text:
    CRIMINAL LAW — POSSESSION OF STOLEN PROPERTY.
    [Summit (8th) Circuit Court,
    October Term, 1902.]
    Caldwell, Marvin and Hale, JJ.
    Pasquale Carano v. State of Ohio.
    1. Finding Equivalent to Verdict of Guilty of Possession of Stolen Property.
    Under an indictment containing two counts, one, charging burglary and larceny, and the other, with having knowingly received stolen goods, being the same goods named in the former count, a finding by the jury that the accused “is guilty of receiving stolen goods * ® * and do not find as charged in the first and second counts of the indictment,” does not amount to a verdict of not guilty as charged in the indictment, but shows an intent to find a verdict of guilty under the second count; and justifies a refusal to discharge the accused, and an instruction to the jury upon the trial of a plea in bar toa second indictment charging the same offense to return a verdiet for the defendant.
    2. Plea in Bar not a Trial of the Case Disqualifying Juror.
    The trial of a plea in bar to an indictment is not a trial of the cause within the meaning of Sec. 7278 Rev. Stat., providing for what causes jurors may be challenged. Hence, the fact that a juror has also served as such upon the trial of a plea in bar to an indictment is not a ground for challenge upon the trial of the accused under such indictment.
    8. Juror’s Opinion not a Disqualification, When.
    A juror who admits that he has formed an opinion as to the guilt or innocence of the defendant, but states that he believes he can fairly and impartially try the defendant and render an impartial verdict without reference to such opinion, is within the exception provided in the second paragraph of Sec. 7278 Rev. Stat., and is not subject to challenge for cause. .
    4, admission of Circumstantial Evidence to Prove Guilt.
    In a trial for burglary, where it was sought to show that packing material was found in the car from which the goods were taken and that such material was scatteredfrom this car to the house of thedefendant in which the goods in question were found by the officers, it is competent to ask one of such officers the question, “Do you remember of finding any packing material about the floor of either of these cars ? ”
    . Possession of Stolen Goods — Effect of Admission— Charge.
    Where, in a trial for burglary, it is admitted by the defendant that tlv» stolen goods were shortly after found in his possession, it is not error to relu.-e to charge as follows : “The evidence for the state in this case being largely what is known as circumstantial evidence; that is, a chain of facts and circumstances from which you are asked to infer the guilt of the defendant, you should not convict the defendant on such evidence unless these facts and circumstances, taken‘in connection with all the evidence in the case, are consistent with each other and with the guilt of the defendant, and are wholly inconsistent with the innocence of the defendant on any other reasonable hypothesis.” Such request might well have been given, however, if the state had been depending upon circumstances to show that the goods came into the possession of the prisoner shortly after they were stolen.
    R Possession of Stolen Property Requires Explanation.
    The facts of burglary, of larceny, and of possession of the stolen goods soon thereafter by the accused, do not, alone, raise a presumption of law that the accused is guilty of both the burglary and the larceny, but they do raise a presumption against him strong enough to call upon him to explain how he came in possession of the goods.

      Error to the court of common pleas.
    Wilcox & Grant and W. A. Spencer, for plaintiff in error, cited:
    Defendant was in legal jeopardy at the first trial of this case, and the verdict was, in legal effect, an acquittal. 28 Am. & Eng. Enc. Law (1 ed.) 368; State v. Arrington, 3 Murphy (N. C.) 571; Thompsoh v. People, 17 N. E. Rep. 749 [125 111. 256]; People v. Wells, 8 Mich. 104; Iowa v. Arthur, 21 la. 322; Iowa v. Redman, 17 la. 329; Clark Crim. Prac. 483, 484, 488; Nicely‘s Appeal, 18 Atl. Rep. 737 [130 Pa. St. 261]; Commonwealth v. Breyesse, 28 Atl. Rep. 824 [160 Pa. St. 451; 40 Am. St. Rep. 729]; Mount v. State, 14 Ohio 295 [45 Am. Dec. 542],
    Disqualification of jurors, etc. Palmer v. State, 42 Ohio St. 596; 95 O. L. 308.
    Evidence. 1 McClain Crim. Law, Sec. 618.
    The court erred in refusing to give the requests of the defendant relating to the rule for weighing circumstantial evidence and in failing to give the jury any rule to guide them in that regard. Cavender v. State, 25 N. E. Rep. 875 [126 Ind. 47]; Lanitig Cr. Law 246.
    H. M. Hagelbarger, prosecuting attorney, and C. S. Cobbs, for the state, cited:
    Amendment and correction of verdict by jury. United States v. Watkins. 28 Fed. Cas. 419 [3 Cranch C. C. 441]; Hughes v. State, 12 Ala. 458; Allen v. State, 79 Ala. 34; People v. Dick, 34 Cal. 663; People v. Jenkins, 56 Cal. 4; Bryant v. State, 16 So. Rep. 177 [34 Fla. 291]; Martin v. State, 25 Ga. 593; Mangum v. State, 13 S. E. Rep. 558 [87 Ga. 549]; State v. Sales, 30 La. Ann. 916; State v. Clifton, 30 La. Ann. 951; State v. Jessie, 30 La. Ann. 1170; State v. Gilkie, 35 La. Ann. 53; State v. Harris, 3 So. Rep. 344 [39 La. Ann. 1105]; People v. Bush, 3 Parker Cr. R. 552; Nelson v. People, 5 Parker Cr. R. 39; People v. Graves, 5 Parker Cr. R. 134; Hur.ey v. State, 2 Circ. Dec. 630 (4 R. 425); State v. Anderson, 24 S. C. 109; Taylor v. State, 14 Tex. App. 340; Robinson v. State, 4 S. W. Rep. 904 [23 Tex. App. 315]; State v. Bishop, 73 N. C. 44; Bryant v. State, 16 So. Rep. 177 [34 Fla. 291]; Porterfield v. Commonwealth, 22 S. E. Rep. 352 [91 Va. 801]; Jackson v. State, 39 Ohio St. 37; Abbott Crim. Prac. 512; Commonwealth v. Lang, 76 Mass. (10 Gray) 11.
    Possession of stolen goods creates a presumption of guilt. Thompson Trials, Sec. 2534; Smith v. People, 103 111. 82 ; Knickerbocker v. People, 43 N. Y. 177; State v. Robbins, 65 Mo. 443; 1 Greenleaf Evidence 34; Methard v. State, 19 Ohio St. 363, 367.
   MARVIN, J.

The plaintiff in error was indicted at the January term, 1902, of the court of common pleas of this county, there being two counts in the indictment. The first count charged burglary and larceny, and set out in proper torm that the defendant committed such burglary and larceny by breaking into a railroad car, in the night season, and taking therefrom a considerable quantity of goods, all set out in the indictment, and the charge is that this was done unlawfully, maliciously and forcibly; in short, everything necessary to constitute the crime of burglary and larceny is charged in this count of the indictment.

The second count of the indictment charges the plaintiff in error with having received the same goods named in the first count of the indictment, and that he so received them knowing them to have been stolen.

To this indictment, and to each count of it, Pasquale Carano pleaded not guilty. He was put upon his trial before a court and jury, and at the close of the evidence and after argument of counsel and the charge of the court, the jury retired, and upon coming again into court returned the following verdict: * * * “do find that the prisoner at the bar, Pasquale Carano, is guilty of receiving stolen goods valued at $48.84 and do not find as charged in the first and second counts in indictment. S. P. Thompson, Foreman.” Thereupon the court inquired of the jury if some mistake had not been made in their verdict, to which the foreman of the jury replied that they had made a mistake. The jury were then instructed to retire to their room and agree upon a verdict, which should be responsive to the indictment. The jury then retired again to their room and upon again coming into court returned a verdict in which they found that the prisoner ‘ ‘is guilty as he stands chatged in the second count in the indictment and not guilty as he stands charged in the first count in the indictment, and fix the value o' the goods at $48.84. S. P. Thompson, Foreman.”

A motion was then made by the defendant that he be discharged, notwithstanding the verdict, and for cause say, that the verdict first returned by the jury was, in effect, a verdict of not guilty, and that the court had no authority to require any further verdict of the jury. This motion the court overruled., and error is charged in that regard.

Thereafter a motion was made by the plaintiff in error for a new trial, and this motion was granted.

Carano was then called upon again to plead to the indictment, and he thereupon filed a plea in bar to any further proceedings under the indictment, setting up the return of the verdict first herein before quoted the claim again being made that this verdict was equivalent to a finding by the jury that he was not guilty as charged in the indictment. This plea in bar was submitted to a jury, and the evidence adduced established substantially what has been already said as to the occurrences at the time of the return of the first verdict in the case. At the close of this evidence the court directed the jury to return a verdict upon the issue of the plea in bar against the defendant, and error is claimed in this regard.

The question then raised as to all the proceedings thus far set out in this opinion is whether or not the first verdict returned by the jury was such as to preclude further proceedings against the prisoner. If this verdict was, in legal effect, a return by the jury of not guilty as to each of the counts in the indictment, then the prisoner was entitled thereupon to be discharged. If this is not the legal effect ot the verdict, then the action of the court in directing the jury to return to its room and further consider its verdict, and in directing the jury in the trial upon the plea in bar to return a verdict for the state, was right.

