text:
    OBSTRUCTION OF A COUNTY DITCH.
    Circuit Court of Summit County.
    State of Ohio, ex rel William P. Irish et al, v. Lincoln H. Oviatt et al.

    Decided, October 8, 1908.

      Mandamus — Water-Course—Ditch—County Commissioners.

    A writ of mandamus will not issue against the county commissioners commanding them to remove an obstruction placed by a property owner in a water-course along the course of which said commissioners had constructed a ditch, because the commissioners in the first instance had no right to convert the water-course, a living stream, into. a ditch. .

      Koher & Mottinger and Mr. Andrews, for plaintiffs in error.

      H. M. itagelbarger, contra.
    Marvin, J.; Winch, J.. and Henry, J.. concur.

       Affirmed without opinion; see journal entry, State, ex rel, v. Oviatt, 83 Ohio State, 460.

   This is an action in mandamus. We have before us the'question of whether the petition on its face states facts authorizihg the issuance of an alternative writ of .mandamus.

The petition alleges that in 1890 the board of commissioners of the county, by proper proceedings, established and constructed a ditch about eleven miles long at an expense set at $30,000, paid by assessment on the lands benefitted by such ditch; that the ditch extended from Chockalog pond, in Copley township, to a point in the Tuscarawas river, near the village of Barberton. And it further says that this ditch was established and constructed along the course of a .stream known as Wolf creek for this whole distance; that it has been used all these years for draining adjacent land, whereby such lands have been converted from swamp and marsh lands to good agricultural lands; that on the faith that said ditch would remain open and unobstructed, the property owners along its line have constructed at large expense lateral ditches in and upon their several holdings whereby drainage of their lands is had into said ditch. The Columbia Chemical Company has lands near the mouth of the ditch, through which it runs. For the purpose of utilizing the water from this ditch for its manufacturing plant, the chemical company has constructed a dam across the ditch, obstructing the flow of water, setting the same back along the channel and adjacent lands, and has diverted the ditch from its original channel and constructed ,a circuitous channel, which interferes with the flow and causes great injury to relators and those similarly situated. The relators gave notice to the chemical company to remove said darn, and after waiting more than ten days, they, by motion; called upon the commissioners - to cause said dam to be removed, together with all obstructions, and that the ditch be restored to its former'state. The commissioners have-refused to do this, and the prayer-of .the-petition is that a writ of mandamus be issued to compel the commissioners- to remove the dam and restore the ditch to its original state.

The authority under which the Commissioners asshmed to act in establishing and constructing the- ditch is. found .in Section 4447,-. Revised Statutes,- which reads ,as follows:

“The commissioners of any county at any regular- or called session .may, in the manner provided in- this chapter, when the same -is necessary to. drain any lots, lands, public, or corporate road or railroad, and will be conducive to public health, convenience and welfare, cáuse to be' located,' and constructed, straightened, widened, altered, deepened, boxed ’or tiled, any ditch, 'drain or water-course, or box or tile any portion thereof or cause the channel of all or any part, of any river, creek or run within such county to be improved by straightening, widening deepening or changing the same, or by removing from adjacent lands any timber, brush, trees or other substances'liable to form obstruction therein.1’

The.provision of law under which it is urged the commissioners should act is in Section 4509, Revised Statutes, which reads:

“Whoever obstructs any ditch, or refuses or neglects to remove any obstruction heretofore by such person or persons placed in the ditch, or being-the owner of any lands through which any ditch passes, obstructs or permits such ditch to become obstructed, or diverts the water from its proper channel, shall for? feit and pay to the county in which such ditch is situated, thé sum of twenty-five dollars to be recovered before a justice of the peace or other court having jurisdiction of the matter, in the name of the state of Ohio for the use of said county, which action may be instituted and prosecuted by the commissioners of such county, or any citizen thereof, or by any person whose lands shall have been assessed for the construction of such ditch and shall also be liable for all damages that may accrue to any person, persons or corporation by reason of such obstruction; and each day that such obstruction shall be permitted to remaiii in such ditch after the person or persons have placed the same therein shall have had ten days notice to remove the same, either by the county commissioners of said county, the engineer in charge of said ditch, or by any person whose lands have been assessed for the construction or improvement of such ditch, shall constitute a separate offense under this section, and shall subject srich offender to -a penalty of twenty-five dollars for each such offense, to be recovered in the manner hereinabove provided. And on failure of such person or persons to remove such obstructions forthwith upon being notified as aforesaid it shall be the duty of the board of county commissioners of such county forthwith to cause such obstructions to be removed,' ape] charge the expense thereof to such person or persons, and.cpl-' lect the -same from such person or persons by action in thp parné of said board of county commissioners.” s’ '

Assuming for the time being, that mandamus is the propet remedy in case of obstruction of ditches, we consider the question of whether the water-course involved in this litigation is such a one as the commissioners are reqifired to remove'Obstructions from. If it is, we apprehend it is because it is such as they were authorized to construct under Section 4447, Revised Statutes, already quoted. This section is the first in Title VI, Chapter 1, of the Revised Statutes, that being the chapter whose subject is county ditches. In the several sections of this chapter the words “ditch, drain or water-course” are used together in a number of instances, and the Supreme Court of the state, in Commissioners of Greene County v. Harbine, 74 O. S., 318, has said, in the syllabus:

“The word ‘water-course,’ as used in the county ditch law, Title VI, Chapter 1, Revised Statutes, is synonymous with the word ‘drain’ and the county commissioners are without authority to convert a living stream of water into a ditch by proceedings for the locating and constructing of a ditch.”

Without stopping here to read further, we reach the conclusion, from the case to which attention has just been called (and from the-opinion as well as the syllabus), that because this work was done as alleged in the petition, “along the course of a stream,” it is not and never was a ditch in the sense in which that word is used in the statute; wherefore, it is not a part of the duty of the commissioners to remove the dam therefrom under Section 4509 already quoted.

It is urged, however, that the commissioners are estopped from making this defense. This we regard as unsound. It is true that the petition shows that the work was done by the board of commissioners and was paid for by the property owners, and until lately, when it has been obstructed by the dam, it.has been kept open. It does not follow that the commissioners may take upon themselves to interfere with riparian rights of those owning lands upon a stream, and they are required to. perform an act, which, so far as appears, they have never before been asked to perform.

It does not follow that the relators are without a remedy for any injuries they have sustained because the commissioners refuse to do that which we are asked to compel them to do.

No opinion is here expressed as to whether mandamus is the proper remedy when commissioners fail to remove obstructions from a ditch, since we find this is not a ditch in the sense in which that word is used in the statute.

It follows from what has been said that we must refuse the alternative writ, and the petition is dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    AS TO WHETHER. THE GIFT OF A HORSE WAS COMPLETE.
    Circuit Court of Medina County.
    Warren J. Anderson v. Ida M. Allen.
    Decided, 1908.

      Gift — Evidence—Incompetent Answer to Competent Question. ■

    1. A father said to the husband of his daughter Ida: "Go up to the home place, get the little horse I gave Ida, take it off my land up there and turn it on the land I have given her, with your horses.” This the son-in-law did the next day. Held: A completed gift.
    2. Objection to an incompetent answer to a competent question'is saved by asking that the answer be taken from the consideration of the jury and not by objection to the question. •
    Marvin, J.; Winch, J., and Henry, J., concur.
   Suit was brought by Ida M. Allen in replevin before the mayor of the village of Medina in said county against Warren J. Anderson, to recover a certain horse, then in the possession of Anderson, which plaintiff claimed belonged to her. After trial before the mayor the case was appealed to the court of common pleas and was there tried; the result being a verdict and judgment that the horse was the property of said Allen. Error is prosecuted here to reverse the judgment of said. last named court.

A bill of exceptions is filed here, giving all the' evidence which was produced and offered on the trial. From this it appears that the horse in question was formerly owned by one Abial Canfield, who was the father of said Allen; and that said Can-field died on the 8th day of April, 1905.

The claim of ownership of the horse made by Allen is that, previous to the death of her father, he made a gift tó her of this horse.

On the part of Anderson the claim is made that he owns the horse by purchase from Charles and Albert Canfield, sons of the said Abial,

It is claimed that Abial had given the horse to these two sons, while he was still living, and if that should not be found to be true, then by the provisions of the will of Abial, he having died testate, the horse was bequeathed to them.

An examination of the will of Abial Canfield discloses that, after making devises and bequests to his several children and a grandson, the residue of his property is bequeathed to these two sons. Without expressing any opinion as to whether, under this residuary clause, the ownership of this horse would pass directly to Charles and Albert without administration, it is sufficient to say that, if Abial Canfield owned the horse at the time of his death, Ida M. Allen was not entitled to recover in this action. It is not necessary that Anderson show a good title in the horse which was in his possession when the suit was begun, but only to show that Allen had not title. A claim on the part "of Anderson is that the horse, by reason of a gift to Charles and Albert made by Abial, before any gift was attempted to be made by him to Ida, belonged to them,, and so she acquired no ownership in. the horse, whatever her father said to her about it. That is, that when- it is claimed he gave the horse to Ida it was not his to give, as he.had already given it to Charles and Albert.

