text:
    PROOF WITH REFERENCE]TO JDISPUTED3 WR.ITINGS.
    Circuit Court of Pickaway County.
    John Sullivan v. Iva Starkey.
    Decided, 1911.

      Evidence — Disputed Writings — Proper Method of Determining Authen ticity of — When a Writing may be Exhibited to Witness with the Requirement that Be Furnish in Open Court a /Specimen of Bis Writing for Comparison.

    1. When a witness has denied the authenticity of a document, purporting to have been written and signed by him, containing statements material to the issue in the case, he may be required on cross-ex amination to write specimens of his handwriting for the purpose of comparison. But this rule does not apply to the direct examination of the witness.
    2. In such a case where testimony has been given by another that the document is in the handwriting of the party, it may be offered for the purpose of impeachment; and if the witness be a party, for the additional reason that it is a declaration against interest'

      Barton Walters, for plaintiff in error. ■

      Geo. W. Lindsay and Irene F. Snyder, contra.
    Jones, C. J.; Walters, J., and Sayre, J.; concur.
   This action arose on a complaint in bastardy filed by Iva Starkey against John Sullivan. The cause was tried in the common pleas court, before the court and jury, and the defenadnt was found to be the reputed father of the child. A motion for a new trial was filed and overruled, a judgment entered upon the verdict, and a bill of exceptions taken. -The petition in error in this court alleges that there is error in the rejection of cer tain testimony, and in the refusal to give special charge No 10 asked to be given by the defendant below. ’ ’

Iva Starkey, the complainant, took the witness stand in her own behalf and testified, as shown by the bill, when a certain letter was shown to her, that this letter was written by a friend of-her’s; that she did not dictate it, and knew but very little of its contents; that she didn’t direct that it be sent to John Sullivan, the defendant below, and that she did not know it was being sent.' She, however, did state that she knew some of the things contained in the letter. This letter was claimed by the defendant to have been written by the .prosecuting witness, and it purports to be signed by her initials. This letter, as shown by the bill of exceptions, was inclosed in an envelope and directed to the defendant at his address in the city of Circlevííle, and purports to have been written during the time of her pregnancy. The letter, among other things, contained this statement:

“Don’t worry about what we were talking about Sunday night, for it don’t ¡belong to you. I would not lay it on you if it was yours.”

It appears from the record, after the direct examination of the complaining witness had been completed, this letter being in the possession of counsel for the defendant and exhibited to the witness, he asked the witness as follows:

“I wish you would take that sheet of paper and pencil, and write what I dictate to you.”
“Thereupon counsel for the defendant presented a sheet of paper and pencil to the witness, and requested that she, in the presence of the jury, wuite out a copy of the letter above offered in evidence, for the purpose of enabling the jury to say upon the comparison of the handwriting^whether or not the letter in question was” written by the plaintiff. ’ ’

The court refused this request by counsel for the defendant, and an exception was taken to the refusal of the court.

In Ohio this is .a new question, and has never been passed upon in any case reported so far as we know. It is unquestionably the rule as shown by the great weight of authority, that the claimed author of disputed handwriting can not exhibit, for the purpose of comparison, any writing made by him after the controversy arose. This rule has been amplified and extended in proper cases, that signatures and writing after the controversy arose may be offered in certain cases; that is, where it appears that the signatures and handwriting were not manufactured, and had been used in the ordinary course of business, and could not have any connection with the disputed point. However that may be, it has never been held in any case we can find that upon the direct examination of the party, or a witness in the case, he may be asked, in support of his declaration that the disputed writing is not authentic, to write out his signature or a portion of the disputed document for the purpose of comparison. That can not be asked, I say, upon the direct examination of a witness for the reason, as the courts say, that a signature, or handwriting, could at the time, upon the trial, and during the examination in chief, be so disguised so as to prevent a proper standard of comparison to be made. And furthermore, the.witness himself might have in his mind the idea of procuring at the trial such handwriting or signatures as would be self-serving in its nature, especially if he should be a party. But an examination of authorities cited, carefully and discriminately, will show that there is quite a difference whether this question is asked in chief or upon cross-examination. The opposite party, of course, may take the risk of the fact that the witness will disguise his handwriting. But the rule is, that upon the cross-examination of a witness, upon a point that is material to the issues in .the case and upon a point which he has orally denied, the document may be displayed to the witness and he may be required to write in open court for the purpose of making a standard of comparison for .any disputed document, and he may be required to furnish specimens of his handwriting therefor.

One of the eases frequently referred to and cited in the other cases, is the case of Huff v. Nims, 11 Nebraska, 363. There is was said by the judge:

“The only point relied on worthy of attention is the alleged error in requiring the witness Huff to write certain words in the presence of the jury, and for their inspection and comparison with the same words contained in the note on which the action was brought.
In view of the testimony the handwriting of the witness was an important factor in the case, and it was certainly competent to disprove his oral statement as to the words of the note then before the jury. This could be done in various ways; one of which was by a comparison of the writing of the note with other writing, either admitted or proven to be his own. That written in the presence of the court and jury was certainly his own, and ought to have been acceptable to the witness and the party calling him. If not dissembled, and of the possibility of this the party conducting the cross-examination took the risk, the writing thus exhibited enabled the jury to form a pretty accurate estimate of the value of the witness’ oral testimony on this point.”

To the same effect is the ease of Bradford v. People, 22 Colorado, 157, where the court held that when the accused comes on' the stand as a witness in his own behalf and denies writing the document alleged to have been written by him, he may be required on cross-examination to write in the presence of the jury for the purpose of comparison.

The ease of Minnie Sanderson v. Charles Osgood, 52 Vermont, 309, was a bastardy case in which evidence of this character had been offered and admitted and where the complaining witness had written in open court a portion of the disputed writing. Judge Ross in the decision of that case closes the opinion with the following language:

“The utmost limit to which the cases and practice go in this respect is to allow the opposite party, when the upholding party takes the stand as a witness, in cross-examination to call upon bim to write in the presence of the jury, that he may use such specimens of. his writings for comparison with the disputed writing, by the jury, and experts against him. ’ ’

Another case frequently referred to in these cases is the case of Catherine King v. James Donahue, 110 Mass. Reports, 155, where the court say:

“A party to an action is not entitled to write his signature in the presence of the jury for the purpose of being compared with a signature purporting to be his, the genuineness of which he denies. There are cases to the effect that where a witness has denied his signature to a document, hé may be called upon in cross-examination to write in open court that the jury may compare such writing with the controverted signature, but this is merely ,as a part of the cross-examination and for the purpose of contradicting the witness.”

In the case of People v. Dekroft, 49 Hun., 71, it was held that:

“On a trial for forgery, where the defendant introduced one of the parties whose name was signed to the note as a witness to show that she wrote the name alleged to have been forged, and that defendant wrote her name by her authority, she may be required on cross-examination to write her own name and that alleged to have been forged, and the signatures may be submitted to the jury for comparison as a test of her veracity.”

This is also supported by the case of Chandler v. LeBarron, 45 Maine, 534. And to the same effect is the case of Doe v. Wilson 10 Moore, P. C., 502-530.

While in some of these cases the handwriting of the witness was obtained in open court, either on the direct examination without objection or upon the cross-examination, the rule of practice is distinguished in the opinions.

In the case of Hickory v. United States, 151 U. S. Reports, p. 376, Chief Justice Fuller recognizes the distinction wherein a witness in a case of this kind upon examination in chief may not be asked to ^rite in support of his declaration in open court, but the rule is that upon cross-examination by the other side he may be required to do so.

We think that the court erred in refusing to permit the witness on her cross-examination to write a portion of the letter that was claimed to have been written by her, and signed by what purported to have been her initials.

On pages 15 and 16 of the record, after she testified that she knew some of the things that was in this letter, she was asked this question:

“Now I wish you would tell us so that I can get it in the record. what parts of that letter you are acquainted with?”

The court refused to permit her to answer that question. On the next page of the record, after testifying that she knew it was being written but did not know what was in it with the exception of a few things, she was asked the question:

‘ ‘ Will you tell us what statements were in that letter that you did not know were in there before it was mailed?”

The court refused to allow that question to be answered, and an exception was taken by the defendant to the refusal of the court to allow the questions to be answered in both instances. Here was a witness who knew that this letter was being written to Sullivan, and knew some of the contents of the letter; yet, in spite of the admissions made by the witness on the stand, she was not permitted to testify what things were contained in the letter that she knew; and one of the statements in the letter is tbe statement referred to in the first part of the opinion,'viz:

"Don’t worry about what we were talking about Sunday night for it don’t belong to you. I would not lay it on you if it was yours.”

