text:
    COMPENSATION FOR SERVICES RENDERED TO A RELATIVE.
    Circuit Court of Hamilton County.
    Julia Thompson v. Louisa B. Jones.
    Decided, November, 1910.

      Consanguinity — Does Not Raise a Presumption Aagainst ® Claim for Services, When- — Duty of Court to Give Instructions Requested by Counsel — hcdgment Will Not be Reversed for Technical Reasons, When.

    1. The “family relation” spoken of in the case of Hinkle v. Sage, 67 Ohio St., 256, does not rest wholly on the blood relationship existing between the parties, but rather on the relation that is borne to the family as a whole; and where the circumstances do not show some reason for the making of a gift or performing of a service to a relative without charge, such an intention will not be inferred simply from the relationship, and payment .therefore may be enforced.
    2. While it is the duty of the court to give the jury proper instructions which counsel have requested the court to give before argument, and a refusal to give instructions is error, a judgment will not be reversed because of such refusal where the technical reason for a reversal is the only reason that can be suggested, and the uncontradicted evidence admits of but one conclusion as to the facts and that is the conclusion at which the jury has arrived.

      Fullon & Woost, for the plaintiff in error.

      Darby & Benedict, for Mrs. Jones.
    Swing, J.; Giffen, P. J., and Smith, J., concur.
   The action below was by Louisa B. Jones against the administrator of her brother’s estate for board and services rendered her brother, Peter Edward Fritsch. The only evidence offered on the trial of the case was offered by the plaintiff and it is.all.contained in the bill of exceptions. The jury returned'a verdict for the plaintiff, and also answered tw.o interrogatories. The first was as follows:

No. 1. “Did the deceased, Peter Edward Fritsch, shortly after going to the home of the plaintiff, Mrs. Jones, promise to pay her for his board, care and attention to him while he was there, and did she thereafter in consideration of such promise furnish to him such board, care and attention ? Answer, yes. ’ ’

Before argument to the jury counsel for defendant asked the court to charge the jury that before the plaintiff could recover in the action the contract must be established by clear and unequivocal proof, relying on°the law as laid down in the case of Hinkle v. Sage, 67 O. S., 256. This was requested in three different charges, each of which the court refused to give.

It is the duty of the court to give to the jury a proper instruction which counsel has requested the court to give before the argument, and the refusal to give such instruction is error. It can not be questioned but what the law as laid down in Hinkle v. Sage is the law of the state as to like cases. So that the only question is as to whether this case is one falling under that holding. It is very doubtful whether this ease comes within the rule of Hinkle v. Sage. The “family relation” spoken of in that case and similar cases does not rest wholly on the blood relationship of the parties, but rather the relation that is borne to the family as a whole. There is no reason why a brother boarding with a sister should not pay for his board the same as a stranger if he does not in turn render to his sister some more recompense than a stranger. A sister is more likely to give to a brother than to a stranger, but where the circumstances show there is no reason to make a gift, none should be inferred simply because of the relationship.

In the present case the only fact which tends to show any family relationship is the fact that Louise B. Jones was.a sister of Peter Edward Fritsch. He went to her house uninvited. She was living with her husband on his farm. It does not appear that the sister had any means of her own. It does appear that Peter Edward Fritsch had stocks and bonds and was abundantly able to pay for his board. It further appears that Peter Edward Fritsch was in poor health while at his sister’s and part of 'the time was very sick, requiring constant attention with considerable expense for medicine and washing, and it further appears that during this 'time he did not in any way contribute to the maintenance of the family. He performed no work and paid no money which aided in its support. The evidence is clear and positive and uncontradicted that he promised to pay for his board and the expenses incurred by his sister in his behalf, and we think it must clearly be inferred from the evidence that his sister rendered the services, relying on his promise to pay for them. This seems to be the only rational conclusion to be drawn from the evidence and this was thd conclusion reached by the jury in their general verdict and in their special findings. To reverse this judgment under these circumstances. for the reason that the court should have given the instruction before argument, as requested by. counsel for .the defendant, would seem to be purely technical and not substantial. When the evidence is all before the court and the uneontradicted evidence admits of but one conclusion and that conclusion is the one which the jury has arrived at, any errors of law found in the charge of the court would appear to be unprejudieial and should be disregarded.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    CONTROVERSIES OVER. LINE FENCES.
    Circuit Court of Tuscarawas County.
    Stephen Gatchell v. John L. West et al, as Board of Township Trustees of Mill Township, Tuscarawas County, Ohio.
    Decided, December 9, 1910.

      Partition Fences — Sale of Construction of — Where Township Trustees Are Called in, One Notice to Adjoining Landowners Sufficient — Sections 5910, 5911, 5912 and 591S.
    The provisions of the statutes with reference to the building of partition - fences contemplate a continual proceeding, and the notice required by Section 5910, General Code, is sufficient for all the purposes of the case.
   By the Court.

This is an action to enjoin the sale of the construction of a partition fence, by the trustees of Mill township, between the lands of Stephen Gatchell and William Elvin, and to restrain the certifying of the cost thereof to the auditor of this county against the lands of Stephen. Gatchell.

The principal contention of counsel for plaintiff is that no notice was given under the application of the aggrieved party to sell to the lowest bidder the construction of the fence.

While it is undoubtedly true that notice must be given to every owner of land in every proceeding seeking to charge his land or property with a special assessment, yet it is also the law that if a notice be given at any time in the course of this proceeding the requirements of the Constitution are satisfied.

Sections 4242 and 4243 of the Revised Statutes (General Code, 5910-11-12-13), contemplate a continual proceeding with reference to the same subject-matter, and, therefore, the notice required in Section 4242 is sufficient for all purposes of the case. The proceedings under Section 4243 are based upon the orders made under the provisions of Section 4242, and after the orders made by authority of the last above named section have been fully complied with that is the end of that whole proceeding, and nothing further can ever be done under the provisions of Section 4243. If after that time there is a failure to maintain or repair the fence the whole proceeding must be gone over again, starting with the application and notices provided in Section 4242. So that these proceedings are in nowise independent of the other, and the application provided for in Section 4243 is but another pleading in the same proceeding and no further notice is required. The petition of plaintiff must be dismissed with costs and cause remanded for execution. Motion for new trial will be overruled and exceptions noted; twenty days for separate finding of fact and law and statutory time for bill of exceptions.


author: By the Court

text:
    PEDESTRIAN KILLED AT RAILWAY CROSSING.
    Circuit Court of Richland County.
    Elizabeth Schmidt v. The Baltimore & Ohio Railroad Company.
    Decided, January 25, 1911.

      Negligence — Duty of Pedestrian at Railway crossing — destructions to View — Company Not Liable for StriMng of Pedestrian by Train, When.

    An action does not lie against a railway company for the death of a pedestrian by being struck by a train at a crossing, where the decedent was in full possesion of his sight and hearing and had an unobstructed view of the track for 1,200 or 1,500 feet, notwithstanding the train which struck him was running at a high and dangerous rate of speed, and an ordinance was violated in so doing, and no signals were sounded, and there were obstructions along the tracK but not in the line of view of the decedent.

      Reed & Beach, for plaintiff in error.

      Cummings, McBride & Wolfe, contra.
   By the Court

(Taggart, Voorhees and Powell, JJ.).

The plaintiff in error, as administratrix of the estate of Matthias Schmidt, brought suit against the Baltimore & Ohio Railroad Company in the court of common pleas of this county seeking to recover for the unlawful causing of the death of said decedent. She averred in her petition, as a ground of negligence, that the view from the crossing of North Main street in a northwesterly direction was obstructed by the tool house on the lands of defendant, by ties and railroad material piled thereon, by. telegraph poles erected on said lands, and by cars then standing on the side-track, so that persons and the decedent, traveling along said street or highway, could not at the time of the alleged accident hear or see trains on the railroad approaching said crossing until such trains were at or near said crossing.

She further avers that at that crossing gates, with an employe in charge thereof, were under the direction of the defendant, it having assumed the care and control over said crossing; that it had, up to that time, given notice to persons of the approach of its locomotive or ears, of which facts, the defendant assuming care and control and the giving of notice to persons approaching, the decedent had knowledge.

She then avers that Matthias Schmidt on the evening of the 25th of January, 1907, at about 7 o’clock, was going north on said highway and reached the crossing in question, that the defendant carelessly and negligently managed and controlled one Of its trains of ears so that it approached that crossing at a high rate of speed of more than fifty miles an hour, in violation of an ordinance of the city, without giving any notice or signal of the approach of said train, that it failed to give any signal of danger by blowing a whistle or ringing of- bell, or taking any precaution whatever for the safety of passers over said crossing; and that, in consequence of said negligence, the decedent was struck and killed, without any fault on his part.

