author: Jones (Oliver B.), J.

text:
    SOLICITATION OF OLD CUSTOMERS BY A VENDOR OF GOOD-WILL.
    Court of Appeals for Hamilton County.
    The Levy Overall Manufacturing Company, Samuel Levy, William Levy, David Levy and Harry Hoemelle v. The Crown Overall Manufacturing Company and Margaret Walker.

    D'ecided, January 24, 1916.
    Good Will — Restrictions on a Vendor Who has Organized a Competing Business — Must Not Mislead Customers of the Old Business into the Belief that he Has Succeeded Thereto — Old Rule Still in Force in Ohio Against Appropriation of Good-Will Which Has Been Sold.

    The vendor of the good-will of a business may be enjoined from soliciting the trade of known customers of the old firm, or from improperly using his knowledge of the old business for the purpose of attracting customers to his new business, notwithstanding he retained the right to engage in such new business.

      Lawrence Maxwell, Cohen, Mack & Hurtig and Joseph 8-Graydon, for plaintiffs in error.

      Harmon, Colston, Goldsmith & Hoadl/y and Oscar Berman, for defendants in error.

      Cohen, Mack & Hurtig, for Margaret Walker.

       Affirming Crown Overall Mfg. Co. v. Levy Overall Mfg. Co., 16 N.P. (N.S.), 561.

   Jones (Oliver B.), J.

Plaintiffs in error seek to reverse the judgment of the Superior Court of Cincinnati granting a permanent injunction against them and awarding $15,000 damages to defendant in error the Crown Overall Manufacturing Company.

The parties agree that an extensive business in the manufacture and sale of overalls had been carried on by Oscar Berman and Samuel Levy as partners under the name of Berman and Levy and the Crown Overall Manufacturing Company. That the partnership was dissolved .by consent, Berman buying the entire interest of Levy including specifically the good will of said partnership, the value paid for Levy’s one-half interest in this good-will being $15,000. The good will thus sold and conveyed was the good will of the business with all that imports, not merely the right to use the partnership name, occupy the old quarters or advertise as its business successor.

The facts of the case are well and fully stated in the opinion of the court below, which is reported in 16 N.P.(N.S.), 561.

Counsel for plaintiffs in error strenuously insist that the ruling of the court below in regard to soliciting the patronage of old customers is in direct conflict with the decision of the Supreme Court in Brass & Iron Works Co. v. Payne, 50 O. S., 115. They rely particularly upon the following language found in the opinion of Judge Spear, at page 118:

“He may carry on a like business in the immediate vicinity, and may solicit the patronage of old customers, both by advertisement and private solicitation, so long as he does not mislead customers into the belief that he is carrying on business as the successor of the old firm, but this does not involve an appropriation of anything which he once possessed, but has, for a valuable consideration sold.”

This language was held by the trial judge to be obiter dicta and not binding as an authority in this case. To throw all the light possible, therefore, upon that case counsel for plaintiff in error have secured from the Supreme Court files and furnished to this court a printed copy of the record and of the brief in behalf of plaintiff. A careful examination of these show that the .object of that suit was to enjoin the use of the old firm name, by the retiring partner, and to enjoin him from representing himself in his new business as the successor of the old firm. As stated by Judge Spear in 50 O. S., at page 117:

‘ ‘ The single question of law presented by the record is whether or not, where a partnership is dissolved, one partner transferring to the other all his interest in the firm business and assets, with the understanding that the others are to- succeed to the business of the old firm, and carry it on at the old stand, but not to use the old firm name beyond a specified time, the retiring member can lawfully use that name in a similar business thereafter carried on by him in the vicinity.”

The result of the decision in that case was (p. 119):

“A perpetual injunction, restraining the defendant from using, in his business at Fostoria, the name of Walter S. Payne & Co., and from holding himself out as the successor of said firm of Walter S. Payne & Co.”

The law of the case on this point is embodied in the second clause of the syllabus

“Of this good will is the firm name; and where the contract of sale reserves to the retiring partner no rights with respect to the firm name, he can not lawfully use it in a busines of a like kind, carried on by him in the vicinity subsequent to such dissolution. ’ ’

The rules of the Supreme Court provide that the points decided shall appear in the syllabus. Rule VI of these rules has remained the same from 5 O. S. through 82 O. S. Statements made by a judge in his opinion by way of argument or illustration, not called for by the issues of the case to be decided, do not become authoritative. 11 Cyc., 755; Cohen v. Virginia, 6 Wheat. (U. S.), 264, 399; Carroll v. Carroll, 16 How. (U. S.), 275, 287; Pollock v. Former's L. & T. Co. 157 U. S., 429, 574; Love v. Miller, 53 Ind., 294, 299.

In Pioneer Trust Co. v. Stick, 71 O. S., 459, 466, Judge Spear himself in giving the opinion of the court said':

“The syllabus controls, even though the expression of the judge should be thought to indicate a state of mind favorable to the contention of counsel upon a question not before the cour-t.”

The language used by Judge Spear in 50 O. S.,.at 118, quoted and relied on by counsel for plaintiffs in error here, is no doubt based upon an interesting note written by the editor, found appended to the ease of Berganini v. Bastian, 48 American Report, 216. This ease was cited and relied upon in the brief of plaintiff in error there. This note commences at page 223 and discusses the leading English cases on the subject of good will, beginning with Labouchere v. Dawson, L. R. 13 Eq., 332 (1872), and ending with Pearson v. Pearson, L. R. 27 Ch. Div., 345 (1884), and summing up with three general rules found on page 232, which appear to be drawn from the last named case. The case of Pearson v. Pearson, which discredited Labouchere v. Dawson, has since been overruled by the House of Lords in the case of Trego v. Hunt, L. R. Appeal Cases. (1896), page 7.

While we agree with counsel for plaintiffs in error that if the rule of law in this state had been established by our Supreme Court based upon that found in Pearson v. Pearson there would be no justification in any inferior court to disregard that rule because Pearson v. Pearson has been in turn overruled by Trego v. Hunt, yet we can not concede that the ease of Brass & Iron Works Co. v. Payne, 50 O. S., 115, established the rule of Pearson V. Pearson in Ohio. It certainly -was- not intended by- it to overrule or weaken the authority of Burckhardt v. Burckhardt, 36 O. S., 261; 42 O. S., 474 (2 W. L. B., 22; 8 W. L. B., 253 and 14 W. L. B., 108). This case recognizes the rule of Labouchere v. Dawson, which was approved by Trego v. Hunt, in which the rule is thus stated:

“Where the good will of a business is sold' (without further provision), the vendor may set up a rival business, but he is not- entitled to canvass the customers .of the- old firm, and may be restrained by injunction from soliciting any person who was a customer of the old firm prior to the sale to continue to deal with the vendor, or not to deal with the purchaser.”

And we must still regard Burckhardt v. Burckhardt as authority.

Counsel for plaintiffs in error discuss in detail the reasoning of the trial judge in his opinion as to the amount of damages. It would appear that some of the detailed items as there discussed may be too large, but taking the total as finally fixed, considering all of the evidence and especially the conduct of defendants below, under the rules laid down by Burchhardt v. Burchhardt, 42 O. S., 474, the amount of the judgment can not be deemed excessive or as being manifestly against the weight of the evidence. The opinion of the trial judge is not to be treated as a finding of fact. Transportation Co. v. Blanchard, 31 O. S., 650.

The order of injunction as framed is in all its essentials correct; in one particular, however, we deem it as, inadvertently no doubt, going beyond what was intended or what should have been ordered; that is, wherein the individual defendants Samuel Levy, David Levy and Harry Hoemellee

“are restrained and enjoined from using or disclosing any knowledge, information or trade secrets of said firm of Berman and Levy acquired by them while in its employ.”

“Knowledge” and “information” once acquired can not be taken away, and it is beyond the power of a court to prevent one from “using” either. Defendants, however, can be enjoined from “disclosing” such knowledge to others, and from improperly using it in their own business to secure the business of customers of the old firm that rightfully belongs to the plaintiff below. To such an extent the injunction may be modified.

A careful examination of the extended record in the case at bar, and full consideration of the able and elaborate arguments and briefs of counsel, bring this court to the conclusion that the case was rightfully decided in the court below, and the ground having been fully covered by the learned opinion of the trial court, further discussion becomes unnecessary here. With the modification of the injunction as suggested, the judgment will be affirmed.

Jones (E. H.), P. J., and Gorman, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ANNEXATION OF PART OF VILLAGE TO ADJACENT CITY.
    Circuit Court of Cuyahoga County.
    Henry Bach v. F. H. Goff.
    decided, February 8, 1904.

      Municipal Corporations — 'When Annexation of Adjacent Territory Complete.

    1. A proceeding to contest an election, under Sections 572-573, Revised Statutes, being a special proceeding before á special tribunal, the finding of that tribunal is final and not reviewable on error.
    2. The annexation by county commissioners of part of a village to an adjacent city, upon application of the city council and the written request of two-thirds of the voters of the territory to be annexed, is not completed until the city council has, by ordinance or resolution, accepted the annexation as provided in Section 1591, Revised Statutes.

      Finney & Warner, for plaintiff in error.

      F. H. Goff, contra.
    Winch, J.; Hale, J., and Marvin, J., concur.
    Error to the court of common pleas.
   Proceedings were begun in 1902 before the county commissioners of Cuyahoga county for the annexation of the second ward of the village of Glenville to the city of Cleveland. Át the spring election in Glenville in 1903 the voters in said second ward voted for mayor of the village of Glenville.

