text:
    ASSUMED RISK.
    [Circuit Court of Geauga County.]
    Cleveland & Eastern Railroad Co. v. Homer Somers.
    Decided, 1902.

      Defective Appliances — In the Form of Hand Couplers — For Railway Cars — Assumed Rislc by Bralceman — Who Had Knowledge that Automatic Couplers were not in Use — The Statutory Requirement as to Automatic Couplers — Hot Applicable to Electric Railways or Railways in Process of Construction.

    1. A brakeman who has full knowledge before entering the service of the company that its cars are not equipped with automatic couplers assumes the risk of coupling by hand.
    2.. The statute providing that railway companies shall equip their cars, is not applicable to roads in process of construction or to electric railways.
    3. It is not error to refuse to direct a verdict for defendant company in a suit by a brakeman who is injured in making a coupling, where the car was loaded with rails extending a foot over the end, necessitating the removal of the brake-staff.
    Burrows, J.; Laubie, J., and Cook, J., concur.
    Heard on error.
   Somers was injured while engaged as a brakeman in coupling cars, and recovered judgment for this injury.

The petition alleged that the company had failed to provide automatic couplers, as required by the statute; and that the plaintiff, without fault on his part, was injured by reason of the neglect of the company in this and other particulars mentioned in the petition.

It was an undisputed fact in the case that the plaintiff, Somers, had full notice'and knowledge that none of the ears of the company were provided with automatic couplers.

1. The court charged the jury that it was the duty of the company to have provided such couplers; and further charged the jury that “if the plaintiff knew that there were no automatic couplers, then the burden would be upon the plaintiff to show, by a preponderance of the evidence, that he used and exercised ordinary care before he would be entitled to recover, provided the injury occurred solely by reason of the want of this automatic coupler.” This was error. There was no circumstance taking the case out of the general rule that a servant assumes the risks incident to his employment, including defective appliances of which he has knowledge. If he was injured solely by reason of hand couplers being used instead of automatic couplers, he would not be entitled to recover, however careful he may have been.-

We are also of the opinion that the court erred in holding that it was the duty of the company to provide automatic couplers, and this for the reason that the statute is not applicable to electric cars, and was not intended to apply to them, and for the further reason that the statute only applies to railroads or parts of railroads in operation, and not to railroads in process of construction, and the cars in use for that purpose.

2. The court erred in charging the jury that the plaintiff might recover if they found that he was without fault, and that he was injured by reason of the negligence of the company in any of the particulars mentioned in the petition. The petition charged that the defendant was negligent in not equipping its cars with automatic couplers; also in the use of cars defectively constructed; also improperly using an angle iron to block the loaded ear, and also in providing coupling appliances that were defective and out of repair.

A verdict for plaintiff could not properly have been based upon any of these alleged grounds of negligence, for reasons already given, as to the want of automatic couplers, and, as to the other of said grounds, because there was no evidence tending to prove either that the company was guilty of negligence as to them or that his injury was caused thereby.

When the court came to charge the jury, none of these things were in the ease, and the jury should have been told that the only grounds of negligence upon which they could place their verdict for plaintiff were the improper loading of the flat car and the neglect to have the brake set on the loaded car. Under the instructions given the jury, they may have based their verdict upon some of the-other grounds of negligence that had on the trial been eliminated from the case.

3. The court also erred in refusing to charge the jury upon the question of the assumption of the plaintiff of the risks incident to the doing of his work in the way it was done. Evidence was given tending to show that the plaintiff knew that the rails were thirty-two feet in length, and the floor of the car only thirty feet, and that the rails loaded upon these ears projected beyond the floor at either end a foot, more or less; and knew also that in loading the rails the brake-staff was often, if not always removed, and a block placed under the wheel of the car to keep it in place when necessary, on account of the grade. On the occasion when plaintiff was injured the car was blocked on account of the grade, the brake-staff was removed, and the loaded rails extended about a foot beyond the floor of the car. The defendant below requested the court- to charge that the plaintiff could not recover if he knew that the rails projected and the brake was not set at the time he undertook to make the coupling. This request was not given, either in form or substance, but the jury was, however, instructed that he could not recover if he was guilty of contributory negligence. If the plaintiff was familiar with the mode theretofore usually adopted in doing this business, and knew that these rails projected beyond the floor of the car, and undertook to make the coupling with that knowledge, he assumed the hazard of any injury he might receive therefrom. lie had to look out for the projecting rails, if he knew they were there, just as he had to look out for the bumpers, or the car wheels, or any other danger necessarily connected with that business.

The more serious question relates to the refusal of the court to direct a verdict for the defendant. The certain cause of the injury was the extension of the rails beyond the floor of the ear, and the neglect of the plaintiff to keep his head below the rails at the time he was coupling the cars. If there had been no projecting of the rails, or if the plaintiff had kept his head below the rails, there would have been no accident or injury. Whether the removal of and neglect to use the brake in any way helped to cause the accident is a matter of conjecture. The testimony is not very explicit and certain as to the knowledge of the plaintiff in respect to the projection of the rails or removal of the brake-staff; and while it seems to be highly probable that he did see or would have seen these projecting rails, if he gave such attention to the surroundings as a man of ordinary prudence would usually give under like circumstances, yet we think the case was one for the jury.


source: Caselaw Access Project

license: Public Domain

text:
    GIFT OF A MORTGAGE.
    [Circuit Court of Lorain County.]
    Della M. Prindle v. Malcolm H. Wood et al.
    Decided, October 12, 1902.

      Gifts — A Mortgage to a Daughter — Becomes an Executed Gift by the Recording of the Mortgage.

    A mortgage on real estate made payable in small annual installments to the mortgagor during his life, payment of the installments to be continued after his death to his wife, and all remaining unpaid at the death of the wife to go to their daughter, becomes an executed and valid gift to the daughter upon the recording of the mortgage; and the residue remaining after the death of the parents belongs to the estate of the daughter, notwithstanding her death occurred prior to the death of either parent.
    Hale, J. (orally); Caldwell, J., and Marvin, J., concur.
   The ease of Prindle v. Wood et al, comes into this court by appeal. The facts are agreed upon, or there is no issue as to any fact in the case.

It appears that on February 21, 1894, Harrison B. Wood, an old resident of this county, conveyed to his son, Malcolm H. Wood, 120 acres of land in Carlisle township for the consideration of $3,000, and at the same .time he took from his son a mortgage to himself, his wife and his daughter. That mortgage in part reads:

“Know all men by these presents, that we, Malcolm H. Wood and Mary R. Wood, the grantors, for the consideration of $3,000, received to our full satisfaction of Harrison B. Wood, Gratia C. Wood and Eifa May Wood, the grantees, do grant, bargain, sell,” etc. “The condition of this deed is such, that whereas the said Malcolm PI. Wood is indebted to said Harrison B. Wood in the sum of $3,000, which said Malcolm H. Wood is to pay in installments as follows, and to the persons named, to-wit, to said Harrison B. Wood the sum of $200 on the first day of April each and every year, commencing April 1, 1895, and continuing during the lifetime of said Harrison B. Wood, or until the same shall be fully paid. At the decease of said Harrison B. Wood what still remains unpaid of said $3,000 shall be paid in installments on the same date to the said Gratia C. Wood, so long as she shall live, or until the same shall be fully paid; at her death whatever may remain of said $3,000 shall be paid at the same time to Eifa May Wood.”

Harrison B. Wood died in 1897. Up to his death payments were made to him precisely in accordance with this mortgage. Mrs. Wood, his wife, died in 1900, and the payments were made to her up to the time of her death. Eifa died shortly before her father.

At the death of Mrs. Wood there remained unpaid about $2,000. The question of law submitted is, whether that mortgage and the residue unpaid at the death of Mrs. Wood belonged to the estate of Harrison B. Wood or to the estate of Eifa May Wood. The administrators of both estates are parties to the suit, and each claims for the estate he represents the unpaid balance.

It is said by counsel representing the estate of Harrison B. Wood that this is, at most, an unexecuted gift on the part of Harrison B. Wood to his daughter, Eifa May, and created in her no vested right in the mortgage; that the consideration, as is conceded here, moved entirely from Harrison B. Wood, Eifa May paying no part of the same.

It must be conceded that to constitute a valid gift of chattels the donor must part with all dominion over the property, and deliver the same to the donee. We suppose this applies as well to an indebtedness as to any other class of property. The gift of a promissory note by a donor against a third party would require an indorsement and delivery to pass the title to a donee and perfect the gift.

But supposing a father, desiring to make a gift to a daughter, loans to a third party $1,000 and takes his note therefor, payable to the daughter, which he delivers to her, it would constitute a valid gift.

Supposing, instead of a note simply, he takes a note payable to the daughter and a mortgage in which she is named as the grantee, and delivers both the note and the mortgage to the daughter, is there any doubt about its constituting a valid gift ?

Supposing the whole contract is written in the mortgage, the daughter named as the grantee, and the mortgage delivered to the daughter and placed on record, we think it would constitute still a valid gift.

We hold further, that a mortgage given to a daughter, under the circumstances indicated, in which the daughter is named as the grantee, the father paying the consideration, and causing the same to be recorded, would become an executed and valid gift. The record of the mortgage would take the place of a manual delivery, and the acceptance of the gift by the donee, under such circumstances, is presumed.

