text:
    APPEAL BY A RECEIVER..
    Circuit Court of Cuyahoga County.
    John L. Young v. The Manhattan Beach Company.
    Decided, December 9, 1907.

      Receiver — Appeal Bond — Leave to Appeal Case.

    1. A receiver may appeal a cause in which he is interested without giving an appeal bond.
    2. It is doubtful if a receiver needs leave of the court which appointed him, to appeal a case.

      J. H. Saltsman, for plaintiff in error.

      Herman Preusser, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This case is appealed into this court by the receiver appointed in the case by the common pleas court. Motion is made to dismiss the appeal, because no appeal bond was given, and because the receiver did not get leave to appeal the case until thirty-one days after the entry of the order appealed from.

We think neither objection well grounded.

Section 5227, Revised Statutes, provides that a party desiring to appeal his cause to the circuit court shall give an appeal bond within thirty days after the judgment- or order is entered on the journal of the court.

Section 5228, Revised Statutes, provides that:

“A party in any trust capacity, or a county treasurer in his official capacity who has given bond in this state with sureties, according to law, shall not be required to give bond and security to perfect an appeal; and in such ease, the clerk of the common pleas court, at the expiration of thirty days from the entering of such judgment or order upon the journal of the court, shall if not otherwise directed, make a transcript, which, together with the papers and pleadings in the ease he shall transmit to the clerk of the circuit court as in other cases of appeal. ’ ’

We hold that a receiver appointed as this receiver was appointed, comes within the provision of this statute, being a party in a trust capacity, qualified as therein provided, and may appeal any cause in which he is interested without giving bond, and the clerk not being otherwise directed within the thirty days, on the thirty-first day properly and according to law made a transcript and transmitted it with the other papers to this court. Nor was the leave to appeal by the court which appointed the receiver granted too late. There was no reason for granting it until after the thirty days were up, for some other party might appeal and make such leave unnecessary. Again, in view of .the statute referred to, it is doubtful if any leave is necessary for the appeal is- perfected as of course; by the clerk, unless the court orders otherwise and here there was no countermanding order.

Motion overruled.


source: Caselaw Access Project

author: Winci-i, J.; Henry, J., and Marvin, J.,

license: Public Domain

text:
    LIABILITY OF OWNER OF VESSEL.
    Circuit Court of Cuyahoga County.
    The Saginaw Bay Transportation Company v. The Portage Entry Quarries Company; and Two Other Cases.

    Decided, December 9, 1907.

      Admiralty Jurisdiction — Ohio Courts Have Hone.

    The courts of Ohio have no admiralty jurisdiction and can not apply the federal statute limiting the liability of an owner of a vessel in a negligence case.

      Rogar M. Lee, for plaintiff.

      Goulder, Holding é Hasten, contra.

       Affirmed without opinion, Saginaw Bay Transportation Co. v. Portage Entry Quarries Co., 82 Ohio State, 434.

   Winci-i, J.; Henry, J., and Marvin, J.,

concur.

The proposition that the verdicts in these three cases, all of which depend upon the same facts, were not supported by sufficient evidence, was argued to us with so much earnestness that we have reviewed the evidence with more than usual care. While there is an irreconcilable conflict between the evidence given by the plaintiff’s witnesses and that given by the defendant’s witnesses,' still we think that the evidence of one of the witnesses for the plaintiff, Alexander F. MeDougall, has an air of verisimilitude, and that if he was believed by the jury, as they seem to have believed him, their verdict is warranted by his evidence. He was an eye witness of the collision and his attention was attracted by what he saw. He,observed what was occurring as he passed on towards the east, on his way to dinner. Some discrepancies in his testimony are explained by the fact that he was moving on slowly during the progress of events, so that he observed different events from different view points. He went back after dinner to see what damage had been done. Why should he do this if he had not seen the occurrence, just as he relates it, before dinner? We can not believe that his story is either imagined or invented. Reading it through, one gains the impression that he was a truthful witness, stating what he saw without exaggeration or intention to deceive. Of course he testifies as a fact which he saw that the schooner Hattie struck the scow, when it may be that the scow was so low below the dock that he could not see the scow itself but only her deck load. In 'this he was giving his conclusion that the Hattie must have struck the scow based upon his observation of the direction in which the schooner was headed, as he saw it, and the position of the scow as indicated by boxes upon her which he could see. This does not weaken his testimony materially.

Having read and weighed his testimony carefully, we are unable to say that the verdict is against the weight of the evidence.

As to limitation of liability, we are not disposed to follow the Pennsylvania ease cited by counsel for plaintiff in error. We think the better rule is discovered by a study of the cases of Duffy v. Gleason, 58 N. E., 729, and Gleason v. Duffy, 116 Fed., 298. From these cases, and others cited by counsel for defendant in error, we gather that the limitation provided by the federal statute is to be administered only in courts of admiralty.

The courts of this state have no such jurisdiction and never had. It is distinct from the law and equity jurisdiction vested in our state courts, and is regulated by rules of its own. Furthermorej were the state court to undertake to apply the federal limitations statute, it could not do so in this ease, because the same was not properly invoked. There is no allegation in the answers that the negligence complained of resulted without the privity or knowledge of-the owner seeking the limitation. This defect we consider fatal. The pleadings do not properly raise the issue suggested. Relief of the kind now claimed may yet be granted in a court of admiralty, notwithstanding the judgment. See the case last cited.

We find no prejudicial error in the charge. It is true that the court repeatedly dwelt upon the proposition that the jury must find that a collision occurred between the schooner Hattie and the scow before it could bring in verdicts for the plaintiffs, without following up that statement each time with the further charge that they must also find that damage resulted from such collision, but we do not think that the jury was misled by this. In one place, at least, he qualified his statement and said that if they first found that the schooner struck the scow, they should next proceed to find out how much damage was done. That they followed his directions is shown by the figures in their verdicts. As sensible men they were not unmindful of the fact that a collision without damage to the scow would' furnish no basis for verdicts for the plaintiffs.

There was no error in refusing the defendant’s requests to charge nor was there prejudicial error in charging that the transportation company and Mr. Gould were partners in the operation of the steamer Rhoda Emily.

Coming now to the question of excessive damages allowed to the Portage Entry Quarries Company, we think the point well taken and the computations made on pages 38, 39 and 40 of the brief of counsel for plaintiffs in error seem to be sustained by the record. Nor is this excess of $181.52 offset by the refusal of the trial court to permit said plaintiff to amend its petition so as to entitle it to prove some $187 more damages by reason of loss of use of the stone boxes. No exception was taken to this by the plaintiff or offer to prove made, so that this item is one of the merest conjecture.

We find no other error- in any of the cases. It follows that the judgments in favor of Joseph Croze and Thomas J. Prendergast are affirmed, and if the Portage Entry Quarries Company remits $181.53 from its judgment, that judgment will also be. affirmed; -otherwise it will be reversed, because it is excessive.


author: Winch, J.; Henry, J., and Marvin, J.,

text:
    EVIDENCE AS TO INTENTION OF TESTATOR.
    Circuit Court of Cuyahoga County.
    Minot L. Newton v. Laura M. McKinstry.
    Decided, April, 1907.

      Wills — After-Acquiracl Heal Estate — Passes Under Residuary Clause of Will.

    1. Revised Statutes, Section 5969, provides that after-acquired real estate, as well as personal property, shall pass under the will “if such shall clearly and manifestly appear by the will to have been the intention of the testator.” While this intent-ion must “appear by the will,” still testator’s circumstances and surroundings may be considered, but they must be the circumstances surrounding her at the date of the will, and not long afterward.
    2. A disposition by will of “all the rest and residue of my estate and property,” makes it “clear and manifest” that the testator intended that any real estate she might acquire after making the will, should pass under it.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This is an action brought for the partition of certain lands as to which it is claimed Caroline Newton, under whom all the parties claim, died intestate. The common pleas court found that the land in question passed under the will of Caroline Newton and dismissed the petition.

A consideration of the case requires a construction of said will and a determination of whether real estate acquired by the testator after she made her will, passed under it.

It seems that Caroline Newton, wife of Lucius Newton, on the 7th day of June, 1887, was- the owner of a farm of 14.42 acres in Richfield township, Summit county, Ohio, worth about $2,000, and a small amount of personal property. She then had five children, and on said day made the will in question, in which after making certain bequests, she left the residue of her estate to her husband in trust, for the benefit of her daughter, the defendant, Laura M. McKinstry.

On September 20, 1893, her husband, Lucius Newton, a thrifty farmer, worth about $14,000, made his will, giving all his property to his wife. Lucius lived until December 4th, 1896, when he died seized of the premises here involved, which together with all his estate, under the terms of his said will, passed to his widow. But she had lost her mind sometime before her husband died and was so mentally infirm that a guardian was appointed for her six days after her husband’s death. Whether she was non compos at the time her husband drew the will, in 1893, does not clearly appear, and is perhaps- unimportant. Mrs. Caroline Newton lived seAV.ral years after her husband’s death, never regained her mind, and died -April 13, 1902.

The plaintiff claims that it was never the intention of Caroline Newton to place in the hands of a trustee'for the use of her daughter, Laura IT. McKinstry, so large a fortune as $16,000, but that she intended to make provision for her only to the extent of her then independent means-, which amounted to about $2,000, the 14% acre farm, and' a small amount of personal property.

He concedes that personal property acquired by Mrs. Newton after she made the will, passes under it, but says that the rule is different with regard to after-acquired real estate, and our attention is called to Section 5969 of the Revised Statutes, which has been the law of this state at least ever since the Constitution of 1851 was adopted.

That section reads as follows:

“Any estate, right, or interest, in lands or personal property or other property acquired by the testator after the making of his will, shall pass- thereby, in like manner as if held or possessed at the time of making the will, if such shall clearly and manifestly app.ear by the will to have been the intention 'of the testator. ’ ’

Referring again to the will for the words particularly affecting this controversy we read, in Item II:

“All the rest and residue of my estate and property real and personal, including 14.42 acres of land in # * * Richfield, Summit county, Ohio, as trustee, in trust for my daughter Laura M. McKinstry, of Cleveland, Ohio.”

