text:
    DE FACTO MAGISTRATE“UNDER COLOR. OF OFFICE.
    Court of Appeals for Harrison County.
    Wilber E. Simpson v. George Patton and James Carter.
    Decided, November 26, 1913.

      Justice of the Peace—Validity of Judgment Rendered by De Facto Justice—Constitutionality of Act Not Assailable in Suit to Enjoin Enforcement of Judgment.

    At the November election, 1907, one H was duly elected a justice of the ■ peace for a term of four years commencing January 1st, 1908, and ending January 1st, 1912. On February 3d, 1910, H resigned as such justice of the peace and pursuant to the provisions of Section 1714 of the General Code, the trustees of the township appointed one C justice of the peace to fill the vacancy, until the successor should be elected and qualified, and the Governor issued a commission to C authorizing and empowering him to make, execute and discharge all and singular the duties appertaining to such office until his successor was elected and qualified.
    At the November election, 1911, a successor was elected, who did not qualify, and C continued to act as such justice of the peace after the expiration of the term of H whom he succeeded, until Auril 1912, when he rendered the judgment complained of in this case.

      Held: First, that in rendering the judgment complained of, C. was a “de facto" justice of the peace under color of office. Second, that the constitutionality of Section 1714 can not be questioned in an action to enjoin the enforcement of such judgment.

      B. W. Rowland, for plaintiff.

      D..A. Hoilingsworlh, contra.
    Norris J.; Metcalfe, J., and Pollock, J., concur.
   This case is in this court by appeal. It was once decided and application made for a rehearing. The plaintiff in his petition seeks to enjoin the collection of a judgment recovered before a justice of the peace. He alleges in substanc, in his second cause of action, that in the year 1907, one Samuel J. Hughes, was elected justice of the peace for Athens township, this county, for a term commencing the 1st of January, 1908, and extending for a period of four years, which would be to January 1st, 1912; that on February 3d, 1910, Hughes resigned as such justice of the peace, and the trustees' of the township appointed James Carter, defendant, as such justice, to fill the unexpired term of Mr. Hughes, who had resigned, and that thereafter the Governor of the state commissioned Carter as such justice, under the law, for the unexpired term, until his successor should be elected and qualified, as stated in the petition.

Now, at the November election, 1911, a successor was elected for the term commencing in January, 1912, but that suecessoi did not qualify as such justice, and Carter continued to act as justice until the following April, and the suit in question was brought before him and tried during that month. Ho heard the case and rendered the judgment complained of, which would be some months after the expiration of the term of Hughes, whom Carter was appointed to succeed, and to fill his unexpired term.

Now, it is claimed on the part of the plaintiff that the act of Carter in rendering such judgment was entirely void, and it raises the question as to whether or not he had a right to act as such justice, or if he had not, whether his acts were that of a de facto officer acting under color of office so that the judgment would, be binding upon the parties. Section 1714 of the General Code, providing for appointment, reads as follows:

“If a vacancy occur in the office of justice of the peace by death, removal, absence for six months, resignation, refusal to serve, or otherwise, the trustees within ten days from receiving notice thereof, by a majority vote, shall appoint a qualified resident of the township to fill such vacancy, who shall serve until the next regular election for justice of the peace and until his successor is elected and qualified. The trustees shall notify the clerk of the courts of such vacancy and the date when it occurred.”

In pursuance of that section the trustees appointed James Carter for a justice of the peace, and the governor of the state on the fourth day of June issued a commission containing the following:

“Know ye, That whereas James Carter, of Harrison county, has been duly appointed to the office of justice of the peace, in and for Athens township, until his successor is elected and qualified.
“Therefore, By virtue of the authority invested in the Governor by the Constitution, and in pursuance of the provision of the statutes, I do hereby commission him, the said James Carter, to be justice of the peace, as aforesaid, authorizing and empowering him to execute and discharge, all and singular, the duties appertaining to said office, and enjoy all the privileges and immunities thereof. ’ ’

Now, by the statute, and by the commission of the Governor, clearly James Carter had the right to continue to act as justice of the peace until his successor was elected and qualified, and it is conceded that no successor had been elected and qualified at the time he rendered the judgment in question.

But it is said that that statute authorizing such appointment is in conflict with the provision of the Constitution of the state which limits the office of justice of the peace to four years, and that the term of Hughes, whom Carter was appointed to succeed, expired on the first day of January 1912, at the end of the term of four years; and it is, therefore, urged that this act is in conflict with the Constitution and that the question of the constitutionality of the act can be raised in this ease, and that is the question before this court—whether we may pass upon the constitutionality of this act when the judgment is collaterally attacked.

Ex parte Strang, 21 O. S., 610, bears upon the question (propositions 1 and 2 of the syllabus):

“The acts of an officer de facto, when questioned collaterally, are as binding as those of an officer de jure.
“To constitute an office de facto of a legally existing office it is not necessary that he should derive his appointment from one competent to invest him with a good title to the office. It is sufficient if he derives his. appointment from one having colorable authority to appoint; and an act of the General Assembly, though not warranted by the Constitution, will give such authority.”

And this case had to do with the police judge in the city of Cincinnati, and in the opinion, after discussing the question, Judge "White says:

“The direct question in this case, is, whether the reputed or colorable authority required to constitute an officer, de facto can be derived from an unconstitutional statute.
“The claim that it can not, seems to be based on the idea that such authority can only emanate from- a person or body legally competent to invest the officer with a good title to the office. "We do not understand the principle to be so limited. "We find no authorities maintaining such limitation while we find a number holding to the contrary. Fowler v. Bebee et al, 9 Mass., 231; Commonwealth v. Fowler, 10 Mass., 290.
‘ ‘ The true doctrine seems to be that it is sufficient if the officer holds the office, under some power having color of authority to appoint; and that a statute, though it should be found repugnant to the Constitution, will give such-color.”

To the same effect is the ease of State of Ohio v. Gardner, 54 O. S., 24:

Syllabus. “In a prosecution for offering a bribe to an officer who is acting as such under a statute providing for the government of a municipal corporation, the defendant can not question the constitutionality of such statute.”

There are two opinions in this ease, and reading somewhat from the opinion of Judge Spear, and from the authorities cited, we find quoted from McKinn v. Sommers, 1 Pa., 297, this language :

“If a person usurp an authority to which he has no title, or color of title, his acts would be simply void, but a colorable title to an office can be examined only in a mode in which the officer is a party, and before the proper tribunal.”

That was a case in which the officer was not a party and where his right to the office was involved, and to the same effect:

“The People ex rel v. Weber, 24 Ill., 184: ‘Though a judge elected under a law not authorized by the Constitution, shall be ousted because he is not an officer de jure, yet his acts colore officii will be valid.”

And, quoting from The People, ex rel, v. Weber, 86 Ill., 283:

“The title of a de facto officer can not be inquired into in a collateral way between third parties, but it may be enquired into where he is suing in his own right as an officer.”

To the same effect is Leach v. The People, ex rel, 322 Ill., 420. Again quoting from the opinion;

“Brown, Treas., v. O’Connell, 36 Conn., 432, was an action of debt on a recognizance given in the police court of Hartford.
‘ ‘ The Constitution provided that all judicial officers should be appointed by the General Assembly. That body, by a statute, undertook to authorize the appointment of a judge of the police court by common council. The Supreme Court held that the appointment was void, but that the appointee ‘was a judge de facto’ and that a' recognizance entered into before him in the police court for the appearance of a prisoner was valid and binding.”

Then quoting from the work of Van Vleet on Collateral Attach, page 33, we find the following:

“If it is necessary in order to guard the rights of the public, to hold the acts of an actual although unlawful incumbent of a judicial office valid, as being done by an officer de facto, then a fortiori is necessary to hold an actual judicial tribunal, erected under the forms of law, sustained by the power of the state, and settling rights and titles, a tribunal de facto.”

Then again:

“The de facto character of the officer is not impaired-because he was appointed by virtue of a void statute. Thus, a judge appointed by the governor, or a city council, or transferred to another district; or a probate clerk, or district attorney, appointed by authority of an unconstitutional statute; and county officers elected in a new county before the law organizing it could take effect, are all officers de facto.”

Now, how stands this case, By the statute of the state, duly passed, the trustees were clothed with authority to appoint a justice of the- peace to succeed Hughes, resigned, for the unexpired term, and until his successor was elected and qualified. In pursuance of such appointment and the Governor’s commission Carter continued to act as justice of the peace, affecting the rights of litigants brought before him. He had the color of the' statute and the commission of the chief executive of the state for his authority to act as such justice.

