio St. 239 [33 N. E. Rep. 1Q51]; State v. Lewis, 50 Ohio St. 179, 189 [33 N. E. Rep. 405; 19 L. R. A. 449]; Yore v. Woodford, 29 Ohio St. 245; State v. Board of Pub. Works, 36' Ohio St. 409, 414; Seeley v. Thomas, 31 Ohio St. 301, 308; United States-v. Railway, 118 U. S. 120 [6 Sup. Ct. Rep. 1006; 30 L. Ed. 81]; United States v. Insley, 130 U. S. 263 [9 Sup. Ct. Rep. 485; 32 It. Ed. 968]; Taylor v. Ross Go. (Comrs.) 23 Ohio St. 22, 78; Wyscaver v. Atkinson,. 37 Ohio St. 80; Walker v. Cincinnati, 21 Ohio St. 14, 54 [8 Ami Rep. 24]; Alter v. Cincinnati, 56 Ohio St. 47, 64 [46 N. E. Rep. 69; 35 L. R. A. 737]; Petrine v. Canal Co. 50 U. S. (9 How.) 172 [13 L. Ed. 92]; Pennsylvania Ry. v. Canal Comrs. 21 Pa. St. 9, 22; New Orleans & Carrollton Ry. v. New Orleans, 34 La. Ann. 429; Blair v. Chicago, 201 U. S. 400 [26 Sup. Ct. Rep. 427; 50 L. Ed. 801]; Cleveland Elec. Ry. v. Railway, 204 U. S. 116 [27 Sup. Ct. Rep. 202; 51 L. Ed. 399]; Malone-v. Toledo, 28 Ohio St. 643; Corwin v. Cotvan, 12 Ohio St. 629; McCombs v. Stewart, 40 Ohio St. 647; Weber v. Shay, 56 Ohio St. 116, 123 [46 N. E. Rep. 377; 37 L. R. A. 230; 60 Am. St. Rep. 743]; 3 Washburn, Real Prop. See. 1995; 1 Devlin, Deeds Sec. 12; Durant v. Ritchie, 4 Mas. (U. S. C.) 45, 69 [8 Ped. Cas. 118]; Elliott v. Shaw, 32 Ohio St. 431, 433; Chester v. Willan, 2 Saund. 96; Des Moines Co. Agrie. Soc. v. Tubbessing, 87 Iowa 138 [54 N. W. Rep. 68]; 3 Washburn, Real Prop-375; Vermilya v. Railway, 66 Iowa 606 [24 N. W. Rep. 234;.55 Am Rep. 279]; Robinson v. Railtvay, 59 Vt. 426 [10 Atl. Rep. 522]; Uhl v. Railway, 51 W. Va. 106 [41 S.E. Rep. 340]; State v. Tin & Japan Co. 66 Ohio St. 182 [64 N. E. Rep. 68]; Central Transp. Co. v. Car Co. 139 U. S. 24 [11 Sup. Ct. Rep. 478; 35 L. Ed. 55] ; Slidell v. Grandjean? Ill U. S. 412, 437 [4 Sup. Ct. Rep. 475; 28 L. Ed. 321]; Oregon Ry. & Now. Co. v. Railway, 130 U. S. 1, 26 [9 Sup. Ct. Rep. 409; 32 L. Ed. 837] ; Chicago & E. I. Ry. v. Clapp, 201 111. 418 [66 N. E. Rep. 223].
    F. A. Durban and Kline, Tolies & Goff, for defendants.
   DUSTIN, J.

The facts in this case are strikingly similar to those involved in the case of the State v. Railway, 53 Ohio St. 189 [41 N. E. Rep. 205]; and the remedy sought is the same. Hence, the demurrer to the petition must be overruled on all points, except as to want of parties, upon the authority of that case, unless it shall appear that the differences between it and the one at bar are such as to call for the application of other principles.

-In that case the city of Cincinnati, by legislative enactment (60 O. L. 44) and by gubernatorial deed executed and delivered pursuant thereto, had been granted the right to “enter upon, use and occupy as a public highway and for sewerage purposes” a certain portion of the ■canal lands of the state. After accepting the same, the city, without permission of the state, granted the Pitts. C. C. & St. L. Ry. the right to wholly occupy a part of said lands for tracks and stations, and such •occupancy continued for more than twenty years. In 1895, the then attorney-general brought an action in quo warranto against the railway, alleging an unlawful use of rights and privileges in the occupancy of said premises; also, that to that extent, there was an abandonment by the city of the rights granted to it by the state. The court entered a decree for the relator, holding that the defendant had no rights in the premises, its pretended grant from the city being invalid for want of necessary power to make the same.

In the case at bar the same kind of an action is brought by the attorney-general against the defendants, alleging that they wholly occupy certain canal lands in the city of Cleveland, granted to said city by the state for “a public highway, or for other purposes, and for laying therein gas and water pipes, and for sewerage purposes, as the city ■council of said city may determine.”

Pursuant to the legislative act, 69 O. L. 182, authorizing the grant, the governor made a deed to the city for the land described. On the very day that the deed was accepted the city of Cleveland leased the premises to defendant, the Cleveland Terminal & Yalley Railroad Company, for ninety-nine years, renewable forever, and received therefor the sum of $265,000 in bonds. The railroads built tracks and made other improvements thereon and have ever since wholly occupied said lands for railway purposes.

It is claimed on behalf of the state that the city of Cleveland forfeited the lands by abandonment of the uses for which they had been granted, and that defendants, the railways, have no rights whatever thereon. On the part of the railways it is claimed that “all the interests” of the state were granted to the city, which thereby became the •owner in fee of the premises, and could lawfully lease the same.

In the legislative act pertaining to the transfer of the canal lands at Cleveland, certain words and phrases in addition to those in State v. Railway, supra, are relied upon to create a fee simple estate. In the ■Cleveland legislative act the word “take” is added to a similar clause found in the Cincinnati act; providing that the city of Cleveland may ■“tahe, enter upon and occupy,” etc.

We think that word applies no more to a fee simple than to a qualified 'fee. The grantee, in either case, is authorized to take posses^ sion, which is the right referred to.

The words “or other purposes” are introduced after the words-“public highway,” so that it reads, “That authority and permission shall be granted * * * the city of Cleveland to take, enter upon,, improve and occupy as a public highway, or for other purposes, and’ for laying therein gas and water pipes, and for sewerage purposes, a» the city council of said city may determine, all that part * * ’ * in so far as the same is owned and held by the state.”

We think it is clear, under the authorities (cited by plaintiff) that the words, “or other purposes,” mean simply other similar purposes, and that the title is not enlarged into a fee simple by such language, but includes only other uses (if any there be) by the city, some of which are named in the next clause, viz., “laying gas and water pipes.”

If a fee simple had been intended by the use of the phrase “or other purposes,” there was no need to add the provision as to gas and water pipes, which seems to have been done either for illustration or further specification.

Nor does the phrase “in so far as the same is owned and held by the state, ’ ’ enlarge the grant. It is rather a limitation, as not including the rights of canal lessees.

Nor does the clause, “As the city council of said city may determine”; for that, in our opinion, only gives the council the right to-select from the purposes mentioned, or similar ones.

As for the deed, of course it could not rise higher than its source,, the legislative act. What general words it may contain must be limited by the phraseology of the act, of which the defendants must be held to; have had due notice at the time of acceptance. But, it is claimed that the Cleveland transaction was a purchase, and thereby differed essentially from State v. Railway, supra.

It is true that the city of Cleveland obligated itself to make certain expenditures to connect the canal with the Cuyahoga river and to-keep the river dredged to the lake. But that is presumed to have been, a proper compensation for the title it was receiving.

All other questions raised by the demurrer are, we think, covered and settled by State v. Railway, supra, except the one as to want of' proper parties. As to that it may be said that the court does not think the city of Cleveland, under the allegation of abandonment, is a necessary party to the controversy; but if defendants desire to have it bound by the judgment, whatever it may be, for their ultimate protection, it may be made a party on their application, and served with process.

