text:
    ESTOPPEL AGAINST CONTEST OF A WILL.
    Circuit Court of Richland County.
    Flora Leedy v. R. H. Cockley et al.
    Decided, January 25, 1911.

      Wills — Devisee in Possession Estopped from Contesting, When — Leasing and Collection Of Bents from Land Devised — Contest of a Will Not a Proceeding to Quiet Title — Section 12010.

    1. A daughter who went into possession of land devised to her by the will of her father, and leased the land and collected the rents under the lease frem the date of the probate of the will, is estopped thereby from contesting the validity of the will; and having full knowledge of the condition of the estate and,the terms of the will she can not raise the bar so erected by a surrender to the executor of the rents received, cr by bringing the money into court, but the acceptance of the devise remains an absolute bar to a contest by her of the validity of the will, and where such an action has been brought by a devisee so situated its dismissal by the trial court is not error.
    2. One who- has no legal pecuniary interest in an estate in case of intestacy, and who under a will has only the interest of a remainder-man, is a necessary party defendant in an action to contest the validity of said will, but has no such interest as will permit him as such legatee to file and maintain an answer and cross-petition to contest the validity of the will, cr to join in the prayer of the petition to have an issue made up; and it is not error for a trial court to dismiss a cross-petition filed under such, conditions.
    3. An action to contest a will can not take the place of a proceeding to quiet title under the statutes of this state.

      C. H. Workman and W. S. Kerr, for plaintiff.

      O. M. Farber and A. A. Douglass, for defendant.
   Per Curiam

(Taggart, J., Yoorhees, J., and Powell, J.)

The plaintiff in error, Flora Leedy, files an amended petition in error, making Rollin II. Cockley, executor and trustee of the will of Eliza J. Young, deceased, F. M. Hess, administrator de bonis non with the will annexed of the estate of David L. Young, deceased, Harry Leedy, Clyde Leedy, Jay Leedy, Mary Alice Leedy, Mrs. Elsie 'True, Romilda Leedy Edwards and Levi Young, defendants in error.

By this petition in error she seeks to reverse the judgment of the court of common pleas in an action pending in that court wherein the parties herein were parties in that court. The defendants in error, Harry Leedy, Clyde Leedy, Jay Leedy, Mary Alice Leedy and Mrs. Elsie True and Romilda Leedy Edwards, file a cross-petition in error and seek the same relief. The defendants, Rollin H. Cockley, eexcutor, etc., and Frank M. Hess, administrator, etc., file motions to' strike from the files the cross-petition in error of the'defendants, Harry Leedy et al. The grounds of the motion are that the cross:petition in error was not filed within four months from the rendition of the judgment in the court of common pleas; second, that the said Harry Leedy et al neither jointly nor severally have such an interest in the estate and will of D. L. Young as to entitle them either to file said cross-petition or to maintain the same in this court; and third, because the said Harry Leedy et al neither jointly nor severally have such standing as entitles them in law to test the validity of the will.

The matter in controversy had its origin in the court of common pleas by Levi Young and Flora Leedy filing in that court a petition to contest the last will and testament of David L. Young. Levi Young and Flora Leedy were children of David L. Young. The widow was Eliza Jane Young. The case proceeded with varying fortune, motions, applications for leave to file amended petitions, until July 19, 1909, when the plaintiffs herein got leave to file an amended petition within thirty days, and make Levi Young a party. Just why this action was taken, when Levi Young had been a party plaintiff in the case, is only explained by the entry of the court on that day, wherein it is recited in the journal entry that Levi Young had withdrawn as a plaintiff in the ease and that Flora Leedy is the only remaining plaintiff.

. We call attention to this fact as the question is made as to Levi Young being a party to the suit. He was a party at the outset and remained a party by his appearance in the ease. This is further shown by the action of the court on March 5, 1910, wherein Levi Young prays that he may be permitted to withdrawn his separate answer in the above entitled cause, filed in this court October 9, 1909, and refiled November 17, 1909, and the said answer of Levi Young is hereby withdrawn.

It would thus appear that, so far as Levi Young is concerned, from the filing of the petition February 1, 1908, down to March 15, 1910, Levi Young was at all times a party to this suit, first, by his own appearance as plaintiff in the case; and second, by his appearance in the action, filing answers and motions to withdraw the same.

The ease finally resulted in a third amended petition being filed herein in which Flora Leedy was plaintiff and the widow, Eliza J. Young, and the children of Flora, who Were given an estate in remainder in certain real estate in the state of Iowa, were also made parties defendant, and Hess and Cockley and Levi Young were defendants.

The plaintiff alleged that the paper writing which had been theretofore admitted to probate, purporting to be the last will and testament of David L. Young, deceased, was not the valid last will and testament of the said David L. Young, and prayed that the issue be made up, and that it be declared not to be the valid last will and testament of the said David L. Young, deceased.

The defendant, Cockley, who was the executor and trustee of Eliza Young, who had deceased, filed an answer admitting the probating of the will and substantially admitting the relationship of the parties, and for a second defense setting out the fact that the plaintiff, by the terms of that will, was given the use for life of a certain farm situated in Dallas county, Iowa, of the value of between $16,000 and $20,000, and that immediately on the death of the testator the plaintiff, with full knowledge of the provisions of the will, entered into possession of the Iowa land, and has since been and is now in possession of the same, that received the rents and profits of the same, and that, in consequence of the reception and retention of said property, plaintiff can not now institute and maintain this action to question the validity of the will.

A similar answer was interposed by Hess.

Amended replies were filed to these answers, but it is only necessary to state that she claims that she did not enter into possession of the lands with full knowledge of all the facts concerning the condition of the estate, and that, in consequence of some representations, she simply accepted such issues and profits which she tenders into court “and relinquishes all her right to the future rents and issues of the farm, and each and every right and interest in said estáte she had received or- would in any way receive by virtue of the provisions of said pretended will.”

A jury was impanneled and, at the close of the evidence, the court withdrew the same from the consideration of the jury on the facts, and held and determined that the plaintiff could not maintain this action to contest the validity of the will, and ordered plaintiff’s third amended petition to be dismissed and rendered judgment against her for costs. To all of which plaintiff at the time excepted.

It then appears from the record that the plaintiff filed her motion for a new trial in this action; that the defendants, Harry Leedy and others, also filed a motion for a new trial, and that Levi Young filed a motion for a -new trial. It is not necessary to consider the motion of Levi Young, for he is not a plaintiff in error in this case.

The questions that are made in this case are: Was the court in error in its judgment in not submitting this case to a jury under the facts as shown in this case ?

It appears from the record in this' case that Flora Leedy did, in fact, upon the death of her father, D. L. Young, enter into the possession of the real estate devised to her, and has been in possession .of the same at the time and during the times she has instituted and was attempting to carry on this suit; that not until answers were filed in the case alleging these facts, did she attempt to make restitution or dispossess herself of the rights so her possession is by virtue of the said will, and that she has conferred upon her by this will. Now, we think it was too late. ITad this been a money legacy, there are authorities that indicate that she might possibly have dispossessed herself of any benefit so bestowed upon her by the will, and made restitution, but in the case at bar, it appears that she not only received the rents, issues and profits, but that she created a leasehold on the estate which was outstanding at the time she was attempting to ma.ntain this suit.

It does not appear that she ivas misled as to the condition of this estate by any one authorized to represent matters concerning its status. There nowhere appears in this record that she did not have the means of knowing. True, it is said that there was no inventory filed until more than a year after the death of the testator, but nothing appears to indicate that she could not have informed herself fully as to her rights under the will, as to her rights as legatee and heir, to compel full disclosure as to the situation and condition of the estate, so that, with the means at hand of ascertaining the condition of the estate, and perhaps with full information as to the condition of the estate, she went into possession of the benefits conferred upon her by the will of her father, and we think that she can not now be heard, after having taken this decisive step, to occupy a distinct and antagonistic position to that which she has taken.

This being so, so far as she is concerned, we think the court was right in holding that, under the facts as shown in the record, she could not institute and maintain an action to contest the will of her father.

But not only did the court dismiss this action as against Flora Leedy, but it dismissed it as against the cross-petition of the defendants.

The cross-petitioners in the court below were the children of Flora Leedy, the remainder-men of the estate which was bestowed upon Flora Leedy for life, and at her death, upon Harry Leedy and the other cross-petitioners in remainder.