The evidence fails to show a completed gift to Charles and Albert. Charles says his father said he made a will, and that what he had given to him (Charles) and Albert was undivided, and that he was going to turn over all that was to go to them, at once, and that, in speaking of the horse he said “I will give you three horses; the work team I reserve the use of them for Unial Crow until after haying. * * * the little bay horse” (the one whose ownership is involved in this case) “I do not want you to sell as long as I can drive him and then you can do as you wish with him. ”

He states that thereafter he used the. horse some, and when, he used it he kept it ,at his place, and that his father used him a part of the time, when he was kept at his father’s place. The testimony of Albert..as to this gift is not stronger than that of Charles, and from the testimony of neither does, it appear that either of them took possession as against the father.. . ,

Thornton on Gifts says, at Section 131:

“In all gifts a delivery of the thing given is essential to their validity, for although every other step be taken that is essential to the validity of a gift, if there is no delivery the gift must fail.” •

Section 142, of the same work, reads':

“A gift to be valid must not only be delivered, but the delivery must be unconditional; it must be delivered absolutely and unconditionally.”

Under these rules, as already said, we can not find that the father gave the horse to Albert and Charles. On the other hand, the evidence is such that the jury might have found that he made a completed gift to his daughter, Ida.

She says he said to her, the evening after he had. made his will, speaking of this horse, “I have given that to you.” She says that at another time, later on, it being her birthday he said to her “I will give you that little driving horse today as your birthday present.” He did not, however, on either of these occasions, deliver possession of the horse to her, and so there was up to this time no completed gift to her.

Dr. D. R. Allen, the husband of Ida, testified however, that on the 29th of March, 1905, shortly before Mr. Canfield’s death, he said to the witness “Go up to the home place, get the little horse I gave Ida, take it off of my land up there and turn it on the land I have given her, with your horses.” He says that, pursuant to this instruction, he went the next morning and got the horse and turned it into the field on Ida’s premises, where it remained until after Mr. Canfield’s death. If the jury believed this testimony, they might well find a completed gift of the horse in Ida, and so we could not reverse the case on the weight of the evidence.

Thornton on Gif is, Section 143, uses this language:

“It is not essential that a delivery be made at the time the words of gift are used, ’ ’ or, in other words, ‘ at the time the gift is made; the delivery may follow at any time before the death of the donor and before he revokes the gift. ’ ’

It is urged that the court erred in overruling the objection made to a question put on behalf of Mrs. Allen, to Walter Can-field when he was upon the witness stand. This witness was the assessor in 1904, and called upon Abial Canfield to list his property for taxation, and stated that he had a conversation with him about his property at the time. He was then asked this question: “What did he say?”

This question was objected to on behalf of Anderson; the objection was overruled and exception taken. If any answer which the witness might give in response to this would be competent, then no error was made in the ruling. It was rightly held by the court several times during the trial that statements made by Abial Canfield as to what he intended to do with his property was competent as tending to show the probability or improbability of his giving it to any particular person. The witness might have answered this question, that he said he was going to give the horse to Ida, or to Charles and Albert; that answer would have been competent and would have been directly responsive to the question. It follows that the court properly overruled the objection. If it was, desired to have the answer which was given taken from the jury, a motion to that effect should have been made; this was not done.

A similar question is made as to a question asked and answered by Howard Jones, when he was upon the witness stand, and, for the same reason, there was no error in the ruling of the court.

Without pausing to call special attention to other alleged errors, a careful examination of the entire record discloses no error to the prejudice of the plaintiff in error and the judgment is affirmed.

No penalty will be adjudged against the plaintiff in error.


text:
    COMPENSATION TO DEPUTY STATE|SUPERVISORS OF ELECTION.
    Court of Appeals for Mahoning County.
    State of Ohio, on Relation of Joseph E. Jones, v. I. M. Hogg, County Auditor.
    Decided, December 12, 1913.

      Elections — Previous Provisions of the Statutes as to Pay of Deputy State Supervisors — Not Affected by the Constitutional Amendments.

    Provisions of Section 4900 of the General Code are not inconsistent with Article V, Section 7, of the amendments of 1912 to the Constitution, and by the provisions of that section of the statutes each member of the board of deputy state supervisors of elections is entitled to receive, as compensation for his services in conducting a primary election provided for by Section 4963 of the General Code, to be held in September of odd numbered years, the sum of $2 for each precinct in his county whether primary elections were actually held in all of the precincts of his county or not.

      David G. Jenkins, for relator.

      A. M. Benderson, Prosecuting Attorney, contra.
    Norris, J.; Pollock, J., and Metcalfe, J., concur.
   The relator in his petition alleges that on the 2d day of August, 1912, he was duly appointed a member of the board of deputy state supervisors of elections for Mahoning county, for a term of two years; that on the 2d day of September, 1913, a primary election was held in Mahoning county, in accordance with law, and that the relator acted as member of such board of deputy state supervisors of elections in conducting said primary election; that on the day of such primary election there were 133 legally existing and constituted election precincts in said county, and that he was entitled, as compensation for his services in conducting such election, to the sum of $266, but that the defendant, I. M. Hogg, auditor of Mahoning county, refused to issue his warrant for such sum, claiming that relator was entitled to only $194 as the legal compensation; that relator has .presented proper certificate and voucher and in all things complied with the requirements of the law, and that there is money in the county treasurer’s hands to the credit of the proper fund to pay the full amount of relator’s claim for compensation.

It is nowhere alleged in the petition that primary elections were actually held in all of the 133 precincts of the county. To this petition a demurrer was filed by the respondent on the ground that the petition did not state facts sufficient to constitute a cause of action and the issue of writ of mandamus prayed for.

It is stated by counsel that while there are 133 election precincts in the county, 89 are in the city of Youngstown and 44 in townships outside of Youngstown, and it is said that the auditor refused to issue the warrant because of the provisions of Article Y, Section 7, of the amendments to the Constitution adopted in September, 1912, which provides that:

“All nominations for elective state, district, county, and municipal offices shall be made at direct primary elections or by petition as provided by law, and provision shall be made by law for a preferential vote for United States Senator, but direct primaries shall not be held for the nomination of township officers or for the officers of municipalities of less than two thousand population, unless petitioned for by a majority of the electors of such township or municipality. ’ ’

Is it necessary for the relator to allege' in his petition that primary elections were actually held in all of 133 precincts? Section 4990 of the General Code provides as follows:

“For their services in conducting primary elections members of the board of deputy state supervisors shall each receive for his services the sum of $2 for each election precinct in his respective county.”

This simply seems to be the method of fixing the compensation of these officers. It is a means clearly to express the legislative intent. We see no reason for giving it any interpretation other than what the plain language implies — that is that each such deputy state supervisor shall receive $2 for each precinct, and this without reference to whether elections were held in all of the precincts or not.

The election for which compensation is asked in this ease was a general primary election held under the provisions of Section 4963, which provides that:

“Primaries held to nominate candidates for township and municipal offices, justice of the peace, and members of the board of education, shall be held in each county at the usual polling places, on the first Tuesday after the first Monday in September in odd numbered years.” . ;

Now, the provisions of the section of the Constitution we have quoted above, provided that in townships outside of municipalities such primary elections shall not be held unless petitioned for. Whether such primaries are petitioned for in this ease does not appear, but is this Section 4990, at all inconsistent with that provision of the Constitution which merely provides "a method of determining compensation of the supervisors for holding such general primaries? The constitutional amendment may possibly reduce the amount of services to be rendered, but does that necessarily change the provisions of the statute as to the compensation? We think not.

The schedule adopted September, 1912, provides:

“The several amendments passed and submitted by this convention when adopted at the election shall take effect on the first day of January, 1913, except as otherwise specifically provided by the schedule attached to any of such amendments. All laws then in force, not inconsistent therewith shall continue in force until amended or repealed.”

Without this constitutional amendment there could he no doubt as to the proper interpretation of this statute. How can it be said that this amendment amends- the statute or gives it any different interpretation than it had before? As we have said, we think this statute is not inconsistent with the amendment and remains in full force and should receive the same interpretation as it had before the amendment was adopted. A peremptory writ of mandamus will be awarded as prayed for.


text:
    [PENALTY FORJALE OF LIQUOR. ON SUNDAY.
    Circuit Court of Lorain County.
    City of Lorain v. James Maraldi.

    Decided, June 18, 1909.

      Liquor Laws — Municipal Ordinance — Mol in Conflict With State Law —Penalty.

    A municipality under power granted by Section 1536-100, Sub-Section 5, Revised Statutes, to regulate ale, beer, porter houses and shops and the sale of intoxicating liquors as a beverage, may enact a valid ordinance prohibiting the sale of intoxicating liquor on Sunday and making the penalty therefor not exceeding $500 and not less than $100, for a first offense, though the state law on the same subject makes the penalty not exceeding $100 and not less than $25 for the first offense.

      S. H. Williams, J. F. Strenick and F. M. Sievens, for plaintiff in error.

      Geo. L. Glitsch and C. F. Adams, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.

      Affirmed fey the Supreme Court without opinion, Maraldi v. City of Lorain, 81 Ohio State, 539.