If said voters of the second ward were entitled to vote in the village of Glenville, defendant in error was duly elected mayor of said village. If they were not entitled to vote in said village, C. C. Shellentrager was elected’ mayor.

To contest the election of Goff, plaintiff in error instituted proceedings provided by Section 57-2, Revised Statutes of Ohio, .and three respectable freeholders were appointed according to law, heard the evidence produced before them and decided in favor of the contestee, Goff. To reverse this decision, petition .in error was'filed in the common pleas court accompanied by a transcript of the proceeding’s- in the probate court and what purports to be a bill of exceptions allowed by the probate “court” and signed by the probate judge as the “trial judge.” The common pleas' court struck this bill of exceptions from the files, heard the case on the pleading’s and the transcript and dismissed the petition in error.

Thereupon petition in error was filed in this court in which it is alleged that the common pleas court erred:

1st. In striking the bill of exceptions from the files.

2d. In dismissing the petition.

3d. Other errors appearing of record.

To sustain the judgment of the common pleas court counsel for defendant in error has argued three propositions:

1. The proceedings to contest the election was a special proceeding before a special tribunal composed of the three, freeholders and the bill of exceptions should have been allowed, if at all, and signed by said freeholders.

2. The proceedings before the tribunal were political rather than judicial, and its findings are final and not reviewable on error.

3. The decision of the tribunal was in accordance with the law and the facts.

An examination of the first and second propositions has left the court in doubt.

A majority of the court is of the opinion that by the wording of the statutes the three freeholders and the probate judge constitute a special tribunal for the trial of such contested election eases, and that the decision of said tribunal is final and not reviewable on error, but as such conclusion has been reached with much hesitanej'-, and is not unanimously concurred in, it would be profitless to discuss the matter at length, in view of the further fact that the court has examined the bill of exceptions and considered the merits of the finding by the freeholders.

It appears that May 21, 1902, the city of Cleveland filed with the county commissioners an application for the annexation to it of the second ward of Glenville. These proceedings were under Section 1615, Revised Statutes, and the statute's made part thereof by reference. The first part of said section reads as follows :

“Section 1615. When a city and village adjoin each other, and the inhabitants of any portion of the territory constituting a part of said village desire to be detached therefrom and annexed to such city, the commissioners of the proper county, on the application of the council of the city, and on the written request of two-thirds of the legal voters inhabiting the territory proposed to be so annexed, may cause such alterations to be made, and the boundaries of such city, and said village, respectively, to be established in accordance with such application and request, and such territory shall thereafter constitute a part of such city, provided, that in all their proceedings in the premises, the county commissioners shall, as far as applicable, be governed by the provisions of this division, prescribing the manner of proceeding on applications for the annexation o£ adjacent unincorporated territory to villages and cities; and provided further, that the commissioners shall ascertain and apportion the amount of the existing indebtedness of the village, which shall be assumed and paid by the city on the annexation of the territory aforesaid. ’ ’

Sections 1589 to 1598 inclusive are the provisions of “this -division, prescribing the manner of proceeding on application for the annexation of adjacent unincorporated territory to villages' and cities,” referred to above, and they provide that a final transcript of the proceedings of the commissioners being filed with the clerk of the city to which annexation is proposed (1590) at the next regular session of the council of such city after the expiration of sixty days from such filing, the clerk shall lay the transcript and accompanying map and petition before the council, and thereupon the council shall by resolution or ordinance, accept or reject the application for annexation (1591), and when the resolution or ordinance accepting such annexation has been adopted, the territory shall be deemed a part of the city or village (1597).

It appears that the final order of-the county commissioners apportioning the indebtedness of the city and village was made February 21, 1903, and filed with the city clerk February 23, 1903,

Sixty days thereafter, the earliest time within which said transcript could be presented to the city council by the clerk (1591) would be April 24, 1903. The election contested was held April 6, 1903, and before said annexation could be accepted and the territory deemed a part of the city of Cleveland and no longer a part of the village (now city) of Glenville, in accordance with Section 1597, Revised Statutes, if said section applies to this case.

It is contended by plaintiff in error that this section does not apply because it comes in as a part of Section 1515, only under the language “provided, that in all their pr-oceecHngs in the premises, the county commissioners shall'be governed,” etc.— that the action of the city council is no part of the proceedings of the commissioners, that the proviso affects the procedure of the commissioners alone and that if their procedure was regular, as it is admitted to be, then, under Section 1615, the commissioners having finished all they had to do in the premises by February 21, 1903, such territory thereafter constituted a part of the city of Cleveland.

We consider this contention one of those technical objections about which Judge Spear speaks in the annexation ease of Shugars v. Williams, 50 O. S., 297, when he says:

‘ ‘ In the practical administration of justice mere technical objections have to give way to substance.”

We quote further from Judge Spear as to his views of the annexation statutes:

“It is manifest that one of the purposes of this legislation is to provide for the addition of territory by the joint action of the village council and the county commissioners, and it Avould seem that, giving effect to all these sections, a scheme has been mapped out- which, though not altogether coherent in its parts, will, nevertheless practically reach the end intended.”

This language is applicable to the ease at bar. In adjusting the indebtedness of the city and village, the county commissioners ordered the city to pay the village the sum of $19,543.22 and to assume a large floating indebtedness of the village. On account of this large charge the city council might have deemed the annexation inadvisable and for that reason, or for some other reason, have rejected the application for annexation. (Section 1591.)

Section 1592 provides that “If the resolution or ordinance is to reject such application, no further proceedings shall be had; but such rejection shall not be a bar to any application thereafter to the county commissioners on the same subject. ’ ’ The further proceedings referred to are the filing by the city clerk of two certificates of the annexation proceedings, one with the county recorder and the other with the secretary of state. We think that Section 1592 means that no further proceedings shall be had by the city council, the county commissioners or any one claiming under or by virtue of the action of either, so that citizens of the territory to be annexed, claiming that action of the county commissioners in favor of the annexation constituted such territory thereafter a part of the city, must of necessity abandon such claims upon the rejection of the ordinance of acceptance by the city council. ■ So the plaintiff in this action, claiming to be an elector of Glenville, by Section 1591, upon rejection of the ordinance by the city council, would be barred from all further rights or privileges based upon the action of the county commissioners. Construing together all the statutes applicable to the annexation proceedings here- in question we are of the opinion that the general scheme intends that the annexation by the county commissioners of part of a village to an adjacent city upon application of the city council and written request of two-thirds of the voters of the territory to be annexed, shall not be completed until the city council has, by ordinance or resolution, accepted the annexation as provided in Section 1591, Revised Statutes. It not appearing in this case that such ordinance or resolution was passed by the council of the city of Cleveland before the spring election for mayor of Glenville in 1903, on said election day the second ward of G-lenville was still apart of Glenville and the voters of said second ward were entitled to vote for mayor of Glenville, and the contestee, F. H. Goff, defendant in error in this ease, was duly elected mayor thereof as found by the freeholders.

■The petition in error is therefore dismissed.


text:
    ALLOWANCE OF ALIMONY FOR. SAME AGGRESSIONS FOR. WHICH DIVORCE WAS DENIED.
    Circuit Court of Cuyahoga County.
    James Cullen v. Nellie Cullen.
    Decided, January 18, 1904.

      Alimony — Res Adjudicada — When Decree on Application for Divorce and Alimony is Not a Bar to Subsequent Action for Alimony.

    l'he dismissal of a petition for divorce and alimony based upon charges of extreme cruelty and gross neglect of duty is not a bar to an action for alimony and support of a child, even though based upon the same acts of cruelty and neglect set forth in the first petition, where there is a further allegation that those acts have resulted in a separation and that the plaintiff and the child .are destitute and not in good health.
    Winci-i, J.; Hale, J., and Marvin, J., concur.
    Error to the court of common pleas.
   The only error complained of in this ease is the granting of a motion made by defendant in error, who was plaintiff below, for an allowance to her of temporary alimony for her sustenance and the support of her minor child and for fees for her attorneys.

The bill of exceptions shows that the only evidence presented at the hearing of the motion was the petition in the case which was sworn to as an affidavit, the answer, which was likewise verified, the petition in a former action for a divorce between the parties and the decree rendered in the former action. From this evidence it appears that on March 31, 1902, Nellie Cullen filed her petition against James Cullen praying for a divorce and alimony and alleging as her grounds therefor gross neglect of duty and extreme cruélty. October- 12th, 1902, the case was heard and the court found that plaintiff was not entitled to the divorce and alimony prayed for, and dismissed her petition. Four days later she filed another petition praying for alimony alone, setting up the facts which may be said to amount to gross neglect of duty, extreme cruelty and that there was a separation in consequence of ill-treatment on the part of her husband. The answer, in addition to denying the allegations of the petition, pleads the former adjudication ¿s a bar to the last suit.

Counsel for plaintiff in error, in support of the plea of former adjudication, cite the case of Petersine v. Thomas, 28 O. S., 596, an alimony case wherein it was held:

“When a matter is finally determined in an action between the same parties, by a competent tribunal, it is to be considered at an end, not only as to what was determined, but also as to every other question which the parties might have litigated in the case.”