Demurrer to petition overruled.

Sullivan and Allread, JJ., concur.


author: KINKADE, J.

text:
    NEGLIGENCE — STREET RAILWAYS.
    [Lucas (6th) Circuit Court,
    July 2, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Toledo v. Fidelia McNamara.
    1. Definition of Ordinary Care Applies to a Class Rather than to an In* dividual.
    The accepted definition of ordinary care, that it is that degree of care which a person of ordinary prudence would use under like circumstances and-conditions, applies to a class rather than to a particular individual, and-a judgment will not be disturbed on the ground that the use of this definition of ordinary care in the charge of the court was unfair to the' plaintiff in that particular ease.
    2. Resolution Requiring Street Cars to Stop at Certain Places not Controlling on Passengers.
    Inasmuch as an ordinance providing that street cars shall stop on the further cross walk is a requirement which applies to the street car company, and in no way controls passengers in boarding or alighting from cars, it is not error to exclude such an ordinance in an action against a municipality for damages.on account of injuries to the plaintiff from stepping into a hole in the street after alighting from a car.
    3. Not Negligence per se to Alight from Street Car at Safety Stop.
    It is not negligence per se for a passenger to alight from a street car which has made a safety stop, but has not yet reached its regular place for stopping.
   KINKADE, J.

.We have examined with care every assignment of error that is made in this ease, and without attempting to refer to them in the order in which they were made, I will say that we think the petition states a canse of action, especially as it is amended. We think it sufficiently states that the city had time to know of this defect, and had time to remedy it after it knew of it. We think that the petition is sufficient in that regard.

On the questions of error, we find no error in the refusal to charge requests Nos. 1 and 2 before argument, neither do we find any error in the refusal to give Nos. 1 and 2 after argument. No. 3 after argument was given. The point is made that the court has erroneously stated the. definition of ordinary care. The same point has been made in another ■case that we have heard here, and after the fullest consideration of it I want to say to cóunsel that we think that the point is not well taken. "We find in almost every decision of the Supreme Court we have examined, with one exception, that this language is found in defining ordinary care, viz., that it is such care as a person or ordinary care and ■prudence uses under the same or similar circumstances, referring evidently to a class instead of to an individual man, and we think the argument that this is unfair to the plaintiff in error for the reason that in the jury room one juror might say:

“Now the court has said that this ordinary care is the care which ■a man or ordinary prudence would exercise under the same or similar circumstances. Now I am a man of ordinary prudence and care and in this ease I would have done precisely as the plaintiff did here, and therefore under the charge of the court you should vote with me and return •a verdict. ’'

We think the other eleven, if not agreeing with him, would probably say 'to him:

“The court stated that it was the kind of care that a man of ordinary care and prudence would use under like circumstances, and we are likewise also men of ordinary care and prudence, and we conclude that you aré not a man of ordinary care and prudence if you say you would do that.”

I think the other eleven would point out to him that he didn’t fall in the class, and point it out very quickly. At any rate it seems to us that it is entirely too close to say that the trial court, who has charged the jury that ordinary care is the care that a man of ordinary care and prudence is accustomed to exercise under the same or similar circumstances, is stating the rule erroneously. We think the rule is fairly stated and the jury could not have been misled in that regard.

We have also examined this charge of Judge Kumler with care as to the notice and the time within which the city could repair after notice and so forth, and we think if counsel will re-read it they must agree that this charge fairly states the law upon all points in this ease. We fail to see anything wrong in the charge of the court in this regard.

It is said that the court was wrong in not permitting ordinances to be introduced in evidence, or rather permitting them to be first introduced and then excluding them from the consideration of the jury; the ordinances relating to the stopping of street cars, that the car must be stopped on the further crosswalk, and that the defendant was entitled to have that evidence in and have it considered in connection with the contributory negligence alleged as to the plaintiff in the case. We think there would have been no error in excluding the evidence when first offered, and there was no error in withdrawing it. It is not material here. It was a requirement by the city as- to where cars should stop, if it is anything. It certainly had nothing to do with the plaintiff. It did not pretend to control the conduct of parties in getting on and off a car. We call attention also to the fact that there is nothing in this bill of exceptions to show that these ordinances were in effect at the time they were offered in evidence. The title of the two ordinances is given, and a resolution to codify is given, and the date of the ordinance is given, the date when it was read in evidence; but when it was passed, or whether it is in effect at this particular time, does not appear. We 'think it is a matter of no moment anyway. We would hold that the court was justified in excluding it.

It is said that the plaintiff having left the car at a safety stop instead of the regular stop, and stepped off in the street, must take the consequences, or, as one of the requests says, “she assumed the risk of whatever that happened to her,” whatever that may be. We think this cannot be the law.

The Supreme Court has said in one ease, Ashtabula Rapid Trans. Co. v. Holmes, 67 Ohio St. 153 [65 N. E. Rep. 877], that if a car stops any place, comes to a full stop, and a party is attempting to alight, that it would be negligence on the part of the street car company to start the car before the party had an opportunity to alight. Of course that is not decisive of this question, but we call attention to the language used by the court in the opinion in that case. We think if a car comes to a full stop, any place, standing still long enough so that a party is without .any danger to himself in the act of getting off, he may get off the car, if it is more convenient for the purposes he has in mind for him to alight at that point than to ride to a cross street and alight there and walk back. A car might stop in a very long block in the middle, might stop by reason of a loaded wagon going in front of it, or the power giving -out, or for any one of a number of causes which might be mentioned, immediately in front of a man’s house, and it does not seem reasonable to hold that unless he stays on the car and rides down to the crosswalk and gets off there and walks back, that he must assume all defects that he finds in the street and if. he is injured he cannot recover. We think that is not the law. We think the party here had right, if this car came to a full stop long enough to allow her to alight from the car, and she saw fit to do so, to alight from the ear wherever that car may have-. ¡Been.

The question arises as to the sufficiency of the evidence in the case. We have read that and read it with a good deal of care. The verdict is not so clearly against the evidence in this case as to justify a reversal on that ground. We find no prejudicial error in the case, and the judgment of the court of common pleas will be affirmed.

Parker and Wildman, JJ., concur.


author: CiIFFEN, J.