Issue is taken with the averments of this petition, by the company’s denying the averments of the petition, except its corporate capacity, the location of the highway, and .that the decedent was struck by one of the defendant’s locomotives and killed, and it avers that a want of due care on the part of Matthias Schmidt contributed to his death.

A jury was impanneled and the case submitted, and at the close of all the evidence, the defendant, through its counsel, moved the court to direct a verdict in its favor, which the court did, and the jury returned a verdict for the defendant.

To the action of-the court exceptions were taken, a motion for new trial filed, and this proceeding in error seeks now to reverse the judgment of the court of common pleas.

It is the contention of counsel for the plaintiff in error that the record discloses- that there were certain obstructions upon the right of way of the defendant company, which prevented the deceased from seeing the approach of the train until within such proximity of the. crossing that he could not escape injury in attempting to' pass over the same while in the exercise of due care'. The. obstructions that are shown by the testimony are a tool house,'signal post and certain lights known as-switch lights, which have been described to us by counsel as being “bulls eyes,” which caused a divergence of the lights to an extent which it is claimed would have obstructed a view of the train.

It appear from this record that the deceased, on the night in question about the hour of seven o’clock, was passing north on Main street over and across the lines of the Pennsylvania company, which runs in a southwesterly and northwesterly direction across this street. To the north of the Pennsylvania lines are the. lines of the Baltimore & Ohio, consisting of a main line and siding. Accepting the view of the plaintiff’s testimony, the deceased was struck while just going on the track of the main line of the Baltimore & Ohio Railroad Company by a fast train approaching that crossing from the northwest.

It is contended by counsel for plaintiff in error that at or near the place where the deceased was struck the view of the main line of the Baltimore & Ohio would be obstructed by the. tool house, signal post and switch lights,. and that there were such facts developed in the case that the case should have been submitted to the jury.

From the entire record we are not convinced that the switch lights or signal light were such obstructions that would interfere with a person looking to the northwest, and, as we read this record, we think that a person just before going upon the tracks at this crossing would have a clear unobstructed view for quite a distance, to the northwest, before stepping upon the track, and while being in a place of safety. Now, the distance which this track would be thus unobstructed we think fairly appears in this record to .be upwards of perhaps 1,200 or 1,500 feet, and at a point where a man would see the tool house would be perhaps further than -that; and that where the tool house would obscure the view there would be at least a very considerable distance where the track would be in plain view. So that, at a distance south from the track the deceased, as we construe this testimony, would have to travel some considerable distance with the track in plain view.

Now there is a total lack of evidencé in this case that there was any confusion or noises there that would interfere with hearing the rumble of the train or the noise caused by its approach. The record shows that the deceased was in the possession of his senses, that he was not deficient in hearing and his sight was not defective. So that we have the case of a pedestrian attempting to cross the railroad track between daylight and darkness, with a train approaching, true at an unusual rate of speed, but with the headlights burning and the train lighted, as appears by the record throughout. So that, had he looked, he would have had better opportunity of seeing the lighted train at that hour of the evening than perhaps he would had it been earlier in the evening before the train was lighted. Had he listened, he- undoubtedly could have heard it, as there is nothing to indicate here that there was anything to prevent him from hearing.

Now the rule of law is laid down in the case of B. & O. v. McClellan, that a person in full possession of his senses of sight and hearing should exercise them to protect himself from danger when about to cross a known track of a steam railroad at a street crossing. The deceased in this case had crossed the Pennsylvania lines. It appears from this record that he was fully acquainted with the tracks and the surroundings, and that he knew; or must have known, that he was about to cross the tracks of the Baltimore & Ohio Railroad. What, then, was the duty that was incumbent upon him?

Assuming all the time, now, that the defendants were guilty of negligence in running their train at a high and dangerous rate of speed, that they were violating an ordinance, and that they failed to sound any. signals of warning, what was the duty of the decedent? In the case of R. R. v. Kistler, 66th O. S., 326, the Supreme Court lays down this rule:

“As between, a person about to cross over a railroad at a crossing and a train of cars approaching such crossing, the train is given the right of way. This is so because a person can stop within a few feet and the train can not. The looking required before going upon the crossing will usually be just before going upon the track, or so near thereto as to enable a person to get across before the train within his range of view of the track, coming at the usual rate of speed of fast trains, would reach such crossing.”

Now, the record fails to show that the deceased either looked or listened just before going upon the track, and the presumption is that, if he had looked he would have seen, and having-seen, he attempted to pass over before the train reached the crossing. It does appear that he was struck when just on the crossing or just about to step upon the track. As a pedestrian, the record shows that he could have seen at least past the tool house, a distance of several hundred feet. The light of the locomotive would be above the switch lights, it would be moving, whereas the switch lights are stationary, and had he looked, he must have seen this moving light and lights of the train, which would have been a warning to enable him to escape before going upon a place of danger.

True, a train passing at this rate of speed would pass over this intervening distance in but a few seconds, but the record seems to establish the fact that he was not yet on the track, and that but a second or two was all that was necessary to enable him to escape the danger.

So that we think that the testimony of the plaintiff in this ease and the whole record raises the clear presumption of negligence on his part which directly contributed to his injury, and that there was no testimony offered in the case or by the plaintiff tending to rebut that presumption. That being true, it was the duty of the court to sustain the motion and direct the jury to return a verdict. This is the rule laid down in the 69th O. S., at 142.

It is contended that there was error in the rejection of testimony sought to be introduced as to the facts that there were cars on the side-track which tended to obstruct the view, which testimony was excluded by the trial court. It is of little consequence how much or how little testimony was excluded by the court or whether the testimony thus offered to be introduced had a tendency to establish the facts sought to be proved. If the view that we have taken of the case is sustained by the record, then no prejudice could have intervened, because, even if this testimony had been introduced, there was distance enough that was unobstructed which would have enabled the deceased to have escaped injury, had he observed the necessary caution that was required of him in attempting to pass over this crossing.

So that, finding no error in this record to the prejudice of the plaintiff in error, the judgment of the court of common pleas is affirmed with costs and the cause remanded for execution.


text:
    PAYMENT FOR RECOVERY OF OMITTED TAXES.
    Circuit Court of Hamilton County.
    State of Ohio, ex rel Prosecuting Attorney of Hamilton County, v. Eugene L. Lewis.

    Decided, July 2, 1910.

      Gounty Auditor — Claim for a Percentage for Placing Omitted Property on the Tax Duplicate — Action of Gounty Commissioners Pinal, When.

    Where a county auditor, acting under authority of law, has placed on the tax duplicate property which was taxable and had been dishonestly omitted and taxes are thereafter collected thereon, the action of the county commissioners in adjudicating the claim of the auditor for the services thus rendered and ordering payment thereon is final, in the absence of any showing of fraud or collusion.

      Alfred Bettman, for plaintiff in error.

      Alfred B. Benedict, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.

       Affirmed by the Supreme Court without opinion, January 24, 1911. (83 Ohio State, p.--).

   From the record of the above case the court is of the opinion that defendant in error in placing upon the tax duplicate of Hamilton county omitted back taxes due by the Union Central Life Insurance Company for the years 1902, 1903 and 1904, was acting under the authority of the act of May 10, 1902 (95 O. L., 489). If, however, this is not correct and he was acting as claimed by the relator under Section 2781a, Revised Statutes, then there is no evidence on behalf of the relator in the record tending to show that the returns for said years of the insurance company were honestly made; that is, that they were not made with a dishonest intent.

The court, however, is of the opinion that the ruling of the trial court was correct, for the reason that defendant in error’s answer sets up “that he duly presented his claim to the county commissioners of this county, and that the same was duly allowed by them. ’ ’ This being so, it is apparent that this finding can not be impeached, for, if acting under the’law as claimed defendant in error placed upon the tax duplicate property that was taxable which had been dishonestly omitted, and the taxes thereafter upon the same had been collected, and the commissioners had drawn their warrant or ordered paid the per centum due thereon, the commissioners must presumably have had a hearing, at which evidence was adduced which justified their conclusion and finding that the work was performed by the auditor and the amount due defendant in error, and their subsequent act in ordering this amount paid. There being a statute for the payment of such a claim as this, it was properly within the jurisdiction of the county commissioners in respect to the financial affairs of the county to pass upon and adjudicate such a claim, the same being the subject of a legal claim against the county. If this is- true, in the absence of fraud' or collusion, the finding of the commissioners would be final.

A board of County commissioners is an inferior court, and when such a board acquires jurisdiction and audits a claim, unless its judicial action is reversed or set aside, such action is conclusive. Herman on Estoppel and Res Adjudicata, Section 435.

The case at bar is not one falling within the decision of Jones, Auditor, v. Commissioners, 57 O. S., 189, which was followed by this court in the recent case of Weaver v. State, in which it' was held “that the basis for the recovery therein was the payment to a county officer by the county commissioners of fees in conducting his office for which there was no statutory provision.”

