text:
    INTERPRETATION OF THE STATUTE RELATING TO QUALIFIED ENDORSEMENTS.
    Court of Appeals for Stark County.
    John Bederman et al v. The Otisville State Bank.
    Decided, January Term, 1916.

      Promissory Notes — Mistake as to Character of Instrument Signed Not a Defense Against an Innocent Solder — Rule as to Liability to a Purchaser for Value Before Maturity — Not Changed by the Statute Saving Reference to Qualified Endorsements.

    The qualified endorsement of a note “without recourse” simply precludes the endorsee from holding the endorser liable to him in the event the maker fails to pay the note, and the statute having reference to qualified endorsements in no way changes the well established principle of law that the purchaser of commercial paper for value before due, in the absence of fraud or knowledge of any infirmity in the instrument or defect in the title thereto, deprives the maker of any defense.

      Welty & Burt, for plaintiffs in error.

      McCarty & McClintock, contra.
    Houck, J.
    This is an error proceeding and comes into this court from the Common Pleas Court of Stark County.
   In the court below judgment was rendered in favor of defendant in error, the plaintiff below, in the sum of $896, with interest on $95 thereof from the 26th day of June, 1912, to May 4th, 1914, making a total of $906.75. This judgment was based upon the verdict of a jury in that sum. The action below was based upon a promissory note in the sum of $800, dated June 22d, 1911, and payable September 1st, 1912, and for interest on two other certain notes of even date therewith for like amount, payable September 1st, 1913, and September 1st, 1914, respectively. The three notes in question were payable to Caulkins & Augsbury, or order, and were signed by all of the plaintiffs in error, the defendants below.

The plaintiff below, defendant in error, claimed in its petition to be an innocent holder in due course, and as such exempt from any defenses which might have been set up against the original payees, alleging that it was the owner and holder of said notes, purchased before due and for a good and valuable consideration paid therefor. The defendants below, plaintiffs in error, in their answer denied that the bank was a holder in due course, and alleged fraud and want of consideration in the making of said notes. A reply was filed by the plaintiffs below denying all of the material allegations in the answer of the defendants.

A petition in error is filed in this court seeking a reversal of the judgment below. The plaintiffs in error seek a reversal, first, because they claim that one of the makers of the note, Harry Richey, was induced by the agent of the original payees of the note to sign the same by reason of the fraudulent representations or statements made to him by said agent, and upon which statements he relied. It is claimed that the defendant Richey at the time he signed said note was induced to sign the same by statements made by the agent of the original payees; that said agent stated to him that the paper that he was about to sign, and which afterward proved to be the note in question, was a certificate of stock, and that he was unable to read the same by not having his spectacles with him, and that he relied upon the statements of said agent in the premises, and thereby was induced to sign the note in question.

Assuming that all of these statements are true, are they sufficient in law to release said Richey and his co-makers from the payment of this note? ¥e think that the facts here disclosed have fully been determined in the case of DeCamp v. Hamma, 29 O. S., 472:

“Where one voluntarily signs a promissory note, supposing it to be an obligation of a different character but has full means of information in the premises and neglects to avail himself hereof, relying on the representations of another, he can not set up such ignorance and mistake as a defénse against an innocent holder for value before maturity. If, however, his signature was procured without negligence on his part, and through artifice or fraudulent representations, the rule is different, and the jury should be left under appropriate instructions to determine these facts.”

Plaintiffs in error contend that the court below erred in giving certain requests before argument which were presented on behalf of the plaintiff below, the defendant in error. We have examined these requests, and we find that they are correct propositions of law applicable to the particular facts in the instant case, and therefore find no error in this particular.

Plaintiffs in error earnestly contend that the trial court committed prejudicial error in its- refusal to charge the jury before argument as follows:

“If you find from the evidence that as between Caulkins & Augsbury and the defendants herein that said notes were wholly without consideration, and you find that the notes were transferred by said Caulkins & Augsbury to the plaintiff without recourse, then I will say to you that such instrument was a mere assignment of such interest as Caulkins & Augsbury had in and to sajd note or notes, and that if said notes were procured by said Caulkins & Augsbury from the several defendants wholly without consideration, then I will say to you as a matter of law you verdict should be for the defendants.”

Plaintiff in error takes the position that this qualified endorsement of the payees made them mere assignors of the title to the note, and hence made the defendant in error, the Otisville State Bank, a mere assignee of such title as was in the payees. This brings the real question involved in this case squarely before us for consideration and determination as to the respective rights of the parties to this action.

It will be observed that in this ease the note or notes in question were indorsed before due to the defendant in error, the plaintiff below, and that the indorsement was a qualified one, being “without recourse.” It is urged by counsel for plaintiffs in error that the indorsement in the case at -bar is clearly a qualified indorsement within the meaning of Section 8143 of the General Code, and by reason of this fact the defendants below, plaintiffs in error, are entitled to all of the legal defenses against such indorsee that they would have had or might have had against the original payees, notwithstanding the fact that the indorsement was made before the note became due. In order to solve this question it is necessary to determine the meaning of and the legal force and effect of a qualified indorsement as provided in Section 8143 of the General Code, which is as follows:

“A qualified indorsement constitutes the indorsee a mere assignor of the title to the instrument. It may be made by adding to the indorser’s signature the words 'without recourse,’ or any words of similar import. Such an indorsement does not impair the negotiable character of the instrument. ’ ’

If the contention of counsel for plaintiffs in error is sound, then the theory and rule as to the rights heretofore existing in favor of an innocent purchaser in good faith, and in. the absence of or knowledge of fraud, of a promissory note before due is set aside, abrogated and held for naught. "What are the legal rights of a qualified indorsee under the circumstances indicated? The indorser transfers the note to the indorsee “without recourse,” and in our opinion it simply precludes the indorsee from holding the indorser Hable to him in the event the makers fail to pay the note. It is simply a contract between the indorser and indorsee which in no way inures to the benefit of or increases the legal rights of the makers, or either of them, against the indorsee. In other words, we think that a fair interpretation of the section of the General Code in question in no way changes the well established principle of law that a purchase of commercial paper for value, before due, in the absence of fraud and knowledge of any infirmity in the instrument, or defect in the title thereto, bars the makers of any defense.

Taking this view of the whole case, and finding no error in the record prejudicial to the rights of the plaintiffs in error, we are of the opinion that the judgment below is right, and should be affirmed.

Judgment affirmed.

Shields, J., and Powell, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ARE SHERIFFS BOUND TO ACCOUNT FOR. PROFITS ARISING FROM FEEDING PRISONERS.
    Court of Appeals for Cuyahoga County.
    State of Ohio, ex rel Frank F. Gentsch, v. A. J. Hirstius et al.

    Decided, July, 1915.

      Office and Officer — Construction of the Salary Act with Reference to Profits Arising to the Sheriff from Reeding Prisoners — Sections 2996, 2997, 3046 and 2850.

    There is no claim or obligation resting upon a sheriff to account for or pay over to the county or state the amount received by him for keeping and feeding prisoners during his term of office in excess of the actual cost of so doing.

      F. F. Gentsch and F. W. Green, for plaintiff in error.

      D. E. Morgan, contra.
    Carpenter, J.
    Error to the court of common pleas.

       Affirming State, ex rel Gentsch, v. Hirstius, 15 N.P.(N.S.), 505.

   This action was brought in the common pleas court by Frank F. Gentsch, Esq., on the relation of the state (the county prosecutor having refused to institute the same) to recover from the defendant, A. J. Hirstius, the sum of $46,741.25 with interest, by reason of the same being the amount in excess of the actual cost of keeping and feeding the prisoners as provided by law during the time which he was sheriff of this county.

It is claimed by the plaintiff that Section 2996 of the General Code absolutely limits the compensation to $6,000 per year which the sheriff can receive from all sources.

The question of law, therefore, is: Does the law create an obligation upon the defendant to return to the treasury of the state the sum of $46,741.25. By reason of the demurrer to plaintiff’s petition, the defendant’s construction admits that such sum-was his net profit.

Section 2996 is a portion of the salary law, so-called, enacted by the General Assembly on the 22d day of March, 1906, and took effect January 1st, 1907. This statute fixed the salaries of probate judges, county auditors, treasurers, recorders, clerks of the common pleas court and sheriffs. Following immediately the section relating to the salary which each of the foregoing officers shall receive, Section 18 of the act, now 2996 of the General Code, is as follows:

'1 And said salaries shall be in lieu of all fees, costs, penalties, percentages, allowances and of all other perquisites of whatever kind which any of the officials herein named may now collect and receive, provided, however, that in no case shall such annual salary payable to any of the officers aforesaid exceed the sum of. $6,000."

Section 19 of the act provides as follows:

‘ ‘ The county, commissioners shall, in addition to the compensation and salary herein provided, make allowances quarterly to every sheriff for keeping and feeding prisoners under Section 1235 of the Revised Statutes, and shall allow his actual and necessary expenses incurred or expended in pursuing or transporting persons accused or convicted of crimes and offenses, in conveying and transferring persons to and from any state asylum for the insane, the institution for feeble minded youth, etc., etc., and • all expenses of maintaining horses, etc., necessary to the proper administration of the duties of his office. Every sheriff shall file under oath with the quarterly report herein provided for a full, accurate and itemized account of all his actual and necessary expenses, mentioned in this section, before the same shall be allowed by the county commissioners.”