The verdict originally returned is peculiar and there can be little doubt that it was returned under a mistake on the part of the jury; indeed Mr. Thompson, who was the foreman of the jury, so stated to the court at the time it was returned when inquiry was made of the jury as to whether or not a mistake had been made. This appears from evidence taken upon the trial of the plea in bar, as shown at page 17 of the bill of exceptions. It clearly was not the intention of the jury to find-the prisoner not guilty as to the second countin the indictment, notwithstanding which, if they have said by their verdict that he was not guilty as charged in either the first or the second count, then the plea in bar was well taken, and the prisoner was entitled to his discharge. ■Where, however, it is clear that the jury did not intend to find the defendant not guilty, the language of the verdict is not to t)e strained to make it result in an acquittal. The language is that the jury ‘ ‘do not find as charged in the first and second count in indictment.” Technically this is a statement of the jury that they make no finding as to whether the defendant was guilty or not under either count in the indictment. What precedes this in the verdict clearly shows that they did intend to find him guilty ot the offense charged in the second count in the indictment, but they were mistaken as to this being the second count.

As has already been said, if the verdict stated that they found him not guilty as charged in this second count, then, though a mistake was made, the prisoner would have been entitled to be discharged; but it would be a straining pi words to make the language used in the last part ot the verdict a finding that the prisoner was not guilty as charged in the second count.

The court, therefore, did not err in refusing to discharge the prisoner, nor in charging the jury on the trial of the plea in bar to return a verdict against the defendant.

This view is supported by the case of Commonwealth v. Call, 38 Mass. (21 Pick.) 509, and in State v. Arthur, 21 Ia. 322, 323. In this last case the prisoner was tried upon an indictment charging him with having in his possession at the same time five or more pieces ol false and counterfeit money, etc. The verdict returned was that the defendant is “guilty of having had in his possession five halt dollars, four of them counterfeit coin, one doubtful, and two quarter dollars counterfeit coin, with intent to pass the same.” On page 325 the court, in discussing the case, speak of this verdict and say that it was fatally defective in failing to find that the prisoner'had this counterfeit coin with a knowledge, etc., and say:

“It partakes of the nature of a special verdict. This it certainly is, rather than a general verdict, as defined by the statute. Assuming it to be such, then, as it did not pronounce affirmatively or negatively on the facts necessary to enable the court to give judgment, the order should have been that they ‘retire for further deliberation.’ ”

The verdict against the prisoner having been returned on the trial on the plea in bar, the prisoner entered the plea of not guilty, and the court proceeded to impanel the jury; and upon this second trial a verdict of guilty as charged in the second count ot the indictment was returned. A motion for new trial was made and overruled, and judgment and sentence were pronounced upon the verdict.

Complaint is made that the court erred in the impaneling of the jury for this trial. The jury was made up chiefly, if not altogether, of those who constituted the jury upon the trial of the plea in bat, and each juror was challenged for that cause. Section 7278 Rev. Stat. provides lor what causes a juror may be challenged. Among those, the fifth reads:

“That he served on a petit jury which was drawn in the same cause against the same defendant,1 and which jury was discharged after hearing the evidence, or rendered a verdict which was set aside.”

It is this clause of the section which, it is said, the court disregarded in impaneling this jury. It is clear that the jurors challenged did not come within the letter of this clause of the section. No one of them bad served as a juror in the same cause. The cause for which this jury was impaneled was the prosecution by the state against the prisoner under the indictment. That cause had not been tried to this jury, nor to any of these jurors. No evidence tending to prove or disprove the guilt of the prisoner had been heard upon the trial of the plea in bar; nothing had transpired upon that trial calculated to show either thfct the prisoner was or was not guilty as he was charged in the indictment; and if the several jurors were (as for all that had transpired in that case, they well might be) unprejudiced, there was no ground for challenge.

It is especially urged that as to the juror, Wuchter, the court erred, because upon his examination at the time the jury was impaneled, he made certain answers to questions put to him. The questions put to him were in reference to the hearing upon the plea in bar, and this was asked oí him:

“ Mr. Wuchter, you heard what took place yesterday in regard to this case; I will ask you if what you heard, what you saw. left any impression upon your mind in regard to the guilt or innocence of this defendant of receiving stolen property which would require evidence to remove from your mind ?”
To this he answered: “Well, it might be possible.’’
Question: “Then, as I understand, you say it is possible that an impression as to the guilt or innocence of the defendant was left upon your mind which might require evidence to remove from your mind?”
To this Mr. Wuchter answered: “Yes, sir; I think so.”

Mr. Wuchter was then sworn and was questioned, and he answered that no impression which was upon his mind resulted from any conversation that he had with the defendant or with any witnesses in the case so far as he knew. He says further, that he did not get any impression from reading any newspaper articles, and still further he was as feed this question:

“Now then, do you think that, notwithstanding that, you could iairly and impartially try this defendant and render a fair and impartial verdict; without reference to that do you think you could do that ?”
To this he answered, “I think I could do that; yes, sir.”

Upon further questioning he emphasizes the statement that he thinks he could try the case impartially, and challenge as to him was overruled.

The juror seems to have brought himself clearly within the exception provided in the second paragraph of Sec. 7278 Rev. Stat., which reads:

“ * * * but if a juror has formed or expressed an opinion as to the guilt or innocence of the accused, the court shall thereupon proceed to examine such juror on oath as to the grounds of such opinion, and if such juror shall say that he believes he can render an impartial verdict notwithstanding such opinions, and if the court is satisfied that such juror will render an impartial verdict on the evidence, may admit him as competent to serve in such case as a juror.”

There was no error in the ruling of the court in this regard.

Complaint is further made that the court erred in admitting certain evidence produced by the state and admitted over the objection of the plaintiff in error. Especial attention is called to the witness, Goodenberger, whose testimony begins on page 83. The testimony specially complained of, however, is found on page 86. The witness was a police officer of the city of Akron and was one of those who lound that the car, lrom which it was said that goods, for the concealing of which the prisoner was on trial, were taken, had been broken open, and this question was put to him:

“Do you remember of finding any packing material about the floor of either of these cars?”

This was admitted over the objection of the defendant. There was no error to the prejudice of the prisoner in the ruling of the court upon this question. As appeared further on in the case, it was sought to show that there was packing material found in the car, and that such material was scattered along the pathway leading from this car to the house of the defendant in which the goods in question were found by the officers.

Similar complaint is made as to testimony about letters which it is claimed were scattered along this pathway. Each of these circumstances tended to show that the goods were carried from the car from which they were taken to the house of the defendant, and it would have been clearly competent to introduce such circumstances in evidence but for the admission on the part ot the prisoner that the goods found at his house were those taken from the car. On the prisoner’s part the claim was made that he purchased the goods ol a peddler who came to his house very early in the morning carrying what must have been, as the exhibits in this case show, a tremendously large and heavy package ot goods. The state claimed that ii the prisoner did not commit the burglary and larceny, it was committed by others living in his house, and evidence tending to show that the goods were carried directly from this car to the house of the prisoner was pertinent as tending to show his knowledge of the way in which those who brought him the goods obtained them.

Without going over severally the other questions as to the rulings upon evidence shown by the bill ot exceptions, the court finds no error as to any ruling upon questions of evidence.

Complaint is further made that the court erred in refusing to charge as requested by the defendant; especially, it is said, that there was error in refusing to give the fifth request made. That reads:

“The evidence for the state in this case being largely what is known as circumstantial evidence; that is, a chain of facts and circumstances from which you are asked to infer the guilt of the defendant, you should not convict the defendant on such evidence unless these facts an<^ circumstances, taken in connection with all the other evidence in the case, are consistent with each other and with the guilt of the defendant, and are wholly inconsistent with the innocence of the defendant on any reasonable hypothesis.”

There are cases in which this charge would have been eminently proper. In this case, it would have been likely to mislead the jury, if it had any effect upon them whatever. This was not an ordinary case of circumstantial evidence. The fact that the goods taken from the car were, shortly thereafter, found in the possession of the prisoner, did not at all depend upon circumstances. As has already been said, that was admitted. This admission raised so strong a presumption against the prisoner as to call upon him to explain how he came into possession of the goods.

It is true, as said in the case of Methard v. State, 19 Ohio St. 363, that “the facts of burglary, of larceny, and of possession of the stolen goods soon thereafter by the accused, do not, alone, raise a presumption of law that he is guilty of both the burglary and larceny.”

In the opinion, in the same case, on page 368, this language is used:

"The facts that a building was burglariously entered, goods stolen therefrom, and the possession by the accused, soon thereafter, of the goods stolen, are competent evidence to go to the jury, and, in connection with other circumstances indicative of guilt, such as giving a false account, or refusing to give any account, of the manner in which, or the means by which, he came into possession of the stolen goods, that may afford a strong presumption of fact of the guilt of the accused, and warrant the jury in finding him guilty of both the burglary and larceny.”

In Lawson Pres. Ev. 519, the following quotation is made from Hale’s Pleas of the Crown:

“As a general proposition, where a person is in possession of property, it is reasonable to suppose that he is .able to give an account of how he came by it, and when the property in question has belonged to another, it is, in general, not unreasonable to call upon him to do so. If the change of possession has been recent, he will not be likely to have forgotten, still less if it be an article of bulk or value. If, then, it be reasonable under such circumstances to call upon the party in possession to account for such possession, it cannot be unreasonable to presum against the lawlulness of that possession when he is unwilling to give an account, or is unable to give a probable reason why he can not.”

In 1 Roscoe Crim. Ev., (side paging! 21, it is said:

1‘If the property be proved to have been stolen, or niay fairly be presumed to have been so, then the question arises whether or not the prisoner is to be called upon to account for the possession of it. This he will be bound to do, and, on his failing to do so, a presumption against him will arise, if taking into consideration the matter ol the goods in question they can be said to have been recently stolen. The presumption will be either that he stole the'property, or that he received it, knowing it to be stolen.”

It the state had been depending upon circumstances to show that the goods came into the possession ol the prisoner shortly after -they were stolen, the request might well have been given, but that was a conceded fact in the case, and hence the rule which would be applicable to the case of tracing the goods to the defendant by circumstances is not applicable in this case.

