text:
    MANDAMUS — PUBLICATION
    [Cuyahoga (8th) Court of Appeals,
    December 23, 1918.]
    Grant, Dunlap and Washburn, JJ.
    State ex rel Paul Ciraci v. E. J. Kehres.
    Mandamus to Compel Mayor to Sign Contract Improperly Advertised, Denied.
    Mandamus does not lie to compel the mayor of a village to sign a contract which has been entered into by council for a public improvement, when the advertisement calling for bids for the proposed work appeared on the 7th and 11th and was opened on the 15th of the month.
    Error.

      D. T. Miller and E. P. Wilmoi, for plaintiff 'in error.

      Looker, Green c& Woods, for defendant in error.
   GRANT, J.

The action below was in mandamus. The respondent is mayor of the village of East View. The council of the village, in form of law, declared it to be necessary to improve Kinsman road, one of its streets, at an estimated expense of nearly thirteen thousand dollars, the fund to meet the expenditure being provided for as required by statute.

Notice that bids for the work would be received on April 15, 1918, at meridian, was published in a newspaper of circulation in East View; such publication being twice made, on April 4, and April 11, 1918, respectively, and at no other time. The bids were opened at the date named in the notice namely, on April 15, 1918. Council of the village on July 15, following, found that the relator was the lowest and best bidder- for the work to be done, and thereupon awarded the contract to him and directed the mayor and clerk to execute it by signing it as provided by statute.

The mayor refused to do this, and the suit below was to compel him to do so or show cause why he should not.

For cause the mayor by answer, among other things, alleged that the relator was not the lowest and best bidder for the work; that another bid was seven hundred dollars lower than his bid, which lower bid was rejected by the council on the ostensible ground that the bidders — there were two of them — were subjects of Italy, although they had in due form of law declared their intentions to become citizens of the United States; that the action of the council in receiving bids on the day named and in assuming to award the contract as they did, amounted to an abuse of the discretion vested in them in the matter and so was wholly inoperative and of no effect.

To this defense the relator demurred. The demurrer was overruled, and the relator not choosing to plead further, judgment went against him dismissing his suit. Whereupon he prosecutes error to reverse that judgment.

The sole question here, therefore, is, was the demurrer properly overruled?

This question again is resolved into the further inquiry as to whether any discretion is lodged in the mayor as to signing the contract provided for him by the council, or as to witholding his signature.

For it seems certain that if he has discretion, while mandamus may compel him to exercise it one way or the other, he can not be compelled to exercise in a particular way.

The first proposition concerns the sufficiency of the notice as advertised in point of elapsed time.

The statute in that respect, Sec. 4221 G. C., is as follows:

“All contracts made by the council of a village shall be executed in the name of the village, signed on behalf of the village by the mayor and clerk. When any expenditure other than the compensation of persons employed therein exceed five hundred dollars, such contracts shall be in writing and made with the lowest and best bidder after advertising for not less than two nor more than four consecutive weeks in a newspaper of general circulation within the village. The bids shall be opened at twelve o’clock noon on the last day for filing them, by the clerk of the village and publicly read by him. ’ ’

Without particular regard to the historical evolution of this section, our opinion is that its language, in the respect we are now discussing, furnishes a sufficient test of its application to the exigency confronted by it. What constitutes a week is a matter of common knowledge; it means seven days in continuity of lapse. By the same token, two weeks are fourteen days, one following upon another, in sequence of succession. We find no particular significance in the words “consecutive weeks,” as found in the section. . A literal translation of “consecutive,” is following next. The word throws no light on the question in hand to the effect of varying the definition already given.

To our apprehension, the really operative words which can resolve any doubt in the matter are “not less than.”

“Not less than” two weeks, — unless controlled otherwise by judicial construction — means not less than fourteen days, in a continuous following of one upon that which went next before it.

We feel that any ingenuity expended in coming to another conclusion, would be effort wasted, and work directed to no practicable end.

We have examined Gilfillin v. Koke, 2 Dec. Re. 172 (1 W. L. M. 704), and Harmon v. Whittemore, 7 Dec. Re. 92 (1 Bull. 109). In the former, the late Judge William Lawrence, with characteristic industry, examined the question and reached, substantially, the determination we have indicated as our own in this case. In the latter, the late Judge Hamilton, in this county, followed the former. Both seems to have been well considered.

If we are right about this, then the notice as published, was substantially insufficient and conferred no right on the council to open the bids and let the contract, at the time this was done. What the respondent was called upon to sign, therefore, was in no legal sense a contract.

It will be observed that the requirement of Sec. 4221 is that “all contracts” of the village shall be signed by the mayor. He is not called upon to execute a paper that is no contract. That amount of discretion in the nature of things must be, and unquestionably is, vested in him. His discretion in that respect can not be measured by that of the council, nor can he be controlled in its exercise by what the council may think is a suitable exercise of theirs.

Even if the mayor were to sign such a contract as we have found this one to be, his signature would give to it no vitality and impart no force; it would still be no contract, except as to the form. The enabling statute was still with an unperformed condition, the performance of which could alone create a validity in it.

Our conclusion is that the answer of the respondent stated a defense to the action, and that the demurrer to it was properly overruled.

It follows that there is no error in the record and the judgment under review must be affirmed.

Dunlap and Washburn, JJ., concur.


source: Caselaw Access Project

author: WASHBURN, J.

license: Public Domain

text:
    COURTS — NEGLIGENCE
    [Cuyahoga (8th) Court of Appeals,
    December 16, 1918.]

    Grant, Dunlap and Washburn, JJ>.
    Carl Sawitzke v. Peters Mach. & Mfg. Co. Peters Mach. & Meg. Co. v. Carl Sawitzke.
    1. Evidence that Injured Minor Plaintiff and Mother as Next Friend Appeared in Court without Counsel or Understanding of Proceeding, Competent to Contradict Record as to Jurisdiction Obtained.
    Extrinsic evidence as to failure to obtain jurisdiction in the court below is competent, notwithstanding it contradicts the record of the inferior court, if the allegations are to the effect that the defendant employer brought into court the plaintiff, an injured minor, together with his mother as next friend, and the form of a trial was had and judgment entered in favor of the minor for a small sum as compensation for his injury, the purpose being to give validity to a proposed settlement for said sum, to which proceeding neither the said minor nor his mother had any understanding as to what was being done and no assistance from counsel.
    2. Judgment on Evidence that Boy Was Required to Shift Beit with His Hand Proof of Negligence.
    A judgment is not against the weight of the evidence, if it is for injuries sustained by a boy of sixteen years of age who was required to shift a belt with his hand and it was in dispute whether he had been properly instructed as to how the shift could be made with safety.
    Appeal and Error.

      Howell, Roberts & Duncan, for plaintiff.

      Guthery & Guthery, for defendant.

       Motion to certify overruled by Supreme Court, February 25, 1919, Peters Mach. & Mfg. Co. v. Sawitzke, 64 Bull. 76.

   WASHBURN, J.

Carl Sawitzke recovered a judgment for $3,500 against the Peters Machine & Manufacturing Co. in an action for damages for personal injuries suffered by said Sawitzke while in the employ of said company.

The petition set forth two causes of action, one, in equity, to set aside a settlement and a judgment of a justice of the peace, which it was claimed merely confirmed and carried into effect such settlement, and the other cause was the usual action for personal injuries.

The equity action was tried in the court below and appealed to this court by the company as case number 2247; the action at law is before this court on error proceedings as case number 2316.

It is conceded that if Sawitzke fails in the equity action he fails entirely. His claim in the equity action was that when sixteen years of age he was injured while in the employ of the company, and that a few weeks after the accident, at the instance and request of an attorney for the company, his mother, as his next friend, undertook to settle his claim for damages, which resulted in an alleged judgment for $82 being entered against said company and in favor of Sawitzke in a justice of the peace court, and it is conceded that said judgment was by said company paid in full to the mother of Sawitzke' as his next friend; that the proceedings of the justice of the peace, while in form an action at law, in fact was merely a means used by the company to obtain a release binding upon Sawitzke, a minor and was in fact a proceeding instigated and carried through by said company for its benefit, and that while he and his mother apparently consented to the same, they had no attorney and were entirely ignorant of what was being done; that the attorney for the company assumed to act for both parties and that he failed to inform them and make them understand the nature of the proceedings, and that his conduct amounted to a deception and fraud by which apparent jurisdiction was acquired by the court, when in fact the court acquired no jurisdiction, and that their lack of representation and their nonparticipation in the proceedings, in view of the disability of the infant and the legal inability of the mother as next friend to enter into any compromise or settlement or do anything to waive or change the infant’s rights, rendered said proceedings a mere sham without substance, and that in fact there was no suit and consequently no valid judgment.

It is quite easy to extract from the evidence the real truth as to the important and controlling facts, but we are met on the threshold of the inquiry with the contention of the company that insomuch as it appears by the record of the justice of the peace that the court had jurisdiction of the parties, no extrinsic evidence is admissible to contradict the presumptions or recitals of the record.

The record of the justice of the peace is to the effect that the plaintiff in that court filed a bill of particulars, and that the defendant entered its appearance, and then the record reads:

“Plaintiff sworn and heard; no defense; trial had; wherefore on said day it is considered that the said plaintiff recover of said defendant the sum of $82 damages, and the costs of this suit herein, taxed at $1.50.”

We find the rule of law on this subject to be that when the judgment of an inferior court is drawn in question in any collateral way, and the record shows on its face that jurisdiction of the parties was obtained, then the record imports absolute verity and extrinsic evidence is not competent to contradict the recital of the record; but when the judgment is directly attacked for want of jurisdiction, such want of jurisdiction may be shown, though it be in contradiction of the record.