'AVe think the court erred in refusing to permit the witness to answer as to the contents of that letter. We think' also, that the court erred'in not admitting the letter itself in evidence upon the case made out by the defendant.'

The defendant introduced one witness by the name of Love McKinley, who testified that the writing in the letter was th" handwriting of the complainant, that she knew it; in some portions of the testimony she makes it positive, but upon cross-examination her credibility is questioned seriously; but ail this is a matter of fact for the jury; and having made a prima facie case by testifying to the fact that this handwriting was the handwriting of the complaining witness, this letter should have been admitted by the court, because of the prima facie case made by the testimony of the witness, Mrs. McKinley.

This is supported by the opinion in the case of Schriedly v. State, 23 O. S., 130. The fifth proposition of the syllabus is as follows:

"AYhere, upon such trial, a witness testified in behalf of the state that the goods were received and bought of him by the defendant, knowing that they were-' stolen; and, on cross-examination, he' denied .that he had any knowledge whatever of a letter, shown.to. him, purporting to be written by him to the defendant, stating that he knew nothing against the accused relating to the transaction: 'Held: thát, for the purpose of impeaching the witness, the letter might be given in evidence by the defendant, on making prima facie proof that it was written at the dictation of. the witness, and was in fact sent by him to the defendant, ’ ’

This ease is a little stronger than the ease at bar, bnt it is in principle the same. So is also the case of Insurance Co. v. Sarnahan, 19 C. C.. 98. The. fifth proposition of the syllabus is as follows:

“>Where a witness on cross-examination is shown a paper with his name signed thereto, which is at variance with his testimony in chief, but denies to have signed it, it is competent to introduce witnesses to testify that he did sign it,' and such writing may be admitted in evidence. ”

That was exactly the course sought to be taken in this case. As to whether or not she signed it, that was a question for the jury; but the defendant sought to introduce this letter as a declaration against self-interest and also for the purpose of impeaching the credibility of the complaining witness. '

Special Instruction No. 10, which was refused by’the', court,', is as follows: , .. . .

“The plaintiff alleges that she became pregnant by the’defendant on August 22d, 1909; now I charge you -that she must establish by a -preponderance of the evidence that she became, pregnant at that time; and you can not return a verdict -against the defendant if you are in doubt as to when she became pregnant or in the event you believe that she became pregnant at some other time.”

The trouble with that charge is, it attempts to bind the plaintiff on a question in controversy: the pregnancy of the complainant to beginning on the date of August 22d, 1909. The plaintiff was not, and could not, be bound by that exact date. There is no error on the part of the court in refusing to give this charge.

We think, because of the errors named, that the judgment of the court below should be reversed and the cause remanded to that court for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    PRIVILEGED COMMUNICATIONS.
    Circuit Court of Hamilton County.
    Jessie Parker v. Mamie Roddy.
    Decided, July 29, 1911.

      Libel and Slander — False Imprisonment — Expression of a Suspicion as to Who Committed a Larceny is Privileged, When.

    The expression to a police officer of a suspicion, by the owner of property which has been stolen, as to who it was who committed the theft, is privileged and can not be made the basis of an action for damages for slander or false arrest.

      Scott Bonham, for plaintiff; in error.

      M. C. Lykins, contra.
    Jones, J. ■; Smith, P. J., and Swing, J., concur.
   The action below was one for damages by defendant in error against plaintiff in error. The petition contained two causes of action namely — slander and false imprisonment.

The evidence disclosed that several articles had been stolen from the Parker residence. Shortly thereafter a detective of the city police department called upon Mrs. Parker and it was to him that she first divulged her suspicion that Miss Roddy was the guilty party. '

Later interviews with police officers followed in the presence of Miss Roddy and at the trial of the case below the detectives and Miss Roddy were permitted to testify as to accusations made by Mrs. Parker on those occasions. . We think these communications were privileged and that it was error to admit them. Liles v. Gaster, 42 O. S., 631, 635, 636; Cooley on Torts, 211; 1 Cooley on Torts, 3d Ed., 434, 436; Garn v. Lockard, 108 Mich., 196.

Reversed.


text:
    PROSECUTION FOR. AIDING IN THE SOLICITATION OF A BRIBE.
    Circuit Court of Franklin County.
    Rodney J. Diegle v. The State of Ohio.

    Decided, October 17, 1911.

      Bribery — Aiding and Abetting in the Procurement of — Sufficiency of Averments in Indictment — Competency of Evidence — Entrapment— Reference to Defendant’s Failure to Take the Stand — Co-ercion of Jury — Sections 12880, 12829 and 18661.

    1. An indictment which charges a sergeant at arms of the state Senate with knowingly aiding and abetting A, a member of the Senate,' in the solicitation of a bribe, is not rendered insufficient by reason of failure to aver knowledge on the part of the defendant that A was a member of the Senate, or to aver how the defendant aided and abetted in the commission of the offense, or in stating the corrupt purpose to be that A “might be then and there influenced,” whereas the statute uses the words “to influence.”
    2. Where the character of the witness is attacked by showing his indictment and conviction upon a charge of felony wholly disconnected from the issue on trial, the trial court is not bound to permit counsel to go into details with reference to the crime so' charged or specifically into the history of the witness’ past life where the same is wholly immaterial and collateral.
    3. The entrapment complained of not having been originated by the prosecuting attorney or any officer of the state in this case was not of such a character as to bar prosecution for the offense alleged to have been committed by the defendant.
    4. The remark by a prosecuting attorney in his argument to the jury with reference to a certain statement that the “defense had an opportunity to deny it, and it stands uncontradicted,” is not such misconduct as necessitates the setting aside of a verdict of guilty, where the remark was immediately withdrawn by the speaker and the jury were instructed by the court to disregard it.

      G. J. Mattern, Belcher & Connor and J. E. Egan, for plaintiff in error.

      Timothy 8. Hogan, Attorney General, and E. G. Turner, Prosecuting Attorney, contra.

      'Ferneding, J.; Dustin, J., and Allread, J., concur.-

       Affirming State v. Diegle, 11 N.P.(N.S.), 593, and State v. Andrews and Diegle, 11 N.P.(N.S.),605.

   The plaintiff in error was indicted and convicted of aiding and abetting Senator Andrews in soliciting a bribe as a member of the General Assembly. A motion for a new trial was overruled and the case brought to this court upon a petition in error to review the regularity of the conviction.

I.

The first contention made by counsel for plaintiff in error to set aside said verdict is that the indictment is defective in the following particulars, to-wit:

(a.) That it does not expressly aver that Deigle, sergeant-at-arms of the Senate, knew that Andrews was a member of the state Senate.

(b) That the indictment is defective in not stating the nature and character of the messages Diegle is alleged to have carried to Andrews.

(c) That the indictment in charging a corrupt purpose states that said Andrews “might be” then and there influenced, whereas the statute prescribing such offense provides that the corrupt purpose was “to influence.”

(a) Relative to the first objection to the indictment, it is sufficient to say the form adopted is in harmony with that generally accepted by the courts of this state. The general averment that Diegle knowingly aided and abetted Andrews in the commission of the crime taken in connection with all the other averments of the indictment is in our judgment sufficient.

Section 12380 of the General Code provides:

“Whoever aids, abets, or procures -another to commit an offense may be prosecuted and punished as if he were the principal offender.”

(b) In respect to the second objection, an examination of the indictment in connection with the foregoing statute, Section 12380, General Code, quoted, convinces us that the general averment that Diegle knowingly aided and abetted Andrews in the-commission of the offense charged, without stating specifically as to how he did so, is a proper compliance. .

The manner employed in the aiding and abetting, such as the carrying of messages and arranging of meetings, might well be considered surplusage in the indictment and is unnecessary.

(c) For the third objection raised, there is here a slight departure from the statute. Section 12823, General Code, provides :

“Whoever corruptly gives, promises, or offers to a member or officer of the General'Assembly * * # any valuable thing, or corruptly offers or promises tQ do any act beneficial to such person, to influence his action, vote, opinion or judgment in a matter pending * * * and whoever being a member of the General Assembly * * * or agent or employe of the state * * * solicits or accepts any valuable or beneficial thing to influence his action, vote, opinion or judgment in a matter pending * * * shall be fined * * # or imprisoned * * * or both.”

The indictment charges Andrews as a member Of the Senate with having solicited and accepted a bribe “with .the intent and purpose that he, the said L. R. Andrews, might be then and there influenced with respect to his official duty,” etc. The distinction is in the use of the words “might be then and there influenced” instead of “to influence,” the language of the statute. Upon a careful reading and examination of the indictment, however, we are of the opinion that such departure is not substantial.