Counsel for defendant in error urges that the case at bar does not come within the doctrine of Petersine v. Thomas; that the first action brought by Nellie Cullen was for divorce and alimony, alleging two of the grounds therefor mentioned in Section 5689, Revised Statutes, and the second action is for alimony only, under Section 5702, Revised Statutes, setting up a separation in consequence of ill-treatment on the part of the husband, which is not a ground for divorce and could not have been pleaded or proved under the first petition. On this point we do not agree with counsel for defendant in error. In the case of Graves v. Graves, 50 O. S., 196, the plaintiff asked for divorce and alimony, alleging extreme cruelty as her grounds for divorce. The common pleas court found that she had not sustained the allegations of her petition, denied her divorce, but finding that she had sufficient cause to leave her husband, and was still living separate and apart, awarded her alimony. The Supreme Court held that this proceeding and judgment was fully authorized by the statutes of Ohio. So it appears that in Nellie Cullen’s first action-for divorce and alimony she might have been awarded alimony because of the separation caused by ill-treatment of her husband, if the court had found her entitled to it.

It remains therefore to compare the two petitions to see if there are any allegations in the last of matters arising since the filing of the first petition, for if any new causes of action have arisen since tbe filing of tbe first petition, they would not be barred by the former judgment.

Such comparison shows clearly that all acts of the husband which might constitute gross neglect of duty, extreme cruelty or ill-treatment'causing separation, occurred before the filing of the first petition, for in the second petition it is alleged that the separation occurred on March 27, 1902, four days before the first petition was filed.

But, we find the following allegations in the last petition that are not in the first:

“Plaintiff has no money or property whatever and is depending on the charity of her relatives for her support. Her health is not good and she is unable to earn support for her child and herself. The said boy, Edwin, has also poor health and frequently needs the service of a physician which plaintiff is unable to furnish.”

Non constat, but that all these conditions arose after termination of the former action. The verbs are in the‘Present tense. If the wife’s ill-health and inability to support herself and child and the child’s health and need of special care developed after the first hearing they could not have, been presented at the former trial. Such being the case, she should now have opportunity to present these facts, as they bear upon the question as to whether she is entitled to alimony, and would at least entitle her to a hearing under Section 5703, Revised Statutes, which says:

“The court shall, upon satisfactory proof of any or all of the charges in the petition make such order for the maintenance of the children of such marriage, if there are any, as is just and reasonable. ”

It does not appear that any order with respect to the child was asked for, granted or refused under the first petition.

Again, the merits of the case were not before the trial judge on this application for alimony pendente lite and the order complained of includes an allowance for the support of the child. Section 5701, Revised Statutes, provides that the court may grant an allowance for the support of minor children dependent upon either party for support and not provided for by such party during the pendency of the action.

There was proof on the hearing of this motion that the boy, Edwin, is not being supported by his father, whose duty it is to support him. The order was that the defendant pay to plaintiff’s attorney $25 as attorney fee and to plaintiff $5 per week for support of herself and child. The attorney fee has been paid. There was no such error in the exercise of the discretion of the court in the weekly allowance to require this court to reverse said order.

Judgment affirmed.


text:
    LOSS OF STOCK THROUGH DEFALCATION OF TRANSFER. AGENT.
    Circuit Court of Cuyahoga County.
    Sarah C. K. Robison v. The Cleveland City Railway Company ; Maria A. Robison v. The Cleveland City Railway Company; and Martin S. Robison v. The Cleveland City Railway Company.
    Decided, February 8, 1904.

      Corporations — Liability of Company for Defalcation of its Transfer Agent.

    Where a corporation has made it possible for its transfer agent to mix and confuse stock which he held as trustee for various parties with treasury stock of the company, and a large part of the stock entrusted to the transfer agent is lost through his defalcation, the company is liable to'those for whom the transfer agent acted as trustee for such of the stock entrusted to the transfer agent as was returned to the treasury of the company.

      A. W. Damson, Kline, Carr, Tolies & Goff and L. A. Bussell, for plaintiffs.

      Squire, Sanders <& Dempsey, contra.
    Winch, J.; Hale, J., and Marvin, J., concur.
   These three cases were heard on appeal from the common pleas court and involve the rights of the plaintiffs, as stockholders in the Cleveland Cable Railway Company, to stock in the Cleveland City Railway Company, which they claim is due them by reason of the consolidation of the former company with the Woodland Avenue and West Side Street Railway Company, the consolidated company being known as the Cleveland City Railway Company.

It is admitted that the plaintiffs in the three cases were stockholders in the cable company and have not received stock in the consolidated company in exchange therefor. While the claims in the three cases vary as to the number of shares alleged to be due to each plaintiff, the three cases were heard together and are to be decided upon the same principles.

Litigation growing out of the consolidation of said street railway companies has been before the Supreme Court and it is proper in stating these .cases to quote largely from the case of Railway Co. v. Bank, 68 O. S., 582.

Mjay 10, 1893, stockholders of the constituent companies, owning more than two-thirds of the stock of each, and including plaintiffs in these cases, entered into a preliminary agreement for consolidation, providing, among other things, that both companies should pay their own floating indebtedness, the stockholders of the cable company appointing Frank DeH. Robison and John J. Shipherd their agents and proxies to carry out the agreement and perfect said consolidation, agreeing to deliver to said, two persons or thejr chairman, all their stock to be exchanged for stock of the consolidated company, and the stockholders of the Woodland Avenue Company in like manner appointing M. A. Hanna, Dan P. Eells and C. F. Emery, their agents and proxies, with like power.

May 11, 1893, the directors of the two companies entered into 'an agreement of consolidation in accordance with the stockholders’ agreement, fixing the capital stock of the new company at 80,000 shares and providing that said stock should be distributed as follows: 51,750 shares to the Woodland Avenue Company to be distributed by it to its stockholders; 18,250 shares to the cable company, to be disposed of by it, so far as necessary, to liquidate its floating indebtedness, and the remainder Jo be distributed among the holders of the common and preferred stock of said company, in proportion to the then relative value of said stocks; ] 0,000 shares to remain in the treasury of the company, to be issued by the board of directors according to law.

The cable company determined that one share of its preferred stock should be equal to five shares of its common stock; and on this basis, exchanging one share of preferred stock in the cable company for one share in the consolidated company, of the 38,250 shares distributed to tbe cable company, there would be 16,000 shares to be distributed to its stockholders, leaving 2,250 shares, of the par value of $225,000, to be sold to liquidate its floating debt. It later appeared, however, that said floating debt amounted to upwards of $400,000.

June 16, 1893, the consolidated company issued stock certificate No. 1 for 51,750 shares to M. A. Hanna, Dan P. Eells and C. F. Emery, trustees, and certificate No. 2 for 18,250 shares to Frank Deli. Robison and John J. Shipherd, trustees.

The Supreme Court in the case already referred to, had held 'that it was lawful for the directors of'the constituent companies to agree, as they did, that the constituent companies should come into the consolidated companies free from debt; that of the stock apportioned to the cable company enough should be sold to pay its floating debt, the remainder to be distributed to its preferred and common stockholders in proportion to the relative values of said stocks; that the stockholders’ agreement must be read into and made a part of the agreement of consolidation by the directors; and that the agreement that 18,250 shares of the capital stock of the consolidated company should be distributed to the cable company to be disposed of by that company so far as necessary to liquidate its floating indebtedness, the remainder to be distributed to its stockholders, was fully performed by the consolidated company by the issue of certificate No. 2 for 18,250 shares of stock to Robison and Shipherd, trustees, as “agents and proxies” for the cable company and its stockholders.

In the disposition of the cases before us we shall carefully follow all these holdings of the Supreme Court, although'it has been urgently contended by counsel for plaintiff that the last proposition, i. e., that the delivery of certificate No. 2 to Robison and Shipherd, trustees, was a complete performance of the consolidated company’s obligations to the stockholders of the cable company, was not necessarily involved in the decision of the bank ease.

This contention is founded upon the statement of Judge Davis, who decided the bank case, that only one of the assignments of error would be noticed in the case because, on the conceded facts, the Supreme Court was of the opinion that the court of common pleas should have directed a verdict and rendered a judgment in favor of the defendant. Then, determining the rights of a person who holds shares of stock in pledge, assigned in blank; but not registered in the name of the pledgee, and holding that such pledgee is not entitled to participate in, or be notified of, the consolidation proceedings, as set forth in the third paragraph of the syllabus, it is stated, on page 599 of the opinion:

“The jury specially found in this case that on June 29, 1893, after the consolidation, Taintor & Holt (the pledgors), were still the owners of the stock and that on that date they received from the plaintiff in ei’ror all of the stock which they were entitled to receive by reason of their ownership of the cable company stock. It appears, therefore, the plaintiff in error having performed its agreement as to the registered and actual owners of the stock, that it is now sought to compel it to perform again, or account for the value of the stock, to a pledgee who has not shown that it was entitled to more than a mere lien upon the stock at the time of the consolidation.’.’

It is urged that these are the conceded facts, in view of the law enunciated regarding the rights of an unregistered pledgee of stock, which should have required the common pleas judge to direct a verdict for defendant.

But having reached this conclusion Judge Davis goes forward with a consideration of the effect of the delivery of certificate No. 2 and enunciates the proposition hereinbefore stated and that •proposition is embodied in the fourth paragraph of the syllabus and is therefore part of the law of the case, and hence to be followed by this court.

If the eases at bar are to be distinguished from the bank case it must be because of facts occurring and rights arising in favor of plaintiffs after the delivery of certificate No. 2.

In one salient feature these cases, of course, differ from the Lank case: in that ease the registered owners of cable company stock received all of the stock in the consolidated company which they were entitled to receive.

In these cases such registered owners have not received the stock in the consolidated company which it is conceded they were entitled to receive. It is said that plaintiffs have not received their stock because John J. Shipherd, one of their own trustees, appropriated it and converted it to his own use.

What are the facts as tending to sustain such statement?