   The first question to which attention is called is as to the validity of the ordinance of the city of Lorain, under which the defendant in error was prosecuted. This ordinance we hold to be valid and within the authority conferred upon the council by Section 1536-100, sub-section 5 of the Revised Statutes, which, speaking of the powers conferred upon municipalities, reads:

“To regulate ale, beer, porter houses and shops, and the sale of intoxicating liquors as a beverage. But nothing in this act shall be construed to amend, repeal or in any way affect the provisions of an act entitled, ‘An act to amend Section 4364-20 of the Revised Statutes of Ohio.’ ”

The section referred to provides for the punishment of those selling liquor on Sunday, and that such penalty shall be a fine not exceeding $100 and not less than $25, for the first offense, whereas, the ordinance under which this prosecution was held, provides for a penalty for the first offense of a fine not exceeding $500 and not less than $100. This makes the penalty for the violation of the ordinance greater than the penalty provided for the violation of the statute, but does not, as we understand it, in any wise affect the statute. One may be prosecuted who commits the offense either under the statute or under the ordinance. The two prosecutions are distinct and separate, as appears by the case of Koch v. State, 53 Ohio St., 433, the syllabus of which reads:

“A former conviction before a mayor for the violation of an ordinance is not a bar to the prosecution of an information charging the same act as a violation of a statute.”

It is said, however, that the ordinance is against the policy of the statute, as shown by the statute and by the penalties here provided for the offense charged against the defendant in error, and we are cited to the case of City of Canton v. Nist, 9 Ohio St., 439; Thompson v. The City of Mt. Vernon, 11 Ohio St., 688.

The argument drawn from these cases seems to us to be fully answered by the case of Burckholter v. McConnelsville, 20 Ohio St., 308.

In that case an ordinance of the village of MeConnelsville prohibiting the keeping of a place of business V where ale, porter or beer is habitually sold, or furnished to be drunk, in, upon or about the house, where so sold or furnished.”

It was urged in that case that this was contrary to the,policy of the statute because the statute providing against the keeping of drinking places, used the words, “shall not extend to the wine manufactured of the grape cultivated in the state, or beer, ale or cider.” Speaking of this, the court say:

“It is argued that this general statute impliedly legalizes the sale of pure Ohio wine manufactured of the pure juice of the grape cultivated in this state, or beer, ale, or cider; and that a municipal ordinance prohibiting their sale is against the policy of this statute and therefore void.”

After discussing this claim, the court say:

“And it is no ground of objection to the validity of prohibitory ordinances, thus authorized, that the general laws of the state do not extend the prohibition to all parts of the state. Morality and good order, the public convenience and welfare, may require many regulations in crowded cities and towns, which the more sparsely settled portions of the country would find unnecessary.”

So, too, it may well be that in municipalities where there is a congested population more severe penalties are necessary and proper to secure an observance of the law, than are necessary where the population is sparse and the sales comparatively few. What might be a very severe penalty in the way of a fine to one whose sales are limited to $2 or $3 a day might be very light for one whose sales are many timas that amount per day," and when the Legislature gave to municipalities the power “to regulate ale, beer, porter houses and shops and the sale of intoxicating liquors as a beverage,” it was presumed that it was done for the purpose of enabling municipalities to make such regulations, and provide such punishment for the violation of such regulations as the municipality might think best. In short, that the municipality might need some legislation different from thát needed for the regulation of those places outside of municipalities.

We reach the -conclusion, therefore, that the ordinance is valid.

It is said, however, that the evidence does not support the judgment, and that it is so manifestly weak on the part of the prosecution, so that the judgment should be set aside as not supported by sufficient evidence. This position is not sound. The evidence shows that the defendant in error was the proprietor of a saloon; that back of his bar room, with two intervening rooms, there was a kitchen; that in this kitchen customers were 'served by this defendant with intoxicating liquors; that the rooms connected and customers came into the front door of the saloon, and, by invitation of the defend amt in error, passed into this kitchen, where they were served with their drinks. We think from this the mayor might well have found that the kitchen was a part of the defendant’s establishment, which he kept for the sale of intoxicating drinks.

That the drinks for which the defendant was prosecuted were sold in this kitchen, is not denied. The sale was made by a brother of the defendant. He lived there with the defendant. He was employed' as ,a laborer on the docks, but it is shown that at times prior to the date charged against the defendant in this prosecution, he made sales of drinks at this establishment, and that he also made sales there afterwards. It is said that the court erred in admitting evidence of sales made by the brother after the time charged in the prosecution. We think this evidence was competent, as tending to show that this brother was the agent of the defendant and taken in connection with the evidence that shortly prior to the time charged he made sales there, justified the mayor .in coming to the conclusion that in selling the drinks shown to have been sold at the time charged, he was acting as the agent of the defendant.

The result is that the judgment of the court of common pleas is reversed and that of the mayor affirmed.


text:
    PROCEEDINGS FOR RELOCATING A COUNTY ROAD.
    Circuit Court of Lorain County.
    Henry M. Hagelbarger, as Prosecuting Attorney, v. The Pennsylvania Company.
    Decided, June 18, 1909.

      County Road — Change in Location — Informal Proceedings — Presumption.

    1. Under Section 4661,. Revised Statutes, the county commissioners have authority to vacate all or a part of a county road upon the application of “any twelve freeholders residing in that part of the county where such road is established,” and where they act upon an application purporting to be so signed, in a collateral proceeding calling in question the regularity of their proceedings, there is no presumption that the twelve signers were not freeholders residing in the vicinity, though the record is silent on the subject.
    2. In such case, where part of a road is vacated and a new road actually established and used by the public and the proper authorities, there is a legal change in the location of the road, even though the proceedings of the commissioners may have been informal.

      Grant, Sieber & Mather, for plaintiff in error.

      Allen, Waters, Young & Andress, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Under favor of Section 863, Revised Statutes, the plaintiff in his official capacity brought this action in the court of common pleas. The purpose of the action was to obtain an order requiring the defendant, which is a railroad company, to remove fences and obstructions from what the plaintiff claims is a public highway in this county.

The facts' are these:

Prior to the year 1888, a public road lead westerly from the north and south Center road, in the township of Hudson, in this county. That road thus running westerly crossed the right-of-way and tracks of the Cleveland & Pittsburg Railroad, a road now operated by the defendant. This crossing was diagonal, not at right angles, and the highway at a point about 200 feet westerly from the crossing just mentioned, made an obtuse angle, and lead to the northwest again crossing the track of this railroad at a point about 200 feet westerly from this angle, and then continued on to the west. The point just easterly of the point where the highway made the crossing first mentioned of the railroad tracks, deflected slightly to the south. This point is indicated on a plat shown in the trial, as “No. 1.”

. The point where the second crossing of the track was made is indicated on this plat as “No. 2,” and the .angle, already mentioned in this highway, is designated on the plat as “No. 3.” It will be seen that the distance from No. 1 to No. 2 was somewhat greater by following this highway than it is by drawing a straight line from No. 1 to No. 2. In 1888 the land along the north side of the railroad from No. 1 to No. 2 was owned by one Hiram Bishop, who owned a farm, and this land along the north line of the railroad was a strip along the south side of this farm. On the south side of the railroad the land was then owned by Avery Bishop, a brother of Hiram. Subsequently Avery came to own all the land, that is to say, the farm on the north side as well as on the south side of the railroad. Avery died in-and Della Bishop Ingersoll became by inheritance from Avery Bishop the owner of the land, and this suit was brought in her interest in the name of the prosecuting attorney, as authorized by the section of the statute already mentioned. In 1888, the railroad company and the Commissioners of Summit county desiring to eliminate these crossings of the road over the railroad, made an arrangement by which a strip of land along the north line of the railroád, the proper width for a public highway, and leading from point No. 1 to point No. 2, was deeded by Hiram Bishop to the commissioners of the county, the consideration paid therefor of $200 being paid by the railroad company, Thereupon the commissioners resolved, upon the petition of freeholders of the county, to change the line of the highway so that it should run along this land deeded to them by Bishop, and they took possession of and constructed a road .along this strip of land so that the highway as thus changed by the commissioners became a continuous highway from the road as it originally was, leading from the east to and beyond point No. 2, and so on west. The commissioners further resolved not to abandon that part of the old road from point No. 1 to point No. 3, a distance of about 200 feet, as has already been stated. On the southeasterly side of this part not thus abandoned were and are two dwelling-houses. There are no other residences and no places of business along any part of the old road from point No. 1 to point No. 2. It will be seen that by living upon the part of the road, as above described, those occupying these dwelling-houses and those having business with them could reach the road as established by driving this distance of less than 200 feet to the main road. All this having been done, the railroad company placed its fences along the north and south sides of its right-of-way across this part of the old road which made the crossing at point No. 2, and it is for the purpose of having these fences, and such other obstructions as the railroad company have placed along its right-of-way where the road crossed at No. 2, removed, that this suit is brought.