“It is requisite that every indictment should contain a substantial description of all the circumstances descriptive of the offense as defined in the statute, so as to bring the defendant precisely within it.” Hirn v. State, 1 O. S., 24.

II.

Rulings on Evidence.

Numerous exceptions have been taken by counsel to the rulings of the court on the admission and rejection of evidence. It is impracticable to review all these in detail. We have, however, considered all the exceptions taken as we came to them in reading the record and have also examined carefully the: briefs submitted in relation thereto.

Chief among the objections raised by counsel for plaintiff in error is,-'that the trial court erred:

(a) In limiting the cross-examination of Detective Smiley.

(b) In refusing to permit Senator Andrews to give the conversation he had with Senator Cetone before leaving for the Chittenden Hotel, and his (Andrews) position on the insurance bill which became the subject of the bribery.

(c) In admitting certain conversations had between Smiley, the detective, and Huffman and Cetone on the theory of conspiracy.

(a) The trial court permitted counsel for Diegle to cross-examine Smiley as to his plea of guilty to an indictment to defraud as returned by the grand jury of Cook county, Illinois, and also permitted Smiley to explain why said plea was made, the witness stating the plea was subsequently withdrawn with the permission of the court and the ease nollied. We think this was not error. The trial court was not required under the rules of evidence to permit counsel to go beyond this and into the details of the crime charged nor into specific history affecting the witness’ past life.

As to the alleged transcript of said criminal proceedings in Cook county, Illinois, offered by the defense to challenge the credibility of the witness Smiley, and excluded by the trial court, we do not think the court erred in this respect for the obvious reason that said transcript as offered did not purport to be nor was in fact a complete record.

(b) As to the conversation Senator Andrews had with Senator Cetone before leaving for the Chittenden Hotel to interview Smiley, the detective, and the declared attitude of Senator Andrews on the bill in question, is not, we think, a part of the res gestae of the case and was properly excluded.

(c) The testimony offered by the state to make out a prima facie case of conspiracy was in our opinion of sufficient weight as to justify the trial court in admitting the conversations had between Smiley, Diegle, Huffman and Cetone in furtherance of said conspiracy and that said court did not err in respect thereto.

III.

As to Proof.

It is urged by counsel for plaintiff in error that there was an entire- failure of proof to connect Diegle and Andrews with the crime charged; that Diegle was the agent of Detective Smiley and not Senator Andrews; that no proof was made of the carrying of messages between Smiley and Andrews.

We are of the opinion that the proof offered by the state is capable of the construction contended for by the state, and that under all the evidence submitted, the question was for the jury to determine whether or not Diegle aided and abetted Andrews in the solicitation and procurement of the bribe.

IV.

Entrapment.

It is strenuously urged that the record shows a ease of entrapment and that such entrapment bars the state from prosecuting for the offense so originated by entrapment. This proposition is founded upon alleged connection of the detective, Smiley, with the origin, detection and exposure of the ease at bar.

Briefly stated, the record discloses that two detectives, Arthur Charles Bailey and David H. Barry, of the Burns detective agency, were detailed early in April, 1911, to come to Columbus and investigate alleged bribery in the Legislature. This appears to have been done at the instance of the secretary of the Ohio Manufacturers’ Association. There is no evidence that the detectives were employed or brought to Columbus by any other authority, nor their expenses paid, or promised to be paid, by the state or county, or an officer of either.

Arriving in Columbus they were engaged for about two weeks in an investigation of this subject, and then departed. On or about April 24th, they returned, about which time a third de-' tective, P. H. Smiley, known as Harrison, arrived. On Tuesday, April 25th, a dictagraph was installed by the detectives in Room 317 of the Chittenden Hotel. A wire was attached .to this dictagraph to transmit conversations and extended to the receiver in Room 316 adjoining.

The prosecuting attorney learned of the presence of these detectives, and on Tuesday, April 25th, Roscoe R. Walcutt, an official court stenographer, was at the request of the prosecuting attorney installed in Room 316 to report said conversations.

On Thursday, April 27th, Rodney J. Diegle, now plaintiff in error, at the instance of Detectives Bailey and Barry, called upon Detective Smiley at Room 317, Chittenden Hotel, at which time it was arranged that Diegle should aid in securing a sufficient number of Senators to report out of the committee on insurance, the Cetone-Whittemore insurance bill then pending in the Senate. At this meeting were present Diegle, Harrison and Bailey. Diegle at this meeting promised to secure the necessary number of votes for this purpose at a certain stipulated price. He himself was to receive for his services $200, of which $50 was paid him .at the time in' cash, in marked bills. The names of the members of the state Senate to be involved were not given at this meeting. Shortly after 2 .o’clock of the same day, Diegle again called at said Room 317 and reported to Smiley the names. About 5:30 of the same day, two of the Senators whose names had been furnished by Diegle reported at said Room 317. According to the testimony of Detective Smiley, and the conversation as reported by the official stenographer taken over the dictagraph, the two Senators present accepted the promised money, $200 each, for their support in getting the bill out of committee, the money also being paid in marked bills.

After some difficulty in having Senator Andrews report at Room 317, Smiley, about 3 o ’clock p. m. the nest day, April 28th, and at the suggestion of Diegle, called at the Senate chamber to see Andrews. Failing to find the Senator, Smiley, who was known as Harrison, returned to the Chittenden Hotel and on his arrival was handed a note by the hotel clerk from Senator Andrews saying:

“Mr. Harrison, owing to a mistake I went to the Neil House and missed you. Am going to make a 4 o’clock train for Iron-ton, O., but will be back Monday.11 a. m. when you can see me.’’

Senator Andrews in his testimony, admitted writing the note. Shortly after the receipt of the note, Andrews, who had remained in the Chittenden Hotel lobby, was pointed out to Smiley. The latter introduced himself to the Senator and the two then went to Room 317, where according to the testimony of Smiley, and as reported over the dictagraph, the arrangements previously made by Diegle were confirmed, and $200, according to the testimony, was then paid Andrews by Smiley, also in marked bills.

, It also appears in the record that Smiley at the instance of Diegle had a telephone conversation with Andrews in relation to the arrangements Diegle had made, and which was previous to Andrews coming to the Chittenden Hotel.

Detective Bailey testified he said to Diegle on the way to the Chittenden Hotel, immediately prior to the first meeting between Diegle and Smiley:

“This man Harrison evidently had some money and I would look to Col. Diegle to see that I was taken care of. ’ ’

Bailey also testified that previous to any steps taken by Smiley toward interesting Diegle the latter had a conversation -with Barry and Bailey in the bar room of the Neil House when a telephone merger bill was the topic of conversation, and made the remark that some people are trying to put through a two million dollars proposition on a bottle of pop. While this conversation had no direct reference to the ease at bar, it is significant as tending to show a corrupt motive on the part of Diegle and in that respect has a bearing on the question of entrapment.

There are many other details, but the foregoing in substance is the case of the state, so far as it concerns the question of entrapment.

The testimony given by the official stenographer in reporting the aforesaid conversations taken over the dictagraph was by agreement of counsel on both sides permitted to go to the jury with the reservation that no names were to be mentioned in referring to Diegle and associates, but they were to be designated as a voice, second voice,.third voice, fourth voice and fifth voice.'

Counsel have.argued at length upon the proposition of entrapment and submitted many authorities in support of their positions, respectively. Notable among the line of eases cited by the Attorney-General and the prosecuting attorney on behalf of the state are the so-called decoy letter cases instituted and prosecuted by the United States Government. Grinnis v. U. S., 150 U. S., 604, Price v. U. S., 165 U. S., 311.

We think the case most clearly in point is the case of State v. Fox (unreported), from Meigs county. This resulted in a conviction in the trial court, was affirmed in the circuit court and afterwards presented to the Supreme Court which refused leave to file a petition in error. . The Fox ease may, therefore, be considered as .an expression of the Supreme Court on the law of entrapment in this state. The Fox case originated at the instance of the prosseeuting attorney, who invited Fox to his home where the alleged entrapment took .place, two witnesses being secreted in a.n adjoining room with a door partly opened between. Fox was interested in having certain criminal eases then pending against him continued and testified that his object in seeing the prosecutor was for the purpose of inducing the latter to consent to a postponement of the trial on the indictment. At this meeting and after said request had been made, the prosecuting attorney asked Fox, “What is there in it for me,” to which Fox at said interview later replies, “I have laid .away a thousand dollars”; the past tense indicating that this amount had been set aside for this purpose prior to his going to the prosecutor’s house.