The officers of the defendant company were M. A. Hanna, president; J. B. Hanna, secretary; F. Bell. Robison, vice-president; J. J. Shipherd, transfer agent, and the Savings & Trust Company, Registrar.

M. A. Hanna was one of the trustees for the Woodland Avenue Company and its stockholders; he .was “trustee for construction account” for the defendant company and as such held certain shares of its stock; he, with Charles A. Otis and J. IT. Wade, held stock for the defendant company, issued to them by it to indemnify them for money borrowed by them for use of the de • fendant company.

M. A. Hanna, as president, signed most of the stock certificates for the defendant; F. DeH. Robison, as vice-president, signed some.

The secretary, J. B. Hanna, signed all stock certificates; by direction of the board, the stock books were not kept by him, but by the transfer agent and registrar.

J. J. Shipherd was transfer agent of the defendant company and as such had entire charge of the issue and transfer of its stock, his direction alone being the authority upon which the registrar registered stock and kept track of the transfers. Ship-herd was also one of the trustees for the cable road and its stockholders; he was chairman of said trustees; he was also “trustee for construction account” for the defendant company and as such had stock issued to him in the name of “J. J. Shipherd, Trustee. ’ ’

Certificates numbers one and two were issued to the trustees named in each, endorsed by them in blank, left with the transfer agent and by him lodged with the registrar.

Notices were sent to the stockholders of the Woodland Avenue Company and to the cable company to bring in their old stock to the transfer agent and get from him the new stock they were entitled to. If the defendant did not send the notices, it at least knew that they were sent. It thus appears that the transfer agent; whether as such, or as trustee for the cable company under written appointment, or as trustee for the trustees of the Woodland Avenue Company, by virtue of the delivery to him of certificate No. 1, endorsed in blank by said trustees, had entire control of the distribution of the entire 70,000 shares of stock going to both of the constituent companies, and in addition to this John J. Shipherd, trustee, held 5,000 shares of the treasury stock of the company duly issued and signed by the president of the company. These 7,500 shares of stock Mr. Shipherd, either as trustee for somebody, or as transfer agent, proceeded to mix up, and at least a majority of this court inclines to the opinion that the defendant company made it possible for Mr. Shipherd to produce the results he did and that it is responsible for such results.

However, such responsibility, under the pleadings in this case, does not determine the liability of the defendant company to these plaintiffs, unless it appears that when the stock books were finally straightened out there still remained in possession of the defendant company stock belonging to these plaintiffs and that when these suits were brought defendant had possession, or should have had possession of said stock.

Counsel for defendant, in argument, stated that there was a mixing of this stock by Mr. Shipherd that is most difficult to unravel, and which would involve one in hopeless confusion who attempts its solution. Mr. Shipherd mixed the stock held by Robison and himself with the treasury stock of the company.”

The matter is difficult and confusing, but the stock issued and transferred are all of record and have been patiently and tediously traced out by experts; so that we are satisfied from the evidence that Shipherd, out of certificate No. 2, which belonged to the cable company, distributed 3,100 shares to the Woodland Avenue stockholders, and to M. A. Hanna, Charles A. Otis and J. II. Wade, officers and trustees of the defendant company, he distributed 3,674 shares.

The 3,100 shares distributed by Shipherd to Woodland Avenue stockholders made good to them what he had appropriated and they Avere entitled to receive out of certificate No. 1, and relieved the defendant from that responsibility to them, under proper -pleadings, which has been intimated above, arose out of its negligence in permitting Shipherd to confuse the stock.

The 3,674 shares out of certificate No. 2 which Avent to Hanna, Otis and Wade, they held as security for money borrowed by them for the company, and when the loan was paid, turned the stock back into the possession of the company; at least 2,000 shares, certificates Nos. 522 and 600, were assigned to the defendant company in proper form on the back of the certificate, and returned to the treasury of the company.

It hence appears from the evidence that after the delivery of certificate No. 2 to the trustees for plaintiffs and other stockholders of the cable company, part of the stock represented by that certificate came back into the possession of the defendant, and at least 2,000 shares of it was converted back into treasury stock. It also appears that at the beginning of these suits there were 4,000 shares of unissued stock in the treasury of the defendant company, all o’f which have been sold since by it.

It Avould seem that plaintiff’s claims, which aggregate 513 shares, have been established and that they are severally entitled to recover the value of the stock claimed by them together with all dividends thereon, from which should be deducted, however, plaintiffs’ pro rata share of thé floating debt of the cable company.

Should it appear that there are other cable company stockholders not represented in these suits, who have not yet received stock they are entitled to, an accounting might be necessary, but no such facts have been presented to the court.

Decrees may be entered for plaintiffs in the three cases, the amount of recover in each case to be computed as in the court below.


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    STEPS TAKEN BY COUNSEL AMOUNTING TO LESS THAN AN ENTRY OF APPEARANCE.
    Circuit Court of Cuyahoga County.
    Henry H. Flandermeyer v. Hugo Fishel et al.
    Decided, February 9, 1904.

      Practice — Jurisdiction—What Acts Will Not Amount to Entry of Appearance.

    1. Complaint of defendants attorney made informally, that the amount of an appeal bond was insufficient to protect his client’s interest, does not constitute an entry of appearance, where the record does not disclose that any motion or application to increase the bond was ever filed.
    2. Where, in a motion to strike a petition from the files, it is expressly provided that the defendant enters his appearance for the sole purpose of making that motion and for no other purpose, this proviso inheres in an application to amend the motion, filed at a later date, and such application to amend the motion does not amount to an entry of appearance generally.

      Alex. M. Martin and W. C. Ong, for plaintiff in error.

      Mart <& Canfield, contra.
    Winch, J.; Hale, J., and Marvin, J., concur.
    Error to the court of common pleas.
   -Plaintiff filed a petition in error in the common pleas court to reverse the judgment of a justice of the peace in a forcible detainer action, but neglected to serve defendants with process on said petition in error. The common pleas court, because of the lack of service of summons on the petition in error, dismissed it. Thereupon plaintiff filed petition in error in this court to reverse the judgment of the common pleas court, and- the sole question here is whether or not an entry of appearance was in fact made by defendants in the court below.

There is some little discrepancy between the transcript from the common pleas court and the bill of exceptions from that court, but we have considered all the facts shown by both.

1. It is claimed by plaintiff that defendants’ attorney appeared in the court below, objected to the size of the bond given by plaintiff, and because of the appearance and objection, the court increased the bond from $200 to $2,000.

The bill of exceptions, as tó this matter, shows that a petition in error being filed in the- common pleas court without its consent or notice to defendants, defendants ’ attorney saw the . judge presiding in Room 1 of said court and asked him if he thought it was right and legal to allow the petition to be filed without notice. The attorney says that he was a little mad and the judge said if he did not like what had been done, he could file a motion to strike the petition from the files. The attorney says he made no application to have the bond increased but did complain about the insufficiency of the bond. The judge corroborates this statement and says that he did increase the -bond from $200. to $2;000; explaining this action, he says:

“Either Mr. Hart or Mr. Canfield (plaintiff’s attorneys) came to me and objected rather vigorously to the action taken, and among other things, complained about the size of the bond.
“Q. What did he say? A. Well, he complained about its insufficiency, said it was not large enough to protect his clients, and I thereupon increased the bond.”

The increase was made by adding a cipher to the original entry of $200 on the docket. There was no new entry made. We do not consider this action of the attorney in talking to the judge in the general manner indicated, constituted an appearance for the defendants in the action. The record fails to show any application by said attorney for an increased bond. It fails to show any action by the court on any such application. What was done by the judge in increasing the bond was done upon his own motion.

2. It appears that defendant filed a motion to strike the petition in error from the files for the reason that said petition was not filed in said court within the time authorized by the statutes. The motion reads that the defendants “enter their appearance for the sole purpose of making this motion and for no other purpose.” It was the proper manner in which to make the point without making a general appearance.

No authorities need be cited on this point.

This motion was overruled. Thereafter the entry overruling said motion was vacated and set aside and the transcript shows the following •.

“November 16, 1903. -To court. The defendants in error have leave on their own application to amend their motion to strike the petition in error from the files, by interlining the words ‘and action commenced within four months from time the judgment was rendered. ’ ’ ’

The interlineation was made and the motion as amended was granted.

It is claimed that the application to amend the motion constituted a general appearance in the case. We think not.

The application Avas solely regarding the motion and made under it. It affected no other proceeding in the ease. The proviso in the motion inheres in the application to amend it and preserves to defendants all such exemptions as they were entitled under the original motion.

We find no error in the judgment of the common pleas court and it is affirmed.


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    WITHDRAWAL OF INCOMPETENT EVIDENCE.
    Circuit Court oí Cuyahoga County.
    Tony Chicko v. State of Ohio.
    Decided, March 7, 1904.

      Criminal Law — Trials—Error in Admission of Evidence Cured by Withdrawal of Evidence at Any Time.

    Where, in the trial of a criminal case, incompetent evidence offered by the state has been admitted over the objections of the defendant and exceptions noted, but such evidence is subsequently withdrawn and the jury clearly told to disregard it, the judgment should not be reversed for the admission of such evidence, unless it is manifest from the whole record that the jury disregarded the instructions of the court; and it is not important at what time the evidence is withdrawn from the consideration of the jury so long as it is clearly withdrawn before the case is finally submitted to them.

      Vessey, Davis & Manak,- for plaintiff in error.