It is urged that the proceedings of the commissioners in attempting to vacate any part of the old road were invalid and that therefore the.old road exists as it did prior to 1888, and the defendant is not entitled to obstruct it in any way. It is provided in Section 4.661,.Revised Statutes of Ohio, that:

<¿When a county road or part of a county road is considered useless, any twelve freeholders residing in that part of the county where such road is established, may make application agreeably to the provisions of this chapter, to the commissioners of the county to vacate the same and if no. objection be made, the commissioners may declare vacated the road or any part thereof which they may deem unnecessary to keep open for public convenience. ’ ’

In the adjudications which have been made under this statute, the language of the courts has been, freeholders residing in the “vicinity,” but this word is so used because clearly the word “vicinity” means the same as the language used in the statute, that is, they must reside in the part oE the county where the road is located. It does not appear in the record of the proceeding's of the commissioners that any finding was made by the commissioners that the freeholders who signed the petition resided in the vicinity of this road or in that part of the county in which the road is located, and it is said that no presumption arises in favor of the regularity of the proceedings of the commissioners, but that they can be held to have had only such jurisdiction ,as affirmatively appears by the record of their proceedings. This claim is based upon the proposition that jurisdiction will not be presumed in favor of inferior judicial tribunals.

By reference to Section 4650, Revised Statutes, it 'will be seen that the record required to be made up by the commissioners of their acts and proceedings to vacate a public highway, does not include any record of their findings as to the place of residence of the petitioners, so that it is clear that when the commissioners have recorded the petition for the road, together with their orders to the viewers, and the report of the viewers together with-the survey and plat, and their order thereon, alb the record has been made which the statute contemplates, and this does not include any record of a finding as to the places of residence of the petitioners. We reach the conclusion, therefore, that the position is not well taken that the presumption must be that the petitioners were not residents of the vicinity, and so it was proper at the hearing of this ease that evidence of the residence of such petitioners should be taken, and from that evidence, we find the court was justified in holding that the petitioners were residents of that part of the county in Avhich the road was located. But however that- may be, there can be no doubt that the new road from point No. 1 to point No. 2 became, by what was done by the commissioners, as has already been pointed out, an established public highway. This is clear from the ease of The City of Steubenville v. Ezra A. Knight, 23 Ohio St., 610, the first clause of the syllabus of which ease reads:

“A conveyance of land to the county commissioners for a county road, the acceptance of such grant by the commissioners, and opening of the,road by their order, and its subsequent use as such by the public, and by the proper .authorities, constitute it a legal, public,highway, notwithstanding the want of statutory proceedings for its establishment.”

By Section 4669 of the Revised Statutes of Ohio, it is provided that, “All alterations of county roads heretofore made and established, or which shall hereafter be made and established, shall be and remain part of such roads, and so much of the original roads as is rendered unnecessary by such alterations in the opinion of the viewers and the county commissioners, shall be and remain vacated.”

In the case of Silverthorne v. Parsons, 60 Ohio St., 331, this section was considered, and the syllabus of the case reads:

“When the owners of land crossed by a county road enter into an agreement with the county commissioners pursuant to which they convey to the commissioners other land, with a view to affecting a necessary change in the road, and the road is by order of the commissioners opened on the lands conveyed, and is so used by the public and by the proper authorities, there is a legal change in the location of the highway, notwithstanding the want of statutory proceedings for that' purpose; and under Section 4669 of the Revised Statutes, so much of the original road as is rendered unnecessary by the change is vacated. ’ ’

We hold that clearly, from the evidence in this case, so much of the original road as extended from point No. -3 to point No. 2 on the plat already mentioned, was rendered wholly unnecessary by the opening of the road from point No. 1 to point No. 2. That being true, the establishment of the new ro.ad resulted in a vacation of this last named part of the old road, and the acts of the defendant in this action in placing fences along either side of their right-of-way, and such other obstructions as they placed within the limits of their right-of-way, did not constitute an obstruction to any public highway, and the .judgment of the court dismissing the plaintiff’s petition was right, and is affirmed.


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    AS TO USE OF SEWER. ACROSS THE LAND OF ANOTHER..
    Circuit Court of Summit County.
    George Bates v. George W. Magennis.
    Decided, October 11, 1909.

      Easement — Bexoer—No Recox'd Evidence or Actual Notice.

    The mere existence of a private sewer through a man’s land which others are using, but of which there is no record evidence and of which he had no knowledge when he purchased the premises, does not give such others a right to continue the use of said sewer without his consent.

      Slabaugh, Sterling & Huber, for plaintiff in error.

      Otis, Berry & Otis, contra.
    Marvin, J.; WiNcn, J., anti Henry, J., concur.
   The plaintiff is the owner of a lot of land in the city of Akron at the corner of Adolph street and Perkins street, the lot fronting on Adolph avenue. The defendant is the owner of a lot fronting on Good street, in the city of Akron. There are several intervening petitioners in this case, and they severally own lots fronting on Adolph avenue (which is a street running south and north), south of the lot owned by the plaintiff. Good street and Adolph avenue are parallel to each other and are about 400 or 500 feet apart. These several lots are all a part of the same allotment made by Jacob Good, and known as “Good’s allotment.” This allotment was made in 1872 or thereabouts, and is properly recorded in the records of Summit county. At the time the allotment was made Jacob Good owned all this property, together with many other lots in an allotment. There is now and for many years has been a main sewer extending along the line of Good street. There is also a main sewer in Perkins street. There is no such sewer in Adolph avenue. While Good was the owner of all the lots which are affected by the controversy in this case, he constructed a private sewer in and along Adolph avenue, from a point in front of the plaintiff’s, lot southerly to a lot.known as No. 8, in his allotment,.so that it passed along the front of the lots of the intervening petitioners in this ease. When it reached lot 8, Good turned it to the west, and carried it across the southerly part of that lot and near the northerly line of the lot owned and held by the defendant Magennis. The lot of the defendant is known as lot No. 21. These lots crossed by this- sewer, as well as the lots fronting on Adolph avenue, which were along the line of this sewer, were all owned by Good at the time he -put in the sewer, which is a 6-inch pipe sewer. This sewer crosses to the west across the lots of the defendant Magennis and empties into the main sewer on Good street. The defendant, unless enjoined, will obstruct this sewer crossing his premises so as to prevent sewage from the lots in front of which and along which it runs from being discharged into the sewer in Good street, and the purpose of the suit is to enjoin the defendant from so obstructing this sewer. The deeds from Good to the several purchasers of the lots involved in this suit make no mention of this private sewer, nor is there any record of one. The claim of the plaintiff and the others similarly situated is that the inducement to purchase the several lots owned by them was the existence oE this private sewer, and it is urged by them that as Good was the owner of all this property, as he sold off the lots he encumbered the remaining lots, that is the lots remaining in his ownership, with this sewer privilege. It is not, however, seriously urged that the defendant Magennis, who purchased his lot in 1906, from J. Ed. Good, who had purchased it from the heirs of Jacob Good, the original proprietor of all these lots, would take his title subject to the right of the other lot-owners to have this sewer maintained, unless he had knowledge of the existence of the sewer. Certainly, -if this claim had been seriously urged, it could not be maintained. A perfect abstract of the title of this lot No. 21, owned by Magennis, taken from the records accessible, would have given him no notice of any rights of anybody to maintain a sewer across his lot. It was sought on the part of the plaintiff, however, to show that the defendant had actual notice of the existence of this sewer. We do not discuss a,,t all the proposition of what his rights would have been, if such actual notice were shown. The only evidence tending to show that he had such notice is the testimony of Mr. ITolloway, the acting agent for J. Ed. Good, through whom the defendant negotiated for the purchase of the lot. Holloway says that he said to Magennis that if he should ever want to build a barn on this lot that he thought he would find a sewer already there, and if he wanted to know where that sewer was he had better see J. Ed. Good. Magennis did not remember any such conversation as this; but suppose it took place; supposing Holloway’s recollection is right, we hold that it is no such notice to Magennis as should put a careful man upon inquiry to know if there was not a sewer running through his lot which the lot owners on a street entirely away from his lot were entitled to have kept open. It is urged, as evidence, that Magennis must have known about this sewer, because Orgill who built a house for Magennis said something to him about a sewer being through there, and Magennis manifested no surprise about it. This is easily explained by the statement made by Magennis, that some time after he purchased that lot he was told by his wife that a neighbor woman had told her that she believed that there was a sewer across this lot, so that this statement of Orgill was not the first that Magennis ever heard of the sewer. Of course the- notice from Orgill coming after the purchase was made, or the notice to Mrs. Magennis, which came after the purchase was made, could not in any way affect Magennis’ rights, nor is that claimed, but that only the fact that Magennis did not seem' surprised to learn something about a sewer when Orgill spoke about it tends to show that he must have known about it before. So he did to the extent that his wife had told him what the neighbor woman had said. But we hold that the fact, if it be a fact, that Holloway said to Magennis that he thought there was a sewer on the lot through which he could drain from a barn if he might want to erect one on his lot, was not such notice .as to charge Magennis with the lien of the easement across this lot for a sewer.

Attention is called to the fact that the sewer connection between Magennis’ house and the public sewer on Good street is made throng'll this sewer.. It appears from tlie evidence that Magennis contracted with a party to put in this sewer connection from his house to the Good street sewer and that the contractor took advantage of the sewer which he found there and made the connection with it. Certainly this can in nowise entitle the plaintiff or the other lot owners on Adolph avenue to have this portion of the sewer kept open. Besides, it is shown that for a sum not exceeding $450 a sewer can be constructed from the point in this private sewer where it turns from Adolph avenue, to the west and then south, to the main sewer in Forge street.