The charge given to the jury stated the law applicable to the case, and so stated it that if followed by the jury, no mistake would be made.

There was no error in refusing to charge as requested, and no error, for which the case should be reversed, in the charge given to the jury.

As to the motiofa for a new trial upon the facts of the case, there was clearly no error in overruling the motion. Whoever reads the record ot the case will have very little doubt but that the conviction was right, and surely no court would be justified in saying that the jury might not have been satisfied beyond a reasonable doubt of the guilt of the prisoner.

The judgment of the court of common pleas is affirmed.


source: Caselaw Access Project

author: JONES, J.

license: Public Domain

text:
    INSURANCE — INCUMBRANCE.
    [Pickaway (4th) Circuit Court,
    1902.]
    Sibley, Cherrington and Jones, JJ.
    Lewis C. Hammel v. Insurance Company of Pennsylvania.
    1. Exhibit not Property Identified.
    Where a bill of exceptions refers to a policy of insurance as “ Exhibit B,” a policy of insurance marked “ Exhibit A ” and not attached to the bill of exceptions, is not properly identified and cannot he considered by the reviewing court. .
    2. Faiture to Attach Exhibit Does not Require Bitt Stricken from Fites.
    The fact that an exhibit referred to in a bill of exceptions is not attached thereto, nor identified in such a way as to make the exhibit available in the ' reviewing court, does not require the bill to be stricken from the files where questions other than those involving the exhibit are properly presented for review.

      S. Paroe Evidence Incompetent to Defeat Condition in Poeicy.
    A clause in a policy of fire insurance, covering personal property, to the effect, that if the subject of the insurance be or become incumbéred by chattel mortgage unless otherwise provided by agreement endorsed thereon, the policy shall be void, admits of no construction, and evidence that assured informed the agent, when the insurance was obtained, that the property was so incumbered, is inadmissible, as varying the terms of the original contract and such facts involve no question of waiver.
    Heard on Error.
    Abernethy & Folsom, attorneys for.plaintiff in error, cited:
    A person who solicits insurance and procures the application therefor, shall be held to be the agent of the party thereafter issuing a policy upon such application or a renewal thereof, anything in the application or policy to the contrary notwithstanding. Section 3644 Rev. Stat.; Insurance Co. v. Leslie, 47 Ohio St. 409, 415 [24 N. E. Rep. 1072]; Insurance Company v. Williams, 39 Ohio St. 584 [48 Am. Rep. 474].
    Representations. Hartford Protection Insurance Co. v. Harmer, 2 Ohio St. 452 [59 Am. Dec. 684]; Byers v. Insurance Co., 35 Ohio St. 606 [35 Am. Rep. 623].
    Legal notice to insurance agent is notice to principal. Massachusetts Life Ins. Co. v. Eshelman, 30 Ohio St. 647; Metropolitan Bk. v. Taylor, 53 Mo. 444, 456; Woodbury Sav. Bank v. Insurance Co., 31 Conn. 517; Bliss Life Ins., 105; Story Agency, par. 53 b, etc.; Insurance Co. v. Williams, 39 Ohio St. 584, 588, 599 [48 Am. Rep. 474],
    Forfeiture where company’s consent to incumbrance is not endorsed on policy. Webster v. Insurance Co., 53 Ohio St. 558 [42 N. E. Rep. 546; 30 L. R. A. 719; 53 Am. St. Rep. 658]; Dwelling House Ins. Co. v. Webster, 4 Circ. Dec. 704 (7 R. 511); Imperial Ins. Co. v. Wolf, 11 Circ. Dec. 815 (21R. 202); Ohio Farmers Ins. Co. v. Burget, 65 Ohio St. 119 [61 N. E. Rep. 712]; United Firemen’s Ins. Có. v. Kukral, 4 Circ. Dec. 633 (7 R. 356); Ohio Farmers Ins. Co. v. Burget, 9 Circ. Dec. 369 (17 R. 619); Viele v. Insurance Co., 26 Iowa 9 [96 Am. Dec. 83]; 2 Jones Evidence, Sec. 442; Insurance Co. v. Williams, 39 Ohio St. 584 [48 Am. Rep. 474].
    No rule is better settled than that conditions in policies, that shall become void upon certain contingencies, should receive a strict construction, and, when ambiguous, be construed most strongly against the insurer, for the reason, that they are prepared by, and inserted for the benefit of the insurer. .Moody v. Insurance Co., 52 Ohio St. 12, 22 [38 N. E. Rep. 1011; 26 L. R. A. 313; 49 Am. St. Rep. 699]; May Insurance, Sec. 174; Union Insurance Co. v. McGookey, 33 Ohio St. 555, 556; Blackwell v. Insurance Co., 48 Ohio St. 533, 540 [29 N. E. Rep. 278 ; 14 L. R. A. 431; 29 Am. St. Rep. 579]; West v. Insurance Co., 27 Ohio St. 1,10; Queen Ins. Co. v. Leonard, 6 Circ. Dec. 49 (9 R. 46).

      No formalities in the writing will stand in the way of proof that a contract is forbidden by statute or common law. In all such cases the court will go behind the apparently valid written instrument and deal with the transaction on its merits; and it is immaterial whether it is immoral, or in some other way contravenes the general policy of the law. 2 Jones Evidence, Sec. 441; Crawford v. Wick, 18 Ohio St. 190, 208 [98 Am. Dec. 108]; Chamberlain v. Insurance Co., 55 N. H. 249; Insurance Co. v. Eeslie, 47 Ohio St. 409, 420 [24 N. E. Rep. 1072].
    The assent of the plaintiff to this condition must be averred and proved by the defendant. Gaines v. Transportation Co., 28 Ohio St. 418; U. S. Express Co. v. Blackman, 28 Ohio St. 144.
    And such assent will not be implied or presumed from facts and circumstances which do not clearly show an assent to such condition in the contract on which the action is founded. Pittsburgh, C. & St. E- Ry. Co. v. Barrett, 36 Ohio St. 448.
    It is not always necessary to reform a policy in equity before an action at law can be maintained. Walrath v. Insurance Co., 9 Circ. Dec. 233 (16 R. 413); Ohio Farmers Ins. Co. v. Britton, 31 Ohio St. 488; West v. Insurance Co., 27 Ohio St. 1,9.
    J. W. Mooney and G. E. Bibbie, attorneys for defendant in error, cited:
    Provision of insurance policy providing that the policy shall be void, if the property is, or shall become, encumbered by mortgage, is valid. Webster v. Insurance Co., 53 Ohio Sf. 558 [42 N. E. Rep. 546; 30 E. R. A. 719 ; 53 Am. St. Rep. 658] ; Hickey v. Insurance Co., 11 Circ. Dec. 135 (20 R. 385).
    Said provision of the policy is not within the provision of Sec. 3643 Rev. Stat.; Webster v. Insurance Co., 53 Ohio St. 558 [42 N. E- Rep. 546; 30 E. R. A. 719 ; 53 Am. St. Rep. 658].
    Parol statements made prior to or after the issuiug of an insurance policy are not competent to vary or change the contract, or to destroy any of its provisions. Ostrander Insurance, Sec. 24; Ostrander Insurance 384, Sec. 138 ; Kehm v. Insurance Co., 12 Dec. 227 ; Thompson v. Insurance Co., 104 U. S. 252, 259; Insurance Co. v. Eggleston, 96 U. S. 572 ; Insurance Eaw Journal, Fet>. 1892, p. 97; McMaster v. Insurance Co., 99 Fed. Rep. 856; Union National Bank v. Insurance Co., 71 Fed. Rep. 473; United Fireman’s Ins. Co. v. Thomas, 82 Fed. Rep. 406; Fellows v. Madison, 13 Re. 79 (2 Disn. 128); Graham v. Insurance Co., 13 Re. 157 (2 Disn. 252); Metropolitan Eife Ins. Co. v. Wood, 1 O. S. C. D. 346 (33 Bull. 346).
    The insured is conclusively bound by the terms of the policy, whether he has read it or not, and is conclusively presumed to know the contents thereof. Union Central Life Ins. Co. v. .Hook, 62 Ohio St. 256, 263 [56 N. E. Rep. 906j; Monitor Mut. Fire Ins. Co. v. Buffum, 115 Mass. 343; Allen v. Insurance Co., 25 N. E. Rep. 309 [123 N. Y. 6]; Hickey v. Insurance Co., 11 Circ. Dec. 135 (20 R. 385); Hankins v. Insurance Co., 35 N. W. Rep. 34 [70 Wis.l, 5] ; Ostrander Insurance, 99n.
    It is the duty of the insured to disclose all mortgages and condition of title. The insurer is not required to ask concerning the existence of mortgages. Ostrander Ins., Sec. 80; Ostrander Ins., Sec. 110 ; Hickey v. Insurance Co., 11 Circ. Dec. 135 (20 R. 385) ; Smith v. Insurance Co., 19 Ohio St. 287; Union Central Life Ins. Co v. Hook, 62 Ohio St. 256, 264 [56 N. E. Rep. 906].
    The policy sued on contains a further provision that none of the terms or conditions thereof shall be waived or changed except by agreement endorsed on the policy. The parties made this provision a part of their contract, and the court will enforce it. Union Central Life Ins Co. v. Hook, 62 Ohio St. 256 [56 N. E. Rep. 906].
   JONES, J.

(Orally.)

The petition in the court below was upon a policy of insurance issued by the defendant company to L. C. Hammel & Co., upon certain chattels owned by the defendant, L. C. Hammel. The petition, after setting forth the description of the chattels, avers, that at the time of the issuing of the policy in the name of L. C. Hammel & Co., there was a chattel mortgage on the goods and chattels described in the policy, but that the defendant had notice and knowledge of the fact of the existence of that chattel mortgage ; it avers the loss and proof of loss and asks judgment for the plaintiff.