      Harvey B. Keeler, contra.
    Hale, J.; Winch, J., and Marvin, J., concur.
    Error to the court of common pleas.
   The plaintiff in error was indicted, tried and convieted of murder in the second degree. He was charged in the indictment with killing Andrew Crouch, a street car conductor. On the trial evidence was given by the state tending to show the transaction which occurred between the deceased, Crouch, and the plaintiff in error at the time Crouch was killed. Thereupon the state, to further maintain the issues on its part, called as a witness Otto C. Hansel, who testified as to the difficulty between the deceased and plaintiff in error and the pursuit of the plaintiff in error by various persons immediately following the transaction upon the car and his arrest at a point a half a mile from the scene of the shooting. Thereupon the prosecuting attorney put to the witness this question: “What was said at the time he was arrested by any person present V’ to which question the defendant’s counsel objected, but the court overruled the objection and the witness answered “Some one said ‘lynch him and kill him.’ ” Counsel for plaintiff in error then said, “We ask that the jury be instructed to disregard the answer,” which request on the part of the counsel was overruled, and an exception noted.

The state also called one David Bertram as a witness, and after showing that he was one of the persons who pursued the plaintiff in error after the shooting and was present at his arrest, the prosecuting áttorney put to him the following question, “Do you recall anything that was said by any one to any one at that time?” to which counsel for plaintiff in error objected, the objection' was overruled and an exception noted. The witness answered, “Some one said ‘Lynch him.’ ” A request was made by counsel for plaintiff in error that this answer be withdrawn from the jury, which was overruled and exception noted.

The court in its charge to the jury, referring to this testimony, said:

“Another thing I want to say by way of caution. I want you jurymen to pay particular attention to it; that is, there 'was some testimony here admitted as to some things that were said by the crowd when they Avere in pursuit of the defendant. Somebody testified that somebody cried ‘Lynch him.’ I do not think that is competent testimony. Pay no attention to Avhat was said by any witness on that subject; disregard it utterly; drive it out of your minds, because that testimony would not be competent and this man should not be prejudiced by it if it should in any way affect your minds. Everything of that sort should be entirely eliminated from your consideration.”

It is quite clear that the court was correct in holding that this testimony Avas clearly incompetent and prejudicial. The court erred in its admission, and unless that error is cured by the withdrawal of the testimony from the consideration of the jury, in the part of the charge above quoted, the case should be reversed. But we hold that, where in the trial of a criminal case incompetent eAddence offered by the state has been admitted over the objection of the defendant and exception noted, but subsequently Avithdrawn and the jury clearly told-to disregard it, the judgment should not be reversed for the admission of such testimony, unless it is manifest from the whole record that the jury disregarded the instructions of the court. This, we think, is in accordance with the rule which prevails in this state.

In Mimms v. State of Ohio, 16 O. S., 222, it was held:

“Where the court improperly overruled the objection of the defendant to testimony offered on the trial by the state, the judgment against him will not be reversed for such erroneous ruling when the court on motion of the defendant excluded all the testimony so given from the consideration of the jury and instructed them that it must be wholly disregarded.”

It appears in this ease that the testimony of which complaint is made was withdrawn from the consideration of the jury on motion of the defendant and that therefore he could not further complain of its introduction. This would seem to be a sufficient answer to the ruling made, but in this case, at the time the answer was given, counsel for the plaintiff in error asked in each instance that the answer given by the witness should be withdrawn from the jury. It is true that his request was overruled at the time, but subsequently, in the charge, in as emphatic and distinct an utterance as could be, the request was granted and the testimony withdrawn from the consideration of the jury. Many other cases might be cited giving some support to the holding we here make. I refer only to one other case, 17 Cir. Ct., 404.

It is said, however, that this withdrawal of the incompetent evidence came too late; that if the error in its admission could be cured at all by its withdrawal, that withdrawal must be made before the close of the evidence, or at least before the argument of counsel to the jury; that its withdrawal in the charge of the court to the jury comes too late, and this is the holding of the Supreme Court of Pennsylvania in the case of Erie & W. V. R. Co. v. Amelia E. Smith, 125 Pa. St., 259, in which it is said:

“Where evidence has been improperly received which tends to prejudice the minds of the jury, and motions made to strike it out at or before the close of the testimony are refused, a direction to the jury in the general charge to disregard the evidence and withdraw it from their consideration comes too late an.d does not cure the error of admitting it.”

We are not inclined to follow that holding. We think the tendency of the reported decisions in our own state is not in accord with it. In the case of Mimms v. State, above referred to, it does not appear whether the testimony was withdrawn from the consideration of the jury before the charge or in the charge. It would seem not to be of the utmost importance when the testimony was taken from the jury, whether before the charge or in the charge to the jury. If the testimony was clearly and distinctly taken from the consideration of the jury at any time before the submission of the issues to them, it would seem to be sufficient. It can not be doubted that if the jury followed the plain and distinct instructions of the court in this ease and wholly disregarded this testimony, that its introduction was without any prejudice to the plaintiff in error. There is nothing in the record of the case that gives any support to a claim that the instructions of the court were not followed by the jury. We are, therefore, of the opinion that there was no error upon the record of which the plaintiff in error can justly complain.

The judgment of the court of common pleas is affirmed.


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    PROCEEDINGS TO COMPEL ATTORNEY TO TURN OVER. PAPERS.
    Circuit Court of Cuyahoga County.
    John Mulholland v. George A. Groot.
    Decided, March 7, 1904.

      Attorneys May he Proceeded Against Summarily for Refusing to Turn Over Papers of Client.

    An attorney may be proceeded against in a summary way, by motion, for refusing or neglecting to turn over papers and documents belonging to his client.

      W. C. Ong, for plaintiff in error.
    Winch, J.; Hale, J., and Marvin, J., concur.

      Error to the court of common pleas.
   This action is in this court to review the ruling of the common pleas court in dismissing'proceedings begun therein to require the defendant in error, who was defendant below, to turn over to plaintiff certain papers, notes, bonds and securities held by the defendant as an attorney at law and coming into his hands as attorney for plaintiff. •

The proceedings were instituted in the court below by the filing of an application entitled by plaintiff a motion, in which it is alleged that John Mulholland, one of the plaintiffs, is a resident of Ohio, and the other plaintiff, Maud B. Darrow, is trustee for John Mulholland and a resident of Cleveland.

This motion is signed: “John Mulholland and Maud B. Darrow, trustee, by Walter C. Ong, their attorney,” and is verified as follows:

“State or Ohio, Cuyahoga County, sc.-
“M. R. Iiodgman, being first duly sworn, says that he is the duly authorized agent and manager for John Mulholland, the complainant in the foregoing motion, and as such manager he is familiar with all the facts pertaining to the foregoing application, and that all the facts, allegations and exhibits of said motion as herein set forth are, as he believes, true.
“M. R. Hodgman.
“Sworn to before me and subscribed in my presence by the said M. R. Hodgman this the 29th day of January, A. D. 1904.
“D. M. Bader, Notary Public. (Seal) ”

With the application was also filed an affidavit as to the truth of the matters set forth in the application.

It appears that upon the filing of this application the defendant appeared, waived citation and asked leave to answer and file a counter-affidavit. Thereafter he filed a motion to dismiss the proceedings for the reason that the motion was unsupported by any evidence and the court granted said motion, without receiving proof from plaintiff as to the truth of the matters complained of in the motion. In support of this ruling of the trial judge it is urged that the motion or application was not signed by either of the plaintiffs personally, was not sworn to by either of them, and the verification that does appear is only upon information and belief.

Section 564, Revised Statutes, provides that every attorney receiving money for his client and refusing or neglecting to pay the same when demanded, shall be proceeded against in a summary way, on motion.

It was held by the circuit court of the seventh circuit, in the case of Cotton, Ex., v. Ashley, 11 C. C., 47, that under the common law an attorney might be proceeded against in the same manner for refusing or neglecting to turn over papers and documents to his client, and we follow that ruling in this case.

It appears that the proceedings were properly brought by filing a motion.

A motion is not strictly a pleading, not being enumerated as such under Section 5055, Revised Statutes.

Section 5102, Revised Statutes, provides that every pleading and motion must be subscribed by the party or his attorney, and every pleading must be verified by the affidavit of the party, his agent or attorney.

Section 5105 provides that the affidavit shall be sufficient if it is stated therein that the affiant believes the facts stated in the pleadings to be true.

Section 5109 says that the verification may be made by the agent of a party when the facts are within the agent’s personal knowledge.

From these statutes it appears that, the application, whether considered as a motion or as a petition, was properly signed and verified. It was subscribed by the attorney of the plaintiffs and was verified by the agent of one of them who says that he is familiar with the facts he swears to. As one of several parties may verify a pleading (5104, R. S. O.), so the affidavit of the agent of one of them is sufficient.

We find no statute requiring that such proceedings as were instituted in this case must be begun by a motion or pleading-sworn to absolutely, but hold that the general statute (Section 5105) authorizing a verification upon belief, applies.

It follows that the preceedings were regularly instituted and that the trial judge erred in granting the motion to dismiss them.

Judgment reversed.


text:
    WOMAN PASSENGER. INJURED BY AN EXPLOSION DURING A STRIKE.
    Circuit Court of Cuyahoga County.
    Elle Schroeder, by Her Guardian, Carl F. Schroeder, v. The Cleveland Electric Railway Company.
    Decided, March 15, 1904.

      Carrier of Passengers — Degree of Care Required to Protect Passengers Against Danger During a Strilce.