That is this ease, except that ‘it was not made entirely to the daughter; but as to the amount due upon the mortgage at the death of Mrs. Wood we think that the same rule would apply. To the extent of the residue remaining unpaid at the death of Mrs. Wood there was a valid gift to the daughter, and such unpaid remainder belongs to the estate of Effa May Wood, and a decree may be taken accordingly.


text:
    SIDEWALK IMPROVEMENTS AND BIDS THEREFOR..
    [Circuit Court of Summit County.]
    Z. T. Trowbridge et al v. Village of Hudson et al.
    Decided, October 27, 1902.

      Sidewalks — Construction of, under Section 23306 — Not Dependent XJpon Certificate that Money is in the Treasury — Discretion of Counsel in the Acceptance of Bids.

    1. The construction of sidewalks under Section 23306 is not dependent upon compliance with the requirement of Section 2702 (Burns Law) that no contract involving the expenditure of money shall be entered into by a municipal corporation without a certificate that the amount necessary to meet the expense of the improvement is in the treasury and not otherwise appropriated.
    2. In awarding a contract for the construction of sidewalks, the bids received are not competitive and the counsel is not bound to accept the lowest bid; and the discretion of counsel where exercised in good faith in awarding such a contract can not be interfered with by the courts.
    Caldwell, J.; Hale, J., and Marvin, J., concur.
   The plaintiffs bring this action in behalf of the village of Hudson to prevent the village from constructing sidewalks in a manner, as they claim, different from that provided by the statute.

The village took action under Sections 2330b and 2330c, Revised Statutes, to construct sidewalks on certain streets in the village of Hudson. On July 9,1901, a preliminary resolution declaring it necessary to provide stone walks for the village, was passed by the council, and, at the same meeting, another resolution was passed and the mayor of the village was instructed to call a special election for the purpose of submitting to the electors of the village the question of whether bonds should be issued to meet the expense of constructing the walks. On July 31,1901, at a special meeting of the council called for that purpose, a resolution was adopted providing for the holding of a special election on Tuesday, August 13, 1901, at which election the question of issuing $7,000 worth of bonds for sidewalk improvements was submitted to the electors, and at which election the majority of the electors of the village voted in favor of issuing the bonds.

At a meeting of the council on the fourth of January, 1902, a general sidewalk ordinance was adopted by the council and thereafter the clerk advertised for bids for furnishing stone and building of stone sidewalks in the village; the bids to be in by twelve o’clock noon on Wednesday, July 2, 1902. Bids were received in response to this notice, and the notice was duly published. At a meeting held July 12, 1902, the bids were opened and taken up in their order by resolution duly passed. The bids of Bernard, Stocker & Slaughter, and Paul & Henry were rejected. The bid of D. A. Ely was accepted. On July 14,1902, a contract was entered into, signed by the mayor and clerk, with Ely, as provided by law. On July 28,1902, this action was begun in the court of common pleas to restrain the village and Ely from entering into the contract and also from carrying out the same. ■

The first question to be considered is: Is the contract between the village of Hudson and Ely illegal and void because the clerk did not certify to the council that the money required for the contract was then in the treasury to the credit of the fund from which it was drawn, and not appropriated for any other purpose ? This question is determined by determining whether that section applies to the matter of building sidewalks as under the provisions of the statute, under which the council acted in this case.

Section 2330b, Revised Statutes, provides how the expense of constructing sidewalks is to be met, and authorizes the council to issue bonds of the village; and further provides the “bonds may be sold for not less than their par value and the proceeds applied to the construction of such sidewalks, or the council may use the bonds at their par value in payment of contractors without advertising for their sale. And the statute further provides that any property owner may elect whether he or she desires to pay cash for their improvement or have it placed upon the tax duplicate as in such statute provided; and, if any person elect to pay cash.and he or she refuses to do so within thirty days after the completion of the work, then the clerk shall certify the amount to the auditor together with the interest due thereon as provided. It clearly appears from the statute itself that the amount necessary to complete the work could not be known until-the work was completed.

Section 2702, Revised Statutes, in our opinion, does not apply to cases where the work to be done is not to be paid for in cash but is to be done on credit (Cincinnati v. Holmes, 56 Ohio St., 104). It clearly appears from this case that the object of the Section No. 2702 is to restrain the officers of a village or any municipality in fixing an indebtedness on the corporation without any treasury to meet it; and where a statute provides for bonds being issued upon the election of the electors of the corporation, the statute has no place.

Section 23306, Revised Statutes, aside from authorizing the making of a particular kind of improvement, provides the mode and manner in which the funds are to be raised and defray the cost and expenses of it. That being true, the statute itself contemplates that the money is not in the treasury but is to be raised upon the issuing of bonds upon which question the electors themselves vote. And hence, as we hold, Section 2702, Revised Statutes, has no application to the case under consideration.

The second contention on behalf of plaintiffs is that the council had no authority to reject the bids of all the contractors except that of Ely and award the contract to him. The latter part of this section (above referred to) is “the council may reject any or all bids.” But it is claimed that any provision.found in this chapter of the statutes on this subject is applicable to this case; and the plaintiffs to make out their case go back to a former section and endeavor to make it apply to the ease at hand. If no provision was made in the section itself, it might be true that former sections might apply, but where the section itself provides what the council may do with the bids, it must be held that it was the intention of the Legislature that that provision should govern and not the provision found in former sections of the statute. The statute provides for the &ds being on file ten days before the contract is awarded, and provides that all bids shall designate the material proposed to be used. These provisions were made with the object or purpose of giving the council sufficient time before the awarding of the contract to investigate the kind of material each bidder proposed to use, in order that it might select not only the kind of material but the best material. The intent of the statute is that the council may advertise for bids for either stone or cement or both, and after the bids are in and the council learns the prices and the kinds of material that is proposed under the prices, the council may then select the kind of material it will use and the quality of that kind, and then select the bid that complies with that quality and kind; and, when the statute gives authority “to reject any and all bids,” it means what it says, may reject the lowest as well as the highest, may reject any bid, may reject all but one; that one may be the lowest in price for the material selected and the quality of material selected. The one that they select may be the highest in expense but best in quality, and, in the end, the cheapest to the village. This statute was not intended, however, to give the authorities of a municipality power to act corruptly and accept bids that would be greatly to the disadvantage of-the village, through motives of fraud or corruption. The intention ©f this statute brings it clearly within the case of The State v. Board of Ed., 14 C. C., 15. There it was held that where a board of education advertises for bids for constructing a heating plant for a school building, the board is not bound to accept the lowest bid; that bids in such a case are not competitive; that many things besides price enter into the determination as to which would be the better system.

So, in this case, the statute reserves the right to the village authorities to reserve their determination of the kind of walk it will put down, until after the bids are opened and the kind of material selected where different qualities of material appear in the different bids.

Under such facts it is clear that the Legislature intended that when the bids are opened, the kind and quality of material is selected, that any bid that meets the requirement of the selection may be accepted and it need not necessarily be the lowest in actual figures.

In McClain v. McKisson, 15 C. C., 517, which is affirmed in the Supreme Court (McClain v. McKisson, 54 Ohio St., 673), it was there determined that the judgment of the trustees of the water-works board of the city of Cleveland as to the liability of the lowest bidder is final. Courts can not interfere with that option or decision of the council once exercised.

A. S. Cole and I. H. Phelps, for plaintiffs.

Grant & Sieber, for defendants.

But, notwithstanding this matter is left largely, if not wholly and entirely, to the option of the village authorities, yet we received testimony as to which of these bids was the lowest, it being contended by plaintiffs that there was one bid that was lower than the bid accepted, but, after receiving that testimony, the amount of the different kinds required is left in such uncertainty that the court is unable to say that the bid not accepted is lower than the one accepted. Then, too, there was a difference in the quality of the stone, and the evidence before us clearly shows that the Peninsula stone is a better stone than the' Independence stone; it is less subject to changes by action of water and air, less liable to split, and has much less of iron in it. And we see nothing in this evidence to indicate that the council did not act in the utmost good faith in awarding the contract to the defendant to whom it did award it; and there is evidence here in the case to show that the. action is brought largely, if not wholly, in the interests of another stone company.

We find no reason under the law and evidence of this case why the restraining order asked for should be granted, and the plaintiff’s petition is dismissed.


text:
    TRUST ESTATES.
    [Circuit Court of Hamilton County.]
    Percy Jones et al v. William A. Procter et al.
    Decided, November 6, 1902.

      Pleading — Motion for Judgment not Available, when — Trust Estate— Suit for Accounting — Partnership Interests — Power of Trustees as to Disposition of.

