text:
    INJURY TO INFIRM PASSENGER ATTEMPTING TO AUGHT FROM CAR.
    [Circuit Court of Wood County.]
    The Toledo, Bowling Green & Southern Traction Company v. George McFall.
    Decided, November 29, 1905.

      Negligence—Degree of Care Incumbent upon a Carrier—With Respect to an Infirm Passenger—Disability of Passenger not a Basis for Defense of Contributory Negligence, When—Charge of Court— Verdict.

    1. The care to which a traction company should be held, with reference to a passenger who is alighting from a car, is that degree of care which is commensurate with the circumstances and the danger to be apprehended; and where an aged and infirm man, who is unattended, notifies the conductor as to the point at which he wishes to get off, and adds a caution against starting the car before he is off, more attention is demanded and should be given for his protection than in the case of passengers not so aged and infirm.
    2. The fact that an aged and infirm passenger may have been himself negligent in attempting to travel alone, does' not relieve a carrielhaving knowledge of his condition from liability for its own negligence with reference to him.
    3. Contributory negligence can not be based upon the fact that an infirm man, injured while traveling alone, was receiving a government pension for total disability.
    4. A verdict of $1,200 for the injuries shown to have been sustained by the plaintiff, under the circumstances of this case, is not excessive.
    Wildman, J. (orally); Parker, J., and Haynes, J., concur.
    In this case a petition in error is filed in this court to reverse the judgment of the Court of Common Pleas of Wood County, the petition alleging the general grounds of error found in this class of cases, the case being one for the recovery of damages for personal injury. A motion for a new trial was filed in the court below, and was overruled, and the overruling of it is made one of the grounds of error. It is claimed that the verdict is against the weight of the evidence, that it is excessive, and that the court erred in refusing to give an instruction asked for by the defendant below, the plaintiff in error here.
    The case was brought by George W. McFall against the traction company, alleging that on the 20th of January, 1904, it was the owner of a line of railway, operating electric cars, between the city of Findlay, in Hancock county, and the city of Toledo, passing through divers villages named in the petition, among which was the' village of North Baltimore. It is said that the line entered North Baltimore on its way north from 'the east part of the village, on Water street, thence' going north on Main street. It is alleged that on the date named, the plaintiff was a passenger on one of the defendant’s north bound ears, having boarded the car as a passenger on Main street in the city of Findlay, at about three o ’clock in the afternoon, and paid his fare . to North Baltimore, where he then resided; that he arrived at North Baltimore about four o’clock in the afternoon, and that the car stopped on the south side of Railroad street at the intersection of Main street and said Railroad street for the purpose of letting plaintiff and other passengers off; that the place where the car stopped was a regular stopping place for the letting off and taking on of passengers; that a number of passengers alighted from the car, and plaintiff attempted to do so and thus incurred the injury which is made the basis of the action.
    About the same time, and before the car had fairly started, the conductor of said car, it is averred, in disregard of his duty as such, and without paying any attention to plaintiff and the other passengers and without stopping to see that they alighted safely before said car was again started, left the car and ran north on the' east side thereof to a point on the east side of Main street and immediately north of the main track of the Baltimore & Ohio Railroad, where a derailing post is located, a distance of about a hundred feet from where the car stopped, for the purpose of pulling the lever on said derailing post in case the way was clear on said Baltimore & Ohio Railroad, and allowing defendant’s car to come north across the tracks of- said Baltimore & Ohio Railroad. As soon as the conductor of the car reached said derailing post, without looking back to his said car, although he then and there had a clear and unobstructed view of the same and of the rear end thereof on'the east side, and without giving plaintiff a reasonable and sufficient length of time to descend from the car,, he pulled said lever and motioned to the motorman of the car to- come ahead, and -thereupon the car was immediately started. Plaintiff avers that he was an old man, somewhat feeble in health, and slower than the ordinary person in his movements, of all which the said conductor had full notice and knowledge at the time the plaintiff became a passenger on said car at Findlay and thereafter. The petition alleges that at that time there was slush and snow and ice on the streets of North Baltimore, and some had accumulated on the rear of the car; that he attempted to get off the ca'r on the right and east side of the ear, and at the rear end where the other passengers who had preceded him had gotten off, and was carefully descending the steps of the car and about to step on the street, when the car was started as aforesaid, and he was thrown violently to the brick paved street, thereby seriously bruising and wounding him on the head and on his shoulders and back and hip, and thereby causing him to receive and suffer a severe physical and mental shock, and he claims damages for this in the sum of five thousand dollars. He alleges that all this was without fault on his part, and he says further, that prior to the stopping of the ear he notified the conductor that he- wanted to get off at said crossing, and requested the conductor not to start the car until he got off safely, but that the conductor, in disregard of plaintiff’s right and. his said request, and in disregard of his duties as such conductor, and by reason of his negligence, caused plaintiff to be thrown from the steps of said car and injured.
    The answer, which I will not stop to read, denies any negligence on the part of the traction company, and avers contributory negligence on the part of the plaintiff.
    The first question to be considered is, whether the claim of negligence as against the defendant company is so far sustained by the evidence as to justify the finding of the jury in favor of the plaintiff. The jury rendered a verdict for the sum of twelve hundred dollars, which the court below, in overruling the motion for a new trial, permitted to stand. ■
    Among the items of evidence in the case was a deposition of the plaintiff, in which he testified as to his recollection of the transaction, and among other things he says, that when he entered the ear he was helped into it by one or two parties named, and it appears also further in the deposition that the- conductor himself rendered some assistance in placing him in or taking him to a seat. He says, ‘ ‘ I told the conductor I guess I would get off here, and that I did not want him to start the car until I was off, as I had seen several parties throwed there by the car starting before they were off. ’ ’ Now, the latter part of this answer is of no consequence, but the statement that he told the conductor that he desired, to alight from the car at this place, and wished to have sufficient time to get off, coupled with the observation which was open to the conductor as to his age and condition, were fairly to be taken into account by the jury as matters which invited the attention of the conductor to the necessity and duty of using proper precaution to avoid injury to an old man. He was not altogether helpless, but while able to move about, to walk and get on the car and probably to alight without assistance, his condition was still such that it would seem to demand something more than the attention that would be properly given to an ordinary passenger of younger years and greater physical capacity.
    There is some disagreement in the evidence as to the precise manner in which the old man received his injury. The car was started as he was either entirely off the car so far as his feet were concerned, or, while one foot was' on the lower step and his hand still on one of the handrails in apparent attempt to steady himself in alighting. It does not seem to the court that it is of very much consequence what was the precise method in which he received the injury, if his fall was caused by the negligent starting of the car. Whether he had his hand upon one rail or the other; whether his feet were entirely disconnected from the car or not, are not matters of great moment if he was still so in contact with the car with either hand or foot upon it that the sudden moving of the car was likely to throw him to the ground and cause an injury. It is not strange that witnesses do not remember such matters precisely alike. Not only may there be variations in memory, but opportunities for observation are not just the same. The witness who described the plaintiff as falling backward, and just before the fall having still one foot upon the lower step of the car, seems to have had better facilities for observation than the witness who testifies that the old man was entirely free from the car so far as his feet were concerned. There was one other witness who was not sure whether his feet were upon the ground entirely or not. But as I say, that is not of great moment. The main question is whether the conductor used the care which should have been used by a conductor in charge of a car in the protection of the passengers upon his ear towards whom'the company owed the duty of protection.
    While the company was held to only ordinary care, that care should be commensurate with the circumstances and with the danger to be apprehended, and manifestly some higher degree of care—not of a different kind, but care commensurate with the danger, such as should be accorded to a man of infirm body and old age.
    There is another question in this case. The plaintiff in error argues, substantially, that the fact that McFall was receiving a pension for total disability, is evidence of negligence on his part: that he- ought not to have been traveling alone and unattended; that he was in such condition that he should have had a constant attendant, and that the pension would never have been allowed except for that necessity. But that is a matter between him and the government. If he has been receiving a pension for more than he would be entitled to, manifestly, the company could not recoup for that fact. It is but evidence in its bearing upon the question as to the extent of his disability and on the claim of contributory negligence. But even if he were negligent in this respect, as claimed, if the conductor knew the fact that he had no attendant and saw his condition, he was guilty of negligence in not earing for him and not paying attention to him. We do not think that if before that time the plaintiff had’ been guilty of negligence in entering the car, it would be such contributory negligence as would bar a recovery under the circumstances.
    Without going any further into the details of the case, so far as the question of negligence is concerned it is sufficient for us to say that we think the verdict of the .jury was justified by the evidence. There was nothing to indicate to their minds that the old man failed to exercise such care as men in his condition of mind and body would ordinarily exercise under like circumstances, but on the other hand, we think that the evidence did fairly tend to show that the conductor did not pay sufficient attention to the condition of this old man and the difficulty he might have in alighting from, the car, and that the conductor too hastily notified the motorman to move ahead with the car.
    The only question remaining is, as to whether the court properly instructed the jury, or properly refused a special request for instructions asked by plaintiff in error, and also as to whether the damages were excessive. The defendant below made three requests for instructions; two of them the court gave, and we think that the charge of the court on the whole was sufficiently favorable to the defendant. The court charged as to what would be ordinary care; that is, he defined it. There was no instruction as to the duties of the railway company to its passengers generally, but there was one paragraph defining the duty of the conductor as to a man of infirm body and old age. We think that it was a fair charge. So far as the refusal to give one of the three instructions is concerned, that request was so complicated that we think that the court was justified in its refusal as misleading to the .jury, and that in the second request asked and given, the defendant obtained everything to which it was justly entitled.
    It was urged upon the court, in oral argument and in brief, that the damages were excessive. The old man had been afflicted for many years, probably ever since his service during the war, with chronic diarrhoea, and one of the claims was that that disease had been very much aggravated by this injury, so that he was no longer able to control the action of his bowels. There is evidence given by the wife of McFall, and also by a girl who was employed in the household, that ever since the injury his mind seemed to be affected seriously, and indeed, one of the physicians who testified in the case, says that he had delirium. The extent of the injury is not very easy to determine with exactness. The amount of pain that the man suffered, mental and physical, was proper to be considered by the jury in view of the general claim of damage, and in addition to all this there was the claim in the petition that he had incurred medical expense necessitated by the injury to the extent of a hundred and fifty dollars. The doctor who testified as to services rendered after the injury, stated that his fees might amount to two hundred dollars, although he was not very definite as to just the time of the treatment. Whether the estimate covered any service before the injury and not made necessary by it, may be a question. Considering all the circumstances we see no reasons for disturbing the verdict upon the ground that it was excessive.- Surely there is nothing to indicate passion or prejudice. It is true enough that the sympathies of the jury, might well be aroused by the circumstances of the case, but they do not seem to have been led into any extravagance in the assessment of damages.
    The judgment of the court is that the verdict below should stand and the judgment of the court of common pleas be afT firmed. /