As to the plaintiff the connection can be made for sewer purposes from his premises to the sewer in Perkins street at no great expense.

We reach the conclusion that the .plaintiff and the other property owners have not made a case that clearly entitles them to relief against this defendant, and that it would be inequitable, under the facts here, to encumber the title of the defendant with an easeinent for this sewer, and the petition of the plaintiff and the several intervening petitioners are dismissed.


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    DAMAGES ON ACCOUNT OF THE BUILDING OF AN INTERURBAN RAILWAY IN FRONT OF PROPERTY.
    Court of Appeals for Richland County.
    The Plymouth & Shelby Traction Company v. John H. Hart.
    Decided, January Term, 1913.

      Abutter — Procedure for Recovery of Damages for the Building of an Interurban Road in Front of Property — Rights of an Abutter in a Street or Road Upon which He has Encroached — Statute of Limitations with Reference to Such Encroachment as Applied to a Railway Company — Charge of Court — Section 8765, General Code.

    1. An abutting owner, who has been damaged by the construction of a railway track in front of his property, may proceed in any proper court for the recovery of such sum from the company as will compensate him for the damages so sustained in so far as his -loss can be made good by a money consideration.
    2. While the statute of limitations does not run against the state as to encroachment upon one of its roads, it does run against a railway company which seeks, in order to make room for its track, to widen the road to the width at which it was originally laid out, and where the improvements of an abutting owner are removed in so widening the road and laying its track, he may recover compensation therefor.
    3. In instructing a jury on the vital issues of a "case about to be submitted to them for determination, it is not prejudicial error to so group or summarize the issues that the jury may intelligently understand them.

      Culp & Hines, for plaintiff in error.

      Sidles, Green Sidles, contra.
    Shields, J.; Voorhees, J., and Marriott, J., concur.
   This action was commenced in the court of common pleas of this county by John H. Hart, defendant in error, to recover damages against the Plymouth & Shelby- Traction Company, plaintiff in error, for injuries to the property of the defendant in error growing out of the location and construction of a street railroad by said company in the incorporated village of Plymouth in said county.

In his amended petition the plaintiff, in substance, avers that he is the owner of out-lot number twenty-four in said village fronting on what is known as the Plymouth and Shelby road in said village; that the defendant owns and operates a line of electric railway extending from the said village of Plymouth to the village of Shelby in Richland county, Ohio; that prior to the construction of said electric railway, plaintiff’s said out-lot was on a common grade with said road fronting said out-lot; that in the construction of its said railway, the defendant wrongfully and without authority located its tracks and road-bed on the west side of said road and immediately adjacent to the plaintiff’s said land, and wrongfully and unlawfully constructed a grade from four to twelve feet high along the east line of a pasture field north of the south line of plaintiff’s said land, thereby rendering it impossible for the plaintiff to enter upon his said land from the said Plymouth and Shelby road; that the defendant wrongfully destroyed the wire fence along said field and along the frontage of the plaintiff’s property, and that along and in front of the orchard on the plaintiff’s said land the defendant cut a hole some six feet in depth and for a distance of about fifty feet and thereby destroyed several valuable fruit trees of the plaintiff; that the defendant wrongfully entered upon the land of the plaintiff and unlawfully took therefrom a large quantity of ground and appropriated it to its own use, and wrongfully destroyed the fence in front of the plaintiff’s garden and constructed a bank about two feet high in front of said garden, thereby throwing the water off of defendant’s right-of-way onto said garden; that immediately in front of the plaintiff’s house, situate on said out-lot, the defendant constructed. a grade some two feet above the established grade of the public street, thereby throwing the water from the road-bed onto the plaintiff’s lot and into the plaintiff’s cellar, thereby preventing plaintiff from having a convenient means of ingress and egress to and from his property; that directly north of the plaintiff’s house and in front of a pasture field having a frontage of twp hundred feet, to a certain creek, the defendant wrongfully and without authority tore down plaintiff’s fence for a distance of some seventy-five feet north of the plaintiff’s house to said creek, and constructed a bank upon which its tracks were laid about nine feet high, said bank causing the water from said creek to back up and flow over the lands of the plaintiff, rendering the same untill able; that over said creek the defendant constructed a bridge and wrongfully extended the abutments on the south side thereof onto the plaintiff’s land some ten feet, and extended the abutments on the north side thereof onto the plaintiff’s land some six feet, and extended all of the right-of-way of the defendant along said frontage over and onto’the plaintiff’s land some five feet, which said five feet of plaintiff’s said land in the construction and laying of its tracks and road-bed the defendant wrongfully appropriated.

By reason of the construction of said grade, the destruction of the plaintiff’s fence and fruit trees, the appropriation of the plaintiff’s ground, the diversion and obstruction of said watercourse, the obstruction of the plaintiff’s means- of ingress and egress to and from his said- premises, the appropriation of plaintiff’s land in the construction of said bridge and the use of said plaintiff’s land for the defendant’s road-bed, as aforesaid, the plaintiff prays judgment against the defendant for twenty-five hundred dollars.'

In its answer to the foregoing amended petition of the plaintiff, the defendant admits its. corporate character, and that it is operating an electric railway as alleged in said amended petition; it admits that the land in dispute abuts upon the road leading from Plymouth to Shelby, that said lands are within the incorporated village of Plymouth, and that it has constructed its railway along the west side of said Plymouth and Shelby road, but it denies each and every other allegation therein.

For its further answer and cross-petition the defendant says that prior to the time of its constructing and building said railroad or operating its said cars, it obtained from the council of the village of Plymouth, Richland and Huron counties, Ohio, a franchise to locate and construct its electric railway upon and along the street of said village described in said petition, and being the street abutting upon plaintiff’s east line of said premises described in plaintiff’s petition; that said railroad was constructed and is being operated under and by virtue of the right granted to this defendant company by said franchise so passed and granted to this company by the council of Plymouth, Richland and Huron counties, Ohio, and that the plaintiff herein signed a written application, consent and request to the council of the village of Plymouth to grant to said defendant company the right and privilege to construct, build and maintain said electric railway, as the same is now constructed and operated on the street abutting on plaintiff’s premises, and by reason of the facts herein alleged, the defendant asks that plaintiff’s petition may be dismissed.

To the defendant’s answer the plaintiff filed a reply in which it denies each and every affirmative allegation contained in said answer.

Under the issues made by these pleadings the cause was submitted to a jury resulting in a verdict for the plaintiff. A motion for a new trial was overruled and judgment entered on the verdict. A bill of exceptions was taken embodying the evidence introduced upon the trial, including the charge of the court, and said cause is now in this court upon a petition in error for review. Numerous grounds of alleged error are assigned in said petition in error for the reversal of the judgment of the court of common pleas, but the plaintiff in error urged upon this court and relied principally upon the following grounds of alleged error, namely:

First, that the court below erred in overruling the motion óf the defendant below to require the plaintiff below to separately state and number the causes of action in his petition.

Second, that the court below erred in admitting any evidence upon the trial of said cause under the amended petition of the plaintiff.

Third, that the court erred in its charge to the jury.

As to the action of the court below in overruling said motion of the defendant in error to said amended petition, we are of the opinion that said court did not err, there being but one cause'of action stated in said amended petition.

Exception is taken to the action of the court below in overruling the objection of the plaintiff in error to the introduction of any evidence upon the part of the defendant in error in support of the averments in his amended petition, the claim being made that if the defendant in error has a cause of action upon which he is entitled to recover damages for any of the injuries complained of, his remedy was under the provisions of Section 6448, Revised Statutes, and not under the provisions of Section 3283, Revised Statutes.

As we view it, Section 3283 was enacted by the Legislature in the interest of abutting property owners for their protection. It contemplates that when a railroad company injures an abutting property owner in his private property rights, by the location and construction of its track or tracks upon the street upon which such property abuts, such company shall respond in damages for such injuries and in such sum as will compensate him for the damages suffered, in so far as his loss can be repaired by a money consideration in restoring to him what he has lost through the location and construction of such railroad.

This statute provides that—

“Every company which lays a track upon any such street * * $ shall be responsible for injuries done thereby to private or public property lying upon or near to such ground.”

We think the language'here used is capable of but one construction and must be taken to mean what it plainly says, namely, that the railroad company shall be held responsible for all injuries of every description done to the abutting property owner in the location and construction of its track and road. We do not think that the injured abutter is required to go into the probate court and" institute proceedings in that court as provided in Section 6448, Revised Statutes, for the recovery of damages for injuries so done to private property and property rights as are set out in the amended petition, but that a remedy is provided for the redress of such alleged wrong in said Section 3283, Revised Statutes. Hence we are of the opinion that the objection of the plaintiff in error at the outset of the trial of this ease to the admission of evidence under said amended petition was properly overruled by the court and that such action of said court affords no ground of error. 45 O. S., 309-318; 12 Ohio Law Bull., 214.