_ Now, it seems to us that he was acting under color of office and was a de facto justice of the peace at the time he rendered this judgment. We are not unmindful of the decision in the case of Bushnell v. Koon, 13 C. Dec., and 8 C. C. Rep., holding that acts of a justice of the peace after his term had expired was absolutely void. ' But we think that is clearly distinguishable from this ease; he had absolutely no color of office; he was not appointed for such a period; he was commissioned for a period of four years, and his term expiring at a certain date, and after that date he assumed to continue to act as such justice of the peace. We think this ease is not like that.

It follows that a decree will be entered in this case finding that the act of the justice was the act of a de facto magistrate, and the judgment will be sustained and the case dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    PROSECUTION FOR SALE OF INTOXICATING LIQUOR TO A MINOR.
    Circuit Court of Summit County.
    Albert Lowther v. State of Ohio.
    Decided, 1907.

      Criminal Law—Qualification of Juror—Prejudice Against Liquor Business—Knowledge of Minority from Appearance of Prosecuting Witness—Proof of Identity.

    1. In a trial for knowingly selling intoxicating liquor to a minor, the fact that a proposed juror admits that he has a prejudice against the business of selling intoxicating liquors, does not sustain a challenge for cause.
    2. The claim that the evidence fails to show that the accused knew of the prosecuting witness’ minority, is met by the fact that the jury saw said witness.
    3. Though no one of the witnesses in a criminal case identifies the accused beyond a reasonable doubt, the collective effect of all their testimony may be sufficient to dissipate any doubt upon that subject.
    Henry, J.; Winch, J., and Martin, J., concur.
   Plaintiff in error was convicted of knowingly selling intoxicating liquor to a minor, in violation of Section 4364-21, Revised Statutes.

Of the claims of error urged here, only three are saved upon the record:

1. Exception was taken to the refusal of the trial court to sustain the challenge for cause against juror Walker, upon the ground of his prejudice against the business of selling intoxicating liquors. That is not a ground of challenge under Sections 5177 or 7278, Revised Statutes; and it appearing that this juror was otherwise qualified, we think the court was justified in overruling the challenge.

2. The claim that there was qo proof of the plaintiff in error’s knowledge of the prosecuting witness’ minority is met by the fact that the jury saw him; and we can not .now say from the record before tis, that the inference of plaintiff in error’s knowledge of his minority,, implied in their verdiet, is unwarranted.

3. The identity of the accused, it is claimed, was not established beyond a reasonable doubt, since none of the witnesses who testified on that subject identified him with that degree of certainty. The collective effect of their testimony may, however, have sufficiently satisfied the jury so as.to dissipate any doubt upbn that point. Commonwealth v. Cunningham, 104 Mass., 545; People v. Stanley, 59 N. W., 498; State v. Franke, 159 Mo., 560.

The judgment is affirmed.


text:
    EFFECT OF FAILURE OF TAX-PAYER TO REQUEST THAT ACTION BE BROUGHT.
    Circuit Court of Columbiana County.
    W. L. Sharp et al v. Village of Cadiz, Ohio, et al.
    Decided, 1907.

      Tax-Payer's Action Against Village—No Village Solicitor.

    An action can not be maintained by a tax-payer against a village, under favor of Section 1536-668, Revised Statutes, where the petition fails to show a request upon the village solicitor or any other official to bring the action and his refusal or neglect so to do, even though the village has no solicitor.
    Henry, J.; Taggart, J., concurs.
   It is so perfectly manifest from the face of the petition which is filed here from the notice which was served upon the mayor and addressed to the mayor and solicitor of this municipal corporation that the notice in question referred to a proposed action by the village of another and different sort from that here sought to be enjoined as indicated by the prayer of the petition, that it becomes necessary to determine whether, under the circumstances of this case, any notice to or request of the village solicitor is prerequisite to the maintenance of an action of this character.

Ordinarily it may be said unhesitatingly that, under the statute, such request must be made and refused, or at least unacted on, before such an action as this can be maintained under Section 1778, Revised Statutes, now 1536-668. This section provides :

“In case he shall fail,” that is, the village solicitor, “upon the request of any tax-payer of the corporation to make application provided for in the preceding section, it shall be lawful for such tax-payer to institute suit for such purpose in his own name, on behalf of the corporation; provided, that no such suit or proceeding shall 'be entertained by any court until such request shall have first been made in writing; and further, provided that no such suit or proceeding shall be entertained by any court until such tax-paver shall upon motion of the solicitor or corporation counsel have given security for the costs of the proceeding. ’ ’

'Now, it is said here, that inasmuch as there was no village solicitor, as is alleged in the petition, at the time this action was brought, no such request was possible, and therefore, no such request was necessary.

The Supreme Court has seemingly expressed itself upon this subject in the case of Brundage v. Village of Ashley et al, 62 O. S., 526. The syllabus of that case is:

“In an action brought by a tax-payer under Sections 1777, 1778 and 1779, Revised Statutes, where a village has no solicitor, the plaintiff is not entitled to have included in the costs allowed to him, compensation to his attorney.”

The opinion in the case is per curiam, and therefore is entitled to the same weight as the syllabus.

This'-language is used by the court:

“If there is a solicitor and no such request is made upon him, there can be no compensation for the attorney included in the costs allowed to plaintiff, and if there is no solicitor the same result must follow, because it is the request and refusal that warrants the allowance of such fees.
“The fact that there is no such solicitor does not have the legal effect to make it unnecessary to first make such request.”

Now, there is nothing in this per curiam which seems to modify the force and effect of that last statement. Whether a request made upon some other officer than the city solicitor if there he no such officer as city solicitor, would be a sufficient basis for this action, or an action of this sort or whether, upon failure of the municipal corporation to have any such officer, the statutory action provided for in these sections can not be brought at all, is another question, which it is not necessary for us to decide. Suffice it to say that no attempt was made to serve any sort of notice upon any officer of the municipal corporation in respect to the cause of action which is asserted in this petition, and inasmuch as the Supreme Court has said clearly that the service of such notice is prerequisite to the beginning of and maintenance of any such action, we fail to see how there is any proper action before us.

The petition will therefore be dismissed.


text:
    PROCEDURE FOR ENFORCEMENT OF STATUTORY LIABILITY OF TRUSTEES.
    Circuit Court of Summit County.
    The Akron Printing & Paper Company v. Superior Council Chevaliers.
    Decided, 1907.

      Action to Subject Liability of Trustees of Corporation Not for Profit— Procedure.

    An action to subject the statutory liability of trustees of a corporation not for profit, stands on the same footing as a stockholder’s liability suit, and is governed as to matters of procedure by Section 3261, et sec/.. Revised Statutes.
    Henry, J.; Winci-i, J., and Marvin, J., concur.
   The parties here stand as they stood below and the error assigned is upon the sustaining of a demurrer to the petition. Upon careful consideration we think the action to subject the statutory liability of trustees of a corporation not for profit, is placed by statute on the same footing as a stockholders’ liability suit, and that it is governed as to matters of procedure by Section 3261 el seq. (92 O. L., 361). There are some anomalies in this practice as to joinder of causes of action and parties, but the statute must of course prevail. The demurrer should therefore have been overruled if this petition conforms to the practice thus defined, and if it presents no other defect. AYe think it does conform to the statute, but we have had grave doubt whether it is otherwise impervious to demurrer.

It counts upon an account stated and a subsequent open account without, however, reciting the items of the account, or making the exhibit containing it a part of the petition. It then connects the defendant trustees therewith by averring that when the “items” of said indebtedness “accrued” the individual defendants were trustees of the corporation. If this means items of the account there is no account pleaded and the petition is bad. If the account stated can be called an item of the indebtedness that objection is cured. If the word “accrued” means incurred, or became a pari of the claim .asserted, instead of matured, as is ordinarily its signification, that difficulty is likewise removed. It is perhaps a strained construction that will save the petition but we construe the petition liberally and hold that it states a cause of action prima facie.

The judgment' will therefore ibe reversed and the cause remanded.


text:
    CITY HELD LIABLE FOR. MEDICAL SERVICES.
    Circuit Court of Summit County.
    The Village of Barberton v. Frederick Lohmers.
    Decided, 1907.

      Municipal Corporation—Liability for Medical Services Rendered Quarantined Small-Pox Patient,

    Under favor of Section 1536-741, Revised Statutes, a physician who renders medical service to a quarantined small-pox patient, who is unable to pay therefor, is entitled to recover compensation from the municipal corporation which was promptly apprised of the situation, but took no action with reference thereto.

      ITenry, J.; Winch, J., and Marvin, J., concur.
   This was an action to recover compensation for medical services to quarantined small-pox patients alleged to be unable to pay therefor themselves, within the meaning of Section 2128, Revised Statutes, now Section 1536-741. Plaintiff in error’s board of health was promptly apprised of the situation but failed to take any action. The main question here presented is whether .a cause of action arises under these circumstances against a municipal corporation by virtue of the provisions of this statute. Does the statute, of its own force, impose a legal obligation underlying the prescribed duties of boards of health in such cases, or is the affirmative action of the board of health a condition precedent to the bringing of an action of this kind? Such appears to be the test applied in construing a somewhat similar statute in Trustees, etc., v. Ogden, 6 Ohio, 23, in which it was held that:

“Overseers of the poor of the proper township are bound to support a casual pauper, if found within the limits of the township, and requiring support.”

