author: ALLREAD, J.

text:
    FRAUD — INSURANCE—LIMITATIONS.
    [Miami (2nd) Circuit Court,
    April 10, 1911.]
    Allread, Ferneding and Dustin, JJ.

      Provident Savings L. Assur. Co. v. Jessie DeCamp Statler.
    1. Insured under Life Policy Induced by Fraud may Recover Full Amount of Premiums and Interest.
    It is the settled law of this state that the holder of a policy of life insurance induced by fraud and misrepresentation may, by an action brought in due time, recover from the insurance company the amount of premiums paid with interest thereon and without deduction for intervening insurance which he has had and enjoyed.
    ?. Limitation of Agent’s Authority Endorsed on Policy, Receipts, not Defense in Suit for Recovery of Premiums.
    A limitation of the authority of agents, endorsed on the policy and on notices and receipts sent to the policy holder, are not available to the company as a defense, where the policy holder opened negotiations with the company direct and ’dealt with one who was termed “manager.”
    3. Representations to Prospective Insured Regarding Profits Accruing to Insurer Question for Jury.
    Representations made to a prospective policy holder as to profits accruing to the company, based upon past experience of the company, may have been intended as more than mere opinion and have constituted a representation as to the present condition of the company and its earning capacity upon which the assured had a right to-rely, and the question of fact as to the meaning of such representations and the intention with which they were made, unlike the construction of a contract, may properly be submitted to the jury under proper instructions.

      4. Wide Departure between Calculations as to Profits when Insured and Realizations Later Evidence of Fraud — not Controlled by Limitations.
    A wide departure between the calculations made as to profits at the time the policy was taken out and the realization eight years later, constitutes evidence which may be considered by the jury upon the question of the falsity of the representations; and in an action for the recovery back of premiums paid no bar is raised by the provisions of Sec. 9403 G. C., nor by the four years’ statute of limitations where the petition alleges that the plaintiff continued to rely upon the representations in making his quarterly premiums, nor is the claim available to the company that the plaintiff should have read his policy where the falsity of the renresentations as to profits would not have been revealed by such reading.
    5. Finding of Jury that insured Relied on Representations not Disturbed because so Extravagant as to Impute Notice.
    A jury having found that the policy holder did rely upon the representations so made to him as to profits, their finding will not be disturbed on the ground that the representations were so extravagant and the returns so large as to constitute notice to a reasonable person as to their falsity and negative any weight to rely thereon.
    [Syllabus by the court.]
    Error to common pleas court.

      Broomhall & Broomhall, for plaintiff in error:
    Cited and commented upon by the-following authorities: Aetna-Ins. Co. v. Reed, 33 Ohio St. 283; Armstrong v. Karshner, 47 Ohio St. 276 [24 N. E. Rep. 897] ; Langdon v. Insurance Co. 199 N. Y. 188 [92 N. E. Rep. 440]; Vorys-Y. State, 67 Ohio St. 15 [65 N. E. Rep. 150] ; Proseck v. State, 38 Ohio St. 606; Welker v. Toledo, 18 Ohio St. 453; Rindskopf Bros. <& Co. v. Doman, 28 Ohio St. 516; Provident Sav. L. Assur. Soc. v. Withers, 132 Ky. 541 [116 S. AY Rep. 350] ; Union Cent. L. Ins. Co. v. Kook, 62 Ohio St. 256 [56 N. E. Rep. 906] ; Bostwick v. Insurance Co. 116 Wis. 392 [89 N. AY. Rep. 538;'92 N. W. Rep. 246; 67‘L. R. A. 705n] ; United States L. Ins. Co. v. Wright, 33 Ohio St. 533; May, Insurance See. 567; Connecticut Mut. L. Ins. Co. y. Pyle, 44 Ohio St. 19 [4 N. E. Rep. 465] ; Metropolitan L. Ins. Co. v. Feliz, 73 Ohio St. 46 [75 N. E. Rep. 941; 4 Ann Cas. 121] ; Fulton v. Insurance Co. 7 Ohio (pt. 2) 5; Landis v. Kelly, 27 Ohio St. 569; Thompson, Trials Sec. 1072; Fry v. Insurance Co. 40 Ohio St. 108: Thompson, Trials Secs. 2309, 2315; Crooks v. Fldrige, 64 Ohio St. 195 [60 N. E. Rep. 2031;
      Breese v. State, 12 Ohio St. 146 [80 Am. Dec. 340] ; Washington Mut. Ins. Co. v. Insurance Co. 5 Ohio St. 450; White v. Thomas, 12 Ohio St. 312 [80 Am. Dec. 347]; Pittsburgh, Ft. W. Ry. v. Slusser, 19 Ohio St. 157; Hadley v. Importing Co. 13 Ohio St. 502 [82 Am. Dee. 454] ; Steel v. Kurtz, 28 Ohio St. 192.

      Ferdinand Jelke, Jr., and C. B. Jameson, for defendant in error:
    Cited and commented upon by the following authoritiesr McKay v. Insurance Co. 124 Cal. 270 [56 Pac. Rep. 1112] ; I May, Insurance p. 231; Kehm v. Insurance Co. 11 Dec. 739' ,(8 N. P. 542) ; Elec-tic. Life Ins. Co. v. Fahrenkrug, 68 111. 463; United States Life Ins. Co. v. Wright, 33 Ohio St. 533; 14 Am. . & Eng. Ene. Law (2 ed.) 206, 208; Floyd v. Paul, 6 Dec. Re. 1185 (12 Rec. 231) ; Hetland v. Bilstad, 140 Iowa 411 [118 N. W. Rep. 422] ; Buena Vista Co. v. Billmyer, 48 W. Va. 382' [37 S. E. Rep. 583] ; American Nat. Bank v. Hammond, 25 Colo. 367 [55 Pac. Rep. 1090] ; Clayton ~v. Cavender, 1 Marv. (Del.) 191 [40 Atl. Rep. 956]; Abat v. Segura, 6 Mart. N. S-(La.) 237; Andreivs v. Jackson, 168 Mass. 266 [47 N. E. Rep.. 412; 37 L. R. Á. 402; 60 Am. St. Rep. 390] ; Broivn v. Bayer, 91 Minn. 140 [97 N. W. Rep. 736] ; Snively v. Meixsell, 97 III.. App. 365; Stubbs v. Johnson, 127 Mass. 219; Simar v. Canaday, 53 N. Y. 298 [13 Am. Rep. 523] ; Beckwith v. Ryan, 66 Conn. 589 [34 Atl. Rep. 488] ; Equitable Life v. Maverick, 78 S. W.. Rep. 560; (Tex. Civ. App.) ; Rohr Schneider v. Insurance Co. IQN. Y. 216 [32 Am. Rep. 290] ; I Biddle, Insurance 431; Gerhard v. Bates, 2 E. &■ B. 476; Edgington v. Fitzmairice, 29-Ch. D. 459; Union Cent. L. Ins. Co. v. Potiker, 33 Ohio St. 466-[31 Am. Rep. 555],

      Affirmed, no op., Provident L. Assur. Soc. v. Statler, 88 O. S. 549.

   ALLREAD, J.

Jessie DeCamp Statler brought suit in the court of coim mon pleas to recover the amount of certain premiums paid by her upon an insurance policy, with interest. She claims as’a foundation of the action that she was induced to give up a. yearly renewable term policy upon the life of her father, Ezekiel L. DeCamp, and take a level rate premium poliev on a. Iwenty year limited plan and keep up the premiums thereon,,. upon certain representations of the company. The material representations of the petition are that:

“Defendant company further represented to this plaintiff that the new policy would provide for paid up insurance, extended insurance, and additions at death, and participation in profits which in a few years would fully offset and pay the notes exacted on account of the reserve against the policy. Plaintiff further says that the said defendant company represented that at the expiration of the term in May, 1908, all premiums having been paid, said policy would become paid up for life in the sum of $5,000 and that there would be due in cash on account of the shares of the profits found to be apportionable to said policy over and above all notes and interest, a balance of $1,144.90.” ■

Appropriate averments were made showing the falsity of the representations and the reliance of plaintiff thereon. The issues were joined and the case was tried, resulting-in a verdict for the plaintiff for the full amount claimed.

The cause is here upon petition in error.

It is, we think, settled in this state that a policy holder whose policy has been induced by fraudulent misrepresentations, may, by action brought in due time, recover of the insurance company the amount, with interest, of the premiums paid, and without deductions for supposed benefit of intervening insurance. Union Cent. L. Ins. Co. v. Pottker, 33 Ohio St. 459, 466; United States L. Ins. Co. v. Wright, 33 Ohio St. 533. See Caldwell v. Insurance Co. 140 N. C. 100 [52 S. E. Rep. 252].

The assurance company contends that the agent making the representations had no authority to bind the company. This contention is founded upon a limitation of authority of agents endorsed upon notices and receipts of premiums sent to policy holders, and by the following endorsement on the policy:

“Agents are not authorizing to make, alter or discharge these contracts or to waive any of the provisions thereof or to extend these assurances or to grant permits or to bind the society in any way.”