Now, it is contended that these defendants, who are necessary parties to the contest of the will, had a right to file an answer and cross-petition, or a cross-petition in the ease, seeking the same relief that the plaintiff, Flora Leedy, was asking for. We are cited to Section 5858, Revised Statutes (General Code, 12079) :

“A person interested in a will or codicil admitted to probate in the probate court, or court of common pleas on appeal, may contest the validity thereof in a civil action in the court of common pleas in which such probate was had.”

Section 5859, Revised Statutes (General Code, 12080) :

“All the devisees, legatees, and heirs of the testator, and other interested persons, including the executor or administrator, must be made parties to the action.”

It is now contended that the terms of these sections are so wide as to include any person interested in a will, and then it is argued “surely devisees aré interested in the will or codicil and, therefore, they could contest the same.”

It was held by this court and afterward affirmed by the Supreme Court, that a creditor- of an heir might contest a will, but we can not see upon what basis or foundation these devisees who have the estate in remainder, could possibly be said to be interested in the will so that they might contest the same. They could not receive any advantage-were they successful in the contest. They would simply deprive themselves of all right or benefit; that wmuld accrue to them by virtue of the provisions of the will; and we do not conceive that a will contest can take the place of a proceeding to quiet title so that they could contest the will, and by a moot court proceeding secure a judgment that it was the valid last will and testament for the protection of their title. Time would ripen their title so that they could not be interfered with in their rights under the will.

We are clearly of the opinion that they are not “persons interested in the will, who would be authorized to contest the will, and that, therefore, the court was right as against these persons filing the cross-petition in the court below, holding that the contest should no.t proceed but be dismissed as to them.

It further appears, however, that they can not secure a. reversal of the judgment of the court below because they took no exception to the action of the court in dismissing the petition, and while they may have filed a motion for a new trial, yet exceptions must be entered at the time the action of the court was had.

So that we find no error in the action of the court in dismissing the proceedings in the court of common pleas as against the cross-petitioners or any of them.

As to the motion that was filed in this court to dismiss the cross-petition in error of these remainder-men, we do not deem it necessary to pass on the same in the view that we take of this case. We think that the affirmance of the judgment of the court below is decisive of the rights of the parties, and the judgment of the court of common pleas is affirmed with costs and the cause remanded for execution.

Exceptions may be entered on behalf of the plaintiffs in error and the cross-petitioners in error. Exceptions may be entered in behalf of the persons filing the motion to dismiss the cross-petition in error.


source: Caselaw Access Project

license: Public Domain

text:
    LIABILITY FOR. DAMAGES FOR CAUSING A HORSE TO RUN AWAY.
    Circuit Court of Hamilton County.
    Cincinnati Traction Co. v. Kunie Frank.
    Decided, April 15, 1911.

      Negligence — Horsq Frightened by Snow Sweeper Operated by Traction Company — Question of Negligence of the Company Should be Determined by the Jury.

    Whetlier a traction company is liable for damages resulting from the frightening of a horse by the unexpected starting in the street of a snow sweeper, which made a loud and unusual noise and fi.led the air with snow in the direction in which it was operating, is a question to be determined by the jury under all the circumstances of the case.

      Kittredge, Wilby <& Siimson, for plaintiff in error.

      Th'os. L. Michie and C. L. Swain, contra.
    There was a recovery below by the defendant in error in this case of $2,500, which was reduced to $2,000 in the court below.

      Jones, J.; Smith, P. J., and Swins, J., concur.
   The evidence in this case shows that defendant in error was, at the time of the accident, driving south on Reading road in Cincinnati in a market wagon. It was snowing and a sweeper propelled by electricity and equipped with large, cylindrical, revolving rattan brushes was being operated by defendant com-. pany in removing snow from its tracks located on said street. As plaintiff approached, the motorman, on her account, stopped the sweeper and'called for her to come on. Whether she signalled for him to stop or he stopped of his own volition is immaterial. It is evident that from some act of hers or t-he horse which she was driving, he saw fit to stop out of consideration for her safety. The sweepers of this type are only used in time of snow, make a loud, unusual noise, scatter the snow through the air and are likely to frighten horses.

Two eye-witnesses testify that after waiting until Mrs. Frank drove 150 or 200 feet, and when her horse was just opposite the sweeper, it was started causing the horse to run away. She was thrown out of the wagon and injured.

The question of negligence was one of fact and was submitted to the jury, whose verdict was for defendant in error.

We can not say that the verdict was not sustained by the evidence.

Judgment affirmed.


text:
    LIABILITY FOR. DEATH OF A BOY FROM BEING STRUCK BY A CAR.
    Circuit Court of Hamilton County.
    Joseph Fritch v. Cincinnati Traction Co.
    Decided, March, 1911.

      Negligence — Newly-Discovered Evidence "Which is Cumulative Only — • Charge of Court as to Degree of Negligence for Which a Boy May Be Meld.

    In an action against a traction company on account of the death of a boy eight years old from being struck by a car, it is prejudicial error to fail to so modify the usual charge to the jury with reference to negligence as to hold the decedent to only that degree of care and prudence which may he expected from a child of his age, capacity and intelligence.

      Gideon C. Wilson and Horstman & Horslman, for plaintiff in error.

      Kinkead & Rogers, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   The court is of the opinion that there was no error in overruling the motion of plaintiff in error for a new trial on the ground of newly-discovered evidence. The evidence at its best was cumulative, and under the rule laid down in Ludlow’s Heirs v. Park, 4 Ohio, 44. such evidence, while it might induce a different verdict with its introduction, it would not require a different one.

There was no error in the submission of the special interrogatories, nor in the giving of the special instructions asked by defendant in error except special charge No. 2 with reference to plaintiff’s own evidence raising a suspicion that the decedent was negligent himself. We think under the circumstances of this case, the decedent being a child eight years of age, that the charge as given by the court is not qualified sufficiently to place before the jury the consideration of negligence upon his part from the standpoint of a boy of his age, capacity and intelligence. A child is held to such care and prudence only as would be expected from a child of his age and capacity. Railway Co. v. Mackey, 53 O. S., 370; 5 C.C.(N.S.), 321.

We find no other errors in the record, but for the above reason the judgment of the trial court will be reversed, and a new trial granted.


text:
    LIABILITY OF MUNICIPALITIES FOR. DEFECTS IN SIDEWALKS.
    Circuit Court of Trumbull County.
    Mildred Gibbs v. Village of Girard.
    Decided, March 9, 1911.

      Municipal Corporations — Degree of Ciare Required in Maintaining Sidewalks in Safe Condition — Slight Depressions — Reasonable Care on the Part of Pedestrians — Weight to be Given to Evidence of Prior Accidents.

    Reasonable care is all a municipal corporation is charged with in the maintenance of its sidewalks, and it is not liable for slight depressions not exceeding two inches, unless there be something in the condition of the depression specially calculated to cause an injury.

      Pierson <& Casey, for plaintiff in error.

      Theo. Gillmer and Wade B. Deemer, contra.
    Pollock, J.; Norris, J., and Metcalf, J., concur.
   This case is in this court on petition in error to reverse the judgment of the court of common pleas of this county.

The plaintiff in error brought suit in the court below to recover damages for a personal injury she claims to have sustained by reason of a defective sidewalk in the streets of defendant village. She claims that after night, on August 7th, 1909, she was going- north on the west side of State street in said village, at a point between Elm and Cherry streets, and in stepping over a depression of about two inches in the pavement she -fell and was injured. She further says that her injury was caused by the negligence of the defendant in permitting this depression to be and remain in said sidewalk.

To this petition the defendant’s answer is a denial that the street was in this condition, and a denial of any act of negligehce on the part of defendant, and also alleges contributory negligence on the part of plaintiff.

To the latter defense plaintiff filed a reply denying -contribu- ' tory negligence,

In the trial of the case in the court below, at the' close of •plaintiff’s testimony, on motion of defendant the court directed a verdict in favor of defendant, and the sustaining of this motion is assigned as error in this court.