text:
    DAMAGES — FALSE IMPRISONMENT — NEW TRIAL.
    [Hamilton (1st) Circuit Court,
    June 5, 1909.]
    Giffen, Swing and Smith, JJ.
    Edward Simper v. Lillie Carroll.
    1. Newly Discovered Evidence not ter se Ground for New Trial.
    Newly discovered evidence, if cumulative only, or such as might have been-discovered with reasonable diligence, is not available as a ground for a new trial.
    2. Natural and Probable Consequences of Arrest Attributable to One Causing it.
    One causing the arrest of another is bound by the statements and conduct of police in her presence while so detained, especially if it was the-natural and probable consequence thereof.
    3. Competency of Testimony of Woman Arrested as to Effect on Her Mental, and Nervous Condition.
    In an action for damages for the false arrest of a woman her testimony as to the effect on her mental and nervous condition is competent evidence.
    4. Motive Prompting Litigation Immaterial Providing Facts on which Based-are Sufficient.
    The facts upon which, an action for false arrest is based being sufficient, the motive prompting the litigation is immaterial.
    6. Verdict of $500 for False Arrest of Woman Reduced $200.
    In an action for damages for the false arrest of a woman and search of her person by police officers, a verdict in the sum of $500, in the absence-of malice is excessive, for which a remittitur of $200 will be ordered.
    Error to Hamilton common pleas court.
    The defendant in error, plaintiff below, examined some rings at the jewelry store of Edward Simper with the view of purchase, as he-' was ied to believe. Before she left the store it was discovered that one-of the rings was missing. What was said when this discovery was made led to a demand on the part of the woman, as Simper claimed, that she-be searched. Simper thereupon called up police headquarters and two detectives responded, who took the woman to the city hall, where after satisfying themselves that the ring was not in her possession she was allowed to go without any charge being entered against her. Thereafter a petition was filed by her against Simper, which contained the following averments:
    “On or about December 12, 1904, defendant caused plaintiff to be arrested, and taken to a police station and searched, and deprived of her liberty for two hours unlawfully and with force on a pretended accusation of larceny, to her damage in the sum of $2,500, for which she asks judgment with costs.”
    In the court below a verdict was returned for the plaintiff for $500, upon which judgment was entered. To this judgment error was prosecuted.
    J. D. Creed, for plaintiff in error.
    Bates & Meyer, for defendant in error:
    Cited and commented upon the following authorities: Powell v. Hodgetis, 2 C. & P. 432; 12 E. C. L. 659; Nicholson v. Sternberg, 61 App. Div. 51 [70 N. Y. Supp. 212], affirmed, without report, Nicholson v. Sternberg, 170 N. Y. 589 [63 N. E. Rep. 1119]; Johnson v. McDaniel, 5 Dec. 717 (7 N. P. 467); San Antonia & A. P. By. v. Griffin, 20 Tex. Civ. App. 91 [48 S. W. Rep. 542]; Drumm v. Gessnum, 61 Kan. 467 [59 Pac. Rep. 1078]; Stoecker v. Nathanson, 98 N. W. Rep. 1061; 70 L. R. A. 667 (Neb.) ; Fenelon v. Butts, 53 Wis. 344 [10 N. W. Rep. 501]; Abrahams v. Cooper, 81 Pa. St. 232; Young v. Gormley, 120 Iowa 372 [94 N. "W. Rep. 922] ; Shatio v. Crocker, 87 Cal. 629 [25 Pac. Rep. 921]; Jackson v. Bell, 5 S. Dak. 257 [58 N. W. Rep. 671]; Smith v. Bailway, 23 Ohio St. 10; Lytton v. Baird, 95 Ind. 349; Bailey v. Warner, 118 Fed. Rep. 395; Jjavender v. Hudgens, 32 Ark. 763; Wheeler & Wilson Mfg. Co. v. Boyce, 36 Kan. 350 [13 Pac. Rep, 609; 59 Am. Rep. 571]; Fagnan v. Knox, 40 N. Y. Supr. Ct. 41; Coffin v. Varila, 8 Tex. Civ. App. 417 [27 S. W. Rep. 956]; Bolton v. Vellines, 94 Ya. 393 [26 S. E. Rep. 847; 64 Am. St. Rep. 737].
   CiIFFEN, J.

Newly-discovered evidence to be available on a motion for a new trial must be neither cumulative nor such as might with reasonable diligence have been obtained at- the trial. All of the alleged newly-discovered evidence is open to one or both of these objections.

If the defendant caused Ihe arrest of the plaintiff, then what the police said and did in her presence while she was detained in pursuance of such arrest was competent to bind the defendant, especially when it was the natural and probable consequence of the arrest as in this case.

There was no error in. permitting plaintiff to testify to her mental and nervous condition as the direct result of the arrest. The following question was put to the plaintiff on cross-examination:

“Are you prosecuting this suit to get money or to get your reputation back?”

It is immaterial what the motive of alitigant may be in prosecuting an action provided the facts upon which it is based are sufficient in law. The objection to the question was properly sustained.

The question ruled out on page 38 of the bill of exceptions, is covered substantially by the.next question, and hence no prejudice resulted. The two questions at page 124 of the bill were properly ruled out because calling for a conclusion and not a fact. The testimony at pages 131 to 137 was admissible in rebuttal.

If the defendant unlawfully detained the plaintiff in his store until the police came, whether at his or her request, and whether she was searched at his or her own request, such unlawful detention was the efficient cause and rendered the defendant liable. Hence that part of the charge of the court excepted to by counsel for defendant correctly states the law.

We find no prejudicial error in the record, except that the damages in the absence of malice are excessive, and a remittitur of $200 will be ordered, and if not consented to the judgment will be reversed.

Smith and Swing, JJ., concur.


author: GIFFEN, J.

text:
    CRIMINAL LAW — EMBEZZLEMENT.
    [Hamilton (1st) Circuit Court,
    March 6, 1909.]
    Giffen, Smith and Swing, JJ.

       John L. Orebaugh v. State of Ohio.
    Charging Embezzlement by . Agent with Proof of Offense by Attorney at Law, a Variance.
    The capacity in which money or other thing is embezzled is of the essence of the offense and must be proved as charged in the indictment, and the accused is not required to meet a different charge constituting an offense under the same statute; hence, a charge of embezzlement “as agent” under Sec. 6842 Rev. Stat. with proof that accused received the money wrongfully converted, as an “attorney at law” constitutes a variance.

      Error to Hamilton common pleas court.
    Ulric Sloane and Otto Krippendorf, for plaintiff in error.
    A. C. Fricke and Coleman Avery, for defendant in error.

      Reversed, no op., State v. Orebaugh, 82 O. S. 418.

   GIFFEN, J.

The plaintiff in error was indicted under Sec. 6842 Rev. Stat. for embezzlement as agent, whereas the proof showed his employment as attorney at law, and the receipt of the money in that capacity. A motion was made at the conclusion of the evidence to instruct the jury to return a verdict for the accused on the ground of such variance.

In charging an offense in an indictment, the language of the statute defining the crime or its equivalent, which plainly and necessarily includes it, must be used, and it has accordingly been held in Hagar v. State, 35 Ohio St. 268:

“An indictment charging that the prisoner broke into a storeroom, is insufficient, under a statute making it an offense to break into a ‘storehouse’; and the defect is available to him, although the objection was not made until the verdict had been rendered.”

An attorney at law is not necessarily an agent within the ordinary meaning of the term, and the distinction is shown by McIlvaine, J., in Campbell v. State, 35 Ohio St. 70, 75:

“The controlling difference between the relation of attorneys, auctioneers, warehousemen, etc., with their employers, and the defendant with the employer, is this: The former engage in an independent employment, subject only to the usages of their different lines of business, while the latter was subject to the direction and control of his employer. And while the former may not be subject to the penalties of this statute, the latter is clearly embraced within its terms and meaning.”

In that case the defendant was charged as agent with embezzlement under a statute that did not include attorney at law, but which was so amended in 1881 (78 O. L. 186).

The Supreme Court having recognized the distinction between an agent and an attorney at law under a statute defining embezzlement, and the legislature having since amended the statute so as to make it an offense for an attorney at law to convert to his own use anything of value which shall come into his possession by virtue of his employment as such attorney at law, the decisions in other states are not controlling, and especially when they are far from uniform.

The statute now includes guardian, executor, administrator and assignee in insolvency, all of whom act in a representative capacity, yet it will hardly be claimed that proof of conversion of money in either capacity will sustain an indictment for such conversion as agent. The capacity in which the money or other thing of value is received and appropriated is of the essence of the offense, which must be proved as charged in the indictment, and the defendant is not required to meet a different charge although, if properly laid, constituting an offense under the statute. We are of opinion that the variance between the statement in the indictment and the evidence offered in the proof thereof was material to the merits of the case and prejudicial to the defendant. That the decision of the trial judge upon this question may be reversed if erroneous is expressly held in State v. Buechler, 57 Ohio St. 95 [48 N. E. Rep. 507].

Judgment reversed and prisoner discharged.

Smith and Swing, JJ., concur.


author: GIFFEN, P. J.

text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    March 22, 1909.]
    Giffen, Swing and Smith, JJ.
    Edwin Slaline v. Cincinnati Sand Blast Company.
    Failing on Unguarded Belt from Toppling Over Stool not Proximate Cause. Where an employe while standing upon a stool is thrown by the toppling over of the stool upon an unguarded belt and injured, the fact that the belt was unguarded was not the proximate cause of the injury, and recovery cannot be had against the master because of the unguarded belt.
    W. H. Schweikert, G. J. Slaline and Stanley Matthews, for plaintiff in error.
    Guido dores, for defendant in error.
   GIFFEN, P. J.