We are constrained to hold that the intention of the testator, as shown by the will, was to devise all after-acquired property she might die seized of. Such is the natural and ordinary import of the language used.

The question now raised is lent color only by the fact‘that the after-acquired property is seven times as much as she possessed when she made her will and that it came to her when she was incapable of making a new will.. These are facts outside of the will, and the statute says that the intention must be gathered from the will. Of course, one’s intention may be gathered from his circumstances and surroundings, but they must be the circumstances and surroundings at the time of the making of the will, and not long years afterward.

Again, no question is raised as to the language being sufficient to dispose of after-acquired personal estate. Such has been, the holding of the courts from the earliest times that persons have been permitted to pass on their property to the objects of their bounty, by will; but it is said that in the absence of a statute, in Ohio, real estate acquired after the execution of a will did not pass by the will and as to such property the testator died intestate. Smith v. Jones, 4 Ohio, 116.

Now we have, not only the statute referred to, but the rule, “that the testator will'not be presumed to have intended to leave any of his estate undisposed of.” Davis v. Corwine, 25 O. S., 668, 675.

The statute, it is true, uses the words, “if such shall clearly and manifestly appear by the will. ’ ’

As to these words we agree with Judge Cook of the seventh circuit court:

“The words, ‘clearly and manifestly’ as used in Section 5969, Revised Statutes, should receive' but little ‘consideration in construing wills; and where it reasonably appears from the will that the testator intended to devise after-acquired lands-, the intention should be given effect notwithstanding these intensives. ” Carrel v. Carrel, 24 C. C., 416.

Again we have here a general residuary clause: “all the rest and residue of my estate and property. ’ ’

The authorities are abundant that such words preclude an intention to die intestate as to any property of which the testator may die seized. An instructive case on this subject and one containing a statute like ours and giving the history of such legislation is Winchester v. Foster, 57 Mass., 366, the opinion of the court being delivered by Shaw, C. J., in 1849.

The blending of the real and personal property and their disposition by apt words as a single gift, repel the suggestion that the testator may have had one intention as to her after-acquired personalty, and another intention as to her after-acquired realty. The intention as to the personalty being clear and manifest, established by repeated adjudications, it can hardly be said that the same intention as to the realty is not equally clear and manifest.

At least, in the absence of authority to the contrary, we are compelled to hold that the will of Caroline Newton passed lands acquired by her after she made her will, and it follows that the judgment of the common pleas court must be affirmed.


text:
    PAYMENTS UNDER. A HEALTH POLICY.
    Circuit Court of Cuyahoga County.
    The Continental Casualty Co. v. Vernie Johnson.
    Decided, April, 1907.

      Health Policy — Payment of Premiums Monthly in Advance — Waiver of Condition Must he Pleaded.

    Where one of the conditions of a health policy was that premiums should be paid on the first day of each and every month in advance, to entitle the policy holder to prove a waiver of this condition he must plead it.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

The judgment in this case seems to be warranted by the facts, if they were properly before the court, but a reversal is required because one of the technical rules- of pleading was violated.

It is confessedly better that salutary general rules should be universally applied than that an occasional violation of them should be permitted in particular cases.

Vernie Johnson brought his action to recover on a policy of health insurance. In his petition, among other things, he alleged that he “well and truly kept and performed all the conditions of said policy on his part to be performed.”

The company’s answer traversed this allegation.

The policy provided that the insured should pay the company the required premium on or before the first day of each and every month, in advance,, during the life of the policy, that the insurance should continue in force only so long as the premiums-should be paid as required on or before the first day of each month, in advance, without notice, and—

“That the acceptance of any past due or delinquent premium is optional with the company, and shall not in any case be a waiver of the forfeiture of this policy, but shall be continuous and have the same effect as- if a new application in the same terms as the last preceding one were then made and a new policy subject to the warranties and agreements of Such new appliestion, issued at 12 o ’clock noon, standard time, on the day following sucli acceptance of such past due premiums, and that for the payment and remittance of such past due premiums the insured constitutes the local treasurer his agent. ’ ’

At the hearing it. was conceded that the insured did not pay the last premium due before he was taken sick, until six days after the first of the month.

The insured thereupon undertook to show that he was prevented from making said payment by the negligent acts of the company and that they received said premium without objection, though paid six days late. This evidence was admitted over the objection of the company. While we think the evidence thus admitted conclusively shows that the company waived the forfeiture and the printed conditions of its policy with reference thereto, still we are constrained to hold that the court erred in admitting such evidence. The issue thus raised was not raised by the pleadings.

For condoning the error here complained of this court was reversed in the ease of The Eureka Fire & Marine Insurance Co. v. Baldwin, 62 O. S., 368, so we feel disposed to apply the law of that case here, though the delicacy of counsel withheld its citation to us.

The syllabus of the case referred to reads as follows:

“Where a party avers that he has performed all the conditions of a contract to be by him performed, ,his proof upon the trial must show such performance in order to entitle him to a recovery. Under such an averment it is not competent to prove a waiver of such conditions. If the waiver of conditions is relied upon, such waiver must be averred in the pleadings. ’ ’

For error in the admission of evidence the judgment is reversed and the same is remanded for a new trial.


author: Winch, J.;.Henry, J., and Marvin, J.,

text:
    LIABILITY FOR. FUNERAL EXPENSES OF WIFE.
    Circuit Court of Cuyahoga County.
    John W. Clawson, Administrator, v. Samuel Briggs.
    Decided, April, 1907.

      Estate of Married Woman Liable for Her Funeral Expenses.

    The estate of a married woman, who dies leaving property, is primarily liable for her funeral expenses, and where the husband pays them he may recover them from her administrator.
   Winch, J.;.Henry, J., and Marvin, J.,

concur.

In this ease we hold that in Ohio the estate of a married woman, who dies leaving property, is primarily liable for her funeral expenses, and, where the husband pays them, he may recover them from her administrator.

We follow the reasoning of the opinion, of Holmes, J., in Constantinider v. Walsh, 15 N. E., 631.

The common pleas court being of the same opinion, its judgment is affirmed.


text:
    PROCEEDINGS FOR. REVIVOR NOT APPEALABLE.
    Circuit Court of Cuyahoga County.
    Peter J. Little v. Aultman-Miller Co.
    Decided, April, 1907.

      Appeal — Special Proceedings.

    Proceedings for the revivor of an action under favor of Section 5149, Revised Statutes, are special proceedings in an action and are not appealable.

      Kohler, Kohler & Moitenger, for plaintiff in error.

      Hoyt, Dustin c6 Kelley and T. fl. Bushnell, for cross-petitioner in error.

      Allen, Waters /& Anclress, for defendant in error.
   Winci-i, J.; Henry, J., and Marvin, J.,

concur.

By the motion to dismiss the appeal in this action we are called upon to determine whether an appeal lies to an order of the common pleas court denying the relief prayed for in a supplemental petition filed in an action therein pending, suggesting the death of one of the defendants and asking that the action be revived as against her personal representatives.

As pointed out by Judge Shauck, in the case of Lange v. Lange, 69 O. S., 346, one of the three traits of an appealable cause is that it be a civil action.

In the case of Missionary Society v. Ely, 56 O. S., 405, Judge Spear calls attention to the fact that our statutes do not define a civil action or point out the difference between a civil action and a special proceeding, but that a marked distinction between the two is clearly indicated by the Ohio code.

The proceedings here involved were brought under favor of Section 5149, Revised Statutes, which reads as follows:

“A revivor may be affected by the allowance by the court or a judge thereof in vacation, of a motion of the representative or successor in interest to become a party to the action, or by supplemental pleading alleging the death of the party, and naming his representative or successor in interest upon whom service may be made as in the commencement of an action; but the limitations contained in subsequent sections of this chapter do not apply to this section.”

While the pleading filed was styled by the pleader a “supplemental petition,” there was no service upon it, as provided in the statute, and no entry of appearance.

If this matter was a special proceeding, it is not appealable, and following the analogy of the case of Taylor v. Fitch, 12 O. S., 169, the reasoning of which we think is applicable to this case, we hold that proceedings for revivor of an action under Section 5149, Revised Statutes, are special proceedings in an action and are not appealable. A revivor thereof may be had on error. The syllabus of the Taylor case, supra, reads as fol-' lows:

“A proceeding under Section 536 of the code, by petition in the court of common pleas, to vacate a judgment rendered by that court at a former term and to re-instate the case on the docket for trial, is not appealable to the district court, under the fifth section of the act of April 12, 1858, to ‘relieve the district courts,’ etc.
‘ ‘ Such proceeding is not, of itself, a civil action, but a special proceeding in an action after judgment, and subject to review only on error.
“Where such a petition contains certain allegations of specific facts, claimed to constitute unavoidable casualty or misfortune by which the defendants in the judgment were prevented from defending, and contains also separate and distinct general alie-, gations that, without negligence on their part, the defendants in the judgment were prevented from defending by unavoidable casualty and misfortune; and there is no motion or order to make the allegations of the petition more certain and specific, no bill of exceptions setting out the evidence, and no special finding by the court; and where there is a general finding by the court sustaining the general allegations of the petition, the presumption of law is that there was evidence before the court sufficient to sustain such general finding.”

The appeal is dismissed for want of jurisdiction to entertain it.


text:
    INACCURATE STATEMENT OF ACCOUNT BECOMES BASIS OF SETTLEMENT.
    Circuit Court of Cuyahoga County.
    Edward B. Miller v. Ira M. Miller.
    Decided, April 30, 1907.

      Settlement — Method Agreed Upon — Must Stand Though Inaccurate.

