text:
    RELIEF AFTER JUDGMENT.
    [Franklin (2nd) Court of Appeals,
    February 6, 1917.]
    Powell, Houck and Shields, JJ., of the fifth appellate district sitting by designation.
    Emma McCathran v. Columbus Transfer Co. et al.
    1. Allegations of Conspiracy and False Testimony Sufficient to Support Petition for yacation of Judgment.
    A petition containing allegations of a conspiracy to secure judgment by means of false testimony, which false testimony was given at the trial and a judgment obtained which was based thereon, states a good cause of action for vacation of said judgment and the award of a new trial, “for fraud practiced by the 'successful party in obtaining a judgment or order.”
    2. Material Newly Discovered Evidence not Obtainable With Reasonable Diligence at Trial.
    Evidence of detectives of a transfer company against which an action was brought and judgment obtained by alleged fraudulent conspiracy of plaintiff and her associates averring and on trial fraudulently proving the negligence of one of the company’s chauffeurs, describing their visits to the scene of the accident and detailing conversations and acts of plaintiff and her companions (the newly discovered evidence partaking of the nature of confessional statements), while it should be received with caution, is material and its weight determinable by a jury; hence, where it appears that the superintendent of the company immediately after the accident, vainly sought interviews with, parties and witnesses at the scene of the accident, and after the death of one of. the company’s chauffeurs whom after his death plaintiff first disclosed as the one 'in fault (denied by the company), interviewed doctors, nurses and internes at the hospital where he died as to any statements made by deceased as to his participation in the accident, shows that the newly discovered evidence could not with reasonable diligence have been discovered and produced at the trial, and an order for new trial, will be affirmed.
    [Syllabus approved by the court.]
    ERROR.

      Huggins, Huggins & Hoover, for plaintiff in error.

      G. D. Saviers, for defendant in error.
   SHIELDS, J.

An action was originally commenced by the plaintiff in error to recover damages against one of the defendants in error herein, the Columbus Transfer Co., for the alleged negligent operation of an automobile resulting in causing her injury. After issue joined by answer and reply the case was submitted to a jury ending in a disagreement. Afterward a second trial was had and the plaintiff in error recovered a verdict and judgment against the said defendant in error, the Columbus Transfer Co., in the sum of $7,540, which the trial judge ordered reduced to the sum of $5,000. By proper proceedings had on the part of said defendant in error, error was prosecuted to the court of appeals of said county to reverse said judgment, which was by said court affirmed. Thereupon the plaintiff in error caused an execution to issue upon said judgment, and while the same was in the .hands of the sheriff of said county awaiting action therein, the said defendant in error, brought an action in the court of common pleas of said county against the plaintiff in error to vacate and set aside said judgment for the reasons set forth in the amended and supplemental, petition of the plaintiff in error filed herein, upon the hearing of which, after a motion and demurrer to the same were overruled, said judgment was by said court ordered vacated and set aside, and a temporary injunction was granted restraining the enforcement of the collection of said judgment and the levying of said execution issued thereon, to which "action of said court in vacating and setting aside said judgment and granting a new trial to the said defendant in error, error is prosecuted in this court to reverse the order and judgment of said court.

While numerous errors are alleged in said petition in error for the reversal of the action of the court below, we will consider only the grounds of error especially urged upon the attention of this court.

The following questions are made upon the record: First, under which subdivision of Sec. 11361, G. 0., does said action for the vacation of said judgment fall, if under either? Secondly, if it falls under Subd. 10 of said section, then the contention of the plaintiff in error must prevail, because it is not claimed that there was any conviction for perjury of the successful party in securing said judgment but if it is held not to fall within the provisions of said Subd. 10 of said section, the further question arises, did the defendant in error make a proper and sufficient showing for a new trial upon the grounds of newly-discovered evidence to authorize the court below to grant the same ?

That the action begun in the court below is authorized, by Sees. 11631 and 11580 G. C., is conceded, and that said action was instituted within the statutory period as required by Sec. 11640 is also conceded, but the controversy here is not what particular statute meets and governs the first question raised, but what particular subdivision of such statute is applicable.

Among the causes enumerated for which a new trial may be granted, after the term at which it was made, are the following:

Section 11631-1. By granting a new trial for the cause within the time and in the manner provided in Sec. 11580.

Section 11631-4. For fraud practiced by the successful part of the successful party, or any witness on his behalf, which

Section 11631-10. (When such judgment or order was obtained,' in whole or in a material part, by false testimony on the part of the successful party, or any witness on his behalf, which ordinary prudence could not have anticipated or guarded against, and the guilty party has been convicted.

Without reviewing the allegations in the amended and supplemental petition which are the foundation of this proceeding, and the law which we think applies, we are content to state but little more than the conclusion we have reached on the first branch of this case, and that is, that we can not see our way clear to hold that this proceeding for a new trial falls within the provisions of Subd. 10 of said See. 11631. It is contended on behalf of the plaintiff that the gist of the action is perjured testimony at the trial. Not only is this so, but an examination of the plaintiff’s amended and supplemental petition shows it is averred therein that a fraudulent conspiracy was entered into between the plaintiff and her companions in said automobile to recover damages for injuries sustained, in the over-turning of said automobile as herein described, by agreeing to .testify upon the trial of the plaintiff’s case, and she in turn for them in their cases, in at said automobile at the time of said accident was being driven by a chauffeur in the employ of said defendant in error, the Columbus Transfer Co., whereas in truth and in fact said automobile was not so driven; and it is also alleged that said fraudulent conspiracy was carried out and that the plaintiff and her said companions did so testify, and that said judgment was obtained by said plaintiff against the said defendant in error, the Columbus Transfer Co., by means of said false testimony. Jt thus appears that conspiracy is charged as well as false swearing — an allegation that the action was one for fraud not alone practiced at the trial. While we have read the well prepared and well considered brief of counsel for plaintiff in error with no little interest, treating in an able manner as it does of a. variety of subjects relating to the question at issue, we can not agree with said counsel that the holding made in the case of Baldwin v. Sheets, 39 Ohio St. 624, is not decisive of the question made here. Subdivision 10 of said See. 11631 was then as it is now. In that case the Supreme Court held that a petition, containing allegations of a conspiracy and that false testimony was given upon the trial by the defendants therein by which judgment was obtained, stated a good cause of action to vacate the judgment under Subd. 4 of said Sec. 11631.

In this connection counsel for plaintiff in error refer to the case of Micheal v. National Bank, 84 Ohio St. 370 [95 N. E. 905; 38 L. R. A. (N. S.) 220], and contend that the rule of law announced in that case controls the case at bar. There the court was not considering a ease within a statute, but a case in equity» while the case here is one for a new trial based upon a statute. As we view it, that case is clearly distinguishable from the case before us for the additional reason that there was no fraud charged in that case, and the learned judge speaking for the court in said ease, expressly states.in the opinion on.page 382 that:

“The amended petition herein contained no allegation of fraud in the original action on the part of the bank or any one. It is not claimed that the bank perpetrated any fraud at any time on the court or on the defendants, nor that the verdict in that case was the result of fraud. There is no averment that there was any false testimony introduced by the bank.”

Here fraud is expressly charged as a result of a conspiracy ■and false swearing. Without further pursuing this branch of the case, it will be sufficient to state that investigation shows the decision in the case of Baldwin v. Sheets, supra, has not been reversed or modified, and applying the rule of law laid down in that case to the facts in the case before us, we are of the opinion that the action herein is one for a new trial under Subd. 4 of See. 11631.

Having determined that the action does not fall under Subd. 10 of said Sec. 11631, our next inquiry will be to ascertain whether or not the party here applying for a new trial has exercised that degree of diligence contemplated by the law in ■obtaining the newly-discovered evidence presented as a ground for such new trial.

In the enumeration of causes provided by statute for a new trial, Subd. 7 of Sec. 11576 G. C., as one of the grounds therefor, provides that:

“Newly-discovered evidence material for the party applying, which with reasonable diligence he could not have discovered ■and produced at the trial.”

A reading of the testimony offered in support of the application here made, assuming that the plaintiff in error and others apparently interested in the event of this suit made the state; ments attributed to them by what are designated as the detective witnesses, leaves no doubt in the mind of this court that such testimony is material to the issue made by the pleadings in the case, for it is apparent that the liability of the defendant in error, the Columbus Transfer Co., depends upon the fact whether or not its chauffeur or other authorized agent was in active charge of the automobile at the time of the accident. We can not and do not say that the calling or occupation of these detectives discredits their testimony, but that such testimony should be received with caution and carefully scrutinized is enjoined both by the experience of courts and the observation of men generally, and it is not perhaps too much to say that it appears impossible to reconcile the testimony of at least one of these witnesses, being inconsistent as it is, if indeed not open to strong suspicion of being untrue. Granting this, the testimony of the other witnesses describes their visits with the plaintiff in error to the scene of the accident with such minuteness of detail and particularity of statement, which when considered in connection with alleged conversations, partaking of the nature of confessional statements, had by such witnesses with the plaintiff in error and her associates in the saloons mentioned, on the occasions mentioned — such testimony, like all other facts, would be the province of a jury to determine and not the court. True, the plaintiff in error denies the statements of these witnesses, but the history of the events of the night in question are not to be lost sight of in considering the evidence offered. What the effect of this evidence would be upon final trial we are unable to say, but giving to the statements of the witnesses a fair and reasonable construction, would they not likely have weight with a jury? Or stating the rule in this state as laid down in Ludlow v. Park, 4 Ohio 5, and in Cleveland, C. C. & I. Ry. v. Long, 24 Ohio St. 133, would the legitimate effect of the testimony of' these witnesses be such as to require a different verdict? We are aware that new trials on the ground of newly-discovered evidence are not indiscriminately favored by the law that litigation may not be unnecessarily and indefinitely prolonged, still the same law will not wink at the defeat of justice by condoning wrong at the expense of litigants. We are of the opinion that the testimony of these witnesses is material, and not cumulative, leaving the credibility of such witnesses and the weight of such witnesses’ testimony to the functions of another tribunal to determine.