In making this contention, however, we think that the important fact is overlooked, that the transaction here was had through a special representative. Negotiations were opened up by the policy holder with the company direct. It is not clear how Bosworth & Company, for whom Rohrer- acted, were brought into the transaction. But it is shown by satisfactory evidence that they acted for the company and as its special representative in making the exchange of policies, and were referred to by the company in the negotiations as “our manager at Cincinnati.” There was no intimation in the present transaction of limited authority, until it came to the endorsement on the policy. Whatever might be the binding force of a limitation of this kind upon soliciting agents or even so-called general agents, it .should not be extended to apply to a “manager.” The authority of a manager is generally understood to be unlimited as to scope. It is true that the letter of the company to DeCamp in which Bosworth & Company were styled “manager” was subsequent to the representations, but it was pending the transaction, and before entirely concluded, and before the premiums were paid. If the company, instead of representing Bosworth & Company as “manager,” had stated that they were limited agents, having no authority to bind the company, a different case would be presented. Rohrer acted for Bosworth & Company and presented the representations prepared explaining the policy and making the representations the company is bound. The court of common pleas rejected evidence of the private contract between Bosworth & Company and the Assurance Company. This was entirely proper in view of the express authority contained in the letter to DeCamp.

It is contended that the Rohrer letter upon which the plaintiff relies is neither false nor misleading, and that the policy holder had no right to rely and did not in fact rely thereon.

It will be noted that the profits of the assurance company was a material consideration in several clauses and features of the policy. While the loan values and additions at death are expressly stated and guaranteed in the policy, the amount of the profits are not stated nor is any basis given in the policy for calculation. Clause 4 on page 2 of the policy provides for distribution of profits, and under the guarantee clause on page 3 the policy holder may, at the end of the accumulation period, surrender the policy and receive $3,950, and in addition thereto the cash profits. Under another clause on the same page the assured is authorized to continue the insurance as a paid-up life contract for its full amount and draw profits in cash.

The Rohrer letter and statement contain certain representations as to profits based upon past experience of the company. Such assurances may fairly have been intended to be more than mere opinion. They may have constituted a representation of the present condition of the company and its earning capacity, upon which the assured had a right to rely. Both DeCamp and Mr. Statler testify that they did rely upon Rohrer’s representation, and while they made inquiry of others as to certain features and for advice, there is not sufficient evidence to overthrow their testimony that they did in fact rely upon the representations of the Rohrer letter. It is insisted that the Rohrer letter is based upon the condition “all premiums having been paid,” and that this includes the payment of all the premiums from 1888, and that the policy holder having only paid the premiums from 1890 did not come within the scope of the representations. This construction of the Rohrer letter is more ingenious than convincing. The representation was made with reference to the identical policy proposed to be exchanged and was intended to include the payment only of premiums called for in the exchange. It would be unreasonable, in our view, to assume that the letter contemplated'the payment of premiums which were never to be paid or called for under the exchange. And also we think that the contention of counsel for plaintiff in error as to the construction to be given of the clause of the Rohrer letter in reference to paid up insurance, extended insur'ance, and additions at death offsetting the lien against the policy is too narrow to be adopted by the court.

Whether the statements in the Rohrer letter were actually intended in the sense contended for by counsel for plaintiff below was submitted to the jury under proper instructions, as a question of fact.

It is also urged that the representations of the letter are so extravagant and the returns so large as to constitute notice to a reasonable person of their falsity and negative any right of reliance thereon. AVhether the policy holder did in fact rely upon the representations is a question of fact to be determined from the evidence, and we are not prepared to lay down a proposition that would permit the perpetrator of a great fraud to escape the consequences thereof because of the extravagance of the representations and credulity of the person defrauded. AAThen the question of fact is fairly determined that the party defrauded did in fact believe and rely upon the representations and parted with value, it is not competent for the one guilty of the fraud to set forth in justification that the party defrauded was too credulous and ought to have exercised better judgment. Again, it is urged that the representations of the Rohrer letter •are mere estimates of future earnings and as such did not legally .justify reliance thereon.

The representation of the Rohrer letter in this respect is as follows:

“At the expiration of the term (1908), all premiums haring been paid, the policy becomes paid up for life, $5,000, and there is due in cash the shares of the profits then found to be apportionable to said policy. Past experience of our company warrants us in figuring such policies as yours at a dividend paying basis of $920 on each $1,000 of insurance, which would figure your policy at $4,600 less notes and interest, $3,455.10, leaving a cash balance of $1,144.90, and a paid up contract for life for $5,000.”

This representation is one of present condition of the company based upon past experience. It may be considered a representation of an existing fact, to wit, existing condition as represented by past experience,' from which the company, through its agent, merely calculated as .to future results as a bank figures dividends. It is not necessarily based upon the .future uncertainties but reflects upon present conditions. The policy holder was, therefore, entitled to rely upon this representation, and the representation tends to sustain the charge made in the petition in reference to “paid up insurance” and “participation in profits.”

It is urged that there is no proof of the falsity of the representation of the Rohrer letter as to existing condition of the company as to profits. The representation is', in substance, that, based upon past experience, they were warranted in figuring this policy on a dividend paying basis of $920 on each $1,-000 of insurance, and that this would figure the policy under consideration at $4,600, less notes and interest, leaving a cash balance of $1,144.90, together with paid up insurance of $5,000.

It is tine that there is no exhibition in evidence of the precise condition of the company at the time this representation was made, but that is not essential. The company itself admits in 1908 such a state of affairs as to constitute a wide departure from its assurances based upon past experience and present condition. Instead of the profits of the company being such as to offset the reserve note, the condition of the company proved to be such that the assured would only receive by surrendering his policy and all benefits thereof $134.90 in addition to the reserve note and contract. The wide departure between the calculations made in 1900 and realization in 1908 is some evidence to be considered by the jury upon the subject of the falsity of the representations in the Rohrer letter. The only explanation attempted to be made is the reduction in the approved values of the real estate in the sum of $440,000 made by the New York insurance department. This reduction may be fairly considered as tending to show the inferior condition of the assets of the company rather than as a satisfactory explanation of reduced profits.

It is figured that the assurances in the Rohrer letter, whether considered as a contract or as a representation, was in violation of Sec. 9403 Gr. C. and should not therefore be made the basis of a cause of action.

We are unable to understand how any of the provisions of this statute prevents a right of action for fraudulent representations. This action does not seek to enforce the representations as a contract, but simply to recover the premiums that would not have been paid except for the representations. There is no discrimination contemplated in the representations. There is no intimation in the representations that Mrs. Statler was getting a better policy than others issued by the company. The representations affect matters de hors the contract. It was not the intention of the legislature, in our opinion, by this statute to prevent the recovery back of premiums secured by fraud.

It is contended in the brief in this court that it is not show’n that the action was brought within four years after the fraud was or ought to have been discovered. We are not advised as to whether this question was made in the trial court. There was no demurrer filed to the petition, the defense of the statute of limitations wras not made in the answer, nor was there any special request of the court to charge upon this subject. The first occasion vdien the question could have been considered was on the demurrer to the reply.

The allegation of the petition, that the plaintiff continued to rely upon the representations in making the several quarterly payments of premium, in connection with the still broader averments of the reply in that respect, justified the overruling of the demurrer. The evidence offered on the trial tends to show that the falsity of the representations as to profits was not discovered until after the accumulation period, and it does not appear that' there was any such state of facts brought to the notice of the policy holder before that time as would lead to a discovery of the facts.

Cases are cited by counsel for plaintiff in error in which it is held that the insured is bound to read the policy, and if it fairly appears' therefrom that the falsity of the representation could have been discovered from the policy, the assured is held bound thereby. But so far as the cash profits are concerned no examination, reading or spelling out of the entire policy gives any notice of the falsity of the representations as to the amount.

The court also submitted to the jury the question of fact as to whether the representations as to,the amount of profits were intended to be representations of existing fact, estimate or opinion of future profits. See Williams v. State, 77 Ohio St. 468 [83 N. E. Rep. 802; 14 L. R. A. (N. S.) 1197]; Beckwith v. Ryan, 66 Conn. 589 [34 Atl. Rep. 488]; Rohrschneider v. Insurance Co. 76 N. Y. 216 [32 Am. Rep. 290].

. . The verdict of the jury under these instructions amounts to a determination of fact so far as susceptible of that meaning in favor of the 'plaintiff, and ought not to be disturbed, unless manifestly against the evidence.

"We have carefully examined the special charges and the general charge of the court and find no prejudicial error therein. There is ample authority in the eases cited by counsel for the defendant in error to sustain the action of the court in submitting to the jury the question of the representations and the meaning of the representations of the Rohrer letter. In fact counsel for plaintiff in error submitted special charges to that effect, which were given. The question of fact as to the meaning ’of representations, although in writing, is unlike the construction of a contract. The latter should be decided by the court; the former may be left to the jury.

It is contended that the policy offered no promise of definite profits, and that, therefore, the policy holder was bound to inquire. ¥e think this is fully met by the proposition that she relied upon the representation of an authorized agent of the company as to condition and earning capacity. It is also contended that the court improperly submitted to the jury the question of whether the policy itself was misrepresented. It is argued that the policy holder was bound to read the policy and was therefore charged with knowledge of its contents.

There are in some two or three paragraphs of the charge of the court references to misrepresentation as to the terms and provisions of the policy. But as the case was clearly reduced by the court to misrepresentation of the condition of the company as to profits, the amounts of which were not defined in any clause of the policy, the charge of the court in this respect was not prejudicial error.

The request to withdraw the representation as to “paid-up insurance, extended insurance,” and “additions at death,” off-setting the lien, was properly refused. There was evidence tending to show misrepresentations as to “paid-up insurance,” and hence the special request was faulty. The general charge wre think properly reduced consideration to the question of misrepresentation of the condition as to profits.

Counsel raise an objection as to defect of parties, but in our opinion all the necessary parties are before the court.