And that:

“AVhere, after notice the overseers of the poor refuse to provide for a pauper, an individual furnishing a necessary supply, may recover the amount in an action against the township.”

In that case the underlying legal obligation of the township rested on a meager footing of express statutory provision, reinforced, however, by the inherent urgency of the cases provided for. We can not distinguish the view there taken from the one arising here, and we therefore hold that this action is maintainable. See also Seagraves v. City of Alton, 13 Ill., 366, and cases cited.

It is said, however, that the trial court erred in charging the jury that the words “able to pay” found in the statute are to be construed in the light of the exemption laws of this state. But an examination of the evidence on this subject discloses that the jury must inevitably have found each of the patients unable to pay the physician’s fees, and we need not, therefore, determine whether the court’s charge was too liberal on that point.

We find no error in the record and the judgment is affirmed.


text:
    ERRONEOUS CONVICTION OF FALSE SWEARING.
    Circuit Court of Summit County.
    Georgietta Brown v. State of Ohio.

    Decided, April 20, 1907.

      Perjury—Bastardy Case Begun by Married Woman—No Jurisdiction.

    One can not be convicted of perjury for false swearing in a bastardy case before a justice of the peace, where the affidayit upon which the justice’s jurisdiction depends shows that the complainant is a married woman.
    Henry, J.; Winch, J., and Gieeen, J., concur.

       Affirmed without opinion, State v. Brown, 77 Ohio State, 636.

   Plaintiff in error was convicted of perjury for having borne false witness in a bastardy proceeding before a justice of the peace. The affidavit on which the justice’s jurisdiction was founded alleged that 'the complainant was ,<!an unmarried woman in the sense that she has not lived with her husband for Jive years last past, nor have she and her husband Brown been together in a sense for five years past.”

It is urged here, as it was below, that this allegation implies that the complainant was not an unmarried woman; that the justice therefore acquired no jurisdiction in the bastardy proceeding, and that plaintiff in error’s false testimony as a witness in the proceeding was not perjury. And the prosecuting attorney very justly admits in his brief that “if the complaint on its face gave the justice no jurisdiction, then whatever the testimony might have been at the hearing, no perjury could have been committed.’-’

Under Revised Statutes of Ohio, Section 5614, proceedings in bastardy can not be maintained an complaint of the mother, when the child in question was born and begotten during lawful wedlock (Haworth v. Gill, 30 O. S., 627). And regularly the affidavit should allege that the complainant is an unmarried woman (Edwards v. Knight, 8 Ohio, 375). A judgment against the clefendant in such a proceeding has, however, been sustained by the Supreme Court of Ohio, where this allegation was omitted (Harrell v. State, ex rel, 23 Bull., 149). And various other irregularities in bastardy cases have been held not to be fatal, upon the ground that such proceedings being civil rather than criminal, and their object beneficial and not punitive, the statute and proceedings thereunder should be construed indulgently. Roth v. Jacobs, 21 O. S., 646; Hoff v. Fisher, 26 O. S., 7; Miller v. Anderson, 43 O. S., 473; Miller v. Busick, 56 O. S., 437; Cline v. Law, 62 O. S., 649, affirming without report Law v. Albert, 16 C. C., 159.

This, however, is the rule only where jurisdiction has once attached either originally or by relation. Justices of the peace have but limited jurisdiction, which is not presumed but must affirmatively appear, and can arise only on compliance with the conditions by law prescribed. And a warrant issued and proceedings had, in any case before a justice, upon an affidavit which, if all.true, alleges no offense, are without jurisdiction, unless, indeed, the defect is capable of being supplied by amendment, in such manner as to relate back and cure such want of jurisdiction (Truesdell v. Combs, 33 O. S., 186). There is no claim in this case that the facts disclosed in the trial of the bastardy proceeding would warrant any curative amendment of the affidavit, unless upon inspection of the affidavit alone the words used therein to qualify the allegation that the complainant was an unmarried woman, may be rejected as surplusage and as not necessarily irreconcilable with the allegation itself. It is urged that complainant’s husband may well have been dead, or divorced, or long since disappeared and unheard from, or that their marriage was void, or putative merely. These suggestions are ingenious, but not convincing. The affidavit clearly implies that the complainant was not unmarried, in any proper sense of that term, but that, on the contrary, she had a husband, with whom, however, she had not lived for five years. A fact is thus affirmatively disclosed, in the v'ery instrument on which alone the justice’s jurisdiction could be founded, which prevented such jurisdiction from attaching. It follows, therefore, that all the subsequent proceedings in that case were void. There was no warrant of authority in law forswearing any witness or taking any testimony. The plaintiff in error’s oath and false testimony thereunder were without any lawful sanction or significance whatever, and perjury can not be assigned thereon. Hamm v. Wicklinc, 26 O. S., 85.

Upon the facts disclosed by the bill of exceptions the conviction was unwarranted by the evidence and is contrary to law. The judgment below is reversed and the cause remanded.


text:
    ORDINANCE FOR REGULATION OF SALE OF INTOXICATING LIQUOR. HELD DEFECTIVE.
    Circuit Court of Summit County.
    City of Akron v. William G. Seitz.
    Decided, April 17, 1908.

      Municipal Corporation—Invalid Liquor Ordinance.

    Under Section 1536-100, Revised Statutes, Subdivision 5, a municipal corporation has no authority to enact an ordinance to regulate the sale of intoxicating liquors, which does not contain the “regular druggist” exception found in Section 4364-20c, Revised Statutes.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The defendant in error was convicted before the mayor of Akron of allowing to remain open on Sunday a place where intoxicating liquors were sold on other days of the week, the same being in violation of an ordinance of said city. The common pleas court afterwards modified the sentence imposed by the mayor by eliminating the imprisonment feature to conform with the limitation of punishment for first offenses as provided in the statute defining and penalizing the like offense in the state at large.

From this judgment the city has filed a petition in error and the defendant in error a cross-petition. The latter’s claims are (1) that there is no evidence that liquors were sold in the place in question on other days of the'week; (2) that the information does not allege any ownership, occupancy or control by defendant of the place by him allowed to remain open, and (3) that the ordinance is .invalid because it does not fully set forth the “regular druggist” exception of Section 4364-20c, Revised Statutes, without which exceptions, no municipal ordinance on the subject can be lawfully enacted because of the express limitation upon the power conferred by the General Assembly on municipal corporations to enact such ordinances as laid down in Section 1536-100, Revised Statutes, subdivision 5, and in Section 4364-20.

Considering the last point first, we hold it to be well taken, on the authority of Canton v. Nist, 9 Ohio St., 439, in which it was held that a general Sunday observance ordinance was invalid because it-failed to make the exception of works of charity, necessity, etc., as required by statute. The Legislature might have granted to municipal corporations the power to pass ordinances on this subject without any such exception of regular druggists as is contained in the state statute penalizing the Sunday opening of places where intoxicating liquors are sold on other days of the week. And it might have done this even though it still retained such exception in the state law. No inconsistency between an ordinance omitting such exception and the statute retaining it would in that case arise. This distinction is clearly pointed out in City of Piqua v. Zimmerlin, 35 O. S., 507, 509. The trouble here is that the ordinance overlaps the grant of power to municipalities to legislate on this subject. Such municipal legislation must contain the full “'regular druggist” exception in order not to exceed the authority conferred by the General Assembly to enact the same.

It must not be inferred from this opinion that Sunday closing is not required of saloons in Akron for want of a valid ordinance to that effect. The state law on the subject is in full force and applies to Akron as much as to any other part of the state.

Our conclusion on this point renders discussion of the other questions unnecessary, but we remark in passing, that the information should have alleged defendant’s ownership or control of the premises which he has been charged with having allowed tq remain open on Sunday. It does not help the matter that the information followed the phraseology of the ordinance in this behalf. Whether this would amount to a fatal defect in the ordinance were it otherwise valid need not now be considered; but it is surely true that no one can be lawfully convicted of allowing a place to remain open unless it be averred and proved that he was in some way in control of it.-

In this case, also, the only proof that intoxicating liquors were sold in the place in question on other days of the week, is found in the characterization of the premises as a saloon; but as the word has been judicially defined in Iowa, where a man was convicted of keeping opefi a saloon after II o’clock at night, though only soft drinks, so-called, were sold there, the evidence here is not sufficient to prove that defendant’s saloon was a place where intoxicating liquors were sold (City of Clinton v. Grusendorf, 45 N. W., 407). Many other cases to the same effect might also be cited.