It appears from the evidence as well as the amended petition that the proximate cause of the injury complained of was the toppling over of the stool upon which the plaintiff was standing, and there is no averment that the defendant negligently failed to provide a ladder instead. The averment is that the stool threw him upon said unguarded belt and by reason of said fail upon said unguarded belt (not by reason of said belt being unguarded) he received a fracture of his right leg.

It is equally clear from the evidence that the unguarded belt or shafting was not the proximate cause of the injury. The negligence, if any, was that of plaintiff.

Judgment affirmed.

Smith and Swing, JJ., concur.


text:
    BENEFICIAL SOCIETIES — INSURANCE.
    [Hamilton (1st) Circuit Court,
    December 19, 1908.]
    Swing, Giffen and Smith, JJ.

      Grand Lodge of Brotherhood of Railroad Trainmen v. Eugene Daly.
    1. Fraternal Insurance Company cannot Invoke Exemptions of Act 97 O. L. 421 as Law of the Case after. Trial upon other Statutes.
    A fraternal insurance company, in an action on a life policy issued by it, having by its answer assumed the burden of proving the materiality of false statements in the application as required by Sec. 3625 Rev. Stat., cannot after trial and verdict upon the issues tendered, claim exemption as a fraternal order under Sec. 4 of act 97 O. L. 421 (Lan. Rev. Stat. 5812; B. 3631-14) from the provisions of laws other than such act.
    2. Application is Part of Contract of Insurance.
    An application for life insurance in a fraternal order being made part of the contract by its own terms, by the constitution of the order and in the petition asking for recovery on the policy, it is error to charge the jury that the .constitution and by-laws constitute the contract.
    '3. Physician’s Statement to Patient as to Certain Disease Held Advice.
    A statement of a physician to his patient in that relation that h > is afflicted with a certain disease is advice within the meaning of Sec. 5241 Rev. Stat. and is properly excluded in an action contesting payment of a policy of insurance.
    Error to ' Hamilton common pleas • court.
    The plaintiff below recovered a judgment against the grand lodge for $1,350 on a policy of insurance on the life of the decedent. The principal defense set up was as to the truthfulness of answers made by the decedent at the time of his application for a policy. In the court below the judgment was against the grand lodge.
    Hoffman, Bode & LeBIond, for plaintiff in error.
    William Littleford and H. G. Frost, for defendant in error:
    Burden of proof. Elmer v. Life Assn. 64 Hun 639 [19 N. Y. Supp. 289] ; Supreme Lodge Bohemian Slavonian K. & L. v. Matejowsky, 190 111. 142 [60 N. E. Rep. 101]; 2 Bacon, Ben. Soc. (3 ed.) See. 469; Piedmont & Arlington L. Ins. Co. v. Ewing, 92 U. S. 377 [23 L. Ed. 610].

      Statute exempting fraternal beneficiary societies from insurance laws of the state is unconstitutional. May, Insurance Sec. 1; Bolton v. Bolton, 73 Me. 299: Bliss v. Parks, 175 Mass. 539 [56 N. E. Rep. 566]; Bacon, Ben. Soc. Sees. 23, 52; Commonwealth v. Wetherbee, 105 Mass. 149; Williams v. Donough, 65 Ohio St. 499 [63 N. E. Rep. 84; 56 L. R. A. 766]; Coal Co. v. Rosser, 53 Ohio St. 12 [41 N. E. Rep. 263; 29 L. R. A. 386; 53 Am. St. Rep. 622]; State v. Ferris, 53 Ohio St. 314 [41 N.' E. Rep. 579; 30 L. R. A. 218]; New York L. Ins. Co. v. Block, 6 Giro. Dec. 166 (12 R. 224) ; Prudential Ins. Co. v. Kilbane, 8 Circ. Dee. 790 (15 R. 62).
    The answers in the application are representations and not warranties. Alabama Gold L. Ins. Co. v. Johnston, 80 Ala. 467 [60 Am. Rep. 112] ; Niblack, Ben. Soc. 391; Supreme Lodge v. Schmidt, 98 Ind. 374; Erdmann v. Insurance Co. 44 Wis. 376; Bacon, Ben. Soc. Sec. 203; Cheever v. Insurance Co. 8 Dec. Re. 175 (6 Bull. 196) ; Cheever v. Insurance Co. 5 Dec. Re. 268 (4 Am. Law Rec. 155) ; Union Cent. L. Ins. Co. v. Cheever, 7 Dec. Re. 254 (2 Bull. 19) ; Union Cent. L. Ins. Co. v. Cheever, 36 Ohio St. 201 [38 Am. Rep. 573],
    As to showing change in condition between application and issuance of certificate. 3 Cooley, Insurance 2002, 2008; DeCamp v. Insurance Co. 7 Fed. Cas. 313.
    Rejection of second deposition of examining physician. Despatch Line v. Glenny, 41 Ohio St. 166; Andrews v. Watson, 12 Circ. Dec. 692; Fountain v. Ware, 56 Ala. 558; Herring v. Skaggs, 73 Ala. 446; Shaw v. Installation Co. 9 Dec. Re. 809 (17 Bull. 274) ; 3 Wigmore, Evidence 2510, Sec. 1893; First Nat. Bank v. Elevator Co. .11 N. D. 280 [91 N. W. Rep. 436]; Gussner v. Hawks, 13 N. D. 453 [101 N. W. Rep. 898] ; Watson v. Railway, 76 Minn. 358 [79 N. W. Rep. 308].
    Daly’s statements as to his health. Kelsey v. Insurance Co. 35 Conn. 225; Welch v. Insurance Co. 108 la. 224 [78 N. W. Rep. 853; 50 L. R. A. 774]; Metsradt v. Modern Brotherhood, 112 la. 522 [84 N. W. Rep. 498]; Schwarzbach v. Protective Union, 25 W. Va. 622 [52 Am. Rep. 227]; Insurance Co. v. Morris, 3 Lea (Tenn.) 101; Union Cent. L. Ins. Co. v. Cheever, 36 Ohio St. 201 [38 Am. Rep. 573]; Fraternal Mut. L. Ins. Co. v. Applegate, 7 Ohio St. 292; Grossman v. Supreme Lodge K. & L. of Honor, 53 Hun 637 [6 N. Y. Supp. 821]; Mutual Life Ins. Co. v. Selby, 72 Fed. Rep. 980; Selby v. Insurance Co. 67 Fed. Rep. 490; Terwilliger v. Supreme Council of Royal Arcanum, 49 Hun 305 [2 N. Y. Supp. 144]: Rawson v. Insurance Co. 115 Wis. 641 [92 N. W. Rep. 378]; Supreme Lodge v. Schmidt, 98 Ind. 374.

      Board of health certificate. Ramsey v. Riley, 13 Ohio 157; Richmond v. Patterson, 3 Ohio 368; Stanglein v. State, 17 Ohio St. 453; Derby v. Salem, 30 Yt. 722; Whittaker’s Cove of Ev. Secs. 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88; Sovereign Gamp W. of W. v. Grandon, 64 Neb. 39 [89 N. W. Rep. 448]; Buffalo Loan, Tr. i& S. Dep. Co. v. Aid Assn. 126 N. Y. 450 [27 N. E. Rep. 942; 22 Am. St. Rep. 839], affirming Buffalo Loam,, Tr. & S. Dep. Co. v. Aid Assn. 56 Hun 303 [9 N. Y. Supp. 346]; Beglin v. Insurance Co. 173 N. Y. 374 [66 N. E. Rep. 102], reversing Beglin v. Insurance Co. 32 Misc. 254 [66 N. Y. Supp. 206].
    Depositions of pastor and undertaker. 24 Enc. Law 176; 17 Cyc. 312; American Life Ins. Co. v. Rosenagle, 77 Pa. 507; Stoever v. Whitman, 6 Binn. (Pa.) 416; JHam v. Edwards, 1 U. S. (Dali., Pa.) 2 [1 L. Ed. 11]; Lewis v. Marshall, 30 TL S. (5 Pet.) 470 [8 L. Ed. 195]; Kennedy v. Doyle, 10 Allen (Mass.) 161; Morrissey v. Ferry Co. 43 Mo. 380; 17 Cyc. 312, citing Ciarle v. Trinity Church, 5 Watts & Serg. (Pa.)' 266; Sitter v. Gehr, 105 Pa. St. 577 [51 Am. Rep. 207]; Hancock v. Supreme Council Catholic Benev. Legion, 67 N. J. Law 614 [52 Atl. Rep. 301] ; Childress v. Cutter, 16 Mo. 24; Chambers v. Chambers, 24 N. Y. Civ. Proe. 187 [32 N. Y. Supp. 875]; 17 Cyc. 311; Metropolitan Life Ins. Co. v. Howie, 68' Ohio St. 614 [68 N. E. Rep. 4]; Metropolitan Life Ins. Co. v. Hoivle, 62 Ohio St. 204 [56 N. E. Rep. 908] ; Ohio Mutual L. Assn. v. Dradd/y, 10 Dec. 591 (8 N. P. 140); Hunter v. Fraternal Alliance, 7 Dec. 239 (5 N. P. 35).