      Jas. . Bope and Jas. 0. Troup, for plaintiff in -erpor.

      W. E. McMillen, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    VALIDITY OF A STREET RAILWAY GRANT.
    [Circuit Court of Cuyahoga County.]
    William M. Raynolds et al v. The City of Cleveland et al.
    Decided, February 26, 1906.

      Street Railways—Provision of Granting Ordinance—As to Publication for Bids—Amendment Declaratory of Compliance with Original Ordinance without Effect—Estoppel against Municipality—From Denying the Existence of Facts theretofore Declared to Exist—Provision as to Transfers not Unreasonable—Duty of Council—Rights of Grantee—Good Faith.

    Í. Defects in a street railway franchise can not be cured by an amendment to the granting ordinance, which merely sets forth the facts as to what was done in the matter of publication of notice before the bids were received for the construction of the line, and declares that the publication was sufficient to meet the requirements of the granting ordinance.
    2. A municipality may be estopped by its own acts; it can not deny the existence of facts which, by the action of its duly authorized officers, have theretofore been declared to exist, when such facts are necessary to authorize the doing of some other thing which has misled another to his prejudice.
    3. A requirement as to the giving of transfers is one which council has a right to make, and is not rendered unreasonable by the fact that a company operating street railway lines intersecting the proposed line would be thereby placed at a disadvantage in the bidding.
    Marvin, J.; Winch, J., and ITenry, J., concur.
    Heard on appeal.
    It would not be a profitable use of time to go into a full statement of the facts in this case. They are known to counsel in the case, and indeed to the public generally, having received much attention in the newspapers of the city.
    The first matter to be considered is a motion, made by the plaintiff, to strike from the amended answer so much as sets up the facts in regard to the amendment of the ordinance of September 9, 1903, designated Ordinance No. 42846, the date of said amendment being January 11, 1904, the same being approved by tbe mayor on tbe 12th day of January, 1904. This amendment sets out the real fact as to what was done in the matter of publishing notice before bids were received for the construction of a street railroad on Dennison avenue, and then declares that the publication of the ordinance establishing the route, for two consecutive weeks, and the several newspaper items published in regard to the matter was a.sufficient compliance with the requirements of Section 2 of the establishing ordinance, requiring notice for bids to be published for three consecutive weeks, and that these publications sufficiently apprised the public of the time when bids would be received, and then proceeds again to grant the franchise for the construction of an electric railroad on Dennison avenue to Albert E. Green, upon his acceptance in writing of the terms of the grant within ten days after the passage of the amendment, and that he did so accept within the time specified.
    This suit was begun on the 11th uf January, 1904, the., very day on which this amending ordinance was passed, and the day before it was signed, and so, of course, before it could be published and take effect. We do not understand that any defects which existed in the defendant’s franchise would be remedied by the passage of this amendment. If the defendants can not stand upon the facts as they existed at the time the suit was brought, they can not'stand upon the facts supplemented, by this so-called curative amendment, and the motion to strike the same from the amended answer is sustained.
    Upon the merits of the case, we are in accord with what was said in the court below upon several of the propositions, and could not hope to more clearly express or give more cogent reasons for the conclusions reached than are found in that opinion. We refer in this to the matter of the western terminus of the proposed route, requiring of'a deposit of $10,000 by the successful bidder, with provision for its forfeiture, and the necessity for the publication of the notice provided for in the second section of the establishing ordinance. We do not concur in what is said in that opinion as to the provisions of Section 8 of the establishing ordinance, which reads:

      “Section 8. The fare for which the bidder proposes to carry passengers shall entitle the passenger to one continuous ride in the same general direction, and each passenger shall be entitled to one transfer ticket for passage on another line, if any, owned by the successful bidder hereunder, his heirs, successors or assigns, at all points of intersection or connection with such other routes, if such transfer be necessary to enable him to continue to his destination. ’ ’
    This requirement seems to us to be one which the council had a right to make, and, if it be true that a company already operating a road with lines intersecting those of the proposed new line would be at a disadvantage in bidding, which may be matter of considerable doubt, still we see no reason why the requirement was not perfectly reasonable. It might well be supposed by the council that whoever should be the successful bidder would be likely in the near future to construct other lines in the city, and but for this provision an additional fare might be then required. If such a provision were not required, a company already operating in any city would have greatly the advantage over any other bidder. It was for the council.to say what would be required of the successful bidder. It was its duty to make such provisions as in its judgment would conduce most to the good of the public. It exercised that judgment. There is no suggestion that it was -not done in good faith, nor are we convinced that there was even a mistake in such judgment. We would not allow an injunction on account of this provision.
    Unless, however, the plaintiff is estopped from maintaining his action by some act of the city, we would enjoin for the failure to give the notice required by the second section of the establishing ordinance. We are in accord with much that was said in the lower court on this -question. In addition to what is there said, we call attention to the case of Dixon Co. v. Field, 111 U. S., 83, in which case it is said in the syllabus:
    “A recital in a municipal bond of facts which the corporate officers had authority by law to determine and to certify estops the corporation from denying- those facts; but ’a recital there of -facts which the corporate officers had no authority to determine, or a recital of matters of law does not estop the corporation. ’ ’
    In this case it is held that when the proper tribunal has made a finding as to the facts necessary to authorize the issue of bonds by a county and has certified to the existence of such facts, the county, as' against an innocent purchaser of the bonds, is estopped to deny that the facts are as found and certified.
    In the opinion delivered by Judge Spear in Ensel v. Levy & Bro., 46 O. S., 259, he quotes with approval this language from the opinion in Beardsley v. Foote, 14 O. S., 416:
    “We think an estoppel may arise from admissions and declarations made without any fraudulent purpose. The circumstances may be such, that ‘good conscience and honest dealing’ may require a party to bear the consequences of his own negligent mistake, instead of throwing the resulting loss upon another whom he has misled.”
    In this case Poote had purchased land upon which Beardsley had a lien. Before doing so he applied to the latter’—whom he found attending an agricultural fair—for the purpose of ascertaining whether he held any claim or lien upon the land, informing him that he (Poote) expected to purchase if he could get a good title. Beardsley, in reply, gave a positive assurance that he had none, and Poote, relying on this assurance, purchased and paid for the land. An examination of the county records would have disclosed the lien. Beardsley was held estopped to set up his lien as against Foote’s title. The syllabus reads:
    “Admissions in pais, though made in good faith, may yet be made under such circumstances as to operate by way of estoppel, and preclude the party from afterwards gainsaying-them.”
    On page 260, Judge Spear says:
    “From the foregoing, it is fair to assume, that where one, by his acts or declarations, made deliberately and with knowledge, induces another to believe certain facts to exist, and that other rightfully acts on the belief so induced, and is misled thereby, the former is estopped to afterwards set up a claim based upon facts inconsistent with the facts so relied upon, to the injury of the person so misled.”