The judgments of both courts-below are reversed for the errors thus indicated; and because of the invalidity of the ordinance under which the defendant stands accused, he is discharged.


text:
    EXCLUSION FROM SKATING RINK ON THE GROUND OF COLOR..
    Circuit Court of Summit County.
    Thomas Lyons, an Infant, by His Guardian, Hannibal Lyons, v. The Akron Skating Rink Company.
    Decided, April 17, 1908.

      Civil Rights Act—Authority of Doorkeeper and Ticket Taker at Skating Rink.

    In an action for damages under the civil rights act, for refusal of admission to a roller-skating rink, where there is nothing in the record to show that the doorkeeper of the defendant corporation was entrusted by it with any authority or duty whatever beyond the taking of tickets and the adpiission of persons with tickets to the floor, explanations of the conduct of any other employee of the defendant, or any other feature of its business, is not within the sphere of the doorkeeper’s agency.

      Henry, J.; Winch, J., and Marvin, J., concur.
   The parties to this proceeding in error stand related as they stood below. The original action was for damages under the Civil Rights Act, Section 4426, Revised Statutes of Ohio, for alleged exclusion of the plaintiff in error from the defendant in error’s rink, on the ground of his race and color. The jury returned a verdict for the defendant.

The first error assigned is upon the exclusion of evidence. The plaintiff’s father and guardian, Hannibal Lyons, testified that he and his son approached the ticket window at the rink and tendered twenty-five cents, the regular price for a skating admission ticket, which the father requested for his son. The ticket seller pushed back the money, shook his head, pointed towards the doorkeeper and the regulations posted at the entrance to the skating floor, and closed the window without saying anything. Thereupon the witness and his son approached the doorkeeper and the father asked, “Why is it that I can’t buy a skating admission ticket for my boy?” To the next question put to the witness by plaintiff’s counsel “AVhat did he say?” objection was sustained, and he excepted, offering to prove that the doorkeeper replied “AVe don’t allow colored people to skate in here.”

It does not appear that either the plaintiff or his father for him made any application directly to the doorkeeper for admission to the skating floor. Their only application to him was for information as to why they were denied a ticket. There is nothing in the record to show that the doorkeeper was entrusted by the defendant with any authority or duty whatever beyond the taking of tickets and the admission of persons with tickets to the floor. Explanation of the conduct of any other employee of the defendant or any other feature of its business was not within the sphere of this doorkeeper’s agency as thus defined. The Ohio Oil Co. v. McCrory, 14 C. C., 304, 306-7; Baltimore, etc., Belief Assn. v. Post, 15 Atl. Rep., 885.

AAA find no error in the exclusion of this evidence.

The second error assigned is the refusal to permit plaintiff’s counsel, in cross-examination of the ticket seller, to inquire whether he had testified in the justice court, where the cause originated, to an incident apparently elicited from him for the first time in the court of common pleas.

These inquires were:

“Did you say a word there about Mr. Gault having ordered you not to sell any more skates or skating tickets or having said anything to you ? ” Al so. “ Did you testify in the justices’s court as to any orders that you had, not to sell tickets that evening ? ’ ’

While these questions were proper enough for the purpose of testing the witness’ recollection, his cross-examination had already been conducted at some length, and we are not prepared to say that the trial judge abused his discretion in thus limiting it.

The third error assigned is upon the charge of the court, but no particulars having been pointed out to us, by the plaintiff in error, either in argument or brief, we forbear discussing the charge further than to say that, as we read it, it appears to be as favorable to the plaintiff-in error as the law would allow.

The judgment is affirmed.


text:
    DIVISION OF ESTATE POSTPONED UNTIL DEATH OF WIDOW.
    Circuit Court of Summit County.
    The Peoples Savings Bank Co. v. Omar N. Gardner et al.
    Decided, April 17, 1908.

      Testamentary Trust—Trustee Instead of Administrator to Administer—• No Division of Estate Until Time Mentioned in Will.

    1. Under a will creating a trust for the testator’s widow’s life in property devised to a son and daughter, and directing “the same to be parted and divided between them share and share alike as they may agree; said division not to be made until after the decease of my said wife Matilda but the property to remain intact until that event, and until then the rents of the real property shall go into my estate for the purpose of paying the eight hundred dollars per year to my said wife,” etc., “and in case either my son or daughter should die before a division of my estate, leaving no heir or heirs, that in that case the whole of said property shall go to the survivor of them,” unless all the beneficiaries of the trust consent, it is beyond the power of the parties or of the court to enforce a division of the estate until after the widow’s death.
    2. A trustee, eo nomine, should be appointed to administer the trust created under such a will, but an administration de bonis non will include the administration of the testamentary trust, until a trustee for the purpose is appointed.
    ITenry, J.; Winch, J., and Marvin, J., concur.
   This is a creditors’ bill to subject Omar N. Gardner’s interest in his father’s estate under the latter’s will, which devised the homestead and contents to his wife, and the remaining property to his son and daughter to life annuities of $800 to his wife and $500 to a former divorced wife.

The testator died in 1873, leaving his widow, who still survives: his son Omar, who, having become involved has recently disappeared, his daughter who afterwards died, leaving a family, and his divorced wife, who is also now deceased. The estate disposed of by the will consisted, besides the property specifically given to the' widow, of several parcels of real estate in the city of Akron, in some of which, howrever, the executor, David Hanseom,.had a half interest that was subsequently served in a partition suit brought for the purpose. The decree in that proceeding set off one of said parcels to the testator’s two children jointly, subject to the annuity lien provided by the will.

Hanseom had conducted the administration until the son’s majority, as provided by the will; thereupon he resigned, and, the estate being then still unsettled, the son was appointed administrator de bonis non with the will annexed. He rendered his final account in 1877, but continued to manage the property for the family, paying his mother’s annuity, for thirty years thereafter. In 1907, he was removed as administrator and William Irvin appointed in his stead.

The court below appointed a receiver in this action at the instance of Omar N. Gardner’s creditors, plaintiffs and cross-petitioners herein; but his father’s administrator and widow con- ' tend that under the will the property must be kept intact and managed under the oversight of the probate court as long as she lives.

As we construe the will, it creates a trust for the widow’s life in the property devised to the children, directing “the same to be parted and divided between them share and share alike as they may agree; said division not to be made until after the decease of my said wife, Matilda, but the property to remain intact until that event, and until then the .rents of the real property shall go into my estate for the purpose of paying the eight hundred dollars per year to my said wife, * * * ánd in case either my son or daughter should die before a division of my estate, leaving no heir or heirs, that in that case the whole of said property shall go to the survivor of them.”

Unless all the beneficiaries of this trust consent, it is thus put beyond the power of the parties or of a court of equity to enforce a division of. the estate until after the widow’s death. If the ordinary administration is complete, as the evidence shows it is, it becomes the duty of the probate court, upon application under Section 5986, Revised Statutes, to appoint a trustee to execute the trust so created by the will, for want of an appointment in the will itself. A trusteeship eo nomine and not administration de bonis non. is what the statute contemplates under these circumstances. But the appointment actually made by the probate court of an administrator de bonis non will also include the administration of the testamentary trust as specially created by the will, unless upon application there made the more appropriate appointment of a trustee for that purpose be substituted therefor (Matthews, Admr.. v. Meek, 23 O. S., 272, 289). Such trustee has under the statute exclusive control of the property subject to the supervision of the court appointing him. The most we can do here is to enter a decree that the interest of Omar N. Gardner in said trust be subjected to the payment of his debts. ITis mere equity might be sold, if it would benefit the creditors here to do so; but as such sale would not. divest the trustee of his possession and control of the property, we can see no advantage to them from such a course, especially as that equity may never mature into a legal estate; for if Omar N. Gardner should die without issue before his mother’s death, it is at least doubtful whether his interest in the property would not then pass to his sister’s heirs, if any. We might also, if however, the creditors desire, continue the receivership, limiting the receiver’s authority to the collection by him from the trustee, of Omar N. Gardner’s share of the rents and profits of his father’s estate as they accrue from year to year. This, we take it, would also be a most wasteful proceeding. The simplest solution as it seems to us, is so to mould our decree as to ascertain and declare the interests of the plaintiffs in Omar’s present equity and contingent remainder in his father’s real estate so that they may be duly recognized by the trustee as long as the trust continues, and be properly taken care of in the partition of the estate when the widow dies.

What has thus far been said applies to all the property except the first parcel described in the petition. We have given careful consideration to the contention that as regards all of the real estate the parties are bound to a contrary interpretation of the will by the actual setting off to the children of a legal estate in this one parcel which was the subject of the ITanscom partition proceedings; but we do not subscribe to that view. They were bound by that proceeding with respect only to the land then in 'controversy, and may well decline to acquiesce in further division of the estate. The court’s decision must be construed to have proceeded not upon.the construction of the will, but upon the tacit consent to the decree then entered, so far only as it concerned the subject-matter of that action. Such consent was given by all the ceshiis que trusteni under the eldér Gardner ’s will, for they were all parties to that action, and the decree' is conclusive and binding upon everybody so far as that one parcel is concerned.