The testimony in this ease tends to show that at the point described in the petition, as you go north, you pass over a concrete pavement, and just north of the concrete pavement is a 'flagstone pavement; that, at the time of the injury claimed the flagstone pavement was two inches lower than the concrete; that tliis depression in the pavement had existed for a long time — at least a year or more; that the plaintiff was a stranger in the village of Girard, and had no knowledge of this depression except what she had or should have had by passing south over it a short time before the accident; that plaintiff, in walking, turned her toes out more than is usually done; that on this night between nine and ten o’clock she was going north over this pavement, and in stepping from the concrete pavement on to the flagstone she fell and was injured; that at the time of the injury it was dark at this point, either because the street lights were not burning, or.from some other cause. There was also testimony tending to show that at least two other persons, prior to this suit, had stumbled over this depression, and that one person had fallen.

. .These are substantially the facts in this case, and a motion to direct a verdict for the defendant was insisted upon in the court jjelow, and is insisted on here, for three reasons:

'".First. That the plaintiff by her own testimony has raised a presumption of contributory negligence on her part.

We think, so far as the contributory negligence on plaintiff’s part is concerned, there was not such a presumption as would have justified the trial court- in directing a verdict.

Second. It is urged.that the testimony in this case fails to ...show any express or implied. notice to .this defendant" of the condition of the sidewalk.

'We think the testimony shows that the depression, had existed for-such. , a .length of time that it was at least a question for the jury to determine whether or not 'the village .h&d constructive notice of the condition of the sidewalk.

Third. That the defect in the sidewalk, as shown by the testimony, is as a matter of law not such a defect that plaintiff can recover, and that the court was authorized as a matter of law to say that the village was not negligent in permitting,such a defect in the street.

This is the real question in this case: Is a court authorized to say, as a matter of law, that a village is not negligent in permitting a depression of two inches in its sidewalk ? ,

It is a duty imposed upon a municipality by statute to keep the sidewalks within a corporation open, in repair, and free from nuisance. Whether permitting a particular defect in a sidewalk constitutes negligence on the ■ part of a village “is a question for the jury, unless the court can say that the defect causing the injury to one using the sidewalk in an ordinary way, could not reasonably have been anticipated from its existence. The law imposes upon a municipality the duty only of using ordinary care to see that its streets and sidewalks are safe for travel, and if it uses this care it is not liable.

“A municipal corporation is charged with the duty of keeping its streets free from nuisance -and in a reasonably safe condition for travel in the usual modes, but it is not an insurer of the safety of persons using them, and when they are in that condition it is not chargeable with negligence, although an accident happens in the use of the streets.” Dayton v. Glaser, 76 O. S., 471.

This was an action seeking to recover damages against; the city of Dayton caused, to one riding in a vehicle in the driveway, ,of the street, by the wheels of the vehicle dropping into ruts that, had been worn in the pavement. The trial court, at the' close of plaintiff’s testimony, made the same order as was made in the case at bar, and such judgment of the trial- court was affirmed by the Supreme Court.

In the opinion in that case the court cite and quote from the ease of Beltz v. City of Yonkers, 148 N. Y., 67, which holds that the city was not liable for an accident which happened on a sidewalk where the depression in the sidewalk was two and one-half inches deep. They also cite the case of Grant v. Town of Enfield, 11 N. Y. App. Div., 358, where-the court reversed a-judgment for error in denying a non-suit where the depression was only three or :four inches deep.. They further cite Morgan v. City of Lewiston, 91 Me., 566, where the court held, as a matter of law, that a sidewalk was' in .reasonably safe condition where at the' junction of two sidewalks at the intersection of two streets there was a depression of five or six inches.

■ In.this case counsel on both sides have been very diligent in citing' 'authorities beáring upon this question. Authorities have been cited where municipalities have been held for defects ■in sidewalks of less than two inches; others .have been pointed out where the defect has been.much greater, and it would be impossible to reconcile all .of these cases..

-.“In the case of Terry v. Village of Perry, 99 N. Y., 79 (92 N. E., 91), they lay down a rule which in a measure tends to distjnguish these cases, or at least distinguish the New York cases.

“A'municipality is not as a matter of law; responsible for injuries arising from slight depressions or difference in the grade in .sidewalks, except.when the depression is peculiar and-specially calculated to result in injury, to pedestrians.”

.We think.this is the true rule which should govern in cases of this kind. Reasonable care does not require the authorities of a municipality to anticipate that injury will occur, to persons walking on the sidewalk, from a slight depression of two inches, unless there be something in the depression peculiarly calculated to cause an injury.

The law does not require perfectly smooth sidewalks, and that the, sidewalk be free from every inequality. Such a degree of bare would be beyond the reasonable requirements on the part of a village, and common observation teaches us that it does .not obtain on the sidewalks in any village.

In this case there was nothing peculiar or special about this depression. The only condition out of the ordinary was,, the testimony showed, that it was dark on the pavement.at this point.

When the' question is debatable whether or not a claimed, defect is negligence,' evidence of prior accidents may be received for -the'purpose of showing that by actual experience the depression was calculated to cause the accident;, but the evidence of .prior accidents can nót' be sufficient of itself to‘sustain .a. charge of negligence, and today the-foundation for damages, because, of the maintenance or mere peculiar construction of the pavement or sidewalk. There must be evidence of such a fundamental condition of things as will at least permit the inference that the party complained of has failed to discharge the duties reasonably and fairly imposed upon him by law. Gastel v. City of New York, 194 N. Y., 15 (86 N. E., 833); Terry v. Village of Perry, 99 N. Y., 79 (92 N. E., 91).

In this case the depression was in a public street. There was nothing peculiar or special about it. At the north edge of the concrete pavement the flag pavement had either been laid or had sunk two inches lower. It was a public street where there was much travel every day, and it had been there for some time. The mere fact that three persons, prior to this accident, had stumbled or fallen would not be sufficient to draw the inference that it was peculiarly dangerous.

The court below held as a matter of law that this sidewalk was in a reasonably safe condition, and in so holding we find no error.


text:
    FIXING VALUES IN A CONDEMNATION CASE.
    Circuit Court of Hamilton County.
    The Union Grain & Hay Co. v. The City of Cincinnati.
    Decided, March, 1911.

      Eminent Domain — Independent Judgment of Jurors as to Value May Be Applied With the Evidence — Only Prejudicial Error Considered on Review.

    In fixing the value of property in a condemnation suit, the jury in .considering the evidence tefore them may also apply their own sound judgment as to value, and where it does not appear that the jury acted on any wrong basis or with partiality or bias their verdict will not be set aside except for prejudicial error. .

      Littleford, James, Frost & Foster and C. W. Baker, for plaint-. iff in error.

      Albert II. Morrill, contra.

      Smith, P. J.; Swing, J., and Jones, J., concur.
   Notwithstanding the alleged errors claimed to have been committed at the trial of the above ease we are of the opinion that the same are not prejudicial. We have caréfully examined the record and believe that the finding of the jury is in conformity with the evidence in the case.

In considering the fair market value of the property sought to be condemned, the jury may not only resort to the evidence before them, but may consider also in connection therewith their own good sound judgment as to the value.

The rule seems to be that when it is not fairly evident that any substantial injustice has been done, the proceedings of a jury will be affirmed; the presumption being that the jury took into 'account all facts bearing on the question of damages, and that there was no bias on the part of the jury that stood in the way of .a fair verdict (Mills on Eminent Domain, Section 259). Such findings should not be set aside except on good cause, but not because the parties are dissatisfied with the amount recovered.

In the examination of this record, we do not think the jury in determining the value acted upon a wrong basis, or from any partiality,' bias or prejudice, nor .are any of the errors of which complaint is made of such character as would furnish any inference of the existence of such influence.

It is not for us to say whether plaintiff in error was entitled to more compensation than that allowed by the jury. This was the sole question to be determined by it, and as we think the same is fair, the judgment of the court below will be affirmed.


text:
    ACTION FOR DAMAGES WHERE A RELEASE IS PLEADED.
    Circuit Court of Franklin County.
    Nelson P. Robinson et al v. Cornelius V. Easton.
    Decided, February 7, 1911.

      Release — Pleaded in an Action for Personal Injuries — Tender Back of Amount Received Not Necessary, When — Releases which are Void and Those which are Voidable Only — Negligence—Weight of Evidence.