It is also urged that all that the auditor was called upon to do was to. correct a clerical error, for which under Insurance Company v. Capeller, 38 O. S., 561, he would not be entitled to his fees, but in this respect we can not agree with counsel for relator, as the finding or report of the auditor himself discloses his work in this regard, .and the facts he was compelled to ascertain before placing upon the duplicate the omitted taxable property.

The claim of defendant in error therefore being a legal one against the eoufity, and the county commissioners having authority to adjudicate the same, we think this finding is binding upon the court for the reasons above stated, and the judgment of the court below will be affirmed.


author: Kinkade, «J.,

text:
    DEGREE OF CARE REQUIRED ON A SIDEWALK KNOWN TO BE UNSAFE.
    Circuit Court of Lucas County.
    City of Toledo v. Abraham Smith.
    Decided, July 2, 1909.

      Defective Sidewalk — Pedestrian Injured While Walking Over — What Constitutes Ordinary Carre — Where a Sidewalk is Known to he Unsafe — Charge of Court as to Contributory Negligence.

    1. A person who in the daytime voluntarily attempts to pass over a sidewalk in a city, which he knows from any cause to be dangerously defective and which he might have easily avoided, can not be regarded as in the exercise of ordinary care or prudence, and therefore can not maintain an action against the municipality for damages sustained on account of any such known defect, even though the city was guilty of negligence in allowing such defect to exist.
    2. It is error to charge that if an ord-inarily prudent man would have attempted to pass over a walk alleged to be dangerously defective, with knowledge of its condition, and if the plaintiff in attempting so to do exercised the care which an ordinarily prudent'man would have exercised in the condition which this walk was in at the time, he was not guilty of negligence in attempting to use the walk and is entitled to recover.
    Wildman, J.; Kinkade, J., consurs; Parker, J., not sitting.
    Error to Lucas Common Pleas Court.
   The case of City of Toledo v. Smith is brought to reverse a judgment rendered in favor of Smith against the city in the court of common pleas upon a verdict in his favor for $3,000. It is a personal injury case, the injury sustained being the result of a fall upon a sidewalk alleged to have been -dangerously defective, and negligently maintained, or. permitted to remain, in that condition.

Th.e facts of the case, as disclosed upon a former trial, are sufficiently recited for our purpose in the case of Smith v. Toledo, 11 C.C. (N.S.), 167. At that trial, at the close of plaintiff’s evidence, the court arrested the ease from the jury, and Smith was compelled to come to this court by a proceeding in error to reverse the judgment. We found error in the proceeding and remanded the case for a new trial. Upon the new trial so ordered Smith obtained the verdict just stated.

Several grounds of error are urged, but there is only one to which we desire to invite special attention in this opinion. Prior to the giving of the general charge by the court, but after the argument, the defendant below requested the court to give to the jury this instruction, found on page 192 of the bill of exceptions:

“A person who in the daytime voluntarily attempts to pass over a sidewalk in a city, which he knows from any cause to be defective or unsafe and which he might easily have avoided, can not be regarded as in the exercise of ordinary care or prudence, and therefore can not maintain an action against a municipality for damages sustained on account of any such known defect, even if the city was guilty of negligence in allowing such defect to exist.”

This instruction the court refused to give, and the city, through its counsel, duly excepted. The sidewalk is referred to in this instruction as known to be defective or unsafe, and the language may perhaps have been interpreted by the court as erroneously attempting to lay down a rule which would apply to either one of these conditions; that is to say, an unsafe condition, or one in which a defect existed which was not necessarily attended with danger. We hardly think, however, that the court refused the instruction upon this ground, because, as will presently be shown, in the general charge in several instances the court uses the term “defective” sidewalk, evidently having in mind a dangerous condition. The action is based upon the alleged negligent maintenance of a dangerous defect. Defects not, dangerous were not under consideration.

Counsel asked, as the bill of exceptions states upon the page referred to, that the court give the instruction ‘ ‘ at that time. ’ ’ Of course .the court was not bound to give it at the very instant of its being presented, and perhaps a reasonable construction' of the request of counsel may be that it w.p,s desired that the court should give it in connection with of as a part of the general charge. We think that. notwithstanding the use of the conjunction “or” instead of “and,” or the use of the entire expression ‘ ‘ defective or' unsafe ’ ’ instead of such an expression as dangerously defective, or something equivalent to that, and notwithstanding the fact that the request was made that it be given as stated, “at that time,” the court’s attention was sufficiently called to the general rule which was sought to require the court to give clearly and correctly the proper rule upon that subject. That the court’s attention was directed to it is evident from a good deal of language in the general charge. I pass to page 195, where in the general charge on the matter of the plaintiff’s contribution to his injury by his own claimed lack of care, or perhaps we might denominate it by his assumption of whatever peril was involved in going over a sidewalk of this character, the court used this language:

“You are instructed further that it was also the duty of the plaintiff Smith while walking along Woodland avenue at the time that he-alleges that he fell and was injured to exercise ordinary care upon his part to avoid injury. If the walk was defective [the word “dangerously” not being used to qualify defective, but as we think, evidently understood by the judge to be characteristic of the defect about which he was speaking], and the plaintiff Smith knew that fact, then it was his duty to exercise the same degree of care in passing over the walk, or in passing along Woodland avenue at that point, which an ordinarily prudent person would customarily exercise in passing over a walk in such a .defective condition or in passing along the street at that point. If the walk was defective [meaning again evidently “dangerously defective”], at the point where he claims to have fallen and the .plaintiff Smith knew that fact and with less danger to himself, or with comparative safety to himself, he could have stepped over the walk and passed over the space between the sidewalk and the ditch alongside of the street, and if an ordinarily prudent man knowing the condition of the ivalk would have done so, and ivould not have attempted to pass over the walk, then it was -the duty of the plaintiff Smith to have done so at the time he was injured, and in failing to leave the walk and in attempting to walk over it he was himself negligent and can not recover even though the city may have been negligent in failing to repair the walk.”

And then we come to language which to our minds is seriously objectionable in view of the rules which have been announced from time to time by the Supreme and other courts of the state. It is as follows:

“If, however, an ordinarily prudent man would have attempted to pass over the walk under all the circumstances and having knowledge of its defective condition, and if the plaintiff Smith in attempting to do so exercised the care which an ordinarily prudent person would have exercised in the condition which you find this walk was in at that time, he was not guilty of negligence in attempting to use the walk and is entitled to recover.”

. The rule in Ohio, as announced by the Supreme Court in Schaefler v. Sandusky, 33 Ohio St., 246, approved in Conneaut v. Naef, 54 Ohio St., 529, and Norwalk v. Tuttle, 73 Ohio St., 242, and followed and applied by this court on the former hearing of this-case, is that where a pedestrian voluntarily goes upon a dangerously defective sidewalk, where its condition is known to him or is obvious, which he might easily avoid, a municipality is not liable to him for any injuries sustained by him.

The Supreme Court seems to have made a rule of law applicable to this class of cases precisely as it has made a rule of law applicable to the case of a traveler approaching a known railroad crossing. It is based upon the general proposition that a person so going upon a sidewalk or a person approaching a known railroad crossing is held to the exercise of ordinary care, and that as matter of law under certain circumstances it will not be ordinary care for him to conduct himself in certain ways. As to the approaching of a railroad crossing it has been repeatedly laid down by the Supreme Court that he must exercise his faculties of sight and hearing to warn him of the approach of a train upon the track if there be one approaching, and that if he omits such precautions he is held by the court not to have exercised ordinary care, and the matter is not left to the jury for its determination. It would seem to be error under such circumstances to charge a jury that while it is the duty of a person approaching a railway crossing to exercise his faculties of vision and hearing for his protection, still he will be excused from doing it if the jury should find that persons of ordinary prudence are accustomed to omit such precaution. Likewise the court has established as a rule of presumption of law that it is not ordinary care for a person to incur a danger voluntarily which he might easily avoid, and it is not left as an open question to the jury to determine whether or not he was acting as other prudent people do, if they find that he did those things which the law says are negligent. Almost this precise question was raised in the case of Bond Hill v. Atkinson, 16 O.C., 470, a case decided by the Hamilton Circuit Court, the opinion being announced by Judge Smith. I will not read from the case, but cite it for its examination by counsel. The court held that it was error to qualify, as was done in the case at bar, the general rule which has been established by the Supreme Court. Among the numerous cases which might be cited in further illustration of the subject is that of Cincinnati v. Taylor, 19 C.C., 737, where it was held that a person who voluntarily attempts to pass over a sidewalk, which he knows to be dangerous by reason of defects and which he might easily have avoided, can not be regarded as exercising ordinary prudence and is not entitled to recover for injuries thereby received. Of course this is almost precisely as stated in the Schaefler case, but it is in a little different form, and I use it simply as illustrative of the fact that the courts have laid down a rule as to what constitutes negligence per se, and that it is not permissible to weaken that rule by any sort of a qualification, leaving the question open to the jury for its determination to say whether or not the rule should or should not apply.