The difficulty lies in determining what is a direct and what is a collateral attack. It is said that a direct attack is one by which the judgment is directly assailed in some mode authorized by law.

We regard it as settled that a judgment may be impeached in a suit instituted against the party through whose means, and by whose procurement a fraudulent judgment is obtained, where such fraud amounts to a fraud on the court as well as on the opposite party, and that such a proceeding is a direct attack upon the judgment, and in such a case extrinsic evidence is admissible though it contradicts the record.

The question is, do the allegations of the petition bring the case within the rule of a direct attack? As we view it, the complaint attacks the foundation of the judgment in question — the jurisdiction of the justices of the peace.

If jurisdiction was conferred upon the justice, it was by plaintiff’s filing a bill of particulars and knowingly participating in the trial as such plaintiff.

The petition alleges that the bill of particulars was not filed by Sawitzke or his mother, but was filed by the company, and that Sawitzke and his mother did not participate in a trial — that in fact no trial was had, and that said judgment was rendered upon the confession of the company and without the will or consent of Sawitzke or his mother, and the prayer is that the judgment be adjudged to be void and of no effect.

The fraud alleged consists in the attorney for the company, without any authority so to do, assuming to file a bill of particulars on behalf of Sawitzke, when Sawitzke and his mother were wholly ignorant of the proceedings, and in assuming, while really representing the company, to act also for Sawitzke and his mother in instigating and participating in a pretended trial, when in fact no trial was had.

In this connection, it is well to keep in mind the fact that Sawitzke’s infancy precluded him from making any binding agreement of settlement or taking any part in a court proceeding which would be binding on him; and that his mother, neither as next friend nor as guardian for the suit, could waive any of his rights or enter into any agreement or arrangement binding on him; the office of next friend is solely to bring the infant into court because of his legal inability to present his own case; the next friend can do nothing which may injure the rights of the infant and his admissions are not binding upon the infant; the next friend can not release a cause of action, nor compromise, nor submit it to an arbitration.

We hold that under the allegations of the petition the evidence objected to is competent, and that the evidence establishes facts which constitute legal fraud in the procurement of said judgment, and that the same should be„set aside, and it is so ordered.

In the error proceeding we find that there was no error in the action of the court below in setting aside said judgment.

The other error complained of in the trial of the case to the jury is, that the verdict and judgment are against the weight of the evidence in that there was no evidence of negligence on the part of the company.

The negligence complained of was that Sawitzke, who was an infant sixteen years of age, had had no experience in the handling and operating of machinery and was wholly inexperienced and ignorant as to the dangers in connection with the shifting of belts which was a part of the work he was employed to do, and in the doing of which he received his injuries, and that the compány negligently and carelessly set him at said work without giving him any instructions or warning and without showing him the safe and proper way to do said work and to shift the belt when necessary to be done in the performance of said work, and that said company, in violation of the statutes of Ohio, negligently and carelessly failed to have upon the machinery operated by him in the performance of said work, or in connection therewith, any shifter to be used in shifting the belt upon the pulleys ' in the operation of said machinery, and required him to do said work of shifting said belt by using his hand, which was a dangerous and unsafe method of performing said work.

The defense pleaded in this branch of the case was a denial of negligence and that the injuries were caused or contributed to by the negligence of Sawitzke.

The claim of the company is that the evidence discloses that there was no negligence in not instructing Sawitzke, because he had performed the operation of shifting said belt frequently every day and at the time of the injury had performed the operation four or five hundred times.-

But the evidence also disclosed that the accident was caused by an unusual occurrence in that, after he had shifted the belt at the top and was in the act of shifting it at the bottom, it jumped back on to the cone at the top from which it had been shifted, and thereby his hand was caught and jerked in between the belt and the cone, causing the injury; and there was evidence that he was not instructed and there was also evidence on behalf of the company tending to prove that he was instructed.

Under such circumstances, it was peculiarly a question for the jury to determine whether or not the'company owed Sawitzke a duty to instruct him, and whether it failed in that behalf, and whether such failure to perform that duty was negligence which was the proximate cause of the injury, and we can not say as a matter of law that no duty existed or that a finding of such duty and failure of its performance is against the weight of the evidence.

The company also claims that while the statutes of Ohio in general terms requires belt shifters, the evidence discloses that at the time of this injury no shifter of any kind was in use for the purpose of shifting belts on cone pulleys of the character in question, and that no shifter suitable for such purpose had then been devised which was practical, and that for that reason it was not negligence on the part of the company to not comply with the statute.

There was much testimony pro and con as to such shifters being practical and in use since the accident, and there was some testimony to the effect that they were in use before the accident.-

The judge charged the jury:

“And if you find from the evidence that there was no shifter suitable for that purpose provided at that time then I say to you, the company was not guilty of negligence in not having the shifters. ’ ’

Without discussing the correctness of this instruction, we feel that the company was given the full benefit of their contention, and as there was another claim of negligence which might account for the verdict of the jury, we can not determine which way the jury found this question of fact, and consequently it is useless to consider or speculate as to whether such finding is or is not against the weight of the evidence.

We find no error in the record prejudicial to the plaintiff in error, and the judgment in case number 2316 is affirmed.

Grant and Dunlap, JJ., concur in both cases.


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

text:
    BROKERS — SALES
    [Hamilton (1st) Court of Appeals,
    January 24, 1916.]
    Jones, Jones and Gorman, JJ.
    Lippencott Co. v. R. A. Holden Co.
    Broker not Required to Repay Purchase Price of Dried Apples.
    A broker, selling dried apples by sample with opportunity of inspection by the buyer on delivery, is not required to repay the purchase price to the buyer, because the goods, five days after acceptance, were condemned by a federal inspector as unfit for food.
    Error.

      Bentley <So Mente, for plaintiff in error.

      Squire & Bielly, for defendant in error.
   JONES, (Q. B.),J.

The question in this case is whether a broker, who sold dried apples by sample, is required to repay the purchase price to the purchaser, when the dried apples transported in interstate commerce were seized by the Federal government as being in violation of the Federal food and drug act, and were condemned and destroyed by virtue of proceedings under a libel filed in the United States District Court.

The record shows that the sale was made by sample; opportunity was given the purchaser to fully inspect the shipment when it arrived July 25,1913. The goods were accepted and sent by the purchaser to cold storage, and paid for to the broker July 28. Afterwards they were seized by the Federal inspector who first inspected them five days after their acceptance.

The proof fails to show that the goods were not up to sample, or that they were adulterated and unfit for food at the time of acceptance by the purchaser. It does not appear that the broker ever saw the goods, or that he was in any way responsible for the condition in which they were received, or that he made any representations whatever to the purchaser further than to exhibit to him the sample by which the sale was made and to notify him of the receipt of the goods in the railroad ear.

No defense to the libel was made by the purchaser or by anyone in the proceedings in the federal court. After the monition and attachment issued, notice by publication was made and mailed to the purchaser, the warehouseman, the broker, and the shipper. Final judgment was entered November 5, 1913, sustaining the allegations of the libel, and adjudging the dried apples under seizure adulterated, in violation of said food and drugs act, condemning them and ordering their destruction. A copy of these proceedings and judgment was relied upon by defendant as being conclusive proof of the unsalable condition of the goods when they were shipped and when they were accepted by the purchaser. This was an action in rem, and can only speak as to the condition of the goods at the time of the seizure. There is nothing in the record except possible inference to show their condition previous to that time, either at the time of sale or delivery.

A careful consideration of the record fails to disclose any error to the prejudice of the plaintiff in error and the judgment is therefore affirmed.

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


text:
    WITNESSES
    [Cuyahoga (8th) Court of Appeals,
    February, 1919.]
    Washburn, Grant and Gorman, JJ.
    W. C. Crouch v. Irene Fishbein.
    1. Competency of Children of Tender Years as Witnesses is Question of Legal Discretion Reviewable on Error.
    When a child of tender years is offered as a witness, and objection is made to the competency of such witness, it is the duty of the court to examine or cause the witness to be examined and to determine as a matter of law whether or not the witness has sufficient ability to receive impressions and relate truthfully facts and circumstances connected with the transaction. The question of whether or not the witness is competent to testify is left to the sound decision of the trial judge, but such discretion is a legal discretion and subject to review in error proceedings duly prosecuted.
    2. Incompetency of Child Witness Raised at Close of Examination.
    If the ineompetency of a child witness is apparent from a consideration of the testimony of the witness, the question of such competency may be raised at the close of the examination of the witness by a motion to exclude the testimony of the witness, although no objection was made at the time the witness was offered.
    3. Child, Five and One-half Year Old Child Incapable of Relating Impressions Received Year Previous Incompetent.
    A court abuses legal discretion in overruling a motion to exclude the testimony of a child witness of whom it is apparent that the witness, a child of five and one-half years, has no comprehension of the nature of an oath and is incapable of relating truthfully impressions received a year previous concerning the transaction in issue.
    Error to the municipal court.

      Hoyt, Dustin, Kelley, MeKeehan & Andrews, for plaintiff in error.

      Ha/rry C. GaJin, for defendant in error.
   WASHBURN, J.

Defendant in error, when four and one-half years of age, was injured in a collision with the automobile of plaintiff in error in one of the public streets in the city of Cleveland. She was crossing the street not at a crossing, and the evidence of negligence on the part of plaintiff in error, if any snch there was, was very slight indeed. She recovered a judgment, and the matter is before this court for review on error.