      Reversing Daley v. Brotherhood, 19 Dec. 60.

   GIFFEN, J.

Upon the issues joined in this case the burden of proof rested upon the defendant in the original action, and by its answer it also assumed the burden of proving each fact required by Sec. 3625 Rev. Stat.

After trial and verdict upon issues thus tendered it can not claim exemption under Sec. 4 of act 97 O. L. 421 (Lan. Rev. Stat. 5812; B. 3631-14 Rev. Stat., and inasmuch as this court will not reverse a judgment on the ground that it is against the weight of the evidence unless clearly so, it follows that Sec. 3625 and not 3631-14 Rev. Stat., is the law of the case. All the facts enumerated in Sec. 3625 were clearly proved with reference to the following answers made by the deceased in his application for a benefit certificate: (1) That he had not consulted a physician during the last five years. (2) That he was then in good health. (3) That he had never been afflicted with syphilis. (4) That he had no deceased brother or sister. (5) That he took possibly three drinks of intoxicating liquor a week.

The judgment is therefore manifestly against the weight of the evidence.

The statement of a physician to his patient in that relation that he is afflicted with a certain disease is advice within the meaning of See. 5241 Rev. Stat.

The court erred in charging the jury that the certificate and the constitution and by-laws constitute the contract, when the petition of plaintiff, the constitution and the application itself make the latter a part of the contract.

The special instructions requested by the defendant were based upon the rule stated in the case of Connecticut Mut. L. Ins. Co. v. Pyle, 44 Ohio St. 19 [4 N. E. Rep. 465; 58 Am. Rep. 781], which was abrogated by See. 3625 Rev. Stat. John Hancock Life Ins. Co. v. Warren, 59 Ohio St. 45, 353 [51 N. E. Rep. 546].

Many other errors are alleged but we find none that is prejudicial.

Judgment reversed and cause remanded for a new trial.

Swing and Smith, JJ., concur.


author: WINCH, J.

text:
    INTOXICATING LIQUORS.
    [Cuyahoga (8th) Circuit Court,
    November 15, 1909.]
    Henry, Marvin and Winch, JJ.
    W. D. Browning et al. v. P. S. Westropp, Mayor, etc.
    Jones Law Residence District not Affected by Division for Governmental Purposes.
    Residence district, created by Jones law, act 98 O. L. 68, is not affected by division for governmental, purposes.
    Motion for leave to file petition in error.
    Smith, Taft & Arter and T. K. Dissette, for plaintiffs in error.
    Mathers & Orgill and G. W. Shaw, for defendant in error.
   WINCH, J.

In this case we hold that a residence district, so-called, created under the Jones law (act 98 O. L. 68), retains its boundaries for all purposes under the laws relating to the regulation of the liquor traffic until two years after a petition against the prohibition of the sale of liquor therein has been granted. A division of the territory of such residence district for municipal governmental purposes, has no effect upon said district as to the force and effect of the liquor laws therein.

So holding, leave to file a petition in error is refused.

Henry and Marvin, JJ., concur.


author: SWING, J.

text:
    NAMES — TRADE NAME.
    [Hamilton (1st) Circuit Court,
    June 19, 1909.]
    Giffen, Swing and Smith, JJ.

      French Bros. Dairy Co. v. John Giacin.
    Imitation of an Established Commercial Name Enjoined.
    Where a family named French has carried on a dairy and milk business for a great number of years under their own name, and more recently have built up in connection therewith an extensive business in ice cream, injunction will lie against the use of the word “French” in connection with an ice cream business carried on by a competitor who is not a Frenchman and whose manifest purpose is to attract trade by creating a false impression as to his own identity.
    [Syllabus approved by the court.]
    Albert Rettinger and Jacob Shroder, for plaintiff.
    Scott Bonham, for defendant:
    Fraud must be clearly proved. Hilson Go. v. Foster, 80 Fed. Rep. '896.
    Similarity of name not ground for injunction. Babbitt v. Brown, 88 Hun 515 [23 N. Y. Supp. 25]; Goodyear’s India Rubber Glove Mfg. •Co. v. Rubber Co. 128 U. S. 598 [9 Sup. Ct. Rep. 166; 32 L. Ed. 535]; Lawrence Mfg. Co. v. Manufacturing Co. 138 U. S. 537 [11 Sup. Ct. Rep. 396; 34 L. Ed. 997] ; Chance v. Gulden, 165 Fed. Rep. 624; Brill V. Manufacturing Co. 41 Ohio St. 127 [52. Am. Rep. 74]; Singer Mfg. ■Co. v. Manufacturing Co. 163 U. S. 169 [16 Sup. Ct. Rep. 1002; 41 L. Ed. 118] ; Choynski v. Cohen, 39 Cal. 501 [2 Am. Rep. 476]; Eggers v. Hinh, 63 Cal. 445 [49 Am. Rep. 96]; Ricker v. Railivay, 90 Me. 395 [38 Atl. Rep. 338]; Amoskeag Mfg. Co. v. Spear, 2 Sand. 599; Booth v. Jarrett, 52 Hoy/. Pr. 169; American Washboard Co. v. Manufacturing •Co. 103 Fed. Rep. 281 [50 L. R. A. 609],
    Evidence of purchasers not mislead not grounds for injunction. Hopkins, Trademarks 293; Bickmore Gall Cure Co. v. Manufacturing Co. 126 Fed. Rep. 573; Kroppf v. Furst, 94 Fed. Rep. 150.
    Use of geographical name not ground for injunction. Canal Co. v. Clark, 80 U. S. (13 Wall.) 311 [20 L. Ed. 581].
    Deception of public not ground for injunction. American Wash-hoard Co. v. Manufacturing Co. 103 Fed. Rep. 281 [50 L. R. A. 609].
    Confusion not ground for injunction. Continental Ins. Co. v. Fire Association, 96 Fed. Rep. 846.

      Laches of plaintiff grounds for refusing injunction. La Republique Francaise v. Schultz, 94 Fed. Eep. 500; Woodmanse & Hewitt Mfg. Co. v. Williams, 37 U. S. App. 109 [68 Fed. Eep. 489; 15 C. C. A. 520]; Lane v. Loche, 150 U. S. 193 [14 Sup. Ct. Eep. 78; 37 L. Ed. 1049]; McLaughlin v. Railway, 21 Fed. Eep. 574; Drake Medicine Co. v. Olessner, 68 Ohio St. 337 [67 N. E. Eep. 722].

      Affirming French Bros. Dairy Co. v. Giacin, 20 Dec. 000.

   SWING, J.

Plaintiff has been in the dairy business in this city for a great number of years. For more than ten years it has manufactured and sold ice cream in this city very extensively, having a main store in the heart of the city, with numerous branch stores located throughout the city. It has maintained wagons on the streets of the city delivering ice cream, on which are painted “French Bros. Ice Cream.” This ice cream ha® been extensively known and has enjoyed and still enjoys a high reputation.