Now it is conceivable that there might be such trivial defects in a sidewalk as that, while they might be in some degree dangerous, they might still not be so dangerously defective as to raise the presumption of negligence against a person in going upon them. But my own notion is that if they are of such a character that the city owed a duty to the plaintiff to repair, and if the plaintiff had knowledge of the condition, that then the rule would apply to his conduct. I have stated somewhat more fully than I perhaps otherwise should have done the views which lead to the result about to be announced, because of the fact that it is with the general reluctance that I Conclude that the case should be reversed, this court having once reversed it in behalf of the plaintiff and returned it for a new trial. But all considerations should yield to the desire on the part of the court to secure a fair trial for both parties, and the fairness of an adjudication is of much more consequence than speed in arriving at the end of the litigation. We are of the view, both of us, that the judgment should be reversed because of the error of the court in this charge, but I- am not prepared to say that we base our judgment entirely upon the same line of reasoning. As to the other matters involved in the case, we find no error sufficiently prejudicial to the plaintiff in error to justify a reversal.

The judgment of the court is that the judgment should be reversed and the .cause remanded for a new trial.

Kinkade, «J.,

concurring.

As Judge Wildman has said, we are quite agreed that the judgment should be reversed by reason of the error in the general charge to which he has called particular attention. Reading .the language in the charge that he has mentioned as “dangerously defective,” which perhaps is justified, as the court-was discuss-ing only a sidewalk in that condition, I have no fault to find with the conclusion reached, but on the other hand heartily concur in the conclusion reached. If the court were to say to the jury that if the walk was found by them to be dangerously defective, and ivas known by the plaintiff to be dangerously defective, and the jury found that there was another way easily and conveniently available which he might have taken, that he knew of, he then assumed the risk of taking the dangerous route, I would find no fault with that charge. It seems to me that it would be better to make some qualification of what constitutes the danger that is being spoken of, and in order that I may not be misunderstood in what I have in mind in this regard I want to say I think it would be better to say to the jury that if the walk in question was so defective and unsafe as that persons of ordinary care and prudence knowing its condition and having a safe way for travel easily and conveniently available would avoid the walk and take the safe way, then plaintiff in this case can not recover, if he knew, or by the exercise of ordinary care, would have known that the walk was defective to this extent, and there was a safe way easily and conveniently available, known to the plaintiff, which he might have used in reaching his destination. In such case one can not be exercising ordinary care, when with knowledge of a dangerously defective condition of the walk he voluntarily and unnecessarily elects to take the dangerous route, and this is true regardless of the degree of care he may exercise while passing over the defective walk.


text:
    ACTION ON BEHALF OF AN INFANT BY HIS NEXT FRIEND.
    Circuit Court of Hamilton County.
    Frank Ransom, an Infant, by Bush Ransom, His Next Friend, v. Haberer & Company.
    Decided, November 26,1910.

      Parties — Competency of Testimony by an Infant Plaintiff — Where the Defendant has Become Imbecile.

    1. Where an action is brought by an infant through his next friend for recovery of damages on account of personal injuries, the infant is the party plaintiff and is not competent to testify where imbecility on the part of the defendant has intervened.
    2. Nor is such a party plaintiff rendered competent as a witness by the exception to the statute which provides that nothing therein eontainéd shall apply to actions causing death.

      Scott Bonham, for paintiff in etror.

      Galvin & Galvin and Pogue & Pogue, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concnr.
   At the trial of the above case it developed that Frank Ransom, an infant, while in the employ of Haberer & Company, was injured September 27, 1907. Afterward and before the trial of the case Sophia Haberer, the sole owner of the business of Haberer & Company, was declared an imbecile, a guardian being appointed for her and substituted as party defendant in the case.

When Frank Ransom was offered as a witness in his own behalf he was not allowed' to testify by the trial court upon the ground that he was not competent to so testify under Section 5242, Revised Statutes.

Upon the conclusion of plaintiff’s evidence the court instructed the jury to return a verdict for the defendant in error, upon which judgment was subsequently rendered and it is now sought in this court to reverse said judgment upon the grounds: First, that plaintiff in. error was not the party plaintiff but that the real party plaintiff was his next friend; and second, that the ease falls under the eighth exception set out in Section 5242, Revised Statutes, which provides that “Nothing in this section contained shall apply to actions causing death.”

We do not think that these objections are well founded. It is evident under Section 4998 that the infant in this case is the party plaintiff, his action being brought by his next friend, and this court so held in the case of Burkham v. Cooper, 2d C. C., 77.

As to the second objection it has been, decided in Ross v. Todd, 4th C. C., 2, that while Section 5242 does not in terms exclude as a witness a party when the adverse party is the guardian of an “imbecile,” yet an imbecile comes within the maning and spirit of the statute. Such a person is one of unsound mind and under Section 5240, Revised Statutes, is an incompetent witness.

It has been urged that in actions of tort where one party is under such a disability the adverse party would be a competent witness; but the statute makes no distinction in this regard between different classes of civil actions, and this has been so held in the case of Irwin v. Nolde, 164 Pa. St., 209.

We can not agree with counsel for plaintiff in error that this ease comes within the eighth exception under Section 5242, Revised Statutes, which applies to actions causing death. The case before the court is one for personal injuries. It is evident that this éxeeption was created by the Legislature to enable a defendant in a ease brought against him for causing the death of a person, to testify, where the administrator of the deceased is the adverse party.

We find no errors in the record and the judgment of the court below will be affirmed.


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    INJURY FROM STEPPING INTO A HOLE IN THE STREET.
    Circuit Court of Hamilton County.
    City of Cincinnati v. Effie V. Ryan.
    Decided, February 11, 1911.

      Municipal Corporations — Care in Keeping Streets in Remonably Safe Condition — Woman Steps from Street Car Into a Hole — Negligence —Charge of Court.

    1. Where the evidence tends to show that a passenger in alighting from a street car could by looking have seen a hole in the street and have avoided stepping into it, a refusal to give a special instruction to the jury, directed to that phase of the case and requested before argument, is prejudicial error.
    2. It is not error to refuse to give judgment for the defendant, where the jury failed to answer an interrogatory as to whether the street was in reasonable safe condition, but did find that the city had constructive notice of a defect in the street.
    3. But a general verdict for the plaintiff in such a case is not sustained by sufficient evidence, where the evidence seems to bear out the theory that plaintiff stepped heedlessly from the car and unnecessarily used a part of the street not intended for pedestrians.

      Constant Southworth, for plaintiff in error.

      Thos. L. Michie, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   Tbe plaintiff in the original action, Effie Y. Ryan, was injured by stepping from a summer streét ear into a hole in the street at the corner of Sixth and Walnut streets, Cincinnati, Ohio. The evidence tends to prove that she did not look where she was stepping, and that by looking she could, although in the night season, have seen the hole in the street and easily avoided stepping in it.

Special instruction No. 4 requested by the defendant was addressed to this state of facts and its refusal by the court was error which was specially prejudicial because requested to be given before argument to the jury, and no like instruction was given in the general charge. The Village of Conneaut v. Naef, 54 O. S., 529.

The evidence tended to prove also that by taking one step to the right on the running board of the car she could have stepped down on the flag crossing intended for pedestrians and avoided all danger from the hole, which was nine inches west of the crossing. Under such circumstances special instruction No. 5 was pertinent, and its refusal was error. The City of Dayton v. Taylor’s Admr., 62 O. S., 11.

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

No. 3. “Was the street at the point and time when and where plaintiff claims to have been injured, plainly visible by reason of the street and store lights burning at the time in question to a person using the street, and using ordinary care to discover defects in the street? Answer. No.”
No. 4. “Was the depression in question in full view of plaintiff if she had looked where she was stepping in getting off the car, and could plaintiff by looking have easily seen and avoided it? Answer. Can’t answer.”

It will be noticed that the observer in the first interrogatory is not located at any particular point in the street, hence the jury might well say that the street at the place of the accident was not plainly visible to such person. To the second interrogatory, which is directed to the particular defect in the street and to the act of .plaintiff in getting off the car without looking, the jury say “Can’t'answer.” Such indefinite answer is in legal effect a denial of the existence of such facts, and operates against tire party whose ease needs their support. Railroad Co. v. Swarts, 68 Kansas, 235.

It was not necessary to allege in the petition or prove that the injury was caused without the fault or neglgience of the plaintiff. Street Railroad Co. v. Nolthenius, 40 O. S., 376.

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

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

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

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


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    ACTION ON NOTES.
    Circuit Court of Lucas County.
    Frank J. Thompson et al v. Citizens National Bank of Adams, New York.
    Decided, March 13, 1909.