    1. A motion for judgment on tbe pleadings is not available to settle important questions of law, or to dispose of tbe merits of tbe case; under sucb circumstances resort must be bad to demurrer.
    2. Where tbe petition in a suit for an accounting as to a trust estate does not aver in wbat particular, if any, tbe estate was injured by tbe compromise complained of, tbe plaintiffs are not entitled to tbe relief prayed for.
    3. Trustees authorized by will to continue a partnership business have, by implication, power to settle tbe affairs of tbe partnership at tbe time' appointed for its dissolution, or earlier if clearly in the interest of tbe trust.
    Giffen, J.; Swing, J., and Jelke, J., concur.
   By the amended petition filed May 13, 1898, and the amendment thereto filed July 2, 1898, plaintiffs, for a cause of action against the surviving partners of Proctor & Gamble, aver that they are the residuary devisees under the will of William Procter, deceased, and as such own an undivided one-eleventh of the residue of said estate; that his interest in the partnership was devised to William A. Procter, James N. Gamble and James Morrison, as executors and trustees upon the-trust; that they continue the interest in said business during the life of his widow, Olivia; that James Morrison was succeeded by Thomas Morrison as executor and trustee; that all of said trustees qualified and executed said trust to the extent of continuing the business until 1890, when the plant and business was sold to a corporation known as the Procter & Gamble Co., the widow of said William Procter being then alive; that by the terms of said will the interest of plaintiffs was to be held by the trustees during the life of Jane Clark Jones, the mother of the other plaintiffs; that no settlement of the partnership business was made by the exeeutors and trustees with the surviving partners; that the surviving partners other than the trustees received the entire consideration paid for the assets of said partnership, partly in cash and partly in stock of the corporation; that at the time of said sale the estate of William Procter was entitled to receive 22% hundredths of said purchase money and stock, and that said surviving partners were obligated to account to and with said estate for that proportion of the amount so received by them, and also for the profits made in the business; that the executors and trustees refused to bring this or any action; that said trustees, about' November 29, 1893, resigned the trust of the portion coming to these plaintiffs, and the Central Trust & Safe Deposit Co. was appointed trustee of that portion in their stead. The prayer is for an accounting.

The defendants for answer say that the Central Trust & Safe Deposit Co., as trustee, accepted from the defendants the sum of $25,000 in full settlement and satisfaction of any and all claims and demands against the surviving members of said partnership, and thereby released these defendants from all liability.

The plaintiffs for reply say that they refused to accept said sum of $25,000 in full settlement, and that the trust company, as trustee, had notice of such refusal prior to November 29, 1893; that defendants, with full knowledge of said refusal, did, on November 29, -1893, voluntarily pay said sum of $25,000 to the Central Trust & Safe Deposit Co., as trustee.

The case is now submitted on a motion made by the defendants for a judgment upon the pleadings. This motion can not be entertained, for the reason that a motion is not available to settle important questions of law, or to dispose of the merits of a ease. This is the office of a demurrer, to which resort may be had (Finch v. Finch, 10 Ohio St., 501; Illinois Cent. Ry. Co. v. Adams, 180 U. S., 28). But inasmuch as the defendants may withdraw the motion and file a demurrer to the reply, we will consider the case as though thus presented.

The question then is whether the trustee had any authority to compromise the. claim of the plaintiffs, and if not, whether they had recourse on the trustee alone or also on the surviving members of the firm. Counsel for plaintiffs claim that the only duty imposed on the trustee by the terms of the will was to hold the residue of the estate after it was ascertained and accounted for by the executors, and that there could be no residue until they had settled in the probate court and were ordered to pay the balance in their hands to the trustee.

It does not appear from the petition what the executors did in. the settlement or management of the estate, except that they continued the partnership business, and acquiesced in the sale of the same to the corporation. In the absence of averment to the contrary, we are justified in assuming that the executors had fully settled the estate other than the interest in the partnership business, which, in itself, composed the residue.

It was the management of this interest that the testator had in view when he appointed the trustees, and their powers were •as full and complete, if not more so, than those of the executors with respect to such partnership business. If the trustees were authorized by the will to continue the business, they had the implied power to settle the affairs of the partnership at the time appointed for its dissolution, or even before if clearly in the interest of the trust. If, therefore, the sale in this ease of the partnership assets to the corporation was made in good faith and was beneficial to the trust estate, it ought not to be disturbed, and having once been effected there could be no difficulty in apportioning the share of the proceeds, and, hence, no necessity for a compromise.

The trustee would clearly be liable to account for such share of the proceeds; and the surviving partners, some of whom were original trustees, having knowledge of the protest of the beneficiaries against the compromise, might be open to a charge of collusion, which, if sustained, would make them also liable. If, however, the $25,000 paid was a full equivalent of the share of stock and other consideration paid for the partnership assets, there would be no good reason to require an accounting; but the pleadings do not disclose in what particular, if any, the trust estate was injured by the compromise, and until it does so appear the plaintiffs are not entitled to the relief prayed for.

If the motion for judgment on the pleadings is pressed the same will be overruled, but if withdrawn and a demurrer to the reply filed, the latter will be sustained.

Kittredge & Wilby and William Worthington, for the motion.

J. J. Glidden and John G. Healy, contra.


text:
    NEGLIGENCE IN WALKING ON A RAILWAY TRACK.
    [Circuit Court of Summit County.]
    Erie Railroad Co. et al v. Kate McCormick, Administratrix.
    Decided, April Term, 1902.

      Negligence — As Between Railway Engineer and Track-Walker — Not Fellow Servants — Speed Ordinance Admissible as Evidence, when —Recovery for Negligence of Engineer Notwithstanding Contributory Negligence of Deceased — Excessive Damages.

    1. In an action against a railway company for wrongful death, an ordinance limiting the speed of trains within the municipal limits is admissible when the negligence charged is that the train which struck the decedent was being run at such a rate of speed as to itself constitute negligence.
    2. A track-walker when out upon the road alone is not a fellow servant with the engineer of. an approaching train, notwithstanding he may have power to flag trains when necessary.
    3. Such a track-walker who goes upon a railway bridge over which trains habitually run at a high rate of speed, knowing there is a train long overdue and without looking for its approach, is guilty of contributory negligence, notwithstanding a municipal ordinance limits the speed of trains at that point to six miles an hour.
    4. But where an engineer who sees such track-walker 800 feet distant, makes no proper effort to slacken the speed . of the train and the ■man is struck and killed, the company is liable' for his death, notwithstanding his own contributory negligence, provided he could not have escaped after discovering his danger.
    5. A verdict of $5,200 is excessive for wrongful death of a track-walker earning $1.25 per day. Amount reduced to $4,000.
    Marvin, J.; Hale, J., and Caldwell, J., concur.
    Error to the Court of Common Pleas of Summit County.
   The case grew out of this state of facts: On the morning of Christmas day, -December 25, 1897, James Thomas McCormick was killed by being struck by a train of the Erie Railroad Company, crossing a trestle in the northeasterly part of this city (Akron). Katie McCormick was appointed administratrix of the estate of the deceased Thomas, and brings suit under the statute authorizing such proceeding to be brought for the benefit of those (the next of kin) who'have a right. The trial resulted in a verdict and judgment for the plaintiff below, and motion for a new trial was made and overruled, and error is brought here to reverse that judgment. A bill of exceptions is filed here containing all the evidence introduced in the court below.

It is complained on the part of the plaintiff in error that the petition fails to state facts sufficient to constitute a cause of action. Without stopping to read from the petition, we hold that the petition does state sufficient facts to constitute a cause of action against the railroad company. Both companies were sued, the Erie and the Nypano, the Erie being a lessee of the other company.

The petition complains of negligence on the part of the railroad company in that it was running its train, which caused the death of McCormick, at a negligent and improper rate of speed. It complains that there was negligence in not giving proper alarm by the ringing of a bell and the sounding of a whistle. It complains that there was negligence in not cheeking the speed of or stopping the train after it was known, or ought to have been known, that the decedent was in a place of danger, where, if the train could not be checked or stopped, he would be killed or seriously injured. One of the charges of negligence, then,' as has already been stated, is that the train was being run at a rate of speed too high and such as made it negligence to so run the train.

There was offered in evidence, on the part of the plaintiff below, an ordinance of this city, which provides that trains shall not run within the city limits at a greater rate of speed than six miles an hour. Objection was made to the introduction of that, and complaint is made that the court allowed that ordinance to be introduced.

It is urged that on the whole evidence it is perfectly plain that the train habitually ran over that part of the road at about the rate of speed that it was running on the occasion of the accident. The train, as a matter of fact, was running, at the time of this accident, probably at least at forty miles an hour. It is said that it is perfectly clear that this was the usual rate of speed at that place, and that the decedent knew it to be so. But remmebering that one of the charges of negligence is, without reference to what excuse the company had.as against the decedent, or any one representing him, the running at a higher rate of speed than prudence would allow, running at such a rate as made it negligence, the question as to whether the ordinance should be introduced must be governed by whether it bears upon that question.

The court allowed the ordinance to be introduced in evidence, and on page 144 of the bill the court explains to the jury just what weight should be given to the evidence, or rather it explains the question upon which the evidence was admissible, and in so charging the jury quoted almost exactly the language of Judge Johnson in the case of Meek v. Pennsylvania Co., 38 Ohio St., 632, and that language is quoted with approval by our Supreme Court in the ease of Davis v. Guarnieri, 45 Ohio St., 470, 485. There was no error in the admission of that ordinance as evidence. And the court, in its charge, properly instructed the jury as to what issue, and only what, that evidence was to be addressed.