Eecently the defendant commenced the manufacture and sale of ice cream in this city under the name and style of “French Ice Cream Co.” This sign is in the windows of his main office on Vine street, and at his store on Walnut Hills he has the same sign, with'the addition “Branch Store.” The form in which the words are placed is as follows: French Ice Cream Co. Branch Store.

Plaintiff claims this is a fraud upon it and its customers.

The defendant says that he uses the name for the purpose of distinguishing it from the Vienna lee Cream Co., with which company he-formerly worked, and from other firms engaged in manufacturing ice-cream in the city, and for the further reason that the word “French” is a geographical name and much employed in the business whieh produce things to eat, drink or wear, and further in manufacturing his ice-cream he is using the French pot process. He further offered evidence to show there was known to ice cream makers and that numerous cook books contain recipes for making an ice cream called “French” ice-cream, which ice cream contains from twenty to twenty-four eggs to-each gallon of cream.

Defendant’s evidence fully sustains his claim that he made his ice-cream by the French ice cream pot process, which process differs from other processes in that it is made in an open vessel instead of a closed vessel. But the evidence does not sustain him to the effect that he made his ice cream after the formulas contained in the cook B’ooks, the difference being tliat instead of using twenty to twenty-four eggs to a gallon he used from six to ten.

But the evidence clearly shows that while to some ice cream makers there is an ice cream known as “French” ice cream, it is not known to the general consuming public, and no evidence was offered which tended to show that in a single instance anyone had inquired for French ice cream, meaning thereby ice cream made after the formula called French ice cream.

The evidence clearly shows that the name assumed by the defendant was calculated to, and did, deceive the public in believing that the ice cream sold and offered for sale by him was the ice cream of the plaintiffs.

It seems equally plain that in using the name French, it was the purpose of the defendant to deceive the public. “French’s” ice cream was favorably and universally known in this city, and defendant knew this. He was doing business under the name of the “French Ice Cream Co.” , It was not a company, and his name was not French, and his sign did not convey to the public information that he was making ice cream under a formula designated in the cook books French ice cream, nor was such ice cream known to the public. Nor did his sign inform the public that the ice cream made by him was made by the French or open pot process. Nor can it be assumed under all the circumstances that the defendant was using the name as a name indicating in itself a superior article of ice cream. The main idea in the minds of the public in this city, with the use of the word French in reference to ice cream, is the ice cream made by the plaintiff, and it would not be reasonable to think that when used as defendant has done, that to the public it meant a geographical name, or its quality or the manner in which it was made.

If defendant for good reasons does not want to use his own name under which to sell his ice cream, he should choose, some name other than that used by someone else who has been long established in the business, and which name is well and favorably known to the public. This can work no hardship on the defendant, but to hold otherwise may work a great injury to the plaintiffs. A decree will be entered restraining the defendant from using the word “French” in the manner used by him.

Smith, J., concurs.

Giffen, J., dissents.


author: ALLREAD, J.

text:
    CRIMINAL LAW — INDICTMENTS—POCKET PICKING.
    [Franklin (2nd) Circuit Court,
    November 4, 1909.]
    Sullivan, Dustin and Allread, JJ.

      E. M. Whitten v. State of Ohio.
    Indictment foe Pocket Picking does not Include Assault and Battekv.
    An indictment charging tbe crime of pocket picking, where the property stolen is valued at $20, includes the offense of petit larceny; and a refusal of the court, upon request of the accused, to so instruct the jury, is prejudicial error. But an indictment for pocket picking does not include either assault and battery or assault
    [Syllabus by the court.]
    Error to Franklin common pleas court.
    M. B. Barnhart, for plaintiff in error. '
    W. E. King and R. H. Game, for defendant in error.

      Reversed, State v. Whitten, 82 O. S. 174.

   ALLREAD, J.

Whitten, the plaintiff in error, was indicted and convicted of th© crime of pocket picking. The property stolen was valued in the indictment and also in the verdict at $20.

Upon the trial, a special request was made by counsel for the accused, that the court charge the jury, that they might find the accused not guilty of the charge of pocket picking, but guilty of petit larceny.

A similar request as to a verdict of assault and assault and battery was made.

A motion for a new trial was overruled and sentence pronounced., A bill of exceptions was taken and error is now prosecuted here.

The only serious question involved in the record here is whether petit larceny and assault and battery and assault are included offenses in an indictment for pocket picking.

It is settled in this state that where lesser offenses are embraced in the indictment, a failure of the court upon request of the accused to charge upon the subject of the lesser and included offenses is prejudicial error. Hanson v. State 43 Ohio St. 376, 378 [1 N. E. Rep. 136]; Howard v. State, 25 Ohio St. 399, 401.

The indictment contains a complete charge of larceny, and in addition. a charge that the larceny was from the person of the owner. The larceny is the foundation of the charge, and the taking from the person, the aggravation of the offense.

, Numerous authorities are cited holding that burglary and larceny may be charged in one indictment, and if so charged, the conviction may be had of either or both.

Cases are also cited by counsel holding that an indictment for robbery includes larceny, and a conviction may be had for either.

No cases to the contrary have been cited by counsel upon these propositions.

There is no distinction, in our opinion, in principle, between the charge of pocket- picking, and that of robbery and burglary and larceny in this respect.

The state must first prove the larceny and then the aggravation that it was taken from the person or building. If the state fail in proof of the aggravation it may still have conviction of the included offense of larceny.

4 Blackstone’s Commentaries 240 styles larceny from the person or house as “mixed or compound larceny,” and says that it “has-all the properties of the former (simple larceny) but is accompanied with either one or both of aggravation of taking from one’s house or person.” And on page 242 adds “Larceny from the person is either-'by privately stealing, or by open and violent assault.”

In State v. Tofte, 59 Kan. 755 [54 Pac. Rep. 1062, 1063], it was-directly held that larceny is included in a charge of pocket picking. In. the opinion, after quoting from Blackstone’s Commentaries, it is said:

“It would therefore seem that compound larceny is not in character or general definition in any wise different from simple larceny. It is. different only in the aggravated circumstance of being committed in a. house or from a person.”

In Fanning v. State, 80 Tenn. (12 Lea.) 651, it was decided that & verdict of simple larceny was proper under an indictment for stealing-from the person, which is the equivalent of pocket picking under our-statute. In the opinion, page 652, it is said:

“But larceny is necessarily included in the offense charged of stealing from the person. Without this offense of larceny there could be' no offense charged in the statute against stealing from the person. It. is the larceny which makes it an offense, and the circumstances of its. being committed by taking from the person, aggravated it into a higher grade of offense.”

In State v. Eno, 8 Minn. 220, it is laid down in the syllabus:

“Where the specification in an indictment alleges a larceny from, the person, the defendant may be convicted of a simple larceny.”

In the discussion of this question in the opinion, it is said:

“It is contended that in an indictment for larceny from the person, the defendant .must. he = acquitted if that particular. offense is. not made out. To this we cannot assent. Each of the several descriptions of larceny involves a simple larceny. The fact of its having been committed in a dwelling house or from the person merely goes in aggravation and increases the severity of the punishment. If the prosecution fails in establishing these circumstances, but proves the larceny substantially as charged, a conviction of the minor degree of the offense may be had.”

Upon this proposition no cases have been cited by counsel or found by the court to the contrary.

In the case of Brown v. State, 25 O. C. C. 130 (2 N. S. 409), it was decided that pocket picking is included in a charge of robbery, basing both offenses upon larceny as the foundation. This case does not militate against, but supports, the conclusion that larceny is an included offense in both robbery and pocket picking.

It is urged that larceny should not be held an included offense because the maximum penalty is greater than in pocket picking. It may, however, be noted that in most eases of pocket picking the amount taken is small, falling within the grade of petit larceny. The offense of pocket picking was, therefore, prescribed as a higher grade to meet .the cases ordinarily arising where small amounts are taken from, the ..person. No other plausible reason can be given for its enactment.

We are not convinced, however, that the maximum penalty is the exclusive test as to included offenses. A more accurate test, and the one usually applied, is found in the essential ingredients or elements of the respective crimes. An indictment for murder contains as essential ingredients, malice and deliberation in addition to the unlawful killing. The elimination by failure of proof or otherwise of the distinctive essentials of the higher offenses reduces the grade, until the appropriate included offense is reached.