      Promissory Notes — Suit to Enforce Payment Where Notes Were Executed in Another State — Burden of Proving Due Course — Pleading to Establish Fraud — Conflict of Laws — Contracts—Evidence.
    1. A note made in a foreign state should be construed by the law of the state where made, hut questions of procedure, pleading, evidence and burden of proof are determined by the law of the forum where the action is brought.
    2. Under the provisions of Section 8110, General Code, -in an action on a note by an endorsee the burden is on the holder of the 'note to show, when a defense has been established against the original payee, that he or someone' under whom he claims acquired the title as a holder in due course.

      3. That a note was procured to be given by fraud of the payee upon the maker in order to be made available as a defense in an action on the note brought by one claiming to be a holder -in due course, all of the material elements necessary to be proved to establish such fraud must be pleaded specifically by the maker.

      G. W. Kinney, for plaintiff in error.

      Chittenden & Chittenden, contra.
    Wildman, J.; Kinkade, J., concurs; Parker, J., not sitting.
    Error to Lucas Common Pleas Court.
   The bank named brought suit in the court below against plaintiffs in error upon a promissory note, and the court, after evidence had been submitted, sustained a motion to direct the jury to render a verdict against the defendants, and judgment was entered thereon for about $1,100.

The note was originally given by the plaintiffs in error, Frank J. Thompson and Helen M., his wife, to a firm called Henry Stevens & Son, who seem to be residents of some place in New York, and were not made parties to the action. The bank claims to have obtained the note before maturity in due course of business for a valuable consideration, and to be entitled to all the rights of a holder, unaffected by claimed defenses against the original payees. Since the decision of the case of Davis v. Bartlett, 12 Ohio St., 534, the rule in Ohio as to the burden of proof in suits upon negotiable paper by endorsees seems to have been substantially settled, until the adoption of certain statutory provisions, which, as we read them, have made a slight change.

There can be no.question here that although this note was made in the state of New York, and to determine the original rights of the parties, should be construed probably by the law of the state where made, when we are determining questions of procedure and pleadings, evidence and burden of proof, we must rely upon the statutes of our own state, the forum in which the suit is instituted.

The answer of the defendant denies the ownership of the note in the bank; denies also that the bank is the holder of the paper. But when we come to examine the evidence and arguments of counsel, there seems to be no contention that the bank did not have the note in its manual possession at the time of instituting the suit. It is claimed, however, by the defendants that they had a valid defense to the note as against the original payees, Henry Stevens & Son, and not only that the note was invalidated in the hands of such payees, but that it was placed in the possession of the bank merely for the purpose of suit and that the bank is not the real party in interest.

General Code, 8135, as to negotiable instruments provides that:

“An instrument is negotiated when it is transferred from one person to another in such manner as to constitute the transferee the holder thereof. If payable to bearer, it is negotiated by delivery. If payable to order, it is negotiated by the indorsement of the holder completed by delivery.”

The note so given to Henry Stevens & Son bears their endorsement and guarantee of payment and is found at the beginning of the suit in the possession of the bank. The officer of the bank presenting it, when called as a witness, testified that it had been in the possession of the bank at all times from the date of its ostensible transfer to the bank as shown by the endorsement.

General Code, 8136, provides:

“The endorsement must be written on the instrument itself, or upon a paper attached thereto. The signature of the indorser without additional words is a sufficient indorsement.”

There are some other provisions defining the rights of the parties, until we arrive at General Code, 8157 (Revised Statutes, 3172r), where we have these definitions:

“A holder in due course” (the expression in the statute being a sort of ellipsis, I suppose, for the expression ‘ ‘ a holder in due course of trade or due course of business”) “is a holder who has taken the instrument under the following conditions: ’ ’

We find then four conditions essential-to the constituting of a “holder in due course.”

“1. That it is complete and regular upon its face.” This note is such.
‘ ‘ 2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact.
"3. That he took it in- good faith and for value.
"4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

Clause second, to which I have referred, has a reference to notice of previous dishonor. There is no claim of previous dishonor here. There is no evidence offered by the defendant in the answer, to which I will later refer, to justify the submission to the jury of the question as to whether the transfer was really made in good faith or not. But the fourth clause is as essential to the definition as the others, "that at the time it was negotiated to him,” (or in this case to the bank), he (or in this ease, it), "had no notice of .any infirmity in the insrument or defect in the title of the person negotiating it.” In other words, the bank is not a holder in due course if at the time the note was negotiated the bank had any notice of any infirmity in the instrument or defect in the title.

Now General Code, 8160, provides:

"The title of the pérson who negotiates an instrument is defective within the meaning of this chapter when he obtained the instrument, or any signature thereto, by fraud, duress, or force and fear, or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith, or under such circumstances as amount to a fraud. ’ ’

General Code, 8161, is:

‘ ‘ To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith. ’ ’

General Code, 8163, omitting some of the others, is as follows:

‘ ‘ In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable. ”

General Code, 8164, is the rule as to the burden of proof, which is contrary to the rule originally enunciated in the case of Davis v. Bartlett, supra. I will read it:

"Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective,” and we have already had the definition that if a note is obtained by fraud the title is defective, as provided in General Code, 8160, "the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course. ”

In other words, if a defense is established against the original payee, then the holder who claims to be a holder in due course, in order to substantiate that claim, must prove the fourth condition to which I have referred as embodied in General Code, 8157; that is, that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. Taking the sections together, the burden, after the establishing of a defense against the original payee, is shifted to the holder of the instrument to prove as a negative- fact lack of knowledge of any infirmity in the instrument or defect of the title of the person negotiating it. He must show that he has no knowledge of the defense so established.

And this brings us at once to the question whether any defense has been shown here against the original payees of the instrument, Henry Stevens & Son.

It is not necessary to go to the evidence to determine whether or not there is any tending to establish such a defense which should have .been submitted to the jury, if no defense has been effectively pleaded against the note; that is, if the defendant has mot asserted facts which would constitute a defense if the note were being sued upon by the original payees, Henry Stevens & Son. We have examined this answer with considerable care, reading it a number of times, examining in detail all its paragraphs, and we are thoroughly satisfied that it fails to assert a defense against the note in suit even if it were sued upon by Henry Stevens & Son, the payees, instead of the bank.

I invite attention to the attempted claim of the defendants against Stevens & Son. Their defense is that the note was given in consideration of the purchase by them of certain Holstein Fresien cattle, and that at the time when they received the cattle one cow supposed to be of considerable value was diseased with tuberculosis; that not long after the purchase, the cow died. A post mortem examination made by veterinary surgeons, or a veterinary surgeon, disclosed the fact of the tuberculosis. A calf coming from the same cow was also diseased in the same way, and certain other stock kept in a barn where this cow had been became infected. The defendants, Thompson, claimed that they were entitled to damages against Stevens & Son in an amount in excess of the entire amount of this note which they had given to Stevens & Son and which had been -transferred to the bank.

There is no claim in this answer of a warranty, either express or implied. The answer may be searched in vain to find any elements of a -contract that Stevens & Son were to make good any loss by reason of unsoundness of the cow or any of these cattle, if she or they should prove to be unsound. The defendants, on the contrary, have relied upon a case of claimed fraud or deceit in the sale. They say that representations were made by at least one of thejnembers of the firm of Stevens & Son that the cattle were free from disease. The burden is on the defendant of course to establish this defense if properly pleaded, but in the first instance the burden is up-on them to assert in their pleading -all the essential facts to constitute a case of fraud. We find no averment anywhere that the statements made by one of the Stevens firm that the cattle were sound were falsely and fraudulently made. It is true it is said that the statement was untrue; but there is no averment anywhere of fraudulent intent. There is no averment of knowledge on the part of Stevens & Son that the representations were untrue. There is no averment that the cattle had shown any symptoms of tuberculosis at the time of -the sale by Stevens & Son to Thompson. There is no averment that Stevens & Son had any such knowledge of the disease of tuberculosis as would have enabled them to diagnose the condition of the cattle if symptoms had been disclosed. There is no averment that they had had the cattle for any particular length of time such as would raise the inference that they had any knowledge of such condition. There is no averment that the statements were wantonly or recklessly made as to a matter in regard to which they had no knowledge or belief. And without averments equivalent to these matters to which I have referred, or some of them, the answer in our judgment manifestly fails to assert a defense. In addition to all these things there is no averment in this answer that the defendants have tendered back to Stevens & Son the cattle, or any of them. True, they might not have been called upon to tender back the corpse of this cow after the post mortem or before, but it seems so far as the pleadings disclose, and indeed'the fact appears to be supported by the evidence, that they kept the other cattle. It is not claimed that all of them were worthless, and there is no principle better settled than that there can be no rescission of such a contract as this without ability and readiness to place the other party in the position which he occupied prior to entering into the contract by both. _ Equity will not permit Thompson and his wife to remain in possession of the property purchased and at the same time rescind and set aside the contract and absolve themselves from liability on the note which they have given for the purchase price.