There were a number of requests made by the defendant below for charges to be made to the jury. All of the requests made prior to the giving of the charge were given, except the first two.

The first reads—

“If you find that on the day of this injury to McCormick while he was on duty on the defendant's road as track walker, he had no superior with him, but was alone and sole power, control and direction as to the manner and time of pursuing his duties in his then branch and department of service, and the power of flagging trains when necessity required it, then I say to you for that time, and in the operation of train 5 (which was the train causing the death of McCormick) the engineer of said train was a fellow servant with, him, and for the negligence of such engineer the plaintiff can not recover in this ease, and you should find for the defendants.”

That was refused, and properly refused under Section 3365-22, Revised Statutes. Said sub-section reads:

“That in all actions against the railroad company for personal injury to, or death resulting from personal injury, of any person while in the employ of such company, arising from the negligence of such company or any of its officers or employes, it shall be held in addition to the liability now existing by law, that every person in the employ of such company, actually having power or authority to direct or control any other employe of such company, is not the fellow servant, but superior of such other employe; also that every person in the employ of such company having charge or control of employes in any separate branch or department, shall be held to be the superior and not fellow servant of employes in any other branch or department who have no power to direct or control in the branch or department in which they are employed.”

These men were not in the same department of service. McCormick had nobody under him; the engineer did have somebody, the fireman, under him. It is clear the court properly refused to give that charge.

The second is:

“If you find that at and before the twenty-fifth day of December, 1897, the day of McCormick’s injury, he had knowledge or means of knowing that train 5 on defendant’s road had a schedule time between Kent and Akron of thirty-three and one-third miles per hour, and that said train was habitually run over this division, including the bridge in question, at the rate of thirty-three to forty or more miles per hour, then it became McCormick’s duties in discharging his duties as track,' walker to take notice of such speed of said train, and to act and > govern himself according to such rate of speed as said train was actually being run, taking such care of the road and of himself, in going upon, or refraining from attempting to pass over said bridge, as such circumstances in relation to such fast rate of speed required, and he would have no right to rely on the rate of speed provided for in the city ordinances admitted in evidence, and in such case I say to you you should disregard the ordinance and the fact that the bridge was within the city limits.”

That was refused. The court, in refusing that, said, except for the last clause it would probably be proper to give it. But, as has already been said, as to the admissibility of the ordinance on objection made, the court properly admitted it, and without stopping to read what the court said, the court, in its charge to the jury, did properly instruct them as to the effect of that ordinance, and there was no error in refusing to give the request.

The evidence shows that McCormick was what is called a track walker on the line of the Erie road between Tallmadge and Akron; that he was accustomed to walking over this part of the road daily, perhaps more frequently than once a day; that he was entirely familiar with the manner in which the trains were run; that trains habitually ran without regard to the ordinance of the city over this part of the road at a rate of speed in the neighborhood of forty miles an hour; he also knew — it was his business to know — as shown by the rules, he must keep track of the trains — it was his business on this occasion to know that the train was late; it was, as a matter of fact, two'or three minutes more than two hours late; it was his business to know that. Doubtless, he did know it. So that he went on to this bridge, for he was walking from toward Tallmadge to Akron, came to the bridge at the east end of it and was walking across toward the west end, and he either knew or it was his business to know that that train was liable to come at any time. The evidence shows that he was muffled up — his ears were probably muffled; it was a cold morning, as already said, in December; the evidence makes it probable; though not certain, that the bell rang and the whistle was sounded at the Tallmadge road, something like a thousand feet east of this bridge before it reached that road, perhaps 1,500 feet before it reached the road tha,t the whistle blew. This man may not have heard it. It is possible that it did not blow, but the probabilities are very strong that it did, and it seems certain that the man who knew that that train was behind time, whose business it was to know it, and did' know it was liable to come at any time, going on to that bridge without unmuffling his ears and trying to ascertain in some way whether that train was coming, was guilty of negligence. We think that the evidence is clear that McCormick was negligent at the time that he went onto that bridge, so that if he is entitled to recover it is in spite of that proposition of law that he who contributes by his own negligence to an injury is not entitled to recover for such injury.

What was known about it by the engineer running that train, and did he do that which he ought to have done after he knew, or, if he had exercised reasonable care, ought to have known that this man was in this place of danger ? He says that something like six or eight hundred feet, six hundred feet, at any rate, before the place where the man was struck, he saw him; indeed, it must have been further than that, well up toward the Tallmadge road, he saw McCormick; he says that he didn’t know whether he was on the bridge or not. First, he says he was not, but later on he says he did not know whether he was on the bridge or not. He says that he saw him; he saw him with such distinctiveness that he saw there was a wrench over his shoulder; it' was not snowing; he says it had been snowing, but it was not then snowing; he saw this man on the bridge; he must have been on the bridge or on the approach at the west end; he was killed at a point further west than the west abutment of the bridge; he was killed within twelve or fifteen feet of the west end of the approach. He says that he did not thereafter see him, and mentions snow as one of the reasons, but later on he says it was not snowing. The fireman says by reason of there being snow on the ground it flew up around the engine, but the engineer says the wind was blowing from the west, and that the smoke trailed down over the train so that he did not see him when they came round the curve. Possibly he meant to say, although he does not distinctly say so, that the front end of the' engine would come within the line of vision between him sitting on the right hand of the engine and McCormick; but he says the smoke trailed down over the engine and over where he was so as to interfere with his seeing. He says, however, that he sounded the whistle, put on the brake. He does not, in his ■ direct testimony, say that he put on an emergency brake, but he does say later on in his testimony that he did all in his power to stop the train. The fireman says nothing about that, and he nowhere says that there was any checking in the speed of the train at all. If the engineer did not understand that McCormick was in a place of danger when he saw him it is a little difficult to understand why he thought it was necessary to do all in his power to stop that train or check it. The two young men, who were skating nearby, who saw the train, testify about this accident. One of them, and only one of them, says that there was no checking of the speed of the train. The other, on cross-examination, was asked if he could tell within fifty feet when he saw it whether it was so checked. He said he thought he could, but he didn’t say anything about whether the speed of the train was checked, but the other man, whose name I don’t recall, says there was no checking at all. It has already been said the fireman does not say there was, and nobody says there was except the engineer. The result was that the train was not sufficiently checked, at least, to save this man. The evidence shows, and especially by one witness, who was formerly a conductor and perfectly familiar with that line, that at that place and at that time the speed of the train could have been very materially reduced in the distance between the place where the engineer saw the deceased and the place where the engine struck him.

The court instructed the jury properly, that if McCormick was in fault, if he was negligent, no recovery could be had here, unless the engineer could have saved McCormick by exercising that prudence which, under the circumstances, it was his duty to exercise; that prudence which an ordinary prudent man would exercise under similar circumstances. The court charged the jury properly on that.

■The jury must have found, for we think it is certain the jury found McCormick was negligent, that the engineer is mistaken when he says he put on all the appliances he could to check the speed. If he did not think the man was in danger there would be no reason why he should put on all the appliances. We think he did see that the man was in danger, but he reasoned with himself he probably would get out of the way, and he did not exercise the prudence that he ought; at least, that it is not clear that the jury was wrong in finding that.

Tibbals & Frank, for plaintiff in error.

E. F. Voris and A. J. Wilhelm, for defendant in error.

Without commenting upon the other errors complained of, although each one of them has been carefully considered, we find no error (a majority of the court only hold as the opinion is being announced) except in the question of the measure of damages.

Of course, it is difficult to fix a proper amount of damages, but the damages awarded here are such that the interest on the amount of money awarded here as damages would practically amount to as much as this man was earning. The damages were $5,200. He was earning only $1.25 a day; and we think the jury must have intended to give such an amount that the interest on it would have amounted to his wages, or practically his wages, overlooking the fact that if he kept on earning wages to the end of his life, the whole amount would then be gone, whereas, if he put out the money he would still have the capital left, and overlooking the true measure of damages, that it should be a compensation for the pecuniary loss. It is said by some authorities — it is said in Hill on Damages, and some cases are cited in support of the proposition that we take into account, of course, nothing for solace, nothing for wounded feelings, but the care the parent might exercise for the benefit of his children, may be considered, but taking that into accoTint, and being most liberal, we think the jury awarded damages greater than should have been awarded. In a case where a man was earning $1.25 a day, there could not have been such a pecuniary loss as would have required $5,200 to compensate, and unless the plaintiff below is prepared to remit $1,200 from this amount, and accept $4,000, the case will be reversed. Otherwise it will be affirmed.


text:
    LOCATION OF PESTHOUSES.
    [Circuit Court of Lorain County.]

    City of Lorain et al v. Josephine Rolling et al.
    Decided, October 12, 1902.

      Pesthouses — Location of Outside of Municipal Territority — Consent t>y Township Authorities not Necessary — Sections 2142 and 2169.
    Tbe location of a pesthouse does not create a nuisance per se, and tbe site may be selected outside the corporate limits, without first obtaining the consent of the authorities of the township.
    Caldwell, J.; Hale, J., and Marvin, J., concur.
    Heard on error.
   The city of Lorain bought outside the city limits twelve acres of land and was about to erect on it a structure called a pest-house, when this action was brought to restrain the erection thereof on this piece of land by the defendants in error, Josephine Rolling and others, who have property adjoining, or at least across the road from the property in question.