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

Ferneding and Dustin, JJ., concur.


source: Caselaw Access Project

author: NORRIS, P. J.

license: Public Domain

text:
    MASTER AND SERVANT — RAILWAYS.
    [Mahoning (7th) Circuit Court,
    October Term, 1912.]
    Metcalfe, Norris and Pollock, JJ.
    Elvira A. Nystrom, Admrx. v. Lake Shore & M. S. Ry.
    Federal Employer’s Liability Act does not Extend to Injuries not Contributed to by Carrier's Violation of Statute for Safety of Employes.
    Section 1 of the Federal Employer’s Liability act of April 22, 1908, must be construed in connection with Sec. 4 of the act, and under the provisions of that act the relief of the employe from the assumption of the risk of his employment does not extend to any case where injury or death was not contributed to by the violation by the common carrier of some statute enacted for the safety of employes.
    [Syllabus by the court.]
    Error to common pleas court.

      Anderson, Cooh, Mathews d? Cooh, for plaintiff in error.

      Arrel, Wilson, Barrington & Deford, for defendant in error.
   NORRIS, P. J.

Plaintiff in error was plaintiff below, and sued by her petition in the court of common pleas, to recover damages for the alleged wrongful death of the decedent while in the employ of the defendant. She alleges in her petition that the defendant is a railroad company engaged in maintaining a line of railroad from the city of Buffalo, N. Y., to the city of Youngstown, Mahoning county, Ohio, passing through the city of Ashtabula, Ashtabula county, Ohio, and engaged in commerce between said places. That the city of Ashtabula has certain repairing shops where railroad cars used iu such service were being overhauled. That the decedent on July 7, 1910, was in the employ of defendant as a laborer in said shops; that a certain car used in and about its said commerce was then and there being overhauled preparatory to going out on defendant’s railroad. That it became and was the duty of plaintiff’s decedent to raise the body of said cars by means of a certain appliance known as a jack; that defendant had caused and permitted said jack to become and remain defective, out of repair and dangerous to the lives and limbs of employes there at work, in that it was broken and worn to such an extent that it would slip and cause the handle thereof to suddenly fly upward and outward, all of which the said company well knew, or by the exercise of ordinary care on its part ought to have known. She further says that while the decedent was using said jack, raising said ear, by reason of its defective condition aforesaid, the handle thereof suddenly violently struck the plaintiff’s decedent, causing him injuries which resulted in his death.

The negligence charged is: First, in having and using said jack when the same was defective as aforesaid; secondly in failing and neglecting to keep said jack in proper repair as aforesaid. It is nowhere alleged in the petition that plaintiff’s decedent did not have knowledge of the defective condition of said jack at the time he used the same, nor is it alleged that he did not have equal means of knowing of its defective condition at the time.

The court of common pleas sustained a demurrer to the petition on the ground that the same did not state facts sufficient to constitute a cause of action. Plaintiff not desiring to plead further, the petition vras dismissed and judgment rendered in favor of the defendant. The action of the court in thus sustaining the demurrer is the error assigned by the plaintiff in error; and the question is, was it necessary for the plaintiff to allege want of knowledge or means of knowledge on the part of the decedent in order to relieve him from the assumption of risk in using the defective jack?

It seems to be conceded by counsel in their briefs that the case is controlled by the Federal Employer’s Liability act of April 22, 1908. We think the case is controlled by that act; we think the petition clearly states the case coming within the purview of the federal act. It was not necessary to refer to the act in the petition. Smith v. Railway, 175 Fed. Rep. 506; Clark v. Railway, 175 Fed. Rep. 122, and that such act is exclusive in all cases coming within its provisions was held in Mondou v. Railway, 223 U. S. 1 [38 L. R. A. (N. S.) 44; 56 L. Ed. 327], Speaking of the federal act, one paragraph of the syllabus is: “These regulations have superseded the laws of the-, several states insofar as the latter cover the same field. ’ ’

The plaintiff’s decedent was employed in interstate commerce as held in Johnson v. Railway, 178 Fed. Rep. 643 [102 C. C. A. 89], Plaintiff in error claims the right to recover under the first section of the act wherein it says: “Any common,carrier by railroad while engaging in commerce between the states shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce for any injury resulting in whole or in part by reason of any defect due to its negligence in its appliances.” Bui, this section must be construed in connection with Sec. 4 of the act, which says: ‘ ‘ That in any action brought against any common carrier und,er and by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employes, such, employes shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe.” This section seems clearly to define the cases in which the employe shall be relieved of the assumption of the risks of his employment and to limit it to those eases where- the carrier has violated some statute enacted for the safety of employes.” In all other cases the common law rule is not changed.

Now, we have not been referred to any statute violated by the defendant in this ease' in permitting the jack to be and remain in the condition charged in the petition. There being no such statute it would seem to clearly follow that the common law rule of assumption of risk must prevail. If the congress had intended to relieve employes of such common carriers from the assumptions of risk in all classes of cases, it could easily haye said so by apt language. It has seemed fit in this act to relieve employes from the assumption of risk only in cases where some statute enacted for their safety has been violated and courts cannot extend the provisions of the statute. This limitation of the statute is sustained in Thornton, Employ. Liability p. 139, See. 85. It follows, from this, that there was no error committed by the court of common pleas in sustaining the demurrer to the petition, and the judgment will be affirmed.

Metcalf and Pollock, JJ., eopcur.


author: JONES, O. B., J.

text:
    BUILDINGS — NEGLIGENCE.
    [Hamilton (1st) Court of Appeals,
    January 17, 1914.]
    Jones and Jones, JJ.
    (Swing, P. J., not sitting.)
    Neave Building Co. v. William A. Roudebush, Admr.
    Refusal of Window Cleaner to use Safety Devices or Clean Windows from Inside Precludes Recovery in Absence of Evidence Direct or Indirect of Negligence by Building Owners.
    Refusal of a window cleaner to use a safety belt or other device ■to prevent falling, and for which he had been threatened with discharge for his carelessness in that regard, or to clean the windows from the inside when they might have been cleaned safely by so doing, in the absence of direct proof of negligence on the part of the owners of the building or of facts from which negligence reasonably might have been presumed, requires reversal of a judgment for damages in favor of his administrator.
    Error to common pleas court.

      Robertson & Buchwalter, and Theo. G. Jung, for plaintiff in error.

      Louis B. Sawyer, for defendant in error:
    Cited and commented upon by the following authorities: Cleveland, T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142] ; Lake Shore & M. S. By. v. Andrews, 58 Ohio St. 426 [51 N. E. Rep. 26] ; Crawford v. Railway, 13-23 O. C. C. 207 (3 N. S. 144) ; Genoe v. Fireworks Co. 5 Circ. Dec, 616 (12 R. 420) ; Hunt v. Caldwell, 11 Circ. Dec. 562 (22 R. 283) ; Taylor v. Yonkers, 105 N. Y. 202 [11 N. E. Rep. 642, 59 Am. Rep. 492] ; Narramore v. Railway, 10 O. F. D. 7 (42 Bull. 247: 96 Fed. Rep. 298] ; Laidlaw-Dunn-Gordon Co. v. Miller, 31 O. C. C. 559 (12 N. S. 246) ; Milburn Wagon Co. v. Gawronski, 33 O. C. C. 1 (14 N. S. 449); affirmed, no op., Milburn Wagon Co. v. Gawronski, 81 Ohio St. 565; Casey v. Rahn, 12 Dec. 597; Ziehr v. Paper Co. 28 O. C. C. 342 (7 N. S. 144) ; McGarvey v. Raihvay, 83 Ohio St. 273 [94 N. E. Rep. 424],
   JONES, O. B., J.

The action in the court below was brought by William A. Roudebush as administrator of Clarence Henson, deceased, for damages on account of the alleged wrongful death of said Clarence Henson on January 6, 1911.

The deceased was in 'the employ of the Neave Building Company as window washer and helper in the building. The trial below resulted in a verdict and judgment in favor of the plaintiff, from which error is prosecuted to this court by the defendant. Three grounds of negligence were complained of in the petition below: first, that the deceased was ordered to wash windows at a time when 'the window sills were covered Avith snoAV, which made the cleaning of said -windows very difficult and dangerous on said day; second, that the defendant failed to comply with the city ordinance requiring -windows above the second floor to be equipped with safety devices, or to provide in any manner for the safety of plaintiff’s intestate Avhile engaged in said dangerous occupation, or to provide any safety device whatever to prevent injuries to said intestate engaged in cleaning said windows on the outside; and third, that defendant failed to employ sufficient help so as to give deceased sufficient time to safety clean its windows on the outside. The court excluded this third ground of negligence entirely from the case.

Section 505 of the ordinances of Cincinnati was introduced, by which it is provided:

“In every fireproof or semi-fireproof building now in existence or hereafter erected, every window above the second story thereof shall be equipped with a suitable device which will permit the cleaning of the exterior of such windows without endangering life and limb. Provided, however, that such device need not be placed on any window that can be easily cleaned from within.”

Evidence was introduced to show, first, that the windows of said building could be easily cleaned from within by standing on the sill inside and reaching over to clean the top part of each window sash on the outside and by sitting in the window to clean the bottom part of each of the sashes on the outside. There was evidence on the part of the plaintiff that this could not easily be done, and on the part of the defendant that it might be so cleaned. A device consisting of a platform to be placed on the window sill and fastened by screws, to be moved from one window to another as the cleaning progressed, was introduced by the defendant, and there is no question but that plaintiff’s intestate had opportunity to use it had he so desired, but the testimony of the superintendent of the building was to the effect that he had declined to use it and had also declined the proffer of a safety belt which said superintendent had offered to get for his use, stating that he did not desire to be bothered with either. There is also testimony to show that there was a rule of the building company providing that no employe should stand on the sills for the purpose of washing windows, which were to be washed from the inside, and that X>laintiff was advised of this rule and threatened with discharge if he violated it.