Omar N. Gardner’s thirty years ’ management of the remaining property is not conclusive of his mother’s rights here; for its import, so far as the widow is concerned, is at most equivocal. She received her annuity from the one who had been duly appointed administrator with the will annexed; and her conduct in that behalf so far from indicating that she looked to him personally instead of qfficially, apparently indicates the contrary.

The creditors may take a decree ascertaining their interests and their succession, so far forth, to the rights of Omar N. Gardner 'in his father’s estate. The decree may also provide for á sale óf Omar N. Gardner’s interest in the parcel of land aparted to him and his sister jointly in the Iianscom partition proceeding, subject, of course, to the lien of the widow’s annuity. The costs are adjudged against Omar N. Gardner.


text:
    OBSTRUCTION OF VACATED STREET.
    Circuit Court of Summit County.
    Thomas Worthington, on His Own Behalf and on Behalf of the City of Akron and Other Tax-payers, v. The City of Akron and The Standard Table Oil Cloth Co.
    Decided, April 17, 1908.

      Municipal Corporation—Nuisance in Street—Action Therefor—Plaintiff Can Not Maintain Action, Unless.

    A plaintiff can not maintain an action against a municipality and others for obstructing a street, either in his individual capacity or, as an abutter upon the street, unless the nuisance sought to be abated is private and personal to him, affecting him or his property in a manner differing not merely in degree, but in kind from its effect upon the community in general, and he can not maintain such action as a tax-payer, for want of statutory provision therefor.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The plaintiff in this appeal seeks to enjoin the obstruction of Moore avenue or street in the city of Akron by the defendant oil cloth company, acting under color of an ordinance passed by the council of said city for the vacation of that portion of said street on which said oil cloth company’s property abuts. The claim that the obstruction of this part of the street in question is unlawful rests chiefly upon alleged want of jurisdiction in the council over this particular street, because it was and is a county road, and upon the council’s reconsideration in alleged due season of the vote, whereby said ordinance was passed, followed by indefinite postponement of further consideration thereof. , , .

The character in which the plaintiff sues is, as disclosed by the caption, three-fold, viz., (1) personally, (2) as a tax-payer under favor of Section 1536-668, Revised Statutes, and (3) as owner of property abutting on said street though not on the vacated portion thereof.

In the first and last of these capacities it is clear that he has no right to sue, unless the nuisance sought to be abated is private and personal to him, affecting him or his property in a manner differing not merely in degree but in kind from its effect upon the community in general.

No such case is here made. The plaintiff has left to him other, although it may be more circuitous, inconvenient or difficult, means of access from his own premises to every point within and without said'city which was accessible to him before Moore street was obstructed. . If the obstruction complained of is unlawful, it is thus, so far as plaintiff is concerned, a purely public nuisance, which it is- the city’s duty to abate, but which can not become the subject, of an action founded upon any private right to sue unless the statute has expressly given such right.

The only claim of statutory right here arises under Sections 1536-667 and 668, Revised Statutes, but a careful perusal of those sections discloses no right thereby conferred on the city solicitor of his own motion or on request of a tax-payer to bring an action to enjoin a street obstruction; from which it follows that a tax-payer, on his refusal, can bring no such action in his stead. Whatever remedy may be afforded by said sections the one here sought to be invoked is certainly not included therein.

Holding as we do that plaintiff has misconceived his remedy and that he can not in any of the three capacities named by him maintain this action for injunction, the petition is dismissed.


text:
    RECOVERY FOR PROPERTY SET ON FIRE BY A PASSING LOCOMOTIVE.
    Court of Appeals for Wood County.
    The Hocking Valley Railway Company v. William B. James, Trustee of Radeloff Brothers, Bankrupt, and The Connecticut Fire Insurance Company of Hartford.
    Decided, May 8, 1913.

      Railways—Store Building Destroyed by Fire—Supposed to Have Been Started by a Passing Locomotive—Bills of Exceptions—Charge of Court—Admissibility of Evidence as to Other Fires Along Right-Of-Way.

    1. Where a bill of exceptions merely shows that a request for special instructions was made in writing before argument, there is a failure to show compliance with the statutory requirement that the instructions asked for should be in writing and that the request to give them before argument be made.
    2. An averment in the petition that the locomotive which it is claimed-set the plaintiff’s property on fire was being operated in a southerly direction, is immaterial and need not be proven; nor is it necessary the jury should find the engine was being operated on defendant’s road, when there is no contention that the company owning the road was operating that particular engine.
    3. In an action for recovery for property destroyed by fire started by a passing locomotive, testimony is competent as to other fires occurring along the railway right-of-way immediately before or after the one complained of. ■

      Wilson <S¡ Redor, F. C. Amos and F. P. Riegle, for plaintiff in error.

      Ladd c& James and Benj. F. James, contra.
    Richards, J.; Kinkade, J., and Chittenden, J., concur.
   The action in the court of common pleas was brought by William B. James, as trustee in bankruptcy, and the Connecticut Fire Insurance Company against the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company and the Hocking Valley Railway Compauy, to recover for the loss of a certain store building and contents located at Lemoyne in this county and claimed to have been destroyed by fire in March, 1911, by the negligence of the defendants. The property destroyed was the property of Radeloff Brothers and was insured against loss' by fire in the Connecticut Fire Insurance Company. The loss for which the insurance company was liable was adjusted between the company and the assured and the amount as between those parties was agreed to be the sum of $1,546.12, which amount was paid by the insurance company. Thereupon this action was brought by the trustee of Radeloff Brothers, the assured, and the Connecticut Fire Insurance Company to recover of the two railroads named the total loss claimed, viz, $2,073.64.

It is averred in the petition that the IToebing Valley Railway Company was the owner of the right-of-way and that the other railroad company, known as “the Big Four,” was operating a train on.the occasion in question and from it the fire is averred to have originated. The property1 destroyed was situate about a hundred feet from the track of the railway company. On the trial in the common pleas court a verdict, was rendered in favor of the plaintiffs and against the Hocking Valley Railway Company for $2,222.67, the jury finding that the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company was not liable, and judgment has been rendered upon this verdict.

The case is brought here on a petition in error and a bill of exceptions which is certified in the usual form to contain all the evidence. One of the principal grounds of error upon which reliance is made is that the verdict is not sustained by sufficient evidence, and issue was joined between the parties as to,the existence and terms of the insurance policy which was claimed to cover the property destroyed by fire, the petition averring separate amounts of insurance upon different classes of property covered by the policy and destroyed by fire. The insurance policy was therefore an important item of evidence, and was introduced in evidence by the plaintiffs and received by the court and marked Exhibit “B,” but is nowhere attached to the bill of exceptions'. Because of this omission we are not authorized to consider the case upon the weight of the evidence. It has been many times held that the failure to attach exhibits precludes the reviewing court from passing upon the weight of the evidence. A few cases illustrating the principle may be cited: Foster Goal Co. v. Mohrman, 9 C. C., 544, failure to attach map; Hohly v. Sheely, 21 C. C., 484, failure to attach photographs; Mich. Gen. R. R. Co. v. Waterworth, 21 C. C., 485, failure to attach photograph; State of Ohio v. Hinkleman, 32 C. C., 1, failure to attach bottle. This latter case was affirmed without report, 83 O. S., 446.

It is further contended that the trial court erred in refusing to give to the jury in the charge certain instructions before argument. The bill of exceptions recites the following: “Before

argument, counsel for defendant in writing requested the court to specifically charge the jury as follows:” The statute, General Code, 11447, provides that either party may present written instructions to the court on matters of law and request them to be given to the jury.

It does not appear from the language of the bill of exceptions that the.instructions' asked were in writing as required by this statute, nor that they were requested to be given before the argument, but simply that the request was made in writing and before argument. Under the statute the request need not be in writing but the instructions which are requested to be given must be in writing.

The first request so asked to be given was properly refused by the court. It involves a statement that the jury must find for the defendants if the evidence fails to “satisfy” them. Of course it is fundamental that an ordinary civil action may be determined by a preponderance of the evidence, and the language of the instruction asked is condemned in C., H. & D. Ry. Co. v. Frey, 80 Ohio St., 289.

The' next instruction asked contains in substance a statement that the jury can not find for the plaintiffs unless they should find that the engine was being operated on defendant’s road in a southerly direction. We find no error in the refusal of the court to give this instruction. It is true the petition avers that the engine was being operated in a southerly direction, but the mere direction in which the’ engine was proceeding was immaterial and need not have been averred, and having been averred need not have been proven. The instruction is open to the further objection that it requires a finding from the jury that the engine was being operated on defendant’s road, while it was not contended that the railroad belonged to the Cleveland, Cincinnati, Chicago & St. Louis Railroad Company, which company was sought to be held only because it was claimed to have been operating the engine.