    1. Where, in an action for damages for personal injuries a release is pleaded by the defendant and the plaintiff denies in his reply that he ever entered into such a contract of release, the plaintiff is not bound to tender back the amount paid to him by the defendant in consideration of the alleged release.
    2. A claim that the injuries received were due to the breaking of a chain which contained an open link, of which the defendant is alleged to have had knowledge and the plaintiff supposed had been repaired, raises a question of negligence which is peculiarly within the province of the jury, and where the testimony tends to support the claim a determination by the jury in favor of the plaintiff will . not be set aside on the weight of the evidence.
    Rockel, J.; Dustin, J., and Allread, J., concur.
   The plaintiff below brought an action against the defendant below for damages alleged to have occurred by the falling of a derrick upon the plaintiff, whereby the plaintiff was injured, said derrick having fallen by virtue of alleged negligence of the defendant below in not repairing or, having a proper guy.

To the petition the defendant filed an answer of general denial and also alleged contributory negligence, and as a third defense set up the following:

‘ ‘ That before this action was brought and that no alleged cause of action having accrued for plaintiff’s said injuries, to-wit, on the 4th day of February, 1907, these defendants paid to the plaintiff herein in compromise and satisfaction of any and all claims or causes of action arising out of said injuries, the sum of $29.25. That said plaintiff accepted the same in full satisfaction and discharge of any and all claims or causes of action arising out of his said injuries; that said plaintiff executed and delivered to defendants a release in writing, a true copy of which is as follows: ‘Received of the Columbus Hoop Company this 4th day of February, 1907, the sum of $29.25 in full satisfaction and discharge of all claims accrued or to accrue in respect of all injuries or injurious results, direct or indirect, arising or to arise from an accident sustained by me on or about the 15th day of January, 1907, while in the employment of the above.
“ ‘Witness: C. Y. Easton.
“ ‘Winifred Altwater,
“ ‘Address, 276 E. 11th Avenue.’ ”

To this answer plaintiff filed a reply admitting that on or about the 4th day of February, 1907, he signed some instrument of writing and admits that he received about $29.25 at said time Plaintiff denies that he ever agreed to accept said money in full satisfaction and discharge of any claims or causes of action arising out of said injuries, and alleges that if the said writing which he did sign purports to be a receipt in full satisfaction and discharge of any or all claims for causes of action arising out of his said injuries, he was ignorant of that fact; that his signature thereto was obtained by false and fraudulent representations on the part of defendants in this, to-wit:

“That defendants represented to plaintiff that said writing was merely a receipt for wages due him from said defendants: that plaintiff relied upon the said representations, and, believing them to be true, signed said writing without reading the same or knowing what it contained. ’ ’

The case was tried to a jury and a verdict returned for the plaintiff. A motion was made by the defendant for a new trial which -was overruled, and error was prosecuted to this court.

The principal errors relied upon by the plaintiff in error for reversal of judgment are two: The first being that the issue raised by the pleadings upon the matter of the release would not warrant a judgment for plaintiff, because there was no tender pleaded of the amount received in the release, and that neither the pleadings nor the evidence showed that it was that kind of a contract that could be set up as a defense without pleading tender of the money received or having the instrument first reformed by a court of equity.

In the case of Perry v. O’Neil, 78 O. S., 200, we have this in the syllabus:

“A release of a cause of action for damages for personal injuries that is void is not a bar to such an action, and the plaintiff may, if it is set up by answer as a bar to his right of action, by reply, aver the facts that make it void. But if it is not void but only voidable, he can not maintain his action until the reléase is set aside.”

This decision of the Supreme Court is unfortunate in not making clearer what is intended to be. included or necessary to constitute a void contract within the language of the syllabus. That it might be meant to include such a contract as the one under consideration, even though it were not what is ordinarily considered as a void contract is borne out from the opinion in the case as well as the construction that has been given thereto by other courts.

In the case of Railway v. Coleman, 12 C.C.(N.S.), on page 500, in considering a ease somewhat similar to the one at bar, we have this language of the court:

“If what I have read were established, it would appear that the release was absolutely void. If it were true that Coleman at the time was unable to read by reason of these injuries to his eye and if he was deceived by Mr. Latta, his superior in the employ of the company, as to the contents of the paper, if he signed the paper under such circumstances, supposing it to be one thing whereas it was an entirely different thing, that is to say, a mere matter of form that he must sign before he can work again, whereas it was a release of all claims against the company, if his signature was obtained under such circumstances and by such method, the release would be absolutely void, and under the authorities this issue of release might be- raised by reply setting forth the facts showing that the release was void. ’ ’

So, we are constrained to believe that what was intended by the Supreme Court was, that if the contract were such, in this kind of eases, that a court of equity could or would set it aside, that the defense could be made that the contract was invalid without pleading a tender of the money received. The case in the 12th Circuit was affirmed without opinion by the Supreme Court. That this was the idea that pervaded the mind of the judge rendering the opinion in 78 O. S., 209, is clear from this language:

“If a party suing to recover for personal injuries admits the execution of a release and seeks to avoid it on equitable grounds, he must obtain that relief to maintain his action, when he denies the execution of the release, or that it is his act, on the ground of want of mental capacity at the time he signed it, or that his signature to the release was procured by fraud, such as misreading, the surreptitious substitution of one paper for another or obtaining by some other trick or device an instrument which he did not intend to give, he may maintain his action without obtaining a decree. In other words, if the release is void, he may ignore it in his petition, and if it is plead as a bar in the answer, he may in his reply plead the facts that make it void; if it is not void but only voidable, he must, to maintain his action, obtain its rescission or cancellation. ’ ’

And quoting further,, he says (p. 210) :

“At common law it has often been held incompetent to a defendant suing at law on a specialty to plead that the instrument was obtained by false representation: it is a case, it is said, for equity alone. It is clearly otherwise of the execution of the instrument, as where the bond is misread to the obligor, or where his signature is obtained to an instrument which he did not intend to sign. In such cases fraud may be alleged at law. ’ ’

In this opinion a large number of cases are given and quoted from where a release has been set aside without pleading tender of money received. In the case at bar, it was shown by the testimony that during the time that the plaintiff was confined to his home by reason of the injury suffered in the accident, that the defendant gave some money to his wife and also furnished him some coal; that when the plaintiff got so he could be on his feet, although suffering considerably, he went to work again. After he had been at work a few days, the defendant called him into the office and while the plaintiff was there sitting by the fire to get his feet warm, the defendant came in and called to the plaintiff and said to him something about the money that “we have paid you”; that defendant hesitated a few moments, and that plaintiff said that, “I can’t pay you-all at-one time. You will have to take it out a little at a time until I get you paid as my wages is not large enough that I could pay it all at one time.” “Well,.” he says, “As far as that is concerned the only thing we want is something to show where the money has went, and we have prepared a little receipt here that we would like for you to sign so as to make us good.” Plaintiff spoke up and said, “Alright.” Defendant turned to Altwater, his son-in-law, and said, “Winifred, get that paper.” He got the paper, put it on the writing desk, dipped the pen in the ink, and handed it to plaintiff, who signed it.

Plaintiff says that he understood that this Was for money that had been advanced in the past, and that he thought for lost time, that they would keep him' on the pay-roll during the time that he had been laid off by reason of the accident. He denies absolutely that it was a receipt to relinquish all his right and claim against the defendant for the injuries resulting from the accident; that he had no intimation or knowledge whatever that the paper he signed was anything more than merely an acknowledgment of the money that had been pgaid to his wife, or for necessaries furnished him and his family during his illness; that he did not read it but relied entirely on the statement that was then made in reference to the character of the paper that he was signing. Whether or not he was fraudulently led to believe that the paper he signed was a different one from what it was, was a question of fact for the jury. The defendant below testified' that he explained to him that it was a release in full.

There are some circumstances, however, which tend to support the plaintiff’s version of the giving of this release, and that is that it was for a peculiar sum, to-wit, $29.25, and that it would hardly be likely that a sum of dollars and odd cents would be given for a release in full of injury, and that it was probably what plaintiff contended, a mere release or receipt for the money that had already been paid, and, as he claimed, was requested by the defendant below for the purpose of showing on their books or something of that character.