In this case the question of entrapment was properly made in the trial court, and in the circuit court, and the conviction in effect affirmed by the Supreme Court. Following the authority so laid down, we are bound to hold in the case at bar that all the testimony. offered does not amount to such an entrapment' as would bar prosecution. The facts adduced in the Fox ease in our judgment .are much stronger in favor of the contention of entrapment than the Diegle ease under consideration, for in the case here it does not appear that the prosecuting attorney had anything to do with the bringing of the detectives to Columbus, and that his connection arose merely by the designation of an official stenographer to report the dictagraph conversations.

We have carefully examined the charge of the court on the subject of entrapment and' are of the opinion the law was correctly given.

Y.

Charge oe the Court.

From what has been said as to the scope of the indictment, -it would follow that the court properly refused special requests 3 and 4, which assumed to limit the charge to the mere delivery of messages and arranging of meetings.

Special requests 5, 6, 7, 8 and 9 were on the subject of entrapment and were properly refused.

Special request 12 was not appropriate to the facts of the ease and was therefore properly refused. There are quite a number of objections to separate and disconnected paragraphs • of the general charge, but when the charge is considered as an entirety, we are of the opinion there is not prejudicial error.

VI.

Comments by Counsel on Defendant's Failure to Testify.’

We have examined carefully the record as to the comments made by Mr. McGhee, assistant attorney-general, in his argument to the jury in speaking of the dictagraph conversation in which he reported to the court as having stated,

“That Rodney Diegle made that statement and the defense had the opportunity to deny it, and it stands uncontradieted."

While Section 13661, General Code, provides that the neglect or refusal of a defendant to testify shall not create a presumption against him, nor shall reference be made to nor comment made upon such neglect or refusal, yet we think what was said by counsel under the circumstances in referring to the defense and not the defendant, and the prompt instruction of the court to the jury to disregard the remark so made by counsel of what was said, and the ifnmediate and complete withdrawal thereof by counsel, does not constitute prejudicial error and furnish sufficient ground for reversal.

■VII.

Alleged Coercion of the Jury.

In respect to the alleged coercion of the jury in agreeing to a verdict,- we hold to the view that nothing was said by the court that might not properly be said in urging the jury to agree, nor was the length of time such as to indicate coercion. The law encourages the agreement of juries rather than disagreement and proper cautionary instructions to that effect may be given.

VIII.

Alleged Misconduct oe the Jury.

We have examined the affidavits of the jurors and of others as to misconduct of the jury and as to matters affecting their deliberations. We are of the opinion that much of the matter testified to is incompetent to be-shown by the .affidavit of a juror in opposition to his own verdict. But taking all that is properly shown, we think it is not sufficient to call for a new trial.

Considering the whole record, we are of the opinion that the evidence offered sustains the verdict, and we find no prejudicial error.

The judgment is, therefore, affirmed.


text:
    TRACTION CONDUCTOR. CAUGHT BETWEEN CAR AND BUILDING.
    Circuit Court of Lucas County.
    George W. Strang v. The Toledo Traction Company and The Toledo Railways & Light Company.

    Decided, February 24, 1908.

      Negligence — Conductor Injured While Obeying an Order — Whether He Acted with Prudence and Care a Question for the Jury — Construction to be Placed on the Order as Shown by Surrounding Circumstances — Error in Directing Verdict for Defendant.

    1. If by a fair construction of an order given by a superior to a servant, a person acting with ordinary prudence and exercising ordinary care would, under the circumstances, have considered it an unequivocal specific order to do a certain thing, the master can not escape liability for the consequences by showing that the order was open to another construction, and was not in fact intended to be understood as the servant understood it in acting, as he supposed, in obedience thereto.
    2. Whether the servant failed to exercise ordinary care in interpreting the order in the manner in which he did interpet it is a question for determination by the jury in the light of all the surrounding circumstances.

      G. A. Thatcher, for plaintiff in error.

      Smith & Baker, contra.
    Parker, J.; Haynes, J., and Wildman, J., concur.

       Dismissed in the Supreme Court, February 23, 1909, on motion of the Toledo Railway & Light Co., plaintiff in error, at its costs.

   George W. Strang was a conductor on one of the cars of the traction company in this city. On the 23d day of February, 1901, the ear upon which he was acting as conductor became disabled, and it became his duty to take it to the car barn, on Water and Monroe streets. There he and his motorman, Mr. Lorenz, left the car upon the street and proceeded over to the barn to take out another ear, which was in readiness for them and which they had been directed to take. As they approached the front of the car barn, the doorway from which the cars issue onto the street, the car which they were to board and manage was being brought out from the car barn onto the street by a Mr. Struck, who was a superintendent and who was the superior of Strang and Lorenz in authority. Mr. Struck was upon the front of the car, managing it, but it appears that there was no one at the rear of the ear to manage the trolley. As the car came out of the barn and came toward Strang and Lorenz, and while Strang and Lorenz were proceeding toward the car barn, Struck, on the front of the car, came near to where Strang and Lorenz had, for the time being, paused, and as the front of the car upon which Struck stood passed by Lorenz and Strang, Strang says that Struck, looking toward him, and, as he supposed, addressing him, said: “Look out for the trolley back there.” Lorenz states the matter in nearly the same way, but does not put exactly the same words into the mouth-of Struck; he says that the words used were: ‘ ‘ Take care of the trolley. ’ ’

There appears to be no dispute but what the duty of looking after the trolley and managing it — taking care of it — devolved upon the conductor, and that the duty to take care of this particular trolley on this ear did then, or would have soon thereafter devolved upon Strang. Strang seems to have understood the' direction, according to his testimony, as one to’him to proceed immediately to the rear of the car and to board it and take care of the trolley. In his third -amended petition, he says, among other things:

“It was necessary in the operation of the said car from said barn that some person should be at the trolley-rope so as to govern and control said trolley, so that no damage would be done to the overhead construction of the wires and other appliances belonging to the defendant company should said trolley-pole come off the wire.”

It appears that upon the utterance of these words by Struck, Strang proceeded into the door as the car was coming out. The ear was one of the larger patterns of ears used in the city. The door was wide enough — there was enough space between the side of the car and the side of the door, or jamb, to admit of Strang passing through and going to the rear of the ear, provided the track had continued straight out of the barn; but, after the front of the car had gone some distance from the barn, it began to turn toward the right — that is toward the right of Struck, who was upon the car managing it. It turned in a track which it had to follow in order to bring it into Monroe street. The effect of the car thus turning upon the track was to swing the rear end of the car toward the left, that is toward the side of the door where Mr. Strang had entered, and the construction of the opening, and of the doors that were swung open there was such, that when the ear swung in this way, it did not leave sufficient room for Strang to proceed upon his way toward the rear of the car. The operation of the car resulted in pocketing him there— it operated as a sort of a trap, so that he was caught between the rear end of the ear and the jamb of the door. As-the car was brought onto Monroe street and the rear end of the car came out. of the door, it left but a few inches between the jamb of the door and the rear end of the car and there Strang was caught and pinched — crushed, so that he sustained very serious injuries.

It is charged by Strang, the plaintiff and the plaintiff in error, that there was negligence on that occasion upon the part of Struck in thus directing him to look out for the trolley or to take care of the trolley; that Struck, his superior, was well acquainted with the situation and the conditions prevailing there; that Strang himself was unacquainted with the place and was not aware of the fact that the car continuing in this way would' be swung around in such, a way as to catch him between the car and the door jamb.

There are other grounds of negligence alleged in the petition, but this is the only one that we think the evidence tended fairly to sustain, and, therefore, it is the only one to which we will give attention.

After the evidence had been put in on behalf of the plaintiff, on motion of the defendant, the cause was withdrawn from the jury, or rather, the jury was instructed to return a verdict in favor of the defendant, which it did. Of this action Strang complains. The case is evidently founded upon the doctrine of what is known as the Sehelies ease, found in 61 Ohio State, at page 298. and we think the evidence tends to establish a case coming within the principles laid down in that ease.