The foregoing sections, 18 and 19, became Sections 2996 and 2997, respectively, upon the revision of the statutes in 1912. Slight grammatical changes were made in the provision. The words “Section No. 1235 of the Revised Statutes” were omitted, and the words “as provided by law" were substituted instead in the revision.

It is claimed that these two sections should be construed together, and also in connection with the entire statute, to the end that it may harmonize with the intent of the Legislature of placing all of the officers upon a fixed and stated salary, and that in any event none of said officers should be paid more than $6,000. But it will be observed that the limitation of $6,000 applies to the annual salary, for the statute provided that in no case shall the annual salary paid any officer exceed $6,000.

The words “compensation” and “salary” have reference to two distinct things. Compensation evidently with reference to the actual expenditures made by the sheriff in the discharge of 'specified duties, while salary is limited to the amount to be paid annually.

It will also be noted that in every case where expenditures are authorized, the terms “actual or necessary” or, “actual and necessary, ’ ’ are used; and it also provided at the close of Section 2997: “Each sheriff shall file under oath with the quarterly report herein provided, a full, accurate and itemized account of all his actual and necessary expenses, including railroad fare, street car fare and livery hire mentioned in this section, before they shall be allowed by the commissioners.” It will also be noted that no such restriction or requirement in reference to actual expenditures in keeping and feeding prisoners is provided in the statute, and that such is only required where the same is specifically authorized and report of same required.

This is a significant fact in arriving at the construction of this law. It is almost equivalent to saying that the sheriff shall not be required to keep and render an account of his expenditures in keeping and feeding prisoners. But the plain statement at the outset of Section 19 is of much greater significance, for it says: “The county commissioners shall, in addition to the compensation and salajry herein provided, make allowances quarterly to every sheriff for keeping and feeding prisoners, as provided under Section 1235 of the Revised Statutes.” This statute, which is now 2850 of the General Code, provides that “The sheriff shall be allowed by the county commissioners' not less than' 45 nor more than 75 cents per day for keeping and feeding prisoners 'in jail, but in any county in which there is no infirmary, the county commissioners, if they think it just and necessary, may allow any sum not to exceed 75 cents each day for beeping and feeding any idiot or lunatic. The sheriff shall furnish at the expense of the county to all prisoners confined in jail, except those confined for debt only, fuel, soap, disinfectants, bed clothing, washing and nursing when required, and other necessaries as the court, in its rules, shall designate.”

Section 3046 of the General Code provides that “on the first Monday of September of each year, each county treasurer, recorder, sheriff, etc., shall make returns under oath to the county auditor of the amount of fees and moneys received by them or due them during the year next preceding the time of making the return.” There are other sections which provide for reports by the sheriff óf moneys received or collected by him, but in none of them is a report required of him of any expenditure- of or connected with the keeping and feeding of prisoners.

With these sections of the statute before us, what construction should there be given to said Section 19, now Section 2997 of 'the General Code? This section provides, in substance, that in addition to the compensation and salary herein provided, the county commissioners shall make allowances quarterly to each sheriff for keeping and feeding prisoners at a rate or price of not less than 45 cents nor more than 75 cents per day. In this case a rate was made of 50 cents per diem.

There is no ambiguity in the language of these two sections, and consequently they do not call for judicial interpretation. In other words, they mean exactly what they say, viz., that the allowances made by the commissioners are in addition to the compensation and the salary allowed by the statutes preceding. ■ -The general rule of law is “that where there is in the same statute a particular enactment and also a general one which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative and the general enactment must be taken to affect only such cases within its general language as aré not'within the provisions of the particular enactment” (26 Am. & Eng. Enc., 216). This is the rule applied in the case of Stone v. State of Ohio, 18 C.C. (N.S.), 246, which is quite similar to the case at bar, where-the court say:

“It will not help in the interpretation of these statutes to . criticize the apparent carelessness with which they seem to have been so complicated. We must suppose that the Legislature did not intend to do an unreasonable thing, that it had an object in view in amending and re-enacting these sections.”

Furthermore, it is to be borne in mind that the Legislature, by the enactment of Section 2850, gave full authority to the commissioners to allow not less than 45 nor more than 75 cents per day for keeping and feeding prisoners. It is a general rule of law that a court has no power to control the discretion which is given by the Legislature to another body, such as a town or city council, school board and even commissioners; and should we in the case at bar hold with the plaintiff, we should be guilty of controllng their discretionary power, and in effect fixing the rate which the sheriff should charge per diem. The Legislature has delegated to the commissioners the power and duty to fix the rate for keeping and feeding the prisoners, and specifically limits their discretion to an amount of not less than 45 nor more than 75 cents per day. Relief from the provisions of this statute manifestly should come from the Legislature and not from this ' court, regardless of our own opinion as to whether it is a good or bad law.

This statute was passed in 1906, about nine years ago. It has been recognized by the authorities of the state and county auditors, treasurers and public accountants; attorney-generals have held in favor of the sheriffs. The Legislature has not seen fit to change it, and it is a general rule that the practical construction given a doubtful statute by the state or officers whose duty it is to carry it into execution is entitled to great weight, and will not be disregarded or overturned except for cogent reasons and unless it is clear that such construction is erroneous. Southerland Statutory Construction, Section 472 and 474. Dutout v. Doyle, 16 U. S., 400-407; State v. Aikens, 18 C. C., 349.

The question of feeding the United States and city prisoners is of more difficult solution. We are satisfied with the views expressed by Judge Estep in his opinion upon overruling the demurrer in this case, as follows:

‘ ‘ Having already held that in the matter of feeding state prisoners the sheriff is not required to account to the county or state for the allowances made to him quarterly by the county commissioners, can it be fairly said that in this respect the Legislature intended to distinguish between state, federal and city prisoners ? Was it intended by the Legislature that he should pay into the county treasury the amounts received for feeding federal and city prisoners, and retain the amount received for feeding state prisoners? If we are right in the conclusion that the sheriff may retain the allowances made to him for feeding state prisoners, it appears to me that it logically follows that it was never intended by the Legislature to classify in this respect the prisoners committed to his custody and therefore require him to feed city and federal prisoners at his expense. It is reasonable to say that the county and state having been put to no expense in regard to subsisting these prisoners, and incurring no liability in relation thereto, the sheriff should be required to pay into the treasury of the county the amounts received by him from the federal and city authorities in payment for the expenses he has incurred in subsisting these prisoners? In other words, is it a reasonable construction to place upon these statutes, which would result in holding that the sheriff must subsist these prisoners at his own expense?
‘ ‘ The only reason why this money received by the sheriff from the federal and city authorities should be turned into the county treasury is that the salary act, Section 2977, provides that all fees, allowances and other perquisites collected and received by law, as compensation for services, shall be for the sole use of the treasury of the county in whch they are collected. The question, therefore, presents itself as to whether or not these amounts received by the sheriff for subsisting federal and city prisoners are allowances or perquisites collected or received by law. In my opinion the fees, allowances and perquisites referred to in. Section 2977 and Section 2996 of the code do not refer to any fees, allowances or perquisites except such as are fixed by law for services and duties imposed by law upon the sheriff. All these fees, etc., are to be collected by him and paid into the county treasury. These fees, allowances, etc., are fixed by Sections 2845-6 et seq. of the Code. The duty of subsisting federal and city prisoners not being imposed upon the sheriff by law, and any sum he may receive for such subsistence -not being fixed by law, but his compensation arising only from contract, I am of the opinion that under the provisions' of the salary act he is not required to turn said moneys into the county treasury. This must be so, or else we are bound to conclude that he must render this service for nothing. Should the court place a construction on these statutes which would lead to this absurd consequence and do an injustice to the defendant, when state and county-have incurred no expense or liability in relation to such prisoners ?
“In the case of Moore v. Given, 39 O. S., 661, the law is stated in the first syllabus: ‘ It is the duty of the courts, in the interpretation of statutes, unless restrained by the letter, to adopt that view which will avoid absurd consequences, injustice or great inconvenience, as none of these can be presumed to have been within the legislative intent.’ ”

For these reasons we are constrained to hold that there is no obligation resting upon the defendant to account for or to pay over to the county or state the amount of money received by him for keeping and feeding prisoners during his term of office in excess of the actual cost for so doing, and therefore affirm the judgment of the court of common pleas.

Spence, J. (sitting in place of Meals, J.), concurs; Grant, J., dissents.


author: Gorman, J.

text:
    ACTION FOR. DAMAGES FOR REFUSAL TO GRANT A LIQUOR LICENSE.
    Court of Appeals for Hamilton County.
    Julius Theurkauf v. Rogers Wright et al.
    Decided, January 31, 1916.

      Liquor Licensing Officers — Not Answerable for Refusing to Grant a License — Character of Their Functions.

    Liquor licensing boards perform qacm-judicial functions, and can not be held answerable in damages for errors or mistakes, if any are made, in the exercise of their functions.

      E. P. Karch, for plaintiff in error.

      Ellis G. Kinkeacl, John A. Deasy and Timothy S. Hogwn, contra.
   Gorman, J.