We deem it unnecessary to discuss in detail the two remaining instructions asked to be given by counsel for plaintiff in error. It is sufficient to say that we find no error in the action of the court in refusing to give them. It is contended by counsel that the court erred in its general charge to the jury, but the bill of exceptions fails to disclose that counsel lodged any exception to the action of the court in giving the general charge.

Numerous exceptions appear in the record to the admission and exclusion of evidence. Several of those exceptions relate to the admission of testimony offered by plaintiff as to a fire dong the right-of-way shortly before or shortly after the fire which destroyed the property of Radeloff Brothers. The court admitted evidence of that character, but it seems to have been limited very closely to the occasion of the fire in controversy, and such evidence has been frequently held to be competent. The circuit court sitting in Ottawa county held in The Lakeside & Marblehead Co. v. Kelly, 10 C. C., 322, that other fires about the time and immediately after the passage of the locomotive might be shown. In the case of L. S. & M. S. Ry. Co. v. Anderson, 27 C. C., 577, it is held that fires originating soon after locomotives of the company had passed along the road might be shown. We think that the trial court committed no error in the admission of this class of evidence, limited as it appears to have been.

It is insisted that prejudicial error was committed in the admission of Exhibit “A,” being four yellow sheets containing items of merchandise and their value as made out and attached to the proof of loss made to the insurance company after the fire. Andrew Radeloff, one of the assured, had testified that he and his brother spent the entire day with the adjuster in making these items and affixing the figures thereto. The items are very numerous, being contained ás stated, on four pages. The witness testified that these items were correct. The trial judge gave ample opportunity to counsel for the defendants to cross-examine relative to this list, and admitted it in evidence to save time in the trial of the 'cause. Counsel for defendants requested of the trial court an opportunity to examine Exhibit “A” so that they might cross-examine if they saw fit and their request was granted by the court, as appears in the earlier portion of the bill of exceptions. The matter again came up immediately before plaintiffs rested their ease, and counsel declined to avail themselves of the privilege so accorded, and it was only after this situation had arisen that the court permitted the admission in evidence of the exhibit. It is impossible to examine this bill of, exceptions without reaching the conclusion that the witness Andrew Radeloff in effect testified that the contents of Exhibit “A” are correctly stated and were furnished by him, and we think under all the circumstances of the case that no error was committed to the prejudice of the defendants by the admission of Exhibit “A” in evidence.

Notwithstanding the fact that the bill of exceptions fails to contain the insurance policy known as Exhibit “B,” we have made a careful examination of the evidence and believe that on the whole case substantial justice was done to the parties, and finding no prejudicial error, the judgment of the common pleas court will be affirmed.


text:
    EMPLOYEE CRIPPLED BY ELECTRIC SHOCK.
    Circuit Court of Lorain County.
    The Cleveland & Southwestern Traction Company v. Lisle E. Garnett.

    Decided, April 29, 1908.

      Negligence—Charge of Court—Reqpest for Special Verdict in Writing—• Submission of Interrogatories to Jury.

    1. When what is intended to be a request that the court “direct the jury to give a special verdict in writing upon certain issues” amounts to nothing more than “a request to instruct the jury to find specifically upon particular questions of fact,” and is not couched in such terms as to require being given as the latter, there is no error in refusing to give it at all.
    2. When the court in his charge to the jury in an employer’s liability case defines negligence as the want of ordinary care, it is not improper to submit to the jury interrogatories to be answered by it which require it to state whether or not the plaintiff, as well as the defendant, were negligent.
    Henry, J.; Winch, J., and Marvin, J., concur.

      Affirmed without opinion, Cleveland & Southwestern Traction Co, v. Garnett, 81 Ohio State, 483.

   This proceeding in error is prosecuted by the Cleveland & Southwestern Traction Company to reverse a judgment recovered against it by Lisle E. Garnett, for injuries sustained by him while in its employ and in consequence of an electric shock and burns by which he was crippled about the haqds. Garnett was employed in the traction company’s Rockport shop and yard as a pitman, and had been in the service the better part of a year. His duties required him to work underneath cars, which needed repairing, in a pit provided for that purpose. ILe was accustomed also to perform other tasks about the yard, so that his knowledge of the use of electric currents and the presence of overhead electric wires about the yards may be presumed.

At the time Garnett was injured, he, with other employees of the company, were engaged in shifting cars in the yards, and in pursuance of general directions in their behalf he was helping to place certain of these cars on a spur-track and was riding at the .forward end of a flat-car. At the end of this spur-track was a railroad box ear which had been fitted up with a transformer in order to change an alternating current of electricity into a direct, or vice versa. This car was known as a sub-station, and into the end of it, towards which Garnett and the cars upon which he was riding were approaching, some wires each of the diameter of a lead pencil were let in from a pole nearby in order to connect with said transformer. These wires entered the box ear through the end and directly underneath its roof. They were insulated at the point of entrance and for a foot or so outside the car, but beyond that they were bare. After leaving the caí they extended horizontally for a short distance, before the curve of the sag carried them up to the top-of the pole to which they were attached.

Garnett stood on the car with one hand on the brake, and with the other hand he gave a signal to stop, in order that the cars might not collide with this box car sub-station. While in this attitude, his upraised hand came in contact with one of the wires, and, a circuit having been established through his body and the brake, he sustained the injuries already mentioned.

The men who were shifting these ears had not been specifically dr’ected to put any of the cars on this particular spur-track, neither had GaVnett been specifically directed to ride on any car. He and the others chose their own way and manner of performing the work. He had not been specially warned about the particular hazard which resulted in his injuries, and he testifies that he did not know that the box car was a sub-station or that there were any wires entering it, or that any current of electricity was conducted to it. He knew, however, what a sub-station was, from his experience in the shop where another transformer was in use. The wires, moreover, which entered this sub-station were plainly before his eyes, had he been looking in that direction, and had he known of their presence he would probably have had reason to believe from his general experience, that they were charged with a dangerous electric current.

The surgeon who treated his injuries conversed with him about the accident soon after it occurred, and both he and a by.-stander at the hospital declare that Garnett then admitted that he had known that the wires were there and their character, and that when he raised his hand to signal he forgot about them. Garnett positively denies that he made any such statement and the jury evidently believed him. We are not prepared to say on all the evidence, that he either had or was chargeable with such knowledge. It is entirely conceivable that his notice had never been attracted to the wires entering the box car and to the danger of performing these common duties of a brakeman in the usual manner in which he did perform them on this occasion. Under all the testimony we might perhaps- differ from the conclusion to which the jury came in this behalf, but we are not able to say that their verdict is clearly wrong, either with respect to the alleged contributory negligence and assumption of risk by the plaintiff below or on that of the negligence charged -against the defendant below. We can not, therefore, disturb the judgment upon the ground that the evidence is insufficient to uphold the finding for the plaintiff in these respects.

Other errors assigned relate to the somewhat unusual matter of practice invoked by the defendant below in requesting the court to require the jury to find a special verdict under Sections 5200 and 5201, Revised Statutes, which provide that “the verdict of a jury must be either genera] or special” and “in all actions the jury, unless otherwise directed by the court, may, in its discretion, render either a general or special verdict; but the court shall; at the request of either party, direct them to give a special verdict in writing upon all or any of the issues.”

A special verdict is understood to be one by which the jury returns findings upon the several issues of fact separately, leaving the court thereafter to render such judgment as the facts so found may require. When such a verdict is required the party requesting the same usually presents such form of finding as he thinks the evidence warrants, and the court submits the same to the jury with such emendations as upon the suggestion ol opposite counsel or otherwise, may seem to be required. The jury may vary the outline of the special verdict thus submitted to them in such manner as they may think the evidence makes necessary. Sometimes competing forms of verdicts are submitted representing the contentions of the opposite sides, respectively, as to what the evidence should be deemed to prove. If such forms are drawn up in a narrative style it is manifest that however useful they may be where the issue is single, they are quite unfitted to express the actual agreement of minds at which the jury will arrive respecting a great variety and complexity of issues and cross-issues, such as an employer’s liability damage case usually presents. General speaking a jury is but poorly qualified to draw up a form of special verdict of its own or to materially vary a form prepared in advance for its use. In this ease the narrative form of special verdict was not presented by the defendant when its request was made. Instead, a series of questions deemed by it to cover the issues in the case was offered, together with .certain special requests to charge before argument, which were also proffered in writing. These requests to charge referred by number to various questions in the so-called special verdict submitted by the defendant, in such manner that if the form of verdict was disallowed, the requests to charge would have to be disallowed also. Both were in fact rejected by the court, and properly so, we think, under the authority of Gale v. Priddy, 66 O. S., 400, the per curiam in which at pages 403 and 404, is in part as follows:

“It'does not appear that the court requested to instruct the jury ‘to find specially upon particular questions of fact,’ although questions seem to have been prepared and submitted to the court for the purpose of procuring such a special finding. Instead of such a request, the record shows that the defendant requested the court ‘to direct the jury to give a special verdict in writing upon certain issues,’ which is a very-different thing. It does not appear that a special verdict on any ‘issues’ was prepared and submitted as is the general and proper practice in such ca-ses (22 Ency. PI. & Pr., 993) ; but it does appear that certain ‘particular questions of fact’ were prepared, which counsel doubtless desired to have answered by the jury. A ‘particular question of fact’ (Section 5201, Revised Statutes) is something different from, and less than an ‘issue’ and the object of the statute is that these special findings, if inconsistent with the general verdict, may control it.”