It is true that the order to look out for the trolley, or to take care of the trolley, was not a distinct and unequivocal order to Mr. Strang to pass through that door at that time and to undertake to board the car; it was an order which, possibly, was not directed to him. Tt might have been, perhaps, intended as a warning to him to look out for himself that he might not be-injured by the trolley-pole; it might, perhaps, have been intended as a direction to some other person in that vicinity to look out for the trolley-pole, but under the circumstances, we think it was open fairly to the construction upon the part of Strang that it was an order directed to him to at once proceed to his duty to board the car and take care of the trolley. Whether it was so intended and whether it was so understood, were questions, we think, that under the'state of the case as it was submitted or as it stood at the time the plaintiff’s evidence was in, should have been submitted to the jury. The question whether Struck intended to direct Strang to proceed at once to board the car. which would have required Strang to attempt to pass through the door; the question whether it was so understood by Strang, were, in our judgment, questions to be submitted to the jury. If an unequivocal order is given by a representative of a company in authority, to one who is under him and subject to his order, that such servant shall proceed in a certain way, or that might be understood by the servant as an order to him to proceed in a certain way, if such order might be so understood by the servant without negligence upon his part, if in the exercise of ordinary care he might have so understood the order, then the servant may act upon the order and the employer will be responsible for the consequence, and the employer in that cas1 could not escape responsibility by showing that something else was intended. If, in other words, by a fair construction, an ordinarily prudent person, in the exercise of ordinary care under the circumstances, would understand the order as Mr. Strang seems to have understood it, and would have proceeded as Mr. Strang appears to have proceeded, then responsibility for the results can not be escaped by* showing that the order was open to another construction — that it was not in fact intended as the employe understood it; for the giving of such unequivocal order, under the circumstances, where harm might naturally follow from it, is of itself a kind of negligence.

We think the evidence tended to show' that this order wa" given, that it was given to Strang, that it w'as understood by Strang as he says and that a fair and reasonable interpretation of it would require the action upon the part of Strang that h • took upon this occasion, and that since the evidence’ tended to show all these things, there was a case which should have been submitted to the jury.

At page 10 of the record Mr. Lorenz, the motorman who worked with Strang, was asked this question: “What if any danger was there to the overhead construction if the trolley is not attended when coming out of the barn?” That was objected to and the objection sustained. The plaintiff excepted and offered to show' that there was danger of the trolley jumping the wire and tearing, down the overhead construction. We are not advised of the reason that moved the court to sustain this objection. It may be that there was something in the form of the question that seemed to be objectionable; it may be that it would have been better to ask what the effect would have been, rather than to ask what if any injury there would be; but, passing by questions of mere form, we have to say that we think th° witness should have been permitted to state the probable effect of inattention to the trolley while the car was being operated out of the barn, for it is alleged, as I have read, that the effect would have’ been, if the trolley had slipped off — as it was apt to do — that the overhead construction would have been destroyed. If that were shown, if it were shown furthermore, as it might have been, perhaps, that Strang knew this, it would go a great ways towards throwing light upon the question of what was meant by the direction to “Look out for the trolley,” and what was understood by Strang as his duty under such directions — in other words, if it were true that the trolley was apt to slip off and destroy the overhead work and do damage to the company’s property — if that were a • thing known to the superintendent who gave the direction and known to Strang, who may be found by the jury to be the person to whom the direction was given, then the jury might well find that it was not intended by that direction — was not fairly understood by Strang that he should simply stay in the position where he was until the car came out to him, allowing whatever might to happen to the overhead construction through inattention to the trolley; but the jury might from evidence of such conditions, find that it was intended and that it was understood by Strang that he should proceed immediately to the rear of the car and board it and take care of the trolley before the-trolley had reached the point where such damage' might result from inattention to it.

The judgment will be reversed and the cause remanded because of error of. the court in withdrawing the case from the jury and directing a verdict.


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    INSUFFICIENT GROUND FOR AN INSTRUCTED VERDICT.
    Circuit Court of Hamilton County.
    Alva Green v. C., L. & A. Traction Company.
    Decided, January, 1911.

      Negligence — Pony Cart in Collision with Traction Oar — Variance in Plaintiff’s Testimony.

    Variance in the testimony of a plaintiff on direct and cross-examination is not, taken alone, sufficient ground for a non-suit.

      Plaintiff, a fourteen year old girl, was injured by a collision with a car of defendant company while driving a pony cart in the village of North Bend. She claims permanent injury.

      T. E. Snyder and T. L. Michie, for plaintiff in error.

      Stanley Shaffer, contra.
    Smith, J.; Gteeen, P. J., and Swing, J., concur.
   While the evidence of the plaintiff in error upon the direct examination was in variance with that .given by him upon his cross-examination, yet we do not think this discrepancy would entitle defendant in error to a non-suit.

‘‘A motion to arrest the testimony from the jury and render a judgment against the party on whom the burden of proof rests, involves an admission of all the facts which the evidence tends to prove, and presents only a question of law for the court; but if there, is evidence tending to prove each material fact put in issue, and indispensable to a recovery, it should be submitted to the jury under proper instructions.” Dick v. Railroad Co., 38 O. S., 389.

So long as there is evidence tending to prove the whole issue the case should be submitted to the jury. Ellis & Morton v. Ohio Life Ins. & Trust Co., 4 O. S., 628.

As the court therefore erred in instructing the jury to return a verdict for the defendant in error at the close of plaintiff in error’s testimony, the judgment thereon is reversed and a new trial awarded.


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    VALIDITY OF CONVEYANCE BY AGED MAN.
    Circuit Court of Fairfield County.
    John Boyer v. John J. Boyer.
    Decided, September Term, 1911.

      Deed — Attack Upon, for Invalidity on Ground of Undue Influence and Mental Incapacity — Persuasion which is Not Illegal — Mental Capacity to Dispose of Property Sufficiently Shown, When — Bur- ■ den of Proof as to Presumptions Arising.

    1. As between an uncle who is advanced in years and a nephew who is young, no presumption of inequality exists, and the question whether undue influence was, exerted over the uncle whereby he was induced to make a conveyance of property to the nephew is a question of fact to he determined from the circumstances of the case.
    2. Fair argument or persuasion, or appeals to .the conscience or sense of justice of a grantor, especially where made by one having a claim upon his bounty or sense of justice, does not, if such persuasion is fairly made, lay a foundation for vacating a deed executed as an apparent or possible result of such persuasion.
    3. Where incapacity on the part of a grantor to execute a deed is charged, and the conveyance was itself reasonable and proper, the burden is upon the one assailing the transaction to show incapacity at the time the deed was executed; and where the testimony, shows that the grantor selected the notary whom he desired to draw the deed and gave him instructions as to what he desired to have done, and when the deed was ready for signature himself discovered that a life estate had not been reserved as he had directed, and this omission having been supplied he executed the deed and gave directions that it be placed on record, and its execution seems to have been in accordance with a purpose of the testator to make a testamentary disposition of the property in question, the deed will not be set' aside on the ground of mental incapacity or the feebleness of old age.

      Lane & Daugherty, for plaintiffs.

      Davidson & McGleary, contra.
    Voorhees, J.‘; Shields, J., and Powell, J., concur.
   This action comes into this court on appeal. The object of the plaintiff’s suit is to set aside a deed made by John Boyer to the defendant, John J. Boyer, on the 13th day of April, 1909. The grounds on which it is sought to set aside the deed are—

First. That the grantor, John Boyer, at the time the deed was made, to-wit, on April 13, 1909, was suffering from severe illness and was so greatly enfeebled, physically and mentally, because of his age — he then being of the age of seventy-four years — that he was mentally incapable of transacting ordinary business, or the execution and delivery of any deed of conveyance of his real estate.

Second. That the defendant, intending and contriving to cheat and defraud the said John Boyer out of his farm, and without paying any valuable consideration therefor to the plaintiff or any other person for him and by the undue influence of the defendant and others in his employ, procured from the plaintiff a deed of conveyance in fee for his farm, and immediately thereafter caused said deed to be filed for record' with the recorder of Fairfield county;'.

Third. That, at the time of the execution of said deed, the plaintiff, did not know or understand the nature, of his act in so making said deed, or the contents of the same, or that he was then parting with the title to his farm; but, by the undue influence of the defendant and others in his employ, when the plaintiff was'incapacitated,, as the defendant well knew, the' plaintiff was induced-, to execute said deed to the defendant, and he, the plaintiff, was then overcome by undue persuasion, entreaties, and arts of the defendant and fraudulently coerced into signing said deed.

The case was tried in. this court on the testimony taken in the court below, and by'agreement, of the parties, the transcript of the testimony so taken, was submitted to the ..court-on behalf of the respective parties-,-plaintiff'and defendant, the same-as if the; witnesses were 'offered and examined in open court. - :Said transcript and evidence offered by both parties fin thé trial, was all the evidence in the case.

One of the contentions of the plaintiff is that, from the reía-. tionship existing between the plaintiff and the defendant, at the time the deed was eiecuted, an undue influence over the plaintiff by-the defendant is-presumed to-exist. The plaintiff-was :the untóle of the'defendant, and-when the defendant was about-nine, years o-f. age, :th,e uncle took the defendant into, his family,- as'.a-member thereof, - where he-, lived until- he was a- man of-.' about twenty-two years of age and upwards, when the defendant .married and moved upon a farm of his own. The uncle never married and had no relatives other than brothers and sisters,' ahdchildren of deceased brothers and sisters. The uncle and the defendant always‘sustained friendly relations toward each other.