    Where two brothers settle their mutual accounts and divide a common fund- belonging to them equally in a manner agreed upon and arbitrary, but assumed to be equitable, the settlement must stand, notwithstanding the division was based upon inaccurate mathematical calculations.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Plaintiff and defendant, who are brothers, having been jointly indebted upon certain notes held by Butehel College, upon which each had made payments from time to time during a period of about eight years, the one, however, having paid much more than the other, and haying come into possession of a fund of $22,500 belonging to them equally in December, 1901, agreed to adjust their accounts and divide said fund.

. They spent about ten days looking up their vouchers and then met at the house of ,one of the brothers and were busy almost all night figuring on a basis of settlement. The final figures arrived at they reduced to writing in two copies, both signed by the brothers as ‘1 accepted ’ ’ and one copy was retained by each brother.

These writings show that after the payment of certain other joint indebtedness of the brothers, plaintiff was to have $8,900.06 and defendant $4,037.53, and these amounts were afterwards received by each, after correction of the amount estimated to be due on - one item of indebtedness not then paid. Plaintiff, however, now claims that he received considerable less 'out of said common fund than was really his due and the proof shows such to be the fact, to the extent at least of $357.36. His right to recover that amount, however, or any sum, depends-upon the nature of the agreement of settlement arrived at by the brothers on the night in question. If the brothers concluded to divide the funds in a certain manner which was arbitrary, but assumed by them as equitable, the settlement must stand notwithstanding the manner of division was based upon inaccurate mathematical calculations, unless the papers show upon their face that the money was subsequently divided between the brothers in some other manner than that agreed upon.

If no manner of division was agreed upon, then of course the accounts must be corrected and settlement made in accordance with the rights of the parties ás they existed previous to the night they met for settlement.

Reviewing the evidence shortly, it seems clear that the brothers agreed that vouchers submitted at the meeting showed that plaintiff had paid the college (with interest) $11,408.09 and that defendant had paid $3,830.81; that there-had been also paid the college about $4,000 for which neither had found vouchers, and they agreed that this amount had been paid in the same ratio as the payments for which they had vouchers at hand. Thereupon they agreed that plaintiff had made two-thirds of the payments to the college and the defendant had made one-third Of said payments. This ratio was approximately, but not strictly in accord with the figures before them.

It then appeared that the fund of $22,500 on hand belonging to them equally, was more than sufficient to satisfy the amounts paid to the college. Of course the surplus belonged to the brothers in equal parts. They had other unpaid debts which they equally owed and while'this surplus was not really sufficient to pay them, they agreed that they would first pay two of said debts, aggregating $7,912.41, before they divided the balance of the fund. In so agreeing defendant got the worse of the bargain, but there was no mistake about it.

Proceeding upon this agreement they deducted said sum of $7,912.41 from $22,500, and divided the remainder into three parts, of which they agreed that plaintiff should have two parts and defendant one. ‘Each subsequently received the, amount due him as so agreed.

Taking this view of the evidence, it establishes the proposition that the brothers agreed upon a manner of division of the common fund which, while not strictly in accordance with the rights of the parties, was yet approximately so and was determined upon by them, as fair and equitable. The trial judge concluded that a settlement so made should not be disturbed and with these views we concur.

Judgment affirmed.


text:
    LIABILITY OF BOARDINGHOUSE KEEPER FOR PROPERTY OF BOARDER.
    Circuit Court of Cuyahoga County.
    Edmund Hughes v. Leonard W. Crawford.
    Decided, April, 1907.

      Liability of Boarding-House Keeper — Contributory Negtigenee of Boarder.

    A hoarder, as well as his hoarding-house keeper, is required to exercise ordinary care of property left in his room which may attract thieves.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Plaintiff was a boarder in the house of defendant, who kept a few boarders. One morning plaintiff left his watch in his room and his purse with some money in it in his clothes hanging up in his closet, and went to his work.

There was no lock on the door of plaintiff’s room.

Sometime that day another man applied for board and was assigned a room near plaintiff’s in which he remained several hours. A lady member of the family having occasion to use the new boarder’s room, asked him to step into plaintiff’s room temporarily, which he did, afterwards leaving the house and never returning. When plaintiff came home at night his watch and purse were gone. He brought his action against the boarding house, keeper to recover their value. The trial judge direeled a verdict for the defendant and the ease is now here for review.

Conceding that boarding house keepers are bound to exercise ordinary care of the property of boarders left in their rooms of which the former have a certain supervision and control, and that the degree of ordinary care is not that degree of care as is demanded of an ordinarily prudent man under similar circumstances, there was enough evidence in this case to go to the jury, unless the plaintiff himself was so careless and negligent regarding his own property, that a verdict was rightly directly against him.

On this point it appears that plaintiff knew that defendant was accustomed to admit strangers to his house as boarders without inquiry concerning them, for he had been so admitted himself. He knew there was no lock on his 'door; he knew the family and others in the house could and did make some use of his room, or a.t least, had free access to his room. Knowing all this he deliberately left his watch in plain view in his room, and this, the evidence shows, he was accustomed to do. Leaving such small objects of value in plain sight, unprotected, we think was not such care of his- own property as plaintiff should have taken of it. It created a temptation of theft.

As there was no evidence in the ease tending to show that any member of defendant’s family took the watch and purse, we think the judgment was properly against the plaintiff and it is affirmed.


text:
    SPLITTING A DEBT AND ASSIGNING PART.
    Circuit Court of Summit County.
    The City of Akron v. Elias S. Day et al.
    Decided, April, 1907.

      Assignment of Part of Fund Due Gity Contractor — Acceptance Toy City.

    An order drawn on a fund due a city contractor, if accepted by the fiscal officers of the city, múst be paid out of appropriations made by the council for the payment of the contractor.
   Winci-i, J.; Henry, J., and Marvin, J.,

concur.

On June 30th, 1900, James McGowan, contractor, working on a city improvement under *a contract with the city of Akron gave to Elias S. Day, defendant .in error, an order on the city of Akron for $400 payable but of money due said McGowan under said contract. On the same day said Day presented said order to Charles H. Isbell, who was then clerk of the city of Akron and also clerk of the board of city commissioners, who received and filed it, told Day that the order would be paid when money was payable to McGowan under his contract, and notified the board of city commissioners that the order had been presented. Thereafter an ordinance was duly passed by the city counsel directing the payment to McGowan of the 'sum of $973 due him under his contract.

The law then governing the city of Akron required for the payment of the money due McGowan that an order on the city treasurer be drawn signed by the city clerk and countersigned by the chairman of the board of city commissioners. Such order for the sum of $973 payable to McGowan was duly drawn August 7, 1900, endorsed by McGowan, collected by one of the board of city commissioners 'and the proceeds expended by him in paying certain creditors of McGowan, including an order for $200 held by the city clerk himself, but no part of the money was paid to Day on his order. It further appears that the contract between McGowan and the city specifically provided that no assignment should be made by him of moneys due or to become due thereunder, without the consent of the city, but such is the law in the absence of any express provision of the contract. Consent to the assignment in such case, however, is inferred from very slight circumstances.

We think this case comes squarely under the decision in Robbins v. Klein, 60 O. S., 199. I quote from, page 202 of the decision:

“Doubtless it was at one time the established doctrine at least at law, that a creditor had no right to split his debt and assign a part of it unless the debtor consented to the transaction. This court,, however, held quite recently (P., C., C. & St. L. Ry. Co. v. Volkert, 58 Ohio St., 362), that whatever the rule at law may have been, or now is, in equity an assignment of a part of a debt will be upheld without regard to the consent of the debtor. But whether that rule prevails or not is immaterial to the question here, for when in due course of mail the bank'received the note and order involved, and filed them away without objection, it should be held to have thereby ■ consented to the assignment. It was a matter of very slight consequence to the bank whether it paid the amount of the deposit by. a single act to the depositor in person or whether it was paid at different times to .a number of persons to whom parts of it had been assigned, while to the several assignees it might be a matter of the highest concern. Under such circumstances, justice and fair dealing require that the consent of the debtor should be inferred from very slight circumstances. No other purpose than to have the note in question paid out of the fund in the hands of the bank could have actuated Robbins & Co. to procure the order and afterwards send it to the bank together with the note. That purpose the bank must have perceived when the note and order were received by it. With the knowledge of this purpose the bank without objection received the note and order and filed them away. If the bank had not intended to consent to that division of the debt which was necessary to pay the note, its duty was to promptly return the note and order to Robbins & Co. The omission of-the bank to pursue this course, together with its action in receiving and retaining the note and order and filing them away, are not circumstances that bear only slightly on the question-. On the contrary, they possess a cogency not only amply sufficient to establish the consent of the bank to a division of the fund' and payment of the order, but make any other inference irrational. Therefore, if the order was sufficient in substance to have a valid operation, the right of Robbins & .Co. under it should be regarded as complete from the date it was received and filed by the bank. This brings us to a consideration of the order itself.”

What are the circumstances in the ease at bar indicating that the city of Akron consented to the assignment by McGowan of part of the money coming to him under his contract?

The order was presented to the proper officer of the city on June 30th. Tie at once notified the board of city commissioners, so that all the officers of the city controlling the disbursement of funds of the city ordered by the city council to be paid out had notice of the order. No money was paid out under McGowan’s contract until August 17, 1900, and for more than five weeks Day rested quietly, relying, as he had a right to rely, upon his order being paid by the city. If the city had not intended to pay the order, it should have returned it to Day without delay and so notified him. Its consent to the assignment under the order of part of the money due McGowan is to be inferred. In the language of the decision just quoted, any other inference is irrational.

It is contended, however, that under the law governing Akron at the time, Section 1693, Revised Statutes, the order could not be accepted or paid except on resolution of the council and of the board of city commissioners. An unconditional acceptance, binding the city to pay, whether it owed McGowan anything or not, might require such action, but an order on a fund payable by the city and duly appropriated by it, would not. The fiscal officers of the city, in such case, could bind it to a consent that money due under a contract be assigned and that an order for such money be accepted.