It thus appears that what was intended to be a request that the court “direct the jury to give a special verdict in writing upon Certain issues,” amounted in this case to nothing more than “a request to instruct the jury to find specifically upon particular questions of fact,” and it was not couched in such terms as that in either aspect the court was bound to grant it. The first two paragraphs of the syllabus in the same case are as follows:

“1. A request that the court will direct the jury to render a special verdict in writing, upon any or all of the issues in the case, is not a request to instruct the jury that if they find a general verdict, they shall find specially upon particular questions of fact, as provided in Revised Statutes, Section 5201.
“2. Section 5201, Revised Statutes, so far as it relates- to special findings upon particular questions of fact, is.mandatory only when the request therefor contains the condition that the questions which are submitted shall be answered in case a general verdict shall be rendered.”

Notwithstanding the futility of defendant’s request for a special verdict, the court did in fact instruct the jury to make their verdict special instead of general, thus heeding the request, so far forth, but substituting in place of the entire list of questions tendered by defendant below, a list prepared' by the court, supplemented by certain of defendant’s questions, the same being submitted to the jury with their authorship thus distinguished. The alleged error in thus disclosing the origin of the question1? in connection with the court’s draft of special verdict is, in our opinion, without foundation. Some of the defendant’s questions so submitted, were answered by the jury in a manner as favorable to the defendant as it could ask, and in any event we can see no prejudice to it in this procedure. If the court could not of its own motion require the jury' to return a special verdict under the statutory provision in that behalf, the color of the defendant’s request therefor, informal and invalid though that request was, would suffice to sustain the court’s action in this respect, and the same is true with respect to the court’s drafting in the form of interrogatories instead of in narrative form, this special verdict which it instructed the jury to return. The impracticability of formulating a special verdict in narrative form in this ease., in view of the complexity of the issues; the practice which the defendant had already sought to establish by drafting its request for a special verdict in the same manner; and its failure to withdraw its request for a special verdict; in the turn which the case finally took before submission to the jury, render it impossible for us to hold that the court committed an error in the matters of practice which we have just discussed.

It is said, however, that the questions submitted to the jury with the answers thereto, can not collectively be considered as a special verdict on the facts alone, so -as to dispense with the general verdict, for two reasons.

1. Because it does not exhaust all the issues in the case.

2. Because it includes findings other than those of mere fact.

On the first point it is true that many of the probative1 facts sought to be elicited from the jury in the form of the so-called special verdict, submitted by the defendant below, were of such a nature, within the rule of Gale v. Priddy, supra, as that ultimate material facts might have been inferred therefrom, and if the interrogatories of this character had been submitted with a proper request to the court to instruct the jury to find.specially upon the particular question of fact to which they related, it would undoubtedly have been the duty of the court to submit them to the jury accordingly. Considered, however, as component parts of a special verdict, they were not essential questions, if all the issues of fact in the case were otherwise fully covered in the form of verdict actually submitted; and this after careful examination we find to be the ease. It would perhaps be unprofitable to enter into a minute examination here of all of the issues of fact presented by the pleadings and in the special verdict found by the jury. Suffice it to say that point by point we have set the pleadings- over against the verdict and find that the latter completely covers all issues made by the foreman.

On the second point (if the jury in returning a special verdict is confined by the statute to the facts), the question of negligence is, as frequently said by our Supreme Court, a mixed question of law and fact; and the form of special verdict submitted by the court to the jury in this ease required them to answer specifically whether the defendant was negligent, and also whether the plaintiff was negligent. In the charge negligence was defined as want of ordinary care, and ordinary care was defined in the familiar terms laid down by bur Supreme Court. If the jury had been asked to say whether plaintiff and defendant respectively exercised such care, in respect to the matters charged to be negligent in the pleadings, as persons of ordinary prudence are accustomed to employ under similar circumstances, such questions, together with the jury’s answers thereto, would, we think, have been within the realm of fact as distinguished from conclusions of law. With the term negligence defined as the court did define it to the jury, the circumlocution was avoided and the same result follows as if the more involved phraseology had been employed in the verdict itself.

We hold, therefore, that the errors assigned in regard to the special verdict were all unfounded.

It would extend this opinion to undue length to consider at large all the numerous exceptions reserved in respect to the production of evidence, the charge and requests to charge, etc. Suffice it to say that we have carefully examined every point urged in the arguments and briefs of counsel, without finding any reversible error in the record, and the judgment is therefore affirmed.


text:
    ACTION FOR. DIVISION OF REAL ESTATE COMMISSIONS.
    Circuit Court of Lorain County.
    R. F. Powell v. W. N. Little.
    Decided, April 29, 1908.

      Contract—Real Estate Commissions.

    ' In an action by a hotelkeeper against a real estate agent to recover on a contract whereby the latter agreed to pay to the former one-half of all commissions on sales made “to customers desirous of purchasing real estate who should be introduced by the plaintiff to the defendant,'' it is not error for the court to charge that should the jury find that a person to whom the agent subsequently sold real estate was not, at the time of introduction.to defendant by plaintiff, desirous of purchasing real estate, then the plaintiff has failed to establish the performance of the contract on his side.
    PIenry, J,; Winch, J., and Marvin, J., concur.
   The parties to this proceeding in error stand related as they stood below, the jury there having returned a verdict for defendant. The plaintiff in error, Powell, being the landlord of a hotel in the city of Lorain, claims to have entered into an oral agreement with the defendant in error, Little, a real estate agent of the same place, whereby the latter was to pay to the former one-half of all commissions on sales made to customers desirous of purchasing real estate who should be introduced by Powell to Little. One Jane Miller was introduced by Powell to Little and the latter made a number of sales to her from which it is claimed that he received $3,675 in commissions. On plaintiff’s demand, the defendant paid him $400, hut refuses to pay him the balance of $1,437.50 which he still claims.

The defenses interposed are, first, that no such agreement was entered into; secondly, that at the time of Jane Miller’s introduction by Powell to Little, she was not in fact desirous of purchasing real estate; thirdly, that the $400 was paid by way of settlement of plaintiff’s entire claim which defendant disputed, and that after said settlement, Powell, treating his relations with Little as ended, sought to defeat'further sales through him to said Jane Miller; and fourthly, a partial defense, namely, that defendant received only $2,250 in all by way of commission, on sales to Jane Miller.

The whole testimony of the defendant Little, who was called by plaintiff for cross-examination, with his cheeks and statements in writing made to Powell, and also the testimony of Gilbert Lackey and F. A. AYilder, seem to show that a contract substantially as claimed was entered into between the parties and if the verdict of the jury hinged only upon this issue we should be inclined to hold that it is unsupported by the evidence.

Upon the issue, however, of Jane Miller’s desire or intention in regard to the purchase of real estate at the time of her introduction to the defendant, she and Little both deny that she entertained or manifested any such purpose until it transpired that her desire to lease a storage 'warehouse could not be realized. The change of plan occurred, however, very speedily in Little’s negotiation with his new found customer, insomuch that having convinced her of the impracticability of leasing and the necessity of buying outright such property as she desired to. use, if her object was to be attained at all, he actually sold her several parcels of land within the next twenty-four hours.

This is, of course, a very narrow distinction to draw, and if the jury had found the other way upon this issue, in view of all the evidence relating to it, we should have been, perhaps, more content with the acetiracv of their deduction. The narrowness of the distinction is, moreover, emphasized by defendant’s third request to charge, which was granted, and the latter half of which is as follows:

“If you find from the evidence in this case that the contract alleged in plaintiff’s petition was entered into by the parties thereto, then I say to you that it will be necessary for you to further consider the evidence in this case and determine whether the said Jane Miller was introduced to the defendant by plaintiff as a person desirous of purchasing real estate in the city of Lorain, Ohio, and should find from the evidence which has been given to you that at the time of said introduction the said¿ Jane Miller was not desirous of purchasing real estate in the city of Lorain, then the plaintiff has failed to establish the performance of the contract on his side, if you find there was one, your verdict should be for the defendant.”