To state the contention of the plaintiff more concisely, it is claimed that, where such relationship does exist, and a grantor is partially incapacitated by age, physical and mental infirmaties, and the' deed is without valuable consideration, the burden is upon the grantee to show affirmatively that the grantor clearly understood the -nature and effect of the transaction, and voluntarily executed the instrument. "

It is true the law presumes, in the case'of guardian and ward, trustee and cestui que trust, attorney and'client, physician and patient, that their situation is unequal, and that relation appearing, itself throws the burden upon the party occupying such position of trust, in dealing with the trust, or the beneficiary thereof, to prove the fairness of his dealing. But the law does not presume fraud of undue influence from the fact that one party is' old and an uncle, and the other is a nephew and young. The question as to parties so situated is a question of fact dependent upon the circumstances in each case. There is no presumption of inequality either way from these relations merely.

We think, in this case, there is convincing proof of facts and circumstances which show that when the deed in question here was executed and delivered, the grantor, John Boyer, was not misled by reason of,any confidential relations existing between himself -and the grantee, John J. Boyer, nor was there any act done by the grantee, tending to show that the deed did not ex-press the grantor’s intention at the time he executed and delivered it.

It is' contended on behalf of the plaintiff, that he was, by undue persuasions, entreaties, and practices, used by the defendant and others, coerced into signing said deed.

This the defendant denies, and the proof shows, that on the ' day. the deed was made to Elizabeth Looker, the ¡iefendant had a conversation with his uncle, in which he said to his uncle:

“Uncle John, while you are making this deed for Mrs. Looker, don’t you think it would be no more than right that you should do something in like manner for me ? ’ ’

The plaintiff says, “What is it yon want?”

“Why,” he replied, “make me a deed for this farm,” meaning the farm here in question, and the one on which the plaintiff resided. '

Plaintiff said, “No;, that is.entirely too much.”

When the defendant said to him, “Do as you see fit and I will be satisfied.” .

The record shows that, at the same time this conversation occurred, the plaintiff and the defendant were on the porch at the plaintiff’s home, when the defendant made the suggestion for the plaintiff to do as he saw fit, etc. The plaintiff said, “Ask Mrs. Looker to come out.”

She was called, and the defendant repeated what he had Defore said to his unclé, viz.:

“ While you 'are making the deed to Mrs. Looker for that farm, I don’t think it would be any more than right that you should do something' in like manner- for me.”

Mrs: Looker said, “Yes; I think you ought to favor him and' his sister Wilda both.” The plaintiff made no reply.

This transaction is given and urged as tending to show undue influence- and coercion - practiced by the defendant and Mrs. Looker, in procuring the deed from the plaintiff for the farm here in question.

Courts of equity will not vacate a deed obtained by means of influence' and importunity, unless it has been unduly or improperly exercised.' Pair argument and persuasion or appeals to the conscience or sense of duty of the grantor, especially by those having claims upon his justice or his bounty, if fairly made, lay no foundation for vacating a deed, although the grantor would not have made the deed but for such appeal, argument, or persuasion. Truman v. Lore, 14 O. S., 144-145.

The record shows that the grantor, John Boyer, made the deed in question, to the defendant, voluntarily and for reasons satisfactory to himself, and there is no evidence in the case that there. was influence or persuasion used, either by the defendant or Mrs. Looker, to induce the making of the deed, other than what has been hereinbefore stated, and after the deed was executed and delivered, the plaintiff then stated that he had done what he had wanted to do for some time, that one reason he had for making the deed to the defendant was that he desired the farm in question to remain in the “Boyer” name, it having been in the Boyer name for nearly a hundred years.

We find, as a fact, that there was no undue influence used by the defendant or any other person, to induce the plaintiff to execute the deed in question in this ease, and there is no evidence tending to prove fraud or undue influence, at the time of its execution and delivery, April 13,. 1909, but that the act was the free and voluntary act of the grantor, John Boyer.

This eliminates from the case the charge of fraud and undue influence, and leaves the question that the grantor, John Boyer, at the time he executed the deed, was mentally incapaeited for the transaction of ordinary business. There is nothing better settled in law than that, in the .absence of fraud or undue influence, mere weakness of intellect, resulting from sickness or old age, is no ground for setting aside an executed contract, providing the contracting party was capable of understanding, in a reasonable manner, the .nature of the particular affair in which he participated. The rule of the measure of the grantor’s capacity in such a case is simply that he understand, in a reasonable manner, the nature and effect of what he was doing. The burden of proof is upon the party assailing the act, to show the incapacity at the time the act was done.

The evidence of incapacity proffered must relate to the time. of the factum, or act done, either directly or when taken in connection with other evidence in the case. In other words, when the act is reasonable and proper in itself, the burden is on the party assailing the contract to show the incapacity at the time the act was executed. Tested by this rule, the evidence in this case is conspicuously feeble. There is nothing in the -evidence tending to prove insanity in the ordinary and popular sense. Taken at its strongest, the most that could be claimed for the evidence for the plaintiff is that it proved some mental and physical weakness resulting from old age and sickness.

At the time the deed in question was executed, the grantor selected the notary public to transact the business for him and to write the deed in question, giving instructions as to what he wanted, and after the deed had been written and either read to him or submitted for his inspection, he discovered that it was not in accordance with, his instructions, in this: that he desired and intended to reserve a life estate in the farm, but, either inadvertently or otherwise, when it was written -by Mr. Lane that condition was omitted, and the old gentleman called attention to the fact, and had the reservation of his life estate incorporated into the deed, and after that was done, the deed was executed and delivered to the grantee, the defendant, John J. Boyer. The old gentleman suggested and instructed the defendant, as well as Mrs. Looker, to whom he had made a deed on the same day, to have them recorded. This, in connection with other business matters that he had directed and planned for on the day the deeds were made, conclusively shows to the minds of the court that, at the time this deed was made, the grantor had mental capacity to transact ordinary business. We think, in this case, the deed is in the nature of a testamentary disposition of property, and it was carrying out what he had intended and had in contemplation for some time before the deed was executed.

Coming more directly to the question of his mental capacity, and believing the rule does not require that high degree of capacity, that a man’s memory must be just as perfect as it ever was, or his physical ability as good as it was in former years; he may be feeble in mind and body, so that he will not be able fully, at all'times, to comprehend his situation or surroundings, nevertheless, when it comes to the question of capacity and to the disposition of his property, a subject upon which he may have reflected much when in full vigor of mind and body, these failures of memory and infirmities of age are not sufficient to overcome the principle that he has the right to dispose of his property in any way he may wish or deem best.

If this is the correct test of capacity, we think there is no evidence whatever in this case to show that Mr. John Boyer, when this deed was made, had reached a condition of mental weakness that incapacitated him from making the disposition of his property that he did make to his nephew, the defendant herein.

If the old gentleman had mental .capacity sufficient to transact ordinary business, and we find as a fact that he had, and was free from restraint and undue influence, which we also find as 'a fact, then he had the right to make such disposition of his property as he thought proper. He is not required to make unequitable disposition of his estate among even the objects of his bounty. He may, if he chooses, exclude his children, or divide his estate among them unequally. The question in all eases is, was the act the free act of a competent party?

There is one further circumstance in this case that is deserving of notice. It is contended by the plaintiff that the grantor was laboring under a delusion of some kind, evidenced by his claiming that he had been in communication with his dead relatives at -night, and, therefore, this delusion tended to show his unfitness to transact ordinary business. It will be observed that it was not claimed that these supposed eommunciations with the spirit world -had any influence on him in making the disposition of his property that he did make. That is, it is not claimed that the spirits had directed him or had influenced him in making the deed or dee'ds that he made on the 13th day of April, 1909, or that, by reason of the delusion, he did what he otherwise would not have done, excepting for such delusion.

“Delusions can scarcely be regarded as evidence of general insanity, and when the evidence of them is opposed by other evidence tending to prove the general competency of the person whose -mind is in question, to tend to his own affairs, and to dispose of them with sagacity or at least in obedience to the free impulses and motives of his own. mind, his contracts and his dispositions of his property, testamentary or otherwise, must be treated as valid, unless connected in some way with his insane delusions.” Hemmingway Est., 195 Pa., 291 (78 A. S. Rep., 815); Lucas v. Parsons, 71 Am. Dec., 147; Maynard v. Tylar, 168 Mass., 107; Rice v. Rice, 50 Mich., 448; Hollinger v. Syma, 47 N. J. Equity, 22.