Both, by the pleadings and the evidence in the case at bar plaintiff denied absolutely that he made or entered into a contract releasing the defendant from liability for the injuries that he had received, and that in fact no contract of that kind had ever been entered into, and as no new inducement was, even by the admitted facts, given him to sign the paper he did sign, other than the' mere extinguishment of a past obligation, it might be in fact held that no consideration moved to him for the execution of the release. Other states have held that releases might be set aside or held for naught in such actions without pleading a tender. A very strong case is that of Chicago Railway Company v. Lewis, 109 Ill., 120, where it is said:

‘ ‘ If such a release is procured by fraud and circumvention, it will be void as to the party so induced to execute the same. Fraud vitiates everything it touches, and a party will not be allowed to avail of an undue advantage obtained over another by fraudulent purposes. ’ ’

In Cleary v. Municipal Electric Light Co., 19 N. Y. (Supplement), 951, is a case very much similar to the one at bar. Here it is said:

“A release from liability for personal injury signed by. the injured employe under his statement that it was a mere receipt for wages or gratuity is no bar to a future action. ’ ’

In the opinion, it is said:

‘ ‘ Therefore, in this case, if the plaintiff had admitted the compromise or his execution of the release, but claimed that he had been indued to make the compromise by fraud, duress or imposition, he would have been bound to return the consideration received before he could maintain the action. But that was not the issue in the ease. Plaintiff did not seek to avoid the contract of compromise. He denied making any such contract. ’ ’

So, in the case at bar, the plaintiff denied that he made any such contract, and we think, therefore, that the plaintiff was not bound to tender a return of the payment made.

The plaintiff in error contends this ease is controlled by Manhattan Insurance Company v. Burke, 69 O. S., 294. But the decisión in the case is on a different state of facts, as the following from the opinion indicates, p. 307:

“There being in this ease a controversy between the parties, a disputed claim which the parties, being sui generis at the time deliberately settled, the one executing a full and sufficient release, intending to do just what he did do, and the other paying a money consideration therefor, the release whether obtained by fraudulent representations or not is binding until set aside, either by a tender or return of the money received, or by a direct proceeding in equity for that purpose,” etc.

In the ease at bar there was no dispute or controversy between the parties. The plaintiff below had made no claim for injuries. There was no dispute or controversy about anything. The plaintiff did not intend to do what the release purports. Neither is the case at bar similar to Conrad v. Keller, 12 C.C.(N.S.), 126; 8 N.P.(N.S.), 535. In this latter ease there was a settlement, although it was fraudulently entered into. In the case at bar plaintiff denies there ever was a settlement, concerning his injuries, and the evidence seems to sustain his contention. The admitted settlement is upon another matter, to-wit: money paid previously on wages or furnished as a gratuity.

Upon the second question as to whether or not the verdict is against the manifest weight of the evidence, we think it is not. The evidence clearly shows that the accident was caused by the breakage of the chain which was attached to a cable or guy and extended from the cable or guy to the derrick pole, and was a means of fastening the guy to the pole. This chain was several feet in length and the cable or guy was for the purpose of giving support to the derrick. On the day of the accident the plaintiff was working at a windlass or something of that character at the derrick pole, and this was used to raise logs and place them in different positions. A few days before the time of the accident, according to the plaintiff’s testimony, he had learned that there was an open link in this chain and called attention to the fact that the fastening of this guy to the derrick pole by means of this chain, etc., was dangerous and unsafe, and that the defendant promised to fix the same. Plaintiff was then laid off a day or two and when he came back to work he assumed that as the defendant had promised to fix the. same, that it had been fixed. This pole was some thirty-five or forty feet high, if we remember right, and the chain being at the top of the pole, the plaintiff could not by observation have seen whether it was fixed or not.

The defendant denies this matter as to his being informed of its defective condition and his promise to remedy it. Defendant further contends that the plaintiff was guilty of contributory negligence — that the log the men were moving at the time the cable gave way was a large one, and that he had instructed the men working at the same to saw it in two before they attempted to move it.

The plaintiff denies that he heard any such conversation, and from the work that he was doing at the time the accident occurred it is not clear that he had much to do with selecting the log or fixing the fasteners thereto.

We think the evidence clearly shows that the accident was caused by the breakage of this chain, and that the breakage did occur by reason of this open link pulling apart and breaking. Slater’s testimony is clear upon this question, and there is no testimony that shows the contrary. The question of negligence is one which is peculiarly within the province of the jury to decide, and we are not able to say that the verdict of the jury is against the manifest weight of the evidence or that the judgment is contrary to law.

We, therefore, find no errors of record prejudicial to the plaintiff in error, and the judgment of the court below is affirmed.


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    RIGHT TO TRIAL BY JURY.
    Circuit Court of Hamilton County.
    Security Insurance Co. v. Michael et al.
    Decided, March, 1911.

      Constitutional Law — An Invalid Statute Relating to Jury Trials — Demand for a Trial by Jury Not Waived, When — Actions at Law and in Equity.

    1. The filing in an action at law for money of an answer which is no more than a defense to the petition does not change the action to one in equity.
    2. Section 11466. providing when a jury shall be deemed to have been’ waived, pertains to a subject of a general nature, and is rendered invalid by reason of the fact that by its terms it applies to Hamilton and Cuyahoga counties only.
    3. It is error to refuse a demand for trial of an issue of fact to a jury, where there was no other reason for the refusal than that the demand was not'made until the trial had begun and was apparently made for purposes of delay.

      J. Louis Kohl, for plaintiff in error-.

      C. A. J. Wallcer, contra.
    Swing, J.; Smith, P. J., and Jones, J., concur.
   The case went to trial in the court below on the answer and cross-petition of Michael, the insurance company having dis-, missed its petition. This petition was by consent of parties then" filed as an answer to the answer and cross-petition of Michael, which petition was for money only. The answer of the insurance company was nothing more than a defense to Michael’s petition for'money and could not in any way change Michael’s action, which was one in law, to an action in equity The case waS therefore one to be tried by a jury unless a jury was waived. 11379, General Code.

Section. 11466, General Code, by its terms applies to Hamilton and Cuyahoga counties .only. Its subject is of a general nature and it should apply to all the counties of the state and have a uniform operation. For lack of uniformity of operation we think the law is invalid.

The Security Insurance Company demanded a trial by jury, which the court refused to grant. We are unable to see how this right of trial by jury can be held to have been waived by the consent of the parties in this case. After 'the trial was commenced the jury trial was demanded. The real purpose of the company may have been for delay, but in ■demanding trial by jury the company insisted only on having the trial in accordance with the terms of the statutes, and the purpose with which it was made can not affect the right. The insurance company went further than the requirements of the statute. The language of the statute is that it shall be tried by a jury unless a jury is waived.'

No doubt a waiver of trial by-jury may be done without an express waiver, but here a jury trial was insisted on.

In denying to the insurance company a jury trial we think the court committed error, for which the. judgment should be reversed. . ' ■ .


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    LIABILITY OF RAILWAY COMPANY FOR. MAINTENANCE OF DITCH.
    Circuit Court of Richland County.
    The Sandusky, Mansfield & Newark Railway Company v. Anna Henry et al.
    Decided, September, 1910.

      Contracts — Release of Railway Company from Obligation to Maintain Ditch — i'Error in Tahing Case from Jury.

    1. In an action for damages by an abutting property owner against a railway company, based upon failure of the company to con■struct and maintain a ditch and dike along the right-of-way granted by the plaintiff and in accordance with a contract entered into when said right-of-way was granted, the question whether the building with the consent of the plaintiff of a county ditch over and along the ditch in controversy had not carried a large amount of water to that point which did not naturally flow there, is one which should he submitted to. the jury.
    2. - Moreover the construction of a county ditch, over and along the ditch which the defendant company had agreed to open and maintain, released the railway company from further obligation under its contract to open and maintain the ditch alleged.

      Cummings, McBride & Wolfe, for plaintiff in error.

      C. H. Workman and B. E. Hutchinson, contra.
    Taggart, J.; Donahue, J., and Voorhees, J., concur.
   This is the second time this cause has been in this court upon error. The original action out of which this proceeding grows was brought by Anna Henry, widow of Benjamin Larimer, and Fayetta F. Larimer for herself and as guardian of Blanche Larimer, child of Benjamin Larimer, to'recover damages from the defendant railroad company for failure to maintain a ditch and dike along its right-of-way, adjacent to the real estate owned by 'said plaintiffs, which it is claimed the defendant company, as a part consideration of the grant of said right-of-way, agreed and contracted to do with the then owner, Robert Larimer, said contract being a covenant to run with the lands,

The defendant for a first defense admits it is a corporation and denies the allegations in the second amended petition, and for a second defense says in effect that in 1892 the board of county commissioners, in a proceeding on the petition of J. R. Crabbs et al, established a county ditch over and along said premises and over and upon a ditch opened by it along its right-of-way; the same being the ditch referred to in the plaintiffs’ second amended petition. And that by means of said ditch, so constructed by the board of county commissioners, a large territory of land was drained of waters that did not naturally flow into the ditch opened by the railroad company.