This charge is complained of as misleading and as misstating the contract; and, indeed the words "introduced as a person desirous of purchasing real estate,’ ’ when considered by themselves, might well be misleading, as laying stress upon a possible defect in the manner of introduction. But in the next phrase of the same sentence*, the point on which the jury’s finding on this issue is required to turn is, was or was not Jane Miller, at the time of the intoduction, in fact desirous of purchasing real estate in the city of Lorain ? ’ ’ Narrow as the distinction undoubtedly is, the request to charge follows the language of the petition in this respect. This charge was requested in writing to be given before argument, and the court could only grant or refuse it. It could not be modified. If the phraseology was ambiguous, it was plaintiff who first used it, and not only so, but he retained it in his second amended petition after he knew from defendant’s answer to his former petition that it would be made the basis of this very distinction. Should the court have refused this request to charge that if the jury were of opinion that plaintiff had. not proved the fulfillment of the terms of his agreement as the same were recited in the plaintiff’s petition, their verdict must be for the defendant? A majority of the court think not, and we find no error in the particulars thus discussed.

The exceptions reserved during the production of evidence we have examined one by one. Without rehearsing them here, we find that some exceptions to the exclusion of evidence are not supported by offers to prove. Others, particularly in the examination of the witness Coulter, are not sustainable, because of the hearsay rule. Suffice it to say that we find none of the assignments of error to be well founded and the judgment is affirmed.


text:
    WIFE’S RIGHT TO DEVISE PROPERTY DEVISED TO HER.
    Circuit Court of Lorain County.
    Henry McRoberts et al v. Henry H. Barnard et al.

    Decided, April 29, 1908.

      Will—Devise to Widow to Her Disposal During Life—She May Will.

    A widow who has received real estate under her husband’s will “to be to her and to her disposal during her life,” may dispose of the same by her will.
    Henry, J.; Winch, J., and Marvin, J., concur-.

      Affirmed without opinion, McRoberts et al v, Barnard et al, 81 Ohio State, 560,

   The only feature of this case which we deem it necessary to discuss here is the true interpretation of the second item of Pitt McRobert’s will, as follows:

“I give and devise all the residue of my estate to Abby my beloved wife, to be to her and to her disposal during her life.”

The testator’s widow, Abby, undertook to dispose, by will, of the real estate thus devised to her. The validity of this disposition by her obviously can be rested either upon the view that she was invested with the fee therein by the term of her husband’s will, or upon the view that her husband’s will invested her with the power to make testamentary disposition of the same. The first of these views seems to us to be supported by the ease of Davis et al v. Corwine et al, Exrs., 25 Ohio State, 669, and Lepley et al v. Smith, 13 C. C., 189.

The second view is supported by the Massachusetts case of Burbank et al v. Sweeney, 37 Southeastern, 669, a well considered case which we approve.

Judgment below affirmed.


text:
    LOCOMOTIVE ENGINEERS ON SAME ROAD ARE FELLOW-SERVANTS.
    Circuit Court of Lorain County.
    The Lake Shore & Michigan Southern Railway Company v. Rudolph Stark, Administrator.

    Decided, April 29, 1908.

      Wrongful Death—Negligence of Fellow-Servant—Locomotive Engineers are Fellow-Servants.

    Two engineers, on different locomotives, are fellow-servants, and where one'is killed solely on account of the negligence of the other, there can be no recovery against the railroad company.
    Henry, J.; Winch, J., and Marvin, J., concur.

       Affirmed without opinion, Stark, Admr., v. L. S. & M. S. Railway Co., 81 Ohio State, 560.

   The action below was for death by wrongful act. The defendant in error was plaintiff below. His intestate, .Frank Stark, was an engineer in the employ of the plaintiff in error. On the day of the accident, he, with a fireman, bad charge of engine No. 818, east bound, standing on a side-track at Graytown. Their train had been detained there for several hours. At the same time engineer Van Glahn, with a fireman, was in charge of engine 773, west bound, which with his train and crew had been detained on a side-track at Rocky Ridge for many hours.

About 5:45 o’clock a. m., the train despatcher on being advised that Van Glahn’s engine was out of water, issued an order to the condiietor and engineer of its train, as follows: “C. and E.

Engine 773. Engine 773 will run extra Rocky Ridge to Port Clinton, protecting itself against all trains.” Port Clinton was east of Rocky Ridge and Graytown west thereof. About the time the order above quoted was given, Stark, who was killed, started with his train from Graytown towards Rocky Ridge and Port Clinton. As he approached Rocky Ridge, Van Glahn, with the fireman and brakeman, was just starting to cross over .from the west bound to the east bound track, on route to Port Clinton for water, in pursuance of said order. Before Van Glahn’s engine had fully passed from the cross-over to the eastbound track, Stark’s engine overtook it, and in the ensuing collision Stark was killed.

It is practically admitted that one cause of this collision was Van Glahn’s failure to observe the company’s rules, 99, 100 and 102, quoted on pages 22 and 23 of the bill, as follows:

“Rule 99. When a train is stopped by an accident or obstruction, the rear brakeman must immediately go back with danger signals to stop any train moving in the same direction. At a point ten telegraph poles, or 1,500 feet, from the rear of his train, he must place one torpedo on the rail; he must then continue to go back at least twenty telegraph poles, or 3,000 feet, from the rear of his train, and place two torpedoes on the rail, ten yards apart (one rail length) when he may return to a point ten telegraph poles or 1,500 feet, from the rear of his train, and he must remain there until recalled by the whistle of his engine; but if a passenger train is due within ten minutes, he must remain until it arrives. When he comes in, he will remove the torpedo nearest to the train, but the two torpedoes must be left on the rail as a caution signal to any following train.
“Should the flagman be recalled before reaching the required distance, he will place two torpedoes on the rail, on the engine-man’s side, ten yards apart' (one rail length) and immediately return to his train, unless an approaching train- is within sight' or hearing.
1 ‘ If from any cause the speed of the train is reduced, the conductor will be held responsible for fully protecting the rear of the train by use of proper signals.
“If the accident or obstruction occurs upon single track, and it becomes necessary to protect the front of the train, or if any other track is obstructed, the front brakeman must go forward and use the same precaution. If the front brakeman is unable to go, the fireman must be sent in his place.
“Rule 100. Freight trains having work to do on any other track may cross over if no passenger train is due, provided no approaching freight train is in sight; and also provided that the flagman has been sent out in both directions with danger signals, as provided in rule 99.
“Rule 102. When it is necessary for a train on double track to cross over to the opposite track, a flagman must be sent out in both directions with danger signals, as provided in rule 99.”

Van Glahn failed to take the precautions required of him under the circumstances, by these rules. It is suggested that inasmuch as these rules had been disregarded on some occa_sions to the knowledge of persons having superintendence of the running of trains, they might be regarded as having been thus abrogated. But the second paragraph of the syllabus in the case of The New York, Chicago & St. Louis Railroad Company v. Ropp, 76 O. S., 449, shatters this contention. It reads:

“The failure to obey any such rule is not excused by the presence or consent of another servant of the master, who is superior to the servant who agreed to obey such rule, when the superior servant is not authorized to represent the master in the making or changing of rules or contracts; and failure to obey the rule under such circumstances is negligence per se.”

The claim of liability realty relied on, however, is stated in defendant in error’s brief as follows: “The negligence in this case was the despatching of Stark out of Graytown at 6 :10 a. m. when he knew or ought to have known that Van Glahn had an order to come up on the east bound track, and in not notifying Stark, as he says he might have done, five minutes before the accident. ’ ’

The case was in fact submitted to the jury and they found their verdict for the plaintiff below, upon the sole issue as to whether, under the circumstances of this case, the order, given by the despatcher to Van Glahn as above quoted, was reasonable or unreasonable. The jury found that it was unreasonable. It is in proof that the order was in the customary form. It expressly required Van Glahn to protect himself against all trains. The rules of the company binding upon all its employees specifically provided in what way such protection should have been insured by him. TIis failure to observe those rules was thus the sole cause of the accident, and inasmuch as Van Glahn and Stark were fellow-servants, no liability arises. The company did its part, when it provided, as it did, adequate rules and appropriate orders to meet such emergencies as arose when it became necessary for Van Glahn to detach his engine from the west bound train and proceed over an east bound track to a station east of where his train was lying, in order to obtain water. Having done its full duty in the premises, the company is not liable to Stark’s administrator, although it is conceded that Stark himself was wholly without fault.

For error in refusing to instruct the jury as requested by plaintiff in error and to direct a verdict for the defendant, the judgment of the court of common pleas is reversed, and because we see no possibility of a retrial of this case bringing out any facts which could vary this res’ult, we proceed to render here the judgment which the court should have rendered in favor of the defendant below.