The third defense alleges, that said policy of insurance issued to said L- C. Hammel & Company, contained a provision that said policy, unless otherwise provided by agreement indorsed thereon, or added thereto, should be void if the subject of insurance be personal property and be or become incumbered by chattel mortgage, and the defendant then alleges that, prior to and at the time of the issuing , of said policy of insurance to said L. C. Hammel & Company, by this defendant, said property, goods and chattels insured by said policy of insurance, were covered by a chattel mortgage in the sum of $911.50;, that there was no agreement indorsed upon said policy or added thereto, con. senting to or permitting the lien of said chattel mortgage upon said property so insured by this defendant. Defendant further alleges that at the time it issued said policy of insurancé it had no knowledge or notice of the existence of said chattel mortgage.

To obviate the effect of.-that defense, the plaintiff filed a reply wherein he denies the allegation in said answer that at the time said policy of insurance was issued, said defendant had no knowledge or notice of the existence of said chattel mortgage, and he denies the allegation that the defendant has in no manner waived said condition and provision contained in said policy of insurance; and sets up the fact that the defendant company’s agent had notice of the incumbrance upon the chattel property by way of mortgage, and that he, the plaintiff, had no knowledge of any provision in said policy of the character, manner and description set forth in said third defense at the time said policy was issued and delivered to him, and that said agent did not advise or inform him of said provisions, nor that it was necessary that any endorsement should be made upon said policy or added thereto, consenting to or permitting the existence of said chattel mortgage upon said property.

The plaintiff offered his evidence, and at the conclusion of that evidence the defendant moved the court to direct a verdict in its behalf; this the court did, and the verdict was returned by the jury for the defendant. A motion for a new trial was filed; that motion was overruled and a petition in error was filed in this court.

A motion was made by the defendant in error to strike this bill of exceptions from the files. That motion will be overruled, but in so far as the bill of exceptions does not contain a copy of the insurance policy pleaded in this case, we will disregard the policy itself. In other words, the court holds that we are not permitted to consider the alleged copy of the policy in this case as being in evidence before this court (although it was before the court of common pleas), for this reason: the bill of exceptions refers to a policy of insurance as having been offered in evidence, but the policy is not in the bill of exceptions; it refers to a policy marked exhibit ‘‘ B,” and the alleged policy is marked exhibit “ A,” and is not in any way attached to the bill of exceptions, offering us no particular way of identifying this policy as the policy offered in evidence ; so that in passing upon this case we will pass simply upon the effect of the evidence, as to whether or not it has a tendency to prove a case for the plaintiff below.

While there are a number of questions and answers that are objected to by the defendant below, a large number of which were properly objected to and properly excluded by the court, the main contention arises as to the action of the court in ruling upon questions and answers found in the bill, relating to the fact whether or not the defendant company, through its agent, had notice of the fact that there was an incumbrance by way of a chattel mortgage upon the property described in the policy of insurance.

It seems .from the evidence that one Harry Van Hyde was the agent of the defendant company, and the' agent of other insurance companies as well; that some time in 1898 (the plaintiff offered evidence to prove, which was rejected by the court), this agent was told at that time, when attempting to negotiate insurance in another company, for which he was agent, that there was an incumbrance upon this chattel property; and later, when this agent, Van Hyde, did negotiate insurance for plaintiff in the defendant company, testimony was offered to show that, at that time, the plaintiff told the agent that there was a lien by way of a chattel mortgage upon this property. All of this evidence was excluded by the court upon the theory, no doubt, that it was incompetent to introduce any evidence which would in any way tend to render nugatory the terms of the insurance policy; and, without reading the various questions and answers touching this matter, that is the bone of contention in this case, whether or not this particular evidence was competent.

We have come to the conclusion that the evidence was incompetent. The evidence, if introduced and allowed to go to the jury by the court below, would have had the effect, in our opinion, of reading into the policy a provision that was in direct- opposition to that clause found in the policy. Here was a policy of insurance which provided that if there was any incumbrance of this character upon the property, that the policy, unless otherwise provided by agreement indorsed thereon or added thereto, should be void. The effect of the evidence, if allowed to be introduced, would have been practically to read that provision oat of the policy.

It is true that there are a large number of adjudicated cases wherein the agents of insurance companies are allowed to waive certain piovisions, rendering the policies void, but that does not come within the purview of this case. It is not a question of the waiver of a contract which has been executed; it is a question as to the provisions of a contract that was made at that time. If it be permitted to introduce parol evidence to-wipe out of the insurance policy this particular provision, it would be competent to wipe out others under the same rule. We do not think that the question of waiver affects this case, for waiver makes practically a new contract which is always permitted. We think that Smith v. Insurance Co., 19 Ohio St. 287, 290, is practically decisive of this case. The opinion of Judge Welch, who was always concise, is brief, and I will read a few lines of it. Judge Welch said: “ We see no error in the rulings of the court below. The charter of the company is expressly made obligatory upon all its members. It expressly declares that policies issued upon incumbered property, without a written application containing a statement of the incumbrance, shall be void. This provision admits of no construction, and no attempt is made to avoid its effect in the present case by proof of fraud or mistake. It is the law of the parties, adopted by themselves, and becomes part of their contract. By it they have declared and agreed that this form of written notice shall be essential to the validity of the policy, and that verbal notice cannot be substituted for it.”

So that we think this question has been practically decided by the Supreme Court as early as the case of Smith v. Insurance Co., supra, and for these reasons we affirm the judgment of the court below.


author: MARVIN, J.

text:
    STREETS — STEAM RAILROADS.
    [Cuyahoga (8th) Circuit Court,
    June 21, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Cleveland Burial Case Co. v. Erie Ry. Co.
    1. Abutting Owner’s Easement in Street is a Property Right — Compensation eor Impairment.
    An owner of land abutting upon a street has an easement in the street which is “ as much property as the land itself,” and if the.construction of a proposed track by a railway company will materially interfere with this easement, an injunction will be allowed to prevent such construction until the rights of the property owner have been obtained by proper appropriation, purchase or other proceedings whereby its property interest in this easement is to be acquired by the railway company.
    2. Construction of Railway in Street an Impairment of Abutting Owner’s Rights.
    The construction and operation of a railway in a street, within twenty-six feet of a factory, which impairs the convenience of unloading teams at an entrance to the factory upon that street and of driving teams around the corner of the factory nearest the track, is a material interference with the rights of the owner of the factory. It is a diversion of the street from the purposes to which it was dedicated, and is a taking of the property of the abutting owner within the meaning of Sec. 19, Art. 1, of the constitution.
    Appeal.
    Williamson & Cushing, for plaintiff.
    Shellenbarger and Judge Lamson, for defendant.
   MARVIN, J.

The plaintiff, a corporation, is the owner of a parcel of land in the city of Cleveland, bounded on the northerly side by Old River street, on the easterly side by Elm street, on the southerly side by ——, and on the westerly side by West Center street. On this tract of land the plaintiff has a manufacturing establishment covering a considerable part of the tract, with a front of about 140 feet on Center street, and about 200 feet on Old River street; the lines of the manufactory on each of these streets being coincident with the street, so that the northwest corner of the building is at the intersection of the south line of Old River street and the east line of Center street. These premises are in á district largely occupied by manufacturing establishments.

The defendant, which is a railroad corporation, has a number of railroad tracks in the immediate vicinity, and other railroads have tracks not far removed, but on the opposite side of the old river bed from the premises of the plaintiff. One of the tracks of the defendant crosses Old River street in a westerly direction from the northwest corner of the plaintiff’s manufactory, its nearest point to the manufactory being at a distance of sixty-seven feet therefrom. This track curves to the eastward when it reaches the north line of Old River street and thence extends eastwardly along the north side of said last-named street in front of the plaintiff’s manufactory.

The defendant has, by an ordinance of the city, obtained a franchise to construct an additional track diagonally across the corner of Old River and Center streets, the point where it crosses the south line of Old River street being about thirty feet from the intersection of the west line of Center street with the south line of Old River street; thence extending northeasterly, crossing the north line of Old River street ten or fifteen feet easterly from the east line of Center street produced. This track will bring the rail, which is on the northeasterly side of the crack,' twenty-six feet from the northwesterly corner of the plaintiff’s manufactory.

The defendant proposes to construct its track as authorized by such ordinance, and will do so unless restrained by the order of the court. The court of common pleas allowed an order restraining such construction until the case should be heard in that court upon its merits. Subsequently, upon motion of the defendant, this order was dissolved, and, from such order, the appeal is taken to this court.

Each of these streets is sixty-six feet in width. The title to the tract of land owned by the plaintiff is derived through several warranty deeds executed by different parties and conveying the several lots, of which the tract is composed, by lot numbers. These lot numbers áre obtained from a survey and plat of lots made by the Buffalo Company and recorded in the records of Cuyahoga county. On this plat the several streets are designated. On the part of the plaintiff it is claimed that it is the owner ot the fee to the center of the streets by which its manufacturing plant is bounded; while, on the part of the defendant, it is said that the fee of the streets is in the public authorities in trust for use for street purposes.. In the view we take of this case, it is not necessary that this question be now determined.

The plaintiff, in any event, has an easement in the streets upon which its premises abut, and this easement is said, in the case of Cincinnati & S. G. A. St. Ry. Co. v. Cumminsville, 14 Ohio St. 528, 524, to be “ as much property as the lot itself.” Numerous authorities by our own Supreme Court are to the same effect; and it is settled beyond controversy, that, in a case like this, if the proposed construction of the track by the defendant will materially interfere with this easement, an injunction will be allowed to prevent such construction until the rights of the plaintiff have been obtained by proper appropriation, purchase, or other proceedings whereby its property interest in this easement is to be acquired by the defendant.