      The syllabus reads:
    “An estoppel in pais arises where one is prejudiced by the willful act or declaration of another upon whose conduct the former has rightfully acted. Hence, where the owner of goods sells to one on credit, and knowingly delivers to him a receipt drawn in such form, and given under such circumstances as to cause an innocent purchaser, buying from the vendee, rightfully to believe that the goods will be delivered upon compliance by said purchaser with certain conditions in the receipt contained, and he parts with his money in good faith upon the belief thus created, such purchaser has the right to avail himself of the terms of the contract and the vendor is estopped to afterwards set up a lien for purchase-money and insist upon its payment as a further condition to delivery of the goods.”
    In the case of The City of Mt. Vernon et al v. The Slate of Ohio, ex rel Berry, the first clause of the syllabus reads:
    “Where a municipal corporation has entered into a contract with an individual under and by virtue of a statute which is unconstitutional and the subject-matter of the contract is not ultra vires, illegal or malum prohibition, and the facts are such, as against the corporation, as would estop an individual from setting up as a defense the unconstitutionality of the statute, the municipal corporation will also be so estopped.”
    From these cases and others we conclude that municipal corporations may be estopped by their own acts, as well as natural persons, under certain states of fact. They may not do those things which are ultra vires and thereby be estopped from denying the validity of the things so done,' but they may be estopped from denying the existence of facts which, by the action of their proper officers they have declared to exist, which facts are necessary to authorize them to do some other thing when they have thereby misled another to his prejudice.
    In the case under consideration the council was authorized by law to grant a franchise for the construction and operation of a street railroad on Dennison avenue, provided it pursued the mode pointed out by law for that, purpose. The granting of the franchise was not ultra vires. By its own ordinance it provided in effect that such franchise would not be granted until notice for bids had been published for three consecutive weeks. Having so 'provided, it was as much bound to make the advertisement as though the statute of the state had in terms required it. Before the franchise could be lawfully granted, it was necessary that such publication be made. It was the duty of the city to ascertain whether this publication had been made. Clearly, this duty of the city was to be performed by its council, That body must know, before it grants the franchise, that the publication has been made. By its ordinance granting the franchise it declared in these words:
    “Whereas, Peter Witt, City Clerk of said city, in pursuance of the direction in said ordinance contained, did give public notice, by due publication thereof, in accordance with law, in two newspapers of opposite politics, and in a German newspaper, all of general circulation in said city, for three consecutive weeks next preceding the 18th day of- July, 1903, advising the public that sealed proposals would be received not later than 12 o’clock noon of the 18th day of July, 1903, at office of the city clerk in the City Hall, for the grant of the right to construct and operate, for a period of twenty years, said street railroad, over said streets in said ordinance and advertisement described. ’ ’
    Here, then, was the statement solemnly made by the proper authority, to the grantee of the franchise, and to the public, that this prerequisite had been complied with. It was the duty of the council to have knowledge on the subject. It declared by this ordinance that it had such knowledge, and that the publication had been made. The grantee had a right to rely on this declaration, he being without knowledge on the subject. No search of the records of the council could have furnished him any information that the statement was not true. The Forest City Railway Company, which is the owner of all the rights which the grantee took, acted upon this information and in good faith expended something like $30,000 in execution of the work undertaken under the grant by the grantee. This sum, or the greater part of it, will be lost to the company if the injunction is allowed. Nothing is shown that will be lost to the city if it is denied. The proper authorities of the city have declared that thte public will be benefited by the construetion and operation of a street railway along the proposed route. No one has bid for it but the grantee of this franchise. No other bidder is suggested as probable except a corporation which notified the city in writing that it would not bid. We come, therefore, to the conclusion that the petition 'should be dismissed, and judgment is rendered accordingly.

      Wilcox, GolUster, Hadden & Parks, for plaintiffs.

      City Counsel, Blandin, Bice & Ginn, for defendants.


text:
    SIDEWALK IMPROVEMENTS UNDER. THE MUNICIPAL CODE.
    [Circuit Court of Wood County.]
    Arsula Westenhaver v. The Village of Hoytsville.
    Decided, November 25, 1905.

      Sidewallcs—Alternative Procedure for the Construction of—Special Ordinance not Necessary—Presumption as to Benefits—Burden of Establishing Irregularities in Procedure—Discretion of Municipality as to Ordering Improvement—Injunction—Provision for Assessment of Costs.'

    1. In the construction of sidewalks, municipalities are not confined to the mode of procedure provided under Section 50 et seq. oí the municipal code, but they may proceed in the summary manner provided in Section 70 et seq.