It appears that a franchise was granted to this street railway company by the council of the village of Plymouth to locate its track upon the east side of what is known as the Plymouth and Shelby road, now a street within the corporate limits of said village; fronting the premises of the defendant in error, and that the council of said village by resolution afterward authorized said company to locate its road on the wast side of said street. That said street in front of and along said premises was laid out and originally intended as a public highway to be sixty feet wide and that the plaintiff in error in laying its said track upon the west side of said street found it necessary to widen the same to the full width of sixty feet, the standard width of a state road (said street being then about forty or forty-five feet wdde), and in so doing the defendant in error claims that said company removed and destroyed the fence in front of his .said premises, and also • removed and destroyed several valuable trees growing in his orchard, included in the strip of land enclosed by said fence and which has been so enclosed and occupied by the defendant in error for a period of twenty-five years or more. That said company also erected an embankment along the full length of the premises of the defendant in error, thus raising the grade of said street without authority and in violation of the terms of the franchise granted to said railroad company by said village council, thus destroying the easement to certain portions of the property of the defendant in error, and especially interfering with his right of ingress and egress to and from his property, and by ^unlawfully turning the surface water 'onto his premises and into his cellar and otherwise interfering with his private property rights. It appears that said company acted upon the assumption that it had the legal right to appropriate to its use the property occupied and enjoyed by the defendant in error, for the time stated, described as a part of his orchard and the trees growing thereon, in widening said street to wdiat is claimed to be sixty feet to accommodate the location of its road-bed and track. Whatever the width of said street, if it was less in width than what it was originally laid out and designed to be as a state road by the authorities, and whatever the length of time the defendant in error may have occupied it with his fence and orchard by encroaching upon any part of such sixty feet while a state road, the state through its properly constituted authorities might have asserted its right to such part of said, road occupied by said fence and orchard, as aforesaid, if it had seen fit to do so, because the statute of limitations would not run against the state, but the state could not delegate this attribute of sovereignty to said village which, after its incorporation as such, succeeded by operation of law to the exercise of jurisdiction over so much of said-road as was included within the corporate limits of such village and against which the statute of limitations would run. 56 O. S., 175-179-180; 49 O. S., 98.

And if said company in so widening said street or road removed and destroyed said fence and growing trees in the orchard west of it belonging to • the defendant in error, it is liable in damages for such removal and destruction. In other words, the act of said village in causing said street or road to be widened to what is claimed to be the standard width would be lawful, while the act of said company in so widening said street would be wrongful, entailing upon it the consequences of such wrongful act. Hence, we think it was proper for the court below to submit to the jury, as was done, the various elements of damages claimed to have resulted from the widening of this street or road by said company, by the location and construction of its road-bed and track as aforesaid, and it was the province of the jury to determine the amount of such damages in the light of the evidence tending to show the condition of the property in question before and after the alleged wrongful appropriation by said company, keeping in mind the rule that the abutting property owner should be made whole as to all things in connection with the location and construction of a railroad which tends to depreciate the value of his property. 48 O. S., 637; 45 O. S., 322; 33 O. S., 435.

Objection is also made to the action of the court below in charging the jury in what is claimed to be the “grouping the claims” of the plaintiff.

It is the duty of the court to properly and fully instruct the jury as to the vital issues in a case, and in summarizing such issues that the jury may intelligently understand them we think there is no ground of prejudicial error.

We have examined the record with reference to the other assignments of error set forth in said petition in error, and find no such error therein for which the judgment entered herein should be reversed. The judgment of the court of common pleas will therefore be affirmed, at the costs of the plaintiff in error, but without penalty. Exception noted.


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    ACTION ON POLICY OF LIFE INSURANCE.
    Court of Appeals for Highland County.
    The Metropolitan Life Insurance Company v. David Hillard.
    Decided, December 23, 1913.

      Life Insurance — Conditions Precedent in Contract Require a Showing of Performance — Burden of Proof.

    A life insurance policy contained the following clause: "provided, however, that no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health.”

      Held: That the clause is a condition precedent .and the burden of proof was cast up'on the plaintiff to show that at the date of the policy the insured was alive and in sound health.
    Error to the Court of Common Pleas of Highland County, Ohio.
    This case originated in the court of a justice of the peace of Highland county, Ohio.
    The action was founded on a policy of insurance issued by the plaintiff in error on December 11, 1911, on the life of Elsie Hillard, who was the wife of defendant in error. Elsie Hillard died March 18, 1912.

      The petition pleaded the issuance of the policy, the payment of all premiums, and that said Elsie Hillard and plaintiff duly performed all the conditions of said policy on their part to be performed.
    The defendant, in its answer, pleaded the following stipulation which is found in the body of the policy of insurance:
    “Provided, however, that no obligation is assumed' by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health.”
    The answer also contained the averment that on the date of the policy, December 11, 1911, Elsie Hillard was not in sound health, but was afflicted with tuberculosis, from which she died.
    The trial court was requested to instruct the jury that the burden was upon the plaintiff to show that the insured was in sound health when the policy was issued, Avhieh instruction Avas refused, but the trial court did instruct the jury that in order that the insurance company may be entitled to a verdict in its favor the burden is upon it to prove that on the date of the policy Elsie Hillard was not in sound health.
    This action of the court, in refusing to instruct as requested, and in giving the instruction stated, is the single assignment of error in the case.

      L. B. Yaple, Wilson & McBride and Miles Townsend, for plaintiff in error.

      J. G. Whitaker and J. S. Riley, contra.
    Sayre, J.; Walters, J., and Jones, J., concur.
   The precise question for determination here is not decided in the ITowle ease, 62 O. S., 204; 68 O. S., 614.

The learned trial judge seems to have based his ruling on the case of Piedmont & Arlington. Life Ins. Co. v. Ewing, 92 U. S., 377 (23 L. Ed., 610), where it is held that:

“The burden of proving the truth of the answers in an application for insurance does not rest on the insured or his representative in an action on the policy.”

But the Federal Supreme Court in that ease held that the ansAvers Avere merely Avarranties; and the courts, almost without exception, have held that where there is a defense of a breach of warranty in an application for insurance, the burden of proof as to that defense is on,the insured

The view taken by the trial court is sustained by the following cases: Chambers v. Northwestern Mutual Life Ins. Co. (Minn.), 67 N. W., 367; Murphy v. Metropolitan Life Ins. Co. (Minn.), 118 N. W., 355; Francis v. Mutual Life Ins. Co. (Oregon), 106 Pac., 323, and Bathe v. Metropolitan Life Ins. Co. (Mo.), 132 S. W., 743. In Murphy v. Metropolitan, etc., supra, the court, on page 356 of the opinion, says:

‘ ‘ Therefore, if the insured was not in fact in sound health on the date of the policy, the defendant is not .liable unless it has waived the defense. The burden of alleging and proving such fact was on the defendant. This, for practical reasons, has become the settled law of this state.”

While the Bathe, Chambers, Murphy and Francis cases, supra, support the ruling of the trial court, the majoxdty of the decisions on this question, so far as our investigation has gone, support the view that the burden is on the plaintiff. Mohr v. Prudential Ins. Co., 78 Atl., 554; Packard v. Metropolitan Life Ins. Co., 72 N. H., 1 (54 Atl., 287) ; Johnson v. Merchanlile Town Mut., 96 S. W., 697; Hennessy v. Metropolitan Life Ins. Co., 52 Atl., 490; Barker v. Metropolitan Life Ins. Co., 74 N. E., 945; Lee v. Prudential Life Ins. Co., 203 Mass. 299 (decided October 19, 1909); Anders v. Life Ins. Clearing Co., 62 Neb., 585; Volker v. Metropolitan Life Ins. Co., 21 N. Y. Sup., 456; 25 Cyc., 719.

It will be seen from the authorities above referred, to that while the stipulatioxx ixx the policy under c.onsideration may be a warranty it is more thaxx that — it is a condition precedexxt. The promise of the defendant was coxxditional, and it becáxne absolute oxxly in the even! ¿hat on the date of the policy the insured be alive and ixx sound health.

The authorities above quoted from, which hold that the burden is on the defendant, do not show that this clause in the policy above quoted is not considered a condition precedent, but the burden in those cases was placed on the defendant “for practical reasons.” Murphy v. Metropolitan Life Ins. Company, supra.

In view of the fact that sneh clause in the policy is a condition precedent the provisions of Section 11339, General Code, become highly important:

“In pleading the performance of conditions precedent in a contract, it shall be sufficient to state that the party duly per-, formed all the conditions on his part. If such allegation be controverted, the party pleading must establish, on the trial, the facts showng such performance.”

The plaintiff below pleaded, generally, that he and the insured performed all the conditions on their part to be performed, which was strictly in accordance with the statute, but the defendant then pleaded this condition precedent or rather averred the nonexistence of a fact or state — sound health — which constituted the condition precedent and a failure to comply with it. Under the provisions of Section 11339, it then became imperative, on the part of the plaintiff, to prove that at the date of the policy the insured was alive and in sound health. This threw the- burden on the plaintiff, and the failure to so charge was prejudical-error.

The judgment of the court of common pleas will be reversed, and the cause remanded to that court for a new trial.


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    LIABILITY FOR. INJURY TO AN AUTOMOBILE WHILE BEING LOADED FOR. SHIPMENT.
    Circuit Court of Summit County.
    Arthur H. Marks v. The United States Express Company.
    Decided, October 11, 1909.