The only question remaining is, whether, if this track is constructed as proposed, the rights of the plaintiff, by reason of this easement, will be materially or appreciably interfered with. This is purely a question of fact. From the evidence, including a plat of the premises showing the location of the building and the line of the proposed construction, we find that the plaintiff’s rights will be thus interfered with. Without entering into any lengthy discussion of how the plaintiff’s rights will be interfered with, attention is called to the fact that the convenience of loading and unloading teams at the Center street entrance must necessarily be impaired. The evidence shows that these streets are used very considerably by the public for teams, and the construction and operation of a railroad within twenty-six feet of the corner of this building must certainly make it much less convenient to drive teams from one of these streets to the other around the corner.

In the case of Callen v. Electric Light Co., 66 Ohio St. 166 [64 N. E. Rep. 141], it is held that: “ The placing by a private lighting company, of poles at the curb in a street and the stringing thereon of electric light cable lines and wires for the purpose of furnishing light and energy to private takers, is a diversion of the street from the purposes to which it was dedicated, and is a taking of the property of the abutting owner, within the meaning of Sec. 19, Art. 1, of the bill of rights. And such placing of poles, lines and wires is none the less an unauthorized taking, even though it be consented to by the,city authorities.”

In this case, an injunction was allowed.

We think the plaintiff’s right to an injunction in the case now being considered, is stronger than that stated in the syllabus just quoted.

In the case of Valley Ry. Co. v. Pouchot, 2 Circ. Dec. 492 (4 R. 187), an opinion delivered by Judge Upson, then of this court, considers very fully the most of the questions of law involved in this case. That case was affirmed by the Supreme Court upon such opinion of Judge Upson. It is deemed unnecessary to here repeat the reasoning there used, and the authorities there cited.

The motion to dissolve the restraining order, which is pending here on appeal, is overruled.


author: GIFFEN, J.

text:
    DOWER.
    [Hamilton (1st) Circuit Court.]
    Swing, Giffen and Jelke, JJ.
    William Gildehaus et al. v. Fidelity Building & Savings Co. et al.
    L Dower Interest Subject to Subrogation Though assigned.
    Under Sec. 5464, Rev. Stat., the dower interest of the judgment debtor may be subjected to the payment of his debt, notwithstanding such interest has not been assigned.
    2. Error — Findings of Fact must be Made Part of Record in Order to Review.
    Findings of fact and conclusions of law, made in the court below, not made part of the record by journal entry or otherwise, cannot be considered on error.
    Heard on Error.
    Henry J. Harrop, for plaintiffs in error, cited:
    Boltz v. Stoltz, 41 Ohio St. 540; Whittaker Ohio Code, Sec. 5464; Weakly v. Hall, 13 Ohio St. 167,173 [42 Am. Dec. 194]; Follett v. Buyer, 4 Ohio St. 586, 592 ; Pittsburg, C. C. & St. L. Ry. v. Volkert, 58 Ohio St. 375, 376 [50 N. E. Rep. 924]; Stephen Pleading (8 Am. ed.), star page 64; Bouvier Law Die. (11 ed.) 343; Virginia, Carolina Ry. Co. v. Booker, 39 S. E. Rep. 591 [99 Va. 633]; Makley v. Whitmore, 61 Ohio St. 587 [56 N. E. Rep. 461]; 1 Am. & Eng. Ene. Law (2 ed.) 412, n. 2; Hard-wick v. King, 1 Stew. (Ala.) 812; Salmon v. Pixlee, 2 Day (Conn.) 242; Foster v. Trull, 12 Johns. (N. Y.) 456; Vedder v. Vedder, 1 Denio (N. Y.) 257; Boosey v. Wood, 3 H. & C. 484; Jones v. Jones, 8 Circ. Dec. 628 (15 R. 618).
    John Coffey, J. M. Dawson and E. M. Garrison, contra.
   GIFFEN, J.

The answer and cross-petition and supplemental answer and cross-petition of Henry Frese set up two judgments in favor of Frese and a right to subject tbe dower interest of the judgment debtor to the payment thereof. While it is true that he alleges in the supplemental answer and cross-petition that a levy had been made upon the dower interest, and the same sold in another action, yet he does not ask or seek to confirm that sale, but prays that the dower interest may be subjected to the payment of his debt under Sec. 5464, Rev. Stat. This may be done, although the dower has not yet been assigned. Boltz v. Stolz, 41 Ohio St. 540.

The other questions presented can be determined only by the facts in the case. The court at the request of plaintiff in error made separate findings of fact and conclusions of law, but the same were not made a part of the record by journal entry or otherwise, and, hence, cannot be considered.

Judgment affirmed.


text:
    NUISANCE — PROSECUTION.
    [Cuyahoga (8th) Circuit Court,
    June, 1902.]
    Caldwell, Hale and Marvin, JJ.
    E. C. Terry v. State.
    1. No» Necessary that Accused be Owner of Business to Comvxy a Nuisance.
    Where a person, in managing a business for another, creates and maintains a nuisance, for instance, one within the prohibition of Sec. 6921 Rev. Stat., he will be liable therefor, although he is only an employe ot the proprietor and has no interest in the business.
    2. Prosecution for Nuisance not Affected by Sec. 6920 Rev. Stat., When.
    A prosecution for creating and maintaining a nuisance is not affected by Sec. 6920 Rev. Stat., which provides that, “ the continuance of any nuisance for five days after prosecution commenced therefor, shall be deemed an additional offense,” where it is not charged that there has been a prior prosecution or that the offense charged is an additional offense.
    t. Proof Limited to Period Charged, When.
    In a prosecution for creating and maintaining a nuisance by carrying on a business producing “ noisome and offensive smells,” as prohibited by Sec. 6921 Rev. Stat., evidence of the existence of the odor at times other than that charged in the information is inadmissible, especially when, if such evidence was admitted it would not tend to prove that the odors complained of were produced during the time charged.
    4. Evidence of Sickness Caused by Nuisance.
    In such a prosecution it is competent to show that a witness, who had lived in the neighborhood of the establishment complained of, was sick during the period of the continuance of the nuisance as set up in the information, and to refuse to strike out the testimony of such witness that the offensive odor was the cause of her sickness is not prejudicial error, where, from evidence clearly competent, the court might well have come to the conclusion at which it arrived in the case.

      5. Motion to Strike Evidence out of Stenographer^ Notes, Properly Refused, will not lie.
    A motion to strike from the stenographer’s notes testimony which has already gone to the trial court or the jury will not result in taking such testimony from the court or the jury, for the reason that the law does not contemplate that either the court or the jury read what is written by the stenographer before passing on the case, and where the trial is to the court without a jury it will be presumed that no evidence was considered that was not competent.
    6. Right of Trial by Jury.
    The constitutional provision that, “ the right of trial by jury shall remain inviolate,” has been repeatedly held not to enlarge or modify the right of trial by jury as it existed prior to the adoption of the constitution. Hence, those statutes which define and punish by fine only, in a summary manner, and without trial by jury, certain immoral practices, mala prohibita, in which the right to trial by jury did not exist at the time of the adoption of the constitution, are not unconstitutional as in contravention of Sec. 5 or Sec. 10, Art. 1, of the constitution.
    7. Demand of Trial by Jury, Quaere.
    Whether a demand for a trial by jury does not come too late after the accused has unsuccessfully objected to the admission of any evidence, quaere.

    Heard on Error to court of common pleas.
    J. O. Winship, for plaintiff in error.
    Police Prosecutor, for defendant in error.
   MARVIN, J.

The plaintiff in error was put upon trial and was convicted in the police court upon an information charging him with maintaining a common nuisance in the city of Cleveland from April 9,1900, continuously to and including April 14,1900, by carrying on the business in a certain building in said city, of heating and drying damp, wet and sour malt, thereby producing noisome and offensive smells, which were injurious to the health and comfort of residents of the neighborhood in which such business was conducted.

On behalf of the plaintiff in error it is urged that there was error on the part of the trial court in that the demand of the accused for a trial by jury was denied.

The record shows that before any such demand was made, the accused objected to the introduction of any evidence and that such objection was overruled. Then followed the demand for a trial by jury. Though it was urged on the part of the state, that this demand came too late because it was preceded by an objection to the introduction of any evidence, we are not prepared to hold that the demand was not made in time, but we do hold that there was no error in refusing a jury trial.

The constitutional provision that “the right of trial by jury shall remain inviolate,” has been repeatedly held not to enlarge or modify the right of trial by jury as it existed prior to the adoption of the constitution.

In the case of Inwood v. State, 42 Ohio St. 186, there is a very full discussion in an opinion by Judge Mcllvaine, of the question now being considered, and, under the authority of that case and the cases there cited, we hold that the rights of the accused were not violated by the refusal to give him a jury trial.

It is further urged that the evidence wholly failed to establish the charge : (1) Because it is said that the accused was not the proprietor of, nor had he any interest in, the business which was being carried on at the place charged, and which is said to have caused the nuisance complained of. On this subject Terry himself testified that the business was being carried on by the Cleveland Grain Drying Company; that he had no interest in the business, but that he was an employe. On cross-examination, after he had testified that he was an employe, he was asked this question : “ In what capacity? ” To which he answered, “Tending to the business of the mill there.”

Question. “ Manager or superintendent? ” Answer. “ I have no superintendency; I merely receive so much salary a week.”

Question. “Manager?” Answer. “ Yes, I suppose so.”

From this and the other evidence in the case, it is clear that the accused was the party who managed the business for the proprietor, and, if, in so managing the business, the nuisance was created, we hold that he could not escape by reason of his having no ownership in the business.