    1. A -carrier of passengers is not liable for the act of an intervening independent agency. But where there is a known impending danger from a source for which the carrier is not responsible, then the law imposes upon the carrier a degree of care in respect to such impending danger; but the degree of care in such case depends upon the conditions and circumstances of the particular instance, varying with those conditions, and is not that absolute degree of care which a carrier owes to its passengers under ordinary conditions.
    2. The law requires of a carrier of passengers operating its cars while a strike is in progress and while known dangers exist, the highest degree of care practicable for the safety of its passengers in view of the existing and known conditions, consistent with the practical operation of and management of its cars.
    3. Where passengers upon a street car are injured by the explosion of an explosive placed on the tracks by some miscreant, at a time when a strike of the employees of the street-railway company is in progress and after numerous other similar explosions had occurred, the company is not liable unless the conditions existing at the time were of such a nature that it had reason to ex- ■ pect damage to its cars and injury to its passengers from explosives, and therefore should have adopted extraordinary precautions to avoid such damages and injuries and failed so to do.
    Hale, J.; Winch, J., concurs; Marvin, J., dissents.
    Error to the court of common pleas.
   The defendant is a corporation owning and operating a street railroad in the city of Cleveland.

On the 30th of August, 1899, the plaintiff, while a passenger upon the defendant's road, was most seriously injured by an explosion of 'some kind, which nearly demolished the car on which she was riding. The exact nature of the explosion the plaintiff alleges she is unable to state, but does allege that her injuries were caused by the negligence of the company and without any fault upon her part. She alleges that the company was negligent in not providing for a proper inspection of the cars, machinery, dynamos and apparatus in use by it; that the company was also negligent in not providing a proper inspection of the tracks upon which the cars were run; that the servants and employees of the company were negligent in not keeping a proper lookout for obstructions upon the track; further, that the company was negligent in not notifying the plaintiff of the dangers incident upon the riding upon the car at the time, also negligent in the appointment of incompetent servants, particularly the motorman in charge of the ear upon which the plaintiff was riding; that the motorman was negligent in the management of its car; that he neglected to apply the brake at the proper time, of all of which the plaintiff had no knowledge. These allegations of negligence, considered independent of the peculiar conditions existing at the time, as further alleged in the petition, were in no sense sustained by the evidence.

Following these allegations, it is alleged that in the month of July, 1899, difference arose between the company and its employees, resulting in,a strike by the employees, causing troubles and dangers incident to the same.

It is further averred in the petition that several other explosions had occurred in other parts of the city upon the defendant’s track prior-to the one'which caused the injuries to the plaintiff, and that by reason of said explosions prior to the date of the plaintiff’s injuries the defendant was aware and well knew that attempts were being made to place explosives of some kind or description, unknown to this plaintiff, upon the tracks of the defendant; that, notwithstanding this knowledge which the defendant had, it still continued to run and operate its cars and thereby invited the public to ride on said cars; that it took no measures or precautions to prevent such explosions or concussions; that it failed to patrol its track on which it ran its cars, either by persons on horseback or by men on bicycles or otnerwise, which it might easily have done; that it negligently failed to equip its cars in front of the forward wheels with brushes or other appliances which might have been placed thereon; that it failed utterly to take any precautions to discover whether explosives were placed upon its tracks or not; that it adopted no means to protect its track and protect the public who -were traveling in its cars by direct and' implied invitation; that the headlights upon its ears were placed upon the top of the car, and that the headlight upon the car in which the plaintiff was riding at the time she was injured was upon the top of the car; that said headlight was insufficiently furnished with an illumin ant or light that would enable the motorman, who had charge of the car upon which this plaintiff was riding, to see ahead far enough safely to stop the car in case he saw anything upon the track, and that the defendant was guilty of negligence and careless in ■ failing to supply or equip its said ear with a proper headlight; and such a headlight as would enable the motorman operating the car to see whether any obstruction had been placed upon the track or not, the company well knowing, as this plaintiff alleges it did, that obstructions were being placed upon its tracks at that time.

“The plaintiff further says that the defendant employed no person on horses or on wheels, or on foot, to patrol said tracks and see that the same were frée from obstructions, that is, the tracks on Wilson avenue; that it was guilty of recklessness, carelessness and negligence in not so doing, well knowing that obstructions and explosives were being placed on its tracks at that time, especially on said Wilson avenue; that instead of protecting its tracks or taking any measures to prevent explosion under its ears on.said Wilson avenue, it published cards and interviews in the newspapers inviting the public to ride upon its cars and did say to the public that it was safe for the public so to do; that before the grievances hereinbefore set forth were committed, the president of the said defendant corporation, speaking for the defendant company, told the state board of arbitration, which had met in the city of Cleveland for the purpose of adjusting the difference between the defendant and its former employees, that ‘The company fully appreciating the sincerity of your desire to bring about a readjustment with former employees, begs to say that the men who went out on Monday last, July 18, 1899, are not in the company’s employ, and there is nothing to negotiate about or arbitrate.’ That it thereby carelessly and negligently assumed that the persons it had then in its employ were fully competent to operate, manage and run cars, and by said assumption publicly made, informed the public that the men who had been hired to take the place of its former employees were competent to care for, manage and run its cars, although the defendant knew, or ought to have known the facts to be otherwise.
“Plaintiff! further says that the agents and servants of the defendant on said occasion were guilty of carelessness and negligence in this, that just prior to the happening of said accident said car was being negligently and carelessly run and operated at a high and dangerous rate of speed, and at such a rate of speed as rendered a proper and careful lookout by the motorman in charge of said car difficult; that is, at such a rate of speed as partially prevented a careful and proper lookout upon the tracks in front of said ear; and that said agents and servants of the defendant in the management, conduct and control of said car and in the operation of the same, were guilty of carelessness and negligence upon said occasion and just prior thereto. ”. .

These allegations of negligence last quoted are connected with the allegations of the dangerous condition existing at the time, and the alleged acts of commission and omission on the part of the company are negligent acts, if at all, because of the alleged condition then existing in the city.

Issue was taken upon these allegations of the petition by answer.

Much evidence was produced upon the trial tending to sustain the claim of the respective parties. The trial consumed four weeks of time. There was no direct evidence of the size, nature or character of the explosives; much time was consumed in the examination of witnesses called as experts to establish such fact.

Numerous errors of the trial court are insisted upon as a ground for the reversal of this judgment. It will be noted that the explosive which caused these injuries was unlawfully placed upon the track by some miscreant for whose act the company was not responsible. The company, however, was charged with the duty of protecting its passengers from the dangers resulting from such act. It was not responsible for placing the explosive upon the track. Respecting this part of the case, the trial court said to the jury:

“As I have said, there had been a strike; the employees of the company had gone off; others had taken their places. There had been some explosions of some kind of explosive on the tracks of this company; they had been numerous; I think thirty or forty, the evidence tends to show; a few of them had been dangerous, but had evidently been intended simply to frighten people and prevent them from traveling on the road. It is claimed that the company had knowledge of this condition of things. They were operating their road impliedly inviting the public to travel on it; that persons were traveling upon it; they were operating their road carrying passengers, and that the company did not take proper measures to protect its passengers from this impending danger for which they were not, in the first-instance, responsible. Now, that is the nature of this plaintiff’s claims; that is the nature of this case.

Again, in the charge, he says:

“Did the company have reason on the 30th of August, 1899, to expect danger to its passengers on Wilson avenue, from explosives on its tracks? If it did not have reason to expect such danger at such time, there can be' no recovery in this case. The burden is upon the plaintiff to prove by a preponderance of the evidence, that the company did then have reason to expect such danger, and if, upon consideration of all the evidence bearing upon this question, you do not find that it has been proved that the company had reason, at that time, to expect such danger, that will end your consideration of the ease, and you should return a verdict for the defendant.”

Again, it is stated:

“There is evidence tending to show that at this time about the full number of cars were being operated, and the public confidence had been restored to such degree that travel had increased to such extent as the evidence shows it had increased.
“Now, in view of these considerations; in the light of whatever else the evidence shows, bearing upon this question in view of whatever might, in the nature of the situation, reasonably be expected or not expected; what should this company have expected as to a recurrence of the dangerous explosions ?
“If, upon full consideration of this question, you do not find it proved that the company had reason, at that time, to expect danger to its passengers from explosives placed on its tracks, you should return a verdict for the defendant, without further consideration.
‘ ‘ If, on the contrary, you find it proved that the company had reason at that time to expect such danger to its passengers, then you will inquire further, and determine whether it has been proved that the company was negligent in any of the respects charged in the petition.”

The jury were thus instructed that the alleged negligent acts ■were not such unless the conditions existing at the time were of such a nature that the company had reason to expect damage to its cars and injury to its passengers from explosives, and therefore should have adopted extraordinary precautions to avoid such damages and injuries. The omission to employ by the company the agencies which it is alleged they omitted to employ became negligence only because of the fact of the dangers incident to the strike which the company was bound to guard against. I £ it be true that the conditions growing out of the strike were such that the company had reason to anticipate danger from explosives, then such omission may have been negligence on its part, but if the omission to employ such agencies can be characterized as negligence only when it is found that the conditions were such that the company had reason to anticipate danger from explosives, or by the exercise of due care should be charged with knowledge of such danger, then the court correctly charged the jury. We are of the opinion that a proper construction of the pleadings and proper application of the evidence to the issues fully justifies such charge and that there wms no error in it.

Again, it is insisted that the jury were mislead by the charge of the court upon the subject of the degree of care which the defendant was bound to exercise toward its passengers, and attention is called to some expressions in the charge giving some support to this claim. The court said, among other things, upon this subject:

“The law imposes upon the carrier of passengers a high degree of care for their safety, the highest practicable degree of care — I am now speaking of passengers ordinarily — not in this particular instance — as to acts or omission of things under its control. A common carrier of passengers is required, by the law, to exercise the utmost care and diligence for their safety, and is responsible for injury resulting from the slightest neglect of such care. There is more or less danger from any means of rapid transit, however careful the carrier may be, and whatever risk there is, when the carrier has been as careful as he ought to be, the passenger assumes.”