Judgment affirmed.


text:
    REPRESENTATIONS AS TO A NERVE SPECIFIC.
    Circuit Court of Cuyahoga County.
    E. H. Hechler v. The Make-Man Tablet Co.
    Decided, January 20, 1908.

      Implied "Warranty in Sale of Tablets to Druggist.

    In a sale by the manufacturer to a driggist of tablets represented to be valuable as a specific for nerve troubles and a first-class nerve tonic, there can be no issue made as to whether the tablets were in fact a specific for nerve troubles, but there is an implied warranty that they are not worthless or deleterious to health.

      George A. Grost, for plaintiff in error.

      Carr, Stearns & Chamberlain, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

These proceedings in error were brought by the plaintiff in error for the reversal of a judgment against him recovered in the common pleas court by the Make-Man Tablet Co., in an action where said company sued on a contract for the sale to ITechler of three gross Make-Man tablets at the rate of $48 per gross, f.o.b. Cleveland. Delivery of the tablets as agreed and performanee of all the terms of the contract by the company were alleged and failure of ITechler to pay as he had agreed.

ITechler admitted making the contract and receiving the tablets, and among other defenses alleged that the tablets were represented to him to be valuable as a specific for nerve troubles and a first-class nerve tonic, whereas in truth and in fact they were not, but on the contrary were worthless and deleterious to health. He alleged that he shipped the goods back to the company. This return of the goods was so delayed, as shown by the evidence, that it is doubtful if it worked a rescission of the contract, but is mentioned because of the offer of ITechler to prove that the tablets were worthless.

On the trial, ITechler offered to show that the tablets were worthless and actually deleterious to health, but the trial judge ruled out all such, evidence, holding him to the rule of caveat emplor.

In this we think the trial judge erred.

Not only was it competent to show that the goods were worthless, as excusing his failure to tender them back within a reasonable time, but we think that the peculiarities of the druggist’s business made this and other evidence offered relevant as establishing a valid defense.

In the course of the opinion in the case of Davis v. Guarnieri, 45 O. S., 470, 492, Judge Owen uses-the following language:

‘ ‘ The public safety and security against the fatal consequences of negligence in keeping, handling and disposing of dangerous drugs, is a consideration to which no dealer can safely close his eyes. An imperative social duty requires of him that he use such precautions as are liable to prevent death or serious- injury to those who may, in the ordinary course of events, be exposed-to the dangers incident to the traffic in poisonous drugs. ’ ’

In the case of Thomas v. Winchester, 6 N. Y., 397 (57 Am. Dec., 455), it was held:

“A manufacturing druggist selling poisonous drugs labeled as-harmless, by himself or his agent, is liable in damages to a person who, without carelessness on his part, and relying on the erroneous label, takes such drug, as a medicine, on the ground of breach of public duty, and whether the injured person is an immediate customer of the defendant or not.”

In the course of the opinion in. this case Ruggles, C. J., said:

“The defendant’s duty arose out of the nature of his business and the dangers to others incident, to its mismanagement. ’ ’

In the case of Willington v. Dorner Kerosene Oil Co., 104 Mass., 64, it was held that where a manufacturer of oils for illumination, knowing that naptha is explosive and dangerous, sells it to a retailer of illuminating oils, who, in ignorance of its dangerous character, sells it to a customer equally ignorant, who uses it in his lamp, causing an explosion, the manufacturer is liable for the damage resulting therefrom.

The same rule applies to the manufacture of a hair wash by a chemist or druggist. George v. Skivington, L. R., 5 Ex., 1.

Many similar cases are collected in the note to Howes v. Rose, 55 Am. St., 251.

In the case of Jones v. George, 42 Am. Rep., 689, it was held that the business of a druggist is such .that in the,very nature of things the druggist must be held to warrant that he will deliver the drug called for and purchased by the customer.

The'Supreme Court of Michigan carried the doctrine of implied warranty even further, and applied it to so common an article of food as bread, in the ease of Sinclair v. Hathaway, 57 Mich., 60, where it was held:

“A baker impliedly warrants .the wholesomeness of bread which he sells at a discount to the peddler who distributes it. ’ ’

From the cases cited and others like them we draw the conclusion that in the case of the sale of the tablets here involved there can be no issue made as to whether the tablets were in fact a specific for nerve troubles: doctors would doubtless disagree with regard to well known remedies on that point; but we think there was an implied warranty that they were not worthless, bread pills, for instance, or deleterious to health. The offer to prove in this case was that the tablets being heavily coated with plaster of paris, were insoluble and produced inflammation in the alimentary tract and might lead to death. We think the druggist should have been permitted to make this defense, if he could substantiate it.

For error in ruling on evidence the judgment is reversed.


text:
    DANGEROUS CONDITION DUE TO THE ELEMENTS.
    Circuit Court of Cuyahoga County.
    The Village of Nottingham v. Elizabeth Hoffman.

    Decided, January 20, 1908.

      Municipality Not Liable for Snoiv and Ice on Steps and Street.

    A municipal corporation is not liable for injuries received by slipping upon steps maintained by it, leading down from a street to a subway under railroad tracks, by reason of the natural accumulation of snow and ice upon the steps in the winter time.

      Smith, Taft ■& Arter, for plaintiff in error.

      J. F. Herrick and Herrick & Hopkins, contra.

       Affirmed without opinion, Hoffman v. Village of Nottingham, 85 Ohio State, 447.

   Winch, J.; Henry, J., and Marvin, J.,

concur.

The judgment in this case should not be reversed unless it is contrary to law, for no prejudicial error intervened at the trial.

Elizabeth Hoffman, on the morning of February 1, 190 — , having been to a grocery store on Dille street in the village of Nottingham, just south -of the Lake Shore Railroad Company’s tracks, started for her home on the north side of the tracks. When she came to the tracks, on account of trains which she saw, she decided to take the subway under the track. Indeed a sign erected at the place read: “This grade crossing is dangerous. Use the under crossing.”

At that place ivas a stairway built of cement, extending into Dille street and leading down into the subway. She noticed a light covering of snow on the stairway, but entered upon it and proceeded as far as the fourth step, when her feet slipped from under her and she fell to the bottom of the stairway, receiving serious injuries.

It seems that the snow hid from her sight an accumulation of ice on the lower steps which filled them úp so completely that the children of the village had been using the place for coasting.

She brought her action against the village, predicating its negligence upon a faulty construction of the steps, in that the stairway was not covered so as to prevent snow and rain from falling into it, and alleging that the stairway was so constructed as to create therein a constant accumulation of snow and ice, by the seepage of water through the sides of the stairway and without proper drainage to carry it off; without wooden steps to make their use safe; without any attempt to remove said ice and snow, or to spread ashes thereon, or to warn pedestrians of the danger. She alleged that the village well knew of this dangerous condition of the stairway but that she was ignorant of it.

The argument of her counsel to sustain the judgment she recovered is as follows:

"Whether this be called a structural defect or nuisance or purely a ease of negligence it seems to us immaterial. In neither ease are the slippery sidewalk eases applicable, as the decisions in these eases themselves distinctly state. A nuisance necessarily includes the element of negligence, and it may rest either upon an unsafe construction or upon a perfectly proper construction Mien there is coupled therewith the omission of some obvious duty. Whether the construction of these steps was defective-by reason of. lack of drainage, as the result shows, or lack of protection against the elements by cover, or whether they be deemed to have been properly constructed, is immaterial, if in the latter event.it is apparent, as we think it is, that the permission of their use so constructed, placed upon the village the obvious duty to keep them free from the element of danger, namely, the accumulation of ice and snow.”

Thus it is conceded that the only danger incident to the use of these steps was created by the accumulation of ice and snow upon them. Such being the case, how are we to distinguish this case from the sidewalk cases ? Indeed the facts in this ease are almost identical with the facts in the case of Barry v. City of Akron, 7 C.C.(N.S.), 575, although the facts are not fully stated in the report of that case.

Here there was no covering over the stairs; there was seepage of water, a natural seepage coming from the rainfalls and snow, and a place shaded from the sun by the walls of the stairway. In the Akron case the sidewalk was shaded in the same manner by a high bill-board and ice gathered in the spot where Barry slipped, while it was not general throughout the city. The law of the Barry ease, however, is to be gathered from its reversal in the Supreme Court, 76 O. S., 625, on authority of City of Norwalk v. Tuttle, 73 O. S., 242, a case which had not been commenced at the time the Barry case was considered by this court.

The kernel of the Tuttle case is found in the opinion where Judge Shauek says (page 245) :

“No default of the municipality appears in cases of this character when the peril is not due to defective construction or to any other act of the city contributing to or causing the dangerous condition of the street, but where that condition is due solely to the action of the elements.’’

t

Here the dangerous condition was due entirely to the action of the elements. The stairs were perfectly safe stairs if the elements did not cover them with snow and ice.

Had the village permitted rubbish to accumulate upon the steps it would have been negligent, but it is- not charged with the duty of removing accumulations of snow and ice which gather naturally.

We are constrained by the rule laid down in the Tuttle case by the Supreme Court, to hold that the judgment in this ease is contrary to law and for that reason it is reversed.


author: Winch, J.; Henry, J., 'and Marvin, J.,

text:
    WILL AS EVIDENCE OF PURPOSE OF A BEQUEST.
    Circuit Court of Cuyahoga County.
    Edward N. Fell, Administrator, v. Amyrilla Carter, Administratrix.
    Decided, February 3, 1908.

      Bequest Not in Payment of Services Rendered — Will Incompetent Evidence in Action Therefor.

    In an action to recover for personal services rendered a deceased person, it is not competent to introduce the decedent’s will, in which she makes a bequest to the plaintiff, as evidence tending to show that the bequest, was in payment for the services, unless the will so states.
   Winch, J.; Henry, J., 'and Marvin, J.,

concur.