Section 6921 Rev. Stat. provides that:

“ Whoever erects, continues, uses, or maintains, any building, structure or place for the exercise of any trade, employment, or business, or for the keeping, or feeding of any animal, which, by occasioning noxious exhalations or noisome or offensive smells, becomes injurious to the health, comfort or property of individuals or the public * * * shall be fined not more than five hundred dollars.”

To hold that where a business is so conducted as to make the proprietors of such business guilty under this statute, that the man who manages the business, has charge of it and directs how it shall be carried on, is not guilty would be to hold that one may create and maintain a nuisance without responsibility on his part, provided only that in so doing he is only the employe of somebody else. This does not accord with our understanding of the law.

It is further urged, however, that the evidence did not justify the finding, because, it is said that to do so, it must have been shown that the nuisance continued for a period of not less than five days. Section 6920 Rev. Stat., on this same subject, provides that:

“ The continuance of any nuisance for five days after prosecution commenced therefor shall be deemed an additional offense.”

A claim seems to be made on the part of the plaintiff in error, that this prosecution is affected by this last mentioned section ; but we find-nothing in the record to show that there had been a prior prosecution, nor that this was charged as “ an additional offense.” Nor do we find from-the reading of the statute, or from any authority to which our attention has been called or which has come under our notice, that a continuance for five days of such nuisance is necessary in order to warrant a conviction, and the claim of the plaintiff in error in this regard is not well taken.

It is further urged that the evidence fails to show that the business of which the accused was the manager produced “ noisome and offensive-smells ” to the prejudice of the neighborhood or the public. The evidence in this regard is conflicting. Many of the witnesses testify that on some of the days between the ninth and fourteenth of April, 1900, the stench from this establishment was exceedingly offensive, and that it affected the atmosphere for a long distance from the place of business ; and some of the witnesses testify that during this entire period charged-in the information, the smells coming from this establishment were in the highest degree offensive. True, others testify that the odors were much less offensive than the witnesses introduced on the part of the prosecution described them to be, but - this was a matter for the trial court to determine under all the evidence, and we are not surprised at the conclusion reached, and cannot disturb the finding in this regard.

Complaint is further made upon the exclusion by the trial court of evidence offered by the accused. This consists chiefly in the exclusion of evidence as to the existence of these offensive odors at times other than that charged in the information. We find no error in the exclusion of such evidence, nor in any of the rulings of the court upon questions of evidence, which would justify a reversal of the judgment.

As to the exclusion of evidence of the condition at times other than as charged in the information, counsel for the accused stated that he expected to prove that the conditions were exactly the same at such, times as they were between the ninth and the fourteenth of April, but these would only be to show in a round-about way what could as well; be shown, if there were witnesses who knew, that the conditions were such between the ninth and fourteenth of April as that the offensive odors could not have been, or, in any event, were not produced.

Perhaps the rulings of the court during the testimony of Mary Phinnin, a witness on the part of the prosecution, are as objectionable to the plaintiff in error as any which were made during the trial. This witness testified that she had been sick about the time that the offense is charged to have been committed. She was then asked by the prosecuting attorney this question:

Were you sick between the ninth day of April this year and the fourteenth day of April ? ” (This being the time charged in the information.)

This question was objected to by the accused; the objection was overruled, and the witness answered, “ Yes.” Then this question was asked:

“ What kind of sickness did you have? ”

This was objected to, the objection overruled, and an exception taken by the accused, and the witness answered:

“ Sick at the stomach on account of the stink that comes from the mill; stomach trouble.”

A motion was made to strike out this last answer. This motion is a little indefinite, because to merely strike out from the stenographer’s notes testimony which has already gone to the trial court or the jury would not result in taking such testimony from the court or the jury. The law does not contemplate that either court or the jury, read what is written by the stenographer before passing upon the case. But this is a com.mon form and, of course^ meant that the court should not consider this evidence. The trial being in the court, it is to be presumed that no evidence was considered which was not’ competent. We are not prepared to say that it was not competent to show that this witness was sick (she lived in the immediate neighborhood of the establishment of which the accused was the manager) during the period covered in the information. We are not, however, prepared to say that it was competent for her to give the cause of such sickness, but we think no prejudice could have resulted to the accused by the failure of the court to grant the motion to eliminate the answer. From the evidence, which was clearly competent, the court might well have come to the conclusion at which it arrived in the case.

The judgment of the court of common pleas is affirmed.


author: SUMMERS, J.

text:
    PROCEEDINGS IN AID OF EXECUTION.
    [Franklin (2d) Circuit Court,
    January Term, 1902.]
    Wilson, Sullivan and Summers, JJ.
    Kouns v. Reiniger.
    Proceedings in Aid oe Execution Reach Oney Credits Existing at Time oe Service oe Process.
    Proceedings in aid of execution before justices of the peace, under Sec. 6680-2 Rev. Stat. et seq., reach only to those debts that, whether due or not, are owing at the time of the service of process on the debtor of the judgment debtor and not to those subsequently arising and subsisting at the time of the hearing.
    E. L. Pease, for plaintiff, cited:
    The contract in question being a contract for one year, with bimonthly payments of wages, is an entire contract, is not apportionable, and hence no liability could have arisen until the bi-monthly period of ^service had been fully completed, to-wit: at the expiration of the thirty days of each month. Larkin v. Hicksher, 16 Atl. Rep. 708 [51 N. J. L. 138]; Dexter v. Phillips, 121 Mass. 178 [23 Am. Rep. 261] ; 14 Bnc. Law (1 ed.) 776; Master and Servant; Mechem Agency, Sec. 635; McClurg v. Price, 59 Pa. St. 420, 423 [98 Am. Dec. 356]; Allen v. Curies, 6 Ohio St. 505; Wiggin v. SWett, 47 Mass. (6 Mete.) 194, 200 [39 Am. Dec. 716]; Larkin v. Buck, 11 Ohio St. 561; Goldsmith v. Hand, 26 Ohio St. 101,106.
    Rights of the garnisher do not rise above or extend beyond those of the debtor. Rood Attachment, Sec. 379, p. 480n; Drake Attachment, Sec. 458.
    The phrase in the statute “ whether then due or not ” has reference to a liability absolute at the time of service, but the time for the payment of which had not yet arrived. The liability must be such that lapse of time only is necessary to give a right of action; if anything further must be done by the one party there is no absolute, but only a contingent, liability. Foster v. Singer, 34 N. W. Rep. 395 [69 Wis. 392; 2 Am. St. Rep. 745]; Bishop v. Young, 17 Wis. 46; Smith v. Davis, 1 Wis. 447 [60 Am. Dec. 390]; Huntley v. Stone, 4 Wis. 91; Gordon v. Brewster, 7 Wis. 355; Lee v. Merrick, 8 Wis. 229; Jennings v. Lyons, 39 Wis. 553 [20 Am. Rep. 57]; Dieienbeck v. Stark, 14 N. W. Rep. 621 [56 Wis. 462; 43 Am. Rep. 719]; Koplitz v. Powell, 14 N. W. Rep. 813 [56 Wis. 671]; Hancock v. Colyer, 99 Mass. 187 [96 Am. Dec. 730]; Knight v. Bowley, 117 Mass. 551; Wood v. Partridge, 11 Mass-488; Wyman v. Hichborn, 60 Mass. (6 Cush.) 264; Edwards v. Roepke, 43 N. W. Rep. 554 [74 Wis. 575]; Bishop v.. Young, 17 Wis. 46; Thomas v. Gibbons, 15 N. W. Rep. 593 [61 la. 50, 51]; Hadley v. Peabody, 79 Mass. (13 Gray) 200; Phelps v. Railway Co., 28 Kan. 165; Drake Attachments, Sec. 458; Martin v. Gayle, 13 Re. 54 [2 Disn. 86]; Newark v. Funk, 15 Ohio St. 462, 463, 464; Ohio Auxiliary Fire Alarm Co. v. Heisley, 4 Circ. Dec. 691 (7 R. 483); Secs. 6500, 6503 Rev. Stat.; Rood Attachment, Secs. 63, 11&.
    Charles F. Prior, for defendant, cited:
    Upon the question of the assignment of wages. Gamble v. Car-lisle, 6 Dec. 48 (3 N. P. 279); Poole v. Carhart, 32 N. W. Rep. 16 (71 la,. 37); Bishop v. Garcia, 14 Abb. Pr. 69 ; Noble v. Oil Co., 79 Pa. St. 354 [21 Am. Rep. 66]; Heermane v. Ellsworth, 64 N. Y. 159 ; Silver-stein v. Greisheimer, 44 Bull. 191, 192.
    Superior courts will disregard any minor defects in the bill of particulars or proceedings which do not affect the substantial rights of the adverse party. Section 5303 Rev. Stat.; Swan Treatise (18 ed.) 254; Bierce v. Pierce, 15 Ohio 530, 538.
    Heard on Error.
   SUMMERS, J.

The question raised is whether under the act “To provide for proceedings in aid of execution before justices of the peace,” passed April 27, 1896; 92 O. L. 375; Sec. 6680-2 Rev. Stat. et seq., money not owing to the judgment debtor at the time of the service of the order, but owing to him at the time the order to pay is made, may be ordered paid to the judgment creditor.

The defendant in error recovered a judgment against the plaintiff in error before a justice of the peace, and subsequently instituted before him proceedings in aid of execution. The person named in the affidavit was ordered to appear by an order that was served on him on February 27. At the hearing on March 8 it appeared that the judgment debtor was employed by the person named in the order by the year at a salary of $750, payable in bi-monthly installments of $31.25 each on the fifteenth and thirtieth of each month and on the fifteenth and twenty-eighth when the twenty-eighth was the last working day of the month, and that the judgment debtor had been paid in full to February 15, and that the installment for the last half of that month would have been paid to him on February 28, and that it was not exempt from execution or attachment. The justice ordered the installment paid to the judgment creditor. The judgment debtor prosecuted error to the court of common pleas, where the order was affirmed and error is now prosecuted to this court.