Without pursuing the discussion further, the court is of the opinion that, at the time the deed to the defendant was executed and delivered, John Boyer was mentally and physically competent to transact ordinary business, including the act of making and delivering a deed for any portion of his estate, and that he, at the time he made such deed, was not under undue influence or restraint, nor was there any fraud practiced upon him by the defendant in securing said deed.

Therefore, the judgment of the court is in favor, of the defendant, with costs, and that the petition- be, and it is hereby, dismissed.


text:
    STREET IMPROVEMENT ASSESSMENTS.
    Circuit Court of Franklin County.
    City of Columbus v. Sarah Schneider et al.

    Decided, January 21, 1895.

      Assessments — Adjudications as to Validity of Street Improvement Assessments Are Res Adjudicata, When — -Former Action No Bar, When — Questions a>s to Validity of Act under which Improvement Was Made, and of Applicability of Statute of Limitations — Sections 2286 and 2281, Revised Statutes.

    1. Actions brought .by the p-roper parties against a municipality to enjoin the collection of a street improvement assessment, where submitted on the issues and decided against the plaintiffs by the upholding of the assessment, amount to a conclusive adjudication of the validity of the .assessment, in an action brought by the city against other parties to enforce the collection of assessments against other property for said improvement.
    2. An action brought by one person against others on promissory notes and to foreclose a mortgage, in which the city was made a party defendant and in which there was a determination of the question of the right of the city to enforce a portion of such assessment assessed against that part of the frontage which after the improvement had been made was devoted to streets, when decided in favor of the city on demurrer can not be interposed as a bar to an action by the city against other parties to enforce collection of assessments for said improvement.
    3. Under a petition to enforce the collection of assessments for a street improvement setting up that theretofore in a proper proceeding, before a proper tribunal and between the proper parties, the claim set forth was adjudged to be a lien upon the premises described in the petition and that it is unpaid, no question can arise on de- . murrer as to the validity of the act under which the improvement was made or as to the application of the statute of limitations.
    Appeal irom the Court of Common Pleas of Franklin County.
    This action was brought by the city of Columbus against the plaintiffs in error, the owners of real estate described in the petition,'to enforce the collection of an assessment for the improvement of North High street in said city, and to foreclose an assessment lien as authorized by Sections 2286, 2287, Revised Statutes, and other sections. The street was improved under provisions of law, commonly known as the “Penn Act.” 72 O. L., 153; Section 2336 et seq., Revised Statutes.
    The agreed statement of facts shows the following:
    The city of Columbus is a municipal corporation of the first grade, second class, duly organized under the laws of Ohio. On March 30, 1875, the General Assembly passed a law known as the “Penn Act” (72 O. L., 153; Section 2336, et .seq., Revised Statutes), providing for the improvement of streets and avenues in cities of the second class, • and the act had application to the city of Columbus. • On June 7, 1875, owners of real estate abutting on North High street petitioned the city council of Columbus for the benefits of the act of March 30, 1875, and that North' High street might be improved in accordance with the provisions thereof. Oh June 21, 1875, the city council did grant the prayer of the petition of the property owners, and did pass an ordinance providing that the roadway should be graded, paved and curbed, under the provisions of the act of March 30, 1875, and provided for the election of five commissioners to control and superintend the improvement under the provisions of that act, and did designate certain owners of property to fix the time and place of holding an election for commissioners, and to act •as officers of such election. On July 27, 1875, the persons designated by the ordinance were duly qualified as judges and officers to conduct the election, and fixed the time of holding such election as July 29, 1875. In pursuance of that notice, an election was duly held as required by law, and within ten days thereafter, the officers of said election returned to the city clerk a list of the voters at the election, the ballots cast and the number of votes east for the persons voted for and their certificate, duly certifying to the election of five commissioners therein named. Sections 3 and 4, 72 O. L., 153, 154; Sections 2338-2342, Revised Statutes.
    Each of the commissioners so elected, within ten days after their election, met as required by law and elected one. of their number as president and a secretary5 and duly organized and accepted said office as commissioners, and did determine the kind and description of pavement to be used, and did make and enter into contracts, in the name of tbe city of Columbus, for furnishing the material, grading, curbing and improving the roadway of said street, and did superintend and control the work during its progress. Section 6, 72 O. L.', 154; ■ Section 2346, Revised Statutes.
    When the improvement was completed the commissioners ascertained the cost of the improvement, and caused a plat of the street to be .prepared, showing the separate lots of ground fronting or abutting thereon and the names 'of the several owners and estimated the cost of the improvement, but refused to assess the cost upon the abutting real estate. Thereupon the city of Columbus caused mandamus proceedings to be instituted in the Supreme Court of Ohio against the said commissioners to require and compel them to complete the apportionment and asessment in accordance with the terms of said act, and on the hearing of that cause, mandamus was duly .awarded, requiring the commissioners to complete their apportionment and assessment as prayed for, as appears from said cause as reported in the case of State, ex rel, v. Mitchell, 31 Ohio St., 592.
    In compliance with the commands of the decree in the Mitchell case and of the said act of the General Assembly, the commissioners did complete said apportionment and assessment and filed the same with the city clerk, and did deliver a copy of said plat and schedule to the auditor of the county in which said city is situated, as required by law (Section 17, 72 O. L., 156; Section 2357, Revised Statutes). The cost and apportionment of said assessment, when made, was the sum of $7.17 2-10 per foot front on each side of the street so improved.
    The assessment was duly placed upon the duplicate of the county,' and became payable at the office of the county treasurer in seven equal installments, with interest at seven per cent., upon the unpaid portion thereof. The first installment, with interest on the whole amount at seven per cent., became due and payable at the semi-annual payment of taxes, falling due after August 1, 1876. The others fell due annually thereafter, with interest on the installments not due at the time, until all fell due and became payable. Section 18, 72 O. L., 156; Section 2358, Revised Statutes.