This was an action to recover for personal services rendered by defendant in error’s intestate, Thomas Sheets, to plaintiff in error’s decedent, Sarah A. Spafford.

Without objection the defendant below was permitted to introduce the fourth section of the will of Mrs. Spafford which provides:

“To my brother Thomas Sheets, I give, devise and bequeath the sum of four hundred dollars, but should he die before myself, this bequest will be null and void.”

In his charge the trial judge directed the jury to consider whether this bequest in the will was intended to be and was in satisfaction of her brother’s claim. Afterwards realizing that in this respect he had erred in his charge to the jury, 'the judge recalled the jury and gave the following additional charge:

“Gentlemen, I submitted an issue in the charge, which upon reflection I am satisfied was erroneous on my part. That was with reference to the use that might be made of the proof as to the bequest in the will of four hundred dollars by Mrs. Spafford to her brother. This money has never been received by him, and it can not bind his rights in any respect nor those of his administrator. It, therefore, can not be considered in the nature of a defense by way of any satisfaction for any claim which the plaintiff may have in the case. You may, however, consider that act of hers in making such bequest in the will, and give it whatever weight it is entitled to as bearing upon what the true understanding and agreement was between the parties as to any promise to pay for the services rendered by the plaintiff. If it has any bearing or sheds any light on that question, consider it for that purpose. It can not be considered as a defense in the .nature of any satisfaction for any obligation sued on. I, therefore, make this correction that there may be no error in the instructions given in the charge.”

This additional charge is not in accord with the proposition laid down in the case of McNeil, Excr., v. Pierce, Admr., 73 O. S., 7, but its general tenor was favorable to the defendant below and can not be complained of by him. However, his counsel now says that the statement therein contained that “this money has never been received by him,” was not based upon any evidence in the case', and was therefore unwarranted and was misleading. For this reason he says that the judgment should be reversed.

This language was doubtless suggested-by the language used by Judge Wright in ruling upon a similar proposition in the case of Willis v. Dun, Admr., Wright’s Reports (Ohio), 133, but whether a good or bad reason was given for excluding the will in that case, or limiting its competency in this case, is immaterial. The will should not have been submitted to the jury at all, or for any purpose. There was no error prejudicial to plaintiff in error in this additional charge. Neither was there error in permitting the deposition of a son of Thomas Sheets to be used. He was not disqualified from testifying by any statute we know of.

Judgment affirmed.


text:
    FAILURE TO PROPERLY PROVIDE FOR. A CHILD.
    Circuit Court of Cuyahoga County.
    Joseph Noonan v. State of Ohio.
    Decided, February 17, 1908.

      Failure to Provide For Children — Tenue.
    In order to convict for failure to furnish necessary and proper food, clothing and shelter for a child, the state must show that the offense was committed within the county where the trial was had.

      Philip E. Hintz, 'for plaintiff in error.

      Frank E. Stevens, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Plaintiff in error was convicted in the -police court of the city of Cleveland of an offense commonly known as neglecting children, the punishment for which is provided by Section 6984a, Revised Statutes. His conviction wás affirmed by the common pleas court.

The affidavit filed in the case alleges that the offense was committed “on or about the 17th day of August, A. D. 1906 (the date of the affidavit), and from the 14th day of January, A. D. 1905’ (the date of the child’s birth), until said 17th day of August, A. E. 1906, at said city and county.”

The statute requires the state to show that the accused “wilfully, unlawfully or negligently fails to furnish necessary and proper food, clothing, or shelter for such child.”

The bill of exceptions shows that the child was born in Cleveland, but later taken by its mother to her parents “on a farm” where it has since remained, cared for by them, with some little help from the mother. The child is well taken care of, but plaintiff in error has never contributed to its support.

Where the farm is, is not shown. It does not appear that it is even in the state of Ohio or the United States. It may be in Canada, for aught the record shows, and on that farm the child has been ever since its mother took it there, about February, 1906,

It was further developed upon cross-examination of the mother that when she first asked the accused to give her something for the support of the child, it, the child, was with her parents.

In this state of the record we are compelled to say that the state failed to show that the offense was committed within the jurisdiction of the police court of the city of Cleveland and for that reason, the judgment not being sustained by sufficient evidence, the judgments of the common pleas court and the said police court are reversed and the cause remanded for a new trial.


text:
    ATTITUDE OF COURTS TOWARD QUESTIONS PERTAINING TO ELECTIONS.
    Circuit Court of Cuyahoga County.
    The Board of Deputy State Supervisors and Inspectors of Election of Cuyahoga County et al v. State of Ohio, ex rel Clarence N. Green.
    Decided, February 17, 1908.

      Election Laws — Academic Questions — Appeal Dismissed Bars Error Proceedings.

    1. A proper interpretation of the election laws is of so much importance to all the citizens, that a reviewing court must answer questions with regard thereto, when submitted to it, notwithstanding an election may have settled the rights of individuals involved, before the judgment of the court of original jurisdiction can be reviewed.
    2. Appeal to the circuit court having been properly perfected in an appealable case, and the appeal subsequently dismissed, error 'will not lie to the same original judgment.

      White, Johnson, McCasUn <& Cannori, for plaintiff in error. Uigley & Maurer, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

On the 26th day of October, 1907, the relator filed his petition in the common pleas court praying that a writ of mandamus be issued against plaintiffs in error requiring them to receive and file a certain nomination paper and to print the names of the nominees thereon upon the ballots to be voted at the election to be held November 5, 1907.

The petition alleges that the only reason the respondents- rejected said nomination paper was because they had held it to be not in apparent conformity with the provisions of the statutes of Ohio, in that it did not contain the names and addresses of persons to the number of five or less as a committee who might fill vacancies caused by death or withdrawal.

To this petition a demurrer was interposed and overruled, whereupon the case was heard upon the petition and the evidence and a peremptory writ was awarded on the first day of November, 1907, four days before the election.

The transcript shows that the following proceedings were had, in the matter after the election:

November 30, 1907. Appeal bond fixed and filed by defendants.

December 26, 1907. Mandate from the circuit court filed setting forth that said court had granted the motion of the relator to dismiss the appeal and that the appeal was dismissed at the cost of the respondents.

December 24,1907. Petition in error filed in the circuit court.

It is this petition in error that we now have under consideration ; it alleges that the common pleas court erred in overruling the demurrer to the petition, and that the common pleas- court had no jurisdiction of the action.

We have no doubt that this contention is correct. The action of the Deputy State Supervisors and Inspectors of Elections in the matter here involved is made final by the statutes. Such has been the holding of the Supreme Court so many times that a mere reference to a few of its decisions is sufficient. Chapman v. Miller, 52 O. S., 166, 176; Randall v. State, ex rel, 64 O. S., 57; State, ex rel, v. Jones, 74 O. S., 418.

There are other cases decided by the Supreme Court, but not reported fin full, referred to in brief of counsel for plaintiffs in error, which are to the same effect.

But it is claimed by defendant in error that notwithstanding our conclusion as to the law, we can not now reverse the judgment complained of, and motion is made to dismiss the petition in error upon the following grounds:

1. That the relief prayed for in the petition and the order below appertained to the duties of the plaintiffs in error as Deputy State Supervisors of Elections of Cuyahoga County in and about the election held November 5, 1907.

2. That the order of the court below, complained of was not served upon any of the plaintiffs in error.

3. That the plaintiffs in error have heretofore elected to review the said proceedings below by way of appeal.

The first two grounds suggest that any order this court might make now would be a brutum fulmen; that naught remains but an academic question.

We do not think the point well taken. A proper interpretation of the election laws is of so much importance to all our citizens that the courts must answer questions with regard thereto when submitted to them, notwithstanding the fact that th§ rights of individuals are usually determined in such matters before the reviewing courts can pass upon them, by the holding of an election.

Such has been the practice of the Supreme Court.

In the case of Randall v. State, ex rel, 64 O. S., 57, involving matters pertaining to the election held November 6, 1900, petition in error was not filed in the Supreme Court until November 17, 1900, and on January, 22, 1901, the Supreme Court reversed the judgment of the circuit court, sustained a demurrer to the petition and dismissed it.

The case of Beacham v. State, ex rel, 64 O. S., 577, concerning the election held in November, 1900, reached the Supreme Court October 26, 1900, but was not decided until April 9, 1901, when the judgment of the circuit court was reversed and the petition dismissed on the authority of the Randall case.

The third reason alleged for a dismissal of the petition in error has given us much trouble.

The transcript does not disclose why the previous appeal of this case was dismissed in this court. Every intendment, however, is in favor of that judgment of dismissal, and if other grounds of dismissal may be presumed, it can not be claimed that the dismissal was for want of jurisdiction, for the law is well settled that actions in mandamus are appealable. Dutton v. Village of Hanover, 42 O. S., 215; State, ex rel, v. Philbrick, 69 O. S., 283.

We may, therefore, suppose that the appeal was dismissed because the appellants, defendants below, failed to prosecute their appeal, or because the circuit court after the election refused to try the case-and make up a record, when its judgment, being an original judgment, would have no operation. This point distinguishes the trial of a case involving only an academic question from the review of the judgment of an inferior court on a question which has become academic since leaving the lower court. The latter judgment, if erroneous, should not be left to stand as a precedent. If, then, the appeal was not dismissed for want of jurisdiction, was that adjudication a bar >to further review of the action of the common pleas court?

In other words, did the plaintiffs in error elect their remedy and have they had their day in court in such sense that they can not now be further heard?

It has been decided in this state that one can not have two proceedings in error based upon the same judgment. Railroad Company v. Belt, 36 O. S., 93.

It is also said by Judge Davis, in the ease of Irwin v. Lloyd, 65 O. S., 55, 61, that there can not be a second appeal from the same judgment.

We consider the following cases to be authority for the proposition that error can not be predicated to. a judgment from wh'ich an appeal has been properly taken. Sale v. Pratt, 19 Pick., 191; Furman, v. Motely, 67 N. J. L., 174.