It is well settled that the judgment debtor’s right to recover the installment payable February 28 was conditioned upon his remaining until that time in the service of his employer. Larkin v. Buck, 11 Ohio St. 561; Mechem on Agency, Sec. 635.

The question then recurs whether proceedings in aid of execution reach only debts subsisting at the time of the service of process upon the debtor of the judgment debtor or extend to such as may be in existence at the time of the hearing.

Section 1 of the act, 92 O. L. 375, provides that when a judgment creditor makes oath that any person “ is liable to the judgment debtor in any sum of money, whether then due or not ” the justice shall order such person to appear. Section 2 provides that the exact time of service shall be stated in the return, and that the person served, “ from the time of the service thereof, shall be liable to the judgment creditor for whatever he was then liable for to the judgment debtor.” Section 3 provides that when the person appear he shall be examined “ touching the-money for which he is liable as aforesaid.”

It is apparent from these sections that the examination is limited to the liability subsisting at the time of the service. The exact lime of the service is to be stated and the person served shall be liable for whatever he was then liable for. The words in Sec. 1, “whether then due or not,” relate to the time of payment, and indicate that the word “liable” was not used in its broadest sense and so as to include a contingent obligation, for in that event they would have been unnecessary. The words of the statute are, “ liable to the judgment debtor in any sum of money, whether then due or not.” Liable is used in the sense of indebted.

A sum payable in any event, though not yet due, is a debt — debitum in presentí, solvendum in futuro, but a sum payable on a contingency is not a debt and does not become such until the contingency has happened. People v. Arguello, 37 Cal. 524.

In United States v. Bank, 31 U. S. (6 Pet.) 29, 36, Mr. Justice Story says the word “due” is used in different senses:

“It is sometimes used to express the mere state of indebtment, and then is equivalent to owed, or owing; and it is sometimes used to express the fact that the debt has become payable. Thus, in the latter sense, a bill or note is often said to be due, when the time for payment of it has arrived. In the former sense, a debt is often said to be due from a person when he is the party owing it, or primarily bound to pay, whether the time of payment has or has not arrived.

See also Scudder v. Coryell, 10 N. J. L. 340, 345.

The word “due” is used in the statute in the sense of payable. This interpretation of the act is in accord with the decisions where similar provisions have been under consideration.

In Thomas v. Gibbons, 15 N. W. Rep. 593 [61 Ia. 50], the wages of a brakeman were garnisheed; the answer showed that there was due him at the time of the garnishment $9.70, and that the garnishee owed him no other debt at that time due or to become due, but that he continued in the employ of the garnishee and earned other wages after the garnishment, to the amount of. $144. The court rendered judgment for only $9.70, and the plaintiff appealed.

Adams, J., says:

“The question presented arises upon the construction of Sec. 2975 of the code. The garnishee is required to pay any debt due or thereafter to become due. As to the meaning of the words ‘ debt due ’ there can be no doubt. The question is as to the meaning of the words, ‘debt thereafter to become due.’ The plaintiff contends that the word ‘-debt ’ as used is not restricted to a debt then existing, but may also mean any debt which may thereafter originate. But a debt which has yet to originate cannot properly, we think, be said to be a debt which is to become due. Of such a debt nothing can properly be predicated. The words ‘ to become due ’ are set out against the word ‘ due,’ and like it are used to describe the word ‘ debt,’ which must mean a subsisting debt.” The judgment was affirmed.

Section 3719 Rev. Stat. of Wisconsin is very similar to the statute under consideration. It reads:

“The garnishee from the time of the service of summons shall stand liable to the plaintiff to the amount of the personal property, money, ■credits and effects in his hands belonging to the defendant, and the amount of his own indebtedness to the defendant then due, or to become due, and not by law exempt from executions.”

In Foster v. Singer, 69 Wis. 392, where this section was considered it is held that “A specified salary per month, to be paid to an employe at the end of each month, is not liable to process of garnishment served before the end of the month in which it is to be earned. It is neither ‘ then due ’ nor is it, within the meaning of Sec. 3719 Rev. Stat., ‘ to become due ’ because its becoming due depends upon a contingency.”

See also Edwards v. Roepke, 43 N. W. Rep. 554 [74 Wis. 575]; Hadley v. Peabody, 79 Mass. (13 Gray) 200; Phelps v. Railway Co., 28 Kan. 165.

In Newark v. Funk, 15 Ohio St. 462, 464, where a provision of the code, that “ any cláirns or choses in action due or to become due” might be subjected, was under consideration, Welch, J., says:

“We do not say or suppose that a salary which is not yet earned, or for the payment of which the proper period has not yet arrived, can be so garnisheed or attached. * * * The rule might, perhaps, safely be laid down, that whenever the debtor himself has a right of action, or a present claim which lapse of time alone will ripen into a cause of action, his creditor may, in the cases specified in the statute, be substituted to his rights by garnishment.”

The policy of a law that would authorize the subjecting of unearned wages to the payment of -debts well might be doubted. Its enforcement would tempt even an honest man to repudiate his debts. In Phelps v. Railway Co., supra, p. 172, Brewer, J., says:

“We may also remark'here without enlarging to any extent, that the construction claimed by the plaintiffs would tend to prevent dealings of any kind between the debtor and other parties. By serving a few garnishee notices the future earnings of a debtor might be wholly seized for the payment of his debts, leaving him nothing for personal support. In that way a laborer, however skillful and however valuable his services, might practically be driven from a community.”

It is said in the argument that the court of common pleas entertained a similar view of the statute, but affirmed the order because the' plaintiff in error was not prejudiced. We think he was prejudiced $31.2§ worth. He was served with notice of the hearing, as provided by the act, and is, we think, bound by the order made against his debtor, and in this view he is wrongfully deprived of his money and it was in prejudice of his rights, for in law it is his money and prejudice to his legal rights by taking his money without authority of law, and is not cured by applying the money to the payment of his debt.

The judgment of the court of common pleas is reversed and the order of the justice of the peace set aside at the costs of the defendant in error.


author: HAYNES, J.

text:
    RAILWAYS — FENCES.
    [Erie (6th) Circuit Court,
    April 24, 1902.]
    Haynes and Mooney, jj.
    Eddie Ludtke, an Infant, etc., v. L. S. & M. S. Ry. Co.
    1. Obligation of Railways to Fence Tracks is Peremptory — Sec. 3324 Rev. .Stat.
    The obligation of Sec. 3324 Rev. Stat., providing that railways shall fence their tracks sufficiently to turn stock and providing that any person may recover for any damage which he suffers by reason of the failure of any such company to perform its duty in that respect, is peremptory and is not limited in its application to damages or injuries arising from loss of cattle resulting thereby, but applies to the protection of the public at large and to the benefits to which the public are entitled.

      2; Notice of Defect in Fence.
    A railway company is charged with notice of an opening in the fence enclosing its track when such opening has existed for more than two years and a path has been worn by persons passing to and iro through such opening and across the track at that point.
    3. Efficacy of Fence, a Question of Law and Fact.
    The.question as to whether a fence is a sufficient fence to turn stock, under Sec. 3324 Rev. Stat., is a mixed question of law and fact, and must be submitted to the jury.
    4. Liability of Child for Negligence, a Question for Jury.
    The question as to whether a child of six years is capable of a negligent act is for the jury.
    5. Evidence of Danger to Children Through Failure to Repair Defects in Fence.
    In an action against a railway company for injuries to a child who Ins strayed upon its track through an opening in the fence, evidence that the injured child was in the habit of playing at the end of a street which terminated at the track at the point where such opening was, is competent as showing the notice the company had'of the situation, and the liability of the child to pass through the opening in the fence and upon the track of the railway company.
    Heard on Error.
    Hon. E. B. King and John F. McCrystal, for plaintiff in error.
    George E. Reiter, for defendant in error.
   HAYNES, J.

Suit was brought in the court of common pleas by tbe plaintiff to recover damages for injuries that he received by reason of being run over and injured by a train on tbe track of tbe defendant company’s railroad. He sets up, among other things:

That the defendant’s railroad and right of way runs nearly east and west through the city of Sandusky, Erie county, Ohio ; that the line of defendant’s jauds, right of way and main railroad track runs by and is located in front of and near the south end of Clinton street in said city ; that the defendant was by law required to construct and maintain a good and sufficient fence along the lines of its lands of its said right of wa3r and said railroad track; that along the north line of the lands of said defendant and along the north side of said defendant’s road and right of way, in front of and near the south end of Clinton street in said city, the defendant, many years ago, constructed or caused to be constructed a fence; that for one year and more prior to the sixteenth day of August, 1900, the defendant negligently permitted > said fence to become and remain badly out of repair, and insufficient to such an extent that a section of said fence, the distance between two posts in frqnt of and near tbe south end of Clinton street in said city, was broken down, open and unobstructed, and persons had been accustomed for one year and more prior to the date above named to pass onto and. from said defendant’s right of way and railroad tracks through said fence where the same was broken down, unobstructed, and out of repair as aforesaid.

The petition further proceeds to say that the plaintifF, being under six years of age, and being accompanied by his sister, a little older than himself, and a brother, passed upon the railroad track for the purpose of playing with some children there, and remáined there for some little time, crossing the railroad track, as I understand, and back again, and still remaining along the line of the track until a freight train of the defendant company started to leave the city of Sandusky and passed along upon the track of the railroad. The plaintiff then, in his childish way, ran towards the train, and either attempted to touch it or to run parallel with it, and fell, or was thrown down, and one foot fell upon the track and the foot was cut off.