      Negligence — Evidence—Ambiguous Signal — Agency.
    1. Whether an ambiguous signal, given by a representative of an express company to the owner of an ■ automobile who was about-to propel it up skids into a car for the -purpose of having it transported, was a signal to come forward or stop, is a question for the jury.
    2. Even if such signal was intended as a signal to come forward and move the automobile up into the car, the owner of the automobile was not thereby constituted the agent of the express company in such sense as to make his subsequent negligence, if any, the negligence of the company.

      Roger & Rowley, for plaintiff in error.

      Hoyt, Dustin, Kelley. McKeehan & Andrews, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The plaintiff in error ivas the plaintiff in the original action. He brought his suit for damages which he alleges resulted to an automobile owned by him, and which the defendant undertook to transport from the city of Akron, Ohio, to the city of Boston. Mass. The plaintiff was the owner of an automobile and arranged with the defendant, through its agent, Mr. Hadden, at Akron, for the transportation 'of the automobile to Boston.

It appears from the evidence that at an earlier date the defendant had transported for the plaintiff an automobile from Akron and that considerable difficulty had been experienced in the loading of the ,auto upon the railroad car of the defendant, and it was agreed between the plaintiff and Mr. Hadden that instead of loading with pulleys and cables, as had been done in the ease of the former transportation of an auto, this auto might be loaded by propelling it by its own propelling machinery onto the ear. The ear had doors opening at the end sufficient to allow the auto to pass in. It was arranged that these doors should be opened and that skids or planks should be placed lengthwise from the sill of these car doors out on to the railroad track at such an angle that the auto could be run up these skids by its own power and thus into the defendant’s car. On or about the 28th of June, 1907, pursuant to this arrangement, the defendant, through its agent, Hadden, called the plaintiff by telephone and said to him that the oar was ready for the shipment of the auto, and asked if the plaintiff could have his auto at the place of loading that afternoon. The plaintiff replied that he would not be able to have the auto there that afternoon, but that he would have it there about 9 o’clock the next morning. There is a disagreement in the testimony as to whether a call was made through the telephone by Pladden to the plaintiff on the morning succeeding the conversation already mentioned, but whether such further conversation took place or not is not important, for on that succeeding morning the plaintiff propelled his auto up to the railroad yard where the defendant’s car was standing. He passed that ear and having reached a point about 150 feet from the car of the defendant, turned his auto around so as to be headed toward the open end of the defendant’s car into which the auto was to be run. Four planks, used for skids, were then in place at the end of the defendant’s car leading from the sill of the door of such car out on to the earth between the rails of the railroad track. These planks were placed two on either side of the door sill, leaving a space between the two on the right and two on the left, but on each side, that is to say, on both the right and the left side, the two planks on the sides respectively were placed so close together, that there was a pathway for the wheels of the auto on either side to run up to the railroad car. The outer plank on either side was nailed to the sill of the car door, and stakes were driven into the ground at the end of each of these outer planks. The inner planks were neither nailed nor staked. This being the situation, the plaintiff having his auto in the position already mentioned, saw Hadden, who was standing near the railroad car, make' a

signal with his hand. This signal the plaintiff understood indicated that he was to come* forward with his anto and' run up the skids, that were ready for him. Hadden says that what was meant by the signal was the plaintiff should stop and not come forward, as the skids were not ready. Understanding, however, as the plaintiff did, that the motion made by Hadden’s hand indicated that he should come forward with his auto, he moved it forward at a slow rate of speed steering it upon the pathway made hy the planks so that it rolled up the planks until the forward wheels of the auto were inside of the car upon the floor, when one or both of the inner planks upon which the end wheels of the auto then were, tipped to such a degree that the end wheels were left without support and the auto dropped and fell and was thereby greatly damaged and injured.

Upon the trial the jury returned a verdict for the defendant. Judgment was entered upon that verdict and by proper proceedings the case is here for review.

It is urged here that the court erred in refusing a motion for a new trial, because it is said that the verdict was not supported by the evidence and was against the weight of the evidence. It is urged further that the court erred in its charge to the jury and in its refusal to charge as requested by the plaintiff.

The claim that the verdict is not sustained by the evidence .is based upon the proposition that the evidence clearly shows negligence of the defendant, and clearly shows that there was no negligence on the part of the plaintiff. We are not prepared to say that either of these claims is correct. Hadden had in his conversation with Marlss by telephone said to him that the car on which the auto was to be shipped, was ready; he had not said to him that all the arrangements for loading the car were ready. He testifies that he had expected before the car should be run up these planks or skids that the two on either side should be held together by cleats nailed on each end. It seems to Be conceded that this seems somewhat improbable because of the fact that the outer plank on either side had already been nailed to the sill of the car. One would suppose that if these planks were- to be cleated together, the cleating would have to be done before they had been pnt in place, and not after the outer planks had been nailed to the sill of the car, so that in order to put on the cleats one would have to get under these planks and drive his nails upward, holding the cleats that were to be put on up against the planks. But whatever plan was to be adopted, or whether any plan would have been adopted, to make this pathway more firm than it was, it is not clear that the defendant had ever notified Marks that it was ready for use, or that it had not intended .to make it more safe for use before the auto should be run upon it. Certainly, under the evidence, the jury might well have found that Marks had never been notified that the skids were ready for the loading of his auto. He had been notified that the car was ready and he had received a signal, which at best can be said to have been ambiguous as to its meaning, and if it were ambiguous before moving his auto on these skids, for it must have been recognized by both the plaintiff and the' defendant’s agent, that as this was a novel proceeding it would be attended with danger, unless the pathway was made firm ,and secure, and very secure, for this auto weighed some 3500 pounds, it would not be safe to run the auto upon the pathway of skids. It is said, however, that as the plaintiff with his machine was something like 150 feet from the foot of these ..skids when he received whatever signal he did receive, and he was seen to move forward with his auto by Hadden, Hiadden should have recognized that he misunderstood the signal and given him a signal by motion of his hands or by words, or in some way, that he could not have misunderstood. -The explanation of this made by Hadden is by no means so unreasonable as that the jury might not well have believed it. That is, that he saw Marks moving forward with his auto, supposing that he had understood his signal and that he would stop at the foot of the skids and not attempt to go any further until he had learned that everything was safe. Surely, if instead of a wave of the hand Hadden had called out to the plaintiff “Do not come,” and had supposed that the plaintiff understood him, whereas, as a matter of fact the plaintiff understood him to say “come,” it could not well be claimed that the defendant was bound, as having thereby wrongfully induced the plaintiff to move his auto forward on the skids. We regard it as by no means clear that the defendant was negligent. As has already been said, this manner of loading an auto was a hovel one, and it must have been recognized by all concerned, that considering the great weight of the .auto great care should have been taken to have the planks or skids properly placed and secured, and the jury might well have found that since the only notice that the plaintiff had received that the skids were all ready for him to move forward was this signal with the hand, which surely had no certain meaning, the plaintiff did not exercise the care which a prudent man should have exercised under the circumstances. We can not reverse the judgment on the ground that the verdict was contrary to or against the weight of the evidence.

This, perhaps, would cover the proposition urged with vigor by counsel for the plaintiff, both in oral argument and in his brief, that the auto, from the time Hadden made the signal to the plaintiff, up to the time of the accident, was in the custody and under the control of the defendant. It was under the control of the plaintiff, and it can not properly be said that even if the signal given by Hadden was that the plaintiff move his auto forward and up into the car that the plaintiff thereby became the agent of the defendant in such wise that his negligence could be adjudged to the defendant, as between him and-the defendant.

The argument is made that if there was any negligence on the part of the plaintiff after he received the signal, such negligence would be chargeable to the defendant on the ground that the plaintiff was acting from that time on ,as the agent of the defendant. This is clearly unsound. If it had. been the auto of somebody else and the signal had been such that the jury should find that it called for the plaintiff to go forward with his auto .and drive up the skids, the position would not be so clearly untenable as it is when the plaintiff himself is the one who moved forward the auto, and who was negligent, if anybody was negligent, in moving it forward. If this auto had been the property of some other person and if the plaintiff really had been the agent of the defendant, and if while so acting as snch agent he had by his negligence caused the injury to the auto, he would himself have been liable, to the owner of the auto, notwithstanding the fact that the defendant would also have been liable in such damages. The negligent agent of one who causes injury is not himself relieved from liability because his principal is liable.

What has already been said disposes of the complaint made that the court erred in saying to the jury that this w,as a simple case of negligence. The court was- right in so saying, because either this was an accident for which nobody was liable, or it was a case where, either by reason of the negligence of the plaintiff or the negligence of the defendant or the combined negligence of the two, injury resirlted to the property. If the plaintiff was entitled to recover in this action, the burden-was upon him, as the court held, to show the negligence of the defendant, and if his own testimony raised a presumption of negligence on his part, as, we are inclined to think it did, the burden was- upon him to remove the presumption.

Complaint is made, as has already been said, that the court failed to give to the jury the plaintiff’s request to’ charge, marked "A,” found on page 109 of the bill of exceptions.

This w,as properly -refused, as we think, for the reasons already suggested in discussing the other propositions in the case.