The court is of the opinion, that there is not sufficient evidence to show that the death of the deceased was attributable to any negligence of the defendant. There is no evidence to show that the decedent fell from the window. The bucket, rag- .and chamois were found in room 203 of the building, and a footprint was seen in the snow on the window sill of a window in that room, but there is no testimony to show that that window was open or that it had in any way been washed on that day, nor is there any testimony to show that the decedent fell upon the sidewalk. The only evidence is that he was found in the lobby of the building, or was brought in the lobby and placed in a chair. As to how he received his injury is a pure matter of conjecture. Whether he fell from a window, purposely jumped from a window, or whether he fell down the stairs or down an elevator shaft is a matter of speculation and not of proof.

There is no evidence to show whether the snow that was on the window sill was hard and slippery or whether it was soft and not dangerous, nor is there any evidence to show whether he had been seated on that sill, or whether the footprint on there was his footprint or that of someone else.

In this state of the evidence the court must find that the verdict arid judgment below is not sustained by the evidence. While it, is true that an allegation of fact may be established by circumstantial evidence, the circumstances to have that effect must be such as to make the fact alleged appear more probable than any other. The fact in issue must be the most natural sequence from the facts proved.

To establish negligence there should be either direct proof of facts constituting such negligence, or proof of facts from which the negligence may be reasonably presumed. There should be no guessing by either court or jury. Cleveland, Term. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142]; Lake Shore & M. S. Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. Rep. 26]; Crawford v. Railway, 13-23 O. C. C. 207 (3 N. S. 144); Gerwe v. Fireworks Co. 5 Circ. Dec. 616 (12 R. 420); Hunt v. Caldwell, 11 Circ. Dec. 562 (22 R. 283).

The judgment below will therefore be reversed, and the ease remanded for a new trial.

Jones, E. H., concurs.


author: JONES, E. H., J.

text:
    NEGLIGENCE — RAILROADS.
    [Hamilton (1st) Court of Appeals,
    January 17, 1914.]
    Swing, Jones and Jones, JJ.
    David Dunham v. Baltimore & Ohio Southwestern Ry.
    Injuries Resulting From the Explosion of a Torpedo Not Chargeable to a Railway Company.
    An injury suffered by a licensee about to cross a nailway track at a place other than a public highway, caused by the explosion by a passing train of a torpedo placed upon one of the rails for the purpose of signalling the train crew, is not one such . as could have been foreseen or reasonably anticipated and does not constitute a cause of action for negligence against the railroad company.
    Error to common pleas court.

      Horstman & Horstman, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   JONES, E. H., J.

Plaintiff in error was injured by the explosion of a signal torpedo, caused by a locomotive of the defendant company passing over said torpedo, which it must be presumed had been placed upon the track in the ordinary way as a warning or signal to the train crew.

The evidence shows that Dunham at the time of his injury was in the act of crossing the right of way and tracks of the defendant' company at the intersection of the tracks with Charles street in what was formerly the village of Madisonville. The right of way at this point is 100 feet in width and is from fifteen to' twenty feet higher than the surface of the surrounding ground. Charles street ¿oes not cross the right of way, but extends to it on either side. At the time of the injuries complained of Mr. Dunham was about to cross the tracks of the defendant company from north to south, and was standing upon the somewhat steep embankment leading from North Charles street up to the level of the railroad tracks, waiting for the passing of the train whose locomotive caused the torpedo to explode.

The allegations of negligence contained in the petition are:

“That the plaintiff was upon said footpath for the purpose of crossing over said embankment, when a torpedo, which had been placed by defendant’s employees and agents upon the rails of said track, exploded by a train of cars passing over the torpedo, and that parts of said torpedo struck the left forearm of plaintiff and injured the same so as to permanently disable him from the use of said arm. Plaintiff says that defendant was negligent in placing said torpedo unnecessarily upon said rail at or near the place where the public, including the plaintiff, were accustomed to cross over said right of way along said Charles street.”

The trial court, upon motion of the defendant, instructed a verdict in its favor, and it is to reverse the judgment rendered thereon that this proceeding in error is prosecuted.

There is no evidence to show that it is usual for torpedoes or particles thereof to fiy through the air upon being exploded in the manner in which this was exploded, and no evidence but that the torpedo was placed where it was for a lawful purpose and in the ordinary course of the conduct and management of the road. Mr. Dunham at the time, in his relation to the defendant company, was a licensee, probably using the right of way with permission of the company for the,purpose of crossing from North Charles street to South Charles street. There is evidence showing that the right of way for a long time had been so used although the surrounding territory was not thickly inhabited, Charles street on the north side being an unimproved street and existing only as a paper street upon the recorded plats.

We think under these facts that it would be requiring extraordinary care on the part of the defendant company to hold it liable for the injury sustained by Mr. Dunham, and that the court below was correct in the action taken in directing a verdict for the defendant. We are satisfied from the evidence, and, from our own knowledge gained from personal experience and observation, that the accident was an unusual one, and one which could not have been foreseen by the defendant company or its employees in the exercise of ordinary care. The negligence shown by the evidence is not actionable and could in no event furnish the basis for a judgment. As stated above, there was no evidence offered by plaintiff to show that there was any danger that could have been foreseen from the explosion of the torpedo, or to show that it was usual following the explosion of a torpedo, used in the operation of a railroad, for particles of it to fly at such a distance and inflict bodily harm. The cases cited in the printed brief of defendant in error on page 20 are decisive of this case and furnish ample authority for the action of the court below. See Miller v. Railway, 78 Ohio St. 309 [85 N. E. Rep. 499; 18 L. R. A. (N. S.) 949; 125 Am. St. Rep. 699], the second paragraph of the syllabus:

“In contemplation of law, an injury that could not have been foreseen or reasonably anticipated as a probable result of an act of negligence, is not actionable.”

On page,325 of the opinion in the above case the court say:

“The rule is elementary that a defendant in an action for negligence can be held to respond in damages only for the immediate and proximate result of the negligent act complained of, and in determining what is direct or proximate cause, the rule requires that the injury sustained shall be the natural and probable consequence of the negligence alleged; that is, such consequence as under the surrounding circumstances of the particular case might and should have, been foreseen or anticipated by the 'wrongdoer as likely to follow his negligent act.”

See also Ann Arbor Ry. v. Kinz, 68 Ohio St. 210 [67 N. E. Rep. 479]; the facts in which case are not like those in the ease under consideration by us, but the principle which controls is the same. In the ease just cited the Supreme Court in reversing the judgment of both lower courts held that the petition failed to state a cause of action, and that the court erred in refusing to direct a verdict for the defendant below.

We think that the petition of Mr. Dunham fails to state a cause of action and that his evidence fails to show actionable negligence.

The judgment will therefore be affirmed.

Swing and Jones, JJ., concur.


text:
    NEGLIGENCE — PLEADING—RAILWAYS—STREET RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    July 17, 1913.]
    Pittsburgh, C. C. & St. L. Ry. v. Albert Pritz, Admr.
    Swing, Jones and Jones, JJ.
    1. Liability of Steam Railway for Watchman’s Raising Gate at Street Crossing as Train Approached not Lost by Location of Gate Outside Point Electric Car Required to Stop at Crossing.
    Where a fatal injury to a street car passenger at a railway crossing was due to the concurrent negligence of both the steam and the electric railway company, the fact that a crossing gate which had been negligently raised by the steam railway watchman was situated more than fifty feet from the crossing, .and under a strict construction of the law the electric car would be bound to stop for the crossing after passing the gate, does not afford ground for relieving the steam road from liability growing out of its own negligence in raising the gate in the face of an oncoming train.
    2. Failure to Allege Proper Number of Children Left by Deceased in Petition for Negligence does not invalidate Judgment for Full Amount under Statute.
    Failure to allege in the petition that, in addition to the widow and two children mentioned in the petition, the decedent was also the father of two other children by a divorced wife, does not invalidate the judgment recovered, where the recovery is for the entire amount permissible under the statute; but in such a case the claim of the two unnamed children may be presented to the probate court and their share apportioned to them out of the judgment.
    Error to common pleas court.

      Maxwell & Ramsey, for plaintiff in error.

      Wm. Littleford, for defendant in error.
   JONES, O. B., J.

The action below was brought to recover damages for tbe wrongful death of Henry Graf, wbo was a passenger upon a car of tbe Cincinnati Traction Company, and wbo was killed by a train on tbe railroad of tbe defendant company at tbe point where it crosses Eastern avenue at grade.

At this crossing safety gates are maintained by tbe defendant company which are operated by a man in a tower wbo had an extended view of the steam railroad tracks. Eastern avenue and the railroad cross at this point at a very acute angle, there being double tracks of the Cincinnati Traction Company in. Eastern avenue and a double track of the steam railroad operated by defendant company. The safety gate east.of the-railroad is close to and parallel with the tracks'. The safety gate west of the railroad is a distance of 130 feet from the center of the double track along the center of Eastern avenue — the street railway being located in the center of the avenue quite a distance from the middle thereof. The distance from the center of Eastern avenue at the point of the location of the west gate northwardly across to the south railroad track is probably not more than thirty feet. The car on which deceased was riding was a summer car and was eastward bound. When it reached the west gate the car stopped and the conductor went forward to the center of the railroad track and gave the motorman the signal to come on. This was claimed to be in compliance with. Sec. 9125, G. G. The tower gateman had the gates raised and the car proceeded, when the tower man seeing the approaching train from the east come 'westward toward the crossing commenced to ring his gong and undertook to lower the gates, but too late. There seems to have been no signal from the conductor further than his original signal to come on. The motorman by putting on high-speed proceeded with his car and crossed the track just before the train reached him. At least two of the passengers, however, in the extreme peril of the occasion, jumped from the car in an effort to save their lives. Plaintiff’s decedent was one of these, and in jumping he alighted upon the railroad track and was killed by the train. Independent actions have been prosecuted against the traction company and the plaintiff in error here by the administrator of the deceased. .