In the trial of the ease it was contended that before grounds could be obtained for a pesthouse outside of the limits of the corporation establishing the pesthouse, that permission must be had from the trustees of the township where it was to be established, if outside of the corporation establishing it, and that this consent was not obtained, and, that being true, the city of Lorain was proceeding unlawfully, and that it was proper and right to restrain its unlawful action.

On the other side, the city of Lorain contended in establishing a pesthouse that it was not acting under the law for establishing a place for sanitary plants; but the two were entirely separate and distinct, and in procuring the grounds and establishing a pesthouse the consent of the municipality or public authorities where it was established, if outside of the city or village, was entirely unnecessary, and, hence, the law pertaining to sanitary plants did not apply. The court below held the law pertaining to sanitary plants did apply.

Now the plaintiffs below, in presenting their case, made this legal point that I have spoken of, as to which law applies, and then offered no evidence as to whether or not this was a nuisance. They undertook to offer some evidence that it would reduce the value of property in that neighborhood, but the only witness called was unable to say, hence no evidence was obtained upon that point.

Then the .defendant proceeded to show that establishing this pesthouse would not render that neighborhood unhealthy or liable to contract contagious diseases from parties who were placed in the pesthouse, and the testimony, so far as the defendant below was concerned, was quite conclusive upon that point. But the court below rendered judgment against the city of Lorain and in favor of the plaintiffs below, and the city of Lorain files the petition in error to reverse that judgment in this court.

There is only one question we are concerned with, and yet we may discuss two, as it will lead to the right conclusion, we think, in this ease.

What statute applies? It is contended that Section 1692, Revised Statutes, subdivision 23 or paragraph 23, giving general powers to municipalities, bestows upon Lorain the authority to establish a pesthouse, and it does in direct terms give that authority. Then Section 2169, Revised Statutes, states where and how that pesthouse may be established, and that puts no restrictions upon the village, so far as obtaining the consent of other municipalities or other authorities if the pesthouse is built outside of the city, and that has been the law for a long time. Then Section 2142, Revised Statutes, with which the court below held that the city must comply in obtaining the consent of the authorities where the grounds were established outside the city, the court held to apply in this case. Section 2169, Revised Statutes, applies to pesthouses; there is no question about-that. The court below held that Section 2142, Revised Statutes, also applied. Section 2142, Revised Statutes, is found in 94 O. L., 342, and also again on page 383; but there is no difference in the two; they both amend Section 2142, Revised Statutes. There is no difference so far in the sections we desire to consider; they are precisely the same. Section 2142, Revised Statutes, pertains to quarantine grounds controlled by the city.

“Any city, village, hamlet or township may establish a quarantine ground or grounds within or without its own limits, but if such place be without its limits, the consent of the municipality or township within which it is proposed to establish it shall be first obtained; and the board of health within the city, village, hamlet or township having quarantine grounds or dump grounds, shall have exclusive control of the same.”

If this pertains to quarantine grounds, then it is clear that the consent of the township where it is established must be obtained — obtained perhaps through the trustees, but it does not state exactly how; but the trustees are the representatives of the township and might give consent; the law probably implies that. But that is not necessary to the consideration of this case, but after consent is thus obtained and the grounds are established, then the corporation establishing them has control.

The title to the act as found in the session laws is, ‘ ‘ To amend Section 2142, Revised Statutes of Ohio, providing for the control of quarantine grounds and relating to the power of boards of health, enabling municipalities to erect and maintain sanitary plants.” That is, the purpose of the act is, to enable a corporation or municipality to acquire quarantine grounds first, and then in addition to that to erect thereon a sanitary plant.

The object of a sanitary plant is clearly defined in the act, as is found in the act itself, and also in the general statutes. Section 2142a, Revised Statutes, definition of sanitary plant: “The expression ‘sanitary plant,’ as herein used, shall be held to mean a structure with the necessary land and all the necessary fixtures and appliances and appurtenances required for the treatment and purification and disposal, in a sanitary manner, of either or both the liquid or solid wastes of the municipality.” So the act provides for obtaining quarantine grounds ■and for building a sanitary plant thereon, and then the grounds and the structure together are to be known as the sanitary plant.

E. G. Johnson and W. L. Hughes, for plaintiffs in error.

Metcalf & Cinniger, for defendants in error.

Well, after obtaining the ground, the act provides that buildings may be erected, and machinery, appliances and appurtenances acquired, necessary for the disposal, in a sanitary and economic manner, of the sewage and garbage, night soil, dead animals, offal, spoiled meats and fish or any putrid substance, or any liquid or solid wastes, or any substances injurious to health of the municipality. This, then, seems to be a plant simply for taking everything that is full of microbes and deadly poisons and injurious to health, and by some sort of machinery purifying it and making it healthy. That is all it is— destroying the poisonous gases and poisoned substances in these refuse matters of all kinds. It has nothing to do whatever with a pesthouse, and the court erred in holding that this assent must be obtained of the township where it was built.

Now certain evidence was taken, and as this case will have to be remanded, perhaps it is well enough to discuss it very briefly. This pesthouse Is erected by authority of law, and certain restrictions and provisions are made in regard to the manner of establishing, erecting and using it. Therefore, the mere erecting of a pesthouse can not be an unlawful thing. The mere erecting not being unlawful, it can not be a nuisance per se.

But if a method is pursued that will necessarily make it dangerous beyond that already contemplated by the law, then it may be a nuisance, and before actual using might be condemned by the authorities and they be enjoined from establishing it. But if the mode prescribed and manner contemplated has been pursued, or if no mode or manner is definitely pointed out by the law, if that generally approved is pursued, then there can be no injunction and no declaring it a nuisance until it is wrongfully used. If it is so negligently used, so carelessly used and so used contrary to the intent of the law, it may become a nuisance, and it may be then enjoined. And that is the whole law of the case as I understand it. Of course, I am not committing the court on what I say now, and the case must be reversed and remanded for a new trial.


text:
    PROCEEDINGS IN AID OF EXECUTION.
    [Circuit Court of Franklin County.]
    Kouns v. Reiniger.
    Decided, January Term, 1902.

      Rights of Debtor — In Proceedings in Aid of Execution — What Credits Are Reached by Such Proceedings — Section 6080-2.
    1. In, a proceeding in aid of execution brought under Section 6080-2 et seq. before a justice of the peace, reaches only debts subsisting at the time of the service of process upon the debtor of the judgment debtor, and does not extend to debts which ripen during the interval between the service of the process and the hearing.
    2. The taking of the money of a debtor without authority of law can not be made legal by applying the fund to the payment of his debts.
    Summers, J.; Wilson, J., and Sullivan, J., concur.
    Heard on error.
   The question raised is whether under the act ‘ To provide for proceedings in aid of execution before justices of the peace,” passed April 27, 1896 (92 O. L., 375; Section 6680-2, Revised Statutes, et seq.), money not owing to the judgment debtor at the time of the service of the order, but owing to him at the time the order to pay is made, may be ordered paid to the judgment creditor.

The defendant in error recovered a judgment against the plaintiff in error before a justice of the peace, and subsequently instituted before him proceedings in aid of execution. The person named in the affidavit was ordered to appear by an order that was served on him on February 27. At the hearing on March 8 it appeared that the judgment debtor was employed by the person named in the order by the year at a salary of $750, payable in bi-monthly installments of $31.25 each on the fifteenth and thirtieth of each month and on the fifteenth and twenty-eighth when the twenty-eighth was 'the last working day of the month, and that the judgment debtor had been paid in full to February 15, and that the installment for the last half of that month would have been paid to him on February 28, and that it was not exempt from execution or attachment. The justice ordered the installment paid to the judgment creditor. The judgment debtor prosecuted error to the court of common pleas, where the order was affirmed, and error is now prosecuted to this court.

It is well settled that the judgment debtor’s right to recover the installment payable February 28 was conditioned upon his remaining until that time in the service of his employer. Larkin v. Buck, 11 Ohio St., 561; Mechem on Agency, Section 635.

The question then recurs whether proceedings in aid of execution reach only debts subsisting at the time of the service of process upon the debtor of the judgment debtor or extend to such as may be in existence at the time of the hearing.

Section 1 of the act, 92 O. L., 375, provides that when a judgment creditor makes oath that any person “is liable to the judgment debtor in any sum of money, whether then due or not,” the justice shall order such person to appear. Section 2 provides that the exact time of service shall be stated in the return, and that the person served, ‘ ‘ from the time of the service thereof shall be liable to the judgment creditor for whatever he was then liable for to the judgment debtor.” Section 3 provides that when the person appear he shall be examined “touching the money for which he is liable as aforesaid.” . o

It is apparent from these sections that the examination is limited to the liability subsisting at the time of the service. The exact time of the service is to be stated and the person served shall be liable for whatever he was then liable for. The words •in Section 1, “whether then due or not,” relate to the time of payment, and indicate that the word “liable” was not used in its broadest sense and so as to include a contingent obligation, for in that event they would have been unnecessary. The words of the statute are, “liable to the judgment debtor in any sum of money, whether then due or not.” Liable is used in the sense of indebted.