The case of Harris v. State, 57 Ohio St. 92 [48 N. E. Rep. 284], does not conflict with the view that larceny is an included offense in a charge of pocket picking. The opinion concedes that larceny is involved in pocket picking and this is equivalent to «saying that it is an included offense. The matter decided was that a finding of the value of the property taken need not be made to sustain a conviction of pocket picking. Rocket picking is not graded by the amount of property as in cases of larceny. The finding as to value is, therefore, not material as to the former offense, although it is as to the latter.

The court, therefore, held that the statute providing that in cases of “offenses against property by larceny” the verdict shall state the value, etc., applies only to larceny and kindred offenses, classified “as offenses against property.” This interpretation of the statutory phrase, “offenses against property by larceny,” harmonizes the statutes and carries out the evident legislative intent of meeting all cases where value determines the grade or affects the punishment. In our opinion, it does not follow from the mere classification of pocket picking as a crime against the person, that the rule of the common law as to the terms employed, as well as the plain scope of the statute defining the offenses, is overthrown.

We are of opinion, however, that neither assault and battery, nor assault as criminal offenses are included in an indictment for pocket picking. Assault and battery and assault as criminal charges, imply an intent to employ some degree of force to the person, or inflict some physical injury, and must be accompanied by menaces or threats of personal injury. These elements are wanting in a charge of pocket picking. If force is used the charge would be robbery. In pocket picking the taking from the person does not necessarily imply that the property be separated from the person hy force, nor that the actual person be invaded. The property may have been in the personal control and presence of the owner and taken by stealth, without injury to the person.

It is contended that in the indictment under consideration an assault is charged, and that although not necessary to the crime of pocket picking, yet having made the charge, it became thereby an included offense.

It is true that an assault is averred in the indictment, but one essential element to constitute the offense is lacking, to wit, that the assault be accompanied by threats or menaces; and this necessary feature is negatived by the averment that the act characterized as an assault was committed without force and violence and without menaces or putting the party in fear.

The only error in the record, prejudicial to the accused, is, therefore, the refusal of the court to instruct as to the included offense of petit larceny.

The judgment and conviction is, therefore, reversed upon the ground stated and the cause remanded for a new trial.

Sullivan and Dustin, JfJ., concur.


text:
    HUSBAND AND WIFE — DRUGS.
    [Cuyahoga (8th) Circuit Court,
    November 1, 1909.]
    Henry, Marvin and Winch, JJ.
    Henry H. Flandermeyer v. Lillie M. Cooper.
    Damages Lie fob Selling Morphine to Husband Causing Loss of Consortium.
    A wife may maintain an action for the loss of the society and companionship of her husband occasioned by the wrongful acts of a druggist who. against her protest, wantonly or maliciously furnishes her husband, an opium habitue, with morphine in such quantities as to incapacitate him.
    Error to Cuyahoga common pleas court.
    A. H. Martin, for plaintiff in error.
    A. F. Counts and Ewing, Nieding & Kramer, for defendant in error:
    Cited and commented upon the following authorities. Westlake v. Westlake, 34 Ohio St. 621, 630 (32 Am. Rep. 397) ; Clark v. Harlan, 13 Dec. Re. 634 (1 C. S. C. 418) ; Bennett v. Bennett, 116 N. Y. 584 [23 N. E. Rep. 17; 6 L. R. A. 553]; Clow v. Chapman, 125 Mo. 101 [28-S. W. Rep. 328; 26 L. R. A. 412; 46 Am. St. Rep. 468]; Warren v. Wwrren, 89 Mich. 123 [50 N. W. Rep. 842; 14 L. R. A. 545]; Hoard v. Peck, 56 Barb. (N. Y.) 202.
   WINCH, J.

The amended petition in this case claims damages for maliciously, wilfully and unlawfully depriving the plaintiff, Lillie M. Cooper, of the society, companionship and consortium of her husband, Charles A. Cooper.

She says that in the month of June, 1905, the defendant, H. H. Flandermeyer, a pharmacist, conducting a drug store in the city of Cleveland, sold morphine to her husband in such quantities that he became a slave to the drug.

She further says:

“That from and after June, 1905, and until June, 1906, at divers dates which the plaintiff cannot specifically set forth, although the defendant, well knowing that the plaintiff was using every available means to cure and counteract the habit thus formed, and although she frequently protested to the said defendant against his further selling or administering said morphine, and expressly warned and prohibited said defendant from continuing said sales or administration of morphine to the said Charles A. Cooper, yet the said defendant, having thus, created an appetite in the said Charles A. Cooper for the said drug, morphine, and well knowing that the drug was being used not for medicinal purposes, but through a craving that had fastened itself upon him, whereby he was becoming and had become what is known as a morphine fiend, and was thereby wrecking his mind and body, the said defendant did wilfully, wrongfully, maliciously and unlawfully continue to sell and administer quantities of morphine to said Charles A. Cooper, said sales becoming constantly more frequent, until they occurred almost every day, and being in bulk quantities less than the minimum original package of one-eighth ounce, as provided by law, so that the said Charles A. Cooper became a slave to the baneful habit of taking morphine into his system, thereby wrecking his mind and body, and depriving him of moral sensibility, by reason whereof he became and was unfitted and incapable of giving the affection, society, companionship, and consortium which he had formerly given and which were due to his wife, the plaintiff, and that by the means aforesaid so furnished by the defendant, knowingly, wilfully and unlawfully, the plaintiff has been deprived of the affection, society, companionship and consortium of her husband.

“The plaintiff further says that finally, in consequence of the defendant’s unlawful and wilful acts, on the sixteenth day of June, 1906, it became necessary for the said Charles A. Cooper to be confined in an asylum, and to be detained therein for a long period of time, namely about one year, whereby the plaintiff was further deprived of the consortium of her husband.”

Issues were made up on this cause of action; the case was tried to a jury, resulting in a verdict for the plaintiff in the sum of $500 judgment was rendered upon the verdict, and the cause is now here for review.

The grave objection to this judgment, raised by demurrer to the petition, motion for judgment both before verdict and on special findings of the jury, exceptions to the charge, and in other ways, is that not the selling of the drug, but the husband’s voluntary and independent act in taking it into his system was the proximate cause of the injury complained of. There was no evidence that the druggist administered the drug, further than selling it to the husband.

This objection is very well stated by counsel for plaintiff in error in the following language:

“To sustain an action for injury to one’s consortium, if such as action can be sustained in this state, in any case other than a case for alienation of affections, the alleged injury must be the result of a force exerted directly upon the marriage relation, with the purpose of injuring plaintiff’s consortium, and the act of the consort responding to that force must not be voluntary.”

An analysis of this objection requires a consideration of the nature of this action.

Tiffany, Pers. & Dom. Rel. (Hombrook Series), page 80, speaking of the action by the husband for alienation of his wife’s affections, says:

“Whatever may have been the principle, originally, upon which this class of actions was maintained, it is certain that the weight of modern authority bases the action on the loss of consortium, that is, the society, companionship, conjugal affections, fellowship and assistance. The suit is not regarded in the nature of an action by a master for the loss of the services of his servant, and it is not necessary that there should be any pecuniary loss whatever.”

Passing next to a consideration of the wife’s rights, he says, on page 83:

“In most, but not all, jurisdictions, a wife has a right of action against one who entices away, or alienates the affections of her husband; at least where her disability to sue alone has been removed by statute. According to the weight of opinion, the right exists even at common law.”

So we find it has been held in this state:

“A wife may maintain an action for the loss of the society and companionship of her husband, against one who wrongfully induces and procures her husband to abandon or send her away.

“The acts of the defendant that caused the alleged injury must have been malicious.”

Westlake v. Westlake, 34 Ohio St. 621 [32 Am. Rep. 397].

