author: GIFFEN, J.

text:
    NEGLIGENCE — RAILROADS.
    [Hamilton (1st) Circuit Court,
    February 3, 1906.]
    Griff en, Jelke and Swing, JJ.
    Baltimore & Ohio S. W. Ry. v. Amelia Moloney, Admrx.
    1. Starting Horse on Trot- Across Tracks ante® Looking Both Wats not Conclusive of Seeing Approaching Train.
    The fact that one about to drive over a railroad track looks each way and then starts his horse on a trot is not conclusive proof that he saw an approaching train. Such action is ordinarily that of a prudent man who desires to avoid any possible risk in a place well-known to be dangerous.
    2. Duty of Railroad at Crossing the View of which is Obstructed by Trees.
    It is not incumbent upon a railroad company to regulate the speed of its trains at a given crossing with due regard to “all the circumstances surrounding the place and affecting the traveling public,” where testimony has been introduced tending to show that the view was to some extent obstructed by trees, weeds, etc., not on the company’s right of way and to so instruct a jury is erroneous.
    3. Railroad not Required to Give Notice of Approach of Trains Such as Will Protect Traveler from: Injury.
    Inasmuch as the manner of giving notice of the approach df a train at crossings is prescribed by statute, an instruction that such notice “must be given so that one approaching could protect himself from injury” is erroneous.
    4. Special Interrogatories Refused in Absence of Request fob Answer in Case of General Verdict.
    The refusal to submit special interrogatories to the jury, where the request did not contain the condition that the interrogatories be answered in case of the return of a general verdict, is not erroneous.
    EkROR to Hamilton common pleas.

      Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.
    Renner & Renner, for defendant in error.
   GIFFEN, J.

Tbe original action was commenced by Amelia Moloney, as admin-istratrix of tbe estate of Timothy Moloney, deceased, against the defendant railway company, to recover for tbe death of Timothy Moloney,, occasioned by alleged negligence of the railway company in managing; one of its trains at the Forest avenue crossing in the village of Norwood..

The railway at this crossing consists of two main tracks known as: the east and west bound, and a side track ending alpout 141 feet east of' the middle line of Forest ,avenue, and lying south of the east bound', main. At the time of the accident there were two coal cars loaded with: coal at or near the end of the side track. The office of the coal dealer which obstructed the view of the track to some extent was situated 104 feet east of the middle line of-Forest avenue, and thirty-three and five-tenths feet south of the middle line of the east bound main.

The decedent, at the time of the accident, was driving a horse in: an ordinary spring wagon for the delivery of meat, in a northerly direction. The evidence tended to prove that the railway company,, through its servants, failed to give warning of the approach of the train,, either by blowing a whistle or ringing a bell. It also tended to prove-that when the fore feet of the horse were between the rails of the east bound main track, the driver looked toward the east and west, or as-, one witness said “up and down the track,” and then suddenly whipped his horse into a trot, and that the engine struck the wagon between the-fore and hind wheels.

The first alleged error is the overruling of the motion to arrest the-evidence from the jury, and render a judgment for the defendant.

While there is some conflict of testimony as to when the decedent, could first see down the track in the, direction from which the train was; coming, the chief contention of counsel for plaintiff in error is, that having looked toward the east, the direction from which the train was. coming, and then suddenly whipping his horse, he must have seen the-train and was, therefore, negligent in trying to cross over the track. It. is perhaps a strong circumstance tending to support the theory of counsel but on the other hand it is by no means uncommon to see a prudent, person, when about to cross a railroad track, look up and down the same, and .although no train is in sight, suddenly urge the horse into a trot. manifestly for the purpose of avoiding any possible risk' in a place well known to be dangerous. It is not unlike that care which forbids one to. point an unloaded gun at another lest it might, without his knowledge, be loaded. Unless, therefore, the court could be certain that the decedent ¡saw the train approaching from such a distance as would prevent an •ordinarily prudent man from attempting to cross, it was justified, and we think rightly in this case, in submitting the question to the jury.

Without reviewing all the testimony contained in the voluminous bill ■of exceptions, it is sufficient to say that there is no error in overruling the motion for a new trial upon the ground that the verdict was not sustained by sufficient evidence.

Numerous objections are made to the general charge; the first one being as follows:

“The burden of proof is upon the defendant to show that, if it was negligent, that Moloney was also negligent, and negligence which ■contributed directly to the accident.”

This charge, without any qualification as to the burden of proving contributory negligence, would be erroneous, but at the request of the ■defendant, the court gave the following special charge:

“I charge that the plaintiff, before she can recover in this action, must have proved by a preponderance of the evidence, the material .allegations of the petition, showing the following facts:
“First. That there was no want of ordinary care contributing to the accident.
“Second. That the injury to decedent resulted solely from the want of ordinary care on the part of the defendant.”

In this instruction, the burden is placed upon the plaintiff of not •only removing any presumption of negligence that might arise from her own testimony, but of proving in the first instance no want of ordinary care on the part of the decedent contributing to the accident, and having done this as the instruction required — if the jury so found —the burden of proving contributory negligence would rest upon the ■defendant.

The next paragraph objected to is as follows:

“You will find that we use ‘proximate cause’ in our charge. Proximate cause means that cause without the existence of which the injury would not have been sustained.”

Proximate cause has been variously defined. In 21 Eng. Enc. Law 485, it is given as follows:

“The proximate cause, in the law of negligence, is such a cause as operates, to produce particular consequences, without the intervention ■of any independent, unforeseen cause without which the injuries would .not have occurred.”

Also note on the same page the following:

“Proximate canse of an injury has been said to be the last negligent act contributing thereto, and without which such injury would not have resulted.” Schwartz v. Shull, 45 W. Va. 405 [31 S. E. Rep. 914].

The definition complained of is, therefore, not accurate, but taken in connection with other parts of the charge, we think the jury were not mislead by it. N

The following is also objected to:

‘ ‘ The right of the railroad company to enjoy the use of its railroad at this crossing of Forest avenue,, and the right of Moloney to use Forest avenue were co-ordinate and equal.”

This is almost the identical language of the third proposition of the syllabus in the case of Pittsburg, Ft. Wayne & Chicago Ry. v. Maurer, 21 Ohio St. 421, and is not overruled, either expressly or by implication, in the case of New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130].

The next paragraph of the charge objected to is as follows:

“The railroad company had the right to run the train at the time and place of this collision at any speed consistent with the safety which was necessary in the conduct of its business in the usual and ordinary manner, taking into consideration, however, all the circumstances surrounding that crossing, affecting the traveling public and having due regard for the safety of the public using the crossing.”

The charge is identical, except as to the parties, with the charge considered in New York, C. & St. L. Ry. v. Kistler, supra, page 341, where it is said:

“From what has already been said as to the speed of trains, it will readily be seen that the latter part of this charge, all after the word ‘manner,’ is erroneous.”

The charge in that case related to a crossing in the country, whereas in this case the crossing is in a village and was frequently used by the public. The rule regulating the speed of railroad trains in open country would be neither proper norxsafe when applied to trains running through a city or town.

The phase of that paragraph “all the circumstances surrounding that crossing,” would include the trees, which according to the testimony to some extent obstructed the view, and, therefore, brought it within the rule stated in the seventh paragraph of the syllabus in New York, C. & St. L. Ry. v. Kistler, supra, which is as follows:

“As a railroad company has no control over the trees, weeds, brush, shrubbery and the like, not on its right of way, it is not required to take such things into consideration when approaching a crossing.”

The following paragraphs in the general charge are also objected to ;•

“The law puts upon the railroad commissioner of Ohio the duty, of determining the necessity of establishing a flagman or safety gates- and automatic bells upon any particular street crossing of a railroad, but the absence of safety gates or flagmen or automatic bells at this, crossing when the accident occurred, is of itself no evidence of negligence upon the part of the railroad company.
“Unless you find, gentlemen of the jury, from the evidence that at the time of the accident, because of the special circumstances existing in this crossing, or that the railroad company, by reason of a number of trains or speed it ran the trains across Forest avenue, its number of tracks, or having cars standing on the side track near such crossing, that this was a crossing much used at this time and necessarily frequently presenting a point of danger, that owing to the near situation of buildings, fences, trees, or other obstructions which afforded less than ordinary opportunity for the seeing of an approaching train, and other like circumstances of a special nature, that acting with reasonable care and prudence it was reasonable that the railroad company should provide special safeguards to persons using the crossing in a prudent and cautious manner commensurate with the danger of the locality. The law authorizes you to infer negligence on the part of the railroad company for any failure to adopt such safeguards as would have given warning, if you find that the situation of the crossing at the time of the accident required them, and of this you are the judge. ’ ’

Without considering the several reasons assigned by counsel why this charge is erroneous, it is sufficient to say that there is no allegation in the petition of negligence by reason of the failure to maintain safety gates or a watchman at the crossing. It is true that the plaintiff' avers in her petition that the defendant did not maintain or operate any safety gates, nor did they have stationed at said point a watch- • man, but she nowhere alleges that such safeguards were negligently omitted. The only negligence charged in the petition is the careless, and unskillful acts of defendant and its servants and employes in managing and moving the engine and cars.

The failure to provide gates or a watchman was a fact competent only for the purpose of showing negligence in the operation and management of the train. Baltimore & Ohio S. W. Ry. v. Lockwood, 72 Ohio St. 586 [74 N. E. Rep. 1071] ; second paragraph of the syllabus in New York, C. & St. L. Ry. v. Kistler, supra.

The next paragraph complained of is as follows:

“So if you find that the train hands got no proper lookout and managed the train without due caution and reasonable care, you will be authorized to infer negligence on the part of the company as one ■of the facts established in the ease.”

■ This charge was approved in the case of Grand Trunk Ry. v. Ives, 144 U. S. 408 [12 Sup. Ct. Rep. 679; 36 L. Ed. 485]. It is claimed, however, that it is in conflict with the language used in the Kistler ■case, page 336, but the charge itself is not given in that case, -but was evidently confined to the duty of the train hands in keeping a proper lookout, whereas in iJhis case, it is coupled with the additional duty as to managing the train with due care. It is unreasonable to suppose that this charge misled the jury to believe that each and every train hand, whether in the engine or baggage-car, was chargeable with the ■same duty.