Under Subd. 7 of said See. 11576 it must appear that the newly-discovered evidence for a new trial is not only material, but it must likewise appear that such evidence could not have been discovered before trial by the exercise of reasonable diligence. An examination of the testimony offered upon the hearing in the court below in this respect shows that the superintendent of the Columbus Transfer Co. soon after said accident sought interviews with parties, except the plaintiff in error, whom he supposed could and would give him information touching the incidents and circumstances of said accident, but it appears that they declined to so do. Beferring to pages 129 and 130 of the record, the said superintendent, after stating that he had interviewed the witnesses at the scene of the accident, and made an unsuccessful effort to interview others, was interrogated as follows :

“Q. I will ask you to state whether after that you made any efforts, and if so, what efforts you made, in order to ascertain the truth and the facts about the accident? A. I made a great deal of effort; I made all the inquiries I could, and talked with every body that had any connection with it, and tried to find out from the nurses at the hospital whether McCollum made any statement or not.
‘! Q. Did you talk with any of the doctors ? A. And with the doctors, Dr. Howell, and the internes at the hospital, the nurses and also with * # * I believe with Henry Morgan and the boy’s mother.
Q. With the exception of the information that you got from Mr. Stouffer, the Pendleton boys and Mr. McCoy as to statements that had been made to them relative as to who had driven the car, were you able to ascertain in any way? A. No, sir; positively not. ”

From the foregoing it appears that,said transfer company was not guilty of laches in endeavoring to ascertain the facts and. circumstances of the accident soon after it occurred, but on ■the contrary' it appears to have used reasonable diligence to that end.

Of course the fact is not to be overlooked that MdColluin, the chauffeur, died soon after the accident, and that the alleged disclosures of the plaintiff in error as to who was driving and directing the automobile at the time of the accident were not made until just prior to the bringing of this action, hence the said transfer company could not prosecute said action until it obtained said information. In the light of the testimony of the superintendent of the said transfer company, we are of the opinion that the requirements of said Subd. 7 of said Sec. 11576 have been met by said transfer company, and we are further of the opinion that the judgment of the court of common pleas in vacating the judgment rendered in favor of the plaintiff in error and awarding a new trial should be and the same is affirmed.

PoweJl and Houck, JJ., concur.


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    NEGLIGENCE — WORDS AND PHRASES1
    [Wyandot (3rd) Court of Appeals,
    June 27, 1917.]
    Hughes, Kinder and Crow, JJ.
    Raynard Boucher v. Wyandot Co. (Comrs.)
    1. Perpendicular Wash Bank, Defined.
    When a wash bank is eight feet high in the perpendicular, — r-that is, eight feet between the plane of its top and the plane of its base, it is then a perpendicular wash bank within, the meaning of the statute.
    2. “Wash Bank” Defined.
    The term “wash bank” is used to indicate a bank with its top lying adjacent to or connected with the surface of a road and running down therefrom to its base, in contradistinction from a hank whose base is in the plane of the surface of the road and running upward; . .
    [Syllabus by the court.]
    Error.

      Benjamin Meek, G. A. Meek and J. S. Hare, for plaintiff in error.

      F. J. Sialier and D. C. Parhet, for defendant in error.
   HUGHES, J.

On the twentieth day of September, 1915, plaintiff was severely injured while driving in his automobile along a public highway in Wyandot county. The machine in which he rode was traveling in a westerly direction along the north side of the highway, whieh was macadamized. There was hbout two feet of dirt between the macadamized portion of the road and-the embankment hereinafter referred to. The roadway was about twenty or twenty-five feet wide and at this place was bounded on the south by a forty-five degree embankment, running above the surface of the road. The north side of the road was about a forty-five degree embankment, running down to a depth of about twelve to fifteen feet from the level of the road to the base of the bank. The south half of the roadway was in as good condition as the north half, and had plaintiff driven his automobile along the south half he would not have received the injury complained of. He did, however, drive his machine along the north half and from some cause, the right hand wheels of the machine got over the edge of the bank, to the foot of which he and the auto were precipitated with great force.

Suit was brought for a recovery under and by virtue of Secs. 7563 and 7565 G. 0.

Section 7563 reads in part as follows:

“The board of county commissioners shall # * * also protect by suitable guard rails, all perpendicular wash banks more than eight feet in height where such banks have an immediate connection with a public highway or are adjacent thereto in an unprotected condition. ”

Section 7565 reads as follows:

“Failure to comply with the provisions .of the next two preceding sections shall render the county liable for all accidents or damages as a result of such failure.”

The trial court submitted the case to the jury at the close of the evidence with the statement that the issues made by the pleadings and the evidence, were four. First, was the road in question a public highway; second, was there, at the time of the alleged accident a perpendicular wash bank more than eight feet high immediately connected with or adjacent to said highway which was unprotected by suitable guard rails at the place where it is alleged the injury was received by plaintiff; third, did the plaintiff sustain the injuries complained of in his petition ; and, fourth, were the injuries caused or occasioned by the-negligence of defendant.

This statement, together with other statements in reference to these particular issues, made by the court in its charge, are assigned as error.

From the undisputed evidence and the admissions in the pleadings, there was but a single issue left in this ease for the-consideration of the jury, to wit: was the plaintiff .guilty of negligence which contributed to the accident, and hence the trial court was wrong in submitting the four issues, since each and all of them were settled and determined by the evidence and admissions in the pleadings.

A careful and exhaustive reading of the authorities finds, no definition of a perpendicular wash bank, but having in mind the intention of the legislature at the time this statute was originally passed, we are of the opinion that the term “perpendicular” as used therein, is to be considered in connection with the element of height. That is to say, when a wash bank is eight feet high in the perpendicular, — that is, eight feet between the plane of its top and the plane of its base, it is then a perpendicular wash bank eight feet high, within the meaning of the-statuté.

The term “wash bank” we believe, is used to indicate a bank with its top lying adjacent to or connected with the surface-of the road and running down therefrom to its base, in contradistinction from a bank whose base is in the plane of the surface of the road and running upward, and hence from the conceded facts and from the evidence offered by both sides, the bank in question was shown to he a wash bank more than eight feet high in the perpendicular and came within the meaning of the statute.

There was, therefore,-no longer a question of negligence on •the part of tbe defendant because the violation of a statute such as this, which was passed for the protection of the travelling public, is negligence per. se, and the trial court should have so charged the jury. And where such act of negligence on the part, of the defendant is the direct and proximate cause of an injury,, the defendant is liable unless the jury should have found that the negligence of the plaintiff directly contributed to his injury..

Schell v. Dubois, 94 Ohio St. 93 [113 N. E. 664].

Without specifically enumerating the different paragraphs of' Hie charge, it is sufficient to say that the trial court should have omitted in it, all those paragraphs referring to the four issues: referred to by him, except in so far as it was his duty to charge the jury that they must take and consider these as established facts in the case by reason of the admissions made in the pleadings and the uncontradicted evidence given in behalf of both plaintiff and defendant. ,

Witnesses were permitted to give as their opinions, that the plaintiff could have driven his automobile over the opposite side of the road from which he did go, with perfect safety, going at the rate of twelve to fifteen miles per hour. The condition of the road and all other facts supporting these opinions, should have been given the jury and not the opinions of the witnesses. In the language of Judge Owen in Baltimore & O. Ry. v. Schultz, 43 Ohio St. 270 [1 N. E. 324; 54 Am. Rep. 805], the jurors were to be left to form their opinions from these facts unaided by the mere opinions of the witnesses.

The judgment is therefore reversed and' the cause re-re anded.

Kinder and Crow, JJ., concur.


author: HAMILTON, J.

text:
    DIVORCE AND ALIMONY.
    [Hamilton (1st) Court of Appeals,
    June, 1917.]
    Jones, Gorman and Hamilton, JJ.
    Joseph Wagenlander v. Bertha Wagenlander.
    Cross Petition Improperly Dismissed for Failure of Service With Copy of Cross Petition In Absence of Unreasonable Delay.
    Dismissing a cross petition in an action for divorce on the ground that there has been no service thereon with a copy of the cross petition is erroneous, there being no showing or unreasonable delay in procuring service on such cross-petition.
    Error.

      C. 8. Sparks, for plaintiff in error.

      M. C. Lykins and J. W. Weinig, for defendant in error.
   HAMILTON, J.

Bertha Wagenlander brought suit in the Court of Domestic Relations of Hamilton county, Ohio, against Joseph Wagen-lander, praying .for divorce, alimony and custody of child, and caused service to be duly made upon said Joseph Wagenlander.

The defendant thereupon answered denying the allegations of the petition, and by way of cross-petition prayed for divorce from the said Bertha Wagenlander and for custody of child and other relief. No summons was issued and, together with a copy of the cross-petition, served upon the said Bertha Wagenlander upon the cross-petition.

Counsel for said plaintiff, Bertha Wagenlander, moved to dismiss the cross-petition for the reason that no summons had b'een served upon the plaintiff on the cross-petition. The court sustained the motion and dismissed the cross-petition.

This was error, as the court could not dismiss the cross-petition on motion, unless the motion stated and the court found there had been unreasonable delay in causing summons to issue; and no such delay appears from the record to have been so stated in the motion or to have been found so by the court.