As has been said, plaintiff was a little girl, four and one-half years old at the time of the accident, and the trial was had a year later. At the trial she was offered as a witness. At the close of her testimony a motion was made to exclude her testimony on the ground that she was not old enough to be a competent witness. That motion was overruled and exception taken.

There was no examination of the witness at any time to ascertain her ability to receive impressions, or her ability to relate facts and circumstances truthfully, and nothing was said in the charge of the court as to the duty of the jury in weighing and considering the testimony of a small child, and that, too, when the only other witness to the transaction on behalf of the plaintiff was a child five and one-half years old at the time of the accident and six and one-half years old at the time of the trial.

It is true that no request for such charge was made, and it is true also that when the youngest child was offered as a witness no objection was made to her testimony and no request was made for an examination to ascertain her qualifications. There was, however, as I have said, a motion to exclude her testimony at its conclusion, which was overruled and to which exception was noted.

At two places in her testimony, she said she did not know how old she was, and in another place she said her age was five and one-half years. At one place in her testimony she said that she was hit by the automobile, and in another place she says she did not know what hit her. She says that the accident occurred in the summer time, and that there was no snow on the ground, when it is admitted that it occurred in the winter time when there was a heavy fall of snow. She testified that she attended a kindergarten school, but she could not tell how long she had been going to a kindergarten, or what month she started, or whether rt was in the fall.

Most of the questions put to her were leading questions which could be answered by yes or no, and at no place in the record does it appear that she was asked to relate what occurred so that anyone hearing the testimony would have a better opportunity to form a judgment as to her ability to receive impressions and relate facts and circumstances truthfully.

The statute provides that -.

“All persons are competent witnesses except those of unsound mind, and children under ten years of age who appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly. ’ ’

It is well settled that when a child under ten years of age is offered as a witness, and objection is made to the competency of such witness, it is the duty of the court to examine the witness and determine as a matter of law whether or not the witness has sufficient ability to receive impressions and relate facts and circumstances connected with the transaction truthfully, and that the question of whether or not the witness is competent to testify is largely in the discretion of the trial judge.

While there are no reported cases on the subject in the Supreme Court of Ohio, there are such cases in other states, and no doubt the question has arisen many times in the lower courts of Ohio. There are reported cases where a child as young as six years of age has been held to be competent to testify. In the case at bar the child was attempting to relate impressions which were received when she was four and one-half years of age, and from an examination of the record we think that it appears that the plaintiff was incapable at that time of receiving just impressions of the facts and transactions respecting which she was examined, and at the time of the trial she was incapable of relating truthfully impressions received a year previous, and for that reason she was not a competent witness. We are not unmindful of the fact that no objection was made as to her competency at the time she was offered, and that no request was made of the court to charge the jury on the subject of the weight to be given to the testimony of witnesses of such tender years, but this was a trial conducted by a court charged with the duty of seeing that justice was administered, and when a kindergarten witness of such tender years was offered, who manifestly knew nothing about the nature of an oath, it was the duty of the court to at least ascertain whether she knew right from wrong, and whether she knew that it was wrong to tell an untruth, and what was likely to happen if an untruth was told, and then to have her relate what took place in a narrative way in the first instance, and not have her testimony given almost entirely in answer to leading questions.

Considering the very tender years of this child, this was a duty which the court owed to the administration of justice, but as no objection was made by the plaintiff in error, he can not now complain because the court did not discharge that manifest duty. However, at the close of her testimony after her ineompetency had been made apparent by the answers she gave to the questions propounded to her, the court should have granted the motion of the plaintiff in error to exclude her testimony on the ground that she was not a competent witness, and the plaintiff in error by his exception to that ruling placed himself in a position to take advantage of the error committed by the court.

We recognize fully that the decision of such matters should be left almost exclusively to the sound discretion of the trial judge, but in this case the witness, being so very young, and her incompetency so apparent, and her testimony so important (there being but one other witness to the transaction in her behalf, and she was only a year older), we feel that the court abused its discretion in permitting such child to testify, and for that reason the case ought to be, and is reversed.

Grant and Dunlap, JJ., concur.


author: POWELL, J.

text:
    DESCENT AND DISTRIBUTION
    [Delaware (5th) Court of Appeals,
    1918.]
    Powell, Houck and Shields, JJ.

      Edwin M. Paul et al v. Frank Brown et al.
    Personal Property Coming From Intestate Husband Descends to Brothers and Sisters of Intestate Wife.
    Upon the death of a widow, intestate and without issue, personal property which came to her from her deceased husband, who also died intestate, does not pass to the children of said husband by a former marriage, but to her own brothers and sisters.
    Error.

      T. E. Powell, for plaintiffs in error.

      Marriott, Freshwater & Wickham, for defendants in error.

       Motion to certify overruled by Supreme Court, November 12, 1918, Paul v. Brown, 63 Bull. 438.

   POWELL, J.

Carey B. Paul, late of this county, died January 11, 1901, intestate. He left five children surviving him, and a widow, Sarah C. Paul. The five children were the children of a former marriage and were not the children of the widow, Sarah C. Paul. He left a large estate which passed, under the statutes of descent and distribution, to his widow and children in their statutory proportions.

Sarah C. Paul, the widow, died December 30, 1915, intestate and without issue, possessed of a large amount of personal property which came to her from her deceased husband on distribution of his estate.

Petitions were filed by four of the children of said Carey B. Paul, deceased, asking the direction of the court, to the effect that they are entitled to the share of the estate of said Sarah C. Paul, deceased, for distribution, which came to her from her former deceased husband, their father.

One of said children, Frank C. Paul, did not join as plaintiff and was made defendant to the action. The issue was made up by the filing of an amended petition, the answer thereto of the defendants, Frank Brown and Anne E. Carpenter, and F. M. Marriott as special administrator of the estate of said Sarah C. Paul, deceased, and the reply thereto of the plaintiffs. The case was submitted to the court of common pleas upon the admissions of fact contained in the pleadings, and upon such admission a judgment was entered in favor of the defendants. Motion for a new trial was filed and overruled. A petition in error was filed in this court with a transcript of the proceedings had in the court of common pleas.

The queston presented for adjudication is as to how such property in the possession of said Sarah C. Paul should be distributed under the statutes of descent and distribution. The claim of the children of Carey B. Paul is that the distribution of such property as Sarah C. Paul owned at the time of her death, that came to her from the estate of Carey B. Paul, passes and descends under the provisions of Sec. 8577 G. C. to the five children of the said Carey B. Paul in equal proportions; while the defendants, Frank Brown and Anne E. Carpenter, as brother and sister of the said Sarah C. Paul, and the defendant, F. M. Marriott, as administrator of her estate, claim that the entire personal estate of the said Sarah C. Paul passes and descends to the said Frank Brown and Anne E. Carpenter as her next of kin, without reference to the source from which such property came to her, under the provisions of Sec. 8578 G. C. which by reference requires all property that passes by virtue of said section to be distributed according to the classification prescribed by Sec. 8574, but subject, “however, to such right as a widow or widower may have to any part of such personal property. ’ ’

So much of Sec. 8577, as is applicable to the question here involved reads as follows:

‘' Section 8577. When the relict of a deceased husband or wife dies intestate and without issue, possessed of any real estate or personal property which came to such intestate from a former husband or wife by deed or gift, devise or bequest, or under the provisions of section eighty-five hundred and seventy-four, then such estate, real and personal, shall pass to and vest in the children of such deceased husband, or wife, or the legal representatives of such children.”

Section 8578, or so much thereof as is applicable to this case, reads as follows:

“Section 8578. When a person dies intestate and leaves personal property, it shall be distributed in the manner prescribed in section eighty-five hundred and seventy-four, as to real property which came not by descent, devise or deed of gift from an ancestor; saving, however, such right as a widow or widower may have to any part of such personal property.”

Applying the provisions of Sec. 8577 to the case now under discussion, we have:

1. ■ Sarah C. Paul is the relict of a deceased husband, Carey B. Paul, both dying intestate and without issue.

2. She was possessed of a large amount of money and other personal property which came to her from such former deceased husband under the statutes of descent and distribution.

3. “Such estate, real and personal, shall pass to and vest in the children of such deceased husband, or the legal representatives of such children,” if the same came to her from her deceased husband’s estate “by deed of gift, devise or bequest, or under the provisions of section eighty-five hundred and seventy-four.”

It is contended in the briefs of counsel that said Sarah C. Paul did not come into possession of said money by deed of gift, devise or bequest, or under the provisions of See. 8574, therefore the provisions of Sec. 8577 do not apply. By Sec. 8578 G. C. the title to personal property of an intestate passes on distribution of his estate, by the course of descent prescribed by See. 8574, subject, however, to such right as a widow or widower may have in the personal property of such decedent. This would include any right which a widow or widower would have in the personal property of the deceased consort. This saving clause would indicate that a widow or widower, relict of a former deceased husband or wife, has other rights in the personal property of such deceased consort than are to be found in Sees. 8578 and 8574, and that a widow’s rights as defined by these two sections are such other rights as are exempted from the operation of said two sections. By Sec. 8574, a widow, relict of a deceased husband, is entitled to all the personal property of said deceased husband for distribution if there are no children or legal representatives of children of such deceased husband. This is the only provision made by Sec. 8574 for the benefit of such widow, and it is the opinion of the court that this is the provision to which reference is made in Sec. 8577 as to property which came to such intestate under the provisions of said See. 8574.