It is insisted by counsel for the plaintiff that here the jury were given to understand that the rule laid down applicable to the duties of common carriers did not apply to the case then on trial; but when the court charged the jury upon the responsibility of the defendant in this particular case, the true rule, we think, was stated. The court said:

“A carrier or passenger is not liable for the act of an intervening independent agency. But where there is a known impending danger from a source for which the carrier is not responsible, then the law imposes upon the carrier a degree of care in respect to such impending danger; but the degree of care in such case depends upon the condition and circumstances of the particular instance, varying with those conditions, and is not that absolute degree of care which I have stated the carrier owes to its passengers under ordinary conditions. ’ ’

Again the court say:

“On the 30th of August, 1899, this defendant had the right, and it owed the duty to the public to operate its several lines of street railway, and to carry such persons as chose to ride in its ears. It was not obliged, and it is not claimed here that it was obliged to cease to operate its road. This being so, you can plainly see that the degree of care which it could be required to exercise for the safety of its passengers must be consistent with the reasonable operation of its road; and this is the requirement of the law. Under the circumstances of this case, the law required of this defendant company the exercise of the highest degree of care practicable for the safety of its passengers, in view of the existing and known conditions, consistent with the practical operation and management' of its street railway system. Failure to do this would be negligence on its part."

More is said upon this subject in other parts of the charge and in comments upon the requests made, but we think the above fairly states the law applicable to this case.

Again, complaint is made that the trial court took from the consideration of the jury the alleged negligence of the motornian in failing to keep a proper lookout. We have carefully read the record, and fail to find any evidence whatever tending to support said allegation. The same may be said of the failure of the motorman to stop the care by proper application of the brakes. The brakes were disabled by the effect of the concussion or explosion, and all was done that could be done after the explosion took place. And, generally, it may be said of the allegations of negligence, relied upon, that unless the company had reason to apprehend danger from explosions, no duty was imposed upon it to adopt extraordinary measures to guard against the danger from such explosions. In such case, a failure to patrol its tracks, or to equip its cars in front of the forward wheels with' brushes to remove the explosives from the track, or to provide more efficient headlights than were in ordinary use, or to employ extraordinary vigilance to discover such explosives upon the track— its failure to do so in any of these respects would not be negligence on the part of the company unless it was found that it had reason to apprehend such dangers.

Again, it is said the plaintiff was not awarded a fair trial by reason of certain rulings of the court in the admission and exclusion of evidence, and comments made in the presence of the jury during the trial. The most serious objection made under this complaint is of the rulings and comment of the court as appears on page 385, and following of the record. The plaintiff sought to show by a witness the speed at which the car was going at the time of the accident. An objection was interposed by the defendant to the testimony offered. Under a recent holding of the circuit court sitting in Licking county, approved by the Supreme Court, this testimony was competent. The trial court commented very freely upon this decision and, among other things, said:

“I know the holding of the Circuit Court of Licking County is not the law, if I know anything about such things, and yet here is the affirmance of that judgment by the Supreme Court. If you want to take the chance, this witness may answer the question. ’ ’

Plaintiff’s counsel then said: “We take the chances.” The law upon this particular subject had been settled by the decision of the highest court of the state and, therefore, was the law of the forum in which this case was tried; and the evidence should either have been excluded, or permitted to go to the jury without the condemnation of the trial eourt.

Again, it is said the charge of the eourt to the jury was misleading and, therefore, erroneous. A considerable portion of the charge, it is true, deals with general propositions of law applicable to this class of cases, and it is possible that the jury would have been better aided in their consideration of the evidence of the case by a shorter and less learned charge. The case was a peculiar one and so out of the ordinary as to present many difficulties and to require careful discrimination of the trial court; We believe that the true theory of the case and the ground of responsibility of the defendant company to the plaintiff was adopted by the trial eourt and that that theory was so enforced upon the jury by the trial court that they could not have misunderstood the charge. We conclude that the correct result was reached; that the judgment is the only one that was authorized by the evidence and the law applicable to the facts, and that there is no error apparent upon this record for which the judgment should be reversed..

The decision is by a majority of th.e court only, Judge Marvin dissenting.

The judgment of the court of common pleas is affirmed.


text:
    VALIDITY OF ORDER. BY A DE FACTO OFFICER TO RAZE A BUILDING.
    Circuit Court of Cuyahoga County.
    John G. Bruggeman v. City of Cleveland.
    Decided, May 16, 1904.

      Municipal Corporations — Officers—Municipalities May Raze Dangerous Buildings■ — Acts of De Facto Officers Valid.

    1. The acts of a de facto officer acting under a law, which at the time had not been declared unconstitutional, are valid.
    2. The state in the exercise of its police power may delegate to municipalities the right to raze buildings which become dangerous to life or property.

      George A. Groot, for plaintiff in error.

      N. D. Baker and C. J. Estep, contra.
    Winci-i, J.; Hale, J., and Marvin, J., concur.
    Error to the court of common pleas.
   The petition in this case alleges that Mr. Bruggeman was the owner of a certain parcel of land improved with a frame building ; that on the 14th day of August, 1900, the city of Cleveland, though its agents, officers and servants, without any right whatever, entered upon said premises and tore down and destroyed said building, and he prays judgment for one thousand dollars.

The answer admits the plaintiff’s ownership and says that R. J. Harks was, for more than a year preceding the 14th day of August, 1900, duly appointed, authorized and acting inspector of buildings in the city of Cleveland; that it was part of the duty of Harks to inspect the construction of new buildings, and to require old structures within the city to be maintained in safe and proper condition or torn down. It alleges that on the 14th day of August, the timbers of the building upon plaintiff’s premises were rotten; that said building was liable to collapse at any time, and was so unsafe as to endanger life; that prior to that date, on the 17th day of March, 1900, and at other times, the said Harks, as building inspector, served upon the plaintiff written notice requiring him to tear down said building, for the reason that it was dangerous and unsafe; that the plaintiff failed and refused to comply with said notice; that the public safety required immediate action, and that, therefore, on the 14th day of August, 1900, said Harks caused said unsafe and dangerous structure to be torn down.

The reply filed by the plaintiff admits that Harks was occupying a position called “Inspector of Buildings!’ in the city, of Cleveland, but denies that he had any power or authority to tear down buildings-, and ásserts that whatever he did in that behalf was done in violation of the rights of the plaintiff, and without authority of law. The reply further asserts .that the defendant, the city of Cleveland, had no right to destroy the plaintiff’s building, whatever its condition was, for the reason that the law and ordinance under which the plaintiff destroyed said property, and which purported to confer authority upon the defendant to destroy and tear down property in said city, are unconstitutional and void.

The reply also contains the following:

“He denies all and singular the statements set forth in the defendant’s answer inconsistent with the statements set forth in plaintiff’s petition.”

At the trial of the case an objection was made to the i-Wo-' tion of tiny testimony under the pleadings. This objection was sustained and a verdict for defendant directed. Such action of the trial court amounted to granting judgment on the pleadings, and a review of this case requires only an examination of the pleadings.

The petition, we think, states a cause of action.

Were there no repfy to the answer, the question whether it sets forth a good defense would be one of law, to be determined by the court; but material allegations of fact in the answer are controverted by the reply, unless the judgment of the city as to the advisability of tearing down the building is not reviewable.

It is claimed by counsel for defendant in error that this reply contains only conclusions of law; that it is argumentative and does not squarely deny the allegations of the answer that the timbers of plaintiff’s building were rotten, that the building was unsafe and liable to collapse, that plaintiff was notified to take the building down, failed to comply and that the public safety required immediate action.

There is much merit in this criticism of the reply, but applying the rule that pleadings are to be liberally construed in favor of the pleader — stretching that rule, perhaps, to its utmost — we are disposed to say that the allegations of the petition that the city destroyed the building "without any right whatever,” taken in connection with the denial in the reply of "all and singular the statements set forth in the defendant’s answer inconsistent with the statements set forth in the plaintiff’s petition,” together were intended as a denial of the facts pleaded in the answer to which attention has been drawn.

So holding, it remains to determine whether the city acted under authority of law and whether the judgment of the city as to the facts and its discretion in the matter are reviewable.

The action complained of occurred on the 14th day of August, .1900, prior to the adjudication of the infirmity in the so-called "federal plan law” of the city of Cleveland. At that time Section 1545, sub-divisions 49 to 53, were in full force and effect. By Section 1545-53 it is provided that the director of fire service shall appoint an inspector of buildings who shall be an architect or builder, and who shall have all the power, perform all the duties and receive the same salary prescribed for the inspector of buildings by an act passed April 15, 1888, as amended April 11, 1890, entitled "An act to regulate the construction of buildings within any city of the first class and second grade,” etc. Section 1545-49 gave to the fire department of the city of Cleveland the control and management of the inspection of buildings. At that time there likewise existed upon the statute boobs the so-called building code for the city of Cleveland, Section 2575, 1 to 52, being the same law as is referred to in Section 1545-53, where the powers of the building inspector are set forth. Among the powers and duties prescribed by this building code, in Section 2575-48, is the following:

"The owner or other party having an interest in any building, staging or other structure or any thing attached to or connected with a building or other structure which shall be unsafe, so as to endanger life, shall immediately, upon notice received from the inspector, cause the same to be made safe and secure, or taken down, and where the public safety requires immediate action, the inspector may enter upon the premises with such assistants as may be necessary, and cause the said structure to be secured or taken down without delay, and the passersby to be protected at the expense of such owner or party interested. ’ ’

Among the general powers of municipalities at this time were those conferred by Section 1692 of the Revised Statutes, Subsection 1 of which provides that municipalities shall have power, and council may provide by ordinance for the exercise and enforcement thereof “to preserve peace and good order, and protect the property of the municipal corporation and its inhabitants.” Sub-section 17 includes, among the enumerated powers, the power to guard against injuries by fire; Sub-section 27, the power to regulate the erection of buildings, fences and other structures •within the corporate limits; Sub-section 30, to organize and maintain a fire department, erect necessary buildings therefor, etc.