The action, below was brought in the Superior Court of Cincinnati by plaintiff in error against Rogers Wright and William Marschheuser as the Hamilton County Liquor Licensing Board, and Charles L. Allen, Byron M. ClehDening and J. H. Seerest ■as the Ohio State Liquor Licensing Board, to recover $20,000 damages for their alleged wrongful refusal and neglect to grant to plaintiff a license to traffic in intoxicating liquors in Cincinnati for the year beginning November 24, 1913, upon his application therefor duly filed in writing as provided by law; and plaintiff further averred that although he possessed all the qualifications requisite in law to entitle him to a license, said boards rejected his application solely on the ground that the number of licenses -yy-hich could be issued under the Constitution and the laws had been exhausted and there were no more licenses to grant. Plaintiff further averred that he was one of those favored under the laws as entitled to a license because of his good standing and the length of time he had been engaged in the business prior to November 5, 1913. He claimed that as the direct result of the refusal of defendants to issue to him a license he was damaged in the sum above stated and prayed judgment therefor.

A demurrer to plaintiff’s second amended petition was interposed by defendants and sustained by the trial court, and the plaintiff not desiring to plead further, his petition was dismissed.

It is claimed that in this ruling the court below erred.

This court is of the opinion that the court below did not err in sustaining the demurrer.

In 23 Cye., 125, this rule is laid down:

“Licensing officers are not to be held answerable for mere mistakes or. errors of judgment; but they are subject to indictment when their action in granting or refusing licenses was prompted by corrupt motives amounting to a gross abuse of discretion or a plain dereliction of duty. They are not personally liable in an action at law against them to recover damages alleged to have been sustained by their refusal to grant a license to plaintiff; the latter, if slearly entitled to a license, may enforce his rights by mandamus, but the proceeding on his application is so far judicial as to protect officers from civil actions for damages,” etc. Citing Halloran v. McCullough, 68 Ind., 179.

Under the law (103 O. L., 216-242 inclusive) the county licensing board has something more than ministerial duties to perform; it has quasi-judicial functions to perform; it must look into the character and qualifications of applicants. for licenses, grant licenses which shall not exceed in number one for every five hundred inhabitants of the county, and perform many other acts calling for an exercise of discretion and judgment. They can not be held answerable in damages for errors or mistakes made by them in the exercise of such functions.

Most of the questions raised in this case were decided adversely to the contention of plaintiff in error by the Supreme Court in the case of Meyer v. O’Dwyer, 90 Ohio St., 341.

Judgment affirmed.

Jones (E. H.), P. J., and Jones (Oliver B.),'J., concur.


author: Robinson, J.

text:
    DESCENT OF THE DISTRIBUTIVE SHARE OF PERSONAL ESTATE LEFT BY AN INTESTATE WIFE.
    Court of Appeals for Seneca County.
    Allen J. Seney, Administrator, v. George E. Schroth, Administrator.
    Decided, 1916.

      Descent and Distribution — Wife Receives Her Distributive Share of the Personal Estate of Her Deceased Husband, and Dies Intestate — Said Personalty Descends to Her Heirs Generally.

    S. died testate without issue, leaving A. W. S. his widow, and certain brothers and sisters and their legal representatives, his only heirs at law. A. W. S. elected not to take under the will of S., but took under the law her distributive share of S.’s personal estate, and subsequently died intestate without issue, leaving neither brother nor sister or their legal representatives.

      Held: That A. W. S. took her distributive share of said personal estate by favor of the provisions of Sections 10571 and 8592, General Code, and not under any provision of Section 8574, General Code; hence, the provisions of Section 8577, General Code, are not effective to divert the descent of such personal property from her heirs generally.

      Allen J. Seney and Charles E. Derr, for plaintiff in error.

      George E. Schroth, contra.
   Robinson, J.

The facts, as alleged in the cross-petition of plaintiff in error, are, in brief, as follows:

George E. Seney died testate on or about the first day of June, 1905, leaving no issue, but leaving surviving him one brother, Henry W. Seney, since deceased; one sister, Frances M. Crum, since deceased; George E. Seney, Jr., a son of Joshua Seney, a deceased brother, and Bessie Schaler, a granddaughter of a deceased sister, Josephine Seney Wise. He also left surviving him his widow, Anna Walker Seney, who has since deceased, intestate and leaving no issue and no brothers or sisters or their legal representatives.

The said Anna Walker Seney elected not to take under the provisions of the last will and testament of George E. Seney, deceased, but elected to be endowed of the lands and tenements of which the said George E. Seney died seized, and took her distributive share of the personal estate of said George E. Seney, deceased, the sum of twelve thousand five hundred sixteen and fifty-one hundredths dollars. Said sum came into the hands of the defendant in error, George E. Schroth, as administrator of the estate of Anna Walker Seney, deceased.

The said George E. Schroth, as such administrator, commenced an action against the plaintiff in error and others, asking the instruction of the court in the distribution of said estate.

The said Henry W. Seney died intestate, leaving a widow and children.

The estate of Henry W. Seney is not sufficient to pay the indebtedness thereof.

The plaintiff is the duly elected, qualified and acting administrator of the estate of said Henry W. Seney, deceased, and as such filed his answer and cross-petition to said petition of said George E. Schroth, as administrator of the estate of Anna Walker Seney, deceased, praying that he may be found entitled to the one-fourth of said twelve thousand five hundred sixteen and fifty-one hundredths dollars on distribution, and that said sum may be ordered paid to him as such administrator; to which cross-petition said George E. Schroth, as the administrator of the estate of Anna Walker Seney, deceased, filed a general demurrer, which demurrer was sustained by the court below, and judgment rendered against plaintiff in error.

Error is prosecuted here to reverse said judgment.

The plaintiff in error contends that under Section 8577, General Code' of Ohio, the brothers and sisters of George E. Seney, deceased, or their legal representatives, are entitled, upon distribution, to the unconsumed portion of the personal estate received by Anna Walker Seney as her distributive share of the personal estate of George E. Seney, deceased.

Section 8577 of the General Code provides:

“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 deceased husband or wife by deed of 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. If there are no children or their legal representatives living, then such estate, real and personal, shall pass and descend, one-half to the brothers and sisters of such intestate, or their legal representatives, and one-half to the brothers and sisters of such deceased husband or wife from which such personal or real estate came, or their personal representatives.”

Clearly this property did not come to Anna Walker Seney by deed of gift, devise or bequest. Did it then come to her under any of the provisions of Section 8574? Section 8574 of the General Code provides:

. “If the estate came not by descent, devise, or deed of gift, it shall descend and pass as follows:
“1. To the children of the intestate and their legal representatives.
“2. If there are no children, or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate.
“3. If such intestate leaves no husband or wife, relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate of the whole blood, and their legal representatives.
“4. If there are no brothers or sisters of the intestate of the whole blood, or their legal representatives, the estate shall pass to the brothers and sisters of the half-blood, and their legal representatives.
“5. If there are no brothers or sisters of the intestate of the half-blood, or their legal representatives, the estate shall ascend to the father; if the father is dead, then to the mother.
“6. If the father and mother are dead, the estate shall pass to the next of kin, and their legal representatives, to and of the blood of the intestate.”

There were no children in this ease, and had there been no will, then clearly the whole estate would have passed by descent from George E. Seney to his widow, Anna Walker Seney, under subdivision 2 of Section 8574, and upon the death of Anna Walker Seney intestate, she leaving no brothers nor sisters or their legal representatives, would have passed, under Section 8577, to the brothers and sisters or their legal representatives, of George E. Seney, deceased. But George E. Seney died testate, and his widow elected not to take under said will. Did she then take the widow’s portion of the personal estate under Section 8574 or did she take under Section 10571 of the General Code, which provides:

‘ ‘ The election of the widow or widower to take under the will shall be entered upon the minutes of the court. If the widow or widower fails to make such election, he or she shall retain the dower, and such share of the personal estate of the deceased consort as she or he respectively would be entitled to by law in case the deceased consort had died intestate, leaving children.”

And Section 8592 of the General Code, which provides:

‘ ‘ When a person dies intestate and leaves no children or their legal representatives, the widow or widower, as next of kin, will be entitled to all tbe personal property which is subject to distribution upon settlement of the estate. If the intestate leaves any children or their legal representatives, the widow or widower will be entitled to one-half of the first four hundred dollars and to one-third of the remainder of the personal property subject to distribution.”

Section 8574 makes no provision for the widow where the intestate died leaving children. The widow, under the common law, was endowed of no portion of the personal estate of her husband. The right of the widow, therefore, to a portion of the personal estate of her deceased husband, arises entirely by statutory enactment and has no existence independent thereof, and is not a subject of equitable interpretation. However much justice there may be in the contention of the plaintiff in error that the same course of descent should obtain where the widow receives all the personal property by virtue of the provision of subdivision 2 of Section 8574, as where she receives but the one-third under the provisions of Section 10571 and Section 8592, said contention is sufficiently answered by the fact that she would receive no part of said personal estate in the absence of a statutory provision giving it to her. And the same legislative power which could provide that she should receive all of the estate under one set of circumstances and only one-third under another, could and did provide that where she receives it all and dies intestate and without issue, that it shall pass one-half to her brothers and sisters or their legal representatives and one-half to the brothers and sisters of her deceased husband or their legal representatives, but failed to make any such provision or any provision for succession under circumstances where she received but the one-third, and we can not say that the Legislature, in the amendment of 1857, did not intend to provide for the succession in the one ease and in the other case allow it to descend as any other estate of which she might die possessed.