It would seem hardly necessary to cite authorities uppn a proposition so simple as this, but without reading from it I cite a case which in some of its bearings is quite illustrative of the rights of the parties here. It is entitled Ohio Forging Co. v. Lamb, 11 Bull., 190, decided by the district court of Hamilton county a number of years ago. Our judgment is that the defendants have asserted in their pleadings no facts sufficient to constitute a defense against the note even in the hands of the original holders. It can not be claimed that the bank, the endorsee, is not a holder in due course, because there is no flaw in the title of the original payees. The bank does not have to prove its ignorance of fraud if there be no fraud or if none be pleaded as against the original holders of the paper.

The court below was not in error in instructing the jury to render a verdict for the plaintiff or in rendering a judgment upon that verdict when so returned. The judgment will be affirmed without penalty.


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    FAILURE TO OBEY JUDGMENT TO PAY ALIMONY.
    Circuit Court of Hamilton County.
    George M. Galley v. Della Galley.
    Decided, December, 1910.

      Divorce and Alimony — Failure of Husband to Pay Alimony Awarded— Contempt Proceedings — Presumptions as to Findings of the Court— Mistake.

    A complaint filed in a contempt proceeding against a husband, who is in default for payment of alimony against him, is not insufficient in law because it contains no allegation that the defendant was able to pay alimony, but it will be presumed that the court heard evidence and found that the defendant was able to pay the amounts adjudged against him.

      C. S. Sparks, for plaintiff in error.

      Karl H. Caldwell, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   The objection that the complaint is insufficient in law, because it contains no allegation that the defendant was able to pay alimony as decreed, is not sound, as the decree imports a finding that he is able to pay the money. State, on complaint of Cook, v. Cook, 66 O. S., 566.

In the absence of a bill of exceptions containing the evidence, if any were offered, the presumption will be that the defendant failed to establish his inability to pay.

It is not essential, though preferable, to prosecute a proceeding in contempt in the name of the state. In re Hamburger, ex parte, 19 C. C., 561.

Although the mittimus recites that the ease came on to be heard in the court of common pleas, it is apparent on the face of the paper that this was a clerical error in the use of a printed form, and that the commitment was in fact ordered by the court of insolvency after a hearing was had in such court.

Where a cause is submitted to the court, a finding made and judgment rendered, it will be-presumed that evidence was offered in support of such finding, although the judgment entry contains no recital that the cause was heard upon evidence. Haskins et al v. Alcott & Horton, 13 O. S., 210.

We find no prejudicial error and the judgment will be affirmed. It follows, also, that the defendant is lawfully imprisoned and that he be remanded to the custody of the sheriff.


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    SURRENDER. OF PROPERTY BY EXECUTRIX TO CREDITOR..
    Circuit Court of Lucas County.
    National Surety Co. v. Alice Haughton.
    Decided, June 12, 1909.

      Executors and Administrators — Preference of One Creditor by Turning Over to Him Notes Belonging to the Estate — Section 10697.

    An exeGutor as such has no power before final settlement to turn over, without an order of the probate court, notes held by the estate to a creditor of the estate, and one holding notes so turned over does not have a valid title to them upon which to sue the maker.

      Potter cfe Potter, for plaintiff in error.

      Rhodes & Rhodes, for defendant in error, cited: Roekel’s Pro. Prac., Section 471; Miller v. Stark, 61 Ohio St., 413; Jelke v. Goldsmith, 52 Ohio St., 499; Broadwell v. Banks, 134 Fed. Rep., 470; Fester v. Wise, 46 Ohio St., 20; Woerner, Law of Admrs., Section 177; Higgins’ Estate, In re, 15 Mont., 474; Newcomb v. Williams, 43 Mass. (9 Metc.), 525; Crocker v. Dillon, 133 Mass., 91; White v. Ditson, 140 Mass., 351; Hood, Estate of, 98 N. Y., 363; Wall v. Bissell, 125 U. S., 382; Everson v. Pitney, 40 N. J. Eq., 539; Hood v. Hood, 85 N. Y., 561; Williams v. Cushing, 34 Me., 370; Sanborn’s Estate, In re, 109 Mich., 191; Crawford Estate, In re, 21 C. C., 554.
    Wildman, J.; Kinkade, J., concurs; Parker, J., not sitting.
    Error to Lucas Common Pleas Court.
   Suit on certain promissorry notes was brought by the National Surety Company against Mrs. Haughton. The surety company claims to be the owner of the notes and entitled to judgment upon them, and this claim is disputed by the defendant, Mrs. Haughton, who is defendant in error, as she was defendant in the original case. The court below gave judgment for her. Mrs. Haughton gave these notes to one N. P. Glann, who endorsed them to E. W. Tolerton, and the latter owned them up to the time of his death. Tolerton was executor of the estate of Mrs. Minerva M. Wood, and the plaintiff, the surety company, was surety for him on his bond as such executor. Tolerton died in the year 1905 indebted to.the estate which he was so representing to a very large amount, and the plaintiff surety company settled with an administrator de bonis non, paying the sum of $10,955.93 upon its obligation as surety. Mrs. Tolerton, by the will of her husband, was made executrix of his estate, and by a provision in it was also made one of two trustees to make disposition of the property after the payment of debts, Mr. Thomas H. Tracy being named as the other trustee. It is claimed that Mr. Tracy never qualified as such, but in our consideration of the case we do not deem it very important whether he did or did not.

Without any order of the probate court, Mrs. Tolerton turned over certain notes belonging to the Wood estate and in her husband’s hands as executor, to the amount of $4,366.75, to the surety company. Among these notes were the ones given by Mrs. Haughton, the defendant, which are now in controversy. She asserts that they were transferred to the plaintiff without legal authority, and that the plaintiff is not the owner. A jury was waived, the case was tried to the court below, and judgment rendered for the defendant, dismissing the petition.

By agreement of parties, Judge Kinkade being related by marriage to one of the, parties, the case was submitted to me alone, my conclusion to be entered as the judgment of the court. The sole question with reference to the consideration is whether the plaintiff obtained title to the notes. Suggestion was made that the action of the executrix, or the powers of the executrix to act, could not be questioned in this proceeding, which was said to be collateral, but there is no force, in my judgment, in this claim, and indeed it was not very earnestly insisted upon by counsel.

The statutory power of an administrator as to the disposition of promissory notes owned by the estate which he represents is found in General Code, 10697, and this gives no power to such a representative to dispose of property of this kind by sale or transfer without the authority of the probate court. It is claimed, however, that a testamentary power is embodied in this will, and that the executrix acted under it, or that she transferred as trustee. The will gives her no power as executrix to sell, and the express provision in the will is, that after the payment of'debts, the trust is created in her and in her co-trustee, Mr. Tracy, to dispose of the property, with very broad and ample powers. The will provides that she is not required to give bond as executrix; but there is no provision in the will that she shall not be required to give bond as trustee. No bond was ever given by her as trustee. In an answer to one of the interrogatories attached to one of the pleadings, it is stated that she made this transfer as executrix. This, however, may be considered possibly as a mere inadvertence, and if she really had power as trustee at the time she made the transfer as trustee to make it in that capacity, it might raise the question as to whether she was not in fact attempting to exercise whatever power was given her by the will, no matter what she calls herself in the answer to the interrogatory. My judgment, however, is that she had no power to make any such disposition of the property as turning it over to one creditor of the estate of her husband, without a full settlement of all other debts. The will did not attempt to authorize her as executrix or trustee to give a preference to one creditor over another, and we are not- apprised as to the extent of the liabilities of E. W. Tolerton, her husband, it is quite clearly indicated that his debts had not been entirely extinguished. There had been no final settlement of her account as executrix, the time had not expired within which claims might be presented against her as the executrix of the estate, and for these- various reasons it seems quite clear that she had no power to transfer this paper by assignment or endorsement to the surety company in order partly to liquidate its claim against the estate of her husband. It does not appear that the debts had been paid at the time of the attempted sale of the notes.

The judgment of the court below, in favor of Mrs. Haughton, based probably on the view that the plaintiff was not the owner of the notes sued on, is correct, and the judgment will be affirmed.


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    PROSECUTION FOR. HOMICIDE.
    Circuit Court of Hamilton County.
    Jesse Van Zandt v. State of Ohio.
    Decided, February 11, 1911.

      Criminal Lem — Evidence Sufficient to Support a Judgment of Manslaughter — Objections to the Admission of Evidence — Verdict May be Guilty of Murder in the First, Second or Third Degree.