The next charge complained of is as follows:

“It is the duty of the defendant company, as I have heretofore told you, by proper signals such as blowing a whistle and ringing a bell in such manner as I have described, as would ordinarily notify a person approaching the crossing that the train was approaching the crossing; but this notice must be' given so that the person approaching ■could protect himself from injury.”

The latter clause in this charge is objectionable for it is equivalent to saying that the notice must be given in such manner that the person approaching could protect himself from injury. The manner of giving notice is prescribed by statute, and when given in accordance therewith, hás usually been found sufficient to protect those using a railroad crossing, with ordinary care".

The court further charged the jury as follows:

“Although the defendant’s negligence may have been the primary ■cause of the injury complained of, yet the administratrix cannot recover in this case if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution on the part of the deceased, Moloney, unless it be shown that the defendant railroad company might by the exercise of reasonable care and prudence have avoided the consequence of the injured party’s negligence.”

It is manifest from the testimony that if the engineer and fireman were keeping a lookout that one or both of them must have seen the •decedent some time before reaching the crossing, and that a very slight reduction in the speed of the train would have saved him. The proviso in this charge does not embrace actual knowledge oh the part of the defendant of the peril of the decedent and is therefore erroneous. Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. Rep. 571].

The last paragraph complained of is:

“Examine his acts and doings along the line of the then situation, the nature and character of the crossing, the nature and difficulty of seeing the train approaching, the time of day, and the probability of danger of passing trains, whether there was noise or confusion, and every fact and circumstance bearing on the case to influence his conduct then and there under these circumstances.”

The specific objection to this charge by counsel for plaintiff in error is that there was no evidence of noise or confusion, and that there was no other train due, in sight, or about due. The bill of exceptions does not bear out counsel’s statement as to noise or train about due.

Finally, it is urged that the court erred in refusing to submit two special interrogatories to the jury. The request contained no condition that the questions be answered in case a general verdict shall be rendered. It was not error, therefore, to refuse to submit them to the jury. Gale v. Priddy, 66 Ohio St. 400 [64 N. E. Rep. 437].

Judgment reversed for error in the charge of the court, and cause remanded for a new trial.

Jelke and Swing, JJ., concur.


source: Caselaw Access Project

author: DONAHUE, J.

license: Public Domain

text:
    GAS AND OIL.
    [Fairfield (5th) Circuit Court,
    September 18, 1908.]
    Craine, Taggart and Donahue, JJ.
    Louis W. Marks v. Rushville Gas & Oil Co.
    1. Cancellation oe Old Lease and Execution oe New One by Way oe ReeormaTION CANNOT BE DENIED BY PRESIDENT OE LESSEE COMPANY ON FAILURE TO Record Latter.
    Where at the request of an owner of land an oil and gas company holding a lease- of the land consents that the lease shall be reformed, and by agreement this is done by cancelling the old lease and executing a new-one, but the lessee fails to have the new lease recorded, and the owner of the land subsequently re-leases it to a third party, the company holding the first lease will not be heard to claim that the cancellation of its lease was without effect because its president in signing the cancellation acted on the belief that the cancellation would not be effective until the new lease was recorded.

      2. Drilling on Territorial Limits Described in Lease but not on Leased Land not Possessory Notice.
    The fact that the company had drilled within certain territorial limits of the tract described in the lease hut not on the leased land does not constitute such actual and open possession of the land as to give effect to the unrecorded lease under the provisions of Sec. 4112a Rev. Stat.
    3. Endorsement of Cancellation on Lease, Effect.
    Where a lease provides by its terms that it may he surrendered by the parties, the endorsement thereon of its cancellation and surrender, whether such endorsement is entitled to record on the margin of the lease record or not, constitutes a legal surrender and cancellation and surrender of the lease, notwithstanding the statutory provision that any interest in land' must he granted by an instrument duly executed, acknowledged and attested by witnesses.
    4. Record of Lease Required to Preclude Subsequent Leases.
    A lease for oil or gas has no force or validity except between the parties until the same is filed for record in the recorder’s office of the county in which the leased land is situated, and a subsequent lessee with knowledge, whose lease is recorded, is entitled to hold the premises as against all persons claiming under the prior unrecorded lease.
    C. W. McCIeery, F. M. Acton and M. A. Daugherty, for plaintiff.
    C. D. Martin, A. W. Mithoff and F. S. Monnett, for defendant.
   DONAHUE, J.

This case comes into this court on appeal and is an action brought by the plaintiff, Marks, to enjoin the Rushville Gas & Oil Company from interfering with his possession of thirty-two acres of land described in his petition, and from drilling thereon for oil or gas, he claiming to be the owner of the right by grant from Coplin, the owner of the land. The Rushville Gas & Oil Company answers that petition, averring that Marks is not the owner of any right in said property, but that the Rushville Gas & Oil Company is the owner of a valid lease duly executed and acknowledged by Coplin, who it is admitted was the owner of the property in fee simple, dated June 22, 1906, and recorded March 11, 1907, long prior to the execution of this plaintiff’s lease, and that the same was never surrendered or canceled, but that a pretended cancellation was obtained by fraud and placed on record, and that notwithstanding this they are the owners of the same. That is denied by the reply, and upon the trial of this case in this court leave was taken to make other parties defendants, who were jointly interested with plaintiff in this case claiming that Marks was only holding as trustee for himself and others who were jointly interested with him in the lease, and who participated in the taking of the same from Coplin, and that the lease was fraudulently obtained, and that these other parties. • entered into a guaranty to protect Coplin against any damages that he might suffer by reason of any suit being brought against him by the defendant for any violation of the terms of his lease to it. To this amendment to answer and cross petition of the defendant there is a general denial filed.

The lease to Marks is dated April 8, 1908, and was recorded April 9, 1908. This action was commenced April 11, 1908, to enjoin the Eushville Gas & Oil Company.

The lease under which the Eushville Gas & Oil Company claims was dated June 22, 1906, and recorded March 11, 1907. What is claimed to be a surrender and cancellation is dated February 29, 1908, and was entered on the margin of the record of the lease in the recorder’s office on March 17, 1908. The evidence shows its physical delivery on March 2, 1908. It also appears that contemporaneously with the 'surrender of this lease of June 22, 1906, a new lease was executed by Mr. Coplin to the Eushville Gas & Oil Company. That lease was never placed on record. The reason for this change of lease was the fact that in the original lease a cemetery lot was included by mutual mistake, when it was not intended by either party to be included. Mr. Coplin applied to the directors to have a change and reformation of that lease and it was agreed that might be done. At the meeting at which that was done, the evidence informs us that a suggestion was made by the attorney of the defendant company, who was also the secretary of the company, that the lease could be reformed by canceling it, and a new lease executed, — and it is apparently the uncontradicted ■evidence that that was the method acceptable to all parties concerAed. It is not important to this court whether that was the best method; it was one method that would work a reformation, and it seemed to be the understanding of all parties — the directors of the company, •Coplin and the attorney of the company — that it would be done in this way at the time the reformation was agreed upon. There is some discrepancy in the testimony as to how that was to be accomplished — in regard "to the surrender of the old lease and the delivery of the new lease. It is insisted that the intention was that the old lease should be surrendered with a cancellation on the back thereof, after the new lease was consummated; or some of the witnesses say the motion originally put was after the new lease was recorded; that is, that the. motion was proposed in that language, and put by the president of the company to the directors “after the new lease should be consummated.”

It is now claimed by the Eushville Gas & Oil Company that this ¡secretary and the “plaintiff, Marks, and others,” is the language of the cross petition, entered into a fraudulent conspiracy with the intent •and purpose of working a fraud upon this company and depriving it •of its rights in this property and secured by fraud the signature of the president to this cancellation. It would seem unnecessary for this ■court to say that that allegation of the cross petition is not sustained by ■a single syllable of evidence in this ease. The evidence is uncontra-dicted that Marks and the other gentlemen identified in interest with him had nothing whatever to do with this lease, until the day the contract of lease was entered into with them — April 8, 1908. There is no evidence of any kind or character that points to a conspiracy between the secretary of this company and Marks and the other persons made parties by this amendment to answer and cross petition. In fact, when they knew the condition of this lease, all had been done that was contemplated to be done under the arrangement made at the meeting of the directors at the time they kindly consented that the reformation might be made. There is no showing that the secretary acted in bad faith. He might have exercised bad judgment in this matter. There might have been carelessness connected with the performance of his ■duties, or with the performance of the duties of the president, but •there is nothing to show that either of them acted fraudulently, or that Mr. Kerr’s signature was obtained by fraud in that transaction, or that ;any fraud entered into the negotiations, or into the mind of the secretary, or anyone charged with the duty of reforming this lease.

It is true that there is some evidence that, when this lease was offered to Mr. Kerr for his signature, it was simply shoved over to him with the statement, “here is another paper,for you to sign,” and he signed it. That is no excuse for Mr. Kerr. He was charged with the •duty of guarding and defending the interests of this company. He ■can read and write. He is a man learned in the sciences and learned in the law, a man who knew that he would be held to answer for his acts and that he could not negligently and carelessly put his signature to any paper and say, “I did not know what I was doing.” Courts of •equity are organized to protect the weak and ignorant, who are swindled by the machinations of others, because of their inability to protect themselves, but a man who is clothed with reason and charged with responsibility, when he signs his name to a paper, courts will hold that he contemplated the effect of the paper and the consequences thereof. 'That act was the.voluntary act of Mr. Kerr; he was not under duress and it was not procured by fraudulent misrepresentation of any kind or ■character. If he did not understand it, the secretary did, and we hold he was acting in good faith. We might say that it is an unfortunate thing that through later manipulation these men are called on to suffer a loss by reason of a disposition to do a kindness to Mr. Coplin.

The alleged cancellation on the back of the lease is as follows:

‘ ‘ Rushville, Ohio, Feb. 29, 1908.
“In consideration of one dollar and other considerations, the within lease is hereby canceled and surrendered and not binding on either party.
“The Rushville Gas & Oil CompaNy,
“By R. W. Kerr, Pres.”

What is the effect of that cancellation and surrender of this lease ? What is the effect of the new lease which is made and unrecorded?