In the establishment of such ditch the predecessors in title of the lands now owned by plaintiffs were duly notified and assessed for benefits and paid the same; that this ditch has been, since that time, cleaned out by the county commissioners upon petitions filed for that purpose. That at each of said times, the parties owning plaintiffs’ land were assessed and paid the same, and that by reason of the establishment of said county ditch, over and along defendant’s ditch, by reason of the fact that .waters from a large acreage of land is now drained thereto, but did not formerly naturally flow to that point, they are not compelled by this contract set forth in plaintiffs’ petition to further maintain said ditch or dike. '

They further aver that the plaintiff, Anna Henry, was in possession of this land and entered into a contract with the commissioners, and other land owners, for the purpose of having the same tiled or partly tiled and agreed with other land owners that, if the commissioners would appropriate one hundred dollars for that purpose, she and the other land owners would keep said ditch open and in repair.

When this cause was first before us it was reversed by this court for the reason that a demurrer had been sustained to the second defense. We are still of the opinion that this second defense is good and ought to have been submitted to the jury, and that the court erred in its charge in taking the same from the jury.

First, the contract relied upon by plaintiffs provides that the ditch and dilie shall be maintained sufficient to drain and confine the waters naturally flowing thereto. The claim of the defendant is that there is a large amount of water now carried by this artificial ditch, and other ditches, to this point that did not naturally flow there, and therefore it could not be compelled under its contract to maintain a ditch and difee that would tafee care of all this additional water, nor keep in repair a dike that might be washed or injured by this additional water.

This was denied; it was a question of fact for the jury, and if the jury had found upon this issue in favor of the defendant,, the plaintiff could not recover for damages suffered from the overflow of these additional waters.

So, in this respect, it clearly appears that the court was in error in directing the jury to disregard the second defense, as appears on page 176 of the charge.

But this court is of the opinion that when the county commissioners established a county' ditch over and upon the ditch which the .owner of this land had contracted to be opened and maintained by the railroad company, that owner acquiescing therein, and paying his share: of the costs, the railroad company was thereby released from further obligation under this contract.

The plaintiffs’ predecessor in title must have known at the time that this county ditch was' established, that the land occupied by it must be appropriated by the county for that purpose and, that the county commissioners would have charge of said ditch; that it would be cleaned and kept open only in the maUner provided for by law; that if additional waters were to be conducted to this ditch it would bring additional debris and deposits into the ditch and require additional labor and expense in removing the same, all of which was not epntemplated in the contract of the railroad company. And by paying the assessment without protest or complaint .or in any manner that appears from the record, or advising the commissioners of his contract with the railroad company to maintain such a ditch, the owner of the .land must be held to have admitted that the construction of such a ditch was a .benefit to his land, over and beyond the benefit secured to him by the contract of the railroad.company. Otherwise,- he should not have been required to have paid any part of the cost of the construction of the same. And the same is true as to cleaning - out of this ditch. The owner of this adjacent land was assessed for the payment of the same; so that it clearly appears that for years the owner of this land recognized that the obligation of the company was ended and that thereafter the county would be compelled to clean and maintain this ditch, and for that purpose had the right to assess adjoining proprietors.

In order that defendant in error may test this question in the Supreme Court of Ohio, we are disposed to hold that this judgment is contrary to law, instead of holding that it is against the manifest weight of the evidence.

Therefore this judgment is reversed for the error of the court in its charge to the jury and because the verdict and judgment of the court is contrary to law. Exceptions of defendant in error may b'e noted.


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    PROTECTION TO A STAKEHOLDER..
    Circuit Court of Richland County.
    Myra W. Swett v. The Mutual Benefit Life Insurance Company.

    Decided, September, 1908.

      Procedure Where Claimants to a Fund Are Not All Before the Court —Cause One of Equitable Cognisance, Notwithstanding the Stakeholder by Filing an Answer Has Tendered Issue — Action by Beneficiary Under an Assigned Policy of Life Insurance — Parties—Interpleader — Multiplicity of Suits — Sections 5006, 5013 and 5016, Revised' Statutes.

    1. Where .two or more persons are severally claiming the same debt or property, and the party who is to pay' the debt or deliver the property makes no claim of title or interest therein, and does not know to which of' the claimants he should pay the debt or deliver the property,' he is entitled to the protection of a court of equity.
    2. Where a policy of life insurance was issued in Michigan, the residence at that, time of both the assured and his wife who was made beneficiary, and an assignment of the policy was afterward made - in Michigan to a resident of Michigan, and the assured died in Michigan, and the policy is still held there, and suit has been brought upon it by the assignee in the federal court in that state, an action brought in this state by the beneficiary, who is now a resident here, will be dismissed without prejudice for failure to make a tona fide effort to bring in the assignee of the policy as a party to the action, and she will be remanded to the Michigan forum for a détermination of her rights.

      Lewis Brucher and B. F. Long, for plaintiff in error.

      John B. Sayler and Cummings, McBride & Wolfe, contra.
    Taggart, J.; Donahue, J., concurs; Craine, J., dissents.

       Affirming Swett v. Life Insurance Co., 8 N.P.(N.S.), 569; affirmed, by • the Supreme Court without opinion, Swett v. Life Insurance Co., 83 . Ohio. St., p. —. • . ,

   This is a proceeding in error prosecuted by the plaintiff in error to reverse the judgment of the court of common pleas.

In the court of common pleas the plaintiff in error filed her petition on a policy of insurance issued by the defendant in error on the life of her husband, Edward R. Swett. The petition alleged the issuance of the policy as of the date of September 4, 1900, while the plaintiff and her late husband were residents of the state of Michigan. She further alleged that on the 24th of October, 1906, her late husband departed this life; that due proof under said policy was given the defendant, all the requirements and conditions of said policy were performed. She averred further that the policy of insurance is not in the possession or under the control of the plaintiff, but that she is informed and believes, and, therefore, avers that the same is in the possession of the defendant, and for this reason she is unable to attach a copy of said policy as an exhibit to her petition. She prays judgment in the sum of $15,000.

This petition was filed on the 24th of April, 1907, and on July 10, 1907, the insurance company filed its answer, in which it admits the execution and delivery of the policy on the life of Edward R. Swett, payable to the plaintiff, if living, upon the death of the insured, and upon due and satisfactory proof of interest and of the death of the said insured, deducting from the policy the indebtedness to the company on said policy, together with the current year’s'premium. The defendant further pleads a provision of the policy that, “no assignment of the policy shall take effect until a written notice thereof be given to the company. ” It then pleads and sets forth a copy of an assignment of a policy to the Hackley National Bank of Muskegon, Michigan, which assignment is signed by the plaintiff and endorsed on said policy of assignment the acceptance of the same by the company and the filing of the same provision that if canceled, the original to be returned to the company.

It farther avers the purpose of this assignment to secure certain indebtedness of $15,000 to the Hackley National Bank, and that it is informed and therefore avers that no part of the same has been paid, and that the Hackley National Bank has made proof of a valid interest in said policy, and has made proof of the death of said Edward R. Swett; that it is entitled to a credit on said policy certain amounts set out in its said answer, and then says that the policy of insurance is held in the state of Michigan under said assignment, and is the same policy and insurance set out and referred to in the petition of p1a.iut.iff

To this answer plaintiff replied .admitting that the policy sued on contained the provision alleged in the answer, and that proof of the death of Swett was made to the defendant, and denies the remaining allegations of the answer.

In her second defense by way of reply, she admits signing the purported assignment of insurance in the county of Muskegon, in the state of Michigan, but avers that the purported assignment by her, as. the wife of Edward R. Swett, was invalid and ineffective to convey any of her interest in said policy, and she sets out what purports to be several sections of the laws of Michigan in support of her claim.

In her third defense by way of reply, she adopts the averments of her second defense, and alleges that the purported assignment was without any consideration.

In her fourth defense, by way of reply, she sets out the alleged indebtedness, which said assignment was made to secure, was renewed from time to time and extensions of time given without her knowledge or consent, and that in consequence thereof the purported assignment is illegal and void and of no effect.