In discussing the question of malice, the court, on page 634, say:

‘ ‘ The term malice, as applied to torts, does not necessarily mean that which must proceed from a spiteful, malignant, or revengeful disposition, but a conduct injurious to another, though proceeding from an ill-regulated mind, not sufficiently cautious before it occasions an injury to another. 11 Serg. & R. 39, 40. If the conduct of the defendant was unjustifiable and actually caused the injury complained of by the plaintiff, which was a question for the jury, malice in law would be implied from such conduct, and the court should have so charged.”

In 5 Words & Phrases Judicially Defined 4298, we find the following definition: “ ‘Malice, in common acceptation, means ill will against a person; but in its legal sense it means a wrongful act done intentionally, without just cause or excuse.’ ”

The learned trial judge followed the doctrine of Westlake v. Westlake, supra, and properly charged as to the element of malice and declined to charge as to the doctrine of intervening agency, saying that he thought there was no place for that doctrine in the case.

Remembering that the wrong here complained of is charged as the intentional and not the unintentional act of the defendant, was not the trial judge right?

The intentional wrong here involved was the selling of the morphine to a morphine fiend, knowing and intending that he should take it, and fully realizing the results that would flow to the wife, for she had stated them to the druggist and ordered him to sell her husband no more morphine. The intervening act of the husband, so-called/was in no sense intervening, but contemplated, understood and expected at the time of the sale. It was part of the process by which the druggist would accomplish his purpose if he was actuated by express malice, and why should the rule be different if his malice is merely implied by law from •his reckless conduct? Indeed, some of the evidence in this case would almost warrant the jury in finding that the druggist was actuated by express malice. The wife testifies:

“I followed Mr. Cooper to watch where he was going, and I went in and Mr. Smith (a clerk in the store) was just about to hand him something over the counter.” I said:

“Mr. Smith, are you selling him morphine or any drug, or anything of that kind? If you are, I will make trouble for you.” He said: “You can’t stop me.” And this all happened after she had warned Flandermeyer not to sell to her husband,” his only answer being: “You can’t forbid us, because we are selling it by the quantity.”

The final results to Cooper from taking the morphine were that he tried to commit suicide and landed in the insane asylum, where he re-mained a year; the result to the wife was that she was deprived of the consortium of her husband. If a wife can be wronged in her conjugal rights by one who wrongfully induces and procures her husband to abandon her, as in Westlake v. Westlake, supra, why not by one who deliberately feeds the husband a poisonous drug instead of poisonou* words which produce the same result?

At least two courts have found the principles upon which suits for alienation of affection are based, applicable in actions such as we have here. They were both eases where the druggist sold laudanum to the wife. Hoard v. Peck, 56 Barb. (N. Y.) 202; Holleman v. Harward, 119 N. C. 150 [25 S. E. Rep. 972; 34 L. R. A. 803; 56 Am. St. Rep. 672].

We hold then, that the wrong here committed was not merely a moral wrong, bnt an actionable one, and the record of the case supports the verdict of the jury.

Complaint is made as to certain rulings on evidence, which we have examined, but find no prejudicial error in them. Judgment affirmed.

Henry, J., dissents.

Marvin, J., concurs.


text:
    HABEAS CORPUS — PARENT AND CHILD.
    [Cuyahoga (8th) Circuit Court,
    November 1, 1909.]
    Henry, Marvin and Winch, JJ.
    A. J. Hirstius, Sheriff, v. Adolph Gottschalt.
    ©oubts May Make and Modify Orders for Support of Abandoned Children to Suit Conditions of Both Parents and Children.
    An order made pursuant to Sec. 3140-2 Rev. Stat., requiring the father of an abandoned minor child to pay a certain sum periodically for the home, food, care and clothing of said child, and give bond therefor, may be modified at any time thereafter when changed conditions of the child require it, as well as when the father becomes unable to comply with the original order. It is unlawful, however, to arrest and confine such father, if not in default under the original order, until he has had opportunity to comply with any modified order that may be made.
    Error to Cuyahoga common pleas court.
    J. A. Cline, Pros. Atty., C. H. Olds, G. C. Hansen, E. S. Brudno, T. E. Greene and Estep & Gott, for plaintiff in error.
    White, Johnson, McCaslin, & Cannon, for defendant in error.
   WINCH, J.

This is a proceeding to review the judgment of the common pleas 'court granting an application in habeas corpus for the release from custody "if the defendant in error.

The record shows that on June 4, 1906, Gottschalt was convicted in said court of the offense of abandoning his minor child, and thereupon and before sentence was ordered to pay to the clerk of the court for the home, food, care and clothing of said child the sum of $20 quarterly, 'beginning July 1, 1906, until the further order of the court, and gave ibond to comply with said order, as provided by law.

Although Gottschalt fully complied with said order, without default, on June 2, 1909, upon motion, an order was made in said court modifying the original order and requiring Gottschalt to pay three dollars per week, until the further order of the court, for the support, ■care, food, home and clothing of said minor. This order recites that it was made upon due notice to Gottschalt and that upon the evidence adduced, the court, for good cause, finds that the allowance theretofore made is now insufficient. The defendant was ordered to give a new bond conditioned that he furnish his qhild with necessary and proper home, food, care and clothing and abide the further order of the court and a capias for the defendant was ordered.

Thereupon a capias was issued to the sheriff, plaintiff in error, who arrested Gottschalt and imprisoned him in the county jail, where he was held until released on his application here under review.

No breach of the modified order.was charged nor had the defendant had time to become in default under it, at the time the capias was issued.

The statute under which Gottschalt was originally prosecuted is 'See. 3140-2 Rev. Stat., and that part of it here involved reads as follows :

“Provided, however, if after conviction and before sentence, he shall appear before the court in which said conviction shall have taken place, and enter into bond, to the state of Ohio, in the penal sum of one thousand dollars, to the approval of the court as to surety, conditioned that he will furnish said child or children with necessary and proper home, food, care and clothing, or, if said child or children be in a county or district children’s home, that he will pay to the trustees of said home the reasonable cost of keeping said child or children while remaining in the same, to be fixed by the court as to the amount and times of payment, then said court may suspend sentence therein; * * * and provided further, that upon a failure of said parent to comply with said order and undertaking, he or she may be arrested by the sheriff or other officer on a warrant issued on the precipe of the prosecuting attorney, and brought before the court for sentence, whereupon the court may pass sentence, or for good cause shown, may modify the order and take a new undertaking and further suspend sentence as may be just and proper. ’ ’

It is claimed that because the statute provides for a modification, ■of the original order only in event the defendant fails to comply with it,, it eannot be modified under any other circumstances. We cannot give assent to any such narrow construction. Manifestly the intention of the legislature in authorizing a modification of the order, when the defendant is in default, was to give the trial judge an alternative, so that he would not have to impose sentence, if the defendant failed to comply with the order, but could hear evidence as to his ability to comply with the order, and, if satisfied that the defendant was unable to make the payments, reduce the amount to be paid, instead of sending him to serve his sentence, where he would be unable to make any contributions to his child’s support.

We do not believe that the legislature intended to restrict that broad and continuing jurisdiction over the rights of children which the courts exercise with regard' to their custody, in an enactment evidently intended to provide against their abandonment, and for their nourishment. See Hoffman v. Hoffman, 15 Ohio St. 427.

The prime object in this enactment is the good of the child. As it grows, its wants multiply, and as they multiply and conditions change, the courts have always given heed to the situation and modified their orders to suit the changed conditions. This necessary right to modify their orders affecting children has not been taken from the courts by this legislation.

Further, the original order was before sentence, and “until the further order of the court.” The case is still pending for sentence and the court expressly reserved the right to modify its order. The doctrine of res adjudicata does not apply. The court does not appear to have abused its discretion in the modification which was made on June.2, 1909. We therefore hold that said order is a valid order, and upon failure to comply with it, the defendant may be brought in for sentence.

The record showing that the defendant was not in default as to the latter order, when the capias was issued for him, his arrest and imprisonment were illegal, without warrant of law, and he was properly discharged upon his application.

Judgment affirmed.

Henry and Marvin, JJ., concur,