If a court of equity were to pay no attention to statutory law, it would not take this court long to declare that transaction did not deprive this company of its interest in its lease, and that they are still the owners of the same, and are entitled to all the rights of a lessee in the.property; but equity must follow the law. One of the maxims, of equity is that equity must follow the law and it is not for this court to pretend to more wisdom than the legislature of the state; it is our duty to apply the law as we find it, for the public conscience is reflected in the statutory law of the state, just as much as in the principles of' equity.

Section 4112a Rev. Stat.:

“All leases and licenses and assignments thereof, or of any interest therein heretofore executed, given or made, for, upon, or concerning any lands or tenements in this state, whereby any right is given or' granted to operate, or to sink or drill wells thereon for natural gas and petroleum or either, or pertaining thereto, shall be recorded in the lease record in the office of the recorder of the proper county by.the first, day of September, 1888, and all' such leases, licenses and assignments hereafter executed, given or made, shall be filed for record as aforesaid, forthwith, and recorded in said lease record, without delay, and shall not be removed until recorded, and no such lease or license hereafter executed of given, unless the person claiming thereunder is in actual and open possession, shall have any force or validity until the same is-filed for record as aforesaid, except as between the parties thereto, nor shall any such lease or license heretofore executed of given and not recorded by the first day of September, 1888, have any force or validity thereafter until filed for record, except as between the parties thereto,. and as to persons claiming thereunder and in actual and open possession ; and tbe plaintiff in an action brought after September 1, 1888, to cancel such lease or license heretofore given, or in any way involving the same, or in an action brought at'any time after sixty days from this date, to cancel such lease or license hereafter given, or in any way involving the same, shall only be required to make the person or persons defendants, so far as such lease or license may be involved, who claim thereunder and are in possession as above stated, and those who then appear of record, or by the files in said office, to own or háve an interest in such lease or license, to fully and finally adjudicate and determine all questions made or involved therein concerning such lease or license, and in case there be no person in possession and claiming as above specified, and no record or writing or file as above stated and required, then so far as such lease or license is involved, it shall only be necessary to make the original lessee or licensee defendant, to fully and finally adjudicate and determine all questions made or involved concerning such lease or license.”

“A lease or license to operate upon land for natural gas or petror leum, until filed for record as required by Sec. 4112a of the Revised Statutes, is without any effect, either at law or in equity, as against a subsequent lessee, or licensee, or other third person acquiring an interest in or lien on the land, although he took with notice of such prior unrecorded lease or license, unless the person claiming thereunder was, at the time, in the actual possession of the land.” Northwestern Ohio Nat. Gas Co. v. Tiffin, 59 Ohio St. 420 [54 N. E. Rep. 77].

There is some claim made that this defendant company was in actual possession of the land, because it had drilled within certain territorial limits named in the lease but not on the lease itself. We think that was not an actual possession, not an open, notorious and adverse possession.

When a man is in possession of another’s farm, exercising authority over it, doing that which without grant or license he would have no right to do, any person buying or leasing that land takes it with whatever rights the person in possession has — whatever they may determine to be. This defendant not being in open possession of the land, this court cannot say that it is within the provisions of this section: Its unrecorded lease is absolutely a nullity for all purposes and the evi? dence touching knowledge of that lease is not important.

That being true the sole question remaining is whether this case in fact was a cancellation. Was there a surrender of the original lease ? The statute authorizes the recording, of this cancellation on the margin 'of the lease. Counsel have argued with a good deal of vigor and have cited quite ¿ number of authorities to the effect that there is no provision made for the cancellation of a lease in this way, and that the statutory provision is that any interest in land must be granted in certain ways — that is to say, it must be duly executed, acknowledged and attested by witnesses. But turning to this particular lease we find that it has within its terms a provision for its cancellation and surrender, which is as follows:

“It is agreed that the second party, its successors and assigns .shall have the right at any time to surrender up this lease and be released from all moneys due and conditions unfulfilled, then and from that time this lease and agreement shall be null and void and no longer binding on either party and the payments which have been made, be held by the party of the first part as the full stipulated damages for the nonfulfillment of the foregoing contract, that all conditions between the parties hereunto shall extend to their heirs, executors, administrators, successors and assigns, which is fully understood ,and agreed to by party of the first part.”

This lease in terms provides that it may be surrendered by the parties-. We think that this indorsement upon it expresses a cancellation or surrender, and whether it is entitled to record upon the margin ■of the lease record or not, certainly it carries with it the effect of a surrender and cancellation that would prevent and estop either party /from bringing an action upon it. Suppose that all had been done to protect the rights of this company required by law, and that instead of neglecting to file the lease that was given in exchange for this, that on the next day after its execution it had been recorded in the recorder’s office of this county, and some dispute arose between Coplin and the Rushville Company, under the terms of that paper, would not the rights of the Rushville Company be determined under the new lease taken and recorded in the place of the old one? The fact that they failed to record this could not change the result of this lawsuit. The same law would apply except as to the right of the parties taking a lease afterwards and recording it first.

We have already said that up to the time of the cancellation or making of the new lease that we think no fraud entered into the mind of anybody. Suppose that Coplin had such a notion in his mind; it was hardly possible he had, because he would suppose that the Rush-ville Company would attend to its business. After he talked to Shaeffer the idea grew upon him; the first time that he knew that he had a right to re-lease it and that a new lease would take precedence over the prior ■unrecorded lease, was the day he actually re-leased it. Whatever was done by his counsel cannot have a retroactive effect; it cannot reach back to the day when everybody to this lease agreed to reform it.

So that we must measure that contract by what transpired then; and we must measure this new lease by what occurred upon that day it was executed. It is not the business of this court to say what these men should have done morally. That is not our affair. We have filled our mission when we have determined the law of this case, and it is our duty to apply the law as it is written and as the Supreme Court of Ohio has expounded it. With this statute and adjudication before us, the truth is that evidence touching knowledge is not important. The only questions are: Was this cancellation obtained by fraud? If it is not obtained by fraud, what effect as a legal proposition is to be given this lease to Marks? We think there is absolutely no fraud proven at the time this cancellation was made, and the first lease to the Rushville Company was surrendered to Coplin and a new lease executed and delivered. There was no intent on the part of anybody to wrong the company, at least not on the part of its officers. With Coplin it must deal at'arm’s length; if through courtesy, kindness and consideration it correct a mistake in his lease and neglect to protect itself — that is no defense here. With their own agents, attorneys and officers, they are not supposed to deal at arm’s length. If we found that the officers of this company had entered into a fraudulent conspiracy with Mariis and others, it would be not only our duty but-our pleasure to declare the cancellation void. But we find no evidence to warrant such conclusion; we think the cancellation was in good faith with proper motives and proper purposes. After that cancellation and surrender of the old lease and the execution of the new lease, that new lease then became the muniment of title of the Rushville Gas & Oil Company, and it cannot protect the company, because it was unrecorded.

Therefore we conclude that the injunction should be made perpetual, the answer and cross petition with amendment thereto will be dismissed with costs, motion for a new trial may be filed and'will be overruled, and exceptions noted on behalf of defendant, statutory time for filing bill of exceptions, and twenty days for finding of fact.

Craine and Taggart, JJ., concur.


text:
    MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    May 11, 1907.]
    Swing, Giffen and Smith, JJ.
    Carthage (Vil.) v. Henry Diekmeier.
    Cebthtcate that Money Sufficient is in the Teeasuby and Unappbopbiaied, Although Expense cannot be Estimated, Valid.
    When from the nature of the work to be done in connection with a proposed improvement it is . impossible to estimate except approximately the expense likely to he incurred, a certificate by a clerk or auditor, that there is in the treasury of the corporation and unappropriated “money sufficient to pay” for the improvement as proposed, is in adequate compliance with the requirement of Sec. 2702 Rev. Stat. that a certificate must issue to render valid contracts, agreements or other obligations involving th.e expenditure of municipal or village funds.
    Error to Hamilton common pleas court.
    S. W. Bell and F. F. Oinsmore, for plaintiff in error.
    J. D. Creed and Archer & Osier, for defendant in error.
   GIFFEN, J.

The original action was based upon a contract for making certain street improvements in tbe village of Carthage. The chief contention arises upon the alleged failure of the village clerk to certify a sufficient amount of money in the treasury to pay for the work in full. The jury, by a special verdict, found that the following certificate was attached to the resolution of council awarding the contract to the defendant in error:

“I hereby certify that there is money in the village treasury in the fund from which the above fund is proposed to be drawn for payment of the village portion of the improvement, and not appropriated for any other purpose, sufficient to pay for the same.
L. Hall,
“$2,030. Village Clerk.’’

This certificate suggests three different constructions as to the amount certified in the treasury, either the fixed sum of $2,030, or the multiple of the estimated number of yards and the bid per yard, or an indefinite sum required to complete the work according to the plans and specifications at the rate bid. The first construction is not tenable, because the figures and dollar mark $2,030 on the margin are no more related to the written words nor more significant than if indorsed on tbe back of the certificate. The second construction is more reasonable, but cannot be adopted because the plans and specifications contain' the provision that “the quantities named on the estimate are approximate and will not govern the final estimate.” The third and last construction, that the sum is indefinite, accords with the very language of the certificate that there is in the treasury “money sufficient to pay for the same,” and complies substantially with Sec. '2702 Bev. Stat., as amefided (86 O. L. 891) and in force at the time this contract was made. Under this section a definite sum should be certified when ascertainable, but when from the nature of the work to be performed it is impossible to estimate except approximately the quantity thereof, the certificate may be for such sum as may be required to complete the improvement according to the plans and specifications at the rate bid; and the village clerk having in this ease so certified, the contractor is entitled to recover the amount of the final estimate under the original contract less the payments already made.

There being no certificate attached to the supplementary contract he is not entitled to recover for any work performed thereunder, and with this modification the judgment will be affirmed.