It would seem that what the court endeavored to do on the motion was to bold that service of summons on’ the cross-petition together-witb a copy of the cross-petition was necessary before the court would have jurisdiction to hear and determine the case on the cross-petition. In this wfe think it was correct, as the reason for the provision of the statute relating to service in divorce matters on the petition applies with equal force to service on a cross-petition as alike affecting public policy. "While the statute relating to service of summons in divorce matters on the petition does not use the term “cross-petition,” the provisions must be held to include service upon a cross-petition and service must be made in like manner, to clothe the court with jurisdiction to hear and determine a matter of divorce and! alimony upon cross-petition.

For the reasons above stated, that there was no showing of unreasonable delay in procuring service upon the cross-petition, the judgment sustaining the motion to dismiss the cross-petition will be reversed.

Jones, and Gorman, JJ., concur.


author: SAYRE, J.

text:
    PARENT AND CHILD.
    [Pike (4th) Court of Appeals,
    June 7, 1916.]
    Middleton, Walters and Merriman, JJ.
    William M. Vulgamore v. Unknown Heirs of Solomon M. Vulgamore et al.
    No Presumption of Paternity Arises as to Child Conceived While Wife of First Husband and Born Immediately After Second Marriage, Notwithstanding Recognition of Parentage by Second Husband.
    A child, begotten while the mother was the wife of F. and when there was the possibility of access to her by him, was bom seventeen days after the mother was married to V. and was recognized by V. as his offspring. Held: No presumption could arise as to -which .was the father of the child.
    [Syllabus by the court.]
    Appeal.
    This action was brought by parties wbo are of the-blood of Jesse M. Vulgámore, the ancestor, to partition, .about one hundred and sixty-three acres of land in Pike county, the same having been inherited by Jesse M. as his share of his father’s estate. By the last will and testament of Jesse M. Vulgamore he gave his widow one-third of his real estate during her life and at her death devised and bequeathed it, together with all the balance of his property, to “My beloved daughter Tevany Frances W. Vulgamore,” except an unimportant legacy which need not be referred to. Terrena, as she was called, married Judge W. B. James in 1883, and died in 1898 seized of the one hundred and sixty-three acres without issue and intestate. After the death of Terrena Judge James married Louisa F. Adams, and to them were born two children, Charlotte and David James, who are now minors and claim the land thru descent from Judge James, who died October 12, 1913. Terrena’s mother was Evaline Shonkwiler. She was married three times: first, she married Adams, by whom she had children; second, she married Jacob Farmer in 1854. She was divorced from him November 10, 1857, and married Jesse M. Vulgamore December 24, 1857, forty-four days after her divorce, .and gave birth to Terrena January 10, 1858, seventeen days after she was married to Jesse M. Vulgamore.
    Evaline Farmer filed an affidavit in her divorce suit in which she says that,
    “The residence of the said Jacob Farmer is totally unknown to her; that he removed from this state on or about the 4th day of June, A. D. 1854, since which time petitioner has not heard of or from him; that she has used every effort to learn the residence of the said Jacob Farmer and that the. same could not with reasonable diligence be ascertained by her.”

      David Davis and Frank W. Moulton, for appellants.

      John C. Milner and Levi B. Moore, for defendants.
   SAYRE, J.

It is claimed on behalf of Charlotte and David James that Terrena was the daughter of Jacob Farmer, and that the property at the death of Terrena was nonaneestral and passed to her husband, Judge W. D. James, and at his death in 1913 to his children. On the part of the Vulgamores it is claimed that Terrena was the child of Jesse M., and that the property was ancestral and after the death of Judge James the title returned to the Vulgamore family.

The sole question in the case is: Who was the father of Terrena?

Counsel for Charlotte and David James contend that since Terrena was begotten in lawful wedlock when her mother, Eva-line, was the wife of Jacob Farmer, and as such husband and wife had access to each other in April, 1857, when Terrena was begotten, then by virute of the rule in Powell v. State, 84 Ohio St. 165 [95 N. E. 660; 36 L. R. A. (N. S.) 255], she must be the •daughter of Jacob Farmer, and net the daughter of Jesse M. Vulgamore.

■ Counsel for the Vulgamores contend that since Jesse M. married Evaline when she was big with child and afterward acknowledged the child as his own, she must be his daughter, and not the daughter of Jacob Farmer. Miller v. Anderson, 43 Ohio St. 473 [3 N. E. 605; 54 Am. Rep. 823].

When it is admitted or shown that husband and wife have access to one another at the time a child is begotten in lawful wedlock one of the strongest presumptions of law arises that the child is the offspring of the husband. When it is shown that at the time of marriage the mother was big with child and the husband afterwards acknowdedges the child as his own then an ■equally strong presumption of law arises that the child is the offspring of the husband. Each of these presumptions is often described as conclusive.

Counsel for each of the parties confidently rely upon one or the other of these presumptions for a decision of this ease in their favor. But manifestly they can not both be indulged in at the same time if of equal force, for the effect would be a stand-off. They would not move the court toward a decision, but would rather cause it to standstill and forever prevent a final determination.

It would seem that the presumption in regard to a child begotten in lawful wedlock arises first, if at all, in point of time, because conception precedes birth. Now if this presumption must first be taken into account and is conclusive then no evi-deuce could be received to overthrow it, and hence ho conflicting presumption could arise to affect it. This would exclude from consideration the other presumption and would be the end óf the case. But it is important to observe under what circumstances these two presumptions arise. When it is said that a child begotten in lawful wedlock is presumed to be the offspring of 1he husband of its mother the presumption arises in ordinary eases where the child is born after the death or divorce of the father and without the fact of a second marriage before birth of the child, and without the acknowledgment of the parentage of the child by the husband of the second marriage. When a map marries a woman big with child and acknowledges the offspring as his own and the presumption arises that it is his child, it is in the ordinary case where the woman was unmarried at the time of conception. But in the case .under consideration the facts 'are entirely different.. While Terrena was begotten in lawful 'wedlock of Jacob Farmer and Evaline Farmer she was born after her mother was married to another man. A new fact ap- ' pears which is not found in the eases where the ordinary presumption of legitimacy arises when a child is begotten in lawful wedlock. So, also, while it is true that Jesse M. Yulgamore married Evaline when big with child and acknowledged Terrena • as his offspring, yet when Terrena was begotten her mother was not single, as in the usual case, but was married to another man. A new fact appears which is not found in the cases where the ordinary presumption of legitimacy arises when a man marries an unmarried woman big with child and acknowledges the offspring to be his own.

So the ease under consideration contains facts which are not found in the cases where the two presumptions above referred to are ordinarily indulged by the courts. Since these presumptions are only indulged under certain circumstances and the case under consideration presents wholly different circumstances, it clearly becomes a question whether the court has a right to indulge either one in the consideration of this case.

We may find an answer to the question by inquiring for the reason of indulging these presumptions in cases where they properly arisé. An examination of the books will disclose that the principal reasons for these presumptions are:

1, For the reason that all presumptions are made úse of, to wit: “When the fact can not itself be demonstrated, that which comes nearest to proof of it is proof of the circumstances necessarily or usually attending it.” 3 Blackstone Com. 371.

2. For the benefit of the offspring — to> avoid bastardizing the issue.

Now let us apply the reasons for these presumptions to the facts in the case under consideration and see the result. To restate the first proposition above referred to, it is as follows: When a child is begotten in lawful wedlock it is presumed to be the offspring of the husband of the mother because the offspring of a married woman is ordinarily the child of her husband. The father of Terrena is the fact that can not be demonstrated. But when proof is'admitted that Jacob Farmer was the husband of Evaline when Terrena was begotten, that is proof that he is the father of Terrena because the fact usually attending the birth of the child of married people is that the husband is the father. But when we consider the facts in this ease we must consider all of them. While it is true that when a child is begotten in lawful wedlock it is presumed to be the offspring of the husband of the mother because this, is the usual and ordinary fact, can it be said to be the usual and ordinary fáct where the mother before the birth of the child marries" another man, who had access to her when the child was begotten and marries her when big with child and acknowledges the child as his own? These facts are very unusual and extraordinary, and no one can say under these circumstances that the husband of the first marriage is ordinarily and usually the father. So, also, while it is true that when a man níarries a woman big with child and acknowledges the child as his offspring the presumption arises that it is his becausé it odinarily and usually is, can it be said to be the ordinary and usual fact when the same child was begotten at the time the mother was the wife of another man who had access to her at the time of conception? Certainly no one will pretend that it is the usual and ordinary fact.

Further, as stated above, these particular presumptions are made use of by the courts especially to avoid judgments declaring the offspring of married people bastards. But such a doctrine is wholly out of place in this ease. We are told in Powell v. State, supra, that “the common law definition of a bastard is one that is begotten and born out of lawful matrimony,” but Terrena was both begotten and born in lawful matrimony. If she is not adjudged to be the legitimate ehild of Jacob Farmer she must be adjúd'ged the legitimate child of Jesse M. Vulga-more. So it seems clear that neither of these presumptions arise in the case under consideration because the reasons for their being called into operation are absent, in view of the facts in in the case. The court is then left to a determination of the fact in issue without the presence of either of these presumptions.

We have taken into consideration the affidavit of Evaline, filed in her divorce proceeding, -and we find it of substantially no value in the case. We are asked to consider it by the parties who hold to the theory that Terrena was a Vulgamore. Viewed from that standpoint the divorce proceeding was a fraud. Evaline Farmer represented to the court that she was a virtuous woman, and on the theory that Terrena was a Vulgamore she imposed on the court because she was an adulteress and at the time of the divorce trial was heavy with ehild by a man not her husband.

We have also considered the statement of the witness Adams to the effect that Evaline told him Terrena was the child of Farmer. But we do not attach any importance to that as it is. not to be expected that a woman will make admissions which convict her of adultery.