The appeal, having been properly taken and the ease being an appealable one, the whole body of the case is in the appellate court and there is nothing left in the lower court upon which to predicate error.

We have little reluctance in reaching the conclusion'stated, for the judgment of this court in the appealed case can easily be reviewed by the Supreme Court and the academic question propounded answered by that court in that case, as well as in this-case, if it sees fit to answer it.

The motion'to dismiss the petition in error is granted.


text:
    JURISDICTION ON REVIEW.
    Circuit Court of Cuyahoga County.
    The Widows & Orphans Fund v. The German Roman Catholic Central Verein et al.
    Decided, March 23, 1908.

      Order of Reference Rot Reviewable — Error Lies But Once.

    1. An order referring a cause to a referee is not a ■ final order reviewable on error.
    2. There can not be more than one review oh error of the same judgment. All grounds of error must be stated in one petition.

      M. P. Mooney, for plaintiff in error.

      Francis J. Wing and Hermam Preusser, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

While that part of the1 order of the common pleas court, now complained of, re-referring the cause to a referee, appears to have been unnecessary, in the light of the real issues made by the pleadings and also appears to be in conflict wtili the former order of the same court made on April 5, 1907, yet we are without jurisdiction to reverse it, because such an order is not a final order, within the purview of Section 6707, Revised Statutes, reviewable on error by the circuit court under the provisions of Section 6709, Revised Statutes. The mere reference of a case determines no rights. It is not to be presumed that upon the coming in of a second report in this case, any erroneous order will be made, based upon it; and should there be, it will be time enough to complain of it after the final order is made.

Another cogent reason exists why this petition in error shonlcl be dismissed.

We have already entertained one petition in error from the same judgment, and determined it. There can not be more than one review on error. Railroad Co. v. Belt, 36 O. S., 93.

It is immaterial that the former case in this court concerned only such part of the order as appointed a receiver, for it was the duty of the plaintiff in error in one case to point out all the errors by which he claimed to be prejudiced, and not base a separate petition in error upon each alleged ground of error.

The petition in error is dismissed.


author: Winch, J.; ITenry, J., and Marvin, J.,

text:
    CONTINUANCE BEYOND STATUTORY PERIOD.
    Circuit Court of Cuyahoga County.
    Joseph M. Corrigan v. John W. Marshall.
    Decided, May 18, 1908.

      Justices Jurisdiction — Limitation of Time "Waived.

    Taking'part in a trial before a justice of the peace waives objection to the jurisdiction to hear the case after the time limited by the statute.

      W. K. Stanley, for plaintiff in error.

      Burroivs & Mason, contra.
   Winch, J.; ITenry, J., and Marvin, J.,

concur.

The judgment in this ease must be affirmed, for it does not appear either from the transcript of the docket of the justice of the peace or the bill of exceptions, that the plaintiff in error did not consent to the continuance of the ease beyond the time limited by the statute within which a justice of the peace retains jurisdiction of actions begun before him.

The case had previously been adjourned for more than ninety days, by consent of plaintiff in error, to June 1st, 1906. The transcript has the following entry for that date:

“June 1, 1906, at 2 p. m., John Br.own, J. P., before whom this action was brought, being necessarily absent at the said time appointed for the trial of this action, the undersigned, M. Fred Nellis, justice of the peace of the same township of Cleveland, attended in his behalf at the said time and place set for said trial; whereupon parties present, case called, defendant made a motion to dismiss for want of jurisdiction. Same overruled and to which ruling defendant then and there excepted. Trial had. Plaintiff sworn and examined on his own behalf. Whereupon the case continued to June 5, 1906, at 2 p. m., for further' testimony.”

The entry of June 5 is as follows:

“June 5, 1906, at 2 p. m. Parties present. Case called. Hearing resumed., J. M. Corrigan sworn and examined on behalf of plaintiff. Whereupon case continued to June 6, 1906, at 9 a. m. for arguments of counsel.”

The bill of exceptions shows, among other things, that the following occurred on June 1, 1906:

“The defendant, Joseph M. Corrigan, is in court only for the purpose of acting as a witness for Mary Corrigan, and makesmo defense to this action.”

At 3 p. m. the court adjourned the case until Tuesday, June 5, at 2 p. m. sharp, without objection from either party.

At the latter date the examination of witnesses was resumed, counsel for Corrigan taking part in cross-examination and no objection was made.to the hearing being had at that time.

Our attention is called to an entry on page 9 of the bill of exceptions as follows:

“Mr. Stanley: Mr. Joseph M. Corrigan is here only as a witness and not as a defendant in this action.”

This statement was made some time after his counsel had been cross-examining witnesses in the case, and we think it was then too late for the defendant in the case, having entered upon the hearing and participated in it, to thereafter object to the jurisdiction of the court.

It is true that the presence of Corrigan at the trial as a witness would not indicate that he wa.s consenting to the trial going forward on the 5th day of June, but by his counsel he participated in the trial and made no objection to the jurisdiction of the court. We think, therefore, that he must be held to have consented to the continuance and to have waived any rights he may have had to object to the jurisdiction of the court.

'However, the judgment is affirmed.


text:
    BOUNDARY LINE ESTABLISHED BY UNCONNECTED FENCES.
    Circuit Court of Cuyahoga County.
    Jacob Epstein et al v. William Kraft.
    Decided, May 18, 1908.

      Boundary Line — Fences.
    Where a boundary line is conceded to be a straight line, the construction of fences along a portion of its distance, leaving a gap between them unenclosed, amounts to a recognition of the entire line and a claim to all the land bounded by it.

      A. F. Ingersoll, for plaintiffs in error.

      J. M. Shallenberger, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This was a case in ejectment, the plaintiff being the owner of sub-lot No. 24 in J. M. Hoyt’s subdivisipn on the easterly side of Maple street in the city of Cleveland, and the defendant being the owner of sub-lot No. 23 in said subdivision, which is south of said sub-lot No. 24. Each of these lots, according to the plat, is 30 feet front and 100 feet deep to an alley in the rear. The plaintiff claims that the defendant has taken possession of a strip of land along the south side of said lot No. 24, fourteen inches wide in front and seventeen inches wide in the rear, by erecting a new fence on the northerly side of said strip. A jury was waived in the common pleas court and the trial judge found in favor of the defendant and dismissed the petition. The case is here on error and from the bill of exceptions it is apparent that the dispute between the parties as to the location of the proper boundary line between their lots is due to the fact that there is a surplus of 1 98-100 feet in the block in which said lots are situated.- The defendant’s surveyor, by apportioning this surplus through all the lots in the block, brings the north line of the defendant’s lot to the new fence built by him. This method of apportioning the surplus through all the lots in the block and giving each lot its pro rata share is conceded to be a proper method of distributing the surplus. But the plaintiff claims that he has located 14 inches of said surplus in his lot and made it a part of said lot No. 24 by building fences and holding possession of said strip for more than twenty-one years.

There is little dispute as to the facts in the ease. It is clear that the fence on the line claimed by plaintiff was built more than twenty-one years before the beginning of this suit, for a distance of 50 feet from the rear of the lot towards the front, and another fence on the same line was built more than twenty-one years before the beginning of this suit from the street line back 15 feet. There was no fence connecting these two short fences, so that there was a space of 35 feet without any fence. This space was between the houses of the plaintiff and defendant, and it was because there was no continuous fence from the front to the rear of the lot that the trial judge held that the plaintiff had failed to establish his title to the strip in dispute by adverse possession. Some support for this conclusion is found in the eases of Smith v. Hosmer, 28 American Decisions, 354, and Armstrong v. Risteau, 59 Am. Dec., 115, for there is nothing in the evidence showing that the old fences were built upon a line agreed upon between the parties, as the proper and correct boundary line between them.

We think, however, the better doctrine is stated in the case of O’Callaghan v. Whisenand, 119 Ia., 566, the second paragraph of the syllabus of which reads as follows: •

“Where a boundary line is conceded to be a straight line the construction of a building along a portion of its distance amounts to a recognition of the entire line and a claim to all the land bounded by it.”

To tbe same effect is the case of Buck et al v. Squires, 23 Vermont, 498. The same rale was applied in the case of Wilson v. Sidle, 52 O. L. Bull., 393.

We are confirmed in our conclusions by a consideration of the use to which the plaintiff put the land along the strip in dispute, which was unfenced. This part of the strip was the only access plaintiff had to the rear of his lot, and-his house came within twenty-three inches of the line which he claims to be the proper southerly boundary of his land. Taking off fourteen inches of this strip, as defendant has done, by building the fence on the line he claims, leaves the plaintiff without access to the rear of his lot.

It is in evidence that the plaintiff and liis predecessors in title used this strip along the side of his house with the knowledge of the defendant and his predecessors in title for the convenience of egress and ingress to and from the rear of his lot, without let or hindrance and without obstruction, for a period of more than twenty-one years before this suit was brought, and we think he thereby acquired a right by prescription to its use, as incident to his land. Pavey v. Vance et al, 56 Ohio St., 162.

What right then had the defendant to build his new fence where he located it? -We think that the plaintiff was clearly entitled to the relief prayed for in his petition and that the judgment rendered by the trial court was contrary to law and should be reversed.

While the facts upon which we arrive at.this conclusion are uncontradicted, as there still remains in the case the claim for damages which the plaintiff has set up in his petition, for the ascertainment of said damages the cause is remanded to the common pleas court for a new trial.

Judgment reversed.


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    AS TO NEGLIGENCE OF A DRIVER.
    Circuit Court of Cuyahoga County.
    The Cleveland & Southwestern Traction Company v. James E. Fauver.
    Decided, April 29, 1908.

      Collision Between Street Car. and Vehicle — Contributory Negligence.