From the record it appears that the facts make out a case-of concurrent negligence upon the part of both the plaintiff in error here and the Cincinnati Traction Company, against which latter company a judgment of the same amount as was given here against the plaintiff in error, viz., $10,000, was recovered in another case, and is brought into this record by exhibits attached to the bill of exceptions.

Plaintiff in error here relies upon the argument that because the distance between the west gate and the actual crossing of the tracks was more than fifty feet that the stop to be made by the street railway company under the statute should have been east of the gate, and that therefore the invitation extended to the street ear operatives to proceed across its traeks by reason of its open safety-gate was not the proximate cause of the injury, because under a strict construction of the statute after the safety-gate had been passed the street railway car must again stop for the purpose of complying with See. 9125, G. C.

This crossing furnishes an unusual state of facts for the application of this law, as the two tracks are so close together, crossing at such a sharp angle. But as the purpose of the law to require the street car operative to rely upon their own inquiry and observation rather than on that of the steam railway employes seems to have been observed, although ineffectively, it is the opinion of the court that the question of time can not be successfully used to protect the steam railway from the consequence of the negligence of its employes. It has been repeatedly held in this state that a crossing accident such as the one under consideration is the result of the concurrent negligence of the street car employes and the railroad employes, and that both companies are therefore liable. Cincinnati, St. Ry. v. Murray, 53 Ohio St. 570 [42 N. E. Rep. 596; 30 L. R. A. 508]; Toledo, Consol. St. Ry. v. Fuller, 9 Circ. Dec. 123 (17 R. 562); Kopp v. Railway, 25 O. C. C. 546 (1 N. S. 596), affirmed, no op., Baltimore & O. S. Ry. v. Kopp, 71 Ohio St. 444.

The fact that the traction company, through its conductor who failed to see the on-coming train, was negligent, is no excuse for the negligence of the plaintiff in error through its gate tender in opening the gates when the train was approaching and thus extending an invitation to the street car to advance, Cleveland, C. C. & O. Ry. v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321], and the negligence of the two companies was so near together in point of time that they- must be deemed concurrent.

Another point urged strongly by plaintiff in error was the fact, which developed in the trial of the case, that deceased instead of leaving a widow and two children as set out in plaintiff’s petition, had in addition thereto two other children by a previous wife who had been divorced.

Under the terms of Sec. 10772, G. C., it is provided that an action of this character shall be for the exclusive benefit of the wife and children but is .to be brought in the name of the personal representative of the deceased for their benefit, and the jury may give such damages not exceeding (at that time) $10,-000 as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit the action was brought. This section, however, provides that the amount recovered shall be apportioned among the beneficiaries, unless adjusted between themselves, by the court making the appointment, in such manner as shall be fair and equitable, having reference to the age and condition of such beneficiary and the laws' of descent and distribution. If the amount of recovery here had been less than the amount fixed .by statute, it would present a question much more difficult than it now does, because as the suit was by the administrator, who is the representative of all the beneficiai’ies, if the recovery were less than the full amount it would not be deemed to cover any loss that might have been suffered by those children not referred to in the pleadings; but if the jury deemed the loss suffered by the two who were referred to with the widow to amount to the maximum that could be allowed, then nothing in addition could be recovered on behalf of the two unnamed children. But as it now stands, these children can present their claims to the probate court which made the appointment of the administrator, at the time it comes to make its apportionment of the amount recovered. The fact therefore that all of tbe children were not set out in the petition can not be deemed prejudicial to the plaintiff in error.

Objection is also made by plaintiff in error to the paragraph in the charge of the court given by the judge presiding in the trial below, which has been previously criticized by this court in another case, viz.:

“You have the right to reject any evidence that you choose and consider only that which appeals to your sense of justice and of fairness.”

The record in this ease shows but little controversy as to the facts. They were proven in considerable detail by plaintiff’s witnesses, and were not seriously controverted by defendant. While the language objected to is subject to criticism, used as it is in connection with the entire paragraph preceding it, of which it is a part, we do not think that it is so prejudicial to defendant as to require a reversal here, nor do we find any error in the record so prejudicial to the defendant.

Judgment below will therefore be affirmed.

Swing.and Jones, JJ., concur.


author: JONES, J.

text:
    MASTER AND SERVANT.
    [Hamilton (1st) Circuit Court,
    July 20, 1912.]
    Swing, Jones and Smith, JJ.
    William Knapp et al. v. Everett P. Holden.
    Emery Wheel a Familiar and Simple Tool not within Statutory Exemption of Assumed Risks.
    An emery wheel is a “simple tool” within the meaning of Sec. 6245 G. C. and where the evidence discloses that the injured plaintiff had worked at an emery wheel for more than thirty years and at the particular wheel by which he was injured for two years, a motion lies to direct a verdict for the defendant.
    Error to common pleas court.

      Matthews & Matthews, for plaintiff in error:
    Cited and commented upon the following authorities: McGill v. Traction Co. 79 Ohio St. 203 [86 N. E. Rep. 989; 19 h. R. A. (N. S.) 793; 328 Am. St. Rep. 705] ; Bowen v. Bail-way, 117 111. App. 9; Suchamal v. Maxwell, 344 111. App. 543; Webster Mfg. Co. v. Nisbett, 205 111. 275 [68 N. E. Rep. 936] ;
      International Packing Co. v. Kretowicz, 119 111. App. 488; Conley v.. Express Co. 87 Me. 353 [32 Atl. Rep. 965] ; Meador v. Railway, 138 Ind. 290 [37 N. E. Rep. 721; 46 Am. St. Rep. 384] ; Michael v. Stanley, 75 Md. 464 [23 Atl. Rep. 1094] ; O’Keefe v. Thorne, 16 Atl. .Rep. 737 (Pa.); Ciriack v. Woolen Co. 146 Mass. 182 [15 N. E. Rep. 579; 4 Am. St. Rep. 307] ; Bennett v. Railway, 102 U. S. 577 [26 L. Éd. 235] ; Stamford Oil Co. v. Barnes, 103 Tex. 409 [128 S. W. Rep. 375; 31 L. R. A. (N. S.) 1218] ; Dresser, Employ. Liabil. See. 114; Shearman & Redfield, Negligence (5 ed.) Sec. 704; Indemaur v. Dames, L. R. 1 C. P. 274; Ives v. Railxoay, 201 N. Y; 271 [94 N. E. Rep. 431; 34 L. R. A. (N. S.) 162; Ann. Cas. 1912 B. 156]; Southern Turpentine Co. v. Douglass, 61 Fla. 424 [54 So. Rep. 385] ; Argersinger v. Power Co. 164 Mich. 282 [129 N. W. Rep. 889] ; State v. Creamer, 85 Ohio St. 349 [97 N. E. Rep. 602; 39 L. R. A. (N. S.) 694] ; Baltimore <& O. Ry. v. Lockwood, 72 Ohio St. 586 [74 N. E. Rep. 1071]; Blat.ehfield, Instructions Sec. 94; Klunk v. Railway, 74 Ohio St. 125 [77 N. E. Rep. 752] ; Cincinnati Trac. Co. v. Forrest, 73 Ohio St. 1 [75 N. E. Rep. 818] ; Mead. v. McGraw, 19 Ohio St. 55; Hazen v. Snodgrass, 33 O. C. C. 512 (14 N. 'S. 483); Cleveland Ry. v. Richerson, 10 Circ. Dec. 326 (19 R. 385).

      C. M. Cist, for defendant in error.
   JONES, J.

The court below erred in not sustaining the motion made-at the close of, all the evidence for a verdict in favor of defendants.

The evidence shows the emery wheel which the defendant in error was operating to have been a “simple tool” and one with which he was familiar. He had worked upon this wheel for two years and had been an emery-wheel worker for over thirty years. Under such state of facts Sec. 6245 G. C. does not apply.

•The third defense of the answer, was fully sustained by the evidence and such evidence bars recovery.

Judgment reversed and judgment given for plaintiffs in error.

Swing and Smith, JJ., concur.


text:
    BILLS OF EXCEPTIONS — COURTS—ERROR.
    [Hamilton (1st) Court of Appeals,
    December 20, 1913.]
    Swing, Jones and Jones, JJ.
    State ex rel. William C. Dory v. William L. Dickson.
    1. Court of Appeals Rule 1 Imposes Duty on Party Requiring Verbatim Transcript of Evidence to Reproduce it, not Harass Opponent.
    The requirement of Rule 1 of the Ohio courts of appeals, relative to reproduction of a verbatim transcript of the evidence when desired by either party, imposes upon the party requesting the duty of furnishing it, and is not intended to furnish opportunity to harass an opponent by putting him to the trouble and ex pense of reproducing it.
    2. Counsel, not Judge, Required to Make Corrections to Narrative Form Bill of Exceptions to Render Same Acceptable to Latter.
    If a proper bill of exceptions be prepared in narrative form under the rule, the trial judge should not as a matter of convenience order a verbatim copy of the evidence, but if he can not sign it as presented it is his duty to suggest to counsel what corrections should be made and to render him reasonable assistance and give necessary time for the making of such corrections, not however to the extent of placing the burden of the preparation of such bill of exceptions upon the judge.
    Error to common pleas court.