Swing and Smith, JJ., concur.


text:
    APPEAL.
    [Hamilton (1st) Circuit Court,
    December 21, 1907.]
    Swing, Giffen and Smith, JJ.
    Alexander Meyers v. U. S. Health & Accdt. Ins. Co.
    Appeal Undertaking mat be Approved by Another Justice.
    Jurisdiction on appeal from a judgment by a justice of the peace is conferred by approval of the undertaking by another justice of the same township.
    ERROR to Hamilton common pleas court.
    L. P. Pink, for plaintiff in error.
    Cited and commented upon the following authorities: McGleary v. McLain, 2 Ohio St. 368; McKibben v. Lester, 9 Ohio St. 627; Bowers v. Pomeroy, 21 Ohio St. 184; Pfeifer v. Green, 4 Dec. 239 (3 N. P. 156); Watkins v. Schlecter, 9 Dec. 590 (7 N. P. 42); Norton v. Mc-Leary, 8 Ohio St. 205; Burton Tp. (Tr.) v. Tuttle, 30 Ohio St. 62;
      Derby y. Heath, 59 Ohio St. 54 [51 N. E. Rep. 547]; Eaton v. Frenchr 23 Ohio St. 560; Harding v. New Haven Tp. (Tr.) 3 Ohio 227; Meyers v. Dwight, 24 O. 0. C. 658 (4 N. S. 431); Capaul v. Railway, 26 0. 0. C. 578 (5 N. S. 262); Collins v. Millen, 57 Ohio St. 289 [48 N. E. Rep. 1097].
    J. T. Harrison, for defendant in error.
    Cited and .commented upon the following authorities: Job v. Harlan, 13 Ohio St. 485; Hubble v. RenieJc, 1 Ohio St. 171; Bushong v. Graham, 2 Circ. Dec. 464' (4 R. 140) ; Jones v. Booth, 38 Ohio St. 405; Cass v. Adams, 3 Ohio 223; Roberts v. Wheeler, Wri. 697; Meyers v. Dwight, 24 O. C. 0. 658 (4 N. S. 431).
   GIFFEN, J.

An undertaking for appeal from a judgment of a justice of .the peace, when approved by a justice of the same township, with the trial justice and at his request, shows a substantial compliance with the provisions of Sec. 6584 Rev. Stat., that the surety “be approved by such justice,” and confers jurisdiction. Job v. Harlan, 13 Ohio St. 485.

Judgment affirmed.

Swing and Smith, JJ., concur.


text:
    PARTITION.
    [Hamilton (1st) Circuit Court,
    November, 1907.]
    Swing, Ciffen and Smith, JJ.

      William C. Murr et al. v. Anna Murr, an Infant.
    Minoe’s interests in Partition Proceedings Protected as against Adult Co-parceners.
    Where adult coparceners conceal irom an infant coparcener the true value' of the land, and after tailing it at its appraised value sell it at a greatly enhanced figure, they will be required to account to the minor, for the profits thus derived and the court is not bound to apportion the judgment among the joint wrongdoers, but may render a general judgment against, all th.e defendants.
    Error to Hamilton common pleas court.
    Spangenberg & Spangenberg and J. J. Gasser, for plaintiff in error.

      J. T. Harrison, for defendant in error.

      Affirming Murr v. Murr, 17 Dec. 773, which see for a statement of the case..

   GIFFEN, J.

The plaintiff in her original petition did not seek to set aside the proceedings in tbe partition suit, because the rights of an innocent purchaser had intervened; but she asked that the defendants be required to-account to her for the excess of the proceeds _ of subsequent sale to this purchaser over the amount of the appraisement, at which one of the defendants elected to take the premises.

The ground of the action was fraud on the part of the defendants in concealing from the plaintiff, an infant, the true value of the premises ; and after selling the same a few months after the partition proceedings for nearly three' times their appraised value, dividing the proceeds of sale to the exclusion of plaintiff. While the testimony upon this issue was not, and rarely is, direct and positive, yet the cir-' cumstanees were quite as convincing, and warranted the court in finding for the plaintiff.

The court is not required to apportion the amount of the judgment among joint wrongdoers, and hence the judgment for the full amount against all the defendants was not erroneous.

Judgment affirmed.

Swing and Smith, JJ., concur.


text:
    ASSESSMENTS.
    [Hamilton (1st) Circuit Court,
    June 6, 1908.]
    Swing, G-iffen and Smith, JJ.
    Kahn v. Cincinnati et al.
    Sidewalk Assessments Levied against Subsequent Pubchasees.
    Notice to build sidewalks having been served on an abutting owner, and the walk constructed by the municipality, the assessment may be levied against a subsequent purchaser.
    Moses Ruskin, for plaintiff.
    Fyffe Chambers, for defendant.
   GIFFEN, J.

When a resolution to construct a sidewalk in a municipal corporation is duly passed, and notice thereof is duly served upon the owner of an abutting lot, who fails to comply with such notice, and afterwards sells and conveys the lot, the corporation may nevertheless proceed, within a reasonable time, to make such improvement and assess the' expense thereof upon such lot in the name of the subsequent purchaser, who must be held to have constructive notice at least.

Swing and Smith, JJ., concur.


author: PER CURIAM.

text:
    APPEAL.
    [Hamilton (1st) Circuit Court,
    January 21, 1905.]
    Giffen, Jelke and Swing, JJ.

      Elizabeth Eichert, Exrx. v. Elizabeth Eichert, Widow, et al.
    1. OBDEB BOB DISTRIBUTION OP FUND IN RECEIVERS.
    An order for distribution of a fund in an equity case is a final order in which parties affected nave no right to a trial by jury and is appealable.
    .2. Notice oe Appeal Appended to Order bob Distribution, Sufficient.
    A notice of appeal, appended to an order for distribution by a receiver, is properly given.
    MotioN to dismiss appeal.
    Tafel & Schott and Frederick Hertenstein, for the motion.
    F. S. Starkey and J. <3. Hudson, contra.

      For other decisions relating to this receivership, see post, 825; Eichert v. Eichert, 28 O. C. C. 795 (8 N. S. 526).

   PER CURIAM.

The order appealed from related to the distribution of the fund in n,n equity case, and was a final order in a civil action in which the parties affected thereby had not the right to demand a trial by a jury. Spence v. Basey, 34 Ohio St. 42.

The original action was commenced June 26, 1897; the order complained of was made March 31, 1904, to which was appended notice o£ appeal. The notice was therefore properly given in the mode prescribed by the statute in force at the commencement of the original action. Charles v. Fawley, 71 Ohio St. 50 [72 N. E. Rep. 294].

Motion to dismiss appeal overruled.


author: NORRIS, J.

text:
    INSURANCE — MORTGAGE—MORTGAGEES.
    [Allen (3rd) Circuit Court,
    1904.]

      Firemen's Insurance Co. v. Catherine E. Boland and Clara E. Agner.
    1. MORTGAGOR NOT AGENT OF MORTGAGEE IN PROCURING INSURANCE.
    A mortgagor is not in any sense the agent of the mortgagee in procuring insurance on the mortgaged premises for the benefit of the mortgagee as his interest may appear and in accordance with an agreement so to do.
    2. Fraud of Mortgagor in Procuring Insurance no Defense against Claim of Mortgagee.
    Where the mortgagee is not a party to the procuring of the insurance contract, and had no knowledge of fraud in the procuring of .the insurance, an allegation of fraudulent representations and concealments on the part of the mortgagor in the procuring of the insurance does not constitute a defense to the claim of the mortgagee under the policy.
    Error to Allen common pleas court.
    J. W. Mooney, for plaintiff in error.
    J. P. Hanley, for defendants in error.

       Affirming Agner v. Insurance Co. 14 Dec. 268 (2 N. S. 254); affirmed by the Supreme Court, without report, Firemen’s Ins. Co. v. Agner, 73 Ohio St. 393.

   NORRIS, J.

The defendant in error, Clara E. Agner, brought this action in the court of common pleas against the Firemen’s Insurance Company to recover on a policy of insurance for loss by fire, which loss she claims was covered by said insurance. To this action Catherine Boland was made a party defendant. She filed her amended answer and cross petition in which she asserts with other averments that at the time the policy was issued which secured the loss from thence on, and at the time the property was destroyed by fire, she held a mortgage on the property, and the policy provided that the loss be paid to her as her mortgage interest may at the time of the loss appear, and that it was further stipulated by said policy that the insurance of her said mortgage interest as mortgagee in the property insured should not be off-set or invalidated by any act or omission of the mortgagor to whom the policy was’issued.

The answer of the defendant company to this pleading of Catherine Boland is by its first defense a denial. By its second defense it asserts that it is stipulated in the policy that the policy should be void if the assured had at its issuance or afterwards in the life of the policy procured other insurance upon the same property, that by specific: provision of the policy the same issued.subject to the foregoing prohibition which could not be and was not waived by any officer, agent or representative of defendant company; that the policy further provided that if with consent of the company an interest under the policy shall exist in favor of a mortgagee the aforesaid provision shall apply in manner expressed in such conditions as shall be written upon, attached or appended to the policy.

The defendant says that this Catherine Boland, prior to July 25,. 1900, was the owner of the property described in the policy, and on that date conveyed the same by deed to Clara E. Agner, and that while Catherine Boland was the owner she procured and there was issued to her by the Washington Insurance Company of Cincinnati, 0., an insurance policy on said property insuring the same against loss, etc., by fire in the sum of $1,500, and when she sold and conveyed the property to Clara E. Agner she duly assigned and transferred said policy to Clara E. Agner. The policy was issued on October 1, 1889, insured the property for three years from that date, and so continued for said tim,e in force, which period covered the date of the fire. This policy in said Washington Insurance Company when it was assigned was made payable to Catherine Boland, mortgagee, as her interest may appear; that defendant’s policy here in suit was issued January 17, 1901, and while the Washington Insurance policy was in force. The mortgage clause in this defendant’s policy was thus made at the request of both Clara E. Agner and Catherine Boland. Defendant says that when it issued its policy neither the defendant nor any of its agents had knowledge or notice of the existence of the policy of the Washington company; that Clara E. Agner and Catherine Boland and each of them failed to inform defendant of said insurance in the Washington Insurance Company; and neglected to secure consent of defendant company to said insurance; that defendant did not waive the provision of its policy prohibiting other insurance, and did not consent that said provision of its policy be abrogated. Wherefore it says that Clara E. Agner and Catherine Boland each failed to comply with the 'terms, of the policy, and that by reason of the foregoing the policy is void.