    2. A special ordinance for the construction of a specific sidewalk is not required, where a general ordinance for the construction of sidewalks has been theretofore enacted.
    3. There is no requirement that council shall ascertain in any way that land upon which it is proposed to impose a sidewalk assessment has been benefited by the improvement, but the mere fact that the land abuts on the improvement may be taken as evidence of benefit.
    4. In an action to enjoin the collection of a sidewalk assessment on the ground of irregularities of procedure, the burden is upon tlfe plaintiff to point out and establish irregularities warranting the setting aside of the assessment.
    Wildman, J. (orally); Parker, J., and Haynes, J., concur.
    The claims of the plaintiff in this case, -which is an appeal from the Court of Common Pleas of Wood County, are stated in the amended petition. Many of the facts in the case are not disputed. The village of IToytsville is a municipal corporation in this county, and it appears by the pleadings, evidence and concessions that a sidewalk has been constructed along the east side of property, owned at the institution of this suit by the plaintiff, and that she has been assessed for its cost. Believing the assessment to. be invalid, she declined to pay .it, whereupon a penalty was imposed, and upon its being certified to the auditor she instituted this suit to enjoin the collection of the assessment and penalty, amounting to $204.12. The case involves a question of so much importance, as affecting improvements of this character in other municipalities over the state, that it would be interesting and perhaps profitable to consider in some detail the authorities which have been cited in argument. The case may, however, be very briefly disposed of by an announcement of the construction which we have placed upon the statute under which the improvement was made.
    In the year 1902, in an extraordinary session of the Legislature, a new municipal code was adopted, and among other matters therein treated provision was made for improvements of this kind. In 96 O. L., 39, we have Section 50 (Revised Statutes, 1536-210) and other sections provided for the improvements of streets, alleys and public roads in various ways, • including among such improvements the construction of sidewalks. The petition herein is based upon the theory that this sidewalk could properly be constructed and the costs thereof provided for, so far as the assessing of property owners was concerned, in no other manner than by application of the provisions of Section 50 and those immediately succeeding. The same statute, however, on page 45, contains Section 70 (Revised Statutes, 1536-232), a part of which I will read—
    “The council of cities and villages may provide by ordinance for the construction and repair of all necessary sidewalks, or parts thereof, within the limits of the corporation.”
    And then follow provisions as to the manner in which the construction of a sidewalk may be provided for; an opportunity given the owner of abutting lots or property to construct for themselves, and in default thereof, providing for the construction by the municipality, and the imposing of the costs upon the abutting property owners.
    After as critical examination as we have been able to give to these various sections, we are of the view that an alternative procedure was given to municipalities for the construction of sidewalks; that they were not held to the somewhat costly and slow process provided for general improvements under Section 50 el seq., but that they might proceed in the summary manner provided by Section 70 and sections immediately following it.
    We are of the opinion also that the proceedings so required have been in this case substantially carried out. It appears that before the adoption of this new code a general ordinance for the construction of sidewalks had been enacted. No special ordinance was passed-for the construction of this particular sidewalk, and our judgment is that one was not required.
    It is asserted in this petition that no opportunity was given to the owner to build the sidewalk, because it was not pointed out to her what should be the grade upon which the sidewalk should be established; that no specifications were furnished her and no opportunity given her to determine just how the sidewalk should be constructed. Our judgment is, that if she complied with the notice given to her and in accordance with all the light given her by the resolution ordering the improvement, the city could not complain if it were in default in any way in not providing her with specifications for the improvement.
    This sidewalk was constructed of brick, five feet wide, not along her entire frontage, but along part of it; but even if the entire cost of construction of the walk along her entire frontage had been placed upon her property we see nothing in this statute which would inhibit such action of the municipality. The statute in this alternative procedure makes no condition that the lands or lots abutting upon the improvement shall be benefited thereby. It seems to be the contemplation of the Legislature that the mere fact that the lots or lands abut upon the sidewalk shall be sufficient evidence of benefit to justify the imposition of the cost upon the property. At any rate, there is no requirement in this part of the statute that the council shall ascertain in any way that the land is benefited, but the statute is express that the council may assess the costs of the improvement upon the abutting lot or lots or lands.
    It may be that a court of equity, if there was an oppressive use of the power given to the municipality, might by injunction stop the exercise of such power. It may be that a court might have jurisdiction to prohibit a gross abuse of that discretion which is lodged in the legislative power of the muncipality. But nothing of that kind appears here. It is urged that this sidewalk was constructed in front of property known as farm land, and that the sidewalk was constructed in such a way that it was of no special benefit to the land along which it lay by reason of its being so constructed that the water would not flow away from it; but it appears that the council assessed not much more than one-half of the cost of the sidewalk upon this abutting-land. The land abutted on a street running north and south, and a large part of the walk, nearly but probably not quite half, in front of the plaintiff’s property, was constructed on the opposite side of the street; these two walks were connected by a crossing, so that a person could have a continuous sidewalk by using both sides of the street. There is not expressed in this part of the statute any limitation as to the percentage of the assessed valuation of plaintiff’s property which may be charged with the cost of this kind of an improvement. But even if the limitation in earlier sections applies, and even if she could be charged with only thirty-three and a third per cent, of the entire valuation of her property for taxation, still there can be no complaint in this case. The amended petition alleges the value of the property as assessed for taxation at twelve hundred and ninety dollars; the amount of the costs here assessed was only $182.32, or with penalty added $204.12, considerable less than thirty-three and a third per cent, of the value of the land as appraised for general tax purposes.
    The statute subsequently passed in 1904, amendatory of many of these sections, does not greatly aid the present inquiry. The sidewalk under consideration was constructed in 1903 and while the statute of 1902 was in force as originally passed. There are some provisions in the statute of 1904 which may, however, throw some light upon the construction placed on that of 1902 by the Legislature passing the later act; but we think that so far as this question is concerned it does not disturb the view which we have taken. On the contrary, it rather reinforces and strengthens our conviction as to the proper construction to be given to the municipal code of 1902 (96 O. L., 20).
    . Under the new act, in Section 73 as amended by 97 O. L., 124 (Revised Statutes, 1536-235), it is provided that “no other or further proceedings for the construction or repair of sidewalks, curbing or gutters, and levying assessments therefor shall be necessary by the department of public service, or council, than the proceedings required under this and the two preceding sections”—which would be Sections 71 and 72 (Revised Statutes, 1536-233; 1536-234). Our judgment is that this was inserted in the amending section rather for the purpose of relieving any doubts as to the construction of the original Section 73, than for the purpose of changing or modifying the law in respect to which attention has been called.
    In the code of 1902, Section 71 provides for a notice to the owners of the abutting property; Section 72 provides for the notice to non-residents or persons not found, and then Section 73 provides that on failure of the owner to construct a walk, the same may be done at his expense, without any qualification as to the benefit it may be, and without any qualification as to the amount that may be assessed. The provision is that the cost of the walk may be assessed. Whether the limitation as to amount of assessment found in other sections applies, we do not find it necessary to decide. In the latter part of Section 73 it is'provided that the “expense shall be assessed on all property bounding or abutting thereon, and shall be collected in the same manner, with a penalty of five per centum and interest after failure to pay at the time fixed by assessing ordinance as in other cases of improvement.”
    Now, as to general improvements provided for by Sections 50, 51, 52 and 5"3, etc., there was a provision for the manner in which the costs of the same should be paid. Section 51 treated of the method in which the assessment could be paid and of the issue of bonds in anticipation of such payment, and provided that “the county auditor should annually place upon the tax duplicate the penalty and interest.”
    Now, the very fkct that in this provision as to the cost of a sidewalk constructed under a resolution, where the whole cost is placed upon the property, no provision is made that that cost shall be assessed in the same manner as other costs, leads to the inference that the understanding of the Legislature was that this enactment was a proceeding independent of the other; otherwise it would not have been necessary to make this provision as to the certifying and collecting of the assessment for the costs of improving a sidewalk under Sections 71, 72 and 73.
    Our view of the whole matter is that the plaintiff, upon whom the burden rested to show irregularities and defects in the proceedings for the construction of this sidewalk, and the imposition of the costs, has not sustained that burden by the evidence; that the theory which has been the basis of this action, is not tenable; that the council did not proceed under Section 50 and those immediately succeeding, but under the other sections to which reference has been made. Wé do not adopt the contention that it is incumbent here for the defense to show all their procedure for the construction of this sidewalk and the assessing of these costs; the burden, in our judgment, does not rest upon the municipality, but that whatever defects are claimed by the plaintiff should be pointed out and proven to the court-under the denials made- in the answer of the defendant.
    Our conclusion is that the injunction asked for should be refused, that the petition of the plaintiff should be dismissed, and judgment rendered against the plaintiff for the costs.

      Taylor é Jones, for plaintiff.

      Baldwin & Harrington, for defendant.


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    CONSTRUCTION OF THE NEGOTIABLE INSTRUMENTS ACT.
    [Circuit Court of Clark County.]
    Harry L. Rockfield et al v. The First National Bank of Springfield, Ohio.
    Decided, May, 1906.

      Promissory Notes—MaJcer—Surety—Endorser—No-tine to Endorser— Negotiable Instruments Act of April 17, 1902.
    One wlio places tis name on the back of a promissory note before delivery is a maker or surety, and is not entitled to notice of presentment and non-payment. The act of April 17, 1902, known as “The Negotiable Instrument Act,” does not change the liability of such party as established by the Supreme Court of the state for many years.
    Dustin, J. (orally); Wilson, J., and Sullivan, J.) concur.
    The First National Bank, as payee, -brought two actions in the common pleas court against Rockfield et al upon two promissory notes of the defendant railway, on both of which notes the names of defendants, Rockfield and Snyder, appeared on the back as indorsers. Several other indorsers were also upon the notes, which were payable at the bank. The petition in each case is in the usual form, and does not aver that these indorsers were notified of any dishonor of the paper by the maker.
    The indorsers above named demurred to the petition, and the demurrer was overruled. They then answered, and plaintiff below demurred to the answers, which set up that the defendants named were accommodation signers, and that they had not been notified of the dishonor of the paper.
    The demurrers to these answers raised the same questions as the demurrers to the petitions. The demurrers were sustained, and Rockfield and Snyder prosecuted error to this court upon the judgments rendered, alleging that the court erred, first, in overruling the demurrers to the petitions, and second, in sustaining the demurrers to the answers.
    Highly important and startling questions are thus raised as to the effect of the statute which was passed April 17, 1902, codifying the law of negotiable instruments in Ohio. It is conceded that up to that time the law was, as announced by several decisions of the Supreme Court, that a stranger to an instrument, who had signed before delivery of the instrument, his name being upon the back thereof, was, in the absence of any explanation, maker and surety; but it is now contended that he is an indorser, entitled to notice of presentment and non-payment, and, in the absence of notice, that he is discharged. This theory of the case presents several ingenious and interesting points, and an examination of the question has been quite entertaining to the court.
    We think that the sections which should be considered in determining this question are, first, Section 3173-1, the sub-head being “Liability of Irregular Indorser.” This section reads as follows:
    “Where a person not otherwise a party to an instrument places thereon his signature in blank before delivery, he is liable as indorser in accordance with the following rules:
    “1. If the instrument is payable to the order of a third person, he is liable to the payee and all subsequent parties.
    “2. If the instrument is payable to the order of the maker, or is payable to bearer, he is liable to all parties subsequent to the maker or drawer.
    “3. If he signs for the accommodation of the payee, he is liable to all parties subsequent to the payee.”
    Therefore, his liability, as here defined, is the same as the maker and surety. It is in exact accord with the holdings of the Supreme Court in 55 O. S., p. 596, and previous decisions.
    Section 31737s describes the liability of a general indorser, and that is the sub-head to this section, which reads:
    “Every indorser who indorses without qualification, warrants to all subsequent holders in due course:
    “1. The matters and things mentioned in paragraphs numbered one, two and three of the preceding section; ’ ’ and right here I will read paragraphs one, two and three of the preceding section, which is “j,” and which defines the warranty where negotiation is by delivery:
    ! ‘ 1. That the instrument is genuine and in all respects what it purports to be.