In such case, too, where the widow or widower takes the whole estate of such intestate by virtue of See. 8574, she takes it as next of kin of such intestate (See. 8592 G. C.). When there are children surviving, the widow does not take as next of kin. Such children are next of kin of such intestate and take the whole of the personal property to the exclusion of the widow, so far as the independent provisions of See. 8574 are concerned, but they take it even under said section subject to such other rights as the widow may have by other provisions of the statute. By virtue of See. 8592, the widow takes as next of kin of her deceased husband all the personal property subject to distribution on settlement of the estate, provided there are no children of such intestate surviving. This is the same provision that is made for her by See. 8574. But Sec. 8592 goes further and prescribes what she shall have if her deceased husband left children sur-, viving him. In such event she is ‘ ‘ entitled to one-half of the first four hundred dollars and to one-third of the -remainder of the personal property subject to distribution.” As said above she does not take this share as next of kin, but is entitled to it, as we think, solely by operation of said statute, Sec. 8592. Doyle v. Doyle, 50 Ohio St. 330 [34 N. E. 166].

Iier title to the property sought to be recovered in this action is a title solely by virtue of this statute and as a consequence resulting therefrom it does not descend or pass from her on distribution of her estate, under the direction of Sec. 8577, but does pass and descend under the provisions of Secs. 8578 and 8574 as directed by said Sec. 8578.

It follows, therefore, that as the property in her possession at her death, which came to her from her deceased husband, did not come to her by deed of gift, devise or bequest, or under the provisions of Sec. 8574, it does not pass on distribution of her estate, under Sec. 8577, but does pass generally under Secs. 8578, 8574 and 8592.

The judgment of the court of common pleas directing the distribution of said estate to the said defendants, Frank Brown and Anne E. Carpenter, as the brother and sister of said decedent, and to her administrator, was the proper judgment and decree to have been entered and should be affirmed by a reviewing court.

Judgment affirmed.

Houck and Shields, JJ., concur.


author: GRANT, J.

text:
    ERROR
    [Cuyahoga (8th) Court of Appeals,
    February 7, 1919.]
    Grant, Dunlap and Washburn, J.T>.
    D. C. Meck v. Henrietta D. Grauel.
    Jurisdiction Questioned Previous to Judgment.
    An action brought in the municipal court of Cleveland on two causes of action, one for $2,000 based on tort and another for $500 on contract, under a rule that objection to the jurisdiction of the court in which the action was instituted may be made at any time before judgment is actually entered, will be reversed for lack of jurisdiction as to the first cause of action and an order made remanding the case for further proceedings.
    Error to Cleveland municipal court.

      R. Hughes Johnson, Esq., and R. W. Woods, for plaintiff in error.

      John A. Cline, Esq., for defendant in error.
   GRANT, J.

In the view we take of this case we need discuss only one question — that of jurisdiction in the court below.

The plaintiff there — defendant in this proceeding — declared on two causes of action, one in tort, in which she laid her damages at two thousand dollars, and the other on contract, in which the amount claimed was five hundred dollars.

The law limiting, or bounding, the jurisdiction of that court, as to amounts, Sec. 1579-6 G. C., par. 2, is as follows:

“In all actions and proceedings at law for the recovery of money or personal property of which the courts of common pleas of the county of Cuyahoga, have, or may be given, jurisdiction, when the amount claimed by any party, or the appraised value of the personal property sought to be recovered, does not exceed one thousand dollars, and in such actions judgment may be rendered for over one thousand dollars when the excess over one thousand dollars shall consist of interest or damages, or costs accrued after the commencement of the action. ’ ’

It will be observed that the limitation thus provided, has to do, not with the amount recovered, but with “the amount claimed. ’ ’

Having regard to the nature of the action, we must find that the jurisdiction of the municipal court is clearly denied by the statute; we see no escape from that conclusion.

Perhaps this is not disputed. But it is said that the point has been waived, or that the objection comes too late to defeat the action now- — not having been asserted or mentioned up to the argument at the bar.

The suggestion is not allowable. The jurisdiction denied by the statute quoted is of the subject of the action — not of the parties to it.

The law controlling the question and covering all the points relied on to take off the effect of the statute, is stated in 7 Ruling Case Law, 1042-3 as follows:

“Where judicial tribunals have no jurisdiction of the subject-matter on which they assume to act, their proceedings are absolutely void in the strictest sense of the term; and a court which is competent to decide on its own jurisdiction in a given ease may determine that question at any time in the proceedings of the cause, whenever that fact is made to appear to its satisfaction, either before or after judgment. Accordingly, an objection for want of jurisdiction, if it exists, may be raised by answer, or at any subsequent stage of the proceedings; and in fact it may be raised for the first time on appeal. A court will recognize want of jurisdiction over the subject-matter, even if no objection is made, and therefore whenever a want of jurisdiction is suggested, by the court’s examination of the case or otherwise, it is the duty of the court to consider it; for if the court is without jurisdiction it is powerless to act in the case. A plaintiff against whom judgment went in the lower court may on appeal raise the question of the jurisdiction of the trial court and have the judgment reversed if the court did not have jurisdiction of the subject-matter, though the assumption of jurisdiction was to his advantage. As heretofore shown, the jurisdiction of a court over the subject-matter of a cause of action must be conferred by law, and it can not under any circumstances be conferred on a court, as such, by the consent of the parties. It naturally follows that if jurisdiction can not be conferred by consent, the want thereof can not be waived by any act of the parties.”

This statement of the law applicable to, and decisive of this case, fits it like a wedding garment. It is backed by an ample line of authorities.

Indeed, to decide the main question of contention here, one need not go outside of this state or this court, to reach a like conclusion.

The case of the State v. Prestien (not reported), was in mandamus. It was begun in the common pleas court of this county, from whose judgment the relator took an appeal to this court. It was fully heard by us, argued and submitted for final determination. While it was being thus held under advisement, the respondent moved to dismiss the appeal for want of jurisdiction under the then new constitution — the writ of mandamus not being of chancery cognizance.

The motion was granted. A rehearing was allowed and a bill of exceptions was taken, showing the facts of trial, argument and final submission, without objection or suggestion on the part of the respondent.

Again the motion to dismiss was sustained and judgment went against the relator for costs.

The Supreme Court reviewed the case and held that a motion to the jurisdiction, made at any time before judgment was actually entered, was not too late, and affirmed us. See State v. Prestien, 93 Ohio St. 423 [113 N. E. 325].

It decides this case. The judgment is reversed, the trial court having no jurisdiction of the first cause of action.

The cause is remanded to the court from whence it came, for such further proceedings as may be in accordance with law.

Dunlap and Washburn, JJ., concur.


text:
    GUARD RAILS — MUNICIPAL CORPORATIONS
    [Cuyahoga (8th) Court of Appeals,
    January 13, 1919.]
    Grant, Dunlap and Washburn, JJ.
    Florence Dalton v. Cleveland Elec. Ill. Co.
    Whether Ordinance Requiring Erection of Guard Rails Applies To Interior Areaway is Question for Jury.
    Whether an ordinance requiring owners of property along street lines and on areaways back from streets, where the level is above that of the street, to erect guard rails to prevent injury to persons passing by, applies to the owner of a lot which he had permitted to be generally and extensively used for many years by persons on foot and by vehicles, as a passage way leading from a street to an alley and along which and adjoining his building he has constructed a side wait and a paved drive way is a question for the jury, and a determination by the court that the ordinance was without application and inadmissible in evidence, as a matter of law, constitutes error requiring a reversal of the judgment based thereon.
    Error.

      Payer, Winch, Minshall & Karsh, for plaintiff in error.

      Squire, Sanders & Dempsey, for defendant in error.
   WASHBURN, J.

Plaintiff in error, a child about four years of age, while playing on the property of defendant in error, in the city of Cleveland, Ohio, fell into an areaway and broke her arm. She brought suit to recover for her injury. At the trial, in support of the allegations of her petition, she offered certain ordinances of the city of Cleveland which she claimed required the defendant in error to guard said areaway by a railing along the same. Objection to this evidence was sustained and exception duly noted. At the close of plaintiff’s evidence the trial court sustained the motion of defendant in error for a judgment in its favor, to which ruling plaintiff in error excepted, as she also did to the overruling of her motion for a new trial.

The theory of the defendant in error which seems to have been the basis of the court’s action, was that the plaintiff in error was a trespasser, or at least a bare licensee to whom the defendant in error owed no duty which it violated, and that the ordinances in question were not applicable to the situation, or did not create a duty to the plaintiff in error.

The evidence, as shown by the record, tended to prove that the ground where the plaintiff in error was injured, which was a part of a vacant lot, had been used for more than twenty-one years as a passageway from the street to an alley, along which were manufacturing plants, and that it had been very generally and extensively used by persons on foot and by vehicles of all descriptions; that about three or four.years before the accident the defendant in error construed a building on the portion of said lot just west of said passageway, and that on the east side- of said building and along said passageway it constructed an areaway about 16 or 18 inches below the surface of the ground, and that it built a coping along the edge of said areaway about-12 or 15 inches high, so that the areaway was a little less than three feet deep from the top of the coping. This areaway was along the east side of said building, and the defendant in error constructed along the east side of the areaway and immediately adjoining it a stone sidewalk leading from the street to the rear of the building, and also paved said driveway, which immediately joined said sidewalk on the east.

Said driveway, after said improvements were made, continued to be extensively used by the public in going from said street to and along said alley, and in the photographs in the record it has the appearance of being a street, but it is conceded that it is, in fact, private property.

The ordinances in question require protection by railings along areaways along street lines and also along areaways back from the street, but whose protection the railings along areaways back from the street are required is not stated, and we need not determine in this ease; nor does it appear how deep the excavation must be in order to be an areaway within the meaning of the ordinances.