A sum payable in any event, though hot yet due, is a debt— debitum in presentí, solvendum in futuro, but a sum payable on a contingency is not a debt, and does not become such until the contingency has happened. People v. Arguello, 37 Cal., 524.

In United States v. Bank, 31 U. S. (6 Pet.), 29, 36, Mr. Justice Story says the word “due” is used in different senses:

“It is sometimes used to express the mere state of incfebt•ment, and then is equivalent to owed, or owing; and it is sometimes used to express the fact that the debt has become payable. Thus, in the latter sense, a .bill or note is often said to be due when the time for payment of it has arrived. In the former sense, a debt is often said to be due from a person when he is the party owing it, or primarily bound to pay, whether the time of payment has or has not arrived.” See also Scudder v. Coryell, 10 N. J. L., 340, 345.

The word “due” is used in the statute in the sense of payable. This interpretation of the act is in accord with the decisions where similar provisions have been under consideration.

In Thomas v. Gibbons, 15 N. W. Rep., 593 (61 Ia., 50), the wages of a brakeman were garnisheed; the answer showed that there was due him at the time of the garnishment $9.70, and that the garnishee owed him no other debt at that time due or to become due, but that he continued in the employ of the garnishee and earned other wages after the garnishment, to the amount of $144. The court rendered judgment for only $9.70, and the plaintiff appealed.

Adams', J., says:

‘ ‘ The question presented arises upon the construction of Section 2975 of the code. The garnishee is required to pay any debt due or thereafter to become due. As to the meaning of the words ‘debt due,’ there can be no doubt. The question is as to the meaning of the words, ‘ debt thereafter to become due. ’ The plaintiff contends that the word ‘debt’ as used is not restricted to a debt then existing, but may also mean any debt which may thereafter originate. But a debt which has yet to originate can not properly, we think, be said to be a debt which is to become due. Of such a debt nothing can properly be predicated. The words ‘to become due’ are set out against the word ‘.due,’ and like it are used to describe the word ‘debt,’ which must mean a subsisting debt.” The judgment was affirmed.

Section 3719, Revised Statutes, of Wisconsin is very similar to the statute under consideration. It reads.:

“The garnishee from the time of service of summons shall stand liable to the plaintiff to the amount of the personal property, money, credits and effects in his hands belonging to the defendant, and the amount of his own indebtedness to the defendant then due, or to become due, and not by law exempt from executions. ’ ’

In Foster v. Singer, 69 Wis., 392, where this section was considered, it is held that “A specified salary per month, to be paid to an employe at the end of each month, is not liable to process of garnishment served before the end of the month in which it is to be earned. It is neither ‘then due’ nor is it, within the meaning of Section 3719, Revised Statutes, ‘to become due,’ because its becoming due depends upon a contingency. ’ ’

See also Edwards v. Roepke, 43 N. W. Rep., 554 (74 Wis., 575); Hadley v. Peabody, 79 Mass. (13 Gray), 200; Phelps v. Railway Co., 28 Kan., 165.

In Newark v. Funk, 15 Ohio St., 462, 464, where a provision of the code, that “any claims or ehoses in action due- or to become due” might be subjected, was under consideration, Welch, J., says:

“Wé do not say or suppose that a salary which is not yet earned, or for the payment of which the proper period has not yet arrived, can be so garnisheed or attached. * * * The rule might, perhaps, safely be laid down, that whenever the debtor himself has a right of action, or a present claim which lapse of time alone will ripen into a cause of action, his creditor may, in the cases specified in the statute, be substituted to his rights by garnishment.”

The policy of a law that would authorize the subjecting of unearned wages" to the payment of debts well might be doubted. Its enforcement would tempt even an honest man to repudiate his debts. In Phelps v. Railway Co., supra, p. 172, Brewer, J., says:

“We may also remark here without enlarging to any extent, that the construction claimed by the plaintiffs would tend to prevent dealings of any kind between the debtor and other parties. By serving a few garnishee notices the future earnings of a debtor might be wholly seized for the payment of his debts, leaving him nothing for personal support. In that way a laborer, however skillful- and however valuable his services, might practically be driven from a community.”

E. L. Pease, for plaintiff in error.

Charles F. Prior, for defendant in error.

It is said in the argument that the court of common pleas entertained a similar view of the statute, but affirmed the order because the plaintiff in error was not prejudiced. We think he was ^prejudiced $31.25 worth. He was served with notice, of the hearing, as provided by the act, and is, we think, bound by the order made against his debtor, and in this view he is wrongfully deprived of his money and it was in prejudice of his rights, for in law it is his money and prejudice to'his legal rights by taking his money without authority of. law, and is not cured by applying the money to the payment of his debt.

The judgment of the court of common pleas is reversed and the order of the justice of the peace set aside at the costs of the defendant in error.


text:
    CONSTRUCTION OF WILLS.
    [Circuit Court of Hamilton County.]
    John H. McCormick, Admr., etc., v. George Dunker et al.

    Decided, January 12, 1903.

      Wills — Words “Next of Kin” Construed — Bequests to Charitable Institutions not Accurately Named in Will.

      1. In construing a will tide words “next of kin” will be taken in their technical sense unless from the context it clearly appears that a different meaning is intended.
    2. If bequests are made to charitable institutions under defective appellations which are not generic, ambiguity may be removed by extrinsic evidence.
    Jelke, J.; Swing, J., and Giffen, J., concur.

       Affirmed by the Supreme Court, without report, May 10, 1904.

   Technical words in a will must be taken in their technical sense unless the contrary clearly appears from the context. We are of opinion that it clearly appears from the will of Henry Duncan (Dunker), deceased, that his widow’s second husband, McCormick, was not included, meant or intended within the term “next of kin” as used in said will, notwithstanding that term’s legal or statutory signification.

Construing the provision for the German Protestant Orphan Asylum in view of decedent’s nativity, residence and associations, and in view of the general and colloquial appellation given to a particular institution in this city, we find no diffi-' culty in finding that testator had in mind and intended to designate the German General Protestant Orphan Asylum now situated on Mt. Auburn, in Cincinnati.

The difference between the case at bar and the cases cited by counsel resisting this interpretation, is that in all these latter eases the name has been a generic one, as “the Sisters of Charity,” in Moran v. Moran, 73 N. W. Rep., 617 (104 Ia., 216); while in the ease at bar there has been a manifest effort to nominate a particular institution, but ambiguity has arisen from an inaccurate or defective appellation. This uncertainty can be removed by extrinsic evidence.

The law is well stated in Paige on Wills, Section 539, p. 622, where the text is well supported by citations to cases adjudicated by high authority:

“Misnomer is especially frequent in devises to charitable corporations. The real names of. such corporations are often never used and never known by people generally; and many testators do not feel the need, in preparing a will, of getting the real name of the proposed beneficiary. They prefer to guess at the name. Hence the number of adjudicated cases upon this point.
“It is an elementary principle that where a corporation is indicated in a will by an erroneous name, such a mistake will not avoid the gift if it is possible by means of the name used, or by extrinsic evidence, to identify the corporation intended as beneficiary with sufficient certainty.”

Also see Woman’s Union Missionary Soc. v. Meade, 131 Ill., 33 (23 N. E. Rep., 603.)

Cohen & Mack, for John H. McCormick.

W. W. Bellew and Herman Merrell, for next of kin of Catherine McCormick.

Chris Von Seggern, for German General Protestant Orphan Asylum.

Arnold Speiser, for St. Aloysius Orphan Asylum.

W. W. Bellew, for the Dunker heirs.

“A mistake in the name or description of the legatee or devisee, whether an individual or corporation, will never render a bequest void, if the name and description used in the will, as applied to the facts and circumstances proved, will identify such person or corporation.”

"When we come to the provision of the will for the “Catholic Orphan Asylum ’ ’ we are not so certain. There is one more element of ambiguity as to this bequest, because at the time of the making of the will there were two institutions in Cincinnati which might answer this appellation. But, taking the will as a whole, and remembering the facts and circumstances of the testator, and noting that German orphans were peculiarly the objects of his bounty, and that the word “Catholic” was used as complementary to the word “Protestant,” we come to the conclusion that the particular institution intended was the German Catholic Orphan Asylum; that is, the institution whose corporate name is and was “the St. Aloysius Orphan Asylum.”

Decree accordingly.


text:
    DEBTS OF RELIGIOUS SOCIETIES.
    [Circuit Court of Hamilton County.]
    Horace W. Males v. Jeremiah Murray et al.
    Decided, March 15, 1902.

      Unincorporated Religious Congregations — Finding of Court as to an Indebtedness of — Rot a Judgment, but a Debt of Record — Who Constitute the Real Debtors.