The amendment seems to have been made for the sole purpose of remedying the severity of the rule laid down in the ease of Brower v. Hunt, and had the Legislature intended it to include all personal property which came to her as the relict of her deceased husband it could, and undoubtedly would, have so declared. This seems to us the more apparent since all the sections of the code herein referred to antedate in time of enactment Section 8577, and must have been in contemplation of the Legislature creating said section, especially since by the very language of the section it was content to describe property held by descent •under Section 8573 in general terms, but confined its operation, beyond property which came by deed of gift, devise or bequest, to property held under the provisions of a certain section, indicating an intention to limit its operation.

We are of opinion that the personal property which came to Anna Walker Seney as the widow of George E. Seney did not come to her by deed of gift, devise or bequest from her deceased husband, nor under any of the provisions of Section 8574, but on the contrary, that said personal estate came to said Anna Walker Seney by virtue of Section 10571 and Section 8592 of the General Code.

We are also of opinion that in the enactment of Section 8577, the Legislature did not intend to include all property which might come to the relict from a deceased husband, but only such property as was contemplated and included in the provisions of Sections 8573 and 8574 of the General Code.

We find upon a comparison of the provisions of the General Code with the Revised Statutes as they existed at the time of the 'amendment of 1857 to Section 8577, that the provisions then in force with reference to the election by the widow to take under the law and with reference to the distributive portion which the widow was then entitled to, were substantially the same as they are now, and we can not assume that the Legislature, in the enactment of the amendment of 1857 to said Section 8577, General Code, were not cognizant of that fact and were not also cognizant of the fact that all property which might come to a relict from a deceased husband was not included in the description contained in said Section 8577.

The judgment of the court below is therefore affirmed.

Crow, J., and Kinder, J., concur.


author: Allread, J.

text:
    ACTION FOR. INJURIES BARRED BY A SETTLEMENT.
    Court of Appeals for Hamilton County.
    William F. Klages v. Frank G. Kronenbitter and Frank T. Kronenbitter.
    Decided, March 24, 1916.

      Third Person Injured hy Collision of Two Motor Vehicles — Settlement With the Owner of One of the Vehicles Bars an Action for Injuries Against the Other.

    The agreement in issue in this case is more than a mere covenant not to sue; it is a contract in settlement in full for the injuries received for a specified sum of money which was paid, and bars an action on account of the same injuries against a party other than the one with whom the settlement was made.

      James M. Hengst, for plaintiff in error.

      G. D. Saviers, contra.
   Allread, J.

Klages, the plaintiff below, brought suit against the defendants to recover for a personal injury alleged to have resulted from the negligence of the defendants in so operating their automobile as to collide with a motor truck of the Gambrinus Brewing Company, causing the latter to strike and injure plaintiff.

There is no averment in the petition that the Gambrinus Brewing Company was negligent.

The first defense of the second amended answer of the defendants is a general denial.

The second defense, so far as material, is as follows:

“On or about the 14th day of January, 1914, the plaintiff, William F. Klages, entered into a contract of settlement with the Gambrinus Brewing Company, the corporation mentioned and described in plaintiff’s petition, whereby, in consideration of the sum of eight hundred dollars ($800), he, the said plaintiff, William F. Klages, on behalf of himself, his personal representatives and assigns, did covenant and agree with said the Gambrinus Brewing Company that be nor they would at any time thereafter institute, maintain, or prosecute any proceeding at law or equity against the said the Gambrinus Brewing Company, its successors or assigns, for the purpose of recovering money or of having any other remedy against the said the Gambrinus Brewing Company, its successors or assigns for or on account of said accident, which occurred on November 9th, 1913, as a result of a collision between the automobile of the Gambrinus Brewing Company and the automobile in which the defendant had an interest.
"Defendant says that said sum of eight hundred dollars was a full, complete and adequate compensation for all of the injuries received by said plaintiff as he well knew at the time he received the same, as well as a bar to any claim against the defendants. ’ ’

A demurrer was overruled to the second defense above referred to, and the plaintiff not desiring to plead thereto, final judgment was rendered in favor of the defendants.

The only question, therefore, is whether such second defense is sufficient to constitute a bar to the plaintiff’s cause of action. We think the agreement between the plaintiff and the Gambrinus Brewing Company as alleged in the above defense constitutes more than a mere covenant not to sue. The distinct averment was made that it was a contract of settlement. The consideration for such contract of settlement and covenant not to sue was eight hundred dollars, which is alleged to be the full amount of plaintiff’s injuries. Having, therefore, received from the Gambrinus Brewing Company the full amount of his injuries and having executed a contract of settlement with the Gambrinus Brewing Company, the plaintiff would have no further right of action against the defendants who are alleged to have negligently contributed to the injury.

The judgment of the court of common pleas is, therefore, affirmed.

Ferneding, J., and Kunkle, J., concur.


author: Richards, J.

text:
    AVOIDING A LEASE BECAUSE OF GAMBLING ON THE PREMISES.
    Court of Appeals for Lucas County.
    Nassr v. Upton.
    Decided, February 8, 1915.

      Landlord and Tenant — Leased Premises Used for Gambling — Whether Amusement Devices Are Gambling Devices Not Determined by Elements of Shill or Chance — Motive of Lessor in Prosecuting an Action in Forcible Detainer Not Available as a Defense — Purpose of Section 5972, Relating to Leases for Property Used for Gaming.

    1. By virtue of the provisions of Section 5972, General Code, when premises are occupied for gaming or lottery purposes the lease under which they are so occupied is rendered void at the instance of the lessor, and it is immaterial whether the result of the game or lottery depends on skill or chance or both.
    2. The provision of the statute that if the lessor, knowing of the violation, fails forthwith to prosecute in good faith an action to recover possession of the premises, he shall be held criminally responsible, is intended to guard against the collusive prosecution of an action instituted for the purpose of relieving the lessor from criminal liability, and his motive in prosecuting the action of forcible detainer is not a defense to such action.
    3. A preponderance of the evidence is all that is required in an action of forcible detainer, evfen though the action is based on a violation of Section 5972, General Code.
    4. A landlord is not precluded from maintaining an action of forcible detainer against a tenant by the fact that he has subsequently leased the premises to a new tenant.

      Southard, Soutluvrd & Rowe, for plaintiff in error.

      Ben W. Johnson and C. B. Steinem, contra.
   Richards, J.

Charles A. Nassr, plaintiff in error, had the control of certain premises adjacent to Walbridge Park in the city of Toledo, which lie leased to the defendant in error, Thomas A. Upton. Subsequent to the execution of this lease he brought an action in forcible detainer before a justice of the peace to recover possession of the premises on the claim that the same were being-used for gaming and lottery purposes in violation of Section 5972, General Code. On the trial of the action the jury returned a verdict for the defendant and judgment was entered thereon. The court of common pleas affirmed that judgment, and this proceeding in error is brought to obtain a reversal of the judgments.

It appears from the bill of exceptions that the tenant, Upton, had been in the amusement business for a number of years, and that he conducted on the premises the sale of post cards, souvenirs and stamps, and conducted certain games called a box-ball alley, a ball rack, horse-racing machine, and a cane rack, where rings were thrown over canes. The tenant, on being called for cross-examination, testified that the horse-racing game was a machine with eight artificial horses, which were ball bearing and revolving, two on each track, with 112 numbers on the machine, and that the horses were numbered 1 to 8, and that in connection therewith there was a board with numbers, the duplicates of those on the machine. He further testified that he sold paddles, bearing the numbers of the horses, at five cents apiece; that “if your horse stops at 64 then whatever is on 64 on the board is yours;” that there was a separate part with numbers, and prizes attached to each number, and that there was no way of determining in advance where the horses would stop and no difference in the value of the prizes given in the horse-racing game. The tenant, in describing the cane-rack game, testified that he sold three rings for five cents, and that if the patron threw a ring over a cane he got that cane; that the canes were all. of the same value, and if the patron did not throw a ring over a cane he wasmot supposed to get a cane. The other games appear to have been of similar character.

It was contended by the defendant that the plaintiff was not entitled to recover the premises in forcible detainer because he was not prosecuting the action in good faith, because the games conducted were-not in violation of the statute for the reason that they .were games of skill and dexterity, because the prizes were all of substantially the same value, and because occasional violations of the gaming and lottery laws would not justify a forfeiture of the lease. In pursuance of these claims and others of like character made by the defendant, sixteen separate requests to charge the jury were submitted to the justice of the peace, and the jury were so charged. The statute of Ohio, cited supra, provides, in substance, that when premises are occupied for “gaming or lottery purposes,” the lease or agreement shall be void at the instance of the lessor, who may at any time obtain possession by action of forcible detainer before a justice of the peace. The statute further provides that if a person knowingly permits premises to be so used and occupied and fails forthwith to prosecute in good faith an action for the recovery of the premises, the lessor shall be considered as a principal in carrying on the business of gaming or lottery on the premises.