      Marston Allen, for plaintiff in error.

      Geoffrey Goldsmith, for defendant in error:
    Cited and commented upon by tbe following authorities: State v. Hawes, 43 Ohio St. 16 [1 N. E. Rep. 1] ; Salomon v. Eeis, 3 Cire. Dee. 184 (5 R. 375) ; State v. Fiedler, 16 Dee. 1 (3 N. S. 283) ; State v. Todd, 4 Ohio 351; Creager v. Meeker, 22 Ohio St. 207; 'Herancourt Brew. Go. v. Frank, 31 O. C. C. '277 (11 N. S. 505) ; Kirk v. Mowry, 24 Ohio St. 581; State’ v. Spiegel, 25 O. C. C. 552 (4 N. S. 255) ; 11 Cyc. 742; Wood v. Ward, 1 Dec. Re. 589 (10 W. L. J. 505).
   JONES, O. B., J.

The purpose of Rule 1 of the court of appeals in providing for what has been called a short form of a bill of exceptions, is to furnish a method of bringing into the record only so much of the evidence as may be necessary to present clearly the questions of law and fact to be considered by a court of error in determining the correctness of the ruling of the trial court, without at the same time encumbering the record with the needless, immaterial and obscuring matter that will always be found in a record made up of a complete transcript of the modern stenographic report of all the evidence and proceedings at the trial.

The rule is-in the following words:

‘ ‘ Only so much of the evidence shall be embraced in a bill of exceptions as may be necessary to present clearly the questions of law and fact, involved in the rulings to which exceptions are reserved, and such evidence as is embraced therein shall be set forth in condensed and narrative form, save that if either party desires it or the court or judge so directs, any part or all of the evidence shall be reproduced verbatim.”

It is authorized by and is in accord with Sec. 11562 Gr. C.:

“No particular form of exception is required. The exception must be stated with the facts, or so much of the evidence as is necessary to explain it, and no more, and the whole as briefly as possible. ”

That part of the rule providing for the reproduction of a verbatim transcript of the evidence, when desired by either party or directed by the court, is not intended to furnish opportunity to a party to harass his opponent by putting him to the trouble and expense of producing it. Where a party desires such complete transcript it would seem to be his duty to furnish it. Nor should the judge impose a hardship upon the party by requiring such transcript without necessary and sufficient cause.

It is the duty of the litigant, or his counsel, and not that of the trial judge to prepare the bill of exceptions, but if the judge can not allow and sign it as filed it becomes his duty to suggest to counsel what corrections should be made and to render him reasonable assistance and necessary time for such corrections.

- When a proper bill of exceptions in narrative form under the rule has been prepared and filed, it is not proper for a trial judge, as a matter of convenience to himself and to avoid the labor of correcting it, to order a verbatim copy of all the evidence and proceedings to be supplied and substituted for the narrative form of evidence. Nor would it be proper for the judge to order a full stenographic copy of the evidence merely for the purpose of examination, comparison and preparation of the narrative form to be used in the bill of exceptions.

It is the right of a litigant, if he- so desires, to have his: ease reviewed by an upper court, and it is the duty of the trial judge to assist the litigant in the enjoyment of that right as much as it is his duty to protect him in any other right than he might be properly asserting in such court.

Eitner party in a ease is entitled to have any exceptions that he may take to the rulings of a judge preserved for trial in a higher court. This he can do by taking a single bill of exceptions embodying only so much of the record as may be necessary to have that ruling reviewed, and he may if he sees lit take separate bills of exceptions to separate rulings, or he may embody all of his exceptions together with all of the evidence in one bill of exceptions. To choose between these methods is the prerogative of the litigant.

The court’s duty, however, is to determine as to the correctness of the bill or bills of exceptions, and his determination of what is a true bill is final. A party can not by submitting a mere skeleton of a bill of exceptions demand that a trial judge should practically prepare it by furnishing all omitted parts or necessary matters that should have been embodied in it. The heavy labors of the judge should not be increased by requiring from him any considerable part of the labor of its preparation, but he should be ready and willing to> render reasonable assistance to counsel in pointing out and advising him as to what should be included, not however to the extent of controlling his determination as to how much or how little he sees fit to place into the record for the purpose of seeking review. If the bill of exceptions prove not sufficient, to properly present the question desired in the court above,, that will be the misfortune of the party, or his counsel, who prepares it.

The bill of exceptions as filed with this petition in mandamus seems to show that as originally filed in the common pleas court it consisted of pages 1, 2, 3, 4, 5, 6 and 7, and subsequently it was sought by plaintiff’s counsel to correct the same by offering pages x, y and z in place of pages 1 and 2, except the last two paragraphs on page 2 which were to be retained and follow page z, and z is followed in turn by page •3 and the remaining pages of the bill of exceptions.

With either form, taken as the bill of exceptions, had the ■certificate been signed without modification as originally presented, it would hardly be claimed that it showed that it included all of the evidence. The words found in the last paragraph on page 2 “"With this as a brief statement of all the «evidence, the court charged the jury as follows:” might be claimed to effect the purpose of such a certificate, but in either ■form, as prepared, of what would precede them, it would hardly authorize a court of error to review the judgment as to the weight o-f the evidence.

If the trial court feared that the language above quoted might be misconstrued into a certificate that the bill of exceptions contained all of the evidence, they might have been stricken out or modified by the judge in correcting the bill.

We take it, however, that the purpose of counsel for plaintiff below was only to prepare a record that would afford an ■opportunity to review the ruling of the court in refusing to .admit testimony offered by him in rebuttal, as shown on page 2, and to review the general charge as given by the court. This bill ■of exceptions is signed by the trial judge at the bottom of page 7, after all of the formal language of the certificate of allowance though not in the blank space originally left for that signature, adding certain language to the effect that the court «does not know whether the above pages of the evidence embrace all of the evidence or not, and that the charge of the court is correct.

For the purpose of reviewing the correctness of the charge and the ruling above referred to as to the admission of evidence, this court is of the opinion that the bill of exceptions as signed by the trial judge becomes a bill of exceptions which may be considered by the court of error, and for that reason this writ prayed for will be refused.

Swing and Jones, JJ., concur.


author: GIFFEN, P. J.

text:
    ERROR — MUNICIPAL CORPORATIONS — NEGLIGENCE,
    [Hamilton (1st) Circuit Court,
    1911.]
    Giffen, Smith and Swing, JJ.
    Cincinnati (City) v. Effie V. Ryan.
    1. Refusal to Instruct in Regard to Ability of Plaintiff to Sees and Avoid Defect in Street Held Prejudicial.
    In an action for negligence against a city in which the evidence tends to show that a passenger alighting from a street, car, although in the night season, by looking could have seen a hole in the street and avoided stepping into it, a refusal to-give a special instruction, directed to that phase of the case,, is prejudicial:
    2. Refusal to Give Judgment for City Upon Failure to Answer Interrogatory as to Safety of Street not Erroneous Since Jury Found City had Notice of Defect Therein. *
    A refusal to give judgment for a city in a negligence case is not improper for failure of the jury to answer an interrogatory as to whether the street in question was in reasonably safe-condition, especially since the jury did find that the city had constructive notice of the defect therein complained of.
    3. General Verdict for Plaintiff not Sustained Against Evidence of Heedlessness of Plaintiff in Using Part of Street not Intended for Pedestrians.
    A general verdict for plaintiff in an action -against a city for a. defect in a street is not sustained by sufficient evidence since-it appears from the evidence that plaintiff stepped heedlessly from a street car and unnecessarily used a part of the street, not intended for pedestrians.
    Error to common pleas court.

      Constant Southworth, for plaintiff in error.

      Thos. L. Michie, for defendant in error.
   GIFFEN, P. J.

The plaintiff in the original action,. Effie Y. Ryan, was-injured by stepping from a summer street car into a hole in the street at the corner of Sixth and Walnut streets, Cincinnati, Ohio. The evidence tends to prove that she did not look where she was stepping, and that by looking she could, although in the night season, have seen the hole in the street and •easily avoided stepping in it.

Special instruction No. 4 requested by the defendant was addressed to this state of facts and its refusal by the court was error which was specially prejudicial because requested to be given before argument to the jury, and no like instruction as .given in the general charge. Conneaut v. Naef, 54 Ohio St. 529 [44 N. E. Rep. 236].

The evidence tended to prove also that by taking one step to the right on the running board of the car she could have .stepped down on the flag crossing intended for pedestrians and ■avoided all danger from the hole, which was nine inches west -of the crossing. Under such circumstances special instruction No. 5 was pertinent, and its refusal was error. Dayton v. Taylor, 62 Ohio St. 11 [56 N. E. Rep. 480].

The record discloses the following interrogatories and -answers of the jury:

No. 3. “Was the street at the point and time when and where plaintiff claims to have been injured, plainly visible by reason of the street and store lights burning at the time in question to a person using the street; and using ordinary care to •discover defects in the street? Answer. No.” _

No. 4. “Was the depression in question in full view of ■plaintiff -if she had looked where she was stepping in getting ■off the car, and could plaintiff by looking have easily seen and •avoided it? Answer. Can’t answer.” -U

It will be noticed that the observer in the first interrogatory is not located at any particular point in the street, hence the jury might well say that the street at the place of the accident was not plainly visible to such person. To the second interrogatory, which is directed to the particular defect in the .street and to the act of plaintiff in getting off the ear without looking, the jury say “Can’t answer.” Such indefinite answer is in legal effect a denial of -the existence of such facts, and operates against' the party whose case needs their support. Railroad v. Swarts, 58 Kan. 235 [48 Pac. Rep. 953].