The issues were joined by the railway company upon the main points as stated, and the case went to trial, and testimony was offered in support of the allegations, and at the conclusion of the plaintiff’s testimony the case was arrested from the jury and the case was dismissed. No verdict was taken.

Some allegations were made in the petition in regard to the manner in which the engine was being run, but no evidence was offered in support of these allegations, and so far as appears here, the train was passing along the line of the railroad in a proper manner and at a proper rate of speed and in the usual course of business.

The real question in the case, we take it to be a question as to whether the defendant is liable in regard to the condition of the fence, for we are of the opinion that if there had been no fence required to be there there would be no liability on the part of the company to this infant if he had strayed upon the track and had been injured.

Section 8324 Rev. Stat., reads:

‘ “A company or person having control or management of a railroad shall construct, or cause to be constructed, and maintain in good repair on each side of such road, along the line of the lands of the company owning or operating the same, a fence sufficient to turn stock; and when such fence is constructed out of barbed wire, or separate lateral strands not connected by interwoven wire, or cross perpendicular wire not more than fifteen inches apart, there shall be securely,fastened to the posts, at the top of the same, at right angles thereto, at least one board, not less than one and one-eighth inches thick and five inches wide, and extending the entire length thereof; and before operating such road shall cause to be maintained at every point where any public road, street, lane or highway used by the public, crosses such railroad, safe and sufficient crossings, and on each side of such crossings cattle-guards snfficient to.prevent domestic animals from going upon such railroad; and such company or person shall be liable for all damages sustained in per. son or property in any manner by reason of the want or insufficiency of any such fence, crossing or cattle-guard, or any neglect or carelessness in the construction thereof, or in keeping the same in repair.”

The contention here on the part of the defendant company is that the statute has no application to a case of this character; that its primary object is to prevent the straying of cattle upon the track, and that it is to be confined to that class of cases.

The statute has been in existence in Ohio a great while, but there have been no decisions by any of the courts that have been cited for us or that we have been able to find that bear, directly in point upon this question, and we are left to such light as we can get from a construction of the statute and from cases in other states that are similar in their character.

Now, it will be observed, that the railway company is required to build a fence. That is obligatory. It is true it is said that the fence shall be sufficient to turn stock. That would simply go to the quality of the fence, but the obligation to build a fence is peremptory, and it is further provided that any person may recover for any damages that he may suffer in person or iu property, if the company fails to perform its duty in that respect. We think the word ” person ” there should be observed, and that some force should be given to it.

An instructive case on this question may be found in Schmidt v. Railway Co., 23 Wis. 186 [99 Am. Dec. 158]. That was a case like this, where a child had strayed upon a railway track in consequence of the failure of the railroad company to erect a fence, and it had been injured. The case had been tried and a judgment had been rendered in favor of the plaintiff against the railway company, and the case taken to the Supreme Court of the State of Wisconsin. It appears from the statement in regard to the statute, that the statute is in substance like ours. It is said to be copied from one in the state of New York, and in Corwin v. Railway Co., 13 N. Y. 42, a copy of the statute is given. In that case the company was required to build a fence, and in regard to some of the later clauses it referred to cattle and the liability of the company in regard to. injury animals might do in case a fence was not built. It was argued by counsel that the statute is applicable only to damages or injuries arising from the loss of cattle, and the court reach that and meet it and say at page 193 with regard to a case that they had already, decided:

“ Thus a liberal construction has already been placed upon the statute for the purpose of furthering the important and beneficial objects of its enactment. It has been extended to cases which, if not clearly within the letter, are certainly within the spirit of the law, as when it was applied to the case of a passenger injured in consequence of a failure of the company to fence its road. And it is in strict harmony with the principle and reasoning of these cases to say that the statute also embraces a case like the one before us.”

The case referred to is Blair v. Railway Co., 20 Wis. 254, where animals having strayed upon the railroad track, the company having failed to fence the track, the cars struck the animals, and I think, were derailed and passengers were injured; and that raised the same question, and the court held in that instance that a passenger was entitled to the benefit of that statute, and it was not to be limited to recovery for damages to animals alone, and they cite authorities in regard to the object and purpose for which these statutes are passed, not limited simply to the protection of animals, bulto the protection of the public at large, and to the benefits to which the public are entitled. The court say in Schmidt v. Railway Co., supra, at page 193 :

“ In Wakefield v. Conn. & Pass. Ry. Co., 37 Vt. 330, where a statute required the bell on locomotive engines to be rung, or the whistle blown, for a certain distance at crossings, the court held that this duty was imposed upon railroad companies, not only in reference to persons approaching or in the act of crossing the track, but in reference to all persons who, being lawfully at or in the vicinity of the crossing, might be subjected to accident and injury by the passing train. In that case the plaintiff had crossed the track, and driven about thirty-five rods south, when a train of freight cars came over the road from the south, and was within five or six rods from the plaintiff’s team when first discovered by him and his horses. The forward pair of horses, being greatly frightened, instantly turned back with such force as to break their fastenings to the other horses, and ran back to the crossing, where they were injured by the passing cars. The court, while holding that the connection of the failure to blow the whistle or ring the bell with what did happen seemed very slight, yet could not for that reason say that the company was not responsible for any injury caused by an unwarrantable omission to perform the duty imposed by law.
“ In Singleton v. Eastern Counties Ry. Co., 97 Eng. C. L. 287, it seems to be assumed by the judge, that if the children had strayed upon the railroad track through the fence, at a place where a rail was off, which fence the company was bound to keep in repair, this would be such an act of negligence as would render the company liable. Mr. Justice Williams says: ‘There was nothing to show how the children got on the railway. All was mere conjecture and surmise.’ But the fair inference from the case is, that if it had appeared that the child passed onto the track through a defective fence which the company was bound to keep up, then the action might have been maintained.”

Instructive cases upon this question will be found in Hayes v. Railway Co., 111 U. S. 228 [4 Sup. Ct. Rep. 369], which arose in the city of Chicago, and which was decided by the Supreme Court of the United States, with reference to certain fences or walls or protection that the railway company was bound to build along near the lake front and in front of grounds that had been laid out for the purposes of a path, and the language used by the court is strong, earnest and instructive. There is a case also, Stuettgen v. Railway Co., 50 N. W. Rep. 407 [80 Wis. 498], where a child was hurt upon a railroad track, and Marcott v. Railway Co., 10 N. W. Rep. 53 [47 Mich. 1, 9], and Nickolson v. Railway Co., 83 N. W. Rep. 454 [80 Minn. 508],

Now, we think the reasoning of these cases is such that it is proper to be adopted. We think when a railroad company is required to build a fence along the line of its track, it is to build it for the benefit of all persons who might be in that vicinity; that is to say, as to all persons who might unwittingly or unadvisedly stray upon the track and be injured by passing trains.

The company in this case had built a fence. The fence is described in the pleadings, and it is also shown that the fence at this particular point where this street terminated at the railroad track had been open for a period of two years at least, or, at least, we will say for a long time. Persons had worn quite a track in passing to and fro, and by whom it was opened, or wherefore is not shown, and it is immaterial, perhaps. It does, we think, sufficiently appear that the fence had been in that condition a sufficiently long time to attract the attention of persons in charge of the railroad; that they were charged with knowledge of the condition of affairs, and chargeable with knowledge of the fact that it was remaining in that condition.

The question now, it seems to us, is whether this fence was a sufficient fence to turn stock, because that is a question that might perhaps be a test, but the question under the statute whether it was a sufficient fence or not, was a question that should have been left to the jury. It is one of those mixed questions of law and of fact that is the peculiar province, as the Supreme Court of this state say, for the jurj' to pass upon. It might be that that fence was amply sufficient to keep a child from passing through or straying upon the track of the railway company. Possibly it was not, but whether it was or was not, was not a question of law, but a question of fact, in our judgment, that should have been submitted to the jury.

This child, it appears, was a child about six years of age, or a little older, and the question whether the child was negligent,'if he was old enough to be capable of a negligent act, if that was the claim that was made in the case, should have gone to the jury to be passed upon by the jury.

It is said that the law is that a child under six years of age is incapable of committing an act of negligence; it has not sufficient knowledge, but there are cases that do not take that view, that hold to the contrary. I do not find, or at least I have not seen any cases in Ohio, touching that point.

There was, in connection with this line of thought, evidence offered which was ruled out by the court, and that was that the children were in the habit of going there for the purpose of playing at the end of this street which adjoined this railroad track, and where this opening was. Now, in the view that we take of the case, that testimony was competent, and should have been admitted by the court for the purpose of throwing -light upon the situation and throwing light upon the notice that the company would have of the situation and of liability of children to pass through upon the line of the railway company. It must be observed that leaving this opening in the line of the fence practically was an'' invitation to the children who were at play to go upon the track, or not to put it in that form, it was notice that children were liable to go upon the track, and no steps were taken to prevent that.

Now, it seems to us, that the omission to rebuild that fence and keep it in the condition in which it originally was, to keep it in the condition which the statute requires, was an act of negligence for which the company would be responsible if it was shown that it was through that defect that this child strayed upon the land of the railroad and the line of the track. It was urged that the condition of the fence would not be the proximate cause of the injury, that is to say, the opening in that fence was too remote, but we do not share that view of the case. At any rate we are of the opinion that that question should have been left to the jury to decide, whether it was or was not such an opening as would attract children or be apt to cause them to pass upon the track, and into places of danger.

The judgment of the court below will be reversed and the cause will be remanded to the court of common pleas for a new trial.