We will not undertake to review all the instructions which were given to the jury on the request of the defendant. It is apparent, however, that in those instructions the justice was altogether too stringent against the plaintiff in charging on the subject of the action being prosecuted in good faith. The only connection in- which good faith is mentioned in the statute is that if the lessor knowingly permits premises to be used for the forbidden purpose and fails to prosecute in good faith, he would be liable as a principal in the business. The jury were told, in substance, that if the action was not brought for the purpose of suppressing games or lotteries, but in contemplation of similar games being thereafter conducted on the premises, then the action was not brought in good, faith, and that if the plaintiff knew that the defendant had been conducting such games on the premises, had good reason to believe that he would continue so to do-and failed forthwith to bring an action, but consented to the occupation and accepted rent in advance, then the plaintiff could not recover, and that if the action was brought by the plaintiff for the purpose of protecting himself from statutory liability, then he could not recover. We think this is not a fair statement of the rule as to the good faith of the plaintiff within the language of the statute to which reference has been made. If this were the law it would give no room for repentance’on the part of a lessor who originally had knowledge of and consented to the use of the premises for unlawful purpose, and it would follow that if he had at one time consented to such use he must thereafter remain criminally responsible for further violations.

. It is contended that the transactions shown by the evidence do not constitute violations of the statute because of the evidence that the prizes were of equal or substantially equal value. If it appeared from the evidence that every patron on making an investment would receive a prize, much foundation might exist for the claim made, if the prizes were of equal or substantially equal value, but if one invested five cents in one of the games conducted by the defendant and if, under the conditions on which the game was operated, he might fail to win any prize, the transaction would be within the terms of the statute; nor is the transaction relieved from the inhibition of the statute by reason of the fact, if it be a fact, that the games were games of skjll and not purely games of chance. The question is one which must be determined in each jurisdiction by the language of t-he statute there controlling,' and under the Ohio statute it is unlawful to occupy any premises for gaming ox lottery purposes, and it is immaterial whether the transaction involves skill or chance or both. See Ulsamer v. State of Ohio, 11 O. D. Re., 889; 30 Bull., 293, editorial, a decision of the circuit court sitting in Gallia county. The cases are collected in Words and Phrases, under the title “Gambling-Gaming.”

At the request of the defendant the jury were pharged that the plaintiff could not prevail unless his claim was established by clear and convincing proof of the defendant’s guilt. We understand that the ordinary rule requiring a case to be established by a preponderance of the evidence is the rule applicable to this case, and that the plaintiff was not required to make out his case by any higher degree of proof than that of a preponderance of the- evidence.

Luring the trial of the case it developed that Nassr had sold the. building on the premises to Nora Mullen and that she transferred the same back to him on the morning- on which' the trial before tbe justice was commenced. It is contended that by reason of these facts the plaintiff was not entitled to maintain the action. The lease to the defendant, Upton, had not, of course, by its terms expired; neither had the plaintiff parted with his title to the ground occupied by the building. We think the sale of the building would not of itself prevent the plaintiff from maintaining the action. The purchaser had not taken possession, and if the plaintiff could not maintain the action then he would continue liable under the criminal laws for future violations, because he was still the lessor of the real estate so far as the defendant is concerned. The rule in such cases is concisely stated in 24 Cye., 1415, as follows:

“While it has been held that the landlord, after having executed a valid lease to a third person, has no longer a right of possession enabling him to maintain an action to recover possession from a former tenant, the better rule would appear to be that he has such an interest in the possession as will enable him to sue.”

Numerous cases are cited sustaining this- proposition, and, among others, the ease of Cahn v. Hammon Bldg. Co., 8 O. D. Re., 656; 9 Bull., 112.

The record discloses that the case was not tried before the justice of the peace on the right theory, but was submitted on erroneous principles, prejudicial to the plaintiff. It follows that the judgments must be reversed and the cause remanded to the court of common pleas for further proceedings according to law.

Judgments reversed and cause remanded.

Kinkade, J., concurs; Chittenden, J., not participating.


author: Sayre, J.

text:
    WHEN A DEED ABSOLUTE WILL BE DECLARED A MORTGAGE.
    Court of Appeals for Athens County.
    Fleming et al v. Minx et al.
    Decided, December 30, 1914.

      Partition — Denied to Heirs and Devisees of a Lessor — Deed Absolute Will be Declared a Mortgage When Necessary to Relieve from Imposition or Injustice — Rights of Heirs Gan Not be Reduced to Money by Administrator.

    1. A court of equity will adjudge a deed absolute to be a mortgage at the instance of either grantor or grantee, or their representatives.
    2. But such adjudication will not be made, at the instance of the personal representative, for the sole purpose of making it possible for him to collect the proceeds of such mortgage and distribute the same. A court of equity will declare a deed absolute to be a mortgage only when it is necessary to prevent or relieve from imposition or injustice.
    3. The heirs at law and devisees of the lessor in a lease for ninety-nine years, renewable forever, with an option in the lessee to purchase the premises leased at a stated time each year during the continuance of the lease, can not compel partition of the same.

      Grosvenor, Jones & Worstell, for plaintiffs.

      Lewis & Keenan, for W. K. Scott, administrator.

      L. A. Koons, for Elizabeth Nelson.
   Sayre, J.

The administrator with the will annexed of the estate of Daniel Fleming contends that the deed under consideration constitutes an equitable mortgage and desires an adjudication to that effect so he can foreclose the same and distribute the proceeds, while the plaintiffs claim that the transaction between Daniel Fleming and Elizabeth Nelson is a conditional sale and seek partition. «

The contest here is between the administrator with the will annexed and the devisees and heirs at law of Daniel Fleming. Elizabeth Nelson is not interested in the matter except that her rights, whatever they may be, shall be protected.

So we are called upon to decide whether a court of equity will construe a deed absolute on its face to be a mortgage, at the instance of the personal representative of the grantee of such deed, for the sole purpose of enabling such representative to collect and distribute the proceeds.

In 3 Pomeroy’s Equity Jurisprudence (3d Ed.), Section 1196, is the following:

“The general doctrine is fully established, and certainly prevails in a great majority of the states, that the grantor and his representatives are always allowed in equity to show, by parol evidence, that a deed absolute on its face was only intended to be a security for the payment of a debt.”

The right here seems to be limited to the grantor and his representatives, and not to extend to the grantee and his representatives. But in McMillan v. Bissel, 63 Mich., 66, 29 N. W. Rep., 737, and Kellog v. Northrup, 115 Mich., 327, 73 N. W. Rep., 230, it was held that the grantee or his representatives may show that a deed absolute is in fact a mortgage. It would geem just that either grantor or grantee, or their representatives, should have the right, under proper circumstances, to show what the real transaction was.' No reason can be assigned why one man should not have the same right as the other.

The precise question to be determined then is, Under what circumstances will a court of equity look beyond a deed absolute and receive evidence outside the same to determine what the real transaction was between the parties?

An examination of a number of cases will show that an attempt to convert that into an absolute sale which was intended as a security for a loan is treated as a fraud. Morris v. Exr. of Nixon et al, 1 How., 118, 126; Russell v. Southard et al, 12 How., 139; Babcock v. Wyman, 19 How., 289; 3 Pomeroy’s Equity Jurisprudence (3d Ed.), Section 1196.

Usually the value of the property conveyed is in excess of the money loaned, and the grantee, by insisting upon the transaction as appears from the language of the deed alone, will thus secure an unfair advantage, and at the instance of the grantor a court of equity will hear evidence, and if the deed was given to secure a loan will declare the same to be a mortgage. The occasion for this action of the court is found wholly in the injustice which will result to the grantor. Consequently, if the grantor is satisfied with the transaction and it appears that no unfairness, imposition or injustice can result to the grantee, then the court will leave the deed to stand as an absolute conveyance.

A court of equity will treat a deed absolute as a deed absolute, unless by declaring it to be a mortgage injustice can be prevented.

In the case under consideration the grantor, Elizabeth Nelson, makes no complaint in regard to the transaction. From her answer it appears that she is willing to allow the deed to stand as a deed absolute. It appears that neither the heirs, devisees nor personal representative of Daniel Fleming will suffer any imposition or injustice by allowing the deed to stand as a deed. There is, therefore, no reason to examine the facts surrounding the transaction in order to determine whether the deed was made as a security for a loan. The only possible reason which the administrator with the will annexed can have for desiring the court to treat the deed as a mortgage is that he may collect the money and distribute the same in the course of administration. This is no ground for the action of a court of equity.

The plaintiffs desire partition of the premises conveyed by Elizabeth Nelson to Daniel Fleming, and the right to partition is contested by the defendant, Marcia Linseott, one of the heirs of Daniel Fleming.

The lease to Elizabeth Nelson for ninety-nine years, renewable forever, with optipn to purchase, is an estate in perpetuity on condition. It may be defeated by the lessee exercising the option to purchase, as a life estate may be defeated by the death of the life tenant.