On November 15, 1907, the defendant filed its supplemental answer, in which is averred in brief that since the filing of its. answer the assignee or assignees of said policy, the Iiackley National Bank, and others, brought an action in Circuit Court of the United States for the Western District of Michigan against this defendant on said policy of insurance. It then further says that it disclaims any interest in any controversy respecting the validity of said assignment of said policy of insurance except in so far as this defendant may be protected in the payment of the money on said policy, to-wit, $14,160.46, as aforesaid, to the proper person or persons. It then avers that the said assignees of said policy of insurance “are parties necessary with plaintiff in this case in order, that the controversy herein may be determined, that a determination of the controversy herein can not be made without the presence of said assignees.”

On- March 10, 1908, the defendant by its motion- moved the court for an order requiring the plaintiff to bring in the assignees of said policy as necessary and proper parties to the determination of this case according to the supplemental answer of defendant filed herein, and upon failure or refusal so to do that her action be dismissed.

On May 10, 1908, this motion was heard, and on May 13,' 1908, the court made the order, “whereas, the plaintiff failed to comply with the order of the court heretofore in reference to bringing in -new parties, this case is dismissed without prejudice and adjudged the costs against the plaintiff,” to all of which the plaintiff at the time excepted.

Thereupon the plaintiff below, now plaintiff in error, filed her petition in error to reverse the judgment and order of the court-of common pleas. And the question before this court is, was the judgment and order so made erroneous?

Section 5013 is as follows:

‘ ‘ The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but.when a determination of the controversy can not be had without the. presence of other parties, the court may order them to be brought in, or dismiss the action without prejudice.”

That the court may dismiss a case without prejudice for disobedience by the plaintiff of an order concerning the proceedings in an action is'determined by Section 5314, paragraph 5. But we take it that the order must be one that the court is entitled by (law to make. This brings us to the real question in this, case, did the court of common pleas have the right under the law to require the plaintiff to bring in the assignees of said policy of insurance, and upon default of bringing them in have her ease dismissed without prejudice. It is claimed by plaintiff in error as this was an action at law for money only and as the insurance company had filed its answer tendering an issue that plaintiff was entitled to a trial by a jury on those issues, and the ease was not one of equitable cognizance, neither did it fall within the provisions of Section 5013 or of 5006 of the Revised Statutes.

It is further contended by plaintiff in error that the insurance company, if it desires to protect itself from a multiplicity of suits, its remedy is to be found under Section 5016 of the Revised Statutes, by way of interpleader.

That in the case at bar the action is upon contract, and that if the company is ready to dispose or pay it should come into court under this provision and there find complete protection for itself. It will be noted that when the original answer of the defendant was filed the defendant pleaded a provision of its policy and an assignment thereof to other parties. The plaintiff replied attacking the assignment as being invalid and void; subsequently by its supplemental answer it alleged a demand by the assignees of this policy upon it for payment of the amount due thereunder. It then pleads a disclaimer of any interest in the controversy as to the assignee of the policy or as to the proper payees, .and avers that it is willing to pay the amount of its liability. It will be seen that the company could not avail itself of the provisions of Section 5016, because it had already filed an answer and would be prevented from availing itself of this remedy under the statute.

At the time the motion was filed there was a controversy between the parties to this case. The controversy was in respect to this assignment. The plaintiff claimed the assignment was wholly invalid, nugatory and void. The determination of this controversy as to whether this assignment was nugatory and void or valid and in full force could not be determined, as we view it, without the presence of the assignees of this policy. While •the company, in the case before the court of common pleas, might have gone on and litigated this case, yet it was a controversy purely between the plaintiff and the assignees of the policy. •

By the disclaimer in the supplemental answer, the attention of the court of common pleas was called to the fact that there were matters of equitable cognizance before it.

First. By the accounting of the amount that was due on the policy.

Second. By the fact that there were other parties than the plaintiff claiming the funds or proceeds of this policy.

It did not appear that this was by collusion or through an independent or different contract or arrangement than that by which-the plaintiff claimed to recover. So that several contingencies might arise: the defendant might be called upon to pay this policy twice in certain events, and in certain other events might be relieved from all responsibility.

In the first contingency it would be an inequitable and gross injustice to it. In the second contingency it would be inequitable and a gross injustice to some of the contending parties. Now the Supreme Court in the 14 O. S., 303, Penn v. Hayward et al, thus lay down the rule:

“A court invested with general chancery powers in this state, may decree specific performance of agreements to Convey lands lying in another state, where all the parties, still bound by the agreement, are within the jurisdiction of the court, and have been served with its process.
“But where part only of the persons from whom such conveyance is required, are residents of the state, and the court has not acquired jurisdiction over the persons of the non-residents, so that complete relief can not be had in that suit, the cause will be dismissed; especially where no real necessity exists for trenching upon the rule discountenancing multiplicity of suits.”

Sections 35 and 40 of the code (Sections 5006 and 5013, Revised Statutes), providing for the joining of all persons in interest, etc., and that the court may determine any controversy when it can be done without prejudice to others, are permissive in their nature, except the last clause. They substantially adopt the rule in equity, and the discretion given must be exercised with a view to avoiding multiplicity of suits.

On page 306 the court says:

“The effect of these sections is to vest in the court a legal discretion to say, when and under what circumstances a suit may 'proceed without drawing into its vortex all parties interested in the questions involved in it, if it can be done without prejudice to the rights of others. But this discretion is not an arbitrary discretion. It must be exercised with due regard to established rules; and prominent among these, is the duty to avoid multiplicity of suits, and to obtain a final and complete, determination of all the questions involved in it, with the least delay and at the least possible expense.
“There is much obscurity in the title of the code as to ‘parties to civil actions, ’ owing to the effort to blend, in one system, the rules pertaining to suits at law and in chancery; but the rules of courts of equity will be found to predominate in its provisions. Judge Swan, in his recent and valuable treatise upon the code, .at page 100 says that Section 35 is a substantial adoption of the equity rule, requiring persons whose interests are involved in the issue, and who may be affected by the judgment or decree, be made defendants; and adds as a sequence on the next page, that ‘all parties entitled to litigate the same questions over again in a new proceeding, instituted by them or either of them, are, in general, necessary parties.’ This is not perhaps a logical sequence of the rule as stated; but when considered in connection with the duty to avoid multiplicity of suits, it is believed to be correct.”

In this case the court dismissed the proceedings because all the parties to a complete determination of the case were not before it, and the court could hot grant complete relief.

We are of the opinion that on the filing of the supplemental I answer the court did obtain equitable cognizance and full power 1 to grant complete relief of the parties by making the order that Uhe assignees be brought in to the ease, or that the case be dismissed without prejudice. Section 5016 is not exclusive, but is auxiliary to the practice in chancery respecting interpleader, and Q;ven if tbe matter before tbe court was uot a matter of inter-pleader, it was one of equitable cognizance. Where two or more persons severally claim the same thing, and the party who is to deliver the property not claiming any title or interest therein, himself and not knowing to which of the claimants he ought to render the debt or duty or deliver the property, and may be either molested by action or actions brought against him or fears that he may suffer injury from the conflicting claims he is entitled to protection by a court of equity Q

In this ease the insurance was' issued in the state of Michigan, the alleged assignment was made there, the assured died there, the policy is held there, suit is brought there on this policy, and there is nothing appearing to the court why the plaintiff may not assert her rights in that forum and have them there determined. By so doing no injustice will be done to any of the parties to the controversy, and the rights of all may be protected. This is not turning a suitor out of the courts of this state and requiring her to go to a sister state. (It is simply requiring her to attempt to secure the attendance of the contending party in this jurisdiction, or attempt to have her rights determined in a foreign jurisdiction, where an action is pending which would determine the entire matter, and in the event of failure after a tona fide effort to either secure the contending parties in this court, or. effect an entrance into the case as a party in the foreign jurisdiction, this case could be commenced again and prosecuted to a finality. As the plaintiff is entirely responsible for this situation every equitable consideration, requires that she should be required to conform her conduct so that no wrong or injustice will be done to either party.,

And we think peculiarly in this class of cases where no final judgment is to be rendered, there is reposed in the court a discretion to require the plaintiff to make the effort to secure the presence of the contending parties or suffer a dismissal of his case without prejudice. If the plaintiff after a tona fide attempt to secure the presence of the contending party and obey the order of the court, had failed, or had in good faith attempted to become a party in the foreign jurisdiction and had been denied, we do .not see any reason why she might not again begin this action here alleging these facts, but until she has obeyed a proper order of the court she is not prejudiced by a dismissal of .this action without prejudice.