The third defense disputes, and denies the amount of the loss;, pleads that by the terms of its policy it is not liable for a greater proportion of the loss than the amount of its insurance bears to the whole insurance on the property; that the property was insured by the Washington Insurance Company in the sum of $1,500. As a fourth defense-ihe defendant company pleads a stipulation of the policy that the same shall be void if the insured fails to make known any fact material to “the risk, or conceals or misrepresents in any manner any material fact or circumstance concerning the insurance of the subject thereof, ■and that all fraud or attempt at fraud by false swearing by the insured touching the insurance, or any matter relating to it, whether before or after the loss, shall forfeit all claims under the policy; that within thirty, days after the loss the insured shall render an account under ■oath of the loss, the actual cash value of the property insured, the •amount of loss and when and how the fire originated.

Defendant says that plaintiff did furnish such statement at the request of Catherine Boland in which plaintiff falsely swore concerning this matter, and that plaintiff and Catherine Boland knew that the ■statement was false, and the same was made by plaintiff to defraud" the defendant company; that plaintiff falsely swore as to the amount •of insurance on the property at the time of the fire, and as to the ■origin of the fire and plaintiff’s knowledge of it.

As a fifth defense the defendant says that the policy stipulated that in ease of disagreement concerning the loss the matters in dispute ■shall be left to appraisers or arbitrators; that the loss is not payable until sixty days after such estimate and satisfactory proof of loss is received by the company; that, defendant at. once notified plaintiff that •said proof was unsatisfactory and that it did not waive any provision •of the policy; that by the terms of the policy no action is sustainable until these provisions are complied with by the insured, and that plaintiff has not complied with these conditions.

' A general demurrer was filed to the second, third, fourth and fifth ■defenses of this answer. This demurrer was overruled as to the third ■defense and sustained as to the second, fourth and fifth defenses. To the first and third defenses of the answer of said defendant company to her cross petition, Catherine Boland filed a general denial.

Upon the issues thus tendered by the pleadings and the evidence, the case was submitted to a jury, which rendered its separate verdicts each against the defendant insurance company, one in favor of Clara E. Agner and one in favor of defendant, Catherine Boland. Upon motion in that behalf and for a new trial the court set aside the verdict in favor of Clara E. Agner, and the defendant company thereupon filed its motion to set aside the verdict in favor of said Catherine Bo-land and for a new trial upon the issues raised by its answer and ■cross petition and the answer of defendant company thereto, and the reply of Catherine Boland to said last named answer. The court overruled said motion and entered its judgment on the verdict rendered by the jury against defendant insurance company and in favor of Catherine Boland.

The defendant insurance company seeks to reverse this judgment and finding of the common pleas court assigning as its causes that — :

' 1. The court erred in overruling defendant’s motion for a new trial.

2. That the court erred in sustaining the demurrer of Catherine Boland to the second, fourth and fifth defenses in the answer of the defendant to the amended cross petition of Catherine Boland.

3. Erred in the charge to jury.

4. Erred in refusing to charge as requested.

5. That the court erred in rendering judgment in favor of Catherine Boland against defendant insurance company, and in not rendering judgment in favor of said defendant insurance company and against said Catherine Boland.

6. And for other errors appearing upon the face of the record.

The motion for a new trial urges that in addition to the specific charges in the petition in error:

1. That the verdict is against the weight of the evidence.

2. That the verdict is excessive.

3; Error in overruling the defendant’s motion to direct the verdict for defendant against Catherine Boland.

4. Error in refusing to submit to the jury certain interrogations requested by defendant.

5. Error in the admission of evidence over defendant’s objection and in requesting evidence offered by defendant.

Addressing these various complaints to the case submitted to the jury (on the issues tendered by the pleadings) after action of the court upon the demurrer of Catherine Boland to the answer of defendant to her cross petition, the record exhibits no error which warrants a reversal of the judgment. This being true, the assignment left for consideration goes to the demurrer and the judgment of the court sustaining the same as to the second, fourth and fifth defenses. The second defense is a direct attack upon the validity of the policy, claiming that no contract of insurance was effected between the defendant Clara E. Agner, the owner of the property, and the mortgagor in the mortgage of Catherine Boland, and that because of this the mortgage clause in the policy for the benefit of Catherine Boland’s mortgage interest in the property was without foundation and never caused a valid obligation of the defendant insurance company. The mortgagee-intended to be insured. It was her contract with the mortgagor that ber mortgaged interest should be insured, not by a void insurance' policy, but by a valid insurance policy, by a valid contract of insurance. The defendant company intended to insure the mortgagee, not. by mere pretense, but validly; not by an agreement that merely seemed upon its face to afford protection to the mortgagee, but by a contract which in good faith and in fact did protect and was an insurance of her mortgage interest. This was in all respects the intention of all parties, and all this defendant might and does concede to be true, and that such insurance covered the interest of the mortgagee but that when it issued its policy of insurance there was other insurance on the property protecting the mortgagee as well as the plaintiff, and which fact prevented the conclusion of a valid contract of insurance' between plaintiff and defendant, and were it not further for the false representations and concealments concerning this last named policy and the existence of it, by the plaintiff, the mortgagor, who obtained! this influence in controversy, and the further fraudulent and false representations and concealments of plaintiff concerning the value of the property, the amount of loss, the cause of the fire, and other matter vital to the obligation of defendant to the plaintiff on the policy, and these are pleaded in defense to the claim of the mortgagee.

These facts of the plaintiff who obtained the policy and to whom the policy was issued and these failures and defaults of the plaintiff’ to act, as the policy stipulated she should act, in order that the contract be a valid contract between the plaintiff and the defendant company, are interposed in excuse of the obligation of the defendant company to the mortgagee. These defenses as against a general demurrer of the mortgagee the court held not to be available, and that the vice' pleaded which rendered the contract as between the assured, the mortgagor and the defendant company to be fraudulently concealed and void, is not fatal to the claim of the mortgagee under the contract of insurance with said company.

It is written in this policy "that if with the consent of this company an interest in this policy shall exist in favor of the mortgagee' or in favor of an interest other than the interest of the assured, the condition hereinbefore contained shall apply, in manner expressed in said provision of insurance relating to such interest, as shall be written upon, attached or appended hereto.” "

So. it would seem that the conditions and provisions relating to the insurance and protection of the mortgagee’s interest, if in conflict with the provisions and conditions "hereinbefore written” concerning" "tbe interest of tbe assured, then tbe provisions and conditions of tbe policy wbicb are applicable to tbe contract as between tbe assured and ■defendant company, must give way and must be applied to tbe contract and cut sucb figure in it as are expressed in tbe provision relating to sucb interest as shall be written upon, attached or appended to the policy.

So that whether tbe contract of insurance concerning tbe interest ■of tbe mortgagee be conceived with tbe policy and concurrent with it, ■and written upon it, or whether it be a contract made after tbe policy issued, and attached or appended to the policy, tbe provisions of said •contract relating to sucb interest, which is not tbe interest of the assured described in tbe policy, shall control, and when tbe general conditions and provisions of tbe policy are applied to tbe contract of insurance wbicb insures tbe interest that is not tbe interest of tbe .assured. Wherefore it would seem that by tbe very terms of tbe policy tbe contract insuring tbe interest of the mortgagee is recognized and treated and made as a contract of insurance between tbe insurance ■company and tbe mortgagee separate, distinct and apart from tbe contract wbicb insures tbe interest of tbe assured, and sucb has been tbe interpretation of tbe courts in cases to be found in tbe very excellent briefs of counsel on both sides of this case.

By tbe terms of the contract of insurance between the mortgagee and tbe defendant company it is stipulated “that terms of policy as to tbe interest of tbe mortgagee shall not be affected or invalidated by •any act or neglect of tbe mortgagor, tbe applicant for insurance. ’ ’

It is claimed by tbe defendant company that this stipulation refers ■only to acts and omissions of tbe assured after a policy has issued wbicb in its inception afforded valid protection to tbe interest of tbe mort•gagor, tbe assured, and that if tbe policy was void at its inception as tbe mortgagor and her interest, then that tbe vice did not destroy a ■contract that was once efficient, but prevented any valid obligation because of tbe policy, not only as between tbe mortgagor and tbe defendant company, but also as between tbe mortgagee and tbe defendant company, and that no contractual relations arose from tbe policy or were evidenced by it, or by any of its stipulations or by any stipulation that might be written on it, or attached or appended concerning any interest in tbe property described in tbe policy wbicb was not tbe interest of tbe mortgagor, tbe assured, and all this because tbe acts of tbe assured, or the* omission of the assured to act in matters leading to tbe contract relating to her and her interests, make it not a valid obligation at any time in her behalf.

It is not claimed in the answer that Catherine Boland was an ■applicant for this policy or in any way concerned herself as an applicant in plaintiff’s behalf for insurance upon the intérest of the mortgagor. She made no representation which induced such insurance, and concealed no fact that, from her relation to the mortgagor and the defendant company concerning the interest of the mortgagor, the assured, she was called upon or under obligation to reveal.

There was no act which the mortgagor, the applicant, was called upon to perform and which she, the applicant, omitted or neglected to perform, concerning her, the applicant’s, interest which it was the duty of Catherine Boland to perform. There was no fact connected with the interest of the applicant, the assured, in the property described •in the policy and material to the applicant’s risk which she, the mortgagee, in her relation as mortgagee was required to' make known to the defendant company, and there is no allegation here in this behalf. So that no act on her part and no duty unperformed by her made void, or tended to make void the contract of insurance between the plaintiff, Clara B. Agner, the mortgagor, and the defendant company; and any attack which the company might or could make upon the policy as it related to. the mortgagor, could not by commission or omission forfeit the rights of the mortgagee, who held no right in the insurable interest of the mortgagor or concerning it.

The defendant company contemplated the possibility of concealment and fraud by the applicant, the mortgagor, in obtaining her insurance and of concealment and .falsehood concerning the property, the fire, the loss and otherwise, and discounted all this by proper provisions in its policy as to its liability in such event to the mortgagor under the policy, and it stipulated with the mortgagee that it would receive the premium from the mortgagor, applying the condition of the policy in which it provided against all these acts and omissions .and concealments of the mortgagor, so as not to affect or make invalid its obligations to the mortgagee; and to make itself safe on its liability thus assumed in ease of loss, it stepped into the shoes of the mortgagee, .and by its contract became and was subrogated to all the rights, liens, ■claims, security and indemnity of whatever character that the mortgagee had or could have concerning her interest in the property described in the policy, which so far as appears to the contrary would include the indemnity, if any, afforded by the policy of the Washington Insurance Company of Cincinnati, as well as all else by which her mortgage interest was in anyways protected.