      ‘12. That he has a good title to it.
    “3. That all prior parties had capacity to contract.”
    That implies, of course, that he is an indorser in the regular course, and that it was transferred by the payee, or some subsequent indorser. That would be. just as the law was before in the case of a party who indorsed after the first delivery.
    “And, in addition, he engages that on due presentment, it shall be accepted or paid or both, as the case may be, according to its tenor, and that if it be dishonored and the necessary proceedings on dishonor duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who may be compelled to pay it.”
    This describes what was previously known as the liability of a general indorser, in the course of.trade. Now, let us look at the subdivision on dishonor of paper. Section 3174gr/ reads:
    “ [To Whom Notice of Dishonor Must he Given.] Except as herein otherwise provided, when a negotiable instrument has been dishonored by non-acceptance or non-payment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged. ’ ’
    It is true that the words there are general; awy indorser or drawer shall be given notice. We think that must be read in the light of previous definitions of regular and irregular indorser, and to make the statutes consistent, it can only apply to a general indorser. It will be observed that in Section 3173i, the party is not described as an endorser:
    “Where a person not otherwise a party to an instrument places thereon his signature in blank before delivery, he is liable as indorser in accordance with the following rules: ” * # *
    In Section 31737c, every indorser, etc., is described as such. In Section 3173i, the party described has the liability of an indorser to a certain extent; in the first, he is called an indorser.
    Now, Section 31737t, .has also been commented upon. “When Person Deemed Indorser” is the sub-head:
    ‘ ‘ A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor, is deemed to be an indorser, unless- lie clearly indicates by - appropriate words his intention to be bound in some other capacity. ’ ’
    We think that it is not inconsistent with the other section; but if it were, the statute describing the irregular indorser— and Rockfield and Snyder meet the description in this case—• should control, upon the familiar principle that if there is any conflict between a general and a special statute, the special statute governs.
    We are unable' to see this in any other light -than that Rock-field and Snyder come under the description of irregular indorsers in Section 3173i, and their liabilities are the same—as before stated, by decisions of the Supreme Court—as makers and sureties.
    Some point was made of the fact that the title of the act reads: “To establish a law uniform with the laws of other states ou negotiable instruments,” and it is argued that that indicates in itself the intention to change the law on that subject; otherwise there would be no necessity for the act; and the implication is that the laws of Ohio are different from those of other states, and this act is made to conform to them, thereby showing the legislative intent to change the law on this subject.
    That argument would be quite forcible if it only applied to the subject of indorsement. Then perhaps there would be an indication that the Legislature intended to change the law in Ohio on the subject of the liability of an indorser. But, in fact, it includes the whole field of the law of commercial paper; and while it does imply an intention to change the law in some respects and make it conform with that of other states, there is no indication where the change is to appear. There are pages and pages concerning commercial power in all its phases; and we get no light from the title as to what is to be changed.
    We think that the court did not err either in overruling the demurrers to the petitions, or in sustaining the demurrers to the answers, and that the law has not been changed by the statute ■referred to, and the judgment will, therefore, be affirmed.

      Jas. Johnson, Jr., for plaintiff in error.

      Markin & Martin, Hagan c§ Hagan, for defendant in error.


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    EXEMPTION RIGHTS OF WIDOW WHO HAS SEPARATED FROM HER. HUSBAND.
    [Circuit Court of Muskingum County.]
    In the Matter of The Estate of Divver McMillan, Deceased.
    Decided, June, 1906.

      Husband and Wife—Widow’s Exemption—Tear’s Support—Section G038 Construed.

    The fact that a husband and wife separate, and live apart for a number of years, does not destroy the wife’s right of exemption as a widow; but until they are divorced, the wife at his death is entitled to a year’s support and the articles of personal property mentioned in the statute.
    McCarty, J.; Donahue, J., and Taggart, J., concur.
    This matter comes before us on appeal from the common pleas and probate courts.
    The statute authorizes certain property to be held exempt by a widow in her own name. This the appraisers of the estate of Divver McMillan failed to do in the first instance, and being called together again and instructed as to their duties, they went out to make a different appraisement; hence the question arises as to the rights of the widow and the rights of the executors under the will. A demurrer has been interposed to the answer of the executors by Mary A. McMillan, by. Eli Border, her guardian, which answer reads as follows:
    “Now come the executors of the last will and testament of the said Divver McMillan, deceased, and for answer to the application of Mary A. McMillan, by Eli Border, her guardian, to recall the appraisers, etc., of said estate and make allowances under the provisions of Sections 6038, 6039, 6040 and 6041 of the Revised Statutes of Ohio, say:
    “That the said Mary A. McMillan on the 14th day of October, 1897, without cause deserted her husband and lived apart and separate from her husband during the remainder of his lifetime, to-wit, seven years; that said separation was a voluntary act of the said Mary A. McMillan, and was misconduct on her part, and the family relationship of husband and wife did not exist at the time of the death of the said Divver McMillan, and had not from said 14th day of-October, 1897, and that the right of the widow to said year’s allowance does not exist, for the reason that the family relation as above stated did not exist at the time of the death of the said Divver McMillan, and for the further reason that an agreement was made between the said Divver McMillan and the children of the said Mar.y A. McMillan, on the 23d day of October, 1897, whereby 'it was agreed that the said Divver McMillan should be relieved of any claim on account of support of said Mary A. McMillan so long as she might remain away from his home. Wherefore, these executors pray that the inventory filed by said appraisers be approved and that the application for recalling the appraisers, etc., be overruled and for such other relief as is proper.”
    To this answer a demurrer was interposed which raised the question as to whether the answer sets forth facts sufficient to constitute a defense on the part of the appraisers for not setting apart a year’s support.
    This brings us to another question, viz., is the widow entitled, in her own right, to certain things without administration; has she a right to a year’s support and certain articles of personal property? The question was fully argued, heard, and disposed of in the probate court, and a petition in error was filed in the common pleas court, which court sustained the demurrer.
    Section 6038 of the Revised Statutes is in this language:
    “When any person shall die leaving a widow or minor child or children under the age of fifteen years, the following property shall not be deemed assets or administered as such, but shall be included and stated in the inventory of the estate and signed by the appraisers without appraising the same—
    “First. One family sewing machine, to be retained by said widow absolutely as her own property, and all spinning wheels, weaving looms, and stoves set up and kept in use by the family.
    ‘ ‘ Second. The family Bible, family pictures, and school books used by or in the family of the deceased, and books, not exceeding one hundred dollars in value, which were kept and used as part of the family library before the decease of such person.
    “Third. One cow, or if there be no cow, household goods, to be selected by the widow, or if there be no widow, by the guardian or next friend of such minor child or children, not exceeding $40 in value, or if there be no household goods such as the widow or guardian or next friend may desire to select, then $40 in money: all sheep to the number of twelve, their valuation not to be greater than $75, and the wool shorn from them, and the yarn and cloth manufactured by the family; all flax in possession of the family intended for the use thereof, and yarn or thread cloth manufactured therefrom.
    “Fourth. All the wearing apparel and ornaments of the family and of the deceased, all the beds, bedsteads, and bedding, cooking utensils, and tableware necessary for the use of the family, one clock, one side saddle, and any other articles of personal property not to exceed $100 in value, which the widow, or if there be no widow, the guardian or next friend of such minor child or children, may select, to be valued by the appraisers. ’ ’
    It is said here in argument that there was some controversy between husband and wife, and it was perhaps mutually agreed by them that they would live apart and not cohabit together as husband and wife any further, which they continued to do for about the period of seven years. It is contended that relations between them as parts of the same family ceased to exist, and it is also said that the wife at one time brought an action for divorce, there was an answer to this petition praying for divorce, but there was never any divorce granted. Therefore, when this husband died, he left this woman as his widow, there being no legal separation, and as his widow she would be entitled to a year’s support and the articles of personal property as I have stated.
    In the note under Section 6038 is the following:
    “The allowance to the widow for her support for the year is such a debt against the estate of her husband that resort may be had for the payment of the same against land conveyed away by the deceased for the purpose of defrauding his creditors.”
    There are several decisions along this line, holding, in effect, that until a wife and a husband are divorced, the wife is, at the husband’s death, entitled to a year’s support and the articles of personal property mentioned in the statute.
    We have, therefore,' concluded that the answer set up by the ■ executors does not constitute a defense to the cause of action stated in the application of Mary A. McMillan, and we shall affirm the decision of the common pleas court, and we sustain the demurrer to said answer.

      McHenry & Kibble, for plaintiff in error.

      Winn & Bassett, for defendant in error.


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    EVIDENCE AS TO VALUE IN APPROPRIATION PROCEEDINGS.
    [Circuit Court of Cuyahoga County.]
    The Cleveland Terminal & Valley Railroad Company v. Thomas M. Gorsuch et al.
    Decided, December 22, 1905.

      Eminent Domain•—Evidence—Tests of Value of Land Taken—Character of Adjacent Railway Line—Recent Sales—Price Paid by Oioner— Yalue at a Prior Date—General Selling Price in Neighborhood— Separate Valuations on Land and Building.