There are a few outstanding facts, some of which are beyond dispute, which are decisive of this case. Jesse M. Vulgamore had opportunity for sexual intercourse with Evaline Farmer in April, 1857, when Terrena was begotten. It is probable that while Jacob Farmer was in the neighborhood he and Evaline were living separate and apart. Jesse M. Vulgamore was Eva-line Farmer’s lover in April, 1857, and he frequently visited her about that time. He married her when she was big with ehild and acknowledged Terrena as his daughter. He believed she was bis daughter. Terrena believed so during all her life. The next of kin of Jesse M. Vulgamore believed so. There was some testimony that her parentage was disputed. Naturally,' under the circumstances, it would be. The fact that it was disputed and yet when the property of John M. was distributed the family allowed' Terrena to participate in the distribution without a legal contest, is strong evidence of the fact that they believed she was a Vulgamore, for the court has no doubt they would have contested her right at law if they sincerely doubted that she was the child of Jesse M. Now since Jesse and his .next of kin, who were in a position to know all the facts, believed Jesse was the father, and Terrena herself believed so all her life, we come, without hesitation, to the conclusion that Terrena was the daughter of Jesse M. Vulgamore, and that the property devised by him to her was ancestral, and that the defendants, Charlotte and David James, have no interest therein.

Decree accordingly.

Walters and Merrimam, JJ., concur.


author: CARPENTER, J.

text:
    INJUNCTION — NUISANCES.
    [Hamilton (1st) Court of Appeals,
    May 31, 1916.]
    Carpenter, Grant and Meals, JJ., of eighth district sitting by designation.
    Henry F. Gau et al. v. Howard N. Ley et al.
    «Owner of Residence Denied Injunction Against Operation of Factory when Trend of Business and Manufacturing Foreseen in Locality.
    Injunction will not lie to restrain the operation of a manufacturing plant because the noise from it is offensive to nearby residents when the business is lawful, useful and necessary to the community, the plant not a nuisance per se, carried on in an up-to-date manner, and located on two lines of railway which were there long before plaintiffs’ residences were built, and especially since plaintiffs might have foreseen that manufacturing and business would follow the railways and the land adjacent thereto would he devoted to such uses.
    ■ H. J. Heilker, for plaintiffs.

      Franlc E. Wood, for defendants..
   CARPENTER, J.

Plaintiffs are asking that we enjoin the defendants from operating their plant located on a tract of land which fronts 200 feet on the south side of Lincoln avenue, where the viaduct crosses the ravine occupied largely by the Cincinnati, Lebanon &' Northern and the Norfolk & Western railroads: The office of said plant is on a level with Lincoln avenue. The plant proper or manufacturing building is twelve to fifteen feet lower in the hollow. The eastern side of defendants’ lot lies alongside of the railroad property. ‘ Immediately to the north across said railway tracks and opposite defendant’s property, the Ford Motor Company has a four-story building which it uses in connection with its automobile business. There are other business buildings to the south along the railroads in the ravine between Lincoln avenue and Oak street, all of which tends to show that the territory in the block of land between Lincoln avenue and Oak street west and east, is gradually easting the mould of business on this territory.

It is admitted that the district lying immediately west is exclusively residential, of somewhat superior character. The evidence shows that during the business hours of the week days there are noises from the plants which render the plaintiffs’ homes at times more uncomfortable than before the plant began operations. The only discomfort arises from the noises.

It is claimed by the defendants that if there are any disturbing noises in said neighborhood, they arise from the operation of said railroads. They aver that their plant is used for the fabrication of structural and ornamental iron, and that the machinery used in said plant is the most modern and approved type, and any noise arising therefrom is not sufficient to disturb the peace and quiet of plaintiffs’ homes.

There is no claim, and can not be, that the operation of defendants’ plant is per se a nuisance. Further, it is admitted that the business is a lawful one. Even though in its operation it were unavoidably noxious and offensive, and thereby became prima facie a nuisance, yet it does not follow that plaintiffs are relieved from establishing that its operation is in fact a nuisance, and from which they suffer irreparable injury. In establishing such fact the surrounding facts and circumstances must be considered.

As is said in Wood, Nuisance, 638-9:

“In determining the question of nuisance from noise or vibration, reference is always to be had to the locality, the nature of the trade of use of the property producing it, the time during which it exists, the intensity of the noise and the effects produced thereby.’ ’

In the case of Eller v. Koehler, 68 Ohio St. 51 [67 N. E. 89], Judge Davis, at page 56 in his opinion, says:

■ “Whether it be a case of injury to real property, or a case of personal annoyance or inconvenience, or of interference with the comfortable enjoyment of one’s property, or whether the question be as to the existence of a nuisance, or as to the extent of the alleged injury, or as to whether the defendant’s act caused the injury, and though the inquiry be before a chancellor or a jury, the contiguity of the alleged nuisance to the plaintiff’s property and the nature of the vicinage is always a pertinent circumstance to be considered. The matter of locality may be of much or little weight in arriving at a conclusion, nevertheless the parties have the right to have the controversy heard and'determined with all the light that locality may throt/upon it. The mutual interests of urban population require this. For example, if one unnecessarily erects, maintains and operates a noisy, smoky machine shop, or rolling mill, in the midst of a section of a city or town already wholly given up to residences, possibly many of them of elaborate design and great costs, there would be less excuse for the offender in so using his own property than if he had chosen a place which had been wholly or in part given up to trade and manufactures. All that can be required of men who engage in lawful business is that they shall regard the fitness of locality. In the residence sections of a city, business of no kind is desirable or welcome. On the other hand, one who becomes a resident of a trading or manufacturing neighborhood, or who remains while in the march of events a residence district gradually becomes a trading or manufacturing neighborhood, should be held bound to submit to the ordinary annoyances, discomforts and injuries which are fairly incident to the reasonable and general conduct of such business, in his chosen neighborhood. The true rule would be that any discomfort or injury beyond this would be actionable; anything up to that point would not be actionable. ’ ’

In the case of Goodall v. Crofton, 33 Ohio St. 271 [31 Am. Rep. 535], the second clause of the syllabus reads as follows:

“When a party, who complains that a business, lawful per se, is a nuisance, and affects his property injuriously by reason of the manner in which it is conducted, has an adequate remedy in an action for damages, he must establish his right to relief at law, before equity will interfere by injunction.”

Judge Ashburn, in the opinion of the court, at page 277,. says:

“A court of chancery may interfere by injunction when the injury is conceded or is clearly established, yet the power should always be exercised cautiously and be sparingly used. Where the business complained of is lawful, and conducted in the most approved and orderly manner, in a place where there are in operation numerous establishments of kindred description, contributing to the needs of the community, and where the destruction of a business ivould occasion mpre injury to the defendant than advantage to the plaintiff, the chancellor will exercise the high prerogative of injunction with great care and caution.”

Considering now the application of the foregoing propositions of law in connection with the general law on this subject, we have a lawful business in itself and one that is useful and necessary to the community, and which the public good requires shall be carried on by some persons in some locality. The real question is whelhér it is proper and right that it be carried on in the locality where it is now established.

It will be remembered that a ravine exists at the eastern border of this territory lying fifteen to twenty feet'from the level of Lincoln avenue and May street, where plaintiffs, respectively, reside. That the defendants’ plant was located in this ravine twelve to fifteen feet lower than Lincoln avenue; that other business buildings are located along said ravine in the immediate neighborhood; that two railroads are operating their trains da.y and night on said tracks; that said railroads were there and were operating long before plaintiffs located their homes on Lincoln avenue and May street.

Is it not reasonable to presume that plaintiffs, in possession of all these facts, could have foreseen, that in the large and growing city of Cincinnati, the march of business would sooner or later follow the line of these railroads and convert the adjacent strips of land into business uses? As said by Judge Davis in the case of Eller v. Koehler, supra.

“All that can be required of men who engage in lawful business is that they shall regard the fitness of locality. In the residence sections of a city, business of no bind is desirable or welcome. On the other hand, one who becomes a resident of a trading or manufacturing neighborhood,' or who remains while in the march of events a residence district gradually becomes a trading or manufacturing neighborhood,- should be held bound to submit to the ordinary annoyances, discomforts and injuries which are fairly incidental to the reasonable and general conduct of such business in his chosen neighborhood. The true rule would be that any discomfort or injury beyond this would be actionable; anything up to that point would not be actionable.”

The doctrine underlying this class of eases'is grounded upon the gospel rule of doing unto others as we would that they may do unto us. “Sic utere tuo ut alienum non laedas” is borrowed from the Gospel and may be freely translated: So reasonably to use thine own as not to injure another in the reasonable use of his.

As before stated, the land upon which- the establishment, complained of was located was peculiarly adapted to business and manufacturing. Its location by reason of railroad facilities invited such use; and notwithstanding it may have discommoded plaintiffs and rendered their homes somewhat uncomfortable, yet we can not say that defendant’s use of its property was unreasonable in its relation to plaintiffs’ reasonable use of theirs.

“The law will not declare a thing a nuisance because it is unpleasant to the eye, nor because the property of another is rendered less valuable, nor because its existence is a constant source of irritation and annoyance to others. It does not pander to man’s taste, nor consult their mere convenience. It simply guards and upholds their material rights and shields them from unwarrantable invasion.”'

While th'e homes of these plaintiffs in connection with a large number of others, constituted in themselves a residential section or neighborhood, it does not follow that they are free to command the use, so long as that use is reasonable, to which an adjacent district may be utilized. Such appears to us to- be the situation here. Consequently plaintiffs, obedient to the law, must submit to such annoyances and discomforts as are fairly incidental to the use of this adjacent district lying along said railroads.

We therefore hold that plaintiffs have failed to bring theii case within the rules of law entitling them to an injunction.