The judgment of the court of common pleas is affirmed.


text:
    BOY STRUCK BY A TRAIN.
    Circuit Court of Richland County.
    Joseph S. Carter, Administrator, v. Erie Railroad Company.

    Decided, January, 1911.

      Negligence — Uninclosed Railway Grounds Used by Pedestrians — Boys Loitering on Such Grounds and One Darts in Front of a Train— Company Held Not Liable.

    A locomotive engineer while fulfilling his duty of keeping a lookout on the track in front of his train, is not charged with the responsibility of watching the open railway grounds and right-of-way in the belief that persons on such grounds or right-of-way will attempt to cross the track in front of his train, and the company is not liable for striking a boy who did attempt to cross the track almost immediately in front of a train.

      Farber •& McCray, for plaintiff in error.
    . Cummings, McBride t& Wolfe, contra.

       Affirming Carter, Admr., v. Erie Railroad Co., 10 N.P.(N.S.), 292.

   By the Court

(Taggart, J., Voorhees, J. and Powell, J.)

The plaintiff, as administrator óf the estate of Clarence A. Carter, deceased, grounded his action in the court of common pleas upon the alleged negligence of the defendant, the Erie Railroad Company.

It was his claim that the deceased, Clarence A. Carter, came to his death in consequence of. the negligence of the defendant company’s servants in failing to warn the deceased when in the immediate proximity of one of the company’s trains in passing over its line of road close to Springmill street crossing in the city of Mansfield.

The deceased was a boy between eleven and twelve years old, who with a companion had gone to the Baltimore & Ohio Railroad depot about four o’clock on the afternoon of the 24th of November, 1906. While at the Baltimore & Ohio Depot these two boys were required to go from the depot and grounds and they passed across Springmill street to unenclosed lands belonging to the Erie Railroad Company and the Baltimore & Ohio Railroad Company. These unenclosed lands lie between Spring-mill street and North Main street, in the city of Mansfield.

It is claimed in the petition that these unenclosed lands have for many years been opened and used by the-public as a way for passage between the Baltimore & Ohio depot and the said Main street, and points eastward thereof; that the defendant company had permitted the public to so use these unenclosed grounds,' and that the same were highly dangerous and known to be such by the defendant company, and that while these two boys were upon these unenclosed grounds the defendant company so wrongfully and carelessly operated its train and wholly failed to ring its bell or sound its whistle on the engine -of the train, or give any other adequate warning so that the deceased might have been aware of its presence and its approach and escape being run down by said train.

It is further claimed that the servants of the company failed to keep a lookout so as to watch its track in front of its trains, and in consequence of the alleged negligent, careless and wrongful acts of the defendant, the plaintiff’s intestate was killed. The answer is a general denial and averment of the contributory negligence on the part of the deceased at the time of the injury.

The defendant, at the close of plaintiff’s testimony, moved, the court to direct a verdict for the defendant, which motion the court at'the time overruled but submitted the case to the jury under his' instructions. The jury returned a general verdict and returned special findings which were objected to and excepted to by the defendant. Thereupon the defendant filed its motion for a new trial,' which was afterwards sustained and a new trial was granted. And the defendant further insisted upon the court passing upon the motion so made at the close of all the evidence, which- -the court sustained and entered a judgment against the plaintiff for costs. Plaintiff thereupon filed a motion for a new trial which was overruled, and bill of exception’s was taken and he now seeks the reversal of the judgment of the court of common pleas.

The plaintiff in error insists that the deceased being a boy of but ten years of age, and being upon unenclosed grounds of the defendant, was entitled to more consideration than had he been an adult, and that the proof in this case indicates that the grounds of defendant company were used by the public in-such a way that these two boys were not trespassers but were licensees, and that the company owed them some duty by exercising care in approaching the Springmill crossing; such care in fact, that they should run their trains and keep a lookout that children of tender age or persons upon the grounds should not be run down and injured and killed as was the deceased in this ease.

The record in this case discloses that these boys did not go to the Baltimore & Ohio for any purpose connected with the business of the railroad; the only excuse they give for being in that vicinity was that they went to meet the incoming car which would cross the Baltimore & Ohio tracks at the Baltimore & Ohio depot, for the purpose of getting papers that would eom'e from Cleveland. But, it appears from the record that this ’ was not the usual or customary manner of securing these papers, or that this errand would necessarily lead them to pass over the unenclosed grounds of the Erie company. After failing to get their papers, the record discloses that they passed across Springmill street and entered upon the unenclosed grounds of the defendant. It does not show that they ever attempted to pass down the known track or way that it is claimed pedestrians took when passing .from the Baltimore & Ohio depot eastward to Main street.

Upon the contrary the record seems 'to disclose that they were on the north side of the Erie tracks with no well defined purpose or object, either loitering or playing there or amusing themselves as they saw fit.

It does appear affirmatively that they knew of the approach of the defendant company’s train from the east, it having passed the Erie station and was westward bound. We learn from the survivor of these boys that it was-in-contemplation that they cross the track in a southwardly direction to reach the Baltimore & Ohio depot; whether this was in the mind of the deceased we can only assume from his conduct.

We have a comparatively clear description of what was done by him after the two boys started from the north side of the Erie track in a southwest' direction, an eye witness saw them start, describes their course and what they did. And the survivor of them gives us some information as to what the deceased did and the direction that he took.

It appears that he started in a southwesterly direction and ran parallel with the company’s track westerly to near what is known as the “gateman’s tower,” when he started across the Erie track almost immediately in front of the engine that caused his death.

With this state of facts and the engineer having given all the usual and required signals, it is contended that the record shows that the engineer, he being on the north side of the engine, should have kept a lookout and should have given such warnings as would have attracted the attention of the deceased.

But we do not think that this record justifies such a conclusion. As we have said, the deceased, even if he were upon these grounds as a licensee, which is as much as could be claimed for him and perhaps more than he is entitled to be considered in this case, the company would only be liable when its servants saw him on the track, or when by the use of ordinary care they should have seen him. If by the exercise of ordinary care they saw him, if he was on the track or they should have seen him, and that could have prevented his injury, then they were required to do so.

But, we can not, as we view this record, hold that he was a 'licensee, but, on the contrary, as we view the record, we think he was a trespasser, and if he was a trespasser on these grounds, then the- Company owed him no duty to sound any whistle or ring any bells except that they were not to be permitted to wantonly run him down. As to the duty of the engineer to keep a lookout, we think the ease of Railroad v. Kisler, 66 O. S., 326, lays down the duty of an engineer in respect to a lookout:

“It is the duty of a locomotive engineer to keep a lookout on the track ahead of the train. If while so doing his eye takes in a person approaching the track he may assume that such person will keep away from the track until the train passes; but when it becomes evident that such person will not keep off the track, it becomes the duty of such engineer to use ordinary care to prevent injury to such person, his first and highest duty, however, being for the safety of the passengers and property in his charge for transportation. ” .

In this case we conceive it to be the duty of the engineer to keep a lookout for Springmill crossing rather than for trespassers upon the right-of-way who might be approaching the track or attempting to cross, and this would, be the case whether the boys were upon the unenclosed ground as licensees or as trespassers.

It can not be insisted, we think, that it was the duty, through these grounds, for the engineer to be compelled or required to keep a lookout for the track ahead of the train and at the same time keep a lookout for persons on the right-of-way, all the time assuming that the same would attempt to cross the track. But, if the deceased and his companion were mere trespassers and the engineer was in the use of ordinary care in managing his train, and this record discloses that these boys traversed part of the unenclosed grounds and ran alongside of the track and gave no indication of their purpose to cross the track, until the deceased attempted to cross the. track almost immediately in front of the engine, and hearing the warning cry of the witness Carr and that of his surviving companion turn and attempt to go back and was struck, we see no basis or foundation for any recovery in this case, for there can be no basis upon which any negligence can be imputed to the railroad company or to its servants in the operation of its trains.

' We think the case of Railroad Company v. Harvey, 77 O. S., 235, and the cases there collated by Summers, Judge, in deciding that case, is absolutely controlling in this case, and we see no grounds upon which any recovery could be had under the averments of the petition or under the proof as made in this ease.

Therefore we are clearly of the opinion that the court was right in sustaining the motion and the judgment of the court .of common pleas is affirmed with costs. • Exceptions may be entered.