    1. In an action to fix compensation for land appropriated for railroad purposes, testimony to the effect that the company using the freight, house adjoining the premises operates one of the largest systems in the country is proper, because of the greater value of property thus located over that on an insignificant line.
    2. The proper test of the value of land so appropriated is not the price paid 'at a particular sale, but the general selling price in the neighborhood.
    3. The amount paid by the owner of the property sought to be appropriated does not fix its present value, nor is .its present value shown by evidence as to its value at a date fourteen months earlier, but both have a hearing on its present value, and are admissible in evidence as tending to show present value.
    4. A property owner has the right to show the value of his land separate from the building, and the value of the building separate from the land, and in the absence of all other evidence the aggregate of these two valuations should be taken as the value of the parcel.
    5. A motion to take from the jury an entire answer as unresponsive is properly overruled, where a part of the answer is directly responsive and the remainder is not prejudicial.
    Marvin, J.; Winch, J., and TIenry, J., concur.
    Error to the court of common pleas.
    The railroad company brought proceedings in the probate court of this county to appropriate for railroad purposes certain real estate owned by the defendant Gorsuch and others in the city of Cleveland. By proper proceedings the matter of the assessment of the compensation to be paid for the, premises so appropriated was brought to trial in said court, and the .jury made return by its verdict of the amount assessed in favor of each owner whose lands were sought to be -appropriated. Judgment was entered for each on such verdict.. The plaintiff brought proceedings in error in the court of common pleas to reverse the judgment as to Gorsueh. On hearing, such judgment was affirmed, and these proceedings are now prosecuted here to reverse such judgment of affirmance.
    A bill of exceptions is filed here containing all the evidence offered on the trial in the probate court, together with a record of all the proceedings at such trial. Numerous rulings of the court are complained of, all of which have been carefully considered, and some of which are especially pointed out in this opinion. Mr. Gorsueh, the owner of the premises, was undergoing examination as a witness and had testified as to the surroundings of the property, the increase of business in the neighborhood, the proximity of the Valley Railroad tracks, etc., and then this question was asked:
    “What, Mr. Gorsueh, is the common reputation of the C., T. & V. Ry., whether or not it is being operated as a part of another system. A. To the best of my judgment and what I have seen, by the Baltimore & Ohio.”
    On motion of the defendant the answer was taken from the jury, and then this question was asked:
    “Mr. Gorsueh, you may state whether there is a common reputation in the neighborhood in which you live, that the Cleveland Terminal & Valley Railroad Company are operating and using this freight station which is in the rear of your property, whether they are or not ? ’ ’
    This was objected to by the plaintiff, the objection overruled, and plaintiff excepted.
    “A. It has been used in that way.’.’
    Then this question:
    “Well, now, what railway company has been using and operating this freight station in the rear of your property ? ’ ’
    . . This was objected to, the objection overruled, and an exception takqn..
    . - “A. Well, it has been operated by the Baltimore & Ohio.
    , ‘.‘Q. Now, Mr. Gorsueh, have you any personal knowledge of the character, as to the extent of the Baltimore & Ohio Railroad Company, whether it is a large or a small railroad?
    “(Objected to; objection overruled; exception).
    “A. It is one of the largest systems wo have got, amongst the largest. ’ ’

      We find no error to the prejudice of plaintiff in any of these rulings. The witness does not testify as to the reputation in the neighborhood as to either railroad company. He does testify that the freight house adjacent to his premises was used by the Baltimore & Ohio, and that this is one of the largest systems in the country. We think it entirely proper in an effort to ascertain the value of property to show that it is -near to a great railroad. Property is likely to be enhanced in value by being near to such a railroad over what it would be by some insignificant tramway or small road.
    Mr. A. G. Daykin, a witness, on behalf of defendant Gorsueh, was being cross-examined by counsel for the plaintiff, and this question was asked of him:
    “Did you know, Mr. Daykin, of Mr. Gorsueh having within about a year sold the thirty-three feet adjoining? A. No, I don’t know anything about it, except what Mr. Gorsueh said about it.
    “Q. Did you learn, prior to testifying, that such a sale had been made of 33% feet adjoining by him at about the time he acquired this property? A. I don’t think I did, Mr. Tolies. IIs said something about being skinned out of a piece there, but I didn’t take it into consideration.”
    The plaintiff moved to have this entire answer taken from the jury, and same was overruled.
    There was no error in this ruling. Certainly the first sentence of the answer is directly responsive to the question put. The court was not asked to take a part of the answer from the jury, but to take it all away. Nor do we regard the last part of the answer as prejudicial to the plaintiff. There is nothing to indicate who Gorsueh thought skinned him, if anybody did.
    Further on in this cross-examination the same witness was asked if he did not know of the sale of certain other property by the plaintiff in this locality, and he answered:
    “Yes; he told me he got swindled out of it.”

      Motion 'was made by plaintiff to take this answer from the jury. The first part was responsive to the question; the last part was not prejudicial.
    Without stopping to call attention to each of the rulings on the admission of evidence, in which we find no error to the plaintiff’s prejudice, we come to the consideration of a question appearing on page 136 of the record. Mr. F. IT. Goff was upon the stand as a witness for the plaintiff. ITe had qualified as being sufficiently acquainted with the value of lands in the neighborhood of those under consideration to entitle him to give an opinion as to such values, and had placed a value upon the defendant’s land, the value of which was in issue. He was then asked this question:
    “You may state, Mr. Goff, what, during the period named by you in your previous examination, has been the general selling price of lots upon James street?”
    This was objected to, the objection sustained and exception taken. It was expected that the witness would answer $1.50 per square foot without buildings; $2.50 with buildings.. This was property in the immediate vicinity of that in question. Mr. Goff had testified that he knew of a considerable number of sales in that vicinity within the past two years.' He had given his estimate of the value of this property. The question now under consideration sought to bring out an independent fact, viz., the general selling price of lands in the neighborhood within a comparatively short time. He had already said that he knew what it was. We think if the witness had testified that he had not examined the tract in controversy, it would still have been competent to show by him at what prices land in that locality was selling for.
    Lewis on Eminent Domain, paragraph 443, says:
    ‘ ‘ The propriety of allowing proof of the sales of similar property to that in question, made at or about the time of the taking, is almost universally approved by the authorities.”
    He shows, however, that there are high authorities to the contrary.
    Elliott on Railroads, Section 3036, says that it is not settled that the price paid on particular sales is admissible, but that it is the general selling price of land in the neighborhood which is the test. We hold that the evidence of the general selling price of land in the neighborhood is admissible, not the price paid at a particular sale, and that, therefore, there was error in excluding such testimony.
    It appears from page 27 of the bill of exceptions, that when Mr. Gorsueh, the defendant, was upon the stand in his own behalf and had testified that the market value of the property in question was $15,000, he ivas on cross-examination asked by plaintiff’s attorney, from whom he purchased it. He answered, from Mr. Johnson, and that it was two months more than a year before he testified. He was then asked if the price he paid was not $7,000, and, again, what the price was that he paid, stating that he expected the witness to answer, if permitted, that he paid $7,000. Both these questions as to the price paid were, on objection of defendant’s counsel, excluded. In this we think there was error. The price paid does not fix the value, nor does the value fourteen months prior to the time at which value is now to be determined, even when fixed, determine the present value, but both have a bearing on the present value and are admissible in evidence as tending to show present value. But the question here was asked on cross-examination and might well have been admitted as testing the witness. See Hoffman v. Conner, 76 N. Y., 121.
    On page 195 of the bill it appears that J. G. W. Cowles was being examined as a witness for the plaintiff. He qualified as to the value of the land, but not as to the building, and he was asked to give the fair market value of the land exclusive of the building.. This, on objection of defendant, was excluded. Plaintiff expected him to say $2 per square foot. These and other like questions were asked of witnesses produced by the plaintiff for the purpose of showing the value of the building and the land separately. The court excluded such evidence.
    The defendant contends that there was no error in those rulings, because the statute requires the jury to fix a value on the parcel to be appropriated, and here the land and the building together constitute the parcel. It is true that there is but one parcel to be paid for, but if this parcel is made up of parts, though the aggregate value of the several parts taken separately may not be the value of the parcel taken as a whole, yet such value of the parts furnish some criterion upon which to form a judgment of the value of the parcel. Of course, there are some things where it may well be said that the value of the parts taken separately can form.no such criterion. A complicated machine may be of great value as a whole, and yet the several parts, when separated, be of practically no value whatever. But the case of a building upon land is far removed from this. Suppose the value of a farm of one hundred acres on which is a fine house is to be ascertained. Can it be doubted that those farmers owning, buying and selling land in the immediate vicinity, but who know nothing of the expense of putting up such a house, may be permitted to testify as to the value of the land, exclusive of the house, and that a competent builder may testify as to the value of the house for the purpose of ascertaining the value of the farm as a whole? It is not certain that the farm is worth as much as the combined value of the land and house, for the house may be wholly unsuited to the purpose of the farm, and yet in itself be of great value. It may be, too, that the value of the house alone and of the land alone may be less than the value of the farm with the house upon it, because of the fact that the two are so admirably adapted to each other, but it would hardly be urged that a separate valuation of the land and the house might not aid in coming to a right valuation of the whole. One can readily conceive of a case where of necessity’ the value of the. thing to be paid for must be ascertained by taking the separate value of the several parts of that thing. A railroad company by .one wrongful act destroys one’s turnout, consisting of horse, harness and carriage. One witness or a dozen witnesses know the value of the horse, but no one of them knows the value of the carriage. Another witness or another dozen of witnesses know the value of the carriage, but no one of them knows anything of the value of the horse. No one would doubt that in such case the value of each might be shown separately.
    In the case at bar we.are of the opinion that the plaintiff had the right to show the value of the land separate from the building, and the value of the building separate from the land, and in the absence of all other evidence the aggregate of these two valuations should be taken as the value of. the parcel.
    For the errors pointed out in this opinion the judgment of the court of common pleas is reversed, as is also the judgment of the probate court, and the case is remanded to the court of common pleas for further proceedings.