      At the time North High street was improved and the assessment made, Margaret E. Patterson was the owner in fee simple of a parcel of land described in the petition in this case, with a frontage of 265 feet. At the time the street was improved Anna M. Woodruff was the owner in fee simple of a parcel of land, fully described in the petition in this case, abutting on the street so improved, and with a frontage of 363.83 feet. Prior to October 16, 1883, George Williams became the owner in fee simple of the two parcels of land owned by Margaret E. Patterson and Arma. M. Woodruff aforesaid as their grantee, and subdivided the same into city lots and designated the addition as “Mt. Auburn addition to the city of Columbus, Ohio. ’ ’ At the time Williams became the owner of the Patterson land he made, executed and delivered to Patterson a mortgage securing part of the purchase money, that appears of record prior to the plat of subdivision. Afterward Williams conveyed to William H. Turn's lots Nos. 56, 57, 58, 59, 60, 61, 62, 104 and 105 of Mt. Auburn addition, all of which lots front and abut on North High street, and have a depth of 187% feet. Lots Nos. 56, 57 and.the back corner of 58 fronting on High street -for a distance of 117.88 feet, were platted from the lands belonging to Margaret E. Patterson, and lot No. 58, excepting the corner off the back part thereof, and lots Nos. 59, 60, 61, 104 and 105, fronting on High street for a distance of 383.40 feet, were platted from the lands belonging to Anna M. Woodruff.
    On February 16, 1890, William Ii. Innis died testate and his last will and testament was duly admitted to probate, and Adam G. Tunis was duly appointed and qualified as his executor and entered upon the discharge of the trust. By the terms and provisions 'of that last will and testament, the plaintiffs in error became the owners in fee simple of the lots so owned by their father.
    On July 15, 1875, Anna M. Woodruff commenced an action in the Court of Common Pleas of Franklin County, Ohio, against the city of Columbus et al, and on December 16, 1878, Margaret E. Patterson commenced an action in the same court against the city of Columbus et al.
    In Woodruff v. Columbus et al, the petition shows the passage of the ordinance under which North High street was improved; that the improvement was made under the "Penn Act” (72 O. L.; 153), the rate of the assessment per foot front and the aggregate amount of the assessment; that she was the owner of the real estate against which the assessment in controversy rests, and asserted that the assessment was wholly invalid, „for reasons in her petition stated. After the decree was entered in that ease, it was appealed to the district court, and on March 3, 1884, the case with others was referred to a master commissioner who was directed, among other things, to ascertain "which one or more of said plaintiffs in the several actions signed the petition to the city council of Columbus for the said improvement of said High street under the act aforesaid.” Upon hearing of that ease before the master he made findings, in substance, as follows:
    "The following plaintiffs signed the petition to the council for the improvement of said street: Anna M. Woodruff, Z. F. Guerin. * * * Said several plaintiffs are liable for the assessment upon the said lots of land owned by them respectively. ’ ’
    Upon the consideration of that report, the court made.entry as follows:
    "And it is by the court ordered that said report of the master, as hereinbefore modified, and all the matters and things therein contained be and they are hereby approved and confirmed and that the findings of said master, as hereinbefore modified, do stand as the findings of this court, to each and all of which orders the plaintiff excepted.
    "And the court find upon the same issues joined, that the equities are with the defendants, to which finding the plaintiff excepted. It is, therefore, ordered, adjudged and decreed, that the petition of the plaintiff herein be and is hereby dismissed. ’ ’
    In Patterson v. Columbus et al, the petition shows the passage of the ordinance under which North High street was improved, and that the improvement was made under the "Penn Act” (72 G. L., 153, Section 2336, et seq., Revised Statutes), the rate of the assessment per foot front, the aggregate amount of the assessment, and that she was the owner of the parcel of land on which the assessment rests, that is in controversy in this case, and asserted that the assessment was wholly invalid for reasons in her petition stated.
    At the April term, 1884, the case was referred, with other cases, to a master commissioner for the purpose, among others, of finding which one or more of the plaintiffs petitioned the city council for the improvement of High street under the act of March 30, 1875. Upon a hearing of the case before the master he did find and report, among other things, as follows:
    “The following named plaintiffs signed the petition to the council: * * # Margaret E. Patterson. * * * The undersigned finds that the said several plaintiffs who signed the petition to the council for the improvement, or whose grantors' signed said petition, are liable for said several assessments upon1 the land owned by them respectively. Also that said several plaintiffs voted at the .election for commissioners, or whose grantors voted, are liable for said assessments upon the land owned by them, respectively.”
    Upon the consideration of that report, the court made entry as follows: . . .
    “It is by the court ordered, that said report as hereinbefore" modified, and all the matters and things therein contained be,1! and they are hereby approved and confirmed and that the find-, ings of the said.master,.as hereinbefore modified, do stand as.the: findings of the court. '* * *
    “ It is considered, adjudged and decreed by the court that the: assessment mentioned'in the'petition', on the property described'' in the petition for the improvement of North High' street- is 'a" valid and subsisting lien on said premises, and that the' petition of said plaintiff herein be and is hereby dismissed at -the costs-of said plaintiff. ” . > /
    On May 7, 1885, Margaret E. Patterson commenced an action' against George Williams, Jr., William H. Innis et al, in the Court of Common Pleas of Franklin County,'-Ohio, to recovén judgment on two certain promissory notes made by George Williams, Jr., and to foreclose a mortgage securing the same.
    On September 25, 1885, -Patterson filed an amended petition herein, in- which- she asked judgment against Williams, and for a decree and order of sale, foreclosing ’the purchase money mortgage from Williams to her, that is hereinbefore referred to.
    On June 6, 1885, William H. Innis filed his. answer and cross-petition in the ease last mentioned, in which he sets forth a certain indemnity mortgage that was executed and delivered to him> by George Williams,'- Jr., indemnifying-him against loss ón ac-' count of the North High street assessment resting upon lots then' owned by Williams, and then conveyed by him to William IT. Innis, asking for a foreclosure of the same and for other relief.
    On April 9, 1886, George Williams, Jr., filed his answer and cross-petition, joining issue with William IT. Innis, on his answer and cross-petition.
    After the death of William H. Innis the case was revived in the name of Adam G. Innis,- as executor, and on October 16, 1891, the cause-was submitted to the court upon the issues joined between the defendants, William TI. Innis and George Williams, Jr., and the court did find that on February 26, 1884, Williams, then being the owner, conveyed to William TL Innis lots 56-61, 104 a.nd 105 of Mt. Auburn addition-and that said deed of conveyance contained covenants of general warranty, and that the premises were clear and free from all incumbrances whatsoever.. Prior to the date of said conveyance North High street, on which said lots abut, had been improved and the costs and expenses thereof assessed upon the abutting property, attaching as a lien on August 1, 1876, and among other parcels, the assessment attached upon lot No. 10 of Chaffee’s subdivision, being the same-parcel theretofore owned by Margaret E. Patterson, and also a certain other tract of land abutting on High street with a front-' age of 383.46 feet, theretofore owned by Anna M. Woodruff. Both of the parcels enter into and make a part of lots Nos. 56-61. 104 and 105 of Mt. Auburn addition. And in-order-to indemnify the said Innis against loss, Williams'had executed and delivered to Innis a mortgage deed .alluded to in the answer and cross-petition of Innis, and then proceeded with a finding in the following language:
    "The court now finds that said assessment, commonly known as the ‘North High Street Paving Assessment,’ did attach as a lien on said lots so conveyed by the defendant, George Williams, Jr., to William H. Innis, and that no part of said assessment has been paid, and there now stands on the tax duplicate of Franklin county, Ohio, charged as an assessment against a portion of said lot 10 in Chaffee’s subdivision, of which lots 56-57. of George Williams, Jr.’s, said subdivision form a part, the sum of $1,263.68, with seven per cent, interest thereon from .August 1st,' 1876,' to' October 16th, 189Í, amounting to $1,345.-07, making a total of $2,608.75. And on said parcel taxed in the' name of-Anna. W. Woodruff-aforesaid, of'which parcel said'lots Nos. 58, 59, 60, 61, 104 and 105 of George Williams, Jr..’s, subdivision aforementioned form a part, tbe sum of $2,752.60, with 7 per cent, interest thereon from August 1st, 1876, to October 36th, 1891, amounting to $2,930.37.
    ‘'The total amount of said assessment, with interest, now standing on the tax duplicate, amounts to the sum of $8,291.72, no part of which has been paid.”
    To pay for said improvement the city of Columbus, on the 1st day of August, 1876, issued bonds and converted the same into money, and from the proceeds thereof paid the costs and expense of the improvement the city to be reimbursed out of the assessment.
    No part of said assessment on the lands in controversy has been paid. ■ ! . ; '
    Stewart, J.; Shatjck, J., and Shearer, J., concur.

       Affirmed by .the Supreme Court, without opinion, Schneider v. Columbus, 54 Ohio St., 644.

   This case has been submitted to us upon an agreed statement-of facts and the pleadings, and the only questions remaining to be determined are:

First. Were the decisions made in the case of Woodruff v. Columbus and Patterson v. same, adjudications upon the issues presented, and .

Second. Was the decision in the case of Patterson v. Williams an adjudication against the city, which precludes its obtaining a judgment here.

The question as to the statute of limitations set out in the an-' swer and the rights and privileges of the parties under the ‘‘Penn Act,” as that act has been construed by the Supreme Court, were examined by us and decided upon the demurrer tc. the petition and we are still of the opinion that they do not constitute any defense to plaintiff’s claim.

As to the first question: Both these cases- were brought to restrain the treasurer from collecting these assessments and the-final entries show, not a dismissal of the action, but a submission upon the issues, a finding against the plaintiffs and a dismissal of their petitions. This was an adjudication and being unreversed, is conclusive.

As to the second question: Nowhere in the suit of Patterson v. Williams was the validity of this assessment challenged except in the supplement and amendment of George Williams, Jr., to his answer and cross-petition, filed November 28, 1887, and in that only as to the right of the city to enforce that portion of the same, assessed against the portion of the frontage, which after the improvement had been devoted to streets. For the purpose of testing this question and this question only, the city was made a party and its demurrer to this question was sustained. On the other hand, Williams, the grantor of Wm. H. Innis, and Wm. H. Innis, the immediate ancestor of these defendants, averred its validity and called upon the court to order the same paid, though contending as to who was responsible for its non-payment ; and in its finding made on the cross-petition of said Innis, the court expressly' held it to be 'a valid and subsisting lien on these lots, stated the amount of the same, and granted to said Innis an order of sale upon the mortgage given.by Williams.to him to indemnify him against this very assessment, and property to the amount of over $1,400 was sold under that order.

This'wás an-adjudication in favor of the lien rather than against it.

As it is nowhere claimed in the record that any part of this assessment has been1 paid it follows that the plaintiff is entitled-to a decree for the amount of the same and an ord&r to sell the premises in case of non-payment.

The tax duplicate shows the following amounts as due: lot 56, $1,312.35; lot 57. $823.54; lot 58, $823.54; lot 59,'$'823.54; lot ,60, $823.54; lot 61, $533.43; lot 105, $823.54, and lot 104, $1,349.75; total, $7,313.23.

As these figures áre different from those set out in the petition theymay be subject to correction.

The petition -also claims that five per cent, penalty should be added, but as no authority has been cited for making this addition; we will not decide whether it should attach or not, until counsel have an opportunity to express their views. The decree will he for the plaintiff in conformity to the foregoing decision.