It would not appear that Clara E. Agner, the applicant for the policy, the person to whom it was issued, in whose favor it purported to insure an interest to which Catherine Boland was a stranger, could either make or destroy the contract between defendant company and the mortgagee, any more than could the mortgagee by her act or omission make or destroy the contract between defendant company and the-mortgagor.

That the' contract of insurance between defendant company and mortgagee was made at the request of the mortgagor, we consider of no importance here. It was not a request that defendant company perform some duty or act, or create or assume some obligation which the mortgagee owed to any one. It was requested that the defendant perform a duty and comply with and carry out an obligation which the mortgagor, the applicant for the policy, owed to the mortgagee, Catherine Boland, so that the relation of principal and agent, as between the mortgagor and-mortgagee could in no aspect of this controversy arise.

We are of the opinion that the common pleas did not err in sustaining the demurrer to the second, fourth and fifth defenses of the answer of defendant company to the cross petition of Catherine Boland, and finding no error in the record to the prejudice of plaintiff in error, we must affirm the judgment. The costs are adjudged against the plaintiff in error. Execution is awarded and the case is remanded for execution.

Mooney and Day, JJ., concur.


author: DUSTIN, J.

text:
    BENEFICIAL ASSOCIATIONS.
    [Franklin (2d) Circuit Court,
    October 21, 1907.]
    Wilson, Sullivan and Dustin, JJ.
    State ex rel. Koehler v. Grand Lodge Ancient Order of United Workmen.
    Adjudicated Claims against Beneficial Associations Establishes Lien on Funds of the Order.
    The adjudication of a claim by the duly authorized trustees of a fraternal organization with delivery of the order establishes a lien on the funds of the organization, which a court of equity will recognize as against a subsequently appointed receiver or assignee of the organization.

      ERROR to Franklin common pleas court.
   DUSTIN, J.

We are of the opinion that the issuing of the warrant in question by the proper authorities of the A. O. U. W. was the setting aside of the amount named for the claimant, Mrs. Koehler.

It was an order upon itself, duly certified, and needing no acceptance.

The action of an executive officer could not invalidate it nor render it noneffective. It was equivalent to what is known in banking as a cashier’s check; and its legal effect is the same as if the money had been wrapped, labeled and set aside as belonging to the party named thereon.

Hence we think the. authorities cited by counsel for the receiver with reference to cheeks and orders do not apply, and that Judge Hosea of the superior court of Cincinnati, Ohio, in the case of Hunt v. Supreme Lodge A. O. U. W., 19 Dec. 130 (5 O. L. R. 374), took the proper view.

Decree accordingly.

Wilson and Sullivan, JJ., concur.


text:
    CHARGE TO JURY — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    February 15, 1908.]
    Swing, Giffen and Smith, JJ.
    Queen City Box Co. v. George Duffy, an Infant.
    Charge Requiring Defendants to Prove Plaintiff’s Negligence upon Contributory Negligence Disclaimed Held Erroneous.
    In an action for damages for personal injuries, where the defendant has disclaimed any defense of contributory negligence, a charge of court as to the burden of proving negligence on the part of the plaintiff is misleading, and taken in connection with a misstatement of the plaintiff’s age as thirteen to fourteen, when he would have been sixteen on his next birthday, constitutes reversible error.
    Robertson & Buchwalter, for plaintiff in error.
    Cogan & Williams, for defendant in error,
   GIFFEN, J.

The infant, plaintiff below, was injured by a circular saw while engaged in carrying off short pieces of boards as they were cnt by the .sawyer. It is charged in the petition that the defendant, well knowing the want of skill and intelligence of said infant to understand the danger necessarily attending his employment about such machinery, failed and neglected to warn him of such danger.

The defendant denied that the injury was in any way caused by its negligence, and averred that it was caused wholly by the plaintiff’s •own negligence.

The jury returned a general verdict in favor of the plaintiff, and in answer to a special interrogatory found that he had not been sufficiently instructed as to the dangers of his employment, and did not appreciate those v dangers; but there was no special finding that this •omission was the direct cause of the injury, although it may be inferred from the general verdict. It seems doubtful, however, from the charge ■of the court upon the question of the burden of proof, whether the jury arrived at such conclusion, because after correctly instructing them that the burden of proving the defendant’s negligence and that it was the direct cause of the injury rested upon the plaintiff, the following instruction was given:

“The burden of proof is on the defendant to establish the fact which would constitute plaintiff’s negligence, if any, and that such negligence was the direct cause of the accident; but if the evidence ■offered by the plaintiff raises in your mind a presumption of negligence on his part as the direct cause of the accident, he must, by evidence offered by him, that is, by the plaintiff, remove, such presumption before you can find a verdict in his favor.”

The record also discloses the fact that defendant objected before the charge was given to any instructions upon the subject of con-' tributory negligence of the plaintiff.’

If, therefore, the defendant disclaimed any defense of contributory negligence, it is difficult to understand how the burden of proving negligence of the plaintiff and that it was the direct cause of the accident could be on the defendant, except by a strict construction of the allegation in the answer “that the injuries complained of were caused wholly and entirely by the plaintiff’s own negligence.”

The charge was liable to mislead the jury to believe that although the plaintiff failed to prove that the negligence of the defendant was a direct cause of the accident, the defendant was still bound to prove that the plaintiff’s own negligence wholly caused the injuries, unless the evidence of plaintiff raised a presumption of negligence on his part as the direct cause of .the accident.

The allegation .of the answer, considered in connection with the disclaimer made before the charge was given, was equivalent to a general denial that the defendant’s negligence- caused the injuries.

The court also charged the jury as follows:

“At the time of the accident he (the plaintiff) was a child thirteen to fourteen years of age, and when we consider the question .as to whether or not he was negligent we must measure his conduct by what a child of that age, and of ordinary prudence, would do or would not do under the circumstances of the case.”

The error in this instruction consisted in assuming that the child was thirteen to fourteen years of age when there was testimony tending to prove that he would be sixteen years of age on his next birthday.

In view, of the special finding of the ■ jury we are not disposed to hold that the verdict is not sustained by sufficient evidence, although a careful reading of the evidence does not make it clear that the negligence of the defendant was the direct cause of the injuries.

The judgment will be reversed for errors in the charge of the court, and the cause remanded for a new trial.


author: SMITH, J.

text:
    EXECUTORS AND ADMINISTRATORS — LIMITATION OF v ACTIONS.
    [Hamilton (1st) Circuit Court,
    February 15, 1908.]
    Swing, G-iffen and Smith, JJ.

      Mary Florence Glenn et al. v. Frank Eicher.
    The Two Yeabs’ Limitation Does not Run against Claim oe Wins to whicie She was Entitled to be Subbogated ebom Heb Husband’s Estate.
    The limitation prescribed by Sec. 6113 Rév. Stat. as to claims-against decedent’s estates, does not bar her administrator from recovering against her deceased husband’s estate an amount, paid by a wife out of her separate estate to liquidate his indebtedness, for which she was entitled to be subrogated.
    J. J.-Gasser, for plaintiffs in error.
    CIoss & Luebbert, for defendant in error.

      Affirming, Eicher v. Darby, 17 Dec. 780.

   SMITH, J.

We are of the opinion that the judgment of the court below should be affirmed.

In addition to tbe stock and fixtures set off by tbe appraisers of tbe estate of Martin S. Glenn to Bridget Glenn, there was tbe sum of $500. Sbe also paid debts of Martin S. Glenn out of ber own separate estate. Tbe evidence shows that she received no part of this $500, nor was sbe ever reimbursed for tbe debts of Martin S. Glenn’s estate that she paid.

We see no reason why her administrator should not recover for the ¡benefit of ber estate tbe $500, which was not paid to her, and the .amount paid by ber to liquidate ber husband’s indebtedness, to which ¡she is entitled under tbe doctrine of subrogation. We do not think that Sec. 6113 Rev. Stat.,/ relating to limitation .of actions by creditors, will bar ber administrator from recovering for the benefit of her estate what was due her from the estate of her husband. This might be said to be her separate estate; they are debts due from her husband’s estate, and having her administrator receive these amounts is not taking away from the children of Martin S. Glenn any part of their father’s estate, for the debts of his estate should be paid.

The other grounds of error complained of by the plaintiffs in error we do not think are tenable.

Judgment affirmed.

.Swing and Giffen, JJ., concur.


author: SMITH, J. .

text:
    ASSESSMENTS — SEWERS.
    [Hamilton (1st) Circuit Court,
    1907.]
    Swing, Giffin and. Smitli, JJ.
    Byron Erkenbrecher v. Cincinnati (City).
    ASSESSMENT OF Abtjttino Pbopeety fob Seweb Consteuction.
    Assessments for construction of sewers in parts of a street, as provided for by Sec. 85 of tbe Mun. Code of 1902 (Lan. Rev. Stat. 3640; B. 1536-248), may be charged against the property abutting on the improvement by the feet" front; and the fact that parts of the street have already been sewered does not require that the assessment should be charged against all of the property on the street.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 300-383. — Ed.]
    INJUNCTION.
    Guido Gores and J. S. Hanger, for plaintiffs:
    Cited and commented upon the following authorities: Cooley, Const. Lim. (6 ed.) 625; Cooley, Taxation (2 ed.) 646; State v. Portage,
      12 Wis. 562; Biggins v. Brown, 76 Cal. 318 [18 Pac. Rep. 373] ; Kinney -v. DeMar, 4 Circ. Dec. 582 (7 R. 250) ; Motz v. Detroit, 18 Micb. 495; McGrath v. Clemens, 49 Mo. 552; 1 Cooley, Taxation. (3 ed.) 381.
    W. A. Geoghegan, for defendant.
   SMITH, J. .

This action is brought to enjoin the collection of an assessment for the construction of a sewer in the unsewered portion of St. James avenue between Curtis' street and Windsor street, the cost of the same having been assessed upon the property abutting upon the improvement by the front foot.

It is claimed that the cost of said improvement should have been assessed upon all the property abutting upon St. James avenue, and not upon the property abutting, upon the improvement because portions of said street had been sewered prior thereto.