    1. Where there is no suggestion that any other person could or did commit the crime, and the circumstances point as strongly as in the present case to the defendant, a judgment of guilty of manslaughter will not be set aside for lack of sufficient evidence.
    2. It is not error in the case of one charged with murder in the first degree to charge the jury that, if the evidence justifies it, a verdict may be returned of guilty of .murder in the second degree, or of manslaughter or of assault and battery.
    3. An objection to the admission of evidence is not sufficiently specific, if it is not addressed to any particular question, and no motion is made to rule out any answer given either before or after the entering of the objection.

      Littleford, James, Frost & Foster, for plaintiff in error.

      Coleman Avery, contra.
    Giffen, P..J.; Swing, J., and Smith, J., concur.
   Jesse Van Zandt was indicted for murder in the first degree and convicted of manslaughter.

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

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

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

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

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

It was not error for the court to charge the jury that if the evidence justified it they might return a verdict of murder in the second degree, or of manslaughter, or assault and battery. Section 7316, Revised Statutes; Marts v. State, 26 Q. S., 162.

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

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

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

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

The judgment will be affirmed.


text:
    REVIEW OF PROCEEDINGS FOR. REMOVAL OF AN ADMINISTRATOR.
    Circuit Court of Huron County.
    Mary A. Smith v. Bertha A. Bracey et al.
    Decided, October, 1910.

      Administrators — Circuit Court Without Jurisdiction for Review of Proceedings for the Removal' of- — Sections 12241, 12247 and 12248.
    The circuit court is without jurisdiction to review by a proceeding in error an order of the common pleas court removing an administrator in a proceeding brought into that court on error to the probate court.
    Error to Common Pleas Court of Huron County.

      C. P. Wickham and A. M. Beattie, for plaintiff in error.

      A. V. Andrews and E. M. Palmer, contra.
   By the Court.

This case is a proceeding in error to reverse an order of the common -pleas court removing plaintiff in error as administrator of the estate of Adaline A. Clark. A motion w.as originally filed in the probate court for such removal and was overruled. The proceeding was thereupon appealed to the common pleas court, which sustained the motion and made the order now sought to be reviewed and reversed.

At the outset of our inquiry we find ourselves confronted by a question of jurisdiction. Prior to May 6th, 1902, the section of the Revised Statutes relating to error proceedings from judgments and orders of the probate court to the common pleas court were substantially identical with those as to proceedings in error from judgments and orders of the common pleas to the circuit court. See Revised Statutes, Sections 6708 and 6709. Neither section conferred any specific power to review orders removing executors, administrators, etc. Section 6708 was -amended May 6th, 1902 (95 O. L., 392), so as to authorize proceedings in error in the common pleas court to review such orders of the probate court; but Section 6709, which defined-the jurisdiction of the cir-unit court to review orders and judgments of the common pleas court, was not so amended.

In 1900, before the amendment of Section 6708, the Supreme Court, in the case of Munger v. Jeffries, 62 O. S., 149, expressly held that an order of the probate court for the removal of an executor was not subject to review on petition in error in the court of common pleas. So far as the conclusion reached in that case applied to orders of the probate court under Section 6708, it is robbed of its force by the amendment before referred to; but it still in principle applies to the other Section (6709) containing the same phraseology as original unamended Section 6708. In other words, while an order of the probate court removing an executor or administrator is now reviewable in error proceedings in the common pleas court, like orders of the common pleas court are not reviewable in the circuit court.

The case cited was followed without report in the cases of Campbell, Trustee, v. Miner et al, 62 O. S., 659, and Martin et al v. Bershem et al, 65 O. S., 556-7, and also by our own court.in the ease of Stafford, Executor, v. American Missionary Association, reported 22 C. C., 399. It was cited with apparent approval in Schumacher v. McCallip et al, 69 O. S., 513. See also North v. Smith et al, 5 C.C.(N.S.), 494, and cases therein cited; also Ferguson v. Ferguson, 3 N.P. (N.S.), 549.

In the case of In re Breckenridge Estate, 7 C.C. (N.S.), 86, the Circuit Court of Cuyahoga County seems to have assumed jurisdiction in a proceeding in error to review an order of the common pleas court removing an executor; but it is not apparent that the question of jurisdictional power to do so was raised.

We conclude that no jurisdiction has been conferred on the circuit court to review, by a proceeding in error, the order of the court of common pleas removing plaintiff in error as administrator, and for that reason the petition in error will be dismissed.


author: Kinkade, J. Parker, J.

text:
    PERMITS TO FISH FOR. CARP IN LAKE ERIE.
    Circuit Court of Sandusky County.
    Richard Jackson v. The State of Ohio.
    Decided, October 13, 1910.

      Fishing in Lake Erie — Permits for Taking Oarp — Apply to All Lake Erie Waters — Yalidity of Section 145S-

    1. The Ohio statute as it now stands, providing - for the issue of permits or licenses by the fish and game commission for the taking of carp from the waters of Lake Erie, is general in its nature and is a valid enactment.
    2. When an applicant to fish for carp has satisfied the commission that he will not violate the law, he is entitled to a permit to fish in any of the marshes, inlets, hays or waters connected with Lake Erie, and is not subject to prosecution for placing his seine in the waters of Mud creek.

      George A. True and Buel TL. Crawford, for plaintiff -in error.

      U. G. Denman, Attorney-General, and E. H. Froehlich, contra..
    Wildman, J.; Parker, J., and Kinkade, J., concurs.
   This case is an exceedingly interesting one, in which there is a temptation to render a somewhat more elaborate opinion in stating the conclusions which we have reached than our time will allow.

Mr. Jackson was convicted before a magistrate of a violation of Section 9 of the fish and game law, which has now been embodied in the General Code as Section 1426. It is the section which prohibits fishing with certain nets and in a certain manner in the inland fishing district of this state. It was charged in the first count of the affidavit, in substance, “that he did knowingly, willfully and unlawfully draw, set, place, locate and maintain a certain seine in the inland fishing district of said state, to-wit, in the waters of Mud creek.”

There is a second count in the affidavit, but inasmuch as the magistrate found him not guilty as charged in that, it is not necessary to read or discuss it,

The defendant concedes that he had spread his net in the waters of Mud creek, so-called, but he says that Mud creek is an estuary, inlet, creek or marsh along the border or near the border of Lake Erie; that he was up the stream, if we may call it such, some little distance from Horse Shoe Island. His claim is that Horse Shoe Island is at the mouth of the creek' — that the creek substantially ends at Horse Shoe Island. He says he was fishing for carp by virtue of his rights under the law, fortified by a permit from the commissioners of fish and game of this state.

The statute providing for such a permit is found in the General Code at Section 1453. After various provisions prohibiting in some instances, the fishing in certain waters, and in others restricting the manner in which fishing shall be done, we have this provision in the section so numbered:

‘ ‘ German carp may be taken or caught at any time in the bays, marshes, estuaries or inlets bordering upon,' flowing into or in any manner connected with Lake Erie, with any seine having meshes not less than four inches, stretched mesh. Other nets or devices-may be used if authorized by the commissioners of fish and game. Written permission to catch carp in such waters shall be granted to any person making application to the commissioners for such privilege who satisfies the commissioners that he will not violate a' law for the protection of fish. Such permission may be revoked by the commissioners upon conviction of the holder thereof for taking fish contrary to law. ’ ’

Under the former statute providing for permits from the fish and game commission to fish for carp, a question was raised before me, at that time on the common pleas bench, as to the constitutionality of the enactment; and construing the act as it then stood, as giving an arbitrary power to the fish and game commissioners to grant permits according to their own caprice, without any qualification as to the grounds upon which such permits should be issued, • I deemed and held the law unconstitutional. Since then the statute has taken its present form, and there is now this qualification to the granting of the permits: .that the applicant shall satisfy the commissioners that he will not violate the law. And where he has so satisfied them the granting of the permit is now made a mandatory duty of the fish and game commissioners.

The first question to which we are invited is • whether the amendment to the legislation has cured it of the invalidity of the original act; and we are inclined to think that it has.' We think that it is now more like enactments providing for licenses for various occupations or acts, and that it is no longer left to the capricious will of the commissioners, 'so that they may no longer exercise favoritism; but in all cases, the act being universal in its operation, any person who can satisfy the commissioners that he will not violate the law is entitled to the permit which the statute specifies.

It then becomes an interesting question, assuming the validity of the law, as to what sort of a permit the commission is required to issue, and it is very forcibly urged on the part of counsel for the plaintiff in error that if he is entitled to a permit at all, that permisison must be as broad as the law. In other words, that if they can not discriminate among persons neither can they discriminate among waters; that is, they can not say: “You may fish here, but you must not fish there”-; but that the law contemplates that if he satisfies the commissioners that he will not violate the law, he may fish in all marshes, estuaries, inlets or bays which are in any manner connected with Lake Erie.