It was necessary to allege in the petition or prove that the injury was caused without the fault or negligence of the plaintiff. Street Ry. v. Nolthenius, 40 Ohio St. 376.

Hence it was the defendant and not the plaintiff who needed the support of the facts embraced in this interrogatory and the answer operated against it.

No. 8. “Was the street at the time when and place where the plaintiff claims to have been injured in a reasonably safe condition for travel in the ordinary mode? Answer. “Can’t answer.”

Such answer must be construed as a denial of the existence of such facts, and necessarily operates against the defendant. The jury also specially found that the city had constructive notice of the defect in the street and we think the evidence supports the finding. It is manifest therefore that the court did not err in refusing to.render judgment for the defendant upon the special findings. They tend to show, however, in the light of the evidence, that the jury did more or less guessing in rendering a general verdict for the plaintiff, for it seems quite clear to us that she heedlessly stepped down from the car without looking and had she done so would have seen the hole and avoided injury — that she unnecessarily used a part of the street not intended for pedestrians and could hy using the flag crossing about a foot to her right, have alighted in safety.

The judgment will be reversed because not sustained by sufficient evidence and for error in refusing special instruction Nos. 4 and 5. The cause will be remanded for a new trial.

Smith and Swing, JJ., concur.


author: GIFFEN, P. J-

text:
    CRIMINAL LAW — HOMICIDE.
    [Hamilton (1st) Circuit Court,
    1911.]
    Giffen, Smith, and Swing, JJ.
    Jesse Van Zandt v. State of Ohio.
    1. Conviction for Homicide not Set Aside if Circumstances Point Strongly Against Accused.
    A conviction for manslaughter will not be set aside where the circumstances in evidence point strongly against accused and there is no suggestion that any other person could or did commit the crime.
    2. Instructing that Conviction of One, Accused of First Degree Murder, Might be Held for Second Degree, Manslaughter or Assault and Battery, not Erroneous.
    Instructing that one accused of first degree murder might be found guilty of murder in the second degree, manslaughter or assault and battery is not erroneous.
    3. Objections to Admission of Evidence not Specific.
    In a criminal trial an objection to admission of evidence is not • sufficiently specific since it is not addressed to any particular question, and no motion is made to rule out any answer given either before or after the entering of the objection.
    Error to common pleas court.

      Littleford, James, Frost & Foster, for plaintiff in error. Dennis F. Cash, and Coleman Avery, for defendant in error:
    Cited and commented upon by the following, authorities: State v. Knapp, 70 Ohio St. 380 [71 N. E. Rep. 705; 1 Ann. Cas. 819] ; Stewart v.'State, 1 Ohio St. 66; Williams v. State, SO O. C. C. 342 (11 N. S. 4) ; Whitcomb v. State, 14 Ohio 282; Breese v. State, 12 Ohio St. 146 [80 Amt Dec. 340] ; Hurley v. State, 46 Ohio St. 320 [21 N. E. Rep. 645; 4 L. R. A. 161] ; Chase’s Stephen’s Dig. Ev. Art. 131, p. 327, n. 1, p. 330; Putnam v. United, States, 162 IT. S. 687 [16 Sup. Ct. Rep. 923: 40 L. Ed. 1118] ; Peters v. United States, 94 Fed. Rep. 127 [36 C. C. A. 105] ; Commonwealth v. Phelps, 77 Mass. (11 Gray) 73; Billingslea, v. State, 85 Ala. 323; State v. Hayden, 45 Iowa 11.
   GIFFEN, P. J-

Jesse Van Zandt was indicted for murder in the first degree and convicted of manslaughter.

The first count of the indictment charges that he choked his wife to death, the second that he bound and gagged her and then placed her head and shoulders upon a burning gas stove, and the third that the means employed were unknown to the grand jurors.

On the morning of January 29, 1910, the body of Alice Van Zandt, his wife, was found lying on the floor of her kitchen with the head and shoulders resting upon a burning gas stove or plate a few inches above the floor, her feet being loosely tied together with a piece of coarse lace. There is no direct or positive. evidence that the defendant placed her there, nor that he choked her; but the circumstances disclosed in the record convince us that he is guilty. His disgraceful conduct and relations with the young woman, Agnes Barry, although not shown to be criminal, furnish a sufficient motive for one who has so little regard for the welfare of his wife and children, in the face of her repeated protests. The defense of an alibi is not sustained by the evidence. It is of course true that by taking some of the testimony as to time and place as exact and undisputed, the defense would be established; but its very precision evidently cast doubt upon it in the miinds of the jury, who rightly found that he had abundant time and opportunity to commit the crime.

There is no suggestion that any other person could or did commit it; but the theory of his counsel is that the deceased, having at different times threatened to take her own life, did take poison and either designedly or accidentally fell upon the burning gas plate.

The post m'ortem does not support the theory of self-destruction by poison, and she certainly did not deliberately place her head and shoulders in the gas flames, and thus remain until life ended. Our conclusion is that the verdict is sustained by sufficient evidence.

Objection was made to the cross-examination by the prosecuting attorney of two of the state’s own witnesses by asking them concerning statements made by them at another time, one before the grand jury and the other before the coroner, for the alleged purpose of refreshing their recollection. Although this sort of examination is condemned by the Supreme Court of the United States in the ease of Putnam v. United States, 162 U. S. 687 (16 Sup. Ct. Rep. 923; 40 L. Ed. 1118], and in some of the states, it is upheld in the case of Hurley v. State, 46 Ohio St. 320 [21 N. E. Rep. 645; 4 L. R. A. 161]. While the prosecutor made rather free use of the privilege, especially at page 56 of the bill of exceptions, by asking the witness if a certain question and answer repeated from the transcript of evidence taken before the coroner were not given, and then without waiting for an answer by the witness propounding another like question, still we are of the opinion that the defendant was not thereby prejudiced.

It was not error for the court to charge the jury that if the evidence justified it they might return a verdict of murder in the second degree, or of manslaughter, or assault and battery. Section 13692 G. C.; Marts v. State, 26 Ohio St. 162.

The prosecutor was not bound to call as witnesses Theodore Wetterstrom and Agnes Fox, neither of whom had any personal knowledge of the alleged murder; and both being subsequently railed and testifying as witnesses for the defendant, he suffered no prejudice.

' The burned clothing of the deceased being produced in court, counsel for defendant objected to their introduction as evidence, and thereupon the prosecutor, not offering them as evidence, threw them down before the jury. Just how dramatic the act was, if at all, or for what purpose they were brought into court, does not appear; but we think they were even competent as evidence of the extent of the fire and its effect upon the body of the deceased, if alive when she came in contact with it. We can not say, therefore, that the defendant was thereby prejudiced.

While we think, as already stated, the relations existing between the defendant and the young woman, Agnes Barry, were competent evidence as showing a motive for committing the crime, yet we agree with counsel- in their claim that the details of the drunken party held at the home of Mrs. Langdon were inadmissible; but the objection at the bottom of page 165 of the bill of exceptions is not addressed to any particular question, and no motion was made to rule out any answer made before or after the objection; hence the objection and exception are not sufficiently specific to require a different ruling from that made at the time objection was interposed.

The newly-discovered evidence tendered in support of the motion for a new trial is in part negative and in part cumulative, the introduction of which would not require the jury to return a different verdict.

The judgment will be affirmed.

Smith and Swing, JJ., concur.


author: POLLOCK, J.

text:
    DIVORCE AND ALIMONY — FRAUDULENT CONVEYANCES.
    [Carroll (7th) Court of Appeals,
    December 16, 1913.]
    Metcalfe, Norris and Pollock, JJ.
    Samuel T. Iddings and Alban H. Elliott v. Anna M. Whitacre.
    1. Holder in Trust of Legal Title to Realty, and Grantee, Family Connections of Real Owner, Conspiring with Owner to Convert Same in Cash Liable for Alimony and Present Worth of Dower Interest on Mortgage to Innocent Person.
    Where I and E conspire with a husband to defraud his wife of her right of alimony and dower in the husband’s property, and in pursuance thereof, I, who holds the legal title to the real estate of the husband, in trust, conveyed it to E, and he mortgages the real estate for its value, to an innocent mortgagee, and gives the husband the proceeds of the mortgage debt to aid him in converting his property into money and leave the state, I and E are liable in damages to the wife for the amount of her judgment for alimony and the present worth of her dower interest, not in excess of the reasonable value of the real estate so transferred.

      2. Fraudulent Conveyance of Husband's Property before Decree for Alimony no Defense to Action against Family Relatives for Conspiring to Defraud Wife.
    That the wife has not obtained her judgment for alimony at the time of the fraudulent conveyances of the real estate will, not defeat the action.
    [Syllabus by the court.]
    Error to common pleas court.

      McDonald & Oglevee, for plaintiffs in error.

      R. J. Echley, for defendant in error.
   POLLOCK, J.

The defendant in error brought an action in the court of common pleas of this county against the plaintiffs in error herein, Rachel Iddings and Olive A. Elliott, to recover a judgment for damages, on the grounds that the defendants below entered into a conspiracy with her husband, Harvey B. Whit-acre, to cheat and defraud her by converting all his property into money, in order to enable Whitacre to take his money beyond the jurisdiction of the court, and prevent her from recovering alimony and depriving her of her right of dower in her husband’s real estate.

Issue was joined by separate answer of the defendants, a jury was waived and the case went to trial to the court, resulting in a judgment in favor of the plaintiff below against Samuel T. Iddings and Alban H. Elliott, and in favor of Rachel Id-dings and Olive A. Elliott. This action is prosecuted to reverse that judgment, on the ground that it is against the weight of the evidence and the law.