The injunction heretofore granted is dissolved and the petition is dismissed, for which an entry may be drawn accordingly.

Meals and Grant, JJ., concur.


author: ALLREAD, J.

text:
    CHARGE TO JURY — NEGLIGENCE.
    [Hamilton (1st) Court of Appeals,
    March 31, 1915.]
    Femeding, Kunkle and Allread, JJ., of the second district sitting by designation.
    Eliza Samuels v. Cincinatti Traction Co.
    Instruction as to Contributory Negligence Presumed Justified where Bill of Exceptions Contains Only Part of Evidence.
    Where the bill of exceptions contains only a part of the evidence, and it is complained that the court erred in making any reference in its charge to the jury to the subject of contributory negligence as to which the pleadings tendered no issue, a reviewing court will presume that the evidence justified an instruction on that subject.

      George J. Slaline and Matthews & Matthews, for plaintiff in error.

      Joseph Withy, for defendant in error.
   ALLREAD, J.

The plaintiff below, who is also plaintiff in error, claims to have been injured while in the act of alighting from a street railway car. The negligence charged against the company is the premature starting of the car. The answer is a general denial. The trial resulted in a verdict and judgment for defendant.

The plaintiff took a bill of exceptions embodying the entire charge of the trial court, but only a small portion of the evidence. The only assignment of error urged by counsel in this court is that the trial court erred in charging the jury upon the subject of contributory negligence. It is not contended that the charge given is incorrect in the abstract, but it is urged that it was improper for the court to charge upon that subject at all.

The bill of exceptions recites that “the plaintiff to maintain the issues on. her part introduced the evidence of certain witnesses. ’ ’

There is no statement of what the evidence on behalf of plaintiff tended to prove. It is not a conclusive presumption that the plaintiff’s evidence was confined strictly to the aver-ments of her petition; nor is it inconsistent with the record, that evidence may have been offered on behalf of plaintiff tending to raise an inference of contributory negligence.

The fact that the pleadings tender no issue upon contributory negligence is not the only test as to whether contributory negligence may become an issue for the consideration of the court and jury. In the very recent case of Rayland Coal Co. v. McFadden, 90 Ohio St. 183 [107 N. E. 330], the law arising out óf the cases of Cincinnati Traction Co. v. Forest, 73 Ohio St. 1 [75 N. E. 838], and Cincinnati Traction Co. v. Stephens, 75 Ohio St. 171 [79 N. E. 235], is discussed, and the doctrine clearly established that notwithstanding the pleadings tender no issue of contributory negligence, yet ¡if the evidence offered by plaintiff creates an inference of contributory negligence, the trial court is justified in instructing the jury upon the law of contributory negligence as applicable to the evidence so offered.

In the absence of a showing to the contrary, we are bound to presume that the evidence justified the charge of the trial court, for it is a principle constantly applied by reviewing courts that all reasonable presumptions consistent with the record under review must be indulged in favor of regularity and! against error.

There being no error manifest upon the record, it follows-that the judgment of the court of common pleas should be affirmed.

Femeding and Kuhkle, JJ., concur.


author: HOUCK, J.

text:
    WILLS.
    [Stark (5th) Court of Appeals,
    March 22, 1917.]
    Powell, Houck and Shields, JJ.
    John Leroy Parthe and Anna Parthe v. William L. Parthe et al.
    1. Dower not Assignable to Wife of Devisee of Contingent Estate.
    The surviving spouse of .one who departed this life before the happening of the event which was made a condition of a devise in his favor going into effect, is not entitled to dower in the property so conditionally devised.
    2. Effect- of Sale of Prospective Interest by Contingent Devisee.
    The sale by a. contingent devisee of his prospective interest in the estate does not defeat the claim of'a son to whom.-one-half of the said interest was devised in the event of the death of the contingent devisee preventing the interest vesting in him.
    [Syllabus by the court.]
    •Error.

      Pomerene, Ambler & Pomerene, for plaintiffs in error.

      Diehl & Brown and Amerm'an & Mills, for defendants in error.
   HOUCK, J.

The parties here stand in the same position as to each other that they stood in the court of common- pleas.

The action below was one in partition, wherein the plaintiffs; sought to partition certain real estate described in the petition. John Leroy Parthe claimed to be the owner of the undivided one-twelfth part thereof and Anna Parthe claimed a dower interest in the undivided one-sixth part of said real estate. An accounting for rents and profits was also prayed for in the petition.

The amended answer of the defendants alleged as a defense a general denial, and further set forth that by the terms and conditions of a certain written contract which was entered into between Charles Parthe, prior to his death, and the defendants, Eobert I. Parthe and Edward J. Parthe, by the terms of which they had purchased the interest of said Charles Parthe in and to the real estate sought to be partitioned, and that they, the said Eobert I. Parthe and Edward J. Parthe, had fully complied with all of the terms and conditions of said written contract, and that Charles Parthe and the plaintiffs had received and accepted the benefits thereunder, and that by reason thereof they are now estopped from claiming any interest in and to the real estate set out and described in plaintiff’s petition. They also aver in their amended answer that if plaintiffs have any remedy and any rights under the terms of the will of William L. Parthe, Sr., that- such are under the jurisdiction of the probate court, and that the common pleas court is without jurisdiction in the premises.

The plaintiffs filed a reply in the nature of a general denial to all of the material allegations contained in the amended answer of the defendants.

■ Upon the issues thus raised by the pleadings, and by agreement of all the parties to the suit, a jury was waived, and the cause was submitted to the trial judge upon an agreed statement of facts. The court below found for the defendants and dismissed the petition of the plaintiffs and entered judgment accordingly.

Did the trial court err in so doing, to the prejudice of plaintiffs in error, or either of them? This court must answer this inquiry from the agreed facts in the case, the correct application of the law pertaining to them, and the proper interpretation to be placed- upon Item 4 of the will of William L. Parthe, Sr.

So much of the agreed statement of facts as we deem necessary for the proper consideration of this controversy is as follows:

“William L. Parthe, Sr., and his wife, Minnie L. Parthe, lived in the city of Alliance, Ohio. William L. Parthe, Sr., owned what is known as the Parthe Block, being the property in dispute herein. William L. Parthe, Sr., had the following children: Charles, Edward J., Eobert I. and William Parthe;. Mary P. Moore and Lilian Bowen. On the 25th day of November, 1900, William L. Parthe, Sr., died, leaving a will. Item 4 of this will is as follows:
“ ‘ I give, devise and bequeath to my sons, Charles Parthe, Edward J. Parthe, Robert I. Parthe and William L. Parthe, Jr., and to my daughters, Mary P. Moore and Lillian Bowen, the brick block situate on lot 518 in the city of Alliance and known as the Parthe Block, subject to their mother’s use thereof during her lifetime, and subject to the further conditions that should my said wife die within ten years from the date of my death said brick block and the grounds on which it is situate shall be rented, and the proceeds thereof during the remainder of the said ten years from the date of my death be divided equally between my said children, subject to the payment of taxes and the necessary repairs of said block. At the expiration of-the said ten years from the date of my death, if my said wife is then deceased, or at the time of her d'eath should she survive me more than ten years, the said block on lot No. 518 shall be sold by my executors and the proceeds thereof divided equally between my said children, subject, however, to this further provision : that if my son "Charles should die before the sale of said block, and before the division of the proceeds thereof, leaving a child or children, then one-half of the said one-sixth which would go to him if living shall go to his child or children that may survive him, and the other one-half, of the said one-sixth which would have gone to him if living shall go to his brothers and sisters in equal proportions.’
“Some time after the death of William L. Parthe, Sr., to-wit, December 14, 1904, Minnie E. Parthe, his wife, died. Ten years after the death of William L. Parthe, Sr., Charles Parthe attempted to secure his share of the Parthe estate given him in Item 4 of the will of William L. Parthe, Sr., and to do this he began partition proceedings which were started some time after one of the plaintiffs in this case, Anna Parthe, had secured her divorce from Charles Parthe. As a result of Charles Parthe’s demands -and the institution of the partition proceedings, Robert I. Parthe and Edward J. Parthe purchased this interest for the sum of $5,000 for his share of the estate and his interest in that block, and at that time Charles Parthe, the husband of Anna Parthe and the father of John Leroy Parthe, the plaintiffs-herein, signed a contract to deliver to Robert I. Parthe and Edward J. Parthe a warranty deed for his interest in the Parthe estate and the property in question. A short time after this contract was made a supplemental • contract was made which. changed the time of payment and provided for the payment of so much per week. Shortly thereafter Charles Parthe died, and his divorced wife, Anna Parthe, the plaintiff, was appointed ad-ministratrix of his estate, and collected from Robert I. Parthe: and Edward J. Parthe .the balance due under Charles Parthe's contract, amounting to approximately $3,850. Anna Parthe and John Leroy Parthe then instituted the partition proceedings herein. That the real estate described in the partition ,was not sold by the executors of the estate of William L. Parthe, Sr., and has not been sought to be sold by them. That on December 9th, 1902, they filed their final account and were discharged as such executors, and that no administrators with the will annexed have since been appointed. ’ ’

The first question that presents itself for determination is, what interest in the real estate in question did Charles Parthe take under item 4 of the will of his father, William L. Parthe, Sr.1? This inquiry leads us to determine the proper construction to be placed upon item 4 of said will.

The object and aim sought in the construction of the language and terms used in a will is for the sole and only purpose of ascertaining the intent of the testator. It is the intention of the maker of a will as is indicated by the words, language, expressions and terms employed therein, that must be found by a court in its judicial interpretation, and this should be obtained from giving to them their plain, ordinary and generally accepted use and meaning. The plain and unambiguous words of the will must prevail, and can not be controlled or qualified by any imaginary or seeming unwarranted construction placed upon them which might appear to grow out of the peculiar surroundings of the testator at the time of the execution of his will.