Original Sec. 2378 (see Lan. 3640; B. 1536-248) Rev. Stat. provides for the construction of sewers in a part or parts of a street; and original Sec. 2379 (see Lan. 3640; B. 1536-248) Rev. Stat. provides for assessing ■the cost and expense of the same upon the lands abutting upon the improvement by the feet front.

The improvement of separated portions of a street is fully recognized in the statute, and such improvement if made in sections and assessed per front foot upon said sections is upheld in Wilder v. Cincinnati, 26 Ohio St. 284.

The improvement was not of the whole of St. James avenue but ■only of parts of it; and if some time prior certain portions of the street had been improved with sewers, whether by the city or private individuals, surely the city would have the right afterwards to improve the separated portions and assess the abutting property for the cost of the same as though they were contiguous.

The assessment is, therefore, valid and the petition will be dismissed.

Swing and Giffen, JJ., concur.


text:
    MASTER AND SERVANT.
    [Hamilton (1st) Circuit Court,
    May 23, 1908.]
    Swing, Giffen and Smith, JJ.
    Iliff et al. v. Cavey, Admrx.
    Eisk Assumed by Servant Disregarding Warning as Master having Ordered:
    A servant away from the place where he is at work, giving as the reason therefor that he is afraid a wall will fall on him, and the servant disregards the order and continues his work without changing his position, and the wall falls and he is killed, an action for damages for wrongful death against the master should he taken from the jury on the ground that the risk was assumed.
    Keam & Keam, for plaintiff in error.
    T, L. Michie and W. W. Symmes, for defendant in error.
   GIFFEN, J.

The negligence charged in the petition is the failure of the defendants to furnish the plaintiff’s intestate a safe place to work; that the-defendants knew and plaintiff’s intestate did not know the dangerous, condition of the brick wall which afterwards fell upon and billed him.

The. undisputed facts disclosed by the record are that about fifteen or twenty minutes before the accident occurred one of the defendants, discovered the dangerous condition of the brick wall near which the-workmen, including plaintiff’s intestate, were engaged; that he so informed them and ordered them away to a safe place; that two of the workmen — the deceased and one Bradley — disobeyed the order, the latter willfully and the former apparently so; that the deceased in the-full possession of his sense of hearing must have heard the order, and had abundant time and opportunity to obey the same.

It- is clear, therefore, that the deceased with full knowledge of the danger, and against the order of one of the defendants, voluntarily assumed the risk, and the court erred in overruling the motion of the deféndants at the conclusion of the evidence to arrest the ease from the jury.

It necessarily follows that the judgment must be reversed, and judgment rendered for the plaintiffs in error. Davis v. Somers-Cambridge Co. 75 Ohio St. 215 [79 N. E. Rep. 233].

Swing and Smith, JJ., concur.

BeheariNG.

Our conclusion, after a careful consideration of tbe whole testimony, iipon a motion for a rehearing, is that there is no testimony tending to prove that the deceased had no knowledge of the dangerous. condition of the brick wall; but on the contrary it does appeal that he-was warned by the defendants in ample time to avoid injury.

The witness, Lee, was not, and could not have been present when the warning was given, and does not pretend that the defendant, Charles; B. Iliff, while standing on the sidewalk, saw or was looking at the-deceased while in a place of peril after the warning was given.

We are constrained, therefore, to overrule the motion for a rehearing, and to adhere to our former decision.


text:
    RECEIVERS — MORTGAGE.
    [Hamilton (1st) Circuit Court.]
    Swing, Giffen and Smith, JJ.

      Elizabeth Eichert et al. v. Elizabeth Eichert, Widow, et al.
    CIRCUIT Court has Jurisdiction on Appeal to Punish Receiver for Wilful.. Disobedience of its Orders.
    The circuit court having jurisdiction over the person of the receiver and the subject-matter on appeal by the receiver, may enforce obedience to. its orders by proceedings in contempt as though the appointment; of the ■ receivership were made by it.
    Fred Hertenstein, for the charges.
    Patrick Gaynor, for the receiver.

      For other decisions relating to this receivership, see, ante, 810; 28 O. C. C 795 (8 N. S. 526).

   GIFFEN, J.

The jurisdiction of this court over the person of the receiver ■ and the subject-matter on appeal "from the order of the common pleas court is conclusively determined by the Supreme Court in affirming the • order of this court; but it is claimed that, although the receiver wilfully ■ disobeys the order of this court, he can be punished for contempt only by the court appointing him. He himself invoked the jurisdiction of' this court by appealing from the order made by the common pleas court, which was thereby suspended; and thid court having made a. like order against the receiver may enforce obedience thereto with all the power and to the same extent it could if he were appointed by it. jEe can not by appeal suspend the order of the common pleas court and then defy the order of this court upon the ground that only the court ■appointing him can enforce the order.

As said in the case of State v. Johnson, 13 Fla. 33, 50:

“He is amenable to the court having authority for the time being in the due course of law.”

There is no excuse for his resistance of the order of the court to pay over the money found in his hands as.receiver. If the money has been appropriated to his own use, and he is therefore unable to pay as ■directed the offense is thereby aggravated. ' Section 6640 Eev. Stat.

We regret to conclude that the receiver is without lawful excuse for his disregard of duty, of the authority of this court, and of the law ■of the case, wherefore he is adjudged to be in contempt.

Swing and Smith, JJ., concur.


text:
    CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    March, 1908.]
    Swing, Giffen and Smith, JJ.
    Edward C. Hall v. William H. Hall et al.
    1. Original Stockholders Failing to Take New Issue Waite Rights Therein.
    Stockholders, having been given every opportunity to take their full quota of a new issue of stock,- failing to do so, waive their rights thereto. Hence, purchasers from them four years later of their stock of original issue acquire thereby no rights in the new issue. Such new stock remaining untaken becomes treasury stock-and may legally be sold by the board of directors.

      2. Sale of Stock Effecting Change of Control of a Corporation Held not Illegal.
    Obtaining control of a corporation by a combination of stockholders or by cumulative voting, in the absence of fraud or other illegal action, is not ground for setting aside a sale of treasury stock to effect such results, especially if the sale were made in the presence of all parties and by the proper officers, and since there is no claim that such stock might have been sold for more in the open market or that it might bring more at a resale.
    Appeal.
    Albert Bettinger, for plaintiff.
    W. L. Dickson, for Wm. H. Hall, Cbloa Hall Kemper, Fred S. Kemper.

      W. C. Cochran, for the Hall’s Safe Company.
   GIFFEN, J.

The plaintiff seeks to set aside the sale of fifty-four shares of the •capital stock of the defendant corporation, the Hall’s Safe Company, to the defendant, Chloa H. Kemper, upon the ground that these shares being part of an increase of capital stock should have been apportioned ratably to the holders, including the plaintiff, of the original stock of the company, and that any sale thereof without the consent of the stockholders was illegal and void.

The testimony shows that plaintiff received more' than his proportion of such increase, when based upon the number of original shares held by 'him at the time of the increase, and that those stockholders who did not receive their full quota, having every opportunity to do so, waived their right thereto.

A. Acton Hall and Mr. and Mrs. Clark, as original stockholders, declined to take any of the increase, and when four years later they transferred the stock to the plaintiff the right which they had surrendered did not survive as an incident to the stock, and could not be rightfully asserted by him.

The fifty-four shares, therefore, became treasury stock, which could be legally sold by the board of directors.

The control of the board of directors and the sale of the stock was ■effected by cumulative voting and by the defendant stockholders combining against the plaintiff, which in the absence of fraud or other illegal element are binding upon him. The stock was sold at a regular meeting of the board of directors, at which plaintiff was present and stated that he would give $250 per share; but a written proposal from the defendant, Chloa H. Kemper, to purchase at $300 per share was •accepted and the sale made.

It is not claimed that the stock is worth more, nor that the company will be benefited by a resale; but the whole controversy arises from a determination on the part of plaintiff to retain a majority of the stock, and thereby the control of the company, and alike determination on the part of the defendant stockholders to secure such control; and having decided that the plaintiff as an original stockholder is not •entitled to any of the fifty-four shares, the court will not interfere and set aside a sale which although not made in the open market yet was in the presence of all the parties by the proper officers and not illegal.

The petition will be dismissed.

Swing and Smith', JJ., concur.


text:
    CRIMINAL LAW — LARCENY.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffert and Smith, JJ.
    Max Premack v. State.
    1. INSTRUCTING THAT THE CORPUS DELICTI OF A CRIME IS ÜNCONTROVERTED ERRONEOUS on Plea op not Guilty.
    The corpus delicti is one of the material facts put in issue by a plea of not guilty. Hence, in a prosecution for receiving stolen property in which accused did not testify, instructing the jury that certain facts were not controverted, “that the goods, etc., were stolen at the time alleged from a freight car,” assumes that the crime of larceny had been committed and invades the province of the jury.
    2. Evidence op Prior Offense to Show Guilty Knowledge.
    In a prosecution for receiving stolen goods evidence of a like prior offense on the part of the accused is 'admissible as tending to prove guilty knowledge in the later transaction.
    ERROR to Hamilton common pleas court.
    T. H. Darby, L. P. Pink and Eugene Adler, for plaintiff in error..
    Froome Morris, for defendant in error.
   SMITH, J.

The grounds of error relied upon by the plaintiff in error are-first, the court erred in admitting testimony of a prior larceny; and second, the court erred in its charge to the jury.

As to the first we do not think the testimony admitted by the trial court and objected to by plaintiff in error disclosed a prior larceny on the part of the defendant, but that it was properly admitted as tending' to show guilty knowledge on the part of the plaintiff in error that the-property, for receiving which he was charged, was stolen. Besides the-record does not disclose an objection and proper exception to the substance of the testimony, but rather to the time of its introduction by the state.

Second. We think there was error in the charge of the court in stating to the jury that “certain facts were not disputed and not. open to controversy,” that is, “does not controvert nor open to controversy that the goods or some of them set forth in the indictment were stolen at the time alleged from a freight car belonging to the Cleveland, Chicago, Cincinnati & St. Louis Railway Company.”