In Tabler v. Wiseman et al, 2 Ohio St., 207, it was held that the heirs at law could not make partition in case the entire premises were assigned to the widow as her dower; and the reasons assigned for such holding were that a tenant in common could not derive any benefit from the partition; that where the property is subject to a life estate exclusive possession can not follow the judgment, and because the commissioners could not make equitable division if permitted to speculate upon the probable condition of the property at the termination of the life estate.

Now all these reasons apply with equal force to the situation in hand. The tenants in common have not the present right of possession to any part of the premises which they desire to have partitioned. Partition, therefore, will not lie.

Judgment accordingly.

Walters, J., and Jones, J., concur.


author: Jones (E. H.), J.

text:
    WHAT IS MEANT BY “ BURDEN OF PROOF.”
    Court of Appeals for Hamilton County.
    George C. Buttemiller v. Howard William Schmid, by His Next Friend.
    Decided, 1915.

      Evidence — Degree of Proof Necessary to Satisfy the Requirement as to Bztrden of Proof — Instruction to Jury as to Burden of Proof Erroneous But Not Prejudicial.

    An instruction to the jury that “by burden of proof is meant the burden or duty of satisfying the minds of the jury of the truth of all the material facts alleged by the plaintiff and denied by the defendant,” imposes too great a burden upon the plaintiff, hut being prejudicial to the plaintiff only the defendant can not complain of the error so committed.

      Robertson & Buchwalter, for plaintiff in error.

      Jos. Lemhuhl, for defendant in error.
   Jones (E. H.), J.

Plaintiff in error is a physician against whom judgment was recovered in the court below in favor of defendant in error for the sum of $1,000, assessed by the jury as damages for malpractice in connection with the treatment of plaintiff for an injury.

By far the greater part of the brief for plaintiff in error, as well as the oral argument of counsel, is devoted to a discussion of the evidence. We deem it unnecessary to review the evidence in this opinion. It is sufficient to say we do not feel at all inclined to disturb the verdict of the jury or the judgment entered thereon for insufficiency of evidence to support it.

The other errors alleged relate to the charge of the court. Complaint is made of the following portion of the charge:

"By burden of proof is meant the burden or duty of satisfying the minds of the jury of the truth of all the material facts alleged by the plaintiff and denied by the defendant.”

The case of C., H. & D. Ry. v. Frye, 80 Ohio St., 289, is cited as authority to show that the word "satisfying” as used in this portion' of the charge is prejudicial to the plaintiff in error. In the ease cited it appears that the word "satisfied” was used by the trial court in its charge in connection with the attempt of the defendant to establish the defense of contributory negligence. Crew, C. J., in his opinion, on page 300, said:

"By this instruction the jury was told, not only that the burden of proof was on the defendant to establish its affirmative defense of contributory negligence by a preponderance of the evidence, but that if the defendant was negligent as charged, then plaintiff was entitled to a verdict ‘unless the defendant has so made out the truth of its affirmative defense.’ And the jury was thereby further told and instructed that such affirmative defense was so made out, ‘If the defendant has satisfied your minds by a preponderance of the evidence # # * that the plaintiff was guilty of negligence which contributed directly and proximately, together with the alleged negligence of the defendant, to produce this injury.’ This instruction, therefore, in effect, imposed upon the defendant the requirement— if it would make available the defense of contributory negligence — that it establish by a preponderance of the evidence the truth of such defense to the satisfaction of the jury. This was to place upon the defendant the obligation and burden of producing or furnishing a higher degree of proof than the law demands or exacts, and was therefore erroneous.”

In the case now under consideration the court in the portion of the charge in which the word "satisfying” is used erred not against the plaintiff in error, but to the prejudice of. the defendant in error, upon whom too great a burden was imposed. It therefore follows that such error constitutes no ground for reversal in this case, as it did not result prejudicially to the party complaining.

The word “satisfy” was also used by the trial court in its charge on page 294 of the bill of exceptions, where the court, charged the jury upon the doctrine of contributory negligence. This portion of the charge was later entirely recalled by the court, and the jury was instructed to pay no attention whatever to that part of the charge.

Our attention is also directed, by plaintiff in error, to the following language of the court:

“You have a right to accept or reject part or all of the testimony of a witness, and give credit to those witnesses who in your opinion áre entitled to credit.”

P., C., C. & St. L. Ry. v. Pritz, 90 Ohio St., 419, is relied upon in support of this assignment of error. The language there passed upon is not the same as the language here used. "When considered in 'connection with the portion of the charge which immediately precedes it, we do not think that this portion of the charge is erroneous.

We therefore find no error in the proceedings below and the judgment will be affirmed.

Jones (Oliver B.), J., and Gorman, J., concur.


text:
    ACT OF GOD NOT EXCLUSIVE CAUSE OF LOSS.
    Court of Appeals for Miami County.
    The Cincinnati, Hamilton & Dayton Railway Co. v. The Myers & Patty Co.
    Decided, November 17, 1915.

      Shipment of Corn Damaged in Flood — After Being Delayed in Transit by a Defective Gar — Negligence in the Matter of the Oar — Deprives the Railway Company of the Defense of Act of God.

    The act of God, to be a defense to an action on the contract of a common carrier, must be the sole cause of the loss or damage. If the negligence of the common carrier brings the goods in contact with the forces of nature, the carrier is liable. Daniels v. Ballantine et al, 26 Ohio St., 533, .distinguished.

      Broomhall & Broomhall, for plaintiff in error.

      Willimn H. Gilbert, contra. „
   Allread, J.

On March 19, 1913, the Myers & Patty Company, at a point near Covington, Ohio, delivered to the C., IT. & D. Railway Company a carload of corn for shipment to Rheems, Pennsylvania.

The ear of corn reached Dayton, Ohio, on the evening of the day of shipment and was placed upon a siding and so remained until the forenoon of March 25, 1913, when it was overtaken and damaged by the great flood.

The Myers & Patty Company thereupon brought suit against the C., IT. & D. Railway Company for failure to safely carry and deliver the goods shipped according to the consignment contract.

The railway company interposed the defense that the corn was destroyed by the act of God.

To this the plaintiff replied that the destruction or injury to the corn was due to negligence of the railway company in furnishing a defective ear, necessitating delay in reloading at Dayton, and that the negligence of the railway company caused or at least contributed to the injury to the corn.

Under the issues the ease was submitted to a jury.

The facts are not seriously disputed and the .question is largely one of law.

It was established that but for the defective car the shipment would have left Dayton promptly and would have passed out of the flood zone in safety.

At the close of the evidence the railway company moved for an instructed verdict upon the ground that the loss was due to the unprecedented flood.

The trial court overruled the motion and permitted the case to go to the jury under instructions in substance that if plaintiff in error was negligent as specified in the reply, and such negligence contributed to the loss or damage to the corn, then the fact that the act of God may have also contributed to the loss was no defense.

It is clear that when the railway company received the carload of corn consigned to Rheems, Pennsylvania, it was bound to promptly make such shipment and delivery unless excused by the act of God, the public enemies, the conduct of the shipper, the inherent nature of the goods or, as held in some eases, by the act or mandate of public authority. Railroad Co. v. O’Donnell, 49 Ohio St., 489.

The law holds the carrier to a high degree of responsibility for the safe carriage and delivery of the goods shipped, and the burden is upon him to aver and prove his defense when he claims ah exemption.

The great weight of authority is to the effect that the act of God, in order to constitute a defense for the carrier, must be the exclusive cause of the injury. Read v. Spaulding, 30 N. Y., 630; Michaels v. New York Central Rd. Co., 30, N. Y., 564; Wolf v. American Express Co., 43 Mo., 421; Bibb Broom Corn Co. v. A., T. & S. F. Rd. Co., 94 Minn., 269; Alabama Great Southern Rd. Co. v. Quarles & Coutrie, 145 Ala., 436; Wabash Rd. Co. v. Sharpe, 76 Neb., 424; Wald v. P., C., C. & St. L. Rd. Co., 162 Ill., 545; Green-Wheeler Shoe Co. v. Chicago, R. I. & P. Ry. Co., 130 Iowa, 123, 5 L. R. A. (N. S.), 882.

The case of Read v. Spaulding, supra, holds that if a common carrier receive goods for transportation and in consequence of his unreasonable delay in forwarding them to their destination they are damaged by the act of God at an intermediate place, he is responsible to the owner. To exempt himself from liability he must show that no act or neglect of his concurred in or contributed to the injury.

The doctrine is thus stated in Wolf v. American Express Co., supra:

“The act of God which excuses the carrier must not only be the proximate cause of the loss, but the better opinion is that it must be the sole cause, and when the loss is caused by the ‘act of God,’ if the negligence of the carrier mingles with it as an active and co-operative cause he is still responsible. ’ ’

Wabash Rd. Co. v. Sharpe, supra, in the second paragraph of the syllabus, states the same proposition as follows:

“A common carrier is responsible for injury to goods where the goods were exposed to injury by the carrier’s inexcusable detention, and the carrier can not in such case plead the act of God as a defense.”

Wald v. P., C., C. & St. L. Rd. Co., 162 Ill., 545, holds:

“A common carrier is not exempt from liability for a loss occasioned by an act of God, if the carrier has been guilty of any previous negligence which brings the property in contact with the destructive force or unnecessarily exposes it thereto.”