We find the language of the will under consideration clear. plain, explicit, and in no way ambiguous, so far as ascertaining the rights and interest of Charles Parthe in and to the real estate now in controversy. That part of the will necessary to be interpreted, and from which we must determine the extent of the estate devised to Charles Parthe, and the interest, if any, he had at the time of his death, -is as follows:

“At the expiration of said ten years from the date of my death, if my. said wife is then deceased, or at the time of her death should she survive me more than ten years the said block on lot No. 518 shall be sold by my executors and the proceeds thereof divided equally between my said children, subject, however, to this further provision: that if my son Charles should die before the sale of said block, and before the division of the proceeds thereof, leaving a child or children, then one-half of the said one-sixth which would go to him if living shall go to the child or children that may survive him, and the other one-half of the said one-sixth which would have gone to him if living shall go to his brothers and sisters in equal proportions. ’ ’

If we apply the rule of law as to the construction and interpretation of wills as herein laid down to the above language, which taken in connection with the conceded fact that Charles Parthe departed this life before the sale of the Parthe Block ••and before the division of the proceeds therefrom, we can not ;see how counsel for defendants in error are entitled to maintain their defenses as to the claim of the plaintiff in error, John Leroy Parthe.

Under the provisions of the will as contained in item 4, Charles Parthe had certain rights in the real estate as to the income therefrom until it was sold and the proceeds from said sale distributed; but if he were not living at the time of such sale and the distribution of the proceeds, then and in that event the one-half of his interest should go to and vest in his child or children, and the other half in his brothers and sisters.

We are bound to hold and do hold under the facts and law in this case that upon the death of Charles Parthe one-half of all of the interest in and to the real estate in question went to and vested in John Leroy Parthe, the.-surviving son of Charles Parthe, deceased, and the other one-half to the brothers and sisters of said Charles Parthe, as clearly provided for in the will of William L. Parthe, Sr.

It will be noticed that the interest in the real estate now vested in John Leroy Parthe came to him not from his father, Charles Parthe, but under and by the terms of the will of his grandfather, William L. Parthe, Sr.

Coming now tp the second question presented for our consideration : Is Anna Parthe entitled to dower in any part of said real, estate? This must be determined from the agreed facts and the provisions of ,See. 8606 G. C. which reads as follows:

“A widow or widower, who has not relinquished or been barred of it, shall be endowed of an estate for life in one-third of all the real property of which the deceased consort was seized as an estate of inheritance at any time durihg the marriage, in one-third of all the real property of which the deceased consort at decease held in fee simple in reversion or remainder, and one-third of all the title or interest that the deceased consort had at decease in any real property held, by article, bond, or other evidence of claim.”

It must be conceded that whatever dower right, if any, Anna Parthe has in this real estate, comes to her by operation' of law, and not otherwise.

What interest did Charles Parthe have in said real estate at the time of his death? Not any. Anna Parthe received no interest in it under the will of William L. Parthe,’ Sr., who by his will devised the share of Charles Parthe to him subject only to the happening of a certain event, namely, that he be living at the time of the sale and distribution of the proceeds; and having departed this life before such occurred, then by operation of the will of said testator the interest that would have gone to Charles Parthe had he been living at the time of the sale and distribution of the proceeds thereof, went to and vested in John Leroy Parthe and the brothers and sisters of Charles Parthe. Thus it must and does necessarily follow that Anna Parthe, the surviving spouse of Charles Parthe is not entitled to dower in the real estate which was devised to John Leroy Parthe and to the brothers and sisters of Charles Parthe.

In the face of the conceded facts, the provisions of Sec. 8606 Gr. C. and onr bolding as to the devise in question under the will before us for consideration, we must hold that the claims made by Anna Parthe as to her dower rights are not well taken.

Are the defenses or either of them, as stated in the aménded answer oi; the defendants below, who are also the defendants in error here, a bar to the rights of the plaintiff John Leroy Par-the to the relief prayed for in his petition? We must answer this in the negative.

The contract relied' upon by the parties no doubt was entered into in good faith between the parties thereto, and would have been binding upon them had Charles Parthe been in full life at the time of the sale of the Parthe Block and the distribution of the proceeds of such sale. This contract was not signed by John Leroy Parthe, and therefore he can not be barred from his legal right to hold real estate devised to him under the will of his grandfather, William L. Parthe, Sr.

In passing let us say, in view of the facts contained in the' agreed statement of facts, and from all the surrounding circumstances of this case, it is apparent to us that a seeming hardship will be cast upon some of the defendants in error; yet we know of no rule of law or equity that can change that well-known maxim, “An owner of real estate can only convey to the grantee, to the extent of his own title and interest therein. ’ ’

Viewing this case as we do we are of the opinion that the judgment below should be reversed as to the plaintiff in error John Leroy Parthe, and affirmed as to the plaintiff in error Anna Parthe.

The court coming now to render the judgment that the common pleas court should have rendered in this case, it is hereby ordered, adjudged and decreed that John Leroy Parthe, plaintiff in error, one of the plaintiffs below, is entitled to have partition of the real estate described in the petition, and an accounting for rents and profits as prayed for; that the petition be dismissed as to the other plaintiff therein, Anna Parthe.

The amended answer of Edward J. Parthe and Robert I. Parthe, who filed same for themselves and others, is hereby dismissed.

Tbis cause is remanded to the common pleas court with instruction to carry into execution the judgment of this court.

Powell and Shields, JJ., concur.


author: SHIELDS. J.

text:
    CARRIERS.
    [Wayne (5th) Court of Appeals,

    September Term, 1916.]
    Shields, Powell and Houck, JJ.

      Pennsylvania Co. v. Amelia C. Quinby.
    Presumption of Negligence Arises from Loss of Baggage by Theft and Burden of Proof on the Initial Carrier.
    Where a trunk is opened and valuables stolen therefrom during transit in a continuous journey over a number of connecting lines, a presumption arises of negligence in its transportation, and in an action against the initial carrier for the loss thus sustained the burden is on the said carrier to show, not only that the loss did not occur on its own line, but that proper care was exercised to prevent the occurrence of such a loss.
    [Syllabus by the court.]
    ERROR.

      McCarty, McClintock & Armstrong, for plaintiff in error.

      A. D. Metz, for defendant in error.

      Motion to certify record is overruled, 61 Bull.

   SHIELDS. J.

This was an action brought by the defendant in error, plaintiff below, to recover of the plaintiff in error, defendant below, the value of certain furs and clothing, securely packed in a trunk, and delivered by the defendant in error to the plaintiff in error at Wooster, Ohio, on September 22, 1913, to be shipped to Dresden, Germany, via Philadelphia and North German Lloyd’s lines, as per bill of lading issued and delivered to the defendant in' error by the plaintiff in error of said date, and for which the defendant in error paid to the plaintiff in error the sum of $1.13 as carriage hire. She alleges that said trunk was broken open and said furs were taken out or stolen therefrom in transit prior to said trunk reaching Dresden, Germany. She further says that she duly performed all the conditions of the contract on her part, but that the said company did not safely carry and deliver said furs as it agreed and bound itself to do, but negligently failed to do so, whereby said furs were wholly lost to the plaintiff, to her damage in the sum of $1,985.

Said company interposed three defenses; first, it admits that a crated trunk was delivered to it at Wooster, Ohio, on the day and consigned to the plaintiff at Dresden, Germany, as in said petition stated, and that it agreed to transport said trunk over its own lines which terminate at Pittsburgh, Pennsylvania, and with respect to which trunk it agreed to act only as agent with respect to the portion of the route beyond its own lines, and it denies generally the other allegations of the plaintiff’s petiton; second, that the plaintiff knowingly and willfully billed and classified the contents of said trunk as linen, and neglected and refused to disclose to the defendant the true contents of said trunk, whereby the plaintiff obtained transportation for said trunk at less than the regular rates then established by said company, and thereby deprived the defendant of the right to be compensated in proportion to the value of said goods and the consequent risk assumed, in violation of the interstate commerce laws of the United States; third, that the'terms and conditions of the contract for the carriage of said trunk are contained in the second section of said bill of lading, which is as follows:

“Section 2. In issuing this bill of lading this- company agrees to transport only over its own line, and except as otherwise provided by law acts only as agent with respect to the portion of the route beyond its own line.
“No carrier shall be liable for loss, damage, or injury not occurring on its own road or its portion of the through route, nor after said property has been delivered to the next carrier, except as such- liability is or may be impbsed by law, but nothing contained in this bill of lading shall be deemed to exempt the initial carrier from any such liability so imposed.” gued as grounds for the reversal of said judgment, but the main ground relied upon and argued was that the court below erred in charging the jury- that said company having received and undertaken to transport said trunk, as stated, the burden of proof was upon it to prove by a preponderance of the evidence that the loss of said trunk did not occur on its lines to relieve it from liability for such loss, and that it exercised due care. Also that said court erred in charging the jury as to the liability of the initial shipping company.

To the foregoing answer a general denial was filed by the plaintiff. The plaintiff recovered a verdict and judgment against said company for $1,602.06.