    1. The finding of a court that a certain amount is due from an unincorporated church is not a judgment, but constitutes a debt of record.
    2. The real debtors in such a case are the members of the church at the time the debt was contracted, who can be sh.own to have in some way sanctioned or acquiesced in its creation.
    The plaintiffs are assignees of a finding of court that the assignors were the owners of a valid claim against the unincorporated Catholic congregation known as the Church of the Atonement. Subsequent to the sale of the property upon which this claim was a lien, the present plaintiffs came into court with petitions alleging that the defendants, the pastor and trustees of the Church of the Atonement, had accumulated a fresh fund of $8,000, and asking that they be required to pay these assigned claims out of it. At the hearing below Judge Hollister dismissed these petitions, 7 N. P., 614, which see for a full statement of the facts.
    Giffen, J.; Swing, J., and Jelke, J., concur.
   The claim sued on in each case is not a judgment, but a finding of the amount due to the plaintiff from the congregation of the Church of the Atonement, constituting a debt of record. It is not a debt of the congregation or of the church as a legal entity, distinct from the members composing it, but it is a debt of those members only who were such at the time the pastor executed and delivered the note upon behalf of the congregation and upon which the finding of the court was based.

All the property at that time controlled by or held in trust for the use of the congregation was sold and the proceeds ordered to be applied to the payment of a mortgage lien, and the balance, if any, to the payment of plaintiff’s claim and others.

D. S. Oliver and George J. Murray, for the petitioners.

J. Ledyard Lincoln, contra.

The fund now sought to be subjected to the payment of plaintiff’s claim was accumulated subsequent to the sale of the premises involved in case No. 1490, from pew rents and other sources, and by a congregation not composed of the same members as when the debt was contracted.

It is true, as suggested by counsel for plaintiff, that for certain purposes a church congregation remains, in legal contemplation, the same body, although its membership has changed, and our Supreme Court has so held in Mannix v. Purcell, 46 Ohio St., 102; but it did not say or intend to say that such congregation could sue or be sued, contract and be liable the same as a person, natural or artificial. The Church of the Atonement was not such a legal entity as could be sued in that name, although its membership had remained the same; and in order to hold a member responsible for its debts it must be shown that such member, in some way sanctioned or acquiesced in their creation. Devoss v. Gray, 22 Ohio St., 159.

There is no attempt in these suits to make the congregation or any of its members party defendant, and hence the real debtors are not before the court, and if they were, the want of a judgment would be a good defense. Clark v. Strong, 16 Ohio St., 317, 318.

Petitions dismissed; the application to make new parties denied.


text:
    INJURY FROM A BROKEN TELEPHONE WIRE.
    [Circuit Court of Geauga County.]
    The Burton Telephone Company v. Nellie Gordon.
    Decided, February Term, 1904.

      Telephone Wire — Breaks and Falls Across Trolley Wires and Onto the Highway — Becomes Heavily Charged and Injures a Traveler — Necessity for Guard Wires.

    Where an injury is occasioned to a traveler upon the public highway by reason of coming in contact with a broken telephone wire which was heavily charged with electricity caused by its falling across the trolley wires of an electric railway:

      Held: That whether or not it was the duty of the telephone company to have safe-guarded its wire by guard wires or other appliances to prevent it from becoming so dangerously charged, is a mixed question of law and fact, under the circumstances of each particular case, to be submitted to the jury; and where the jury under proper instructions from the court finds the company negligent for such failure, a judgment upon the verdict will not be reversed except the verdict is clearly against the evidence.
    The brief of Win. R. King, attorney for plaintiff in error in this case, was as follows:
    No statute of the state of Ohio requires any special construction at the crossing of telephone and power wires. This crossing was constructed of good material and it nowhere appears in the evidence that the crossing was faulty. What a 1‘ guard wire ’ ’ is or that one was ever erected or known does not appear from this record; nor does it appear that a guard wire or any other device would have been effective. Good construction and material being admitted and that the wire fell on the trolley through no fault in the wire or fastenings, but from lightning stroke during a severe storm, and that the construction was that in ordinary use, no different construction disclosed by the evidence being anywhere in use, negligence on the part of the company was rebutted.
    To entitle the plaintiff to recover the duty was on the plaintiff to show by evidence what means should have been used to prevent contact not actually used by the defendant, and that such means would have been effective. In short, what would have been proper construction and in what respect the crossing in question was not properly constructed, this the plaintiff had not shown nor attempted to show, hence there was nothing to go to the jury. In this state of the evidence at the close of the plaintiff’s ease we think the court erred in submitting to the jury the issue as to whether other means should have been used to prevent contact, which in effect said to them that they had a right to speculate outside and beyond the evidence as to what the defendant should have done and decide from their own instincts and ideas that some device or means would have prevented the wire from falling and coming in contact with the trolley, not disclosed by the evidence. We base this contention on the case in 6 C. C. Rep., 606.
    Brief of N. H. Bostwick, attorney for defendant in error:
    Defendant in error contends that reasonable care required that the telephone wire should have been insulated and protected by guard wire or other means in such manner that when it should fall it could not come in contact with the power wire and transmit the dangerous current to the street below. That company’s failure to do so was negligence and was the proximate cause of her injury, and the jury so find it to be. 21 A. & E. Enc. of Law, 2d Ed., 470; 31 L. R. A., 506-570-571, 577 and 590; 39 L. R. A., 499; 53 L. R. A., 147-149; 39 L. R. A., 499; 33 L. R. A., 798; A. & E. Enc. of Law, 2d Ed., 487; 106 Mass., 460; 13 N. P., 234; 43 L. R. A., 508.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    Error to Court of Common Pleas of Geauga County.
   The action below was to recover damages by reason of personal injuries to defendant in error in coming in contact with a wire of the telephone company lying in the public highway, which was heavily charged with electricity.

There was a trial and a verdict for plaintiff below against the company; a motion for a new trial on the part of the company, which was overruled, and judgment upon the verdict.

There is little dispute about the facts. The telephone company, having obtained legal authority so to do some years before the injury, constructed a one-wire line from the village of Middlefield to the village of Burton in Geauga county, along the public highway. Some time after the line was constructed The Cleveland & Eastern Railway Company constructed an interurban electric railway between the same villages over a right of way procured by it, not upon the public highway. At a point about half a mile from Burton the electric railway crossed the public highway, intersecting the telephone line about at right angles. Where the intersection took place the electric railway company put in a pole on the public highway on which it strung four one-half inch copper wires; two feed wires on a cross bar on top of the pole and two trolley wires upon an arm extending out from the pole. The pole was about twenty-one feet high and the arm upon which the trolley-wires were strung was about fourteen feet from the ground. By an arrangement between the telephone company and the railway company the telephone wire was also attached to this same pole about four feet above the two trolley wires, by a glass insulator connected with a metal bracket, and ran across the two trolley wires about four feet above the same to a pole of the telephone company, also on the public highway, about fifteen feet distant. The telephone wire was not insulated, incased or otherwise guarded. During a severe storm on the evening of June 1st, 1901, this pole of the railway company was struck by lightning; it was shivered and the metal bracket with the glass insulator which supported the telephone wire was knocked from the pole and the telephone wire dropped down and across the trolley wires of the railway company and became charged with a large voltage of electricity from the trolley wires. The evidence does not show that the metal bracket was not properly fastened to the pole or that there was any defect in the wire as to strength or size or that it was impaired or deteriorated to any extent. During the same storm a pole of the telephone company at the outskirts of Burton close to the residence of defendant in error, standing in the highway about one-half mile from the pole referred to, was also struck by lightning and.the same wire by the intense heat was severed and that end of the wire next to the first pole referred to fell upon the ground close to the pole, and defendant in error but a very short time after the storm, possibly twenty to thirty minutes, in going to the house of a neighbor upon the public highway at a place where she had a right to be, inadvertently became entangled in the wire and was severely burned and injured by the large amount of electricity in the wire eommunicated from the 'trolley wires of the railway company. The poles of the telephone and railway companies had previously been .frequently struck by lightning and the wires detached, prior to the injury complained of. The wires were placed by the railway company upon its poles as wires are usually placed when electric railway lines and telephone lines intersect each other.

At the conclusion of plaintiff’s evidence a motion was made to take the case from the jury and render a judgment for the telephone company. This motion was overruled as was also, as we have said, the motion for a new trial; and plaintiff in error claims that the court erred in both these regards.

It must be conceded that the judgment of the court below can only be sustained upon the theory that it was the legal duty of the telephone company under the circumstances to have adopted some means that would reasonably prevent its wire from becoming dangerously charged with electricity from the trolley wires of the railway company and that its failure to do so was negligence.

The introduction of electricity as means of commerce is of recent date. That it may be lawfully used is recognized by both the legislative and judicial department of the state. While it is highly useful, at the same time its use is attended by the greatest danger to person and property. Its potentialities for good are great, but its destructive power is equally as great. It is of the most subtle nature, so subtle that its presence can only be determined by contact which, when it is not under control, usually results in death or great bodily injury.

The use of the public highway is primarily for the public convenience for the purposes of travel. The plaintiff below was upon the side of the highway, and she had a right to rely that she was walking in a safe place. She had a perfect right to go on her way justified by the law that her pathway was secure. If these companies had jointly placed something in the public highway* with which she might inadvertently come in contact which was filled with peril, the duty devolved upon them and each of them to show that the peril arose through no fault of theirs.