The case of Green-Wheeler Shoe Co. v. Chicago, R. I. & P. Ry. Co., supra, contains a review of all the authorities and holds that reason and the weight of authority sustain the view that the act of God is available as a defense only when it is the sole cause of the loss.

In commenting upon Coggs v. Bernard, 1 Smith’s Leading Cases (8th Ed.), 369, 430, speaking on this Subject the author says:

“The true way of looking at this is not that the carrier discharges his peculiar liability by showing an act of God, and is then made responsible as an ordinary agent, for negligence; but that the intervention of negligence breaks the carrier )s line of defense, by showing that the injury or loss was not directly caused by tbe act of God, or more correctly speaking, was not the act of God.”

The railway, company relies upon the case of Daniels et al v. Ballantine, 23 Ohio St., 533, and Urbana Egg Case Co. v. Nypano Bd. Co. et al, 16 N.P.(N.S.), 321.

Daniels et al v. Ballantine et al involved the relationship of a private carrier and was founded upon negligence. The obligation of a common carrier is more comprehensive and exacting than, that of a private carrier. The common carrier is to a degree an insurer of safe carriage and delivery and its liability is founded upon contract. In an action upon the common carrier’s contract it follows that while the act of God is a recognized defense, y.et in order to claim the benefit thereof, the common carrier must himself be free from fault or negligence.

The egg ease company case was one of mere delay. There was no charge of positive negligence as in the case at bar. Whether that difference calls for a distinction in legal rights we a.re not called upon to decide.

The evidence was sufficient to justify the jury in finding that the C., H. & D. Railway Co. furnished a defective car, in which the corn was loaded, that this necessitated reloading, and that the car was held in Dayton for that purpose. The delay was the natural and proximate result of the furnishing of the defective car.

Under the evidence, therefore, the railway company was chargeable with the delay so occasioned. Such negligence made the injury to the corn by the flood possible. The carrier is therefore liable.

Judgment affirmed.

Ferneding, J., and Kttnkle, J., concur.


text:
    DEGREE OF CARE REQUIRED OF A CARRIER TOWARD ITS PASSENGERS.
    Court of Appeals for Hamilton County.
    Cincinnati Traction Co. v. William Burkhardt.
    Decided, June 14, 1915.

      Negligence — Gar Started Before Passenger Was Seated — Measure of Gare Required of a Garner — Proper Instruction to the Jury With Reference to the Care to he Exercised hy a Passenger in a Crippled Condition.

    1. It is not negligence per se to start a street car before a passenger who has just stepped upon the car has had time to be seated.
    2. The degree of care required of a carrier toward a passenger is not to be measured by the care which would be exercised under similar circumstances “by very careful and skillful employees,” but it is the highest degree of care which ordinarily careful and skillful persons would use under like circumstances.
    3. It would be error to charge that a passenger in a crippled condition was bound to exercise “greater care” than others, but the jury should be instructed that in determining whether he exercised ordinary care they should consider his crippled condition and any burden or impediment to his movements arising therefrom.

      Kinlcead & Rogers, for plaintiff in error.

      Cogan, Williams <& Raglancl and TKos. L. Michie, contra.
   Jones (E. H.), J.

This action was brought in the common pleas court by the defendant in error against the plaintiff in error for damages by reason of injuries received by him while boarding a car of the traction company.

The complaint in the petition was that the car was started with a sudden jerk, while plaintiff was in the act of boarding it and before he had reached a seat in the car, causing him to be thrown to the street and severely injured. The charge of negligence was denied by the traction company in its answer, which also contained an allegation of contributory negligence on the part of plaintiff. The jury returned a verdict in favor of the plaintiff for $3,000, which the trial court reduced to $2,000, for which sum judgment was rendered in the. court below.

A number of errors are assigned in the petition in error and urged by counsel in oral argument.

The first alleged error upon which we deem it necessary to comment in this opinion relates to a portion of the general charge of the court, as follows:

“If you find that the defendant was not negligent, you need go no further, but must bring in a verdict for the defendant. If you find that the defendant was negligent in suddenly starting the car without notice, before the plaintiff had the opportunity to be seated, and that such negligence was the direct cause of the injury to plaintiff, you will bring in a verdict for the plaintiff unless you find that the plaintiff was also negligent, and that his negligence operating concurrently with the defendant’s negligence, if any, directly contributed as a cause of the accident.”

It is claimed that the court erred in the use of the language ‘ ‘ if you find that the defendant was negligent in suddenly starting the car without notice, before the plaintiff had an opportunity to be seated,” etc. It is not negligence per se to start a street ear before a passenger is seated therein. The' objection made to this charge, which we think is well founded, is that it implies that the defendant company in this case was negligent if its employees started the car in question before plaintiff had reached a seat. No where in the general charge do we find any explanation of this language or any language which could be construed as a refutation of the implication to which it is susceptible. It may be, and it is quite probable, that the learned judge did not intend to convey to the jury an instruction to the effect that the starting of a car while a passenger was yet unseated is negligence. It was, however, charged in the petition as one of the grounds of negligence that the car was so started, and a fair interpretation of the language used by the trial court would lead the jury to believe that if they found that the car was started before Burkhardt had an opportunity to be seated that the company would be guilty of negligence. This is not the law, and the question having been raised by the pleadings and the evidence it was incumbent upon the court to charge the jury clearly upon this matter, and its failure so to do was in our opinion prejudicial error.

The next alleged error considered is also based upon the language of the court in its general charge as found on page 111 of the bill of exceptions, as follows:

“The defendant is a common carrier of persons, but as such does not insure its passengers against all hazards incident to their transportation.
“It is required to exercise through its servants, such as the conductor and motorman, a very high degree of care, skill, diligence and foresight, such as is and should be exercised by very careful and skillful railroad employees under similar circumstances, to avoid injury to those whom it carries as passengers. ’ ’

We are of the opinion that this incorrectly states the degree of care required of those in charge of the car even to a passenger, and that, too, to the prejudice of the defendant company. The degree of care required of a carrier towards a passenger is not to be measured by the care that would be exercised under similar circumstances by very careful and skillful employees. The correct rule, it seems to us, is that the carrier owes to the plaintiff the highest degree of care which ordinarily careful and skillful persons would use under similar circumstances. If the rule laid down by the trial judge were the correct one, then all carriers of passengers would be required as a matter of self-protection to employ only “very careful and skillful” men. The rule laid down by the trial court in this case could not be observed by any other kind of men, and the carrier would therefore be liable unless the servants or employees connected therewith were very careful and skillful men.

The next alleged error urged by counsel is based upon the refusal of the court to give special charge No. 2:

“If you find that the plaintiff’s right hand was crippled by the loss of two fingers, and that when he boarded the ear his left arm was incumbered by one or more bundles, I charge, you that under such circumstances it was the duty of the plaintiff to exercise greater care for his safety than would have been demanded of him had his right hand not been crippled and had he been free from bundles or packages.”

"We think that the court was correct in refusing to give this charge. The words “greater care” as used in the charge requested are misleading and not permissible. The plaintiff was required to exercise ordinary care, and if a special instruction as to his duty was deemed necessary by counsel it should have been to the effect that in determining whether plaintiff exercised ordinary care the jury should consider his crippled condition and any burden or impediment to the free use of his arms or hands which may have been present in the case.

The other ground of error to which our attention has been especially called is that designated by counsel for plaintiff in error as “misconduct of the plaintiff in the trial below.” Briefly stated this charge is based upon the claim of plaintiff in his petition and during the trial that prior to this accident he was an able-bodied man, never sick, and always able to work; and that after the verdict of the jury was returned it was first ascertained by counsel for the traction company that this same plaintiff had, several years before, been injured while in the employ of a printing company in this city, and had brought an action for damages against said printing company alleging in his petition in that case that he was by said injury so received by him, made sick, feeble and permanently disabled. We do not deem it necessary to enter at length upon a discussion of this point since from the view we take of the case it must be reversed on other grounds and remanded for a new trial. There seems to be no question of the relevancy of the evidence, and we deem it unnecessary to say anything further about it.

For the reasons given, the judgment will be reversed and the cause remanded to the court of common pleas for a new'trial.

Jones (Oliver B.), J., and Gorman, J., concur,


author: Kunkle, J.

text:
    STREET CAR PASSENGER INJURED WHILE RIDING ON THE BUMPER.
    Court of Appeals for Franklin County.
    McGinn v. The Columbus Railway & Light Company.
    Decided, March 20, 1913.

      Passenger on Crowded Street Car — Rides on Bumper and Was Injured —Passenger Not Chargeable with Negligence in so Doing, When.

    1. Where a street car and the platform thereof are crowded with passengers, it is not negligence per se for a person desiring to become a passenger to take a position upon the bumper of such car, when such person pays a fare and is otherwise recognized by the conductor in charge of such car as a passenger.
    2. Where it is averred in the petition and there is testimony tending to prove the averment that the motorman in charge of a street car immediately following knew of the position of such passenger upon the bumper, or by the exercise of ordinary care could have known such fact, it was the duty of such motorman to exercise reasonable care to protect such passenger so riding upon the bumper. The Columbus Ry. Co. v. Muns, 6 C.C.(N.S.), 236, distinguished.