Several errors alleged to have occurred on the trial were ar-

There appears to be little or no controversy between the parties hereto as to the facts in this case, the uncontradicted evidence showing that the defendant in error was at the time of their shipment the owner of said furs; thatathey were placed in a trunk and locked; that they were then in good condition; that said trunk was at the time stated delivered to the plaintiff in error, the Pennsylvania Company, at the city of Wooster, Ohio, for shipment to. Dresden, Germany; that the charges thereon were duly paid-; that a bill of lading was issued therefor by the agent of said company at said city of Wooster and delivered to the defendant in error, and that when said trunk was opened at Dresden said furs were missing and found to have been taken out of or stolen from said trunk in transit between the said cities of Wooster, Ohio, and Dresden, Germany, but where said furs were taken out of or stolen from said trunk is not disclosed in the evidence, although it does appear that the weight of said trunk at the city of Baltimore, Maryland, was some thirty-seven pounds less than it was when shipped from the said city of Wooster. Passing this but keeping in mind that said trunk was delivered to the plaintiff in error for shipment to the place of destination mentioned, under the conditions already 'described, and that said furs were found missing, at the place named, what duty, if any, at the time of the trial of said case devolved upon the plaintiff in error to show the degree of care exercised by it over said trunk on its lines of railroad, in view of the allegations contained in said petition and which the evidence at least tended to prove? Granting that a common carrier has the right by contract to limit its liability in the transportation of goods for hire over different routes, does this fact relieve the initial shipping company from the obligation of showing that the loss, if any, did not ocenr on the line of said company? The plaintiff in error contends that the loss, if any, is presumed to have occurred while the last or delivering shipper had the custody of said furs, and that no presumption arises that the loss occurred over the lines of the plaintiff in error.

The contract for the shipping of said goods having been made with the plaintiff in error, and the loss having occurred between'the time of their shipment and delivery to their destination, notwithstanding the exception made in said bill of Jading, we are of the opinion that the trial court did not err in charging the jury that the burden of proof was upon the plaintiff in error to show that said loss did not occur upon its lines of railroad. The fact that said furs were lost or stolen somewhere along the lines of the different carriers transporting them is presumptive evidence of negligence, and to relieve the plaintiff in error from such presumption we think it was its duty not only to show that the loss did not occur on its lines, but also to show that proper care was exercised to prevent it, and the trial court in so instructing the jury, in our judgment, did not err. This view appears to be supported by decisions in several Ohio reported cases, among which are Graham & Co. v. Davis, 4 Ohio St. 362 [62 Am. Dec. 285]; Union Express Co. v. Graham, 26 Ohio St. 596; Pennsylvania Co. v. Yoder, 25 O. C. C. 32 (1 N. S. 283).

Other cases in other jurisdictions might be cited sustaining the same doctrine. It follows that the judgment of the court of common pleas will be affirmed.

Powell and Houck, JJ., concur.


author: POLLOCK, J.

text:
    INSURANCE.
    [Portage (7th) Court of Appeals,
    May 26, 1915.]
    Pollock, Metcalf and Spence, JJ.
    National Insurance Co., of Cincinnati, v. J. R. Roberts & Sons.
    tCondition of the Policy with Reference to Lighting Held to Have Been Waived by Agent Writing Application.
    When the agent of a fire insurance company, who is authorized to make contracts of insurance, collect the premium and deliver the policy, knew at the time he made the contract, received the premium and delivered policy, that the store room in which the stock of merchandise insured was kept was lighted by gas generated on the premises, the insurer is bound, in case of a loss which was covered by the policy, notwithstanding the policy contained a condition that “this entire policy (unless otherwise provided by agreement endorsed thereon or added thereto) shall be void * * * if illuminating gas or vapor be generated in the described building (or adjacent thereto) for use thereof,” and there was no agreement endorsed thereon, permitting the generation of gas on the premises for such purposes.
    [Syllabus by the court.]
    Er(ior.

      J. L. Kohl and H. T. Loomis, for plaintiff in error.
    W. J. Becldey, contra.
   POLLOCK, J.

This is an action in error brought to reverse a judgment recovered in the court of common pleas of this county, in an action wherein the defendants in error were plaintiffs and the plaintiff in error was defendant.

In the action in the court below Roberts & Sons brought suit to recover on a policy of fire insurance issued on January 3, 1912, for one year, covering a stock of dry goods, groceries, etc., which on the 22d of February, 1912, was destroyed by fire.

They allege that- they had performed all the conditions of said policy to be performed. To this petition the insurance company filed an answer containing several different defenses, but it is only necessary now to refer to what was denominated the sixth defense. In this defense it was alleged that the policy upon which suit was brought contained a condition that:

‘1 This entire policy unless otherwise provided by agreement endorsed thereon or added thereto shall be void * * * if illuminating gas or vapor be generated in the described building (or adjacent thereto) for use thereof.”

It is further averred that Roberts & Sons maintained and operated on the premises a certain apparatus for generating illuminating gas from gasoline for use thereon, and so kept, used and allowed gasoline in said premises; that it was not otherwise provided by agreement endorsed on said policy or added thereto as provided in the conditions of this policy.

'To this answer the plaintiff below replied that at the time that said insurance was written the agent of the defendant company, who had authority in its behalf to write this insurance and deliver the policy, made examination of the premises and well knew the manner and way in which 'said premises and buildings were lighted and were to be continued to be lighted, and agreed that said provision was to be of no effect and force, and that no change was made in the condition of the premises in that regard from the time the insurance was written until the time of the fire.

The evidence on the trial of this case showed that there was no written application for this insurance made and signed by the plaintiffs below, but that the agent of defendant below who made the contract of insurance knew before and at the time he entered into the contract of insurance, that the building was lighted from a gasoline plant on the premises which generated gas or vapor; that this agent was furnished by the company with blank insurance policies executed by the proper officers of the company; that he was authorized to make contracts of insurance on behalf of the company, fill in the blank insurance policy, collect the premium and deliver the policy.

The court charged the jury that if, at the time of the issuing of this policy, the agent then knew that the building Was then and had been lighted by the use of gasoline turned into vapor— as it is now conceded it was lighted — then the company in this -case is estopped from setting up that defense, and that provision of the policy so broken would not defeat the plaintiffs in their right of recovery. Objection was made to the introduction of evidence showing the knowledge of the agent who insured the property of the manner the building was lighted, and also to the charge of the court in that regard. These objections were overruled and proper exceptions noted.

It is held with practical unanimity by the courts of the several states that — notwithstanding the provisions of the policy —an insurance company is estopped from defending on the ground that the policy is void, even if the manner in which the property was being used at the time of the insurance was prohibited by the provisions of the policy, if no application stating the condition of the property has been made and signed by the insured, but the contract of insurance has been made by the agent from his own knowledge, and he at the time he was entering into the insurance had full knowledge of the true condition of the property which he was insuring, and the agent had been furnished with blank policies of insurance by the insurance company, authorized to make contracts of insurance, collect the premium and deliver the policy. 1 Clement, Fire Insurance, p. 416, rule 12; and p. 418, rule 16; and eases cited under these rules; and 2 Clement, Fire Insurance, p. 106, rule 40; and p. 350, rule 33, and cases cited under these rules; 1 Joyce, Insurance, See. 282; Peoples Fire Ins. Assn. v. Goyne, 79 Ark. 315 [96 S. W. 365; 16 L. R. A. (N. S.) 1180; 9 Ann. Cas. 373], and notes; Western National Ins. Co. v. Marsh, 34 Okla. 414 [125 Pacific, 1094]; Hartley v. Insurance Co. 91 Minn. 382 [98 N. W. 198; 103 Am. St. Rep. 512]; Bennett v. Insurance Co. 81 N. Y. 373; Farmers Ins. Co. v. Nixon, 2 Col. App. 265 [30 Pac. 42].

It is true, that the reasons given by the several courts for their decisions are not uniform. In some eases it is based on the ground of a waiver by the agent of this condition of the policy, and by others upon the ground that the company is estopped by the action of its agent from denying that the policy was void from its inception. But whatever the reason given, the .principle underlying all the eases rests upon the legal principle, that the facts known to the agent at the time he entered into the contract, within his apparent authority are the knowledge of the company; and that a fraud would be perpetrated if the insurer were permitted, after a loss had been incurred, to escape a liability on grounds which it knew, under the terms of the policy, rendered it void at this inception. When the agent knew, at the time he was entering into the contract, that the store room containing the property insured was lighted in such a manner that, according to the conditions of the policy, the insurance was void, he was free to either refuse the insurance on the property or accept .the risk in the condition that he knew the property to be in.. He did the latter, and the company, after the loss, should not be permitted to deny that its policy had taken effect.

Roberts, the agent of the insurer, authorized to make contracts of insurance in its behalf, knew that the policy which he delivered as evidence of the contract was void and that the insured, by the terms of that policy had received no consideration for the premium paid and was deceived in the belief that his property was insured when it was not. To prevent the perpetration of such a fraud the courts have very generally held that the insurrer can not, after loss of the property covered by the contract of insurance, escape liability by taking advantage of conditions that it knew, through its agent, at the time it entered into the contract, rendered the policy yoid.

But it is urged that the Supreme Court of this state has held otherwise in the case of Ohio-Farmers’ Ins. Co. v. Titus, 82 Ohio St. 161 (92 N. E. 161). In that case the policy contained a provision in regard to incumbrance that rendered it void, similar to the provision in the policy in this action, which we are considering. The facts as stated by the court, so far as this condition of the policy is concerned, are as follows: the original policy was for $600, and there was an additional insurance added to this policy of $200. At the time of the original insurance the property was incumbered with a mortgage of $2,500 which was noted in the policy. After the insurance this mortgage was released and a mortgage for $4,000 placed on the property. The insurance company, as a defense in that ease, alleged that subsequent to the issuing of that policy and prior to any loss the insured, without any agreement therefor being endorsed on or added to the policy of insurance, violated the terms and conditions of the policy, and that, at the time of the loss by fire, the policy was wholly void. No place in the statement of fact or in the opinion is there any intimation that any insurance was placed on this property after it was mortgaged for $4,000, or that the agents had any knowledge of .the increase of in-cumbrance at the time they made the additional insurance, except in a request to charge which states that the $200 additional insurance was added to the $600 policy after the agents who added the additional insurance had knowledge of the subsequent mortgage. The court, neither in the syllabus. of the ease nor the opinion refers to the fact that the agent who'entered into the contract of insurance had knowledge at the time the insurance was entered into of this additional incumbrance. All they say in regard to, the knowledge of the agent in the syllabus is, “simply because its agent had notice or knowledge of the existence of a mortgage incumbrance and received premiums. ’ ’

We think that, if the Supreme Court of this state had intended to announce a principle that is contrary to what seems to us to be -the great weight of authorities, they would have said so in terms that could not be mistaken. We do not overlook the fact that in the opinion in that case the Supreme Court cites'the ease of Northern Assurance Co. v. Building Assn. 183 U. S. 308 [46 L. Ed. 213], This case sustained the principle contended for by the insurance company. This case was ■ decided by 'a divided court, and the courts of last resort in a number of the states have, after referring to this case, refused to follow it. notwithstanding the great weight that is usually given to a decision of that court.