The facts in this case, gathered from the testimony introduced below, show that Harry B. Whitacre, then unmarried, on July 2, 1906, transferred by general warranty deed to Samuel T. Iddings the real estate described in the petition. That this conveyance was made to avoid the results that might ensue from a threatened action for slander; that at the time the deed was made Iddings executed an agreement, by which he agreed to convey back the real estate upon demand to Whit-acre, or his assigns. That at the time of this transaction there was no contemplated contract of marriage existing between the plaintiff below and Harvey B. Whitacre, but that after-wards, on November 17, 1908, they were married. This marriage did not prove agreeable, and that by March, 1909', the «aid Whitacre had determined to abandon his wife, and for the purpose of preventing her from subjecting his property to her support or payment of alimony or dower, he determined to convert his property into money, and this purpose was known at that time to the said Samuel T. Iddings: Iddir.gs arranged ■a meeting between Whitacre, Elliott and himself; at that meeting Whitacre made known his purpose of converting all of his property into money, for the purpose of placing it beyond the reach of his wife, and he solicited Elliott to purchase his farm .and take the deed from Iddings direct to himvelf. Either at this or a subsequent meeting, Whitacre, Iddings and Elliott ■entered into an arrangement by which Iddings and his wife should transfer by warranty deed the real estate owned by Whitacre to Elliott; that Elliott was to mortgage it for $2,000 .and pay the money to Whitacre, which ivas afterwards done. This was done wdth the intention 'and purpose of placing the property of Whitacre beyond the reach of his wife, and depriving her of her marital rights in the property of her. husband.

The notes ancj securities owned by Whitacre had some time prior to the making of the deed for the réal estate been transferred to Iddings to hold for Whitacre. About the time of these negotiations for the transfer of the real estate these notes and securities were returned to Whitacre for the purpose of ■converting them into money, the intention of Whitacre to convert the same into money being known to Iddings and Elliott .at the time of the transfer of the real estate.

On May 1, 1909, the plaintiff below commenced her action against her husband, Whitacre, and the defendants below in this action and Bower, the mortgagee of Elliott, to obtain a judgment against her husband for alimony, and to set aside these several conveyances of her husband’s property on the ground that they were made to defraud her. At the bringing ■of that action she caused an injunction to issue enjoining the ■collection of the notes and securities, and enjoining the transfer of the real estate. This action went to trial, resulting in a judgment for alimony in the sum of $1,000, and costs, and a decree setting aside the several conveyances, except the mortgage to Bower, which was held valid. She caused an execution to issue and for want of goods and chattels on which, to levy, the same was levied upon the real estate described in the petition; she then caused contempt proceedings to be begun against her husband for failure to pay the alimony judgment, but the writ was returned without service having been made upon him, for the reason that he could not be found by the officer attempting to execute the writ.

Proceedings were then had to sell the real estate and apply the proceeds to the payment of the mortgage lien and the judgment for alimony, which resulted in the sale of the property for the sum of $2320, which was about the full value of the property, and less than sufficient to pay the costs, taxes and the mortgages, leaving the judgment for alimony wholly unpaid and unsatisfied.

,On the next day after the hearing of the testimony in the alimony proceeding, and before the judgment was announced by the court, Harvey B. Whitacre left the state of Ohio, taking with him in money something over $3,000, being all of his property.

The defendant, Samuel T. Iddings, is the husband of Rachel Iddings, and is a .sister of Harvey B. Whitacre; the defendant, Olive A. Elliott, is the daughter of Whitacre, by a former marriage, and the wife of Alban H. Elliott.

A husband, both by common law and the statutes of this state, is required to support his wife. By the statute of this state the husband must support himself, his wife and his minor children, out of his property or by his labor. (Sec. 7997 G. C.).

Thus, the property of the husband is subject to the support of his wife, except where the rights of bona fide creditors intervene, and she cannot lawfully be deprived of this interest in her husband’s property; she is a creditor of her husband to this extent. The husband owes to his wife the utmost good faith, and it is a fraud upon her for her husband and others to convert his property into money with the intention of depriving her of her right of support and dower in his property. This principle is recognized by our Supreme Court, where the contract of marriage existed. Ward v. Ward, 63 Ohio St. 125 [57 N. E. Rep. 1095, 51 L. R. A. 858; 81 Am. St. Rep. 621]. If such is the c ., where the contract only exists, much more should it be tl” rule where the marriage has taken place.

A judgment for alimony is only the legal means of compelling a husband who has abandoned his wife, to support her. She is just as'much a creditor and just as much entitled to the benefit of his propertjr for her support before a judgment for alimony is entered, as she has afterwards to subject his property to the payment of alimony.

The property of a debtor conveyed in fraud of his creditors, in the hands of a fraudulent grantee, is subject to the payment of the claims of the creditors of the debtor, and where the grantee has placed the property of the debtor beyond the reach of the creditors, he is subject to a personal judgment for the value of the property. This principle is recognized by our Supreme Court in the case of Doney v. Clark, 55 Ohio St. 294 [45 N. E. Rep. 316].

In the case of Ferguson v. Hillman, 55 Wis. 181 [12 N. W. Rep. 389], the court went further and laid down the rule that where the fraudulent grantee had sold the property of the debtor, he could not be protected for the money or other consideration he may have paid for the transfer of the property to him, as against the creditors of the debtor, but was liable for the full amount of the proceeds of such property. This is on the principle that the fraudulent grantee holds the property in trust for the creditors of his grantor, and as trustee must account for the full amount of the proceeds.

Iddings, the grantee of Whitaere, held the real estate of Whitaere in trust for his wife, so far as her marital rights might require the property. Elliott, when the property was conveyed to him by Iddings, took it charged with the same trust. Following the principle announced in the above case, he must account to Mrs. Whitaere for so much of the proceeds of the mortgage he placed on the property as her marital 'rights are reasonably worth. Iddiugs being a joint wrongdoer with Elliott, is jointly liable.

In the ease of Adams v. Page, 24 Mass. (7 Pick.) 541, it was held that an action for conspiracy would lie in favor of a creditor against his debtor and a third pe^ >n, who by agreement with the debtor, had caused the debtor property to be attached on a fictitious claim, and deprived the ’’editor of the payment of his claim on a subsequent attachment of the same property. . This was placed on the ground that there was an unlawful act in causing the fictitious attachment to issue, and an injury by depriving the creditor of the property upon which he had placed an attachment.

Again,- in the case of Mott v. Danforth, 6 Watts. (Pa.) 304 [31 Am. Dec. 468], it was held that:

“Where two persons conspire with a third to defraud the latter’s creditors, and in pursuance thereof, take an assignment of his property, and aid him ifi leaving the state, they are liable in an action upon the ease to such creditor.”
. “That the debt of a creditor is not due at the time of the conspiracy is no objection to such action.”

It is true that the rule laid down in this latter case has been criticised and not followed in many subsequent decisions. The reason given for not following this, is that the creditor had a right to sell his property and receive the purchase money, and that the intention with which it was done could not affect ihe right to purchase: and further, that the creditors were only general creditors of the debtor, and had no lien or claim on the property, and the loss or injury would be too remote, contingent and uncertain to base an action for damages.

The defendants below and AVhitaere conspired to deprive plaintiff of her marital right of support and dower in Whit-acre’s real property. When her husband had abandoned her, and she was compelled to secure her right of support in a suit for alimony, she sought by all the legal means at her command to subject the real estate conveyed by the defendants in fraud of her right to the payment of her alimony. '

But- again, by a statute of this state a contract of sale made with intent to hinder, delay or defraud a creditor, shall be void as to the creditor of such debtor, at the suit of the creditor (See. 11104 G. C.), when the person to whom such sale was made knew of such fraudulent intent on the part of such debtor prior to his purchase (Sec. 11105 G. C.).

And further, our statute provides that whoever fraudulently makes a conveyance to defeat his creditors is guilty of an offense (Sec. 1.3126 G. C.). When these plaintiffs in error were conspiring with Whitacre to fraudulently transfer his property, and converted it into money that he might leave the state, taking his money with him, they were conspiring together to do an unlawful act.

“It is the pride of the common law that whenever it recognizes or creates a private right, it also gives a remedy for the willful violation of it. * * * It is a sound principle that where the fraudulent misconduct of a party occasions injury to the private rights of another, he shall be responsible in damages for the same.”

Yates v. Joyce, 11 Johns (N. Y.) 136.

The wife has a right of support both by common law and statute from her husband out of his property or labor, and when the husband abandoned his wife the law enforced this right by granting her alimony out of her husband’s property. The plaintiffs in error, knowing that her husband had abandoned the defendant in error, fraudulently conspired’with him to convert his property into money, to enable the husband to take all of his property out of the state, and deprive her of her marital rights in his property.

Defendant in error sought to subject the real estate of her husband to the payment of her judgment for alimony, and was prevented by the fraudulent transfers of the property made by the plaintiffs in error. By reason of their fraudulent misconduct the wife has lost her rights in her husband’s property, and plaintiffs in error are responsible ,in damages to her to the amount of the loss occasioned by their misconduct.

The defendant in error, Anna M. Whitacre, filed a cross petition against Rachel Iddings and Olive A. Elliott, asking that the judgmeut below in favor of them be reversed. It is sufficient to say that no act' of conspiracy is shown on their part. No doubt they knew of the reasons for these conveyances, but they seemed to have taken no part in the transaction, except that Mrs. Iddings joined in the deed with her husband to Elliott, and Mrs. Elliott in the mortgage with her husband to Bower.

The judgment of the court below is affirmed.

Metcalfe and Norris, JJ., concur.