    It is for the jury to say whether the driver of a vehicle in driving along side of a street car track on a public street, was contributorily negligent in driving too close to'the track.
   Winch, J.; Marvin, J., concurs; Henry, J.,

dissents.

By the consideration of the common pleas court defendant in error recovered a judgment against plaintiff in error in the sum of $500 for personal injuries received in a rear end collision on Lake avenue, in the city of Elyria, between the ear of plaintiff in error and the delivery wagon of defendant in error.

The accident happened about four o’clock on the afternoon of May 16, 1906.

The ear and wagon were both going in the same direction, the wagon at about eight miles per hour and the car at. from ten miles, as testified by the motorman, to twenty-five miles, as testified by other witnesses.

The petition alleges “that the defendant was negligent in running and operating its said car at said high rate of speed (twenty-five miles per hour) on said Lake avenue in said city of Elyria, and in approaching said plaintiff without warning while so running its said car at said high rate of speed.”

The car tracks are on Lake avenue, about fifteen feet from the easterly curb. Lake avenue extends in a'nearly northerly direction from the Lake Shore tracks about 2,000 feet to West street, where it turns in an oblique angle to the northwest. Lodi street comes in from the southwest at West street and joins with Lake avenue at an angle even more oblique than that formed by the two parts of Lake avenue, so that forks are formed at West street. The latter street crosses Lake avenue on a course due east and west. Evidently the two vehicles were approaching the forks of the road at about the same time.

When Fauver was within seventy feet of the track, where it is crossed by West street, he looked back to see if a car was coming. Pie could see 200 feet along back to the track on Lake avenue and saw no car. Pie proceeded northwesterly along the easterly side of Lake avenue, keeping in the beaten track, and when he had gone from forty to 120 feet, just as he was turning around a mud hole, the ear came up from behind, without warning struck the rear wheel of his wagon, upset it and threw him out, injuring him, as the jury found, in the manner claimed in the petition.

It appears from the evidence of both parties that Lake avenue was in a very bad condition, full of mudholes in and out among which the traveled road wound, many places coming so close to the track as to leave no room for a ear to pass, if a vehicle was on the traveled road.

This condition of the road was well known to the motorman and was perfectly apparent to him at the time of the accident, so that the jury might well have' found, as it necessarily did, that the motorman was negligent in running into the wagon without warning, fot according to his own testimony, he saw the wagon for some time before he struck it, and at first thought it might cross at West street, and slowed down to give it a chance to do so.

The serious legal proposition in the case is the question whether the man on the wagon was guilty of contributory negligence in not looking back just before he drove around the mud-hole, which brought him too close to the track. This question was submitted to the jury under proper instructions. Remembering that Fauver had looked back not more than ten seconds before he was struck (for that time is figured out from the distance he traveled and the speed he was driving), a majority of the court is not willing to say that the jury was clearly wrong in finding Fauver guiltless of contributory negligence.

With the numerous mud-holes there were on this street, Fauver could not have driven along it without looking back nearly every second, if it was his duty to look back at each mud-hole. In other words, we conceive the situation on this road to be such that in driving along it the same rules are to be applied as if Fauver had driven onto the track itself at West street, having first looked back to see if a car was coming, and had kept on the track until struck, without looking back again during the time which elapsed in this case.

We are aware that the conclusion is not warranted by the opinion delivered by Judge Davis in the case of Drown v. Northern Ohio Traction Co., 76 O. S., 234, but are not disposed to apply the reasoning of that opinion to the facts of this case.

Drown turned out in the night season around a temporary obstruction, a wagon standing at the curb, of which the motorman had no notice. In this case the motorman knew the condition of the road and saw Fauver’s position and the whole situation. He should have expected Fauver to do just what he did do and we hesitate to say that Fauver, as a matter of law, was guilty of contributory negligence in failing to look back more than once.

We have examined all the errors alleged to have occurred at the trial but find none prejudicial to plaintiff in error. A majority of the court being of the opinion herein expressed, the judgment is affirmed.


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    AS TO WHETHER. A TENANT FROM MONTH TO MONTH' HELD OVER.
    Circuit Court of Cuyahoga County.
    H. R. Crow v. R. J. Simms.
    Decided, June 1, 1908.

      Landlord - and Tenant — Holding Over.

    Where a tenant from month to month moves out on the last day of the month, hut, through the fault of his movers, some of his goods remained in the house until the next morning, there is not such holding over as to constitute him a tenant for another month.

      W. W. Wheeler and Ilowlancl & Niman, for plaintiff in error.

      Klein & Harris, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

AVhen this action was begun before a justice of the peace, an attachment was issued on the ground that the claim sued upon was for necessaries, to-wit, rent for a suite of rooms in an apartment house. On appeal to the common pleas court, the attachment was dissolved.

It appears that the tenant leased from month to month. Three days before the end -of his month he notified the landlord that he would move out on the last day of the month. This he proceeded to do, and removed most of his goods before night-fall of the last day, but through the fault of his mover, some of his goods remained in the apartments until about ten o’clock of the morning of the first day of the next month. The tenant and his family did not remain over the last night but slept elsewhere.

We hold that under the circumstances of this case there was not such a holding over as to constitute the defendant a tenant for another month. See cases cited under note 4 on page 406 of the 38th volume of the American & English Encyclopedia of Law. A consideration of both sides of this question may be found in Haynes v. Aldrich, 133 N. Y., 287, and Herter v. Mullen, 359 N. Y., 28.

There being no holding over, no claim for rent arose; hence no attachment as for necessaries should have been allowed. The common pléas court properly dissolved the attachment and its judgment is affirmed.


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    BREACH OF WARRANTY TO PAY INCUMBRANCES.
    Circuit Court of Cuyahoga County.
    James R. Bell, Trustee, v. W. H. Mahaffey et al.
    Decided, June 1, 1908.

      Justice Court Jurisdiction — Mirror to Common Pleas — Petition in Mirror Can Not Supply Missing Word.

    Where the bill of particulars filed before a justice of the peace recites that the claim is for “breach of warranty to pay incumbrances,” and there is no bill of exceptions, showing that the warranty was as to incumbrances on real estate, it will be assumed that they were upon personal property and that the justice had jurisdiction of the case; and the record can not be helped out by allegations in the petition in error filed in .the common pleas court seeking a reversal of the judgment of the justice on the ground that he did not have jurisdiction of the action.

      ■Vernon H. Burke, for plaintiff in error.

      Brady & Dowling, contra.
   Winch, J.; ITenry, J., and Marvin, J.,

concur.

Plaintiff in error sued defendant in error before a justice of the peace for “breach of warranty to pay incumbrances” and had judgment. Defendant in error thereupon filed a petition in error in the common' pleas court to reverse said judgment, alleging that the justice was without jurisdiction in the case because it drew in question the title to real estate.

There was no bill of exceptions filed with the petition in error, and, as the bill of particulars filed in the justice’s court does not disclose whether the warranty sued upon was for the payment of-'incumbrances upon real or personal property, the only question now for consideration is whether the fact that it was with regard to real estate could be brought before the common pleas court by an allegation to that effect in the petition in error and the introduction of evidence in the common pleas court to sustain that allegation of the petition in error.

The common pleas court held that such allegation in the petition in error was proper, received evidence thereunder, and reversed the judgment of the justice of the peace. In this we think the common pleas court erred.

While it is trae that Section 6709, Revised Statutes, regulating proceedings in error from the common pleas court to the circuit court provides that the circuit court may reverse the common pleas court1 ‘ for errors appearing upon the record, ’ ’ and Section 6708 regulating error to the common pleas court from a probate court, juAstice of the peace, or any other tribunal, board, or officer exercising judicial functions, and inferior to the court of common pleas, omits the words quoted, still the Supreme Court lias not deemed the omission of said words significant, for it held, in the case of Roberts, Executor, v. Roberts, Jr., 61 O. S., 96, a case carried into the common pleas court by petition in error from the judgment of the probate court, that “Nothing can be added to or taken from a record by averment in a petition in error, and extrinsic facts pleaded in such a petition do not form any part of the record sought to be reversed.”

Most assuredly this rule should have been adhered to by the common pleas court in the case at bar. There being no record of the evidence introduced before the justice of the peace, it is quite possible that he" received evidence showing that the warranty was made in the sale of personal property and none tending to show that it was with regard to real estate. If he did, he committed no error in entertaining jurisdiction of the ease and so should not be reversed because of other or stronger evidence produced for the first time before the reviewing court. In this respect a petition in error differs from a bill in equity, and because the common pleas court disregarded this distinction its judgment is reversed and the judgment of the justice of the peace is affirmed.


author: Winch, J. ;. Henry, J., and Marvin, J.,

text:
    ESTABLISHING COMPLIANCE WITH THE BURNS LAW.
    Circuit Court of Cuyahoga County.
    Henry Soeder v. City of Cleveland.
    Decided, June 8, 1908.

      Municipal Corporations — Compliance With Btirns Lavo Must he Pleaded.

    In 'an action against a 'municipal corporation to recover on a contract i ' with it to which the Burns law applies, the petition must allege ■ and the ■ evidence, show that the requirements of said law were , ;-complied with and a certificate filed •showing money in the treasury to the credit of the proper fund.

      Blandi-ngy Rice & Ginn, for-plaintiff in error.

      New-lon D. Balter, contra.
   Winch, J. ;. Henry, J., and Marvin, J.,

concur.

;The'petition in error in this case alleges that the common pleas court erred in sustaining a demurrer to' the plaintiff’s second -amended uetition. That petition for its first cause of action.claims compensation for certain work done and materials furnished in the improvement of a city cemetery and under an alleged contract entered into in 1898, when the city of Cleveland whs under the so-called Federal Plan law (88 O. L., 105), and William J. Alters was director of charities and corrections. The sixty-seventh section of said law provided that said director should have all the powers and perform all the duties which are by law Or ordinance • vested ifi or recpiired of the trustees of cemeteries'.''