It is admitted by the pleadings that IT. J. Harks was inspector of buildings in the city of Cleveland, and in destroying plaintiff’s building, acted in behalf of defendant.

All the statutes above referred to have since August 14, 1900, been repealed, and in their "stead the Ohio Municipal Code has been enacted.

Plaintiff claims that the statutes above referred to are unconstitutional, being special legislation. Such is the ease, but we hold that the acts of Harks in the premises were the acts of a de facto officer, acting under’a law which had not at the time been declared unconstitutional, and that his official acts while so acting are valid. State, ex rel, v. Bingham, 11 C. C., 245; Hick v. the Findlay Window Glass Co., 16 C. C., 111; State v. Gardner, 54 O. S., 24.

It is further claimed by plaintiff that the law is in contravention of the constitutional provision that private property shall ever be held inviolate, and shall not be taken for public use without compensation therefor being first made in money.

We think not; the statute is in exercise of the police power of the state. Upon this subject see Dillon on Municipal Corporations, Sections 141, 379, 955; Evansville v. Miller, 38 L. R. A., 161, and extended note.

The above authorities dispose of the contention by plaintiff that the city had no authority to tear down his building no matter what its condition, but they all recognize the rule that if the public good did not require the act to be done — if the act was not apparently and reasonably necessary, the actors can not justify, and would be responsible.

We think the plaintiff attempted to raise the latter issue, i. e., that the public good did not require the tearing down of his building; that such tearing down was not apparently and reasonably necessary; and on this issue he should have been permitted to go to the jury.

For this reason it was error for the trial judge to sustain the defendant’s objection to the introduction of any evidence by the plaintiff and to direct a verdict for the defendant, and for said error the judgment is reversed.


text:
    DESIGNATION OF BENEFICIARY BY WILL.
    Circuit Court of Cuyahoga County.
    F. Dhonau, Jr., v. Susan Clare Striebinger and Marie Van Camp.
    Decided, June 6, 1904.

      Mutual Benefit Societies — Step-Children May he Beneficiaries as “Members of Family’’ — Beneficiary May he Designated by Will.

    1. Where step-children, taken into the home at a tender age are reared as children of the step-father and after marriage one of them remains in the home of the step-father, they can be designated as beneficiaries of a member in a mutual benefit association, whose constitution requires that beneficiaries shall be members of the family or someone related to the member by blood.
    2. The designation of the beneficiaries of a member of a mutual benefit association may be made by will so long as those designated belong to the class from which they are to be selected.

      Albert Mendelson and McKeney <& Belville, for plaintiff in error.

      E. K. Wilcox and E. G. Friend, contra.
    Hale, J.; Winch, J., and Marvin, J., concur.
    Error to the court of common pleas.
   The issues tried and determined in the trial court relate to the disposition of the benefits of a deceased member of a benefit association.

In 1881, Robert Jaite became a member of the Ancient Order of United Workman and continued a member of that order until his death, which occurred on the 2d day of January, 1900. Tie fulfilled all his obligations to the order while thus a member. In the certificate issued to him, his wife Elizabeth was named as the beneficiary. She died on the 2d day of December, 1899, just one month prior to the death of her husband. After the death of his wife, no other beneficiary ivas designated, unless such designation was made by him in his will, which ivas executed on the 2d day of December, 1899, just a few days before his death. The clause of the will which, it is claimed, made such designation reads as follows:

“Fifth. I give, devise and bequeath to Susan-'Clara Striebinger and Marie Van Camp my life insurance of $2,000 made payable to my wife, now deceased, each $1,000 and further, to Marie Van Camp my fire insurance business, and my household furniture shall be divided between said Susan Clara Striebinger and Marie Van Camp. My horse, buggy and tools I give io George Van Camp.”

The provision regarding the designation of the beneficiary in this order is contained in Section 46 of the constitution, and reads:

“Beneficiarles. — Each member shall designate the person or persons to whom the Beneficiary Fund due at his death shall be paid, who shall, in every instance, be one or more members of his family, or some one related to him by blood, or his affianced wife, who shall be dependent upon him.”

The object of the order, as expressed in its by-laws and constitution, is:

“To pledge the members to the payment of a stipulated sum to such beneficiaries as a deceased member may have designated, while living, under such restrictions and upon such conditions as the laws of the order may prescribe. ’ ’

There are several errors alleged for which it is claimed the judgment should be reversed, but chiefly three are relied on:

1st. That the defendants in error, Mrs. Striebinger and Mrs. Van Camp, are not of the class which the member was authorized to designate as a beneficiary, and therefore their designation is entirely nugatory.

2d. That the designation of a beneficiary could not be made by will, and is therefore inoperative.

3d. That the will does not sufficiently designate in terms the defendants in error as the beneficiaries, and, further, that it does not so definitely designate the benefits under the term “insurance” that it should be operative. .

Now, as to the first point, whether these parties belong to that class that might be designated: Mr. Jaite shoi’tly before becoming a member of this order, was married to his wife, Elizabeth, designated in the certificate. The wife at that time had two daughters, one three years of'age and the other six, now Mrs. Striebinger and Mrs. Van Camp. They were taken into the family of Jaite and educated, clothed, fed and treated entirely and absolutely as his own children, he calling them his children and they calling him father. In 1893, perhaps, one of the daughters was married, Mrs. Striebinger; later Mrs. Van Camp was married. Both of these stepdaughters have looked to their father’s home as their home, as children look to the old home after they have left. Later Mrs. Van Camp’s husband met with reverses and misfortune came upon that family. ‘She and her husband were taken into the family of Mr. Jaite, provided for and looked after until his death. Some three years prior to his death they became absolutely members of his family and dependent upon him. Mrs. Striebinger, as I have said, has gone back and forth to the old homestead. Now under the circumstances of this particular case, we hold that these parties did come within the class that might have been designated by Mr. Jaite as the beneficiaries under the will.

It is said that this designation could not be made by will. Let it be borne in mind that this is a-case in which the beneficiary has died and no other beneficiary named in her place. The rules of the order, Section 47, provide:

“If one or more of the beneficiaries shall die during the lifetime' of the member, the surviving beneficiary or beneficiaries shall be entitled to the share of such decedent, equally, unless otherwise provided in the beneficiary certificate; and if all the beneficiaries shall die during the lifetime of the member, and he shall have made no other direction in his beneficiary certificate, the benefit shall be paid to his widow; if he leave no widow, then said benefit shall be paid, share and share alike, to his children; his grandchildren, living at the time of his death, to take the share to which their deceased parent would be entitled if living; if there be no children nor grandchildren of the deceased member living at the time of his death, then said benefit shall be paid to his mother if living, and if she be dead at' the time of his death, then to his father if living, and should there be no one living at the death of the member entitled to said benefit under the provisions of Section 46, then the same shall revert to the beneficiary fund of the grand lodge.”

It will be borne in mind that this is a controversy between the beneficiaries named and the grand lodge. No other beneficiary is disputing the claim; the benefits go to the grand lodge only, if there be no one under Section 46 entitled to its benefits. Now, this section that I have read named certain parties — the widow, children, grandchildren, the mother, the father — but there are others named in Section 46 who are entitled to these benefits before it goes to the grand lodge. How shall they be designated ? It does not name them. The language of the section reads:

“Each member shall designate the person or persons to whom the beneficiary fund due at Ms 'death shall be paid, who shall, in every instance, be one or more members of his family, or some one related to him by blood.”

It may be his father, his mother, brother or sister are entitled to the benefits. It may be some of those specifically enumerated or otherwise. No designation is made in Section 47 as to the dependent party taking. We find there was neither widow, children, grandchildren, father or mother. The order says it may go to ‘ ‘ one or more members of his family, ’ ’ a dependent, and if there is any one under Section 46 who can take, then the grand lodge does not take it. Clearly in this case there was not the slightest excuse for this order refusing the payment to Mrs. Van Camp. She was a member of Mr. Jaite’s family; she was dependent upon him. Neither the constitution and by-laws of the order nor the statutes designate any way in which the members shall designate the beneficiary as a member of his family, or as a dependent, and we are of opinion that it may be done by will.

The statute itself contemplates that it may not be done in the lifetime of the member. IIow shall it be done? Manifestly, • only in the way it was done here. At all events, we hold that it was a sufficient designation.

Again, it is said that the language of the will is not a sufficient designation. Certainly it is clearly a designation of the parties. They are named by name, and they are the daughters of his wife, and there can be no doubt that he intended this benefit under the term “insurance.” He refers to the fact that his wife was named as beneficiary, hence we hold that the designation by will could be made, and that designation is sufficient.

We reach the same conclusion that wds reached by the trial court. We think this judgment was not only right but rests upon a good, solid, legal foundation. The judgment of the court of common pleas is affirmed.