      Kline, Tolies & Goff, for plaintiff in error.

      Goulder, Holding & Hasten and Smith, Taft & Arter, for defendants in error.


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    QUESTIONS ON RE-EXAMINATION AS TO VALUE OF LAND CONDEMNED.
    [Hamilton County Circuit Court.]
    The Covington & Cincinnati Bridge Company v. George A. Magruder et al.
    Decided, June 16, 1906.

      Eminent Domain—Withdrawal of Award by Land Owner—Not Prejudicial to Second Nearing as to Value of Land Taken, When— Retention of Cause in Common Pleas—Upon Reversal of Judgment of Probate Court—Discretion—Error—Section 6438.
    1. A company which has appropriated land and paid into court the amount of compensation fixed therefor, under a stipulation that the money can be withdrawn by the land owner without prejudice to any other rights, may be required in the discretion of the court to go into a second trial as to the value of the land without a refunder of the first award.
    2. Under the rulings of the Supreme Court in this case (63 O. S., 455, and 69 O. S., 372), the trial court did not err in refusing to consider the errors assigned upon the first proceedings in error, and in failing and refusing to set aside the first judgment, and in failing and refusing to affirm the judgment of the probate court.
    Jelke, J.; Swing, J., and Giffen, J., concur.
    Hearing on review of proceedings in condemnation.
    We find no error in the action of the trial court in the second proceedings in requiring the plaintiff in error to proeeed to a hearing and trial without requiring a refunder of the amount of the first award withdrawn from the depository of the court. This withdrawal had been made under a stipulation by the parties that it was to be without prejudice to any other rights. The Covington & Cincinnati Bridge Company had ceased to pay rent under the lease, and were in possession of the premises, practically as the absolute owner in fee simple, and said bridge company was satisfied to let the award made theretofore in the probate court stand and was endeavoring to preserve that award and prevent a re-examination in the court of common pleas of the question as to the amount of compensation to be paid to Magruder and others. It is true that there was an apparent inconsistency on the part of Magruder and others in holding on to this money, and at the same time insisting upon a re-examination of the question as to how much .they were entitled to, and yet they stated that in the event of, a smaller award they stood ready and were able to refund the difference.
    We think that this was á matter largely addressed to the discretion of the court, and in all events was a matter which could be provided for in the court’s judgment when the amount of the award had once been finally fixed. Further, even if there were any error in this regard, it turned out to be without prejudice, because the award of the jury was largely in excess of the amount so withdrawn from the depository, if the proceedings leading up to said award were without error.
    If then we find no error in the second proceedings in submitting this question to the jury, there will be no error in requiring the plaintiff in error to proceed to a hearing without requiring such refunder.
    The trial court did not err in refusing to consider the errors assigned upon the first proceedings in error, and in failing and refusing to set aside the first judgment, and in failing and refusing to affirm the judgment of the probate court. It is plain from the language of the opinions of the Supreme Court in the case of The Covington & Cincinnati Bridge Co. V. Magruder, 63 O. S., 455, and The State, ex rel, v. The

      Judges of the Court of Common Pleas of Hamilton County, Ohio, 69 O. S., 372, particularly at page 378, where the Supreme Court says that when it remanded the cause to the court of common pleas for trial as provided by law, it meant the provision of law contained in Section 6438, which provides that if the court of common pleas upon the hearing of the cause reverses such judgment, it shall retain the cause for trial and final judgment. We think that the trial court below followed the instructions of the Supreme Court and did right in this regard. The trial in other respects was routine and the questions as to value, stereotyped.
    We find no error in the special charges or the charge of the court; neither was any error in this regard strenuously urged at the argument. The court did not err in overruling the motion for a new trial. Plaving disposed of all the questions antecedent to the trial to the jury below, we find no prejudicial error in the trial to the jury, and are therefore of the opinion that the judgment of the court of common pleas should be affirmed.

      Maxwell & Ramsey, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, Harper & Allen and Richards & Richards, contra.


author: Per Curiam.

text:
    INFORMALITY IN THE BORROWING OF MONEY BY A BOARD OF EDUCATION.
    [Circuit Court of Fulton County.]
    Peter Bower et al v. The Board of Education of Fulton Township, Fulton County, Ohio, et al.
    Decided, June, 1906.

      Constitutional Law—Section 28345 Void in Part—Liability of Board of Education—For Money Borrowed without Form of Law—Injunction.

      1. Section 28345, in so far as it applies to boards of education, is unconstitutional for lack of uniformity of operation; and failure on the part of a board of education to comply with the requirements of this section in incurring an obligation does not render the obligation void.
    2. But even if failure to comply with statutory requirements should render a note executed by a board of education unenforcible at law, the principles declared in 11 C.' C., 41, require recognition by the board of the obligation incurred, and would prevent an injunction lying against its collection.
   Per Curiam.

It being shown that on and before September 7, 1905, the Board of Education of Pulton Township had incurred valid and existing obligations under contracts with teachers, drivers for wagons to convey pupils, janitors, etc., for services for the school year 1905-1906 to the amount of -$3,696 and that on that day there was but $437 in the treasury of said board to meet said obligations, but a legal levy of taxes had been made and was in process of collection sufficient to meet the same, but not so soon as they would mature, and that in anticipation of such collection and to meet said obligations as they should mature, said board on said day borrowed from the Bank of Swanton $2,000 .and gave to it the note of the board, payable in one year, with interest at six per cent, per annum; and that the board and the bank proceeded in good faith and under the belief that the transaction was lawful, and that all steps required by law to make it strictly legal had been taken, but that the board, before making said loan, did not, by a formal resolution, determine upon the existence or validity of any indebtedness or obligation of said board nor did the clerk of said board prior to the time said loan was made and said note given certify that the money required for the payment of said note was in the treasury to the credit of the fund from which it was to be drawn, or had been levied and placed on the duplicate and was in process of collection, and not appropriated; nor was any resolution adopted or certificate made in accordance of the provisions of Sections 2834a and 28345, Revised Statutes, governing cases where such resolutions and certificates are required; and this action having been brought by certain tax-payers of the school district to enjoin the payment or collection of said note on the ground that it is null and void and no legal obligation has arisen thereunder because of non-compliance with said statutes—Held:

Tiler & Paxson and Ham, Ham, & Ham, for plaintiffs in error.

Handy & Wolf, for defendants in error.

1st. That Section 2834?;, in so far as it applies to boards of education is unconstitutional, null and void, because it is a law of a general nature, but as to such boards it does not have a uniform operation throughout the state, certain city districts being excepted from its operation. Section 26, Article II, Constitution of Ohio; Kelly v. Stale, 6 O. S., 270; Slate, ex rel, v. Bargus et al. 53 O. S., 94; State, ex rel, v. Buckley el al, 60 O. S., 273; Gaylord et al v. Hubbard, 56 O. S., 25; State, ex rel, v. Yates, 66 O. S., 546.

Therefore, failure to comply with the requirements of Section 28345 does not render said obligation void. ' . ■

2d. Whether Section 2834a is subject to the same infirmity we are not called on to decide, since all action that might be taken thereunder has been taken in this transaction, and nothing remains to be done thereunder that might be enjoined.

3d. Even if a failure to observe formalities or statutory requirements renders the note unenforceable at law, we are of the opinion that the principles declared in the case of State, ex rel, v. Board of Education, 11 C. C., 41 (affirmed by Sup. Ct., 53 O. 5., 656), which we regard as sound and applicable here, forbid any hindrance to the collection being interposed by the court, and require the recognition by the board of the obligation incurred through borrowing and using the money, and require its repayment by the board. These principles seem to us to apply with especial force here, because of the last clause in Section 28345, to the effect that the requirements before mentioned respecting resolutions and certificates shall not'“apply to contracts authorized to be made by other provisions of law for the employment of teachers, officers and other school employes of boards of education,” and the fact that this money was borrowed and presumably used to discharge obligations of the character named in said proviso.