      Belcher & Connor, for plaintiff in error.

      Booth, Keating, Pelers & Pomerene, contra.
   Kunkle, J.

Plaintiff in error, John P. McGinn (being tbe plaintiff below), sought to recover judgment against defendant in error, the Columbus Railway & Light Company (being the defendant below), in the sum of $10,300 for damages alleged to have been sustained by reason of the negligence of defendant in error in the operation of one of its street cars in the respects stated in detail in the petition.

Upon the trial of thé case, at the conclusion of the testimony of plaintiff in error, the trial court directed the jury to return a verdict in favor of defendant in error.

Plaintiff in error claims that the trial court erred in directing such verdict.

The court evidently based its decision upon the case of Columbus Ry. Co. v. Muns, 6 C.C.(N.S.), 236, an opinion by the circuit court of this district.

In the Muns case it appears from the opinion of the court that the conductor in charge of the car did not see Muns or know of his position upon the bumper. He did not collect fare from Muns or do anything which recognized him as a passenger upon the car in question. It further appears from the opinion of the court that the manifest weight of the evidence was to the effect that there was room in the car, and that Muns did not attempt to get upon the steps or platform. It also appears that the officials of the company did all that was within their power to stop the descending car for the purpose of preventing injury to Muns. It is apparent from this decision that the court did not consider that the rule known as the “last chance” was involved in the case.

In the case at bar plaintiff in error, with a number of his friends, attempted to board a C., D. & M. car at Third avenue and Summit street, in this city. On account of the crowded condition of the car some of the party went to the front of the car but could not get on and then returned to the rear of the car. Three of the party succeeded in getting on the rear steps of the interurban car, and the other four, including the plaintiff, got on that portion of the ear known as the bumper.

When they boarded the interurban car one of the cars of the defendant company, being the car which subsequently collided with the interurban car and injured the plaintiff, was a short distance behind the interurban ear. The testimony differs as to the distance which the said city car was from the interurban car at this time. Plaintiff says it was about ten feet. Other witnesses place it at a greater distance.

The accident occurred at the corner of Seventh avenue and Summit street on October 16, 1910, at about 9 o’clock a. m. It was a bright, clear day. There was testimony to the effect that the interurban ear had made several stops between Third avenue and Seventh avenue for the purpose of receiving and discharging passengers.

It is apparent from the testimony that the interurban ear was crowded at the time plaintiff and his companions boarded the same. One of the witnesses described it as being loaded to the steps. The witnesses substantially agree that the car was so crowded that but three of the party were able to get on the steps, and that the other four members of the party, including the plaintiff, got upon the bumper because of their inability to get in the car.

The witness Doebele, who was riding with the plaintiff, says he paid his fare to the conductor. The plaintiff testifies that he paid the conductor a five-eent fare. The other two members of the party, who were riding on the bumper at a different place, did not pay their fare. Plaintiff was asked, on page 35 of the record:

“Q. Did the conductor see you and your companions who were standing outside the vestibule? A. Yes, sir.
■ “ Q. I will ask you to state whether he collected a fare from you or not? A. Yes, sir.
“Q. Do you know what you paid? A. Five cents.”

On pages 37 and 38 of the record the plaintiff testifies:

“Q. Did you see this Summit street car when you stopped at Fourth and Summit? A. Yes, sir.
‘ ‘ Q. Just tell the jury what that car did and what happened there. A. Well, the conductor got off there, off of our car, and his car ran up pretty close.
“Q. Whose car ran up pretty close? A. The city ear.
“Q. The Summit street car? A. Yes.
“Q. Go on. A. The Summit street car ran up pretty close to us, and the conductor got off and started to tell him not to get so close.
“Motion by the defendant to strike out the answer.
“The Court: I'would be inclined to say if the motorman’s attention was called to the danger of running into the car, • it would be competent, if he heard it.
' “Witness: Yes, sir.
“The Court: You may state what he said to the motorman.
“Witness: Well, he told him to stay back a little. That is all I heard. I did not pay any more attention to it. .
“Q. Did the conductor from your car say anything else to the conductor or the motorman on the rear car, and if so, what was it? A. Well, if I could understand right, he told him he had a big load; to kindly stay back.”

The plaintiff also testified that when he got on at Third avenue, he motioned or signaled the motorman in charge of the city car to stay back.

“Q. When you made those motions or at any time, did you see the motorman on the Summit street car looking at you? A. Right at me, yes, sir.
“Q. How far were you from him when you made those signs or motions ? A. I judge about ten feet; can’t tell exactly.”

The plaintiff also testified as follows in regard to the accident (page 42 of the record):

“Q. When was the first time you saw that car during your stop or at your stop there at Seventh avenue and Summit street ? A. Why, it was just — I just happened to look around; just like that; just looked around.
“Q. Over your shoulder? A. Over my shoulder, and I says: ‘Lay in fellows.’ I says, ‘We are up against it.’ Just like that, and we laid in as close as we could.
“Q. And how close was the Summit street car to you when you saw it? A. Well, it just hit when I said that; just when I leaned over.
“ Q. I will ask you to .state whether or not from the moment you saw the Summit street ear, just before it ran into you, up until you were struck, you had time to jump and get out of the way or to escape the danger? A. No, sir.”

In the case at bar there is testimony tending to show that plaintiff and at least one of his companions, while riding on the bumper, were treated by the conductor as passengers on the ear; that fare was collected from plaintiff and one of his companions; that the ear was in such a crowded condition that the plaintiff could not have gotten either in the car or upon the rear steps thereof; that the interurban car was in plain view of the motorman in charge of the city car from the time the plaintiff boarded the interurban car at the corner of Third avenue and Summit street until the collision at the corner of Seventh avenue and Summit street; that the interurban car was not only in plain view of the motorman in charge' of the city car during all this time, but that the conductor in charge of the. interurban car notified the motorman in charge of the city car, when at Fourth avenue, of the fact that he -had a heavy load and requested the motorman in charge of the city car to stay back, and that the plaintiff signaled the motorman in charge of the city ear to stay back when his car came close to the interurban car at Third avenue and Summit street.

Was the plaintiff below entitled to have the jury instructed in regard to the rule of law known as the “last chance”? Was he entitled to have this proposition submitted to the jury?

The only averment in the petition which would have warranted the submission of this doctrine was the following:

“That plaintiff and the car upon which he was a passenger were all of the time in plain view of the said motorman of said company, and said motorman saw plaintiff and said car, or by the exercise of ordinary care could have seen them, but said motorman negligently and carelessly failed and neglected to check the speed of said car in time to prevent said collision, although by the exercise of ordinary care he could have brought said car to a full stop without striking plaintiff or said car.”

This paragraph of the petition contains the averment that the motorman saw plaintiff on said car, or by the exercise of ordinary care could have seen him. The averment is in the disjunctive. In the absence of a motion to make the petition more definite and certain the plaintiff was entitled under this averment to prove either that the motorman actually saw the plaintiff in his perilous position; on the ear, or by the exercise of ordinary care could have seen him.

There was testimony tending to show that the motorman in charge of the city car knew of the position of the plaintiff from the time he boarded the interurban car at Third avenue until the time of the accident.

In the ease of Drown v. Northern Ohio Traction Co., 76 Ohio St., 234, 249, the court, in discussing under what circumstances the “last chance” rule should be given, states:

“Since the plaintiff can recover only upon the allegations of his petition, if there is no charge in the petition that the defendant after having notice of the plaintiff’s peril could have avoided 'the injury to plaintiff and there is no testimony to support such charge, the giving of such a charge would be erroneous. ’ ’

The converse of this proposition must necessarily be true, viz., if there is a charge in the petition that the defendant had notice of the plaintiff’s peril and could have avoided the injury, and there is testimony tending to show that the defendant had notice of the plaintiff’s peril and could have avoided the injury, then such issue should be submitted to the jury under proper instructions.

In the ease of Erie R. R. Co. v. McCormick, 69 Ohio St., 45, Judge Shauck, at page 53, defines the rule of law known as the “last chance” as follows:

“The concrete rule upon the subject is, that if one is upon the track of a railway company by his own fault and in peril of which he is unconscious, or from which he can not escape, and these facts and conditions are actually known by the engineer, it is his duty to exercise all reasonable care to avoid the infliction of injury.”

We think there is evidence tending to show that the plaintiff below, by reason of the previous signal which he had given the motorman, and by reason of the conversation which occurred between the conductor of the interurban car and the motorman of the city ear with reference to the city ear staying back, w;as entitled to assume that the motorman in charge of the city car would control his car and avoid a collision; that the first intimation he had that the motorman in charge of the city ear would not keep his car under control was when the city car was about to collide with the interurban car and that the plaintiff was then unable to escape from the peril in which he was placed.

As above stated, we think, under the averments of the petition herein quoted, the plaintiff was entitled to show that the motorman in charge of the city car actually knew of his peril and could have avoided the injury by the exercise of ordinary care, and after having introduced evidence tending to establish such facts, was entitled to have this question submitted to the jury.

Holding this view, the judgment of the lower eourj; will be reversed and the case remanded for a new trial.

Judgment reversed.

Adlread, J., and Ferneding, J., concur.