In view of the situation disclosed by this record we do not feel that it was the province of the court to determine, as a matter of law, that a railing along the areaway in question was or was not required by said ordinances.

The ordinances provide for guard rails on areaways adjoining streets; there-could be no two opinions about the matter, and therefore a question properly to be determined by the court, if the areaway was along the line of the sidewalk on a dedicated public street. But the ordinances also provide for guard rails on areaways along public spaces or any passageway or court.

The defendant in error, having built the sidewalk and created the situation which has the appearance of a street, and having, so far as the record now discloses, permitted it to be in all respects used as a street or passageway, we think that it was a question for the jury, under proper instructions by the court, to determine whether or not, under all the circumstances, this area-way was so situated as to be within the purview of said ordinance, and therefore was required to be provided with a guard or rail. Sovignac v. Garrison, 59 U. S. (18 How.) 136 [15 L. Ed. 290].

But defendant in error contends that, conceding that the ordinances required a railing under the circumstances here disclosed, still that requirement was not for the benefit of plaintiff in error, who had no business upon said property and was at best a mere licensee; that its duty to such is fixed by the common law, and that the effect of the ordinances is not to extend its duties to those to whom it theretofore owed no duty, but rather to define and fix the extent of the duty to those to whom it already owed a duty.

It is conceded by the plaintiff in error that but for these ordinances the plaintiff in error was, under the laws of Ohio, a mere licensee, and could not, at common law, recover damages for her injury from the defendant in error; but she claims that said ordinances required a guard rail along the areaway in question and that such requirement was for the benefit of the public generally, herself included, and that the common law rule of duty owed by property owners to trespassers and licensees has been modified by said ordinances.

The. question thus presented is not a new one; it has been before many courts and there is an apparent diversity of opinion in reference to the matter.

We may eliminate those cases where the ordinance or statute imposed duties to or for the benefit of the municipality or the public, as an entity, for in such cases individuals, as such, have no right of action growing out of the violation of the ordinance or statute.

There is also a class of cases where duties are imposed for the benefit of a particular class, and in such cases only the persons coming within the particular class can complain of the violation of the ordinance or statute.

There is, however, a third class of cases in which the ordinance or statute imposes duties for the benefit of the public considered as a composite of individuals. It is said in one of the cases, speaking of' this class of ordinances, that:

‘1 There are police regulations for the protection of the public. relative to matters with which the public contact is commonly through individuals, and as to which the individuals are entitled to assume that the law has been observed.”

The line of demarcation between the second and third classes above mentioned is not clearly defined in the cases, and it is not onr purpose to try to lay down any general rule on the subject.

It is sufficient to observe that the cases where the ordinance or statute has been held to be for the benefit of a particular class are cases where the thing or object which is the subject of the law and required to be guarded is usually or almost necessarily removed from contact with the general public, or cases where, because of the peculiar wording of the law, it is apparent that it is for the benefit of a particular class.

None of them, so far as we have been able to ascertain, have been cases where the thing to be guarded is close to and open to a public street, and although upon private property is at a place where the public generally have a right to go or by long continued custom have been in the habit of going.

In the case at bar the evidence tends to prove that the areaway in question was close to a public street and was alongside of the part of defendant in error’s property which it had improved, so as to give it the appearance of a street, and which it had permitted to be used as a street by the general public for many years.

If, under the court’s instruction as to the objects and purposes and meaning of the ordinances, the jury should find facts which brings this areaway within the terms of the ordinances, then under the situation which the evidence as it now is tends to prove, we hold that the requirement of a guard or railing on said areaway is not for the benefit of a particular class but for the benefit of the public, considered as a composite of individuals, and that a right of action arises in one of the public when he has sustained some special injury by reason of a non-compliance with the ordinances, irrespective of the fact that at common law he would be considered a mere licensee. Conway v. Monidah Trust Co., 47 Mont. 269 [132 Pac. 26], and cases therein cited.

Although not directly in point, this conclusion is aided by a consideration of the cases on the question of what constitutes an invitation by an owner to the public to come upon his premises. While it is definitely settled in Ohio that a mere permission by the owner of the use of his premises will not be considered as an inducement, or an allurement, or an enticement so as to amount to an invitation, still it has not been determined that where an owner improves his property so that it may be used by the public as a street, and permits the public to so use it as a street, that under such circumstances there may not be an implied invitation on the part of the owner to so use his property; at least it has not been determined that under such circumstances the trial court is justified in finding as a matter of law that such person is a trespasser to whom the owner owes no duty.

It must be remembered that we have before us a case where the various questions which we have been discussing were determined by the court as matters of law, and that the rule as stated by an eminent authority, is that:

“Where the facts are undisputed, and where, although undisputed, the inference to be deduced from them is clear and certain, it is a question of law for the court. Although the facts are not controverted, yet if different minds may reasonably draw different conclusions, the question is one for the jury as one of fact, and not for the court as one of law. ’ ’

It is further claimed by the defendant in error that even if it was negligence on its part not to have a railing on said areaway, still such negligence is not proven by the record to have been the proximate cause of plaintiff’s injury.

Whether or not a non-compliance with the statute was the proximate cause of plaintiff’s injury is not, as we view it, under the evidence now in the record, a question for the court to determine. Proximate cause is usually a mixed question of law and fact. It is not necessary to prove the cause to a demonstration; if the evidence establishes circumstances from which it may fairly be inferred that there is reasonable probability that the neglect complained of caused the injury, then it is clearly a question for the jury. Haynes v. Michigan Central Ry., 111 U. S. 228, 238 [28 L. Ed. 410; 4 Sup. Ct. 369].

. We hold that the evidence offered was competent and that the ease should have been submitted to a jury, and that it was error for the court to direct a verdict for the defendant in error.

Judgment reversed and cause remanded.

Grant and Dunlap, JJ., concur.


author: GRANT, 3.

text:
    LANDLORD AND TENANT
    [Cuyahoga (8th) Court of Appeals,
    January 20, 1919.]
    Grant, Dunlap and Washburn, JJ.
    J. M. Halliday v. G. L. Taft.
    Tenant Liable for Rent until new Tenant Secured on Vacation of Lease though Full Occupancy not Taken.
    Under a written lease covering a dwelling, upon which $20 was paid at the time the lease was executed, the refusal of the tenant after entering into possession and partial occupancy to carry out the further terms of the lease because of some alleged interference on the part of the landlord, entitles the latter to judgment for the full amount of rental falling due until such time as another tenant could be secured.

      B. W. Jeremiah, Esq., for plaintiff in error.

      Jacob II. Schoen, Esq., for defendant in error.
   GRANT, 3.

Error to the municipal court of Cleveland.

The plaintiff declared on a written lease for the rental of a property of his at $480 for the year, the same to be paid in sums of forty dollars for each month, in advance. The defendant paid twenty dollars at the time the bargain was struck, and no more at any time. There was no counterclaim.

The trial below was to the court. There was evidence which the court had a right to believe, and which to make the judgment consistent the court did believe, tending to show the following facts: After the execution of the lease and the initial payment on it, the defendant sought and obtained permission from the plaintiff’s tenant then occupying it, whose term had not at the time ended, to store some of his goods in the house, which he did. He bought from the outgoing tenant an individual lock, which the latter had put on the door to prevent intrusion by the landlord with its key. The defendant’s family, for the purpose of cleaning it at least, exercised acts of occupancy in the house, and were for all purposes of the action in actual possession of the premises.

After this the defendant concluded to go back from his bargain and moved into other premises which for some reason appeared more satisfactory to him. The excuse alleged was that the plaintiff was disposed to interfere too furtively, as his wife thought, with the latter in her operation of scrubbing the floor. He told the plaintiff he would not abide by his contract, doing some blustering, as the latter says, about the lease not being worth the paper it was written on, saying he was in the government service and so bullet-proof as far as collections were concerned, and making the usual inconsiderate talk of the man who is proud of being independently poor.

The landlord, however, was not affected by the terrors surrounding government understrappers, and in effect answered, as did Paul the Apostle when he sent back the box of compound cathartic pills to the elders of the Church at Ephesus, “None of these things move me,” and notified the tenant that he should hold him to his bargain.

By its terms the lease was to become operative November 1st.

After the defendant informed the plaintiff that he would no longer occupy his house, the latter made seasonable and suitable efforts to rent the property to others, advertising it in the newspapers. He, however, obtained no other tenant, and about the middle of January sold the property. The sale seems to have been absolute as of that date, no right of possession beyond that time being reserved by the deed or otherwise, so far as appears. The purchaser did not in fact take possession until some time in the early part of February. We express no opinion upon the effect of this retention of possession through the entire month of January, as it is not material in the view we take of the case.

The plaintiff sued for one hundred dollars, being the rental for the months of November, December and January, at the agreed rate of forty dollars a month, less the twenty dollars down payment. He is entitled to recover, upon the facts which the trial court must have found in order to allow him any sum at all, the rents at least for November and December, which, applying the credit of twenty dollars paid in hand, would amount to sixty dollars. For this sum, and for no less — leaving out the month of January, in the course of which the sale of the premises was made — judgment should have been rendered, if any judgment at all was rendered.

Without rhyme or reason, so far as we can see, the judgment actually rendered was for twenty dollars only.

The plaintiff prays to have it reversed.

The prayer is granted.

Dunlap and Washburn, JJ., concur.


text:
    VERDICT
    [Cuyahoga (8th) Court of Appeals,
    February 7, 1919.]
    Grant, Dunlap and Washburn, JJ.
    Paul Pecsok and Mary Pecsok v. John Ertler.
    Defendants Cannot Complain That Verdict Reduced as Act of Grace was not Apportioned.
    When a verdict for injuries sustained was reduced by the trial judge sua sponte and not because deemed by him to be excessive, it is an act of grace or judicial clemency on his part and complaint does not lie in the mouths of the defendants because the benefits of the reduction were not apportioned among them.
    Error to municipal court of Cleveland.