In Western Union Telegraph Company et al v. State, for use of Nelson, 33 Atlantic Reporter, 763, Justice Page of the Court of Appeals of Maryland in a case where Nelson was killed by reason of coming in contact with a broken telegraph wire heavily charged with electricity from the wires of an electric railway company, well says:

‘ ‘ The railway company pursued its business by means of cars propelled by electricity partially supplied through feed wires over and along the edge of the pavement. The telegraph company had its poles also along the curb line, and its wires extending along the street were over and along the feed wire which carried a deadly current. The privilege so granted thus to incumber the public highway with appliances so likely to become dangerous to the public safety unless properly employed and controlled, imposed upon them, and each of them, the duty of so managing their affairs as not to injure persons lawfully on the streets. They owed it to Nelson that his lawful use of the street should be substantially as safe as it was before the telegraph and railway plants had so occupied it. It was their plain duty not only to properly erect their plants but to maintain them in such condition as not to endanger the public.”

Manifestly this is the true rule. Highways are not for the benefit of private corporations, although of a public service character, but for the convenience of the public and when they are appropriated for any other purpose than ordinary public travel reasonable care requires that the care proportionate to the danger must be exercised by such corporations to protect the traveler from harm. This legal principle can not be too often emphasized.

In Denver Consolidated Electric Company v. John H. Simpson, 31 L. R. A., 566, it is held:

“An instruction that a company maintaining an electric wire carrying a dangerous current over a public street or alley is not an insurer of the safety of passers-by, but in constructing its line and maintaining the same is bound by the utmost degree of care and diligence — that is, to the highest degree of care, skill and diligence so as to make the same safe against accidents so far as such safety can by the use of such care and diligence be secured — is not erroneous, although it is better to instruct the jury that the company is bound to exercise that reasonable care and caution which -would be exercised by a reasonably cautious and prudent person under the same circumstances. ’ ’

Campbell, J., in the opinion says:

“We think the court was unfortunate in attempting to draw any distinctions in the degrees of care or negligence. It would have been safer and the better practice to instruct the jury, which ought hereafter to be observed, even in cases like the one before us, that the defendant was bound to exercise that reasonable care and caution which would be exercised by a reasonably prudent and cautious person under the same or similar circumstances. '
“In addition to this, the .jury should have been instructed that the care increases as the danger does and that where the business in question is attended with great peril to the public, the care to be exercised by the person conducting the business is commensurate with the increased danger. But in effect this is what the court did. Under the facts of the ease, the law required of the defendant, conducting, as it did, a business so dangerous to the public, the highest degree of care which skill and foresight can attain, consistent with the practical conduct of its business under the known methods and the present state of the particular art.”

Would not the exercise of reasonable care upon the part of these two companies that jointly occupied this pole for their wires have required that they should have put up guard wires or adopted some other appliance to have prevented the two wires from coming in contact with each other ? They necessarily knew that if the telephone wire fell across the trolley wires injury and possibly death very probably would follow. Had not the break taken place the central station at Burton would have been burned out. If connection was made, a patron with his ear at a telephone on the line would have been injured, possibly killed.

The poles of both companies had many times been previously struck by lightning in electric storms, wires detached, and just such an occurrence as this one should have been anticipated; yet nothing whatever was done to prevent the wires from coming in contact.

In order, however, that a party may be liable in negligence, it is not necessary that he should have contemplated or even been able to anticipate the' particular consequences which ensued or the precise injuries sustained by the plaintiff. It is sufficient if, by the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act or omission or that consequences of a generally injurious nature might have been expected. 21 A. & E. En. Law, 487.

In case of United Electric Railway Company et al v. Shelton, 89 Tenn., 423 (14 S. W. R., 863), the court held:

“The wire of a telephone company had become impaired where it crossed an electric railway wire, and was in such a condition as to arrest the notice of a prudent man engaged in the business of either company. There was no guard wire over the electric wire. The fall of a burning building broke a telephone pole, which caused the telephone wire to break and fall across the railway wire; and, while in this condition, plaintiff’s horse came in contact with the telephone wire, and was killed. Held: That both companies were negligent and liable for the value of the horse. ’ ’

Turney, C. J., in the opinion says:

“Shelton’s horse was killed by coming in contact with a wire of the telegraph and telephone company which had fallen across the trolley wire of the electric railway company. The wire of the telephone company had become much impaired. The falling of a wall of a burning building broke a pole of the telephone company, breaking the wires at several points. At the point of the accident the telephone wires crossed the railway track above the trolley. A broken wire fell across the trolley wire, and, while resting on it, the horse came in contact with it and was instantly killed. There was no guard wire over the trolley wire. The ease was tried by the circuit judge without the intervention of a jury. The condition of the telephone wire was such as to arrest the attention of a prudent man engaged in the business of either company. The circuit judge found, under the facts, that both companies were guilty of negligence and responsible for the loss, and gave judgment accordingly. The judgment is correct. While it was the primary duty of the telephone company to see that its wires were in a reasonably safe and sound condition, and protected against the contingency of falling, it was also a duty of the electric company to see that its trolley was in like manner protected from such contingency. While it was the duty of the one company not to use unsound and unprotected wires, it was equally the duty of the other not to operate its road under such defective machinery. It might as well insist that it was not responsible for damages resulting from the fall of a hanging rock which it had constantly recognized as threatening to fall, or of a dead tree which it had frequently noticed with decayed and giving roots, and knew would fall in the first wind or rain. The obligation to see that its road was in good repair, and its machinery in safe operating order, is not confined to the immediate and abstract presence of either, but extends to all surroundings that may depreciate the security of either. Both companies lmew of the unprotected trolley, and the consequences of a contact of the wires of the one with those of the other. Both knew of the unsoundness likely to produce a fall of the one upon those of the other. Both were bound to guard against such likelihood, and, having failed to do so, are liable. Affirmed. ’ ’

In Block v. Milwaukee Street Railway, in the Supreme Court of Wisconsin, 89 Wisconsin, 371 (61 North Western Reporter, 1101), was a case in which Block was injured in coming in contact with a telephone wire which had fallen upon the defendant’s trolley wire, and the negligence complained of was the failure of the street railway company to put guard wires over its trolley wires so as to prevent the telephone wires from coming in contact with the trolley wires. The judge, upon the trial of the ease, instructed the jury that such failure constituted negligence as a matter of law and practically told the jury to return a verdict for plaintiff. Upon appeal to the Supreme Court, Newman, J., who rendered the opinion, says:

“In the present condition of the science and of the practical knowledge on this subject it can not be said, as a matter of law, what method of guarding the wires shall be required, nor whether any guards shall be required; for it is not known to the law that any method now known will prove' effective. But it is a question for the jury, under all the facts in the ease, to determine whether the method actually used was negligent. The trial court treated this question as one of law. He instructed the jury, in effect, that guard, wires placed over the trolley wires is the approved method of protecting the telephone wire, in such places, and refused to submit to the jury in the special verdict the following question proposed by defendant: ‘Did the defendant in the construction and operation of the street railway in question exercise such care and prudence for the safety of persons using the highway as men of ordinary intelligence and prudence engaged in operating the railway in question would have exercised at the place in question ? ’ The instruction virtually took the question of defendant’s negligence from the jury. The refusal to submit the question asked withdrew it altogether from the. jury. The question of defendant’s negligence is always for the jury, unless the negligence is so clear from the evidence that intelligent minds can not fairly form different conclusions upon it. The question was a proper one to be submitted in a special verdict. It related to a material issue of fact, and one upon which the case in a large measure turned. Both the charge upon this point and the refusal to submit this question were error. This is in no way inconsistent with what was decided in State v. Janesville Street Railway Company, 87 Wis., 72 (57 N. W., 970). That case was on demurrer to the complaint. The action was mandamus to compel the railway company to put guard wires above its trolley wires at crossings. An ordinance of the city required it. The complaint alleged the ordinance, and that guard wires are the ppoper and approved method of preventing danger from the falling of the telephone wires upon the trQlley wires. These facts were admitted by the demurrer. The case in no way involved the decision of the question whether guard wires are the proper method,' or whether it is negligence to omit the guard wires.”

Wm. G. King, for plaintiff in error.

N. H. Bostwick, for defendant in error.

Not only in the case of The State, ex rel Wisconsin Telephone Company, v. Janesville Street Railway Company, 87 Wis., 75, but in many other cases it has been held that an ordinance requiring the company to put up guard wires is a reasonable provision and that is the general holding upon that question (31 L. R. A., Note, pages 582-583, etc.) If such an ordinance of a municipal corporation would be a reasonable provision, can it be said that, when a jury under all the circumstances of the case, finds that such provision should have been made by the companies to protect the traveler, its finding is wrong? Furthermore it is for the jury to draw the inference under a given state of facts, when, fair intelligent minds would differ as to whether or not it was negligence. Block v. Milwaukee Street Railway Co., supra.

To the same effect is the case of Cincinnati Street Railway Company v. Snell, 54 O. S., 197.

We think the court was right in not taking the ease from the jury and in also overruling the motion for a new trial.

It is hardly necessary for us to say that in such ease both the railway company and the telephone company would be liable, and if jointly liable, they would be severally liable. McKay v. Southern Bell Telephone Co., 19 Southern Reporter, 695; City Electric St. Ry. Co. v. Conery, 33 Southwestern Reporter, 426.

Judgment affirmed.