We feel that the principle announced by the great majority of the courts should control in this case; that the delivery by the agent of the insurer of the policy in suit, with knowledge that the building in which the property insured was kept, was lighted with gas generated on the premises, estops the insurance company from denying liability on that ground in regard to his property which, under the terms of policy, would render the: insurance void.

The judgment is affirmed.

Metcalfe and Spence, JJ., concur.


author: FARR, J.

text:
    GUARDIAN AND WARD.
    [Mahoning (7th) Court of Appeals,
    March 14, 1917.]
    Thomas Payne v. Frank Rech, Guardian.
    No Right of Action Against Guardian of Minor in Representativo Capacity.
    Where the guardian of a minor contracts with a third person for services to be rendered in behalf of such ward or his estate, and such services are rendered, such third person cannot maintain an action at law to recover for such services, against the guardian in his representative capacity.
    [Syllabus by the court.]
    Error.

      Fred J. Heim, and H. C. Simpson, for plaintiff in error.

      J. H. G. Lyon and S. B. Mitchell, for defendant in error.
   FARR, J.

Thomas Payne, the plaintiff in error, brought an’ action in the municipal court of the city of Youngstown to recover from the defendant in error, Frank Reeh, as guardian of his minor' son, Leo Rech, for services claimed to have been rendered by-said Payne by agreement with said guardian, in connection with a suit for damages brought by the next friend of said minor for some personal injury claimed to have been sustained by sa.idl minor in an accident on one of the numerous railroads, of said city of Youngstown. The petition in the court below alleges that said Payne, by agreement with said guardian, assisted in the prosecution of said claim for damages in the way of making investigations, securing witnesses and otherwise aiding in the successful conclusion of the litigation incident thereto. Said cause was duly heard in the municipal court, from the judgment of which an appeal was taken to the court of common pleas of Mahoning county where a trial to a jury resulted in a verdict for plaintiff. A motion for a new trial was made and sustained; application made and leave given to withdraw tbe answer, which was a general denial; a demurrer was then filed to the petition which was later sustained and the plaintiff not desiring to plead further, error is prosecuted in this court; the parties sustaining the same relation here as in the court below.

It will be observed that the issue raised here is whether a third person contracting with a guardian of a minor, whereby services are rendered by such third person in behalf of the estate of such ward can maintain an action against such guardian in his trust capacity, or whether suit can be maintained only against the guardian personally. 1

In 2 Roekel Ohio Probate Practice, See. 1402, under the head, “Employment of Attorneys, Agents,” etc., the author observes in part as follows:

‘ ‘ The guardian likewise has a right to employ agents where-ever necessary, but allowance for these matters rests largely if not entirely in the discretion of the probate court.”

Woemer American Law of Guardianship, p. 185, pertinently observes in part as follows:

“As a-general proposition, guardians can not by their contracts bind either the person or estate of their wards. Such contracts bind the guardians personally, and recovery thereon must be had in an action against them, not against the ward. Rollins v. Marsh, 128 Mass. 116, 118; Adams v. Jones, 8 Mo. App. 602; Dalton v. Jones, 51 Miss. 585; Elson v. Spraker, 100 Ind. 374.”

And to the same effect said author states the rule at pages 164, 272, 281 and 470, and at page 192 he observes:

“Actions on such contracts must be brought against the guardians personally, not against their wards. Forster v. Fuller, 6 Mass. 58 [4 Am. Dec. 87]; Stevenson v. Bruce, 10 Ind. 397; Tobin v. Addison, 2 Strobh. L. 3 (S. C.); Hunt v. Maldonado, 89 Cal. 636 [27 Pac. 56].”

Likewise it is stated in 21 Cye. p. 193 as follows:

“Actions by Third Persons Against Guardian or Ward-— Actions Against Guardian- — -According to the weight of authority a suit against a guardian on a contract touching his ward’s estate is personal against him and he can not be sued on such contract in his representative capacity so as to make the estate of the ward liable to be taken on execution.”

And again at page 115, it is likewise stated that a guardian can not by his contract bind either the person or estate of his ward, even for the benefit of the ward, whether for support and maintenance or in the management of his estate, and that the guardian is personally and solely liable, and the text is supr ported by a large number of cases from more than a score of states. The foregoing text is supported by 15 Enc. of L. (2d Ed.), p. 77. The Indiana law relating to guardianships is very similar to that of Ohio and the above cited case of Elson v. Spraker, 100 Ind. 374, is in full accord with the foregoing and cites the earlier cases of Lewis v. Edwards, 44 Ind. 333; Stevenson v. Bruce, 10 Ind. 397; Clark v. Casler, 1 Ind. 244. To Massachusetts does Ohio owe her greatest debt for probate law and procedure, and the above case of Rollins v. Marsh, 128 Mass. 116, is well in point in principle with the case at bar. In above ease it is held that:

“A contract by a guardian for the support and care of his •ward binds the guardian personally and not his ward.”

The foregoing is supported in principle by 1 Elliott, Contracts, Sees. 522 to 526 inclusive. The case of Hurd v. Railway, 6 Dec. 545 (4 N. P. 404), is in point with the case at bar and in which it was held that an action could not be maintained for attorney fees against the administrator of an estate or the guardian of minor wards heirs at law of such estate for legal .services rendered in behalf of such estate. The above case was affirmed in Connell v. Brumback, 10 Circ. Dec. 149 (18 R. 502), first section of the syllabus as follows:

‘ ‘ There is no cause of action that can be maintained against either of these representative parties, either the administratrix or the guardian, in their representative capacities. ’ ’

It is well settled in this jurisdiction that a suit can not be maintained against an executor or an administrator for services rendered by an attorney in behalf of such estate. Thomas v. Moore, 52 Ohio St. 201, 205 [39 N. E. 803]; 1 Rockel Probate Prac. See. 507; McBride v. Brucker, 3 Circ. Dec. 7 (5 R. 12); Mellen v. West, 3 Circ. Dec. 46 (5 R. 89); West v. Deam, 8 Circ. Dec. 797 (15 R. 261); Lucht v. Behrens, 28 Ohio St. 231; McAlpin, In re, 8 Dec. 654, 656 (38 Bull. 231).

It is urged in argument, however, that such action may be maintained under favor of par. 5 of See. 10933 G. C., which reads as follows:

11 To pay all just debts due from such ward out of the estate in his hands, and collect all debts due to the ward; in ease of doubtful debts, to compound them to appear for and defend, or cause to be defended, all suits against his ward. ’ ’

How less could a guardian’s duties be defined and still permit him to serve in a trust capacity for a minor, so frequently incapable of representing or understanding his own interests? The very nature of the relation betwen guardian and ward suggests the impropriety of permitting the guardian by contract to bind the ward’s estate in such manner as to render it liable to execution. The above section is not susceptible of such interpretation as to permit the maintenance of a suit against a guardian in his representative capacity.

The cases of Kingsbury v. Powers, 131 Ill. 182 [22 N. E. 479]; Bemiss v. Bemiss, 110 U. S. 42 [28 L. Ed. 64]; Hynes, In re, 105 N. Y. 500 [12 N. E. 60]; Fillmore v. Wells, 10 Colo. 228 [15 Pac. 343; 3 Am. St. Rep. 567]; Smith v. Bean, 8 N. H. 15, are cited by plaintiff in error as sustaining his right to recover from the guardian in his representative capacity but a careful examination of said cases discloses that they pass only upon the right of a guardian to employ counsel or incur other expenses in the interest of a ward’s estate and that such services are a proper credit against such estate, and in one instance, a.t least, that a court of equity would so decree. Said cases are correct in principle, but not in point with the case at bar. The reason for the rule that an action at law can not be maintained against a guardian as such is obvious; there can be no contractual relation between a minor and another person; he can not bind his estate nor can it be directly obligated except through the medium of the probate court, created for the express purpose of safe-guarding all such interests. To hold otherwise would be to destroy in part, at least, the rather delicate fabric of probate jurisprudence. Persons contracting with guardians if not aware of their representative capacity, have the right of action against such guardian personally, and are no worse off when the truth is discovered. If fully advised, they must assume the risk which they voluntarily incur. The law of Ohio does not provide for the filing of a claim against the estate of a ward, but it was held in the case of Turner v. Flagg, 61 Ind. App. 563 [33 N. E. 1104], that where a person lias a legal and equitable claim against the estate of an infant ward, he may present his claim against the guardian in the probate court and secure an. order for the payment of such amount as the court may deem proper. It was likewise held in Appeal of Price, 116 Pa. 410 [9 Atl. 856]. It is certain, however, that he may maintain an action against the gúardian personally, or act through the medium of the guardian’s account in the probate court.

There is no error in the holding of the court below, and it is therefore affirmed.

Pollock and Metcalfe, JJ., concur.