      David <& Eeald, for plaintiffs in error.

      Strong, Desberg, Bernstein & Mooney, for defendant in error.
   GRANT, J.

In the court below the plaintiff there, defendant in this court, declared against both defendants, the present plaintiffs in error, for injuries resulting, as he said from an assault on him, committed by them, laying his damages in that respect at $700.

In a second cause of action he laid claim to $300 from the defendant Paul Pecsok only, for causing the plaintiff’s arrest, malicously and falsely.

The case was tried to a jury. There was a verdict against both plaintiffs in error for $400 on the first cause of action and for $150 against Paul Pecsok alone, on the second cause of action.

The trial judge sua sponte, reduced the amount of the verdict by $150, generally, and entered judgment for the remainder of $400, first overruling a motion for a new trial.

The errors assigned in the briefs are, or appear to be first, that the court below reduced the amount of the verdict, but did not apportion the reduction among the two defendants, or designate which one was to be the beneficiary of it.

We do not think the complaint is available to those who make it. The question of amount being for the jury, unless the amount found by them is to be disturbed because unconscionably large, or unwarranted by the evidence, a court of review would have to uphold the verdict in its entire amount, as at first returned. So that, in that view, which is the view we take of this case, the reduction ordered by the court below can be regarded only as an act of grace or judicial clemency on his part, of which it does not lie in the mouth of the beneficiaries to complain. A litigant may not be heard to object to being done good to. His luck is not the less for having to share it with another in any proportion at all, provided some of it falls to him, if the amount at first found is not to be deemed excessive.

As the questions tried were wholly of fact and the testimony was in dispute, it was for the jury alone to resolve it and assess the consequences, within legally allowable bounds. We think those bounds were not transgressed in the present case.

It is said in the brief that as punitive damages could not be awarded in the first cause of action, no malice being averred in that, the reduction made by the court not being distributed among the two defendants, may have operated as a hardship on the woman who was not in fault under the second cause of action, that being the only one in which exemplary damages could have been allowed.

If this argument is comprehended, it has already been answered, the cutting down being an uncovenanted mercy, a sheer piece of good luck in any event, the objector having no ground of complaint if no part of it came to him.

Besides, it is more than doubtful, we think, whether exemplary damages may not be predicated of an assault, without in terms pleading the maliciousness of it. 2 Ruling Case Law, p. 582, states the principle underlying the rule thus:

“In most cases of assault and battery the actual physical injury suffered by the plaintiff is insignificant as compared to the mental suffering caused by the wantonness and malice of the defendant and the indignity, vexation and disgrace to which the plaintiff was subjected by the defendant’s acts.” Chicago and N .W. Ry. v. Williams, 55 Ill. 185 [8 Am. Rep. 641].

Second, it is complained that the judgment is so excessive in amount as to fall under the condemnation which the law annexes to deliverances made from the bad and corrupt motive of passion or prejudice. And our holding in Cleveland Worsted Mills v. Coates, 40 O. C. C. 610 (26 N. S. 353), is appealed to in support of the argument.

We distinctly declined to weigh the evidence in that case to see whether the bad motive had operated or not. We held that to so find, the verdict by the single force of its amount must be so large, in comparison with the visible case, as to shock the conscience of a reviewing court into the conclusive inference that the corrupt motive had intervened and coerced the verdict.

Such is not this case, as we view it.

We find no error of substance in the judgment under review.

It is therefore, affirmed.

Dunlap and Washburn, JJ., concur.


author: SHIELDS, J.

text:
    CRIMINAL LAW
    [Wayne (5th) Court of Appeals,
    January Term, 1919.]
    Houck, Shields and Patterson, JJ.
    John Ballard v. The State of Ohio.
    1. Relevancy of Previous Conduct and Acts of Accused and Inferences of Intent from Other Acts.
    Prejudice cannot be based upon the admission of testimony, the recital of which incidentally disclosed a previous arrest and detention of the defendant; on the contrary intent may sometimes be inferred from former criminal acts of the defendant, when the testimony relating to such acts is sharply limited in its application to its bearing on the question of intent in the case under consideration.
    2. Misconduct of Prosecutor Raise.d by Objection at Time and Exception.
    In order that advantage may be taken of the alleged misconduct of a prosecuting attorney in his argument to the jury, it is necessary that objection be entered at the time and if overruled an exception be taken to the action of the court in so doing.

      Kean <& Adawr, for plaintiff in error.

      Benton G. Hay, Pros. Atty., for defendant in error.
   SHIELDS, J.

The plaintiff in error, John Ballard, prosecutes error to reverse the judgment of the court of common pleas of said Wayne county wherein he was convicted and sentenced for pocket-picking.

While the petition in error filed herein contains numerous grounds of alleged error, but three grounds only were argued and relied on:

1. Error of the court below in the admission of incompetent evidence upon the trial.

2. Error of said court in overruling the motion of the defendant below to compel the state to make an election under the two counts in the indictment upon which a conviction was claimed.

3. Misconduct of the prosecuting attorney.

1. It appears that during the trial testimony was given by one Christy Marks, assistant chief of police at Mansfield, 0. and a witness for the state, that both the plaintiff in error and one Harry Martin, who together were arrested and charged with said offense, stated soon after their arrest that they were not acquainted and known to each other until the day before their arrest, having met and become acquainted with each other at Alliance, Ohio, on said day, as appears on page 31 of the bill of exceptions. Like testimony was also given by one Frank Mitchell, also a police officer at Mansfield, Ohio, and a witness for the state, as appears on page 36 of the bill of exceptions. To contradict these statements and as tending to show that they were not true, the state introduced several police officers of Chicago who testified that said Ballard and Martin had been seen together in said latter named city before their said arrest for the offense here charged; that said Ballard was known in Chicago under several different names, and that on one occasion, some ten days before said arrest, said Ballard and Martin were seen and known to have been together at the Dearborn street railroad station in Chicago when and where they were arrested and taken in charge by the police of Chicago and taken to a police station in said city. A deposition of one Charles L. Logue was also introduced on behalf of the state who testified that said Ballard and Martin were seen together at said railroad station at said time, and who with the witness William Sullivan further described the circumstances under which they were taken into the custody of said police officers at said time. Objection was made to the foregoing testimony and exceptions taken to the action of the court below in admitting it, for the reason, as claimed, that it tended at least to east criminal suspicion upon the plaintiff in error and therefore its effect was prejudicial to him. This action upon the part of said court in admitting said testimony is assigned as error for which it is contended that the judgment of conviction and sentence should be reversed.

Under the statement referred to that said Ballard and Martin were strangers and not known to each other until they met the day before their arrest, it was not claimed but that it was competent to show that they were seen together before that time in Chicago as tending to show that they were acquainted and were known to each other, and that their said statement was therefore untrue, but it was urged that said court erred in permitting said witnesses to give testimony as to the circumstances under which they were thus seen, especially in reference to the fact that they were taken into custody by the police at Chicago and taken to the police station. By referring to page 80 of the bill of exceptions we find that the trial court in instructing the jury upon the foregoing testimony cautioned the jury as follows:

“Now certain testimony of gentlemen from Mansfield and Chicago has been admitted to you, and the object of this testimony was not to prove to you that the defendant was guilty of committing some other crime. You should ignore testimony that has come to you in the case on that point.
“I will say to you that you must convict the defendant, if you convict him at all, on the evidence of this crime, the crime charged in the indictment, and not use any evidence, if you have received any, of any other crime. But the testimony of these witnesses from Chicago and those from Mansfield was offered to prove to you, as claimed by the state, that the defendant and the gentleman . named as Harry Martin or Morton were acquainted with’ each other there, and knew each other before the day or time of the crime and at the time of the crime; that was the object of that testimony.”

It appears that the foregoing instruction clearly stated the object for which the testimony referred to was given, with the direction clearly expressed that it was permitted to be given for a specific purpose, and to be considered by the jury for that purpose only. Had the court seen fit to do so, said instruction given, in our judgment, might have been extended so as to include other recent acts of the defendant below of the same character, if such acts were shown, as bearing upon the motive and intent in the alleged commission of the offenses here charged. It will be noticed that no testimony of any written accusation against said Ballard and Martin, or either of them, charging them with an offense in Chicago, was offered to be given. Counsel for plaintiff in error argued that the facts given in evidence tended to show that they had committed some crime. Not necessarily so, for a party may be arrested, and yet such party may be entirely innocent of an offense subsequently charged. Counsel further argued that the offenses here charged can not be made out by proof that the plaintiff in error may have committed some other crime or crimes. _ Generally speaking this is true, for the policy of the law is to guard against what might be an indefinite multiplicity of issues, which a party charged with crime is not called upon to meet, nor prepared to meet, and the rule is, therefore, that the trial shall be limited to the accusations made, and that “other distinct unrelated offenses” shall not form the subject of inquiry on such trial. But it is laid down by text writers generally and in many adjudicated cases that “to this general rule there are exceptions which have been permitted from absolute necessity, to aid in the detection and punishment of crime. As stated in 1 Jones: Commentaries on Evidence, Sec. 144:

“The intent and disposition with which one does a particular act must be ascertained from his acts and declarations before and at the time; and when a previous act indicates an existing purpose, which from known rules of human conduct may fairly be presumed to continue and control the defendant in the doing of the act in question, it is admissible in evidence. In many cases it is the only way in which criminal intent can be proved; and the evidence is not to be rejected because it might also prove another crime against the defendant. ’ ’