Speaking for myself, I am inclined to adopt this view, and I do not know that my associates are out of harmony with me in it. It is, perhaps, not essential that we should make this holding. It is entirely possible that these commissioners intended, in this permit, to include in their description of the waters to which it applied, all the waters which are contemplated, by the statute. They have enumerated, in the permit before me, various waters, “from the Maumee Bay to a point not above the east end of Presque Isle, ’ ’ below Toledo; and ‘ ‘ Sandusky Bay at a point not above or west of a line drawn from the south point of Eagle Island, including Mud creek to Horse Shoe Island, ’ ’ etc. They have enumerated these various places in which they attempt to grant permission to fish for carp, and it is possible that they intend to include therein all the waters which they consider in any manner connected with Lake Erie. But whether that is so or not, it seems to me that having defined Mud creek as far as, or to Horse Shoe Island, they included the particular water in which the defendant below, plaintiff in error here, was found fishing, or where his nets were found spread, as stated in the agreed statement of facts, and upon the basis of which agreed statement of facts he was convicted.

But it is said, upon the other side, that the waters in which his seine was placed were not embraced in these defined limits of the statute,' so that even if the fish and game commissioners attempted to give him a permit to fish there, they had no power so to do, and he would be a violator of the law, unprotected by the written permit in his hands; and this brings us directly to the question whether the waters, as described in this agreed statement of facts, were such as come within the purview of this statute.

In, a very full brief furnished us by counsel for plaintiff in error we are given definitions from different lexicons and other authorities of the terms ‘ ‘ estuary, ” “ inlet, ” ‘ ‘ bay ’' and ‘ ‘ creek. ’ ’ At the point where this seine was spread, the so-called Mud creek was some 600 feet wide, and some six feet deep. The agreed statement of facts says that the waters at this point were on a level with Sandusky Bay, and with Lake Erie. It is agreed that the waters of the so-called Mud creek rise and fall as the waters of the lake rise and fall under the influence of winds from one direction or another; that a continued wind from the northeast will raise the waters of the creek as they rise in the marsh and along the shore of the lake; that winds more southerly would have a tendency to lower the waters as they lower them in the lake; and it has seemed to us, from a consideration of the entire water at this point, and its surroundings, its environment and its proximity to the lake, that it is just such water as tlr Legislature had in mind in the somewhat sweeping terms of this enactment. The purpose of this legislation was, of course, to destroy carp; carp being deemed not especially of value, and in some respects pernicious because of their destructiveness to other fish, and perhaps otherwise; and for this reason they were not deemed -entitled to the protection of the law like fish of value. The Legislature, having this in mind, and knowing the extent to which carp were beginning to frequent the waters adjacent to Labe Erie, and connected therewith, passed this, law excepting from the prohibitive operation of the law the fishing for this class of fish; and they made the law pretty broad. It looks a little as if the Legislature used all the terms that occurred to them at the time of the enactment to describe waters which would be so contiguous to Lake Erie that carp would‘readily go into Lake Erie from such waters, or from Lake Erie into them. I am satisfied that the waters described in the agreed statement of facts were such as were contemplated by the Legislature when it passed this section; that the fish and game commissioners could not limit the waters within which an applicant for permission to fish might set his seines, and that having a permit to fish for carp, he was violating no law when he spread his nets where he did.

We think the justice of the peace, in convicting the defendant, committed an error, and the court of common pleas, in affirming the judgment did likewise; and our conclusion is that both judgments should be reversed and that the plaintiff in error is entitled to his discharge.

My associates now tell me that they are inclined to put their concurrence in this judgment upon the broad ground that whether or not the permit sought to limit the fishing to waters above Horse Shoe Island or to waters below it, still, as I have suggested as my own view, the defendant had a right, if he was entitled to a permit at all, to fish anywhere in waters connected with the lake as described by the statute, and that Mud creek, so-called, was a water so connected with the lake.

Kinkade, J.

He has a broad right, under the statute, to fish in the places designated in the statute; and these places embrace this place, and his right is supplemented by the permit. I merely don’t want to say that I thought the commission that issued the permit was endeavoring to give him a permit at the point where he was fishing.

Parker, J.

I am not quite certain of this, but I think that in all instances where they undertake to define the waters where the fishing may be done, they begin at the lower end or outlet near the lake, and say how far up you may go; and so, I think in this ease they undertook to begin toward Lake Erie and say he might go up to Horse Shoe Island, but not above it.' I think that is the intention of the permit. We think that limitation may be disregarded; they had no right to circumscribe his permit. .


text:
    DAMAGES FOR. INJURIES TO MINOR. SON.
    Circuit Court of Hamilton County.
    Frederick Furste v. The Henderson Lithographing Company.
    Decided, February 11, 1911.

      Negligence — Minor Injured and Earning Capacity During Minority Reduced — Action by Parent for Loss of Services,

    Where a father as next friend has prosecuted an action for his minor son for recovery of all damages from injuries resulting to the said son on account of the alleged negligence of the defendant, including his loss of earning capacity during minority, he can not after the determination of that action prosecute another on his own behalf for loss of services of the son during minoiity.

      Liitleford, James, Frost & Foster, for plaintiff in error.

      C. D. Robertson, C. B. Wilby and Mitchell Wilby, contra.
    Swing, J.; Giffen, P. J., and Smith, J., concur.
   An original action was prosecuted by S. Furste, by his father, Fredrich Furste, as next friend, in the United States Court against defendant, and in that action judgment was rendered for the defendant.

The present action was prosecuted by Fredrich Furste, the father, for loss of services of the son during minority.

An answer was filed in which, after admitting certain statements, the negligence of defendant is denied, and further answering the defendant sets up the action in the United States Court and claims the judgment in that court is a bar to the prosecution of this action.

Plaintiff filed a demurrer in which he divides defendant’s answer into three defenses, and these three defenses are no doubt intended to be designated- by the numerals 1, 2, 3 op the margin of the answer, placed there, no doubt, after the answer was filed, as there is no statement in the answer that the defendant has the three separate defenses.

In our judgment there are only two defenses pleaded. The first defense denies negligence on the part of the defendant, and the second defense sets up the action in the United States Court as a bar to the prosecution of this action. All that is said in the answer as to the suit in the United States Court constitutes but one defense. The court below sustained the demurrer to the third. defense and overruled the demurrer to the second defense. The plaintiff filed a demurrer dividing up defendant’s answer into three defenses. The result was that the court dismissed plaintiff’s petition, he not desiring to plead further.

The question as to whether counsel were in error in regarding defendant’s answer as setting up three separate defenses was not suggested to us in argument, and the ease was argued on the theory that it did contain three separate defenses and that the demurrer to the second defense, which the court overruled, raised only the question whether a party who brings -an action as next friend is barred from maintaining an action in his own right against the wrong-doer, founded on the one wrongful act.

We fully agree with the contention of the plaintiff in error that the one action is not a bar to the other, for the simple reason that the parties are not the same. The next friend is not the real party in the action prosecuted by him as next friend. The infant is the real party. In the other action the former next friend is suing in his own right and the infant is not concerned, so that a recovery in one is not a bar to a recovery in the other. 2 C. C., 77; Van Fleet, Former Ad., Section 555. No further authorities need be cited. We have found none to the contrary.

But the trouble in this case arises in the pleader dividing up the answer into defenses which'we do not think exists. The part of the defendant’s answer called second defense does simply set out the action in the United States Court and its determination, and says it is a bar to the present action; but the answer goes on to state that in that petition the father sued as next friend for all the loss occasioned by the accident, including whatever claim he may have had as father of the boy, and thereby relinquished to the son his right to recover for his loss of services. There was but one action in the United States Court and its determination could constitute but one defense in this action.

Taking this view a somewhat different question is presented from that argued by plaintiff in error.

The question presented by the record, as we view it, is; Can the father, as next friend, bring an action for his minor son for' injuries caused by the alleged negligence of the defendant, in which action he sues for all damages resulting to said son by reason of the accident, including his loss of earning capacity, during minority, and after the determination of this action maintain an action in his own behalf for the loss of the services of the son during minority ?

Both on principle and authority we think this can not be done. Primarily the wages earned by the son belong to him, the father being responsible for his maintenance, the law gives him the right to take the earnings of the boy as a compensation, but he may waive this right, as most parents do, and permit the boy to collect and spend his earnings; and when the father brings an action'for his minor son as next friend, and includes in the action loss of services of the boy during minority, it must be presumed that by so doing he has relinquished to the son whatever right the law gave him for such services. 91 Mich., 298.

The fact that the court below sustained the demurrer to the so-called third defense should not affect the judgment of this court. The judgment below dismissed the petition of the plaintiff, and according to our view of the rights of the parties on the whole record this was right, and therefore it is immaterial whether the court was in error in regarding the answer as containing three separate defenses and in sustaining the demurrer to the so-called third defense.

Judgment affirmed.