The plea of not guilty of the defendant put in issue all material facts to be proven, by the state, and one of the facts thus to be proven was the corpus delicti. The defendant did not take the stand in his Own behalf, and he did not by his testimony or otherwise as shown by the record admit the claim of the state as to the body of the crime. This was an issue to be tried by the jury and not by the court. In substance the trial court told the jury that the crime of larceny had been ■committed, and the statement also would tend to fortify the evidence given by the accomplices in the case who testified on behalf of the state to the commission of the crime, where such evidence, as the court properly instructed the,, jury, was to be scrutinized with care. It is the province of the jury to determine whether or not a crime has been committed, and if it has, then the time and manner of it, as well as who are the perpetrators. Morgan v. State, 48 Ohio St. 371 [27 N. E. Rep. 710].

For the above error of the court the judgment will be reversed, and new trial granted.

Swing and Giffen, JJ.. concur.


text:
    STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    May 16, 1908.]
    Swing, Giffen and Smith, JJ.

      Cincinnati Traction Co. v. Kroger.
    Duty op Driver of Wagon on Steeet Cae Track.
    One driving along the track of an electric car line, with the expectation that a car will come behind him, and an opportunity to turn off the track, and in the full possession of his faculties, is without excuse if he is overtaken by a car and his wagon is wrecked and he is himself injured.
    Error to Hamilton common pleas court.
    G. P. Stimson and Kittredge & Wilby, for plaintiff in error.
    J. R. Jordan and Geoffrey Goldsmith, for defendant in error.

      See prior opinion for more complete statement, ante, 654.

   GIFFEN, J.

The plaintiff’s testimony shows that the team was traveling on the rig'hthand track of the street railroad, that the driver was expecting a car, and that there was nothing to prevent him from turning off the track if a car was discovered approaching.

,. It was his duty, therefore, to make use of his senses to ascertain if a' car was approaching from behind. A prudent man exercising his ears and eyes with ordinary care would have discovered the car in time to avoid it, and the failure of the driver to see or hear anything when in full possession of his faculties, is no excuse if he or his property is thereby injured. Cleveland, C. C. & I. Ry. v. Elliott, 28 Ohio St. 340.

The motion to arrest the ease from the jury should have been sustained.

Judgment reversed and judgment for plaintiff in error.

Swing and Smith, JJ., concur


text:
    EMINENt DOMAIN — RAILWAYS.
    [Hamilton (1st) Circuit Court,
    June 22, 1907.]
    Swing, Giffen and Smith, JJ.
    Cleveland, C. C. & St. L. Ry. v. Delano Cordry et al.
    Damages to Farm Lands Appropriated for Change op Grade oe Railway.
    In an appropriation proceeding, preparatory to a change of grade of a railway through farm lands, the assessment of damages to the residue of the tract must be based on present conditions, and not have reference to conditions existing prior to the original location of the railway many years before.
    Error to Hamilton common pleas court.
    Harmon, Colston, Goldsmith & Hoadley and Stanley Shaffer, for plaintiff in error.
    A. B. Benedict and Stanley Struble, for defendant in error.
   GIFFEN, J.

The damage to the residue of four hundred acres after the appropriation of the forty-one hundredths acre tract must be based upon the effect such appropriation will have upon présent conditions, and not those existing before the railroad was originally located and constructed many years prior. The testimony shows that the several owners would sustain substantial damage by reason of impaired access over the private right of way appurtenant to their lands. •

The exception to the failure of the court to charge the jury that a roadway to defendant’s premises twelve feet wide is substantially as good for the purposes for which it was created as the present road, without regard to the change of grade or other obstruction, is not well taken, and besides the record does not disclose that the court was requested to so charge.

We think the damages awarded are excessive. One of the defendants, Walter F. Fitch, himself testified that the land would be worth $10 an acre less by reason of the improvement, which would amount to $4,000, although the jury allowed $4,750.

The testimony as to the costs of reconstructing the private right of way ranged from thirty-five cents to one dollar per yard for 4,200 cubic yards.

Whether our conclusions be drawn from the evidence of the value of the land before and after the change of grade of the railroad, or from the evidence of the cost of conforming the private right of way to such change of grade, the result is the same, and we think that $3,200 would be a fair and reasonable compensation for injury to the residue of four hundred acres.

Unless a remittitur of $1,550 is consented to by the defendants in error the judgment will be reversed.

Swing and Smith, JJ., concur.


author: SWING, J.

text:
    MALICIOUS PROSECUTION — PLEADING.
    [Hamilton (1st) Circuit Court,
    January 18, 1908.]
    Swing, Giffen and Smith, JJ.
    Grosse v. Oppenheimer et al.
    , Insufficient Pleading op Action por Damages for Malicious Peosecution.
    A petition in an action for damages for malicious prosecution states no cause of action, where the petition merely alleges “that the said cause was terminated hy plaintiff being obliged to pay the costs of said prosecution.”
    Error to Hamilton common pleas court.
    J. C. Rogers, for plaintiff in error.
    B. S. Oppenheimer, pro se.

   SWING, J.

This is an action in this court on error to the judgment of the court of common pleas. In that case it was an action for malicious prosecution. A general demurrer was filed to the ^petition, which, the court sustained. In doing so, we think the court committed no error. The petition alleges, “that said cause was terminated on the thirteenth day of November by said plaintiff being obliged to pay the costs of said prosecution.” We take this allegation to mean that she was found guilty of the ■ charge and fined the costs. There is no allegation in the petition that the judgment of conviction was procured by fraud or by any other improper means.

“The general rule is that a 'conviction in criminal proceedings is conclusive proof of probable cause unless procured by false or fraudulent testimony or other unlawful means.” 19 Am. & Eng. Enc. Law 666.

There is no cause of action stated in the petition.

Judgment affirmed.

Giffen and Smith, JJ., concur.


author: JELKE, P. J.

text:
    ESTOPPEL — STATE—TRIAL.
    [Hamilton (1st) Circuit Court,
    August 1, 1905.]
    Jelke, Giffen and Swing, JJ.

      State v. Jacob Mandery.
    ‘Title to Property whether Originally Belonging to'the State, Submitted to Jury.
    The state is not estopped to claim title to specific property included in, or part of, the original canal property of the state by the fact that taxes were assessed and collected thereon for an unbroken period of sixty years notwithstanding during which time neither the state nor any of its officials claimed or exercised any ownership thereof. The issue, therefore, is one of fact and should have been submitted to the jury.
    ERROR to Hamilton common pleas.
    W. H. Ellis, Atty. Gen., and C. F. Williams, for plaintiff in error.
    Renner & Renner and Eugene Heim, for defendant in error.

      Reversing State v. Mandery, 15 Dec 151 (3 O. L. R. 2).

   JELKE, P. J.

We are of opinion that the trial court erred in directing the verdict at the close of all the testimony.

The issue of fact as to whether the specific property was included in and part of the original canal property of the state should have been submitted to the jury — there was enough testimony to require this.

The court’s view of the law was erroneous and not in accord with State v. Railway, 53 Ohio St. 189 [41 N. E. Rep. 205], et seq.

Judgment reversed.

Giffen a,nd Swing, JJ., concur.


text:
    CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    June 27, 1908.]
    Ohio Humane Society v. William C. Biles.
    Inspection oe Books by Stockholdebs of Cokpobation not fob Pboeit.
    Section 3254 Rev. StatL providing that the boohs and records oí corporations shall he open to the inspection of stockholders at all reasonable times, has no reference to corporations not for profit.
    E. B. Gregg, for plaintiff in error.
    P. M. Pogue, for defendant in error.
   SMITH, J.

We are of opinion that Sec. 3254 Rev. Stat. wherein it is provided that “the boobs and records of such corporation shall at all reasonable times be open to the inspection of every stockholder, ’ ’ has reference to corporations organized solely for profit. It speaks of “stockholders,” “certificates of paid up stock,” the “assignment” and “transfer of ■certificates of stock. ’ ’ This section therefore has in contemplation property rights, while in corporations “not for profit” there is no stock and no property right of a member is involved.

The statutes relating to the establishment of the Ohio Humane Society are contained in Sees. 3714 to 3725-2, and not being a corporation for profit it cannot come under See. 3254, and for this reason also we -do not think the case of Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 189 [56 N. E. Rep. 1033; 48 L. R. A. 732; 78 Am. St. Rep. 707], is applicable to the present one.

While upon the. face of the petition perhaps a demurrer would not lie, the answer sets up a good defense and it was error to refuse to allow the same to be filed.

Judgment reversed.

Swing and Giffen, JJ., concur.


text:
    NEGLIGENCE — SIDEWALKS.
    [Hamilton (1st) Circuit Court,
    January 18, 1908.]
    Swing, Giffen and Smith, JJ.
    Cincinnati v. Guth.
    Injuby to Pedestrian from Known Defects in Sidewalk Does not Impute Contributory Negligence.
    Where the only act of contributory negligence imputable against a pedestrian is the using of a board sidewalk known to be in an unsafe condition, the dangers of which could not have been avoided on account of other parts of the street being unsafe, the issue, in an action against the city for injuries sustained therefrom, is one of fact determinable by the jury under proper instructions by the court.
    [Syllabus approved by the court.]
    ERROR to Hamilton common pleas court.
    E. M. Ballard, city solicitor, for plaintiff in error.
    • Kelley & Hauck, for defendant in error.
   GIFFEN, J.

It appears on page 114 of the bill of exceptions that the plaintiff, when she entered upon the defective sidewalk, knew that the boards were loose and liable to tilt when stepped upon, but the testimony also tends to prove that the other parts of the street were in an unsafe condition for travel, and that she could not easily avoid the danger from the boardwalk.

The question of contributory negligence was therefore one of fact to be determined by the jury, under proper instructions from the court. Such instructions were given at the request of the defendant, and are* numbered eight and nine in the bill. Schaefler v. Sandusky, 33 Ohio St. 246 [31 Am. Rep. 533]; Norwalk v. Tuttle, 73 Ohio St. 242 [76 N. E. Rep. 617].

The testimony shows that the plaintiff exercised care commensurate with the known danger; that the accident occurred by reason of her companion, a boy about sixteen years of age, stepping upon one of the loose boards and causing it to tilt in front of the plaintiff while walking, whereby she tripped and fell to the ground. The only act therefore, if' any, of contributory negligence was in using the walk when known to be in a dangerous condition, and we are not disposed to disturb the finding of the jury necessarily implied in the general verdict given under proper instructions-.

We find no prejudicial error and the judgment will be affirmed.

Swing and Smith, JJ., concur.