Again the same author in Sec. 143 says:

“In criminal cases the conduct of the prisoner on other occasions is sometimes relevant, where such conduct has no other connection with the charge under inquiry than that it tends to throw light on what were his motives and intentions in doing the act complained of. The intention with which a particular act is done constitutes often the burden of the inquiry, and to prove the intent it becomes necessary, in many instances, to extend the examination beyond the particular transaction concerning which the accused is upon his trial. For the purpose, therefore of proving the intent, not of proving the act itself, it is often permissible to show other criminal transactions of the same sort springing from the like mental conditions. Bishop, in his work on Criminal Procedure, after giving various illustrations as to the proper application of this rule in criminal practice, sums up his conclusion in the following words: ‘It is, that though the prisoner is not to be prejudiced in the eyes of the jury by the needless admission of testimony tending to prove another crime, yet whenever the evidence which tends to prove the other crime tends also to prove this one, not merely by showing the prisoner to be a bad man, but by showing the particular bad intent to have existed in his mind at the time when he did the act complained of, it is admissible; and it is also admissible, if it really tends thus, as in the facts of most eases it does not, to prove the act itself.’ ”

In Brown v. State, 26 Ohio St. 176, 181, Judge Gilmore, speaking for the court in that case, says:

“While the general rule unquestionably is, that a distinct crime, in no way connected with that upon which the defendant stands indicated, can not be given in evidence against bim on the trial, this rule is not applicable to a case in which it is clearly shown that a connection, in the mind of the defendant, must have existed between the offense charged in the indictment and others of a similar nature. When such connection exists, evidence of such other offense is admissible, not for the purpose of raising a presumption of guilt on the hypothesis that a man who commits one crime will probably commit another, but for the purpose of showing a motive or purpose prompting the commission of the offense laid in the indictment; and being competent for this purpose, it could not have been properly excluded- on the ground that it tended to prove the commission of other and distinct offenses. ’ ’ 10 Ruling Case Law, Sec. 105; 4 Chamberlayne, Evidence. Sec. 3222; Underhill Crim. Evidence, Sec. 90; Wharton, Crim. Evidence, Secs. 884-5.

If we were left to judge of the character of the testimony referred to, in the light of this record, we would unhesitatingly say that it developed a unity of design and part of' the same scheme illustrated in the Orrville incident, as found by the jury in the case at bar. We are of the opinion that the action of the trial court in admitting said testimony was justified by the facts appearing in the record and that in admitting it there was no prejudicial error.

2. As to the second ground of error, it appearing that the offenses charged in the indictment arose out of the same transaction, the motion to compel the state to elect upon which count in the indictment it relied for conviction, was properly overruled. Bailey v. State, 4 Ohio St. 440; State v. Bailey, 50 Ohio St. 636 [36 N. T. 233],

3. The third ground of error charges misconduct on the part of the prosecuting attorney in the trial of the case. We have examined the record with reference to this ground of error and fail to find that any exception was taken to the statement alleged to have been made by the prosecuting attorney in his argument to the jury, and we also fail to find that any objection was made to the trial court, or to any ruling made thereon authorizing any action by a reviewing court. Aside from the question raised by the state in reference to the record being silent as to what was said by the prosecuting attorney in reply to the challenge made by counsel for plaintiff in error in argument, in order to avail himself of the error claimed it was incumbent upon counsel for plaintiff in error to have made their objection to the court, and if overruled, to take an exception to the action of the court. Davis v. State, 10 Circ. Dec. 738 (20 R. 430, 437.)

Although not argued, an additional ground of error in the petition in error is that “the verdict is not sustained by the evidence and the law.” It appears that the requests submitted on behalf of the plaintiff in error to be given in charge by the court to the jury were given, and the charge of the court, in our judgment, contained a correct statement of the law applicable to the case.

As to the evidence, we have no hesitancy whatever in saying that a reading of this record clearly shows that the jury were well warranted in finding the verdict returned by them. Under the testimony, it is apparent that the plaintiff in error and his pal, the latter of whom succeeded in eluding the vigilance of the officers after having been taken in custody and fled, thereby escaping trial, selected this unoffending old man as their victim to be fleeced, on reaching Orrville, when it became known to them that he was to change cars there, and how successfully they worked out their criminal purpose is fully shown by the testimony. With the testimony of the witnesses for the state unopposed, showing unmistakably the scheme planned by these “gentry with velvet fingers” to relieve their selected victim of his money as he was jostled by them in the aisle of the car in his attempt to alight therefrom, as shown by the testimony, and after stripping him of his money and leaving the old man, perhaps in a strange city, at the midnight hour, penniless, they hastily sought other quarters on the train in fancied security with their plunder. With the uncontradicted facts of the case before us, we are unanimous in our opinion that the verdict of the jury was fully sustained by the evidence and the law, and finding no error in the record prejudicial to the plaintiff in error, the judgment of the court of common pleas will be affirmed. Exceptions.

Houck and Patterson, JJ., concur.

       Motion to certify overruled by Supreme Court, May 13, 1919, Ballard v. State, 64 Bull. 178.


author: LAWRENCE, J.

text:
    BROKERS
    [Cuyahoga (8th) Court of Appeals,
    October, 1918.]
    Grant, Lawrence and Dunlap, JJ.
    S. Ulmer & Sons v. Fred E. Bruml.
    Commission Payable to Loan Broker When Loan is Secured but Not Taken by Party Making Application.
    A broker to whom application is made for a loan, having found one who has the money and is willing to loan it on the security offered, but the loan is not made because of a difference arising between the parties for whom it is being procured, is not on that account to be deprived of compensation for the work done, but is entitled to the same commission which would have been payable to him had the offer of the money been accepted.
    Error to Cleveland municipal court.
   LAWRENCE, J.

The parties stand in the reverse order in which they stood in the court below; we will refer to them in the relation in which they stood in the trial court.

■This action was brought in the municipal court of Cleveland by the plaintiff to recover from the defendant partnership compensation for effecting a loan of $10,000 on real estate by virtue of a contract between him and the defendant, whereby plaintiff claims it was agreed that in the event of his procuring a person able, ready and willing to make the said loan, the defendant would pay him for his service therein $100.

The trial below was to the court and resulted in a judgment in favor of the plaintiff, and error is now prosecuted here to reverse such judgment on the sole ground that it was given for defendant in error, when it ought to have been given for plaintiff in error.

The plaintiff is an attorney at law and the defendant is engaged in making loans on real estate.

The record discloses that in January of this year, the defendant had on hand applications for loans and through two persons, Reinthal and Newman, it came in touch with a man named Weil, who had money he desired to loan on real estate; that a loan of $10,000 on property located on Murray Hill was first submitted to him by defendant. Weil was satisfied to make this loan, but told defendant to go to his brother-in-law,, the plaintiff Bruml, for the purpose of closing up the details thereof. For some reason or another this loan failed of consummation, as did also a loan on property on East 152d street. A loan was then submitted to Mr. Weil on property located on Payne avenue. He was satisfied with this loan and placed in the hands of plaintiff $10,000 for that purpose. Up to this point there is no dispute between the parties. When this Payne avenue loan was about to be consummated, plaintiff asked defendant what share of the 2 per cent commission, that being the percentage defendant usually charged for making loans, he was to receive. Plaintiff claims that defendant told him that he would divide the commission equally with him, while defendant claims he agreed to divide one per cent of the commission between plaintiff and Reinthal and Newman.

This loan was never consummated; Bruml was willing that the loan go through if paid one per cent — $100—and offered to turn over to defendant $9,900. This the defendant refused to accept, and suit was thereupon commenced by Bruml to recover his share of the commission.

The defendant contends that because the loan was not made, plaintiff is not entitled to recover.

With this contention we can not agree. It is not denied that if Bruml had been paid the $100 he claimed, the loan would have been consummated, the whole contention being relative to what the contract between the parties was concerning the division of the commission. We think that where one is able, ready and willing to make a loan to another, and a dispute arises as to what the agreement between the parties was relative thereto, he is not thereby to be deprived of compensation for his services in procuring the loan.

The evidence is conflicting. However, in this state of the record, we are unable to find that the judgment is manifestly against the weight of the evidence as claimed by defendant.

The judgment will be affirmed.

Grant and Dunlap, JJ., concur.


author: JONES, J.

text:
    AUTOMOBILES — NEGLIGENCE—TRIAL
    [Hamilton (1st) Court of Appeals,
    November 12, 1917.]
    Jones, Gorman and Hamilton, JJ.
    Bruns Bros. Grocery Co. v. Orvon G. Brown.
    1. Verdict in Negligence Case Based on Conflicting Evidence not Reversed.
    When both parties are charged with negligence and the evidence is conflicting, the judgment will not be disturbed unless it is clearly against the weight of the evidence.
    2. Omitting’from Instructions to Jury Qualifying Phrase in Traffic Ordinance to Facts of Accident not Prejudicial.
    In charging a jury with reference to observance by chauffeurs of a traffic ordinance, omission of the qualifying phrase of the ordinance, that drivers would be required to observe the rules therein laid down “as far as practicable,” is not prejudicial when the evidence has disclosed no reason for the failure of the defendant’s driver to observe the strict letter of the ordinance.

      J. L. Kohl, for plaintiff in error.

      Gideon C. Wilson, for defendant in error.
   JONES, J.

The plaintiff in error seeks in this case to secure a reversal of a judgment against it entered in the court of common pleas in favor of the defendant in error for damages arising from injury to the person and clothes of defendant in error by reason of a collision between the motor truck belonging to the plaintiff in error and the automobile touring car of the defendant in error.