'Chapter 7, Div: 8, Title XII, Part 1st, of the Revised Statutes then provided regarding cemeteries, vesting their title in the corporation, but'giving their entire management,'control and regulation to a' board of three trustees; to lay out such grounds and cemeteries into lots, avenues, etc., direct all improvements and embellishments of the grounds, determine the size and price of lots and sell the same, charging therefor no more than might be necessary to reimburse the corporation for the cost of lands purchased or appropriated for cemetery purposes, and to keep in order and embellish the grounds.

The money thus received, the cemetery trustees were authorized to spend.

The demurrer was sustained because of failure of the pleader to allege that the Burns law, so-called (Section 2702. Revised Statutes) which requires that no contract (involving over $250 under the Cleveland special act) shall be entered into by the corporation unless the city auditor “shall first certify that the money required for ‘that purpose’ is in the treasury to the credit of the fund from which it is drawn, ’ ’ etc.

The contention of the plaintiff in error is, first, that it does not affirmatively appear from the petition that the Burns law was not complied with, and secondly, that the Cleveland special act being unconstitutional, its director of charities and corrections was but a cle facto board of cemetery trustees and as such not subject to the provisions of the Burns law.

The first point is one of pleading.

It is alleged in the petition that “on said 14th day of April, 1898, the said city of Cleveland, acting through said William J. Akers, as such director of charities and corrections, the said Akers therein exercising the powers of the board of trustees of cemeteries, duly entered into a contract in writing with one Conrad J. Hoffman, a copy of which is hereto attached, marked ‘Exhibit A,’ for the improvement of ssid West Park Cemetery.”

It is said that the word “duly” intended that the Burns law, as well as all other laws, was complied with. We can not so conclude, for the petition states specifically through whom the city was acting in making the contract, and limits it to the director named, thus excluding the participation therein of the city auditor, as required by the Burns law.

Again, all contracts with a municipal corporation being void, except such as come within the requirements of the Burns law, we are inclined to the view expressed in the ease of Kerr v. Village of Bellefontaine, 13 C. C., 24, that in an action on a contract with a municipal corporation it is necessary “to allege and prove that at the time such contract was made, the necessary certificate of the clerk (auditor) showing that the money required for the same was in the treasury to the credit of the fund from which it was to be drawn, and not appropriated for any other purpose, was obtained.” This point is also suggested but not' decided by the case of City of Lancaster v. Miller, 58 O. S., 558, and the ruling of the circuit court referred to is not weakened by the fact that that case was reversed by the Supreme Court (59 O. S., 446), the reversal being put upon the ground that Section 2702 did not apply in the case at all.

Coming to the second point claimed by counsel for plaintiff in error, that Section 2702 does not apply to cemetery trustees and that Akers was acting as a cle facto board of cemetery trustees, it is two-fold.

The claims that cemetery trustees are not bound by Section 2702 in making contracts for the city is based upon the ease of Kerr v. City of Bellefontaine, 59 O. S., 446, but that case applies only if the improvements here involved were to be paid for out of the receipts from sales of cemetery lots, and not if the payment for work done under the contract involved the raising of money by taxation, and there is nothing in the petition to show which was the case.

The presumption would be,.from the vast amount of work to be done and the large sums to be expended under the contract, as set forth in the petition, that this was original work in a new cemetery, and within the purview of Section 2702. But, however that may be, we hold that Akers was a de facto director of charities and corrections, and not a de facto board of cemetery trustees, within the principles announced in the case of State v. Gardner, 54 O. S., 24.

We therefore hold that the demurrer to the first cause of action was properly sustained.

As to the other causes of action, they appear to be for extras, all growing out of the contract pledged in the first cause of action and inseparably connected with it. While each is for less than $250 this effort to split up a single cause of action and thus circumvent the provisions of Section 2702 should not be encouraged and we therefore hold that the demurrer as to them was properly sustained.

Judgment affirmed.


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    CAUGHT IN A CABLE ON A STEAMSHIP DOCK.
    Circuit Court of Cuyahoga County.
    The Gilchrist Transportation Company v. George Pearson.

    Decided, June 8, 1908.

      Negligence — -Hauling in Gable.

    It is negligence on the part of the captain of a steamboat to order a cable hauled in, which is lying slack on the dock, without warning and without looking to see if anybody lawfully on the dock might be caught in a bight of the cable and injured.

      Seaton & Paine, for plaintiff in error.

      B. B. c& A. O. Newcoml) and — Sidles, contra.

       Affirmed without opinion, Gilchrist Transportation Co. v. Pearson, 80 Ohio State, 723.

   Winch, J.; Henry, J., and Marvin, J.,

concur.

The defendant in error was a ship carpenter in the employ of the American Ship-Building Company, working on its docks on the old river bed, in the city of Cleveland. To these docks the Neshoto, a large steamer belonging to plaintiff in error, had been brought for repairs, and while Pearson was eating his lunch in one of the sliip-building company’s buildings on the 13th day of September, 1905, the Neshoto was moved across the river bed from the north bed from the north to the south side, and he found it there, apparently moored at the dock, when he came back to work. Walking along the dock to his work on the boat, just as he was about to step over a steel cable lying slack upon the dock and extending from the boat to a port on the deck, said cable was suddenly, and without warning, drawn taut by a steam capstan on the boat, caught him between the bight and threw him into the air, as a result of which he fell upon the dock and sustained serious injuries. Pearson sued-the transportation company for damages, claiming it was negligent in starting the steam capstan on the deck of the boat and jerking the cable when it knew, or should have known, that said cable was lying upon the dock and that said dock was a passageway for the men employed in the shipyard, and that it would catch and injure plaintiff if it were suddenly jerked, and in failing to warn the plaintiff as said capstan was about to be started and said cable about to be jerked, well knowing that the men upon the dock relied upon and had a right to rely upon a warning notice being given in such event.

The answer was a general denial and plea of contributory negligence on the plaintiff’s part.

On the trial the transportation company claimed that at the time of the accident the Neshoto was under the control and in the care of the ship-building company and that the latter was responsible for the accident, if anybody. This issue was fairly submitted to the jury and we think that the evidence, without giving the details of it, warranted the jury in determining that the transportation company did the act which resulted in the injury to Pearson.

We also think that the transportation company was negligent under the circumstances. Warning should have been given before the line was hauled taut.

It is just as negligent to haul in such a cable quickly, without warning, and without looking to see if anybody on the dock might get caught, as it is to throw out a line without warning and without looking to see if anybody on the dock might be hit by it and injured. If the captain of the Neshoto desired to use the dock for his own purposes, he should have taken ordinary steps for the safety of those on the dock.

Pearson had a right on the dock.

The evidence as to the custom at said dock of giving warning under such circumstances was properly received on the question of Pearson’s possible contributory negligence, and the jury was warranted in finding him without fault.

Further consideration of the evidence in this case is unnecessary; it is sufficient to say that we think it sustains the verdict and the judgment is affirmed.


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    RECOVERY OF MONEY LOST AT GAMBLING.
    Circuit Court of Cuyahoga County.
    F. A. Stetson, Trustee, v. David Vesper et al.
    Decided, September 23, 1908.

      Bankruptcy — Money Lost at Oanibling — Trustee May Recover, if Suit is Brought Within Six Months. '
    A trustee in bankruptcy can maintain an action to recover money lost by his bankrupt within six months of the bringing of the action.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This action was brought in the common pleas’court by F. A. Stetson, as trustee in bankruptcy of one A. S. Jacoby, to recover the sum of $1,155 lost by said Jacoby in gambling with the defendants, Vesper and A. E. Harden, the latter being also the owner of the building in which the gambling was done.

Provision for suits of this kind is made by Sections 4269 to 4276, inclusive, of the Revised Statutes. Section 4270 provides that a person losing money in gambling may recover it back, if he sues therefor within six months after the loss of the money. Section 4773m provides that if the loser does not bring such suit within six months, another person may bring it for his own benefit thereafter.

In this case it appears from the petition that the trustee in bankruptcy was appointed and the suit was brought by him within the six months, and for that -reason the demurrer to the petition was sustained, on the theory that the right created by the statute which did not exist at common law, could only be exercised by the loser personally during the six months, and did not pass to' his trustee in bankruptcy.

A correct solution of the question thus submitted requires an examination of the bankruptcy act, in order that we may determine what passes under it from the bankrupt to his trustee. Section 70 of said act reads, in part, as follows:

“The trustee of the estate of a bankrupt, upon his appointment and qualification, and his successor or successors, if he shall have one or more, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt, except in so far as it is to property which is exempt. * * *
“ (3) Powers which he might have exercised for his own benefit, but not those which he might have exercised for some other person; * * *
“(6) Rights of action arising upon contracts or from the unlawful taking or detention of, or injury to, his property. ’ ’

Elucidating the meaning of the words used in Section 70, by referring to the adjudicated cases upon the subject, we find that Loveland, in his text-book on bankruptcy, Section 376. at the bottom of page 509 says:

“Thus, the trustee is the proper party to institute a suit to recover the value of lands or goods and merchandise sold by the bankrupt,” etc.

So, also, the trustee, where a right of action exists under the state or federal law, may recover money lost in gambling, and note 13 cites four cases as sustaining this proposition of the text.-

We are unable to find any of said cases in the library, but have no doubt that they do sustain the proposition that the trustee succeeds fully to the right of the bankrupt to recover money lost in gambling, whether it be considered as a power conferred upon him by the statute or a right of action arising, through the unlawful taking of his money. It thus appears, as we think, that the right to bring this action passed out of the bankrupt within the six months, so that he could not exercise it during that time, and that it passed to his trustee in bankruptcy, who was the only person during the remainder of said six months entitled to bring the action. Such being the case the demurrer to the petition should have been overruled, and for error in sustaining it, the judgment is reversed, and proceeding to rentier the judgment which should have been rendered, the demurrer to the petition is overruled, and the cause is remanded to the common pleas court for further proceedings.