Injunction refused. Petition as to that dismissed. Judgment against plaintiffs for costs on that issue. Motion for new trial overruled; exceptions noted. Statutory time allowed for filing bill of exceptions.


text:
    NO INSURABLE INTEREST IN A BROTHER.
    [Circuit Court of Cuyahoga County.]
    Frank Newmore v. The Western & Southern Life Insurance Company.
    Decided, June 15, 1906.

      Life Insurance—Wagering Contracts—Insurable Interest—Relationship of Brother not Sufficient to Support a Policy.

    The word “stranger” as used, in 50 O. S., 601, having reference to insurable interest, includes a brother; and a policy pi insurance taken out on the life of a brother who is in good health, is younger than the assured, does not depend upon him, and has no knowledge oi the Issuance oi the policy, is not saved from the inhibition as to wagering contracts by the allegation that the purpose in taking out the policy was to provide a fund for the burial of the insured in case of his death.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Error to the court óf common pleas.
    In this ease the court of common pleas sustained a general demurrer to the petition, and the plaintiff not desiring to plead further, judgment was entered that the petition be dismissed at tbe costs of the plaintiff. To this order and judgment error is prosecuted here, and we have then the question, whether the allegations of the petitions are such, all being true, as to entitle the plaintiff to any relief. The material allegations of the petition read as follows:
    “For his first cause of action against defendant, plaintiff says that on or about the 11th day of October, 1904, at the city of Cleveland, in said state, one H. Stoner, then and there being a duly authorized and acting agent of defendant, solicited plaintiff’s wife to take out a policy of insurance upon the life of Peter Newmore, a brother of plaintiff; that plaintiff’s said wife then and there acting for and on behalf of plaintiff, and being authorized by plaintiff so to act in the premises, consented to take out a policy of insurance from defendant upon the life of said Peter Newmore, and then and there gave to said Stoner the street address at which the said Peter Newmore could be found; that at'the same time and place said Stoner produced an application blank to plaintiff’s wife and pretended to fill out the same, pursuant to questions propounded to and answered by plaintiff’s said wife, but that said agent without the knowledge or consent of plaintiff or his said wife, erroneously named as beneficiary in said application one Kate New-more, whose relationship is stated to be that of a daughter, and whose age is stated to be ten years, whereas the directions given by plaintiff’s wife on said occasion, she then and there acting for and on behalf of plaintiff, and being duly authorized to act in the premises, were to name as beneficiary in said application the plaintiff herein, whose relationship was given as that of a brother and whose age was given as thirty-three years; that said Peter Newmore had no daughter nor was there existing any such person as Kate Newmore, aged ten years, as stated in said application.
    “Plaintiff further says that said Stoner having procured the foregoing information as to the beneficiary, agreed to seek out said Peter Newmore and make a personal examination of him and procure from him the remaining information made necessary by said application; that on or about the 24th day of October, 1904, the defendant delivered to plaintiff its policy No. 1119071 upon the life of said Peter Newmore, the premium upon said policy being $5.20 per year, payable weekly, the payment of such sum being the consideration upon which said policy was issued, and said sum having been paid by plaintiff regularly from and after the issuance of said policy, and such payment being made through his wife acting as his agent as hereinbefore stated.
    “Plaintiff says that the errors appearing in said application were and are due to the mistake and fraudulent conduct of the company’s said agent; that at the time said application was made, the said Peter Newmore was indigent and plaintiff desired, solely by reason of his relationship to him, to provide for his proper interment in the event of his death, and that plaintiff had an insurable interest in the life of said Peter Newmore.
    “Plaintiff further says that question eleven of said application required an answer as to the fact of said Peter New-more’s being insured in the defendant company or in other companies, together with the names, amounts, and numbers of the policies in said companies; that the answer to said question eleven as it appears in said application, was that said Peter New-more was not insured in the defendant company or in any other company or companies, whereas there was upon the date of said application an existing policy upon the life of said Peter Newmore in the sum of $550, payable to the wife of the insured; that neither plaintiff nor his said wife acting as his agent, had any knowledge whatever of the existence of said policy, and plaintiff avers that the said answer to question eleven in said application was, through the fault and negligence of said Stoner acting as agent for and on behalf of the said company, erroneously and incorrectly written in said application, and that defendant would have obtained the information required by the ninth paragraph of the condition of said policy were it not for the fault, neglect, and mistake of its own agent in procuring said policy; that if said agent had correctly written the answer to said question eleven, and had made proper inquiry and investigation as he undertook to do, plaintiff would have had the opportunity to procure upon said previous policy the endorsement required by said ninth paragraph of the conditions of sa.id policy, and which plaintiff did not procure. ’ ’
    It then goes on to aver that the premiums were paid by the wife of the plaintiff acting as his agent, and that Peter New-more, the'insured, died, and the plaintiff seeks a reformation of the contract, and that he have judgment against the insurance company for the amount named in the policy.
    It will be noticed that no allegation is made that the insured ever knew of the issuance of this policy. It was taken out by the plaintiff, on his own application, the premiums Avere all paid by him, and the benefits, if the policy had been written as. the petition says it should have been, Avere all to come to him. The relationship betAveen the insured and the beneficiary avrs that of brothers. There Avas no dependence in any Avay of one upon the other. The amount for Avhio.h the policy Avas taken Avas small, being but for $112, and it is alleged that the insured Avas indigent, and the plaintiff Avished to provide funds in this Avay for the proper funeral expenses of the insured Avhen he should die.
    It is, hoAvever, further alleged that the insured already had a policy in this same company for $550, payable to .his wife. True, it is said that this Avas unknoAm to the 'plaintiff and to his Avife, A\rho acted as his agent in all matters relating to this policy, but surely a very little effort on the part of the plaintiff or his agent Avouhl have obtained this information for them, and they would have been relieved of any anxiety about the funeral expenses.

      There is nothing in the petition to indicate that the insured was likely to die before the plaintiff. He was but thirty-six years old and in good health when the policy was issued.
    There was nothing, then, to relieve this from the obnoxious features spoken of in the books as “a wagering contract” except the relationship between the parties.
    In Ryan v. Rothmuiler et al, 50 O. S., 601, Judge Burket quotes with approval the following language from May on Insurance :
    “While a man may cause his own life to be insured for the benefit of a stranger, and the want of insurable interest in the stranger will not invalidate the policy, a policy taken out by á man for his own benefit on the life of a stranger would be void for want of insurable interest.”
    This proposition is thoroughly settled, but the question still remains whether,1 in the sense in which the word ‘ ‘ stranger ’ ’ is used in this proposition, it includes a brother as such.
    In Lewis v. Phoenix Mutual Life Insurance Co., 39 Conn., 100, it is said in the syllabus, “that the mere relationship between the plaintiff (the beneficiary) and L (the insured) was not such an interest as would support the policy.” The relationship spoken of was that of brothers. In the same ease, at page 104 of the opinion, it is said:
    “We think it a correct legal proposition that the mere relationship of a brother is not such an interest as will support a policy of life insurance.”
    In Bliss on Life Insurance there is a very full discussion of what constitutes an insurable interest in the life of another, beginning with Section 20 and ending with Section 31. The heading of the last named section is “General- Conclusions,” and the following language is used:
    “* * * with reference to the insurable interest arising or implied from relationship, the eorerct view would seem to be that an insurable interest will be held to exist where the relationship is such that the assured has a legal claim upon the insured for services, or for support, or where, though such legal claim does not exist, yet from the past personal relations of the two, and the treatment of the assured by the insured, or possibly his declared intentions, the assured has a reasonable right to expect some pecuniary advantage from the continuance of the life of the insured, or to fear loss from his death. On this principle a father would have an insurable interest in the life of his child, whether a minor or of full age, and the child in the life of his father. So would a wife in the life of her husband, and a husband in the life of his wife. But a brother or sister would not-have such interest in each other, nor a nephew in an uncle, unless some facts outside of the mere relationship are shown, though those facts might be very slight.”
    In Conn. Mutual Life Insurance Go. v. Schaefer, 94 U. S., 457, the court, on page 461, cites these sections of Bliss, as well as Sections 102 to 111 of May on Insurance, which are to the same effect, and says that all the authorities of importance are collected and arranged in these works. See especially Section 107s, May on Insurance.
    We find nothing in the petition in this case, as has already been said, tending to show any insurable interest in the plaintiff in the life of the insured other than the mere fact that they were brothers, and this is not sufficient. It follows that the demurrer to the petition was properly sustained, and the judgment is affirmed.

      Mathews & Orgill, for plaintiff in error.

      G. L. Selzer, for defendant in error.