The judgment of the court of common pleas is affirmed.


text:
    ¡TRIAL FOR'MURDER. IN THE FIRST DEGREE. ^ D
    Circuit Court for Erie County.
    Dominic Selvaggio v. State of Ohio.

    Decided, April 12, 1912.

      Criminal Law — Examination of Jurors on Their Voir Dire — Same Act May he Alleged to Have Been Actuated hy Different Intents — Stole Can Not he Required to Elect Between Counts Charging the Same Crime, When — Competency of Evidence — Charge of Court.

    1. In an examination as to the qualification of jurors to sit in a trial for murder in the first degree, it is not error for the state to ascertain hy proper questions whether a prospective juror would insist on a recommendation of mercy, in the'event that the verdict were to be based on circumstantial evidence.
    2. Where the crime is charged in two counts — -the first that the homicide was committed with deliberate and premeditated malice, and the second that it was committed in the perpetration or attempted perpetration of robbery — it is not error to overrule a motion to require the state to elect upon which count it will go to trial.
    3. Evidence accounting for certain parties, and for their disappearance on the occasion of, the murder charged in the indictment, is competent where so inextricably interwoven with the crime that without it a wrong suspicion might arise as to who was the perpetrator.

      George W. Ritter, for plaintiff in error.

      Henry Hart, Prosecuting Attorney, and George C. Beis, contra.
    Richards, J.; Wildman, J., and Kinkadb, J., concur.
    Error to the Court of Common Pleas of Erie County, Ohio.

      Affirmed by the Supreme Court without opinion, 86 Ohio State, 366.

   The plaintiff in error, Dominie Selvaggio, was jointly indicted with one Rocco Klawetch, alias Rocco Lavecchia, for murder in the first degree in killing one Antonio Viscario. The indictment contains two counts, the first count charging the homicide to have been committed purposely and of deliberate and premeditated malice, and the second count charging it to have been committed. in the perpetration and attempt to perpetrate a robbery of the said Antonio Viscario. The crime is alleged to have been committed upon the 19th day of September, 1911, on Kelley’s Island in this county.

Dominic Selvaggio, upon his trial in the court of common pleas, was found guilty by the jury of murder in the first degree under the second count of the indictment, without any recommendation to the mercy of the court, and has been sentenced by the court upon that verdict to death in the electric chair.

The bill of exceptions contains all the evidence and is very voluminous, consisting of some one thousand pages in addition to a very great many exhibits. The case has been argued both orally and in briefs with great ability by counsel, and we have spent much time in giving a thorough and painstaking examination to the entire record as was demanded by the.importance of the ease. The alleged errors which it will be necessary to examine, relate to the impaneling of the jury, the refusal of the court below to compel the state to elect on which count of the indictment it would proceed, the admission of evidence, the ruling of the court upon a motion to direct a verdict in favor of the defendant, the weight of the evidence, and the charge of the court to the jury.

Many errors are claimed to have occurred in the impaneling of the. jury, but nearly all of them relate to the ruling of the court upon questions propounded relative to the death penalty. A fair sample arises in the examination of Horace Ramsdell, who was qualified and served as a juror. During his examination on his voir dire, he was asked this question by counsel for the state: “If you were satisfied that the defendant did commit the crime as he stands charged in the indictment beyond a reasonable doubt, would the fact that the state did not produce an eye-witness to the actual killing, influence your mind against the imposition of the death penalty?” Against the objection and exception of the defendant he answered: “I don’t think it would; no, sir.”

The contention on behalf of the defendant seems to be that the matter of inflicting the death penalty, or recommending mercy upon the returning of a verdict of guilty of murder in the first degree, rests wholly within the province of the jury, and that it was therefore improper and prejudicial to make the above or similar inquiries.

While the statutes of Ohio leave it entirely with the jury to determine whether they will recommend mercy in the event of returning a verdict finding the defendant guilty of murder in the first degree, yet such recommendation ought to be based on reason and ought not to be the result of mere arbitrary whim or caprice. If a man, for instance, upon examination as to his qualifications as a juror in such a case, should state that if the jury reached a verdict finding the defendant guilty of murder -in the first degree he would insist on a recommendation of mercy if the verdict were based on circumstantial evidence, such answer would indicate a condition of mind of which the state should be advised. The state might desire to exercise peremptory challenges and it would then have an opportunity of taking such action as might be proper with knowledge of the existing conditions. We believe and hold the question to be entirely proper and this holding will apply to all similar questions asked of others who were examined on their voir dire.

Later, in continuing the examination of the same juror, Horace Ramsdell, it developed that he had an opinion as to the guilt or innocence of the defendant, based largely upon what he had read as to- the officers having traced the defendant to Pittsburgh, but upon examination by the court he expressed an ability to lay aside that opinion and base a verdict entirely upon the evidence as he should hear it in court and the- charge of the judge. We think the court, having the juror before him and being able to judge not only Erom his statements but from his manner and appearance, did not abuse his discretion in holding that he was qualified to serve as juror. Lindsey v. State, 69 O. S., 215.

At the conclusion of the impaneling of the jury, the defendant was entitled to three additional peremptory challenges which he did not exercise, and the bill of exceptions recites1: “There now being twelve men in the panel of jurors, and the state and defendant being both satisfied with the jurors, the jury was sworn.” We can not say that he was prejudiced by any action of the court in impaneling the jury. The record discloses that both court and counsel exercised the greatest care in protecting the rights of the defendant in procuring an impartial jury, and it appéars from thé record that a jury was obtained not subject to any legal objection.

At the opening of the case and also at the conclusion of the ease made by the state, the defendant moved the court to require the state to elect upon which count of the indictment it would proceed, which motion was overruled and to which ruling the defendant excepted.

It is entirely clear from the record that there was but one transaction constituting the crime charged in the indictment, the first count charging the homicide to have been committed with deliberate and premediated malice, and the second count charging it to have been in the perpetration or attempted perpetration of robbery. Under such circumstances, it has always been the rule that in order to avoid a failure of justice, the state may set forth the transaction in various counts, and it being but one transaction, may not be required to elect upon whichmount it will proceed. The action of the court in overruling the motion to require an election was clearly correct (State v. Bailey, 50 O. S., 636; Cottell v. Stale, 12 C. C., 467). The rule is concisely stated in 22 Cyc., 394, as follows: “The same act may be alleged to have been actuated by different intents.”

The only claimed error in the admission of evidence which appears to be entitled to consideration, relates to evidence of the death by violence of two men known as the Barlinia brothers, upon the same night and in the same locality as that in which Antonio Yiscario met his death. The record discloses that Yiscario was killed upon the night of September 19, 1911, on Kelly’s Island, by having his throat cut almost from ear to ear, after which his body was thrown into -the lake. He lived in the west half, known as Number 5, of a double house on that island, which portion of the house was also occupied by the defendant, Dominic Selvaggio, and by Rocco Lavecchia, jointly indicted with him and by the two Barlinia brothers, all Italians. The Barlinia brothers were never seen alive after that night and their bodies were subsequently found in the lake, their throats being cut in the same manner as that of Antonio Yiscario.

In order for the state to make a case against the defendant, the practical necessity rested upon it to account for the Barlinia brothers; and their disappearance upón the same occasion as that of Yiscario and at the same place, was so inextricably interwoven with the crime charged in the indictment, that no error was committed by the trial court in allowing the evidence. In the absence of such evidence, the suspicion might well have arisen that- the Barlinia brothers were themselves the guilty parties. The trial court in its charge to the jury, very carefully limited the purpose for which the evidence might be considered and it seems to us it was a proper link in the chain of circumstantial evidence bearing upon the guilt of the defendant. The evidence was admissible for the further reason that the defendant had made conflicting statements to account for the absence of the Barlinia brothers.

In the charge of the court to the jury, the trial judge carefully defines, under the first count in the indictment, the crime of murder in the first degree and the various included offenses. In charging relative to the second count, the jury was told in substance that if they found the defendant guilty of an unlawful and purposed killing while in the commission of a robbery, there could be but one of two verdicts, namely, murder in the first degree without a recommendation of mercy, or murder in the first degree with a recommendation of mercy, and that under the charged in the second count of the indictment, there were no included offenses of lower grade. This language has given us some concern. The statement, together with all other, propositions in the general charge, was excepted to by the defendant.

The court was perhaps not technically correct in the language there used, if it had remained alone and unexplained by other portions of the charge; but the fullest opportunity was given to the jury in other portions of the charge and in the forms of verdict which were submitted, to find upon every aspect of the ease as to any offense charged in the indictment, or any included offense therein, and certainly in view of the holding of our Supreme Court in Adams v. State, 29 O. S., 412, the defendant has no .just cause of complaint.

The remaining alleged errors relate to the action of the court in overruling the motion to direct a verdict, and to the claim that the verdict and judgment are not sustained by the evidence. It would not be profitable to review the great mass of evidence which was introduced in the trial of .this case, and it is sufficient to say upon a careful examination of all of it, we are unanimously of the opinion that the verdict of the jury was fully justified and that the court did not err in overruling the defendant’s motion for an instructed verdict or for a new trial.

Finding no prejudicial error, the judgment of the court of common pleas will be affirmed.

Note. — Selvaggio and his confederate, Lavecchia, were executed in November, 1912.