The collision took place while plaintiff was driving north on the east side of Reading road at six o’clock P. M., October 1, 1914, and the motor truck of the defendant was being driven south on the west side of Reading road and was turned diagonally into Lexington avenue. Plaintiff contended that the motor truck undertook to make a short cut into the north side of Lexington avenue without warning and without lights, so that it was impossible for him to avoid the collision although he claims to have been traveling at a speed not to exceed ten miles per hour, and that he swerved to the left as soon as he saw that the truck was being run immediately in front of him.

Two claims of error are chiefly relied upon by plaintiff in error in argument: that the verdict is contrary to the weight of the evidence; and that the court erred in its charge to the jury.

The record shows the conflict of evidence usual in such cases. It is the distinct 'province of the jury to determine the facts in a case of this character, and to fix the blame, where each party as in this case is charged with negligence. The court can interfere with the verdict of the jury only in cases where it is not sustained by the weight of the evidence.

A careful consideration of the record fails to convince the court that this verdict is not sustained by the weight of the evidence, but on the contrary the jury seem to have been justified in their finding that the collision was caused by the fault of the defendant below and that the plaintiff was free from negligence.

The plaintiff in error contends that the court erred in using the following language in its charge to the jury:

“I should have said, gentlemen of the jury, in this charge, that in turning to the left, when turning to the left, as it was in this ease, no turn shall be made until the opposite half of the lateral street is reached. So, therefore, gentlemen, under the law, the driver of the truck would be required to go below the half of Lexington avenue, before he turned into Lexington avenue. ’ ’

This charge was based upon Sec. 680 of the traffic ordinance of the city of Cincinnati, which is in part as follows:

“Section 680. Traffic Regulations. Right-of-way. The right of way of vehicles using the streets of the city shall as far as practicable, be subject to the following regulations: * * * In turning corners, when to the right, vehicles shall be kept to the right; when to the left no turn shall be made until the opposite half of the lateral street is reached. ’ ’

Plaintiff in error says that the charge as given omitted the qualification which the ordinance contains, which provides these regulations “as far as practicable.”

The record shows that there was no dispute as to the fact that Reading road was sixty feet in width and that Lexington avenue into which the truck was being turned was fifty feet in width; that no traffic interfered; and that there could be no finding by the jury as a matter of fact, nor was evidence offered to show, that it was not entirely practicable in this ease for the driver of the truck to have observed the strict letter of the ordinance and avoided turning until he had reached the middle of Lexington avenue, but that he failed to do so.

While this paragraph of the charge might have been more accurately stated, it is not drawn so that it required any particular finding by the jury, and, taken in connection with the entire charge we do not think that it can be considered as error prejudicial to the rights of the defendant below.

Objection is also made as to the amount of the recovery. But in this respect the verdict seems to be sustained by the evidence.

A full consderation of the entire record fails to establish any reversible error to the prejudice of plaintiff in error.

Judgment is therefore affirmed.

Gorman and Hamilton, JJ., concur.


text:
    RAILWAYS
    [Cuyahoga (8th) Court of Appeals,
    February 7, 1919.]
    Grant, Dunlap and Washburn, JJ.
    Cleveland, C., C. & St. L. Ry. v. Mary S. Bradford et al.
    1. Railways not Compelled to Construct Crossings for Abutting Owners of Land Used for Industrial Purposes.
    Section 8858 G. C., providing for the construction of private crossings for abutting owners of tracts of fifteen acres or more through which a railway passes, has reference to farm crossings where the two parcels so divided are used in a reciprocal or interdependent way, and not to tracts of land used for industrial purposes.
    2. Private Crossing Denied as Necessity If Land Accessible to Highway.
    A private crossing can not be required as a way of necessity, where the tract on either side is accessible to a highway, not as convenient perhaps as the short-cut desired, but affording ample and much safer ingress and egress.
    3. Presumption that Compensation Was Made Originally When the Tract Was Divided Into Two Parcels.
    A presumption arises in such a case that the inconvenience arising from the division of a tract into two parcels by the building of the railway was considered and discounted when the right-of-way was acquired.
    Appeal.

      Cook, MaGowcm & Foote, for plaintiff in error.

      Edward BusJvnell, Esq., for defendant in error.
   GRANT, J.

Owing to calls upon onr time, over which just now we have little control, and which counsel will appreciate, as well as because they are themselves so thoroughly conversant with the facts, we shall do little more here than state our position in terms of conclusion.

The case is in equity, to restrain the location of a crossing over the right-of-way and tracks of the plaintiff company in the city of Cleveland.

The defendants claim to be entitled to the crossing on two grounds :

First, because the statute gives them the right to it;

Second, because it is a necessity to them.

The statute thus referred to and which is claimed to be the enabling act for the location of the crossing in this case, has in its history passed through various forms and changes as to its verbiage, but probably not much affecting its purpose or application to the circumstances with which we have to do here. As first passed in 1859, it read as follows:

“Every railroad is required to make and maintain a sufficient number of suitable crossings for the accommodation of the public and of persons living near the line of such railroad. * * Any person or persons desiring a private crossing or crossings and cattle guards, as contemplated by this act, shall be responsible for one-half the expense of constructing and maintaining same.” (S. & C. 331.)

The amendment of 1871 is not material here.

In 1874 the act was changed to the following form of preamble recitation:

“Any farmer or person owning fifteen or more acres of land in one body, through which such railroad may or does pass, and which is so situated that the owner thereof can not use one oí said crossings in a public street, road, lane or highway, over said railroad in passing from his land on one side of said railroad to that on the other without great inconvenience,” and continuing with provisions and requirements calculated to make effectual its purpose for the benefit of the farmer or land proprietor.

When the Ohio laws were revised in 1880 the word “farmer,” as the alternative of the owner of the acreage, was omitted, probably in the interest of brevity and word-compression.

In its present form, the statute is in the following language:

“When a person owns fifteen or more acres of land in one body, through which a railroad passes, and which is so situated that he can not use a crossing in a public street, lane, road or other highway, in going from his land on one side of the railroad to that on the other side without great inconvenience, at his request, and within four months thereafter, the company or person operating it, at the expense of such company or person shall construct a good and sufficient private crossing across such railroad and the lands occupied by the company, between the two pieces of land to enable such landowner to pass with a loaded team, and over which he may go at all times when such railroad is not being used at the crossing, or so near to it as to render passing thereat dangerous.” Section 8858 G. C.

Upon a full consideration of the language of this enactment, in the successive stages of its development, the purposes we think it was intended to subserve, and the public policy underlying it, we have reached a substantial agreement with the plaintiff ’s contention that the legislative end in view was a farm crossing. The amount of land designated as the least that could be served by the crossing would, it appears to us, be quite irrational if an industrial use was contemplated by it. Service tributary. to a tract as small as fifteen acres would take care of the gardener or trucker, while the larger farmer of course would share in it, and the well-known policy of the state to encourage agriculture would be promoted by the legislation. Judge Shauck’s use of the term in the Gratz v. Lake Erie & W. Ry., 76 Ohio St. 230 [81 N. E. 239], as well as the syllabus, would have been more guarded had not the court regarded the crossing as a “farm crossing” in the sense we are putting upon it.

Our opinion also is that the statute intended to deal with a reciprocal or interdependent use of the land on both sides of the plaintiff’s right-of-way.

We fail to find evidence in the case that, if the crossing were allowed, the two parcels could normally or providently be used together for agricultural purposes.

Their appropriate use, for any purpose, so far as appears, is a separate use; for farm purposes, practically speaking and having regard to constant liability during farming hours to the paramount use of the railway company, the advantage of the crossing would be negligible.

Starting from the premise that the crossing contemplated by the statute is a farm crossing, we reach without difficulty the conclusion that the crossing sought by the defendants is inadmissible under that law.

Coming to the remaining contention that the crossing ought to be allowed as a way of necessity, the difficulties accompanying that view are, as we think, so considerable as to be insuperable;

The tract on either side of the company’s right-of-way is accessible from another highway.

There is an outlet to each; not as short, not as direct, it is true, as the cut proposed across the tracks, but still such as to afford means of approach and egress, inconveniently, perhaps, but far safer than by the direct route, which appears to us to be in practical disobedience to the wholesome public policy in Ohio against grade crossings in cities; it looks to us as if it would be not far 'from a nuisance, if permitted, taking into account the dominant use by the railroad in operating its trains at that point.

It is not certain that the inconvenience said to result to the defendant’s property from the' tracks being interposed between the two parts of it, was not considered and discounted when the parties sold and got their pay for the right-of-way which served to split the theretofore use of the whole. If the right-of-way had been acquired by appropriation instead of purchase, the jury by a separate verdict must have returned the entire lessened value of both tracts involved here, by reason of the right-of-way being interposed and cutting them off from the access which the defendants are seeking to restore by the crossing claimed; and the company would have been required to pay that lessened valuation. Perhaps it did pay for it.

The lessened value.could have been estimated upon the basis of any reasonable use to which the severed parcels could in the reasonable future have been put, if instead of being cut in twain they had been left as one parcel.

We are not, however, founding our conclusion on this consideration. What we do say at this point is that the proof fails to justify a way of necessity, under the circumstances of this case.

We find the equities with the plaintiff. A perpetual injunction is awarded. Decree accordingly.

A request has been made for a finding of facts. As claimed by the requesters and extracted from whát we have now. said, a draft of such finding may be prepared by counsel asking for it, and submitted to the other side, but to the court in any event, for approval if correct.

Dunlap and Washburn, JJ., concur.